This article is written by Priyanshi Soni, from Symbiosis Law School, Noida. This article seeks to explain rules laid down by Twitter to get a verified badge on Twitter accounts and also discusses the Cormac McCarthy case regarding a parody account.
Introduction
Twitter is one of the most widely used social media platforms, founded in 2006 in California, United States. It has 330 million active users monthly and while the registered users can post, retweet, like and comment, the unregistered users can only view. Jack Dorsey, Evan Williams, Biz Stone, Noah Glass were its founders.
There exist many fake accounts on social media and most of these accounts are bot accounts that are often created en masse by software programs. Bots have been used for years to artificially amplify certain posts or topics so they are seen by more people. In recent years, social media platforms such as Twitter and Facebook have developed such software through which bots automatically get blocked. But when such fake accounts are created by humans, it poses a greater problem. They are hard to catch as they can get verified using any illegal means.
Rules for a verified badge on Twitter
What it means to be verified on Twitter
The blue badge (verified accounts) helps the general public to distinguish and identify the authentic accounts of the people who are of high public interest. It helps people know with whom they are having conversations and interactions, which leads to healthier conversations. Twitter allows certain categories of users to be verified on the portal.
After a three-year pause, Twitter has recently reopened its verification application process to the public, allowing people to create accounts on Twitter and display the ‘blue tick’. Twitter has also asserted that it will start removing the blue ticks if the account does not meet the updated criteria. Twitter has also released a basic set of guidelines for how verified profiles should conduct themselves, as well as changes to the regulations that govern verified accounts.
To receive a verified badge on Twitter, the account must be authentic, notable, and active:
Authentic
The account must be authentic to maintain trust between users. There are 3 methods of verifying identity –
Official website – by providing a link to your or your organization’s official website and Twitter account.
ID verification – by providing an official government-issued identity card eg. Aadhar Card, Driving Licence, etc.
Official email address – by providing your official email address and the domain name should be the one related to the category you are choosing to apply for.
Notable
As per these criteria, the account should be associated with some recognized organization or people. In addition to confirming the identity of the controller of the account, Twitter will verify the following types of accounts based on the criteria described. Twitter may independently validate qualifying affiliation in all areas through partnerships or direct outreach:
Government
This includes the accounts of important government officials and organizations like elected ministers, institutions, ambassadors, spokespersons, etc., and official candidates for the state- or national-level public office. Also, there must be a reference to such accounts on official government websites or news media.
Companies, brands, and organizations
This includes the accounts of brands, companies, their owners, non-profit organizations, and other mainstream executives. Accounts must achieve two of the following characteristics to be considered prominent:
Presence in public indices such as public stock exchanges, steady Wikipedia pages that meet the encyclopedia’s notability standards, and databases such as GlobalGiving;
3 or more featured references in verified news outlets that match the news requirements within the 6 months before applying;
The follower count should be in the top 0.05% of active accounts located in the same area.
News organizations and journalists
The official accounts of news organizations and even the individual accounts of journalists can be verified with a badge if their account is public, their account’s bio refers to their organization’s name and link to its official website, and also otherwise meets the criteria laid out in this policy. Qualifying organizations including newspapers; magazines; broadcast, cable, satellite, and streaming TV and radio news networks, etc. must adhere to recognized professional standards for journalism. Also, freelance journalists may be verified if they can provide at least three bylines/credits in verified media published in the six months preceding their application.
Entertainment
Accounts of film and TV-related organizations such as film studios, TV networks, etc. may be verified provided these things are fulfilled –
There is a connection of the account with a verified organization as shown in the profile, and
The website associated with the production or entity includes a link to the profile.
Similarly, accounts of artists, performers, directors, and others in similar public-facing roles can also be verified after meeting certain criteria –
The website associated with a verified entity, or similar official public source, includes a link to the profile;
Their IMDB profile has at least 50 production credits;
Have at least 3 featured references within 6 months before applying in news outlets.
Sports and Gaming
Accounts of professional sports players, teams, coaches, etc. can also be verified, provided they provide a link to the official website and must be listed on the official website. Athletes participating in global competitions such as the Olympics and Paralympics can also get their accounts verified. Amateur athletes who compete at the collegiate level or in official minor leagues cannot be verified except if they meet the criteria for influential individuals verification.
Activists, organizers, and other influential individuals
Apart from the professionals discussed above, other people who are trying to spread awareness, influence people for the right cause, bring socio-economic or cultural changes, etc., can also be verified.
Twitter has also rolled out that it will verify users even if they are not following in any of the above categories if they are in the high public interest and are playing important public roles keeping in mind the present times. These include medical professionals during pandemics or epidemics, political leaders, campaigners for human rights, etc.
Active
The accounts to get verified must be active on Twitter but it should be in adherence to Twitter rules, i.e., –
You must have a complete profile with a name and picture
The account must have a confirmed phone number or email for security purposes
You have logged into your account at least once in the past 6 months and,
The account must have not faced lockouts for violating Twitter terms in the past 6 months excluding appeals. When your account is locked, you will not be able to sign in – even with the correct password.
Ineligible accounts
Certain accounts on Twitter cannot be given verified badges irrespective of them fulfilling the above criteria. These are –
Parody accounts, unofficial fan pages, newsletter, or commentary accounts.
Pets and fictional characters, unless directly affiliated with a Verified Company, Brand, or Organization, or with a verified entertainment production, as described above.
Accounts associated with spam activities such as buying and selling of followers and accounts involved in hateful content.
Losing the verified status on Twitter
As per the Twitter Terms of Service, twitter can remove the verified badge at any time without giving notice. This will happen in two conditions –
If the account’s username is changed, if the account becomes inactive or incomplete or if you are no longer holding the position for which the account was verified, and you do not meet the criteria for verification otherwise anymore.
Twitter can also remove the verification if the account acts in a way that is misleading people intentionally by changing name or bio, or if the account gets suspended, or hateful content, abusive behaviour, etc. is displayed.
Removal of the badge based on repeated violations will be assessed on a case-by-case basis and is not automatic. Twitter mentions that it reserves the right to revoke the verification if it comes to know that such verification was obtained artificially or via illegal activity.
The Cormac McCarthy case
Cormac Mccarthy is one of the greatest contemporary American writers and he has written ten novels, two plays, two screenplays, and two short-short stories. His works comprised violence, a unique writing style, and lack of punctuation and attribution. He won the Pulitzer Prize for his novel “The Road” in 2007, and his 2005 novel “No Country for Old Men” was made into a film in 2007 of the same name, which won four Academy Awards, including best picture.
Recently, Twitter announced that the Twitter account of Cormac Mccarthy was verified by mistake and that now the blue badge has been removed. The spokesperson also said that “The account will also be required to adhere to Twitter’s parody, newsfeed, commentary, and fan account policy”, i.e., the account being a parody account, it has to follow the rules to stay on Twitter. The scout had 48,000 followers and even a few celebrities like Stephen King and Patton Oswalt followed him. This account was made by Daniel Watts, who is a California lawyer who is running for Governor in the state. Watts also said that he never interacted with Twitter regarding verification and that Twitter itself gave the blue-tick to the parody account. This account was particularly made in 2018, but another parody account existed in 2012 in his name.
McCarthy rarely speaks to the press and has no known presence on social media, and some of the tweets on this parody account highlighted how unfamiliar he is with the technology.
Conclusion
There exist many fake accounts of big celebrities on various social networking sites. Apart from approved fan pages, these accounts also violate many rights of the celebrities as not everyone likes such fake accounts to exist in their name. It is also the responsibility of social media sites to keep a check on such accounts, and as seen in the Cormac case, the sites should at least be vigilant to whom they are awarding the verified mark.
“To care for those who once cared for us is one of the highest honors.” ~ Tia Walker
Table of Contents
Introduction
Old age is a very crucial part of life as this is ideally considered to be the stage where one can finally sit back and relax. However, ageing comes with its own share of issues that tend to make people extremely vulnerable. In fact, it is said that old age is like a second childhood and the elderly wish to be cared for that way. But, in today’s world, not just more and more people are disregarding these basic expectations of the older generation, but also, the worst part is that they are often subjected to abuse and harassment.
As per the World Health Organisation (WHO), ‘elder abuse’ includes abuse that may be physical, sexual, emotional or financial. Any form of abandonment or neglect also amounts to abuse. Here, neglect does not mean an innocent mistake, rather it includes cases as severe as a failure on part of the caregiver to provide the dependent elder with basic necessities like food, shelter, clothing or health care. This is where the important role of legal provisions come into the picture to protect the elderly. The present article throws light on these legal provisions.
Indian scenario
Indian culture is value-oriented with much emphasis placed on the institution of family and particularly joint family system; while respecting and supporting elders lies at its core. With such a background, the topic of elder abuse is still taboo and often overlooked in our society. In fact, it is simply considered to be a western problem. However, the harsh reality of our society presents a different picture.
According to a recent study conducted by the Agewell Foundation, during the COVID-19 pandemic, around 73% of the country’s elders reported that ill-treatment towards them had increased.
It was found that people used to harass and abuse their parents because of the stress during the entire lockdown situation. Reports like this force one to think if humans have stooped so low that to them, their aged parents or family members are merely means to vent out their frustration. Unfortunately, most of these cases are not even reported as elders are neither willing nor able to report them, and the abusers walk freely.
Legal provisions
The major legal provisions introduced in this regard are-
It was only after the enactment of this act that a dedicated legislation for the protection of senior citizens was brought into force in India. Under this act, children, grandchildren as well as close relatives in certain cases are under an obligation to provide for maintenance to their parents and grandparents so as to ensure that they are able to lead a normal life. Relatives are obliged in cases where they are either in possession of the property of the senior citizens or are to inherit such property.
According to the Act, a senior citizen can apply to the tribunal established under this Act to claim maintenance if they are not able to provide for themselves. They can make an application against their children, grandchildren or relatives as the case may be, and then the tribunal if satisfied can pass an order of maintenance against them.
Further, this act also aims to protect the property of senior citizens. In case, a senior citizen transfers any property in favour of his children, grandchildren or relatives on this very condition that the transferee will provide maintenance to him, and if the transferee fails to do so then the senior citizen can approach the tribunal for revoking such transfer by declaring it as void on the grounds of fraud, coercion or undue influence.
This act also lays down that if any senior citizen is abandoned by their caregiver, then they will be punishable with imprisonment which may extend to three months or a fine of up to five thousand rupees or both.
This Bill was introduced after recommendations were made by several high courts asking the government to review the above-mentioned Act. In the original Act, there is no provision relating to the punishment for abuse of elders and that has been introduced in this bill. Accordingly, those who abuse or abandon their parents may be sentenced to imprisonment for a term of six months or with a fine of rupees ten thousand or both.
The bill also provides that in the case of those above 80 years of age, applications for maintenance and assistance filed by them is to be disposed of within 60 days. While for other senior citizens it is to be within 90 days. Further, the definition of maintenance has also been expanded to include safety and security along with providing the basic necessities like food, shelter, clothing and health care obligations.
The maintenance that could be claimed under the original Act is not to exceed rupees ten thousand, however, according to the amendment, there exists no such upper limit. Moreover, the children or relatives are to pay such ordered maintenance within 15 days and if they don’t then there are provisions given to levy a fine on them. If they further fail to pay the fine then they can also be imprisoned for up to one month or till they pay the said maintenance.
National Policies
Apart from the above-mentioned legislation, there have been certain policies as well which were introduced for the betterment of senior citizens. For example, the National Policy for Older Persons, 1999 was in order to pursue the UN General Assembly Resolution wherein it was decided to observe 1999 as the International Year of Older Persons.
Further, National Policy for Senior Citizens, 2011 tried to bring about positive changes by considering the various factors like the population explosion among the elderly, the changes in the economy and especially the extreme poverty faced by the elderly in the rural areas. It mainly laid down provisions relating to the timely payments like that of pension, provident funds and other benefits so as to support the elderly from facing financial difficulties.
It has been seen that in most of the cases of elderly abuse, the senior citizens were financially dependent on their abusers, which further enabled their abusers in exploiting them. So, it can be said that these policies do not directly protect the senior citizens against abuse or harassment but they do so indirectly by helping them to cope with their financial issues and reducing their dependence on others.
Other Provisions
Apart from the above-mentioned provisions, different personal laws like those of Hindus and Christians also seek to protect the interests of the elderly by laying down provisions related to their maintenance.
In addition to the personal laws, parents can claim maintenance against their children including married daughters under Section 125 of the Criminal Procedure Code, 1908, provided that the children have sufficient means to maintain the parents while the parents can’t maintain themselves.
Provisions have also been made under the Constitution of India for the sake of senior citizens, however, since these are laid down under Directive Principles so are not enforceable in any court of law. But nevertheless, they form the basis of all such legislations brought forth by the state to promote the wellbeing of senior citizens.
How effective are these laws?
In spite of the legal provisions under the personal laws and even Section 125 of the Criminal Procedure Code, the need for a dedicated legislation for senior citizens was strongly felt which then led to the introduction of the Maintenance and Welfare of Parents and Senior Citizens Act in 2007. The Act being the first dedicated legislation did bring a lot of hope regarding the betterment of the condition of senior citizens and in fact, there have been several judgements where the courts have taken a liberal interpretation of the Act to ensure justice is served.
Analysing the case laws
For instance, the Delhi High Court while interpreting the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, in the case of Sunny Paul and Anr. v. State Nct of Delhi and Ors., had considered whether, under the Act, the court can provide only a monetary remedy or can it also issue an order to evict abusive adults from their parent’s property. The court then went to observe the primary objective of the 2007 Act, which is to protect the life of and property of senior citizens. It further held that adults can be evicted from the property of their parents in cases of parental abuse.
While in Shabeen Martin and Ors. vs. Muriel and Ors., the Kerala High Court held that according to the provisions of the 2007 Act, transfer of property by a senior citizen is revocable in case of failure on part of the transferee to provide for the basic needs even if it does not contain such an express provision stating that the transferee will provide for the same.
In Ramesh vs. Ishwar Devi and Ors., the Punjab and Haryana High Court had reiterated that the Act attempts to provide a dignified existence to the elderly and that it acts as a deterrent to cases wherein after receiving the property from their aged parents, the children simply neglect and abandon them.
However, in spite of positive developments like these, the cases of harassment of elders have been rampant in our country and there seems to be no end to it. This is mainly due to the lack of enforceability of these laws. The penal provisions are not stringent enough to create fear in the minds of those abusers. A mere fine of five thousand rupees or imprisonment of three months is neither proportionate to the trauma that the elders have gone through, nor deters the abusers from committing the same again. With such lenient punishments, the enforceability of the above-mentioned acts is watered down.
Scope for further development
In a survey conducted by HelpAge India, it was found that many of the petitioners were either not satisfied with the final decision of the tribunal or did not know how to take action if the decision is not followed by their children. Moreover, the concerned officers simply forward such complaints of non-compliance to the police stations and do not even follow up on the cases. Thus, in spite of having a legal mechanism in place, justice is not delivered in these cases.
Further, the tribunal staff need to be given proper training for sensitively handling the aged complainants, because in many cases, they are rude to the complainants which in turn adds to the woes of the senior citizens. This in turn deters others from filing complaints.
The Act also needs to include social workers into this whole mechanism so that there is one social worker to assist each complainant at all stages of the legal proceedings. Many of the complainants find it emotionally and physically exhausting to deal with the entire legal proceedings all alone so it will be really helpful if they get assistance especially from a social worker.
Also most importantly, an awareness campaign should be conducted at all levels including panchayats. The campaign should ensure that local languages and local mediums are used for this purpose so that the message reaches the masses.
The Maintenance and Welfare of Parents and Senior Citizens (Amendment) Bill, 2019 has tried to include some of the much-needed provisions and it needs to be appreciated for that matter. However, it also lacks as far as punishments are concerned and this again waters down its enforceability. Further, the bill has not been approved by the Parliament yet which somewhere does reflect how this issue of senior citizens is not much of a priority for the government.
Conclusion
It can be concluded that the legal framework laid down in our country for the protection of senior citizens is ineffective to a major extent and it needs to be reevaluated. Another grave concern is that a huge part of our population is not even aware of the existing legal provisions due to the low literacy rates. While others who are aware of the legal provisions are reluctant to file a complaint either due to fear of retaliation or so as to not ruin their family’s reputation. Serious efforts need to be taken in this regard to bring about awareness so that this subject is no longer treated as taboo and people are made aware of their legal rights. For this purpose, the government needs to join hands with social organisations to ensure this message reaches even the remotest areas of our country. People need to understand that even if the abusers are their own children, they need to be punished.
While quoting our ancient scriptures, the Chhattisgarh High Court in Uttar Kumar Bhoi vs. Surekha Bhoi, had said, “We Should Respect, Serve And Worship Our Parents”. And to achieve this, value education should be made a compulsory part of the school curriculum and children from a very young age itself need to be sensitized to this whole issue. Harassment and neglect of elders reflect deeper problems rooted in our society and only legal provisions are not enough to tackle this, rather, society as a whole needs to address this issue.
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The recent judgment delivered by the Apex Court in Vidya Drolia v. Durga Trading Corporation (‘Vidya Drolia’), has finally settled a number of crucial aspects which were leading to an uncertain position of arbitration law in India. It has resolved and rectified a host of issues pertaining to the system of domestic arbitration in India, including the prolonged controversy on the scope of judicial intervention to examine an arbitration agreement in the pre-arbitral stage. The court has significantly narrowed down the scope of court interference in this pre-arbitral stage.
The court found that the scope of review of applications filed under both Section 8 and Section 11 of the Arbitration and Conciliation Act is more instructive in nature. The legal issues involved in the referral stage also included questions such as who must decide on matters of Arbitrability and up to what extent? Whether there exists parity in approach while dealing with the scope of inquiry under Sections 8 and 11? Whether the “existence” or rather “validity” of an arbitration agreement is to be examined? Whether courts/ judicial authorities should finally determine the case or just leave the matter with the prima facie review in this pre-arbitral stage? And, what would be the scope and test of prima facie?
The present article will address the above-mentioned legal issues and throw light on the legal position of the scope of inquiry of judicial intervention in a pre-arbitral stage. It will look at the transition in the approach of the legislature and courts while analysing the recent amendments and the judicial pronouncements which connoted such a shift.
Examination of an arbitration agreement at pre-arbitral stage. (under Sections 8 and 11.)
Section 8 of the Act, entitles a judicial body to refer parties to arbitration where there already exists a valid arbitration agreement, thereby honoring the parties (pre-dispute) pact. Similarly, Section 11 of the Act empowers the judicial body to assist parties in the appointment of the arbitrators for the commencement of the arbitration proceedings, which is subject to the existence of a valid arbitration agreement. As the above-said situations take place before the establishment of an arbitral tribunal, thus this stage is known as a “Pre-Arbitral/ Referral Stage”.
Further, a similarity can be drawn in both the above-mentioned situations arising under Sections 8 and 11, which is that both the applications are subject to the scrutiny of the judicial authority in relation to their existence of the validity of the arbitration agreement. This act of scrutiny by the judicial authorities in the arbitration domain is where the grey area lies. Since this power of examination by the courts, there arises a very crucial question of what should be the scope of judicial intervention in this stage and where it ought to draw the line of demarcation.
Defeating the objectives of the Act : prior to the 2015 Amendment
The intention of the legislature behind introducing the arbitration and conciliation act, 1996 was to:
Reduce the judicial intervention in the arbitration proceedings;
Make arbitration environment in India more responsive to contemporary demands and;
To expedite disposal of cases, thereby lessening the load of the overburdened judiciary.
However, while interpreting Section 11 prior to the 2015 Amendment Act, the Apex Court in the case of Boghara Polyfab Pvt. Ltd. v. National Insurance Company Ltd., relied on SBP & Co. v. Patel Engineering Ltd and categorised the issues which can or cannot be decided by the concerned court while appointing the arbitrator under Section 11. Moreover, the aforementioned cases not only gave the power to judicial bodies to decide the existence of the arbitration agreement but stretched the power to even decide the preliminary issues involved therein.
Consequently, the Court’s role no longer remained that of a ‘facilitator’ leading to increased court interference in the arbitral procedure, and the Court’s extended involvement essentially means slow disposal of cases. Besides, the verdict to bestow power on courts to adjudicate primary or jurisdictional issues goes against the express mentioning of Section 16 of the Act which recognizes the Kompetenz-Kompetenz principle.
Furthermore, while addressing Section 8 of the Act, the Supreme Court again in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. and A. Ayyasamy v. A. Paramasivam and Others, held that a Court at the pre-arbitral stage itself should decide not merely the existence but also the validity of the arbitration agreement (including the arbitrability of the dispute), thereby overlooking the principle of Section 16 again.
Evidently, in the above-mentioned decisions, it can be seen that the scope of Sections 8 and 11 was widened by the court which has gone against the intention of the legislature, therefore thwarting the spirit of the Act.
The 2015 Amendment : an attempt to restrict the scope of judicial intervention
The Law Commission of India, in its 246th report, recommended amendments to Sections 8 of the Arbitration Act, with the aim to curb the scope of judicial interference at the pre-arbitral stage and stated that the courts need to only prima facie determine whether an arbitration agreement exists. Thus, making it obligatory for the court to refer the parties to arbitration, and leaving the ultimate decision of the existence and validity of an arbitration agreement to the arbitral tribunal under Section 16, thereby upholding the principle of Kompetenz-Kompetenz. On the other hand, if the judicial authority in its prima facie determination concludes that the arbitration agreement does not exist, then the judicial authority can take the final call, therefore, resulting in saving the time of the arbitral tribunal.
As a consequence of the 246th Law Commission report, through the 2015 Amendment Act, the Prima facie test was brought into force, which was also aimed at nullifying the effect of Booz Allen and Ayyasamy.
However, it is pertinent to note that the term “prima facie” was not inserted into Section 11 (6A) by virtue of the Law Commission’s recommendation. As a result, the applicability of the prima facie test was limited to only applications filed under Section 8. Hence, the legislature gave rise to chaos yet again by leaving a loophole as to what would be the scope of examination under Section 11. Also, it brought forth a significant shift to the controversy by raising another fundamental question of whether there exists parity in approach while dealing with the scope of inquiry under Sections 8 and 11? (As both in their essence was concerning the judicial intervention at the pre-arbitral stage.)
Aftermath of the 2015 Amendment
Despite the 2015 Amendment, the Supreme Court has been jumbled up between contrasting views with respect to the standards and scope of scrutiny that is to be adopted while addressing the issues of pre-arbitral stage i.e. with an application for appointment of an arbitrator or while referring parties to the arbitration. (Under Section 8 and 11)
In the beginning, it was stated in Duro Felguera v. Gangavaram Port Limited,(“Duro Felguera”), that the courts were compelled to see only the existence of an arbitration agreement – “nothing more, nothing less.” Herein, the court applied the literal interpretation rule to Section 11 (6A) to restrict the scope of examination to the ‘existence’ of an arbitration agreement and also laid down certain factors for deciding the same. The court held:
“From a reading of Section 11(6-A), the intention of the legislature is crystal clear i.e. the court should and need only into one aspect – the existence of an arbitration agreement. What are the factors for deciding as to whether there is an arbitration agreement is a next question. The resolution to that is simple – it needs to be seen if the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement.”
Nevertheless, later in March 2019, the court inUnited India Insurance v. Hyundai Engg. & Construction Co. Ltd., while relying on Duro Felguera came up with different reasoning and held that the prerequisite for invoking arbitration was not met which rendered the arbitration clause ineffective and incapable of being enforced. On one side, many consider this approach to be in contravention with that in Duro Felguera, while others believe that it followed Duro’s verdict which included inquiry of ‘scope’ as a factor to determine existence. The court ruled:
“Suffice it to say that appointment of arbitrator is a judicial power and is not merely an administrative function leaving some degree of judicial intervention; when it comes to the question to examine the existence of a prima facie arbitration agreement, it is always necessary to ensure that the dispute resolution process does not become unnecessarily protracted.”
Similarly, in Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd, while addressing a matter under Section 11 went on to determine whether the arbitration agreement was duly stamped i.e., it goes on to ascertain the validity of an arbitration agreement instead of its ‘existence.’ Concerning this, the court gave the reasoning that- “determination of existence included ‘de jure’ existence of the agreement.” In essence, the court appeared to have lost track and seems to be confused between ‘existence’ of an agreement and its validity. As a consequence, this added another substantial question (Whether the “existence” or rather “validity” of an arbitration agreement is to be examined) to the contentious debate of Scope of examination at the pre-arbitral stage.
United India Insurance was later overruled by Mayavati Trading Pvt Ltd v. Pradyuat Deb Burman, wherein the Supreme Court stated that courts were not supposed to go further than determining the existence of the arbitration agreement. Also, it reaffirmed that “Section 11(6-A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgment of Duro Felguera.” Nevertheless, the court missed addressing the issue of “scope” of such examination here as well.
Thus, two circumstances emerged in the aftermath of the 2015 amendment:
The Supreme Court’s jurisprudence of Section 11 of the Act was inconsistent.
Continued judicial intervention in the arbitral proceedings as the courts seem to have disregarded the principle of Kompetenz-Kompetenz, therefore, overlooking the tribunal authority to rule on its own jurisdiction under Section 16.
Subsequently, the 2015 Amendment failed to achieve its objectives of minimal judicial interference and to India an arbitration-friendly jurisdiction.
Repealing of Section 11 (6-A): 2019 Amendment Act
In an effort to make India’s reputation as an arbitration-friendly jurisdiction, the Indian Legislature came up with the 2019 Amendment Act to resolve and rectify the flaws. Through the amendment, sub-sections (6-A) and (7) have been repealed. Since the amendment focused on strengthening institutional arbitration in India, under the amended Section 11(6) of the Arbitration and Conciliation Act the appointment of arbitrators shall be done by the Arbitral Institutions as designated by the Apex Court and High courts.
Vidya Drolia Judgment settles the controversy
Parity between Section 8 and 11
In the Vidya Drolia case, while realizing the need for parity between the two provisions, the Supreme Court ruled that the scope of review under both Section 8 and Section 11 is identical, despite the difference in language. For this reason, it further held that ‘prima facie’ standard applied equally to the power of judicial review under Section 11, thereby reading the ‘mandate of a valid arbitration agreement in Section 8 into the mandate of Section 11, that is, “the existence of an arbitration agreement”.
Existence or validity?
Additionally, while addressing the contradiction of ‘existence’ or ‘validity’ of an arbitration agreement, the Supreme Court reiterated that the existence and validity of an arbitration agreement are essentially intertwined with an invalid arbitration agreement not being capable of existing so that the exercise of a ‘prima facie’ judicial review of existence would therefore necessarily entail a determination of its validity.
To elaborate further on this, Section 8 of the Act requires a judicial authority to refer the parties to arbitration unless it finds that prima facie, no valid arbitration agreement exists. On a plain reading (of the now-deleted sub-section 6A) Section 11 limits the court’s powers to determining only the existence of an arbitration agreement. The court, however, holds that an agreement has no meaning unless it is enforceable in law, and an arbitration agreement that is not valid or not legally enforceable is not an agreement at all. Thus, even under Section 11, the court has the power to prima facie consider the validity of the arbitration agreement.
Existential crises of Section 11 (6-A) and matters of arbitrability
While settling the implication of Section 11 (6-A), the court accepted the view taken inMayavati Trading, which reaffirmed that “Section 11(6-A) is confined to the examination of the ‘existence’ of an arbitration agreement and is to be understood in the narrow sense”. Moreover, the court stated that the subsequent deletion of Sub-section 6A does not alter this position.
The Supreme Court settles the fuss by upholding the 246th Law Commission Report and reiterating that, courts are required to only ‘prima facie’ determine whether an arbitration agreement exists. Therefore, making it imperative for courts to refer the parties to arbitration, and leaving the final determination of the existence and validity of an arbitration agreement to the arbitral tribunal.
This was clarified to mean a primary first review, aimed solely at “weeding out ex-facie, non-existent and invalid arbitration agreements, and non-arbitrable disputes.” The court elucidated that a prima facie case is relatable to the establishment of initial presumption, rather than an evidentiary standard. Only when the court is certain that no valid arbitration agreement exists, or that the disputes are not arbitrable, would an application under Section 8 be rejected.
This determination is not to be made through a mini-trial but must be ‘preliminary and summary’ in nature, on the basis of documents produced. In sum, a referring court would ordinarily compel parties to abide by the arbitration clause unless there were good and compelling reasons not to. Where questions related to the formation, existence, or validity of the contract and questions related to non-arbitrability are complex and intertwined with issues of fact, where they cannot be determined on the prima facie basis, the court has clarified that these should necessarily be left for the arbitral tribunal to adjudicate.
It also specifically clarifies that where there are jurisdictional issues or where a multi-party arbitration raises complicated factual questions, these must be left to the arbitral tribunal to handle. Further, it was also ruled in the case ofUttrakhand Kalyan Nigam v. Northern Coal Field Ltd. that all the other preliminary objections/questions are to be dealt with by the tribunal.
The above-said rule was also upheld by the Supreme Court while setting aside the Delhi HC decision and stating the arbitration agreement exists, hence confirming the appointment of an arbitrator inPravin Electricals (P) Ltd. v. Galaxy Infra and Engg. (P) Ltd., wherein a lot of factual and evidentiary issues were involved which required a deeper examination. In short, the rule for the Court is ‘when in doubt, do refer’
Conclusion
The Supreme court in the Vidya Drolia has left to the discretion of the referring court the decision as to the intensity of the summary and prima facie review, by always keeping in mind that the ultimate purpose of the legislature was to make referring court act as a ‘facilitator’ and to mere assist the arbitration procedure and not usurp the jurisdiction of the arbitral tribunal in that regard.
However, it would not be incorrect to say that even after the landmark judgment of Vidya Drolia and the 2019 Amendment Act, the lack of clarity shall prevail longer. It is argued that there is still room left for debate as some pertinent questions remain unanswered by the Legislature or the Judiciary like, what shall be the scope of examination now by the arbitral institutions while entertaining an application for appointment of an arbitrator? Only time will tell.
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This article is written by Aditi Aggarwal, a student of Symbiosis Law School, NOIDA. This article discusses the legal provisions in different countries for the LGBT community and religious anatomy regarding adoption across the world. This article is edited by Smaranika Sen and Daisy.
Table of Contents
Introduction
After catching sight of a newspaper article in India mentioning that adoption by same-sex couples must be legalized in the context of covid tragedy, it is clear that the fight for LGBT rights is still not over. Even though same-sex adoption is legal in around 40 countries across the world, many countries still do not have any provisions for same-sex adoption couples because of their religious beliefs. In fact, ten states in the US allow religious groups to refuse adoption to such couples.
Religious anatomy regarding adoption by LGBT couple
Beliefs of conservative Christians
According to many conservative Christians, homosexuality is a changeable, unnatural and a deviant behavior and, is a chosen lifestyle. In general, they also believe that such behaviour is condemned by the Bible and hated by God. Pentecostal, one of the Christian religions believes that homosexuality is a choice, it is evil and it is wrong.
Concerning LGBT marriages and parenting, conservative Christians have the following beliefs:
Granting the same rights that heterosexuals enjoy to the LGBT community would pose a danger to society.
Same-sex marriage poses a threat to heterosexual marriages and the family system.
If children would grow up in a family of gay or lesbian families, they would be harmed as they would grow up without a father figure (in a lesbian household) or a mother figure (in a gay household).
It is also believed that children when exposed to the homosexual lifestyle would be at a risk and would be likely to grow up as ‘homosexual’ themselves.
This view is opposite to what human sexuality researchers and mental health therapists believe. According to them, homosexuality is a non-chosen and a fixed orientation that is not unnatural or abnormal for a minority of people in the world.
Breaking the myths
Research conducted by the American Civil Liberties Union found that no evidence suggests that people from the LGBT community are in any way not fit to raise a child. The research confirms that such parenting helps a child in growing up with good values and in the development of a child as compared to heterosexual parents. The research also throws light on the fact that good parenting depends on a parent’s ability to take good care and impart good values to a child. It has nothing to do with sexual orientation.
Another study confirmed the following findings in the academic literature over the past four decades on the subject:
Same-sex parents can provide care and protection like any other parent.
Children raised by same-sex parents will experience no more developmental problems than children raised in traditional heterosexual families face.
There is no evidence that children with same-sex parents develop a specific sexual orientation, such as homosexuality.
It has been reported that children raised in a homosexual household would more probably fight for equal rights and social justice. This is because these children would be often aware of heterosexism and thus, may choose to fight against homonegativity. These children are more likely to support equal rights for the LGBT community.
Beliefs of other religions
According to research, many fundamentalist religious groups distinguish between sexual orientation and sexual behavior and make harsher judgments on the latter. However, it has also been found that fundamentalist Christian, Muslims, Jewish, and Hindu sects, in general, cannot tolerate gays and lesbians or any particular LGBT community, regardless of their behavior.
The statements which are attributed to the Prophet Muhammad (Hadiths) interprets the Quran with a historical perspective and these are often lead to religious-based intolerance, condemning same-sex behaviors. Whereas in the religion of Judaism, there is space for a wide interpretation of religious texts because of which some of the denominations of Judaism are less likely to have religious intolerance towards the LGBT community.
Impact of religion on children for the acceptance of an LGBT parent
Religion can have a strong impact on how children connect to their LGBT parents. A child’s relationship with their parents as well as with their religion may change as they become able to reflect on experiences in their lives and mature themselves. With time, family members of such individuals may find themselves tussling between religiously-based homonegative messages they receive and their positive perception of their gay or lesbian relatives. In such a situation, their relationship with that member may be determined based on their ability to resolve these contradictory thoughts by themselves.
Impact of religion on LGBT community and the way ahead
For escaping homonegativity, some members of the LGBT community may believe that they have to decide between their religious identity and identifying as gay or lesbian. If they choose their religion, they may remain celibate. But recently scholars have argued that some gay and lesbian individuals do not believe that they have to choose, instead, they may choose to integrate their identities by attending a gay-affirming religious organization or by choosing another faith.
Roman Catholic adoption agency: opposing to same-sex foster parents
Background
Catholic Social Services (CSS) is a foster care agency in Philadelphia. The religious belief of CSS is that “marriage is a sacred bond between a man and a woman.” According to the agency, the certificate of the prospective foster families acts as their relationships’ endorsement because of which it does not certify couples who are unmarried regardless of their sexual orientation or same-sex couples who are married. CSS also contends that it does not have any objection to certify lesbian or gay individuals as single foster parents or even to place gay and lesbian children. Further, it contends that no same-sex couple has asked for certification from CSS and even if they did, the agency would have directed them to other agencies in the city.
For more than fifty years, CSS has provided foster care services to the city in a contract with the city of Philadelphia while holding to its religious beliefs. But the problem arose in 2018 when Philadelphia discovered that the agency would refuse to work with married LGBTQ couples who want to be foster parents even though no applications have been rejected yet. On this discovery, the city stopped sending foster children to the agency.
On one hand, the city argued that CSS is violative of the anti-discrimination laws of the city as it is discriminating against same-sex couples. On the other hand, the Catholic agency contended that it would go against its religious beliefs if it would work with LGBTQ foster parents. In this regard, CSS took the case to the Supreme Court of the US after the lower courts ruled in the favor of Philadelphia.
SC’s decision: Violation of the First Amendment by Philadelphia
In the case of Fulton v. Philadelphia (2021), the Supreme Court of the US unanimously ruled that by refusing to hire a CSS agency because it discovered that the organization would not approve the adoption by same-sex couples, Philadelphia has violated the First Amendment.
Chief Justice John Roberts said that there is no doubt that interest is an important factor as society has recognized gay persons and gay couples and therefore they cannot be considered social outcasts or inferior in dignity. and value. But he further said that based on facts of the particular case, such an interest cannot be justified in denying CSS an exception for its religious exercise.
After the court’s ruling, many faith-based organizations called it “religious rights’ victory” whereas those in favor of LGBTQ families’ rights conceived the judgment as discriminatory and narrow. According to LGBT rights advocates, as long as there are children in need of a home, every possible thing should be done to match them with loving parents.
Legal provisions available in India relating to adoption by an LGBT couple
Section 7 of the Act states about the capacity of a Hindu male to adopt a child. According to this section, a sound-minded Hindu male who is not a minor, is capable of adopting a child (any gender). Proviso attached to the section states that his wife’s consent is also needed for adopting a child. Consent is not required where the wife is no more a Hindu or she has taken a complete renunciation from the world or she has been declared to have an unsound mind by a court of competent jurisdiction. There is also an explanation attached to the section according to which, if at the time of adoption, a person has more than one wife alive, then the consent of all of them is needed unless any of them comes under the category which the proviso mentioned.
Section 8 of the Act states about the capacity of a Hindu female to adopt a child. A female who is a sound-minded Hindu, not a minor, and either unmarried or if married, there are some conditions, any one of them needs to be fulfilled:
Her marriage has been dissolved.
Her husband is dead.
Her husband has renounced the world completely and finally.
Her husband has ceased to be a Hindu.
Her husband has been declared of unsound mind by a court of competent jurisdiction.
Juvenile Justice (Care and Protection of Children) Act, 2015
The purpose of the JJ Act is to provide a family to abandoned children living in foster care. The act’s objective is the welfare of the children. Section 57 of the Act states the eligibility for adopting a child or being prospective adoptive parents as follows:
The parents have to be compulsorily mentally alert, mentally and financially sound, physically fit, and must have a high motivation for adopting a child and to provide a good upbringing to him.
If the parents are a couple, then the consent of both the husband and wife is necessary for adoption.
A divorced or a single person has to fulfill certain criteria according to adoption regulations provisions which are framed by the Authority to adopt.
The parent should not be a single male.
Further, if any criteria are specified in the adoption regulations framed by the Authority, then that also needs to be fulfilled.
What are the restrictions for adoption under adoption law
The parents should not have any life-threatening medical condition.
No couple would be allowed to adopt a child who does not have a stable marital relationship of at least two years.
The age of the parents should be taken into account as on the date when registration was made to decide that a child of which age group can be adopted by them.
The minimum difference between the age of a child and one of the parents must not be less than twenty-five years.
Couples who have three or more than three children would not be capable of adopting. Two exceptions in this regard are that those children are special needs children under regulation 2(21), hard to place children under regulation 50 and if there is a relative adoption or adoption by a step-parent.
Complete adoption is not recognized in the personal law of Christians, Parsis, Muslims, and Jews. Such people can then legally take the child under guardianship under ‘The Guardian and Wards Act, 1890’. But even this act does not talk about the adoption rights of LGBT couples.
After analyzing the available provisions for adoption in India, it is clear that only married couples or a single or divorced person can adopt a child but no provision allows any for adoption by a same-sex or unmarried couple. The rights of parenthood for the LGBT community are unrecognized as of now by both society and law. Though the Apex court in many past judgments has interpreted Article 21 of the Indian Constitution to include the right to reproductive autonomy and right to motherhood, it does not seem to apply to the LGBT community. In fact, as single parents, many Indian LGBT people in same-sex relationships have adopted children, but their partners have no legal rights over the child.
Plea on adoption dismissed by the Supreme Court
A review plea was filed before the Apex Court in 2019 seeking surrogacy, marriage, and adoption rights for the LGBT community as these rights are a part of basic human rights but the SC dismissed the plea.
The plea contended that these rights were not addressed when the court gave judgment on decriminalization of consensual gay sex under Section 377 of the Indian Penal Code (IPC) 1860. The plea further contended that non-recognition of these rights is a violation of Articles 14, 15, 21, 19, and 29 of the Indian Constitution. According to the plea, heterosexuals (who are in an opposite-sex relationship) and homosexuals (who are in a same-sex relationship) are similarly circumstanced giving the reason that the general nature of the relationship is sexual and romantic.
Legal provisions available relating to adoption by LGBT couples in other countries
Since the beginning of the twenty-first century, most Western European and Scandinavian countries allow same-sex couples to marry and adopt children. In contrast to this, Southern and Eastern European countries except Spain have controversial views against gay and lesbian couples marrying or having biological children or adopting them.
European Union
On the worldwide spectrum, the EU seems relatively LGBTI-friendly. Member states of the EU are parties to many of the international instruments one of which is the ECHR- European Convention on Human Rights which lists the fundamental rights for everyone. EU also has extensive laws against discrimination. It has also initiated a United Nations declaration which called for worldwide decriminalization of homosexuality.
The 22nd Recital of the Employment Equality Directive states that its provisions do not have any effect on national laws regarding family or marital status, reproductive and adoption rights. This reflects the diversity of national traditions and policy choices. A total of 14 countries, namely the United Kingdom (2005 in England and Wales, 2009 in Scotland and 2013 in Northern Ireland), Spain (2005), Denmark (2010), Malta (2014), Sweden (2003), Belgium (2006), France (2013), Luxembourg (2015), Austria (2016), Ireland (2016), Portugal (2016), Germany (2017), Finland (2017) and Netherlands (2001) allows full joint adoption by same-sex couples. While other countries such as Estonia (2016) and Slovenia (2011) permit a stepchild adoption where a partner who is registered in a same-sex partnership can adopt the biological or adopted child of the partner. Italy makes case-to-case basis decisions by court in this regard while in Greece, same-sex couples who are in a civil partnership may foster a child but cannot adopt one.
EU begins legal action against Hungary over anti-LGBT law
Recently, a ‘Children Protection Act’ (2021) was passed by the Hungarian MPs to safeguard children’s wellbeing and to fight paedophilia. In the Act, an amendment was introduced which prohibits the portrayal of gender reassignment and homosexuality in content such as television programs addressed to minors and education material used in school to teach children. Not just this, the Consumer Protection Authority of Hungary even obliged the childrens’ books publishers presenting people from the LGBT community to include a disclaimer for depictions of behavior that deviates from traditional gender roles.
Arguing that recent Hungarian controversial laws go against the principles and laws of the EU and that it has been condemned widely as anti-LGBTIQ and discriminatory, Brussels has initiated legal action against Hungary. The country also alleges that the law is violative of some basic fundamental rights like the right to have freedom of expression and information, human dignity, the right to non-discrimination, and the right to respect private life. According to civil society organizations, a damaging stereotype is being perpetuated that merges paedophilia with homosexuality.
On the other hand, the Hungarian government contends that the law, the sole purpose of which is the protection of children, is not discriminatory against any particular community as it does not apply to the sexual orientation rights of those who are above 18 years of age. It further contends that the law aims to guarantee parents’ rights and protect the children’s rights.
United States
In the US, the Supreme Court in a series of court rulings after legalizing gay marriage in 2015, legalized adoption by same-sex couples in 50 states. Obergefell v. Hodges (2015), one of the landmark judgments of the US Court upheld the rights of homosexuals. It also declared that discriminating against them goes against the constitutional provisions of the country such as the due process of law. Under the due process of law, the values of individual liberty are treated equally in society. After this landmark judgment, many states like California and New York also amended their laws and affirmed civil rights like adoption for same-sex couples.
In another case i.e. De Boer v. Snyder (2014), the law of the State of Michigan was challenged on the ground that it is prohibitive of marriage and joint adoption of same-sex couples. Judge Friedman ruled that the ban is a violation of the constitution and declared it unconstitutional.
Some US states allow religious groups to refuse same-sex couple adoptions
Legislation has been adopted under the Religious Freedom Restoration Act, 1993 (RFRA) by many states of the US. The legislation aims at exempting the adoption agencies from the applicable law of equal protection and refuse adoption to same-sex couples for protecting their religious beliefs. The exclusion leads to a decrease in the number of couples who can adopt a child and makes the adoption of children more difficult.
United Kingdom
The UK has also legalized adoption by same-sex couples. According to UK laws, anyone who is of the age of 21 years or above can adopt a child. It does not matter what the relationship status of the person adopting is. A single parent, married couple, a couple in a civil partnership, an unmarried couple can adopt a child.
England and Wales under the Adoption and Children Act, 2002 gave the right to same-sex unmarried couples to adopt a child. Labour Party, which passed some regulations illegalizing discrimination based on sexual orientation supported the act and that resulted in the Equality Act, 2010 which replaced all the previous laws on anti-discrimination with a single act.
South Africa
The rainbow nation, South Africa (former territory of the UK) endorses the rights of homosexuals but even after that around 72% of the population still interprets that same-sex cohabitation as something morally wrong.
In the case of Du Toit and Another v. Minister of Welfare and Population Development and Others (2002), a lesbian couple filed a case on authorities who discriminated based on married and unmarried couples and which denied joint adoption to same-sex couples. The court, in this case, held that the Child Care Act, 1983, is discriminating not just against the rights of same-sex couples but also the interest of the child. The court also said that an important pillar of African society is ‘family’ and everyone should be entitled to it.
Steps taken by the Indian government regarding adoption by LGBT couples
Even though the Indian government has taken steps to provide a family to abandoned children and for recognizing the rights of the LGBT community, these steps have a limited scope and our fundamental rights like the right to equality and right to life need to be expanded to include adoption rights of LGBT community either by the legislature or by the judiciary.
Central Adoption Resource Authority (CARA)
CARA is a governmental organization within the Ministry of Women and Child Development that regulates inter-country and intra-country adoption for both foreigners and Indian residents. Under the CARA guidelines, foreigners in same-sex relationships are prohibited from adopting children in India.
Transgender Persons (Protection of Rights) Act, 2019
Though the striking down of Section 377 of the IPC 1860 by the Supreme Court was evidence of state approaching to recognize the diverse families relationships but ‘The Transgender Persons (Protection of Rights) Act, 2019’ disappointed the LGBT community as it did not take into account the basic rights of transgender like dignity, bodily autonomy, surrogacy, adoption and it went against the NALSA judgment (National Legal Services Authority v. Union of India 2014). The Act did not give any kind of recognition to the family rights of same-sex couples.
Need to find a middle ground
For the battle of LGBT rights to be won, gay advocates and religious advocates need to find a middle ground. Both the groups are drawn to adoption and fighting for the welfare of abandoned children which is why there is a greater need for both the groups to understand each other. Only with the co-operation and support from both sides, there can be progression and more acceptance for same-sex couples and their right to parenthood in society.
Conclusion
People belonging to the LGBT community are still struggling to get parenting rights at the legal ground along with facing unacceptance from society. This is broadly because of religious views, some myths about parenting, and ignorance of their sexual identity. Though many countries have taken a progressive approach regarding this matter, there is still a long way to go. The world needs to understand the fact that anyone with the ability to provide a child with a secure, safe, and loving home should be given the right to adopt a child.
Juvenile delinquent refers to a person, who is below the age of 18 and has committed an offence/crime. Like other developed nations, juvenile delinquency is a serious problem in the United States. According to a report in the United States, 2.1 million youth who are under the age of 18 are arrested for juvenile crime during a single year. The report also establishes that the overall rates have been reducing over the past few years and approximately 1.7 million delinquency cases are disposed of in juvenile courts.
History of juvenile justice system in the United States
Initially, children convicted of any crime were sent to the same jail as adults. However, soon lawmakers and social activists realized that those jails were only making them more hardened criminals. To avoid the negative influences, separate institutions for children were developed. Early days juvenile institutions were based on the English Bridwell institutions. Those institutions were used for teaching life and trade skills. The aim behind this was to teach how to survive in society after being released from juvenile institutions. Later some other types of institutions emerged in the United States.
House of refuge,
New reformatories,
Separate institution for juvenile females.
Houses of refuge aimed at the reduction of youth and used indeterminate sentencing, religious activity, and apprenticeships in various trades. The houses were governed like a military model to improve order and discipline, but the houses were often congested and youth were overworked.
New reformatories, established in the late 1800s, were cottages and foster residences that were often placed on farms. The family-type institutions were prevalent, and hard physical labor was stressed. New reformatories suffered from the same problems that the houses of refuge did. Different juvenile institutions for girls evolved in the mid-1880s, and these concentrated on teaching household and child-rearing skills to girls.
Evolution of juvenile courts
In 1944 inPrince v. Massachusetts for the first time, juvenile courts were regulated under the doctrine of”parens patriae”. This suggests that the state could act as a parent. The juvenile courts now had the power to intervene whenever court officials felt the intervention was in the favorable interests of the juvenile. Any offense committed was secondary to the offender. Parens patriae was planned to deal with youth committing criminal acts, the discretion of this philosophy became increasingly broader and was constantly debated in court. Several pivotal cases ensued which helped the juvenile justice system evolve. Previously juveniles did not have the same rights as adults in court proceedings. A narrower range of rights was provided to them and few constitutional rights applied to them. Now it’s started to change. Although it is noteworthy that the rights of a juvenile vary from state to state, the U.S Supreme Court has ruled some rights in In re Gault, which must be followed by every state. They are enlisted below:
Rights of a juvenile
Probable cause
An officer who wants to search or arrest a child for violating such an act must have probable cause. If he doesn’t have any probable cause, constitutionally he is not competent to search or arrest the child. Even in court proceedings, it plays an important role. For juvenile offenders a probable cause hearing needs to be conducted within fifteen days from the date of the first appearance. The probable cause hearing allows the juvenile to assess the strength of the State’s case, to question the sufficiency of the evidence, and to find out the evidence for the adjudicatory hearing if probable cause is established. If there is no discovery of the probable cause, the application must be rejected.
Right to a phone call
The right to a phone call is another constitutional right for the juvenile accused. As per Miranda rights, a police officer is bound to allow the children to call their parents or attorney while he is in custody. If such authority did not allow him or her to do that, anything he or she will say to the police officer will not be admissible in court.
Right to attorney
Right to attorney added in the U.S constitution through the sixth amendment. As per the sixth amendment, every accused shall be present before the court through his attorney in every stage of the trial. It also provides that if any accused can’t afford an attorney, the government will appoint one attorney for him without any fee.
Right to notice of charges
Another constitutional right for a juvenile is to serve him or her a notice of delinquency. As per In re Gault’s decision, the authority is bound to provide him with a notice. If the authority didn’t provide him or her any notice of charges then the accused statement will not be admissible in court.
Right to confront and cross-examination
The person who is accused of an offense has the right to confront and cross-examine the witness. Though juvenile court proceedings are different from adult court proceedings, a juvenile can take privileges of this clause. The right to confront is found in the sixth amendment. As per confront clause
“In all criminal trials, the accused shall enjoy the right…to be confronted with the witnesses against him.” The clause was aimed at deterring the conviction of a defendant upon written evidence (such as depositions or ex parte affidavits) without that, the defendant had a chance to face his or her accusers and to put their innocence and truthfulness to test before the jury.
In Mattox v. the United States, the Supreme Court held three essential objectives that the confrontation clause was meant to serve:
To assure that witnesses would verify under oath and appreciate the serious nature of the trial process;
To permit the accused to cross-examine witnesses who testify against him; and
To allow jurors to assess the credibility of a witness by examining that witness’s behavior.
InLee v. Illinois, the Court held that the confrontation clause is one of the important constitutional shelters to improve fairness in the criminal justice system.
The privileges against self incrimination
Juveniles in court proceedings have the privilege to proclaim their Fifth Amendment right against self-incrimination. This tells that a minor cannot be forced to testify against himself or herself.
No right to jury trial
Most nations do not permit jury trials in juvenile delinquency cases. The few nations that do permit jury trials often restrict them to only specific cases.
The right to have charges proved beyond reasonable doubt
The U.S. Supreme Court has ordered that if a juvenile faces imprisonment or adjudication as “delinquent” as a result of juvenile court proceedings, then the state must confirm the charges against the minor “beyond a reasonable doubt.” If those penalties are not an issue, the state need only prove the charges by a “preponderance of evidence” standard.
Difference between juvenile system and adult system
The philosophy behind the system
The juvenile justice system tries to rehabilitate and help juvenile offenders to build their lives again and help them to move away from criminal activity. On the other hand, the adult system directs more on punishment and the assumption that you should have known better than to commit a crime. It often overlooks the chance for rehabilitation and focuses on how to hold you responsible for your actions.
Crimes and delinquent acts
Adults are charged for “committing crimes” while minors are charged for committing “delinquent acts.” If the delinquent acts are very severe, such as extreme crimes of violence such as murder, the court system may agree to charge the juvenile as an adult, in which case they would be tried in the adult criminal system.
Records and privacy
The juvenile justice system provides you with extra secrecy. The court makes boundaries for who can enter to see your records. Other adult court records, however, are accessible publicly. People can even come to watch your court proceedings if they want.
Holistic approach
In juvenile court, the magistrate will look at many aspects which might be of little importance in the adult system. This might include your household life, how you do in the academy, and any problems you may have. The method is to take a well-rounded look at you and what led you to court to seek out an outcome that will assure you do not come in court furthermore. In adult court, the magistrate only observes the legal aspects and facts of the case. While you may bring in outside factors to your defence, the court mainly looks at the legal aspects when making a judgment.
Brief discussion on international instruments
The United Nations Convention on the Rights of the Child, adopted in 1989, and the Rome Statute of the International Criminal Court, approved in 1998, have had a tremendous effect on the laws of many nations regarding juvenile justice. Their impact in the United States, however, appears to have been less. The United States is not significant to either of these actions and while American critics harshly condemn the reluctance of government officials in the United States to concentrate on these signed agreements, the statutes developed under the Rome Statute and the Convention appear to be referred to rarely in American courts. To be sure, limited cases can be found in which a United States judge substantively depended on these international treaties to resolve important cases in juvenile justice matters.
Magistrates in the United States do not, though, completely avoid these covenants. Few courts here have talked about them and, presumably, have been somewhat influenced by them as instruments reflecting customary international law. Still, American courts either adopt them only on peripherally related matters or conclude that because the United States has not ratified the actions, they are not binding on United States courts in either federal or state jurisdictions
Conclusion
The youth is a valuable asset for every nation and every nation must ensure that they have a safe environment to live in. For that reason, most nations around the globe do not treat juvenile criminals the same way they treat adult criminals. This is because teenagers below a specific age (that varies from nation to nation) are said to not have the mental maturity to fully realise the outcomes of what they are committing. It is deemed premature, excessive, and unfair to sentence the juvenile to imprisonment without parole as the juvenile may very well be rehabilitated. Since the age for mental maturity cannot be defined accurately, many nations have drafted their laws so that in cases of very severe offenses committed by minors they can still be tried like the adult’s system.
Depending on how the statutes of the nation are drafted and the role the media plays, public opinion becomes a crucial factor in determining the sentence for the juvenile. The most effective way is the Norwegian way; however, not all societies are developed. Many societies would prefer the deaths of their loved ones avenged and the only way to achieve that, while maintaining law and order, is to impose a strict penalty. The issue is whether the juvenile should be penalized or whether he should be rehabilitated. The answer to the issue lies in where the crime has been committed, the perceived maturity of the juvenile in that community, and the public opinion.
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:
An Agent essentially is a person hired by another person for carrying out certain acts on his behalf. But, hold on! It is not as simple as it sounds. Under the law governing agency, the relationship between two people is of a fiduciary nature, meaning, one person (known as the Principal) having power over another (known as Agent) hires that person to act on his behalf and reposes trust and confidence in him. Such a relationship may be formed with or without consideration (this is an exception to the rule that agreements sans consideration are void) depending upon the understanding between the Agent and Principal. To put it “legally”, an Agent is a person hired/employed to do any act for a Principal and is someone who is authorized by the Principal to deal with third parties on his behalf.
Agency vis-à-vis employment/work for Hire Contracts
I know you must be wondering that this is exactly what an employment contract or a work-for-hire agreement is. Well, the main point of difference is the degree of representation and delegation of work involved in all these three agreements. While an employee is technically a representative of his employer, he may or may not be authorized to act in the capacity of the employer. Similarly, in work for hire agreements, a person is hired for his services, his role is limited to the particular service asked from him, he neither represents the person hiring him nor does he have authority to act on his behalf. So there you go! Now that we have cleared the confusion, let us see what are agency agreements, their need, scope, and extent of liability of the agent and principal, so on and so forth.
Section 182: An ‘Agent’ is a person employed to do any act for another, or to represent another in dealings with a third person. The person for whom such an act is done, or who is so represented, is called the ‘Principal’.
Agency therefore consists of the following three elements:
i. Principal: A person who is significantly in a higher position than the other person and the one who employs the Agent.
ii. Agent: A person who has been employed to represent and act on behalf of the Principal.
iii. Third Party: Person/s with whom the Agent deals on behalf of the Principal.
a. Who is competent to become an Agent and Principal?
The standard requirements for parties competent to enter into a contract as provided under Section 10 of the Indian Contract Act are also applicable to persons to be competent to be a Principal and Agent.
Section 183: This section deals with who may employ an Agent. It lays down two requirements for a person to employ an Agent in the capacity of a Principal. They are as follows;
i. Majority – The Principal must be above the age of majority as per the law to which he is subject to, at the time of employing the Agent.
ii. Sound Mind – The Principal should be of sound mind at the moment of employing the Agent.
Section 184: This section states that any person can become an Agent even if he is a minor or of unsound mind. However, an Agent who is a minor or is of unsound mind cannot be held liable to/responsible towards the Principal.
b.Types of Agents/Agencies
The various types of Agents are classified as per the nature of work to be delegated by the Principal. Some of the most common types of Agents are as follows:
i. Sub-Agent: An Agent appointed by an Agent to sub-delegate acts.
i. Special Agent: Appointed for carrying out specific act/s only.
ii. General Agent: Appointed for carrying out all the acts which are delegated to him during the subsistence of the agency agreement.
iii. Broker: Acts as a middleman/negotiator between buyer and seller. Also known as a Commission Agent.
iv. Auctioneer: Acts as the holder of goods of the person who wants to sell them at a public auction.
Need for agent agreements and creation of agency
As is the case with any other form of agreement, an agreement between an Agent and Principal also holds a great amount of importance. To facilitate the effective delegation of work by the Principal to an Agent, a clear and unambiguous set of terms and conditions is a must.
Why would one need an agent/agency agreement and how is it created?
Now, you would say why do I need a specific agreement for telling someone to do my work? Well, the answer lies in the legal maxim “Qui facit per alium facit per se” meaning, “He who acts through another does the act himself”. Simply put, when a Principal hires a person as his Agent, all the acts carried out by the Agent are assumed to be carried out by the Principal and any liability arising out of such acts is that of the Principal alone.
Our Indian law recognizes an Agent-Principal relationship even if it is not in writing. Such a relationship may be formed either through express or implied agreement, by ratification or by necessity.
i. Express agreement may be one in writing or verbal.
ii. In Implied agreements, the conduct or behavior of the parties and the surrounding circumstances may determine a relationship of agency.
iii. Agency by Ratification means that consent has been given to an act already done by a person who had no previous authority to do the same or has acted beyond the periphery of a consented act.
iv. Agency by Necessity implies exactly as it sounds; act done in a situation of emergency without any express authorization. Here, the necessity has to be real and the circumstances should be such that when they arose, there was an immediate need to do something and this immediacy was such as to render it impossible for the Agent to communicate it to the Principal.
However, express agreements are said to be the safest form of agency agreements. This is because the parties are bound by the terms of the agreement and can lay down the extent of rights and liabilities expected from the agency.
a.Important elements of an Agent/Agency Agreement:
There are certain key elements of a Principal-Agent Agreement which define the rights and duties of both the parties towards each other. They are as follows:
Duties of an Agent:
i. The first and foremost duty of an Agent is to conduct the business of the Principal as directed by the Principal. The Agent should carry out the work delegated by the Principal responsibly.
ii. The Agent has the duty to carry out the business of the Principal with such skill and diligence that is possessed generally by persons engaged/conducting similar business.
iii. The Agent is bound to render correct and proper accounts to the Principal whenever asked for.
iv. The Agent is under a duty to communicate and take instructions from the Principal in the event of any difficulty.
v. The Agent is bound to pay the Principal all amount received by him through the business delegated to him by the Principal, subject to the deductions as agreed between the parties.
Rights of an agent:
i. The Agent has a right to receive such sum of monies for expenditure incurred by the Agent while conducting the business along with proper remuneration for acting as an Agent.
ii. The Agent is entitled to retain all goods, property, papers etc. to himself until the Principal clears all his dues payable as commission and services rendered by him to the Principal.
The above rights are subject to a contract to the contrary and as such, they can be changed as per the terms of the contract.
Duties of Principal:
i. It is the Principal’s duty to indemnify the Agent for the consequences of all acts carried out by the Agent while exercising the authority conferred upon him by the principal.
ii. The Principal is under a duty to compensate the Agent for any injury caused to him due to the Principal’s neglect or want of skill.
These duties are non-negotiable and not subject to any contract to the contrary. Hence, the same cannot be avoided.
b.Termination or Revocation of an Agency Agreement:
An Agency Agreement stands terminated or revoked in the following circumstances:
i. when the Agent’s authority is revoked by the Principal; or
ii. when the Agent has renounced the business of Agency; or
iii. when the purpose/business for which the Agent was appointed is complete; or
iv. when either the Principal or the Agent dies or becomes of unsound mind; or
v. when the Principal has been declared insolvent under any law for the time being in force dealing with insolvency and debtors.
Conclusion
The law surrounding Agent-Principal Relationship aims at providing security and unambiguity in the delegation of work and authority to carry out business. Although an Agent Agreement is similar to a standard employment contract, the nuances regarding the nature of delegation and responsibility are the distinctive factor that draws a fine line between the two. Agent-Principal Agreements lay down a foundation and bind the parties to fulfill their respective duties and acknowledge each other’s rights at the same time. These agreements provide clarity as to the nature, duration, and extent of authority to be delegated and hence, give structure to an otherwise extensive scope of such relationships.
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Labour Laws are the way a nation’s government provides social as well as economic justice to the workers working in various establishments within their jurisdiction. It is these legislations that are meant to protect the rights of the workers, ensure their wellbeing, safety and put certain obligations for employers to comply with the laid-down standards. They play an important role in integrating the interests of workers, employers and trade unions. This article throws light on the newly formed Labour codes & subsequently how they have been received by the people. Discussion with respect to some areas of concern and the point of view of different stakeholders have also been elaborated.
The archives of Indian labour laws date back to the era of British rule in India. Needless to say, offering due consideration to the British economy was one of the main objectives of shaping labour laws in India. The first legislation in this area of law was meant to govern the Indian workers which was the Factories Act that came in the year 1883. Through this law, we received the first clause of no. of work hours to be limited to eight hours, the abolition of child labour & putting across limitations on women for late night employment in view of their safety, the commencement of provisions of overtime wages for work/tasks completed over and above the hours specified. Before its arrival, the Indian labour market had seen the ill-effects of an unregulated market as workers were exposed to all kinds of exploitation and were perceived no more than cogs in the Industrialisation wheel.
Present scenario
Coming back to the present era, the labour laws however developed with a common good for all have become very archaic and redundant and not quite abreast with the latest socio-economic standards especially when we are at a phase where the older generation has been replaced and new blood in the form of Generation Z is already present at the workplace. There have been a few of the legislations that were amended such as The Workmen’s Compensation Act, 1923, The Maternity benefit Act 1961 and many others in the recent past. But by and large, there was a requirement to make the laws compatible with the current needs of the labour market.
Keeping these things in mind, the current government has brought in labour reforms through streamlining of almost 44 labour laws into a set of 4 codes as mentioned below: –
The Code on Wages, 2019 includes all employees in organized as well as unorganized sectors with an intent to regulate as well as properly define wages and payment of bonuses for all categories of employment and aims at maintaining equal wages paving the way for benchmarked minimum wages for different regions for workers performing work of similar nature in every industry, trade, business, or production unit. The code will also help smoothen the ease of doing business.
The Code on Social Security, 2020 unites 9 laws related to Social Security Benefits and Maternity benefits to workers in organized as well as bringing the unorganized sector workers into its fold as well.
The Code on Industrial Relations, 2020 pursues an amalgamated Industrial Disputes Act, 1947, Trade Unions Act 1926, Industrial Employment (Standing Orders) Act, 1946. This Code aims to improve the business setting in India by reducing the labour compliance & disputes-related issues of industries.
Although none of the above codes have yet been implemented, there is a general feeling among the masses that the codes which were passed in both Lok Sabha as well as Rajya Sabha lack proper due diligence and are without necessary consultations of different stakeholders. Also, it is felt that the codes are biased towards employers as compared to the workers and Trade Unions. Normally all matters in an Industrial setting are decided based on tripartite consultations. The Labour codes were passed by both the Houses in a haste in September 2020 while opposition parties were busy protesting for the two Farm laws and not present in the house.
In a developing country such as India, the majority of workers would be categorized as unskilled, unempowered and also, immobile. In the first two decades of economic liberalization which took place in 1991, the availability of skilled and unskilled labour enabled India’s fast-paced economic growth. Now, with growth flattening out and unemployment on the rise, the upsurge in the supply of young labour is a cause of massive distress to the political economy of reforms.
Labour codes : areas of concern
When we talk about the aforementioned 4 codes, it is the Code on Industrial Relations 2020 that has particularly come under the scanner since it has certain draft rules that somewhat change the relationship between employers and workers. The said code re-evaluates the Industrial Employment Standing Orders Act 1946 that concerns establishments that employ more than 100 workers. The main objective of this code is to create a sense of uniformity in the working conditions of the different industrial establishments and employers can’t violate the workers’ rights and do something untoward which is against the interest of their workers. Also, it is made with the intent to enhance productivity levels and provide a healthy working environment for workers.
This new code however significantly reduces the protection that is offered to the workers and makes them vulnerable to arbitrary retrenchment, lay-offs. Now the employers are mandated to take permission from the appropriate government in an establishment that has more than 300 workers which were earlier 100. This is a cause of distress among the Trade Unions and workers who feel that they are imprudent and this move has given a high hand to employers to promote a regime of hire and fire. On top of this, employers have the flexibility to issue standing orders on matters which may not have been prescribed in the schedule.
In addition to this, no worker can go on strike without complying with one or more of the following provisions-
giving notice to its employer within a period of 60 days before the strike;
within 14 days of giving of such notice;
before the expiry of date of strike as specified in the notice;
during the pendency of conciliation and/or arbitration proceedings;
after 7 days of the conclusion of conciliation proceedings and/or after 60 days of the conclusion of arbitration proceedings;
during any period of settlement or award is in operation as prescribed under settlement & awards of Industrial Disputes Act 1947.
Earlier the above-mentioned provisions were only applicable to public utility corporations however now the provisions are applied to all establishments.
The Code of Wages 2019 specifies that employers have to bring about a change in their wage/salary structure with higher Basic & Dearness Allowance, thereby increasing the corresponding social security benefits. This step, however, will, unfortunately, reduce the take-home salaries of the workers. The state government’s minimum wage rate which is usually set based on the skill set of the worker will be aligned to the National Floor wages bringing a sense of parity, shortened time imposed on employers to settle what they owe to their ex-workers who have attrited from the organization, penalties imposed and prosecution for Non-compliance of prescribed rules as specified by the appropriate government etc.
The codes have redefined the terms employee, employer and worker as well as wages have broadened the definition to meet the requirements of present circumstances and have more individuals into the fold. The workers however feel that the definitions as specified in the codes are confusing and implausible. The contract worker becomes the worker of both the principal employer and the contractor. Hence who is the “employer” is ill-defined. It will not be possible for such workers to pinpoint the responsibility of the “employer” on any one person. Even the definition of “employer” is internally self-contradictory. The employer may be the person who employs or the person who has ultimate control of the affairs — which may not be the same legitimate person.
Trade union & worker’s view
Trade unions have noisily opposed these reforms on the grounds that they undermine the hard-won rights of workers and will lead to greater exploitation of workers and the government is deciding on this unilaterally by confining wages to the bare minimum, plummeting social security benefits, authorizing the engagement of contract labour for any kind of work, easing norms for firing workers, bracing down on trade union rights and sculpting down labour inspection.
Government’s view
It has been hyped that the reforms are necessary to bring better flexibility to employers, smoothen ease of doing business, emphasize the usage of technology and concurrently, these will lead to greater foreign investment. It has also been claimed that changes to the labour law inspection regime are necessary to free employers from ‘the tyranny of the inspection raj’. On account of the stiff resistance of the trade unions, the Central government feels that they have been unable to effect the changes at the pace that they would have liked.
Conclusion
Seeing what the government, as well as the Trade Union/s of workers, feel about these codes, there is a whole lot that can be done to transition smoothly to the new labour codes with the help of phased as well as a planned dialogue between the parties. Efforts must go in areas of assessing the overall financial impact of changing the wage structures, advantages that will be enjoyed by the workers especially when the social security benefit percentages will be increased thereby promoting a sense of savings driven approach and not just living-in-the-moment with a bigger take-home salary, defining the employees as well as employers across different cadres to make things more streamlined by and large for all & creating a stronger compliance net which will disallow employers to take due advantage of their workers and give a chance for the workers to be heard.
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This article is written by Kavana Rao from Symbiosis Law School, Noida. In this article, we will understand if abbreviations can be trademarked.
Table of Contents
Introduction
The external appearance of a brand or a product is its primary recognition. Customers will identify the brand or company first by its brand and hence trademarking is very important for brand recognition. With many companies and entities in the market, there is bound to be repetition and confusion among the consumers with respect to the brand and the product, therefore, trademarking will help avoid this confusion and further avoid legal conflicts and lengthy litigation.
A trademark is a logo, which is used by a manufacturer to distinguish their goods or services from other manufacturers. The logo may be in the form of a letter, word, number, symbol or design. Words and pictures are the most common forms of trademark, but other unique signs can be registered, so long as they are capable of being represented graphically. For example, designs that have successfully been protected as trademarks (e.g. the Coca-Cola bottle) are colours (e.g. the yellow colour of Yellow Pages), family names (e.g. Louis Vuitton) and even smells and sound.
What is an abbreviation
An abbreviation is a shortened form of a word or phrase. They are also known as acronyms, where acronyms are abbreviations of longer words with the initial letters or group of letters in a set phrase. Some examples for abbreviations can be BMW which stands for Bayerische Motoren Werke, which translates to Bavarian Engine Works Company.
Can an abbreviation be a trademark
Section 2(m) explains ‘mark’ under the Trade Marks Act, 1999 as any device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or combination of any kind. As per this definition, abbreviations are a type of trademark and thus must be protected from infringement, but there are certain limitations. Abbreviations or acronyms cannot always qualify as a trademark. For an acronym to be treated as a trademark, it must essentially comply with certain factors
It must not be descriptive of the kind of product, packaging, etc.
The consumers must not be able to associate it with the products of others, and therefore the abbreviations must also be prominently different and not generic.
It must be filed in a separate application after the registration of the name.
Section 9 of the Act, defines certain absolute grounds for the refusal of registration. They are:
If the mark lacks distinctive character and cannot be distinguished from others’ goods or services
If the trademark consists of marks or indications which describes the kind, quality, intended purpose, values or geographical origin or time of production or other characteristics of the goods or services
If the marks or indications have become customary in the current language or in the established routine of trade
If the abbreviation or acronym falls under any of these grounds, then the abbreviation or acronym can be denied registration.
Can it be infringed
As per Section 29 of the Trade Mark Act,1999 a registered trademark can be infringed by someone who is neither a registered proprietor nor a person who has been permitted to make use of the trademark and using it in the due course of trade will be held as an infringement of the trademark. In addition to this, it will also be known as infringement if a mark resembles the registered trademark and resembles the goods and services covered by such registered trademark. Lastly, it would also be held as an infringement of trademark, if a person used a registered trademark as his trade name or part of his trade name or name of his business concern or part of the name of his business concern.
Remedies available in case of infringement
Criminal remedies
Section 103 states penalties for applying for false trademarks, trade descriptions, etc. If there is a contravention of the trademark of any individual or entity, then the guilty person will be subjected to a period of imprisonment for a period of six months or is liable to pay a fine that may extend up to fifty thousand rupees.
Section 105 defines punishment for the second or subsequent offence under Section 103 and 104. Under this Section, the guilty will be subjected to imprisonment for a term which will not be less than one year and which may extend for a period of 3 years and with a fine which will not be less than one lakh and which may extend to two lakhs.
Civil remedies
Injunctions- To protect the interests of the owners of intellectual property rights, the courts can issue an injunction and direct customs authorities to withhold the infringing material/shipment or restrict its disposal in any other way.
The aggrieved party can claim damages because the infringement of the trademark led them to suffer losses in their business or claim accounts of profit, delivery of the infringing goods for destruction.
Section 135 of the Trade Marks Act, 1999 identifies the Anton Piller Order which prevents the defendant from taking off assets from the court’s jurisdiction. Under this Section, the court prevents the goods or materials that are infringing by ordering to seal the concerned goods or materials.
Therefore, under civil remedies, Courts either order for the grounding to the infringing goods or materials or make the defendant pay for the damages caused to the plaintiff.
Administrative remedies
The different ways of carrying out administrative remedies are by correcting the trademark which resembles the trademark that had previously been registered. Another administrative remedy that can be availed, is keeping a check on the trade activities of the goods that consist of an infringed trademark.
Case laws
Superon Schweisstechnik India v. Modi Hitech India Ltd.
Facts
In this Superon Schweisstechnik India v. Modi Hitech India Ltd(2018), the High Court of Delhi spoke on the issue of antonyms or abbreviations of words being used as trademarks of the goods being sold, techniques being adopted or the materials being used.
The plaintiff was operating a business related to the repair and reclamation of welding electrodes. The company’s trademark was “ SUPERON”. They also used the term “ VAC PAC” which described the electrodes that were vacuum packaged. The defendant also used the term “ VAC PAC” which also meant vacuum packaged, along with their trademark “GMM/arc”.
Contentions of the parties
The plaintiff argued that “ VAC PAC” was a term created by them and because of its maximum usage and over a long period, that term had gained a secondary meaning which caused the public to believe that the products having the term “ VAC PAC” was a part of the plaintiff’s company. The plaintiff also argued that the trademark had a distinctive and unique get up, set-up, and lettering style.
Findings of the Court
The Court ruled in favour of the defendant. It observed that the term was a description and an indication of the packaging style used by the company.
Modern Optics, Inc. v. Univis Lens Co.
The issue, in this Modern Optics, Inc. v. Univis Lens Co (1956), was whether the letters “CV” was descriptive of the goods sold. The court observed that the mark was descriptive if it described and explained the function or use of the goods to which it was applied to. In the present case, “CV” refers to ‘Continuvis Lenses’. The registration was opposed by a competitor who asserted that the term “Continuous Vision” and the abbreviation ‘CV’ are commonly used in the business to describe multifocal lenses.
In the present case, the Court allowed the appeal and held that the abbreviation ‘CV’ is not a recognised term for multifocal lenses. Thus, the antonym was protected under the trademark laws.
Conclusion
To sum up, the abbreviations must abide by the conditions such as not being descriptive of the services that the individual or the entity provides and having a meaning that is different from the generic descriptive terms that they represent. The abbreviations must be such that the customers or public must not confuse it to be synonymous with a particular product. If these conditions are satisfied, only then abbreviations can be protected under the Trade Marks Act and by the civil and administrative remedies.
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This article is written by Manasvee Malviya, from the University of Petroleum and Energy Studies, Dehradun. This article deals with the misinformation spread in India during the pandemic and the role of the World Health Organisation.
Table of Contents
Introduction
The COVID-19 pandemic has left a haunting repercussion on the entire world. The world is still fighting against the virus. It is not only the governments’ responsibility to slow the spread of the virus, but also it is the responsibility of every individual. Every action counts. In history, COVID-19 is the first pandemic in which technology and social media are used to keep people safe, informed, productive, and connected. Social media has played a significant role during the pandemic, however, social media has also led to the spread of misinformation and fake news. The World Health Organization (WHO) has defined this phenomenon as infodemic. In India, the problem of misinformation and fake news is notable and a major problem. The government has the responsibility to manage and prevent the spread of misinformation without violating the freedom of speech and expression. This article will discuss the spread of misinformation and fake news amid the pandemic and also discuss the infodemic management system by WHO to control the misinformation/fake news in health emergencies.
Misinformation and fake news in India
Misinformation has affected India, resulting in obscene health care and public health information. Misinformation is referred to as unintentional misleading of information whereas fake news refers to intentional misleading of information that can be true or false. The internet is the most powerful medium and has positive as well as negative impacts. The internet allows people to fight information poverty at various levels, spreading awareness, participating in debates, raising concerns, changing the stereotypes, and most importantly, it gives freedom of speech and expression under Article 19(1) of the Constitution of India during the pandemic. On the other hand, it has also led to the spread of misinformation and fake news among the people.
According to Microsoft’s 3rd Digital Civility Index on the safer internet day, Indians were most likely to encounter fake news and misinformation. India’s most popular messaging platform- WhatsApp allows communication. As per the parent company of WhatsApp, the users roughly send around 65 billion messages every day and more than 2 billion minutes of video calls and audio calls on a daily basis. It would be foolish to say that all the messages exchanged on the messaging app are relevant, important, useful, or verified. The internet brings the good, the bad and the ugly with itself. It is the reflection of society. The conversation that takes place on the internet is the reflection of the conversation that people intended to have offline. However, offline conversations have geographical limitations and take place in relatively small groups, whereas online conversations have the advantage as there is no geographical barrier and no limitation in the number of people. Social media has one major drawback, it is blamed for initiating violence and spreading fake news, though it is unfair to blame social media for spreading or initiating violence, hatred or fake news. Even before the development of social media violation took place, it can’t be denied that social media gives anonymity or geographical distance to be unaccountable.
Misinformation problem in India
There was a time where smartphones and wireless internet were rare and texting was chargeable. Yet few people use to forward long messages with a statement written at the end – “forward this to 10 more people for better health or good luck. If you don’t forward the message, it will bring bad luck”. Whereas there are pictures of India by the International Space Station on Diwali forwarded in almost every group.
It is not necessary that every message will lead to misinformation and not everyone is forwarding the messages and not everyone is creating a thread of fake news. There are certain forwarded messages which have led to offline attacks, such as rumours about love jihad, consumption of beef, and child abduction or targeting particular religion or community. Misformation and fake news have not only polarised the communities but have provoked the people and the communities to take the law into their hands. Messages forwarded on the social media platforms have no validity as from where they have been initiated.
In the first few weeks of the COVID-19 cases reported in India, social media was flooded with false cures, which affected people emotionally, and also resulted in the death of many people. In Indore, a team of health workers went to identify family members of a 65- year old man who died of COVID-19 in the early phase of the pandemic. The team of health workers were beaten after a video went viral, claiming the health worker is taking healthy Muslims and infecting them with the virus. In India and around the world, not only WhatsApp leads to misinformation or spreading of fake news, but other platforms like Facebook, Twitter, Instagram and others equally participate in sharing misinformation and fake news. People sharing information don’t realise the repercussions of the misinformed and fake content forwarded by them.
WHO and infodemic
The World Health Organization defines infodemic as too much information available during a disease outbreak. Such information includes misleading or false information in the physical and digital market. The misleading information results in tension, confusion and risk-taking behaviour that can harm human health. Misleading information or fake news engenders distrust in the health authorities at every level. Infodemic lengthens the outbreaks as people are unaware of what they need to do for protecting their health and peoples’ health around them.
When the entire population was sitting at their homes, the only source of information was through the internet. The growing digitalization amidst the pandemic had led to the expansion of social media and internet use, ultimately resulting in the rapid spread of information. The information spreading has its pros and cons, it can be useful to fill the void gaps with information but can also amplify the harmful messages. The pandemic has resulted in morbidity and mortality and has a negative impact on the mental health, physical health and social well-being of the people, thus, the member states have recognized the need for an infodemic management system.
Infodemic management
Infodemic management refers to the systematic use of evidence-risk based analysis and approaches to manage the infodemic and alleviates the impact of misinformation on health behaviour during the pandemic or health emergencies. The purpose of infodemic management is to promote good health and update people with the right information to combat stressful situations during pandemics or health emergencies. The infodemic management system practices four types of activities that ensures good health and defeating misinformation available on the internet:
Listening to the concerns and questions of the community,
Promoting health expert advice and understanding of the risk,
Building resilience to misinformation, and
Empowering communities to take positive actions.
The recognition of the need and importance of infodemic responses through the member states had resulted in the formation of partnerships across all the societies to respond to the COVID-19 infodemic with the World Health Organisation. Also, the WHO is developing country tools for infodemic management that can be used to prevent misinformation now and in the future. Member states which support the need and formation of the infodemic management system are Australia, France, Chile, India, Indonesia, Latvia, Lebanon, Mauritius, Mexico, Georgia, Norway, Senegal, and South Africa. The World Health Organization is working with the United Nations, media, the technology sector, and other societies to understand the concern, the extent of misinformation and providing rightful information to the people.
The WHO is working with the member states and the United Nations to strengthen the scientific discipline of infodemiology. The aim of WHO is to construct and provide sustainable tools to prevent and overcome the impacts caused by misinformation/ infodemics. Members states at the regional level, as well as the WHO, has taken few initiatives:
An infodemic cannot be eliminated but can be managed. The World Health Organization has appealed to the member states to adopt, develop, validate and evaluate the evidence-based measures to detect, prevent and respond to the misformation. The first WHO Infodemiology conference was held from June 29 to July 21, 2020, with the objective to understand infodemic management and identify the tools to prevent and control infodemics with the help of current examples.
Responsibility of the government and WHO
In India, there is no specific provision that deals with misinformation or fake news. However, certain provisions criminalize the form of speech that may be relevant to fake news or online social media content under the Indian Penal Code, 1860. To combat misinformation, fake news, rumours, and disinformation, the government plays a vital role. At present, to fight misinformation against the pandemic, both the government and WHO have the responsibility to defeat misinformation with information. The WHO has already taken the initiative to prevent the spread of information. India has shown its support with the WHO in the infodemic management system. The government has a responsibility to prevent misinformation, which can be done only by educating and immunizing the public against the misinformation. The multiplication of misinformation even in a best-case scenario can have serious repercussions. For example, In Iran, there was a message circulated on social media that drinking methanol alcohol will cure covid and as a result, hundreds of people died. Another example, in the United States a man died after drinking a fish tank cleaning product containing chloroquine- because of the messages forwarded that it is a remedy for the virus.
Infodemics have already taken place in the past epidemics but this is the first pandemic in history, where the social platform and technology is used to keep people safe, as mentioned previously. Social media is the most powerful means to educate the public regarding the pandemic as well as creates distress situations among the public. According to the WHO, English-language misinformation is the largest category of misinformation available across the world. As there is a bulk of information available across social media, the public starts to question the policies and actions taken by the government, the WHO, and the UN. The authorities are working with social media and technology companies to curb the spread of misinformation on their platforms. The WHO is working with more than 50 companies (like- WhatsApp, Facebook, Google, Youtube) to ensure that messages from the authorities and official sources appear first when the public searches for any information related to COVID-19.
Another measure taken by the authorities is the social listening approach. In India, the government ordered the telecom firms to make 30 seconds of audio as the caller tune of mobile phones to create awareness among the public. However, not everyone can access the internet, therefore, creating awareness through a means which is accessible to everyone- caller tunes are required.
Misinformation originates in communities and spreads through conversations among family and friends. Incorporating community voices to create awareness and spread fact-based information. The WHO has created a page of Mythbusters, featuring the correct information and deals with misconceptions about COVID-19. Therefore, the government and the WHO has taken the following steps to fight against misinformation;
Producing accurate information and facts to the public.
Partnering with businesses like WhatsApp, Facebook, and other telecommunication companies to spread awareness at a large scale in different languages.
Working with media and journalists
Coordinated with the United Nations to mobilize civil society organizations around the world, associated with the UN.
Conclusion
It can be concluded that the problem of misinformation is not going anywhere, the messaging platforms can’t be cleaned from all the misinformation and fake news overnight. The problem lies with the lack of education and the ability to question the source of information. India has suffered a lot due to misinformation and fake news, and yet continues on the same path. The World Health Organization and the member states have taken measures to deal with the infodemic of misinformation. Fake news spreads more easily than the coronavirus. Infodemics is an excessive amount of information available about a problem, which creates difficulty in identifying the solution. The excess information available leads to the spreading of misinformation, fake news and rumours during health emergencies. The Director-General of WHO said, “ We’re not just fighting an epidemic; we’re fighting an infodemic”.
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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This article is written by Shashwat Kaushik, from CCS University. The accompanying article supports the historic and legal aspects relating to nuclear weapons and international treaties.
Table of Contents
Introduction
The dropping of nuclear bombs by the United States on Hiroshima and Nagasaki in Japan in 1945 carried untold distress to humankind as an entire and the Japanese specifically. Hundreds and thousands of individuals were killed, injured, and debilitated. There is no obvious figure of the dead, furthermore, injured. The nuclear bomb murdered around 2,37,000 individuals in Hiroshima alone, either directly or indirectly through its outcome, which included radiation infection, consumed wounds, and cancer. The loss of life by the nuclear bomb impact at Nagasaki was around 80,000. The United Nations has additionally assessed the passings to be around 3,00,000 in the two places.
Nuclear weapons – the end of the human race
Nuclear weapons couldn’t make a difference between soldiers and non-warriors. They forced sufferings of the most loathsome kind on individuals. The effect of the nuclear bomb, didn’t only affect the people’s lives there but their future generations were affected with some or the other kind of disease or disorder.
There appear to be two significant purposes behind the United States to have utilized nuclear bombs: (I) to compel Japan to give up and end World War II, and (ii) to build up its matchless quality in the force game. Despite the reasons, the United States couldn’t be justified in utilizing nuclear bombs, as the aggregate effects of the impact, the firestorm, and the radiation made it a profoundly risky demonstration of an uncertain magnitude. It involves extraordinary fulfilment that over the most recent 75 years, no nuclear weapon has been utilized by any State. Nonetheless, the desire to get nuclear fit has proceeded among States. A portion of the States fabricated nuclear weapons and stored them, some led nuclear weapon tests, some multiplied nuclear innovation and some modernized their nuclear armories to get “new military limits” and to bring down the “edge for their front line use”. Since 2006, North Korea has directed six nuclear tests to make itself a nuclear-capable state. As of May 2020, there are 13,410 nuclear weapons moved by 9 nations: Russia–6,370; US 5,800; China–320; France–290; the United Kingdom–195; Pakistan–160; India–150; Israel–90; and North Korea–35. It is significant that when the Cold War was going on in 1986, this number was near 70,300.
It is likewise important that Ukraine, Kazakhstan, and Belarus repatriated the use of nuclear weapons, which came into their ownership on the deterioration of the Union of Soviet Socialist Republics. South Africa destroyed its Nuclear weapons singularly, while France and the United Kingdom additionally took steps to limit their nuclear weapons. However, the previously mentioned nine States keep on having a desire to hold their nuclear weapons. The idea of nuclear demilitarization isn’t to destroy nuclear innovation, as the innovation is likewise needed for serene purposes, such as to produce power, for clinical and mechanical purposes, and so on. Extensively talking, nuclear demilitarization is essentially “focusing the nuclear weapons”. Further, nuclear demilitarization isn’t simply restricted to the end of nuclear weapons, yet additionally to the creation of “weapons-grade uranium”.
There is a significant issue of “nuclear psychological oppression”. A nation like India, which imparts its line to China and Pakistan, should be wary. While both, China and Pakistan, are nuclear forces, Pakistan is additionally a State infamous for advancing cross-boundary psychological oppression. There is consistently a worry that the terrorists may get ownership of nuclear weapons. India, consequently, must be watchful in such a manner. Notwithstanding, if there is complete nuclear demilitarization, the issue of nuclear psychological warfare will likewise come to an end.
International treaties
Partial Test Ban Treaty (PTBT)
The deal restricting nuclear weapon tests in the environment, in outer space, and underwater called the Partial Test Ban Treaty was endorsed on 5 August 1963 and came into power on October 10, 1963. The United States, the United Kingdom, and the USSR were alluded to as the “First Parties” under the PTBT. The chief point, as announced by the gatherings in the Preamble, was to accomplish a concurrence on complete nuclear demilitarization at the most punctual under an arrangement of severe worldwide control. Further, the gatherings looked for that there ought to be a finished discontinuance of nuclear weapons test blasts.
The PTBT is a short arrangement consisting of only five Articles. Under PTBT, the Parties attempted that they will disallow, forestall, and will not complete test blast of nuclear weapons at a spot which is under its control or purview –
either in the environment or past its air limit at a spot which may incorporate space;
underwater which may incorporate regional oceans just as high oceans. Such a test blast is too restricted for the parties in a climate on the off chance that it is probably going to cause radioactive trash outside its regional limits. The PTBT, along these lines, precludes nuclear weapon test preclusion just in climate, space, and underwater. It doesn’t preclude such testing underground. It is for this reason that it is called the ‘incomplete’ test ban treaty. As previously mentioned, the PTBT is the primary multilateral deal to control the nuclear weapon test blasts. Although it doesn’t boycott nuclear weapon test blasts, it certainly alludes to the point of accomplishing nuclear demobilization. In this manner, the PTBT prepared for the worldwide local area to proceed with the target of prohibiting nuclear weapon testing totally and at last accomplishing total nuclear disarmament.
The Non-Proliferation of nuclear weapons (NPT)
After PTBT, another deal, to be specific the Treaty on the Non-Proliferation of Nuclear Weapons was received in 1968 to forestall the expansion of nuclear weapons. The NPT accepted that the expansion of nuclear weapons would truly upgrade the threat of nuclear conflict and embrace compelling measures toward nuclear demilitarization. It was moreover wanted by NPT that endeavours ought to be made to finish the assembling of nuclear weapons, liquidation of the current reserves, furthermore, the end of nuclear weapons. This ought to be due to the incompatibility of an arrangement that may accommodate absolute demobilization under a global arrangement of control that is powerful and strict at the same time.
The NPT prohibits the use of nuclear weapons. Not just that, the NPT too restricted nuclear weapon State Parties from helping, empowering, or prompting non-nuclear-weapon States to gain or make such weapons or gadgets in any way. It is additionally prohibited for any nuclear weapon state gatherings to make non-nuclear weapons state oversee the aforementioned weapons or devices.
A comparable commitment has additionally been made by the NPT for non-nuclear-weapon State Parties. They likewise attempt not to get the transfer of nuclear weapons/other nuclear hazardous gadgets or their control, straightforwardly or by implication. They further attempt not to fabricate/get/look for/get any help with the assembling of nuclear weapons. Further, they additionally embrace “accept safeguards” as gone ahead by the International Atomic Energy Agency.
The natural right of all to foster exploration, creation, and utilization of thermal power for serene purposes will stay flawless under the NPT. The NPT not just commits the Parties to forestall nuclear expansion yet additionally seeks after arrangements to accomplish nuclear demilitarization. Article VI makes it mandatory to finish the nuclear weapons contest at the most punctual and the nuclear demobilization. For this reason, the Parties are needed to haggle on viable measures following some basic honesty. They are needed to seek after the exchange on a demilitarization arrangement giving for a worldwide arrangement of control that is compelling and exacting at the same time.
Article VI commits all Parties whether they have nuclear weapons or not. It doesn’t set out a particular time limit for finishing nuclear weapons contests. Further, this arrangement might be perceived as “considering the commitment as one of erga omnes nature”.
To guarantee total nuclear demobilization in regions, states are qualified to conclude treaties at regional premises. The NPT doesn’t influence the privileges of States in such a manner. This is very sensible because the objective of complete nuclear demilitarization is to be accomplished internationally and for this reason, States ought to be urged to make their regions nuclear weapons-free. All treaties on nuclear demobilization ought to be empowered or promoted by the whole worldwide community, with the goal that different regions may likewise take the measures of disarmament. Opened for signature in 1968, the Treaty came into power in 1970. On 11 May 1995, the Treaty was extended indefinitely. A sum of 191 States has joined the treaty, including the five nuclear-weapon States. A larger number of nations have confirmed the NPT than some other arms limit and abolition agreement, a demonstration of the Treaty’s importance.
Comprehensive Test Ban Treaty (CTBT)
The CTBT came into effect on 10 September 1996. It boycotts “all nuclear blasts” regardless of whether for “military” or for “peaceful purposes”. The CTBT noticed the yearnings communicated in PTBT to try to accomplish the discontinuance of all test blasts of nuclear weapons forever. Further, emphasis is put forth on the need to make persistent attempts for the decrease of nuclear weapons, remembering a definitive objective that those weapons must be wiped out from the Earth. It is additionally underscored that there is a need for complete nuclear demobilization which ought to be done under global control which is severe and viable. It is additionally expressed in the Prelude that the nuclear testing can be finished by closing a ‘far-reaching nuclear test boycott arrangement’ which is widespread and successfully obvious simultaneously
The humanitarian initiative for nuclear disarmament
The helpful effect of nuclear weapons has progressively drawn consideration. The 2010 NPT Review Conference’s last report communicated worry about the compassionate results of any utilization of nuclear weapons. An alliance of state parties and common society bunches kept on pushing this issue, bringing about three global gatherings on the helpful effect of nuclear weapons in Oslo, Nayarit, and Vienna, where conversations about the prohibition of nuclear weapons were held. The third meeting in Vienna created the Humanitarian Pledge (earlier called the “Austrian Pledge”), which more than 100 nations have upheld. The assertion accentuated that nuclear weapons ought to never be utilized “under any conditions.” The nuclear states didn’t take an interest in the initial two gatherings, however, the United States and the United Kingdom sent delegates to go to the third meeting in Vienna. Another gathering of state parties, primarily composed of NNWS who depend on the U.S. expanded nuclear prevention, has pushed an elective compassionate promise that is less broad. Because of the philanthropic drive, the five NPT-perceived NWS started the alleged “P5 step,” asserting that they mean to keep looking for progress on the bit by bit way to deal with nuclear demobilization rather than expecting to dispose of nuclear weapons inside a particular period. The P-5 states have held seven meetings to expand exchange and straightforwardness in demilitarization progress. For that reason, at the 2015 Review Conference, every one of the P-5 states presented its public report and finished the first release of a glossary of key nuclear terms. In any case, the vast majority of the NEWS, particularly NAM nations and common society individuals are basic about the P-5 interaction since it is by and large apparent that this cycle has not added to the genuine decrease of nuclear weapons.
Conclusion
Things have changed and the interest in nuclear power for purposes like development and supportable energy supply has expanded radically. In this manner, the greatest test before worldwide gatherings is severe adherence to IAEA arrangements and increasingly more foundation of such geographic zones which have prohibited use of nuclear weapons. These zones are called Nuclear Weapon Free Zones. Over the long haul, a lot more arrangements like different demobilization deals will help in the improvement of the world and killing the utilization of nuclear weapons for purposes other than peaceful. Out of the multitude of different countries of the world, just 3 nations, specifically, India, Israel, and Pakistan have not signed the peace settlement. Palestine is the latest state to join the Nuclear Peace Settlement. North Korea is the lone state to leave the Nuclear Non-Proliferation treaty in 2003.
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