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Cyber law vis-à-vis net banking in Indian sector

By
Oishika Banerji
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0

This article has been written by Devagni Vatsaraj, pursuing the Diploma in Cyber Law, FinTech Regulations, and Technology Contracts from LawSikho.

Introduction 

Net Banking is an electronic payment system, a service offered by banks/financial institutions. It allows an individual to undertake different kinds of transactions from the comfort of their home, through the internet. The development of the internet and technology has been enormous and has ventured into the field of banking. ICICI Bank was the first Indian Bank to facilitate Internet Banking, which was also then referred to as “Convenience Banking.” Though India has been digitized for quite some time now, it has taken a significant leap in the last year during the COVID-19. Digital appearance has grown considerably in the forms of payments, online meetings, video conferences, and webinars, etc.  During these times, we have seen a sharp rise in the number of frauds, white-collar crimes, phishing, scams, etc.; while reducing the use of technology may not seem like a viable option, the only workable recourse is following the precautionary measures, being alert and vigilant, so we are in a safe place. This article dwells upon the cyber risks associated with Net Banking, how the legislation is recognizing technology and making amendments to the existing laws; and suggests some of the solutions that may curb the cyber-crimes.

Net banking in India

As mentioned earlier, ICICI Bank began facilitating online banking services in 1996, followed by some other banks. On the opposite hand, the general public sector banks were reluctant to adopt internet banking practices. While net banking is not a separate business but an ancillary service provided by the banks/financial institutions; the depository financial institution of India took the lead in adapting to technology and taking banking to the doorsteps of its customers. Some banks blame it on the shortage of laws and regulations for them to go online while others are comfortable and not willing to switch from traditional banking methodology. It has always been a concern for the banks that if they provide a net banking facility, how they are going to be regulated; in the absence of proper laws, will they have autonomy in their affairs or will they be under the radar of the Reserve Bank of India (RBI).  The RBI had welcomed suggestions from the industry and adopted recommendations of the “Working Group on Internet Banking,” which examined three driving forces like Technology and its allied security issues, legal issues, and regulatory and supervisory issues. The RBI then gave some independence to the banks, while ensuring that for some issues, the banks strictly follow the provisions of the RBI.

The Indian government has been promoting “Digital India” to quite a far-reaching extent. This campaign has been initiated to provide the citizens with services through the mode of internet and thereby increasing the scope of connectivity throughout the country. To promote the use of internet banking technology, the Ministry of Finance implemented Public Financial Management Systems (earlier known as Central Plan Scheme Monitoring System), which is an element of the digital India campaign. The primary objective of Public Financial Management Systems is to establish an efficient fund flow system and establish a proper accounting network. Further, it has widened the scope of online payments amongst users.

Drawbacks of net banking in India

There are many forms of cyber frauds in the banking industry; almost every day we read headlines about people falling prey to the internet’s wrong-doers, losing their money while making payments, or availing other transactional services over the internet. Privacy and security of the customers are one of the biggest drawbacks of net banking. It cannot be denied that despite having specific statutes in place, like the Information and Technology Act, 2000 (IT Act) and Indian Penal Code, 1860 (IPC) for curbing cybercrimes, wrong-doing by fraudsters concerning net banking is increasing rapidly. There is a lacuna in the legal system and the administration for tackling these crimes and adjudicating the wrong-doer. It has been over a decade and yet we as a nation are not able to curb or even reduce the frequency of these crimes. The reason being that there is a gap between the training methodology provided; the corporate houses are easily able to hire good analysts to protect data and secure their channels, however, on the other hand, the government and other small banks lack these resources.

Security of net banking transfers becomes a major concern. The transactions made over the internet are flexible, effective but at the same time, can be untraceable, made anonymously, and due to lack of effective audit, facilitate immediate movement of money. Identifying and avoiding unauthorized and illegal activities becomes a major apprehension for the banking sector. Application of money laundering laws could also be inadequate for other types of electronic payment such that banks are exposed to the vulnerability of money laundering. Even after undertaking preventive measures like Know Your Customer (KYC) and Biometric Verification, the security and privacy concerns are major roadblocks for effective net banking in India.

Legal outlook on shortening the evils associated with net banking

Internet banking fraud can be defined as a mala fide illegal act by any individual to illegally obtain sensitive data or finances from banks/financial institutions via the internet. The IT Act primarily governs the process of net banking. Cyber frauds include phishing, malware attacks, identity theft, debit/credit card frauds, embezzlement, frauds relating to loans, fraud by forgery, etc. The substantive and procedural laws and rules governing the areas of banking, internet information technology are effective mechanisms to prevent such internet banking frauds. To counter such crimes, the IT Act has incorporated certain legal provisions creating legal rights and their corresponding duties to the bankers and the customer. Failure to adhere to such provisions would result in penal provisions under the Act. Apart from the relevant provisions of the IPC, the IT Act also provides punitive provisions for identity theft and cheating through technology under Section 66C and 66D of the IT Act along with a remedial right by way of compensation and penalty for breach of data under Section 43A and 72 of the same Act.

The Act imposes a legal duty that the bankers protect the sensitive personal data in the system which the banks/financial institutions own, hold, and operate. Any negligence would result in the payment of compensation for the victims. Vide its language, the legislation vide Section 43A and Section 72 of the IT Act, has laid down penalizing measures against the bank in the event of failure to maintain the confidentiality of its customers.

The Act comes down heavily on online fraudsters by the virtue of provisions Section 66C and 66D of the IT Act. Both the provision punishes acts like online frauds, computer attacks, and other digital frauds. The provisions of the IT Act that deal with net banking are:

  1. Hacking and Data Theft: 

Sections 43 and Section 66 of the IT Act penalizes activities such as data theft, hacking into a computer network, introducing and spreading viruses through computer networks, damaging computers or computer networks or computer programs, disrupting any computer or network, damaging or destroying information in a computer, etc. The maximum punishment for these offenses is imprisonment of up to 3 (three) years or a fine of Rs. 5,00,000/- (Rupees Five Lakh only) or both.

  • Umashankar Sivasubramaniian v. ICICI Bank (Civil Petition No. 2462/2008, Adjudicating Officer of Judicature of Chennai) – The complainant, Mr. Umashankar, alleged that his bank account was wrongfully debited on account of negligence on the part of the bank. The Bank contended that the case refers to phishing and blamed negligence on part of the complainant and was of the opinion that the matter cannot be brought under the purview of the IT Act and that the complainant must lodge an FIR. The Adjudicating Authority vide its order held that the ICICI bank had failed to establish that due diligence was exercised to prevent the breach, found that the Bank was guilty of the offenses made out in Section 85 read with relevant clauses of Section 43 of the IT Act and directed ICICI Bank to pay to the complainant a total sum of Rs. 12,85,000/- (Rupees Twelve Lakh Eighty-Five Thousand only). The bank had obtained a stay and an appeal was filed before the Cyber Appellate Authority.
  • Mphasis BPO Fraud (2005): In December 2004, four employees of Mphasis, working at an outsourcing facility in India, obtained PINs from four customers of the company’s clients based in the U.S. They were not authorized to do so; but they impersonated that to have the authority and with details obtained, they opened new bank accounts using false identities. Within a couple of months, they used the credentials and transferred all the money from the bank accounts of the clients (in the U.S.) to their new accounts at Indian banks. By April 2005, the Indian police had been informed by the U.S. bank of the scam, and post-investigation, the individuals involved in the scam were arrested. It was informed that an amount of $426,000 was stolen, out of which $230,000 was recovered. The arrests were made successfully when these fraudsters tried withdrawing the cash from the Indian bank account. The Court held that the nature of the crime was that of unauthorized access to commit fraudulent transactions and hence, Section 43(a) was applicable.

2. Identity theft and cheating by personation: 

Section 66C of the IT Act prescribes punishment for identity theft and provides that anyone who fraudulently or dishonestly makes use of the electronic signature, password, or any other unique identification feature of any other person shall be punished with imprisonment of either description for a term which may extend to 3 (three) years and shall also be liable to fine which may extend to Rs. 1,00,000/- (Rupees One Lakh only.) 

3. Section 66D of the IT Act prescribes punishment for cheating by personation by using computer resources and provides that any person who by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend to 3 (three) years and shall also be liable to fine which may extend to Rs. 1,00,000/- (Rupees One Lakh only)

4. Section 43(h) of the IT Act: 

Section 43(h) read with section 66 of the IT Act penalizes an individual who charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network.

5. Section 65 of the IT Act: 

Section 65 of the IT Act prescribes punishment for tampering with computer source documents and provides that any person who knowingly or intentionally conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy, or alter any computer source code used for a computer, program or network, computer system, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment for up to 3 (three) years or with a fine which may extend to Rs. 2,00,000/- (Rupees Two Lakh only) or with both.

6. Section 67C of the IT Act: 

Section 67C of the IT Act requires an intermediary to preserve and retain such information as may be specified for such duration and in such manner and format as the Central Government may prescribe. The section further provides that any intermediary who intentionally or knowingly contravenes this requirement shall be punished with imprisonment for a term which may extend to 3 (three) years and also be liable to a fine. An intermediary concerning any particular electronic record has been defined in the IT Act to mean any person who on behalf of another person receives or stores or transmits that record or provides any service concerning that record.

7. Section 73 of IT Act:

Read along with Section 3 that defines and explains electronic signature (the word electronic signature was earlier defined as digital signature, and was amended vide Information Technology Amendment Act, 2008), this Section states that no person shall publish an Electronic Signature Certificate or otherwise make it available with the knowledge that the certifying authority has not authorized it and/or the license has been revoked/suspended. In these circumstances, the person may be imprisoned for a term that may extend to 2 (two) years and shall also be liable to a fine which may extend to Rs. 1,00,000/- (Rupees One Lakh only) or both.

8. Section 75 of the IT Act:

This section grants universal jurisdiction for offenses committed by a person not authorized to do so, who attacks the computer system under operations in banks in India by hacking either by operating within India or outside India. The Internet has no boundaries; but as undertaken in Mphasis, banking frauds are usually committed not only within India but also outside India. Therefore, it becomes difficult for the prosecuting agencies to initiate actions concerning jurisdictional issues. The IT Act by this Section, has eased and have provided relaxation to the adjudicating agencies to prosecute criminals that are not within their jurisdiction (subject to one of these factors being present; the criminal in the citizen or the victim is the citizen, the computer source tampered is in India or the funds transferred was Indian currency, etc)

With the introduction of provisions focusing on data privacy, information security, making electronic signatures neutral, redefining the role of intermediaries, and recognizing the role of the Computer Emergency Response Team; the Information Technology Amendment Act, 2008 has widened the scope for the security of net banking transactions. Yet there is still scope to streamline the act to define provisions and their consequent penalty (in cases of breach of the provision) concerning internet banking.

Way forward

It is pertinent to measure here that the government of India to further insulate the mechanism for protection of personal data has tabled a bill called the “Personal Data Protection Bill 2019” and the same is under a consultative process. The bill aims at protecting the privacy of individuals relating to personal data under the guidance of a regulatory body concerning the data protection authority of India. Privacy is regarded as a Fundamental right by extending the scope of Article 21 by the Hon’ble Supreme Court in Puttoswamy’s case. Post this case, privacy was considered an element of the right to life and the banks/financial institutions found it difficult to identify their online customers as cards issued by the institution and storing of sensitive personal data could not be made mandatory. The internet banking service accepts the requests for the opening of accounts and has made the procedure very simple, faster, and easier. 

Some of the options to be kept in check by the banks/financial institutions as well as the customers to be safe against these crimes are:

  1. To install good antivirus software for the computer, tab, laptop and to protect the servers. This protects the devices and data from internet threats, viruses, and malware. One must always scan any external drive for viruses, before inserting it into the device. Another precaution to be undertaken is to download any software, application, anti-virus, etc. only from a genuine and determining source.
  2. One must also keep in check that they enter into net banking transactions through their device or devices of someone known to the individual. Using a third party’s electronic device for banking should be avoided. If used, it is to be checked that the credentials do not get saved on the server, and to clear the history and caches is important. Using credentials that are hard for people to guess. Also, it is always best to use a different password for banking than one would usually use for social media, shopping, etc. It is also advisable to use different passwords for different banks.
  3. The prosecuting agencies have set up dedicated cybercrime cells across all the districts in India for effective redressal of the grievances, however, each Bank also should incorporate their redressal cell, that could identify internet banking frauds happening to their banks and can at regular intervals, forward such reports and complaints to the cyber cell.  
  4. One must avoid opening links sent from undetermined sources. Choosing the correct website is important – many fake websites on the internet look like internet banking sites, if one falls for a fake one, an individual’s credentials are jeopardized and they can be a victim of a phishing attack.

Conclusion

With the advancement of technology, the customers can undertake banking transactions without much trouble, in their comfort, anytime and anywhere; while this is slowing down if not the disappearance of the traditional banking system, it cannot be denied that crimes and frauds associated with net banking transactions have witnessed a rise. Therefore, it has become necessary for the government to evolve a mechanism to control and eliminate online frauds by inculcating security measures in e-banking transactions. For this reason, the RBI has set up and has formulated mechanisms for all the banks/financial institutions under its control through the protocols set up by them. The legislative measures by the virtue of the said relevant provisions of law as discussed hereinabove clearly leads towards a balance mechanism together with stringent punitive measures to discourage online crimes and imposes heavy restraint from committing online fraudulent activities and such other related criminal acts either within the jurisdiction of India or any part of the world. These measures themselves pose a hurdle to the person who enters into the banking transactions with a mala fide intent to enrich themselves unjustly. The punitive provisions available under the act are in addition to the penal provisions under the Indian Penal Code. To conclude, the working and security mechanism evolved in the net banking transactions though has come a long way, it needs to be updated and evolved promptly; for the Indian economy to rise and strengthen, to tackle the risks and frauds to be kept in check. 

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Growing need for ADR in light of some recent notable case laws

By
Rachit Garg
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0

In this article, Aparna Jayakumar, from GGSIPU, She throws an insight on alternative dispute resolution (ADR) as an alternative recourse to litigation.

Introduction 

The use of alternative dispute resolution mechanisms to expedite the administration of justice is an important concern. The first step was taken in India in 1940 when the first Arbitration Act was enacted. However, the provisions could not be completely enforced due to several loopholes and problems in the law.  However, several years later, in 1996, the Arbitration and Conciliation Act, which was based on the United Nations Commission On International Trade Law Model (UNCITRAL model, hereinafter), was passed. Sufficient provisions in the field of Lok Adalats have been developed and amended to assist the rural and commoner segments in making the most of this specific alternative dispute resolution mechanism in India. 

It is difficult to eliminate disagreements and disputes in any culture, and human society evolves as a result of contradictions between people. India is a sovereign, socialist, democratic, secular and republic. The Constitutional aim is to establish an equal society and to provide justice, social, economic, and political protection to all of its people. It is the responsibility of the state to ensure citizens’ access to justice by providing judicial and non-judicial dispute resolution forums that provide timely and meaningful justice and protection of their legal and fundamental rights. In violation of Articles 14 and 39, the State should violate this fundamental principle.

Alternative dispute resolution – an indispensable need of the Indian legal system 

About ADR

Alternative dispute resolution (ADR) contains an important tool for providing timely and cost-effective justice; it also has the ability to reduce the massive backlog of cases. ADR’s primary methods are non-judicial in nature. Alternate dispute resolution (ADR) refers to a variety of methods for resolving disputes outside of the traditional judicial system, such as mediation, arbitration, and conciliation.

Modes of alternative dispute resolution in India

In India, the following modes of ADR are used:

Arbitration

The concept of ‘arbitration’ in Section 2(1)(a) is a verbatim reproduction of Article 2(a) of the Model Law: ‘arbitration implies any arbitration, whether or not performed by a permanent arbitral institution.’ It is a process in which the dispute is referred to as an arbitral tribunal, which makes a binding decision (an “award”) on the dispute. It is a private, usually informal, and non-judicial dispute resolution process. The principle of arbitration has four requirements: an arbitration agreement, a dispute, a referral to a third party for decision, and an award by the third party. Nature is that it is a venue chosen by the parties with the purpose of acting judicially after considering relevant facts before it and the parties’ submissions. As a result, if the preferred venue is not expected to behave judicially, the procedure is not arbitration.

Mediation

Mediation is a mechanism in which the mediator, an impartial third party, works with the parties to reach an agreement that is agreeable to all of them. The primary goal of mediation is to give the parties the opportunity to discuss, converse, and explore solutions with the assistance of a neutral third party in order to decide whether or not a solution is feasible. Mediation is the process of negotiating with the help of a third party. In comparison to an arbitrator or a judge, the mediator does not have the authority to enforce a decision on disputing parties. Regardless of the absence of ‘teeth’ in the negotiating process, the presence of a mediator changes the nature of negotiations. The principle of mediation is not new to the Indian legal system, as various aspects of mediation have existed. The Arbitration and Conciliation Act of 1996 is written in such a way that it is primarily concerned with business transactions involving the common man rather than the common man’s interests.

Conciliation

Conciliation is described as “a process in which a neutral individual communicates with the parties to a potentially resolved dispute; a relatively unstructured form of dispute resolution in which a third party encourages dialogue between parties in an effort to help them settle their differences.” This is an effort by a third party, chosen by the litigants, to reconcile them either before or after they return to litigation (whether in court or by arbitration). Conciliation attempts are usually focused on showing each side the opposing sides of the conflict in order to bring each side together to find a compromise. 

Negotiation

Negotiation-communication with the aim of persuasion- is the dominant form of conflict resolution. When compared to procedures involving mutual third parties, it has the benefit of allowing the parties to manage the process and the solution. Negotiation does not have constitutional approval in India. Negotiation is the self-counselling of the parties in order to settle their disagreement. Negotiation is a mechanism with no set rules but a consistent pattern.

Case laws 

Cheran Properties Ltd. v. Kasturi and Sons Ltd. & Ors.

Although recognizing the concept enunciated in Chloro Controls that a non-signatory could be bound by an arbitration agreement in such situations, the Court held that the community of companies doctrine is primarily intended to promote the fulfilment of a mutually held intent between the parties, where the circumstances suggest that the intent was to bind both signatories and non-signatories. The effort is to dig up the true nature of the business agreement and to unravel from a layered system of commercial contracts, and aim to bind someone who is not officially a signatory but has assumed the duty to be bound by the acts of a signatory.

The Supreme Court’s decision exemplifies the court’s strategy to expedite the execution of arbitral decisions by identifying and utilising powers of competent fora other than civil courts to carry out ordered remedies. The power of NCLT to implement an award that commanded the transmission of shares was discovered and recognised by the Court in this instance. It’s worth noting that this authority would be limited to specified cases under the Companies Act that necessitate approaching the NCLT for execution. 

The Court has ruled out a potential additional layer of arbitral award execution as a court decree, i.e., approaching the court that has jurisdiction over the arbitral proceedings first, then the court within whose territory the assets are located or the appropriate remedy (as in the case) can be sought. By declaring that the NCLT can enforce arbitral judgements relating to the transmission of shares, the Court has taken a dynamic approach. However, it is unclear how courts would handle circumstances in which an arbitral ruling authorises remedies that can be carried out by multiple competent fora. 

Nonetheless, this is a positive change, especially in light of another recent Supreme Court decision that said that execution proceedings can be started anywhere in the country without the need for a transfer decree from the court that had jurisdiction over the arbitral proceedings. The Supreme Court’s enforcement-friendly approach will undoubtedly make it easier to carry out arbitral rulings in India and encourage a fast-paced environment.

new legal draft

Uttarakhand Purv Sainik Kalyan Nigam Ltd. Vs. Northern Coal Field Ltd

The Supreme Court held that the question of restriction would be determined by an arbitrator based on the doctrine of kompetenz – kompetenz enshrined in Section 16 of the Arbitration & Conciliation Act, 1996 (Arbitration Act) and the legislative intent to limit judicial interference at the pre-reference level. It also reaffirmed that the Arbitration Act’s statutory purpose is for party autonomy and limited judicial intervention in the arbitration process. It was noted that the Arbitration Act’s regime states that once an arbitrator is called, the arbitrator must resolve all objections and issues. The Supreme Court observed that the issue of limitation is a jurisdictional issue that should be determined by the arbitrator in accordance with Section 16 of the Arbitration Act, rather than by the High Court at the pre-reference point in accordance with Section 11 of the Arbitration Act. It also stated that once the arbitration arrangement is not in question, the arbitrator must resolve all issues, including jurisdictional issues.

The 2015 Amendment Act, according to the Apex Court, made a fundamental alteration in the appointment procedure under Section 11: the scope of authority under subsection (6A) of Section 11 was limited to examining the presence of the arbitration agreement at the preference stage. The Court is now only compelled to consider the existence of the arbitration agreement according to the legislative mandate contained in Section 11(6A) of the Act. Section 16, which enshrines the Kompetenz­ Kompetenz concept, leaves any other preliminary or threshold questions to be addressed by the arbitrator. The doctrine of “Kompetenz­Kompetenz,” also known as “Compétence­Compétence” or “Compétence de la Reconnaissance,” states that the arbitral tribunal has the authority and competence to rule on its own jurisdiction, including determining all jurisdictional issues and the existence or validity of the arbitration agreement.

This theory is meant to limit judicial intervention so that the arbitral procedure is not stymied at the outset when one of the parties raises a preliminary objection. The notion of kompetenz­ kompetenz is, however, susceptible to an exception, which is when the arbitration agreement is challenged as having been obtained by fraud or deception. This exception would also apply in circumstances where the parties were in the middle of a negotiation and had entered into a draught agreement as a prelude to signing the final contract. When considering the case of M/s Indian Farmers Fertiliser Cooperative ltd. versus Bhadra Products, the Apex Court stated that the issue of limitation is a jurisdictional issue that must be addressed by the tribunal under Section 16 of the Act.

Konkan Railways Corp Ltd Vs. Mehul Construction Co, AIR 2000

A three-judge bench of the Supreme Court ruled that the Chief Justice’s order appointing arbitrators in domestic arbitrations and the Chief Justice of India’s order in international commercial arbitrations shall be considered to have been made in his administrative capacity, and the aggrieved party could challenge the decision under Section 16 of the Arbitration Act, for challenging the jurisdiction of the tribunal.

Goel Construction Co. Pvt. Ltd. v. ICAI O.M.P. (T) (Comm.)

The Court found that the Arbitrator was under the impression that he was not required to reveal the other applicable aspects of the Act’s Sixth Schedule. Furthermore, the Court determined that compliance with the major requirements of the said Schedule is insufficient, and ordered the Arbitrator to provide full disclosure in accordance with the Act’s Sixth Schedule.

Mahanagar Telephone Nigam Limited Vs. Canara Bank & Ors

Invoking the theory of “Group Companies,” the Supreme Court allowed a non-signatory to an arbitration agreement to engage in the proceedings. A non-signatory may be bound by an arbitration agreement if the parent or holding firm, or a member of the group of companies, is a signatory to the arbitration agreement and the non-signatory party on the group has been involved in the negotiation or performance of the commercial contract or has made comments indicating its intention to be bound by the contract, according to the Supreme Court. 

The related contracts will bind and support the non-signatory as well. The Supreme Court found ample historical precedent, in this case, to conclude that the parties agreed to bind the non-signatory party to the arbitration proceedings.

Conclusion 

Based on the above analysis, it is possible to infer that the constitution contains the fundamentals of an alternative conflict settlement process. The state has a legal obligation to pass legislation and have an alternative dispute resolution process. The legislature has recognized this, as well as the implementation of alternative dispute resolution and alternative dispute resolution mechanisms by different statutes. There is a strong desire to create an alternative model of access to justice. 

Alternative dispute resolution processes are said to be versatile, inexpensive, fast, and less formalistic, making them a viable alternative to court-based adjudication. Aside from the court process, there are alternative conflict resolution options for simple disputes at the discretion of the parties. India is making strides for judicial equality. The ADR structure serves as a stepping stone for both parties to ascend the justice ladder. The ADR movement must be pushed forward at a faster pace. Apart from delivering instant justice at the doorstep at no expense, this would significantly reduce the burden on the courts. If they are effectively implemented, they will accomplish the purpose of providing social justice to the disputing parties.

References

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What to do if someone is using your morphed images/video to blackmail you

By
Rachit Garg
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0
Image source - https://bit.ly/2SCu5LB

This article is written by Oruj Aashna, from the University of Calcutta. The article addresses the issue of photo morphing and its subsequent blackmailing. It will set forth the necessary steps one must consider when trapped in such a situation.

Introduction

Photo/video morphing is a method of changing an image or shape by the seamless transition. The image is changed to something which is not identical to the original image. Sometimes it’s difficult, even to identify any glitch on the morphed image. However, it depends on the software by which the image is morphed. It’s a fantastic technique, primarily used by the animation and film industry to edit, but the technology also comes with a contrary side. It can be a tremendous tool for one, but for another, it’s a tool for an opportunity to harm someone. 

Morphing once used by the animation and film industry is so readily available now that anyone who has internet access can use it. It takes just a few clicks to download a morphing application and a moment to deceive someone. Perhaps there is no bar or regulation on the access; it is the intention and purpose determining its boundary.

Morphing images of celebrities is very common, mainly talking about photo and video morphing. There are plenty of cases filed by celebrities every year for such instances. Recently, in actress Remya’s case, a morphed image of the actress was circulated on porn sites and various other social media platforms. The Malayalam actress confronted the situation and complained in the cyber cell against such propagation. The instant case illustrates how one can combat a situation relating to morphed image/video. Whatever the reason persists, personal or otherwise, deceiving the image and blackmailing through it is an offence and comes under cybercrime.

What constitutes blackmailing

Blackmail always involves threatening to expose something harmful with the goal of getting something in return. If someone threatens to reveal something hostile or humiliating about you in exchange for money or another form of favours, they are blackmailing you. Similarly, If the person possessing a morphed image or image that is superimposing one face to someones else’s body, and subsequently tries to expose the image on the internet or asks for any favour which may cause harm to you (mental and physical) or/and wrongful gain to the person, it’s blackmailing.  

Steps to take when someone is blackmailing you with your morphed images 

Keep a record of conversation as evidence

  • Person blackmailing you might have sent you the morphed image or had a conversation in the context of threat. These images or conversations will be supported as evidence. Record the conversation rather than just taking screenshots. In case the offender is blackmailing on a video call, screen record it. For applications like Snapchat, record it using an appropriate recording application or capture a picture of it.
  • In case an anonymous person is trying to blackmail you, keep conversations online. Internal data attached to the online message will help find the message’s location more quickly. Additionally, try to make conversation on messaging apps based in India. As per the police authority of the cyber cell police station, they find themselves incapable of resolving the case when the servers of social media sites are based outside India as they are out of the ambit of Indian law. This is to note that it is difficult to track the originator of the message in the case of WhatsApp. 

Do not be an easy victim

  • Do not engage with the blackmailers as it will backfire all the solutions. The blackmailer may sense himself/herself/themself more potent in the situation, possibly resulting in incensed demands. The blackmailer may also come up with a claim that the accuser was also active in this act and that it was consensual. 
  • No engagement with the blackmailer also means ‘no negotiation’. Negotiating or giving in to their demands just gives offenders more power – and they are likely to use this power to make even more threats.

File a complaint 

  • Cybercrimes come under global jurisdiction; it means that one can file a complaint anywhere in India irrespective of your exact location. Reach out to your nearest cyber cell and report information of the blackmail to the authority present there. 
  • One can also file an FIR in a local police station with a separate cyber cell office. If your application gets rejected, proceed to the Judicial Magistrate in the area where the application is filed.

Online medium to file a complaint 

  • The Ministry of Home Affairs has launched an online National Cyber Crime Reporting Portal to file a report and track all cybercrime convenience. There are two types of cases filed in the said portal: women-related cases and other crimes (related cybercrimes). The victim will have to submit information such as name, state, platform where the incident occurred, an attached document of evidence to support the allegations, information related to the suspect, etc.
  • Even though the portal provides the option ‘reason for the delay in reporting’ if the victim delays in reporting, it’s appropriate if the report is filed in the initial stage of blackmailing.

Involve a lawyer expert in a cyber domain 

  • One of the primary reasons for involving a cyber lawyer is to prevent morphed images/videos from being published. They can also put a short end to blackmail and threats.
  • An experienced lawyer in the cyber division can also help unscrew the identification of an anonymous/unnamed blackmailer, eliminate damaging online content, and establish your case. Finally, they can sue extortionists and online harassers for pecuniary damages for the harm the harasser causes.

Other ways to avail for support or help

If you have any reason to assume your blackmailer is in or from a foreign country, you can contact the International Criminal Police Organization. It is an organization that supports worldwide police cooperation and crime reporting. 

Many social media platforms also provide assistance and ways to notify blackmail via their platform. For instance, Instagram’s help page enables users to report the case to the social media authorities. Furthermore, blackmail threats received over email can be reposted on these portals:-

There are online application tools (like Fotoforensics and Photo Police) that help detect the editing details, photoshopped images, or morphed images. This software is developed because the morphing application has made it difficult for an ordinary person to distinguish between the fake and original photo.

Legal provisions that safeguard you

Section 67 of the Information Technology Act, 2000

  • Section 67 of the Information Technology Act, 2000 imposes criminal liability on release or disclosure of any material which is inter alia lascivious or engages to the prurient interests. The punishment on the first sentence is imprisonment up to three years and with a fine of rupees five lakhs, and subsequent convictions to be punished with imprisonment up to five years and fine which may extend up to ten lakh rupees.
  • If the offender is a habitual offender, i.e., if the offender tries to morph and harasses again despite action against him/her, the punishment will be doubled.

Section 292 of the Indian Penal Code, 1860 

  • According to Section 292 of the Indian Penal Code, 1860, a book, pamphlet, paper, writing, drawing, painting, representation, figure, or any other object shall be deemed obscene if it is lascivious or appeals to the prurient interest or its effect (is) such as to tend to degrade and corrupt a person. 

Section 509 of IPC (Insult to the modesty of a woman)

  • Section 509 penalizes abusing the dignity of a woman. This Section is frequently used in consonance with other sections of IPC involving sexual assault. As per this Section, whoever intends to insult the modesty of any woman by using any word, sound, gesture, or exhibit any object, intentionally that intrudes upon the privacy of such woman is punishable. 
  • In the case State of Punjab v. Major Singh (1996), it was held that any act done in the presence of a woman that is indicative of sex according to the common notion of mankind is covered under this Section. To be more precise in the context of the topic, any message that conveys lascivious or lustful comments upon the body of a girl and circulating the image is covered in the said Section. The punishment for the act of damaging the dignity of a woman under this Section is imprisonment up to one year, or fine, or both.

Section 499 and 500 IPC (defamation)

  • Defamation is one recourse a victim can take in such a situation. According to Section 499 of IPC, either creating or publishing ostensibly defamatory remarks about a person in the form of words or writing or visible representations that potentially harm a person’s reputation is culpable or punishable. Therefore, if a person is trying to harm someone’s image or reputation, it will be considered an offence and will come under this section. 
  • The victims can also choose to take support under Section 500 of the Indian Penal Code. Section 500 of IPC provides the penalty for defamation, which can be simple imprisonment for up to two years with or without a fine.

Conclusion

It is very crucial as a responsible citizen to identify and be aware of what is considered an offence in the eyes of law. If there exists any offence, it is backed by punishment. People panic and take the wrong step because of a lack of awareness. If something is wrong, there is always a solution too. Just because a person has threatened to be silent does not mean you have to. Raising the voice against wrong is not perilous; silence is. If one is getting blackmailed, there are multiple legal options available. Blackmailing is against the law, no matter where you live. The most crucial aspect here is to question the environment and societal conditions that gave rise to such a rigorous act.

References 

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The defence of justice at trial : an insight

By
Rachit Garg
-
0

This article is written by Ms Reet Balmiki, from NALSAR University of Law. This is an exhaustive article that provides an insight into statutes governing criminal trials and their origin, the rights to be protected during the trial and the trial proceedings as per Indian law. 

Introduction 

“True peace is not merely the absence of war, it is the presence of justice.” 

-Jane Addams

A crime is the commission or omission of an act that is prohibited and punishable under criminal law. It is deemed to be socially harmful and dangerous. In modern societies, it is the government that is responsible for maintaining order in society. To ensure order and justice, the government enacted criminal law, developed police systems, courts and prisons. 

Whether the criminal act was committed and should be punished is determined through the procedures of a criminal trial. A trial refers to a meeting in the court of law where a judge is presented with the relevant evidence and decides the guilt or innocence of the person accused of committing the crime. The procedure for criminal trials in India is well established under the statutory frameworks. The laws governing the substantial and procedural aspects of criminal law in India are – 

  1. Indian Penal Code, 1860 (IPC)
  2. The Code Of Criminal Procedure, 1973 (CrPC)
  3. Indian Evidence Act, 1872 (IEA) 

History of the procedures 

During the British raj in India, the British government brought in numerous changes which influenced the country’s legal system considerably. As the system of criminal justice was highly unsatisfactory, they appointed the Indian Law Commission in 1834 to study the existing laws and to recommend legislative reforms to clarify, consolidate and codify particular branches of law. They prepared a draft penal code which was enacted in 1860 and continues to govern the criminal law of the country. The Law Commission also wrote the Code of Criminal Procedure, 1861, which led to the formation of several procedural laws of the country. 

The enactment of the Indian Jury Act led to the official arrival of jury trials across India. Despite popular opinions being against the jury system since the British rule, the need to safeguard the fundamental right of a British citizen to a trial by a jury ensured the survival of the system until independence. The formulation of the Indian Constitution marked the beginning of the decline of the jury system in India. However, the practice was still followed till 1974. After which, the Code of Criminal Procedure removed all references to the jury trials. It is believed that the famous case of K.M.Nanavati v. State of Maharashtra (1961), expressed decades of anti-jury rhetoric and judge’s distrust of common people, which led to the eventual decline of the practice in India. What followed was a transition in the procedure of trials, where the jury was replaced by a judge. 

Rights to be protected during the trial 

There are several rights guaranteed to both the victim and the accused which are to be protected as they impact the trial proceedings to be conducted. The absence of such rights would lead to the denial of a fair trial which is highly unjust to the victim, accused and society.

In order to avoid injustice against the accused and uphold the principle of natural justice, the accused has been guaranteed several rights under the CrPC and the Indian Constitution. These include-

  1. Right to be furnished with a copy of a police report and other documents when proceedings have been instituted on the police report (guaranteed under Section 207 of CrPC).
  2. Right to be supplied with copies of statements and documents to accused in other cases triable by Court of Session (guaranteed under Section 208 of CrPC).
  3. Right to be discharged when there is no sufficient ground for proceedings (guaranteed under Section 277 of CrPC).
  4. Right to present evidence and defend his/her case (guaranteed under Section 243(1) of CrPC).
  5. Right to be present when evidence is taken (guaranteed under Section 273 of CrPC).
  6. Right to be defended by a pleader of his/her choice (guaranteed under Section 303 of CrPC and Article 22(1) of the Constitution).
  7. Right to a pleader at the expense of the state in case of lack of means to engage a pleader (guaranteed under Section 304 of CrPC).
  8. Right to cross-examine a witness (guaranteed under Section 311 of CrPC).
  9. Right to a free and speedy trial (guaranteed under Article 21 of the Constitution)
  10. Right against double jeopardy and self-incrimination (guaranteed under Article 20 of the Constitution).

Similarly, in order to ensure proper justice to the victims and society, several provisions have been enshrined to protect the rights of the victims:

  1. Right to be heard during the criminal proceedings (guaranteed under Article 21 and Article 14 of the Constitution).
  2. Right to attend and be informed about the proceedings and their outcomes.
  3. Right to access to justice and fair treatment (guaranteed under Article 21 of the Constitution).
  4. Right to privacy (guaranteed under Article 21 of the Constitution).
  5. Right to a speedy trial (guaranteed under Article 21 of the Constitution).
  6. Right to seek compensation (guaranteed under Section 357(1)(b) of the CrPC at the discretion of the court).
  7. Right to a fair trial (guaranteed under Article 21 of the Constitution).

After understanding the rights are to be protected, it is now essential to further look at the types of criminal trials and the steps involved in the trial procedure mentioned under Indian criminal law. 

The trial procedure 

Types of criminal trials 

The CrPC provides for different types of criminal trials based on the nature of the offence committed. The trials can mainly be classified under four types- 

The trial of warrant cases by the Magistrates

According to Section 2(x) of CrPC, a warrant case is one related to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. The cases falling under this type are related to serious criminal offences. The trial procedure begins by filing an FIR at the police station or a complaint before a magistrate. 

The trial before a Sessions Court 

Under warrants trials, the cases of higher gravity are tried by the Sessions Court while the cases of lesser gravity are dealt with by the magistrate. As per Section 209 of CrPC, a Sessions Court cannot take cognizance of the case by itself. It has to first be brought before a competent Magistrate Court. From there, if the offence is to be exclusively tried by the Sessions Court, the Magistrate can commit the case to the Sessions Court for trial.  

The trial of summons cases by the Magistrates

According to Section 2(w) of CrPC, a case that is not a warrant case falls under this type. These cases include offences that are punishable with imprisonment of less than two years. However, a magistrate can convert a summons case into a warrant case if he believes the case to not be a summons case. 

Summary of trials 

Summary trials are trials where the cases are disposed of speedily and the summary of the trial is recorded. The procedures of the trials are simplified to expedite the process. These trials involve cases related to small offences. They provide speedy justice and reduce the caseload on the Judiciary.

Stages of a criminal trial

To gain a holistic understanding of the trial process, it becomes important to understand what happens after an offence is committed, the investigation procedure followed under CrPC and how the case lands before the court where the accused is given a fair trial to prove their innocence. For better understanding, this article divides the entire trial into three stages – pre-trial stage, trial stage and post-trial stage. 

Pre-trial stage

Commission of an offence 

For a criminal trial to occur, the first requirement is the commission of a criminal act to be punishable under the Indian Penal Code or any other legal statute passed by the Indian Parliament. The offence can be cognizable or non-cognizable. Under cognizable offences, a police officer has the authority to make an arrest without a warrant and to start an investigation with or without the permission of a court, whereas it is not so for non-cognizable offences. 

Bringing the offence to the notice of the police or before the magistrate

When the offence brought to the notice of the police is cognizable, the police register a First Information Report (FIR) under Section 154 of CrPC and put the case into motion. However, if the offence is non-cognizable, then a report is registered by the police under Section 155 of the CrPC. In such cases, the police do not have the authority to make an arrest or start an investigation in the matter without the order of the magistrate. 

To bring the offence before a magistrate, it has to be done in the form of a complaint as defined under Section 2(d) of CrPC. Once this is done, the magistrate may dismiss the complaint under Section 203 due to lack of sufficient ground or may issue a process under Section 204. 

The investigation by the police 

The next step after the issuing of an FIR is the investigation by the police officer. This is done in order to collect facts, analyze the circumstances and statements made and to collect evidence for the case. The findings of the investigation are submitted to the Magistrate in the form of a report. 

In cognizable offences, there is no permission required to commence the investigation. However, in non-cognizable offences, prior approval of the Magistrate is essential for this purpose. 

Anticipatory bail

In cases where the offence committed is bailable, after the registration of the FIR, the accused may make an application for an anticipatory bail in the Sessions or High Court. If the bail is granted by the court, the accused cannot be arrested. However, if the bail is rejected, an arrest can be made. 

The arrest of the accused 

In the case of cognizable offences, a direct arrest can be made by the police without a warrant, post the registration of the FIR. However, in the case of non-cognizable offences, prior approval from the Magistrate is necessary to arrest the accused. 

Production of accused before the Magistrate

According to Section 57 of CrPC, no person should be detained by the police for more than 24 hours without a warrant. It is required that the accused be produced before the magistrate having the relevant jurisdiction, within 24 hours of the arrest. 

Remand by Judicial Magistrate

However, Section 57 also mentions that in cases where the investigation is not completed within 24 hours of the arrest, the magistrate can extend the detention by passing a special order under Section 167(2) of CrPC. Therefore, while the procedure requires that the accused has a say before the Magistrate, under special circumstances the procedure allows an extension of the detention period. 

Filing of the final report

After the completion of the investigation, the police are required to file a final report before the magistrate as per Section 173 of CrPC. This concludes the investigation and presents the relevant evidence before the Magistrate. The final report submitted by the police can be of two kinds – a closure report and a charge sheet. 

The closure report, as per Section 169, indicates that the investigating agency feels that no prima facie case is made out to prove that the alleged offence has been committed by the accused. Under this case, the Magistrate may accept the report and close the case or may direct further investigation into the matter. 

The charge sheet is filed in court under Section 173(2) in cases where there is sufficient evidence to proceed with the trial. This is done when the investigating agency feels that there exists certain evidence against the accused. The report consists of the details of the complete investigation and the charges levied against the accused. 

Cognizance of offence by Magistrate

Once the charge sheet is filed by the investigating agency, the Magistrate will take cognizance of the offence under Section 190 and issue a warrant under Section 204.

Service of summons/warrant to accused

After the cognizance of the case by the magistrate, it may issue a summons or warrant to ensure the appearance of the accused in the court during the trial. 

Summons are issued under the seal of the court which is required to be conveyed by a police officer of the court or a public servant to someone personally. It includes the specific date and time whenever the appearance of the person is required for investigations. 

In case a person fails to appear before the court on the said date of the issue of the summons, a warrant of arrest may be issued against the person. The process to compel the appearance of the accused has been laid down under Chapter 6 of the CrPC. 

The appearance of the accused before the court 

After the court issues the summons or warrant, the accused appears before the court as a result. In this instance, the accused is to engage an advocate of their choice in order to defend their case. 

Filing bail application/ furnishing surety 

In case the offence is bailable, the accused has a right to seek bail as per the conditions under Section 436 of CrPC. As per this provision, it is a mandatory duty of police officers as well as on the court to release the accused on bail if the alleged offence against the person is bailable in nature. This means that the court or the police officers have no other alternative except to allow such an application for bail. 

This Section further makes it clear that a refusal of bail cannot merely be due to the non-availability of a surety. A surety is a person who can be held responsible for the acts of the accused person after release on bail. When the accused seeks bail before the court, the court may ask for a surety from another person. However, the lack of such surety cannot be a reason to not grant bail as per Section 436. 

Similarly, if the person despite the order of surety, if the person fails to furnish a surety within 7 days, it is the duty of the courts or police officers to grant bail if the offence is of such a nature. 

The court decides in response to the final report 

After hearing the side of the public prosecutor and the defence, the court comes to a decision. As discussed earlier, the final report can be of two kinds – a charge sheet or a closure report. 

In case a charge sheet has been filed, the court can either accept or reject it. In case the court rejects the charge sheet, the accused shall be discharged. However, when the court accepts the charge sheet, it accepts the charges framed and posts the case for trial. The case, thus, moves to the next stage. 

When the investigating agency, due to lack of sufficient evidence, files a closure report, the court can either accept or reject the report. In case the court accepts the report, the accused is discharged and the case is closed. However, in cases where the court finds the need for further investigation, it may reject the report and direct the police to further investigation into the matter. In such situations, the case goes back to the investigation step discussed earlier. 

The court may also issue a notice to the first informant as he/she is the only person who can challenge the closure report as per the guidelines issued under the Bhagwat Singh vs. Commissioner of Police (1985) case by the Honourable Supreme Court. 

The Magistrate also may also entirely reject the closure report and take direct cognizance of the case under Section 190. Here, the case proceeds to the next stage. 

Framing of charges 

Once the magistrate either accepts the charge sheet or rejects the closure report, the accused cannot be discharged and the court proceeds to frame the charges which the accused will be tried for as mentioned under Section 228 of CrPC. This section also mentions that once the charges are framed by the court, they are to be read and explained to the accused who can then either plead guilty for the offence being charged with or, be tried before the court. 

Conviction on plea of guilty 

If at this stage, the accused pleads guilty of committing the offence and accepts the charges framed, then the accused may directly be convicted of the charges under Section 229 of CrPC. The magistrate has the right to convict the accused if he/she pleads guilty as per Section 241 of CrPC.

If the accused pleads not guilty

However, if the accused pleads to be not guilty for the commission of the offence being charged with, the case moves forward to trial. 

Trial stage 

Commencement of trial proceedings 

The trial proceedings begin when the case is posted for examination of witnesses. As discussed in the previous sections, there can be four types of trials based on the gravity of the case and the punishment associated with the offence committed.

For criminal cases, the burden of proof mainly lies upon the prosecution to prove at all costs against the defendants. Once the trial commences and the judge is presented with the relevant facts of the case, the prosecution must present evidence to prove the guilt of the accused. 

Stage of evidence of the prosecution 

In case the accused does not plead guilty, the case moves to trial, where the court requires the prosecution to bring forward evidence to prove that the accused has committed the offence. This evidence can also be supported by statements from the witnesses. It can be said that the stage of evidence includes an examination of witnesses from both sides. This includes the chief examination, cross-examination and re-examination. The Magistrate has the power to issue summons to any person to appear as a witness or order them to produce a document. 

Statement of the accused 

After the evidence of the prosecution is presented before the court and recorded, the judge directs the accused to appear before the court and provide his/her statement. Section 313 of CrPC upholds the right of the accused to be heard and provides him/her with an opportunity to explain the circumstances and facts from his/her side. Oath is not administered during the recording of the statement, and anything said by the accused at this stage can be used against him at a later stage in this or any other trial. As a result, if the accused refuses to answer or falsely answers a question, he/she will not be punished for this. 

Defence evidence 

At this stage, the court gives the accused an opportunity to produce any evidence to defend his case. This defence can be both oral evidence and documented evidence. This includes any witnesses that the defendant might want to produce before the court. However, since the burden of proof lies on the prosecution, it is not mandatory for the defendant to produce such evidence. 

Final arguments 

Then comes the final stage of the trial where after a thorough evaluation of the facts and evidence of the case, the prosecution and the defendant present their final arguments before the court. By doing so, they present an overview of their side of the case before the judge. 

Judgement and sentence by the court

After the court examines the facts presented, arguments made and the evidence produced, the Honourable judge(s) pronounces the verdict with reasons for either the conviction or acquittal of the accused. This final decision of the court is known as the judgement and is the outcome of the trial. 

Arguments on sentence 

In case the accused has been convicted, in order to decide the quantum of the punishment to be given, the judge must invite both sides to present their arguments about the period the accused must serve. 

However, in summons cases, the parties need not argue on the quantum of punishment as it is the sole discretion of the judge. 

Judgement of court passing sentence

Based on the arguments on sentence made by both sides, the court then decides the punishment to be granted to the accused. The court takes into consideration various aspects such as age, background, nature of the offence committed and the history of the accused. The court also considers several theories such as the reformative theory. The judge, after a holistic understanding of the case, passes the final sentence of the accused. 

new legal draft

Post-trial stage 

Appeal/Revision 

Once the court delivers the judgement either convicting or acquitting the accused, the party aggrieved by the judgement may approach the court again by the way of an appeal or a revision. 

These two terms are similar as they enable a person to receive a fair hearing, but they have certain differences. Through an appeal, the case is heard again by a different court. However, a revision ensures a check on the jurisdiction and legal action of the trial court by a higher court. While an appeal is a legal right guaranteed under Article 21 of the Constitution, a revision depends on the discretion of the court and is not a matter of right. However, it is required that the appeal be filed within a certain time, and non-filing or delayed filing will lead to the appeal being unsuccessful. 

Judgement of Appellate Court or a court with revised jurisdiction

If the appeal is filed within the appropriate time, the party filing the appeal has a right to a fresh trial before a different court. This court then takes into consideration all evidence produced and arguments made before the court and delivers a revised judgement. 

An appellate court can either affirm the lower court’s judgement or reverse the decision of the lower court. Often, if the Appellant Court finds a minor harmless error it upholds the lower courts decisions. However, in cases where a serious error infringing the rights of the party making the appeal is found, the court overturns the decision of the lower court. Once a higher court reverses the decision of the lower court, for legal purposes, it is as though the first trial never occurred in the first place. 

Execution of sentence 

The execution of the sentence is the last step of the entire trial proceeding and is dealt with under Chapter 32 of CrPC. Once the sentence has been decided by the trial court and has been upheld by the Appellate Court, the sentence must be executed and the accused must serve the relevant term. 

Conclusion 

The trial of a case is the most significant stage of the case. This stage helps judges deliver justice in a manner that is fair to both the accused and the victim. It ensures a proper deliberation upon the matter before deciding whether the accused is guilty or innocent. It provides both sides with an opportunity to argue and refute and scrutinizes the evidence presented before the court. It ensures proper administration of justice in a fair, just and impartial manner. 

Though it is the parliament that lays down the laws protecting the citizens and society, it is the judges that put these laws into practice and ensure that the object of the laws is fulfilled by providing justice at trial. The detailed and thorough procedure of these trials ensures proper deliberation before arriving at a decision and thus, reduces the chance of injustice. The decision is taken by the courts only after proper evaluation of the evidence to clearly determine the guilt or innocence of the accused. The procedure, though lengthy and complex, is essential as it protects the rights of both the victim and the accused. 

This article provides an insight into the meaning of a trial, the statutes governing criminal trials in India and their origin, the rights guaranteed to the accused and the victim to ensure proper justice at trial, the different types of criminal trials in India and an overview of the various stages of a trial under CrPC.  

References

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Adobe Systems Inc. v. Southern Software Inc. – an analysis

By
Oishika Banerji
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0
Image source: https://blog.ipleaders.in/intellectual-property-rights-claimed/

This article has been written by Sagnick Chowdhury, pursuing the Diploma in Intellectual Property, Media, and Entertainment Laws from LawSikho.

Introduction

Over the past decade, we have seen the software industry boom tremendously and while it is dominated by a few big conglomerates, low market entry barriers enable new participants to take part in this booming industry. Within the computer industry, software and services are the fastest-growing segments, it is dominated by huge companies such as Microsoft, Google, etc. One of those key players is Adobe, a California-based company that sells software related to print and electronic media.

In October 1995, Adobe initiated a suit for copyright infringement against Soft Key International for allegedly copying their Fonts software among other claims. In this article, we look into the famous case of Adobe vs Southern Software Inc. and analyze the claims made by adobe, the defenses availed by Southern Software, and the decision by the court.

Background

Before we jump into the intricacies of the matter, it is important to properly define the term “Font”. A “font” is a graphical representation of text. These representations vary by size, color, weight, typeface, or design and programs like Microsoft Word or Excel allow the users to change fonts to match the tone of the typed content. The font characters are known as “glyphs”.

The facts of the case are as follows; Paul King, director of Southern Software, Inc. loaded adobe systems’ font software on his computer, scaled the coordinates of the fonts and altered them using programs known as FontMonger and Fontographer, and then used them to create his own “Key Fonts Pro 1555” software program along with two other products. One of the products “Key Fronts Pro ” was licensed to The Learning Company which was then distributed. Adobe initiated suit against Southern Software and The Learning Company and Paul King for infringing Adobe’s copyrights on more than 1100 fonts.

Adobe contended that Paul Kind merely extracted the glyphs and altered their coordinates which brought upon a slight change and thus it infringed upon Adobe’s font programs. 

The decision by the court

The federal district court gave the decision in favor of Adobe, stating that “The evidence presented shows that there is some creativity in designing the font software programs. While the glyph dictates to a certain extent what points the editor must choose, it does not dictate every point that must be chosen.” Hence the court held that Southern Software’s fonts were deceptively similar to that of Adobe and therefore, they are infringing upon the latter’s copyrights.

Analysis

In order to prove copyright infringement the complainant has to first prove that he owns a valid copyright and that there was copying by the defendant as was observed in the case of Data East USA, Inc. v. EDYX, Inc. The plaintiff must also prove the existence of a valid expression and that the expression was copied by the defendant. In this case, it is not disputed whether Adobe is the valid owner of the copyright in its programs. It is also evident that Paul King had access to Adobe’s programs hence, the issue in this case is whether the Copyright Act brings the material in question under its umbrella and provides protection.

The material in question is a computer program and they are protectable under literary works. A computer program is defined in the Copyright Act as “a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result.” Computer programs are protectable literary works. We also need to look at the decisions made in two cases

  1. Apple Computer, Inc. v. Franklin Computer Corp. – Typeface designs are not copyrightable.
  2. Eltra Corp. v. Ringer – A computer program is not rendered unprotectable merely because its output is not protectable.

Hence, we come to the conclusion that even if a computer program creates unprotectable typefaces, the program itself does not become unprotectable. Finally, in 1992 the Copyright Office of the U.S issued an order regarding computer program-generated typefaces, in the order, the Copyright Office contended that the original instructions which enable computer programs to create typefaces in conjunction with low resolution and other printing devices may be granted protection under the Copyright Act. This is based on the principle that if an expression meets the standard of authorship, it is protected by copyright laws.

The defendants argued that mere manipulation of a font image to create another slightly different font image does not give rise to a protectable expression. They argue that numerical reference points that define the outline of a glyph, the coordinate, are not protected and hence mere changing of the coordinates by the adobe editor does not give rise to a protectable expression. This is because the output is not protected and thus there is no creativity.

Adobe argues that each render of a glyph requires the ingenuity of the editor, he has to select the points in a proper and creative manner and such selection and placement of these points are copyrightable.

Work must be original for it to be protected by copyright laws. Original works are those which have a degree of creativity even if it is minimal and the plaintiff argues that the glyph coordinates are not dictated by the glyph shape, it has to be selected carefully by the editor and hence it involves creativity and should be granted copyright protection.

The defendants say that the programs, FontMonger and Fontographer works by extracting the coordinates, not the source codes, hence there is no copying of the source code. Since copyright only subsists in the source code, the defendants argue, that hence, they haven’t committed any infringement. They emphasize the point that the coordinates themselves are not protectable.

By analyzing the arguments it would appear that there is a minimal degree of creativity needed to design the font. The glyph itself does dictate what points are to be chosen but it does not dictate all the points. Adobe was successful in showing that there is a degree of creativity required from the editors to choose the points carefully. The code is determined by the selection of the points. Hence, copying the points amounts to the copying of the source code which is protectable.

After-effects of the decision

Adobe’s licensing agreements with companies like IBM, Microsoft, and Apple, etc. means that their technology will now be implemented in these companies, and adobe’s fonts and programs will become the industry standard. Due to this decision, Adobe would go on to charge licensing fees for their web design, computer programs, and their fonts too. The licensing fees drove up the prices of the computer software charged by companies using the Adobe standard.

The software industry was special in that it allowed small companies to enter without the looming fear of huge overhead costs but now software engineers and programmers have to pay fees to use these standardized programs.

But this is not to say that standardization does not have its benefits. Consumers greatly benefit from having a single standard adopted by huge companies like Microsoft and Apple. It relieves the consumers from having to buy multiple products to work on different platforms. They can switch from one window to iOS without having to worry about learning to use entirely new software and as the degree of standardization increases, the multitudes of complementary inputs such as software, repair services, which are available to users expands as well, thereby facilitating the switch from one system to another. These forces also create a tendency for only several standardized interfaces to exist at a time and make the introduction of new interfaces more costly and difficult. And all of this is only possible if one completely nose-dives into Adobe’s territory and their exorbitant charges and by giving into it we provide an incentive for more companies to start erecting barriers. This will prevent the entry of new players into the market and result in monopolies, which would ultimately harm the consumers.

Conclusion  

Copyright protection is already broad and it is unclear whether increasing the number of things that fall under its umbrella is a good thing or not. It all comes down to the aim of copyright law, which is to provide incentives and increase creativity. Protecting fonts is probably not a step in the right direction since the market is already pretty saturated. This leads to Adobe getting the green signal to run away with the market. IBM, Microsoft, and Apple will probably create standards for software programming that run on the Internet and popular PC platforms. Adobe products probably will be included in these standards. And this is sure to increase the prices of the programs using such standards. Tech should not be a privilege it should be a right and the courts must look to keep that in mind before granting protection. While people should be rewarded and protected for their creativity, copyright protection should not be granted to cover the “artwork” inherent in font “glyphs,” which, in their most basic form, comprise the alphabet itself.

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Trademark as the most effective way to protect a fashion brand : an analysis

By
Oishika Banerji
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0

This article has been written by Pratibha Tripathi, pursuing the Certificate Course in US Intellectual Property Law and Paralegal Studies from LawSikho.

Introduction

Often we confuse a brand name and trademark name while using them interchangeably in our daily routine. But have you ever thought that they both hold different meanings and evoke/ identify the services or products of the company in different parameters?

You would have definitely come across this situation, where before starting your business, whether it is for restaurant, fashion, legal or social work, you would have stumbled upon the same question, what should I name my company? This is a path which everyone goes through, what we need is recognition of our branding between the consumers and services takers. Branding of names becomes the prerequisite at that point.  Here trademark plays a crucial role by protecting use by other people.

Trademark inculcates in it the registered trade or brand name, logo, sound, or slogan which helps the consumers to identify a company’s services or products. It helps to distinguish the origin of goods of one from the other service or goods provider.

While brand associates to the products and services provided by a company which gives rise to a positive image and emotions of the brand of the company and the services connected to it. Definition ‘A type of product manufactured by a particular co. under a particular name.’

For a marketer, a brand is what represents the values of a company and aims to create awareness and trust. This is created through personal contact with the client in connection with the use of services or products, contact with sales or client support, or through brand communication (marketing).

All trademarks are brands but not all brands are trademarks. It is upon the individual interest to register it or not. Brand functions are similar but relate additionally to identity, image, personality, character, culture, essence, and reputation. 

Now that we have understood the concept of trademark and brand separately, let’s move toward the main topic of this article which is trademark effects in protecting fashion brands.  

Why do we need a trademark in the fashion industry?

Trademark is one of the branches of Intellectual Property Rights. Trademark is defined in the Trademark Act, 1999 as, “trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging, and combination of colors.”

The undaunted creativity the fashion brands endeavor in them is something of a testing task, to navigate them from the counterfeiting issues. With such unprecedented times new platforms have been emerging and trending like., applications, new technologies, and solution-driven manufacturing. But still, the fashion brands stick to their strategies: which is creating mind-blowing, attractive, and inspiring art pieces. And to preserve creativity which is attached to their brand is what trademark helps in. 

It helps fashion brands to stand out in a crowded market. To let people recognize the quality of products or services by the name of that brand. Eg. Lakme Fashion Week is a color scheme that becomes part of Trademark. It protects the Name, Logos, Design, attires, and color combination used by distinguishing from others in existence. This Registration helps in fighting out the competitors in the market.

At the outset, a number of fashion brands have set their names in the market. And with the name comes their quality guarantee. Eg., ZARA, H&M, etc., the clothing brand works on its marketing strategies, by advertising them in each medium(newspaper, T.V & social media platforms).

Also, these fashion brands pay such a hefty amount on the advertisements, to place billboards, and in packaging. Ultimately to secure themselves from counterfeiting and imitation they need to register the trademark. 

With an overview of the fashion brands in the market, we can precisely say, the brands which have registered their brands under trademark are easily recognized by the consumers and are easier to pick up. The amount a fashion brand pays for its branding is more if compared with the registration of a trademark. And registration comes with protection from counterfeiting and false impressions by others. The plaintiff can take recourse of infringement before the court.

Trademark rights are used to protect the distinctive impression of the brand created in the minds of the consumers and to prevent others from imitating or piggybacking on the brand image and brand loyalty. The goodwill attached with trademark helps even if you have not registered it.

The trademark includes the following categories: –

  1. Certification Marks
  2. Collective Marks
  3. Label

Governing laws in India

In India, a registered and unregistered trademark can be protected through infringement and passing off action respectively. The prerequisite which is to be followed to avail the above protection is that the name, logo, and other known categories should not be descriptive, generic, and deceptive.

According to the spectrum of the distinctiveness of marks established by Abercrombie & Fitch Co. v. Hunting World, 537 F.2d 4 (2nd. 1976), marks fall into various categories of distinctiveness (“Abercrombie classification” or “Abercrombie factors”) and are accorded differing degrees of protection based on the category of distinctiveness. 

The various categories of marks are:

  1. Generic terms: 

These include the common name for the products or service and are not capable of distinguishing the goods/services of one business from the other and therefore cannot be afforded any legal protection. 

In simple terms, you may also write that ‘generic terms’ refer to ‘general words’ that are not innovative.

2. Descriptive marks:

A descriptive mark is a term with a dictionary meaning which is used in connection with products or services directly related to that meaning. Such terms are not registrable unless it can be shown that distinctive character has been established in the market through extensive use in the marketplace. I know you will ask, why do we have a number of marks of such a name which describes the goods and services of such a brand as well? And yes you asked the right question and the answer is, after using a mark for a couple of months or years, which if, in case creates goodwill between the customers can clear the registration criteria by providing the relevant documents, date of first use of name and commerce.

3. Suggestive marks:

A suggestive mark bears some connection to the nature, quality, or a characteristic of the products or services in relation to which it is used but requires some imagination on the part of the consumer to identify this connection. 

Section 9: Absolute grounds for refusal of registration.

Section 11: Relative grounds for refusal of registration.

And by Section 29: Infringement of registered trademark.

The Trademarks Act lays down the grounds for restrictions on the use of such categories as described under the above sections. If someone falls under the above categories then they will not be allowed to register their mark by the Examiner of Trademark.

Ways of protecting one fashion brand from imitation/false representation/ unauthorized use are by two steps:- 

  1. Knockoffs: It includes mimicking the fashion design elements but using another name or label as a tag, other than the original fashion brand. Thus here we cannot claim trademark protection.
  2. Counterfeiting: It is the process of copying the original fashion design, label, and brand logo. This amounts to piracy of logos etc. but here under this category, we can take the appropriate actions as provided above.

A trademark in fashion design is useful when the design is visually crafted to such an extent that it develops into its element of design. The ongoing scenario shows that the fashion designers are incorporating trademark logos on the outer layering of garments at their creation stage. Therefore the logo becomes the part design, which ultimately protects the design from counterfeiting. Eventually, the brand names were protected under the Trade Marks Act, 1999. 

Different IPs through which we can protect the fashion brands

Although,  fashion brands can be protected through different IP branches as well for different purposes likewise: 

Copyright 

Fashion brands can be protected under copyrights. They can copyright their artistic creation on the expression but not the cuts and silhouette, eg. The Diane Von Furstenbreg wrap dress is protected under its design and not protected under its overall dress. Which extends to 60 years. But the design act on the other hand protects it for 10 years to 15 years max. 

Geographical Indications Act

The apparel and textures used to create through handcrafted fabric or material to create accessories can come under the protection of the Geographical Indication Act. 

Case laws

  1. Micolube India Ltd. Vs. Rakesh Kumar trading as Saurabh Industries & Ors.,

In this case, it was held that, according to Section 2(d) of the Design Act,  no one can use a design and trademark on the same matter simultaneously. However, after the amendment of the Design Act 2000, Section 11 the concept changed a little, a registered design can be used as a trademark now. And further elaborated Section 19 by clarifying that it doesn’t cancel out the trademark on this particular ground(registration of design).  

2. Christian Louboutin 

This case deals with the famous shoe brand named Christian Louboutin, the case relates to its shoes under the ‘red sole’ category which is quite popular among the customers by means of media. However, the defendant chose to counterfeit the plaintiff’s red sole in his selling of shoes, by copying the red sole of it and using different colors on the other parts of the shoes.

Thereafter the plaintiff moved to the court and put down the defendant for using the plaintiff’s well-known mark as explained by the judge in his judgment.

Conclusion   

The IP and fashion industries are growing rapidly in our changing world. And so our fashion designers should get familiar with the concepts of how they can protect their hard work and mental labor. IP plays a pivotal role in the global fashion industry (USD 2 trillion per year). So, its use in the fashion industry marks central importance. Trademarks are a very important point for brands to get protection from any future misuse. Fashion designers put a lot of creative minds into coming up with some amazing concepts in the world, so there should be ways to keep their innovative minds out of the fear of getting counterfeit by someone. As innovation is the economy of our country. 

References

  1. https://blog.dennemeyer.com/brand-and-trademark-where-marketing-meets-law?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration.
  2. https://www.redpoints.com/blog/fashion-intellectual-property/.
  3. https://www.worldtrademarkreview.com/search?search=how%20trademark%20protecting%20fashion%20brands&sort=2&page=3.
  4. https://www.worldtrademarkreview.com/brand-management/the-wtr-archive-protecting-and-managing-fashion-luxury-and-apparel-brands.
  5. https://www.worldtrademarkreview.com/brand-management/why-trademark-professionals-should-be-the-forefront-of-sustainable-brand-initiatives.
  6. https://www.worldtrademarkreview.com/anti-counterfeiting/rpm-review-analysis-inside-glimpse-madrid-changes-covid-19-impact-trademark-practice-and-much-more.
  7. https://www.mondaq.com/trademark/733436/brand-and-trademark-where-marketing-meets-law.
  8. https://blog.dennemeyer.com/brand-and-trademark-where-marketing-meets-law?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration.

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What legal steps can a husband take if the wife is cheating

By
Sneha Mahawar
-
0
Cheating
Image Source: https://rb.gy/r2ofjc

This article is written by Gursimran Kaur Bakshi, from the National University of Study and Research in Law, Ranchi. This article is divided into two parts. Part I deals with all the possible legal recourse that the husband can take against the wife who is found to be cheating on him. Part II focuses on the legal recourses available to the wife against the husband.

Introduction 

When Jane Austen in Pride and Prejudice wrote ‘Such a change in a man of so much pride excited not only astonishment but gratitude for to love, ardent, it must be attributed’. By this statement, she wanted to explain the power and gravity that love holds. 

What makes life meaningful is love and the right that makes us human is the right to love. But where there is love, there can be no place for infidelity. When two people enter into a sacrosanct union of marriage, they take vows like ‘till death do us apart.’ To breach that vow is nothing less than a sin. But, in reality, the partners do breach that vow and infidelity happen to be a way common through which they breach it. 

In India, according to recent data of 2020, 53% of women admitted having a relationship outside marriage out of the 1525 married Indians on whom the research was conducted. But most partners tend to not speak against cheating for the sake of not breaking up the family and for the welfare of their children (if any). This article will answer some of the pertinent questions on cheating committed by the wife against the husband. 

What amounts to cheating depends on a case to case basis

Cheating is illegal and immoral. But you cannot sue your spouse for cheating in a marital relationship. Because cheating by a spouse or infidelity in a marriage is not a crime in India.  Cheating in simple terms means showing affection, emotionally or sexually, to someone who is not your spouse and without the consent of the spouse. It does not have an exclusive definition because what amounts to cheating would depend on a case to case basis. It has an individualistic perception based on endurance and sensitivity.

There is no law that defines cheating in a marital relationship 

Section 415 of the Indian Penal Code, 1860 (IPC) defines ‘Cheating’ as fraudulently deceiving and inducing the person so deceived to deliver any property or to consent to the retention of any property by any person. 

This definition cannot be applied in a marital relationship based on mutual trust. The bare reading of this provision makes it clear that there must either be dishonesty or fraud. However, cheating by a spouse does not necessarily require the existence of these ingredients. 

A spouse may cheat the better half out of sheer frustration or to fill the emotional void. However, there may be cases where Section 415 can be used in cases of cheating by a spouse. For instance, if the wife deceives the husband by requesting money from him to pay her bank debts but instead uses it to marry her boyfriend.

So, in essence, what amounts to cheating shall depend on person to person and the evidence that they are able to collect. Below is the list of evidence that the husband can collect against the wife.

What evidences can be used to prove to cheat

  • Pregnancy. 
  • Photographs. 
  • Property Papers. 
  • Bank Transactions, if both spouses have a joint account. 
  • Witnesses, if any. 

If you know your wife is cheating, should you hire a detective

Hiring a detective is an absolute no-no. This is probably because it compromises the privacy rights and human dignity of the spouse. The wife is entitled to the right to privacy and human dignity. Both are the facet of Article 21 of the Constitution of India. 

In India, there is no clarity on whether hiring a detective is legal because there is no law that regulates it. The Private Detective Agencies (Regulation) Bill, 2007, which was supposed to regulate the same was withdrawn from the Rajya Sabha. However, generally speaking, the legality of hiring a detective is compromised because it hampers the exercise of the fundamental rights of the person. 

The job of a private detective is to find out the information and the method through which the information is collected is not necessarily legitimate. So, a private detective can cause interference to rights such as:

  • The right to privacy. It was recognised as an intrinsic part of the right to life in Justice KS Puttaswamy v. UOI (2018).
  • It may amount to ‘stalking’ under Section 354D of the IPC because the detective may try to contact the woman to foster personal interaction in order to gather the information. 
  • The detective can also be held liable for ‘voyeurism’ if he tries to capture the private acts of the woman wherein she has exposed her body parts under Section 354C. If the same acts are done online, the person can be held liable under Section 66E of the Information Technology Act, 2000.
  • Further, any kind of online anonymous conversation to gather any information is also punishable under Section 507 of the IPC for causing ‘criminal intimidation’. 

Hence, neither the fundamental rights of a person cannot be jeopardised nor the existing laws can be violated. 

Can you sue your wife for adultery 

A straightforward answer to this is no. Even when adultery was considered an offence under Section 497, women had absolute immunity against any kind of criminal liability. Finally, now that adultery has been held unconstitutional in Joseph Shine v. UOI (2018), there is no point in bringing a criminal case against the wife for the same. 

Section 497 defined adultery as when a man has sexual intercourse with the wife of another man without the consent of her husband. 

On the bare reading of this provision, one may be able to find out the issues with it. These are:

  • First, the provision only makes the man liable for committing adultery. The married woman has complete immunity. 
  • Second, it is gender-biased. It considers a married woman as the chattel of the husband because if permission by the husband is granted, it will not amount to adultery. 

Hence, you cannot sue your wife for adultery. 

Will your wife’s cheating amount to domestic abuse/cruelty 

On domestic abuse 

Unfortunately, the Indian legislation is more women orientated. It is indeed true that laws curbing social evils and extending protection to women are important, but the laws should aim to be gender-neutral in a progressive society. 

In India, the main legislation governing domestic violence is the Protection of Women From Domestic Violence Act, 2005 (‘PWDVA’). But the law is only applicable to women. The legislation is comprehensive and has a wide definition of domestic violence under Section 3 which includes inflicting emotional, physical, and economic abuse. If the legislation was gender-neutral, cheating by a wife would have been treated as the ground of domestic violence since cheating inflicts emotional abuse on a spouse. Provided that a causal link between the two having an illicit relationship and inflicting cruelty is established. However, currently, there is no remedy for a husband here. 

On cruelty 

Also, it is important to note that cheating itself does not amount to cruelty. There is no such separate discussion on the meaning of cruelty except for the purposes of criminalising dowry death under the IPC. So, in terms of establishing cruelty, either mental or physical, you will not find a remedy in the IPC. 

The Supreme Court in Pinakin Mahipatray Rawal vs State of Gujarat (2013) and K.V Prakash Babu v. State of Karnataka (2016) observed that the extra-marital affair per se does not amount to cruelty within the context of Section 498A. Illicit relationships would definitely remain illegal and immoral but may not attract criminal liability. Unless it becomes the reason to drive the spouse to commit suicide because then it will bring home the charges of dowry death under Section 498A and Section 306.

Further, the link between an illicit relationship and mental cruelty carries with it a high degree of burden of proof to be discharged. It means that there must be substantive evidence to prove the same. This was held in Ghusabhai Raisangbhai Chorasiya vs State Of Gujarat (2015).

What to do if you do not want to divorce your wife  

Refer to a marital counsellor 

Although this may sound unconventional, there are marriages that tend to survive even if one of the partners has cheated on the other. If the partners are still willing to live together and the cheating spouse has promised to change her mind and be faithful to the relationship, the parties can opt for counselling. 

This method may still be unpopular in India, but counselling, in general, is popular all around the world and there is no sense of discomfort or stereotype attached to it. Now, the point is, when should the partners opt for counselling and why should they do so?

The answer to the latter is, sometimes, partners cheat on each other not because they want to. It is because they might not be getting the love and time that is required to maintain a healthy married life. For instance, if both the partners are working and they are not able to spend time with each other, there is a possibility that they may end up in divorce or cheating. 

So, indulging in a blame game would only create more marital discord between the spouses and may also have a negative impact on the child. To reconcile such a broken relationship is to first acknowledge the mistake from both sides. Partners should definitely visit a relationship counsellor which would help them to overcome the growing differences between them. A counsellor will help the partners to identify the issues and restore mutual trust. 

Things to remember before referring to a counsellor:

  • Make sure to discuss mutually on this before referring to a counsellor because the information that would be shared with the counsellor is intimate and personal. 
  • A counsellor is someone who enjoys confidentiality. He/She may be someone who would know even the smallest detail about the couples to understand the differences between the two. Hence, the counsellor enjoys a lot of power. Couples must be thorough with the background research before finalising a counsellor. 

File a petition for the restitution of conjugal rights 

Restitution of conjugal rights is a way to reconcile the discord in a matrimonial relationship. A petition can be filed in the Court and once the Court is satisfied, it may pass an order for both parties to cohabit. Usually, this petition is filed when either of the spouses has deserted the other for no reasonable cause. But even in the cases of cheating when one of the spouses has been trying to restore the marital life and wants to give the marriage a second chance, a petition can be filed. 

Under Hindu law 

There are two important legislations namely, the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, to consider here. 

  • A petition for the restitution of conjugal rights can be filed under Section 9 of the Hindu Marriage Act. But the wife can neither be compelled to cohabit with the husband nor can she be compelled to consummate. This will be in violation of her right to privacy and liberty protected under Article 21 as held in Saroj Rani v. Sudarshan Kumar Chadha (1984). Other than that, if there are reasonable grounds that the wife has withdrawn from the society of the husband, a petition for restitution of conjugal rights will stand.
  • Here is a temple for the petition on conjugal rights. The aggrieved spouse will just have to fill in the information in the form and file the same before the district Court. The form also contains the affidavit that should also be submitted along with the form. 
  • Under Section 22 of the Special Marriage Act, a petition for restitution of conjugal rights can be filed by the husband before the District Court. Here is a temple of the petition. 
  • Before filing the petition for the same, the petitioner must have evidence like proof of marriage including photos of the marriage and birth certificate of the child, if any. These pieces of evidence would be necessary to prove the factum of marriage. 

Under Parsi Law 

  • Under Section 36 of the Parsi Marriage and Divorce Act, 1936, a petition for the restitution of conjugal rights can be filed. A similar temple as mentioned above can be used for filing a petition for conjugal rights under Parsi law.

Under Christian Law

  • Section 32 of the Divorce Act, 1869, the husband can file a petition for the restitution of conjugal rights. Please refer to the temple of the petition above.

On divorce and separation 

Can you divorce your wife for cheating/adultery 

Cheating itself is not a ground for divorce. But adultery can be a ground for divorce although the person cannot be prosecuted for the same. 

Divorce under Hindu Law 

  • Under the Hindu Marriage Act, Section 13(1)(i) makes adultery a ground for divorce. The Husband can file a petition before the District Court for a decree of divorce. 
  • Under the Special Marriage Act, Section 27(1)(a) is a ground for divorce based on adultery.
  • The format of the divorce petition is here. The format is going to change as per the type of divorce that the couples are seeking.  

Divorce under Muslim Law

  • Divorce under Muslim law is either governed through personal laws or under the Dissolution of Marriage Act, 1939. The latter codifies the grounds on which Muslim women can seek a decree for the dissolution of marriage. 
  • Under personal law, there are two forms of talaq namely, Talaq-ul-Sunnat and Talaq-ul-Biddat. Talaq-ul-Sunnat is further divided into Talaq-e-Ahsan and Talaq-e-Hasan. This is known as the best form of talaq as it is revocable. Whereas, Talaq-ul-Biddat is an irrevocable form of talaq. It is considered a bad form of talaq. 
  • Under Talaq-e-Ahsan, a single pronouncement is made by the husband during the period of tuhr (state of purity) which lasts for three menstrual cycles. The husband must not indulge in sexual intercourse during the period of Iddat. If he does so, the divorce will be revoked on implied terms. And if he does not, the divorce will become irrevocable. 
  • Under Talaq-e-Hasan, the husband has to pronounce talaq in three successive periods of the menstrual cycle. The first and the two pronouncements can be revoked. However, once the third pronouncement is made, the divorce becomes irrevocable. 
  • The Talaq-ul-Biddat or triple talaq is considered the most inappropriate form of talaq where the husband can divorce the wife by three continuous pronouncements in a go. This form of divorce is irrevocable. The Supreme Court has held that this form of talaq is unconstitutional in Sharaya Bano v. UOI (2017) for manifesting arbitrariness. Thus, violating Article 14 of the Constitution of India. 

Divorce under Parsi law

  • Section 32(d) of the Parsi Marriage and Divorce Act, 1936, a husband can file for divorce on the grounds of adultery.

Divorce under Christian law 

  • The Christians can dissolve marriage under the Divorce Act, 1869. Section 10(1)(i) allows the husband to divorce her wife on the ground of adultery. A petition for the same can be filed before the District Court.
  • Under Section 11, the husband will have an adulterer(the man) as the co-respondent along with the wife, unless the name of the adulterer is unknown or he is dead, in the petition for divorce. 

Divorce under Jewish law 

  • In India, Jews are governed through personal laws but these are uncodified. That is why there is no such provision that could govern their matrimonial affairs. Recently, a petition was filed by a Jewish couple before the Family Court in Bombay for mutual divorce. The Court, while dismissing the petition, observed that the laws governing Jews are their personal laws which remains uncodified. 

What to do if the wife makes counter allegations of cheating on the husband 

Making scandalous and false allegations of having an illicit affair amounts to mental cruelty. The Court in Swati v. Arvind (2015) defined cruelty as “when one spouse has so treated the other and manifested towards him or her so as to cause such feelings towards him or her as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse”. 

A divorce petition on the ground of mental cruelty can be filed under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. Further, mental cruelty can be inflicted without sharing a roof together. In K. Srinivas Rao v. D.A. Deepa, (2013), it was observed that sharing a household is not a prerequisite in filing a divorce petition on the ground of mental cruelty.

What to do if both the husband and wife want to mutually divorce each other 

Under Hindu Law 

  • The parties can also file a petition under Section 13B for divorce on mutual consent under the Hindu Marriage Act, 1955.
  • Under the Special Marriage Act, 1954, the parties are allowed to file a petition for mutual divorce under Section 28.

Divorce under Muslim Law

Divorce under Parsi law

  • Under the Parsi Marriage and Divorce Act, 1936, Section 32B would allow both the partners to apply for a divorce by mutual consent. 

Divorce under Christian law 

  • Section 10A was added through the Indian Divorce (Amendment) Act, 2001. The husband can file a petition for the dissolution of marriage under this Section to the district Court. This single provision covers grounds for mutual divorce, or that the couples have been living separately for two years, or that they are unable to live together. 

What to do if both the husband and wife want judicial separation

Under Hindu law 

  • The Court can grant an order of judicial separation under Section 10 of the Hindu Marriage Act, 1955, to the parties.
  • Under Section 23, the Special Marriage Act, 1954, the parties can apply for judicial separation and once the decree of judicial separation is granted, the parties are not obliged to cohabit.  

Under Parsi law

  • Section 34 of the Parsi Marriage and Divorce Act, 1936, allows the parties to file a suit for judicial separation. 

Under Christian law 

  • A petition for judicial separation on the grounds of adultery can be made under Section 22 of the Divorce Act, 1869.

Can you claim maintenance from your wife 

Under Hindu law 

The husband can claim maintenance from the wife under the Hindu Marriage Act, 1955. Section 24 and Section 25 of the Hindu Marriage Act respectively allows the husband to claim maintenance on the following conditions:

  • Section 24 allows the husband to claim maintenance of pendente lite. It means that the husband can claim maintenance from the wife only if he is unable to manage himself during a legal proceeding. For instance, if the parties have filed for divorce and the husband is unable to maintain himself during that period, he can invoke the Section. 
  • Section 25 can be invoked in cases in cases where the partners have decided to file for mutual divorce under Section 13B but afterwards, the husband feels he will not be able to maintain himself. The husband may not be employed at the time when he found out that his wife is cheating on him. The Court can order the wife to maintain the husband through monthly allowances. This would depend on factors like the gross total income of the wife. 
  • Section 24 and 25 respectively are considered gender-neutral provisions as both wife and husband can claim maintenance provided that either of them does not have an independent income. This position of law was held in Rajnesh v. Neha (2020).
  • Under the Special Marriage Act, 1954, maintenance is only available to women. 
  • Other than this, the PWDVA and Section 125 of the Criminal Procedure Code, 1973, are only applicable to women.

Under Parsi law 

  • The husband can claim alimony pendente lite during a legal proceeding if he has been unable to maintain himself during the same from the wife under Section 39 of the Parsi Marriage and Divorce Act, 1936. 
  • The Court can grant permanent alimony to the husband under Section 40 at the time of passing a decree for divorce or judicial separation. 

Under Christian law

  • The husband can claim maintenance pendente lite during a legal proceeding if he has been unable to maintain himself during the same from the wife under Section 36 of the Indian Divorce Act, 1869. 
  • Permanent maintenance cannot be claimed by a husband against the wife under Christain law. 

Can you claim custody of the children from your wife  

Usually, the custody of the child remains with the mother. However, in certain cases, the husband can have custody of the children. But here are some of the laws under custody that can be claimed by the husband:

Under Hindu law

  • Under Section 26 of the Hindu Marriage Act, 1955, a petition for the custody of the child can be presented to the District Court by the husband. 
  • Under Section 38 of the Special Marriage Act, 1954, a petition for the custody of the child can be presented to the District Court.  
  • The format of the application can be found here. The husband just has to fill the form and file the same before the Court. 

Under Guardians and Wards Act 

Under Muslim law

  • In Muslim law, the mother is entitled to the custody of the minor male child till the age of 7 years old and that of the minor female child till she attains puberty. The mother will be entitled to this right until and unless she decides to divorce her husband and remarry. This position of the law was highlighted in Unknown v. Sekh Jiayur Rahaman @Bakul (2016).

Under Parsi law

  • Under the Parsi Marriage and Divorce Act, 1936, Section 49 will allow the husband to file a petition for the child. The Court is also empowered to make interim or final orders on the custody of the child while dealing with the petition concerning divorce or judicial separation of the parties. 

Under Christian law

  • If a decree of judicial separation has been ordered by the Court, the husband can file a petition to the same Court for the custody or maintenance of the child under Section 42 of the Indian Divorce Act, 1869.
  • On the decree of the dissolution of marriage, an application for the custody of the child can also be filed under Section 44.

Conclusion 

In India, the laws are not progressive enough to be gender-neutral. That is why the remedy available to the husband is limited. Whereas, for the wife, the laws protect her at every stage of the relationship. Through this article, at least, this has been highlighted that the need for an hour is to acknowledge that men too deserve to be equally protected in a marital relationship because cheating has no gender. 

Since the current position of the law allows the husband to seek limited or no remedy against the wife for cheating, it should be advised that the partners do not indulge in tactics like taking the help of the detective agency or doing something that may risk the life of the partner. It is better to confront the partner and have a healthy discussion on the same. Still, if the husband feels he cannot forgive his wife for what she did to him, he can file a divorce or they can decide to separate on mutual terms. 

But if partners manage to reconcile, relationship counselling is the best option that they should prefer to be able to understand the root cause of the problem. Because at the end of the day, regaining trust would remain the most important facet of a relationship. 

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:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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What is the Heartbeat Bill

By
Rachit Garg
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0
Image Source- https://bit.ly/39ciG7a

This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This article is an exhaustive analysis of the Heartbeat Bill and its related aspects.

Introduction

Across the country of the United States, the introduction of a restrictive Abortion Bill in the form of a “fetal heartbeat bill” had been coming up in the news time and again. Very recently, Texas passed this highly controversial Bill and joined the other states that have similar abortion legislations in the Bible Belt of the U.S which consists of states in the southern region with socially conservative people and high church attendance compared to the nation’s average. The law is to come into effect in September 2021 if it is not stopped by the Court, however, what remains remarkable for this law is that this Bill was introduced shortly after the Supreme Court announced the review of Mississippi’s bid to ban most abortions after 15 weeks, opening the door for an overturn, or narrowing of, Roe v Wade – the Supreme Court’s 1973 landmark ruling that guarantees a woman’s right to end her pregnancy.

Legislative history        

Back in 2011, Ohio became the first state to have passed the Heartbeat Bill followed by North Dakota in 2013. However, these bills could not officially come into effect and in cases where they managed to do so, they were considered among the most stringent laws of the country. Where in the law was blocked by the courts and declared unconstitutional, in other places like Georgia passed its Heartbeat Bill and turned it into law.  As of July 2021, except for the Texas Bill all other state laws are not in effect pursuant to the Court’s intervention.

Roe v. Wade

Women’s right to an abortion was discussed at length by the Supreme Court in the 1973 lawsuit of Roe v. Wade. Jane Roe was an unmarried pregnant woman who had filed a suit to challenge the Texas abortion laws. Though women’s right to privacy does not involve abortion since right to privacy arises from the Due Process Clause of the Fourteenth Amendment, it was recognized by the Court in Board of Regents v. Roth 1891 that the meaning and interpretation of the term liberty has to be broad for the constitution of free people. Thus, in the present case, the Court extended the right to privacy to include a woman’s control over pregnancy. To reach a conclusion, the Court created a framework to balance the state’s interests with women’s privacy rights.

It acknowledged that the rights of pregnant women might come in conflict with the rights of the state to protect potential human life, the Court divided pregnancy into three 12-week trimesters to define the rights of the parties involved:

  • The Court held that a state cannot regulate abortion while a pregnant woman is in her first trimester, beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
  • A state’s intervention may be allowed to regulate abortion if the regulations are reasonably related to the health of the pregnant woman while she is in her second trimester.
  • The state’s interest to protect a potential human life will outweigh the woman’s right to privacy when she is in her third trimester. To that end, the state may prohibit abortions unless it becomes necessary to do so considering the health conditions of the mother.

The judgment in this case substantially did not have an impact on the number of abortions that took place later in the U.S, rather many opponents tried to introduce even stricter abortion laws. This decision was revisited in Planned Parenthood v. Casey in 1992, and held its ground on privacy rights being tied to abortion. The ban on abortion continued to remain unconstitutional as per this case which upheld a woman’s right to choose abortion, however, it changed the framework as established in Roe creating a standard based on fetal viability (the woman could choose abortion before viability). 

Whole Woman’s Health v. Hellerstedt

In 2016, following the case of Whole Woman’s Health v. Hellerstedt, which was based on a 2013 law passed in Texas that placed certain restrictions on abortion clinics working in the state like the abortion providers had to have “admitting privileges” at a hospital no more than 30 miles away. This led to a decrease in the number of clinics in Texas from 42 to just 19 but the Supreme Court found that the states cannot place such restrictions on the clinics because they create an undue burden for the women in such circumstances.

As a result of these decisions, even today many restrictions are imposed on women seeking abortion like the requirements of parents consent or involvement of a judge in their decision. Others have requirements of long waiting periods between the time a woman first visits the clinic and the time of carrying out the actual procedure. Thus many women have to travel further away to get the procedure done across the state boundaries.

The U.S Court is currently hearing the Mississippi case of Dobbs v. Jackson Women’s Health Organization (2021) which is regarding challenging the constitutionality of the 2018 Act of Mississippi’s Gestational Age that bans abortions after 15 weeks except for emergency cases. It is to be decided whether a fetus is viable outside the womb after 15 weeks. The Court has to review whether “all pre-viability prohibitions on elective abortions are unconstitutional.” 

The Court might choose to uphold the decision in Wade’s case or might overturn it. If the case was to be overruled or narrowed down, many states might come up with even more extreme laws on abortion. The states have never been able to pass a law that would outright ban abortion before fetus viability. If the Mississippi law holds up in the Court, it would limit access to abortion facilities in the state. As of now, many abortion rights advocates and activists are preparing to challenge the Texas Bill which will be going into effect in September.           

The Heartbeat Bill

This Bill particularly aims to make abortion illegal once the heartbeat of the fetus is detected. It bans abortions as early as six weeks. However, what sets this law apart from other similar legislation is that it is not publicly enforceable. It allows any and every person to initiate a civil action against any person who performs, induces, abets, or aids an abortion.   

Salient features

“Our creator endowed us with the right to life, and yet millions of children lose their right to life every year because of abortion,” said Governor Greg Abbott before signing the new law banning abortion to take place beyond 6 weeks when a fetal heartbeat is detected.  It aims to ensure and protect the life of every unborn child with a heartbeat. Currently, the law of Texas allows abortions up to 20 weeks unless there is a severe abnormality or life-threatening medical condition:

  • It acknowledges that the state of Texas has never repealed any statutes prohibiting and criminalizing abortion that was enacted before the decision in Roe v. Wade. It amended the Health and Safety Code by adding another subchapter. This subchapter goes on to define terms such as fetal heartbeat, gestational age, unborn child, pregnancy, etc.
  • The new law does not allow any exceptions even for the extreme cases of unwanted pregnancies arising from rape or incest. This provides the patients the time of only 14 days to realize their regular menstrual cycle being missed and confirm the pregnancy, make up their mind for abortion, find a suitable clinic and fulfil the formalities. Ideally, people need to visit 24 hours prior to their scheduled abortion to get an ultrasound done and receive mandatory state counselling. To add to that, people need to be financially sound to be able to afford the procedure as abortion care is not covered under the insurance in Texas.
  • Under Section 3 of the Bill, the Amendment is introduced under chapter 171, Health and Safety Code. This includes definitions for detecting fetal heartbeat. It states the legislative finds based on contemporary medical research regarding the fetal cardiac activity. If at all the physicians fail to comply with the provisions of the Act, they have to maintain a record of justifiable reasons for doing so as per the allowance given by the Act itself.
  • The Act imposes limitations on public enforcement, i.e it can only be enforced through private civil enforcement actions. It classifies abortion under a civil violation and not a criminal ban where enforcement can be brought by any person except that of an officer, state employee, or local governmental entity of the state. This could even lead to the shutting down of various abortion clinics from the fear of facing prosecution.
  • Further, if a claimant prevails in an action brought, the Court can award injunctive relief, statutory damages of an amount not less than $10,000, and costs of attorney’s fees. The defendant cannot plead defence by stating reasons of ignorance or mistake of law, on the belief that the section is unconstitutional, reliance on any court decision overruled or not during the commission of the act, reliance on any state or federal court’s decision which is not binding on the trial court, consent of the unborn child’s mother, any claim that would violate the constitutional rights of a third party. It also prohibits the state, a state official, a district or county attorney to intervene in an action initiated under this section.
  • This has been called a clever and unique law by a law professor at South Texas College of Law Houston according to the report. 
  • Where generally the government takes the responsibility for enforcing the health-related measures, the new Texas law empowers private citizens to sue abortion providers. A private citizen could be anyone, even the one who is not related to the individual seeking abortion can sue in the civil court for the violation of the provision.

Procedural issues

The usual root for challenging the abortion restrictions (planned parenthood/doctors/ healthcare facilities involved) brings a pre-enforcement of Section 1983 of Title 42 of the United States Code which is the Ex parte Young action initiated against the governor, AG, Secretary of Health and Human Services, or other public officials for a declaratory judgment and injunction prohibiting enforcement–is not available. It does not hold any government officials responsible for the enforcement of the law as there is no specified executive officer to initiate the action. This could be framed by the courts in two ways, either a lack of standing (since no specific officer responsible for enforcing the law and the injury is traceable or redressable by an injunction) or with sovereign immunity (since the exceptions of Section 1983 not satisfied) or that specific officer is not violating any substantive right. Herein the legislature which has enacted the law is immune from the suit as it does not violate anyone’s rights.

The other thing is that all the enforcement actions have to be taken in the state’s court because that law is invalid on the basis of any federal defence that is not applicable for removal. The way to go about it would be if the care providers shift their principal place of businesses to outside Texas, then it would create multiple jurisdictions. However, once the case comes into the federal court, the defendant then can dismiss it for the lack of standing.

The law indirectly attempts to impose limitations on the defendant’s right to assert constitutional rights of women to challenge the abortion law as an affirmative defence. This limits the third party standing and codifies the requirements of the test of the constitutionality of the rights. In addition to this, Section 4 of the Bill states that an attorney who fails to successfully challenge the validity of the laws regulating the ban of abortion would then be liable for the defendant’s attorney’s fees, which cannot be applied in the federal court.

The science and the law

According to a media report, which has inputs from the ob-gyn from American College of Obstetricians and Gynecologists and an ob-gyn from UC San Francisco and director of research in obstetrics and gynaecology at Zuckerberg San Francisco General Hospital, this Bill and its similar counterparts state that fetal heartbeat helps in predicting whether the pregnancy will boar a living baby or not. The model legislation that is referred to by the various states uses the fetal cardiac activity as an indicator of an unborn human individual-specific the moment when the structure becomes alive which is a well-established detector, however, there is more to it.

What we first need to determine is the meaning of the phrase of the unborn human individual whether a 3- to 4-millimeter-long, partially organized blob of cells is a human individual or not. Secondly, the issue lies in understanding the heartbeat. At a stage as early as six weeks, the neurological system along with the cardiovascular system is rather immature. The heartbeat that is heard of at the stage of the gestation period (6 weeks) is a group of cells with electrical activity/ a cluster of pulsing cells which is in no way related to any kind of cardiovascular system as it is not sufficient enough to support viability. Another such term is viability which clinicians understand to be a time that looks normal for the continuance of pregnancy.

The science of it all is far beyond how the use of the terms in legislation has been portrayed. That using the term heartbeat is effective in playing with people’s emotions however, they also have the power to ban abortions when people often are not even aware if they are pregnant in the 6th week. This could have varied consequences with potentially serious health risks. Even after the detection of fetal cardiac activity, a woman might miscarry which then according to the law would lead her to prosecution and in turn prevent her from seeking prenatal medical care.

Controversy

  • The major issue with the law is that often many women do not even realize that they are pregnant during the time span of six weeks. Thus the law acts as a de facto ban on all abortion cases as by the time they realize it will already be too late.
  • These laws are inconsistent according to the Center for Reproductive Rights. It is a global legal advocacy organization that works to make reproductive freedom a fundamental human right and aims to advance reproductive rights (such as abortion). 
  • At a stage as early as six weeks, the embryo is not a fully developed fetus and does not have a heart. The phenomenon of becoming a fetus only happens in the eleventh week of pregnancy. However, some electrical activity that disguises as a heartbeat of the fetus can be heard in the early stages, which is around six weeks.

Consequences

If these laws are allowed to be made effective, more people would find ways to end their pregnancies at home due to the fear of prosecution. Resourceful people can always manage to find their ways, while others will be forced to take the unwanted responsibility which potentially has greater health risks than abortion. They will have to face the socio-economic issues that come with unwanted pregnancies. Further self-managed abortions though with the right knowledge, resources and methods can be a safe option, it has its legal risks. People have been arrested and incarcerated earlier for ending their pregnancies going beyond the legal formal requirement of the law.

Effect of similar laws in other states

Alabama

In March 2014, House Bill 490 was passed which prohibited abortions after detecting a heartbeat. Though they became the first state to pass such a Bill, the Bill later died in the committee itself. Again, in 2019, and even more, extreme heartbeat law was passed altogether banning abortions at every stage and prosecuting the providers, and criminalizing the procedure except in health emergency cases.

Arkansas

Herein, the Heartbeat Bill banned abortions after twelve weeks. It was introduced and passed in 2013, which later on was issued an injunctive relief by a federal judge and finally was struck down for being unconstitutional.

Florida

In 2019, two identical heartbeat Bills were filed. One was  HB 235 along with a companion Bill SB 792. These Bills criminalized the procedure of the doctor to perform an abortion after the detection of the heartbeat as a third-degree felony unless it was an exception for a medical emergency. Later both the Bills died in the committee.

Georgia

In 2015, two heartbeat Bills were filed in the Georgia General Assembly. The Georgia House Bill 481 was passed in the House of Representatives and the Senate Committee and then by the entire state Senate in 2019. This has the effect of bringing into existence one of the most strict abortion laws in the country and prohibits abortions after detection of a heartbeat within six weeks.

Iowa

In 2018, an Abortion Bill was signed into law which was then declared to be in violation of the state’s Constitution and therefore its enforcement was prohibited with a permanent injunction.

Kansas

A similar abortion ban Bill was introduced in 2013 known as the House Bill 2324, however, despite many attempts for considering the Bill, it died in committee in 2014.

Kentucky

Two Bills banning abortion were introduced in Kentucky General Assembly in 2019 which was passed but later on was challenged by the American Civil Liberties Union (ACLU) due to which its enforcement was blocked until final order from the district court. Though many attempts were made by various representatives to introduce the Bill and overturn the decision in Roe v. Wade, but to no avail. Previous Bills such as HB 132 of 2014, HB100 of 2018, all died in the committee itself.

Maryland

Two Bills had been filed in 2019 in the Maryland House of Delegates under HB 933 and HB 978 which was entitled “Keep Our Hearts Beating Act”.

Missouri

In 2019, two Bills were filed as SB 129 which remain pending, and HB 126 which completed its pubic hearing and was passed and signed. The Bill bans abortions after 8 weeks without any exceptions.

North Dakota

The Bill HB 1456 was signed in 2013 in an attempt to explore the application of the Roe v. Wade decision. It was found to be unconstitutional and therefore was quickly blacked. Later a lawsuit was filed by the Centre for Reproductive Rights representing the only abortion clinic in North Dakota. The Bill was further blocked by the 8th U.S. Circuit Court of Appeals, when the case appealed to the Supreme Court, it was denied a writ of certiorari and upheld the decision of the 8th Circuit.

Ohio

Ohio introduced its heartbeat Bill in 2011 as HB 125 and was shelved by the Republican majority Senate. A companion law was also passed as HB 248 that would criminalize the doctors who do not conduct tests for a fetal heartbeat and would be a first-degree misdemeanour with 6 months in jail for the first violation and a fourth-degree felony with 18 months in jail, for subsequent violations. Again in 2019, Ohio General Assembly had 2 heartbeat Bills introduced before the 133rd session of the assembly. The Bill was passed, changes were ratified, and was signed into law. However, its implementation was blocked temporarily just a few days before the Bill was to take effect. 

Oklahoma

It has its fetal heartbeat Bill SB 1274 in effect since November 2012. It requires the abortion provider to offer the woman an opportunity to hear the heartbeat of the fetus before taking the final decision of ending the pregnancy and is applicable to a fetus that is 8 weeks old.

South Carolina

The Bill that was entitled “Fetal Heartbeat Protection from Abortion Act“, was introduced in the House Judiciary Committee in 2018. The law had an exception for excluding the cases of rape, incest, and medical emergencies of the life of the mother at risk. Previously similar legislation had been passed, however, this one after being signed into law in 2021 was blocked by the U.S District Judge following the lawsuit filed by Planned Parenthood and Greenville Women’s Clinic.

Tennessee

In 2019, two fetal heartbeat Bills were filed and were passed at all levels before the Public Health Committee and the full committee.

new legal draft

Wyoming

The Bill was introduced as HB 97 in 2013 and was struck down by the house committee.

Conclusion

The issue even today remains a cause of concern and a hot topic for presidential debates across the country. States have continued to pass stringent abortion laws which have time and again been challenged in court. The question that remains hanging is whether the Texas Bill will manage to come into effect and the decision in Roe v. Wade will be overturned or once again the Bill will be declared unconstitutional upon adjudication by the Court. There are attempts by the various activists and advocates to oppose the Bill with their full might before it comes into effect, however, that is left upon time to tell.

References

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Facilitating technology transfer : a new trait of IPR

By
Shoronya Banerjee
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0

This article has been written by Smitanshu Choudhary, pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction

Technology transfer, also called transfer of technology (TOT), is the process of disseminating technology from one person or organisation to another. These transfers may occur between educational institutions, research institutes, businesses (ranging between the sizes of a small business to a large one), multinational corporations, and governments across geographical barriers and geopolitical borders. Such dissemination of technology can happen in either a formal manner or informal manner or in an open transaction or closed transaction. Often such transfers occur in instances of efforts to share skills, technologies, knowledge, manufacturing processes, et cetera. Technology transfer ensures that new scientific and technological developments are easily accessible by a broader range of users, who can then exploit the said developments and, thereby, turning them into new products, applications, processes, et cetera.  Now that we have got an idea of what technology transfer refers to, in the brief write-up that follows, we will be looking into the importance of technology transfer, how the regime of intellectual property rights facilitates technology transfer and the Indian scenario of technology transfer. 

Importance of technology transfer 

As opposed to the popular belief, the mere publication of research does not guarantee the research garnering attention leading to someone noticing the discovery and further working upon it, leading to the development of a tangible product for mass utility. Discoveries need to be further developed in order for them to be turned into tangible products; this is achieved through collaborations with different people or organisations. 

Technology transfer facilitates the process of technological development of the early-stage intellectual property into tangible goods or tools for practical usage by the masses. Successful partnerships are created between researchers from several academic institutions or companies to enhance knowledge in a specific sector or to develop the technology further. These partnerships might lead to licensing or funded research possibilities for both parties. Furthermore, technology transfer ensures that the university’s intellectual property interests and rights are preserved. The university has the ability to keep the technology’s intellectual property rights and offer a license for conditional usage of the technology.

Research institutions and their commercial partners benefit from successful technology transfers as they result in the further development of technologies. The research institution gains recognition for its innovation potential and improves its reputation. Whereas, on the other hand, licensing technology from a university helps the industry partners cut expenses throughout the research and development process. 

The advances in technology aid in the growth of the local economy. The public is the ultimate beneficiary of such advancements. They are the ones who benefit from both – the items that reach the market and the jobs that follow from product research, manufacture, and sale due to technology transfer.

Importance of technology transfer for developing countries

As a source of new product knowledge, many developing countries rely heavily on technology from other countries. The necessity to obtain technology from foreign markets emerges as a result of a shortage of resources. Developing nations have sought both national legislation and international agreements to encourage international technology transfer. In addition, a lack of technological development might keep a country from progressing in the global arena. The most significant advantage of technology transfer is an increase in a country’s national revenue. The relocation of Panasonic’s microwave manufacturing base from the United States to China, which increased employment in the nation and provided mass-manufacturing benefits to the United States, is an example of developing-country technology transfer. India – Samsung example. As a result, technology transfer is critical for developing nations, as it promotes economic progress and goodwill.

How does technology transfer occur?

Technology transfer usually occurs through a license agreement in which the university/research institution retains the ownership of the intellectual property in question, while the other person or organisation to whom the property is transferred gains the right to develop a technology. Before the technology transfer occurs, inventors must describe and shed light upon the nature of their invention research institutions technology transfer office. 

Technology licensing experts assess discoveries to identify the technology’s intellectual property standing and prospective market. If there is no intellectual property available, no value to the industry, or adequate market competitiveness, the technology transfer office will be unable to proceed with the innovation. On the other hand, inventions with acceptable intellectual property and market position are given the go-ahead, and intellectual property rights are sought after. Once the intellectual property rights have been secured, innovation management and monetisation plans are adopted. 

How does IPR facilitate technology transfer?

Owing to the increase in competition among different sectors, technology has emerged as one of the forces spearheading the factors enabling the development of corporate entities and research institutions. Innovations in technology are playing an active role in shaping the global economic landscape. In today’s digital area, technologies have become more and more valuable, thus, becoming more likely to be targeted by infringers, thereby reducing the inventor’s incentive for the technology in question and future endeavors. Moreover, the infringers would be able to achieve the results at a lower price, thus, putting them in a better position than the innovator. Such infringements are when the regime of IPR comes in and restricts access to innovators’ technology.  

IPR protection that is appropriate and effective aids developing nations in their economic growth and technology transfer, gaining rewards for innovation and delivering returns on research & development investments. In contrast, insufficient IPR protection leads to spillovers of sensitive data by domestic firms, whereas excessive IPR protection leads to insufficient knowledge diffusion and hinders innovation growth. As a result, the choice of IPR is contingent on the country’s long-term innovation development and capabilities. In developed countries with prospective inventors, strong IPR protection prevails, allowing them to participate in innovative activities and therefore enhance economic growth. For rapid information dissemination as a source of technological growth, developing nations should accept insufficient IPR protection. Greater IPR protection may encourage developing nations to depend on indigenous businesses that specialise in counterfeiting and copying while rewarding inventiveness in developed countries.

The practice of technology transfer relates to voluntary or non-market transactions, as a result of which an organisation or a person gains access to technology developed in a different country. Therefore, policies made to develop an appropriate and effective IPR regime helps developing countries access foreign technology. Now, let us look into the inter-relation between IPR  and International trade, as well as IPR and FDI, and how they impact technology transfer. 

Intellectual property and international trade 

International trade acts as a crucial channel for the diffusion of technology. The patent strength and its effectiveness determine the pricing of traded technologies, as stronger patent strength creates a competitive advantage for distribution and sale services. Organisations encourage transferring technologies to countries with stronger IPR regimes as such regimes ensure profitability. It also increases market power, thereby decreasing competition. However, a weaker IPR regime does not stop the process of technology transfer completely as high-tech products are difficult to imitate; thus, they are transferred quickly. However, a robust IPR regime does ensure the transferability of high-tech, as well as low-tech products, from which the benefit of the masses can be ensured to the best possible level. 

IPR and FDI

FDI is a crucial source for the diffusion of technology resulting in technology transfer across borders or even when it is limited to the host country. However, it can also lead to spillover benefits for domestic firms. Due to FDI, domestic firms may find it easier to imitate the product via a reverse engineering. Because of the high expense of licensing, companies with complex technology and unique products choose FDI over licensing. Stronger IPR protection reduces the danger of technology spillover and increases technology licensing and joint ventures, whereas weaker IPR protection may deter FDI and negatively impact the country’s investment climate. For countries with absorptive capacity, FDI is seen to be effective. Aside from that, foreign inflows are higher in nations with stronger intellectual property protection since certain businesses require patenting at various phases of production.

Technology transfer : the Indian scenario

Section 83 (c) of the Indian Patents Act, 1970 states that “protection and enforcement of patent rights contribute to the promotion of technological innovation and the transfer and dissemination of technology”. In recent years, advancements in technologies have resulted in substantive changes in the patent regime of India, which has thereby impacted numerous businesses and organisations in India that rely on patents to protect their technological advancements and innovations. 

To support technological advancement in India, the Indian government has also taken quite a few initiatives in the form of national and state-level schemes, policies, regulations, or by amending pre-existing acts and rules. These include:

  • Declaration of 2010 to 2020 as the “Decade of Innovation”;
  • Adoption of initiatives such as Make in India;
  • Enactment of the 2016 Patent (Amendment) Rules and the 2017 Patent (Amendment) Rules;
  • Modernisation of IP offices; 
  • Appointment of new patent examiners and so on. 

These initiatives aim to facilitate and support the research and development processes for research institutions or corporate entities. As seen from the above discourse, there exists a strong relationship between the IPR regime of a country and its innovation, technology transfer, and growth, and the Indian government’s steps to facilitate the research & development processes shows that technology transfer is necessary for the economic growth of a developing country. 

Conclusion

Technology transfer is the process of disseminating technology from the owner of IPR to another. Technology transfer helps in the development of tangible products from mere early-stage IPR developments. Not only does the innovator and industrial partner benefit from technology transfer, even the local communities, and general masses at large benefit from them. This is due to the formation of new job opportunities due to technology transfer. 

The transaction for technology transfer can either be open or secretive, international or national. It usually occurs through licensing agreements; however, sometimes, companies utilise alternate routes for technology transfer. IPR facilitates technology transfer by regulating the marker and preventing imitation. From the discourse above, it becomes clear that a balanced IPR regime is the most suitable one for technology transfer. 

References

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Autonomous underwater vehicles and overview of the laws governing it

By
Diganth Raj Sehgal
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0
https://bit.ly/33hIP3D

This article is written by Gursimran Kaur Bakshi, a student at the National University of Study and Research in Law, Ranchi. The author of this article has extensively dealt with the laws concerning autonomous underwater vehicles (AUV), their usage both for military and non-military purposes, and their legality under international law. 

Introduction

Laws governing deep seas have changed drastically in the last few decades. What was once impossible, perhaps for the reason of remoteness, has now become possible with the advent of technology. The rapid use of technology has been developed for aerial, land, and maritime purposes.

But the development has been too aggressive for the accessibility of these technologies to allow superiority at the global forefront. Superiority either forces other states to pursue similar technological development or results in retaliation measures, such as the one done by China.

Growth of unmanned technology in recent times 

Recently, China seized a USNS Bowditch, an unmanned underwater vehicle (UUV) being operated by a United States government vessel near the coast of the Philippines in the South China sea. China later returned it because the vehicle was conducting route operations about 50 nautical miles northwest of Subic Bay in the Philippines and that is where China does not have legal jurisdiction. While unmanned remote technology still includes human input, the same is not available for autonomous underwater vehicles (AUVs). AUVs are an attractive option for deep-sea research and it does not require any human assistance. 

China was also in news for successfully testing a soft self-power autonomous robot made of a deformable silicone body in the Mariana Trench, the deepest part of the Pacific Ocean. This is unlike any other technological achievement since the autonomous robot is capable of being subjected to high pressure from the deepest point of the ocean and can be deployed for military and surveillance purposes as well. 

This article will first explore the concept of Unmanned underwater vehicles vis-a-vis the UN Convention on the Law of the Sea, 1982 (UNCLOS). It will answer pertinent questions like whether UNCLOS addresses a framework for regulating AUVs, in the absence of a framework what international laws can be applied for regulating AUVs, and what are the advantages and disadvantages of using this technology.

Before addressing these questions, the article will first explain, in brief, the laws of seas.

About autonomous underwater vehicles 

Overview of UNCLOS 

UNCLOS divides the sea into three parts, the first is the Territorial sea, which is measured from the baseline of a state which is its land boundary to 12 Nautical Miles (NM). This is the portion where the state exercises its absolute sovereignty. From 12 NM of the territorial sea to another 12 NM, which is 24 in total from the baseline, is the Contiguous zone.

Next is the Exclusive Economic Zone (EEZ) which extends from the baseline to 200 NM where coastal states have sovereign rights for exploring, exploiting, conserving, and managing living and non-living resources such as coral reefs, oil, and gas to name a few.  Beyond the EEZ is the high sea. No state can claim sovereignty which is also known as res communis, a concept that is preceded by the common heritage of mankind, in the high seas. States have freedom of navigation on the high seas and it is open to all states as per Article 87 of the UNCLOS. Since all states can exercise freedom and no state can claim it, this portion is also governed by other rules of international law in addition to UNCLOS.

About AUVs

The AUVs use advanced navigation and control systems against those being remotely operated by humans. It is designed to explore and exploit a deep oceanic environment. As maritime operation expands into deep waters and remote locations, there arises a need for more effective technology which provides a better gathering of information. 

The new technology is advantageous because it can simply be given instructions to perform a certain task and come back to its original location. AUVs can come in various forms, such as it could be developed to allow self-propulsion or being environmentally able. Currently, there is also a development on using AUVs for cargo load which was once only restricted to those vessels engaged in commerce and navigation. 

Now, the issue with AUVs is in regards to their regulatory framework. The UNCLOS does not recognise AUVs and in other laws such as the US maritime laws, the definition of the vessel is understood for the context of commerce and navigation. Whereas, AUVs are not meant to be used for such purposes and that is why there is a regulatory gap. Let’s understand the different defines of vehicle/vessel under UNCLOS and other laws.     

UNCLOS does not differentiate between UUVs and AUVs

UUV is a robotic technology that is divided into two categories of Remotely Operated Underwater Vehicles (ROUV) and AUV. UUVs are and should ideally be used to explore the depth of the oceans for scientific advancement, deep-sea exploration, research, and countermining purposes. It comes with cutting-edge technology that could be deployed for maritime security such as piracy and terrorism, surveillance, and illegitimate territorial claims to name a few. 

While the use of remotely-operated technology could be considered as an extension of the vessel operated through human input, the same cannot be said for those operated without any human assistance. There are common concerns associated with the use of unmanned technology especially during the current time when they are being used for aggressive technological developments. 

The UNCLOS does not differentiate between autonomous or remotely controlled vehicles. It also does not define terms like vessel and vehicle. It does not extensively deal with this aspect and discusses the undersea vehicle only within the context of the innocent passage under Article 20. This Article states that undersea vehicles are supposed to navigate on the surface with the state flag on the territorial waters of the sea. 

Innocent passage as defined under Article 19 allows foreign vessels to pass through the territorial waters of another state, provided, that the passage is not prejudicial to the peace, good order, or security of a coastal state such as it is exercised with weapons for any kind, launching or landing of any military device, or any the sovereignty and territorial integrity to name a few. However, apart from this, UNCLOS does not mention anything else about undersea vehicles.

Examples of UUVs are submarines. They are used by states for collecting oceanographic information, undersea cable repair, deep-sea research, search and rescue operations, and for military purposes. UUVs are also used in tapping or disrupting communication cables which are used to carry signals and data for both civilian and military purposes. In the latter case, intelligence gathering is done by states trying to get information against the rival country. For instance, in 2015, a Russian submarine and spy ships operated near the US undersea communication cables. 

Legal framework for AUVs under international law 

The first issue with AUVs is whether it is classified within the class of undersea vehicle or not. The answer to this is no. The UNCLOS does not contain any definition provisions on undersea vehicles. It only discusses the same in the context of innocent passages. Thus, a reference to UNCLOS would be inadequate in the context of AUVs.

The term ‘vessel’ apart from UNCLOS may find a definition in Section 3 of the Rules for Construction of the U.S Code as ‘every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.’ Similarly, another US maritime law, the International Regulations for Preventing Collisions at Sea (COLREG), defines a vessel as every description of watercraft including non-displacement craft and seaplanes capable of transportation on water. 

These definitions make one thing clear. The vehicle/vessel must be used for commercial purposes. Whereas, the same cannot be said for AUVs because they are not known to be used for such purposes. Their usage is specific for deepsea exploration and for things that are not possible with manned technology. Thus, these rules have no application on AUVs. 

But that does not mean that AUVs are absolutely outside the ambit of US maritime laws. As mentioned above, the definition of vessels requires that they must be able to be used for commerce and navigation. Certain classes of AUVs may then be subjected to the laws if they are used for the trade purposes such as cargo carrying AUVs. That is why countries are currently trying to explore the use of AUVs for commercial purposes. 

Other than this, a definition of a ship is available in the International Convention for the Prevention of Pollution of the Sea by Oil, 1954 (as amended in 1969). The Convention defines ships under Article 1 as those capable of making a sea voyage. It may include any sea-going vessel of any type including floating craft, whether self-propelled or towed by another vessel. All these definitions may or may not include AUVs within the ambit depending on the purpose of its usage. 

Use of AUVs in military applications 

Further, there is another debate on the possibility of AUVs being classified as warships. Article 29 of UNCLOS defines a warship as a ship belonging to the armed forces of a state bearing external marks distinguishing such ships of its nationality, under the commander of an officer duly commissioned by the government of the state and whose name appears in the appropriate service list or its equivalent and manned by a crew which is under regular armed forces discipline. 

While terms like vessels and vehicles may both being used in UNCLOS, they have mostly been referred to in the context of their navigational rights. The same set of rights and protection is not available to a warship under UNCLOS such as in Article 30, a warship prejudice to the interest of the coastal state needs to leave the water immediately. Moreover, UUVs used for military purposes cannot be the same used for navigational purposes as both are designed for two entirely different purposes and one is a manned technology and another one is unmanned.  

Legal challenges of using AUVs

Since the UNCLOS does not define what a vessel or vehicle means in terms of understanding the regulatory mechanism for the same, the same becomes problematic for defining an AUV. It is not possible to maintain undersea communication effectively as it requires expensive technology such as acoustic communication. 

Currently, the shift from completely autonomous vehicles for the purposes of military application is limited as it requires a lot of military investment and development. It is indeed true that increased autonomy gives a substantial advantage in warfighting. But it should be noted that no machine is entirely capable of being autonomous. The AUV system refers to increased autonomous capacities and not the system. Still, the use of AUVs for military purposes remains an anticipated and unexplored area. 

Moreover, there are ethical issues with AUVs, as many international scholars have debated, similar to unmanned weapons. This technology is also used by states for military purposes such as intelligence, surveillance and reconnaissance. It could potentially be used in future naval warfare since they are developed in a way to perform attacks similar to anti-submarine warfare. Apart from the traditional-looking AUVs, there have been recent innovations of AUVs made by silicone material which can sustain for a longer period and can even be operated in the deepest parts of the ocean which is the Mariana trench apart from the one developed by China already. 

Thus, these technologies are expensive and thus, not all states can have access to the same. But, there is a common consensus that it offers maritime superiority. Second, the threshold associated in terms of liability and responsibility with the access and use of autonomous technology is unclear because of the lack of uniform laws regulating the same. It can be anticipated that the same should be much higher than the remotely operated ones because the robotic technology is capable of achieving the unknown. 

Use of UUVs including AUVs for various purposes by States 

The United States is planning to procure three types of unmanned vehicles which include extra-large UUV. US’s Department of Navy has launched an unmanned campaign framework in 2021, that seeks to effectively deploy unmanned vehicles in the navy that will be more lethal and capable of effectively achieving its purpose. It will provide a framework on how to use this technology. US is planning to launch Orca Extra Large UUV which can be used for operational awareness and will accommodate large payloads, the first model of which will be completed in 2022. 

The US has also ordered two Remote Environmental Monitoring Units 300 UUVs, which are built for military and commercial applications, such as mine countermeasures and search and recovery from the Huntington Ingalls Industries.

China also owns UUVs. Recently, it showed off a large UUV HSU-001 which may be deployed for intelligence gathering purposes, especially against the US and its allies. China has a habit of claiming its right over unnamed territories, lands, and even parts of the South China sea under its string of pearls policy to make its presence in the Indian Ocean region. It also has indigenously developed Qianlong III and Haiya which are AUVs. 

China recently seized a US Navy UUV in the high sea, which was 50-100 NM off the Philippines’ Subic Bay port. This is another example of how China consistently tries to assert and challenges the powers of other states which in turn instigates states to deploy vehicles to retaliate. 

Russia is also planning to launch its UUV which is reportedly armed with megaton-class nuclear warheads. The UUV code-named as Kanyon by the US would be used against it to target both naval ports used by the U.S Navy’s submarine fleet and its coastal regions. 

Conclusion 

The future of UUV looks critical, for states that are now more interested in exploitation and if not exploitation then over-concerned about their naval security. While this issue makes it evident that the players betting on this technology are the developed states with financial capacity, the same may prove detrimental for the others. Deepsea remains an unknown area and it certainly makes many states curious over how it can be explored and the opportunities waiting in this aspect. Since unmanned technology has its set of advantages, it is obvious that it carries with it disadvantages as well. These disadvantages cannot be overlooked upon by states who are at the forefront of their maritime development.   

References 

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