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Strong and weak form of judicial review

By
Sneha Mahawar
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0
Judicial

This article is written by Amrit Kaur, a student of Dr. B.R. Ambedkar National Law University, RAI, Sonepat. The article talks about the strong and weak forms of judicial review.

Introduction

The development of the contemporary welfare states, as well as the rise of regulatory processes, has resulted in increasing government involvement over many aspects of citizens’ lives, and in such a scenario the power of judicial review is and must be vested in the courts.

Therefore, judicial review plays a very significant role in today’s world, and accepting its importance, in this article, we will be having a look at what judicial review is, followed by a discussion on weak and strong forms of judicial review.

Judicial review – an overview

A judicial review is a form of court proceeding in which a judge reviews the legality of a public body’s decision or action. In other words, judicial reviews are a challenge to the procedure by which a decision was reached, rather than the rights and wrongs of the result itself. It is the authority exercised by a country’s courts to scrutinize the acts of the legislature, executive, and administrative branches of government and to ensure that such actions are consistent with the provisions of the nation’s Constitution.

Judicial review in India

​The British reforms aided India in developing its current legal structure. The collection of institutions created by the concept of constitutionalism includes the Parliament, the Judiciary, and the Executive apparatuses such as bureaucracy and the police, as well as the formal framework of Union-State relations and the election system.

The Indian judiciary is a single integrated and unified system of courts for the Union as well as the States, which administers both Union and State legislation, with the Supreme Court of India at the apex of the whole system. The growth of modern nation-states and constitutionalism may be traced back to the establishment of the judicial system.

The Indian judiciary performs a crucial function as the guardian of the constitutional ideas bestowed upon us by our founding fathers. The judiciary attempts to rectify the harm done by the legislature and the executive, as well as to give every citizen what the Constitution promises under the Directive Principles of State Policy. All of this is made possible by the power of the judiciary, i.e., the power of judicial review.

The rule of law is the foundation of democracy and the court has major responsibility for its execution. This is now a fundamental component of every constitution, which cannot be changed even by the exercise of additional parliamentary powers. It is the responsibility of the judiciary, to guarantee that democracy is inclusive and that everyone who possesses or exercises public authority is held accountable.

Judicial review is regarded as part of the basic structure of the Indian Constitution. It is also known as the Indian judiciary’s interpretational and observational role. With the repeal of the locus standi principle, suo moto cases and public interest litigation (PIL) has permitted the judiciary to intervene in numerous public affairs even when there is no complaint from the injured party.

The judicial review is important because the Constitution’s supremacy must be maintained. It is critical for preventing potential abuses of power by the legislature and executive. It safeguards people’s rights. Moreover, it keeps the government’s federal structure in balance, ensures the judiciary’s independence, and precludes the executive’s tyranny.

It is to be noted here that there is no specific provision in the Constitution allowing courts to nullify laws, but the Constitution has imposed precise restrictions on each of the organs, the violation of which renders the legislation void. The court is tasked with determining whether any of the constitutional limits have been violated or not. However, some of the constitutional provisions that support the judicial review process are:

  • Article 372(1) provides for judicial review of pre-constitutional law.
  • Article 13 states that any law that violates any of the provisions of the part of Fundamental Rights would be declared null and void.
  • Furthermore, under Article 32 and 226, the Supreme Court and High Courts respectively, are entrusted with the responsibilities of protecting and guaranteeing the fundamental rights of the citizens.

Types of judicial review

Reviews of legislative actions

This review implies the authority to ensure that legislation approved by the legislature complies with the provisions of the Constitution.

Review of administrative actions

This is a mechanism for enforcing constitutional discipline on administrative agencies as they carry out their powers.

Review of judicial decisions

This review is used to correct or alter prior judgments made by the judiciary itself.

Strong judicial review vis-a-vis weak judicial review 

  • The emergence of innovative mechanisms designed to address and mitigate the tension between rigid constitutionalism and judicial activism on the one hand, and fundamental democratic governing principles on the other, has been one of the most amazing characteristics of the global convergence towards constitutional supremacy and active judicial review. This collection of institutional tools has been dubbed as a “weak-form” of judicial review. However, under the strong form of judicial review, judicial interpretations of the Constitution are binding on all branches of government. 
  • The weak form of judicial review allows the legislature and executive to limit or circumvent constitutional rulings by the judiciary as long as they do so publicly. 
  • The United States is the epitome of strong judicial review whereas Canadian law is the epitome of weak judicial review. The difference between these two legal systems becomes apparent when a court overturns legislation based on an interpretation of a constitutional clause and where this interpretation is reasonable, though it is still challenged by the legislature.
  • The Canadian Charter of Rights and Freedoms (1982) has two well-known and frequently referenced instances of such mechanisms: the “limitation clause” (Section 1) and the “override clause” (Section 33). The emphasis in Section 1 is on the judicial balancing of rights provisions and other equally essential imperatives. Few constitutional catalogues of rights express the idea that no constitutional right is “absolute” in such a clear way. In the shadow of Section 1, rights litigation and jurisprudence are inherently attentive to macro public policy considerations that are “demonstrably justified in a free and democratic society” and that would fall outside the purview of rights jurisprudence per se, in most other constitutional democracies. The inherent subjection of Canadian rights jurisprudence to wide public policy considerations has led to sound, middle-of-the-road Supreme Court of Canada rulings on a huge number of potentially divisive issues.
  • This tendency towards weak-form, dialogical evaluation is not exclusive to Canada. The creators of the new constitutional arrangements in Canada, as well as other Westminster-style political systems such as the United Kingdom, Israel, South Africa, and New Zealand, had to take into account the enduring political traditions of parliamentary sovereignty.
  • There are only three ways which can overturn or override a court’s interpretation of the Constitution is a strong judicial review system:
  1. When the court itself reverses its own decisions.
  2. Through informal common law evolution, the court can alter its interpretation.
  3. The Constitution can be amended by a legislative body (or bodies).

On the other hand, the weak judicial review allows these three ways, plus a fourth one also, and the legislature can simply enact the bill anew, “notwithstanding” the constitutional clause or the court’s interpretation of it. In Canada, such an “in-your-face” statute becomes law, but not in the United States. 

  • The legislators never get to alter court interpretations of constitutional provisions under a pure system with a strong judicial review (other than by means of a new constitutional amendment). However, legislators always get to alter judicial interpretations of constitutional provisions under a pure system with a weak judicial review (simply by passing an in-your-face statute).

Weak courts, strong Rights : Judicial review and social welfare rights in comparative Constitutional law – Mark Tushnet

Mark Tushnet is one of the most influential constitutional theorists of the United States. Like many of his contemporaries, he is sceptical about constitutionalized rights, especially the advantages of judicial supremacy. This goes against the longstanding liberal tradition in American legal and political thought that has hailed the United States Constitution as the pinnacle of the country’s exceptionalism. Tushnet is a major proponent of the concept of “popular constitutionalism,” which contends that the electorate and lawmakers should have the authority over the interpretation of constitutional rights as compared to the judges. In a series of papers and books, he has developed and supported this viewpoint, the most recent of which is “Weak courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law”.

Mark Tushnet in his book, has talked extensively about the strong and weak forms of judicial review. Tushnet employs a comparative method. He claims that a weak judicial review system is more democratic and hence better than a strong judicial review system. Tushnet only examined these two models, most likely because they are the most prevalent today. Nevertheless, neither strong nor weak judicial review is the ideal option if a third option is superior. Tushnet considers Canada as having weaker courts and better social and economic rights than the United States, and this contrast appeals to him. Tushnet’s fundamental argument is that the “weak-form” of judicial review has significant benefits over the “strong-form” of judicial review, which is the hallmark of American constitutionalism, especially when it comes to implementing social welfare rights.

Tushnet adds two caveats in his book here. To begin with, he does not believe that strong and weak-form reviews are mutually incompatible. Rather, they exist on a continuum that is defined by the period of time that judicial interpretations of rights are expected to last for. In a weak form of judicial review, mechanisms allow lawmakers to reverse or alter court rulings within a reasonably short time frame. In strong form systems, the process of overturning judicial interpretations is primarily in the hands of judges and it usually takes a long period of time (if it happens at all). Second, a deferential standard of constitutional review should not be confused with a weak form of judicial review. The notion of constitutional review and deference are difficult to reconcile. Deference, on the other hand, is a response to a different question than that of who has final authority over the constitutional meaning and it refers to the breadth provided by courts to lawmakers’ interpretive efforts.

​​Tushnet refutes a number of common assumptions about the legislature’s institutional and procedural weaknesses, as constitutional interpreters compared to courts, such as that their members are elected, that they have strong incentives to favour majority interests, and that they are not bound to offer reasons for their decisions. Surprisingly, he makes no mention of what may be the most important methodological distinction between courts and legislatures: judges’ obligation and practice of operating through precedent. Even if one thinks, as Tushnet does, that precedent does not mandate legal “solutions” to constitutional concerns, courts contribute to the general debate in society regarding constitutional matters through their precedent discourse. The simple act of assimilation of judges’ and politicians’ discourse appears to devalue that conversation.

Tushnet concludes that positive social and economic rights are recognized in Canadian jurisprudence. This conclusion might surprise many observers who argue that the Supreme Court of Canada should do this, but that it has consistently neglected to do so. On the other hand, Tushnet grounds his case on the Supreme Court’s rulings in Vriend v. Alberta (1998) and Eldridge v. British Columbia (A.G.) (1997). In the first case, the Supreme Court expanded the scope of statutory human rights protection to include discrimination based on sexual orientation. In the second ruling, the court-mandated that governments offer sign language interpreters as part of public health services. Both instances constitute important court recognitions of constitutional positive rights.

Tushnet’s second claim is that weak-form judicial review is better than strong-form judicial review at developing and enforcing social rights. According to him, weak-form review, in general, is better at addressing the issue of courts’ institutional ability to make orders in social policy areas because it recognizes that constitutional interpretation is dialogic and subject to error. Lastly, Tushnet points out at the end of his thesis that there is no clear or essential relationship between strong-form judicial review on substantive constitutional issues and the application of what he calls the so-called “strong” or “weak” judicial remedies.

Conclusion 

The strong and weak forms of judicial reviews are the two forms of judicial review recognised today. One cannot claim one to be better than the other, though Tushnet’s famous work claims the weak form of judicial review to be better. But, this whole thing is a subjective matter where no one can firmly claim one form to be better than the other. Moreover, as stated earlier, there might be some other form of judicial review (e.g.- one that is a mixture of both strong and weak forms of judicial review) that is still unknown and might turn out to be better than these two. 

References

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The concept of constitutional patriotism

By
Diganth Raj Sehgal
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0
Image source: https://bit.ly/2FWLeVL

This article is written by Ridhi Mittal, a student of Symbiosis Law School. This article talks about what is constitutional patriotism and its existence in different places.

Introduction

The Constitution is the living document and guide of laws and rights. It is a body of fundamental principles established by our ancestors. On the other hand, patriotism is a feeling of love or we can say devotion to one’s own country. These two when put together might seem contradictory terms as the Constitution limits political power whereas patriotism mobilizes people for political sacrifice. When put together, constitutional patriotism means attaching itself or having devotional feelings for the Constitution of their country rather than any particular society or nation. 

Through this article, we get to know about the origin of the idea of constitutional patriotism and the recent concepts under which it is dealt with. Also, this article contains details regarding the implications of constitutional patriotism when it comes to different societies. Patriotism is the belief in the values and norms whereas nationalism means the feeling of one’s superiority. Constitutional patriotism is the love for one’s country and belief in its doing whereas constitutional nationalism means that one believes that whatever his country does is right and is superior to other countries. Under nationalism one looks for the combined interest of the nation rather than an individual or a particular group. 

Origin of the theory

This theory dates back to the post effects of World War II, wherein, West Germany (a half nation) people were having a feeling that their nationality has been compromised on the account of their nazi past. The then evolved theory of constitutional patriotism dealt with the memory of the holocaust and militancy of the Third Reich with a protective and state-centered means. It was Karl Jaspers, a liberal philosopher, who, after the war, suggested the idea of constitutional patriotism in terms of collective responsibility to deal with German political guilt. Dolf Sternberger, a student of Karl Jaspers, coined the term constitutional patriotism in the late 1970s by expressing it as a means of establishing peace and harmony in Germany post world war II. He made the citizens believe that it was a protective measure against all the internal and external threats. Therefore, for the protection and security of the people, he linked constitutional patriotism with militant democracy.

When it comes to the literal theory, it was Jurgen Habermas, who developed the context and spread the idea of constitutional patriotism into various countries. For him, this concept was a conscious strengthening of political principles. His idea differed from Sternberger a little as Sternberger talked about constitutional patriotism in terms of defending demarcation institutions but Habermas talked about constitutional patriotism in terms of public reasoning. He got context for his theories from West Germany. He suggested unifying West Germans with the support of constitutional patriotism. It was thought to be superfluous after the unification of the country but instead was criticized as a poor substitute for a proper national identity. This concept of constitutional patriotism has been proved as a solution to the different political allegiances faced by multicultural societies.

Constitutional patriotism and its possible implications in highly diversified societies

When we talk about diversified societies, India is the best example as it has several different cultures within a specific territorial boundary. For instance, the diversity of India can be broadly categorized into 4 directions- north, south, east, and west, each direction representing a different culture or values. Constitutional patriotism, on the other hand, means devotion, love, and loyalty towards the Constitution. Although, we can say that the Constitution best caters to the needs of the people and is a great choice to adopt the concept of constitutional patriotism but that is only in theoretical terms. 

When we see the practical implications of this theory, it is quite difficult to execute it. Everyone respects each other but still there lies religious and cultural differences between people. Everyone thinks highly of their culture and treats the other one below themselves. Therefore, shifting this respect and love from their respective values and norms to a fixed set of rules can be a bit challenging. It may be possible but will consume a lot of energy and skills of people. People still can fight anytime and anywhere on religious grounds. 

Another example can be America, where several small states constitute one country known as the United States of America. People belonging to different states are devoted towards their self-state and follow the rules there and not of the USA as a whole. The feeling of nationalism and patriotism amongst the citizens of America are towards their state. Similarly, in India, people are more inclined towards their state rather than a country. For instance, when there is a fight between a Punjabi and a Gujrati, and a 3rd person who is also a Punjabi comes in between, he will take the side of a Punjabi only as he has a feeling of commonness with that Punjabi rather than the Gujarati. Here, we can see how religious or cultural patriotism is more in practice rather than constitutional patriotism in the country.

Deliberative democracy

Deliberative democracy, in layman terms, means deliberating and discussing any issue or topic thoroughly before making any political decision. People of the country talk about issues, exchange their opinions, and formulate a decision with keeping in mind the public good. Constitutional patriotism in this respect ensures that political decisions are taken better when people argue, give their opinion, find positive and negative points of an issue and then form a decision rather than giving choices to a body or organization to choose what they feel is best. Preferences are set as per collective decision-making instead of self-interests. It is more related to the exchange of information, drawbacks, and justifications and not having any conflicts or competitions due to conflicting interests. But this is not as easily done as it is said. 

With a population of millions and crores, it is very difficult and somewhere unreasonable to include everyone in the discussions related to political decisions and policies. There are several modes of expression and styles that are not accepted, adhering to which it is almost impossible to have such diversified discussions over several issues. Constitutional patriotism in a way can answer the problems of deliberative democracy. Deliberative democracy talks about having discussions and coming to a conclusion that is of the public. Constitutional patriotism here acts as the motivating factor because it ensures the allegiance of people to its Constitution and the Constitution of any country ensures that its citizens benefit from it, their rights and properties are safeguarded. Therefore if the feeling of patriotism is in terms of their Constitution then people will make decisions in respect of it thereby coming to a common conclusion.

Constitutional patriotism in India

When we talk about constitutional patriotism in India, it is yet to evolve. But seeing the conditions in India, people might turn to constitutional patriotism very soon. People of different languages, religions, and cultures are seeing constitutional patriotism as an alternative to these problems. They feel that having a feeling of love and affection towards the Constitution will give better results than pledging their loyalty towards any government. It feels like it won’t be long before the concept of constitutional patriotism takes a drastic turn in India. It embodies an entire worldview of restructuring the society and state in a certain manner, with the Constitution itself being placed at the center. 

To quote Pranab Mukherjee, 13th President of India, “from our Constitution flows our nationalism and the construct of Indian nationalism is constitutional patriotism”. He meant that when thinking of nationalism, that is, feeling of brotherhood, love, and devotion for the citizens of the country, one shall imagine its Constitution. The Constitution acts as the guiding bible of India, it is a living document which amends according to time and is flexible enough to include every diversified citizen of its country. 

India has already seen a partition war in 1947 on religious grounds and to avoid any such internal or external conflict in the future, the country should be united and not divided because of diverse cultures and religions. To cater to this need, constitutional patriotism is the best solution as the Constitution treats everyone equally and prohibits discrimination therefore, if one regards the Constitution as the head and not the government then he/she will work accordingly. Thus to keep the country united, constitutional patriotism is the answer, especially in a country like India where the Constitution is the guiding path. But in case if the Constitution proves to be a hindrance to the quality and brotherhood of the citizen, the patriotism towards it will tend to decrease.

In recent times, for example, the ongoing farmer protest against the Farmers Bill introduced by the government and also the Anti-CAA protest have proved to be a game-changing point. The amendments made through these 2 Bills in the Constitution have created a protest-like situation in the country. The farmers have been sitting in protest since 9th August, 2020 against the farmer Bill passed by the current BJP government. Even the Citizenship Amendment Act, 2019 has been a bone to the idea of constitutional patriotism as both of them have led people to believe in the dysfunctioning and poor policy-making of the government rather than towards the strong-mindedness of these people. The introduction of these constitutional Bills in the country has created a long gap between people and the idea of constitutional patriotism.

There is another angle to this whole method of constitutional patriotism through protest. When people come together to protest against a bill or any amendment, they have a feeling of hatred amongst themselves but when seen from an outer perspective it looks like love and unity amongst the citizens of the country. For example, if we take the case of farmer Bill, everyone marched to Singhu border, Delhi to protest against the Bill with a feeling of hatred towards the government but when seen superficially it seems as if due to the love and unity amongst the citizens, they got together for the protest. Therefore it is hate portrayed as love and unity that brings together the people of the country.

Case laws regarding constitutional patriotism

The most prominent and important case law in terms of constitutional patriotism in India is Shyam Narayan Chouksey v. Union of India (2018). This case talks about the position of law in India in terms of standing up for the National Anthem. The petitioner in this case talks about how the National Anthem has been used as a commercial symbol, its dramatizations, and different interruptions of the anthem being played. He referred to the Insults to National Honour Act, 1971. The debate regarding the National Anthem being interrupted and also being played in a movie theatre took place. The question of whether all should stand for the anthem in a theatre was raised during these deliberations. The Supreme Court, in this case, said that the recommended orders by the side of the petitioner be implemented. The recommendations proposed, thus included the point that every patron must stand while the National Anthem is played in the beginning and the doors of the theatre hall must be closed and no one will be allowed to leave.

The judgment, although in utmost good faith, tried to instil a sense of patriotism and nationalism by invoking the responsibilities stated in Article 51A, does put the common man in a tough spot. By passing an order that made it mandatory for all patrons viewing a movie to stand while the National Anthem is played, in essence, does restrict the freedom of expression of the people. ​​As Rabindranath Tagore once remarked, “Patriotism cannot be our final spiritual shelter; my refuge is humanity. I will not buy glass for the price of diamonds, and I will never allow patriotism to triumph over humanity as long as I live.” Patriotism is not just concerned with following the set rules and regulations and norms of the society but it is more about the depth of this feeling in the hearts of the people. A patriot may opt to devise an exclusive mechanism/mode of expression of loyalty towards the nation. Even though a common expression of depiction is more appreciated, yet every patriot may have his own way of expressing his love for his country and loyalty towards them. 

Through this case of Shyam Narayan Chouksey v. Union of India (2018), Hon’ble Justice Mishra gave seven commandments of constitutional patriotism. They are as followed:

  • The National Anthem, in any case, should not be commercially exploited by anyone.
  • Dramatising of the National Anthem by any citizen should not take place.
  • Disgraceful presentation of the National Anthem in any kind should not be displayed.
  • Respecting the National Anthem is the prime duty of every citizen in the country.
  • The absence of every kind of disturbance during the playing of the National Anthem should be mandatorily ensured.
  • One shall have the anthem in the background, and the flag on the screen and patriotism in the heart.
  • Any abridged version of the National Anthem shall not be shown or played.

Relevance of the idea concerning European Union

European Union, headquartered in Brussels, Belgium, is a political as well as economic union of 27 members founded on November 1st, 1993. There are majorly 6 founding members – Germany, Italy, France, Netherlands, Belgium, and Luxembourg. Constitutional patriotism is seen as very important in the European Union as it has no single shared history or culture. When one generally talks about constitutional patriotism, they imagine patriotism towards the Constitution of the country but here lies a twist because we are not talking about any country but a whole union. Constitutional patriotism is seen in terms of political order. Creating a unified European identity is a difficult task, but constitutional patriotism has offered a liberal alternative to other forms of nationalism. People in the European Union are free to choose their culture and traditions as per their country and still have a common patriotic identity with other people in the EU. 

Constitutional patriotism holds a political order accountable because people have the choice to be constitutionally patriotic. People will only feel pride in a political order they feel warrants the emotion. Citizens of the EU have their individual choices as well as are patriotic to the Constitution of the EU which promotes multicultural and multireligious approaches. But the countries that do not abide by its Constitution and have their rule creates a bit of a problem as they rely on the electoral accountability of their citizens only. The preamble of the EU promotes the ideas of human rights, democracy, rule of law, human dignity, freedom, and equality. These are the core values promoted by constitutional patriotism also. Constitutional patriotism connects the different nations within the EU and brings out a feeling of unity and love amongst them for each other.

Conclusion

Constitutional patriotism is a feeling of patriotism, love, and devotion to the Constitution of the country rather than the nation itself. It evolved after the 2nd world war in Germany for the welfare and safety of its people. Many philosophers, especially German philosophers, talked about constitutional patriotism in their theories. Karl Jaspers, Dolf Sternberger and Jurgen Habermas were few of them.

Constitutional patriotism promotes the idea of deliberative discussions wherein one person does not take the political or economic or any decision of the country as per his self-interest but takes it for the public good. This is one of the reasons it gives the Constitution such importance because a Constitution of a country is made after a lot of arguments and discussions and the final verdict is made with a utilitarian theory, that is, what is best is what benefits the larger group. For instance, the Constitution of India was made by 100’s and thousands of arguments and discussions. It consumed a lot of time and effort of the intellects making the Constitution but all was worth it as it has the experience of the past, knowledge of the present, and is ready for what’s next to come in future. It is a living document mentioning all the plus and minus points. Even today, when any change is to be made, or any bill is to be passed, a body of intellectuals discuss it in detail and then decide in respect of what will be best for the public. But it has an implication as well, constitutional patriotism seems to be more easy and relevant in theory rather than when practically done. It is more of a theoretical idea than being a practical one. 

References

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All you need to know about the Taliban Afghanistan issue

By
Diganth Raj Sehgal
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0
Image Source: https://bit.ly/3yDi9If

This article is written by Vanya Verma from O.P. Jindal Global University. This article talks about the current situation in Afghanistan and the stances of various countries that are helping Afghanistan to deal with the current situation.

Introduction

The Taliban, a militant group that ruled Afghanistan in the late 1990s, reclaimed power in Afghanistan just two weeks before the United States was supposed to withdraw its troops after a costly two-decade war.

As Afghan security personnel that were trained and equipped by the US and its allies ran away and the insurgents rushed over the nation, taking all major cities in a couple of days

The Taliban were driven out of power by the US-led invasion of Afghanistan in 2001, but they never departed. The Western-backed government that had ruled the country for 20 years crumbled after a recent blitz across the country. Afghans, fearful of the future, are rushing to the airport, which is one of the country’s final exit points.

As the Taliban surged throughout the country, President Ashraf Ghani made few public pronouncements but later he fled the country. He departed Afghanistan on Sunday as the Taliban approached the city, claiming that he chose to leave to avoid further violence.

Here’s what you need to know

Reason behind the fallback of the Afghan army

The short answer is corruption. Over the last two decades, the United States and its NATO allies have spent billions of dollars training and equipping Afghan security personnel. The Western-backed regime, on the other hand, was riddled with corruption. To syphon off resources, commanders inflated the number of soldiers, and troops in the field frequently lacked ammunition, supplies, and even food.

When it became evident that the United States was leaving, their morale plummeted even more. In recent days, as the Taliban advanced fast, entire units surrendered after brief battles, and Kabul and some adjacent provinces fell to the Taliban without a fight.

Reason behind Afghans leaving the country

The people of Afghanistan are running away from their home country as they are concerned that the country would devolve into disorder, or that the Taliban will take harsh revenge against individuals who worked with the Americans or the government.

Many people are also concerned that the Taliban would reintroduce the strict interpretation of Islamic law that they used when they ruled Afghanistan from 1996 to 2001. Women were not allowed to go to school or work outside the home at the time. When they went outside, they had to wear the all-encompassing burqa and be accompanied by a male relative. The Taliban outlawed music, amputated thieves’ hands, and stoned adulterers.

In recent years, the Taliban has attempted to portray themselves as a more moderate force, promising not to take revenge, but many Afghans are sceptical of those promises.

Reason why the Taliban took over Afghanistan at this time

Most likely because US forces are scheduled to leave at the end of the month. For several years, the United States had been attempting to exit Afghanistan, its longest war until now.

When American troops invaded to root out Al-Qaida, which coordinated the 9/11 attacks while being harboured by the Taliban, they did it in a couple of months. Holding land and rebuilding a nation devastated by wars proved more challenging. As the United States’ focus went to Iraq, the Taliban regrouped and, in recent years, took control of much of Afghanistan’s countryside.

Last year, President Donald Trump announced his intention to withdraw and signed an agreement with the Taliban that limited US military operations against them. President Joe Biden then announced that the last troops would leave by the end of August. As the deadline approached, the Taliban launched a rapid onslaught, capturing city after city.

Rising threats for women 

Many people are concerned that it will result in a significant reduction in civil liberties. Since the Taliban’s ouster, Afghan women have achieved significant progress. Many people are concerned that they will be confined to their homes once more. The Taliban have stated that they are no longer opposed to women going to school, but they have yet to establish a clear policy on women’s rights. Even under Taliban leadership, Afghanistan is an immensely conservative country, especially outside big towns, with women’s status varying greatly.

What will happen next in Afghanistan?

It’s unclear as to what is the future of Afghanistan and where the country is heading towards.

The Taliban have stated their desire to build an “inclusive, Islamic administration” with other groups. They are negotiating with top politicians, including former government officials. They have promised to uphold Islamic law while also promising to create a safe environment for the resumption of normal life after decades of conflict.

Many Afghans, however, are wary of the Taliban, fearing that their reign will be brutal and authoritarian. One sign that people are concerned about is their desire to rename the country the Islamic Emirate of Afghanistan, as they did the last time they governed.

Key facts about the current situation in Afghanistan 

  • According to the United Nations Refugee Agency, at least 400,000 Afghans were displaced within their own nation due to war in 2021.
  • According to Reuters, the US has evacuated 1,200 Afghans who have been granted Special Immigrant Visas (SIV), which are for former interpreters and other helpers to US forces who are at risk of reprisal, and Washington plans to bring out 3,500 more in the coming weeks, while secretly attempting to persuade countries in Central Asia and the Balkans to accept refugees.
  • The State Department announced on August 2 that thousands more displaced Afghans will be able to apply for asylum in the United States, with the creation of a new refugee category for those who are at risk because they worked for U.S. nongovernmental organisations or media outlets but they must first cross into a third country, much of which is now under Taliban control.
  • Many of the nations that have agreed to halt deportations and accept more migrants are NATO member countries, which has formally led the international coalition of western troops in Afghanistan since 2003.
  • On August 5, NATO members Germany, Denmark, Belgium, the Netherlands, and Greece, as well as Austria, wrote to the European Commission urging that deportations continue for Afghans rejected for asylum.
  • As the Taliban took control of vast swaths of Afghanistan in the days after, the Netherlands, Denmark, and Germany reversed course and halted deportations, with Denmark agreeing to admit 45 Afghan nationals who worked for the country’s troops, according to Al Jazeera.
  • After the Taliban took control of more than half of Afghanistan’s provinces and its second and third largest cities, immigration authorities from Austria, Greece, and Belgium justified their positions in interviews and statements on Twitter as late as Saturday.
  • According to Al Jazeera, Finland, Sweden, Norway, and France have all stopped deporting people to Afghanistan.

Response of other countries towards Afghanistan’s taken over by Taliban

Country   

Countries response

India  
  • On August 17, the Indian Air Force (IAF) sent a special jet into Kabul, Afghanistan, to rescue stranded Indians, including embassy workers and their families. People familiar with the situation, the government will not jeopardise the lives of its embassy personnel or Indian citizens in Kabul.
  • The IAF has a fleet of C-17 Globemaster military transport aircraft on standby to carry out evacuation missions. One C-17 Globemaster was dispatched to war-torn Afghanistan on Sunday, August 16 and arrived in Delhi carrying Indian residents on Monday morning, while another took flight from the Hindon air force base in Uttar Pradesh’s Ghaziabad on Monday but was forced to reroute to Tajikistan due to chaos at the Kabul airport. It landed at the airport later to evacuate residents.
  • India evacuated its embassy in Kabul early on Tuesday, August 17 with an Indian Air Force flight carrying 170 Indians that included the ambassador along with staff members and paramilitary guards.
  • In light of the current scenario in Afghanistan, India has created a new category of e-visa for Afghan nationals to expedite their entry applications. These visas will only be valid for six months, and it is unclear what will happen when that time runs out.

Canada
  • Canada’s immigration minister announced Friday that the country will accept 20,000 Afghan refugees, priority will be given to human rights activists, women, LGBTQ persons, and others at risk of Taliban persecution.
  • According to Trudeau, 807 Afghans, 34 Canadian diplomats, and members of the Canadian Armed Forces had been evacuated under a special immigration programme. His government had previously refused to disclose the number of refugees it had helped, citing security concerns.
  • The 807 Afghans who were evacuated were helped as part of a programme introduced last month to help the families of Afghan interpreters and other support workers who worked with the Canadian Armed Forces and diplomatic mission in Afghanistan resettle. More than 500 people have already landed in Canada, according to Trudeau.
  • Further, he said that Canada has also evacuated two international ambassadors and five NATO personnel, with the intention of resettling up to 20,000 Afghans as quickly as possible. Last Monday, his government declared the 20,000-strong objective, but only for people who have already fled Afghanistan for other countries.

United States
  • Since Saturday, when US President Joe Biden defended the decision to withdraw troops, he has not talked publicly about the situation in Afghanistan. In the next few days, he is anticipated to deliver a speech.
  • On Monday, US National Security Adviser Jake Sullivan blamed the Taliban’s quick takeover of Afghanistan on the Afghan military’s ineptitude.
  • Biden did not want the US to begin a “third decade of conflict” in Afghanistan, according to Sullivan, and believed it was time for the Afghan army to protect the country two decades after the US invested billions of dollars in training and investment.
  • Secretary of State Antony Blinken said late Sunday on CNN that the US can only “operate with and recognise” a government that “upholds the basic rights of its people and does not harbour terrorists.”

United Kingdom
  • On August 18, the UK government declared that those who have been forced to evacuate their homes or fear Taliban persecution will be given the opportunity to permanently settle in the UK. During the first year of the resettlement scheme, the government will resettle 5,000 Afghan citizens who are at risk due to the current crisis, with women, girls, and religious minorities receiving priority. Through this scheme, the UK hopes to resettle 20,000 Afghan nationals.
  • The Taliban’s takeover of Afghanistan is a “failure of the international community,” according to UK Defence Secretary Ben Wallace, who believes the West’s operation in Afghanistan is just half-completed. “We are all aware that Afghanistan is not yet completed. He told BBC television, “It’s an unfinished problem for the world, and the world needs to help it.”

Iran
  • Iranian President Ebrahim Raisi has stated that the United States “military failure” in Afghanistan provides an opportunity for the country to achieve long-term peace. Iran has previously been accused by the US of providing covert aid to Taliban fighters fighting US forces. This has been refuted by Tehran, which favours an inclusive Afghan administration that includes all ethnic groups and sectors.
  • Raisi was quoted by Iran’s state television as saying, “America’s military loss and exit must become an opportunity to restore life, security, and a lasting peace in Afghanistan.” “As a neighbouring and brother nation, Iran supports efforts to restore stability in Afghanistan, and Iran welcomes all Afghan groups to establish a national agreement.”

China
  • China announced that its embassy in Kabul will remain open and that it is eager to assist in the country’s rehabilitation. When asked directly whether Beijing would recognise the Taliban as the new administration, Foreign Ministry spokesperson Hua Chunying stated that China will respect the Afghan people’s choice.
  • She pointed out that the Taliban agreed to negotiate the formation of an inclusive Islamic government and to protect the safety of Afghans and foreign mission personnel. China expects that this would “ensure a smooth transition of the situation in Afghanistan,” she added.

Pakistan
  • According to the Foreign Ministry, Pakistani Foreign Minister Shah Mahmood Qureshi promised a visiting delegation of the former Afghan government on August 16 that his country will continue to play a role in maintaining peace and stability in Afghanistan.  Former Afghan parliament speaker, Mir Rahman Rahmani, lead the delegation.
  • Since 2002, the UN High Commissioner for Refugees (UNHCR) has resettled 3.2 million Afghans. According to data from April 2021, more than 1.4 million Afghan refugees have remained in Pakistan since then.
  • Afghans are now free to cross the border and enter Pakistan, but Pakistan has stated that its border with Afghanistan will be sealed.

Russia
  • On 16th August, the Russian envoy to Afghanistan stated that Moscow will decide whether or not to recognise the new Taliban government based on its actions.
  • “No one is going to rush” the decision, according to Zamir Kabulov of the Ekho Moskvy radio station. “Whether the new powers are recognised or not will be determined by their actions,” Kabulov stated.
  • Russia designated the Taliban as a terrorist organisation in 2003 but has subsequently hosted many rounds of talks with the group in Afghanistan, the most recent in March 2021

European Union
  • Josep Borrell, the EU’s top diplomat, confirmed that EU foreign ministers will convene for an emergency video conference on Tuesday.
  • According to Borrell, the meeting will be used to make a “first assessment” of the issue. He said that “Afghanistan stands at a crossroad. Security and wellbeing of its citizens, as well as international security, are at play”.

Germany
  • Following the Taliban’s takeover of Afghanistan, Germany is one of the western countries that has welcomed Afghan refugees.
  • Angela Merkel, Germany’s chancellor, said that her country could accept 10,000 Afghan refugees. As of August 20, 1,600 persons, including German citizens, had been evacuated from Afghanistan.
  • “These are people who worked for the German military or relief organisations. The number of people who are eligible seems to be limited.”, The Chief Euro Zone Economist, Holger Schmieding, told the media.
  • The German government has urged the Taliban to exercise moderation, protect Afghan civilians, and ensure that much-needed humanitarian supplies reach them. Angela Merkel said that Germany is “concerned” about the destinies of individual Afghans as well as the country’s progress.
  • “These are bitter developments,” Steffen Seibert remarked, “when viewed against the backdrop of the Western community of states’ years-long missions.”

Qatar
  • About 640 Afghans on August 16 crammed into a US C-17 transport aircraft to fly to Qatar.
  • In a speech in Jordan on Monday, Qatari Foreign Minister Mohamed bin Abdulrahman Al Thani appealed for stability for the Afghan people.
  • “There is international worry over the escalation of events in Afghanistan, and we emphasise the necessity of not jeopardising the Afghani people’s security, and of restoring stability in Afghanistan as quickly as possible,” he said.

Turkey
  • Turkey initiated an evacuation operation in Afghanistan on Monday, delivering a Boeing 777-300 ER plane to the airport, which returned to Turkey with 324 individuals on board.

UN aid agencies
  • Despite a challenging security situation in Afghanistan following a Taliban sweep across the country, the UN humanitarian aid coordination agency said it and its partners “are remaining and delivering to people in need.”
  • “The humanitarian community– both the UN and nongovernmental organisations– remains dedicated to helping people in the country,” according to the Office for the Coordination of Humanitarian Aid (OCHA).
  • Thousands of internally displaced persons have received help in recent weeks, according to OCHA, including food, cash, healthcare, water, and sanitation.
  • “Humanitarian agencies are staying and providing individuals in need despite the extraordinarily challenging security environment,” OCHA added.

Afghanistan and Sharia Law 

Sharia is a religious law system based on the Koran and hadiths, which are the Prophet Mohammed’s words or acts that are susceptible to interpretation by jurists, clerics, and politicians. Countries following Sharia law differ in their views of the law as well as their levels of compliance. The application of Sharia has long been a point of contention between conservative and liberal Muslims, and it continues to be so. 

According to some readings of some Quranic texts, men are superior to women; faithful women are “obedient,” and if they stubbornly disobey, their male protectors should “strike” or “beat” them as a final resort. In matters of financial and property inheritance, the Koran stipulates that a sister receives half of her brother’s inheritance. Some researchers claim that the disparity in inheritance is mitigated by the fact that men are responsible for financially sustaining the family’s women, elderly, and children. According to another verse, a woman’s testimony is worth half that of a man’s.

For heinous sins such as sexual immorality, theft, or murder, flogging, stoning, and executions are permissible. A condemned person might be pardoned by the family of a murder victim, usually in exchange for blood money.

Between 1996 and 2001, the Taliban ruled Afghanistan with an iron fist, implementing a severe and cruel form of Sharia law. Women’s rights were trampled, and harsh punishments were sometimes carried out in broad daylight to instil terror in the hearts of the population.

What’s next for Afghanistan’s legal system?

As they seek legitimacy from foreign powers, the Taliban appear to be projecting a softer image. They’ve shown signs of easing up on their earlier harsh interpretations of Sharia.

They have promised that those who collaborated with US or Nato soldiers will face no retaliation.

They’ve also guaranteed the protection of minorities and other nationalists.

And that is where the catch lies. What could be the Taliban’s interpretation of ‘Islamic laws’ is a matter of pure conjecture. And there are few to challenge.

Reality after the takeover by Taliban

For good reason, few are taking the Taliban’s words at face value. There have been reports of attacks on those who the insurgents dislike in general.

According to Amnesty International, Taliban fighters tortured and executed nine members of the minority Hazara group in Ghazni province after recently overrunning their village.

Taliban fighters pursuing a Deutsche Welle journalist have killed one member of his family and badly injured another, according to the German public broadcaster; three more of its journalists’ homes have been attacked.

After the Taliban took over the Afghan public television, another lady journalist was barred from returning to work.

Conclusion

Though the Taliban have promised to maintain peace in the country, the situation of the country is out of control. People are living in fear and the schools have shut down, girls and women of the country are fearing that they won’t be able to pursue education any further. Amidst all this chaos people are choosing to leave the country as they fear that the country will go back to how it was twenty years before and they can not enjoy their freedom anymore.

References

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Law of contracts and its implementation in the unorganized sector of India

By
Abanti Bose
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0

This article is written by Pratha Kotecha pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from Lawsikho.

Introduction

India’s workforce belonging to the unorganized sector has been at the front of driving the economy’s extensive progress before the onset of COVID-19. However, despite the improved economic richness; exploitation, poverty, and lack of simple needs are still conventional. This article aims to deliberate on indirect flexible employment contract, the provisions in relation to laws of labour contract applicable in India, specifically the Contract Labour (Regulation and Abolition) Act, 1970, the problems faced in implementing these laws, and solutions recommended.

What are the unorganised sectors?

The operational and functioning force in industries is measured as a feebler section in comparison. But the progress of the economy has led to dual opposing demands for labour. Firstly, organised labour appears to have developed very strongly and is impeding the progress of liberalization. This move has led to restraining labour via amendments to labour laws like the industrial disputes act, the factories act, the trade unions act, or the manner of existing policy.

Secondly, the blue-collar labour force is perceived as a weak and exploited group and there have been several demands for protection of such an organised labour force, for example, forces like child labour, garment workers, construction workers, and agricultural labour, etc. This uncharacteristic situation has arisen because of the division of labour into two categories;

  1. Organised labour: strongly protected by law and has its own auriferous trade unions and 
  2. Unorganised labour: unprotected and, more often than not, exploited before liberalization in the economy. 

Definition of unorganised sector

There is no scientific definition of the term “unorganised sector” and nor was there any real attempt to give a proper definition. The unorganized sector is also called the informal sector. 

Its definition is as follows: “the group of workers, who cannot be defined by definition but could be described as those who haven’t been able to organize in pursuit of a common objective because of constraints.”

The national commission on labour recorded and recognized the below-mentioned types of unorganised labour with the attribution above mentioned.

  1. Contract labour, including construction workers.
  2. Labour is employed in small-scale industries.
  3. Employees in shops and establishments.
  4. Child labour.
  5. Agriculture and rural workers.
  6. Casual labour.
  7. Bonded labour.
  8. Female labour.
  9. Handloom and power loom workers.
  10. Beedi and cigar workers.
  11. Sweepers and scavengers.
  12. Workers in tanneries.
  13. Tribal labour.

The groups mentioned above are the less privileged, whose socio-economic needs require special attention. 

Major characteristics of the unorganised workers

The major characteristics of unorganised workers are:

  • The unorganised labour is overpowering in terms of its numeral range and, therefore, it is omnipresent throughout our country.
  • There is no official employer-employee relationship. For example, small and marginal farmers, sharecroppers, and agricultural labourers perform the work together in a marginally favourable situation.
  • The workplace is spread and is fragmented into pieces. 
  • The unorganised labour force in rural areas is highly satisfied with caste and community considerations. In urban areas, such considerations are fewer, even though not completely absent, as the majority of the unorganized workers in urban areas are essentially from rural areas only. 
  • The unorganised workers suffer from a lack of attention from the trade unions and, as such, are in a disadvantageous position. 

What are contract labourers?

The labourers who are employed through a contract or an agreement to perform certain labour or work for a short-term. The Indian Contract Act, 1872 defines a “Contract” as an agreement enforceable in a court of law. In order to form a valid contract, there should necessarily be mutual obligations, consideration, free consent of the contracting parties, and competency to enter into a contract. The contract may be in the form of a ‘contract to hire’ wherein it could be for a fixed duration as between the employer and employee, or it could be for indirect flexible employment as seen between employer, employee, and third-party agent and contractor.

The employment relationships in our country, involving multiple parties are commonly mentioned as “contract labour”. The same is understood as workers who have been hired for work through a contractor. The term “contractor” here includes both those who have undertaken to supply workers for an institution and those who have undertaken any work in an institution with the help of some contract labour. The laws relating to Contract labour in India are regulated by the Contract Labour (Regulation and Abolition) Act, 1970, which standardizes the employment of contract labour, including but not limited to the provision of protection with reverence to minimum wages, overtime, and social security. This Act explicitly prohibits the use of contract labour in “core activities” which are of a perpetual nature. 

Generally, for white-collar workers, a term is fixed for contracts, and an indirect and flexible employment contract is used for blue-collar workers engaged in manual jobs, mostly seen in the unorganized sector. 

The laws relating to labour contracts in India

Among the several laws governing various aspects of labour, the following were the significant laws in the contractual labour laws department: 

The Ministry of Labour and Employment introduced 4 bills in the year 2019 with an understanding of harmonising and consolidating the numerous legislations relating to occupation, social security, wages and salaries, industrial disputes, and such other applicable labour/employment-related matters. The amalgamation of 29 central labour laws into bills has been codified and enacted as:

What are the problems in the unorganized sector?

When compared to the organized sector, the unorganized sector has not savoured the advantages or assistance of the organization. The majority of them become unseen victims. Although the unorganized sector plays a crucial role in the economy in terms of employment, a significant segment of the workforce was still neglected.

  • Problems of the workforce

The majority of the workforce in the vast informal sector, have little to no awareness of workplace hazards, their dwelling place lies close to working areas, they work for an extended period of time, exploitation is nothing new to them, they have no notion of occupational safety and services, lack of actual implementation of Health and Safety legislation, no concept of trade unions. 

  • Problems of workers in women’s category and “beedi” workers

They are paid desperately poor and low wages, they suffer due to fraudulent contractors, they work in disease-causing environments, child labour, and more than half of the female workforce work in deplorable social conditions. 

  • Problems faced by the government 

Identifying the unorganized workforce sector who are uneducated and unaware of the profits of the organized sector, the sprinkled nature of the sector and the difficulty of keeping tabs, problematic employers avoiding any form of regulation.

  • Problems faced from an organized sector

Unfair and prejudiced competition, low number of employment opportunities, legal “bullying”, the preference of buyers and customers for the better managed and visibly cleaner retail stores, unavailability of financial aid for the unorganised sector in order to easily compete.

What are the problems faced in implementing contractual laws? 

Chapter III rules 25(2)(v)(a) of the Contract Labour (Regulations and Abolition) Central Rules, 1971 states that where a worker is employed by a contractor who does the same kind of work as a worker does, and is directly employed by the principal employer, then, in such a case, the worker shall be entitled to receive the same hours of work, wage rate, holidays, and such other conditions of service as the worker employed by the principal employer receives. However, this provision has not yet been implemented because of a lack of adequate provisions ensuring the simultaneous performance of duties of the employer. The Act is also limited to employers who employ at least 20 or more workers or where the work allotted is less than that of 120 days of casual work or is less than 60 days of seasonal work. Along with that, the Act is silent on workers of less than 20 in total.

Section 10(2) (b) of the Act provides for the abolition of contract labour in an event where the work is of perennial or permanent nature. This provision envisages removing labour after the termination of the contract, but in the case of actual implementation, the workers are employed for an extended period and the enforcement officials are not capable of restricting the use of contract labourers even though it is not in accordance with the law in force.

The provision of ‘equal pay for equal work’ is only on paper and lacks implementation, as the majority of employers pay more for experienced people, and there are biases as to strength, gender etc. 

The new labour codes have focused on the part of an “Inspector-cum-Facilitator”, who has been assigned the responsibility of checking for compliance along with facilitating businesses in achieving that compliance. Nonetheless, this notion of an Inspector-cum-Facilitator has confused the industry with added questions rather than providing answers to its implementation. The “facilitator” role seems to be a new element that could clang with the customary responsibilities of an “inspector”. There could be a situation like the reappearance of the unfairness of some certain kinds of “Inspector Raj” under this new system. 

The implementation of employers’ obligations in pandemic-specific situations is vague and differs for different sectors in India. 

Solution for the contractual problems faced

The unorganized sector should be provided with benefits and welfare such as maternity allowances, relief in cases of accidents, natural death compensation, and education support for children for higher studies, pensions during the rainy season for relevant sectors, etc. should be made even for unorganized sector workers, and its implementation should be done properly. The government at both levels should frame certain specific schemes to support unorganized workers to fulfil their actual needs and requirements. The government should also encourage and motivate unorganised labourers to register their position, as voluntary registration of workers helps in the identification of genuine beneficiaries.

Role of judiciary in expanding the benefits of social security schemes to the unorganised sector

The judiciary of our country plays a pivotal role in the protection of the rights of the unorganized sector, especially in the event of the failure of proper implementation of legislation. Apart from this legislation, the Constitution of India also protects the fundamental rights of unorganized workers. According to Article 12 of the Constitution of India, bonded labour should be identified and efforts need to be made by the Government to complete the rehabilitation of the labourers. The Directive Principles of State Policy (DPSP) were enacted as the guidelines for the governments at both the level to provide a basic human dignity to bonded labour and in an event, it is not fulfilled, the result will be the infringement of Article 21 of the Constitution.

The court in the case of Daily Rated Casual Labour V. Union of India, held that the classification of employees into regular employees and casual employees for the purpose of payment of less than minimum pay is a  violation of Article 14 and Article 16 of the Constitution of India and it is also opposed to the spirit of Article 7 of the International Covenant of Economic, Social and Cultural Rights, 1966. Denial of minimum payment amounts to exploitation of labour. The court further held that the government cannot take advantage of its dominant position and should be a model employer.  

The Supreme Court in the recent case of Bandhua Mukti Morcha v. Union of India developed a direct relationship between Article 21, and directive principles such as Articles 39, 41, and 42 which encompasses the minimum necessities for a life with human dignity. This case also specifically dealt with informal forced labour under a debt bond system.

In another decision protecting informal workers’ right to work, Sodan Singh v. New Delhi Municipal Committee the Supreme Court held that street vending constitutes a profession, occupation, trade, or business (Article 19(1) (g)), and therefore is a fundamental right protected under a citizen’s right “to practice any profession, or to carry on any occupation, trade or business”.

Conclusion

The unorganised sector, which includes the agricultural sector, construction, street vendors, petty service providers, domestic workers, small industries like beedi industries, etc. encompasses the prodigious majority of workers in India. In the unorganised sector, labourers work in extreme circumstances deprived of any proper benefits. Protection, support, and welfare for workers in this unorganized sector are essential for socio-economic progress. The laws made by our government protecting these workers should be implemented in totality and those who exploit such workers must be penalized strictly in order to bring about actual development and progress in our country. 

References

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Impact of COVID – 19 on leave and licensing agreements 

By
Shoronya Banerjee
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This article has been written by Rishav Kiran Vakharia, pursuing the Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.

Introduction

A leave and licensing agreement is mainly an agreement that is entered into by a landlord (licensor) and a tenant (licensee) who’s looking to occupy the property of the landlord for commercial or residential purposes. The leave and licensing agreement allow the licensor to transfer the rights and interests of his property to the licensee for a certain amount of consideration. These licenses have to be registered at the sub-registrar’s office. A license is a personal right granted to a person to do something upon the immovable property of the licensor. This license does not amount to the creation of interest in the property itself but is purely a permissive right to use and occupy the immovable property. It creates no duties and obligations upon the persons making the grant and is, therefore, revocable except in certain circumstances expressly provided. Further, the rights and duties are determined by the terms and conditions of the contract entered by parties, unlike a lease which is governed by the Transfer of Property Act, 1882. The license, when granted, has no other effect than to confer liberty upon the licensee to go upon the land, which would otherwise be unlawful.

The outbreak of the novel coronavirus has created a global pandemic of a previously unexplored level. Over 30 million people were infected and more than a million died due to the virus. Amidst the COVID-19 global pandemic, many businesses have suffered losses as well. As the virus spreads, it causes an adverse effect on the economies of different countries by disrupting and reducing their economic activities. Apart from the industrial sector, various other sectors were also hit by the raging pandemic and were forced to bring about changes to the way they operated. One of the sectors that faced a lot of issues is the real estate sector which also took a major hit during the pandemic. Due to people being forced to accept a lesser salary than usual and others being laid off or fired, people found it hard to keep up with the rent charged by landlords.  A majority of residential leave and licensing agreements are taken by people who work in blue or white-collar jobs who were asked to take a full pay cut or accept a reduced salary in order to retain their jobs. Others entering these agreements were associated with start-up businesses and the pandemic only increased their uncertainties. Most startups did not survive for too long when quarantine restrictions were laid down by the government which led to them going bankrupt and thus, many ended up canceling the licensing agreement that they had signed for their businesses. Even huge companies faced problems while trying to pay rent as businesses had slowed down and people had to be fired. 

Force majeure clause and COVID-19

In general most commercial leave and licence agreements have a force majeure clause. This clause basically means that if under unforeseeable circumstances an event takes place which renders the party to the leave and licensing agreement incapable of fulfilling his or her part of the agreement, it shall be a good enough excuse for non-performance of the contract. Force majeure events include but are not limited to the following:-

  1. Plague, epidemic, and natural disasters such as flood, drought, volcanic eruption, hurricane, cyclone, tornado, landslides, tsunami, etc.
  2. Fire, explosions, nuclear accidents, biological or chemical contamination.
  3. Civil war, riots, military power, a revolution of any sort, war declared by a different country, invasion, armed conflict such as a hostile attack, act of terrorism.
  4. Ionising radiation or radioactive contamination.
  5. General labour disturbances such as strikes, lock-outs, boycotts, occupations of factories and premises.

In India, when the spread of COVID-19 began and the government saw no other way to stop the spread of the virus except by calling for a nationwide lockdown, it gave way to the recognition of this event as a force majeure. No one could have predicted that a pandemic would take place which would lead to people losing their jobs and their salaries. These people did not have the means to pay the rent in full as agreed upon in the leave and licensing agreement which led to the landlords or licensors agreeing to take a lesser amount of rent or revoking the agreement altogether.

A license can only be revoked when the property is destroyed or by a superior force standing altered from what the property actually was when it was given to the licensee. Here, the contract stands revoked only if the two essentials are fulfilled and therefore, it is clear that most licensees could not use this as the pandemic did not destroy or alter properties, it just stopped the licensee from using the property for what it was agreed for by paying the full consideration. and therefore, this gives rise to the force majeure clause under Section 32 of the Indian Contract Act 1872. The invocation of this clause greatly depends on how the same has been defined in the agreement between the two parties. Firstly, there are certain essential elements that have to be fulfilled for the clause to come into play. They are as follows: 

  • There must be an occurrence of an event.
  • There is a default in the performance of the duties mentioned in the agreement.
  • The default in the agreement must be due to the happening of the said event which is beyond the control of the party so invoking the force majeure clause.
  • This default must be absolute and there must not exist an alternative that may render the party able to continue with the contract. 
  • The force majeure clause can be invoked only after a point where there is no other alternative for the party to mitigate the loss despite having tried everything in their effort to manage the risk. 

Therefore, the main question is whether the force majeure clause can be invoked in the case of the COVID-19 pandemic. It is mentioned in the Indian Contract Act that the same can be invoked in the case of the act of god, emergency, calamity, or act of government. Thus, can the pandemic and the lockdown restrictions constitute one of the above for the invocation of the force majeure clause? 

Force majeure mainly talks about unforeseen events taking place due to which there is a non-performance of a contract leading to either suspension or termination of the contract. One can question whether the COVID-19 plague is a biological event or an act of god? Is it hard to say as an event such as this has not taken place for many years and the law pertaining to such uncharted events is yet to be developed? There is no particular definition or legal provision to categorise the same. Many countries have had to change their understanding of existing laws of force majeure to apply them to the pandemic. Taking the United States, for example, the courts there usually interpret force majeure events as severe natural disasters based on the precedent set by the supreme court in Gleeson v Virginia Midland Railway. However, after the pandemic, they had to go against this precedent to allow for COVID to be brought under the ambit of force majeure. Therefore, the courts accepted COVID-19 as an act of god and invoked force majeure but the application also depended on many other instances, such as what is included in the contract, negotiations, dispute resolutions, limitations of liabilities, indemnity, etc.

Impact of COVID-19 on leave and licensing agreements

The Government of India mentioned that COVID-19 constitutes a natural calamity and the disruption of the supply chain of goods will enable the force majeure clause to be invoked. This led to many lease and license agreements being altered to pay deferred rent till the business started making enough profits to pay the rent on the whole. Commercial agreements took a major hit as they were the ones paying the most rent all of which was taken from the profit of the business, however, if the business could not run during the lockdown there were no profits and with no profits came the problem of not having enough money for the payment of the stipulated rent agreed in the contract. The problems did not stop here. While some parties had the ability to pay at least half the rent there were others who could not pay even half which led to the business shutting down and the agreement being revoked. This meant that the licensor would have to find a new tenant for his immovable property which was on its own another problem as no one was looking to set up a business during a lockdown where no one was allowed to go out. Coming to residential agreements, a majority of the population who live in rented properties paid the stipulated rent through the profits or their salary that they had earned either from their business or their job respectively. However, due to businesses shutting down and running under loss and people losing their jobs,  rents were being reduced by 20 – 50% of the originally stipulated rent. It was even ordered by some of the state governments of certain states to allow for deferred rental payment of those who found it difficult to pay rent.

The Hon’ble Delhi High Court had the occasion of analysing suspension of rent vis-a-vis COVID in the recent judgment passed in the case of Ramanand & Ors. v. Dr. Girish Soni & Anr. The tenant in the case had filed a pending rent revision petition and had moved an interim application seeking suspension of rent of Rs. 3,50,000/- per month due to the closure of business activities during the lockdown. He pleaded frustration of contract under Section 56 of the Indian Contract Act, 1872. The High Court consequently analysed the concept of frustration of contract as envisaged under Section 56 of the Indian Contract Act, 1872 and came to the conclusion that the same has no applicability to the case at hand as the agreements of the lease are executed contracts as different from executory contracts as executory contracts are contracts that have not yet been fully executed. It is a contract in which both sides still have important performance yet to be performed and that the lease agreements are not of this nature are therefore not under the ambit of executory contracts.  Rather, they have executed contracts as they have been duly executed by the parties to the contract.  The concept of frustration of contracts can only be applied to executory contracts. It was further held by the Hon’ble Court that frustration of contract makes the whole contract void and therefore, their application to leave and licensing agreements would mean that the tenants must then surrender the possession of the premises.

Conclusion

Having experienced this situation first hand and having gained first-hand knowledge from, the author would like to conclude by saying that most commercial licensors wrote off the rent and required the licensee to only pay the basic maintenance of the immovable property or allowed for payment of a lesser rent in installments as and when the licensee had the ability to pay. When it came to a revenue-sharing rental agreement, the revenue was written off and only the basic minimum maintenance was made to be paid by the licensee. Coming to residential leave and license agreements, the higher income class did not face too many problems as they were asked to work from home and were paid the same salary. They used the premises to work and therefore the licensor did not grant any reduction in rent as there existed no situation which led to the licensee being incapable of making payment. However, when taking a look at the lower middle class and low-class income group, it appears as if they were affected the most by the pandemic and the lockdown as they either worked for daily wages or low-income jobs which suffered losses and had to shut down or let go of their employees rendering them without a salary and incapable to pay the whole amount of the rent. In these cases the licensors often allowed for a reduction in rent going as low as offering a 50% reduction and for those who could not pay rent at all, the agreement was revoked completely. Even though the law deters licensees from evoking the force majeure clause by using COVID-19 and the mandatory lockdowns as a cause, the courts and various states have tried to adopt a more liberal stance keeping in mind the need to maintain a balance between the rights of the licensor/lessor and licensee/lessee as well the uncharted nature as well as the gravity of the situation. 

References

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Distinction between ‘temporary injunction’ and ‘attachment before judgment’ under CPC

By
Rachit Garg
-
0
civil procedure code

This article is written by Priyanshi Soni, from Symbiosis Law School, Noida. This article seeks to highlight the concepts of ‘temporary injunction’ and ‘attachment before judgment’, and the differences between them, as stated under the CPC. 

Introduction

The Civil Procedure Code of 1908 is a law which neither takes nor gives any rights, but helps in regulating the civil courts’ procedures. In recent times, there has been confusion during judgments regarding the difference between the concepts of ‘temporary injunction’ and ‘attachment’ under the CPC. These are temporary remedies given to the plaintiff concerning the dispute of his claims, to prevent the defendant from disposing of the rights of the plaintiff. There is a fine line of difference between the two which has been discussed in this article. 

Injunction – meaning and kinds

An injunction is a type of judicial and equitable remedy in which a party is granted relief by the court’s order. In this, the court directs the party to do or refrain from doing a specific act. If the party disobeys this order, they could be subjected to heavy penalties that may also include imprisonment. The main objective of this remedy is to maintain the status quo of the property dispute until the competing claims and rights are resolved before the court. Sections 94, 95, and 36 of the Civil Procedure Code specifically discuss injunctions, however, temporary and perpetual injunctions have been defined under Sections 36 to 42 of the Specific Relief Act, 1963. An injunction can be filed by the defendant or plaintiff, but not by or against any third person.

Temporary Injunctions 

A temporary Injunction is granted by the court to temporarily restrain the defendant from committing any injury to the property in question or threatening the plaintiff from disposing of his property. This is an interim relief that is granted with the objective that the plaintiff is not deprived of his rights. This injunction can be granted by the court before the disposal of the suit at any stage of the trial. Temporary Injunctions are governed by the Civil Procedure Code of 1908. Here are the provisions under the CPC which govern this – 

  • Section 94 – This Section aims at preventing justice from being defeated. Subclause (c) talks about granting temporary injunctions, and in the event of disobedience being shown by the party thereof, even committing the person to civil prison or ordering his property to be attached and sold.
  • Section 95 – If the claim of the plaintiff is defeated, then the court can grant compensation to the defendant if he claims so. 

Order XXXIX 

  • Rule 1 of Order XXXIX mentions the grounds on which a temporary injunction may be granted by the court. These are as follows –
  1. If the property in dispute is in danger of being damaged, wasted or alienated by any party to the suit, or has wrongfully been sold in execution of the decree. 
  2. If the defendant threatens or intends to alienate his property with an intent to defraud the creditors. 
  3. If the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute.
  • Rule 2 specifies that an interim injunction can be granted to prevent the breach of contract by the defendant or any imminent danger to the plaintiff. In the case of M. Gurudas & Ors v. Rasaranjan & Ors (2006), the conditions required to be fulfilled to grant injunctions were specified as follows:
  1. The case must prima facie be in favour of the plaintiff.
  2. The injury caused to the plaintiff must be irreparable, which cannot be compensated in monetary terms. 
  3. Balance of convenience must be in favour of the plaintiff. ‘Balance of convenience’ can be defined as the comparative inconvenience likely to be caused to the plaintiff by not granting the injunction, which will be greater than the inconvenience caused by granting it. 
  4. The dispute raised by the applicant must be bonafide and the possibility of relief should be in favour of him.
  5. The submissions of the applicant’s affidavits wherein contentions are stated must not be indistinct and should be properly verified. It should fulfil the essential ingredients of an affidavit, with the source disclosed, and should mention the grounds for believing the claim. 

The burden of proof is on the plaintiff to get the injunction enforced.

What is “attachment before judgement” under CPC?

An attachment order is a guarantee for satisfying the fruits of a decree that would otherwise become unnecessary. In addition, an attachment order can be appealed and be changed by the High Court. Order 38, Rules 5-13 of Civil Procedure Code, 1908 deals with ‘attachment before judgement’, which is one of the various temporary orders present in the CPC during the pendency of judgements. The primary motive of the attachment of property before judgement is to prevent the defendant from defeating the realization of the decree passed in the plaintiff’s favour. This order for attachment before judgement is given when the plaintiff convinces the court that the defendant is against the decree’s execution or will alienate the property. This legal process of attachment is made to ensure the satisfaction of the judgment. 

In the case of Raman Technology & Process Engg. Co v. Solanki Traders (2007), it was rightly observed by the court that the power under this provision is very wide and so it is important to keep a check on unscrupulous plaintiffs so that they do not take unfair advantages.  

Conditions for ordering attachment before judgement 

Firstly, similar to temporary injunctions, the prima facie case should be in the plaintiff’s favour, i.e., there must be a reasonable possibility that the decree will be passed in the plaintiff’s favour. Along with this, there should be proof by the plaintiff that the defendant is trying to defeat the court’s decree. 

There is no settled rule that a court can only grant an order for attachment of property that is in its jurisdiction. The court can even grant such an order if the property is not in its jurisdiction, and later on, the court can send it to the district court in whose jurisdiction the property is situated. 

The court cannot grant such an order merely to prevent any sort of dispossession of the property; there should be a bonafide claim by the plaintiff with proper proof for the same. 

Some orders were laid down in the case of Premraj Mundra v. Mohd. Maneck Gazi (1951) concerning attachment before judgement, which were- 

  1. If a portion of the property belonging to the defendant is taken by him, such an act cannot be categorised as an attempt to defeat the plaintiff’s claim. 
  2. In any case, mere accusations by plaintiffs will not stand if not substantiated by particulars.
  3. Defendant’s insolvency shall not be taken as a sole reason for any such order. 
  4. The attachment’s main aim is to prevent the defendant from alienating or transferring the property in the future. 

In certain instances, a notice is not required. The defendant, on the other hand, has the opportunity to demonstrate the cause against the attachment of his property. A final attachment order is issued only after the defendant has been allowed to be heard. As a result, this is not an attachment itself because it will be ineffectual until the attachment is carried out under the protocol outlined. This is called conditional attachment. 

The Calcutta High Court judgement highlighting the distinction 

The Calcutta High Court, in a recent order in the case of Prabha Surana vs Jaideep Halwasiya (2021), clarified the difference between the relief by injunction and attachment before judgement given under CPC. Honourable Justice Moushumi Bhattacharya highlighted this by differentiating based on the nature of the property and the stage of the proceeding. 

The case on which this order came was such that the petitioner gave a loan to the respondent of 7.5 crores and the respondent agreed for the same at the interest of 1.5% per annum. But the respondent refused to acknowledge the whole debt amount and so the plaintiff filed a request for temporary injunctions as a relief. The counsel for the respondent made the argument that it is an attachment before judgement and thus, cannot be allowed or be granted relief therewith unless the respondent is given the chase to file the affidavit. The counsel added that no case regarding the disposal of the property was made by the petitioner. Responding to these claims, the court observed that the petitioner has sought relief in the nature of temporary injunction and not attachment before judgement, to prevent the damage or alienation to the property or injury to himself. 

Explaining the distinction between the two, the court said that temporary injunctions as per Order XXXIX, Rule 1 are granted temporarily to preserve the disputed property and prevent any harm to the plaintiff. Whereas Order XXXVIII, Rule 5, which explains attachment before judgement, is applicable at a later stage in the suit to execute the decree; it is made when the interim stage is completed. The court further said that in the present case, the plaintiff only sought a temporary injunction as he wanted to protect his monetary claims against the defendants, and did not want an order for any attachment of property of the respondent. Thus, a temporary injunction was granted to the plaintiff after looking into the conditions required to be fulfilled.

The attachment made by the court before the judgement is not an attachment to enforce the decree, but rather a step to prevent the debtor from disposing of the property or bring hurdles in the Court’s process which might delay the process. 

Conclusion

There is a fine line of difference between temporary injunction and attachment before judgement. The nature of the property and the stage of the trial constitute the difference. The motive of the remedy of attachment before judgement is to prevent the defendant from defeating the decree being passed in the plaintiff’s favour. Temporary injunctions are ordered to preserve the property till the claims are adjudicated. 

It is always considered that these remedies are very wide and give an advantage to plaintiffs. However, the court must check that the plaintiff doesn’t get unscrupulous benefits in any manner. 

References

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Commercial Law : setting the framework for businesses in every society

By
Rachit Garg
-
0

This article was written by Harman Juneja, from Dr. B.R. Ambedkar National Law University, Rai, Sonepat. The article talks about commercial law and how it sets a framework for businesses.

Introduction

Commercial law is one of the most significant legal areas. This area of law deals with business-to-business and consumer-to-business transactions, as well as employee contracts, business contracts, financial transactions, and other topics. Commercial law, also referred to as mercantile law or trade law, is the body of law that governs the rights, relationships, and actions of people and businesses involved in commerce, merchandising trade, and sales. It is frequently seen as a branch of civil law that deals with both private and public law issues. The article talks about how this body of law helps in regulating businesses and how they do their work around frameworks set by this law.

Commercial law : its meaning and nature

Before attempting to define commercial law, it is necessary to consider its content or the aspect of the legal reality that it governs. To begin, we can remark that commercial law deals with legal relationships between individuals, which is why it is classified as private law. 

However, distinguishing between civil and commercial issues is difficult, particularly since certain legal organizations and contracts, such as purchase, society, deposit, and so on, are governed by both codes. This means that the content of each code can not be utilized to distinguish between civil and commercial matters. To make this distinction, we must first examine the historical development of commercial law to determine which aspects of legal reality it now governs.

The nature of commercial law

What is the definition of commercial law? In the absence of a well-established legal definition of commercial law, several definitions have been proposed by writers on the subject. The following are some of them:

  • As HW Disney noted in his book, the Elements of Commercial Law (1931), commercial law is a term that is difficult to define precisely, but it is used to refer to all of the parts of English law that are concerned with commerce, trade, and business.
  • In the book, Contract and Commercial Law, HC Gutteridge said that the goal of commerce is to transact in products, and commercial law can be described as the particular laws that apply to contracts for the sale of things if we use this criterion.

The mercantile nature of the subject runs through all of these different definitions of commercial law. The law of commerce is known as commercial law. It is concerned with commercial transactions, that is, transactions in which both parties deal with each other for the purpose of doing business.

Many diverse areas of commercial activity are covered by commercial law. An exhaustive list of the subject’s contents is neither possible nor desirable. Commercial law is a practical and relevant subject that aims to make the corporate community’s commercial procedures easier. As those practices alter and evolve, typically to accommodate new technologies, so may the content of business law. A strict description of the subject’s scope will only stifle this process.

Historical development of Commercial law

The middle ages

Modern business law has its origins in the middle ages’ lex mercatoria (merchant law). During that time, merchants would travel across Europe with their wares to fairs and markets. Special local courts, such as the courts of the fairs and boroughs, and the staple courts, where the judge and jury would be merchants themselves, would decide their conflicts. These merchant courts would make decisions fast, apply flexible evidence and procedural rules, and preserve good faith and fairness standards. A readiness to recognize innovative mercantile methods was also present. Some of the most fundamental characteristics of current commercial law were formed during this time period, including the bill of exchange, charter party, and bill of lading, assignability and negotiability, stoppage in transit acceptance, and general average.

The common law age

The Court of Admiralty, which continued to recognize the lex mercatoria, took over most of the business of the merchant courts in the fifteenth and sixteenth centuries. However, in the seventeenth century, the Naval Court’s commercial competence was taken over by common law courts. As the merchant courts had ceased to exist by that time, the common law courts took over the majority of the nation’s mercantile litigation. In order to preserve that business, common law courts embraced some of the lex mercatoria’s requirements. The lex mercatoria was not fully absorbed into the common law until the late seventeenth and eighteenth centuries.

The rise of consumerism

After World War II, the establishment of the welfare state ushered in the next major era of transformation. During this time, there was a shift away from the Victorian ideas of freedom and contract sanctity (and the laissez-faire economics on which those values were based) and toward those of social responsibility and the protection of the economically weaker against the economically stronger.

20th century 

Commercial Law returned to its old subjective conception at the turn of the twentieth century. It was once again deemed a law that restricted the activities of specific people. We used to talk about merchants in the Middle Ages, but in the twentieth century, the term merchant was gradually superseded by the concepts of enterprise and entrepreneur.

Sources of Commercial law

Contracts

Contract law is the foundation of commercial law. Goods and services are provided in the world of commerce according to the conditions of contracts negotiated between businessmen. Each contract term may have been individually negotiated by the parties in some cases. However, beyond the terms relating to subject matter and price, there would have been little or no negotiation on the specific terms of the agreement in many circumstances. In such circumstances, the parties prefer to employ standard form contracts to enact their agreement, saving time and money that would have been spent negotiating each phrase individually.

The courts are unwilling to interfere with the concepts of contract freedom and sanctity as long as the standard form contract is made between businessmen and not between an ordinary person and a company provider of goods and services. This is especially true of standard form contracts developed by trade groups and adopted by their members, such as bills of lading, charter parties, insurance policies, and commodity market contracts of sale.

Customs

The customs of merchants have long been a productive source of legislation in the sphere of commercial law. A custom is a regulation that has become law in a specific location, whereas a usage is the established practice of a certain trade or profession. In fact, courts frequently disregard the technical distinctions between custom and use, conflating the two categories. To insinuate a term into a commercial contract, a court may accept proof of a trade tradition or usage. The custom or usage must be one that the court will recognise for these purposes because only then will the custom or usage become a legally binding obligation.

Common law

When a specific commercial law does not have a norm to apply or when there is no tradition, common law can be used to control commercial issues. Prior court judgements set the precedent for common law. In other words, no hard and fast rules apply to common law rulings. Furthermore, judgements may differ from one court to the next or from one state to the next.

Commercial laws in India

The important business or commercial laws of India are-

The Indian Contract Act, 1872

It is the most well-known business law in our country. It went into force on September 1, 1872, and it applied to the whole country of India, except for Jammu and Kashmir. It consists of 266 sections. The fundamentals are defined by numerous rulings in the Indian judiciary under the Indian Contract Act, 1872. Specific requirements for legitimate contracts include free consent, consideration, competency, eligibility, and so on. A Legitimate contract must follow these rules or else it is ruled null and void.

The Sale of Goods Act, 1930

The Sale of Goods Act of 1930 governs contracts and agreements involving the sale of goods and services. Commodity sales are one of the most important sorts of transactions under Indian law. India is one of the world’s greatest economies and a magnificent country. As such, it has enough checks and safeguards in place to ensure the safety and prosperity of its business and commerce communities. The Sale of Goods Act of 1930, which defines and declares terminology relating to the sale of goods and the exchange of commodities, is explained in this section.

The Indian Partnership Act, 1932

According to the Indian Partnership Act of 1932, a partnership is a relationship between two or more parties who agree to share the earnings of a business, either all or merely one or more persons acting for them all. A Partnership is a legally binding agreement. A partnership, as defined, is an association of two or more people. A partnership is formed as a result of a contract or agreement between two or more people. A partnership is not formed by the operation of the law. It also can not be inherited. It must be a mutually agreed-upon voluntary arrangement between couples. A partnership agreement can be either written or oral in nature. Sometimes, the partner’s continuous actions and mutual understanding imply such an arrangement.

The Limited Liability Partnership Act, 2008

The Limited Liability Partnership Act, 2008 covers the scope of limited liability partnerships. The definition of a limited liability partnership is an alternative corporate company form that provides the partners with the benefits of restricted liability while incurring low compliance costs. It also allows the partners to organize their internal structure in the same way that a typical partnership would. A limited liability partnership is a legal entity that is accountable for the entire amount of its assets. The partners’ responsibility, on the other hand, is limited. As a result, an LLP is a crossover between a corporation and a partnership. It is not the same thing as a limited liability company.

Companies Act, 2013

With the domestic and international economic landscape changing at an unprecedented rate, India’s government chose to replace the Companies Act, 1956, with the new legislation. The Companies Act, 2013, aims to bring company legislation in India up to date. The Act looks at the definition and characteristics of a company. The Companies Act, 2013, fundamentally transformed India’s corporate regulations by introducing several previously unknown ideas. The introduction of the “One Person Company” concept was one such game-changer.

Arbitration and Conciliation Act, 1996

In India, arbitration is now controlled by arbitration law, which is primarily set down in the Arbitration and Conciliation Act, 1996. The objective of this Act was to consolidate and reform the law governing domestic arbitration, international commercial arbitration, and foreign award enforcement, as well as defining the law relating to conciliation.

Conclusion

All commercial transactions, operations, and interactions between and among all business entities, regulatory bodies, business support agencies, modes of transportation, and customers are governed by commercial law. As a result, commercial law is critical for the smooth, fair, and lucrative operation of enterprises in every sector of commerce and the economy. Commercial law has evolved significantly over time, but in general, it is intended to provide business owners with the ability to manage their operations within legal constraints. There are various commercial laws in India that must be followed by every business.

References

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Global trademark in India

By
Shoronya Banerjee
-
0
Well known trademarks

This article has been written by  Prathna Vohra, pursuing the Diploma in US Intellectual Property and Paralegal from LawSikho

Introduction

Many times we come across new brands for services and goods trying to look for a design or logo or even unique names. It may be food brands, new hospitals, ice cream parlours or shoe brands, all needing an eye-catching name, sign, symbol, or pattern. Such unique names, signs or combinations of patterns are classified as ‘Trademarks.’ Trademarks help identify a particular brand. For example, just by looking at it, we recognise the name of the brand if it is domestic or global. Such trademarks are also protected by different legislations so that no other party may make use of them. When we register the trademark in India while expanding the business Internationally and moving such trademark applications to those countries, it will help give the business global recognition. About 94 countries in the world protect global trademarks.

Noting down various benefits of registering a global trademark in India

When you register a trademark in each nation where you want to sell your products, you give the company the exclusive right to use that trademark in that country.

  • This not only aids in the establishment of a basis for combating counterfeiters but also assures that the corporation retains exclusive rights to one of its most significant corporate assets.
  • Registering a trademark globally also gives you the option of licencing it to others, allowing you to profit from the popularity of your products and brand. Brand owners should consider this a big value compared to the minor expense of registering their important trademarks.

We shall further gain insight into the procedure for registration of such global trademarks in India and exceptions to such registration.

Trademark history in India

In India, the Trademarks Registry was founded in 1940, and it now manages the Trademarks Act, 1999 and its guidelines. It serves as a reference and information Centre, as well as a facilitator in trademark disputes in the country. It aims to register trademarks that are applied for in the nation, improve trademark protection for products and services, and prohibit fraudulent use of the mark. The Registry’s primary duty is to register trademarks that meet the requirements of the Act and Rules.

Section 2(ZB) of the Trademark Act 1999 defines TradeMark. A trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and a combination of colours.

Trademarks are an important part of any successful company marketing plan because they allow firms to identify, advertise, and license their products and/ or services in the marketplace while also distinguishing them from those of rivals. A trademark is frequently the sole method for buyers to recognize a company’s products and services in today’s global and increasingly computerized economy. Trademark protection prevents attempts to “free ride” on a company’s goodwill by marketing inferior or comparable items or services using similar distinguishing marks. A high-value trademark might be lost, diluted, or infringed upon, which could be disastrous.

Trademark rights, like other intellectual property rights, are regarded differently in each nation or jurisdiction where they are obtained. Each country/jurisdiction has the authority to recognize and defend trademark rights in ways that are consistent with its policy objectives. Although the phrase “international trademark rights” refers to a collection of trademark rights that apply to several countries/jurisdictions, the existence and enforcement of these rights are distinct to each country/jurisdiction and are not interconnected in most cases.

A majority of nations and jurisdictions have agreed on similar methods or protocols for submitting trademark applications, notwithstanding variations in recognizing and enforcing trademark rights. The Madrid Protocol Relating to the Madrid Agreement concerning the International Registration of Marks, 1989 governs the international trademark system.

The Madrid Protocol

The Madrid Protocol is a mechanism for international trademark registration. It allows you to obtain trademark protection in a large number of jurisdictions at the same time. The Madrid Agreement and the Madrid Protocol are two different international accords that regulate the system of trademarks. Under the Agreement, nationals of any signatory can defend their trademarks, which are registered in their home country, in all other signatory countries. Nationals of any signatory can get protection in countries and jurisdictions that are contracting parties to the Protocol if they have a pending application or registration in the country or jurisdiction of an origin.

The World Intellectual Property Organization‘s International Bureau is in charge of both the Agreement and the Protocol (WIPO). In all nations and jurisdictions that are only parties to the Protocol, international registrations are controlled only by the Protocol. India became a member of the International Trademark System in 2013.

The fees and payment of the Madrid Protocol

The Madrid System is a simple and cost-effective way to register and manage trademarks all around the world. To apply for protection in up to 124 countries, submit a single application and pay a single set of costs. Using a single centralized system, you may modify, renew, or grow your worldwide trademark portfolio.

The cost of an international trademark registration comprises the basic charge (653 Swiss francs for a mark in colour*; or 903 Swiss francs for a mark in colour*), as well as extra expenses based on where you wish to protect your mark and how many classes of products and services it will cover.

For example, the total cost of registering a trademark in India and the European Union on February 16, 2018, for one class of products, will be 1’698 Swiss francs [653 basic fees + 148 (one class in India) + 897 (one class in the European Union)]. After obtaining an international trademark registration, the additional fee is applied to expand the geographical scope of coverage, modify or renew your trademark portfolio.

Requirements for obtaining registration of the international trademark

  • Applicants should be Indian citizens, Indian domiciled or have an effective place of business in India.
  • The applicant must have an application for a national (Indian) trademark or a trademark registration with the Indian Trade Marks Registry. The international application will be based on this national trademark application/registration. The international application will use the same trademark as the national trademark application or registration; the international application’s list of products and services should also be like the national mark’s list.
  • In the international application, the applicant must select one or more other Madrid Protocol member nations in which he wants to protect his trademark.

Procedure for acquiring trademark

The trademark applicant must file an international trademark registration application under the Madrid Protocol through the applicant’s trademark office which is also known as the office of origin. The office of origin for Indian businesses is in the Office of Registrar of Trademarks, India. The trademark application will be processed by the origin office and filed with the Intellectual Property Organization in Geneva.

If the trademark application is approved, the mark is entered into the International Register and published in the Gazette of International Marks of the World Intellectual Property Organization (WIPO). The International Bureau subsequently issues a certificate of the international registration and notifies each of the Madrid Protocol countries for which the trademark applicant has sought protection. Each country’s trademark office has the power to deny the mark’s protection by informing the International Bureau within the Madrid Protocol’s time restrictions. The Madrid Protocol establishes stringent time limitations of 12 or 18 months for authorized offices to file objections.

Any opposition to the trademark’s registration must be submitted to the International Bureau in the required way. If no nation refuses to register the mark, the mark’s protection in each country is the same as if it had been registered by that country’s office. An international trademark is registered for ten years after it is registered under the Madrid Protocol. International trademark registrations can be renewed directly through WIPO or the concerned office of origin after ten years.

Exceptions to trademarks recognition

In the marketplace, a trademark is anything that represents your brand. Trademarks are typically used to protect company or product names, logos, or slogans. Trademarks can be used to protect things like unique product packaging, colours, and sounds.  Mark if generic or descriptive phrases will not be registered nor will it register anything that is confusingly like an existing mark. Different intellectual property protections are required for inventions and works of authorship.

Non-generic words, logos, slogans, colours, scents, and sounds can all be registered if you can show how they represent your company. Patents and copyrights should be used to protect inventions and works of writing that cannot become registered trademarks.

A mark cannot be registered if it contains immoral, deceitful, or scandalous material or material that disparages or falsely suggests a relationship with living or deceased individuals, institutions, beliefs, or national symbols, or brings them into disrepute.

Like every other country,  India too has some legislation to trademark exceptions.

The absolute grounds for registration refusal are listed in Section 9 of the Act.

Any trademark that falls under one of the grounds specified in this section is ineligible for registration.

  • Trademarks that do not have any distinguishing characteristics are absolute grounds for refusal of registration. The term “distinctive character” refers to trademarks that cannot differentiate one person’s goods or services from those of another.
  • Trademarks that contain only marks or indications that are used in commerce to designate the type, quality, amount, intended purpose, values, or geographical origin of products or services delivered.
  • Trademarks that only contain markings or indications that have become commonplace in today’s language or the industry’s established practices. Trademarks are of a character that deceives or confuses the public.
  • Trademarks that contain or contain material that is likely to offend the religious sensibilities of any class or part of Indian citizens.
  • Trademarks that include or incorporate scandalous or obscene content.

Relative grounds

Relative grounds for registration denial are outlined in Section 11 of the Act. Exceptions to the reasons for the denial are listed in this section. The trademarks under section 11 can be registered if the exceptions are followed.

  • Trademarks that cause public confusion because they are identical to an earlier similar trademark for products or services.
  • Trademarks can cause public confusion because they are comparable to an earlier identical trademark for products or services.

Conclusion

Trademarks are a vital part of any business brand; be it commodities or services. A small business is identified as a brand with the help of a trademark. The widespread business from local to national and international level has given rise to the concept of ‘global registration of the trademark’ which means that the trademark of country ‘A’ can be registered in countries P, Q and R as well. This does not need separate registrations as long as the member countries are part of a protocol known as the ‘Madrid protocol’ which is a single channel to register a trademark in various countries.

Such global registrations are a boon to the economy as they do not only register trademarks but also give an exclusive right to The trademark owners and protection to search trademarks. This in addition also improves the international relations between countries. It should be borne in mind that to protect the brand name you have to use your brand, monitor it and also deal with infringement immediately if any. 

References

  1. Laxmikant V. Patel v. Chetanbhat Shah & Anr., 2001
  2. Godfrey Phillips India Ltd. v. Girnar Food and Beverages Pvt. Ltd
  3. M/S P.K. Overseas Pvt. Ltd. vs. M/S KRBL Ltd
  4. Ishi Khosla v. Anil Aggarwal

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Integration of Ayurveda into modern medicine : the unguided mixing

By
Diva Rai
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0

This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This article analyses the Central Government’s notification to allow formal training of surgeries to Ayurvedic doctors and postgraduate students. 

Introduction

The Central Government of India sanctioned through an official gazette notification on November 19, 2020, to the Central Council of Indian Medicine (CCIM, statutory body of the Ministry of AYUSH) and brought an amendment to the Indian Medicine Central Council (Post Graduate Ayurveda Education) Regulations, 2016 to introduce formal training of surgeries for Ayurvedic doctors and postgraduate (PG) students. The Act has now been renamed to Indian Medicine Central Council (Post Graduate Ayurveda Education) Amendment Regulations, 2020.

The amendment states that the curriculum of these students will now also incorporate training to perform two streams of surgery under the title of MS (Ayurveda) shalya tantra (general surgery) and MS (Ayurveda) shalakya tantra (diseases of ear, nose, throat, ENT, eye, head, oro-dentistry) specializations and removal of benign tumours and cataract operations. It has listed 58 surgical procedures that can be performed by Ayurveda PG students pursuing the shalya and shalakya courses.

Background

The decision to integrate Ayurveda into modern medicine comes from the Centre’s aim at having a ‘One Nation and One Health System’ policy by integrating various systems of medicines including Allopathy, Ayurveda, Siddha, Unani in medical practice, education, public health and research, for providing holistic care to the patients in India. This is inspired by the Chinese healthcare system, which strives to balance between modern and traditional Chinese medicine.

Another reason behind it is to address the persistent shortage of manpower in the healthcare system. As per a statement made by the Government in Parliament, there is only one allopathic doctor for 1,445 students. This is as opposed to the World Health Organization’s (WHO) norm of 1 doctor for every 1,000 people. Too many allopathic doctors are not willing to serve in rural areas and therefore there is a need to cater to them.

The need to integrate modern medicine with the traditional systems of AYUSH has also been mentioned in the recently released National Education Policy (NEP). The Government plans to have a “One Nation, One Health System” policy by 2030 which would integrate all the modern and traditional systems of medicine in practice, education and research. In furtherance of that, NITI Aayog has set up committees that will propose a framework for the integrative health system of Indian traditional systems with modern medical systems. The Government even aims to set up an exclusive drug control department to facilitate and enhance the research and development, monitor quality control and standardise the manufacturing of medicinal products of Ayurveda and other traditional Indian treatment systems. Thus a patient will be treated with the most suitable and appropriate method depending upon their condition irrespective of the medicinal system. The Union health minister even stated that they want to build the brand of India and make its global presence. They want to take the traditional medicine market in India and make it up to the quality standards according to international specifications.

Ancient Indian surgeons 

Currently, as per the 2016 Regulations, the postgraduate students of Ayurveda specialize in Shalya Tantra, Prasuti evam Stree Roga (Obstetrics and Gynecology) and Shalakya Tantra. This means that they are already trained to perform many of these surgeries. The new notification only legalizes and clarifies what exact procedures these doctors are allowed to perform, which were already being performed for 20 years by the Ayurvedic practitioners.

The practice of surgery is not new to Ayurveda. Those supporting this move refer to Sushruta, the ancient Indian sage from 500 BC who is known as the father of surgery. The ancient text of Sushruta Samhita boasts in great detail the description of instruments and procedures that are followed even today.

Criticism and opposition

There have been repeated warnings from the Lancet that even though Sushruta Samhita talks about heart surgery and cracks, the measures described in the treatise are hypothetical. It suggested the Indian Health Ministry save its patients from incompetent doctors who have not learnt the basics of intricate surgery and that the mixing of the Ayurveda system of medicine with allopathy would be a medical blasphemy.

However, despite these apprehensions, the amendment was introduced which faced huge criticism from the doctors countrywide. To that end, the Indian Medical Association (IMA) reflected its opposition and demanded the withdrawal of the notification by publishing a statement against it.

The IMA president in various reports stated that the National Eligibility cum Entrance Test (NEET) appeared by lakhs of students will lose its importance. Education will be reduced to mediocrity which cannot be tolerated. It will create a double system. The patients might not be clear on who their doctors are, what course of medicine they are following and how qualified the doctors are to perform such surgeries. The doctors were worried that it would mislead the patients as the surgeries listed are performed by super-speciality surgeons. The IMA urged the CCIM to develop its own surgical disciplines from ancient texts and not claim surgical disciplines of modern medicine as its own. Moreover, these subjects are not taught at the Bachelor of Ayurvedic Medicine and Surgery (BAMS) level, hence allowing Ayurveda doctors to perform them with half knowledge would be risky. Even at the postgraduate level, Ayurvedic surgical training is a 3-year course.

The doctors see this integrative system as a khichdi medical system that will produce doctors in a hybrid system. IMA in its statement stated that the integration is “corrupting modern medicine by mixing with other systems and poaching the disciplines of modern medicine through the back door”.

Allopathic doctors see promise in Ayurvedic treatments and medicines as a supplement to modern medicine but are agitated, raising concerns for this practice of unguided mixopathy/crosspathy. Allopathy practitioners are terming it as encroaching upon the jurisdiction and nomenclature of modern medicine. They are concerned whether the Ayurvedic medical colleges and hospitals in their setting will be able to provide the same standards and quality of training as allopathic institutions. They are questioning the ability of the Ayurvedic doctors to perform critical procedures.

The clarification by the Ministry 

The AYUSH Ministry clarified that the notification was issued to streamline the provisions of the Postgraduate Ayurveda Education regulations by adding clarity and definition to it. The 2016 notification had stipulated that students will be undergoing training of investigative procedures, techniques and surgical performance of procedures and management in their respective speciality and the relevant syllabus was also issued for the PG course by CCIM. It stated that there has not been any policy shift and Shalya and Shalakya have been independent departments of Ayurveda colleges. The postgraduate Ayurveda students will be restricted in their training and practice of 58 types of surgical procedures and not practise surgeries beyond what has been mentioned in the list. The notification stated that there is no mixing of modern medicine with the ancient Indian Ayurvedic system as the CCIM is committed to maintaining the authenticity of Indian systems of medicine.

Demonstration continued

The associations were not satisfied with the clarification. In response to the notification, the IMA doctors even demonstrated a protest in 10,000 different public spots across the country on December 8, 2020, and threatened to close all non-emergency medical services on December 11, 2020, from 6 am to 6 pm, if their demands were not met. Doctors were wearing black ribbons to show support to IMA’s decision from all the medical institutes across the country.

The Maharashtra Medical Council published its circular on December 15, 2020, and stated that any person who obtains qualification from another system of medicine would not be allowed to practice the modern system of medicine. They have practised healing in scientific forms and do not associate with anyone professionally who violates this principle.

The doctors believe that modern medicine has evolved over years through evidence-based research and caters to serve the patients safely and effectively. This decision by the Ministry undermines all progress and can threaten human life and health.

Moving to Supreme Court

After projecting their opposition, the IMA decided to move to the Supreme Court against CCIM and filed public interest litigation (PIL) on December 19, 2020, urging the court to set aside/ quash the amendment introduced to the regulations to the PG Ayurveda Surgery and declare that the council does not have the powers to include modern medicine in the syllabus. 

The plea stated that the concerned Regulations are subordinate legislation and are contrary to the specific legislative policy of the Medical Council Act, 1956 and Medicine Council Act, 1970. Thereby, the CCIM, whose powers are restricted to the system of Indian medicine, has transgressed its boundaries by introducing such enactment. It stated that the Regulations are arbitrary, ultra vires, illegal, unconstitutional and unreasonable in law, affecting the constitutional and fundamental rights of citizens to receive effective and safe treatment. Further, it causes prejudices to the rights of the millions of medical doctors across the country who have toiled hard over the years to attain the required exposure and qualifications for performing surgeries under the modern scientific system of medicine. 

It also referred to the previous judgment of the Supreme Court in the case of Dr Mukhtiar Chand & Ors. v. The state of Punjab (1998) where similar attempts were made by the CCIM but were set aside by the Court stating that the persons who are registered on Central or State Registers of Indian Medicine under the 1970 Act are prohibited from practising Modern Medicine and this prohibition is also statutorily provided in Section 15(2)(b). It also cited the judgment of the Kerala High Court in the case of the National Integrated Medical Association v. State of Kerala & Ors. (2006), wherein the Court set aside the permission taken by the CCIM to allow persons holding qualifications under the system of Indian Medicine to also practice Modern Medicine. In both these cases, it was held that the CCIM does not have any power or jurisdiction to permit any persons possessing qualifications under the system of Indian Medicine to practice Modern Medicine.

Pursuant to this, the Supreme Court sought a response from the Centre seeking replies within four weeks from the Ministry of AYUSH, CCIM and the National Medical Commission.

Academic and research output

In research terms, few treatments of Ayurveda have been found successful by randomized controlled trials (RCTs). The equivalent outcome has been found in trials comparing conventional anti-diabetes treatment with the Ayurvedic system. Similarly, even in comparison to treatment in Rheumatoid Arthritis, Ayurveda has shown the same result with fewer adverse effects. Another RCT found that there was no difference between outcomes of treatment of diarrhoea-predominant IBS with Ayurvedic formulation and placebo. Even in cases of Covid-19, a study revealed that a combined application of both the treatments got the RT-PCR negative results in an average of 7.85 days as against 12.19 days for those on allopathic medicines. 

Global acceptance

Further, there has been increasing recognition and popularity of Ayurveda in the western world health care context. Ayurveda is said to focus on a person’s bio-psycho-spiritual unity and equilibrium and apply a human-centric approach to medicine based upon an individual’s connection with the surroundings and the way they perceive or “narrate” their own complex individual existence in sickness and in health. To that end, even the World Health Organisation (WHO) urges everyone to preserve, protect and safeguard these practices. It is supported by various clinical effectiveness tests and has a growing demand in the West which is inclining towards a more traditional-mind-shape approach to the multidimensional needs of the triad of disease-illness-sickness.

Many organizations and institutions have been working relentlessly outside India for the propagation of Ayurveda. Even the Department of AYUSH has been receiving requests from several Non-Governmental Organisations based in Europe and the USA (which are merging in the International Alliance of Ayurvedic Professional Associations—IAAPA) to have a mutual exchange of dialogue to develop a cooperative mechanism that can be implemented to ensure quality and professionalism in training, research, and practice of Ayurveda. The AYUSH Ministry has signed a memorandum of understanding (MOUs) with 25 countries. As for Italy, its medical Act already recognizes Ayurvedic and the other non-conventional medicines (since 2002) by the Italian National Federation of Councils of MDs and Dentists (FNOMCeO).

Conclusion

Many are of the view that there is no such thing as traditional or alternative or holistic medicine. The only distinction should be based on whether a medicine works or not. If we are to only logically reason from the point of view of the beneficial stakeholders i.e patients, then the practise should be such that the medicines that work are available to all practitioners and their patients. The antagonism between these sciences can only be ended by making them complementary in all respects. To make this concept successful, a similar level of scrutiny, quality standards, norms and requirements are expected from the practitioners; their qualifications need to be developed for all sorts of medicinal education and practice. Also, all the concepts of various branches of alternative medicine can be combined seamlessly along with integrating different treatments into modern medicine courses to produce doctors who are free to use the medicines that work and discard those which don’t.

References

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IP Perception Study/Survey 2020 by EUIPO

By
Diva Rai
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0
Image source - https://bit.ly/3kLheRc

This article has been written by Ashutosh Singh, a student at Amity Law School, Amity University Kolkata. The article explains the findings of the IP Perception study carried out by EUIPO.

Introduction

Europeans now are twice as willing to say that intellectual property supports artists and creators as they were ready to do a few years back. This shows the importance of raising awareness of the value of intellectual property to the common citizen.

Christian Archambeau, the Executive Director of the European Union Intellectual Property Office (EUIPO), is quoted to have said that “the more people understand intellectual property, the less likely they will infringe it”. The EUIPO was founded in 1994. It is the EU Agency responsible for the registration of the European Union trademark. The EUIPO has its headquarters in Alicante, Spain. It was known earlier as the ‘Office for Harmonization in the Internal Market (OHIM). 

OHIM underwent some reforms and in the process, its office, several positions, and the governing board were renamed to reflect these changes. OHIM was named EUIPO, its current name since March 2016. The head of the agency was earlier a President but the EUIPO has an Executive Director now. EUIPO has conducted 3 studies/surveys up till now and they have been carried out on IP perception in 2013, 2017, and 2020.

This article aims at explaining and analyzing the parameters of the EUIPO survey carried out in 2020, which was conducted with 25 636 EU residents aged 15 and above in 2020. The questionnaire was not very different from the previous study of 2017. It was kept similar to allow for comparable results. However, modifications were integrated into the questionnaire to further explore relationships between perception and behavior. Let us understand the trends and awareness of people about IPR and their rights through the results of this survey.

About EUIPO

The EUIPO has been hosting the European Observatory on the Infringements of Intellectual Property Rights since 2012. It brings the public and private stakeholders together to fight against counterfeiting and piracy.

Functions

The registration of the EU trademark and managing the Registered Community Design is handled by the office of the European Union Agency. The agency offers the citizens exclusive rights and business for trademark and design protection all over the EU, only through a single application. The EU agency work is not only limited to registration but it is to create synchronization practicing registration of trademark and design and it would help in the development of common IP management tools.

The work is carried and coordinated with the help of national and regional IP offices which incorporate together throughout the EU. The objective of the institutional partners and associations is to offer the users of the trademark and design system similar registration experiences, at both EU or national levels.

Legal background establishing the EUIPO

The Council of the European Union adopted the regulation for establishing the EUIPO in December 1993 and revised it twice, in 2009 and in 2015. It created the EU trademark (in the past it was known as the Community trademark) as a legal instrument in European Union law and established the EUIPO which was formerly known as the Office for Harmonization in the Internal Market or OHIM, as an EU agency with legal, administrative and financial autonomy.

The Registered Community Design was created by Council Regulation (EC) No 6/2002 on 12 December 2001. Upon the entry into force of Regulation 32015/2424, the Office changed its name to the European Union Intellectual Property Office, on 23 March 2016. 

The Design Europa Awards

Every two years the EUIPO organizes the Design Europa Awards, to celebrate excellence in design, and design management among the Registered Community Design (RCD) holders. This could include individual rights holders, small businesses, or large enterprises. In 2016, the first edition of the awards took place in Milan.

2013 study/survey

The first-ever EU-wide study/survey on how EU citizens perceive IP was conducted in November 2013. It sought to look for answers for questions such as:

  • What the EU citizens think of intellectual property. 
  • Understand the EU citizens’ perception about the benefits of IP.
  • To ascertain if their IP views often affect their behavior when they shop or when they go online. 
  • Understand if their place of residence or age is a factor affecting their IP perception.

The study/survey was called, ‘European Citizens and IP: Perceptions, Awareness, and Behaviour’. It formed a vital part of the research and analysis carried out by the EUIPO, through their observatory. The survey had questions designed to find out what EU citizens knew about the topic as a whole and how the views and attitudes they believed in affected their behaviors when making choices related to IP. Needless to say that it was the first study of its kind to understand IP perception. 

2017 study/survey

The second study was published in March 2017. Since the first version came 4 years back, to build on that the second version of the study had twenty percent of all the questions which were brand new. The results of both the years were compared against the results of the 2013 study to chalk out an accurate difference on how views had evolved through both the studies. 

Nearly 26,000 interviews were carried out with EU citizens who were aged 15 and above. Deloitte had commissioned the survey by the European Union Intellectual Property Office. The survey had covered the population of the EU Member States and their residents who were aged 15 years and above. Overall, 1000 per Member State in 25 Member States and 500 per Member State in 3 Member States (Luxembourg, Cyprus, Malta).

General perceptions

The general perception of the people in the study is that about 97% of the respondents are certain that creators, inventors, and performing artists can protect their rights and also be paid for the work they do. About 70% of the people believe that nothing can justify the purchase of counterfeit goods and 78% of the people believe that buying counterfeits could ruin jobs and businesses.

Individual perceptions

About 7% of the EU population had bought counterfeit goods over the last 12 months. This figure had risen to about 15 percent and was seen in people who were aged between 15–24-years.

About 10% of the EU population had accessed content from illegal sources on purpose. This figure too had risen to about 27% in people who were aged between 15–24 years. About 27% of the people in the EU had paid for the content from legal services in the past 12 months. This figure had also risen to about 41% and was seen among people who were aged between 15–24 years.

2020 study/survey

Between 1st June and 6th July 2020, the survey was conducted in 27 EU member states. The main target population was people who were aged 15 and above. About 25, 636 interviews had been conducted across 27 countries and about 1000 interviews had been conducted in 24 out of the 27 countries which were surveyed. In Cyprus, Luxembourg, and Malta, a minimum of 500 respondents had been interviewed.

The report complements the study of “Intellectual Property Rights intensive industries: contribution to economic performance and employment in the EU”, which had been commissioned by the European Union Intellectual Property Office (EUIPO) and done through the European Observatory on Infringements of Intellectual Property. Edelman Berland delivered and carried out this report. He is a strategic researcher and has a consulting firm that specializes in public opinion evaluation and stakeholder perceptions.

How the survey was conducted

Between December 2012 and August 2013, the research took place and it covered the 28 member states of the European Union. It had been made up of three phases:

  • Literature review- The literature review had analyzed the appropriate studies and publications on the subject from the last five years of the study.
  • Qualitative investigation- The qualitative stage was carried out for more than 100 hours having a discussion with 250 Europeans who were aged between 15 and above 65 years. Focus groups were created and detailed interviews were held in a selection of nine Member States: France, Croatia, Italy, Lithuania, Germany, Poland, UK, Spain, and Sweden. 
  • Quantitative stage- About 26,500 Europeans spoke and gave their views in the questionnaire which was carried out through telephone in the quantitative process.  

It is an exclusive roadmap for all the EU countries when it comes to dealing with piracy attitudes, counterfeiting, and behaviors. In the third edition, the study shows a gradual but positive change in the understanding and attitudes of the people, this is in regard to the following previous surveys by the EUIPO in 2013 and 2017. 

  • The EU-wide study of the previous edition had confirmed that the majority of the citizens agree that those people who invest money and time in innovation have their rights protected and get paid for their work. 
  • In the 2020 study, there has been a huge increase in respect for the creators and artists. People are now slowly telling that they have a better understanding of IP rights, which is a vital finding in the study.
  • There has been a slight drop from 7% to 5% for intentional purchase of counterfeits and from 10% to 8% for intentional piracy. The young population of the EU is the biggest group that continues to download illegally and buy imitations, which shows that there is a lot of work that needs to be done, especially since this group is the heaviest user of the internet. At the same time the trend to perceive the purchase of counterfeits as harmful to people’s image continues to rise – up from 12% to 17% in the current study. 
  • The survey did not have questions to ascertain why counterfeits are now perceived more negatively but this trend is more than likely to be reinforced by the public backlash against fake medicines and personal protective equipment during the current pandemic (Covid-19) crisis. 
  • Illegal downloads are not so popular anymore, people are now more willing to pay for legal content which is available at a reasonable price. This change is linked to the increase in the availability of legal sources. Since the quality and diversity have improved, people have started to pay more for legal content. The people now are often checking whether the sites they use are legal or not. 
  • These trends and the reasons behind them, need to be closely studied and updated and the 2020 report will continue to be an important resource for researchers, IP professionals, and policymakers alike. 

2020 trend questions of the survey and results

General perceptions

The trend question

In your opinion, who benefits the most from the protection of intellectual property? 

Findings

  1. Less IP infringement is likely to occur if more people understand intellectual property. 
  2. There is about a 100% increase that can be seen where people think that intellectual property benefits creators, artists, and other people. 
  3. A decline was seen in intellectual property infringements from 7% in 2017 to 5% in 2020 which was related to people purchasing counterfeits. Another decline was seen from 10% in 2017 to 8% in 2020 for intentional piracy.
  4. The young people who are more prone to buying counterfeit goods or getting access to pirated material are also the majority of internet users of all the groups that were surveyed. 

Summary

Understanding an intellectual property concept is quite elevating. The people who do not infringe IP rights are likely to better understand the subject rather than the people who are engaged in the behavior of infringing IP rights.

Counterfeiting

The trend question

During the past 12 months, which of the following have you done? – Bought counterfeit products intentionally/unintentionally. 

Findings

  1. A decrease was seen of 1% from 10% in 2017 to 9% in 2020 of those people who were misled into buying counterfeit goods. 
  2. A decrease was also seen from 37% in 2017 to 33% in 2020 in those people who wondered whether the product they bought was original or not. 
  3. An increase was seen from 12% in 2017 to 17% in 2020 in those people who thought that buying counterfeit products could cause harm to their image.

Summary

When the survey of 2020 took place, it was seen that for the first time people had given the answer that they did not buy counterfeit goods purposely in the last 12 months because there was the availability of affordable original products.

Piracy

The trend question

Please tell if you agree/tend to agree, disagree/tend to disagree with the following statements: 

  • In the case of affordable legal options available, I would prefer to access/download/stream content through authorized platforms and not access/download/stream illegally.
  • What can be found through illegal offers is not as diverse as the content offered by legal services.
  • Legal solutions offer a better quality content than what can be found through illegal solutions.

Findings 

  1. There is an increase of about 69% from 25% in 2017 to 42% in 2020 since the last study took place where people were willing to pay for the content.
  2.  It was also seen that there has been an increase from 14% in 2017 to 20% in 2020 in the people who are researching in detail as to whether the websites offer legal content or not.

Summary

No matter the type of online content, awareness of legal offers was significantly higher in 2020 compared to 3 years ago. The preference to choose a legal source grows when those legal options are affordable. Furthermore, both the diversity and quality of the content offered on legal services is viewed as superior on a gradual basis to that which is found on illegal sources. About 2/3rd people in Europe know that there is an availability of legal offers for three categories of content online they are music, TV series and films. The younger population of Europe are the ones who know the most about legal offers for TV series, films, music and video games. 

Paid for online content from a legal service 

The trend question

During the past 12 months, which of the following have you done? – Paid to access, download or stream copyright-protected content (for instance music, video, film or TV series) from a legal service on the internet.

Findings

  1. About 48 % of the people who haven’t used illegal sources to download online content have not downloaded it because there is the availability of a lot of affordable content from legal sources. 
  2. There are about 48% of people who understand that when IP infringement takes place it harms the writers, musicians, creators and artists. 
  3. About 1 out of 10 Europeans admitted to using pirated online content purposely in the past 12 months, this figure was slightly below when reported in 2017 and 2013. 
  4.  The confusion regarding what a legal or illegal source is, still remains steady but there is a rise to find out whether sources are legal or not. 

Summary

The main push for users who report that they haven’t accessed digital content through illegal services is because they have the availability of affordable content from legal sources online. The evidence regarding this trend is shown towards the rise in the use of legal online sources and the preferences for these legal sources.

Conclusion

The protection value of IP is recognised throughout Europe. About 98% of the people feel that it is important that creators, artists and inventors can protect their rights and also get paid for the work they do. On the same issue in the previous study, it was about 97%. The economic stability in IP remains the same with about 73% and the people agree that if there is no IP protection then economic chaos can take place. Most people believe that counterfeits hurt the economy and harm jobs and businesses. The European population knows that counterfeit goods harm the health and safety of the economy. The number of people who accept using illegal sources to download and access digital content for personal use is reducing at a very fast pace, but there is still a certain number of people who still believe that it is acceptable to them, if there is no legal alternative to this issue. About 96% of the European population believes that IP is important because it supports creativity and innovation by rewarding the creators, artists and inventors. 

A majority of the people believe and value the fact that IP contributes to the creation of jobs and economic well-being. Finally, it appears that the European citizens are largely favourable towards IPR. The details emerging from the report of 2020, will help stakeholders at the national level to combat IP crime and provide a benchmark shaping future public awareness strategies for the EUIPO and in the EU generally.

References

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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