An analysis of Arbitration and Conciliation Act, 1996 in light of the case of Chintels India Ltd v. Bhayana Builders Pvt. Ltd.

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September 24, 2021

This article is written by Ms. Nikara Liesha Fernandez from the School of Law, Christ University, Bangalore. This article deals with the main law governing the emerging field of Arbitration and Conciliation in India as well as its applicability made by the court of law.

Table of Contents

Introduction

In light of the exponential increase in commercial disputes all over the world due to the factors of globalisation, industrialisation and liberalisation, the process of alternative dispute resolution (commonly known as ADR) has become very popular among individuals both in India as well as abroad. In India, also known by its common name of ‘out of court settlement’, ADR can be defined as a set of ‘dispute resolution processes and techniques that act as a means for disagreeing parties to come to a win-win position to prevent the lengthy process of litigation. It is a collective term used for the ways that the parties can settle disputes with the help of a neutral third party.’

ADR has gained widespread appeal as it is a relatively economical, speedier means by which parties can settle their disputes amicably without the hassle of taking the matter to court. It is a private, generally informal and non-judicial procedure for adjudicating disputes. The beauty of this process is that the parties themselves can choose their arbitrators who in their mind can provide the best assistance in settling the dispute and this creates a comfortable background for the proceedings to take place. An arbitral award or the verdict given by the arbitrator has the same effect as an order given by a court of law and thus the decision of the same is legally binding on both parties.

Essential components of the arbitral process

The four requirements for a successful arbitration procedure to take place are-

An arbitration agreement
A dispute
A reference to a third party for its determination
An award by the third party

ADR is a broad name given to an umbrella under which there are five main means of settling disputes namely arbitration, mediation, conciliation, negotiation and Lok Adalats. This article will deal with an in-depth analysis of arbitration and a mention of mediation and conciliation as well.

An overview of the Arbitration and Conciliation Act, 1996

Changes brought about by the new Act

The Arbitration and Conciliation Act, 1996 (“Act”) repealed the erstwhile Arbitration and Conciliation Act of 1940 with the implementation of new provisions based on the UNCITRAL Model Law on International Commercial Arbitration, 1985. Its applicability extends to the whole of India. Although largely following the same philosophy, the Arbitration Act deviated from the Model Law in some aspects. For example, the standard for referring parties under the Arbitration Act is significantly lower than that prescribed by the Model Law. The Arbitration Act also prescribes time limits for the completion of the arbitration which the Model law does not. Model law also contains detailed provisions with relation to the costs affixed with the arbitration while the Arbitration Act lacks the same.

The salient features of this Act, as stated in the preamble of the same to are to ‘consolidate and amend’ the law relating to the settling of issues through the process of arbitration within India (domestic arbitration) as well as International Commercial arbitration and enforcement of foreign arbitral awards in India. The Act also aims at defining the law relating to conciliations and matters concerned with or incidental thereto.

This act is applicable only to civil cases and the arbitral tribunal (defined in Section 2(1)(d) of the Act) is not subjected to the provision of the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872.

Some of the characteristics with regards to the arbitration process which can be inferred from the act are that arbitration is a neutral, consensual and confidential procedure. The parties are free to choose their own arbitrators which constitutes a form of arbitration known as Ad Hoc arbitration. The other form of arbitration is arbitration which is organized by permanent institutions (such as the Indian Chamber of Commerce) wherein the institution itself appoints arbitrators to settle disputes brought to them.

Main topics covered under the Act

The act provides for in-depth provisions regarding the following:

Arbitration agreements-

This refers to an agreement between two parties who have due to a defined legal relationship, whether contractual or not, to solve a certain dispute which has already arisen between the two of them or is yet to arise through the process of arbitration. The agreement can either be in the form of an arbitration clause provided in a contract or a separate agreement but the same must be in writing to prove the existence of a relationship between the two parties.

Once the judicial authority to whose notice such an agreement is brought is satisfied with the arbitral agreement, they grant the parties with the permission to begin the arbitration process. This is done after the presence of such an arbitral agreement has been established by the same judicial authority.

Mediation and Conciliation-

The Court, with the permission of the parties and if they themselves are satisfied that there exist certain conditions through which the dispute can be settled through the means of mediation or conciliation, can refer the parties to go through with the same.

Interim Measures-

The Court also has the power to issue certain interim measures as per the conditions enumerated under Section 9(1) of the Act.

Arbitral Tribunal-

This Act provides for the formation of an arbitral tribunal and provisions for the appointment of the members of the tribunal as well. The parties are free to choose their own panel of arbitrators, of any nationality, provided that such a number of arbitrators are selected such that the total number of arbitrators is not an even number. In the absence of the same, the Arbitral Tribunal can even consist of a single arbitrator. There are certain grounds on which the appointment of the arbitrator can be challenged as well such as having any personal interest whether direct/indirect/present/past relationship with the subject matter of the dispute or any factors which are likely to interfere with the arbitrator’s ability to devote sufficient time and perform due diligence in solving the dispute within the period of twelve months.

Jurisdiction of Arbitral Tribunals-

The Arbitral Tribunals only have the authority to rule on matters falling within their own jurisdiction of the dispute at hand. The arbitral tribunal also has the power to issue interim measures similar to those which can be granted by the Court as stated above in point c).

Conduct of arbitral proceedings-

The act ensures equality in the treatment of both parties throughout the arbitration process. The parties can themselves decide the arbitral procedure they wish to adopt as well as the place where they want the procedure to be carried out. The language of the procedure to be used is at the liberty of the parties to decide. Either the parties of the tribunal can decide upon the period of time to be allotted to the parties to form their claims, defences and statements of facts. Normally, the decisions regarding the hearing and written proceedings are made by the tribunal unless otherwise agreed by the parties. The arbitral tribunal also has the power to appoint an expert to advise on certain issues which may arise during the arbitration proceedings and can apply to the Court in case it needs its assistance in taking evidence.

Making of arbitral award and termination of proceedings-

Chapter IV of this Act deals with the rules applicable to the substance of the dispute and the decision-making power of the panel of arbitrators as well as the time limit permitted for delivering an arbitral award (includes a provision for a fast-track procedure). The other features which fall under this subheading are discussed in detail in the following analysis of the case of Chintels India Ltd. v. Bhayana Builders Pvt. Ltd. (2021).

The case of Chintels India Ltd v. Bhayana Builders Pvt Ltd

Facts

This case was brought as an appeal before the High Court of Delhi under Article 133 and 134A of the Indian Constitution which dealt with the main issue of whether the order passed by the single judge of the Delhi High Court refusing the condonation of delay beyond the prescribed time limit of the applicant with respect to an arbitral award was within his power and correct and whether this order could be appealed against in the Supreme Court under Section 37(1)(c) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’.).

Issues

The High Court judgment pointed out that whether the application was denied on the basis of lack of the territorial jurisdiction of the High Court or on the basis of filing the application after the prescribed period of time, the appeal would either way not be maintainable. The Court passed this reasoning based strongly on the judgment of the Bombay High Court in the case of State of Maharashtra and Anr. v. M/s Ramdas Construction Co. and Anr. (2007).

The Court further went on to mention that due to the wording of Section 34(3) of the Act, namely ‘but not thereafter’, the intent of the Act was to create a sort of time bar for appeals and as such, any further delay on the same basis, on the consideration of Section 34 as a whole and not limited to (2) is applicable to Section 37(1)(c) of the Act dealing with the subject of appeals.

The appellant in the present case then sent in an application to the High court for a certificate of appeal in order to take the impugned order of the HC to the Supreme Court. The former granted the same to the applicant on the reasoning that denial of the same would provide the aggrieved with no other option than to file a Special Leave Petition to the Supreme Court to hear its case under Article 136 of the Constitution and this would be a hindrance to the Supreme Court who was only supposed to hear a limited number of cases of constitutional importance and not merely an issue based on a matter of delay. Thus, bound by the dicta of the Supreme Court in the case of Bgs Sgs Soma Jv v. Nhpc Ltd. (2019) the power of appeal was granted to the applicant which brings us to the present case.

Contentions of parties to the case

Submissions by the appellants

The counsel for the appellants relying on the judgment of the Supreme Court in the case of Essar Constructions v. N.P. Rama Krishna Reddy (2000) argued that Section 39 of the Act, which was the issue in the aforementioned case, was pari materia to Section 37 of the same, which was applicable in the present case. According to Section 39 of the Act, an arbitral tribunal has the power to refuse to deliver its award except on the payment of the costs demanded to it and Section 37 of the Act deals with the power of a single judge to refuse to condone delays beyond the prescribed period of time for appeals. Given the similarity in the material nature of the two sections, the appeal in the present case was maintainable. To further buttress his argument, the counsel for the appellant further cited the cases of Chief Engineer of BPDP/REO Ranchi v. Scoot Wilson Kirpatrick India (P.) Ltd. (2006) and Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2011).

For his next argument, the counsel for the appellants stated that an order condoning the delay in filing of an appeal provided no sense of finality and thus was on a different footing from an order refusing to condone a delay in the filing of an appeal. As such, the law was not stated correctly in the cases of Union of India v. V.P. Seth and Anr., (2005) and State of Maharashtra v. Ramdas Construction Co. (2006) which held that when the right of appeal had already been granted by a statute, even dismissal on a preliminary ground constituted the dismissal of an appeal. Thus, the counsel for the appellant requested that the Supreme Court overrule the same.

With reference to Section 37(1)(c) of the Act, the counsel for the appellants relied on a line from the judgment of Damodar Valley Corporation v. Sanjay Singh Rathor (2018) wherein it was held that statutory interpretation must not be limited in the face of wider construction. Based on this, the counsel for the appellants claimed that the Bgs Sgs Soma Jv judgment relied on a completely different question of whether an application to set aside an award granted under Section 34 of the Act should be returned to a proper court depending on where the seat of arbitration was located. This did not answer the issue at hand and the judgment referred to by the court in the same case, namely State of Maharashtra and Anr. v. M/s Ramdas Construction Co. and Anr. (2007) dealt only with the question of whether a delay of 4 months in filing an appeal prevented a case from falling within the jurisdiction of the Court. Thus, this judgment did not go into the maintainability aspect of the appeal at all which was a prime issue in the case at hand.

Submissions by the respondents

Refuting the arguments advanced by the counsel for the appellants, the counsel for the respondents denied the applicability of the Essar case to the case at hand. According to him, Section 37 of the Act was not pari materia to Section 39 of the same as both were materially different. Section 39 concerns itself with Section 30 of the Act which deals with the issue of settlements which is distinctly different from Section 37 which deals with orders passed under Section 34 of the act.

The counsel for the respondents brought the Court’s attention to Section 5 of the Act which explicitly mentioned judicial intervention should be kept to a minimum in the arbitration process. This was further strengthened by the counsel for the respondents as he established the nexus between the same with the statement of objects of the Act along with the non-obstante clause of Section 37(1) which rendered the same exhaustive in nature through the usage of the words ‘and no others’ as well as ‘namely’.

The counsel for the respondents relied on the judgments of Bgs Sgs Soma Jv and Harmanprit Singh Sidhu v. Arcadia Shares & Stock Brokers (P) Ltd. (2016) which stated that an appeal was a creature of statute and as such had to be read with the same with no further expansion of the meaning of the words of the same. The Court had also explicitly stated in Para 17 of the aforementioned judgments that there was no ambiguity in Section 17(1)(c) of the Act and the refusal of an appeal had to be on the grounds of proper merit and not on a preliminary ground only. The Supreme Court in its judgment in the case of Union of India v. Simplex Infrastructures Ltd. (2017) held that whether or not the delay in filing the appeal was condoned or not, the arbitral award cannot be set aside.

The counsel for the respondents concluded his arguments by stating that the judgment of the Bombay High Court Division Bench in the Ramdas Construction case was indeed the correct interpretation of the law and that the court must accept the same, overruling any contrary judgments.

Findings of the court

The Supreme Court, in this case, held that an application to set aside an order as per Article 34(1) of the Act had to be in accordance with clauses (2) and/or (2A) as well as (3) of the same. It was mandatory that the application for the appeal itself must be made within the prescribed time and in failure of the same, it had to be made within a period of three months. The application in the case of the latter was to be accompanied by an application for condonation of the delay provided it is within a further period of 30 days. The Court also held that Section 5 of the Limitation Act, which dealt with the extension of the prescribed period in certain cases, was not applicable in the present case as a delay beyond 120 days is not condoned.

The Court went on to hold that Section 37(1)(c) of the Act refers to Section 34 of the same as a whole and is not limited only to Section 34(2). As such, the order refusing the condonation of delay under Section 34(3) is further strengthened.

Referring to the Essar case, the Court held that by reading Section 39(1)(vi) of the Act together with Section 17, an application to set aside an award rejected solely on the grounds of delay without any sufficient cause under Section 5 of the Limitation Act would also be an appealable order. To further elaborate on the same, the court referred to its judgment in the case of Union of India v. Manager, Jain and Associates (2001) wherein it was held that there can be no quarrel with the argument that Section 5 of the Limitation Act providing for condonation of delay was excluded from the scope of Section 34(3) of the Act. The court agreed that this case did not actually deal with the issue of maintainability of the appeal which clearly was maintainable and due to the fact that the High Court did not consider the same, the impugned order was dismissed.

The Court further referred to the case of Fuerst Day Lawson Ltd. [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) agreed that there was no material difference between Section 37 and Section 39 of the Act.

Once again with respect to the Essar case, the Court held that the wording of Section 37(1)(c) of the Act, namely ‘under Section 34’ was absent in Section 39(1)(vi), it is pari materia to Section 37(1)(c). Section 37(2)(a) states that if a preliminary ground of the arbitrator not having the jurisdiction to continue with the proceedings is established, an appeal can lie and the determination of the same is final in nature, bringing the arbitral proceedings to an end. However, if the converse is held by an arbitrator, an appeal will not lie. As this observation is strengthened by Section 16 clauses (5) and (6) of the Act, the Court found it difficult to agree with the counsel for the respondents in this present case.

Referring to the judgment of a single judge bench in the case of Union of India v. Simplex Infrastructures Ltd., (2016), which condoned the delay in filing of a petition under Section 34 regardless of whether it was said to be without jurisdiction, the Court held that ‘the remedy of the appeal has been provided only against an order of setting aside or refusing to set aside an arbitral award under Section 34. No appeal is provided against an order passed by the court of competent jurisdiction condoning the delay in filing the petition under Section 34 of the Act as such.

In answer to the issue put forward in the present case, as to whether the single judge’s judgment condoning the delay in filing an application under Section 34 was without jurisdiction, the Court held that such an order is in the exercise of the jurisdiction conferred upon it by the Statute. Thus, it was not possible for the Simplex case judgment to be held as an authority to govern the case at hand. The reasoning that it is the converse position with respect to the facts contained in the present appeal before the court is not a valid argument as to make the case appealable, it must follow that even where the delay is not condoned, the same position prevails. This reasoning would be contrary to the reasoning of the Simplex judgment.

With respect to the Bgs Sgs Soma judgment, the court in the present case held that it indeed deals with a completely different question than the issue at hand by stating a line from the judgment of Amar Nath Om Prakash v. State of Punjab (1985), that ‘It is well settled that judgments are not to be construed like Euclid’s theorems’. On similar lines, the court cited its judgment from Sreenivasa General Traders v. State of A.P (1983) by saying that judgments of the courts are not to be construed as statues and must instead be read in the context in which they occur. “Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.” Quoting Lord Halsbury, the court stated that, “a case is only an authority for what it actually decides and not for what may seem to follow logically from it.”

With respect to the Bgs Sgs Soma Jv judgment, the Court held that a mere preliminary step that did not lead to an application being rejected finally cannot be characterised as an order which would result in an order sealing an application’s fate with finality once and for all. The Court’s focus was thus neither on the language of Section 37(1)(c), nor were any arguments addressed so as to correct its interpretation. Thus, this case could not act as a valid precedent applicable to the case at hand.

Lastly, referring to the Ramdas construction case, the Court held that the scope of inquiry under Section 34(3) of the Act was restricted only to ascertaining the cause for delay in filing the application and nothing in relation to the merits of the application itself for setting aside the award. Thus, an order passed in the exercise of powers under this clause cannot extend to the subject matter of the application for setting aside the award as it was restricted only to the aspect of setting aside the application.

As Section 37 of the Act refers only to orders dealing with the aspect of setting aside or the refusal to set aside arbitral awards, it cannot form an appealable order under the same. Since the appellate powers under Section 37 are not related to the proceedings which precede the enquiry regarding the setting aside/ refusal to set aside an arbitral award, the consequence of an order of dismissal of the application for condonation of delay cannot by itself amount to an appealable order under Section 34(1) for the purpose of an appeal under Section 37(1). Thus, the Ramdas Construction case did not state the law correctly nor did it follow the Essar judgment and is thus against the interpretation made by the Court in this case as well of Section 37(1)(c).

The Court also overruled the judgment of the Bombay High Court in the Ramdas construction case on the grounds that it did not state the law correctly.

The Court also held the respondent’s argument with regards to the limited nature of Section 37 of the Act from the scope of judicial intervention due to the non-obstante clause as invalid as the same is followed by the terms “except where so provided in this Part”.

Thus, the Court finally answering the question posed to it by this case stated that an appeal under Section 37(1)(c) of the Arbitration Act, 1996 was indeed maintainable against an order refusing to condone the delay in filing an application under Section 34 of the same to set aside an award. The present appeal was thus allowed, setting aside the impugned High Court judgment. The matter was thus remitted to a Division Bench of the Delhi High Court to decide whether the single judge’s refusal to condone the delay is correct or not.

Conclusion

From the detailed discussion above we see that the provisions of Arbitration and Conciliation Act,1996 coupled with the judicial interpretations by the Courts of law have, over time, proved to indeed serve the purpose of the Acts in the delivery of justice through alternative dispute resolution. The most recent amendment to the Act has been the Arbitration and Conciliation (Amendment) Act 2019, which has brought with it numerous additional salient features to suit the dynamic needs of society and to encourage the interest of the same in the process of arbitration, mediation and conciliation as well as other alternative dispute resolution mechanisms. The significant feature of the amendment is the establishment of an Arbitration Council of India to maintain uniformity in the standards of all matters regarding arbitration throughout the country to ensure the system continues to reduce the caseload of the higher courts to ensure that justice prevails in all matters with respect to all sections of society.

References

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An overview of the UK environmental law and the hurdles it faces during implementation

By

Diva Rai

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September 24, 2021

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This article is written by Manisha Sharan, pursuing BBA LL.B (Hons) from the School of law, NMIMS. This is a profound article which deals with the environmental law of the United Kingdom and the implementation’s obstacles.

Table of Contents

Introduction

The basic goal of an environmental policy is to establish the ideal environment’s objects or goals. In this study, environmental constitutional provisions, guidance notes, and policy documents on the environment and pollution were examined as different outlines of environmental policy. Furthermore, there are other instances where the contrast between environmental law and policy is more pronounced.

The UK’s White Paper on the Environment signalled the commencement of the environmental policy and legislation changes, which would be followed by similarly remarkable policy and legislative efforts in other areas of the environment in a coordinated way. Among the European Community, the United Kingdom has emerged as a leader in decreasing pollution and improving the environment.

“Over the last decade, the United Kingdom has taken the lead in European environmental law, not least because it ensured that key concepts from the Environment (Protection) Acts 1990/95 were incorporated into the EC Directive 96/61 on integrated pollution prevention and control, which was issued on September 24, 1996. Britain can now modify major components of the integrated system already established by the Environment (Protection) Act 1990/95 to further European regulatory procedures within the new framework provided by the Pollution Prevention and Control Act 1999. In essence, Britain can unwind while it observes other EU members struggling to examine and reform the foundations of their environmental legislation.”

Environmental law: It covers the devolution mandates in Northern Ireland, Scotland, and Wales, as well as the extent to which environmental law differs, both substantively and procedurally, as a result of each administration’s exercise of devolved power. The focus is on the most important distinctions that practitioners should be aware of before entering this field. It also explores the effects of Brexit on devolution and environmental law.

What are the key environmental regulations in UK

Permits for environmental protection

In England and Wales, environmental permits are handled through the integrated environmental permitting (EP) regime, which has gradually amalgamated and replaced the several separate permitting systems that existed earlier. The Environmental Protection Agency, Natural Resources Wales, and, in some situations, local governments have the jurisdiction to issue licences for a variety of regulated activities, and an operator must obtain a permit to engage in any regulated activity.

Air quality

When it comes to air quality, there are two primary types of regulations. Point source pollution regulation focuses on regulating the emissions to air of specified pollutants, particularly from industrial sites, whereas ambient air quality regulation focuses on regulating the concentrations of specific pollutants in the ambient atmosphere. Substance bans, such as the ban on chlorofluorocarbons, emissions trading under the EU ETS, and taxation, such as the Climate Change Levy, are also used in the UK to regulate air quality.

Pollution from a single source

The Industrial Emissions Directive 2010, which substituted the earlier Integrated Pollution Prevention and Control system, as well as the Medium Combustion Plant Directive 2015, controls emissions from industrial facilities and mobile plants. These regulations have been incorporated into UK law through the EP Regulations; as a result, environmental permits are required for activities that fall within their ambit.

Discharges to water quality

The Water Resources Act 1991 regulates water contamination in England and Wales, and it applies to all ‘governed waterways,’ such as territorial waters, coastal waters, inland freshwaters, and groundwater. Based on the type of activity that causes the discharge, the substances in the discharge, whether the discharge is to groundwater, surface water, or a sewer, and whether the discharge is part of a larger industrial operation, several consents may be required.

Chemicals

Chemicals in the UK are governed by the EU’s REACH (Registration, Evaluation, Authorisation, and Restriction of Chemicals) framework, which was established in 2006. The regime’s goal is to ensure that chemicals are utilised in a way that minimises any intolerable hazards to human health or the environment, based on open information exchange throughout the chemical supply chain.

How is the environment permitting regime works

The Environmental Permitting (England and Wales) Regulations are an important aspect of environmental legislation that establishes a single permitting procedure in England and Wales for industrial activities and waste operations. Regulated firms must apply for an Environmental Permit from the Environment Agency in England or Natural Resources Wales and follow its restrictions – or register for a licence.

Since its initial release in 2010, the EPR has been updated on a regular basis. The Regulations were completely harmonised with the EU Industrial Emissions Directive in 2013, and enforcement undertakings were added in 2015.

Site Condition Report (SCR)

An SCR provides a detailed account of the location, its operations, and its history. It’s an important part of your permit application. The type of environmental assessment required for each report is determined by the level of risk present and the extent of prior knowledge about past operations on the property.

Management, compliance, and enhancement of the environment

Your permit application is a vital internal document that gives guidance to management, and it should be utilised in conjunction with Regulatory Guidance Notes as a foundation for future improvement programmes.

Updates, amendments, and surrender

You must examine whether a variation is required whenever you change your operations, expand or contract your site boundaries, or make any other change that could affect the terms of your existing permit. Similarly, you’ll have to surrender your permission if you drastically curtail your operations – or shut down the facility entirely.

Challenges faced in implementation

The inherent divide between formal legislation and its execution may be found in many areas of law, but it poses special problems in environmental protection.

There are clearly defined victims with legal interests in areas of law such as competition, social security, and consumer protection who can and will guarantee that the law is followed. The environment, on the other hand, is frequently unowned in legal terms, resulting in the environment dying in silence, according to some.

Legal protection is mostly the responsibility of public authorities, such as the police, municipal governments, or specialised regulatory organisations, which is occasionally impeded by competing for policy aims and severe resource constraints.

Meagreness of political will and backing from stakeholder

Change in policy does not guarantee execution. It is critical to maintaining political and public support. Environmental flow policy requires political support at the highest levels to determine strategic direction, secure planning resources, champion environmental requirements with stakeholders, and enforce compliance.

Deficient capacity and resources

Without solid institutions with appropriate resources and capacity to carry it out, implementation will be impossible. Almost every case study conducted for this evaluation stated that execution was hampered by a lack of capability of some kind.

Environmental management

EU legislation is responsible for many of the UK’s environmental obligations. They are overseen and enforced by EU authorities, which have the authority to punish Member States who break EU rules. Existing goals will be preserved in UK law after Brexit, but EU institutions’ monitoring and enforcement functions are likely to be lost. This would result in what critics have dubbed an “environmental governance vacuum” if no substitute is found.

Loss of biodiversity

According to the 2019 Intergovernmental Global Assessment of Biodiversity and Ecosystem Services, a million species are on the verge of extinction, with many facing extinction within decades. The Convention on Biological Diversity (CBD) established a new worldwide framework for dealing with biodiversity loss in October 2020.

Waste and resources

England’s 2018 Resource and Waste Strategy outlined goals for a more circular economy, including the goal of “becoming a world leader in resource efficiency and lowering the amount of waste we produce as a society.” Following that, a series of discussions were held, with a special emphasis on decreasing unnecessary plastic waste. Reform of the packaging producer responsibility programme, a plastics tax, a deposit return scheme for drinks containers, and a ban on some single-use plastics was among the measures proposed. All of these will need further laws to be implemented. Recycling rates are also getting a lot of attention.

How to overcome these challenges

Air pollution, climate change, litter, trash, and soil contamination have been identified as the most pressing and visible environmental concerns in the UK today. And the burden of proof isn’t only on businesses to address each of these concerns; by making tiny incremental improvements on a daily basis, change may be brought about on a broader scale.

Uses of resources efficiently

Delivering more value with less input is what resource efficiency is all about. It may be as simple as turning off lights when a room is not in use or shutting off laptops when the day is done. These adjustments involve little work, yet they are the key to larger changes in the future.

Reduce waste

Avoiding waste production in the first place is the most practical method to decrease waste. Although paper is one of the most easily recyclable materials, this does not give us carte blanche to act recklessly with it. Before we publish, we should truly think about it. We live in a digital world, therefore looking for digital alternatives whenever and wherever feasible is a good idea.

Save Biodiversity

Reduced biodiversity is caused by technological advancements as well as a variety of other activities such as industrialisation, deforestation, rising pollution, global warming, and the ever-increasing human population. Every year, we lose a large number of plants, animals, marine insects, and other biological species. The importance of preserving biodiversity is sometimes neglected. This is because we believe we are doing well for ourselves despite the fact that many species have gone extinct, and that we will be unaffected even if a few more species go extinct. This is, however, a fallacy. Biodiversity is necessary for the effective functioning of our ecosystem.

By minimising the waste of natural resources, we, the general people, may contribute to biodiversity protection. We may also help by avoiding activities that pollute the environment, as pollution is the leading driver of biodiversity loss.

We also need to plant trees and urge others to do so. People frequently believe that their contribution will have little impact and so do not exert any effort. We will soon be making things tough for ourselves if every one of us thinks this way. We must all do our part to ensure that biodiversity is preserved. Over time, these little efforts might add up to a big difference.

Conclusion

Environmental restrictions, particularly in pollution- and energy-intensive industries, can have a negative impact on employment and productivity. These effects, however, appear to be minor and transient. The effects tend to be less in the long run than they are in the short run, implying that government measures like labour market restrictions might assist decrease or balance the transitory effects of environmental legislation. The negative consequences of human activities on the biophysical environment are known as environmental problems. The status of the environment in the United Kingdom has worsened dramatically in both urban and rural regions during the last decade. With a population of almost 67 million people, such a densely populated and technologically advanced country suffers from environmental degradation. The UK’s marine ecosystems have suffered a significant loss of quality as a result of climate change, rising seawater temperatures, and the overexploitation of marine resources. Human activity contributes to air pollution, climate change, trash, waste, and soil contamination in the UK.

References

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Does a global pandemic like Corona constitute an Act of God

By

Shoronya Banerjee

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September 24, 2021

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This article is written by Farhan Khan from Aligarh Muslim University, a Campus Ambassador at LawSikho. This article has been edited by Priyanka Mangaraj (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).

Table of Contents

Introduction

The emergence of the COVID-19 pandemic across the world has proven not only a humanitarian crisis but on a large scale economic crisis too. At this critical time, the government of India has exercised its power under Epidemic Disease Act, 1987 to ameliorate the preparedness and prevent the spread of Covid-19. And eventually while invoking the ruling of the Disaster Management Act, 2005 the government has declared it as a notified disaster which has consequently led to the imposition of Lockdown throughout the territory. On 12 March 2020, The World Health Organization declared the COVID-19 as a pandemic. Like the word, “Lockdown” has been very much prevalent since February 2020 across the globe. The governments of various countries have announced the lockdown in their respective countries to prevent the citizens from being a further link of this contagious disease.

During this tenure of Lockdown people weren’t able to leave the place where they were. Particularly, restrictions on mass movement and on transportation of essential services have raised serious suspicions on the ability of parties to perform their obligations under contracts. Uncertainty as to the performance of contracts has led to parties confronting breaches of contracts and assessing their rights and remedies in relation to the same. Undoubtedly, COVID-19 has tremendously marked an adverse effect on the national as well as international markets.

The single fact that a business wants to be able to confide in, is the legitimacy of their signed agreements. This pandemic COVID-19 as well as government’s orders to contain it has prevented numerous people including ordinary persons, professionals, businessmen, sportspersons etc. from performing their contracts. Are all these parties legally liable for the breach of contracts? Or they can make excuses for these extraordinary events?

So, in this article we will discuss, does the pandemic COVID-19 come under the umbrella of “Act of God” as an excuse for the performance of a contract? Does it fulfil the essentials of the Force Majeure clause? On a critical juncture when the contractual parties are seeking exemption from obligations by taking the defence of Act of God or an element of Force Majeure in India, the English law there is no stand-alone concept of Force Majeure that increases the chances of this pandemic being presumed as an Act Of God in per se.

Difference between Act of God and Force Majeure

The essence of a contract is based on a conventional maxim Pacta Sunt Sarvanda which signifies that the agreement must be kept. So if either of the involved parties in that contract, fails to perform the contract, they are held liable as defaulting parties and are supposed to pay reasonable liquidated damages to another party. However, the above-mentioned maxim is not absolute as in certain circumstances it becomes quite impossible for the parties to perform their contracts due to some external interventions which are neither predictable nor controllable. These external forces may be termed as Force Majeure or Vis Major (Act of God). The Indian Contract Act, 1872 has the provisions of certain excuses for the parties on being unsuccessful towards the performance of obligations.

Force Majeure

In India, there is no particular legislation for Force Majeure or Act of God, however, Section 32 and 56 of the Act contains certain provisions regarding the disability in the performance of the contract due to some unavoidable and unforeseen circumstances. According to Section 56 ‘An obligation arising out of a contract is impossible to perform by reason of some events which the Promisor could not prevent, then the contract becomes void also referred to as ‘frustration of contract’. There is no boilerplate Force Majeure clause as it varies from part to part as per their negotiation. That said, it can follow a common pattern of Force Majeure clauses illustrated in a famous case of New York Kel kim v. Central Markets. In this case, the court held that if the parties are unable to perform any obligations through no fault of their own but by reason of labour dispute, restrictive governmental laws, insurrection, war, Act of God or similar circumstances beyond the control of such parties, the performance of such parties can be excused for a period of delay.

Force Majeure is a French word that refers to the extraordinary events, situations or circumstances beyond human control and foresight which comprise the Act of God and the Act of people as well such as war, riots, strikes, emergency etc. The events that obstruct the continuation or legitimate existence of a contract between two parties.

A Force Majeure clause in a contract implies identifying those circumstances in which the performance of obligations by either one or both the parties is impossible to be accomplished. The three judges bench of the Supreme Court of India in Dhnarajamal Gobindram v. Shamjikalidas & Co. stated it as a term of broad implication. Force Majeure is a wider concept where the incident is not obligatory to be connected with natural interventions rather can be attributed to human actions such as ups and downs in the government policies, strikes, machinery breakdown etc.

Act of God

The phrase “Act of God” has been listed down on the Force Majeure clause for centuries. Most dictionaries define the phrase “Act of God” as “A natural event that is not caused by human actions and can not be anticipated.” For instance, Black’s dictionary defines “Act of God” as: “An overwhelming, unpreventable event caused exclusively and directly by forces of nature, such as an earthquake, flood, or tornado”. Similarly, Merriam-Webster Dictionary defines an “Act of God” as “An extraordinary intervention by a natural cause (such as a flood or earthquake) of the usual course of events that experience, prescience, or care cannot reasonably foresee or prevent.” So the Act of God is a defence.

The rule of strict liability I.e. The rule in Rylands v. Fletcher also recognized this to be a valid defence for the purpose of liability under that rule. Act of God is an inevitable accident with the difference that in the case of the Act of God, the resulting loss must arise out of the interruption of natural events like storms, heavy rainfall, tempests, tides and volcanic eruptions”. In the case of Ramalinga Nadar v. Narayan Reddiar the court held that “Only those acts which can be traced to natural forces and which have nothing to do with the intervention of human agency that could be said to be an Act of God”. In fact “Act of God” forms a subset of Force Majeure.

Force Majeure is wider than the Act of God

Thus the Force Majeure clause in the contract exempts the parties from contractual liability or obligations when the contract is impossible to carry out because of some extraordinary events. Force Majeure is wider than the Act of God as it comprises both natural as well as artificial unforeseen events whereas the Act of God covers only natural events. For example, if a person had a contract to import certain goods from a foreign country, suddenly the respective country declares a war for which transportation got stopped. So here the promisor has the option of Force Majeure clause to escape from the liability arising out of breach of contract because of restrictions on transportation.

Act of God under the Indian Law of Contract

The Act of God is not a single concept under the Indian Contract Act, 1872 rather it is enshrined under the Force Majeure clause of the Act. Act of God is the literal meaning of the maxim Vis Major. An Act of God is a natural calamity like heavy rainfall, earthquake etc. which gives an exemption from contractual obligations to the parties under contract or insurance laws. In the law of contracts an Act of God refers to the impracticability or impossibility; where it is impossible for the parties to accomplish the obligation or the performance would require a long time due to some extraordinary results of natural interventions which are beyond the human capacity to prevent or control such events.

Section 32 and Section 56 of the Indian Contract Act deals with such situations. The concept of the Act of God is covered under the Force Majeure clause of a contract which signifies all the unforeseen events which are not controllable by human power like hurricanes, volcanoes, earthquakes etc. For example, A made a contract with B to sell his home for a cost of 2 lakh rupees, but before the contract materialized an earthquake occurred and the house was devastated. So here the agreement is impossible to perform because of some unforeseen and unpreventable circumstances which lead to the parties being free from all contractual obligations for the same.

Pandemics and disruptions in performance of contract : can the defence of ‘Act of God’ be invoked?

The pandemic COVID-19 has caused unprecedented disruptions in business as well as day to day activities across the globe. As the effect of the pandemic is still continuing, and economic effects are soaring, this has led to a significant impact on more and more industries. Considerably, parties whose contractual performance has been affected by the pandemic Covid-19 will invoke the defence of an Act of God based on the reasoning of unpreventable and unforeseen naturally occurring disease. Most of the business insurance policies specifically exclude the term of communicable disease like COVID-19 and don’t assume them as an Act of God.

The party seeking to assert the force majeure clause typically has the burden of proving its applicability, including that the event was beyond its control and without its fault or negligence. While this burden will likely not be difficult where the contract lists specific events like viruses, epidemics or pandemics, the analysis may become more perplexed when the force majeure clause is not explicit and simply contains the term “Act of God,” which is boilerplate language in many force majeure clauses.

Nearly all attempts to define the phrase “Act of God” use the words such as “unusual,” “extraordinary,” “sudden,” “unexpected,” “unanticipated” or “grave.” The appearance of one or more of these adjectives in almost every definition or description of the phrase resembles the general requirement that, in order for a casualty or phenomenon to qualify as an Act of God, it must have been so unusual or abnormal a force that it could not have been anticipated or expected under normal circumstances. Though the Indian Courts still are not very clear about this many other countries have declared it as an Act of God. Based on the origin and emergence of COVID-19 we can say it is an Act of God hence the parties can invoke the defence of the same.

Coronavirus pandemic : Act of God or Force Majeure?

The Coronavirus pandemic has shaken the entire world. Economic status, along with day to day activities and businesses have been paused for a long period; contractual obligations remain unperformed and thus resulting in breach of contracts. Thus the pandemic has frustrated many valid agreements due to the reason of impossibility arising out of the imposition of lockdown by the government for containing the spread of COVID-19 further. As the parties are not deliberately breaching these contracts are seeking excuses to escape from the contractual liabilities. For this purpose parties have only Force Majeure clauses in their contracts which contain the Act of God too. India’s Finance Minister Mrs Nirmala Sitaraman has declared it as an Act of God, parties can avail it as a defence in case of breach of contract, but not in all cases.

Although the Act of God does not include pandemics or epidemics in particular. Comparatively some contracts contain standard circumstances, while some would have specific clauses. For example, a shipping contract may have a natural disaster like a tsunami in their Force Majeure clause. War, riots, natural disasters or Acts of God, strikes, the introduction of new government policy imposing an embargo, boycotts, outbreak of epidemics and such situations are generally listed. If an event is not described specifically then it is interpreted in the same way accordingly. These Force Majeure clauses also vary from party to party. But based on the reasoning of judicial decisions, since the origin of the pandemic COVID-19 traced back to nature. So it can be stated as an Act of God. However, if any contract has a Force Majeure clause and it contains the provision of epidemics/pandemics, such events would fall under the same clause.

Relevant case laws

Although Indian Courts have not exhaustively ruled on whether an epidemic or pandemic like Covid-19 is an “At of God ” or not but the argument regarding the judicial opinion upon the legal implications of an Act of God can seek some clues from the Supreme Court ruling in the Divisional Controller, KSRTC v. Mahadava Shetty. In this case, the Apex Court held that the expression of an Act of God implies the involvement of natural interventions free from human activities with the warning that every unexpected natural incident does not act as an excuse if there is a reasonable possibility of the anticipation of its occurrence. Thereafter The Kerala High Court and Madras High Court followed the same judgement passed by the Supreme Court.

Apart from Indian Court the courts of the United State and the United Kingdom have specifically ruled that the expression Act of God contains an epidemic/pandemic too.

For example, in the case of Lakeman v. During, during the outbreak of the Cholera epidemic in the US a labourer at a mill left his job due to fear of contracting the disease and, consequently, failed to perform his contract. In an action brought by the mill owners to seek compensation for the work done by the labourer, it was contended that the work contract had been breached. The Supreme Court of Maine held that the outbreak of the Cholera epidemic was an Act of God and, the labourer thus was unable to perform the contract due to concerns of contracting the disease. Therefore, the court discharged the duty under the contract.

Similarly, in Coombs v. Nolan, due to a then prevailing horse flu pandemic in New York, the defendant was not capable of unloading the ship on time due to the unavailability of sufficient horses. The District Court for Southern District of New York excused a delay in unloading the ship on time for stating the pandemic as an Act of God.

Conclusion

At a juncture when global pandemic COVID-19, as well as authoritative restriction, has compelled people to stay at home and led to the massive hindrance in the performance of contractual obligations. People have no way to perform their contracts, they are seeking some excuses. While some take excuse by proving the COVID-19 as an Act of God some are saying it is an element of the Force Majeure clause. So turning to the “Act of God ” provision, the question will arise whether the COVID-19 is an Act of God or not? Whether it is assumed to be similar to other types of Acts of God like hurricanes, tornadoes, heavy snowfall, landslides, etc? To a certain extent, it seems philosophical but it is also a legal question too. Some commentators have tentatively suggested that the COVID-19 pandemic would likely not fall under an Act of God because its severity lies totally on human actions or inaction. Contrary to it other commentators likewise tentatively have taken an opposite swing of prior suggestion.

As a present author, keeping in mind the various definitions and Judicial decisions, it is expected that the COVID-19 Pandemic will likely fall under the Act of God. Because the definition of an Act of God itself suggests that any act which is caused due to a natural intervention directly and exclusively, without any sort of human interference, and which could not have been avoided by any amount of foresight or reasonable anticipation and should result in extraordinary events. Moreover, an earthquake is still an Act of God, whether the building is earthquake-proof, likewise a hurricane is still an Act of God whether it is partially caused by human intervention in climate change. Similarly, the pandemic COVID-19 is still an Act of God whether it was spread by a mass movement in airplanes or by exacerbated by human actions /inactions (e.g. attending any congregational rites or functions etc).

So the two important essentials are needed for the defence of the Act of God are as follows:

• There must be involvement of natural forces;

• The incident must be extraordinary and not one which could be anticipated or reasonably guarded against.

So keeping these essentials in mind it’s very clear that COVID-19 will likely qualify these both essentials. Thus we can say that being a contagious disease, its extension and danger-totally depends upon human actions and inaction, but still, the origin of the disease goes to natural intervention. Moreover, if a contract contains a Force Majeure clause, that term and the term endemic or pandemic is mentioned in that very clause, it will cover such events. Looking forward, we should expect that the future Force Majeure clause will include a specific reference towards pandemics or epidemics.

References

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A look into the treatment of expert witness evidence in English law in light of the 21st Century

By

Diva Rai

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September 24, 2021

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This article is written by Swetalika Das from Amity University, Kolkata. This is an exhaustive article which deals with the changes that are brought in by the 21st century pertaining to expert witness evidence.

Table of Contents

Introduction

Expert witness evidence is the evidence that requires an expert opinion. To be precise, let’s say a person is stabbed to death and the weapon by which he was stabbed has both fingerprints and DNA on it. Here, the fingerprints and DNA can help the court to identify the real culprit. For this purpose, the opinion of an expert who is highly skilled in examining DNA samples is required. An expert can examine the DNA samples and identify the culprit, further, he can submit a report of examination and his opinion on the same.

Thus, we can say that an expert witness is a person who has extensive knowledge, experience, and skills in a particular field in relation to the case. The opinion or the evidence by an expert is admissible at the court to conclude the case.

The expert witness evidence may seem to be modern law terminology but it has a long history behind its development. The first introduction of expert witness evidence was in the 18th century in English Law. Since then, there has been continuous development in laws relating to expert witness evidence.

This article briefly discusses the history of expert witness evidence, the relevant changes in the 21st century, and the positive and negative impacts in the treatment of expert witness evidence in English law that were brought in by the 21st century.

A brief history of the expert witness evidence

Beginning of expert witness

At the beginning of the 18th century, the concept of witnesses was not familiar in English courts. Not many people were allowed as witnesses to give testimony, many legal practitioners were not allowed to act for their parties. Even in criminal cases, the defendant was not able to provide evidence to prove himself innocent. This was the condition of English trials until the judgment in Folkes. V. Chadd (1782). It was the first case to introduce the concept of expert witness evidence in English Law, it is also known as the Wells Harbour Case. In this case, the Court considered the expert opinion of a famous scientist who had a thorough knowledge of matters related to science. Further, the Court stated that “an expert opinion after receiving the knowledge of facts is admissible in the court of law if the witness is having substantial knowledge and vast experience in that particular field which is related to the case.”

Now, the Court has pointed out a very crucial point that “after receiving the knowledge of facts”, which means that even if the expert witness has expertise in a particular area, knowledge of relevant facts is still significant.

The same was held in R. v. Turner (1975), where the court stated that an opinion would be admissible in the court if the expert witness has sufficient information of the relevant facts, in case of any misinformation or consideration of irrelevant facts, the value of the expert opinion will remain meaningless. Therefore, to avoid any such situation an examination-in-chief should ask the expert witness to check whether the witness knows all the relevant facts.

Criticisms

In the 19th Century, the concept of expert witness evidence had spread worldwide. Counsels, Judges started putting their opinions regarding this new concept. They criticized expert witnesses as biased and a mere paid employee of the legal representatives which can halt a satisfactory decision of the court. In solution to this, Sir George Jessel stated in the case Thorn v. Worthing Skating Rink (1876) that first, we need to find an unbiased expert witness and then proceed with the appointment of the witnesses as an expert. However, finding an unbiased witness wasn’t an easy task.

The criticisms continued till the end of the 19th Century. However, it was found that there was no specific rule concerning the expert witness. To solve this issue, many legal practitioners suggested forming a new law on the expert witness to prevent partiality.

Formation of rules for expert witness

After a lot of debate, new rules were set to form in the mid 20th Century. The very first case to enact rules for expert evidence was the US Supreme Court case Daubert v. Merrell Dow Pharmaceuticals.Inc.(1993). In this case, the Federal Rules of Evidence were enacted for the admissibility of expert witness evidence.

Rule 702 of the Federal Rules of Evidence states that an expert who is having experience, immense knowledge, or skills is eligible to testify an opinion or evidence, only if it satisfies the following Daubert’s Rule which states that:

The expert knowledge and experience must help the case to determine the fact in issue of the case.
The expert should give the opinion after receiving sufficient data or facts of the case.
The opinion must be obtained from any theory or principles.
Application of methods or principles as per the facts of the case.

Developments in the 21st century

Duties of the expert witness

According to Rule 19(2)(1) of Criminal Procedure Rules,2020, the foremost duty of an expert witness is to fulfill the “overriding objectives” of the court by performing the following duties such as:

Giving an impartial opinion.
The opinion must be within the expertise area of the expert witness.
The expert witness should assist the court by following the court orders.
In case of any significant failure in moving forward with the proceedings, the expert witness must inform the court.

Apart from the duties, some obligations that are imposed upon the expert witness, are:

The expert needs to provide a detailed report that includes his area of expertise or else the expert can provide his expertise while providing the evidence at court.
The expert needs to inform the court in case of any changes made in the report that is submitted as evidence.

It is important to note that the overriding objectives of the court only deal with the criminal proceedings including the admissibility of expert witness evidence.

Admissibility of expert witness evidence in criminal proceedings under the English Law

Statutes dealing with the admissibility of expert witness evidence

Criminal Justice Act, 1988

Section 30 of the Criminal Justice Act,1988 states that an expert opinion or evidence is admissible at the court irrespective of the fact that the expert witness attends the court to give oral evidence or not. However, if the expert witness is not giving oral evidence, then he must get leave from the court. The court will grant permission after considering the following facts:

The contents of the detailed report submitted by the expert.
If the report suggests the necessity of oral evidence, then the court may not grant any leave.
Reasons for not being able to attend the court.
Existence of unfairness to the accused.

Criminal Procedure Rules, 2020

Rule 19(2) of the Criminal procedure rules, 2020 and Criminal Practice directions CPD V evidence 19A both deal with the admissibility of expert witness evidence. Expert evidence is admissible when:

It is relevant to the facts in issue of the case.
The information provided by the expert witness is not within the knowledge of judges or jury.
The expert is competent enough to give an opinion.
Presence of reliability in expert’s evidence.
Impartial opinion of an expert witness.

Why special requirements for admissibility of expert’s evidence

There are several reasons which show the significance of expert opinions in criminal proceedings. However, the foremost reason is that an expert witness is different from other normal witnesses. There are complex facts or situations in some cases that require a high degree of technical knowledge to solve which cannot be performed by a normal witness. The degree of complexity of the cases demands expert advice which needs to be done without any mistake. The court cannot admit any random or unnecessary advice from an expert. Hence, the advice must comply with the rules and regulations. This would ensure effectiveness and efficiency in court procedures dealing with complex cases. Therefore, it’s important to set down some requirements for the special category of witness evidence.

Requirements for admissibility of expert witness evidence

There are four requirements for admissibility of expert witness evidence, they are:

An opinion must be necessary to the Court

In criminal proceedings, there can be some instances where the court may need an expert opinion. However, the information or knowledge of the expert witness should not be within the knowledge of the judge or jury otherwise the opinion of an expert would be inadmissible.

In cases, whether criminal or civil, the judges or jury must look into only the necessary facts. However, opinions which are already in the knowledge of the judge, or the opinion is just a matter of common sense are unnecessary and hence, it would be a waste of time for the court.

In Turner’s case, the Court held psychiatric evidence as inadmissible because the evidence showed how a normal person without having any psychiatric issues would perform in a particular situation. This evidence is a matter of common sense, therefore, it was held as inadmissible.

Expertise in a particular field

As mentioned earlier, a witness must have acquired adequate experience, education, training, qualities, or skills in a particular field to qualify for being an expert witness. To prove expertise in any relevant field, experts need to provide evidence of their expertise by following the required guidelines.

However, if a witness has only pursued a basic education and has zero years of experience in that field then his opinion or evidence wouldn’t be admissible. Therefore, it is important to note that only having a mere education or training is not sufficient, to obtain expertise, an expert needs to acquire years of experience and skills in the relevant field.

For instance, a drug analyst who is just a fresher in the field and only has some basic qualifications, the evidence or opinion produced by him cannot be held as admissible in matters relating to the drugs because he doesn’t have years of experience or knowledge.

Unbiased nature of the expert witness

As stated before, the issue of the bias of expert witnesses came into light in the early 19th century. Later, in 2000, the Court stated in the case Field v. Leeds City Council(1999) that before proceeding with trials and opinions, the expert witness is required to produce evidence that shows an unbiased objective of the witness in the relevant field of his expertise. If in case, the witness is found to have any materials or evidence that indicates impartiality, the court could not accept the evidence for further proceedings. The same was reinforced in Rule 19(2) of Criminal Procedure Rules, 2020 which stated the significance of an unbiased opinion from an expert witness.

Reliability of an expert opinion

An expert opinion is said to be reliable when the opinion is based on sufficient scientific methods. To be precise, the reliability of an expert opinion depends upon the methods or principles used by the expert such as the type of scientific techniques or any theories which have been used before concluding.

The court will determine the reliability of an expert opinion after considering the following factors:

The quality or quantity of the data is taken into account by the expert.
Whether the expert has taken help of any reference (for example, any statistics or sources) and whether the expert properly explains it in his opinion.
Whether the expert analyzed the results of the method used by him such as laboratory experiments, survey, scientific test or measurement. Here, the expert needs to check the accuracy, certainty, and reliability of test results.
Whether the materials ( for example; research publications) that are taken into account by the expert are reviewed by other expertises of the relevant field.
Whether any information falls out of the expertise area.
Whether the expert has acquired complete information before coming into an opinion.
To what extent does the expert’s opinion include his own opinion and explanation.
Whether the methods used by the expert comply with the principles of that relevant field, if not, then the expert needs to explain it.

Expert evidence would not be admissible based on reliability, if:

The experiments or tests fail to give accurate results and the opinion is just a hypothesis.
If the opinion is an irrelevant assumption.
If the opinion is based on distorted data or information.
The methods or principles are not properly taken into consideration.

Viewing the positive and negative aspects of the change in the treatment of expert witness evidence in the 21st century

Positive impacts:

Introduction of statutes

After Rule 702 of Federal Rules of Evidence, there was a need for a proper statute to regulate all the activities related to the admissibility of expert witness evidence. Therefore, the changes that have been brought in by the 21st century have given a new definition to the treatment of expert witness evidence. For instance, the introduction of Rule 19(2) has provided the duties and obligations of the expert witness; the same were not imposed by the earlier provisions.

Admissibility tests for expert witness

The aforesaid requirements for the admissibility of expert witness evidence is an important change in the 21st century. The establishment of the reliability test for admissibility is the most significant one as it will guide the court to whom to choose and whom not to choose as the expert witness. Reliability test proves the efficiency of the expert evidence and ensures a favorable solution to the complex problems faced by the court. The other requirements such as unbiasedness of witnesses seem to solve the issues that were raised in the 19th century.

Exposure of expert witnesses

Due to the increase in the significance of expert witness evidence, the expert witnesses got a lot of exposure to apply their knowledge and experience in their respective expertise fields. The expert witnesses can consider this as an important growth in their career which would provide them with satisfactory results to their years of hard work in the relevant field.

Negative impacts

Apart from the positive impacts, there can be some negative impacts on future legal proceedings regarding the expert evidence due to the absence of any guidelines to assist the judge or jury while deciding the evidentiary reliability. The problem may increase due to the involvement of any non-experts in the criminal proceedings who may not have sufficient knowledge in that particular field to determine the relevance of the scientific evidence, this same issue can arise for the legal practitioners in the cross-examination as it may not determine the reliability of scientific evidence that can result in unjustifiable convictions and acquittals.

Conclusion

To sum up the above discussion we can say that with the advancement of time the significance of expert witness evidence has increased enormously. The 21st century has laid down some important developments concerning expert evidence starting from the obligations of an expert witness to admissibility tests for expert evidence. All the developments proved to bring a positive impact on the legal proceedings. However, as there are loopholes in many legal developments, the admissibility of expert witness evidence is no different, it also has a loophole that needs re-examination.

References

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Understanding the Liabilities of a principal employer under the Contract Labour (Regulation And Abolition) Act, 1970

By

Shoronya Banerjee

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September 24, 2021

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This article is written by Kshitija Baitalwar, Campus Ambassador at LawSikho. This article has been edited by Priyanka Mangaraj (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).

Table of Contents

Introduction

With the drastic growth in the industrial sector, a lot of changes have taken place, especially in the employment sphere. There was a time when there was a direct relationship between employer and employee but this is not the case anymore. Employers who work for the state as well as in the central government have adopted new methods with changing times. They now get their work done through contractors who then employ workers on the contract basis known as contract labor. And such contract labor works under ‘Principal Employer’ which is a person who supervises as well as controls the establishment. This kind of employment has been governed under the provisions of the Contract Labour Act of 1970. The purpose of the act was passed to prevent the exploitation of contract labor. The Act provides the abolition of contract labor in certain establishments and regulations wherever possible. Therefore it is apparent that the Act restricts the contract labor to some extent.

The latest decision of Supreme Court in Dena Nath v. National Fertilizers indicated that The Contract Labour (Regulation and Abolition)Act,1970 provides for the regulation of contract labor in certain establishments and provides for the total abolition of contract labor. This article analyzes the liabilities of principal employers under The Contract Labour (Regulation and Abolition) Act,1970.

Definition of principal employer under the Contract Labour (Regulation and Abolition)Act, 1970

Section 2(1)(g) of The Contract Labour (Regulation and Abolition) Act,1970 defines Principal Employer as, “principal employer” means-

(i) in relation to any office or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf,

(ii) in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948 (63 of 1948), the person so named,

(iii) in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named,

(iv) in any other establishment, any person responsible for the supervision and control of the establishment.

Thus under the Act “Principal Employer” means any person who is in charge of an establishment. Where the establishment is a factory, under the Factories Act, 1948 a person who is the owner or occupier of the factory or a manager would be called principal employer. And where the establishment consists of 20 or more workers employed as labor on any day of the preceding 12 months would be covered under the Contract Labour Act.

As it is said that with great power comes great responsibility, the same as in the case of the principal employer. As being the supervisor and controller of the establishment, the Act has imposed certain liabilities on the principal employer.

Liabilities of the principal employer

It is to be noted that registration is mandatory for every principal employer to whom the Act is applicable.

Wages

The principal employer is vicariously liable under the Contract Labour Act, which means The Contract Labour Act gives relief to contract labor in case of non-payment of wages by allowing them access to the principal employer in the event of a default of payment.
Section 21(2) of the Act states that the representative is present while the contractor is paying out the payment to the contract labour.
Section 21(4) provides that in case the contractor fails to make payment of wages to the labor employed, it is the principal employer who may need to step in and make such payment. Thus it becomes the responsibility of the principal employer to look after the wages.

The principal employer can recover the same amount paid from the contractor either by the debt payable by the contractor or deducting from any amount payable to the contractor as the case may be.

Essential facilities

The Contract Labour Act imposes a duty to the contractor to provide certain amenities to labor employed by it.

The contractor should provide the following facilities:

Canteen provisions;
Rest-room; and
First aid facilities

In case the contractor fails to provide the above-mentioned facilities it becomes the responsibility of the principal employer to provide such facilities. However, the principal employer can recover any expenses incurred in providing these facilities from the contract labour.

Penalties

It is mandatory for the principal employer to get itself registered under the Act, if he fails to do so he shall be punishable with imprisonment which may extend to 3 months, or with a fine which may extend to Rs. 1,000/- or with both and in case of continuing contravention, there will be an additional fine of Rs. 100/- for every day during which such contravention continues after conviction for the first such contravention.
Consider if the company is the principal employer who is liable to be punished under the Act, then unless and until it is proved that the offense was committed without any intention or that they exercised all due diligence to prevent the commission of an offense, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offense shall be deemed to be guilty of the offense and shall be liable to be proceeded against and punished accordingly.
It is to be noted that penalties in case of non-compliance under certain other labor welfare legislation are imposed on the principal employer. For instance, for any non-payment of provident fund contribution, or non-maintenance of provident fund records, the principal employer is punishable by imprisonment for a term which may extend to 1 year, or with a fine which may extend to Rs. 4,000/- or with both under Section 14(1)of the Employees Provident Fund and Miscellaneous Provision Act, 1952 r/w para 76 of the Employees Provident Fund Scheme,1952. And under Section 44 r/w Section 85 of the Employees State Insurance Act, 1948.

Contract labour in India

Today in India, the practice of employing contract labor through contractors and other agencies is prevalent in different industries including skilled and semi-skilled jobs. In fact, it is also in practice in allied operations and in the agriculture sector, and to some extent in the service sector also.

It can be seen from the data of the Annual Survey of Industries (ASI), which have records of establishments registered under the Factories Act, shows that there is a sudden hike in contract worker usage in the organized manufacturing sector. Hike in total employment from 7.7 million to 13.7 million between the years 2000-01 and 2015-16 was considered to be because of contract workers. The data also shows that in total employment the share of contract workers increased from 15.5 percent in 2000-01 to 27.9 percent in 2015-16, while directly hired worker’s share fell from 61.2 percent to 50.4 percent over the same period.

Other data collected from the Labour Bureau’s Employment-Unemployment Survey (2015-16) show that in India contract and casual workers hold major shares of society’s vulnerable caste groups as compared to regular workers. The increase in contract labor work arrangements not only deepens labor market segmentation but also has widespread ramifications for economic stability and social cohesion.

There are advantages for both private and government-run companies when it comes to employing workers on a contractual basis. From a report of PTI, it can be seen that the percentage of contract workers in Maruti Suzuki has grown from 32 percent in 2013-14 to 42 percent in 2015-16. In Fact in Coal India, which is a government-owned body, there was huge involvement of contract labor; around 55 percent of the 537 million tonnes of coal mined during 2015-16 was done by 65,000 contractual workers. This ratio is poised to only go up in the coming years.

Thus, contract labour in India has also grown in recent times. This could be due to rigid labour laws in India that made it difficult to fire workers.

Contract labour in the phase of COVID

It is widely acknowledged that the labor in India, in the context of the Covid-19 pandemic, has been trapped in an unprecedented crisis. The employment and livelihoods of the overwhelming majority of workers have been widely affected. The situation of the COVID 19 pandemics has forced many firms in the FMCG, finance, insurance, and retail sectors to lay off employees to cut off costs, especially contract labour.

The covid situation has worsened the conditions of contractual employment. For example, the decline in the monthly income of the labor class, facing a severe crisis of getting employment in the local labor market, deduction in the rate of daily wages, reduction in average working days, etc. The situation of contract workers has also worsened by the fact that the protection given to these workers is ‘basic’ as compared to that of permanent employees in an establishment. Contractual workers are not able to raise their own cause for regularisation of labor, as they do not fall under the definition of ‘workmen’ as per the Industrial Disputes Act, 1947. It is certain that when States prepare to lift the lockdown, contract-based workers have to return to workplaces with a heightened sense of uncertainty — both of health and poverty. They must be provided with additional safeguards to ensure their health, safety, and socio-economic conditions must be implemented to cope up with the situation.

Conclusion

It can be concluded that with the sudden change in the labor sector due to various reasons, along with the ongoing pandemic or due to rigid laws, for instance, contract labor has grown enormously and with the increase in the percentage of contractual labor, liabilities on principal employers also increase.

The principal employer needs to be more cautious while engaging contract laborers. Companies hire labourers on a contract basis to make the process simpler with the intention to manage the workforce in an easier way. However, because of a lack of due diligence, the company can face troubles. It is necessary for principal employers to engage contract laborers by way of executing a contract with the contractor, exercising due diligence would be of great significance as contractual safeguards may not offer sufficient protection to principal employers.

The increasing percentage of the contractual workforce also raises doubts about the nature and sustainability of employment growth. As contract workers are fired easily it is necessary to implement policies that benefit the contractual force to build their skills and live healthy lives.

References

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Locarno classification of designs

By

Oishika Banerji

-

September 24, 2021

0

understanding_your_design_patent (1) — Image Source: https://rb.gy/lflj8d

This article has been written by Sohini Goswami pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. This article has been edited by Dhruv Shah (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).

Table of Contents

Introduction

Locarno Classification is an international classification for industrial designs that came into being as a part of the Locarno Agreement. India became the 57th member to be a part of the Locarno Agreement on June 7th, 2019 when it formally incorporated the Locarno classification as a part of its Intellectual Property protection regime for Industrial designs. To reflect this incorporation, on a national level, this change was incorporated through the Designs (Amendment) Rules, 2021. Henceforth, the classification of industrial designs is at par with the rest of the world as compared to the previous national classification. Through this article, we will be shedding light on what is the Locarno classification, its utility under different jurisdictions across the world and lastly, we will study and analyze whether any further amendments are required in the existing Locarno classification.

What is Locarno classification?

Prior to 2001, Locarno Classification was not an alien classification system with regard to Industrial designs classification in India. India then followed a basic system, according to which the classification was made as per the material of the product. Though not formally a part of the Locarno Union then, it followed the 10th edition of the Locarno Classification. This was, however, not the best way to classify industrial designs. India at that time, was not competent enough for the inclusion of a wider range of products under this classification scheme. In 2008, through the Design (Amendment) Rules, 2008, Locarno Classification was included in the classification process, but vaguely. Design rights are a territorial set of rights. Therefore, prior to this formal inclusion of the Locarno Agreement, India was not up to date with its classification system and was still operating as per the then outdated 10th edition of the Locarno Classification. However, as per the 2021 Amendment to the Designs Act, India is officially up to date with the latest edition of the Classification. The present Locarno Classification contains 32 classes and 237 sub-classes.

Formal endorsement of the Locarno Classification has its own perks as once a nation-state becomes a member of the Locarno Classification, they automatically become a part of the Locarno Union/Assembly. The assembly meets every two years to discuss development, limitations, and other specific issues.

List of subjects

Specifically speaking, the Locarno Classification deals with 32 subjects with a varied list of sub-subjects, such as foodstuffs; articles of clothing and haberdashery; travel goods, cases, parasols, and personal belongings; brushware; textile piece goods, artificial and natural sheet material; furnishing; household goods; tools and hardware; packages and containers for the transport or handling of goods; clocks and watches; articles of adornment; means of transport and hoisting; equipment for production, distribution or transformation of electricity; recording, communication or information retrieval equipment; machines; photographic, cinematographic and optical apparatus; musical instruments; printing and office machinery; stationery and office equipment, artists’ and teaching materials; sale and advertising equipment, signs; games, toys, tents and sports goods; arms, pyrotechnic articles, articles for hunting, fishing and pest killing; fluid distribution equipment, sanitary, heating, ventilation and air condition equipment, solid fuel; medical and laboratory equipment; building units and construction elements; lighting apparatus; tobacco and smokers supplies’; pharmaceutical and cosmetic products, toilet articles and apparatus; devices and equipment against fire hazards, for accident prevention and for rescue; articles for the care and handling of animals; machines and appliances for preparing food or drink; miscellaneous.

The Locarno Classification, as can be inferred from the above paragraph, is an extremely comprehensive system of classification for Industrial designs and is sustainable for the future generations to be incorporated within itself.

Utility in different jurisdictions

Each member state of the union has the privilege to use the Locarno Classification as a principal or subsidiary system. For instance, the United States Patent and Trademark Office (USPTO) uses the United States design arrangement as their principal design arrangement, whereas, IP Australia’s AUSPAT, uses the Locarno arrangement as their principal design arrangement.

The Offices of the countries of the Special Union include within the official documents for the deposit or registration of styles, and just in case, of publications, the numbers of the classes and subclasses of the Locarno classification into which the products incorporating the designs belong. For instance, USPTO provides details associated with both US design classification codes and Locarno classification just in case of publications for industrial design.

The Industrial Bureau became the depository of the Locarno Classification. It shall incorporate the additions and amendments which have entered into force. The amendment or additions to the Locarno Classification are supposed to be communicated to the offices of the countries of the Special Union by the International Bureau. The International Bureau also publishes announcements associated with amendments and additions in periodicals to be designated by the assembly.

Hence, as discussed above, the distinguishing factor between utilization of the Locarno Classification under different jurisdictional systems is that it is at par with the guidelines of the World Intellectual Property Organization and works in accordance with the same system, however that is not the case with India. We will get to know more about the shortcomings of the recently amended design rules in consonance with the Locarno Classification in the next part of the article.

Are amendments required to the locarno classification for sustainability?

The corroboration of the existing design classification system of India to that with the Locarno Classification was a matter of great significance in the Intellectual Property arena for India. It set the nation at par with the majority of the world thus paving a way for a unanimously followed classification system.

However, the addition of the Locarno Classification’s Class 32 to the existing system is a step in a positive way for the probable design owners of the future. The issue arises when the Locarno Classification system is read together with Rule 10(1) of the Designs Rules, 2001. Rule 10(1) of the Act states that “Provided that registration of any design would be subjected to the fulfilment of provisions of the Act specifically 2(a) and 2(d).” Additionally, according to the Design Act, 2000, Section 2(a) defines “article” as “an article of manufacture and any substance, artificial, or partly artificial and partly natural; and includes any part of an article capable of being made and sold separately.”

Upon close study of both the above-mentioned statutes, it can be inferred that Section 2(d) lays down the criteria that the design should be applied to an article. This gives rise to an uncertain space for design owners who seek to protect their designs irrespective of the article or considering the article. If the new law is read word to word then, such practice is unlawful but in reality, the interpretation of the law is a complete game-changer as the power lies in the hands of the office-bearers of the Design Office. The inclusion of new systems and laws always lays down a challenging field for the prior existing system. Just like the mere presence of classes and subclasses were unable to guarantee design protection to many who sought for the same, the reference of application of design protection only limited to an article might not be exhaustive in a practical sense. It will be interesting to witness how the Design Office will be incorporating the new system with regard to the existing and future design applications.

Conclusion

Though there has been much debate about the topic of the adoption of the latest Locarno Classification to the existing design system In India, it is clear that it will evidently turn things around for the Industrial designs sphere of the country. However, the vacuum left, such as the nexus drawn between Rule 10(1) and Class 32 as mentioned above, might give rise to a lacuna in the swift applicability of the law. Looking back, there have been instances, precisely with the application of graphic designs for design protection. The law though recognized graphic designs for icons and screensavers as qualified to seek design protection, the Design Office interpreted the law as per its own discretion as denied registration to the graphic designs citing the reason that it was not “directly appealed to the eye”, and was only visible when the electronic gadgets were turned on. This leaves an air of apprehension as the items noted under Class 32 are particularly limited to the interiors of trains, rooms, etc. hence not technically falling under the “directly appeal to the eye” rule laid down discretionary by the Design Office. Nevertheless, it is an issue of crucial importance and should be therefore dealt with, with a sense of urgency. This lacuna in the law can cost a great deal of loss to the Intellectual Property garnered through Industrial design applications. As already stated, design is a territorial right and therefore requires jurisdictional protection in every nation-state that it is used. The uncertainty that this amendment looms over future design applicants, forbids foreign applicants to pursue protection for their industrial designs in India, thus resulting in loss of commerce.

References

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What can I do to protect my trademark in cyberspace : an overview

By

Oishika Banerji

-

September 24, 2021

0

This article has been written by Sakshi Jain pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. This article has been edited by Dhruv Shah (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).

Table of Contents

Introduction

Trademark issues in cyberspace have become a matter of concern because of the unfathomable quantity of data in cyberspace. In the ancient days, Romans and Greeks used to identify products by scribbling on them. With the advancement of civilizations, novel methods came for the unique identification of products. Trademark was a milestone in this development. Moreover, after the emergence of the internet, businesses found the virtual world to be their new market sphere. With the rampant increase in global trade and commerce, the inflow of counterfeit objects in the market has escalated. Hence, the role of intellectual property comes into play, by becoming a global and borderless entity. Traditionally, trademark law was applied to physical markets and it was given to traders so that they could sell their products under their genuine name and carry-on their business under that very trademark, preventing other people from exploiting the same. However, with the sudden boom in the virtual world, many new challenges have arisen in relation to trademark protection in cyberspace. This article aims at making the readers aware of these challenges and the solutions as to how one can protect their trademark in cyberspace.

Trademark and its significance

With the growing complexities of trade and commerce in the world, the flow of counterfeit products in the market has become rampant. The importance of intellectual property is growing every day and its scope has extended across borders and has gained international recognition. If a bona fide buyer purchases a good or commodity believing it to be a product offered by a particular trader and later finds out that it was not up to the mark or the product does not belong to the presumed trader,this hampers the reputation of the trader. Therefore, a need to create a unique mark that symbolizes a particular trader as the source of the product becomes essential. It is important not only for the trader but also to protect the consumer from being fooled by counterfeit products.

In such a scenario, Trademark plays a significant role. A trademark can be defined as any mark, symbol or a word, emblem that represents an organization or any product. Intellectual property protection in relation to trade was recognized by the world trade organization (WHO) in the form of TRIPS agreement. The Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement was created as a legal agreement between the member states of the WTO. The agreement came into effect on 1 January, 1995. This agreement is considered a landmark and a comprehensive agreement on Intellectual property rights. Article 15 of the Act deals with trademarks and lays down directory details for the protection of the same. India is a signatory to the TRIPS agreement.

Trademarks in India are governed by The Trademarks Act, 1999. Section 2(1) (zb) defines ‘trademark’ as a mark capable of being represented graphically and which is capable of distinguishing the good and service of one person from those of others and may include the shape of goods, their packaging and combination of colors.

Cyberspace and its significance

Cyberspace on the other hand, refers to the virtual space created by the connection between different computers. Thus, the concept of Cyberspace is intangible in nature. Cyberspace is not restricted to a particular geographic territory. It lacks any barrier of physicality and extends to the whole world, connecting anyone and everyone. It is a shared space where interactions and communications take place through the internet. The internet technology is revolutionizing the world and the trend of carrying out trade and commerce using the cyber platform has come into vogue. Many e-commerce websites are also developing in order to facilitate such kinds of trade and carry out successful transactions between the consumer and the traders. The use of online platforms has boosted the economies of different countries. There is no physical interaction between the parties of the trade. The online space becomes a preferred choice of the consumers as consumers are able to surf through the available without any restriction and time barrier, they are granted the freedom to compare prices of different products and satisfy themselves completely before making the payment for any product. The cyberspace medium has made the transaction and trading much simpler and easier.

Trademark in cyberspace

With the world entering the online era, where each and every activity of our daily lives is influenced by the internet, it becomes essential to protect the intellectual property on the internet in cyberspace.

Traditionally the trademark law was applicable to protect those traders who had registered trademarks, by providing them an exclusive right to carry on trade under that mark and preventing any third parties from using the same. However, with the rise of the internet and the paradigm shift from the traditional trading process to the online platform. Many new challenges have taken birth in relation to protection of trademarks.

Domain name is one of the main areas where the conflict relating to the trademark in cyberspace arises. Domain name can simply mean the name used by a website. It is like an address which is used by the people to access that particular website. The domain name is very important in the identification of computers done with the use of IP address which is present in the form of some codes. But due to the complex numeric coding of the IP address; easier alternatives that could be remembered by all, were developed. This alternative is a domain name. It can be a combination of words, symbols and numbers. For example: www.lawyerswork.com is an example of a domain name.

Challenges in protecting trademarks over web

Registration of domain names is very important to establish a formal marketable existence on the internet. There is as such no trademark review of the domain names as it is burdensome work for the registrar. Therefore, there arise disputes regarding the domain name vis-à-vis trademark under three circumstances:

Cybersquatting: It refers to the act of registering a domain name which is made for the purpose of carrying out trade and commerce. The domain name is the trade name of a particular company but is not registered by the company. Such a registration is made by a third party with a view to make profit by selling the domain name to the actual owner. Until the third party has the domain name, the owner is not able to register his trademark as a domain name. Thereby his right of registering becomes infringed. Domain name is the identification of a company. It performs the same functions as that of the trademark of a particular company. It is more than just an address to reach a particular website. Further if a person registers a domain name which is identical or similar to the trademark of a company to which he has no commercial connection, then an injunction against the person can be passed.

For instance, in the case of Green Products Co. v/s Independence Corn By-Products Co., both the companies were competitors to each other in the market of corncob by-product. ICBP got the domain name (greenproducts.com) registered but did not post a website as yet. The court held that the intention of ICBP was to use its confusing domain name to lure potential customers to the site once it was created and wanted to benefit unjustly from the use of Green Product’s name. Court further said that consumers might not get confused after getting to the site but even after it, they may buy the product from ICBP’s site only. On these findings, the court found it to be an infringement.

Cyber Parasite: It refers to a situation where the gains and profits are made by the use of the actual domain name. The method would involve using a similar or wrongly spelled domain name which is similar to that of a famous trademark. Such techniques are used to pass off products by method of deception to the innocent consumers.

For instance, in the case of Rediff Communication Ltd. v/s Cybertooth and Anr., the defendant had registered a domain name similar to that of the plaintiff was carrying a business of similar nature. Court observed that the defendant had an intention to carry out his trade and business under the trademark or trade name of plaintiff, thereby there being an infringement of the plaintiff’s right.

Cyber twin: It refers to a situation where both of the parties to the case hold an authentic claim towards a particular domain name. Herein, both the parties have a legitimate claim to a domain name. The cases involving cyber twins are the most difficult to be resolved, because, the law of trademark and unfair competition may otherwise allow both parties to enjoy concurrent use of both.

For instance, in the case of Data Concepts, Inc. v Digital Consulting Inc., both the entities had a legitimate claim for the domain name of (dci.com) as both of them had trademark rights for DCI. Data Concepts, however, got the trademark dci.com registered in 1993. It would seem that, in the cases where both have claims then the entity first to register would get it but The Sixth Circuit ruled that there still was the possibility of infringement. Since trademark infringement is a question of fact as well as question of law, the dispute must go to a full trial for an infringement determination. In this case, due to lack of evidence and the fact that Digital had no knowledge of prior existence of Data dismissed the matter as Data could not establish that dci.com was confusing the users between the two marks.

Apart from the above-mentioned challenges, there are also some other challenges posed in the cyberspace on the trademark of a company. Hypertext links is another area where a conflict regarding a trademark may arise in the cyberspace. It simply refers to transferring the user from one website location to another. These links are set between web pages. For example, on some web page; we see a hyperlink of ‘Gucci’ and upon clicking the link we are not taken to the official web-page of the brand but to some other web page which may sell similar product but not of the brand Gucci. Such hyperlinks result in the infringement of trademarks. Further, it is easy to control the hyperlink present in cyberspace. Therefore, a practical answer is yet to be devised in this aspect.

Position in India

India is not new to the concept of infringement of trademarks in cyberspace. The Trademark Act, 1999 is comprehensive legislation that deals with infringement of trademarks. As of now, the Indian legal system does not have a full dedicated statute to deal with issues relating to domain name or cybersquatting, etc. But the scope of the Trademarks Act of India is very vast. For instance, the case of Yahoo Inc v. Akash Arora and Anr., is a landmark judgment in India in relation to the protection of trademarks in cyberspace. In this case, the defendant had taken a domain name similar to that of the plaintiff. The court recognized the scope of trademarks over the domain name and granted the protection to the plaintiff under the Trademarks Act.

Remedies in case of infringement

There are many remedies that can be taken up in case of infringement of a trademark in cyberspace. The World Intellectual Property Organization (WIPO), created for the protection of intellectual property, has a forum made under it, where claims can be made at an international level. Further, many other legislations have been made to provide remedies. Moreover, Section 28 of the Trademarks Act provides the exclusive right to the owner of a trademark to use their trademark and prevent others from using it. The National Internet Exchange of India was founded in 2003 to facilitate the proper and enhanced internet services in the country. It also provides some protection for trademark infringement in cyberspace.

Conclusion

To sum it up, the development of internet services has changed the face of the world and has affected all aspects of society. The Domain names have become an important element in cyberspace and trademark-related crimes are on the rise. Therefore, it becomes very important to frame comprehensive legislation in this regard. Businesses allocate substantial funds towards establishing their presence on the internet. Consequently, they must also initiate measures to prevent abuse and theft of their Intellectual Property. For the same, it is crucial for businesses to get their trademark duly registered. You cannot stop every third person out there from infringing your trademark but registering your trademark makes sure that you get justice for any infringement on your trademark. Getting your trademark registered will aid in the litigation of the matter, and this is how you can protect your trademark in cyberspace.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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Conflict between the state agencies and the state minister in light of the case of Param Bir Singh v. the State of Maharashtra

By

Sneha Mahawar

-

September 24, 2021

0

research — Image source - https://bit.ly/3jDYyCd

This article is written by Vedansh Singh, from Jagran Lakecity University, Bhopal. This is an exhaustive article about the conflicts which occur during the internal working of the state and state agencies and their negative effects on the administration and possible solutions.

Table of Contents

Introduction

Our country India is still a developing country and for it to become developed the state government and the state agencies need to work together to ensure the development and the welfare of the state. But often there are conflicts between the state government and the state agencies that become the roadblock in the development of the state and lead to a lack of coordination between the parts of the state. These parts of the government are responsible for the welfare and development of the state. If they lack coordination and show such behavior the people start to lose confidence in the state authorities. An example of such conflict is the recent case of Param Bir Singh vs The State of Maharashtra (2021) where state agencies and state ministers were in a state of conflict, we will discuss the issue with the help of this case covering different perspectives of the issue.

Overview of the case of Param Bir Singh v. the State of Maharashtra

The case is about the conflict between the former commissioner of the Mumbai police Shri Param Bir Singh and Shri Anil Deshmukh, former Home Minister of Mumbai. The problem began between the two when the former commissioner Shri Param Bir Singh went to the supreme court and levelled corruption charges on then home minister Shri Anil Deshmukh after which he was transferred from his post of Mumbai Police Commissioner. In his letter to the CM, Singh alleged that the home minister wanted Assistant Police Inspector Sachin Vaze, Shri Sanjay Patel, Shri Dilip Bhujbal, and a few more police officials to extort around 100 crores monthly from bars and restaurants of the area, and not only about extortion but Singh also mentioned the continuous interference of the Home Minister in the investigation of past cases trying to direct the investigation using his power and clout of his position for his ulterior motives. Singh was transferred from the Commissioner of Mumbai Police to the Commandant General of Home Guards, which Singh says was done not on administrative grounds but because he was the whistleblower of the Home Minister’s corrupt malpractices. Since the transfer, Singh had been facing various charges and inquiries. An FIR was also filed against Singh under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,1989. Due to the matter of internal conflict between the state agencies and the state ministry, the public trust in the system was at stake. Singh in his writ petition submitted in the Bombay High Court wanted a CBI inquiry in the case against the Home Minister. So the court exercising its powers under Article 226 and Article 32 of the Indian Constitution ordered a CBI inquiry into Singh’s allegations on the home minister considering the matter to be of serious nature. After which the home minister resigned from his post.

The contention of the parties

The starting point of the issue is when the home minister used his power to extort money from the bar owners and other people of the state and wanted this task to be done by the police in their official capacity. He also consistently interrupted the police matters and various previous investigations of the police by directing the officials and instructing them on what to do and what steps need to be taken in several cases trying to interrupt police investigation. The former commissioner became the whistleblower in the matter. Mr. Singh raised his complaint after which he was transferred from his post. After Singh’s allegations on the home minister, the court ordered a CBI inquiry in the case. After these allegations home minister Anil Deshmukh resigned from his post. Questions are raised on both the parties i.e Mr. Singh and Mr. Deshmukh. The timing of Mr. Singh’s allegations is also being questioned. As the home minister’s interference could have been reported earlier as this indicates some kind of ulterior motives on the part of Mr. Singh.

Date wise chart of events of the case

On 22nd March 2021, Mr.Singh approached the Supreme Court seeking CBI inquiry against then home minister Shri Anil Deshmukh and also challenged his transfer from the post of Mumbai police commissioner.
On 23rd March 2021, a second petition was submitted in the Bombay High Court against Chief Minister of Maharashtra Uddhav Thackrey, home minister Anil Deshmukh and former commissioner of Mumbai Param Bir Singh for gross negligence wanting a court-monitored probe into the case by an independent agency.
On 24th March 2021, the Supreme Court refused to entertain Singh’s plea asking for CBI inquiry into the allegations against the Home Minister asking him to approach the Bombay High Court. The Supreme Court also said there was no seriousness on the part of the state government to follow the policy reforms referring to the case of Prakash Singh & Ors. v. Union of India & Ors (2006).
On 31st March 2021, Bombay High Court hearing Param Bir Singh’s petition against the home minister observed that Mr. Singh had failed to do his duty as he remained silent and did not complain about the offense earlier, knowing that the offense was committed. And the court reserved its judgment on his PIL seeking CBI inquiry into the case.
On 5th April 2021, the Bombay High Court ordered CBI to conduct a preliminary inquiry against the home minister. After the Court’s order home minister Anil Deshmukh resigned from his post considering it ethically wrong to hold office after such allegations.
On 6th April 2021, Anil Deshmukh approached the Supreme Court against the Bombay High Court’s order.
On 8th April 2021, the Supreme Court refused to entertain Anil Deshmukh’s plea against CBI inquiry against him. The Supreme Court observed that the matter was serious, concluding that the inquiry was necessary in the case.
On 29th April 2021, Param Bir Singh moved to Bombay High court against the Maharashtra government’s preliminary inquiries against him.
On 21st May 2021, The Supreme Court refused Param Bir Singh’s prayers to transfer all the inquiries against any other state outside Maharashtra saying that you were part of the same department for 30 years and now you have lost trust in the department.
On 24th May 2021, the Bombay High Court asked Param Bir Singh to withdraw its plea in the Supreme Court saying that the Court is not afraid to decide the matter.
On 11th June 2021, the Supreme Court refused to entertain the writ petition filed by Param Bir Singh on the transfer of inquiry outside Maharashtra, mentioning that he was part of the same department for 30 years and now he does not trust his department.
On 12th July, the Bombay High Court reserved order on Anil Deshmukh’s plea to quash CBI FIR.
On 22nd July, the Bombay High Court quashed the Maharashtra government’s plea challenging the portion of CBI FIR which wanted to investigate the postings and transfers made by the former home minister allowing CBI to do the needful.
On 23rd July, the Bombay High Court held that state governments have all the rights to raise grievances against the CBI if the investigation under the agency goes beyond the scope of the Court’s order in the absence of the state’s consent.
On 28th July, the Bombay High Court reserved its judgment on the maintainability of Param Bir Singh’s challenge on the Maharashtra government inquiries against him. However, the Court refused to take any action against the state inquiries and held that it was being furnished at the last moment.

Findings of the court

The Court found the matter to be of great concern following which a CBI inquiry was ordered in the case, NIA and ED as the court seemed fit and proper according to the case were also involved, referring and relying on the judgment in Prakash Singh & Ors. v. Union of India & Ors (2006). The Court said that Shri Anil Deshmukh is the home minister and the state police department is under his control and direction. We cannot expect a fair and unbiased investigation in the case from the state police, this was the reason that the Court-appointed CBI in the case, exercising its powers under Article 226 and Article 32 of the Indian constitution. The Court also mentions the silence on the part of the former Mumbai police Commissioner Shri Param Bir Singh as he remained silent knowing the whole case and it is only after his transfer from his post of Mumbai Police Commissioner, that he levelled charges against the former home minister of Maharashtra Mr. Deshmukh with an ulterior motive. Param Bir Singh also requested the Court to shift his inquiry to an independent agency outside the state as he does not trust the internal inquiry which the court denied saying that he has served in the same department for more than 30 years and now he can not say that he doesn’t trust his department. The Court denied Singh’s request referring to the case of Romila Thapar v/s Union of India (2018), the Court reiterated the principle that the accused does not have a say in the appointment of the investigating agency.

Court has also given free hand to the CBI to investigate whoever was involved, not only Mr. Deshmukh.

The Court also gave the direction to complete the investigation within a reasonable time without taking any instructions or reporting to anyone except the Court to monitor the investigation and ensure its fairness and efficacy.

The detrimental effect on the administration of the state because of the conflict in executive agencies

The conflict between the state and the state executive agencies has a very detrimental effect on the administration. Both the state government and the executive agencies are responsible for maintaining law and order in the state working together. There may be disagreements, there may be differences in the opinions at the office, there may be many other conflicts and are normal as conflicts do occur which both the state and the state agency should try to resolve internally without the interference of any third party. But if we take the case of Param Bir Singh v. The State of Maharashtra, we see that such conflicts lead to a lack of trust and coordination amongst both parties. The issues in the case are such that the very faith of the public in the police department was at stake. Even a little truth in the allegations could impact the public’s confidence in the state police machinery.

For example, in a football match, one player alone cannot lead to victory. It’s a team sport and each player has his part to play, which may lead to victory if done properly. In the same way, the state government and the executive agencies are part of a team and both have a part to play and which is to be done as a team together and is very important for the welfare of the state. Such conflicts show the authority’s lack of cooperation and inefficiency to handle the responsibilities given to them, which directly affects the development and welfare of the state.

The possible solution

Such kinds of conflicts as in Param Bir Singh v. State of Maharashtra between the state and the state agencies may be handled proactively. The Court questioned former Mumbai Commissioner Shri Param Bir Singh that why he did not complain earlier about the Home Minister’s corruption charges and his continuous interference in the past cases. What took so long? If this incident had been reported earlier and handled the matter proactively, then the situation could have been different.

Singh’s silence worsened the matter and the result was in front of everyone. Such silence is common throughout the country in almost all departments. If anything wrong happens the person must report any kind of illegal acts then and there. This would sort the cases without delay, and the wrongdoer would be penalized to set an example so that such acts are not repeated.

If the wrongdoer somehow escapes the penalty it motivates many to misuse their powers in the same way.

These kinds of problems should be handled internally and authorities should try to sort matters without the involvement of the court. This case has created so much buzz and many questions are raised not only on the government but also on the state agencies including the police department maligning the reputation of the department.

Conclusion

The occurrence of conflicts is normal in the day-to-day workings of any organization and the same goes with the state and the state agencies. Problems do occur but the matters should be sorted without any delay. This would not only sort the issues but also keep such matters out of the public domain because such conflicts between the parts of the system lead to widespread distrust in the public, which raises the question of the internal working of the system. And public distrust is not good for any state as the government is by the people and for the people. The government cannot be in power when its people do not trust them. Government is responsible for the public welfare but conflicts between them and the revelations about the cases damage the public’s trust and have a very deep impact on the people which is not easily forgettable as it exposes the people responsible for their welfare are working for their welfare.

References

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The International Religious Freedom Report : US Commission designates India as a ‘country of particular concern’

By

Sneha Mahawar

-

September 24, 2021

0

This article is written by Reet Balmiki, from NALSAR University of Law. This is an exhaustive article discussing the International Religious Freedom Report and the reasons behind India being designated as a “country of particular concern.”

Table of Contents

Introduction

The freedom of religion is a basic and inalienable human right worth fighting for. Most multi-religious democracies in the world recognize the importance of this right and the dangers the suppression of other religions poses to democracy. With the aim to promote democratic values such as freedom, equality and harmony, freedom of religion is recognized as a fundamental human right to all on an international level.

The Western construct of inalienable human rights without regard to differences like culture or tradition has been recognized by the International Human Rights Law. Advancing the objective to guarantee the universal right to freedom of religion to all and promote greater religious freedom, the US Commission on International Religious Freedoms (USCIRF) recommends to the US State Department the countries of particular concern and countries under the special watch list.

This article provides an overview of the meaning, aim and role of this report along with the obligations of the USA to publish this report. Additionally, it elucidates the implications and struggles with the USA declaring nations as countries of particular concern. It further assesses the recent trend and the current position of religious freedom in India.

An overview of the report

About the USCIRF

The USCIRF is an independent, bipartisan US federal government commission that aims at advancing international freedom of religion or belief by confronting threats to religious freedom. It is dedicated to defend and promote religious freedoms in other nations abroad. It is an advisory body that assesses the state of religious freedoms and violations in various countries and makes independent recommendations for each country. Therefore, the main role of the USCIRF is to monitor religious freedom abroad and make recommendations to the president, secretary of state and Congress. However, the recommendations made do not have a binding effect.

International Religious Freedom Act of 1998

The International Religious Freedom Act enacted in 1998 aims at elevating religious freedom as a higher priority in the foreign policy of the USA. This Act is foundational legislation for the international religious freedom policy of the USA. It recognized the freedom of religion as a “universal human right” and furthered its grant by establishing various governmental mechanisms. The significant role of the legislation include

Creating an office on international religious freedom headed by the Ambassador at Large for international religious freedom.
Requiring the Secretary of State to prepare annual reports on the status of religious freedoms around the world.
Requiring the President to identify the countries of particular concern for religious freedoms and take the most appropriate action based on the nature and severity of violations of religious freedoms.
Highlighting the policy of the USA to oppose severe violations of religious freedoms and promote the right to freedom of religion on a global scale.
Establishing the independent US Commission on International Religious Freedoms (USCIRF)
Mandating the designation of special watch list with countries that have severe religious freedoms violations but do not fit the criteria of CPC.

International Religious Freedom (IRF) Report

Under Section 102(b) of the IRFA, the Department of State is required to submit an annual report on international religious freedom. This report, known as the International Religious Freedoms Report, assessed the status of religious freedom, government actions violating religious freedoms and makes independent recommendations for the US policy. The findings, analysis and recommendations are based on the research done by the USCIRF during the last year. The report mainly comprises of the following three components –

USCIRF’s recommendations to designate countries as “Countries of particular concern” under IRFA.
USCIRF’s recommendations to place countries with severe religious freedom violations under the “Special Watch List” under IRFA.
USCIRF’s recommendations to designate violent non-state actors as “Entities of particular concern” under IRFA.

The recent 2021 report redesignated Burma, China, Eritrea, Iran, Nigeria, North Korea, Pakistan, Saudi Arabia, Tajikistan, and Turkmenistan as CPCs and added four additional countries India, Russia, Syria, and Vietnam to the list of CPCs. It recommended Cuba, Nicaragua, Afghanistan, Algeria, Azerbaijan, Egypt, Indonesia, Iraq, Kazakhstan, Malaysia, Turkey, and Uzbekistan be added to the SWL. It also redesignated the following non-state actors as EPC – al-Shabaab, Boko Haram, the Houthis, Hay’at Tahrir al-Sham (HTS), Islamic State in the Greater Sahara (ISGS), Jamaat Nasr al-Islam wal Muslimin (JNIM), and the Taliban. The USCIRF removed Bahrain, the Central African Republic (CAR), and Sudan from the special watch list as though religious violations still exist in these countries they do not meet the high threshold to be included in the SWL.

Understanding countries of particular concern and countries on Special Watch List

Before diving deeper into this issue, it is necessary to enhance our understanding of the criteria required for the countries of particular concern and the countries on the SWL. The IRFA mandates the President to designate CPCs with the recommendations made by the USCIRF and other sources. As per law, for a country to qualify as a country of particular concern it must either engage in or tolerate systematic, ongoing, glaring violations of religious freedom. Additionally, these violations must have taken place during the reporting period. This enables a country to get rid of this status while allowing for the entry of newer countries simultaneously.

However, it is possible for countries to engage in severe violations of religious freedoms and at the same time not fit all criteria to qualify as a CPC. In such cases, if the countries fit some but not all criteria or engage in severe violations, they will be added to the Special Watch List by the USCIRF. The USCIRF derives this power to designate countries these statuses based on the particular criteria from the IRFA.

USA’s obligations to publish reports

The principle of fundamental rights is popularly known to have emerged as a Western concept. Today, the idea of religious freedom as a basic and universal right is recognized by most countries and global organizations. Despite this, people all around the world continue to be persecuted and ill-treated due to their religions and beliefs. Many countries have witnessed heinous abuses and repression on account of religion. In such cases where the governments become ineffective in upholding the inalienable right, there is a need for identifying and rectifying such gross violations.

Religious freedom lies at the heart of the USA and is an integral part of their foreign policy. The US Department of State, under the International Religious Freedom Act 1988, furthers the universal application of the right to freedom of religion which was a part of the First Amendment of the U.S. Constitution. The US also recognizes the strategic national interest in the preservation of this right and thus considers it a key foreign policy objective. This right is also recognized and guaranteed by several international conventions. Article 18 of the Universal Declaration of Human Rights, Article 18 of the International Covenant on Civil and Political Rights and Article 9(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms are some of these provisions.

To advance the protection and preservation of religious freedoms, an important step is to identify and prevent the abuse of this right. The USA, through the IRF report, brings to light recent instances of such gross violations from around the world. This enables the international communities to be aware of the status of religious freedom in the world and identify the issues and implement solutions to combat the challenges. The report covers the actions of both governments as well as non-state entities. In cases where the right is suppressed by the government elected to protect the citizens, the people are left stranded. In such situations, the imposition of punitive actions restricts the governments from indulging in such activities. Similarly, in cases of non-state entities violating this right, the threat of such punitive action reduces the chances of inaction by the governments and protects the people.

Therefore, the USA’s obligation to bring to light religious violations in other countries and term these countries as CPC arises from the bedrock principle on which the country was founded. Additionally, the report furthers the universal application of the internationally recognized right for all.

Diplomatic struggles with the USA declaring other countries as “countries of particular concern”

The USA is known for intervening in ongoing matters in foreign nations. Though such intervention is often justified as being for the promotion of democracy and democratic principles, this can have several other consequences.

In addition to inviting global criticism against the intervention of the United States, this could also sever the ties between the US and other countries. Such intervention is a well-established foreign policy decision to further their interests. However, on many occasions, the nations have seen such interventions as a forceful imposition of certain ideas against their own will. Interventions into the domestic affairs of other nations often impair their sovereignty and are un-welcomed by the nations. Many countries, like India, have rejected the US Commission’s reports and questioned their locus standi in the matter. Additionally, intervention by the US does not necessarily guarantee action on behalf of the nations designated as CPCs. However, though the impact of US intervention in the matter of religious freedom abroad does not necessarily bring instant results as the nations are often reluctant to accept the findings, such intervention is necessary and is likely to bear fruit collectively over a while.

The efforts of the USCIRF have recently led to the improvement of religious freedom conditions in Sudan and Uzbekistan. This has led the Commission to remove them as CPC and add them to the SWL. Though the intervention by the US in matters of other nations often results in the strife between nations, such intervention is essential and in the interest of the democratic principle of religious freedom. However, the US should ensure proper research and accuracy of the report published and should seek a peaceful means to promote and preserve religious freedom. This report should only seek to achieve democratic principles and not be a means to defame other nations.

Religious freedom in India

India is a land of diverse religions, races, communities, castes etc and is popularly known to be the birth land of many religions. It is a country in which people from various communities and religions having varying beliefs reside together for centuries. The existence of such diverse individuals and groups is bound to give rise to certain disputes and clashes. However, the largest secular democracy has grown and modified its laws over the years as a consequence of these differences and is known to have a rich culture.

Freedom of religion – a constitutional perspective

It was only in 1976 that the word “secular” was added to the Preamble of the Indian Constitution through the 42nd Amendment Act. India is a secular nation and therefore every citizen has the basic right to freely practise the religion that they believe in. The Constitution provides to all citizens the fundamental right to preach, practice and propagate the religion of their choice and also protects the citizens from discrimination and ill-treatment based on religious beliefs. The Indian Constitution recognises and guarantees the freedom of religion under Articles 25 – 28.

Article 25 deals with the “Freedom of conscience and free profession, practice and propagation of religion.”
Article 26 guarantees the “Freedom to manage religious affairs Subject to public order, morality and health.”
Article 27 provides the “Freedom as to payment of taxes for promotion of any particular religion.”
Article 28 deals with the “Freedom as to attendance at religious instruction or religious worship in certain educational institutions.”

In addition to the above provisions specific to granting religious rights and freedoms, the Constitution also provides for the protection of the interest of the religious minorities. Article 29 and 30 protect the interest of the religious minorities and grant them the right to establish and administer educational institutions of their choice. The Constitution also prohibits discrimination on various grounds including religion under Article 15. It also promotes the principle of equal treatment before the law and restricts the state from denying protection of the laws on grounds of religion under Article 14. Through these provisions, the Indian Constitution recognizes and protects the freedom of religions and acknowledges the individual’s autonomy in matters of religion.

IRF Report 2021 and Indian’s response to the report

Recently, the USCIRF recommended the US State Department to designate India along with three other nations as a “country of particular concern.” The USCIRF, in its report, recognized the downward trajectory of religious freedom in India and the ongoing and egregious religious freedom violations under the IRFA. However, the USCIRF’s decision on India, unlike most other countries, was not unanimous. The USCIRF’s Commissioner, Johnnie Moore, has officially expressed his dissent against the recommendation to designate India as a CPC.

Traditionally, India has rejected the view of the USCIRF and has often denied visas to the members of the Commission. After being recommended as a CPC in the 2020 report, India rejected the Commission’s observations and called them “biased and tendentious.” It additionally held that the Commission lacked the required locus standi on the said matters. External Affairs Ministry Spokesperson Anurag Srivastava said in a statement in New Delhi, “We reject the observations on India in the USCIRF Annual Report. Its biased and tendentious comments against India are not new. But, on this occasion, its misrepresentation has reached new levels.”

In addition to designating India as a CPC, the USCIRF made several other recommendations to the US Government as a part of their report. These recommendations further the principle of freedom of religion and aim to deter religious violations in India. The USCIRF has recommended the US Government to

Impose targeted sanctions on the individuals and entities causing religious violations in India. The suggested sanctions are freezing the individual or entities assets or denying them entry into the United States
Advance and preserve the religious rights and freedoms of all religious communities in India. The suggested means to promote interfaith dialogue is through bilateral and multilateral forums and agreements.
Condemn the ongoing religious freedom violations and support the organizations and groups being targeted and suppressed for the advocacy of religious rights and freedoms in India.
Raise the severe concerns over religious freedoms in the US-India bilateral relationship. The suggested approach for the government is to highlight concerns through hearings, briefings, letters, and congressional delegations

The country-specific recommendations have been made after assessing the situation of religious freedom in India during 2020. These recommendations aim to bring back the secular principles of the Constitution to practice and reduce the perpetuation and tolerance of human rights violations in India.

Recent trends that threaten religious freedom in India

The USCIRF, through its intense research and monitoring, has highlighted its concerns with the violation of religious freedoms in the last two years. The 2020 and 2021 International Religious Freedoms Report bring to light several specific actions and policies of the Indian government that are a threat to religious freedom in India. The most severe of these were the –

Citizenship Amendment Act 2019 (CAA) and National Register of Citizens (NRC)

The USCIRF, in both the 2020 and 2021 reports, highlights the problems of the implementation of the heavily criticized Citizenship Amendment Act 2019 and the National Register of Citizens. The report brings to light several concerns surrounding the influence of BJPs anti-muslim sentiment on the laws of the land. The CAA was criticized for being religiously discriminatory and providing a quick means to citizenship for non-muslim migrants from neighbouring countries.

The NRC is an official record of all those who are legal citizens of the country. The NRC is at distinguishing the citizens from the “illegal migrants” in the country. However, Hindu, Christian, Sikh, Buddhist, Jain and Parsi illegal migrants from Afghanistan, Pakistan and Bangladesh will not be affected as they are protected under the CAA and can gain citizenship as per the recent amendment. This essentially means that if an NRC is implemented, all non-muslims persecuted from neighbouring countries will be protected under the CAA, leaving Indian Muslims stranded. The implementation of the CAA-NRC led to massive protests in the country that also turned violent. Additionally, India is not a signatory of the 1951 Refugee Convention and 1967 Protocol and does not have a national refugee protection law. This allows them to categorize all religiously persecuted refugees seeking asylum in India as “illegal migrants.” Since only Muslim migrants are excluded from the CAA, they are exposed to the threat of deportation due to the implementation of discriminatory and anti-secular laws. The CAA contradicts the basic principle of secularism enshrined in the Indian Constitution. Additionally, as a consequence of the protests against the anti-secular law, many state and non-state actors engaged in violence, largely against members of the Muslim communities. Such instances of discriminatory treatment based on religion and anti-secular laws violate the religious freedoms of the Muslim minorities in India.

The Delhi riots

Ever since the CAA laws were passed by the Indian government, the Muslims, who were the clear targets of the laws, were on edge due to the increasing fear and panic about the consequential impact of the laws, which could mean statelessness, detention or deportation for the Muslim minorities. This fear turned into a huge movement where the government chose to overlook the concerns raised by the religious minorities and termed them as “violent anti-nationals.” This, along with other incidents, sparked the worst Hindu-Muslim riot in the last seven decades in the national capital, Delhi.

The violent riots left at least 53 dead, many injured and thousands affected. The riots were undoubtedly communal as different communities, mainly the Hindus and Muslims targeted each other. However, the Muslims were seen to be singled out and attacked. Most of the casualties were Muslims and there were attacks on their protest sites, mosques, homes and majority-Muslim neighbourhoods. The communal riots and their management by the Indian government were both severely criticized and questioned. The UN High Commissioner for Human Rights has expressed “great concern,” and the U.S. Commission on International Religious Freedom condemned the violence in the national capital.

The 2021 IRF Report observed that the Delhi Minorities Commission investigated and found that “Muslim homes, shops and vehicles were selectively targeted during the rioting that erupted in northeast Delhi.” They suspected that the violence was planned and directed towards the religious minority since it opposed the recent discriminatory law brought by the government.

The Anti-Conversion Laws

Despite India’s Constitution guaranteeing the freedom to profess and practise any religion, many state governments have allowed the expansion of the scope of the “freedom of religion acts” or the anti-conversion laws. Though these laws aim to outlaw forced or fraudulent conversion for the purpose of marriage, they have often been used to limit or prohibit religious conversions and protect the dominant religions. These laws have been often misused to criminalise all sorts of conversion and are the basis of false accusations, harassment and violence against minority religions. This restricts the right of a person to choose and practice the religion of their choice. Such cases of misuse of anti-conversion laws are not uncommon and have surged since 2020. One such instance, where these laws were used to harass the members of minority religion, is the arrest of a Muslim man and his brother in Uttar Pradesh on trying to get his marriage with a Hindu woman register. After spending 2 weeks in prison for “unlawful” conversion, the men were freed after the UP police was unable to find evidence against them.

The recent 2020 law passed by the Chief Minister of Uttar Pradesh was passed to “curb Love Jihad.” This law was passed without legislative discussion and became a law by an ordinance passed by the state Governor. Many suspects have challenged the real intent of the law passed. With the increasing adoption of anti-conversion laws by states, Christian missionaries fear an increase in checks on evangelisation by “missionaries” and the number of attacks on them.

After the introduction of the new legislation, the Madhya Pradesh Freedom of Religion Bill, 2021, the threat of increasing attacks on Christians in the state has increased. There have been at least 25 cases of attacks on Christians in the state during the last year. The USCIRF observing this said, “In 2020, for example, mobs—fueled by false accusations of forced conversions—attacked Christians, destroyed churches, and disrupted religious worship services. In many cases, authorities did not prevent these abuses and ignored or chose not to investigate pleas to hold perpetrators accountable.” Therefore, these laws can easily be used to target religious minorities and are discriminatory. They also severely deter conversion, in both good and bad faith. The laws have been seen to be misused by many which have led to the religious minorities fear of the imposition of national anti-conversion law.

Closing Space for Civil Society

As per the USCIRF’s report, throughout 2020, there have been several instances where the government has intimidated and harassed the members of civil society. Civil society comprises the organizations that are not associated with the government and play a major role in monitoring the actions of the government and holding them accountable on various matters. During the year 2020, the government on several occasions misused the provisions of several laws including the Unlawful Activities (Prevention) Act 1967 to oppress those who speak up for the rights of the minorities, promote individuals civil rights and challenge the government’s policies and actions. Many individuals who opposed governments religiously discriminatory policies such as CAA are being investigated with the intent of being persecuted under the UAPA and are often detained for a long time before being acquitted if innocent. Recently, the Delhi High Court called out the state for the misuse of the UAPA and raised the bar for a “terror tag” under this Act.

Additionally, the Central government has also been accused of taking several steps to limit the role and involvement of NGOs including religious and human rights NGOs. In September 2020, the government of India passed the Foreign Contribution (Regulation) Amendment (FCRA) Bill, 2020 which was severely condemned at a nationwide as well as international level for being unconstitutional and placing stringent restrictions on civil society. It risks the survival of smaller NGOs and reverses the progress towards the achievement of Sustainable Development Goals (SDGs). Additionally, the Bill has been severely criticized by the International Commission of Jurists for failing to comply with India’s international and constitutional obligations to protect the rights to freedom of association, expression, and freedom of assembly. The ICJ condemned the Bill for imposing “arbitrary and extraordinary obstacles” on human rights workers and other members of civil society.

Religious Freedom in Jammu and Kashmir

The USCIRF observed that the restrictions on freedom of movement and assembly imposed by the government in Jammu and Kashmir along with the internet and communication shut down have severely impacted the religious freedom of the citizens residing there. Additionally, the Human Rights Watch has also observed this to risk the basic rights and freedoms of those residing in the region.

The USCIRF observed this action to be violative of the freedom of religion as it restricts the “observance of religious holy days and the ability to attend prayers.” Apart from this, the longest internet shutdown in any democracy further limited religious freedom and caused severe disruption.

Spreading disinformation and incitement of violence targeting religious minorities

In connection with the specific instances such as CAA and the COVID- 19 pandemic, several religious minorities were repeatedly targeted by the spread of misinformation by the government and non-state actors. This has resulted in the spread of hatred and continuous harassment of the religious minorities, mainly including Muslims, Christians and Dalits. These groups have faced a history of harassment and alienation, which was heightened during the events of 2020. The report highlights how the government has not only failed to curb such acts of spreading hate and inciting violence, but also failed to protect the religious minorities from violence and harassment on these grounds.

In a diverse country like India, it is essential to maintain religious and cultural harmony to ensure religious freedoms and rights to all. The increasing instances of communal clashes highlight the threat to religious freedom in India and the urgent need for intervention and regulation by the government and other bodies.

Conclusion

The freedom to practice and profess a religion of one’s choice is a fundamental right that lies at the heart of any democracy. For the proper promotion and implementation of this right, it is necessary that the governments are secular and the laws free from prejudice. Though most democratic constitutions guarantee these rights and principles, many governments fail to bring these provisions into practice. The International Religious Freedom Report by USCIRF promotes religious freedom on an international scale by monitoring and analysing the actions and policies in foreign nations. This report provides a detailed country-wise analysis of religious freedom violations and makes specific recommendations to the US State Department. It does not just highlight the major threats to religious freedoms around the world but also provides possible solutions to preserve religious freedoms in other nations. The report plays a significant role in assisting the US to ameliorate the status of religious freedom around the world.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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All you need to know about IPR when developing software

By

Oishika Banerji

-

September 24, 2021

0

maxresdefault — Image source: https://blog.ipleaders.in/intellectual-property-rights-claimed/

This article has been written by Sakshi Jain pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. This article has been edited by Dhruv Shah (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).

Table of Contents

Introduction

Software is one of the most innovative fields of technology, where the graph of advancement has taken a parabolic curve. Although, one must know that this profit-making business can face devastating effects, if not protected enough to disable infringers from using it. To avoid any such catastrophe, Intellectual Property Rights come into the picture to save the day. Innovation in software products can be protected in the form of intellectual property. Intellectual Property Rights are the core foundation and one of the most valuable assets of the software industry. They offer different methods for shielding rights of ownership in the software. Essentially, four kinds of Intellectual Property Rights are relevant to software- patents, copyrights, trade secrets, and trademarks. Each of them affords distinct legal protection. While patent, copyright, and trade secret play the role of protecting the technology itself, trademark, on the other hand, protects the name/symbol that helps in identifying and distinguishing a software product from its competitors within the marketplace. This article aims at making the readers aware of the role of Intellectual Property Rights while developing software technology.

Trademark- what’s in a name

If a software developer is asked about Intellectual property protection of his software, one of the first things that will come to his mind is the protection of the unique name of his software. When a user installs software on his device, in all probability, the screen displays a shortcut to the usage of the software, which is represented by the unique logo/device mark of the software. Third parties can infringe this unique logo/devise mark so as to create confusion in the minds of the general public. To avoid such a situation, it is crucial that one must obtain trademark protection on one’s software.

If not protected properly, the software name can be breached by market competitors, and as a result, its genuine features are always at a risk of getting stolen. These infringers may not only be competitors in the same field but also someone belonging to a different field and having a coherent use of the software. For instance, M2 Software Inc. owned software for business management of the music and entertainment industry. After a while, Madacy Entertainment came up with a division called M2. In this case, the registration of the trademark immensely helped M2 Software Inc. in litigation of the matter. Thus, even though a trademark is usually not a priority as far as the intellectual property protection of software is concerned, getting it registered is crucial from a business point of view.

Patenting software

Patenting software is a major challenge, and if achieved, it rewards well to the patentee. The patent officers all across the world are very stern when it comes to the aspect of ‘abstractness’ which is mostly found in software patents. The major challenge of getting a patent on software is to counter the abstractness aspect and the fact that software does not disclose any component or mere generic functions of the computer.

As far as India is concerned, speaking about software patents on computer-related inventions, the guidelines that are issued by the patent office have now made it comparatively easier as compared to the previous guidelines. Though, it is pertinent to note that computer programs are ineligible for getting patent protection in India. Therefore, it becomes crucial for every software business to involve its patent attorney in its business journey, to prevent undue losses. Patents are the most important section of an Intellectual property portfolio, which directly translates an asset to overcome competitors in the market and help in the growth of the business. It is important to have a strategy while filing for software-related patents. This strategy will help in capturing a market share apart from providing the required protection.

Where does copyright come in?

Software is designed with the help of algorithms/executable codes that are written in programming language and are most vulnerable as far as copyright infringement is concerned. The potential infringers might copy the software codes and allow the same for the general public to use. Alternatively, they might use the codes to develop their software and market it under their name. Although in many cases, an infringer shall not copy one’s code as it is, since there are various other elements like variables and comments that are easily replaceable. Even a minor change with the same set of instructions can infringe on someone’s original software. Infringers can also use the same code in different programming languages.

Besides the software codes, copyright protection is also needed in order to safeguard the various elements related to interface and presentation, either as literary or artistic work. One needs to be strategic when claiming protection over one’s software under copyright law. There are various kinds of copyright infringements that are related to the unlicensed use of software and can hamper the business of software organizations. These include overuse of software, relicensing, counterfeiting, and obtaining software fraudulently. It is imperative to file for copyright protection of software under various forms that are available for obtaining copyright protection, and a separate filing to establish easy infringement in case of litigation before the court of law. Since the software is not patentable per se in India, it thus becomes imperative for one to file for copyright protection of one’s software since copyright is the best available Intellectual Property protection for software in India.

Protecting trade secret

A trade secret refers to any formula, device, process, pattern, compound, tool, or mechanism that is not known to the general public. It is maintained as a secret by its owner, and because it is kept secret, it gives its owner an advantage over the competitors. An exemplary illustration of a trade secret is the formula of Coca-Cola. Theoretically, a trade secret can last forever, as long as its owner makes reasonable efforts to keep it a secret and someone else does not create/discover it on its own. Many features of the software, including its codes, ideas, and concepts can be protected as trade secrets. This protection lasts as long as the trade secret status of the protected element is retained. It is pertinent to note that, unlike patents, trade secret protection does not extend to elements of software that are readily ascertainable by lawful means. Unlike patents, copyrights, and trademarks, trade secrets cannot be infringed, but one must still be cautious, as they are subject to theft. In case of theft, if the owner is able to prove the trade secret was not known to the general public and reasonable steps were taken to preserve its secrecy, its legal status as a protectable intellectual property right sustains.

Practices to minimize the risk of offshore intellectual property loss

The following practices might help in minimizing the risk of losing Intellectual Property while conducting business offshore:

Understanding Intellectual Property Rights– The first and foremost step is to get an overview of the different laws and initiatives that are undertaken by the offshore country to protect Intellectual Property.

Setting up an Internal Intellectual Property Protection Team– Protection of intellectual property is not a one-time act. It is rather an ongoing business responsibility. Thus, it is crucial for one to have a team in the organization that is solely responsible for monitoring intellectual properties.

Offshore vendor history– Proper caution must be taken to understand the vendor’s history, especially concerning any intellectual property violation, before entering into a vendor relationship with an offshore entity.

Defining IP violation clause– Before executing a contract with an offshore vendor, one must make sure to define a separate Intellectual Property Violation clause and the consequences of violation. This will immensely help to get more leverage to take any legal action if required.

Seeking a reference check of all the team members– Checking the resumes of the offshore team is not enough. It is equally important to seek an appropriate reference check of all the team members as well, so as to make sure that no individual has had any case history of IP violation.

Paying attention to the use of unauthorized software – As the saying goes, ‘Practice what you Preach”. It is thus advised to strictly discourage the use of unlicensed software by both, the onsite as well as the offshore team.

Enforcing a central repository– Enforcing a central repository for all the codes and documents will help not only in improving the overall efficiency but also in avoiding numerous placeholders for critical documents and codes.

Performing periodic IP audit– Performing a periodic IP audit, reiterating the importance of IP, examining any new work that can be copyrighted, looking into all the placeholders of the code/documents, removing all the unauthorized software/product, and updating about any change in ownership are some of the practices that everyone who is conducting an offshore business must follow.

Enforcing the use of References– In all the meetings of the organization, it must be ensured that the appropriate references and credits are given to the owner of the work (be it internal or external). Making this practice a habit will result in raising the standards of the employees to acknowledge, respect, and protect other people’s work as well.

Developing Awareness– Protection extended to Intellectual property can be immensely enhanced if all the employees of the organization and the offshore team are on the same page as to how much attention the organization pays to protect its Intellectual Properties. In some organizations, IP protection is a part of the performance plan for each employee and is reviewed periodically.

Conclusion

To sum it up, maximizing the economic value of software technology critically depends on understanding the nature of the intellectual property rights involved with it and efficiently using the available forms of legal protection to protect those rights. In order to protect a software business, shielding or securing the software is not just a one-time activity. But also, it ensures that it becomes a tool that enables it to bring in new business opportunities, raise funds, and provide licensing opportunities, by developing an IP portfolio. As you continue to grow, your ideas and concepts should count and should be protected against any and every sort of unauthorized use. By seeking rights over your intellectual property, you establish rightful ownership and prevent unlawful use of your software. Furthermore, intellectual property rights also help in fueling the economy and stimulating progressive innovation.

References

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