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The fuss about India’s GI application on Basmati Rice : hurdles and opposition 

By
Diva Rai
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0
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This article is written by Srishti Sinha, a student at the Institute of Law, Nirma University. This article is concerned with the GI application of Basmati Rice from India’s side to the European Union. Also, it mentions various hurdles and opposition claims.

Introduction

From Biryani to Pulao, Pakistan and India’s shared culinary landscape is defined by Basmati, distinctive long-grain rice at the center of the latest tussle between the bitter rivals. But what is the cause behind this tussle? India applied to the European Union’s Council on Quality Schemes for Agricultural and Foodstuffs for a unique Geographical Indications designation for Indian-origin Basmati Rice. 

Basmati cultivation is governed by geography in India. The states and union territories of Jammu and Kashmir, Himachal Pradesh, Punjab, Haryana, Chandigarh, Delhi, Uttarakhand, and Uttar Pradesh make up the ‘Basmati growing region.’ This region’s chilly climate is ideal for Basmati production. 

So, what role does Pakistan play in all of this? The Kalar bowl, a piece of territory in the interfluve between the Ravi and the Chenab rivers that includes, Narowal, Sialkot, Gujranwala, Hafizabad, and Sheikhupura in Punjab province, appears to have a Basmati belt as well. It turns out that India controls 65% of the worldwide Basmati market, while Pakistan controls the remaining 35%.

In reality, since the EU decreased the allowable amounts of pesticides on imported agricultural goods in 2018, Pakistan’s exports to the EU have nearly doubled in three years, while India has regularly failed the tests. Basmati is a product that both India and Pakistan export. According to the Union Ministry of Commerce and Industry, India produced 7.5 million tonnes of basmati in 2019-20, 61% of which was exported, earning the country Rs 31,025 crore. According to the Pakistan Bureau of Statistics, Pakistan exported 0.89 million tonnes of basmati in 2019-20. Even though Pakistan is a large producer of Basmati Rice, if India receives the GI label, it would essentially be shut out of the European market for Basmati Rice. This is the major reason for the tussle between the two countries.

Geographical Indications : An overview

A geographical indication (GI) is a label applied to items that have a specific geographical origin and have attributes or a reputation related to that origin. A sign must identify a product as coming from a certain location to serve as a GI. Furthermore, the product’s features, attributes, or reputation should be primarily owing to its origin. There is an obvious relationship between the product and its original site of production since the characteristics are dependent on the geographical location of production.

Article 22 of the TRIPS Agreements defines Geographical Indication as “indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristics of the good is essentially attributable to its geographical origin“.

In 1999, India implemented sui-generis law for the protection of geographical indications after becoming a member of the TRIPS Agreement. The Geographical Indications of Goods (Registration and Protection) Act of 1999 has three main objectives, namely: 

  • By enacting particular legislation in the nation that governs the geographical indication of goods and sufficiently protects the interests of producers of such items.
  • To prevent unauthorized individuals from abusing geographical indications and deception of customers.
  • To promote items carrying Indian Geographical Indications in the overseas market.

A registered Geographical Indication prohibits a third party from using the Geographical Indication in any way in the designations or presentations of products that suggest that the items are from a certain geographical location. For example, Darjeeling Tea (Word) is a recognized Geographical Indication under Geographical Indication Registration No. 1 or Geographical Indication Registration No. 2. As a result, the Tea Board, Registered Proprietor of Darjeeling Tea, has the authority to prohibit any third party from using the term “Darjeeling” for tea that does not originate in their gardens or is not produced under the standards outlined in the registered Geographical Indication’s code of practice. Apart from Darjeeling tea; Kandhamal Haldi (Chennai), Gobindobhog Rice (West Bengal), Pochampally Ikat (Andhra Pradesh) and Banaganapalle Mangoes (Andhra Pradesh) are some of the recent GI tagged items from India. 

Protection of Geographical Indications

Sui generis systems (i.e., unique protection regimes), collective or certification marks, and techniques concentrating on business activities, such as administrative product approval schemes, are the three major approaches to preserve a geographical indicator. There are variations in these methods when it comes to crucial issues like the prerequisites for protection and the extent of protection. Sui generis systems and collective or certification mark systems, on the other hand, share certain common aspects, such as the fact that they provide rights for collective use by those who conform with established criteria. 

In general, geographical indications are protected in different nations and regional systems using many techniques, with many of the approaches mentioned above being used in combination. These methods were created in line with various legal traditions and within the context of unique historical and economic circumstances.

Importance of Basmati Rice in India and Pakistan economy

Agriculture, manufacturing, and commerce are the three primary sectors that support the country’s economy. Rice is important in the country’s agricultural economy and plays a significant part in the agro-based economy. Let us look over the importance of Basmati Rice in India’s as well as Pakistan’s economy.

Indian economy

The Indian economy’s most important industry is agriculture. India’s agriculture employs half of the country’s workers. India is the world’s largest rice grower. It is regarded as the most fundamental food crop, and it thrives in hot and humid climates. Rice, a key food grain, is a significant producer and exporter in India. The growth of rice production is prioritized in terms of economic development. In India, several rice suppliers play an important part in the country’s economic growth. 

Rice consumption is the most important commodity and has a significant impact on poverty levels. As a result, the impoverished can meet their necessities. Also, investing in necessities such as food, might be advantageous to the Indian economy.

Price fluctuations in rice can influence people’s purchasing decisions and, as a result, on poverty levels. The timing of the rice harvest has a significant impact on price fluctuations. Rice prices will fall if the supply of grain increases. In other words, the amount of income influences the demand for rice in the form of a function of pricing.

Rice farming places Basmati in a unique position. It’s a fragrant rice type with long, thin grains. Basmati Rice is mostly cultivated in India for export. This product’s export generates a significant quantity of revenue. India is the world’s leading producer and exporter of Basmati Rice. It produces 75 percent of the world’s Basmati Rice. India exported 4.4 million tonnes of Basmati Rice worth USD 4.7 billion in the fiscal year 2018-19. Comparatively, even if we sell 7.5 million tonnes of non-Basmati Rice, which is nearly double the quantity of Basmati Rice sold, our country generates USD 3 billion. As a result, the significance of Basmati Rice production in our country and on our country’s economy is very important.

Pakistan economy

Agriculture, manufacturing, and commerce are the three primary sectors that support the country’s economy. Cotton, wheat, rice, and maize are Pakistan’s main cash crops. Rice is the country’s second most significant commodity, bringing economic success to growers and farmers while also earning billions of rupees through export. Rice was important in the country’s agricultural economy and played a significant part in the agro-based economy. Pakistan is the 11th largest producer and exporter of rice in the world. In Pakistan, rice contributed 3.2 percent of agricultural value-added and 0.7 percent of GDP. In Pakistan, two varieties of rice were being grown. Basmati Rice was well-known in the country for its exceptional cooking quality and strong national and worldwide commercial potential. During the 2014-15 growing season, rice was planted on 2.847 million hectares, up 3.1 percent from the previous year. Rice output was estimated at 6.9 million tonnes during the same period, up 1.5 percent from the previous year’s 6.7 million tonnes. Rice exports generated USD 1.848 billion in foreign exchange during the same time. The assessment noted the importance of Basmati Rice as well as its export implications.

The battle between India and Pakistan

The fragrant, long-grain rice known as ‘Basmati’ has recently been another point of contention between India and Pakistan. It isn’t the first time a European GI registration for Basmati has made headlines, nor is it the first time India and Pakistan have clashed over a GI. The GI registration of Pashmina has previously been a controversial subject. At the time, India had intended to register Pashmina as a GI in India, and a Pakistani organization had objected, claiming that Pashmina was also made in Pakistan. In the end, India got the GI tag for Pashmina. 

In 2008, India and Pakistan discussed submitting a combined application to the EU to register Basmati as a GI. However, due to growing tensions between the two countries following the 26/11 Mumbai attacks, it was unable to be realized. Coincidentally, the Agricultural and Processed Food Products Export Development Authority (hereafter ‘APEDA’) applied for Basmati’s domestic GI registration on the same day, and the GI was granted in its favor in 2016.

Later in July 2018, India applied to the European Commission for Basmati to be designated as a Protected Geographical Indicator (PGI). This registration application was published in the Official Journal of European Union on September 11th, 2020, and it can be challenged within three months after publication, with a reasoned statement of opposition due within two months following the notice. India’s GI registration in the EU will impact Pakistani exporters, and hence, Pakistan intends to fight the application vigorously.

India’s application to European Commission

In its application, India stated that “Basmati is produced in a particular geographical region of the Indian-subcontinent”. This demonstrates that India has not claimed to be the only country that grows Basmati or the only country qualified for a Basmati Geographical Indication. However, granting this proposal in India’s favor might result in it being granted sole GI status. Also, in the application, India has complied satisfactorily with the requirements for product specification provided under Article 7(1) of the Regulation (EU) No 1151/2012 of The European Parliament and of the Council (hereinafter ‘the Regulation’). 

In December 2019, the Indian claim to the EU was contested, with Pakistan’s primary point being that Basmati Rice was a joint product of India and Pakistan. However, International laws say that before registering a product on the worldwide market, it must first be protected by the country’s geographical indication regulations. So, in March 2020, Pakistan passed the Geographical Indications (Registration and Protection) Act, 2020, which allows it to contest India’s claim for exclusive rights to Basmati Rice. The significance of the GI tag for its Basmati would strengthen the case of Pakistan in the EU. 

Possible grounds of opposition by Pakistan

Pakistan may use several arguments in objection to India’s application. The method for filing an objection is outlined in Article 51 of the Regulation, whereas the reasons for filing an objection are outlined in Article 10. Four reasons for objection are listed in Article 10(1):

  • First, Article 10(1)(a) requires the opposing party to prove that the fundamental eligibility requirements (under Art 5) and product specification requirements (under Art 7(1)) have not been satisfied — yet India appears to have met all of the requirements for PGI status on the surface. 
  • Second, Article 10(1)(b) examines whether the proposed name is incompatible with the names of plant types and animal breeds, as well as homonyms and trademarks. Basmati does not clash with the names of any of the above-mentioned groups, thus this basis cannot be used.
  • Third, according to Article 10(1)(c), the opposing party must show that the registration will jeopardize the existence of items that have been legitimately on the market for at least five years before the publication date. Pakistan may prove this claim since, under a 2004 European Council resolution relating to a Pakistan-EU agreement, duty-free imports of specific kinds of Basmati from Pakistan are permitted into the EU.
  • Fourth, Article 10(1)(d) addresses the supply of evidence that can be used to determine if Basmati is a generic word. APEDA’s aggressive pursuit of attempted registrations across the world, as well as its involvement in preventing dilution of the Basmati GI, might be a significant case in India’s favor. But Pakistan can claim that APEDA Act has power under Section 10A of the Act to protect the Basmati’s GI status “in India and outside India”.

These grounds of opposition by Pakistan can act as hurdles in the GI application of India on Basmati Rice.

Conclusion

From the above discussions, we can conclude that if Pakistan’s resistance fails, India stands to benefit greatly as the EU’s sole GI holder for Basmati Rice. There are several advantages to having a PGI designation, and Article 13 of the Regulation outlines the “protection” that a registered GI holder in the EU has. It stipulates that a PGI ‘shall not become generic’ and even prohibits the use of the term ‘Basmati’ in conjunction with phrases like “style,” “type,” “method,” “as produced in,” “imitation,” or similar. This implies that if India receives GI protection, Pakistan will be unable to sell its Basmati in the EU, even if it is labeled as “Pakistan Basmati” or “Basmati made in Pakistan.” 

References

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The judiciary system in relation with corporate manslaughter : throwing light to its role

By
Bushra Tungekar
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0
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This article is written by Ms. Aporva Shekhar from KIIT School of law. This article is an analysis of criminal jurisprudence with reference to corporate liability in India.

Introduction

The corporate veil is used by many criminals to escape liability with the victim left bereft of any remedy. Despite the courts giving recognition to the fact that companies can possess mens rea, there is a lack of adequate legislative framework in this aspect. The doctrine of separate legal identity that is granted to companies by virtue of legal fiction has also made it possible for these artificial persons to commit crimes of corporate manslaughter and homicide. 

Presently the doctrine of lifting the corporate veil only extends to the crimes related to the functional aspects of the country like forgery or any other form of non-compliance. The same concept of the legal fiction that makes companies separate legal entities also gives cognizance to the fact that the will of the company is a representation of the will of the real people governing it and therefore the artificial legal entity can possess mens rea. 

Corporate Manslaughter has taken place in India due to adulterated goods, artificially caused environmental disasters, illegal trials, toxic wastes and many other reasons. Even though there is an absence of an appropriate legal framework like the UK’s Corporate Manslaughter and Homicide Act, the Indian judiciary has played an important role in interpreting the enshrined rules and principles to establish liability in corporate manslaughter cases. 

Corporate manslaughter : an insight 

The Bhopal Gas Tragedy was a direct result of corporate inadequacy and apathy which resulted in great loss of life with effects that prevailed decades after the tragedy. But this tragedy gave rise to judicial activism and introduced the concept of Public Interest Litigation which significantly altered the role of the judiciary from its primary function. 

Several statutes enacted after the tragedy aimed to make corporations more responsible for their activities and the potential harm that may be caused during the course of their operation. The Public Liability Insurance Act of 1991 sought to make proprietors of an undertaking liable for any harm caused due to pollution. But the issue remains that with the lack of specific legislation establishing liability for corporations, artificial persons can only be punished with fines and not imprisonment.

Criminal liability for corporate crimes

Liability can only be established when there is a violation of a certain law, and in the absence of specific legislation is hard to establish, criminal liability can only be established when criminal law is violated. The Latin maxim, actus non facit reum nisi mens sit rea, governs the principle of criminal liability stating that liability can only be established when an act or omission prohibited by law is done with a guilty mind. 

The autonomy of an individual is the basic principle on which the premise is based which is the mens rea, the mental element and actus reus the physical one. The above-mentioned elements are essential to prove a crime and the only exception to this principle is the doctrine of strict liability, wherein even in the absence of mens rea, or a guilty mind liability can be established. 

Which has been applied in the case of Union Carbide Corporation v. Union of India (1989) to hold the company accountable for the disaster caused due to negligence and malfunction of one of its chemical plants. 

The indispensability of criminal liability for corporates

The activities of Corporations have a significant impact on the environment and society and in the absence of appropriate legislation, it is hard to establish liability in case of an offence. The few reasons for inaction on the part of the legislature to form an appropriate law to establish criminal liability for corporations were

  • Corporate bodies cannot possess mens rea which is essential to establish criminal liability.
  • The only remedy that can be granted against corporations are fines which are civil remedies, since an artificial person cannot be imprisoned, no criminal remedy is available.

Presently, one of the reasons has been eliminated by the judiciary in India through decisions, cementing the principle that corporations can possess mens rea and therefore can be prosecuted. Generally, the illegal acts of employees committed during the course of employment for the furtherance of business may make the corporations criminally liable for the same. 

And in cases of organized crime, the company itself authorizes its employees to partake in illegal activities. Since corporations can have a mind of their own there is no obstacle in criminal law jurisprudence to impose a criminal sanction. However, this approach has not yet been considered by the legislature to make appropriate laws in this regard.

Statutory lacunae

This new facet of criminal jurisprudence that establishes corporate criminal liability has not been incorporated in the Indian statutes yet. The current system only allows civil remedies against the corporation, the provisions of the Indian Companies Act 2013 only makes the officials liable and not the corporation. The Indian Penal Code also does not account for corporations in its provisions and hence the punishments mentioned for violations are not applicable against corporations. 

But several other legislations have provisions to make corporations accountable, like Section 141 of the Negotiable Instruments Act 1881 which has been specifically incorporated to prosecute companies as stated in the case of Balaji Trading Company v. Kejriwal Paper ltd. and Anr. (2005). 

Several other statutes do contain provisions to prosecute companies but irrespective there is an immediate need for reform in primary laws like the Indian Penal Code, 1860 (IPC) and the legislature needs to formulate a specific law to tackle this issue or corporate liability. 

The judicial system and its response regarding corporate manslaughter

The principle of absolute liability and deep pocket theory have made it very easy for corporations to escape liability in India. Even though the Public Liability Insurance 1991, the Environment Protection Act 1986 and other statutes impose certain penalties, but with the lack of a specific statute, the hands of the judiciary are tied to a certain extent. 

The hole created by the lack of legislation makes it extremely easy for corporations and people to hide behind a veil and commit crimes and escape liability very easily with meagre fines. But in the wake of the Bhopal Gas Tragedy, the introduction of Public Interest Litigation and judicial activism filled the gap of specific legislation by taking a more proactive approach to establishing corporate liability. 

Through precedents and interpretation of existing statutes, the judicial system has made an attempt to fill up the statutory lacunae. The judges use their discretion and interpret the penal provisions in order to hold corporations accountable. 

The courts take in a variety of factors when interpreting provisions, which differs from case to case. But since corporate manslaughter is not a statutory offence in India, the judicial system is limited in its response in many ways and judicial activism is the only recourse in the absence of specific legislation. 

The Latin maxim judicis est just dicere, non dare effectively explains the role of the courts, this maxim states that the courts must interpret the laws and not make them. And the Doctrine of Separation of Powers further restricts the courts in possible actions that they could take in response to corporate crime.

Prospective penalties that can be imposed other than fines

Since most of the present laws do not account for artificial personalities when we consider penalties, fines are the only feasible alternative that can be imposed on companies. The Latin maxim lex non cogit ad impossibilia states that the law does not contemplate that which is not possible, and the same is reflected in the restrictive thinking of the reforms introduced by the 41st Law Commission Report which only introduced fines as a penalty to be levied on the corporations. 

Our current legal system lacks the concept of corporate criminal liability and the courts have played an important role in developing the concept of criminal liability for corporations. The legislature must now formulate a legal framework to govern this aspect of criminal liability so that the courts may do their job. Including fines, the legislature may introduce economic and social sanctions as penalties to deter corporations since reformation is not an option for artificial persons.

Economic sanctions

Since the main objective of most companies is profit-making, economic sanctions would be the most appropriate form of deterrent.

  • Winding up –  in cases of continued criminal offences in the field the corporations can be penalized by sanctioning a compulsory wind up
  • Temporary closure- depending on the gravity of the violation the court may order the corporation to cease its operation temporarily till such time that compliance of norms can be ensured.
  • Welfare activities- in cases where the operations of a corporation cause bodily injury and loss of life, the court may mandate that such corporations should undertake the task of rehabilitating the victims.
  • Compensation- payment of adequate compensation to the people affected by the crimes of the corporation should be introduced.
  • Delisting- the court may adopt this penalty to delist corporations that perpetrate crimes.

Social sanctions

Apart from economic aspects the social stature of a company is an equally important asset, the goodwill of a company is an intangible asset that is the driving force for its operations. In case of loss of reputation, it has two-fold consequences for that is individual infamy which results in the reluctance of other entities to engage in future business with the discredited corporation. 

This social penalty can only be imposed by way of making it mandatory for the corporation to publish its crimes which would create a stigmatizing effect. This would be a strong deterrent for corporations to not commit any illegal acts and this would also motivate the human members of the corporations to play an active role in avoiding such illegal acts.

Landmark judgments 

Iridium India Telecom ltd. v. Motorola Incorporated & Ors (2010) 

The Supreme Court reiterated the principles established in the case of Standard Chartered Banks and Ors v. Directorate of Enforcement and Ors (2006), in this case of cheating and criminal conspiracy. The Supreme Court quashed the order of the Bombay High Court stating that a company could not be a perpetrator of conspiracy since it has no mind. The Supreme court asserted in its decision that a company can be prosecuted under the Indian Penal Code since companies and body corporates cannot claim immunity on the grounds that they are incapable of possessing mens rea.

Standard Chartered Banks and Ors v. Directorate of Enforcement and Ors (2006)

The appellant, in this case, was appealing against the order of Bombay High Court, contending that criminal proceedings cannot be initiated against the appellant company for offences under Section 56(1) of the FERA (Foreign Exchange and Regulation Act) for which the prescribed punishment is imprisonment for a term extending to six months and a fine. The main issues identified by the court, in this case, were whether a company or body corporate could be prosecuted for offences that had a mandatory punishment of imprisonment and whether it was possible for the court to exercise its discretion to impose the penalty of fine alone. 

The Court, in its decision, gave importance to the definition of the word ’person’ given under Section 11 of the Indian Penal Code 1860 which includes companies and associations whether incorporated or not. The court also referred to the reports of the 41st and 47th law commission, which clearly stated that in case of companies and body corporates where the punishment of an offence is imprisonment and fine, the courts are competent to use their discretion to only sentence the offender to the payment of fine. 

The Supreme Court stated that companies were capable of constituting the ingredients of a crime like mens rea and actus reus and should be sentenced accordingly.

Balaji Trading Company v. Kejriwal Paper ltd. and Anr. (2005)

The revision case was filed by the complainant u/s 138 of the Negotiable Instruments Act 1881, in this case, the cheques issued by the company in favour of the complainant were dishonoured due to insufficient funds and the accused company failed to pay the amount. The issue in the present case as identified by the court was the maintainability of the complaint against the respondent company. 

The Court stated in its decision that Section 141 of the above-mentioned act was specifically incorporated for the purpose of prosecuting companies when a cheque is issued on their behalf and bounced on presentation of the same. And when such a situation occurs the company becomes liable and the non-prosecution of any of its directors does not bar the company from being prosecuted.

M.V. Javali v. Mahajan Borewell Co. & Ors. (1997)

The main issue as identified by the courts, in this case, was whether a juristic person, incapable of being imprisoned could be prosecuted. The court decided that a company can be prosecuted and can be punished u/s 276B of the Part B State Laws Act 1951, stressing again on the 47th Law Commission report. Which states that in case of a juristic personality where reformative punishments are not applicable, the punishment should be levied upon its respectability by way of stigma, the court opined that the corporation itself needs to be punished so that the offence would be linked to the corporation and not just its employees like the directors or managers.

Conclusion

Criminal Law Jurisprudence recognizes the principle of imposing liability on corporations for offences, the judiciary has also incorporated this principle into its decision-making process but the legislature has fallen behind in adopting the same. And with the lack of statutory law the judiciary is unable to impose penalties other than fines. There is an immediate need for reform in the criminal justice system of India to account for corporate bodies and the legislature must make efforts to establish an adequate legal framework to establish criminal liability for offences committed by corporate bodies.  

References 

 

 

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How to report and stop violence against animals in India

By
Sneha Mahawar
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0
ANIMAL-CRUELTY

This article is written by Bhavyika Jain, a learner of Symbiosis Law School, NOIDA. This article deals with the cruelty that animals face through human hands and that are the steps to report and stop this violence against animals in India.

Introduction

Since the dawn of time, India has been renowned as a land where animals are not only respected but also worshipped. Cows, tigers, lions, elephants, horses, bulls, snakes, and monkeys are revered in Hindu mythology. On the one hand, people show their devotion to deities and the animals linked with them at temples, yet the animals are also subjected to violence in venues such as circuses. 

Humans have been experiencing sadness since the COVID-19 pandemic, which culminated in a three-month lockdown. It’s also important to consider what imprisoned animals in zoos and circuses go through after spending most of their life there.

What is animal abuse

Animal cruelty is illegal in every state, but a law is only as good as its enforcement, which is why animals count on us to protect them by reporting animal abuse. We never know when a mishap will occur or when animals may require immediate assistance, but we do know that we must be prepared. This life-saving work would not be feasible without our help.

The suffering of animals at the hands of humans is heartbreaking, terrible, and furious. It’s even more so when we know that our daily decisions—like what we eat for lunch and what sort of things we buy—could be directly enabling some of this cruelty. But, as difficult as it is to contemplate, we cannot prevent animal suffering by simply turning a blind eye and pretending it does not exist. The types of activities that are done to abuse can be:

  1. The Prevention of Cruelty to Animals Act of 1960 prohibits the sale of pets over the internet in India. They go over the many criteria and conditions that a person or organisation must meet in order to open a pet store and conduct pet animal purchasing and selling. Fraudulent activities through the internet. 
  2. The majority of the pets are being sold illegally on the internet which leads to fraud. They are bred in deplorable conditions and even sold without vaccination, endangering not only the life of the pet but also the purchaser. 
  3. Animals are frequently abused as a result of hoarding behaviour. Hoarders may cause catastrophic neglect to animals by sheltering far more than they can adequately care for. If such things are discovered local animal control authorities can be contacted. Some animal hoarding cases are more difficult to resolve than others.

How are animals subjected to cruelty

Non-Accidental Injury (NAI) refers to a person’s malicious intent when he or she has purposefully caused harm to an animal. Intentional cruelty is typically among the most upsetting, and it should be taken seriously as an indication of significant mental illness. This behaviour is frequently linked to sociopathic behaviour and should be handled seriously. 

Animal abuse in violent households can take different forms and be caused by a variety of factors. Many times, an abusive parent or domestic partner would kill, or threaten to kill, the family pets in order to coerce family members into sexual abuse, to keep silent about previous or ongoing abuse, or simply to psychologically torture the victims in order to exercise their “power.”

Cases of neglect are typical of passive cruelty, in which the criminal is the lack of action rather than the deed itself — but don’t get deceived by the word. Animal neglect can result in excruciating pain and suffering for the animal. Starvation, dehydration, parasite infestations, allowing a collar to grow into an animal’s skin, providing inadequate shelter in inclement weather, and failing to seek veterinary care when an animal needs medical attention are all examples of neglect.

How to report cruelty

Witnessing animal cruelty is traumatic, but comprehending how to act accordingly can save a life and prevent the abuser from harming more victims. According to PETA, nine things can be taken care of if we notice someone abusing an animal:

Maintain your composure and seek veterinarian assistance

Do not wait for anyone else to assist. If veterinary care is not provided to an abused animal in time, it may suffer for a long period of time and can also die as a consequence thereof. If there is a need to leave the animal for a shorter period of time it is advisable to leave them to someone whom we can trust and return with assistance as soon as possible.

To speak up against the violence

If it comes to our notice that a dog has been chained try to become friends with their guardians or to the one who takes care of them and help them to change their attitude towards animals and to take care of them and allow them to live indoors. If any other actions such as a child throwing stones on a dog or a bird are witnessed, stop them and make them understand politely that it is wrong to hurt animals as they too have their lives the same as we have. 

It is important to have full knowledge of the laws

It is necessary to keep oneself acquainted with the laws that are made for the welfare and protection of animals. To familiarise ourselves with the laws we can visit websites such as the Animal Welfare Board of India and the Ministry of Environment, Forest, and Climate Change.

Keep track of what happened

As it is noticed that something is fishy or wrong it is advisable to capture the same through our mobile phones and also to remain cautious to note down or capture the essential things like vehicle plate numbers and also a picture of the abuser. If it is possible then it would be better to gather witnesses and obtain comments from professionals concerning the animal’s physical condition or cause of death, such as veterinarians.

The first information report should be filed with the police immediately

A First Information Report (FIR) should be filed instantly so that police can be notified of the crime. An FIR initiates the criminal justice process and the police will take any action or investigate the matter after an FIR has been filed. In case the FIR is not lodged then with the help of the Superintendent of Police or any higher-ranking person such as Deputy Inspector General of Police or  Inspector General of  Police can be taken. A private complaint can also be filed with the court. 

Other concerned authorities should be notified

In addition to law enforcement, the other concerned authorities can also be notified of the crime. For example, if animal mistreatment is observed at a tourist attraction then the State’s tourism minister should be informed. If the wildlife is in danger then the forest officer through the State’s forest department should be made aware to the dean of the abuse that happened on a college campus. 

Make contact with animal-rights organisations

Additional help is available from local animal welfare organisations, veterinarians, and animal welfare officers.

Don’t give up

Don’t let animal abusers get away with their crimes. To generate publicity and momentum, follow up with local authorities, speak with officials, and consider contacting the media. Legal advice can also be sought and if required the case can be taken to Court. Many lawyers are prepared to assist animals for free if they are requested.

Be obliged to the ones who helped

Wins should be shared with others as well and be thankful to the ones who have assisted in obtaining animal justice and inspired to aid more animals in the future with their constant support and guidance. 

Various guidelines

People for the ethical treatment of animals (PETA)

PETA foundation is headquartered in Mumbai and was formed in the year 2000. It acts under the simple concept that animals are not ours to experiment on, eat, wear, use for entertainment, or otherwise abuse, while simultaneously educating policymakers and the public in general about animal abuse and spreading awareness of all animals’ right to be treated with respect.

PETA India emphasizes operations in the areas where the maximum number of animals have been harmed: laboratories, the food industry, the leather trade, and the entertainment industry. PETA India’s investigations, public education initiatives, research, animal rescues, legislative actions, special events, celebrity involvement, and national media coverage have resulted in several changes in animal protection and the lives of countless animals.

Animal welfare board

The Indian Animal Welfare Board is a statutory advisory organisation headquartered in Chennai, that advises the government on animal welfare regulations and promotes animal welfare throughout the country. The Prevention of Cruelty to Animals Act, Section 4, was adopted in 1962. Under the leadership of Late. Smt. Rukmini Devi Arundale, a well-known humanitarian, the Animal Welfare Board of India was established in 1960.

The Board has been the face of the country’s animal welfare movement for the past 50 years, doing everything from ensuring that animal welfare laws are faithfully obeyed to providing funds to animal welfare organisations and advising the government of India on animal welfare matters. The Board is made up of 28 members, each of whom has a three-year term of office.

Prevention of Cruelty to Animals Act, 1960

This Act was passed in 1960 as the Act provides for:

  1. Provides punishment for causing injury or suffering to animals.
  2. Different types of animals are defined under this Act.
  3. The Act contains certain provisions relating to the establishment of an Animal Welfare Board, powers, its constitution, and functions.
  4. This legislation covers several types of cruelty, exceptions, and the killing of a suffering animal in the event that cruelty has been perpetrated against it in order to save it from additional suffering.
  5. This Act establishes guidelines for animal testing for scientific purposes.
  6. The laws relating to the exhibition of performing animals, as well as offences against performance animals, are codified in this Act.
  7. It establishes a three-month limitation period after which no prosecution will be brought for any of the Act’s violations.

Steps to prevent animal cruelty

Cruelty complaints must be taken seriously

Stringent rules and their efficient execution is necessary to prevent animal cruelty. Banners and posters should be placed in all the important places in order to increase general awareness among the people about the treatment to be given to animals. A police squad dedicated to animal protection should be actively striving to reduce animal-related criminality. Reports of abuse to street animals must be taken seriously as well.

Animals to be treated as a part of society

If general people start treating animals as a part of society the work done by animal rights organizations can accomplish a lot. There are several laws for animal cruelty but rarely do people observe. People that are greedy and money-minded sell animal body parts for personal gain. To protect the lives of animals, which are a vital element of our ecosystem, we must all develop an emotional attitude toward them and attempt to instill it in future generations.

No distinction between stray animals and pets

In India, animals roaming on the streets are a common sight. Pets are given special care and attention by their respective owners, whereas stray animals are neglected by everyone and are frequently mistreated. Humans must recognise that animals are also living creatures who have no right to be mistreated in any way. It is the obligation of parents and educators to teach children that if they cannot help them, they should not harm them. Adults should be taught the same thing. 

Children should be taught to treat animals with respect

Animals are also live animals that should not be treated any differently than people. Every year, numerous animals are victimised by humans and die as a result of their actions. Animals must be protected, and necessary measures must be done. Pet owners should be accountable for their pets’ needs, or they should not adopt one. Any sort of animal cruelty should be reported to the police or other appropriate authorities as soon as possible. Children must be taught to respect animals and to treat them with kindness by their parents. There is also an urgent need to enact severe rules against human cruelty to animals.

Animal protection legislation should be strengthened

Even though animals do not speak the same language as people, they experience the same range of emotions. Every year, millions of animals are murdered for human food and in laboratories for medical research, with the majority of the animals being kept under observation for cosmetics, medicines, and other purposes. People who are accused of animal cruelty should face harsh punishment from the authorities.

Conclusion

Constitutional provisions establishing animal protection obligations led to the formulation of the animal protection legislation at the central and state levels, the most notable of which was the 1960 Prevention of Cruelty to Animals Act. Furthermore, Indian Courts have enacted more and more legal precedents in animal law matters ranging from experimentation to abuse of animals in the entertainment industry.

However, there is still a long way to go to truly lay a solid foundation for Indian Animal Law. The animal protection provisions in the Indian Constitution remain principles, not specific laws that can be enforced in court. The punishment for animal cruelty under the Prevention of Cruelty to Animals Act, 1960 is not sufficient to truly prevent crimes against animals. The law is not strictly enforced, and it contains some clauses that provide leeway to avoid liability. Extensive reforms are needed in this area to provide India with stronger animal protection laws.

References

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Study of the public health policy of India in the 21st century : pre-pandemic and amid pandemic challenges

By
Rachit Garg
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0
Image source - https://bit.ly/2SNerx0

This article has been written by Manya Dudeja, from the University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University. This article reviews the public health policy of India in a time when health has become a luxury and institutions of public health care in a crisis. 

Introduction

“Covid-19 provides a stark reminder of the tremendous social value of robust public health systems and the harrowing consequences when those capabilities are allowed to atrophy.”

– National Academy of Medicine

Society has collectively worn the veil of ignorance on the importance of an efficient public health policy. With the collapse of the healthcare system or rather the shattering of the veil, this ignorance stormed us in the form of the Covid pandemic. Thousands have been rendered helpless in the absence of resources. There is a lack of adequate policies in place to protect the poor and the most deprived. If only the electorate demanded accountability on a public health policy, we would have steered through this chaos better. Hence this is what brings me to write this article, it is high time we understand the public health policy of our country and make amendments to nurture a healthy population. 

This article will be divided into two parts, the first part will be dealing with public health policy in the pre-pandemic era and its unequal access to the population, and the second part will be dealing with the ravages of the pandemic and the collective helplessness of the community due to inadequate health policies. 

Pre-pandemic public health policies in India

The right to a healthy life is a fundamental right granted by Article 21 of the Indian Constitution. Yet, India’s expenditure on public health has been dismally low. India spends only 3.54 percent of its GDP on health expenditure. Public health in India is governed by the National Health Policy, 2017, prepared by the Ministry of Health and Family Welfare. Though health is a subject in the State list and different states have different policies regarding the same, here we will be looking at the Central Health Policy of India. The policy aims to strengthen, prioritize and clarify the role of the government in public health through organizing healthcare services, preventing the spread of diseases, and promoting good health. It will strive to improve access to technology, develop human resources, encourage medical pluralism, build a knowledge base, work on strategies of financial protection and strengthen regulation and health assurance. 

The National Health Policy, 2017: Overview and analysis

“A policy is only as good as its implementation.”

The National Health Policy, 2017 concludes with the above quote. No matter how well a policy document may be drafted, its ultimate success comes from its effective implementation:

  • While the National Health Policy sets for itself various numeric and general goals like increasing the government expenditure on health from the existing 1.15 percent to 2.5 percent of the GDP and increasing the life expectancy at birth from 67.5 to 70 by 2025, bottlenecks like inadequate facilities, lack of infrastructure, coverage, access, and quality will continue to haunt it. 
  • This ambitious policy aims to have the private sector as a partner to fill the gaps and provide quality and affordable healthcare services for all, furthering the agenda of universal health coverage. 
  • The new policy also emphasizes more on prevention of diseases as well as early screening and diagnosis. Prevention will be focused on by using methods like sanitation and discouraging the consumption of tobacco to ensure a healthy population. 
  • The Make in India initiative would be used to boost the production of drugs in India. 
  • The use of health care to provide free services to families is a welcome step too. 
  • The policy also promotes alternate means of medical care, for example, AYUSH.
  • While the policy has brought hope for some, others find it to be inadequate and have called it a low bar for improving public health. 

Criticism

There is criticism based on the policy’s financial feasibility. They are as follows:

  1. Even though the policy proposes to strengthen existing medical colleges and converting district hospitals to new medical colleges to increase the number of healthcare professionals and specialists, the policy does not spell out the source for these funds. 
  2. The policy does not comply with the demands made to include the right to primary healthcare as a fundamental right and talks about the availability of adequate infrastructural facilities as a precondition to making it a right.
  3. The policy does not put forward any provision to deal with the problem of quacks and malicious people acting as self-styled doctors. 

Public health policy of India amid the pandemic

The pandemic has caught India unprepared. Despite the devastation caused by the first wave and the warnings of a second wave, adequate steps were not taken to deal with it. At this point, India had to make a number of decisions regarding its public health policy such as vaccinating a large population and increasing the number of healthcare facilities. The following sub-headings would explain the country’s response to the healthcare crises during the Covid pandemic.

Vision 2035: Public health surveillance in India

Visions 2035 is the white paper released by the NITI Ayog in order to strengthen the public health surveillance system in India. It aims at:

  • Making India’s public health system more responsive as well as more predictive, to strengthen preparedness to take action at the various levels.
  • Enabling a client-feedback mechanism as well as creating a system that is citizen-friendly and protects their privacy and confidentiality.
  • Improving data-sharing system between the Centre and state, for better disease detection, prevention, and control.
  • It also sets a goal for India to become a leader, regionally and globally, to manage such events that constitute a public health emergency at the international level.

The Covid-19 pandemic led the government to revisit the spread of diseases caused due to interaction between humans and animals. The white paper emphasizes the importance of an integrated public health system across primary, secondary, and tertiary levels of care in order to break the chain of transmission and create a resilient surveillance system. In order to conduct this surveillance, individual health cards would be used and thereby making India a global leader in the area of health surveillance.

Collapse of infrastructure

The small number of healthcare workers in India has been overworked and exhausted. In the absence of resources, they are forced to choose between lives and decide who gets to live. Life-saving drugs, oxygen cylinders, and hospital beds became a luxury and people died as a result of this scarcity. While the government created makeshift hospitals and camps, they were soon out of space too. Also, the process to be followed that required referral from the DSO (District Surveillance Officer) and other approvals before a patient could get in a Covid facility was extensive, as a result of this, many died waiting for a bed.

India’s vaccine policy

Mass vaccinating India’s huge population efficiently and timely has been seen as the only solution to tackle the spread of Covid 19. However, amid a shortage of vaccines and fund-deprived state governments, this has come as a huge challenge. Initially, the Government of India approved two vaccines for emergency use, Covishield, and Covaxin. The vaccine was to be administered only to those above the age of 45 and those who had any comorbidities (when someone has more than one health issue at a particular time, each health condition is referred to as comorbidity). The exclusion of the young did not serve well for the country as the virus kept spreading rapidly. In the next phase, the vaccine has been opened up for those above 18 years of age and they are being encouraged to get vaccinated by registering through the CoWIN app.

This again became a fight for limited slots as the vaccine was scarce. Many even questioned the use of an online application which alienated those who did not have access to smartphones or were not digitally literate. However, walk-in vaccination has now been permitted by the Union government. Also, approvals for other vaccines like Sputnik and Pfizer are also on and efforts are being made to start their manufacturing in India. The Centre has allowed vaccine companies to strike deals with states and private hospitals. This move threatens to create regional divides as some states have more paying capacity than others. The Supreme Court of India also expressed its dissatisfaction with the vaccine policy, making states compete with each other to procure vaccines. It also questioned the dual pricing policy where the Centre has already negotiated the prices for the vaccine and has left the states to make their own deals and the reason for leaving pricing of 50 percent of vaccines with the manufacturer. The Court rebuked the government for not having a policy document regarding this and directed it to produce the files. 

Judicial intervention 

During this time of crisis, courts have actively intervened and directed the government to address the grievances of people who are struggling to get resources like oxygen, medicines, vaccines, and beds in hospitals. Recently, the Delhi High Court pulled up the Central Government for playing the “irritating” message during phone calls, asking people to get vaccinated while there are not enough doses available with the government. The court also directed the government to devise strategies and to use audio-visual aid to effectively disseminate Covid related information to the people. 

Lessons learned

Along with the devastation and destruction of life that Covid brought, it also brought some lessons for the public health system of the country and the governments that have been sleeping on the need for an effective and robust public health mechanism. 

It taught us the value of the old and famous but ignored proverb, “health is wealth”. Even though the most important, the health sector of the country has been often neglected with low budgetary expenditure allocation. Investing in health infrastructure has become the need of the hour today. The health system of India was never great, it always had issues, however, privilege hid these issues. It was only the poor who had to face the brunt of inadequate healthcare facilities because of their inability to afford private and expensive healthcare. The pandemic did not discriminate and privilege failed. The system was so overburdened that money could not get one a hospital bed or an essential drug. India needs to massively restructure its developmental plans with respect to health. It is hoped that this painful lesson paves the way for India’s future policy decisions which should be health-centric and efficient, ready to deal with such pandemics and disasters.

Conclusion

Public health is an important arena of governance and requires the government’s attention. Its long neglect has proved to be fatal for the country. The Covid pandemic is a 21st-century health crisis and will not leave the world easy. The government needs to ramp up its health facilities and infrastructure in the post-pandemic era, not only to stay prepared for future health emergencies like this but also to start valuing human life more. The National Health Policy, 2017 laid down goals and ambitions to improve the health conditions and facilities in India, but the policy implementation has been slow and laid back. Because of this India was not ready to face the wrath of the pandemic and fell to its knees. India should learn from this mistake and bring out a health policy that does not just lay down provisions but also focuses on a strategy for effective implementation. Globally, health systems have collapsed and made the world realize the importance of investing in the health sector.

References

  • Gauttam, P.; Patel, N.; Singh, B.; Kaur, J.; Chattu, V.K.; Jakovljevic, M. Public Health Policy of India and COVID-19: Diagnosis and Prognosis of the Combating Response. Sustainability 2021, 13, 3415. https://doi.org/10.3390/ su13063415
  • Narayan K M. Public health challenges for the 21st century: Convergence of demography, economics, environment and biology: Nalanda distinguished lecture. Natl Med J India 2017; 30:219-23

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How can courts play a pivotal role in combating climate change

By
Rachit Garg
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0

This article is written by Pranav Sethi, from SVKM NMIMS School of Law, Navi Mumbai. This article is an exhaustive analysis of the importance of courts to play a pivotal role in combating climate change.

Introduction 

“We are the first generation to feel the effect of climate change and the last generation who can do something about it.” – Barack Obama

For generations, there’s been plenty of uncertainty regarding climate change; yet, the present scientific consensus shows that climate change and the problems that accompany it represent major challenges to the environment, human health, and global welfare. But while biological cycles and human activity both contribute to climate change, the problem confronting humanity is human-induced or anthropogenic climate change, which is driven primarily by the combustion of fossil fuels such as oil, coal, and natural gas, exasperating the greenhouse overall impact in the environment.

The damage done to the environment, ecology, economy, and the societal situation is a result of a variety of reasons that has accelerated global warming, which is developing greater by the year. In the presence of an international enforceable convention to combat climate change, litigation is becoming an alternative option for addressing climate change by driving conservation or seeking damages. Climatic conditions lawsuits have been filed in many jurisdictions both under public and private law causes of action.

This practice has been witnessed both domestically and internationally, including in the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), and Regional Human Rights Organizations. While climate change litigation is a relatively new phenomenon, it has grown at a rapid pace, evolving from a creative lawyering technique to a key force in global government regulation of GHG (greenhouse gases) emissions over the generations. The legal standing of the world has been appropriately described as an atmospheric crisis which necessitates a paradigm shift in the approach to tackling climate change by turning to the judiciary, one of the least politicized branches of government (in most countries).

Defining climate change 

The difference in regional and global temperatures through time is commonly referred to as climate change. It represents variations in the composition of the atmosphere variability or average condition over periods spanning from decades to centuries. The earth’s climate is evolving regularly as part of a natural cycle. The world is increasingly concerned today with the fact that current developments are happening at a faster rate. Natural forces, such as continental rifts, volcanoes, ocean currents, the earth’s tilt, and comets and meteorites, can cause these changes, as well as those induced by human activity or produced by man.

On the legal, commercial, and social levels, climate change poses a broad array of hazards to mankind as a whole, as well as a limited number of opportunities. It also raises issues and challenges for the legal system. These legal issues and difficulties touch all members of society, whether they are policymakers, businesspeople, activists of all kinds, or average citizens.

Global warming

Climate change and global warming are two of the most critical concerns humanity has ever faced, with repercussions on fundamental rights as well. Global warming is principally caused by an increase in carbon dioxide levels in the atmosphere that acts as a blanket, absorbing energy and overheating the globe. Carbon increases and overloads our atmosphere as we burn fossil fuels like coal, oil, and natural gas for energy or cut down and burn forests to construct pastures and plantations. Certain waste management and agricultural practices exacerbate the problem by releasing other potent global warming gases such as methane emitted from landfills and other waste dumps, as well as nitrous oxide emitted from fertilizer applications and leguminous plants such as green beans, during the process of oil drilling, coal mining, and also from leaking gas pipelines.

India and climate change

India is among the nations extremely sensitive to climate change. Agriculture and other climate-sensitive areas employ roughly half of the workforce in India. About 12% of India is prone to flooding, whereas 16% is prone to drought. After China and the United States, India is presently the world’s third greatest contributor to global warming. Between 1990 and 2009, India’s annual emissions rose dramatically, from less than 600 metric tonnes to more than 1700 metric tonnes. Between 2008 and 2035, India’s yearly carbon dioxide emissions are expected to increase by over 2.5 times. In 2007, India’s net emissions of greenhouse gases from land use, deforestation, and forestry totalled 1727.71 million tonnes of CO2.

While its energy sector accounted for. of net carbon dioxide emissions, the industrial, agricultural, and waste sectors accounted for 22%, 17%, 3% of net carbon dioxide emissions, respectively. As a result, climate change and energy are now a centre of concern at the municipal, state, and national levels all around the world. Though India has previously stated that it is not accountable for previous greenhouse gas emissions because it is a developing nation with traditionally low per capita emissions, it has now identified as a prominent playmaker in international negotiations and has established meaning a diverse portfolio of policies, both nationally and then within individual states, to improve the energy effectiveness and develop clean alternative energy sources.

Climate change and the Indian Constitution

The Indian Constitution is one of very several worldwide that includes environmental provisions. The nation’s responsibility to safeguard and preserve the ecosystem is specifically stated in the Directive Principles of State Policy and Fundamental Duties chapters.

Three provisions of the Constitution are primarily related to environmental issues.

To begin with, Article 21 declares that “no one shall be deprived of his life or personal liberty unless following legal procedure.” The Supreme Court recognized various rights indicated by Article 21, including the right to a healthy environment, in Subhash Kumar v. the State of Bihar, (1991) and Virendra Gaur v. the State of Haryana, (1995). The state high courts have taken the Supreme Court’s approach, and almost all now agree that Article 21 has an environmental dimension:

  • Second, Article 48A mandates that “the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”
  • Third, Article 51A specifies that “it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures.”

Even though these last two Sections have previously been unable to execute through writ jurisdiction, courts have turned progressively to them for help in settling climate disputes.

Role of Indian judiciary in developing Indian environmental legislation

Climate change lawsuits in India are still in their early stages, as Indian courts have dealt with several lawsuits including climate change concerns. According to Markell and Ruhl’s concept, there may only be two instances that come under the umbrella of comprehensive climate litigation. Though there have been several cases brought before the courts and the National Green Tribunal that cite climate change, the majority of them are essentially rhetorical references, and only a few have examined the problem completely. The majority of the important elements of Indian environmental regulations are conventional international rules that the Indian judiciary has recognized as part of the Indian environmental laws.

Development that has a long-term plan – beneficial to future generations

Sustainable development can be traced back to the notion of balancing. The goal of sustainable development is to meet people’s specific requirements while without affecting future generations’ capability to use natural resources. The case of Vellore Citizens’ Welfare Forum vs. Union of India, which was decided in 1996, is the most authoritative body of legislation in India on the principles of sustainable development, precautionary principle, and polluter pays. The use of these ideas in India was recognized in this instance.

The Vellore Citizens Welfare Forum launched a Public Interest Litigation under Article 32 of the Indian Constitution in this case to stop pollution from tanneries as well as other factories in Tamil Nadu. The tanneries’ unregulated waste poisoned the river water, which was the primary source of drinking water.

The current case judgment was as follows:

  • The Court determined that the mentioned elements are recognized as part of Customary International Law and so are components of Law in India.
  • The central and state governments are required to adopt the Precautionary Principle and the Polluter Pays Principle under Section 3(3) of the Environment (Protection) Act, 1986.
  • The individual who wishes to disrupt the status quo of the environment has the “Onus of Proof.” The individual must demonstrate that the status quo change is environmentally friendly.
  • The Indian Environmental Law included these three ideas.

Precautionary Principle

This principle states that whenever there is a possibility of substantial or irreparable environmental degradation even though the risk is not scientifically proven, measures to prevent it must be taken. It is founded on the notion that it is preferable to come down on the side of a precaution than to be too cautious. The Assimilative Capacity Idea, created in the Stockholm Declaration of the United Nations Conference on Human Environment in 1972, was replaced by this principle. The Assimilative Capacity Principle assumes that research can provide information to analyze environmental threats and identify environmental protection methods.

However, because scientific assurance may not always be feasible, the precautionary principle was developed in the 11th Principle of the United Nations General Assembly Resolution on the World Charter for Nature, which was adopted in 1982.

Case law about Precautionary Principle – AP Pollution Control Board v. Prof. M V Nayudu

Facts of the case 

In this case, the precautionary concept was thoroughly examined by the Supreme Court. A corporation applied to the Pollution Control Board for authorization to establish an industry for the manufacturing of “BSS Castor Oil Derivatives.”

Even though the corporation got a letter of intent subsequently, the Pollution Control Board did not issue any objection certificate to the company’s establishment on the location provided by it. While denying the applications for permission, the Pollution Control Board claimed, among other things, that the company fell into the red category of contaminating business and that it would not be acceptable to establish such an enterprise in the catchment area of Himayat Sagar, an Andhra Pradesh lake. The company’s challenge against the Pollution Control Board’s judgment was granted by the appealing body.

The Gram Panchayat subsequently lodged a writ case in the form of public interest litigation, appealing the appellate authority’s decision, however, the High Court declined the writ petition. The company’s writ case, on the contrary side, was granted, and the High Court ordered the Pollution Board to issue permission according to any restrictions placed by it. The High Court’s verdict was appealed to the Supreme Court of India.

Judgment 

The Supreme Court mentioned the challenges that courts encounter when dealing with highly technical or scientific facts. The Court recognized that ambiguity in research in the surrounding environment has led to the formulation of new legal arguments and standards of procedure at international meetings. The precautionary principle is one of them.

Polluter Pays Principle

The polluter pays principle holds that businesses must cover the expenses of preventing or repairing environmental damages produced by their pollution. The polluter pays principle was first recognized in India, in 1986, in the case of M.C. Mehta vs Union of India, also known as the oleum gas leak case. A dangerous gas known as oleum was released by Shriram Foods and Fertiliser Industries, causing harm to the public and the environment. Notwithstanding the reasonable care exercised by Shriram, the corporation was found to be completely accountable for the injury it caused. It was also stated that the greater the corporation that caused the damage, the more compensation they must pay.

In the Indian Council for Enviro-Legal Action vs. Union of India, 1996, it was ruled that the central government had the jurisdiction to assess reimbursement for environmental damage under Sections 3 and 5 of the Environment (Protection) Act, 1986. In Vellore Citizens’ Vellore Citizens Welfare Forum vs. Union of India 1996, the Supreme Court held that the polluter’s goal is to pay polluted sufferers while also restoring environmental deterioration. Environmental restoration is a component of long-term sustainability.

Rule of absolute liability

With the preceding information, it is now simpler to comprehend the notion of ‘Absolute Liability,’ as its title, it holds an individual without exception completely accountable for actions caused by the release of a dangerous object in a non-natural usage of land. The law of ‘Strict Liability’ was thought to be established and concrete until the Bhopal Gas Leak disaster in India in the 1980s, when the subject of strict liability exceptions arose. The Supreme Court of India finally formed an extension of the idea of strict liability, termed as absolute liability, in an unrelated case of the Oleum gas leak, providing the defendant with no defence or exception to avoid such liability.

Case of the Bhopal gas disaster

In this case, the greatest industrial disaster ever recorded took place On December 3, 1984. Around 40 tonnes of Methyl Isocyanate (MIC) gas, coupled with other dangerous chemicals, were released from a Union Carbide (India) Limited chemical factory. This catastrophe claimed the lives of at least 3,800 individuals and injured many more. Also because gases stayed close to the ground, this event caused victims’ throats and eyes to burn, as well as nausea. Even after 30 years, those who were subjected to such hazardous gas gave birth to physically and intellectually handicapped children. The Union Carbide Corporation paid the Union of India a total of US$470 million to resolve all disputes, interests, and responsibilities relating to and originating from the Bhopal Gas Disaster.

Judgment

The Supreme Court applied the doctrine of absolute liability to order the Union Carbide Corporation to pay damages. It is minor in proportion to the crime that has a long-term impact on the living person’s survival of that location. Even after the calamity, India has experienced considerable industrialization. While some positive adjustments in the government policies and the practices of a few companies have occurred, rapid and largely unregulated industrial growth continues to pose serious environmental dangers. Effects on human health continue to occur across India as a result of extensive climate change.

Enviro-legal jurisprudence is voluminous

In the past several decades, the courts have made decisions on a wide range of environmental concerns, including wildlife protection, forest administration, waste disposal, and regulatory requirements. Environmental rights have been recognized by the judiciary in several judicial rulings and orders. It has kept a close eye on how its directions have been carried out. Individuals’ fundamental rights, particularly their right to life and personal liberty, were in jeopardy in the majority of these cases. Part III of India’s Constitution ensures that some essential rights are protected. 

Role of Article 21

The progressive Indian judiciary has expanded these rights (especially Article 21) to include other unarticulated rights such as the “right to a pollution-free and clean environment,” “right to fresh air and pure water,” “right to livelihood,” “right to live with human dignity,” and so on. Environmental rights have been expanded by the judiciary to include a “healthy environment with minimal disruption of natural equilibrium” and a “living atmosphere conducive to human existence.”

The Constitution’s enumeration of these rights allows for sufficient opportunity for initiating challenges against concerns posed by climate change. Climate change, as stated in previous chapters, will have an impact on the ecosystem and disrupt the ecological equilibrium. Climate change will affect basic rights and other legal rights, opening the door to constitutional or rights-based climate litigation in the courts with writ jurisdiction. Another method is to look at climate change through the prism of human rights violations, such as the right to life, health, water, livelihood, shelter, and other rights that are threatened by climate change.

The National Green Tribunal Act, 2010

The National Green Tribunal Act of 2010 was established to establish a National Green Tribunal to handle matters involving climate change sustainability and maintenance in a timely and effective manner. This Act was enacted in response to the recommendations of the United Nations Conference on Environment and Development, which was held in Rio de Janeiro in 1992 and focused on adequate interventions to judicial remedy for environmental problems.

Establishment of the Tribunal

The national government is required by Section 3 to create a Tribunal that will have responsibility for protecting the environment and conservation problems. The Tribunal is divided into four zones: the West Zone (Pune), the Central Zone (Bhopal), the Southern Zone (Chennai), and the Kolkata Zone (Eastern Bench).

Defining Section 4 and 5 of the National Green Tribunal Act, 2010

According to Section 4, the tribunal will be made up of the following:

  1. According to Section 5(1), the Chairperson must be either a current or former Supreme Court Judge or a current or retired Chief Justice of a High Court. The chairperson would be selected by the central government on the Chief Justice of India’s recommendation.
  2. Full-time judicial membership, with a least of 10 and a maximum of 25, depending on the central government’s discretion. Current or retired High Court justices must make up the judicial panel.
  3. The central government may appoint up to 25 expert members, with a minimum of 10 and a maximum of 25.
  4. Section 5(2) specifies the qualifications of the specialized member that is, Master’s degree in science with a doctorate, Master’s degree in engineering, Master’s degree in technology, or Master’s degree in technology + 15 years of practical expertise in the respective fields, including 5 years in the field of environment and forest in a reputable national institution or 15 years of administrative experience, including 5 years in the field of environment and forest management, either in the federal or state government or in a reputable national organization.

Tribunal’s authority

Only civil cases involving environmental problems are acceptable well before the Tribunal, according to Section 14(1), and the time limit for submitting the application form first before the Tribunal is six months.

Under Section 15(1) of the National Green Tribunal Act, the tribunal has the authority to make the following orders:

  • Relief and restitution for those who have been harmed by pollution.
  • Restitution for lost or damaged property, as well as environmental damage.

These instructions are in addition to the Public Liability Insurance Act of 1991 relief.

Case laws

Association for Protection of Democratic Rights v. The State of West Bengal and Others

  • Jurisdiction (a forum where the case was filed) – Supreme Court 
  • Special leave petition

Facts of the case

In this case, the Supreme Court of India released a directive on March 25, 2021, forming an expert committee to develop a framework of research and regulatory principles that shall manage judgment calls concerning tree cutting for infrastructure projects. The order came in support of the application opposing the West Bengal government’s proposed cutting down hundreds of trees, some as ancient as 150 years, to build roads over bridges and widen roadways. The Court stressed the importance of analyzing the impacts of such developments on carbon sequestration and climate change while determining whether the plan was following the constitutional right to a healthy environment and India’s sustainable development goals.

Issue

Whether it is legal for the state of West Bengal to cut down hundreds of trees to build and enlarge roads?

Judgment 

The Court stated that the problem takes significance in light of climate change as an increasing national and worldwide problem, and cited India’s climate promise to raise tree cover from 23% to 33%. The Court subsequently appointed a seven-member committee and told them to create the standards within four weeks of their first meeting.

Hanuman Laxman Aroskar v. Union of India

  • Jurisdiction: Supreme Court

Facts of the case 

In this case, the Supreme Court of India suspended the environmental clearance for an airport in the state of Goa on March 29, 2019, and directed the administration to reconsider the decision. The approval was brought before the Supreme Court by petitioners, citizen Hanuman Laxman Aroskar and the NGO Federation of Rainbow Warriors. 

The Court revoked the airport’s regulatory compliance certificate citing the government’s failure to consider environmental concerns that were critical to the environmental evaluation procedure. The court reasoned that it was essential to the resolution of this lawsuit as a driver for sustainable development within a rule of law framework. The Court went on to say that the Paris Agreement and India’s Nationally Determined Commitment to the Paris Agreement were both important aspects of India’s environmental rule of law and that the government had to strike a proper balance between environmental concerns and airport development goals.

Issue

Whether the Government of India appropriately examined environmental impacts when it approved a new airport?

Judgment 

The Supreme Court removed its suspension of the environmental clearance on January 16, 2020, after new statements from the airport project stakeholders, enabling the airport project to proceed. The government enforced additional environmental requirements on the project in response to the additional environmental impact evidence supplied, which included a commitment to establish the airport a “zero-carbon airport operation.” The court issued that the government has appropriately addressed concerns raised in the court’s 2019 ruling. The National Environmental Engineering Research Institute was also established to conform with the government’s environmental criteria, and the project developers were required to pay the charges of monitoring.

Almitra H. Patel & Ors. vs. Union of India and Ors.

  • Jurisdiction – National green tribunal (NGT)
  • Key observation – Open burning of garbage on public lands is strictly prohibited.

Facts and issues of the case

This case was India’s single most important landmark decision solving the problem of solid waste management. Mrs. Almitra Patel and others have filed a PIL before the Apex Court under Article 32 of the Indian Constitution, in which the Petitioner demanded an instant and necessary modification in the current methods for the treatment of municipal solid waste or garbage in India:

  • The Tribunal determined that the situation was massive since over a lakh tonnes of raw rubbish is discarded every day just outside of the town limits, and there is no suitable treatment for this waste, which is deposited on the property, alongside highways, rivers, and among other places.
  • As of 2012-2013, the entire country created approximately 133760 MT of waste every day, and this rate has been steadily increasing.
  • The Tribunal emphasized the need of converting this debris into a production of electricity and fuel that can be used for the betterment of society, following the Sustainable Development Principles.

Judgment

  • After considering all aspects of the problem the Tribunal issued over 25 directives. The Tribunal ordered each state and territory to instantly execute the Solid Waste Management Rules, 2016 and to formulate an implementation strategy in line with the Regulations within four weeks. The Tribunal additionally ordered the Central Government, state governments, local governments, and all citizens to fulfil their responsibilities under the Rules as soon as possible.
  • Before waste treatment in energy facilities, a directive was published to maintain correct segmentation. It authorized buffer zones to be built around facilities and landfills as needed. In waste-into-energy plants, absolute segregation is required, and landfills should only be utilized for storing inert waste and must be bio-stabilized within six months. The Tribunal’s most crucial directive was a complete ban on the open burning of rubbish on public grounds, especially landfills.

Conclusion

Climate litigation has a lot of possibilities in India, thanks to the current court-developed environmentalist doctrine, environmental management statutes, the mechanism of PIL, Judicial Review, as well as various private legal remedies. Although some of the Indian judiciary’s methodologies are closely related to those of Australian and US courts, there are some notable and remarkable components of the Indian judiciary which assure that if climate change situations continue to search through higher courts and the NGT, there will be more opportunities for climate litigation. In exercising its authority under Articles 32 and 142, the Supreme Court of India can promote effective climate concerns brought in courts. The Supreme Court, through judicial activism and public interest litigation, may become the most important venue for redressing the significance or consequences inflicted by climate change. Claimants will find it simpler to bring petitions or claims against violations of their basic and human rights as a result of climate change impacts due to the easing of standing criteria and procedural flexibility in public interest litigation or rights-based litigation.

References

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US IP policy in an era of open innovation : is it time for uniformity

By
Oishika Banerji
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0

This article has been written by Eriobu Aniede Onyekachi, pursuing a Diploma in US Intellectual Property Law and Paralegal Studies from LawSikho.

Introduction

The purpose for the protection of intellectual property rights IPR is for the right holders to enjoy their rights without undue interference from others except with their consent through the instruments of licensing, franchise, or assignment. This phenomenon made innovation closed and within the reach of the right holders for the length of time of enjoyment of such rights. It, however, limited the commercial workings of such inventions and ideas to their original team creators and secluded the invention and its workings from the reach of external influences. This article aims to find a balance between IPR and open innovation because at the bottom of every invention is the desire for ultimate value which is best achieved through innovation; collaboration, incentive, and competition.  

Innovation is the driving force of industry and every organization must keep innovating to remain relevant. Innovation as seen in the industry can either be closed or open. The traditional way of research and development R&D which is enclosed in the box and kept from external reach is known as closed innovation. Open innovation is the leveraging of internal R&D and adding external R&D to enhance a business. It involves consistent research to improve on an existing product, discovering more use and creating multiple channels for its commercialization. In the words of Henry Chesbrough, the father of open innovation, open innovation is “a paradigm that assumes that firms can and should use external ideas as well as internal ideas and internal and external paths to market, as the firms look to advance technology”.  

In closed innovation, the invention is for the exclusive use and workings of the inventing community. Open innovation involves collaboration with research institutions, business partners, competitors and customers through a joint venture or licensing agreement. Licensing can be cross, vertical or horizontal. It is crossed if two or more companies exchange their inventions for the creation of new products and services. It is vertical if the invention of one serves as a raw material for the creation of products for use in another industry and it is horizontal if the end product for such an exchange is within the same industry.

Closed vs open innovation

S/N

Closed Innovation

Open Innovation

1

Increased research cost

Reduced research cost

2

Limited use by internal members of a company

Accessible to external companies

3

Slow innovation process

Faster innovation through collaborations

4.

Limited ideas

Expansion of ideas and further inventions

5.  

Limited market shares

Newmarket shares evolve

6.

Little or no royalties

Multiple sources of royalties

7. 

Out-dated technology

Improved technology

 

IP policy

According to the World Intellectual Property Organisation (WIPO), a national IP strategy consists of a set of measures that are formulated and implemented by governments of the world to encourage and facilitate the effective creation, development, management, and protection of IP at the national level. It is a cross-cutting document, which outlines links with diverse policy areas to ensure effective coordination with other activities. An IP policy provides structure, predictability, and a beneficial environment in which enterprises and researchers can access and share knowledge, technology, and IP. It encapsulates in detail the terms of ownership of IPR, incentives for researchers, IP disclosure, commercialization of IP, recording, and accounting, IP management and conflicts of interest. 

U.S IP policy

The US IP policy, like most jurisdictions of the world, lends support for the protection of IPR of their citizenry both in and outside of the US for the exclusive enjoyment of the right holders. The Office of International Intellectual Property Enforcement (IPE) was set up for this purpose; to present the mastermind of Americans to the universe. The US IP policy is important because IP is the bedrock of the US economy and it projects and reflects America’s creativity to the world. The importance of IP policy to the economy of a nation cannot be overemphasized. As a result, the World Intellectual Property Organisation (WIPO) assists developing and least developed countries (LDCs) to produce national intellectual property (IP) strategies by drawing on its unique global expertise to help nations avoid common pitfalls and ensure that the best possible strategies emerge.

The Office of Intellectual Property Enforcement (IPE) advocates for the effective protection and enforcement of intellectual property rights (IPR) around the world. The IPE team together with U.S. ambassadors and diplomats serving in different countries of the world, liaise to ensure that the IPR interests of Americans are epitomized abroad, and also showcase the important role that IPR protection plays in global innovation and economic development. So much is invested by the US in IPR protection because IP keeps the US as one of the most innovative nations of the world, it has led to the growth of the US economy and its IP policies assures scientists, innovators, and researchers that their rights shall be protected, enforced in the face of any breach and returns will be made on their investment and cost of research. An assurance that keeps the US inventing community constantly motivated.

The IPE promotes IPR systems to:

  1. deter access to counterfeit and pirated goods that can harm consumers;
  2. ensure that the interests of American IP rights holders are protected abroad;
  3. promote IP protection and enforcement as vital for economic development.

According to the U.S Department of State Division for Trade Policy & Negotiations, the U.S IP intensive industries account annually for;

  1. 38% of GDP;
  2. 52% of merchandise exports;
  3. 27.9 million jobs;
  4. 46% wage premiums.

While IP crimes cost the US economy on a yearly basis;

  1. $180 billion from theft of trade secrets;
  2. $18 billion from pirated US software;
  3. $29 billion in displaced legitimate sales from counterfeit and pirated goods.

The above analysis simply indicates that there is a gain in IPR protection and so nations should invest in strong IP policy. 

In spite of the success rates of US research and development, the US IP policy is stringent and encourages closed innovation. It is a boost for the US economy but can its good and security be seen to help researchers, inventors, and right holders maximally enjoy their rights in a closed innovation system? 

IP management and protection in an era of open innovation

IPR protection is fundamental for the right holders to reap the benefits of their creation to the exclusion of all others. The question is how much benefit can a right holder enjoy without commercialization? Patent holders would keep their invention strictly for their workings, export, import and sale without reaching out to their contemporaries or letting them in to assist in the full utilization of their technology. It is for this purpose that open innovation is seen as a better option for the enjoyment of IPR because a patent holder can license out or license in for the full workings of the potentials of the patent, thereby generating more royalties. 

Open innovation does not connote open access without royalties or benefits. It does not mean that the IPRs are not protected, but rather that the IPR is shared amongst competitors on the ratio of their collaboration and as per agreement. For any organization to remain in business, it has to keep innovating but R&D is expensive and takes time, which is why collaboration is needed to mitigate cost and time in this age. It is observed that businesses that were thriving in the ’80s at a time monopoly were the order of the day, began to pack off early 2000 and such was the fate of IBM but for its establishment of Open Collaborative Research (OCR) program in 2006 to enhance open-source software research between research institutes and IBM. It further developed Eco-Patent Commons in collaboration with firms such as Sony and Nokia in January 2008, through which ecologically related patents were made available to the public with the aim of encouraging technology development in this area. On IBM’s contact page is the statement that; ‘IBM’s greatest asset is the IBMers. We believe our strength lies in the diversity of our employees. IBM encourages creative pursuits and passions outside of work because when IBMers can explore their curiosity, it gives all of us a new outlook on the world and its possibilities for emerging tech. Together, IBM can drive progress through meaningful innovation and action’.

Illustration of an Open Innovation System

Open innovation can be likened to the apprenticeship system that is prevalent in the South East of Nigeria whereby a business owner invites a group of young men to serve under him, learn his trade for about 4-6 years, he settles them with a good amount of money for them to start up their own business. What is predominant is that through the engagement of these young men, ideas are exchanged and the original business modules are improved upon leading to the expansion of the business through distributorship, sales outlets and entry into new markets. The circle continues with the settlement of these young men with a lump sum or shared asset, who also invest in a group of other young men thereby creating a network with huge net worth. Through this engagement, businesses that were not doing well, begin to do well, gain root in the market through goodwill and break into new market frontiers.

Open innovation like the business module explained above involves some push factors;

    1. Initial invention(s) or business module;
    2. Collaboration;
    3. Research and development;
  • Inclusiveness;
  1. Motivation/incentives/ recognition; 
  2. New business modules;
  3. Feedback.

The spirit of inclusiveness is the bedrock of the collaborative system in open innovation, a factor that has proven to work magic over and above salary payment as with IAS and IBM. The team grows the business with the mindset that it is theirs and from its network they are established. Feedback is gotten through the customer’s patronage and the goodwill of the business. When settled, they go into the same business, a fall-out of the business or different business, and repeat the same circle. 

In the words of Professor Ekekwe, ‘the Igbo Apprenticeship System IAS can be encapsulated like this; ‘a man goes into a business sector and wins market share. Then one day he decides voluntarily to give out market share and immediately creates competitors for himself’. This is what open innovation tends to achieve; a competitive market against a monopoly by IPR holders in a closed innovation. The AIS has been recognized as the largest business incubator-raising brands such as Innoson Motors, Capital Oil & Gas, Coscharis Group and more recently Cubana Group just to mention a few. The AIS is so powerful that the Harvard Business School and the Lagos Business School have taken recognition of its impact in creating a balance between the rich and the poor with ongoing discussions to capture the system as a business module.

IP application in an era of open innovation-implications

Back in the day, a patent could expire without generating royalties for the right holder but today, through collaboration between internal and external resources, more uses are discovered, new technology and business modules are developed by establishing; joint venture agreements, partnership, distributorship or licensing for the greater benefit of the right holders and investors. Open innovation creates a feel of conflict between IPR protection and the open nature of innovation. The two are in alliance to drive IP policies except that more rights are formed and more players benefit as against a single right holder. Rather than only license agreements, we see more joint venture agreements, partnerships, distributorship etc in an open innovation system. Today a patent holder can enjoy a multiplicity of license agreements and royalties through networking with external resources.

Conclusion

With open innovation, collaborators engage in different capacities; R&D funding, R&D research, creation of a new business module, breaking into new market frontiers, distribution, feedback and commercialization through multiple means. Open innovation leverages the strength of the various communities that come together for the research. With open innovation, an organization can take its product to the market through others and vice versa. The most important achievement of any IP policy is greater economic returns for the inventors and investors which is the main reason countries like the US formulate IP policies. In other words, open innovation does a greater good for IPR than closed innovation. 

Like the IAS which leverages collaboration to break into new market frontiers, it is suggested that for organizations to continue to thrive in this age, they need to open up to the outside world in order to maximize the potentials of their technology and for the greatest return on their investment. However, they must do so with caution through the assistance of an IP professional who can help protect their interest in making sure that their openness is not abused by their counterparts. No matter how attractive more royalties and new deals can be, an inventor who has put in time and effort must ensure absolute but flexible control of the nuances in its contracts and due diligence checks in its IP portfolio.   

References

  1.  https://core.ac.uk/download/pdf/322562017.pdf.
  2.  https://www.wipo.int/ipstrategies/en/.
  3.  https://www.wipo.int/about-ip/en/universities_research/ip_policies/.
  4.  https://www.state.gov/intellectual-property-enforcement/.
  5.  https://www.ibm.com/about.
  6.  https://muckrack.com/ndubuisi-ekekwe/articles.

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Rise of legal-tech startups in India

By
Rachit Garg
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0

This article is written by Ishan Arun Mudbidri from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article talks about the rise of legal-tech companies in India.

Concept of legal technology

Technology and innovation have changed the look of the top professions in the world. One such profession is the legal industry. Legal technology has made working easy for lawyers and other legal practitioners. So what is legal technology? Legal technology is the use of software and the internet to deliver legal services. This not only helps various companies trying to make it big in the legal field, but also helps budding and aspiring lawyers, students, and other people involved in the legal field to make a name for themselves by using various online research tools. The main objective of legal-tech companies is to do better than the traditional legal field and fill in certain gaps.

Legal-tech incubators

Legal technology is diverse and has a very vast scope. Various concepts have been introduced in this industry to make things easier for legal personnel all over the world. One such concept is that of legal technology incubators. A legal incubator is an artificial intelligence-based software that helps legal tech companies proper guidance and investment. This will help a legal firm to be more efficient and it also promotes legal delivery. Artificial intelligence is the future and any industry will heavily rely on artificial intelligence for its growth. As rightfully predicted, legal incubators are taking the legal industry by storm. Various superpowers like the United Kingdom, USA, Europe, have already adapted to the practice of legal-tech incubators. India also is not lagging in this context. 

Prarambh was the first of many

India’s largest legal firm Cyril Amarchand Mangaldas announced India’s first legal technology incubator, Prarambh in 2019. This was the first step to boost legal innovation in India. The main aim of this initiative was to help young students to get effective solutions to help them prosper in their legal careers. Secondly, to help legal technology companies grow in the Indian legal market. 

Here’s how Prarambh works. Every legal start-up has to go through a tough selection process to be a part of the Prarambh program. After getting selected, the start-up goes through a 12 stage process where guidance as to how to set up, financial planning, management, recruiting of employees, objectives of the firm, and various other end-to-end solutions are provided. Further, these start-ups are provided with the exposure needed to attract global investors and also a large fan base. After gaining success in the first installment of the Prarambh program, the Cyril Amarchand Mangaldas group, launched Prarambh 2.0 in October last year. The main focus this time was to assist the legal start-ups badly affected due to the COVID 19 pandemic. This time the program is virtual and for 10 weeks.

The success of the Prarambh program proposes to be the first of many other legal initiatives for legal-tech companies in India in the coming years.

Impact of legal-tech startups in India

Since 2011, India’s legal technology industry has been gaining momentum. Various Indian legal technology companies have been flourishing in not just India but also, in other countries abroad. This will only help in the growth of legal technology in India especially considering that the world is amidst the COVID pandemic.

Features of India’s legal technology market

The legal-tech companies in India provide a wide range of features which is helping them grow. Some of the features are:

Online dispute resolution 

Online dispute resolution of ODR is the newest addition to the dispute redressal mechanism in India. ODR reduces the burden on the courts where there is already huge pendency of cases. The individuals can register their grievances just like any other alternative dispute redressal. This helps the consumers because their disputes are resolved effectively. Some of the ODR start-ups in India are presolv360, SAMA, resolve disputes online, center for alternative dispute resolution excellence, etc. These help the people to resolve civil, commercial, and legal disputes in India.

E-signature

As everything is online these days, it has made the process of verifying documents very easy. A similar situation can be seen in the legal technology market. Legal professionals do not have to physically sign or verify various paperwork and documents. E-signature platforms allow the clients to fill their documents, self attest it, verify, and send everything online. Various legal e-signature platforms are, signdesk, signeasy, etc.

Legal research and analysis

Due to the advent of legal technology, various Indian legal start-ups have started providing information about legal information from all over the world. Legal research due to this has become very simple, effective, and time-consuming, very unlike the traditional process of research. Some of the leading legal technology start-ups providing quality research material are legit quest, casemine, scc online, blog ipleaders, etc.

Managing contracts online

Some legal-tech companies in India are helping legal practitioners to manage their contracts online. The manual process of preparing a contract is very tedious and time-consuming. These companies help lawyers and legal firms draft and send their contracts online. Some of these start-ups are spot draft, legal capsule, koncord law, etc.

Legal marketplaces

The concept of the legal marketplace shows how far legal technology in India has come. This concept is just like Amazon and Flipkart. Legal marketplaces help a consumer to find their lawyers online. The people can seek legal advice from the lawyers of their own choice within their budget and location. The major legal marketplace entities in India are lawrato, legistify, my advo, etc.

Managing intellectual property

Managing intellectual properties can be a risky task, as most of the time, people forget some or the other document. But, with legal technology, this task has become easy. The users can manage their IP documents, and data online through a unified system. Through this, there is a low chance of people misplacing their IP documents.

E-discovery

E-discovery helps the lawyers and other legal practitioners in various legal processes like investigation, collection and storing of data, alternative dispute resolution, exchange of legal information, etc.

Managing legal functions through technology

Legal-tech companies have introduced various start-ups for lawyers and legal firms to manage their day-to-day functions digitally. This legal solution helps the legal practitioners in managing client relationships, managing important documents, managing cases, and much more. Some of these start-ups are practice league, Clio, lawcus, etc.

How legal-tech start-ups are valued

With the COVID 19 pandemic wreaking havoc all around the globe, every single person on the planet is unhappy and suffering losses, let alone a businessman. However, such is not the case for legal-tech start-ups around the world. There is a massive surge in investments and fundings into legal-tech companies. Huge valuations are also estimated in the near future. The main criteria for the growth and success of legal-tech companies can be the type of consumers they attract. Recently, a Canada-based legal technology start-up Clio raised around $111 million in funds and is estimated to be valued at around $1.6billion. Further, the pandemic has also helped the law firms by merging with the legal-tech companies. This has helped in increasing the earnings of the law firms and the legal-tech companies are already on the rise, so it is a win-win situation for them.

Some of the leading legal-tech startups in India

In India, the legal system is slowly getting taken over by various technological advancements. The legal-tech sector is slowly catching up with the traditional legal industry. Literally, for every legal concept, there is a legal tool online. So be it legal research and news, addressing grievances of the users, choosing the lawyers, and much more. Hence, here are some of the leading Indian legal-tech start-ups that have taken the Indian legal market by storm.

Blog iPleaders

This company has been one of the leading legal-tech startups in India. From delivering up-to-date legal content to offering various courses, this start-up is booming. It offers over 60 plus online courses through LawSikho for lawyers, students, government officers, etc. They also provide online diploma courses.

Presolv360

Presolv360 is one of India’s biggest and also one of the first online dispute resolution legal-tech start-ups. They provide dispute redressals through e-arbitration and e-mediation. The users can send their disputes, and with a reputed arbitrator or mediator.

Legal kart

It is an Artificial Intelligence-based legal consultation start-up where the users can take legal advice from lawyers all over India. This start-up currently has a network of around 5500 lawyers all over India. For a practicing lawyer also, this app is very useful. He/she can connect with new clients while dealing with their existing clients. 

Volody

Volody is one of India’s leading legal-tech start-ups for managing contracts. This artificial intelligence-based software enables users to draft, attest, and send their contracts online.

Mike legal

Mike legal is an AI-based legal-tech start-up for managing intellectual property documents and other IP-related data. This start-up provides users with certain legal-tech tools like mike™  search, mike™ manager, mike litigator, etc. All these tools provide IP management services.

new legal draft

Legit quest

Legit quest legal-tech start-up known for providing users with legal research content. This start-up offers a few features like and search which helps users to search legal cases of their liking, the decision reasoning arguments findings feature which allows users to highlight various features of a particular case like judgment, arguments, facts, etc. and lastly the igraphics feature which helps users to known for providing summaries of cases.

Are legal-tech start-ups the future of legal services in India

With the above-mentioned and other legal-tech start-ups, the future of  India’s legal-tech market looks bright. The pandemic being a major reason and a huge boost to the legal-tech companies, we might see these legal-tech companies overtaking the traditional law firms in India in the coming years. Presently, with the court hearings being online, and the whole working online, searching for legal solutions has become easier due to legal technology. There are a variety of legal solutions to choose from. This has brought efficiency and standardization to the legal technology market. The legal solutions provided are time-consuming, easily reliable, and heavily affordable to those suffering from financial concerns. The legal technology solutions have not only helped the clients but also helped lawyers getting research material, drafting contracts and agreements, giving legal advice easily, and staying safe while working from home during the pandemic. Legal-tech companies have also assisted traditional law firms. The law firms have become more flexible and a reliable client-lawyer relationship can be seen. With the improvement in technology, lawyers are now more assured of not being cheated. The legal solutions provided are fast-paced which helps in saving the time of lawyers and also helps them manage their workload. Despite the legal-tech companies having so much to offer, Indian lawyers are still reluctant to adopt this method of practice. This is because they fear losing their jobs and also citing data loss concerns.

Conclusion

We are in the second year of the COVID 19 pandemic which just keeps on getting more and more dangerous. Hence in such times, the most important thing to do is to stay at home and keep safe. So, all legal personnel are working from home. Their work is made easier due to the advent of legal technology. Fast, effective, and reliable legal solutions are being provided to these legal-tech companies to not just legal personnel but also for the layman. Hence, whether this is the future of the legal sector? Is a question that pops up. However, there cannot be a comparison between the traditional legal solutions and the solutions offered by legal-tech start-ups. This is because both are special and equally reliable in their way. So, the best outcome from this will be when both these methods are used together as that’s where the real growth of the legal sector lies.

References

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Role of IP in branding- registration and prosecution

By
Oishika Banerji
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0

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

Introduction

For any industry, company, organization, or business, building a brand name is very important in today’s era where competition and technology are continuously increasing. When a business creates a brand name, its customers easily recognize it among its other similar competitors who are dealing in the same market. Once a business creates its brand name, it needs to protect this name from others from misusing it and hampering its reputation and goodwill in the market. This is where intellectual properties come into play. 

Intellectual property rights are basically the rights used by a person over their creative ideas which they have used in building a successful brand name for their business. Whether it is a unique name for your brand or your creative writing, composition, painting, sculpture or even your own creation of technology, Intellectual Property Rights has it all covered. It is basically protection given to a person over his creativity to protect his creation from others. 

This article covers the meaning of Intellectual Property Rights, how these Intellectual Properties are effective in protecting the brand name of the company and also the registration process to protect these rights, and precautionary steps taken in case any person violates these rights.

Have a unique idea for your brand? Want to protect your ideas from others from stealing? You have your intellectual property rights to the rescue!

Role of intellectual properties in protecting a brand name

For every business, its brand name is valuable, but what exactly is a brand? A brand is the strong name, design, logo, term, or any other thing which is used by a company to identify its product or services. A strong brand name creates goodwill for a business in a competitive environment. When a business has a strong brand name, it will help its current and potential customers distinguish its goods/services from the goods/services of its competitors. But the question now arises is how to protect a brand name of a company? 

In such cases, intellectual property assets can be used by a company in protecting and building a stronger brand image for its company. There are different types of Intellectual Properties that a company uses to protect its name, inventions, creations, ideas, etc. If a “brand name” solely identifies the brand owner as of the commercial source of items or services, it is considered a sort of trademark. A brand owner can use trademark registration to safeguard their proprietary rights in a brand name; these trademarks are known as “Registered Trademarks.”

Registration and prosecution

As an inventor or creator, a person has a right to protect their inventions, ideas, or creation and prevent others from using them without permission or without giving due credits. To legally enforce these rights, it is always advisable to get your ideas or inventions registered. Getting an intellectual property registered with the concerned authority, a person can prevent others from using its ideas (its brand name) as his own and will also help a person legally to prosecute any other person using a similar invention or ideas in its name.

Registration of a trademark

A trademark is any sign, design, symbol, word, combination of colors, smell marks, etc used for any goods or services. It is a brand or a source identifier. A trademark distinguishes one good/service from its competitors. It provides a brand or value to a product. 

When a trademark is distinctive in nature from the goods/services that it provides it becomes easier for it to get registered. It should be unique from the goods/services that any other competitor provides in the same market so that customers can recognize such a trademark and distinguish it from its other competitors who are dealing in the same market. 

India is a common law country, which means that it recognizes the use of a trademark so it is not compulsory to register a trademark but it is always advisable to do so as registration provides wider protection. Eg. A person can start using its trademark with its goods or services without getting it registered. With continuous use of its trademark, he can claim right over it. But this right is only limited to the geographical limit within which its goods/services are provided. But if he registers his trademark he can easily claim wider protection over it. He can then not only claim its right limited to the geographical limit but he can now protect its trademark worldwide.

Also, a person can only protect its trademark from its competitors using the same products or services or who are coming under the same class of goods/services. Eg. If a person has registered a trademark under class 5, he can protect his trademark from other competitors who are also dealing with the goods/services under the same class.

Following are the steps to get a trademark registered

Step 1- Trademark Search

Conducting a trademark search is the first and important step as it helps a person going for its trademark registration to know whether any other similar trademarks are already in use in the same class of products/services in which the person is seeking registration.

Step 2- Application filing 

After the trademark search is conducted successfully, a person can file an application to get its trademark registered with the Trademark Registry within whose territorial limit the business is situated. At present, there are five registry offices which are at Calcutta, Delhi, Mumbai, Chennai, and Ahmedabad. Application is always filed in the form TM-1. It can be filed online or offline. Nowadays, most of the filings are done online.

Step 3- Accepted or Objected

The trademark can then either be accepted or Objections can be raised by the registry. 

If the trademark is accepted, it will then be published in the trademark journal. After it is published in the trademark journal, if any person has any objections to such trademark registration, he can then file a notice of opposition under Section 21 of the Trademarks Act within 4 months from the date on which it was published in the journal. After the Notice of Opposition is filed, the applicant then has to file its Counter-Statement in response to the NOP. Counter-Statement is filed under Section 21 (2) of the Trademarks Act within 2 months from the receipt of NOP.

After examining the trademark application, the registry can also raise its objections. The objections are raised in the Examination Report. A written response is then filed by the applicant after receiving the examination report. After receiving the response, if the examiner is satisfied, he will then accept the report. The acceptance can be conditional.

Response filed to the examination report should be made by a person on record. One examination report allows one response only. The response can be filed electronically in the MIS-R form. The response should be filed within one month and not 30 days from the date of receipt of the examination report. The deadline to file a response to the examination report can be extended by 1 month at a time, by filing a request in the form TM-M (can be extended by 1 month “at a time” means it can be requested to extend the time by any no. of times, but it is always advisable to not request it for more than 3 times in total)

 If the examiner is not satisfied with the response, he will then allow an oral hearing to the Applicant.

Step 4- Trademark Registration

After all the above steps are completed, the application then moves to its registration stage. Once it is published in the trademark journal, a registration certificate under the seal of the trademark office is then issued.

Once a trademark is registered, it is valid for 10 years and can also be renewed after every 10 years. Hence it can be protected perpetually.

Prosecution provisions under the Trademarks Act, 1999

A person can initiate the prosecution proceedings under the act if its original product or his brand name is misused or is stolen by any other person. When a person’s Intellectual rights are infringed by another person, remedies in the name of initiating prosecution proceedings against such person are provided under the act. Section 103 and 104 of the act deals with the prosecution clauses. 

Comparison between the laws of India vis-à-vis laws of USA

While the Indian Trademark laws are protected by the Trademarks Act, 1999, the Trademark issues in the USA are governed by The Lanham (Trade Mark) Act 1946. Every country is governed by different laws so there is a high chance that there will be some difference between these laws. Following are some points discussed upon which the trademark laws of India and the USA differ.

  1. Use of a Trademark- In India, to prove “use” mere advertisement of the business will suffice. It does not necessarily include proving the “actual sale” of the products/services. While in the USA the scenario is a bit different. The courts in the US have declared that mere token use of a product will not be enough. The Supreme Court of India held in a case involving Toshiba Corporation that, in the event of a government ban preventing goods from being imported into India, a single instance of Toshiba advertising in India, combined with its global reputation, registrations for the TOSHIBA brand, and marketing, gave the corporation’s trademark immunity from cancellation.

Also, India recognizes a trans-border reputation for the concept of the “first used” mark. This means even if the mark is not registered in India or none of its products is sold in India, it can acquire a Trademark in its name based on the global popularity and goodwill. While in the USA use of the mark in the country or commerce between a foreign country and USA is important.

2. Proposed to be used basis- While India recognizes the concept of proposed to be a used basis, the USA on the other hand does not. It means that in India, to get a mark registered, it is not important to show that the mark is “in use” it is sufficient to show that the mark is being registered on a “proposed to use basis” which means it is getting registered today while it will be used afterward. The case is the opposite in the USA. To get a mark registered, it is important to show that the mark in question is “in use”.

3. Deadline to file opposition- Opposition petitions are filed when any third party has an objection to the registration of a mark. In India, the deadline to file the opposition petition is 4 months from the date on which the mark is advertised in the Trademarks Journal. While in the USA the deadline to file the opposition petition is 30 days from the date on which the mark is published in the Official Gazette. This deadline can be extended up to 180 days.

4. Validity of a trademark- In India, once a trademark is registered with the Trade Mark registry, it is sufficient proof of the validity of the Trademark and the proprietor can use such mark to the exclusion of others. But in the USA a proprietor has to wait for 5 years after the registration and when all the formalities required by law are fulfilled and 5 years have passed from registration, then the registration of the mark becomes valid and conclusive.

Remedy- While the USA laws provide only civil remedies ( remedy is given mainly in monetary terms) Indian laws provide criminal remedies. The infringer of a trademark will be made punishable with imprisonment.  

Landmark judgments

The case of Millet Oftho Industries & others v. Allergan Inc. [Civil Appeal No. 5791 of 1998], was the first to join the global market/Protecting established foreign brands under Indian trademark law/Healthcare and medicine.

In this precedent-setting case, the Supreme Court of India extended the protection afforded by Indian trademark law to a well-known foreign brand. An Indian business was barred from using the trademark OCUFLOX by the court. The court decision was made even though the US corporation had not utilized the mark in the Indian market and that the mark had not been registered in India. The respondent in this instance was the first to enter the market and use the mark, according to the court. Furthermore, if the respondent was the first to engage the global market, the fact that they’ve not used the mark in India is irrelevant.

It was also said that in the sectors of healthcare and medicine, any opportunities for deceit and confusion should be avoided at all costs while ensuring that the public’s interest is not harmed.

Courts have continuously through their judgments delivered the importance of branding for any type of industry whether it is medicine, fashion, technology, or arts. From this case, we can see the importance of brand value. Although the respondent company did not register its trademark in India, still as it was the first to enter the global market, it created such a strong brand and goodwill for its company that without registration in India, the court protected its trademark.

Conclusion

A trademark offers legal protection for a brand, while a brand can be characterized as the representative parts of a company’s corporate image, which builds and develops through time via generating trust. Companies should be using trademark protection to protect the capital investment they made in developing their brand. Trademarks do not have to be registered, but the owner of a registered trademark has significant advantages over the owner of an unregistered trademark, who often has difficulty proving the existence and scope of his or her rights.

Trademark registration helps generate an exclusive right and distinguishes the product from identical products sold by other companies. For the owner, a trademark serves as an intangible asset that protects the brand for a long time. The owner of a trademark has the first right to use such trademarks, symbols, and expressions. A brand needs to be protected and safe in a market like India. As a result, having a trademark registration in India is important not because it is required, but because it is necessary.

References

  1. http://www.wipo.int/trademarks/en/.
  2. https://talwaradvocates.com/5-landmark-judgements-trademarks-law/.
  3. https://blog.ipleaders.in/trademark-india-us-eu/.
  4. https://www.mondaq.com/india/trademark/516816/indian-trademark-law-comparative-analysis-with-europe-and-us.

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

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The advent and significance of design innovation laws

By
Sneha Mahawar
-
0
Innovation laws

This article has been written by Ashutosh Singh, a student of BA.LLB(Hons), at Amity Law School, Amity University Kolkata. The article is about the new innovation called ‘legal design’ in the field of law and how and why it is likely to give our legal system a makeover.

Introduction

Legal design in India is an emerging and evolving concept. Have you heard of the make-over of law by design innovation? Lawyers & designers should be working together to craft user-friendly, engaging, and quality legal services. Lawyers need designers’ skills and insights. How does one integrate design into law? Design is a transformational force that helps organizations develop services, products, and experiences that reverberate with customers. To be an innovator and gain a competitive advantage, one needs to fully develop one’s design and creative thinking skills, both of which are essential in the business environment today.

The legal community is known for being conservative with established paradigms of practice. However, over the past few years, there has been a radical change in the field of law owing to the advances in technology, the arrival of new stakeholders, and most importantly the client’s evolving behavior and requirements. Things have changed; indeed, we live in a world of instantaneity and immediate information. Consumers today expect their legal service experience to be as easy and value for money as ordering food with a food delivery service.

On top of that, the current pandemic crisis that we are going through has made agility and adaptability a game-changer for all businesses. So, it’s time to innovate and be creative and legal design may be the answer to the new state of the present requirement of the legal market: a strategy and a brand-new state of mind to deliver law in the most impactful way.

Understanding legal design 

Of late, like any other professionals, legal professionals are also facing questions such as: 

  • Is my legal document understandable for my clients? 
  • Is my business designed to fit the client’s demands? 
  • Is the use of technology relevant? 
  • Are other skill sets needed to stand out?

Legal design can respond to all these questions and the need for innovation in the field of law. 

  • Legal design is a way of assessing and creating legal services, which emphasizes how usable, useful, engrossing, and involving these services are. 
  • Legal design is about delivering the law differently in keeping with the needs and requirements of the people that the law is meant to serve so that it becomes more engaging, easier to grasp, and more available to people. 
  • Legal design can also be a set of tools aimed to design and style better products and to communicate in a better and clearer manner the legal information to users and stakeholders.

To explain further, It is a tactic for legal professionals to use 3 main sets of resources:

  1.  Process, 
  2. Mind-sets, 
  3. Mechanics. 

The three resources together can help us formulate, build, and test better ways of doing things related to the law, that will involve and empower both the legal professionals and laypeople. Legal design brings a culture of design thinking, user research, and human-centered design methods into law. The design offers methods and know-how to remodel the legal sector, create legal outcomes more aligned with those that its users require, and make ambitious new visions for how legal services can be provided. A design approach to legal services puts people and their contexts as the core, questions how their status quo could be improved, and then takes into account the potential of technology as an intervention.

Design thinking

Design thinking as the name suggests is thinking of designs and applying them to something’. In the process of legal design, one combines legal expertise with a design thinking approach by incorporating visualization, plain language, simplicity, and smart use of technology. This enables us to improve any aspect of the law, from policies, legal advice, contracts to workflows and organizational structures that lawyers operate on.

It means applying the principles of a good design to the legal world. Margaret Hagan, in her book “Law by Design”, encourages a design-driven approach to legal innovation, with a focus on inventing, testing, and building systems that serve the group of people involved in them.

The application of design thinking combines experience in the legal field with an approach that comes from the design profession, using graphical representation, clear and simple language, and new technology.

The main elements of design thinking are:

Empathy

If a lawyer is designing for a client who doesn’t know much about law and trusts them to guide him/her then one has to understand what the problems or pain points are for that client. This is so that the lawyer can assist the client to have a better experience in whatever they are going to experience be it a legal document, a contract, receiving legal advice, or being involved in a legal process. More often than not when lawyers represent their clients, time is money for them and hence they may skip getting some useful information such as what the client wants.

Collaboration 

Design thinking requires good external and internal collaboration. One of the reasons why collaboration is very important is because of the siloed approach that many law firms have,  not only across the different types of legal services that they provide but also across the different skill sets that are at its very core. Design thinking assesses the real value that one can bring by a collaboration of multidisciplinary teams and those skills may be different types of legal skills and expertise, human resources skills, business development skills, and all of those skills combined which become a part of the solution that you provide to the client. 

Experimentation

Failing for a lawyer is a big thing because they are trained in a way that ensures that generally, they don’t fail. However, if one is faced with failure then it is important to learn how one can improve the failure situation by looking at the how and why of it and coming up with a better solution and this area requires the removal of an old rigid mindset and being open to design thinking.

Cornerstones of Legal Design

The legal design has three major goals. They are : 

Communicate information in a more meaningful way

Helping the layperson and the legal professional, both to understand the law better. The legal designers not only know the law but are also trained in design. This enables them to structure a design process to think in a human-centred way, and not in a law-centred way.

Build a culture of innovation and organization

It bridges fields of academic research and professional practice. It links the business domain, the academic domain, the management domain, and the legal domain, and also the corrective/reactive law world and the proactive/preventive law world.

Improve service offerings and relationships with clients

Legal designers plan the achievement of long-term goals rather than aim at meeting short-term goals. The product design is compliant with the law but focuses on the user’s needs, rather than on just legal requirements, making sure that the sustainability goal is achieved. 

The basic elements that make legal design a groundbreaking launch-pad for innovation in law are:

Client Centric Process

This is more of a user-centric process of legal designing that focuses on putting the lawyers in the shoes of their clients. The advantage offered by doing this is a view of the processes, services, and documents from a layperson’s perspective. The process helps the lawyers because they can decode what the client can and cannot understand. This way, they can recreate legal advice and solutions in a way that is more satisfactory and understandable to the client.

Diversity of Solutions

A legal design like the other designs is nothing without diverse and creative elements. Legal designers also need to create contrasting legal solutions as per the unique requirements of their clients. For this, they need to couple their expertise, past experiences, and wit to intermingle the elements of design with the law,  keeping the essence of the legal process.

Render, Revise, Repeat

Designers would have experienced that clients generally want changes in the legal product/solution multiple times before the result comes even an inch close to finalization. So, legal designers also need to remember that the aim should be creating, revising, and repeating the cycle until the client approves the legal offering once and for all.

The benefits of using legal design thinking

  • It aims to give the user of law, the best user experience so that law and the legal system are not perceived as an obstacle or hurdle.
  • Helps to develop user-centric solutions and innovations that serve a real need, be it analogue or digital.
  • It enables prototypes of ideas to be more easily developed and quickly tested.
  • Feedback on whether an idea meets the needs of the user or needs to be re-designed is much easily available.

Legal design is changing the way law firms cater to their clients

Legal design is a useful resource to the way law firms are functioning now.  These days, apart from considering and implementing legal design, companies are increasingly exploring a ‘human-centred’ design approach. People are sick of complex legal documents. Human-centred design is now practiced by the biggest companies which provide clients with impeccable products and services. People are rapidly getting accustomed to ‘simplified’ commercial relationships, and we can now expect this approach to be extended to all areas where there are relationships governed by laws. Users are increasingly demanding what they expect from law firms while wanting to pay less. To meet this challenge, legal experts are offering services that meet the specific requirements of clients and legal design helps to highlight the things that are truly important for customers. Some of the changes made by the law firms can be summarized as follows:

Shifting from increasing billables to product thinking

The concept of billing has changed in many law firms. The focus is on retaining clients and client’s needs have become more relevant. This however is driven by the fear of losing clients if they find a better pricing model at another law firm, and thus, they are still focused on increasing or not losing revenue. The focus now seems to be on creating a product that is more sustainable and long-term rather than just increasing prices.

Adaptation to a digitalized legal landscape 

 The biggest transformation is the mindset change and law firms are required to comply with the needs and expectations of clients. To achieve the same, legal businesses will have to reconfigure the employment, compensation, and training system. But the biggest challenge for the law firms will be the adaptation to a digitalized legal landscape because of remote working, working from home scenarios due to the pandemic.

By using technology, the time-consuming daily tasks are dealt with more swiftly and the lawyers can focus more on creating value for their clients. However, these solutions are not yet flawless and have raised some legal matters. The innovative developments of software programs are bringing some concerns regarding the use of Artificial Intelligence, such as transparency.

Taking a user-centred perspective

To create a better product or service which is always the goal of a law firm, they work on really understanding the needs and pain points that go along with it. A well-structured flexible legal solution is arrived at where a product design thinking approach helps create better legal services. Law firms are providing legal services that people want, like, and are willing to pay for. This is achieved by taking a user-centered approach.

In other words, it means that when approaching innovation in legal services, law firms always identify the users that are involved or affected by it. Before throwing around ideas on how to improve service, there is a research phase in which the core needs and pain points are recognized. This is a way they focus on a service that clients don’t desire.

Interdisciplinary collaboration

Achievement of interdisciplinary collaboration is a must for law firms now and it is also one of the cornerstones of legal design. The foot forward in this direction is by bringing different minds together. Interdisciplinary teams have become a huge advantage in combining different perspectives and skillsets. This way the law firms also perform better on various levels and are more likely to adapt to changing environments.

The growing importance of legal design in the pandemic

The COVID-19 pandemic has taught us many things. Some of them are as follows: 

Legal design for digital transformation

Law firms, even the smallest ones have undergone digital transformation. First of all, the work has become 100% remote work from home. Most people’s work-stations at home are not so elaborate, small and not as well equipped as their offices. But law firms and many other companies have realized that if people can operate successfully from home, then they can probably operate with smaller space standards at the office too.

Building a more flexible work culture

Lawyers around the world have found that previously held conceptions around the use of paper or the need for associates to be physically present at all times are contradicted by the success of working from home. Post COVID-19, these firms will use this crisis as an opportunity to build a more flexible culture by making remote working a permanent part of their operations. COVID-19 will trigger a transformation of physical space, but it will also bring new and creative ways in which professional service firms like law firms engage with their clients and each other. 

New user-centric solutions

Considering the current pandemic crisis as a digital ground zero now is the perfect time to build a new, accessible legal system with the end-user at its centre. Law firms can increase their efficiency as much as they want, but if they don’t lower their prices or create new user-centric solutions, they will leave an increasing portion of their client base behind. The end of the pandemic seems to be in sight but it would have left a mark on the way people conduct their business in the future and what things will look like in a post-COVID-19 world is far less certain.

A cultural reboot of the legal industry

The legal industry values precedent. Lawyers like to know that an approach has been tried and tested before they adopt it. The pandemic has ensured that some precedents are now emerging. People in the legal industry hope to return to its pre-pandemic, incremental rate of change and they refer to previous crises–the 1987 stock market crash, the dot-com bust, and the 2007-‘08 global financial crisis as precedents supporting a gradual return to the pre-upheaval normal. Law firms will need a cultural reboot which is no small, easy, or quick task. It is a process that involves an in-depth review of structures, processes, talent management, technology, data handling, strategic partnerships, supply chains, and other existing business elements. Change management, upgrading skills, a long-term perspective mixed with the foresight to correct the course quickly, and the advancement of big ideas over what has worked in the past are all elements of the digital journey. This requires an enterprise-wide mindset focused on customers and constant improvement. It also demands an agile workforce committed to constant checks and change that benefits customers and improves their experience.

The paradigm-purging, culture reforming, and existential urgency of digital transformation have yet to be felt, much less embraced by the legal sector. However, post-pandemic that will change and when it does, it will profoundly impact law’s current stakeholders which are law schools, legal service providers, regulators, courts and other dispute resolution sources, legal consumers, and society. It is the legal design that will finally lift the fog that surrounds the current legal system due to the pandemic.

Legal design implementation in India and the challenges

The legal system has quickly embraced extensive use of video hearings to impart justice in important and urgent hearings during the pandemic in India. Also, there is a shift from the traditional method of documentation and electronic filing, social media, and legal research that has transformed the traditional work of lawyers. However, many advocates and judges across the country are still not accustomed to the digitized work environment and the current situation arising out of the pandemic. Some glitches here are:

  • Often the server gets overloaded and crashes due to filing. 
  • Also, it is paramount to ensure the privacy and security of the case details. 
  • Prisoners and Litigants are not able to join the proceedings and they are finding it hard to get involved in the court proceedings. 
  • Internet connectivity issues because the present bandwidth is inadequate to reach the e-courts. Lawyers and litigants generally are unable to have good network connectivity and that results in poor bandwidth which affects smooth video conferencing. 
  • The senior advocates and the judges are generally not well versed with the technical uses and advancements. Thus, proper training is mandatory at all levels.
  • The lengthy procedure of filing both physical and e-filing is another one of the major shortcomings of the system which results in a lot of duplication.
  •  The procedure of notifying defects in the e-filing procedure should be made simpler. The way forward is for the registry to be well-equipped with the technology of notifying defects in the file of the lawyer itself so that the lawyer may cure the defects and e-file it again.

Due to COVID-19, the Legal system has been forced to adopt virtual courtrooms and there is the widespread use of video hearings to provide justice in urgent matters which were on hold due to the pandemic. But work has to continue and legal designers in India are slowly but steadily attempting to revamp the judicial system.

This attempt to ensure a smooth and well-organized approach to justice is today an example of legal planning and frugal legal design thinking that catalyses inclusiveness and accessibility in the legal sector in India. Observing ahead, it can be said that the successful implementation of virtual courts would require both social and technological innovation, and design thinking can surely bring many benefits.

Future of legal design 

Law firms can reap wide-ranging benefits by adopting legal planning by revamping the traditional way of legal system functioning in India and rethinking the provision of legal services. Law firms are recognizing the need to focus on creating customized, client-centric legal solutions with end-users looking for a better user experience. This helps them in gaining deeper insight into their client’s needs. Since customer service is one of the top priorities for law firms, legal planning, and legal design can be used as a tool to develop more innovative solutions to client’s legal requirements.

The amalgamation of design ideologies into the legal profession pushes the legal industry to change with the times. With a giant shift in technology and the birth of ‘legal technology’, lawyers also need to change the way they provide service to their clients. 

The popularity of the legal design craze can be understood by its potential for addressing some of the global changes that affect the legal profession. These changes are the impact of technology on legal practice.  In India, many of the advocates and judicial staff are still not well versed with the use of technology. They require training. Because of the internet, people have access to a large amount of legal information without the assistance of a professional.  Because of the pandemic most of the daily practice of lawyers has also changed since most legal work, including legal research, has moved online, and sometimes it is work from home. With digitization here to stay, legal design is also going to stay and people in the legal industry are going to rely more and more on it for better client relationships and business revamping.

Design thinking has been adopted in many fields but it is only in the last decade that legal design began to emerge and draw legal professionals’ attention. 

It is also a new career path for lawyers that do not wish to limit themselves to courtrooms and law firms.

Although it is not clear as to who first formulated the concept of legal design, the Stanford Legal Design Lab is certainly a pioneer in the field.  Although the legal design is a relatively recent field, it is rising quickly and globally. The first international legal design summit was launched in 2016 in Helsinki and since then has attracted a larger audience in each subsequent year.  Legal design simply builds off the age-old adage which says that a picture is worth a thousand words.  Lawyers would do well to remember that, and legal design is here to help and hence stay. Here are some of the reasons why legal design is the call of the hour for lawyers and it is the way forward: 

  • It makes clients happier.
  • It will enable faster decision-making.
  • It will result in higher client satisfaction.
  • It will increase compliance with the law because of better understanding. 
  • It will promote innovation and value creation.
  • Applying legal design to practicing law increases cost-efficiency.
  • The legal design will help create better legal products and services.

Examples of legal design

The most well-known examples of Legal Design are in the field of visual contracts. This refers to the use of graphic illustration techniques to break down a contract in simple terms. The advantage of a visual contract is its ability to easily communicate information to users who may not be legally trained.

Shell marine lubricants

The legal team at Shell, to make its contracting process easier for non-English speaking customers, designed a visual contract, which was piloted recently. The legal team began with Shell’s marine lubricants business and they rewrote its general terms and conditions in plain English, added clear headings and visual elements, and reduced the word count by 38 %. Since the application of legal design techniques, it has led to a significantly faster renewal of hard-to-close accounts.

The effective communication of information in a manner that is easily understood by clients remains a pain point and an opportunity for legal redesign. The legal design offers many other opportunities apart from the realm of visual contracts for improvement in both external-facing and internal-facing functions for law firms.

Fast Company

Fast Company in its magazine reported on a project done by IDEO with Hogan Lovells to redesign how customers could give feedback in a more timely and comfortable manner. They used a scorecard system called Pathways which appreciably increased the frequency of feedback and comfort level of associates in proactively seeking feedback. These are only some of the examples of legal design applications but the real challenge of the application remains in how technology will change legal services. In the words of Marc Andreessen, “software is eating the world” and the legal industry is no exception.

Conclusion 

People think that lawyers are resilient to change and innovation. On the contrary, lawyers are some of the most intellectually inquisitive professionals and can come up with highly efficacious arguments and very creative solutions but legal matters move at such a lightning speed that it leaves the lawyers with little time to be creative.

The solution lies in the problem itself. It calls for designing better legal solutions to go the extra mile but without losing time and clients. Legal design is a user-centric practice and the tool to communicate relevant legal information, processes, and solutions effectively to the users. Cultivating this creativity in law can work wonders if the legal fraternity opens itself to change.

Although legal design can work wonders even when applied randomly by legal professionals, the real change can happen only with a more concrete and global change and application. The legal design focuses on just that by prioritizing the creation of new processes for courts, law colleges, and the entire legal system as a whole.

One doesn’t know for sure what the legal industry will look like ten years from now but with an increasing need for dialogues about the coming together of business, technology, and law we could see legal designers play a key role in giving a makeover to the legal industry.  This will be possible perhaps by in-sourcing disruptive innovation and change by law firms everywhere. That would be a sight to behold.

References

 

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

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

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Gender equality in public administration

By
Rachit Garg
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0
Image source: https://bit.ly/3AvFi1i

This article is written by Anusha Misra from NALSAR University of Law. This article looks into gender equality in public administration and its importance.

Introduction

The operations of the government have a considerable impact on daily living. They dictate how governments implement political and economic decisions, as well as how money is distributed and spent. As a result, for inclusive and gender-responsive public administration systems, equal participation of men and women, particularly at decision-making levels, is an essential condition. Gender equality, on the other hand, has not always been a guiding factor in public sector changes. Closing gender gaps in public administration is critical for inclusive development and democratic governance, as well as restoring trust in public institutions and improving the long-term viability and responsiveness of public policies, all of which are now prerequisites for achieving the global Agenda 2030. UNDP launched the global Gender Equality in Public Administration (GEPA) initiative in 2013, with the goals of: 

  1. Promoting women’s empowerment and increasing their participation and leadership in the executive branches of government; and 
  2. Contributing to up-to-date evidence of gender equality in public administration to aid informed policy and decision-making.

The GEPA initiative also intends to create national and international tracking tools for gender equality in government.

Women are underrepresented in decision-making positions in government, which tends to reinforce gender-biased policies, practices, and attitudes. In addition, there is a crucial shortage of data needed to advocate for change, establish policy, and track progress toward gender equality goals. To build a global tracking method for women in public administration, these data gaps must be filled.

Background

Governments unanimously endorsed the 2030 Sustainable Development Agenda in 2015, which recognised the role of gender equality and inclusive public administration and institutions in achieving more peaceful, prosperous, equal, and sustainable societies through Goal 16 on “promoting just, peaceful, and inclusive societies” and Goal 5 on “ensuring gender equality and women’s empowerment.”

The aggregate state-funded machinery, comprising agencies, policies, and services, in charge of the management and implementation of government laws, rules, and decisions is referred to as public administration. It enables governments to carry out their national goals and programmes, and it is critical for long-term growth. Many countries’ public institutions remain patriarchal and male-dominated, promoting negative and occasionally violent attitudes and practices. Despite the fact that there is no worldwide baseline on women’s engagement in public administration, UNDP research demonstrates that women are under-represented in leadership and decision-making positions. Women make up 45 percent of public administration on average, according to available data, however, there is wide diversity in women’s engagement between countries, ranging from 3 percent to 77 percent. The OECD countries have the highest average percentage of women in public administration (55.1%), while the Arab States have the lowest (35.9 percent ). 

When it comes to the percentage of women in decision-making positions in government, Latin America and the Caribbean (43.4%) have the greatest average share, while Africa has the lowest (25.1 percent ). Furthermore, only 20% of countries have achieved parity (50%) in the proportion of women in public administration decision-making positions. It is not only the moral thing to do, but it is also the most productive, to promote diversity, which includes equal access for women to leadership positions. Female engagement in public administration and decision-making roles is positively connected with economic development and gender equality in society, according to a recent UNDP and McKinsey study. It also implies that women’s equal participation and leadership contribute to a more effective and efficient government. Another recent analysis from the Wilson Center confirms these findings, concluding that “where there are more women in power, there is better governance, and where there is good governance, there are more women in power.”

The GEPA Initiative

The backbone of government and the principal instrument through which national policies and programmes are implemented is public administration. In an ideal world, public administration is guided by principles of fairness, accountability, justice, equality, and nondiscrimination, and the civil service should serve as a model of equality and leadership, including in decision-making. However, this is not currently the case globally, and despite the fact that the internationally agreed-upon aim of a minimum of 30% women in leadership roles applies equally to public administration and politics, women continue to be underrepresented in decision-making in government. 

In response to these challenges, UNDP launched the Global Initiative for Gender Equality in Public Administration (GEPA), which has two main objectives:

Supporting women’s empowerment and expanding participation and leadership in the executive branch of government; and 

Contributing to the availability of current information on gender equality in government, as well as evidence and analysis, in order to promote informed policy and decision-making.

Gender norms and the development of government administration

When it comes to the role of gender in government, there are often two competing opinions, one focused on efficiency and objectivity (“masculine”) and the other on problems of social justice (“feminine” approach). Prior to World War I, both ideas were used in a harmonic manner, with women and men working together to “highlight the ideals of classical pragmatism.” However, after the onset of the war, there was a change in American governmental administration. As the public administration system became more reliant on male-dominated bodies, the system became more tied to the efficient/objective approach.

Sociology, on the other hand, continued to promote social justice by focusing on “specialist knowledge based on the value-neutral search of abstract generalisations about human relations.” Women were relegated to “more congenial professions such as social work” as a result of this divide, while men remained leaders in finance and other scientifically-driven organisations. 

Lessons learned from women’s participation and decision-making in other areas of public life and the private sector 

Women’s growing participation in decision-making roles in public life has borne some dividends after decades of advocacy. Global attention, development assistance, donor backing, national lobbying, and other activities have all aided advancements in women’s political leadership. The Women in Politics 2012 report charted the progress of women’s political participation around the world, revealing that the number of elected female heads of state and government increased from eight in 2005 to 17 in 2012, with the number of female ministers rising from 14.2% in 2005 to 16.7% in 2012. The Scandinavian countries have the largest percentage of female ministers (48.4%), followed by the Americas (21.4%) and Sub-Saharan Africa (20.4%). Nonetheless, the Interparliamentary Union (IPU) claims that even if the improved 2013 rate of increase in the global average of female members of parliament (1.5 percent) continues, the global average of women members of parliament will continue to decline. 

Gender disparities persist in the private sector, both in developed and developing nations, at decision-making levels. Despite advancements in education and labour force participation, significant disparities in professional advancement persist. In OECD countries, women make up less than a third of senior management positions, and only one woman out of every ten men makes it to the boardroom. Recently, persuasive arguments have been made in favour of increasing the number of women on corporate boards and in executive roles in the private sector. The problem of women’s leadership in the private sector is gaining traction, thanks in part to a growing body of studies investigating the link between gender balance and financial performance. One significant argument is that, on average, if female labour force participation rates converged with male labour force participation rates by 2030 in OECD countries, GDP would increase by 12%. (GDP).

Main barriers to women’s equal participation in public administration 

It is apparent that governments around the world have yet to fully utilise the abilities and potential of women. Women must be able to enter and develop to leadership positions at all levels and in all sectors on an equal footing with men, if public administration is to be representative of society and inclusive of women. A growing proportion of women aspire to leadership on the same terms as men and have made the same decisions as men, but they continue to face challenges. 33 Increased representation in public administration, particularly in decision-making positions, is not always guaranteed, even in nations where women have equal access to education. Women’s under-representation in decision-making roles is frequently explained by misconceptions about women’s professional choices or a lack of expertise. The impact of systemic gender-based discrimination is not taken into account in these popular assumptions. 

There is no doubt that work-life balance considerations play an important role in women’s career decisions, and are also increasingly becoming a concern for some men. Individual capacities, competencies, and choices also play a role in women’s and men’s career paths, as well as their willingness and ability to take on responsibilities in both the private and professional spheres, but these are influenced by broader, systemic socio-cultural gender-based constraints and constructs for women. Despite varied findings on women’s and men’s job aims and expectations, gender differences arise. Furthermore, female CEOs were more than twice as likely as their male counterparts to postpone marriage or child-rearing in order to pursue a profession, with 12 percent of women opting not to have children compared to only 1% of males. While continuous efforts to promote women’s and girls’ access to education are a clear basic measure for advancing women’s equal involvement and decision-making, particularly in public administration, other issues must also be considered. 

Despite the fact that hurdles and challenges differ by location, country, socio-cultural setting, and political context, several common obstacles to women’s equal participation in decision-making roles have been found. These impediments and challenges, which are discussed below, exist both inside and outside of government and are interconnected.

new legal draft

Gaps in adoption and implementation of enabling legal and policy frameworks 

The first step toward gender equality and parity is to lay a solid legislative and policy foundation. These must comply with international and regional norms and include explicit references to gender equality in government, including in decision-making positions. In particular, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which is binding on all state parties, demands the systematic elimination of all forms of overt discrimination and the implementation of special measures to address historical imbalances. Discrimination is defined in Article 1 of CEDAW as any distinction, exclusion, or restriction made on the basis of sex with the effect or purpose of impeding or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field.

Discriminatory and unsupportive organizational cultures within public administration 

Gendered norms influence organisational cultures, which are often unarticulated, unwritten, and often unconscious, making them difficult to recognise and modify. Socio-cultural norms can impact gender roles and relationships in either a positive or negative way, as well as feed or deconstruct negative gender stereotypes. In some nations, it is often assumed that those who are prepared to commit and take on growing duties would be able to maintain a full-time job for the rest of their lives. A ‘business lady’ is typically associated with a woman who has decided not to have children, is a ‘poor mother,’ or is ‘too assertive and macho.’

Gaps in data and analysis 

There is a scarcity of data and analysis on the existence and efficacy of policies that promote women’s equal involvement and decision-making in government on a local, national, regional, and global level. In most nations, disaggregated data by gender and age is not readily available, and what is available (typically raw data) is rarely consistently analysed. The lack of comprehensive and comparable data on gender balance at the organisational level makes decision-making difficult and oversight harder.

Weak gender mainstreaming in public administration reforms 

Through supportive legislation and a modern and acceptable working culture, public administration reform programmes provide crucial entry points to promote gender equality. Gender concerns, specifically equal participation and sex in decision-making roles, are not addressed in public administration reform programmes, resulting in powerful opportunities to create a truly representative and responsive public administration capable of meeting the needs of a country’s population. 

Conclusion

In public administration, gender and diversity are essential themes. They remind the field to embrace diversity and recognise its impact on policies, initiatives, and outcomes. Divergent viewpoints on, and interpretations of, public service have gained popularity in recent decades as a result of increased awareness of the differences that exist. This is imperative if the discipline is to strive for the normative ideal of democratic governance. 

References 

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