Understanding standing orders under the Industrial Relations Code

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August 25, 2021

This article is written by Arya Mittal from Hidayatullah National Law University. The article analyses the provisions of standing orders under the recently enacted Industrial Relations Code, 2020.

Introduction

Recently, the parliament enacted the Industrial Relations Code, 2020 among the other three labor law codes, which is yet to come into force. The Code combines three Acts, one of which is the Industrial Employment (Standing Orders) Act, 1946 that is the scope of the current article. This Act was enacted to streamline the relations between employers and employees in industrial establishments. The report of the Second National Commission of Labour was taken into consideration to prepare the Code. The Code has changed many provisions of the former Act but undoubtedly, will have a positive impact in the unorganized sector of the country where the laborers are hardly provided with a healthy work environment.

The importance of standing orders in the unorganized sector cannot be emphasized enough as the standing orders impose a statutory duty on both the employer and employees to comply with the standing orders, leading to less chaos, better administration, and lesser disputes between the employer and employees.

Historical background

An Act titled Industrial Employment (Standing Orders) Act, 1946 was passed by the parliament to organize the industrial establishments by instructing the employers to prepare standing orders which would lay down the working conditions of the employees. Industrial Employment (Standing Orders) Central Rules, 1946 were also notified by the central government in furtherance of the Act. In case the employer deviates from these rules, the employee can get it enforced through Labour Court or Industrial Court. However, the Act prescribed that only those industrial establishments which have a hundred workers or had a hundred workers (changes to three hundred by Industrial Relations Code, 2020) on any day of the year would be liable to prepare standing orders.

With the enactment of the Industrial Relations Code, 2020, there have been changes in the provisions relating to standing orders. The provisions of the former law have now become a part of the Code and are dealt with in Chapter IV of the Code from Sections 28 to 39. However, the Code has not been enforced yet and its respective rules are yet to be notified.

Concept of standing orders

Meaning of certified standing orders and model standing orders

Section 2(zj) of the Industrial Relations Code, 2020 defines standing orders as “orders relating to matters set out in the First Schedule”. As regards the First Schedule, it states eleven matters which are as follows:

Classification of workers;
Mechanism of intimidating attendance, wage rates, etc;
Shift working;
Attendance and late coming;
Conditions and procedure for leave application;
Requirement to enter premises by certain gates, and liability to search;
Non-functioning of certain areas and related rights and liabilities;
Conditions relating to termination;
Misconduct related provisions;
Mechanism for redressal; and
Any matter notified by the appropriate government.

As regards Certified Standing Orders, a draft standing order is prepared by the employer based on First Schedule which is then sent to the Certifying Officer for certification. If the draft standing order is successfully certified, such standing order is enforced in the industrial establishment.

The process of certification takes some time and till that time the model standing orders are made applicable as per Section 29(2). Nevertheless, the Code provides that any industrial establishment can even adopt the model standing orders and can inform the same to the Certifying Officer following Section 30(3) of the Code. These model standing orders are prepared by the Central Government as provided in Section 29(1) of the Code.

Process for certification

The procedure for certification of standing orders is provided in Section 30 of the Code. The process is as follows:

The employer shall prepare a draft standing order in accordance with the First Schedule and provisions of the Code and take recommendations from trade unions or representatives of employees, if any.
He shall then forward the draft standing order to the Certifying Officer either electronically or in any other prescribed manner.
The Certifying Officer on receipt of the draft, shall forward the same to trade unions or representatives of employees and make suitable modifications if required within sixty days.
If the Certifying Officer does not make any objection within the stipulated period, then the draft standing order shall be deemed to have been certified and shall be enforced in the establishment.
Additionally, an industrial establishment can also opt to adopt the model standing order in which the employer shall inform the Certifying Officer, and then such model standing order shall be deemed to be the certified standing order of the establishment if the Certifying Officer approves (who can also make certain modifications).

Amendment process

Section 30(4) of the Code provides for the process of making modifications in the standing order. The process for modifications remains the same as stated above for draft standing order wherein the employer proposes the draft to the Certifying Officer, who then takes recommendations from trade unions and representatives and accordingly approves or rejects the modifications.

Remedies for employer

In case the modifications that have been applied for by the employer are rejected then he has certain remedies as discussed below.

Appeal

The first and most basic remedy which the employer can exercise is filing an appeal with the appellate authority under Section 32 of the Code. It states that if the employer is not satisfied, “he may file an appeal within sixty days of receipt of the order of the certifying officer to the appellate authority appointed by the appropriate Government, by notification, and such authority shall dispose of the appeal in such manner as may be prescribed”.

Rule 12 of Draft Industrial Relation (Central) Rules, 2020 provides that the appellant should prepare a memorandum of appeal in tabular format along with original provisions and proposed modifications and file it electronically with the authority within sixty days of receipt of the order of Certifying Officer.

Independent application

Further, if the appeal is not successful then the employer may prepare a fresh draft and file it again with the Certifying Officer following the procedure therewith, with the contention that there has been a change in circumstances. The same view has been taken by the Supreme Court of India in the case of Management Shahdara (Delhi) Saharanpurlight Railway Co., Ltd vs. S.S. Railway Workers’ Union (1969). It was held that though the decision of appellate authority could not be challenged in the civil court, yet the aggrieved party has the right to make a fresh application to the Certifying Officer.

Agreement between concerned parties

The employer may form an agreement with the employees or their representatives or trade unions to make modifications as per his desired modifications. Section 35 provides for a gap of six months between any modifications to be proposed, otherwise, there should be an agreement between the employer and employees resulting in which only the modifications can take place. Thus, if the parties agree, they may form an agreement and propose modifications to the Certifying Officer keeping in mind Section 35 of the Code and Rule 15 of the Draft Industrial Relation (Central) Rules, 2020.

Finality of the decision of the appellate authority

The decision of the appellate authority is final and binding. The provisions of the previous Act on standing order explicitly stated that the decision of the appellate authority shall be final and thus, recourse could not be taken in civil court. However, under the provisions of the Code, Section 32 which deals with the appeal and its disposal by appellate authority thereof does not say that the decision of the authority shall be final. It states that “such authority shall dispose of the appeal in such manner as may be prescribed”. Even on referring to the draft rules, it nowhere states that such a decision is final.

However, Section 97 of the Code states that “No civil court shall have jurisdiction in respect of any matter to which any provision of this Code applies and no injunction shall be granted by any civil court in respect of anything which is done or intended to be done by or under this Code.” Thus, from this provision, it can be interpreted that the decision of such appellate authority shall be final. Nevertheless, in the Management Shahdara case, it has been held that such appellate authority may review and change its decision if it deems it necessary on the grounds of fairness and reasonableness, even where there is no change in circumstances.

Nature and effect of certified standing orders

Rights and duties of employee and employer

The most basic feature of the certified standing order is that it lays down the rights and liabilities of the employer and employees during employment. It keeps into account all the matters stated in the First Schedule and thereby sets their duties towards each other throughout the term of employment.

Binding effect

Once the standing orders are certified, they have a binding effect on both the employer and employee. All the terms incorporated in the certified standing orders such as payment of wages, mechanism of payment, shifts, classification of employment, etc. should be compulsorily followed by both the employer and employee. In case of non-compliance either by the employer or employee, they can take recourse through the Industrial Tribunal as provided in the Code.

As held in the case of Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke of Bombay & Ors. (1976), Industrial Employment (Standing Orders) Act, 1946, and Industrial Disputes Act, 1947 are sister enactments (which are now part of the same code) and recourse can be taken under the latter act if the former does not provide for any mechanism. Thus, certified standing orders are binding on the employer and employees and can be enforced through the Industrial Tribunal in case of non-compliance. Since the two enactments are now part of the same code, there will be no difficulty in enforcement.

Conformity with Model Standing Order, First Schedule, and Industrial Relations Code

The certified standing orders should conform to the First Schedule which states the eleven matters based on which the standing orders should be prepared. Further, it should also conform with the model standing orders prepared by the central government under Section 29(1) of the Code. Lastly, the certified standing orders are always made following the Industrial Relations Code, 2020.

Statutory imposition

The nature of the certified standing orders is in the form of statutory imposition. However, they are not to be construed as statutory provisions, and thus, they are not to be taken as law. In the case of Rajasthan State Road Transport Corporation v. Krishna Kant (1995), it was held that “The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Order) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to statutory provisions”.

Fair and reasonable

The certified standing orders should always be fair and reasonable. Section 30(7) makes it the duty of the Certifying Officer to “adjudicate upon the fairness or reasonableness of the provisions of any standing orders keeping in view the provisions of the model standing orders”.

Overriding effects

It has been confirmed by the courts on various occasions that certified standing orders have an overriding effect on any agreement such as a letter of appointment if the latter is contrary to the former. In the case of Western India Match Co. Ltd. v. Workman (1973), the Supreme Court has held that if there is any inconsistency between certified standing orders and an agreement, the former would prevail over such terms of the contract of service, for the reason that, certified standing orders have the force of law whereas there is no legal sanction in case of an agreement. This has been reaffirmed by the Rajasthan High Court in the case of Eicher Goodearth Ltd. v. Rajendra Kumar Soni and Another (1993) where the High Court held that certified standing order has the power to override the letter of appointment wherein there was an inconsistency between the two in provisions relating to probation.

Penalty for non-compliance

Section 86(11) of the Code prescribes that an employer can be punished with a fine ranging between one lakh to two lakhs in case he does not comply with the finally certified standing order.

Conclusion

The Industrial Relations Code, 2020 has had a significant change in the laws relating to standing orders. As a result of the compilation of the three Acts, now an employee can take resort under the same legislation unlike before. As regards the finality of the decision of the appellate authority, such decision is final and no remedy lies against such order in a civil court. Lastly, different points have been discussed which signify the nature and effect of the certified standing orders such as its binding nature on employers and employees, statutory imposition, conformity with the law, penalties for non-compliance, and much more.

References

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Power to adjudicate a controversy on merits does not stay with Lok Adalats: K.K. Distributes v. State of Chhattisgarh

By

Oishika Banerji

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August 25, 2021

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Permanent-Lok-Adalts — Image source: https://blog.ipleaders.in/permanent-lok-adalats-critical-study/

This article has been written by PS Amrit pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Table of Contents

Introduction

A Judgement of Chhattisgarh High Court in news recently reestablished the limited jurisdiction and power of Lok Adalat. Chhattisgarh High Court’s Single judge bench in the case of K.K. Distributors v. the State of Chhattisgarh decided the case by giving the ratio that ‘the award’ and ‘the determination’ of Lok Adalats under the Legal Services Authorities Act must be a non-adjudicatory determination on the basis of consensus, settlement, and compromise between the parties arrived at with the help of Lok Adalat. On the other hand, there is no need for it to be an adjudication arrived at judiciously or a judicial determination.

Brief facts of the case

This case was a result of a complaint made under Section 18(a)(vi), 18(B), 27(d), and 27(A) of the Drugs and Cosmetics Act, 1940 read with Rules 65(3), 65(4)(4), 65(5)(3), and 65(6) of Drugs and Cosmetic Rules, 1945. In the course of the case trial, the state and the other party decided to compromise and compound the case, therefore, the court ordered the officer competent for the compounding of the case to be present. But when the court referred the case to Lok Adalat, it passed an order stating that the offense which is to be compounded here is a non-compoundable offense and hence gave an order opposing the court and deciding on merit which is beyond the power of Lok Adalat. This order of the Lok Adalat dismissing the compounding application was challenged by the party in Chhattisgarh High Court.

The contention of the Petitioner’s counsel was that it is beyond the power of the Lok Adalat to pass an order based on merit. The Lok Adalat erred in passing such order instead of it had an option to refer the case to the competent court for the adjudication of the matter on merit.

The judgment of the Court

The Chhattisgarh High Court referred to the case of Moideen Sevamandir v. A.M. Kutty Hassan, 2009 and reiterated the scope of Lok Adalat that it has one and only task to put a seal on the compromise arrived at between the parties and pass an order according to that compromise. If in any case, the Lok Adalat is unable to help the parties to reach out a compromise then all the records of the case are returned to the competent court for it to be disposed of according to law. The Hon’ble Court also stated that any Lok Adalat has no power to imitate the trial conducted by a regular court i.e. hearing the parties and deciding the case on merit. It only helps the parties in their discussions to reach a compromise.

The Lok Adalats work on the principle of equity, justice, and fair play in assisting the parties to reach a conclusion and they play a role like a referee. ‘The award’ and ‘the determination’ of Lok Adalats under the Legal Services Authorities Act must be a non-adjudicatory determination on the basis of consensus, settlement, and compromise between the parties arrived at with the help of Lok Adalat. On the other hand, there is no need for it to be an adjudication arrived at judiciously or a judicial determination.

The term ‘Award’ in the matter of a Lok Adalat is not a decision or verdict passed after going through the legal process. On the other hand, it only implies that a settlement is made between the parties through a conciliatory act of Lok Adalat. With the application of these observations, the Chhattisgarh High Court stated that the Lok Adalat cannot exceed its powers and jurisdiction by passing an award that the offense is non-compoundable, on the basis of the merits of the case.

Laws with respect to Lok Adalats

For the first time Legal Services Authorities Act, 1987 gave Lok Adalats a statutory status. Article 39-A of the Indian Constitution also supports this concept of legal help to weaker strata of the society.

Some features of Lok Adalats

Its job is to reach a compromise or settlement through negotiations between the parties.
In a civil or criminal suit, one party wins and other parties lose, but in Lok Adalats both parties enjoy victory as both of them gain something after the Award.
It is a type of Alternate Dispute Resolution (ADR) as defined under Section 89 of the Civil Procedure Code, 1908. It is an alternative remedy for securing justice.
In Lok Adalats no court fee needs to be paid, if in some cases it is paid then it will be refunded. So, it is a pocket-friendly remedy.
In the process of a court, no party can interact with the judge, but in Lok Adalats the parties can interact with the presiding officer.
In certain cases, the Lok Adalat may be considered as a civil court.
All the Lok Adalats possess some of the powers of a civil court.
When the Lok Adalat passes an ‘Award’, it acts as a decree of any civil court.
An ‘Award’ of the Lok Adalat cannot be challenged in an Appeal. This ‘Award’ is, therefore, final.
The Lok Adalat can pass an ‘Award’ only after all parties to the dispute have consented to it.
Proceedings of a Lok Adalat are not bound by the limits of the Indian Evidence Act and Civil Procedure Code because they do not apply to the Lok Adalats.
A Permanent Lok Adalat has wider powers such as it can pass an award without the consent of the parties.

Composition of Lok Adalats at different levels

At State Level

Lok Adalat organized by the member secretary of the State Legal Services Authority constitutes a bench composed of retired or sitting judges of the High Court or any retired or sitting judicial officer and either a legal professional and social worker.

2. At High Court Level

Lok Adalat, organized by the member secretary of the High Court Legal Services Authority, constitutes a bench composed of retired or sitting judges of the High Court and both or either a legal professional and social worker.

3. At District Level

Lok Adalat organized by the member secretary of the District Legal Services Authority constitutes a bench composed of any retired or sitting judicial officer and either both or a legal professional and social worker.

4. At Taluk Level

Lok Adalat organized by the member secretary of the Taluk Legal Services Committee constitutes a bench composed of retired or sitting judges of the High Court or any retired or sitting judicial officer and both or either a legal professional and social worker.

Types of Lok Adalats

National Lok Adalat

National Level Lok Adalats are held in the country at different levels from Supreme Court to the Taluk Level. In National Level Lok Adalats, a huge number of cases are settled in one day.

2. Permanent Lok Adalat

Organized under Section 22-B of the Legal Services Authorities Act, 1987, Permanent Lok Adalats are in the permanent nature set up having a Chairman and two other members with the objective of providing pre- legislative apparatus for the settlement and Conciliation of matters of Public utility services like the telegraph, postal, transport, etc. If in a matter of Permanent Lok Adalat if the parties could not reach a consensus, then it has also the jurisdiction to decide the matter but the matter must not be a criminal one. Permanent Lok Adalat has jurisdiction up to 10 lakhs. The ‘Award’ passed by the Permanent Lok Adalat is binding on parties and final.

3. Mobile Lok Adalat

In various parts of the country, Mobile Lok Adalats are organized by traveling from one place to another place for the speedy resolution of disputes.

Some advantages of Lok Adalats

Due to the absence of any court fee, the litigants find it easy to approach the Lok Adalat. Even if the fee has been paid it will be refunded after the settlement of the matter at the Lok Adalat.
Due to the absence of any strict rules of evidence and procedure the matters in the Lok Adalat get settled rapidly.
Since the parties in a Lok Adalat can communicate to the presiding officer directly therefore there are more chances of a fair settlement.
The matters can directly be brought before the Lok Adalats and there is no need to approach the court before doing so.
Awards of Lok Adalats are binding on the parties and are final in nature which means there will be no appeal from the Award of the Lok Adalat as opposed to the generic legal system where several appeals cause a delay in the court process. The absence of appeal is due to the reason that it is the settlement arrived at by the parties mutually.
Lok Adalats are an embodiment of inexpensive and faster remedies having a legal status on their face.

Conclusion

In my opinion, the concept of Lok Adalat is a boon for the judicial system giving it a boost in the disposal of the cases and relieving it from a huge amount of caseload.

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The ‘per se’ rule against trademark protection in the case of United States PTO v. Booking.com B.V.

By

Rachit Garg

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August 25, 2021

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This article is written by Aryan, from the School of Law, Christ University. This article deals with the per se rule and its application in the case of United States Patent and Trademark Office vs. Booking.com B.V., 2020.

Table of Contents

Introduction

The Sherman Antitrust Act, 1890 was enacted to guarantee free trade and positive competition. The Act assumes that the free interplay of the competitive environment will result in the ideal functioning of financial markets. However, in recent times certain agreements or businesses have indulged in harmful trade practices which have resulted in the violation of the aforementioned Act. Such businesses have been termed illegal following the per se rule.

The principle of per se is applied when there is sufficient evidence of trade restraint, and such restraint is held to violate the antitrust laws. This article analyzes the per se rule’s application in a United States’ Supreme Court decision, specifically whether the per se rule applies to a class of items or products that are not unique, as the law states that less distinctive items or products are incompetent for trademark protection. While trademark protection has been granted to products capable of being distinguished from others, the current issue deals with whether a generic term can acquire a trademark and what factors it needs to fulfil to be granted the same. Furthermore, this article also analyzes the role of advertising in the modern day and how it can give rise to unfair competition in the future. Lastly, this article analyzes the role of customers in granting businesses or companies trademark protection and its implications for online businesses.

What is the ‘per se’ rule

According to the per se rule, any act which is in restraint of trade or an agreement that tends to violate antitrust laws and involve anti-competitive practices is generally regarded as illegal or unreasonable. Cases like price-fixing, bid manipulation, collective boycotts, deliberate refusal to trade, and resale price maintenance are anti-competitive and are therefore unlawful. For illustration, if a group of tomato wholesalers in a single market secretly arrange to hoard tomatoes for some time to create demand for the tomatoes and therefore raise its price as per the demand, then it will be considered unlawful as it violates procompetitive behaviour and antitrust laws as per the per se rule.

According to the per se rule, the purported person, on whom the allegations are laid, has the burden of proving that such allegations are false. However, in such cases, a plaintiff merely has to prove that the particular anti-competitive behaviour has occurred apart from the antitrust damage. The plaintiff is under no obligation to prove that the behaviour was competitively unreasonable or had a detrimental impact on the relevant product and geographic markets.

Per se rule infers that if a specific act meets the accepted elements of the rule’s requirements, there is no need for further investigation and all the defences to establish the reasonableness of the act in issue are prohibited. Therefore, when there is ample evidence of unreasonableness in a particular case, the per se rule is applied as it saves both time and money and the given case is not worth the irrationality.

Evolution of ‘per se’ rule

The Sherman Antitrust Act was enacted in 1890. This legislation prohibited all commercial agreements which led to restraint of trade as well as efforts to gain a monopoly. Moreover, it was enacted in response to corporations abusing their dominant position which had severe consequences for shippers, farmers, and other merchants.

However, courts in due time realized that not every restriction is unlawful as even a basic contract between parties can be subjected to trade restraints in some way. The court further decided that it will use one of the three methods to determine whether a restriction is unreasonable under federal antitrust laws. These three methods include-

The per se rule
Rule of reason
The ‘quick look’ rule

A contract or any other agreement which unreasonably restricts trade and comes under the ambit of per se category is evaluated under the rule of reason test. The rule of reason evaluates the majority of antitrust cases and judges consider a range of elements, such as information about the business, if there is a restraint then the past, nature, and impact of such restraint. Taking such factors into consideration the court decides whether such factors impose a restraint in trade or not. The quick look rule is applied when cases have anti-competitive effects of such a high nature that it becomes unnecessary to conduct a full analysis of the case. Unlike the per se rule, where courts have to conduct a thorough examination concerning anti-competitive effects, here the plaintiff just has to prove that he has suffered a market injury. This rule is applied for quick disposal of cases.

Background of the case

Booking.com is a travel company that provides internet booking services for things like flights, rental cars, and hotel bookings under the brand Booking.com, which also acts as the website’s domain name. The company applied to the US Patent and Trademark Office (hereinafter referred to as USPTO) and filed four trademark applications in connection with travel-related services. The Lanham Act, 1946 distinguishes between four types of trademarks which include generic, descriptive, suggestive, and arbitrary. Only arbitrary and suggestive marks are considered distinctive, generic and descriptive marks are never distinctive and hence do not qualify for trademark protection.

In simple terms, the more unique a mark is, the more likely it is to be granted registration. Each of the four applications had its unique features but were all associated with the same term “Booking.com”. The USPTO denied the registration stating that the word “booking” was a generic term (the name of a class of product and services incapable of being distinguished from the goods of others) and Booking.com had failed to demonstrate how their mark had become unique. It is evident that for a product to acquire its name as a trademark has to be unique.

Booking.com sought judicial intervention and appealed to the Trademark Trial and Appeal Board (hereinafter referred to as TTAB). The TTAB upheld the USPTO’s judgment and stated that the customers would interpret booking.com mainly to relate to an internet booking service for travel and trips because according to them the term “Booking.com” is a commercial website that grants travel arrangements. The Board finally concluded that even though Booking.com is a descriptive trademark instead of a generic term, it is still unregistrable because it lacks a secondary meaning, which means that the product failed to achieve significance in the minds of the customers.

Booking.com challenged the TTAB judgment in the United States District Court for the Eastern District of Virginia. The court overturned TTAB’s judgment as per the evidence produced by Booking.com which found that nearly 75 percent of people recognized Booking.com as a specific brand name. The court further said that the word Booking.com is a descriptive trademark and has obtained a secondary meaning in the context of hotel reservation services. Thus, the board concluded that the term “Booking.com” satisfies the distinct criteria for registration and is therefore not generic.

The USPTO filed an appeal with the United States Court of Appeals for the Fourth Circuit, which affirmed the District Court’s judgment. The Appeals Court dismissed the PTO’s argument that the combination of .com with a generic name like Booking.com renders the product or goods to be generic. Further, the court stated that a product can be granted a trademark only if the design, phrase, symbol, or any variation aids in distinguishing one product from other goods and services, and if the consumers are able to identify its distinctiveness, the product will be rendered non-generic, which in this case almost 75 percent people recognized Booking.com as a unique service due to its domain name. The USPTO in November 2019 filed a petition for review with the Supreme Court.

Issues involved

The issues presented before the U.S. Supreme Court were-

Whether there is a per se rule against trademark protection for a generic.com term.
Whether adding a generic company name to a generic word does or does not provide trademark recognition.

Court’s observation

The U.S Supreme Court made its decision on 30th June 2020. The Court upheld the Fourth Circuit decision in an 8-1 ruling. It was determined by a majority of the judges that any term that includes generic.com is regarded generic for a particular class of product and services and those products are not eligible for trademark registration. However, if the particular product or service has a secondary meaning attached to them, in that case, it can still be eligible for trademark protection under the law. The Court further stated that in the given case people have recognized Booking.com as a unique service based on the evidence produced before the district court. As a result, Booking.com qualifies for trademark protection under the law.

USPTO opposed the Supreme Court judgment stating that Booking.com would still be unqualified for registration regardless of its unique service and evidence of consumer perception as per the per se rule, which means that when a generic term is paired with a generic internet-domain suffix, such as .com, the final combination is also generic. USPTO claims that the objective test it proposes is based on a common-law concept used in the case Goodyear’s India Rubber Glove v. Goodyear Rubber Co. [128 U.S. 598 (1888)), that a generic company brand added to a generic term does not grant trademark entitlement.

The judges argued that the rule that the USPTO proposal is not supported by USPTO’s previous conduct and they do not have any basis in trademark law to support it. They themselves had not followed the aforementioned prerequisites in the past and have granted trademark registration to services providing art prints such as ART.COM and companies offering dating services such as DATING.COM.

The judges went on to explain that if the USPTO’s current rules and conditions were to be followed, then all previous trademark registrations issued by the USPTO have to be revoked as well. The court further held that in Goodyear’s India Rubber Glove Mfg.Co. v. Goodyear Rubber Co. (1988), it was ruled by the Supreme Court that Goodyear Rubber Company was not worthy of complete ownership because the methods used during those days to manufacture products were known as Goodyear’s invention, and no such process was recognized back then. According to the court, the term “company” intends that the parties have established a partnership or organization to trade in such products, and the word company grants no other protectable meaning. By granting special privileges to Goodyear Rubber Company or Wine Company would infringe everyone’s freedom to trade in such goods, as stated by the Court.

The Court held that the USPTO’s dependence on Goodyear is problematic in another aspect. The USPTO considers Goodyear’s incompetency for trademark protection as a legal issue, irrespective of how the term is understood by consumers. Although, as stated above, whether a term is generic or not, is decided by how the term is understood by the consumers. The product in question is deemed to be generic if the customers are unable to tell the difference between it and other similar goods or services on the market.

The dissenting opinion came from Justice Breyer who opined that since it has been recognized that Booking.com is a generic term and trademark law offers no protection to goods or services which are deemed to be generic. He further stated that even though the court considers adding .com to generic terms like booking can give rise to a trademark, a top-level domain name such as .com cannot recognize and differentiate the source of products and services on its own, it is only a critical element of a web address and simply indicates that owner operates through a website. Justice Breyer considered this decision contrary to trademark policy.

He further said that the Lanham Act of 1946 did change the common law in significant ways. Most importantly it granted a trademark to descriptive marks with secondary meaning. The mental principle that generic terms are not eligible for trademark protection remains unchanged and the majority have seemed to overlook it in the present instance. Moreover, in terms of law and logic, the USPTO did raise a relevant question regarding Goodyear’s principle, and the reasons provided by them do appear rational. Adding a corporate designation neither converts a generic name of a product into a trademark nor grants it the authority to exclude other products.

Justice Breyer criticized the rule of the majority, companies would be able to acquire a trademark simply by prefixing the domain name.com. Such unreasonableness can give rise to unfair competition over the internet in the future as more businesses will rely on it to sell their products and granting a trademark for every such company with the prefix .com will lead to a significant down surge in the economy and the fundamental economic rules we aim to accomplish.

Analyzing the judgment

The US Supreme Court judgment on the United States Patent and Trade Office v. Booking.com (2020), was decided with an 8-1 majority.

The Supreme Court held clearly that even though a product is generic if it acquires a secondary meaning to consumers it would still be eligible for a trademark recognition as Lanham Act (1946) clearly emphasizes that the importance of the registered mark among the public shall be the sole reason to grant or cancel trademark protection. The aforementioned reason was not accepted by the USPTO and the dissenting judge had already argued that as per the Lanham Act (1946), a generic item shall not acquire trademark protection, notwithstanding the consumers’ perception towards the goods.

Since the public significance of the registered mark is the only basis for granting or terminating trademark applications, it is essential to understand the process adopted by the consumers to grant or terminate the same. Most of the time, and in the present case the decision is based mainly on survey results. Consumer surveys are frequently used to see whether people identify a word with a particular source. It is not difficult for a generic term to get customers’ recognition for their goods or products as the investors of a particular product invested a lot of money and efforts in obtaining public recognition mainly through advertising.

The evidence produced by Booking.com before the district court showed that 75 percent of people recognize the Company as a brand name while the remaining 25 percent consider it to be a generic name. Justice Breyer compared such evidence with another such company, washingmachine.com whereby only 33 percent of people considered it a brand. Such a difference in customer identification was recognized because of its heavy investment in advertising by its investors. Washingmachine.com in spite of being more distinctive than Booking.com failed as a brand because it remained unnoticed by most people whether through advertising or any other means. Therefore, spending a lot of money on advertising is imperative to gaining consumer recognition for any product.

Furthermore, in addition to the aforementioned issues, granting trademark protection to such marks will have a consequential impact on the online industry. Owners of short and generic domain names get all the benefits associated with conducting business under a generic name. These benefits exist regardless of trademark regulations. Furthermore, generic names like “Booking.com” are easy to remember, and the owner will spend less time training consumers because their logos instantly convey the essence of the company.

Because Booking.com has already acquired a domain name, no other website will be able to use the same. Such a domain name is also easily identifiable by customers. For illustration, consumers searching for the term booking in a search engine will be taken directly to Booking.com with the assumption of finding hotel booking online at the particular location. It is considered that providing trademark protection to generic.com domain names can confer further advantages to the owners of such marks as they might have the authority to prevent others from using similar domain names. In the present context if any rival uses domain names such as eBooking.com or booker.com can face actions regarding infringement of the trademark.

It is imperative for the courts to strictly adhere to the Lanham Act while deciding cases, as not abiding by the same can allow owners of businesses and products complete monopolistic control over their products. Complete control can be established merely by advertising the product and choosing a common and convenient domain. The outcomes of such actions are more likely to have an impeding effect on online businesses rather than promoting them.

Conclusion

The Supreme Court judgment in the USPTO vs. Booking.com B.V. demonstrates that adding “.com” to the end of the product may render a term generic essentially when the term gains secondary meaning or uniqueness in the public’s view. However, the Supreme Court did not provide criteria for determining which acts will constitute such uniqueness. The most significant consequence of such a decision is that businesses might possess a monopoly of their product as well as profit for investors since they will not be required to spend time educating their consumers.

In contradiction to the preceding ruling, the USPTO has dissented firmly to such judgment believing that wealthy businesses would continue to use the same techniques to get trademark protection in the future. Justice Breyer made a similar argument, stating that such implications can push the economy in an anti-competitive direction.

Therefore the judiciary shall analyze that trademark protection is granted only after following proper procedure of the Lanham Act (1946), and only adhering to such principles can give rise to free and fair trade in the future.

References

https://www.mcafeetaft.com/supreme-court-rejects-per-se-rule-precluding-registration-of-certain-trademarks/

https://www.pearlcohen.com/supreme-court-rejects-per-se-rule-that-generic-com-is-generic/

https://www.businessjustice.com/antitrust-standards-of-review-the-per-se-rule-of-reason-and-quic.html

https://one.nhtsa.gov/portal/site/NHTSA/menuitem.

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Learning from the judgment of Armendariz v. Foundation Health Psychcare Services Inc

By

Oishika Banerji

-

August 25, 2021

0

This article has been written by Naved Bangi, and Debasmita Goswami pursuing a Certificate Course in Arbitration: Strategy, Procedure and Drafting from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

Since time immemorial, unconscionable contracts have been considered to be against the notions of public policy and have been subjected to huge criticism. It can be said without an iota of doubt that such contracts act as a hindrance to the mechanisms concerning not only the employment sector but other areas of business too, deliberately leaving the aggrieved party without any remedial measure but to knock the doors of the judicial courts in order to meet the ends of justice. While there have been numerous Indian precedents where the judiciary has vehemently criticized the one-sidedness of such contracts, has also rightly acknowledged them as being arbitrary and coerced.

For Example – The Supreme Court of India (Indian Supreme Court) in the case of Central Inland Water Transport Corporation Ltd. V. Brojo Nath has rightly observed that forcing the employee to serve a three months notice period in the event of resignation is against the notions of public policy and is arbitrary in nature. The Supreme Court of the United States in the case of AT&T Mobility LLC v. Concepcion has come with a check-list (fraud, duress etc.) for declaring Arbitration Agreement as unenforceable in the employer – employee dispute. In this regard I wish to quote Professor Alexander, Cornell University – “Mandatory arbitration has gone from being a practice used by a relatively small segment of employers to something that affects most American workers.” We further need to take into consideration the reasoning given by the Supreme Court of California in the landmark case of Armendariz Vs. Foundation Health Psychcare Services Inc (Armendariz Case).

On 24th August 2000, The California Supreme Court in the case of Armendariz v. Foundation Health Psychcare Services Inc has explained and laid down the minimum requirements for an employment arbitration agreement to be enforceable in California. The minimum requirements provided for by the supreme court are:

1) Employer must now agree to a neutral arbitrator;

2) Adequate Discovery;

3) Access to full remedies;

4) Written arbitration awards;

5) An employer must pay the arbitration cost.

Now let us understand the case in detail.

Facts and observations

Before delving into India’s key takeaways from the Armendariz case we first need to take a look at the factual matrix and the issues of the law raised in the instant case. Marybeth Armendariz and Dolores Olague- Rodgers (employees) filed a complaint against Foundation Health Psychcare Services, Inc. (employer). The employees in the instant case were hired in the year 1995 by the employer. Subsequently, in the year 1996, the employees were terminated and they claimed that during their employment tenure they had come across incidents where their supervisors had engaged in sex-based discrimination which was accompanied by harassment.

In this case, two employees of Foundation Health Psychcare Services Inc sued their employer under the Fair Employment and Housing Act (FEHA) claiming that because of their perceived heterosexual orientation they were harassed and terminated from their positions by their supervisors. The employees had entered into an employment arbitration agreement with the employers. When the matter was brought to trial by the employees, Foundation health moved to compel arbitration, but the judge here denied the motion and gave reasons for it which were as follows:

1)She observed that the arbitration agreement was an unconscionable contract of adhesion.

2) She also observed that the agreement was a one-sided agreement and quite severely limited employees’ damages.

Then the matter went to appeal and the First district court of appeals sided with the trial court judge on the point that the agreement contained one-sided provisions and also agreed that the clause limiting employees damages was unconscionable.

But the First district of appeals took a different approach here by merely severing the unconscionable damages provision in order to promote the spirit of arbitration and granted the motion to compel arbitration in relation to the rest of the agreement. Further, the matter went to the California Supreme Court in which court favoured the employees.

Issues raised

The Armendariz case being extremely unique has dealt with the key issues of law, that whether employees in the instant case could be compelled to arbitrate their wrongful termination or the anti-discrimination claims brought under the FEHA as per the provisions of Title 9 of Part III of the California Code of Civil Procedure, in lieu of filing a suit in the court, on account of signing the compulsory employment arbitration agreement as a condition of employment. While we got a glimpse of the case from the factual matrix and the issues discussed, let us further take a look at what India needs to learn from the jurisprudence laid down in the Armendariz Case. Let’s dive in!

Judgment

The Court held that the employee may be compelled to arbitrate his or her claims under the Fair Employment and Housing Act (FEHA) provide the arbitration satisfies the five minimum fairness requirements and they are as follows:

1) The agreement should provide for a neutral arbitrator;

2) The agreement must afford more than a minimal discovery;

3) The agreement must require a written decision permitting limited judicial review;

4) The agreement must provide the types of relief which would be available in a civil court;

5) The employer must pay the arbitration cost.

The court also concluded that the FEHA claims can be arbitrable but only if the arbitration permits the employee to vindicate his or her statutory rights. Finding several portions of the arbitration agreement before it unconscionable, The Supreme court held that the entire arbitration agreement was unenforceable. The court also observed two points that weighed against the severance of unconscionable provisions. Firstly stating that the arbitration agreement comprised more than one unconscionable provision which suggested a systematic effort to impose the arbitration on the employee, not as an alternative to litigation but as a forum that is inferior and works to the employer’s advantage. Secondly, there was a lack of mutuality in the arbitration agreement which permeated the entire agreement, which cannot be solved just by severance of the unconscionable provisions but by the reformation of the agreement. The court also held that an arbitration agreement entered into by the employer and the employee should possess a modicum of bilaterality in order to be conscionable.

Lessons which India could learn and India’s current position

Indian courts for a long time have struggled with the validity of such unconscionable agreements. The main reason being if such agreements are upheld they do become a case of witticism. Similar observations were made by the Supreme Court of India in the case of ICOMM Tele Ltd. v. Punjab state water supply and Sewerage Board and Ors. Ruled that “ Deterring a party to the arbitration from invoking this alternative dispute resolution process by a pre-deposit of 10% would discourage arbitration, which is contrary to the object of de-clogging the court system and would render the arbitral process ineffective and expensive”. So as we see the stance of the Supreme Court here has provided a bit of clarity on the position of India on unconscionable agreements.

As we saw that the Supreme Court of California held that an arbitration agreement entered into by the employer and employee should possess a modicum of bilaterality in order to be conscionable. Now let us understand what has been the position of India in relation to the Unilateral arbitration agreement in order to understand the stance of India in concerning Bilateral arbitration agreements.

Notable Judgement on the validity of the Unilateral option clause has been rendered by the Delhi High Court:

1)In the case of Bhartia Cutler-Hammer v. AVN Tubes (1995 (33) DRJ 672), the Delhi HC held that under the Arbitration and Conciliation Act 1996 a party could not have an exclusive right to initiate arbitration as the Act presupposed that there must be a mutual arbitration agreement between parties and also an opportunity for bilateral invocation. The court further held that notwithstanding the parties expressly consent to such a clause, it would not be deemed a valid arbitration agreement.

2) In Emmsons International Ltd. v. Metal Distributors (2005 (80) DRJ 256), the Delhi HC found out the identical conclusion as in Bhartia Cutler but supported different reasoning. The court in this case observed that unilateral option clauses were void as they restrained one party’s recourse to legal proceedings, in contravention of Section 28 of the Indian Contract Act, 1872. The court further noted that a unilateral clause would be void being contrary to the public policy of India.

3)Delhi HC in the case of Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. has deviated from its previous decisions and has held unilateral optional clauses to be valid. However, there has been a lack of clarity about the impact of this decision on the position of the court. Reason being that the clause was upheld under the applicable English law and not under Indian law.

4)In the case of Castrol India Ltd. v. Apex Tooling Solutions [(2015) 1 LW 961 (DB)] the Madras HC decided to go completely against the flow as the general principle that the arbitration clause need not necessarily have mutuality was not disputed. On the facts, however, the court determined that the party seeking to use arbitration as its sole option could not do so because it had failed to oppose and had even engaged in the earlier phases of the litigation.

5) In a modest departure from its earlier judgments, the Delhi High Court upheld the validity of a unilateral option clause in Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (MANU/DE/3204/2009). However, the effect of this ruling on the court’s stance is unclear, given the section was affirmed under applicable English law rather than Indian law.

If we analyze the above judgments we can see that Delhi HC has a view that is majorly favouring the notion that unilateral optional clauses are not valid. But even after these judgements there seem to be room for ambiguity as to the position of the courts in this respect.

When we come to the aspect of Learnings that India could take from the Armendariz Case. We must first understand that the position of India in respect to unconscionable agreements and unilateral option clauses has not been laid down clearly and the Only way the stance of India could be clear on the above issues is when the Supreme Court of India lays down its position clearly. So the Armendariz case would Act as a great reference whenever the Indian courts face the above issues in a particular case. The most essential components of the Armendariz case are the five minimum fairness requirements laid down in the case which could serve as a great reference to Indian courts in laying down a clear position on the aspect of the validity of unconscionable agreements and unilateral option clauses. The judgement in the case of ICOMM Tele Ltd. v. Punjab state water supply and Sewerage Board and Ors. Civil appeal No. 2713 of 2019, 11th March 2019 is one of the important Judgements in respect of the question pertaining validity of unconscionable agreements in India.

Let us further take a look at the scenario existing in India. The 103rd and 199th Law Commission of India Reports (Law Commission Reports) do recognize the issues related to the unfair terms in a contract and the inadequacy of the present Indian Statute law and provide us with a brief regarding the procedural and substantive unfair terms in a contract. The Law Commission reports have stated their reasoning with respect to Section 16(3), Section 23 and Section 74 of the Indian Contract Act, 1872 and have also observed that there exists ambiguity when one deals with unconscionable contracts in India. The reports also acknowledge the problems with respect to the Contract of Adhesion. In order to understand this notion further, let us see what the Delhi High Court has held in the case of Bhartia Cutler Hammer Ltd. v. AVN Tubes. The Delhi High Court, in this case, has rightly observed that unequal rights given to the parties under the arbitration clause shall be rendered void, a similar decision was also laid down in the case of Lucent Technologies v. ICICI Bank by the Delhi High Court. Further, the Delhi High Court in the case of Lucent Technology v. ICICI Bank did acknowledge the invalidity of a unilateral clause but, to the contrary, the Delhi High Court in the case of Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. noted in its observations that a unilateral clause shall be rendered as valid. Since the decision was upheld under English law and not Indian law various narratives and ambiguity have been centred around the same.

Conclusion

The California Supreme Court in the Armendariz case rightly acknowledged the significance of the statutory rights prescribed under the FEHA and duly mentioned that these rights are “for a public reason” therefore, a mandatory arbitration agreement cannot act as a hindrance or as a waiver of these rights. The Employment Arbitration Agreement was indeed imposed upon the employees by the employer leaving no room for negotiation. From the judicial pronouncements discussed above, we see that the parties have sought court’s intervention on the grounds of “lack of mutuality, public policy, and restraint of a party’s right to legal proceedings” but there also exists ambiguity in this regard thus, direct intervention from the Indian Supreme Court of India is the need of the hour and the Armendariz Judgment will act as a valuable reference with regards to the five essentials listed above. It can be concluded that the judgment in the Armendariz case has led to the establishment of a very essential set of rules. The Armendariz judgement also goes on to save employees money and has made arbitration of their statutory employment disputes more like judicial adjudication than ever before. I further conclude by saying that the five minimum fairness requirements are the most important learnings provided in the Armendariz case which India could inculcate. The judgement in the case of ICOMM Tele Ltd. is one of the remarkable cases in the avenue of unconscionable agreement and is definitely a positive judgement in the field of arbitration. I finally conclude by saying that if India were to inculcate these 5 principles it can help India to develop arbitration positively.

References

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Analysing the limitations of an investigating officer in the light of the case of Virendra Khanna v. the State of Karnataka

By

Sneha Mahawar

-

August 25, 2021

0

Privacy — Image Source - https://rb.gy/l2bxxk

The article is written by Nikhil Thakur, a student of Manav Rachna University. The author, through this article, has attempted to explain briefly the limitations of an investigation officer. Further, the author has inculcated the case of Virendra Khanna v. the State of Karnataka (2021).

Table of Contents

Introduction

A single-judge bench of the Karnataka High Court in the case of Virendra Khanna v. The State of Karnataka (2021) observed that the investigating officer shall have no right to reveal or impart the personal information that was seized from the accused’s mobile or any other electronic gadget without due permission of the hon’ble court. The Karnataka High Court further stated that any investigating officer who without permission imparts or reveals the personal information of the accused shall be liable for trespass or to be set aside from his/her duty.

Any personal data or information that is received while seizing them shall not be made a subject matter for the violation of the right to privacy as enshrined under the ambit of Article 21 of the Indian Constitution and the landmark Supreme Court judgment of Justice K.S Puttaswamy (Retd.) v. The Union of India, 2018. The Karnataka High Court dismissed the order passed by the trial court that the accused shall provide personal information to the investigating officer. For seeking personal information the investigating officer shall have a search warrant in hand.

Virendra Khanna v. The State of Karnataka, 2021

In the said case, a single judge bench composed of Justice Suraj Govindaraj passed an order on 12th March 2021 concerning the limitations of the investigating officer during the investigation.

Facts of the case

In the year 2020, the Bangalore police arrested the petitioner (Virendra Khanna) from the NCT of Delhi concerning the case which was registered against him in the year 2018.
While arresting, the investigating officer seized the smartphone and asked the petitioner to reveal his smartphone and email account password. It was alleged that the petitioner rejected the request of the investigating officer, hence, the officer moved to a Special NDPS Court seeking permission for conducting a polygraph test as the petitioner was not revealing the password.
The petitioner alleges that he had already revealed the password of his smartphone and email account. Still, the Special NDPS Court accepted the plea of the investigating officer and allowed for the polygraph test and no contentions were considered concerning the petitioner.
Subsequently, the petitioner approached the Hon’ble Special NDPS Court to dismiss the order passed because the test was imposed upon him, it was not voluntarily done or consented and hence a clear violation of Article 20(3) of the Indian Constitution. Interestingly, the Special NDPS Court refused to dismiss its order thus, the petitioner approached the Hon’ble Karnataka High Court.

Issues raised

There were chiefly two major issues that were observed by the Karnataka High Court:

Whether the order passed by the Special NDPS Court against the petitioner was violative of the right to privacy or not.
Whether the investigating officer was allowed to share the personal information that was seized during the investigation with any third party without the permission of the court.

Contentions of the parties

The petitioner was represented by a senior advocate namely Hashmath Pasha, who contended that pressurising the petitioner to unlock his smartphone along with the email account is a gross violation of Article 21 of the Indian Constitution or the right to privacy as held in Justice K.S Puttaswamy (Retd.) v. The Union of India, 2018.

The advocate on behalf of the petitioner further contended that there is no specific law that allows for taking the right to privacy or enabling any court to direct or order someone to reveal his/her password and using such revealed information for the investigation.

Further, it was contended that the right to privacy is a fundamental right within the scope of Article 21 of the Indian Constitution. If the right to privacy is to be taken away, the parliament shall enact legislation for the same and it shall further comply with the guidelines enumerated in the Maneka Gandhi v. Union of India (1978).

Moreover, the Special NDPS Court allowed no opportunity for the petitioner to defend the application filed by the respondent concerning the polygraph test, and hence the petitioner had no knowledge of the same.

The advocate on behalf of the prosecution contended that the application for seeking a polygraph test against the petitioner was submitted because the petitioner refused to reveal the password when asked. Further, it was stated that if the petitioner would have revealed or disclosed the password, there would be no need of filing such an application.

The prosecution further contended that there was no violation of the right to privacy or Article 21, Article 20(3) of the Indian Constitution and Section 161(2) of the Code of Criminal Procedure, 1973.

Order passed

Accessing the accused’s personal information

The Hon’ble High Court of Karnataka enumerated few steps that shall be taken by the investigating officer in case the accused refuses to reveal his/her password during the investigation:

The Court directed that in such a situation, the prosecution shall approach the court for seeking a search warrant to search on the accused’s smartphone and any other electronic device. The accused is under obligation to reveal his/her password after receiving a search warrant.
The investigating officer through their investigating agency may furnish notice in the name of the accused to reveal their personal information. Further, the Court said that the accused may be subjected to adverse interference if he does not reveal the password after the said notice.
The Court further directed that the prosecution may also seek the permission of the court to direct the service providers to reveal the personal data or information related to the accused.
If in case, the service provider refuses to reveal or disclose the personal information of the accused, the prosecution may approach the court to permit the investigating officer to hack the smartphone or other electronic device of the accused. The agency may also employ a hacker for that purpose.
In case, the hacking into a smartphone or email account has failed and during such procedure, the essential data/information was destroyed, the investigating officer may resort to the notice of adverse inference.
The Hon’ble Karnataka High Court dismissed the order passed by the lower court that requires the accused to reveal his password. The Court further added that the prosecution or the investigating officer shall seek a search warrant to get access to the accused smartphone or email account.

The issue of privacy

The Court observed that in the time of the digital revolution, technology has become pervasive as the telephone is now called landline and this landline has given way to sophisticated devices like smartphones and has become an integral part of the human affair.

Relying on the above-mentioned statement, the Court was of the opinion that it cannot issue any direction to the accused to furnish his password or any personal information and direct him to cooperate during the investigation. Further, the court stated that the collection of essential data is in the ex-facie ambit of the officer.

The Court observed that once the investigating officer has access to the electronic devices of the accused, the officer has unhindered access to the entire data or personal information that may be saved in a smartphone, email account, cloud service, etc.

Moreover, the Court stated that the rules applicable to physical documents that can be classified as private or confidential cannot be applied to the information that is stored in a smartphone. Justifying this reason, the court said that once the officer has access to the smartphone he has complete access to the information stored in it.

The Court observed that though such data or information gathered from the accused’s smartphone may be incriminatory but shall not amount to a violation of the right to privacy if the information was used during the course of the investigation by the investigating officer. Using the personal data during the investigation would come under the ambit of exception as mentioned in the case of Justice K.S Puttaswamy (Retd.) v. The Union of India, 2018.

Testimonial compulsion

The Karnataka High Court observed that furnishing the password or any other personal information shall not amount to testimonial compulsion. The High Court relied on a Supreme Court case of State of Bombay v. Kathi Kalu Oghad (1961) and held that mere furnishing of the information stored in smartphone and email account shall not be included within the ambit of “to be a witness”. The Court gave the reasoning that the mere presence of a document in the smartphone or email account shall not amount to the guilt or innocence of the accused, and any such document recovered shall be proved in accordance with the Indian Evidence Act, 1872.

Analysis of the case

The Karnataka High Court in the case of Virendra Khanna v. The State of Karnataka (2021), made an error by stating that disclosing or revealing the password or personal information to the investigating officer during the investigation would not amount to testimonial compulsion.

According to a landmark Supreme Court judgment of Selvi v. The State of Karnataka (2010), it was held that Article 20(3) comes into action when the statement that was furnished by the accused would lead to self-incrimination. On this basis, any compulsion to disclose personal information including the password of the smartphone and email account shall amount to a gross violation of Article 20(3).

Further, a password in any form is also based on the individual’s personal knowledge and is not mere data stored in a device, and hence furnishing the same to investigating officers would amount to testimonial compulsion.

The disclosing of password and biometric for unlocking the device shall amount to testimonial compulsion because the said compulsion to reveal would permit the investigating officer to get access to the personal information of the accused that may be self-incriminatory and it goes against the principles as laid down in the Supreme Court case of Selvi v. The State of Karnataka (2010).

Thus, the Karnataka High Court has mistakenly equated the term password with that to a physical document without considering the fact that passwords are also based on personal knowledge and maybe self-incriminatory. Hence, pressurising or forcing anyone to disclose his/her personal information is more or less compelling the accused to be a witness in his own case.

Conclusion

The crux of the case is that the investigating officer is not empowered to share or reveal the personal data or information of the accused to a third party without due permission of the court. Further, the Hon’ble Karnataka High Court dismissed the order passed by the lower court which permitted the infusion of polygraph test upon the accused because he was not disclosing the password. Interestingly, the High Court issued a few guidelines concerning the steps that can be adopted by the investigating officer to take the password of the accused’s smartphone and other electronic devices. Moreover, the Court stated that revealing personal data, information that includes the password of a smartphone or email account shall not amount to testimonial compulsion.

The Karnataka High Court order that the revealing of the personal information to the investigating officers during the investigation shall not amount to a violation of the right to privacy goes against the principles as laid down in the case of Justice K.S Puttaswamy (Retd.) v. The Union of India, 2018. Hence, the Karnataka High Court in the Virendra Khanna v. The State of Karnataka (2021) has clearly restricted the constitutional right available to all the citizens.

References

https://indiankanoon.org/doc/87379349/

https://criminallawstudiesnluj.wordpress.com/2021/04/16/virendra-khanna-v-state-of-karnataka-passwords-and-the-dilution-of-the-right-against-self-incrimination/

https://www.consultease.com/karnataka-high-court/karnataka-hc-case-mr-virendra-khanna-versus-state-karnataka/#.YN3Hv-gzbDc

https://www.lawyersclubindia.com/judiciary/virendra-khanna-v-state-of-karnataka-2021-disclosure-of-personal-information-of-an-accused-to-a-third-party-by-an-investigating-officer-5057.asp

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Do virtual hearings affect the nature and course of proceedings in the context of international arbitration

By

Rachit Garg

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August 25, 2021

0

This article is written by Arya Mittal from Hidayatullah National Law University. The article analyses the challenges imposed by virtual hearings in international arbitration and the way people have dealt with these challenges.

Introduction

All of us are well-versed with the effects of COVID-19. The courts were shut down, travel restrictions were imposed and some cities were locked down. In such a situation, it was impossible to conduct proceedings. This became a problem even in cases of international arbitration. But, these cases involve huge costs and cannot be delayed for a long time, otherwise it might create economic difficulties for many people. Therefore, tribunals started to conduct virtual hearings. But was it easy? People faced different problems in this online setup which were different from the ones faced in physical proceedings. In this scenario, it is important to examine whether virtual hearings affect the nature and course of judgments in international arbitration. This article seeks to answer this question by analysing the advantages of virtual hearings, challenges in conducting virtual hearings and the role of arbitrators and parties in solving these problems.

Advantages of virtual hearings

In the current virtual setting, it is imperative to examine what advantages do these hearings offer. This becomes crucial since this would help to present a better view of the nature of virtual proceedings and would help in analysing if they offer solutions to any of the problems posed by the physical hearings. Thus, some of the advantages of virtual hearings are discussed hereafter.

Cost-saving

One of the biggest advantages of virtual hearings is cost savings. Parties will surely save a lot on their travel expenditure. They need not travel internationally anymore and can attend the proceedings from the comfort of their home. The only expenditure they will incur is on technology which will be way less expensive than travelling internationally every now and then.

Easy and time-saving

Virtual hearings have proved to be saving time for all the participants whether parties, counsels, or arbitrators. Parties do not need to travel internationally which will save a lot of time. Additionally, since all the data will be available online, it will take less time to locate relevant information in the digital documents. This has also saved the time of the courts since all the documents are easily accessible.

Environmental impact

A study revealed that international arbitration has had a negative impact on the environment. Travel by flights, stay in hotels, large-scale printing for documentation etc. have affected the environment. Though this might seem to be trivial when imagining one case, the cumulative figures are alarming. However, the virtual hearings have ensured that the level of carbon emissions remain low as people need not travel or stay at hotels anymore and all the documents that are being used are digital.

Increased participation

Virtual hearings in international arbitrations will surely serve a better purpose by helping to increase its accessibility. Since the hearings will be online, so people would incur lesser costs and therefore would not be reluctant in engaging in international arbitrations. This will help a larger number of people to have access to justice.

Challenges in online hearings

Discussing various advantages of online hearings has made it evident how they are more fruitful than physical hearings in many aspects. Nevertheless, it is important to analyse the challenges and practical difficulties of virtual hearings to see if it can effectively replace physical hearings. The same has been discussed below.

Credibility issues

This is one of the most significant problems in conducting virtual hearings. One can never be assured of the credibility of the witnesses when it is on a screen. A physical i.e. face-to-face interaction substantially differs from an onscreen interaction. There are high chances that the witnesses may not be credible when the proceedings are conducted virtually. This is so because it is easy for a person to hide their true behavior when they are on screen. When a person is physically present, arbitrators or opposite parties can see the body language of the person. Even the facial expressions of a person can change when everything is virtual. This issue of credibility has been dealt with in greater detail in the further sections of the article.

Access to technology

It is known that not everyone has equal access to technology. Many developed countries are way ahead in technology than developing countries. Some countries have really low access to the internet. In case if one of the parties belongs to any such country, then it might be difficult for the party to properly participate in the proceedings. These technical problems create a disparity between the parties and both cannot be said to be on an equal pedestal. Even in the normal course, there might arise situations such as power disruptions or network issues which is a challenge for smooth conduct of arbitral proceedings.

Privacy concerns

One of the major problems that have arisen is privacy and security. This is a corollary to the previous point which talks about access to technology. It has been witnessed that even the best video-conferencing platforms were not free from glitches and there were interruptions in many meetings by strangers. This led to a privacy concern since even the unknown individuals would know about the proceedings and every detail related to the same. However, with time, many of the institutions have set up their own platforms or devised different ways through which privacy concerns of the parties could be addressed and their data could be secured.

Linguistic barriers

Since the parties are of different countries, so it can frequently happen that there exists a language barrier between two parties or the witnesses are of a different country. In such a case, translators and interpreters are used. It might happen that such a translator may translate the message in a different manner which can have an effect on the statement of the witness. Therefore, opposite parties have their own translators as well to solve this problem. In virtual proceedings, this setup might become a challenge for the parties and can hamper the arbitral proceedings.

Different time zones

Though one of the advantages of virtual hearings is that the parties need not travel but the same even has a disadvantageous side. Since everyone will be participating in the proceedings from their homes, so the time zone for the parties will be different. This might cause chaos since there are chances that this might clash with their other prior engagements or one might even have to attend the proceedings at odd hours of the day. Nevertheless, when one sees the positive side of these virtual hearings as discussed above, an issue such as different time zones might seem to be trivial.

Unethical behavior and manipulation during virtual hearings

As stated above, there have been a lot of credibility issues with regard to witnesses. It is often not possible to judge the person when he is just available virtually. It becomes easy for the witnesses to lie when they are not present in person. There might also be a situation where the person is not technology-friendly and so is uncomfortable in front of the screen. This might seem to be manipulative and unauthentic, although it is not. On the contrary, there might be people who are friendly with the online setting and so they would leave no benefit of doubt for the other party even though their statement might not be authentic. There might also be a situation where the person is being advised behind the screen without this coming into the knowledge of the tribunal. To exemplify, in cross-examination, a witness might not be able to manipulate the facts and statements if appearing in person. However, while such a person is a part of virtual proceedings, it is way easier to manipulate since he/she might get to know what to speak behind the camera. The parties may engage in unethical tasks to strengthen their side.

Responsibilities of arbitrators

It is settled law that parties should be entitled to fair and equitable treatment. In the case of international arbitration, the onus is on the arbitrators to ensure that there are the least conflicts and challenges in virtual hearings. Different international documents such as Article V(1)b of the New York Convention and Article 18 of the United Nations Commission on International Trade Law (UNCITRAL) Model Law state that the parties have a right to due process. Therefore, a party can refuse the award if it is of the opinion that it was not able to present its case properly. Arbitrators may opt to suggest that parties prepare procedural orders to address different issues faced by parties during virtual hearings. The parties can prepare these orders similar to the usual protective orders addressing their concerns related to privacy and confidentiality of documents or any other concern as the parties may deem fit. This process at an initial stage will ensure that the parties do not face any difficulty at a later stage which may create misunderstandings between the parties and delay or hamper the proceedings.

Consideration for parties

From the above discussions, it is important that parties keep certain points in consideration while being engaged in the virtual hearings. This will ensure smooth functioning of the proceedings and would yield better results. Some of the factors to be considered as mentioned hereafter.

Drafting an agreement

In the previous section, we saw that an arbitrator can suggest procedural orders. Similarly, parties can voluntarily enter into an agreement if any clause that parties want is absent in the rules of the institution. They can discuss issues as to how technical requirements will be taken care of or whether they can record the meeting or they can even put up a clause that such a virtual hearing cannot be challenged on specific grounds at a later point in time. All these considerations will surely help to avoid a dispute at a later point in time.

Host for the meeting

It will be easier for parties if they could decide beforehand who will be the host for the meeting and which platform they will be using. Arbitrator, panel, arbitral institution, or any other person can be appointed as the host of the meeting. This host can ensure that there are no technical glitches while the proceedings are going on and can help in the smooth functioning of the meeting.

Addressing technological requirements

The parties should consider in advance which platform they will be using for conducting the virtual proceedings. They should ensure that they are equipped with all the devices that will be required. Further, they can stipulate additional equipment such as 360 degree rotating cameras to ensure that no other person is present. This way they can ascertain that no one is behind the camera to guide the parties during the examination. They can also stipulate audio and video devices that need to be used by the parties for the proper conduct of proceedings.

Security measures

Since privacy is a major concern for most of the parties, while addressing technical requirements, they should ensure that the platform offers security measures so that everything is kept confidential. Active network monitoring or encryption can be used if parties want additional security measures. Moreover, the documents can be password-protected and passwords should be revealed immediately before the hearing to maintain security.

Testimonial issues

Since the credibility of a witness is significant, parties can agree on ways to ensure that the credibility of such evidence is not shaken. While a witness is testifying, then such witness can be instructed to be alone in the room so that it is ensured that no one is advising them behind the camera or they are not referring to any document.

Other administrative considerations

Lastly, some small difficulties can be dealt with by parties discussing these problems in advance. Since the time zones of parties are different, they can decide the time which will be suitable for the parties. Additionally, in some cases, parties may undertake special equipment to ensure privacy. So, in such a case, they can decide how costs will be split between the parties to avoid disputes at a later point in time.

Conclusion

To answer the question, yes, virtual hearings did affect the nature and course of judgments in international arbitration. Different challenges were faced by people in terms of access to technology, the testimony of witnesses and their credibility, privacy concerns, linguistic barriers and manipulation during virtual hearings. Yet, possible solutions have been found and can be found further by the parties and institutions to ensure smooth functioning. Parties can consider drafting an agreement to stipulate conditions for conducting the meeting. Even arbitrators can lend their support to ensure fair and equitable treatment to the parties. Lastly, the advantages that virtual hearings offer cannot be ignored and more ways can be devised to ensure better conduct of proceedings.

References

https://www.velaw.com/insights/challenges-and-opportunities-of-virtual-hearings-in-international-arbitration/

https://www.legal500.com/guides/hot-topic/virtual-hearings-on-the-merits-of-the-arbitration-a-step-too-far-or-the-only-path-to-follow/

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Why is there a need to have uniform adoption laws in India

By

Sneha Mahawar

-

August 25, 2021

0

This article is written by Sahaja, from NALSAR University of Law, Hyderabad. This article highlights the need for a uniform code for adoption in India.

Table of Contents

Background

In ancient India, the adoption ceremony (dattahoma) is the most important witness of the adoption and it was necessary to invite relatives for the validity of the adoption ceremony. According to Smrtikaras, if a person adopts a child, he becomes the authority or successor to the entire property inherited, and the adopted child retains his or her right to the property even if a male is born after his or her adoption.

In India, the Hindu Adoption and Maintenance Act, 1956, is the only personal law that governs adoption. As Indian religions such as Muslims, Christians, Jews, and Parsis lack their own personal legislation governing adoption, they are unable to adopt a child and give him or her their family name. Under the Guardians and Wards Act of 1890, they can only become the child’s guardian.

The law of adoption

Adoption is a legal process in which a person takes someone into care and transfers to him all of the legal rights of a legitimate biological child. In other words, it is a child’s legal allegiance. Adoption has two purposes: one is religious in that it provides an heir for the adopter, and the other is secular in that it provides an heir and allows the adopter’s name to live on. Our secular country has two sets of adoption laws, the first being personal law and the second being the government’s secular law. A child can be adopted and an adult can adopt under Indian law, specifically Hindu personal law. The Hindu personal law system is the only one that allows for legal adoption. Many international human rights accords, such as the 1989 Convention on the Rights of the Child (CRC), clearly emphasise the affirmative need to offer protection and aid to children.

Hindu Adoption and Maintenance Act, 1956

The HAMA governs the legal process of Hindus adopting children, as well as the legal obligations that follow, including the upkeep of children, wives, and in-laws. According to the statute, a Hindu does not just refer to someone who practices Hinduism but also includes Buddhists, Jains, Sikhs, and members of the Arya Samaj. The Hindu Adoption and Maintenance Act applies to everyone living in India who is not a Christian, Muslim, Parsi, or Jew.

To adopt a child, you must be a Hindu and have the financial means to do so. A Hindu male who intends to adopt a kid must comply with Section 7 of the Act, while a Hindu female who wishes to adopt must follow Section 8 of the same. The conditions under Section 7 are: the Hindu must male must have attained majority, must have a living wife, be of sound mind and if he has more than one wife, the consent of all the wives are necessary.

The conditions under Section 8 for a Hindu female are: she must have attained the age of majority, must be of sound mind, and must either be unmarried, a widow, or divorced. A married woman cannot adopt a child.

According to Section 9 of the Hindu Adoption and Maintenance Act, only the child’s parents and guardians can give them up for adoption.

Only a Hindu can adopt a child under Hindu law if he or she follows the essentials laid out in Section 6 of the statute.

A Hindu male or female who wishes to adopt a son must not have a living son, grandson, or even great-grandson at the time of adoption, according to Section 11(i) of the legislation. It makes no difference if the son is biological, adopted, or illegitimate. They should not have a living son already. A person who wishes to adopt a daughter must not have a living daughter or granddaughter from their son at the time of the adoption, according to Section 11(ii).

If a Hindu woman wishes to adopt a male child, she must first meet the standards outlined in Section 8 of the Act and demonstrate that she is capable of doing so. She must also be 21 years old or older than the child she desires to adopt.

Cases

Kumar Sursen v. State of Bihar (2007)– The court ruled in this instance that the Hindu Adoption and Maintenance Act of 1956 only allowed Hindus to adopt Hindus. Therefore, only a Hindu child can be adopted by a Hindu male or female.

In the case of Narinderjit Kaur v. Union of India (1997)– It was held that a divorced woman can adopt, and even if she remarries the adoption will be held valid. Adoption cannot be invalid because of the subsequent marriage of the adoptive mother.

Bhola & Ors v. Ramlal & Ors (1989)– The plaintiff had two spouses, and the validity of his adoption was called into doubt because he did not obtain one of their consent before adopting. According to the Madras High Court, the plaintiff’s wife had fled away, but she couldn’t be ruled dead until she hadn’t been heard from for at least seven years. It was decided that as long as the wives are alive, each wife’s approval is required for a legitimate adoption. Adoption does not require the wife’s approval if she has converted to another religion or forsaken the world.

Guardians and Wards Act, 1890

The Guardians and Wards Act was enacted by the Parliament in 1890 to protect the interests of minors and secure their property. Because the personal laws of some religions do not recognise total adoption, this Act applies to Christians, Muslims, Parsis, and Jews. The only relationship that is established following adoption under this Act is that of guardian and ward. Adoption is not the same as the HAMA in that it does not confer child status on the adopted child. When children reach the age of 21, they cease to ward and take on their own identities. They do not have a right to inherit automatically. Adoptive parents must leave whatever they want to their children in a will, which can be challenged by any blood relative.

The Juvenile Justice (Care & Protection of Children) Act, 2000

All Indian citizens are covered by the Juvenile Justice (Care and Protection of Children) Act, 2000. It allows two children of the same gender to be adopted. It confers parental and child status rather than guardian and ward status. It also gives the adopted child the same rights as a biological child. It is intended for the care, protection, development, and rehabilitation of juveniles in conflict with the law as well as children in need of care and protection. It also serves the purpose of the adjudication and resolution of specific situations relating to them. It establishes a consistent legal foundation for justice across the country, and it applies to children under the age of 18.

Adoption of Children Bill, 1972

The Adoption of Children Bill aimed to create a single, secular adoption law that applies to all inhabitants of the country. The Bill was the product of a long-standing demand by several social welfare organisations and many social workers around the country for the benefit of, and in the interests of, thousands of poor children, whose wellbeing was Bill’s primary concern. The new legislation aimed to bridge the gap between Hindus and non-Hindus. The situation concerning adoption was attempting to be rectified by enacting an explicit secular adoption statute. This Bill was unlike the Hindu adoption law in that it placed a greater emphasis on the child’s well-being than religion.

However, this Bill was later dropped, due to Muslim opposition. A standard adoption law that would apply to all communities, including Muslims was opposed by the Muslims. It is said that Islam does not acknowledge adoption and that a Muslim child adopted by a Hindu will not be treated equally.

The need for uniform adoption law

Although Hindus have long recognised adoption as a legal and customary institution, India does not have a general adoption law that applies consistently to all residents. Many homeless children have been abandoned and mistreated, not only by their natural parents but also by society. Social workers and reformers have been clamouring for such a law for the benefit of many destitute children.

The Guardians and Wards Act, 1890, makes it easier for non-Hindus to adopt. This, however, does not grant the child the same legal status as a child born to the family biologically. Unlike a child adopted under the Hindu Adoption and Maintenance Act of 1956, a child adopted under the Guardians and Wards Act, 1890 cannot become their own child as per law, assume their name, or inherit their property by right. Only a guardian-ward connection is established under this Act. This type of relationship can last until the child reaches the age of 21. The legal guardian-ward relationship ends soon after reaching the age of majority, and the adopted Muslim child becomes a na-mehram (non-blood relative) to the adoptee.

As a result, a kid adopted by a Hindu under the Hindu Adoption and Maintenance Act, 1956, is treated differently than a child adopted by a non-Hindu under the Guardians and Wards Act, 1890.

The Islamic orthodoxy claims to derive relevance from the Quran, however, there is no reference to adoption in the Holy Scripture. Adoption was so common in pre-Islamic Arabia that even Mohammad, the Prophet, adopted Zaid, the son of Haris.

Shabnam Hashmi v. Union of India (2014)– When Shabnam Hashmi went to her first adoption centre in the suburbs of New Delhi, she was told they didn’t have any Muslim children. Shabman Hashmi, who already had a son, desired to complete his family by adopting a girl. In this case, the Muslim Personal Law Board’s opposition to the concept of adoption in Muslims was that it was not permitted. Despite the fact that the ‘Kafala system’ (‘Kafala’ in Islamic law is used to describe a situation similar to adoption but without the severing of family ties, the transference of inheritance rights, or the change of the child’s family name) exists for the benefit of children. A Muslim cannot adopt a child under this system but can become a kafil to the child and care for the child’s upkeep and well-being.

The Supreme Court ruled that the JJ Act is a secular law that applies to everyone, including Muslims, and that it was designed for the welfare of children, allowing anybody to adopt a child. Thus, even if regulated by Muslim Personal Law, a Muslim can adopt a kid.

It was also stated that the freedom to adopt or be adopted is not a fundamental right in today’s society. The reason for this is that there are different religious perspectives and practises on the subject, and the circumstances are not yet favourable enough to make it a fundamental right.

Shortcomings of the JJ Act

For a child in need of care and protection, the JJ Act, 2000 has a special chapter, Chapter IV, under the heading “Rehabilitation and Social Reintegration.” This was to be accomplished in one of three ways: adoption, foster care, sponsorship, or transferring the child to an after-care facility. Section 41 contemplates adoption while emphasising that a child’s immediate family bears the main duty for his care and protection. Alternative ways of rehabilitation, including foster care, sponsorship, and being cared for by an after-care group, are addressed under Sections 42, 43, and 44 of the JJ Act. The JJ Act, on the other hand, did not define the term “adoption,” and it was only via a 2006 modification that the definition was clarified. Despite this, the Supreme Court claimed self-restraint and refused to acknowledge adoption as a basic right under Article 21 of the Indian Constitution.

The Constitutional provisions

The writers of the Indian Constitution included a clause called “Directive Principles of State Policy” that advocates for a uniform civil code. Despite the fact that the terms of this Section are not enforceable by Indian courts, Article 37 declares that the provisions of this Section are vital to the country’s governance, and it is the State’s responsibility to adopt these principles in establishing legislation. “The State shall seek to provide for the inhabitants a uniform civil code across the territory of India,” Article 44 states unequivocally.

“Nothing in this article shall prevent the State from making any specific provision for women and children,” says Article 15(3). In addition to “equality,” the Indian Constitution’s preamble calls for the promotion of “secularism” and “fraternity” to ensure the country’s unity.

India is a country with a wide range of cultures. Hinduism, Islam, Christianity, Sikhism, Buddhism, and Jainism are the six major religions. A unified civil code that treats all Indians equally, regardless of their cultural distinctions, could function as a unifier. Scholars have found that enforcing various personal rules rather than a single law that applies to everyone equally tends to socially and spiritually divide the country.

The lack of a secular law affects not just Indians, but also foreign nationals who visit India with the intention of adopting a child. However, because there is no law in place for such people, they must go through a lengthy process that involves first obtaining guardianship of the child from the courts under the Guardians and Wards Act, 1890, and then ensuring the court that they will legally adopt the child under the laws of their home country within two years of their arrival. All of this may be avoided by enacting legislation that addresses all of these issues, and as a result, the mistreatment of adoptees will decrease.

Muslim personal laws prohibit adoption, and if a child is adopted, he or she will not be entitled to inherit the property as a natural-born child. In contrast, if a child is adopted into a Hindu family, he would be given all of the rights that a biological child would have. The law of adoption is also not recognised by Parsi personal law. In today’s world, when society has changed dramatically, current rules do not satisfy the necessary need. Only a unified law for everybody, regardless of religious views or customary behaviours, can eliminate this disparity in legislation.

Conclusion

In India, a standard civil code for adoption legislation is essential. It does not infringe on the fundamental right to freedom of religion. Furthermore, the state’s fundamental principles of policy require it to promote uniformity to its laws.

Adoption rules for Hindus have vastly improved, as has the status of women in society. It is absurd that Muslims in India are unable to lawfully adopt a kid due to a lack of a universal civil code on adoption. By passing secular legislation, different Indian religions will be able to lawfully adopt a kid. This will also help to lower the number of children who are without a parent.

References

https://poseidon01.ssrn.com/delivery.php?ID=172086089029007066123112099000069000059080034086059056072085072074118096074095111027060049049026019123051111002109078122011078111025007016051093114008085081014123032081012103079004115020080115028096098019085081071088064117101102110073084095001115068&EXT=pdf&INDEX=TRUE

https://ili.ac.in/pdf/paper117.pdf

http://docs.manupatra.in/newsline/articles/Upload/E8EFE493-114B-4E5B-A014-682EB1729301.pdf

https://www.lawctopus.com/academike/uniform-law-of-adoption/

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All you need to know about proofreading contracts

By

Diganth Raj Sehgal

-

August 25, 2021

0

business-contracts-4-things (1) — Image Source: https://rb.gy/msix72

This article is written by Kishita Gupta from Unitedworld School of Law, Karnavati University, Gandhinagar. This article deals with an overview of the concept and importance of proofreading contracts.

Introduction

The introduction of personal computers and word-processing software has provided lawyers with a range of tools that pre-computer practitioners could never have anticipated. As difficult as it may be for young lawyers to believe, you couldn’t “generate” a new document in a matter of seconds by just saving an old document under a different name before, roughly skimming through it. You couldn’t just tap a key to replace every instance of “Jones” with “Smith.” In order to “search” a document for a specific clause, you had to skim the entire thing with your own eyes.

Proofreaders, like all other editors in the publishing industry, require a keen eye and attention to detail. Because proofreading is the final stage of the editorial process, it ensures that a text is polished and ready to be read by the general public.

Proofs are made first from a galley, a long tray carrying a column of type, in current practice, and are hence termed galley proofs; the term is also applied to the first copy generated in photo composition and other kinds of typesetting that do not employ metal type.

Proofreading contracts – meaning and scope

Proofreading contracts is the process of checking it for spelling, grammar, inconsistencies, punctuation issues, formatting flaws, and typos after it has been completed. Both are essential and intertwined elements of the drafting process.

Proofreaders must devote a significant amount of time and effort to their tasks, making it one of the most demanding positions in the writing/editing industry. It all comes down to paying attention to detail and having a good eye for abnormalities.

Help to the freelancer

Freelancers are more vulnerable to defective contracts since they can’t afford legal help and are more likely to feel forced to accept the terms, whatever they are.

A faulty contract, like a vengeful stepmother, may cost you dearly, not only monetarily, but also in terms of squandered time and a ruined reputation. These few conditions are what every freelancer needs to turn a pumpkin of a contract into an attractive, secure vehicle for your project.

Let’s take a look at these crucial freelance contract provisions and why you need them in your life.

Spell Checking

The most innovative and useful tool for proofreading legal documents is a spell checker. The number of times some people forget to run it is equally remarkable! Regardless of the activity, this should be the initial step in the proofreading process. At the same time, even spell-check can make errors, so keep an eye on it. Always be on the lookout for erroneous corrections. You may use the spell checker to catch iterating words, reversal characters, and a variety of other frequent errors.

Double-check – facts, figures, and proper names

Make sure that all of the information in your text is accurate and, of course, reproducible when needed, when proofreading legal documents for correct spelling and usage. All footnotes and cross-references must be uniform in format and point to the correct content. Look for all numbers, especially dates, proper names, and any numbers that come after $, or symbols. In tables and pie charts, double-check that your numbers add up. First, consider whether a name, a date, or a number is necessary; if it isn’t, delete it.

Take care of the headings

Your document’s content may be flawless, but an unclear or misspelled header can immediately undermine your reader’s trust in your overall competency.

Formatting is an important element

Remember to double-check the document’s formatting, punctuation, page numberings, headers, and footers, among other things. They should all be included in your proofreading legal paperwork. Also, examine for misspellings, extended sentences, and paragraphs, and if necessary, consult a dictionary or style guide.

Backward order proofreading

Another technique to identify errors is to read your text backward from the final word on the right to the first word on the left. This will allow you to focus on individual words rather than entire sentences. Proofreaders can focus on the syntax of the manuscript rather than getting distracted by its meaning by fixing the last sentence first. Proofreaders will be able to read more slowly and thoroughly if they check grammar from beginning to end.

Review a hard copy

Take a printout of your entire document and proofread it line by line. Re-reading your work in a different format may assist you in detecting problems that you previously overlooked. Check for commas, apostrophes, unclosed quotes, parentheses, full stops, and other punctuation while doing this task.

Search categorically for problems at a time

For better proofreading legal papers, read over all of your material several times, first with sentence structures, next word choice, spellings, and lastly punctuation.

Trust on grammar check

Grammar check is now included in all word processors. This technology, like spell check, is not without flaws. Give the phrase a second look if your grammar check is identifying a sentence fragment or mismatched conjugation, which is useful for proofreading legal papers.

The job of a proofreader

When your work has errors and typos, it will be assumed that you do not pay attention to detail. This is rapidly followed by an apprehension that there may be further errors. “Errors in citations”, for example, carry greater weight and significance than poor grammar. This is why it’s crucial to proofread.

The goal is to make sure your legal work is clear of any language faults or mistakes, whether they are linked to grammar, punctuation, spelling, or any other part of the language. A misplaced apostrophe, a missing comma, or a comma in the wrong position can all change the meaning of a sentence in a legally binding contract or agreement.

Effective proofreading necessitates a certain mindset. It’s not the same mindset as editing, which necessitates paying attention to the meaning and structure of what’s being stated. True, proofreading necessitates some attention to meaning, so you’ll be able to identify whether “cite” or “site” is the correct word in a given situation. However, proofreading is primarily concerned with mechanics: spelling, punctuation, grammar, defined terminology, citations, and cross-references—all of the small aspects that are most likely to go wrong. Lawyers, who tend to be rapid readers who focus solely on substance, may find it particularly difficult to prove successful.

Proofreading contracts train you for your future

Lawyers understand better than others that the devil is in the details, a single typo in a contract may derail a multimillion-dollar transaction. That’s why lawyers and paralegals are typically natural proofreaders, as they spend so much of their time sifting through reams of paperwork.

The key to successful contract drafting is to commemorate a transaction in clear and comprehensive language. Misunderstandings and conflicts over a contract’s terms, conditions, and parties can result from a contract error. Ambiguous statements having potential alternative interpretations, particularly those that are detrimental to your client, can be a serious mistake in contract law drafting.

Contracts are tailored to individual parties and situations. As a result, contract errors can be difficult to detect. Even so, a contract error can have a negative impact on your client, their business, and future business connections.

Proofreading is vital because it can give our writing more force; without it, our work is more likely to contain errors. Poor sentence construction, typographical errors, misspellings, tense confusion, and grammatical problems can seriously jeopardize our potential and reputation as job seekers, bloggers, writers, or academics.

Because these are the components of scholarly writing that a professional proofreader can assist us with, hiring a trained academic or scientific proofreader can be extremely beneficial, especially if our paper has been rejected due to language and formatting issues. We will no doubt be able to identify why proofreading is so crucial to successful authors, once we have used the services of a professional proofreader.

Once we inculcate the ability of perfectly proofreading our document, we leave no stone unturned for creating a reputation in front of our client. Imagine, our client gets our document with clearly visible errors, what impression would it create in their mind. Therefore, this habit or technique will definitely lead us to a better future.

Things to keep in mind while proofreading contracts

Proofreading a normal document is different from proofreading legal contracts. Here are some of the suggestions that should be kept in mind while proofreading contracts:

You go through the document first, only looking at the section numbers. To ensure that the section and subsection numbers are in order and constant, you only glance at them. Misnumbering of sections has grown less prevalent as most word processing software now includes auto-numbering, although it still happens. Inconsistent use of subsection designators (letters, romanettes, etc.) from one section to the next is a more prevalent form of problem that this phase should detect.
Secondly, go over all of the subheadings. This should reveal any inconsistencies in the way headers are expressed or presented, as well as any issues with hierarchy (such as assigning a major head to a section that should logically be a subsection).
Third, make sure that all of the case citations (if any) are properly checked as per certain citation styles such as Bluebook, OSCOLA, etc.
Fourth, double-check all cross-references for accuracy and consistency (for example, use “Sched.” instead of “Schedule”).
Finally, in a combined proofing/editing effort, read the text itself, ignoring the things verified in the preceding phases.

Staged proofing may appear to be a lot of extra effort at first, but it saves time and generates better outcomes in the long run. Rather than attempting to accomplish everything at once,

You split your labour so that the entire process goes faster and your concentration is committed to fewer variables at any given moment (making sure the cites are proper, keeping an eye on the section numbering, and minding spelling, grammar, and what the text truly says).

Common mistakes in the computer age

Wrong word, correct spelling

When you eventually get around to reading the material, keep an eye out for particular types of typographical problems. Absolute misspellings have become rare, thanks to spell-checking software. The usage of correctly spelt terms that are incorrect in context has grown much more widespread. The most common examples are the usage of “of” where “or”, and vice versa, but there are many others: “respectfully” in lieu of “respectively,” “form” in place of “from,” “rise” in place of “risk,” and so on.

Incomplete edits

An unfinished edit is the second form of blunder that is all too common in the computer era. For example, the drafter decides to replace the phrase “not inconsistent with” with “pursuant to,” but simply deletes the phrase “not inconsistent,” resulting in “pursuant to with.” Once an error like this has been put into a paper, only careful proofreading will catch it.

Use of defined terms

The careful management of defined terminology is one hallmark of well-crafted work. Defined phrases, when used correctly, reduce verbiage while allowing for precision. They can create ambiguities, lead to unexpected constructions and make clients, other counsel, or courts doubt your competence if they’re used carelessly. If you don’t want to define the same phrase twice, utilize a definite term that hasn’t been defined, or come up with a new name for an idea that already has one.

If all of the defined terms and their definitions are listed in one area of the document under review, you can copy or print that portion and use it as your style sheet. You can cross-reference it with instances of defined terms to ensure consistency and that every defined term has a definition provided or cross-referenced in that section.

Conclusion

Before personal computers, generations of editors and proofreaders used the simple approaches that have been mentioned in detail here. Computers have undeniably made our lives as lawyers much easier. However, the sloppy techniques created in the days of typewriters and carbon paper are still useful and should be preserved in your toolbox.

As a result, I would advise, “Try to get into the habit of proofreading anything we write — it’s worth taking a few additional moments to make sure any piece of work we do is the best it can be.”

References

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“Hakuna Matata” : can Disney trademark it

By

Shoronya Banerjee

-

August 25, 2021

0

This article is written by Vikash Dhaka, pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from Lawsikho.com.

Table of Contents

Introduction

“ May the Force be with you.” – Star Wars, 1977. Such iconic movie quotes are still fresh in the memories of our generation despite new films releasing every day. These films are considered to have earned cult status which makes them more prone to infringement in the process of gaining more views. Although these can be protected under intellectual property we need to ensure that cultural misappropriation does not happen which was ignored in the past. With the invention of different technologies, we are now open to different cultures and value systems in different parts of the world through our smartphones. This goes to prove the world is now a ‘Global Village’ and so we need to ensure that misappropriation of a culture of any tribe does not happen. In this article, the author has discussed whether a cultural phrase or quote can be registered under trademark or not by talking about one of the famous children’s movies that made ‘Hakuna Matata’ famous around the world.

Background

The Walt Disney Company, popularly called Disney, is an American company that is an integral part of the media and entertainment industry. Disney is a well-known player in the American animation industry. Disney has many film studios under its arm such as 20th Century Studio, Marvel Studios, Pixar, etc. Apart from film studios, Disney has many television networks such as Disney Channel, Freeform, ESPN, etc. The company has many online streaming platforms for example Disney+, Hotstar, Hulu, etc. Indeed, Disney is at the top of the game in the media and entertainment industry.

The term ‘Hakuna Matata‘ was used in the film ‘The Lion King‘ produced by Disney only in the year 2019 and became one of the highest-grossing films of all time. The film was the remake of the animated film ‘Lion King’ released in 1994 and produced by Disney. In the 1994 animated film ‘Lion King’, the term ‘Hakuna Matata’ was used in one of the songs of the movie and Disney filed for a trademark for the term ‘Hakuna Matata’ and in the year 2003, US Trademark and Patent Office granted the trademark to Disney. The trademark is limited to T-shirts, clothes, hats, etc. The term ‘Hakuna Matata’ means no worries. ‘Hakuna Matata’ is a Swahili language phrase spoken in most parts of Africa. Many were opposing Disney’s monopoly over the term ‘Hakuna Matata’. One such personality is Shelton Mpala, a Zimbabwe activist who filed a petition against Disney over its trademark registration on ‘Hakuna Matata’. Around two lakh people signed the online petition.

What can be trademarked?

One can register a symbol, sign, logo or name or phrase, etc as a trademark. Trademark helps the general public to distinguish the goods and services in the market from different competitors. There are many examples such as Reynolds, McDonald’s, etc. that are registered as a trademark.

Many phrases or terms can’t be registered as a trademark. For example, we can’t register generic terms, government symbols, immoral, deceptive, etc. as trademarks. To register a trademark, the trademark should be descriptive, generic, and distinct. Descriptive marks help in identifying the characteristics or features of the product. Generic marks are the terms that are common and don’t help in identifying the product. Distinctive marks are the fanciful names that help in identifying the goods and services.

Cultural appropriation and trademark

The inappropriate use of any custom, ideas, words by different cultural people is known as cultural appropriation. In the IP world, many companies use different cultural terms as a trademark which leads to backlash from the public. The big corporations use the traditional names, designs, music for their profit without giving acknowledgment to that culture. Such cultural appropriation is not something very new. In India, there were battles between the American companies and Indian companies for registering the word ‘Basmati’. Similarly, the word khadi and yoga has been registered as trademarks in many countries.

What can we do to avoid such cultural appropriation? The answer lies in the trademark law only. There are different categories of a mark in a trademark. One of them is the Certification mark. Certification marks can act as a tool to forbid cultural appropriation. It acts as a guarantee to the characteristics or features associated with the products in that region. Certification marks can be registered under a trademark without any evidence of secondary meaning. The other relevant category is the collective mark. Collective marks indicate the origin of certain products from a particular association to the general public. It is owned by a member of the association.

Case studies

‘Kimono’ controversy

Kim Kardashian is an American actor and entrepreneur. She engages in the business of clothing and named one of the shapewear brands as ‘Kimono.’ ‘Kimono’ is a traditional Japanese attire worn by women. ‘Kimono’ is considered as national attire in Japan. Many petitions were filed to remove the brand name as ‘Kimono’. The sentiments of Japanese people were hurt because of the brand name ‘Kimono’. Several renowned personalities resisted one of them being Daisaku Kadokawa who was the mayor of Kyoto who showed his concern and sent a letter to Kim Kardashian. He talks at length about the importance of the Kimono in Japanese culture. More than one lakh people signed the online petition to change the brand name and stressed the impact of cultural disrespect by the brand. Later, the brand name was changed to ‘Skims.’ Kim Kardashian suffered millions in losses because of a simple change in the name of the brand. There were thousands of articles on the brand controversy which overall affected the reputation and brand of Kim Kardashian.

‘Aloha Poke’ controversy

A restaurant owner in Chicago filed a trademark application for registering the restaurant’s name as ‘Aloha Poke.’ The term ‘Aloha Poke’ is used by the native Hawaiians. The Restaurant owner succeeded in registering the term ‘Aloha Poke’ as the name of the restaurant. He further sent notices to the contemporary competitors for not using the term ‘Aloha Poke’ as their restaurant’s name. Several Hawaiian companies expressed their concern over the cultural appropriation of their native language. Many online petitions were filed against the use of cultural words as a brand name. Upon receiving such backlashes, the owner of the restaurant made a statement that he never intended to trademark the Hawaiian words individually but the two words ‘Aloha Poke’ in pairs are protected under the trademark. They intended to protect the brand name of the restaurant. There was no action against the people who received the legal notice. However, there exists strong friction against the use of such cultural words for their monetary benefits. Strong personalities such as Mark Kaniela oppose the idea of registering such cultural words. He is a very popular American politician and a member of the Hawaii House of representatives. He further cited that the owner of the restaurant threatens the Hawaiian people for using the terms ‘Aloha’ and ‘Aloha Poke’ in respect to the restaurant. Such restrictions will affect the business of the Hawaiian people and a threat to their culture and language heritage. He filed a petition restricting the owner of the restaurant to use the ‘Aloha Poke’, ‘Aloha’, and ‘Poke’ in any manner.

When a person approaches USPTO (the United States Patent and Trademark Office) for registering a trademark, the officials in the USPTO run through the database and check whether the applicant’s trademark is registered or not. If not registered, USPTO grants the trademark to the applicant.

The word ‘Aloha’ is one of the most used words by the Hawaiians. It means hello, love and goodbye. The word ‘Poke’ refers to a very famous Hawaiian dish and often people connect the dish with pizza. The owner of the restaurant sent a legal notice to restrict the use of ‘Poke’ in Hawaiian restaurants. The mere registration of the word ‘Aloha Poke’ may not prohibit others to use the same. The native Hawaiians have been using the words for centuries and can challenge the registration based on the concept of prior use.

Conclusion and suggestions

It has become a practice that many big corporations and companies started to use the cultural words of various languages as their brand name. Companies tend to choose something unique and catchy but that leads them into many troubles. One such example is Disney’s trademark on ‘Hakuna Matata’. ‘Hakuna Matata’ is a word used and spoken by the Swahili people. Disney got the word registered and claimed the trademark. The US Patent and Trademark Office granted the trademark on the word ‘Hakuna Matata’. The USPTO doesn’t bother about cultural appropriation; rather, it looks into the database to find whether the applicant’s word is already registered or not. Indeed, there is a flaw in the system. However, If we look at some similar controversy, Kim Kardashian’s shape-wear brand changed its name from ‘Kimono’ to ‘Skims’ upon receiving backlash from Japanese people. She suffered a huge loss and damaged the reputation of her brand. Similarly, in the ‘Aloha Poke’ case, the Hawaiian people had filed many petitions for registering the trademark on their cultural words.

So far, no laws are prohibiting cultural appropriation by these corporations and companies. However, people can combat such cultural appropriation using the trademark law. There are different categories of a mark under trademarks such as certification mark or collective mark. These marks can act as a tool to prohibit such cultural appropriations. Even some can take defense under the ‘prior use’ principle.

References

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The formation of the National Tribunals Commission in light of the case of R Subramanian v. Union of India

By

Diganth Raj Sehgal

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August 25, 2021

0

supreme-court-of-india-02 — Image source - https://bit.ly/2VnRC41

This article is written by Pranav Sethi, from SVKM NMIMS School of law, Navi Mumbai. This article analyses the formation of the National tribunals Commission in light of the case of R Subramanian vs UOI.

Table of Contents

Introduction

“I believe that an independent judiciary is the crown jewel of our constitutional republic.” -Brett Kavanaugh

The tribunals were established to relieve the Courts of their burden by allowing practitioners and experts in the tribunal’s jurisdiction to deliver quick decisions. The Apex court instructed the Centre to establish the National tribunals Commission (NTC), which will serve as an autonomous body to oversee recruitment and the operational and infrastructure purposes of tribunals throughout the country.

The Supreme Court emphasized the importance of ensuring that tribunals carry out their judicial duties without intervention from the executive branch, either knowingly or unknowingly. Until the National tribunal Commission is formed, a separate division of the Ministry of Finance will be formed to fulfil the interest of tribunals. A bench led by Justice L Nageswara Rao said that establishing such a commission would improve the reputation of tribunals and instil trust in the minds of litigants, but that relying on the parent department for all of their needs would not “extricate them from the executive’s control.”

The three-judge bench comprising Justices L. Nageswara Rao, Hemant Gupta, and S. Ravindra Bhat had released expansive instructions about recruitment, selection, term, conditions of service, and other matters relating to 19 different tribunals, thus requiring certain changes to the tribunal, Appellate tribunal, and other Authorities [Qualification, Experience, and Other Requirements of Operation of Members] Rules, 2020.

Explainer directions by the court

The Court had seen a troubling pattern of the Government failing to follow the Court’s orders. To ensure that the tribunals do not become another agency under the executive’s power, multiple directives have been given, but they have gone unanswered and thus, forcing the petitioner to return to the regular court. It was probably time to put a stop to this activity. Highlighting that the tribunals are not immune from Executive command and are not considered as autonomous judicial bodies, the Court stated that it is essential to ensure that the tribunals carry out their judicial duties without any direct or indirect intervention from the Executive.

As a matter, “An autonomous body led by a retired Supreme Court judge monitoring the selection and operation of the tribunals, as well as being in charge of any disciplinary hearings against the members, will not only enhance the operations of the tribunals but also be consistent with judicial independence principles. ‘To reduce the tribunals’ reliance on their parent agencies for forwarding their specifications and to ensure timely bureaucratic decision making, as an interim measure, it was directed that a separate “tribunals wing” be formed in the Ministry of Finance, Government of India, to cater to the requirements of the tribunals until the National tribunal commission is formed.

The doctrine of separation of powers

The Supreme Court, through its appellate jurisdiction under Article 136, supervises the operation of administrative bodies and has the authority to impose discipline on these bodies to advance Administrative Law and promote the Rule of Law in India. The Supreme Court determined that the tribunals cannot serve as substitutes for the High Courts. A person serving on the tribunal cannot claim parity or privileges equal to those enjoyed by High Court judges.

Thus, the tribunals’ judicial functions can be differentiated from primarily administrative or executive operations in light of the doctrine of “separation of powers,” which is a fundamental principle of the Constitution.

Constitution of a Selection Committee

When it was managed to bring to the Court’s attention that the constitution of the Hiring Committees under the 2020 Rules does not confirm judicial dominance, the Court issued the following directives:

As Chairperson of the Selection Committee, the Chief Justice of India or his nominee will be given a casting vote.
Generally, the tribunal’s Chairperson would be a retired Supreme Court Judge or the Chief Justice of a High Court. That being said, in some tribunals, the Chairperson may not have been a judicial member. In such tribunals, the Selection Committee should include a retired Supreme Court Judge or a retired Chief Justice of a High Court appointed by the Chief Justice of India in the position of the tribunal’s Chairperson.
The 2020 Regulations would be revised to state that whenever the re-appointment of the Chairman, Chairperson, or President of a tribunal is regarded by the Selection Committee, the Chairman, Chairperson, or President of the tribunal will be substituted by a former Judge of the Supreme Court or a retired Chief Justice of a High Court appointed by the Chief Justice of India.
The Secretary to the promoting or parent unit must serve as Member-Secretary/Convener to the Search-cum-Selection Committee and shall function without voting in the Search-cum-Selection Committee.
Rule 4(2) of the Rules, which states that the Selection Committee shall suggest a board of two or three people from whom the Government shall make appointments on the comments of Chairperson or members of the tribunal, shall be modified and read as uplifting the Search-cum-Selection Committee to suggest the name of only one person. Taking into consideration the necessity of the findings of the qualified applicants from the Intelligence Bureau, the Search-cum-Selection Committee may select another suitable person and place them on the waitlist.

Department timeframe

Currently, Rule 9(1) allows a Chairman, Chairperson, or President of the tribunal to serve until the age of 70, following the Parliamentary directive in Section 184 of the Finance Act. However, Rule 9(2) states that the Vice-Chairman and other members must serve till they reach the age of 65.

Recognizing Amicus Curiae’s proposal that the Vice-Chairman, Vice-Chairperson, or Vice-President or members for nearly all tribunals will have only a brief tenure of fewer than three years under the 2020 Regulations if the upper limit period is 65 years, the Court ordered the Government to revise Rule 9(1) of the 2020 Rules to make the period of Chairman, Chairperson, or President five years or till they attain 70 years, whichever is earlier and other members dealt with in Rule 9(2) as five years or till they attain 67 years, whichever is earlier.

Section 184 of the Finance Act of 2017 offers for the nomination of Chairpersons, Vice-Chairpersons, and members of tribunals after their terms expire. The 2020 Rules do not refer to reappointment. As a result, individuals selected to the tribunals at an early age shall be reappointed with at least one term, with preference given to the services offered by people.

Judicial membership for advocacy

Even though the Attorney General proposed that an advocate with 25 years of expertise be perceived for appointment as a judicial member, the Amicus Curiae proposed that it should be 15 years.

Taking both recommendations into account, the Court stated, “As the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, we are of the opinion that the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a tribunal.”

Even so, it is decided to leave to the Selection Panel to recognize the Advocates’ knowledge at the bar and specialize in the pertinent branch of the law when assessing them for referral as judicial members.

Qualification requirements for the members of the Indian Legal Service

The Court determined that members of the Indian Legal Service should be regarded for nomination as judicial members if they meet the other requirements that advocates must meet. Furthermore, the Selection Committee considered the type of work completed by participants of the Indian Legal Service and their specialization in the pertinent areas of law when considering one’s nomination.

The significance of nominating proficient and millennial lawyers as well as advanced members

Tribunals perform judicial functions, and the judicial power of civil courts is generally excluded in issues vested to them. As a result, wherever lawful knowledge in a specific area is involved, it is natural that people who advocate knowledge with the same or a similar area will offer the “catchment” for membership evaluation. This is also true for the choice of technical members who would have expert knowledge in the scientifically valid fields, as well as a regulation background, as needed. Younger advocates, around 45 years old, present additional viewpoints. Many states immediately appoint lawyers as District Judges after only seven years of practice.

As rightly the court stated, “If the justice delivery system by tribunals is to be independent and vibrant, absorbing technological changes and rapid advances, it is essential that those practitioners with a certain vitality, energy, and enthusiasm are inducted.”Even with a five-year degree, 25 years of practice would imply that the minimum age for appointment would be 48 years: it could be higher, given the time required to handle suggestions. As a result, a tenure without guaranteed re-engagements would be unfeasible.”A younger lawyer, who may not be suitable to continue after one tenure (or is reluctant to continue), can still return, to the bar, than an older one, who may not be able to piece her life together again.”

R Subramanian v. UOI

Facts of the case

In this case, the petitioner, a practising advocate, has filed a motion pursuing multiple reliefs regarding the workings of the NCLT as well as the constitution/appointment of various benches of the NCLT. According to the petitioner, NCLT benches are to be formed and established in all states, but there are currently only 19 judicial members and 22 technical members. Given the high volume of cases, appointments to the NCLT and NCLAT are significantly delayed.

The learned counsel appearing for the Respondents objects that the concerns expressed in this petition are entirely covered by the Supreme Court’s decision in the case of Madras Bar Association vs Union of India & Anr. While the said Commission is being established, the Court has also allowed for the creation of a completely separate tribunals wing within the Ministry of Finance as an interim measure. The learned counsel contends that because the aforementioned directions have already been issued in respect of all tribunals, with particular reference to the NCLT and NCLAT, the judgment addresses the issues raised by the petitioner. A review of the reliefs reveal that the petitioner requests that a direction be granted to the Ministry of Corporate Affairs and the NCLT to evaluate the need for the number of NCLT tribunals and for this Court to develop a rolling recruitment plan for the NCLT.

Issues

Whether the reliefs raised by the petitioner are on legitimate grounds that they have covered in the case of Madras Bar Association vs Union of India & Anr.?
What are the reliefs that are being pursued for & on what grounds they are needed?

Judgment

The Court held that they had read the Supreme Court’s decision in Madras Bar Association. Certainly, the judgment addresses the problem brought up by the petitioner, such as appointments to positions. tribunals, investigations into members, and tracking of the operation and the filling vacancies in tribunals, as well as workload assessment as well as providing all necessary infrastructure.

The learned Amicus Curiae proposed establishing a National tribunals Commission comprised of retired Supreme Court Judges, Chief Justices of the High Courts, and Executive Members, with a full-time Secretary performing the following functions:

a) Selection of candidates.

b) Re-appointment of candidates.

c) Conducting of inquiry against members.

d) Sanction leave of members wherever necessary.

e) Monitor the functioning of the tribunals, in particular, the arrears and disposal of cases and filling up of vacancies and ensuring adequate infrastructure.

f) Ensure adequate infrastructure and IT support.

Directions have been authorized for the establishment of the National tribunals Commission and, during the interim period, for the establishment of a separate tribunals wing within the Ministry of Finance. As a result, the remedy decided to seek herein is filled by the previously mentioned judgment.

Conclusion

The tribunalisation of justice was introduced to speed up the adjudication process, and they have been productive in their goal. The tribunals have carved out a distinct position in the Indian landscape by adjudicating several interesting issues. The independence of these tribunals was described as a fundamental feature of the Indian Constitution in the case of Rojer Mathew’s decision. This fundamental feature must be encapsulated and maintained in reality through the creation of the NTC, which will be solely responsible for choosing, monitoring, and removing appointees to make sure that the tribunals are occupied with men of honesty and great behaviour.

References

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