Maintainability of Section 11 of Arbitration Act : on account of Section 3G(5) of the National Highways Act 1956

September 8, 2021

This article is written by Renganath, pursuing Certificate Course in Arbitration: Strategy, Procedure and Drafting from LawSikho.

Table of Contents

Introduction

It is very common that the parties to a contract while entering into it, will have an intention to take up the contract to an execution stage. Hence, usually, they are cooperative and prefer to agree with all terms and conditions. Moreover, it will be the mindset of all parties to the contract to settle the dispute amicably and they usually opt to include such terms in their contract. A dispute or difference of opinion may arise between them due to the dishonest intention of any one of the parties or by the act of God. In that event, the erred party, though it agreed initially for the amicable and rapid settlement of the dispute, realizing the consequences, always wants to either escape from the liability in totality or to defer the outcome of the dispute resolution process. Hence he will start searching for suitable avenues to attain this object. Arbitration, of course, is a speedy redressal forum, is seldom hit by the prolonging tactics available in the Arbitration and Conciliation Act 1996 (hereinafter referred to as the Act 1996). Usually, the litigating party commences his protest at the initial stage of the arbitration proceeding himself by refusing or deferring to appoint the arbitrator. To encounter this, two issues need to be addressed:

Whether the Arbitration and Conciliation Act 1996 provides any remedy under any section for the appointment of the arbitrator or through any other mode?
If yes, whether such provisions have the power to grant that remedy wherever it is required?

Whether the Arbitration and Conciliation Act 1996 provides any remedy under any section for the appointment of arbitrator through any other mode?

Before analyzing the remedy, a glance at steps in the appointment of an arbitrator will help us to identify the possible grounds that are available for deferment or refusal of appointment of the arbitrator.

As per the Act 1996, the parties to a contract may appoint the arbitrator either mutually agreed by them (ad-hoc) or through an institution.
When the parties prefer an ad-hoc mechanism, they are free to decide the number of arbitrators but it should be odd in number.
When the parties decide the number of arbitrators as three, then it is usually agreed by the parties that each party shall appoint one arbitrator, and then the two appointed arbitrators jointly appoint the third arbitrator.
When the parties prefer institutional arbitration, then the institution takes the role of appointing the arbitrator(s) as per the terms and conditions agreed between the parties and the institution and following the rules of the institution.
When any dispute or difference arises between the parties to the contract, the aggrieved party will invoke arbitration as per the terms and conditions stipulated under the contract. In case of ad-hoc arbitration, the aggrieved party, based on the number of arbitrators agreed between them, will send the arbitration notice to the other party seeking him either to accept or to appoint the arbitrator as the case may be. The other party, within 30 days from the date of receipt of such reference, has to accept or appoint the arbitrator. If the arbitration mechanism agreed between the parties to the contract is institutional arbitration, then the institution will appoint the arbitrator(s) within the stipulated time limit.

As these are the provisions laid down in the Arbitration and Conciliation Act 1996 concerning the commencement of arbitration proceedings and to appoint arbitrator(s), then the deferment or refusal will be as follows:

In case of Ad hoc arbitration the other party may refuse or defer to accept or appoint the arbitrator as the case may be (or) the two arbitrators appointed by the parties to the contract may defer appointing the third arbitrator (or);

In the case of institutional arbitration, such institutions may defer or refuse to appoint the arbitrator as per the agreed terms.

While so, the remedy to the party who is aggrieved by any one of the above grounds is, he may request the Chief Justice to appoint the arbitrator under Section 11(6) of the Act 1996.

Hence we can conclude that the Act 1996 itself contains the remedial measure under Section 11(6) to appoint the arbitrator.

If yes, whether such a provision is wide enough to grant that remedy wherever it is required?

This can be analyzed in the light of judgment pronounced by the Hon’ble Supreme court in National Highways Authority of India vs Sayedabad Tea Company Ltd. And Ors. Though it is the case between two parties, for our analysis, we could point out this as the National Highway Act 1956 vs Arbitration and Conciliation Act 1996 since the provision for appointment of arbitrator laid down in these two statutes were challenged.

Germane facts of the case

Respondent Applicant is Sayedabad Tea Company Ltd. It owned a land measuring an area of 5.08 acres and it comprised the Sayedabad Tea Estate. While so, the National Highway Authority, by exercising its powers under Section 3(D) of the National Highway Act 1956 (hereinafter referred to as ‘the Act 1956’) acquired the land to construct highways.

It is a well-known fact that whenever any private land is acquired by the authority, as per the maxim quid pro quo, suitable compensation is granted to the owner of the land. Similarly, the Act 1956 itself contains the mechanism for determining the compensation and its disbursement. It stipulates that under Section 3G (1) or (2), the competent authority will determine the quantum of the amount to be deposited towards the acquisition of land. If either Party viz. The National Highway Authority or the owner of land, whoever maybe, aggrieved on the sum so determined by the competent authority, can refer the matter to arbitration. Besides the Act 1956 has laid down the provision for arbitration under Sub-sections 5 and 6 of Section 3G as follows

3G(5): It says that the aggrieved party shall apply to the central government seeking the appointment of an arbitrator and on receipt of the application the central government shall appoint the arbitrator.

3G(6): It says that Subject to the provisions of the Act 1956, the provisions of the Act 1996 shall apply to every arbitration under this Act.

In this case, the respondent applicant, the owner of the land, being aggrieved on the quantum of compensation awarded by the competent authority applied to the central government under Section 3G(5) and prayed for the appointment of the arbitrator. As per the Act 1956, the central government has to appoint the arbitrator within 30 days from the date of receipt of an application, but it has not responded.

As the Act 1956 paved the way for the application of the Act 1996, the respondent applicant invoked Section 11(6) of the Act 1996 and approached the Hon’ble Chief Justice of the High Court of Calcutta to appoint the arbitrator. After his move, the central government appointed an arbitrator. But Hon’ble High Court of Calcutta held that the right of the central government to appoint the arbitrator was extinguished immediately after the respondent applicant invoked Section 11(6) of the Act 1996 and the Hon’ble Chief Justice of High Court of Calcutta appointed an arbitrator.

The National Highway Authority, (applicant respondent) filed a review petition before the Hon’ble High Court of Calcutta on the ground that the Act 1956 is special legislation, it contains all mechanisms for arbitration and as per the Act 1956, as the central government is vested with powers to appoint the arbitrator, application seeking appointment of arbitrator under Section 11(6) of the Arbitration and Conciliation Act never arises. But the contention was not accepted and the review petition was dismissed. Hence the National Highway Authority, (applicant respondent) to assail the same, approached the Hon’ble Apex Court.

The issue before the Hon’ble Apex Court

Should the arbitrator be appointed under the provision of the National Highways Act 1956 (referred to as Act 1956, hereinafter)or the Arbitration and Conciliation Act 1996 (referred to as Act 1996, hereinafter).

Contentions put forth by the applicant (The National Highway authority)

The Act 1956 is a special law that contains the procedure for acquisition and determining the compensation by the competent authority.
The Act 1956 gives power to the Central Government to appoint the arbitrator.
Before the matter proceeded, the respondent applicant approached the High court of Calcutta by invoking Section 11(6) of the Act 1996 and it was untenable.
The Act 1956 is a Special law inasmuch as prevail over the Act 1996, which is a general Law.
In the light of the decision held in National Highways and Infrastructure Development Corporation Ltd. Vs. Prakash Chand Pradhan & Ors that the Special law always prevails over general law, the order passed by the High Court of Calcutta deserves to be quashed

Contentions put forth by the respondent (Sayedabad Tea Company Ltd)

The Act 1956 paved the way for the application of the Act 1996.
The Central government failed to exercise its power to appoint an arbitrator within 30 days from the date of application of the Respondent Applicant.
In the light of the decision held in Deep Trading Company vs. Indian Oil Corporation and Others, the Power of the Central government to appoint the arbitrator gets forfeited when the Respondent invoked Section 11(6) of the Act 1996.
There was no legal impediment for the High Court to appoint an arbitrator in as much as its finding is correct.

Findings of the Hon’ble Supreme Court

The Act 1956 is a special law. The usage of the term “subject to” found in Section 3G(6) indicates the overriding effect of the Act 1956 on the provisions of the Act 1996.

It is a well-settled principle that the Special law prevails over the general law inasmuch as the Act 1956 prevails over the Act 1996.

The respondent cannot invoke Section 11(6) of the Act 1996 and dismissed the order of the High Court of Calcutta.

Now a question may arise in the mind of readers as follows:

Perhaps, in the future, as like this, the authority vested with powers of appointing the arbitrator under any Special Law fails to do so, then what would be the remedy to the aggrieved party since the present judgment has shut the avenue for invoking Section 11(6) of the Act 1996?

There is a proverb that says when one door closes, another opens. Similarly, the Hon’ble apex court has rendered a solution in the very same case that the aggrieved party may knock the door of Hon’ble High Court under Article 226 or he can file a suit for the purpose

Hence in the light of the above case, we can conclude this part that the hands of Section 11(6) is not wide enough to embrace all and it has to stretch it within the allowed ambit.

Conclusion

The legislation enacts some special laws for the accomplishment of certain tasks for the welfare of the State. Hence it gives an overriding effect to such Special Acts to gear up the process as well as to attain the intended purpose. Doing so, whenever it gets stuck, the Judiciary by its interpretation lifts the clog and makes it move. In this case, Hon’ble Apex court, in line with the legal maxim “Generalibus special derogant”; special things derogate from general things emerged, has thrown light on the issue and rightly settled the matter.

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Analysis of the ground of insanity under Hindu Marriage Act, 1955

Diganth Raj Sehgal

September 8, 2021

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This article is written by Oishika Banerji of Amity Law School, Kolkata. This article provides an analysis of the ground of insanity under the Hindu Marriage Act, 1955.

Table of Contents

Introduction

Marriage is an important social institution in India. Governed by personal laws, marriage forms the base of a social structure. The Hindu Marriage Act, 1955 being a codified legislation provides a backbone to Hindu marriages. The legislation classifies insanity, or mental disorder as the only disability ground for annulment of marriage under Section 5(ii), or divorce as provided in Section 13 of the Act. These two provisions are therefore often subjected to debates and discussions as it reinforces two stigmas of the Indian society which are:

Isolating individuals suffering from mental disorders from society at large on grounds that they possess a threat to society with their actions.
India has been home to patriarchy with men of a family being the decision-makers. Provisions on mental disorders can therefore be misused to suppress the women of the family further.

This article sought to highlight the two important provisions of the Hindu Marriage Act, 1955 concerning mental disorders along with their effect on society and also throw light on judicial interpretation of these provisions.

The ground of insanity under the Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955 has accepted insanity as a ground for declaring a Hindu marriage as a voidable marriage under Section 12 of the Act and also as a valid ground for divorce provided under Section 13(1)(iii). Voidable marriages as provided in Section 12, are those marriages that can be annulled by a competent court by means of a decree of nullity only if the marriage falls under the categories provided in Section 12 of the legislation.

Insanity is a prerequisite condition for a valid marriage under Section 5

Section 5 of the Hindu Marriage Act, 1955 lays down conditions for a valid Hindu marriage. The second condition of this provision provides three parameters, one of which should be possessed by neither of the parties at the time of their marriage. They are:

Parties being restricted by unsoundness of mind to provide a valid consent; or
Parties are capable of providing valid consent but are suffering from mental disorders which can prohibit them from living a healthy married life, and affect children procreation; or
Parties are subjected to frequent insanity attacks.

Section 5(ii) read with Section 12(1)(b) of the Act of 1955 reveals that if the second condition of Section 5 is contravened, then such marriages being subjected to Section 12 will be declared as voidable by nature.

If this condition is analyzed, there arise three different problems that will keep arising until Section 5(ii) is not subjected to logical modification or amendments. The issues have been listed as follows:

The scope of Section 5(ii) is restricted only to one disability that is a mental disorder preventing a valid marriage from taking place. None of the terms used in this condition such as “unsoundness of mind”, “mental disorder”, “insanity” are provided with an adequate explanation, leaving behind scope for ambiguity.
The second parameter laid down by Section 5(ii) reflects the misconception that people in general have regarding the relationship between infertility and mental disorder. Scientifically speaking, there appears no such cause and effect relationship between impotence and mental instability. Any legislation supporting superstition and misconception existing among people at large can be fatal.
Drawing from the second issue comes the third that concerns the objective behind the marriage of two individuals. The second parameter makes it clear that the essence of marriage exists in the procreation of children. This parameter is further supported by Section 12(1)(a) which provides impotence as a ground for voidable marriages. It will be correct to say that individuals irrespective of their gender face discrimination due to the existence of this provision.

A major loophole exists in Section 12(1)(c) of the Hindu Marriage Act, 1955 which talks about the abrogation of marriage if the consent of the parties is obtained by force or by fraudulent manner. This circumstance can be misused by the petitioner by means of claiming that hiding of mental disorder prior to marriage falls within the ambit of “material fact” and thereby seek annulment of marriage on the basis of fraud. Observation by the Supreme Court in the case of R. Lakshmi Narayan vs. Santhi (2001) provides some light of hope as it stated that in order to label a wife as unfit for a valid Hindu marriage on grounds of mental disability and reproducing children, establishing the gravity of the ailment she has been suffering from which makes it impossible for to live normally, stands indispensable.

The Delhi High Court in the case of Om Prakash Gupta vs Puspa Kumari (1969) took into account two valid questions of law in relation to Section 5(ii) of the Hindu Marriage Act, 1955 which were:

The meaning of the term “idiot” within Section 5(ii);
Determining what degree of being an idiot is sufficient to be present in a spouse that will be responsible to nullify the marriage.

Upholding the decision of the lower court to dismiss the petition for annulment of marriage under Section 12 (1)(b), the High Court held that due to lack of sufficient evidence showcasing the wife to be an idiot at the time of her marriage with the appellant, she cannot be categorized as an idiot under Section 5(ii).

Insanity as a ground for divorce under Section 13

Section 13 of the Hindu Marriage Act, 1955 lays down the concept and scope of divorce in a Hindu marriage. Clause 1 sub-clause (iii) of the provision provides mental disorder as a valid ground for presenting a petition before the appropriate court for the purpose of filing a divorce. The provision lists out two terms with their respective definitions.

Under the broad term of mental disorder, mental illness, psychopathic disorder, schizophrenia, and incomplete development of mind have been included;
The term psychopathic disorder has been further classified into persistent disorder, abnormal aggression, and seriously irresponsible conduct.

The Apex Court had interpreted Section 13(1)(iii) in the notable case of Ram Narain Gupta vs Smt. Rameshwari Gupta (1988). The Court opined that the provision does not in any way attach significance to mental disorder belonging to any degree to be a strong ground to dissolve a marriage. Instead, the burden of proof of showing the presence of a requisite degree of mental instability lies on the spouse who claims such mental illness in the other spouse.

The Supreme Court of India’s noteworthy decision in the case of Kollam Chandra Sekhar vs Kollam Padma Latha (2013) has brought in a significant development in the age-old Hindu marriage legislation of India. Observing that a man cannot divorce his wife on the grounds of schizophrenia, the Apex Court with a bench of Justices G.S. Singhvi and V. Gopala Gowda stressed the importance of determining the degree of mental disorder in these kinds of cases. The Court while dismissing the appeal of the husband in this case ordered him to provide correct treatment to his wife if he feels that she requires the same. Instead of granting a decree for divorce under Section 13, the Court allowed the petition for restitution of conjugal rights provided under Section 9 of the Act of 1955.

Following the footsteps of the Supreme Court, the Andhra Pradesh High Court made a remarkable observation in the case Tallam Suresh Babu vs T.Swetha Rani (2018). The Court while hearing a divorce matter which was filed by the appellant, the husband on the ground that his wife, the respondent was diagnosed with schizophrenia and therefore the former wanted a divorce from the latter on the basis of Section 13(1)(iii), Section 5(ii), and Section 12 of the Hindu Marriage Act, 1955, took into account that only a few numbers of schizophrenic patients become aggressive and the same occurs occasionally. The Court in this case provided a clear distinction between Section 12(1)(b), and Section 13(1)(iii) dealing with voidable marriage if provision Section 5(ii) contravened and divorce on the ground of mental disorder respectively. The Court pointed that:

In order to file a case under Section 12(1)(b), the person doing so has to either prove that the presence of unsoundness of mind of the other party hinders valid consent of that party or the mental disorder of the party is such that the same will affect the marriage in the long run and procreation of children will be affected as well.
For a case to fall within the ambit of Section 13(1)(iii), it will be sufficient for the petitioner of the case to prove that the respondent has an unsound mind which is incurable or has been subjected to frequent insanity attacks which will make the lives for both the petitioner and the respondent difficult.

Recognizing that all mental disabilities will not be categorized as grounds for divorce, the Court held that schizophrenia will not be a valid ground for divorce in this case.

In Hemali Bindesh Kelaiya v. Bindesh Jayantilal Kelaiya (2014), the Bombay High Court while hearing an appeal filed by the wife of a man who suffered from recurrent insanity attacks after their marriage and as a result of which use to abuse and harass his wife, took into consideration the question of law as to whether a Hindu marriage between two parties can be dissolved by a divorce decree under Section 13(1)(iii) on the ground that one spouse suffers from mental illness. The respondent, in this case, had contended that he was not a patient of mental illness; instead, he was suffering from sleeplessness and stress whose medication was going on. After taking into account the evidence presented and the arguments provided, the Court concluded that the appellate had failed to prove her point and therefore no decree of divorce shall be passed.

The calling for amendments in the Hindu Marriage Act, 1955 in relation to the ground of insanity

The Marriage Laws (Amendment) Act, 1976 was responsible for changing the language of Section 5(ii) from “neither party is an idiot or a lunatic” to that of the present wordings. This was to expand the scope of the condition laid down under Section 5(ii). Further, the Marriage Laws (Amendment) Act, 1999 erased “Recurrent attacks of epilepsy” as a ground for marriage disqualification. The Protection of Women from Domestic Violence Act, 2005 is one such legislation that has been formulated to ensure effective safeguarding of women from any kind of violence arising from her family or any other related circumstances. But all these amendments and modifications come with their own detriments. Also, these changes do not delete the fact that the core legislation governing Hindu marriages is left to overcome its flaws. The major reasons behind the need for amendments in the provisions of insanity of the Hindu Marriage Act, 1955 are provided hereunder;

Classifying insanity as a ground for divorce, or voidable marriage as provided under the Act of 1955 is based on age-old beliefs and is a product of a patriarchal mindset. The need for changing such provisions is to add reasons to on what grounds insanity can be a ground for annulment of marriage or for seeking a divorce.
There arises a need to delete stigmatizing words such as “procreation of children” from the statute in order to let the legislation achieve its goals. With the law being a dynamic tool to ensure social justice, it must eliminate the factors that become a hurdle in the administration of justice.
Preconceived notions regarding mental disorders must be buried to befriend the future that ensures individuals with mental illness have similar rights when it comes to marriage as individuals not falling within the category of insanity. It should not be a ground for disability to nullify a Hindu marriage.

Conclusion

Taking into account the development of medical science in our country which is sufficient enough to cure mental disorders, it will be correct to state that the legislature must consider the up-gradation of the existing provisions concerning mental illness. Discrimination on grounds of insanity is unjust under Articles 14 and 21 of the Indian Constitution and should be erased from the Hindu marriage legislation as soon as possible to ensure fairness, justness, and equality for both parties in a marriage.

References

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Electronic health records in India

Abanti Bose

September 8, 2021

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This article is written by Saket Bisani, pursuing Diploma in Cyber Law, FinTech Regulations, and Technology Contracts from LawSikho.

Table of Contents

Introduction

Technology has grown immensely in various sectors and contributed largely to India’s development. It is a significant contributor to the economy of our country. Crucial changes have been observed in sectors such as defence, space, manufacturing industry due to the booming technological advancements and adaptations. The healthcare sector has also entered the field of technological advancements with the intent to introduce a uniform system for maintenance of electronic medical records/electronic health records by the hospitals and healthcare providers in the country. The primary purpose of the electronic health record is to have life-long, effective, high quality, safe and integrated healthcare. The Ministry of Health and Family Welfare notified the Electronic Health Record (EHR) Standards for India in September 2013. Following which revised EHR Standards were notified in December 2016.

In this article, we will analyse the technological developments in the healthcare sector and the challenges it poses due to the dynamic changes. To begin with, we looked over what is an “Electronic Health Record” and its importance in the healthcare sector. Moving ahead, we analyse the statutory framework concerning the electronic health care system in India. It mainly consists of Information Technology Act, 2000 and IT rules, however, there is also the Personal Data Protection Bill, 2019 and Digital Information in Security Health Care Act (DISHA) which is not yet enacted by the Parliament but is a comprehensive compilation of regulation regarding healthcare. Further, we critically analyse EHR and its usability issues with specific regard to the Indian healthcare sector. Towards the end of this article, we will understand that digitalization in healthcare is fast-growing and how with any dynamic trend, there is a dire need for specific legislation adhering to the field. In addition to scrutinizing the electronic health record system in India, certain suggestions have also been brought forth in this article.

What are Electronic Health Records (EHR)?

Briefly speaking, ‘Electronic Health Record’ is a collection of various medical records that are generated during any clinical encounters or events. It is a digitized version of the patient’s medical history and contains patient-centred information in real-time and is easily accessible to medical professionals. Section 3(21) of the Personal Data Protection Bill 2019 defines ‘health data’ as related to the state of physical or mental health of the data principal and includes records regarding the past, present or future state of the health of such data principal, data collected in the course of registration for, or provision of health services, data associating the data principal to the provision of specific health services. Further, Section 3(e) of the Digital Information Security in Health Care Act (DISHA) defines ‘digital health data’ as “an electronic record of health-related information about an individual and shall include………clinical establishment by the individual”. However, both of these bills are not yet enacted.

Such electronic health records can collectively provide a summary of the various healthcare events in the life of a person digitally which is a much better option to avoid all hassles arising from tons of paperwork. Such a system is created with the aim that any person can go to any health service provider/practitioner, any diagnostic centre or any pharmacy and be able to access and have fully integrated health records in electronic format at any time. Apart from this, there are many benefits for the collection of medical records such as evidence-based care, increasingly faster and accurate diagnosis, avoid repetition of unnecessary tests, improved health policy decisions, improved personal and public health and so on.

EHR standards for India have been available since 2016 and adequate time has been provided to the hospitals for the implementation of the same. With any technological solution, we must be equipped with the fact that it is never a foolproof solution.

Legal framework

At present, there are no specific rules or guidelines which monitor health data. Nor does India have separate legislation for the protection of health data. However, the current legal framework on electronic health records emerges from cybersecurity laws which include the IT Act, 2000 and their amendments, Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 and Information Technology (Intermediaries Guidelines) Rules 2011 which governs the electronic health data but are not updated with regards to the rapid development in this field.

Nevertheless, the government has introduced the Personal Data Protection Bill, 2019 to address the issue and it could be safe to say that it provides for the protection of the privacy of individuals relating to their ‘personal data’ which includes health data as well. The Personal Data Protection Bill, 2019 is undoubtedly a solution to the protection of health data however it could not be stated as an exhaustive solution as it provides the State too much power to surveillance without creating any checks and balances. Therefore, it could be argued that with the growing trend of technology, there is a dire need for separate legislation to monitor and safeguard health data. In addition to Personal Data Protection Bill, 2019, the government has also introduced the Digital Information Security in Healthcare Act (DISHA) which aims to standardize and regulate the process related to storing, transmission and use of ‘digital health data’ to ensure reliability, data privacy, confidentiality and security of digital health data along with the establishment of ‘National Digital Health Authority’ and ‘Health Information Exchanges’. Further, the government has also released a Health Data Management Policy for establishing minimum standards of data protection and ensuring security and privacy in the health system of India. Recently, in Balu Gopalakrishnan v. State of Kerala, the Kerala High Court while dealing with the protection of the personal data of individuals who were COVID-19 positive passed an interim order focusing on the breach of confidentiality issue and stated that it is the duty of the state government that all the information must be anonymized before sharing it with the third party and in future, the specific consent of the citizens is a must. Furthermore, the court also stated that once the contractual obligation ends, the third party must entrust such data back to the state government and was prohibited from advertising or representing that they have access to any such data. Following the court order, the State released certain guidelines to be followed in the collection of COVID-19 patient’s information. It is certain from this case that there are many loopholes that can be abused and need to be addressed at the earliest.

Another legislation that could provide a forum for patients to approach and put forth their grievances could be the Consumer Protection Act, 2019. In Indian Medical Association v. V.P. Shanta, the Supreme Court held that medical services would come within the purview of the Consumer Protection Act. Therefore, the Negligence of the hospital or the doctor due to lack of care in maintaining electronic records could be made liable under the nuances of the Consumer Protection Act, 2019.

Challenges in the usability of EHR

Electronic Health Records are unquestionably an upgrade to the traditional system of paper-based tracking. Nevertheless, the success of this technology is entirely based upon its effective implementation. For the longest time, there was paperwork to maintain records of patients but with new methods, there is a challenge in adapting to the new technologies. For example, in general, there is doctor-patient confidentiality but with electronic records, much of the sensitive information is on the internet and vulnerable to breach. Therefore, in this segment, we’ve tried to understand the challenges in the usability of EHR. Usability is the extent to which a specific technology can be used by specified users efficiently. The main concern with respect to the usability of EHR is that any error in such technology will directly result in patient’s harm.

Data entry

Documentation of the patient records need to be carefully entered and managed. While EHR is advantageous in many ways we cannot rule out the fact that it is a huge responsibility. Since the data entry is manualized there is always room for errors in medical administration which could lead to adverse drug reactions, wrong dosage or duration, concentration etc. Any mishap would result in a huge blunder considering the fact that in the future the medical professionals will rely completely on EHR’s to treat patients. For example, if the data entered is with regard to the administration of medicines and even the slightest change in the decimal points of such entry would change the dosage from 4.2 mg to 42 mg which could potentially lead to the patient’s ill health or could even result in death. According to a study conducted for a research article, it was found that out of 9000 patient safety reports, approximately 36% of the patients had a usability issue that contributed to the medication event and 18.8% of whom had incurred harm and the most common medication error was improper dosing.

It is for one to wonder as to whether this would constitute medical negligence and attract tortious liability. According to Winfield, negligence can be defined as a breach of the legal duty to take care which results in damage, undesired by the defendant to the plaintiff. Medical professionals owe such legal duty of care towards their patients which extends to all clinicians, paramedics, nursing staff etc. In such instances, accountability is not drawn upon yet. It is an imperative situation that either the Ministry of Health and Family Welfare or the Medical Council of India make rules or guidelines which administer a stringent technique to ensure that much care and diligence is done while entering patient records.

Adaptability

EHR also poses a problem of adaptability. Initial implementation of the EHR can be manageable but it will also dynamically change with the coming time. There could be a variety of new features that the clinician is not well equipped with and the users may not be aware of the same. It may undergo a variety of changes from the inception of its implementation to the continuing future. Hence, quality training regarding EHR is of utmost importance to ensure that the users, as well as clinicians, are well equipped with the new technology. An effective training program is quintessential to improve EHR usability so as to improve customer satisfaction.

Accessibility

EHR is growing rapidly but it is not always suitable and accessible to everyone. Before making compulsory implementation of EHR, one has to consider whether such a system is easily accessible and available to each one. In the Indian context, many patients who hail from rural areas may not be aware of technicalities and access to the internet is another issue. While the urban areas are adapting to such changes, the rural population is left behind. Hospitals in remote areas lack the infrastructure or the adequate staff to handle such highly equipped technology. Thus we could say that mandatory implementation of EHR is not suitable in every part of the country.

Availability of information

Firstly, it is essential that information must be entered and stored accurately, however it is also important that the information entered is in the precise location and within a prescribed time. Delay in feeding information could potentially lead to delay in medical assistance and pose harm to the health of the patients. For example, if the e-prescription has not been duly uploaded on time, the patient may not have the medicines at apt timing. Even inaccessibility of information in EHR poses a similar threat. Secondly, there is a problem with interoperability. Communication of information in electronic health records has to be smooth. On failure of which, the medical professionals cannot treat a patient effectively if they cannot even access the patients’ medical history. Without any paperwork, complete reliance is placed upon electronic records and it has to be accessed completely. There needs to be an agency that could verify and ensure that the electronic health records are interoperable and also to update standards for adequate implementation.

Privacy

Privacy as we know it is a very complicated concept. The right to privacy was recognized as a fundamental right by the Apex Court in Justice K.S. Puttaswamy v. Union of India. Individual’s medical information which relates to past, present or future physical or mental conditions are created, stored, transmitted or received electronically and are called Protected Health Information (PHI). As the name suggests it is supposed to be protected but the information stored electronically is vulnerable and susceptible to a security breach. Sensitive information such as passwords, financial information, physical or psychological or mental health condition, sexual orientation, medical records and history, biometric information, any information relating to that is received, stored or processed by the body corporate under a lawful contract or otherwise.

It is further provided that it will be the responsibility of the healthcare provider to protect and secure the health information and disclosure of any protected or sensitive information is possible only with the consent of the patient or the next of kin. However, information can also be disclosed without the patient’s consent in certain cases wherein it is mandated by law to report notifiable diseases or on court order or totally anonymized data. Electronic Health Record Standards provided by the government are not sufficient alone to protect the information stored.

Conclusion

It is estimated that by the year 2025, the delivery of healthcare in India could potentially be transformed through complete remote health services and digitally-enabled healthcare workers. By bringing about the technological advancements in the healthcare sector to remote areas, it can be made beneficial to even the poor and disadvantaged sections of society. However, for effective implementation and smooth working, it’s necessary to ensure, (i) patient’s safety and monitors his health conditions frequently (ii) conduct surveys (iii) conduct training programs. Nevertheless, in reality, even after the safeguards, there’s a possibility that the reports may not always capture the actual number of incidents. Therefore, the government, as well as the hospital authorities, must work towards improving electronic healthcare as it has a direct impact on public health. EHR usability can be optimized through training and a team of health IT professionals who can help overcome complications with the evolution of technology. It would be safe to say that to prevent such errors there should be a balance between paperwork and electronic records as placing complete reliance on just technology may not resolve the issue, due to the difference in the ground reality and the manner in which the technology is implemented. Further, it is pertinent to note that both the Digital Information Security in Healthcare Act (DISHA) and Personal Data Protection Bill, 2019 have not been passed by the Parliament yet but it is indeed a need of the hour.

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Doctrine of colourable legislation : an impediment to the legislative authority

Shoronya Banerjee

September 7, 2021

This article is written by Srijita Adak, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.

Table of Contents

Introduction

India has a federal form of government and has been a united country for over seven decades with power being divided between the Centre and the States on the account of federal structure of governance. Federal form of government has two or more levels of government. Each level of government has its own jurisdiction (area of control). The jurisdiction of the respective levels of government is specified in the Constitution. The main feature of federalism is the segregation of power between the Centre and the states. The fundamental provisions of the Constitution cannot be unilaterally changed by one level of government. Federal system has the objective to safeguard and promote unity and accommodate regional diversity.

There was consensus on power sharing even before independence. Leaders were aware of the regional and linguistic diversity. The Constituent Assembly decided to form a government that would be based on the principles of unity and cooperation between the Centre and the states which was to have constitutional status and a clearly identified area of activity.. However, if a legislative body isn’t allowed to make laws in a particular area and does so anyway indirectly under the grab of another legislation, the doctrine of colourable legislation comes into play. The doctrine of colourable legislation is applied to see whether they are competent to enact the specific law or not. Through this article the author seeks to answer the question whether this doctrine creates an impediment to the legislative authority or not.

Colourable legislation

Separation of powers means dividing or sharing of powers. In order to prevent the misuse of power by anyone organ of the government, the Constitution says that each of these organs should exercise different powers. This develops a system of checks and balances. The Constitution has divided powers between the Centre and the states with their particular subject matters. But sometimes, the legislative body enacts legislation which falls outside its area of competence. This means that it has transgressed its powers and has indirectly done something which could not have been done directly.This is called colourable exercise of legislative power or indirectly making laws when prohibited from doing so directly. So, to check the transgression of legislative authorities, the doctrine of colourable legislation came into existence.

Suppose you have a fruit garden and beside that there is a playground. There are truants playing in the playground and every time they throw their ball into your garden and come to take it back, they take some fruits from there as well. But they escape by saying that they had only come to collect the ball. Here, the truants seem to engage in one act under the garb of another as collecting their own balls from the premises is permissible and cannot be prohibited. The colourable legislation also deals with such questions wherein one law is supposedly passed under the garb of another. Colourable legislation comes from a legal maxim- “Quando aliquid prohibetur ex directo, prohibetur et per obliquum” which means which is prohibited directly is also prohibited indirectly. It means when a legislature does not have the power to make laws on a particular subject directly, it cannot make laws on it indirectly. Colourable legislation is one of the doctrines under the Indian Constitution. It basically means coloured legislation which is not its true colour. So, whenever the Union or state encroaches their respective legislative competence and makes such laws, colourable legislation comes into the picture to determine legislative accountability of that law.

Division of legislative power between the Centre and states

Article 246 of the Indian Constitution is about subject matter legislation referring to who has power with regards to which subject matter to make laws. We know that the power has been distributed under three lists. The powers that Centre and States have been categorised by the 7th schedule under 3 lists- Union list (List I), State list (List II), Concurrent list (List III) which is mentioned under Article 246 of the Constitution. The Union list incorporates areas which are of national importance like defence, foreign affairs, currency, atomic energy and so forth. It has a total of 97 items on which the Parliament has exclusive right to make laws. Similarly, those items are covered in State list which are of local importance like trade, agriculture, police etc. There are a total of 61 items on which the State has exclusive power to make laws. Concurrent list contains 52 items like education, adulteration, adoption etc. concerning the Union and State both and pertaining to which both can make laws. Another set of powers is residuary powers which include all other matters not mentioned in any of the lists like cyber laws. The States and Union are both required to operate within their respective legislative competence.

If the legislature makes law in colour or under guise on a subject without having required competency to make laws on that particular subject then the Supreme Court can invalidate the entire law. Colourable legislation comes into question when there is a question of competency of a particular legislation to enact a particular law. It challenges the accuracy of an enacted law with regards to the body that passed the law and analyzes whether the legislative body has the power to make laws on that subject or not. In case the legislature is not competent on the said subject, then the law is said to be ultra vires. When a legislature makes a law which appears to be within its authority but in reality, it is not, then the law would not have any validity. Even though a colour is given to the law for bringing it under competency it would be declared as void. Colourable legislation emerges whenever the legislative bodies had no power to create laws on an item because either it was not included in the list as per Schedule 7 or for the limitations of Part III of the Constitution or any other provision of the Constitution. When the legislature indirectly disobeys the terms of the Constitution and claims any Act to be within its power then it is a fraud on the Constitution.

Concerns and limitations on the application of the doctrine of colourable legislation

The doctrine does not apply to subordinate legislation. It is based only on the question of competency of a particular legislative body to enact a particular law. The presumption is always in favour of the constitutionality of the law and the burden is on the person who wants to show that there has been a clear violation of constitutional principles. Whoever is taking any new law to the court and claiming that to be a colourable legislation, he has to prove how the law is a colourable legislation.

It has no application where there is no constitutional limitation and where powers of a legislature are not bound by any limitation. For example, there will be no application of colourable legislation if such power works only according to the Constitution. The legislation is not actionable for extraneous consideration. The doctrine is not related to bona fide or mala fide intention of the legislature. It only sees whether the enacted law is under the competency of the legislature or not.

It is not concerned about whether the law is relevant or irrelevant. If there is an absence of competency, then the relevance of motive is dead. Thus, the constitutionality of the statute is completely a question of legislative competency.

Case laws

In the case of Ram Krishna Dalmia v. S.R. Tendolkar, the petitioner had challenged Section 3 of Commission of Enquiry Act,1952 and the notification under which an enquiry commission was set up by the Central Government under S.R. Tendolkar was on the ground that it was a denial of equality. Inquiry commission was appointed under the Act against the company of the petitioner. But Supreme Court held that the notification and the Act were valid as they were only for enquiry and do not impose dictatorial possession of the government and the petitioner could not show discrimination. It also held that the burden is on the person who wants to show that there has been a clear violation of constitutional principles. It is an important case of reasonable classification under Article 14. As not only a law has to be reasonable but its application must also provide equal protection of laws, it did not come in the ambit of colourable legislation.
In K.C. Gajapati Narayan Deo v. State of Orissa, the constitutional validity of Orissa Agricultural Income Tax (Amendment) Act,1950 was challenged on the ground that it is a colourable piece of legislation. The real object of which is to reduce the net income of intermediaries, so that the compensation paid under the Orissa Estate Abolition Act, 1952 might be kept down to a low figure. The court held that it would be a colourable legislation only if it is shown that the real object is not attainable to it by reason of any constitutional limitation or that it lies within the exclusive field of another legislature. This Act falls within the ambit of the state legislature as Agriculture is the matter of State List and reduction of compensation is just another facet of the Act. So, it is not colourable legislation and not invalid.
In the case of R.S. Joshi v. Ajit Mills, the respondent was not enlisted as a dealer of Sale Tax, which was gathered from different clients, and this adds up to infringement of Section 46 and Section 37(1) of Sales Tax Act, 1955. The High Court struck down Section 37(1) of the Act. The question was, if any tax has been collected wrongfully by a taxable person from his customer, then whether the amount of tax should be paid to the government or not and also whether it will be lawful to retain the money when it is known that the amount is not a tax or not. It was held that the Section 37(1) of the Act is valid and the law is the same for both the taxpayer and tax administrator and if the tax cannot be levied by the law, then it is not leviable by the government as well. If the tax is not lawful then its collection cannot be lawful. Thus, colourable legislation was applied in this case.
In State of Bihar v. Kameshwar Singh, the Bihar Land Reforms Act, 1950 was enacted to remove the landlord custom from the state. The State gave half of the arrears of rent due as compensation to the landlord. The compensation for property acquired comes under Concurrent List’s Entry 42. So, here it was to be determined whether the Act is for a public purpose or not. The Supreme Court held that the Act instead of determining the compensation, indirectly removes the petitioner from his property without any compensation. In reality the Act purported to lay down a principle for determining compensation and indirectly deprived the petitioner of claiming compensation. Thus, the Act was colourable legislation and was held invalid.
In the case of K.T. Moopil Nair v. State of Kerala, the petitioner was the owner of a 25,000-acre forest land. Due to the Preservation of Private Forest Act,1949 the yearly income of petitioners was only 3,100 Rs per year. Then the Travancore-Cochin Land Tax Act, 1955 came into existence and Section 4 of the Act imposed yearly tax liability of Rs. 2 per acre and as a result, the petitioner had to give a tax of Rs. 50,000 per year. Also, Section 7 exempted 78 types of land from the operation of this Act after notification. Then through an amendment Section 5A came which was the Provisional Assessment of the basic tax in respect of land which had not been surveyed and no time for the conduct of the survey was fixed. In this case, tax liability was greater than the petitioner’s income. It held that Section 4 and Section 7 of the Act violated Articles 14 and 19(1)(f) of the Indian Constitution. The Travancore-Cochin Land Tax Act,1955 was held to be invalid on the ground that the Act apparently purported to be a Taxing Act but in reality, it was not Taxing Act but was confiscatory in nature.
In the case of M.R. Balaji v. The state of Mysore, an order of the Mysore Government was challenged under Article 15(4) for reserving seats for admission to the State medical and engineering colleges. The state issued an order that all the communities except the Brahmin community, fell within the classes of educationally and socially backward classes and scheduled castes and scheduled tribes and 75% seats were reserved for them. On July 31, 1962 the State of Mysore passed another order which superseded all the previous orders and left only 32% seats for the merit pool. The petitioner said that the classification made by the state was irrational and reservation of 68% was a fraud on the Article 15(4) of the Constitution. The question was whether Article 15(4) gives constitutional power to the States to pass such reservation power or not. The court held that the reservation is a fraud on the constitutional power conferred on the state by Article 15(4).

In view of these cases, it can be summarised that if a legislative body has the competence to make a law, it also has the power to make ancillary laws to ensure that the law it made is effective as long as such ancillary laws aren’t a colourable exercise of power.

Conclusion

Colourable legislation suggests an encroachment on the legislative power. The doctrine of colourable legislation strictly prohibits doing indirect things when it is not allowed to do so directly. It tests whether the legislature has enacted a law as per its authorised competency or not. So, wherever there is a restriction to make laws, the legislature has to follow the same otherwise it would be declared as ultra vires of legislative power. If any law is made out of any guise, then the colourable exercise would be imposed on legislative authority.

Legislative authority is the body which legislates laws. They are elected by the people and work on behalf of the people. The doctrine of colourable legislation acts like a check on them and if it finds incompetency then the law becomes invalid without there arising a need to determine its necessity and requirements. It only checks the competency of the law-making body and restricts overstretching power. As this doctrine doesn’t check whether the law is mala-fide or bona-fide and only examines the competency of its legislative authority, it becomes an impediment to the functions of legislative authority.

References

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A comparative analysis of federal courts in Switzerland and the United States

Rachit Garg

September 7, 2021

This article is written by Arya Mittal from Hidayatullah National Law University. The article compares the federal court system in Switzerland and the United States of America.

Table of Contents

Introduction

The United States of America and Switzerland have had good diplomatic relations for a long time. The two countries have been on good terms and have many bilateral agreements in place. In this scenario, it is interesting to examine how far these two countries have been inspired by the political systems of one another. The United States and Switzerland are among the two countries that have distinct judiciary at the federal and state (called cantons in Switzerland) levels. This means that instead of an integrated judiciary, the judicial power has been separately given to the federal level and the state/canton level to exercise such power on federal and state/cantonal laws respectively. In this situation, even the jurisdiction, power, and functions of the two would differ. Thus, the jurisdiction, power, and functions of the federal courts of the US and Switzerland have been discussed in detail hereafter, along with various examples in the form of case studies. Additionally, a comparative analysis has been laid down in respect of the federal courts of the two countries along with their similarities and differences.

Switzerland

Organization

The judiciary of Switzerland is bifurcated into the federal level and cantonal levels. The scope in the current article is only limited to the federal courts and hence, cantonal courts have not been discussed. The Swiss Federal Courts have a two-tier structure. The superior most is the Federal Supreme Court of Switzerland which is the ultimate authority to hear cases from the rest of the federal courts and cantonal courts. At the second level, there exists Federal Criminal Court, Federal Administrative Court, and Federal Patent Court.

Power

The power to exercise judicial power by the federal courts is given by the Constitution itself and it acts as an independent authority. Their power is limited since they cannot deal with the constitutionality of federal laws. All their decisions should conform to federal laws. Further, only in certain circumstances, they can question the validity of cantonal constitutions i.e. when they are inconsistent with the federal constitution.

Function

The federal courts perform different functions. Federal Criminal Court, Federal Administrative Court, and Federal Patent Court are the primary courts where the question relates to federal law in their respective areas i.e. criminal, administrative, and civil. Further, they hear appeals from the cantonal courts in their respective areas and the Federal Supreme Court is the last resort and ultimate authority to entertain these appeals. Also, it must be remembered that the appeals from cantonal courts must be a conflict involving federal law or two or more cantonal laws or cantonal laws inconsistent with the cantonal or federal constitution.

Jurisdiction

The Swiss federal courts enjoy both original and appellate jurisdiction in different civil, criminal, and administrative matters. Article 189 of the Swiss Constitution provides that the subject matters on which the Swiss Federal Supreme Court can exercise judicial power. These are “federal law, international law, inter-cantonal law, cantonal constitutional rights, the autonomy of the communes and other cantonal guarantees in favour of public law corporations, federal and cantonal provisions on political rights.”

United States

Organization

Like the Swiss judicial system, the judiciary of the United States of America is also bifurcated into two levels i.e. federal courts and state courts. The federal court system of the US is a three-tier structure. The superior most in the system is the Supreme Court of the United States which is the ultimate authority to hear any case dealing with federal law. At the second level are the circuit courts which are the court of appeal. The lowermost in the structure are the district courts which are the general trial courts dealing with civil and criminal laws.

Power

Section 1 of Article III of the US Constitution vests the power to all the federal courts i.e. the Supreme Courts and courts under it which are empowered by the US Legislature i.e. the Congress. Further, Section 2 empowers the federal courts to exercise judicial power on matters stated in the section therein. It also states the limitations of the federal courts on exercising judicial power on certain matters which have also been stated in the provision itself.

Further, the federal courts are also empowered to issue writs by the All Writs Act. The provision states, “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

Function

The federal courts exercise their judicial power over the federal laws passed by Congress and often deal with the constitutionality of these federal laws. However, their powers are limited and have to rely on the executive wing to enforce their decisions. Further, the US Supreme Court is the final arbiter of federal matters concerning legal questions.

Jurisdiction

It is believed that federal courts are “courts of limited jurisdiction”. To exercise its jurisdiction, it has to meet certain criteria. Firstly, they can exercise their judicial power on only those issues where any actual case has been filed i.e. there is a legal dispute. Secondly, only an aggrieved plaintiff can apply to a federal court. Lastly, the court should be authorized either by the Constitution or Congress to act on such an issue. Moreover, the federal courts hear issues involving federal laws only and not state laws.

As regards the type of jurisdiction, the Supreme Court has original as well as appellate jurisdiction. The former is in the cases of disputes between the state parties and the latter is as a result of appeals from the Circuit Courts. The Court of Appeals or the Circuit Courts, as the name suggests, primarily have appellate jurisdiction. The district courts enjoy original jurisdiction and can hear on almost all types of laws.

As regards the subjects, they have a variety of matters over which they can exercise jurisdiction. The federal courts are empowered to hear matters relating to civil and criminal laws, bankruptcy cases, admiralty laws, cases involving the constitutionality of a statute or law, disputes between states, disputes involving ministers, etc.

Critical analysis

Similarities

Basis	Similarity
Authorization	Both the federal court systems are empowered to exercise judicial power by their respective constitutions only.
Mediator between states	The federal courts of both countries are given the power to act as a mediator between the states or cantons and solve their disputes.
Limited jurisdiction	Both the systems have limited jurisdiction since they cannot exercise their judicial power on a specific law of a state or canton.
Jurisdiction in state/cantonal laws	Though they cannot exercise judicial power to decide a case relating to cantonal/state law, yet the Supreme Courts of both countries have the power to strike down the state/cantonal law if it is inconsistent with the Swiss/US Constitution.
Original jurisdiction of Supreme Court	The Supreme Court of both the United States as well as Switzerland has original jurisdiction in cases where the dispute is between two states/cantons or between federal and state/canton.
Appellate jurisdiction	The Supreme Court of both the United States and Switzerland have appellate jurisdiction in case of all appeals from state/cantonal cases and from lower levels of federal courts where the issue relates to federal law.
Binding effect of Supreme Court decisions	The decisions of the Federal Supreme Court of Switzerland and Supreme Court of the United States are legally binding on cantons and states respectively.
Practicality in appeals	In both the federal courts, only a few cases reach the Supreme Court since the same is not accepted by the Courts and cases mostly dispose of at the Court of Appeals or the Three Federal Courts, whatever the case is.

Differences

Basis	Swiss Federal Court	US Federal Court
Number of tiers	It is a two-tier structure consisting of the Supreme Court at one level and Federal Criminal Court, Federal Administrative Court, and Federal Patent Court at the second level.	It is a three-tier structure comprising the district courts, above which are circuit courts and Supreme Court at the highest level.
Classification of courts	The three federal courts at the secondary level are classified based on the law they deal with i.e. criminal, civil and administrative.	The circuit courts and district courts at the secondary and tertiary levels respectively are divided based on the states i.e. the area they have jurisdiction in.
Independence	The Swiss federal courts are independent of the legislature and executive.	US federal courts are not independent since they depend on the executive to enforce their decisions.
Challenging the constitutionality	They do not have the power to challenge the constitutionality of any of the federal laws.	They have the power to check the constitutionality of an act of Congress and can even strike it down.
Head of the Supreme Court	The head of the Swiss Federal Supreme Court is called the President.	The head of the US Supreme Court is called the Chief Justice.
Term of federal judges	The term of office of Swiss federal judges is six years. However, they can be reappointed an unlimited number of times.	There is no such prescribed term of office and the federal judges continue to serve until they die, resign voluntarily, or are impeached by Congress.
Power to strike down federal laws	The Swiss Federal Courts have no power to strike down a federal law or declare it invalid.	The Supreme Court of the United States can quash a law if it believes that it is unconstitutional.
Divisions of the Supreme Court	There are seven divisions based on the subject matters such as civil, criminal, public, etc.	There is no such division.
Mechanism for choosing new judges	The judges are not appointed but rather elected by the Parliament.	The judges are appointed by the President of the United States with the advice of the Senate.
Power to issue writs	The Swiss Constitution provides only for the writ of habeas corpus.	The US courts allow for all kinds of writs whether prerogative or any other writ.
Power of judicial review	There is no such power. It has constitutional jurisdiction to declare federal laws unconstitutional, yet has to enforce them all the time.	The US Supreme Court has the power of judicial review which has evolved through the landmark case of Marbury v. Madison (1803).
Deviation from precedents	Lower courts can deviate from the precedents in certain specified circumstances.	Lower courts cannot deviate from the precedents in any case.
Applicability of international laws	The Swiss federal judges attach a lot of importance to the international laws even if such law is inconsistent with their national law for the reason that Switzerland follows monism.	The same is not true for US federal courts. Though importance is given to international law, yet only those laws which have been incorporated in the national laws are applicable.

Conclusion

The legal system of the United States and Switzerland differ substantially in terms of their federal court system. The former has a three-tier structure whereas the latter has a two-tier structure. Even the composition, functions, and powers of the two systems are distinct. Though the two countries also have certain similarities in terms of jurisdiction of the federal courts, yet both of these federal court systems are distinct and unique in their own ways.

These differences arise also on account of their existing political system since the judiciary is just one wing of democracy apart from legislature and executive. To exemplify, Switzerland is a monist state and thus gives a lot of importance to the international laws whereas on the contrary, the US, which is a dualist, only emphasizes those international laws which it has itself ratified. Swiss Federal courts are independent in decision-making whereas American federal court decisions are enforced by the executive. On the other hand, US federal courts have the power of judicial review whereas Swiss federal courts have limited judicial reviewing power.

To conclude, the United States and Swiss federal courts have certain similarities amongst all the differences and both of these federal systems are distinct in their own way. Also, these differences are bound to occur owing to the difference in the political system, geographical conditions, historical background, legal system, etc.

References

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How can prosecution be exposed to the Indian Penal Code for offences under GST

Rachit Garg

September 7, 2021

This article is written by Smaranika Sen from Kolkata Police Law Institute. This article exhaustively states such offences under GST laws where the prosecution might be exposed to the Indian Penal Code. It further deals with certain case laws which shows how such prosecution can be exposed to the provisions of IPC.

Table of Contents

Introduction

Goods and services tax also known as GST is a destination-based tax. Taxes regarding GST will only be accrued by the taxing authority who has jurisdiction over the place of supply. It is an indirect tax that has replaced various taxes like excise duty, VAT, service taxes etc. The origin of GST dates back to 2000. At that time a committee was set up to draught a law. After 17 years, in 2017 the GST Bill was passed in the Lok Sabha and Rajya Sabha and it came into force on the 1st of July 2017. The Act states various do’s and don’ts. The Act also provides for offences if someone does not abide by the provisions of the stated Act. Through this article, we will try to analyse for which offences prosecution can be exposed to the Indian Penal Code for offences under GST.

Goods and services tax: An overview

As already stated above, the goods and services tax has replaced various existing taxes. The question might arise that what is the need of bringing goods and services tax and replacing all other existing taxes. The main reason for making goods and services tax is to have one single tax across the whole nation. It denotes that every state will follow the same rate for a particular product or service. It will also help the central government in deciding rates and policies. Previously, various indirect taxes were imposed upon the citizens of India. This used to create a cascading effect of taxes. The cascading effect on the sale of goods and services is used to impact the cost of goods. Due to different indirect tax laws, taxpayers could not set off the tax credits of one tax against the other.

There was no unified and centralised tax on both goods and services. However, the introduction of the GST solved this issue. Under GST, all major taxes are subsumed into one. Therefore, it eliminates the tax on tax, thereby decreasing the cost of goods and services. GST laws in India are far more stringent. It increases the taxpayer base and reduces the need for multiple documentation for the supply of goods.

Components of GST

There are three components of the goods and service tax. The three components are:

Central goods and services tax: By the name we can understand that this tax is for the central government. The central goods and services tax is collected by the central government on an intra-state sale.
State goods and services tax: This tax is collected by the central government on an intra-state sale. The main difference between CGST and SGST is that the tax is collected for the same interstate sale of goods and services, but in the case of CGST, it is collected by the central government and in the case of SGST, it is collected by the state government.
Integrated goods and services tax: It is a tax that is levied on all inter-state supplies of goods or services. It is collected by the central government for an inter-state sale.

Laws before GST

Before the goods and services tax, there were taxes levied on the citizens by both the centre and the state through various indirect taxes. The state government used to collect taxes in the form of VAT or value-added tax. Interstate sale of goods was collected by the central government. Different states have different sets of rules and regulations regarding taxes. The indirect taxes and local taxes were living together by the state and central government. This used to create overlapping taxes.

Laws after GST

Any kind of offence and penalty under the goods and services tax is enlisted under the Central Goods and Services Tax Act. Sections 122 to 128 of the Central Goods and Services Tax Act state the offences and the punishments for such offences.

Offences under the Act are

Fraud.
Fake or wrong invoice.
Tax evasion.
Supply/transport of goods in such a way that the documentations are not proper or the documentations have been destroyed, etc.
If any person has not registered under GST but he was required to do so by the law.
If anyone does not deduct TDS (tax deducted at store).
If anyone does not collect TCS (tax collected at store).
If anyone distributes input tax credit by violating the rules and regulations.
If anyone obstructs any competent officer from doing any duty.
If anyone does not maintain any record which he/she was prescribed by law to do.
If anyone destroys any evidence.

Penalty

If a person commits any of the offences stated above, he would be liable for a penalty. There is as such no proper definition of ‘penalty’ under the Act. However, through various judgements and judicial interpretations, it can be stated that a penalty is a form of punishment that is given to a person when they are found to have committed any offence. A penalty can be either pecuniary or corporal. It can be dealt with in both civil and criminal cases. Under GST, both pecuniary and corporal penalties are applicable.

Prosecution

As we know that under GST, corporal penalties are applicable. Therefore, there lies prosecution of those persons who have committed any offence. A prosecution means the legal proceedings that are taken against any person in respect to their criminal charges. Some of the offences that might lead to corporal punishment are:

The deliberate intention of any kind of fraud.
If any person has supplied any goods without an invoice to escape from tax.
If any person issues any invoice without supplying any goods or services.
If any person is found to collect GST in contravention to the laws and has not submitted the same tax to the government within 3 months.
If any person is found to obtain any refund from the central goods and services tax or state goods and services tax by fraud.
If anyone submits any fake financial records or documents or files fake returns to evade tax.
If anyone deliberately acquires or receives any kind of GST even after knowing that it violates the laws.
If anyone provides any false information during the legal proceedings.
If anyone is found to destroy any e evidence.
If any person helps others to commit any fraud under GST.

Generally, the offences are bailable under GST and under Section 132, the highest term of punishment is 5 years of imprisonment. There are some offences where the prosecution is exposed to the provisions of the Indian Penal Code for the offences under GST.

IPC Sections used in GST

Some sections of the Indian Penal Code are used in goods and service taxes law. The relation between the provisions of IPC and GST laws makes the prosecution exposed to the provisions of the Indian penal code for the offences committed under any GST laws. The following Sections are:

Section 120A and Section 120B

As per the Indian penal Code, Section 120A of IPC status about criminal conspiracy. It states that whenever two or more persons agree to do any illegal act or any act which is not illegal by illegal means, such an agreement is designated to be a criminal conspiracy. It further states that no agreement except an agreement to commit an offence will be deemed a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Section 120B of IPC states the punishment of criminal conspiracy. It states that anyone who is a party to a criminal conspiracy to commit an offence which is punishable with the death penalty, imprisonment for life, or imprisonment for a term of 2 years or upwards, will be punished in the same manner as if the person had abetted such offence. In case anyone is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence will be punished with imprisonment for a term of not exceeding 6 months or with a fine or with both.

The relation between Section 120A of IPC and GST law is that in the case of goods and service tax if a group of two or more persons agree to commit any illegal act, they will be held liable under the act of criminal conspiracy.

Section 463 to Section 468

Section 463 to Section 468 of IPC falls under Chapter XVII which states the offences relating to documents and property marks. Section 463 states about forgery. It states that anyone who makes any false documents or false electronic record or part of a document or an electronic record with an intent to cause damage or injury to the public at large or to any other person or support any claim or to cause any person to part with property or with an intent to commit any fraud denotes the commission of forgery.

Section 464 states the making of false documents.

Section 465 states the punishment of forgery. The punishment for forgery is either imprisonment for a term that may extend up to 2 years or a fine, or both.

Section 466 states the forgery of records of the Court or public register. Section 467 states the forgery of valuable security, will, etc and Section 468 states the forgery for cheating.

Under GST, the value of documents or records is huge. Documentations play a very vital role in filing returns or in claiming refunds, etc. Therefore, if a forgery is committed related to the documents, the accused is liable under the above-stated Sections.

Cases where offences are exposed to IPC

At certain times, some offences fall under the GST law as well as IPC at the very same time. This leads to a question of whether the accused should be exposed to IPC for the offences committed under the GST laws. Let us analyse a case to solve this issue.

In the case Shri Sentu Dey v State of Tripura and others (2021), the petitioner challenged an order under which she was sent a criminal case for investigation under Section 156(3) of the Code of Criminal Procedure to the concerned police station.

Factual background

In the case, it was observed that the petitioner was a proprietor of M/S Sentu Dey, which was registered under Tripura State Goods and Service Tax Act 2017, later on, referred to as the SGST Act. On the 27th of November 2020, the superintendent of state taxes, Bishalgarh, under Section 190 read along with Section 200 of the CrPC, filed a complaint before the sub-divisional magistrate of Bishalgarh. The complaint stated that the petitioner had declared outward taxable turnover and thereby paid list access from August 2017. The complaint also stated that the sizable demand was Rs 19.74 crores including taxes out of which the petitioner only paid Rs 1.18 crores.

The remaining amount was still unpaid. The purchasing dealers of the petitioner stated that they had already paid their taxes to the petitioner for their purchases made by them from the petitioner. The complaint also added another allegation against the petitioner that he had collected the taxes from the purchasing dealers but had not deposited the same in the government revenue. Therefore, the petitioner was charged under Section 132 of the SGST Act and Section 406 and Section 409 of IPC. The case was first transferred to the magistrate who initially fixed the case for examination under Section 200 of CrPC. Then the complaint was registered as an FIR and called for a report. The petitioner filed a writ petition containing that the offence alleged against the petitioner is punishable under Section 132 of the SGST Act. therefore the general provisions of the Indian penal code in such a case cannot be invoked.

Judgment

The honourable High Court of Tripura observes that the provisions of Section 132 of the SGST act provide punishment for offences related to goods and services tax. The further observed that there are certain acts or omissions which fall within the ambit of a special penal statute like the SGST Act and sometimes there might be some offences that also have an element of an offence under the provisions of IPC. The honourable high court also refers to various Supreme Court decisions where it has been shown that the accused in a situation will be answerable for the special statute offence or the general offence. Regarding the present case, an act or omission on part of the dealer will only be an offence under the SGST Act. However, the other facts of this case indicate that there are certain ingredients of the provisions of IPC as well. Therefore the high court stated that the tax administration of the state should not invoke provisions of the IPC without application of mind in every case. Therefore the high court quashed the order of the magistrate for police investigation.

Analysis

Any offences under the Central Goods and Services Tax Act, 2017 or State Goods and Services Tax Act, 2017 are grievous. At times it also can constitute an offence under the Indian penal Code thereby leading to criminal proceedings against the offenders. However, to invoke the provisions of IPC for the offences committed under the GST laws, the tax department should take necessary questions to establish the guilt or reference of the assessee and not merely casually file a complaint before the magistrate.

Conclusion

The GST laws are vital in our country to have a well established financial condition. Every citizen must pay their taxes. Taxes help to build a nation, create various welfare schemes, improve the health care system and education systems of a country, etc. In simpler words, we can state that by paying taxes to the government, we are benefiting ourselves. Therefore, to fight against those offenders who do not pay their taxes and try to escape from their duties, there should be strict actions taken against them. If the offences are grave, the tax department authority should establish enough facts to make the offender liable for criminal charges.

References

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Grant of compensation for custodial death

Shoronya Banerjee

September 7, 2021

This article has been written by Swati Mishra, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Table of Contents

Introduction

The word ‘custodial death’ always reminds me of Sarabjeet Singh, an Indian prisoner who died after being brutally assaulted in police custody in the KotLakhpat jail in Pakistan on 2 May 2013. He was proclaimed to be a martyr and his body was cremated with full state honor. Even three-day mourning was announced. The Government of India and the Government of Punjab announced a compensation of Rs. 25 lakhs and 1 crore respectively to the next kin. Of course, all this is laudable. My question is what happens to all those political leaders and Indian citizens who demanded justice for Sarbjeet Singh when the same thing happens in our country. I don’t remember any such incident when the Government has ever taken responsibility for any custodial death or ever announced a fancy amount of compensation as done in Sarbjeet’s case or has ever executed speedy prosecution of the officers responsible for the death. A recent report highlights that 1731 people died in custody in 2019. Of this, 1606 died in judicial custody and 125 in police custody. India signed the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment on 14 October 1997. It stands behind 161 nations as it is yet to ratify it. Of Course, the state can’t restore the life of a person, but speedily granting compensation and initiating prosecution of the accused is a small step for the better good of mankind.

Custodial death

Article 21 of the Indian Constitution guarantees the right to life and personal liberty. The Hon’ble Supreme Court from time to time through its various landmark judgments reiterated that certain rights such as ‘Right against the inhuman treatment by the police, ‘Right against handcuffing’, ‘Right to a fair and speedy trial’, ‘Right to free legal aid’, etc. are an integral part of Article 21. Custodial death is the death of a person who is detained in a prison by police during the pre-trial, trial, or after conviction. The following are different kinds of custody :

Police custody,
Judicial custody,
Army/paramilitary custody.

When a suspect dies in police custody, it is disgraceful to the Constitution. There are various reasons for custodial death. They may be torture, illness, suicide, and accident. The death of a person who is under the custody of the authority and is a responsibility of the state raises serious questions about the ‘violations of rights of the victims’, ‘responsibility of State to curb such offence’, and ‘the need for enactment of suitable legislation.’ The ultimate aim of the article is to explain various provisions relating to the grant of compensation for custodial death.

Death in judicial custody

In judicial custody an accused is sent to prison where the police require the permission of jail authority for the investigation. So, if a death occurs in jail is death during judicial custody, it may be due to natural or unnatural causes. In case of natural death, the SDM conducts a magisterial inquiry under Section 176 of CrPC and no compensation is provided in such cases. Except for Tamil Nadu and Andhra Pradesh as they have provision for compensation in case of natural death. The unnatural death is dealt with under four heads namely suicide (Section 309 IPC), accidental death (Section 304A IPC), murder (Section 302 IPC), medical negligence (Section 304 IPC). In case of unnatural death also judicial inquiry under Section 176 of CrPC is conducted and compensation is awarded to the victim.

Compensation for the violation of the fundamental right to life

There are several incidents of custodial deaths and most of the deceased belong to the marginalised section of the society. The accused officials would indeed be prosecuted and justice shall be delivered in due course of time. But the most striking question is that what about the family that has just lost one of their beloved members, especially the one family who has lost a bread earner? The saddest part of the story is there is no express mandate in our Indian constitution for the grant of compensation for unlawful detention or custodial death. Article 21 is considered to be of the widest amplitude as it imbibes in itself the right to compensation. ‘ Compensatory Jurisprudence’ is a classic example of the Supreme Court’s creativity. India is a party to the International Covenant on Civil and Political Rights, 1966 (the ICCPR). According to Article 9(5) of the ICCPR “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation”. India owes its obligation to the International community; Article 51(c) of the Indian Constitution dictates, “The State shall endeavor to foster respect for international law and treaty obligations in the dealings of organized people.”

It was the case of Rudal Shah v. the State of Bihar and Another where the Supreme Court for the first time awarded compensation for the violation of the fundamental right of right to life. The Supreme Court in Rudal Shah v. the State of Bihar and Another interpreted the right to compensation. In this case, Rudal Shah spent fourteen years in prison even after his acquittal of murder charges by a criminal court in Muzaffarpur, Bihar. The Supreme court observed that denial of the compensation would constitute grave injustice.

Compensation for custodial death

The NilabatiBehera v. the State of Orissa was the first case in which the honorable Supreme Court systematically analyzed the right of undertrial prisoners to seek compensation. NilabatiBehera sent a letter to the Supreme court demanding justice for her 22-year-old son, SumanBehera, who died in police custody. She sought compensation for the infringement of the right to life of her son. The Supreme Court took suo-moto action on the letter. The three-judge bench comprising Justice JagdishSharanVerma, Justice AS Anand, and Justice N. Venkatachala observed that the remedy or award of compensation can be sought under Article 32 or Article 226 of the Constitution. The bench asserted that the right or remedy of compensation is an acknowledged remedy for enforcement and protection of fundamental rights and it would be highly unjust to expect a socio-economically disadvantaged person to pursue ordinary civil proceedings for the enforcement of his rights in the tort of law. The court in the instant case awarded 1.5 lac rupees as compensation to NilabatiBehera and ordered the Orissa Government to initiate proceedings against the perpetrators. To conclude the following principles emerged from this judgment:-

The monetary compensation is an acknowledged remedy in public law for the violation of the fundamental right.
Such a claim is based on strict liability.
It is distinct from and is in addition to the remedy available in private law for the damages of tort.
This remedy would be available when it is the only practicable mode of redress available.
Against a claim for compensation for violation of a fundamental right in a writ petition under Article 32 of 226 of the Constitution, the defense honor sovereign immunity would be inapplicable.

Quantum of compensation

The life of a person cannot be compensated by money but the suffering and pain of his family can be lessened through compensation. The most contested issue in Rudal Shah v. State of Bihar and Another case was the quantum of compensation to be awarded. An inadequate amount of compensation would of course aggravate the wrong committed. In Lakshmana Naidu v. State of Tamil Nadu, the court misinterpreted the procedure for calculation of quantum of compensation. In the instant case, three people died at the hands of forest officials for which the petitioner claimed Rs. 5lac as compensation. Using the multiplier method, the court calculated the amount of compensation that ought to be Rs. 7 lacs. Surprisingly as the petitioner claimed Rs. 5 Lacs as compensation, he was paid the same. The move of the court was highly condemned as against the rule of law.

In what kind of cases should compensation be paid

Despite the plethora of judgments that recognizes the right to compensation as a facet of the right to life under Article 21 still, there is ambiguity as to in which kind of cases the compensation requires to be awarded. In Sube Singh v. the State of Haryana, the Supreme Court tried to remove the ambiguity and defined a range of cases relating to custodial torture in which compensation can be awarded. While deciding the question of whether or not to grant compensation for the infringement of fundamental rights, the three questions need to be addressed.

First, was the violation of the right to life patently incontrovertible? Second, was the violation gross and of a magnitude to shock the court’s conscience? Third, did the custodial torture allegedly result in death, or was the custodial torture supported by a medical report or visible marks or scars or disability?

Unfortunately, there is no uniform method of calculating compensation despite so many socially motivated judgments. Different courts of the country adopt a different approach and methodology of awarding compensation.

Ruvee Parveen v. State of NCT Delhi and ors.

In a recent case of Ruvee Parveen v. State of NCT Delhi and Ors, on the 4th of May, 2021, the Delhi High Court directed DSLSA to put in motion the procedure for compensation. In the instant case, the deceased Salman was arrested on 11th November 2020 on an allegation of theft of a vehicle. He passed away on the next day of remanding to judicial custody. His wife Ruvee Parveen, the petitioner filed a petition seeking compensation of Rs. 1 crore for the violation of the fundamental right of life. DSLSA submitted to the court that Delhi Victim Compensation Scheme, 2018 has a provision to grant compensation to the legal heirs or deceased which would be a minimum of Rs.3 lacs and a maximum of Rs.10 lacs. The Delhi High ordered the DSLSA to initiate the procedure for the grant of compensation.

Principles for the grant of compensation

From various legal pronouncements, we conclude that the following principles are noteworthy:-

Vicarious liability of State – Literal meaning of ‘custody’ is guardianship and protective care. It is the state’s responsibility to ensure the safety, security, and well-being of the inmates in the prison. Therefore the state is vicariously liable for the omission and negligence on the part of authorities.
Liability under public tort – The compensation is like the exemplary damages awarded against the wrongdoer for the breach of its public law duty.
Recovery of compensation amount from the wrongdoer – The state can recover the amount of compensation from the authority responsible for the commission of the act or negligence.

Conclusion

There is no explicit provision available in the Indian Constitution that acknowledges the right to seek compensation for the violation of the fundamental right to life. Through its various judicial pronouncements, the Honourable Supreme Court established it as a rule of law. When a wrong is done to a person languishing behind bars, a paltry sum of money is paid to him to undo the injustice done to him. The most saddening thing about this is that there is still a lack of clarity on the quantum and procedure of compensation to be paid. Therefore, the development of a unified compensatory jurisprudence is the need of the hour otherwise the compensation cases would be mistaken as a lottery wherein the amount is determined by chance.

References

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Is claiming of bail a right : answering in light to judicial precedents

Diva Rai

September 7, 2021

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This article is written by Sneha Mahawar from Ramaiah Institute of Legal Studies, Bangalore. The article discusses the concept of bail as a right in the light of judicial precedents.

Introduction

Bail is the conditional release of a person accused of a crime in exchange for a sum of money guaranteed in exchange for the accused’s attendance in court when the time comes. The individual who makes the payment serves as the surety. In a civil case, getting bail is one of the accused’s rights, however, in a criminal case, it is at the discretion of the bail issuing authority. In other words, bail is defined as monetary security traded for the release of an arrested individual as a guarantee of the individual’s attendance at trial.

It is a temporary release of a person from police custody but on a condition that the accused on bail will be available during the investigation of the case. Bail can be granted only when the accused has been arrested or is in anticipation of an arrest. In any such case, the accused can file an application in Court or police station to grant release from police custody.

Black’s Dictionary defines bail as “Procuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court”.

Historical background

Bail dates back to 399 BC when Plato attempted to arrange a bond in order to liberate Socrates. The circuit courts in Britain established a bail system in the Middle Ages. The contemporary idea of bail is largely derived from all of the medieval regulations that control it.

The Magna Carta, which was signed in 1215, was the first step toward providing citizens rights. It said that no one may be seized or imprisoned without his peers or the law of the national judging him.

The Statute of Westminster was adopted in 1275, dividing offences into bailable and non-bailable categories. It also specified which judges and authorities had the authority to issue bail judgments.

In 1677, the Habeas Corpus Act was added to the 1628 Right of Petition, giving the defendant the right to be informed of the allegations against him, as well as the right to know whether the accusations were bailable or not.

According to Kautilya’s Arthashastra, avoiding pre-trial custody was optimal, hence the notion of bail existed in ancient India as well. Bail was practised in the form of ‘Muchalaka’ and ‘Zamanat’ during the Mughal dynasty in the 17th century.

The Code of Criminal Procedure, 1973 governs bail at the moment. Although the term bail is not defined directly in the Act, the words bailable offence and non-bailable offence are specified in Section 2(a). The provisions of the Act pertaining to bail are governed by Sections 436–439.

Kinds of bail

Regular bail

When an individual commits a cognizable offence and is arrested without a warrant, the accused is then taken into police custody and after the period of custody expires he shall be sent to prison. Thereafter, regular bail is granted in case of non-bailable offences under Section 436 and Section 439 of the Code of Criminal Procedure, 1973 which gives the accused the right to be freed from police custody. Regular bail is the release of an accused from custody in order for him to appear at his trial.

Interim bail

This bail is provided as a temporary measure for a limited length of time, either while an application is pending or while an anticipatory or normal bail application is pending before the Court.

Interim bail is always conditional and can be prolonged; however, if it expires before the accused has been granted anticipatory or regular bail, and he fails to pay the sum necessary to continue the bail, he forfeits his right to freedom and will be taken under police custody.

Anticipatory bail

The term “anticipatory bail” is self-explanatory. It is a sort of bail that is granted to someone who is expecting to be arrested by the police for a non-bailable offence. In recent years, this has become a very important topic since corporate competitors and other powerful persons sometimes try to frame their opponents in bogus charges. This is a type of advanced bail described under Code, Section 438. The police officials are unable to arrest someone who has been granted anticipatory bail.

Can bail be granted in any case

The rationale behind granting bail is that if the person accused of an offence is acquitted as a result of the trial then his/her personal life is affected. So he/she is released on bail under the condition that the accused shall be available for the entire duration of the investigation whenever required. There are two types of offence, namely, bailable and non-bailable.

Bailable offences are offences that are of a less serious nature in comparison to non-bailable offences. Thus, in case of a bailable offence, the bail is granted easily after filing an application under Section 436 of the Code of Criminal Procedure, 1973 at the police station or the Court.

Conditions under which the bail can be granted

The accused is of 16 years or less.
The accused is a woman.
The accused is ill or infirm.
The accused who is a habitual offender will not be granted bail unless he has a special reason.

Non-bailable offences are offences that are of a very serious nature. These are offences under which bail is not granted usually except in certain exceptional circumstances. In non-bailable offences, bail is not considered as the right of the accused. However, in case of such offences an application has to be filed under Section 437 of the Code of Criminal Procedure, 1973 to the Magistrate.

Conditions under which Magistrate can reject bail

There are various conditions under which the Magistrate can reject bail in case of non-bailable offences such as:

The accused has been charged for an offence for which the sentence is 7 years or more.
The accused has been charged for an offence for which the sentence is the death penalty.
The accused has been charged with the offence of treason.
The accused has been charged for the offence of murder/ rape or any such offence against the human body.
The accused has been charged for an offence against property for which a provision is created under the Indian Penal Code, 1860.
The accused has been charged for an offence of conspiracy.
The accused has been charged for an offence of abetment of any above-mentioned offences.

2005 Amendment : Section 436(A)

Section 436(A) was introduced in the Code of Criminal Procedure, 1973 after the 2005 amendment. It lays down the conditions and specifies the length of time for which an accused can be kept under police custody.

This Section states that if an accused has spent half of his sentence of such offence in custody then he can be released on bail. For instance, if an offence is punishable for 3 years and the accused has been kept in custody for 1.5 years when the trial is ongoing then the accused can be released on temporary bail. But even after granting bail if he is required for investigation then he has the obligation to appear.

Section 439

As we are already aware that for taking bail in case of a bailable offence an application can be filed at the police station or Court under Section 436 of the Code of Criminal Procedure, 1973. Similarly, for taking bail in case of a non-bailable offence an application can be filed at the Magistrate’s Court under Section 437 of the Code of Criminal Procedure, 1973. However, there are many restrictions and conditions under which the Magistrate cannot grant bail.

But, under Section 439 of the Code of Criminal Procedure, 1973 both the Court of Sessions and High Court has the power and authority to grant bail under any matter and any circumstances.

Granting of bail after an arrest

After an individual has been arrested for a crime he can apply for bail.
Before applying for bail it is necessary for the accused to know whether the offence for which he is charged is a bailable offence or a non-bailable offence.
If the accused is charged for the commission of a bailable offence then the bail application shall be filed under Section 436 of the Code of Criminal Procedure, 1973 at the Court or the police station. After the bail is granted then the accused has to sign the bail bond and pay the sum of money mentioned therein. The accused will also require two sureties to sign the bail bond along with him who will take the guarantee that the accused will not escape and shall be present throughout the investigation.
If the accused is charged for the commission of a non-bailable offence then the bail application shall be filed under Section 437 of the Code of Criminal Procedure, 1973 at the Magistrate’s Court or under Section 439 of the Code of Criminal Procedure, 1973 at the Session’s Court or High Court. If the bail is granted then the accused has to sign the bail bond and pay the sum of money mentioned therein. The accused will also require two sureties to sign the bail bond along with him who will take the guarantee that the accused will not escape and shall be present throughout the investigation.

Granting of bail before an arrest

Anticipatory bail is covered under Section 438 of the Code of Criminal Procedure, 1973. If an individual has reasons to believe that they can be accused of a crime and be arrested in future so he can apply for anticipatory bail in Court. After such bail is granted by the Court, police officials have no authority to arrest such accused. Anticipatory bail is always taken prior to being arrested.

Conditions to be taken into consideration by Court before granting of anticipatory bail

Seriousness, nature and gravity of the case.
The accused requesting anticipatory bail is a habitual offender or not.
The accused requesting anticipatory bail is a past convict or not.
The accused requesting anticipatory bail will flee the country or not.

Conditions that the Court can impose on the person demanding anticipatory bail

The accused has to be present during the investigation whenever required.
The accused shall not influence the witnesses under any circumstances.
The accused shall not tamper with the evidence and witnesses under any circumstances.
The accused shall not be allowed to leave the country.
Any other condition the Court deems fit to impose on the accused.

Section 167 : an exception to the cancellation of bail

Under Section 167 of the Code of Criminal Procedure, 1973 if the investigation is ongoing for the past 60-90 days and still the investigation is incomplete and no charge sheet has been filed then the Court has the duty to realise the accused from police custody on bail.

Even if the charge sheet is filed the Court cannot straightaway reject the bail until and unless there are any special circumstances.

Bail as a right

Bail is granted as it protects the right to life and liberty enshrined under Article 21 of the Indian Constitution which states that “No person shall be deprived of his life or personal liberty except according to the procedure established by Law”. It implies that even if they are accused of a crime, everyone has the right to defend their rights and freedoms. Bail allows individuals to safeguard their liberty by allowing them to leave police custody and defend their case with all means at their disposal. They can’t prepare their case for trial while incarcerated since the accused person who is free is in a far better position to handle the case and adequately defend them. Bail is based on the premise that a person is innocent until proven guilty.

It is incorporated in Article 11(1) of the Universal Declaration of Human Rights as a fundamental concept of criminal law. It also represents the fact that the right to bail is a basic right, as the state cannot deprive individuals of their life and liberty until they have been found guilty beyond a reasonable doubt.

The rationale behind keeping bail as a basic right is a risk that the complainant filing the FIR is doing so out of malice, or that powerful people are trying to put their competitors in fake cases in order to embarrass them or to blackmail someone for something intrinsic.

Judicial precedents

Sushila Aggarwal v. State of NCT of Delhi

In this case, Justice Bhatt put forward his preeminent statement while handing down the judgment, stating that because Parliament has not deemed it appropriate to curtail citizens’ rights and the power of courts to grant anticipatory bail, it is not in the public interest to reduce such forces and limit citizens’ liberty. Citizens’ rights are basic, and they are unrestricted. The bench attempted to link anticipatory bail to India’s constitutionally protected basic rights.

Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P.

The Supreme Court of India concluded in this case that the provision of bail preserves and maintains the ideal of liberty and freedom inherent in Article 21 of the Indian Constitution and has a clear link to it.

Gurbaksh Singh Sibbia v. State of Punjab

In this case, the concerned rejected the petitioner, who was the then-Minister of Punjab’s Irrigation and Power, anticipatory release due to corruption allegations. The court ruled that this clause should only be applied in rare circumstances. They also stated that the court should not utilise discretion in significant economic crimes involving flagrant corruption in order to preserve the public interest.

Later on appeal, the Supreme Court’s five-judge panel overturned this decision due to earlier precedents and judicial interpretation.

Siddharam Mhetre v. State of Maharashtra

In this case, the Supreme Court overturned the High Court’s ruling and granted the accused Anticipatory bail based on the precedent of the Sibbia case. They also stated that the provision can be allowed if the accused is ready to cooperate with the inquiry and is not planning on fleeing before the trial is over.

This decision was utilised as precedent in Bhadresh Seth v. State of Gujarat because both instances provide the accused the right to life.

Conclusion

As a result, giving bail is a right as a protector of life and liberty that allows the claimed accused to be free for the time being while safeguarding him or her from unscrupulous and venal false claims. In criminal law, the concept of bail is a noble one. In the case of non-bailable offences, the accused may be granted bail subject to certain limitations and restrictions. The concept of bail implies that the accused cannot be assumed guilty until his guilt is established. Bail also introduces the beautiful concept of personal liberty into the picture. The clauses are included in order to give effect to the Indian Constitution’s reference of personal liberty.

References

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WTO’s agreement on agriculture – can India legally guarantee a minimum support price to its farmers without contravening its obligations under this agreement

Diva Rai

September 7, 2021

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This article is written by Oishiki Bansal, a student of Symbiosis Law School, Noida. The article explains the Agreement on Agriculture, as one of the agreements administered under the aegis of the World Trade Organisation (WTO) and its effect on the domestic support given by the government.

Table of Contents

Introduction

The General Agreement on Trade and Tariffs (hereinafter GATT) provided many loopholes in the agriculture trade sector. The non-tariff measures like import quotas and subsidies were still prevalent in the agriculture trade, inducing export subsidies for industrial goods that would have not been provided normally. Therefore, with the aim to provide fairer markets to the farmers the World Trade Organisation came with an agriculture agreement. India is a member of the World Trade Organization and has to comply with the agreement on agriculture. It needs to be analyzed whether the domestic support in the form of minimum support price and the new farm Bills introduced in 2020 comply with the agriculture agreement or not.

About the agreement

To reform the agriculture trade and to improve the predictability and security of importing and exporting countries, the World Trade Organization came up with the agriculture agreement.

The three provisions that the agriculture agreement focuses on are –

Market access
Domestic support
Export subsidies

The agreement was a result of a discussion that was held at the Uruguay round of negotiations, 1994. WTO’s agriculture agreement Implementation came into effect on January 1st, 1995. The agreement provided for a reduction on provisions of the agreement by –

Developed countries within 6 years, that is by 2000.
Developing countries within 10 years, that is by 2004.
The least developed countries need not comply with this requirement.

Market access commitment

Market assessed commitments are mentioned under Article 4 of the agreement on agriculture. It imposes restrictions on the non-tariff barriers by abolishing them and also asking the states to not impose them in the future. The agreement focuses on tariffication, a process where the non-tariff barriers such as quotas, variable levies, minimum import prices, discretionary licensing, state trading measures, voluntary restraint agreements, etc are converted into tariffs. The process has to be implemented by the different countries in the following way –

Developed countries – to reduce the total tariff including the results of tariffication by 36% with minimum cut per product By 15% within six years of implementation of the agreement.
Developing countries – To reduce the tariff including the result of tariffication by 24% with a minimum cut per product by 10% within 10 years of implementation of the agreement.
The least developed countries did not have to make any commitment.
Some developing countries who are maintaining quantitative restrictions due to balance of payment problems were allowed to offer ceiling instead of tariffication.

Japan, the Republic of Korea, the Philippines (for rice), and Israel (for sheep meat, Whole milk powder, and certain kinds of cheese) asked for special treatment until the implementation period of developing and developed countries.

Domestic support commitment

Domestic support commitment has been covered in Article 6 of the agriculture agreement. Hereby, the World Trade Organization has differentiated between the domestic support such as subsidies and reduced income tax, which have a direct effect on the production of the agricultural product, and the incentives and policies that do not have a direct effect on the production. through the agriculture agreement the WTO all the countries reduce the domestic support in the following way-

Developed countries – to reduce the domestic support by 20% within six years from the implementation of the agreement.
Developing countries – to reduce the domestic support by 13% within 10 years of the implementation of the agreement.
Least developed countries do not have to comply with this cut.

This commitment refers to the reduction in total support and not just the individual commodities. Some of the policies that are categorized under the green box in the agreement have been excluded from the reduction commitments, this category involves the policies which do not distort trade or have any kind of effect on production, policies that provide benefits to rural communities, agriculture, domestic food aid, etc. The investment subsidies that are generally available to low-income and resource-poor farmers in developing countries are also excluded from the reduction commitments under this provision.

Export subsidies commitment

Export subsidies commitment has been covered under Article 8 of the agricultural agreement. This provision requires that the member states reduce the money spent on export subsidies and the quantity of export that are eligible for subsidies. Subsidies provided for export of Agricultural Products have been prohibited except those which are mentioned in the member’s list of commitment. Do countries have to comply with this provision in the following manner –

Developing countries – to reduce the value of export subsidies by 36% and quantity of subsidized Exports by 21% within 6 years of the implementation of the agreement.
Developed countries – to reduce the value of export subsidies by 24% of and the quantity of subsidized Exports by 14% within 10 years of the implementation of the agreement.
Least developed countries do not have to comply with this provision.

The agreement also mentions that the products that do not come under the subsidized export goods category cannot be included in the list in the future. Other than these three commitments other provisions mentioned under the agreement are as follows-

Special measures for safeguarding the products that have gone through tariffication. (Article 5)
The peace clause Urges the member states not to raise any dispute relating to these commitments during the implementation period. (Article 13)
Developing and least developed countries have different treatment as to implementation period and compliance towards commitments. (Article 15)
A committee on agriculture is to be established. (Article 17)
Application of dispute settlement in accordance with the agreement (Article 19)
And lastly, a mandate for continuous reforms. (Article 20)

Provisions	Developed countries (period of implementation -6years (1995-2000))	Developing countries (period of implementation- 10 years (1995-2014)
Market access(tariffication)
Cut for all agricultural products	(-)36%	(-)24%
Minimum cut per product	(-)15%	(-)10%
Domestic support (aggregate market support)
Total AMS cut (base period: 1986-88)	(-)20%	(-)13%

Export subsidies
Value of subsidies	(-)36%	(-)24%
Quantity of subsidized exports (base period:1986-90)	(-)21%	(-)14%

Provisions for an agricultural committee and continuous reforms

Agriculture committee

The agriculture committee is established to oversee the implementation of the agreement on agriculture and how the World Trade Organization members are complying with the provisions of the agreement. The committee includes all the WTO members who meet three to four times a year. The agriculture committee oversees the following –

Process of reviewing

The members share the report about the implementation of the commitments made in the agreement. The members can ask each other about the notifications given by the other members and also about the agriculture policies prevailing in the state.

To monitor ministerial decisions

The implementation of the decisions by the ministers at the WTO’s ministerial conferences are monitored by the agricultural committee.

Subsidized exports and agricultural trade

The work of the committee includes monitoring and reviewing the growth of world agriculture trade and seeing whether the growth in agricultural trade is due to subsidies or not.

An annual report is made by the secretariat of the World Trade Organization reporting the share of each member towards the annual trade growth.
An annual review is done by the committee on member’s export subsidies on agriculture and other export measures. Background information is compiled by the World Trade Organization’s Secretariat to help in the reviewing process on member’s :

Export subsidies.
Export finance support.
Enterprises relating to agriculture state trading.
International food aid.

The agriculture committee will also keep an eye on the elimination of agricultural export subsidies, new export credit rules, international food aid, and exporting state trading enterprises decisions.

Net food-importing developing countries

The negative effects of agriculture reforms. on poor countries and the net food-importing developing countries, by the developing and developed countries is monitored by the agriculture committee. A list of net food-importing developing countries is updated regularly by the World Trade Organisation and background notes are prepared by the WTO’s Secretariat on the implementation of ministerial decisions.

Access to market in agricultural trade

The implementation of “Bali decision on tariff quota administration” is monitored by the committee on agriculture.

Stockholding by the public for the security of food

The work of the committee also includes monitoring the information provided by the members about the public stockholding for the security of food purposes.

Continuous reforms on the agreement on agriculture

The agricultural reforms are not a static process. Since 2000, there have been discussions to negotiate the agricultural reforms under the original mandate of the agriculture agreement. The agricultural negotiations are stated below –

Nairobi package

The Nairobi Ministerial conference was held in 2015 where WTO members decided to eliminate the export subsidies on agriculture and to make new rules on export measures that have a covalent effect. To implement this decision, the developed countries will remove all the subsidies on export immediately and developing countries will have a little longer period to eliminate the subsidies except for a few agricultural products.

The decision was taken to give effect to the sustainable development goal on zero hunger and also help the farmers of the poor countries who face intense competition against the rich countries and the artificially boosted exports by the help of subsidies.

Members also collectively agreed to engage in finding a permanent solution for developing countries to use the public stockholding programs for food security purposes. Negotiation on a special safeguard mechanism, which allows the developing countries to raise tariffs temporarily on agricultural products in cases of import surges or price falls, was also agreed upon by the ministers.

Bali package

The Minister agreed to include agricultural decisions in the ministerial conference in Bali, Indonesia in 2013. These decisions were as follow-

Members agreed to refrain from challenging the breach of domestic support commitments that resulted from developing countries’ public stockholding programs for food security if certain conditions were met by them. They also decided to negotiate towards the permanent solution for public stockholding for security purposes.
A more transparent tariff rate quota administration was called for whereby the governments were not allowed to create trade barriers by how the quotas among importers are distributed.
The list of general services which includes more spending on land use, Land Reforms water management, and other poverty reduction programs which come under the green box( Green box is domestic support which is allowed without any limit as it does not distort the trade) were to be expanded.
A declaration on the reduction of all forms of export subsidies and enhancement of transparency and monitoring was made.
The Bali package also provides for a peace clause that protects the food procurement programs of developing countries from the action of other WTO members if the developing country branches the subsidy ceiling as given. In the financial year, 2018-19 India became the first WTO member country to invoke this clause. India stated that its rice production was $43.67 billion and it provided subsidies of $ 5 billion to the farmers, which is more than the de minimis level of 10%. To safeguard its domestic support policy the Indian government invoked the peace clause.

Trade dialogues on food

To encourage a debate on the role of International Trade in food security, the World Trade Organisation launched trade dialogues on food. Various experts in the field of food security and trade are called upon to have the top on the role of International Trade in food security.

India’s commitment towards the agreement on agriculture

Market access

India did not have to comply with the tariffication rule as India was maintaining quantitative restrictions due to balance of payment problems. Although India bound its primary agriculture product to comply with some of the commitments. It bound processed food at 150% and edible oils at 300%. The products whose bound rates were low or zero such as skimmed milk powder, Maize rice, spelt wheat, millets, etc were substantially raised after the negotiation under Article XXVIII of the General Agreement on trade and tariff were completed.

Export subsidies

Only the exporters of Agricultural commodities that have been mentioned under Articles 9.1(d) and 9.1(e) of the World Trade Organisation’s agreement on agriculture are given export subsidies. According to the agreement the subsidies can be provided till 2023 and after that, the export subsidies will be illuminated according to the Nairobi package that was agreed in the Nairobi ministerial decision on export competition, 2015.

Domestic support

The World Trade Organisation introduced the concept of de minimis which set a limit for developing and developed countries to a certain percentage. if these countries exceed their domestic support beyond a certain percentage then the countries have to comply with reduction commitments. The percentage set for developing countries for both product services and non-product services is 10% and for developed countries is set at 5%.

The indicator that decides whether the countries have to comply with the reduction commitment is, ‘ aggregate measure support’(Hereinafter AMS).

AMS for product services is calculated in the following way-

(International price – domestic price) X quantity of production

AMS for non-product services is calculated in the following way-

Summation of all the subsidies given for fertilizers, water, seeds, credit, and electricity, etc.

The domestic support that India gives to its farmers is the minimum support price. According to the Ministry of Commerce of India, the value of product AMS Is (-) 38.47%, and non-product AMS Is 7.52% which is below the De minimis level as stated in the agreement. Therefore the Indian government can continue to give domestic support without the need to comply with the reduction commitments under this provision. A detailed discussion on the minimum support price is discussed below.

All about Minimum Support Price

What is Minimum Support Price – domestic support

Minimum support price (hereinafter MSP) is a ceiling provided by the government of India to protect the interest of farmers in case the price of crops falls excessively during bumper production years. The government agencies procure the crops from the farmers in case of a fall in the market price of crops due to bumper production at the MSP set by the government each year.

Who sets MSP

The central government sets the MSP every year with the recommendation of the Commission for Agricultural Costs and Prices (hereinafter, CACP).

How is MSP determined

The CACP determines the MSP using a formula given by the Swaminathan committee that was formed in 2004. Some of the factors taken into consideration are –

Cost of production
Changes in input prices
Input-output price parity
Trends in market prices
Demand and supply, etc

Are Indian MSPs ultra vires the agreement?

Minimum support price comes under the pillar of domestic support under the agreement of agriculture. Since the MSP is not covered under the green box( the support which does not distort trade) they have to comply with the reduction commitments. The World Trade Organization also laid down in the agreement that the countries do not have to comply with the reduction commitments if the total aggregated measure of support(AMS) is below or up to 10% for developing nations.

According to the Ministry of Commerce, the only product service provided by India is the MSP. The total product service AMS was calculated to be (-) Rs. 24,442 crores during the base period(1986-88). Negative figures are the result of the high international prices for agriculture crops as compared to the domestic price during the base year(1988-86) except for few crops. The total non-product service AMS was Rs. 4581 crore.

Therefore the percentage of the product service AMS was (-) 38.47% and non-product AMS was 7.52% which is way less than the minimum levels of domestic support agreed by the World Trade Organization.

Therefore, India contended that it did not have to comply with the reduction commitments under the agreement. Thus, MSP guaranteed by the government is not ultra vires to the agreement.

India’s defense of MSPs at the WTO

In 2018, the United States took the issue to the World Trade Organization that India provides for domestic support to rice and wheat that is 60-70% higher than the de minimis level of 10% stipulated by the World Trade Organization.

To justify the Indian stand on the issue raised by the United States we need to consider the following rules that bind India under the domestic support provision of agreement on agriculture.

Firstly, the de minimis rule says that the product service and non-product service AMS cannot exceed 10% of the value in production in any annual period.
Secondly, the international prices that need to be considered for the calculation of AMS were fixed during the base year that is 1986-88.
Furthermore, Article 18.4 of the agreement provides that the WTO members should give due credit to inflation and its influence on the ability of other member states to comply with the domestic support commitments. Therefore, it is clear that the developing countries that have no AMS commitments and also whose domestic support is in the negatives plus the domestic price of the agriculture crops are less than the price decided during the base year(1986-88), it is appropriate to ignore the influence of inflation.

While calculating the aggregated measure support given by India, the US accounted for the MSP for years 2011-14 as the starting point and deducted the external price as set in accordance to a base year without taking into account the inflation during this period. Hence, ignoring the provisions of Article 18.4 of the agreement.

The external reference price during the base year for agriculture products was more than the applied domestic price for Indian agriculture products. For wheat, whose external price was fixed at Rs 3,540/MT, the MSP was Rs 1,740/metric tonne, much lower than the external reference. For common rice, the external reference price was Rs 3,540/MT whereas the MSP was Rs 2,280/MT.

Hence, in the case of both the crops the support is given by the government was much lower and the Indian government was basically taxing the crops rather than subsidizing them. Therefore, India argued that the reasoning of the USA, that India has exceeded the domestic support by a large amount is flawed and it should have considered the inflation effects on the prices as provided by including Article 18.4 of the agreement.

WTO agreement and new Indian farm laws – in consonance

In June 2020 the government of India enacted three farm laws namely –

To deregulate the Indian agriculture market. These new laws are driven by the demands by the United States and the European Union in the World Trade Organization to reduce subsidies provided to the farmers.

The Farmer’s Produce Trade and Commerce (Promotion and Facilitation) Act

This Act came into effect from 5th June 2020, allowing the farmers to sell their products beyond the ‘mandies’ set up by the agriculture produce marketing committees(APMC). The Indian farmers can sell their produce directly to the buyers, therefore, are protected against the brokers that used to take all the profits. It aims to eliminate all the brokers by enabling direct communication between the buyers and the producers. Under this bill, the farmers are not required to pay any market fees to sell their products nor do they have to pay any kind of transportation fee. Since this bill provides for green box support to the farmers it does not come under the preview of the agreement on agriculture. But the farmers fear that after the implementation of this bill, the APMC mandis will eventually close resulting in the eradication of the MSP program as guaranteed by the government.

The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Service Act

This Act provides for legalizing the contract between sponsors and farmers. Under this Act, the companies can directly contract with the farmers for agricultural produce. Hence, making farming a profit-making occupation. In addition to a permanent contract, the sponsors or companies can provide extra training for the farming process and help in procuring better inputs for farming. The interest of the farmers is also protected by the government if any dispute arises by establishing a dispute redressal mechanism. Also, a provision is laid which states that the companies cannot recover the loss from the farmers if the default is due to any force majeure( Act of God, or any unforeseeable or unpredictable Act) events. The major concern under this Act is the illiteracy rate among the farmers. The threat of being conned by the sponsors and companies is a great factor contributing to the farmers’ hesitancy in accepting this bill. Lack of awareness and illiteracy can put the farmer in a disadvantageous situation.

The Essential Commodities (Amendment) Act

This Act amended the original Essential Commodities Act. Some of the agricultural commodities that are included under this bill are cereals, pulses, oilseeds, edible oils, onion, potatoes, etc. it provides that the government can put a cap on the storage limit of the essential commodities if the prices rise severely. Therefore, the Act provides space for the market forces to play freely and boosts business Activities by eradicating unnecessary government intervention and also provides the government with sufficient powers to put price caps in case the prices rise due to stock holding creating a deficiency of commodities in the market.

However, the critics are of the view that the Indian farm laws have no relation to the distortion in the international agricultural trade. It is the exploitation by the developed nations such as the United States and the European Union that exploits the global market. In India, subsidies are provided to secure food security in the Indian market as well as farmer’s livelihood.

Conclusion

India is said to be an agrarian country. Most of the livelihood in India is still in the rural areas. The WTO introduced the agreement on agriculture to provide a fair market to the farmers and create a predictable international agriculture market. Since 1995 there have been many changes in the agreement to facilitate international trade in agriculture. India provides a minimum support price to its farmers to ensure food security in the state and also protect the farmers from an unexpected slump in the market. The new bills passed by the government in 2020 were in consonance with the WTO’s guidelines after the US and EU raised issues over the domestic support given by the government.

References

Welcome to the department of commerce, Government of India

https://poseidon01.ssrn.com/delivery.php?ID=584095096086110099081115073007009127032069023053024057123009001026070127029097118025037027038012044049023028009125089124013115119094030029067019093003118086093003048050036022017106101065084070092088013121098029072015127094070093071018080071093006002&EXT=pdf&INDEX=TRUE

https://poseidon01.ssrn.com/delivery.php?ID=202110105020065069019094103002121000020086089012039042073005089074073102073070075088018007127038053121097000081066065004005109042071071006015067121071097082004019019008017043123019106086075001003008127007001097089076024094113110097007028015093012119096&EXT=pdf&INDEX=TRUE

WTO | Agriculture – gateway

WTO | Agriculture Committee, work in the WTO, and official documents WTO

Agriculture – negotiations

WTO | Trade Dialogues on Food

WTO | Agriculture – explanation of the agreement – domestic support

Minimum Support Price — Vikaspedia – Agriculture

Statement Showing Minimum Support Prices – Fixed by Government

US stand at WTO on India’s MSP to farmers erroneous, says trade experts

https://poseidon01.ssrn.com/delivery.php?ID=459088119025089007106096105070095098010024009039040035126007001014097099119126118031122003024052103055112125088105117088005087123053009076092006102098021110106097024001026085111015117005126030001114067099080122015101025023103102107106084098006121012118&EXT=pdf&INDEX=TRUE

WTO | legal texts – Marrakesh agreement

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Role of IPR in development of software technology for Microsoft

Oishika Banerji

September 7, 2021

This article has been written by Shradha Jain pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from LawSikho.

Table of Contents

Introduction

Microsoft is one of the world’s leading innovators, with an annual R&D investment of more than $16.8 billion. Their capacity to innovate and drive the development of cutting-edge technology and solutions throughout the world is dependent on different forms of intellectual property (IP), including patents, copyrights, trademarks, and trade secrets, as both owners and users of IP. Microsoft aims to foster global innovation via the use of intellectual property and advocates both balance and clarity in IP rights for the benefit of all parties involved with intellectual property. The present age of innovation represents a dynamic world that is quickly evolving due to breakthroughs in AI-fueled by huge data, higher computing power, and smart algorithms. Microsoft is leveraging its intellectual property portfolio to assist customers, partners, and developers all across the world in the field of building on technology to drive their innovations forward. There are four types of property rights that are important to software: patents, copyrights, trade secrets, and trademarks. In this article, we will discuss them briefly and see how they have aided in the development and protection of Microsoft.

Patents

TRIPS Agreement Article 27(1) Patents must be accessible for all inventions in all sectors of technology, whether product or process, provided that they are novel, entails an innovative step, and are capable of industrial application. The advantages of securing patent protection can be remarkable, as demonstrated by the Google-Microsoft case, where Microsoft claimed that android infringes on some of its patents and they have since then decided to settle the case. They not only support the company’s products and services, but they also generate ideas that keep it expanding and competitive. Microsoft earned about $3.4 billion from its Android patents as late as 2014. Samsung alone paid Microsoft a billion dollars to license its Android patents. Microsoft is well-known for its substantial patent portfolio and aggressive IP strategy. Moreover, the software behemoth invests $11.4 billion in R&D and has a patent portfolio of over 90,000 presently active published patent applications. Microsoft generates a substantial amount of money by licensing its patents. List of patents by Microsoft include-Surface Duo, Microsoft 365, Windows 10 apps, HoloLens 2.

Azure IP initiative

Microsoft has taken the step in this direction to foster innovation. Microsoft promises that qualifying customers will get “uncapped indemnification” for infringement claims stemming from their usage of Azure IP Initiative, including claims emerging from open-source software solutions like Apache Hadoop that are integrated into Azure and offered under Microsoft’s agreements. The new tool would also allow clients to choose from a pool of 10,000 Microsoft patents to help them avoid litigation. Microsoft wants to earn customer trust by providing what it terms “the industry’s most complete protection against intellectual property hazards.”

Copyright

In the 1970s, WIPO began to study the issue of legal protection for computer programmes, and the notion of developing a sui generis system arose initially. Sui generis protection is applied to all three components of computer programs: object code, source code, and documentation. “Source code” refers to the original code of a computer program written in program languages that can be read and understood by humans, particularly those who specialise in this field; “object code” refers to a version of the programme that is directly usable by a computer, in binary form – a series of “zeroes” and “ones” – that computer processors can comprehend, but humans can’t unless it’s “decompiled,” or converted into source code. Article 10 of The TRIPS Agreement contains an interpretive provision stating that computer programs, whether in source or object code, shall be protected by the Berne Convention. Article 4 of the 1996 WIPO Copyright Treaty (WCT) includes the same clarification in very similar terms. Xbox Game Pass Ultimate: The list of copyrighted content- Xbox Live Gold, Xbox games, Xbox Points Calculator.

Permission to use

Microsoft products and services, including pictures, text, and software downloads (the “content”), is either owned by Microsoft Corporation or licensed to Microsoft by third parties. Microsoft cannot offer you authorization to use third-party material. You may only copy, alter, distribute, display, license, or sell the material if express authorization is given in the End-User License Agreement (EULA) or license conditions that accompany the content or are specified in the instructions below.

For permission to be granted for any uses allowed by these guidelines, you must comply with the following four requirements:

Use full product name;
Link methods;
No offensive use;
Permitted by Microsoft.

Trademarks

A trademark is a symbol that distinguishes one company’s goods or services from those of other companies. Intellectual property rights safeguard trademarks. A trademark might be a single word or a mixture of words, characters, and numbers. However, trademarks may also be drawings, symbols, three-dimensional elements such as the form and packaging of items, non-visible signals such as sounds or smells, or color tints utilized as identifying qualities — the possibilities are nearly infinite.

Windows Trademark

Despite the fact that Microsoft released its Windows software in 1985, it did not register a trademark for it until 1990. The extended period before registering for a trademark harmed the brand since many people connected the Windows interface with how the software presented the user’s desktop. As a result, the Trademark Office denied the application on the grounds of the ‘merely descriptive’ aspect. After learning from its error, the firm recognized the importance of trademark protection. While the registration was finally awarded, the delayed trademark filing put the brand’s market share in danger.

Trademark and Brand Guidelines (“Guidelines”)

It explains how people may assist them in protecting Microsoft’s brand assets, like as logos, names, and app and product icons, as well as the trust that they represent. These Guidelines have been developed to assist explain the correct use of their brand assets. Microsoft retains the right to take whatever action is required to safeguard them and, as a result, its customers and the public. Microsoft’s brand assets, which logos, icons, designs, trade dress, fonts, names of Microsoft software, products, services, sounds, emojis, and any other brand features and elements, whether registered or unregistered (“Brand Assets”), are proprietary assets owned solely by Microsoft and its group of companies. These Guidelines, which may be modified from time to time, describe how their Brand Assets may be utilized in particular situations. Many applications, including their logos, app, and product icons, and other designs, will need the acquisition of a license beforehand. Unless a license is obtained from Microsoft, these Guidelines shall govern the use of their Brand Assets exclusively. Examples of brand assets requiring a license from Microsoft- Microsoft corporate logo, Microsoft product logos, Microsoft product icons, badges, etc.

Trade secrets

Trade secrets have long been used to preserve innovation in conventional businesses. It merely requires that you take reasonable steps to keep the source code secret, such as making agreements with everyone who has access to the source code to keep it secret. There are no formalities, such as filing with a government agency, that must be followed. Secret formulae, client lists, and production techniques have generated value for firms that have taken the appropriate precautions to maintain their confidentiality. In general, for information to qualify as a trade secret, it must be:

Commercially valuable because it is hidden,
known only to a small number of people, and
subject to reasonable procedures taken by the lawful owner of the information to keep it hidden, including the employment of confidentiality agreements with business partners and staff.

Cortana

Consider Microsoft’s Cortana, which serves as our personal digital assistant. True, she can assist you in making calls, sending SMS, scheduling and reminding you of meetings, and directing you to your next appointment. However, Cortana is supported by a large amount of technology created or upgraded in-house by Microsoft. Voice recognition; language translation; reactive and predictive algorithms capable of synthesizing context, location, and data and interacting with the huge resources of the Bing search engine index; and a sophisticated array of cloud servers capable of crunching and serving data in real-time. This technology is the result of tens of thousands of hours of study, trial and error, and continuous development for its improvement.

While patent and copyright cover a part of this invention, trade secret protection is critical for something like Cortana, which continues to evolve. Many crucial but invisible parts of goods – the “know-how” – are trade secrets: the product development process, the business strategy for how and when the product will be released, and future enhancements as well as proposals to use such technologies into whole new product categories. Although some parts of confidentiality regulations, such as data exclusivity for pharmaceutical firms (Article 39.3 of the TRIPS Agreement), are debatable, there is widespread agreement that confidential disclosure is advantageous in a contemporary economy.

Conclusion

IP is a tried-and-true method of fostering innovation, raising living conditions, and increasing employment. Can we afford to exclude or limit patent protection for software-related ideas as the global economy becomes more digitized, with software increasingly constituting the foundation of innovation and economic competition?

The goal, without a doubt, is to establish conditions that allow innovators and engineers to devote resources to software development in order to find new methods to communicate and do business. As digitalization accelerates in many aspects of our lives, the moment has come for the international community to reconsider the existing state of affairs and assess the benefits of expanding patent protection for computer programs that incorporate software-related discoveries. Today, Microsoft spends a significant amount of time and effort in developing breakthrough software, gadgets, and products, as well as employing a strong IP strategy to increase its brand value. It has emerged as an example of what firms may do when they recognize the importance of various forms of intellectual property protection.

References

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Introduction

Whether the Arbitration and Conciliation Act 1996 provides any remedy under any section for the appointment of arbitrator through any other mode?

If yes, whether such a provision is wide enough to grant that remedy wherever it is required?

Germane facts of the case

The issue before the Hon’ble Apex Court

Contentions put forth by the applicant (The National Highway authority)

Contentions put forth by the respondent (Sayedabad Tea Company Ltd)

Findings of the Hon’ble Supreme Court

Conclusion

Introduction

The ground of insanity under the Hindu Marriage Act, 1955

Insanity is a prerequisite condition for a valid marriage under Section 5

Insanity as a ground for divorce under Section 13

The calling for amendments in the Hindu Marriage Act, 1955 in relation to the ground of insanity

Conclusion

References

Introduction

What are Electronic Health Records (EHR)?

Legal framework

Challenges in the usability of EHR

Data entry

Adaptability

Accessibility

Availability of information

Privacy

Conclusion

Introduction

Colourable legislation

Division of legislative power between the Centre and states

Concerns and limitations on the application of the doctrine of colourable legislation

Case laws

Conclusion

References

Introduction

Switzerland

Organization

Power

Function

Jurisdiction

United States

Organization

Power

Function

Jurisdiction

Critical analysis

Similarities

Differences

Conclusion

References

Introduction

Goods and services tax: An overview

Components of GST

Laws before GST

Laws after GST

Offences under the Act are

Penalty

Prosecution

IPC Sections used in GST

Section 120A and Section 120B

Section 463 to Section 468

Cases where offences are exposed to IPC

Factual background

Judgment

Analysis

Conclusion

References

Introduction

Custodial death

Death in judicial custody

Compensation for the violation of the fundamental right to life

Compensation for custodial death

Quantum of compensation

In what kind of cases should compensation be paid

Ruvee Parveen v. State of NCT Delhi and ors.

Principles for the grant of compensation

Conclusion

References

Introduction

Historical background

Kinds of bail