Latest blog entries - Legally India http://www.legallyindia.com/Blogs/latest Sun, 05 Jul 2015 11:21:47 +0530 Joomla! - Open Source Content Management en-gb The Department of Telecom Report on Net Neutrality and OTT Services http://www.legallyindia.com/Blogs/the-department-of-telecom-report-on-net-neutrality-and-ott-services http://www.legallyindia.com/Blogs/the-department-of-telecom-report-on-net-neutrality-and-ott-services

As per recent news reports the Department of Telecommunications (“DoT”), in a report on net neutrality, has recommended against the regulation of over-the-top (“OTT”) services. Nevertheless, the DoT’s report favours ‘regulatory oversight’ on the OTT service providers offering local voice calls.

This report has been prepared by an internal committee formed by the DoT, comprising of 6 members, headed by Mr. A K Bhargava, Member (Technology). The report is presently not available in the public domain, however, the Minister for Communications and Information Technology has stated that the report of the DoT committee will be made public soon.

According to the media, the said report states “the committee favours regulatory oversight on the communication service providers. The committee believes that for (other) OTT application services (including those offering messaging and international voice calls), there is no case for prescribing regulatory oversight similar to communication services.” It has also been stated by the committee in the report that the internet telephony providers ‘bypass the existing licensing and regulatory regime’.

It is understood from certain news reports that the committee has observed that applications (such as Viber and WhatsApp) offering local calling services over the internet do not have to follow regulations as the telecom service providers do and this creates a non-level playing field between the said two providers of similar services. Further, as per certain media reports, the committee has also said that internet telephony providers (such as Viber, Skype, WhatsApp and Hike) should be regulated, through exercise of licensing powers available under Section 4 of the Indian Telegraph Act, 1885 and be brought under a licensing regime similar to the telecom operators (such as Airtel, Vodafone or Idea Cellular). Thus, the ambit of the ‘regulatory oversight’ remains to be seen.

The government is expected to take a decision relating to net neutrality after public consultation (our previous post on the consultation process can be accessed here) and recommendations of the Telecom Regulatory Authority of India (“TRAI”). The replies to the issues raised by the TRAI regarding net neutrality had been submitted and can be viewed here.

In a notable move, the committee has suggested and called for a new legislation to replace the Indian Telegraph Act, 1885 incorporating principles regarding net neutrality. As an interim measure, until the legislation is worked out the report proposes that the net neutrality principles could be enforced through addition of suitable conditions in the telecom licenses.

The said committee of the DoT recommended disallowing the controversial zero rating plans of the telecom operators and proposed a ban on throttling, traffic management policies and prioritisation, by any means, of the internet traffic.

28.613939 77.209021

Original author: Arjun Uppal


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mohdsalmanwaris@gmail.com (LocalLoop) Technology, Media & Telecommunications Fri, 03 Jul 2015 17:01:43 +0530
The ‘Digital India’ Initiative of the Government http://www.legallyindia.com/Blogs/the-digital-india-initiative-of-the-government http://www.legallyindia.com/Blogs/the-digital-india-initiative-of-the-government

The ‘Digital India’ campaign of the Government was launched on July 1, 2015 by the Prime Minister, Narendra Modi. The INR 1.13 lakh crore is aimed at creating a digitally empowered society and knowledge economy. The project has the potential to bridge the digital divide and benefit billions of people through digital solutions in education, banking, healthcare, irrigation and agriculture sectors.

‘Digital India’ comprises of initiatives targeted to render good and effective governance to the citizens through synchronized and co-ordinated activities of various arms of the Government. This is centered on three broad key areas of – (i) Digital Infrastructure as a utility to every citizen, (ii) Governance and services on demand, and (iii) Digital Empowerment of citizens.

The programme aims to provide broadband highways, universal access to mobile connectivity, public internet access programme, e-governance: reforming government through technology, eKranti – electronic delivery of services, IT for jobs, information for all and electronics manufacturing: target net zero imports.

The ambitious project comes with its set of challenges, some of which are:-

  1. Spectrum shortage: This can be said to be the biggest challenge. A visible trend shows that the numbers of wireless subscribers are growing and wireline subscribers are declining. Spectrum being a scarce resource, further mobile push is likely to make the situation worse. In case of the foreseeable happening of rise in the spectrum price, the telcos will not be in a position to provide affordable internet.
  2. Duty abnormalities affecting the domestic manufacturing of electronics: Manufacturing has for long been a slow growth sector and the electronics manufacturing has been no different. The government removed 11.5% excise duty concession for manufacturing of electronics. During the recent signing of Memorandum of Understanding between the National Association of Software and Services Companies (Nasscom) and the India Electronics and Semiconductor Association (IESA), the Minister of Communication and Information Technology, Ravi Shankar Prasad admitted that for increasing the electronics manufacturing in India, a correction in the duty structure is vital.

With these, among other, challenges likely to be countered, it would have to be seen how would the Government overcome them and successfully implement the Project.

According to an NDTV report, the Finance Minister, Arun Jaitley, said that this project is a part of a series of programmes intended to give a new direction to the country. He further said while last week saw launch of ‘Smart Cities Mission’, ‘Skill India’ educational initiative would be unveiled next week.

Under ‘Digital India’ the Government endeavours to provide broadband connectivity in all panchayats, Wi-Fi in all schools and universities and public Wi-Fi hotspots in all important cities by 2019.

At the launch event, India Inc committed INR 4.5 lakh crore investments in projects relating to ‘Digital India’ and also promises to create about 18 lakh jobs under the programme.

28.613939 77.209021

Original author: Arjun Uppal


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mohdsalmanwaris@gmail.com (LocalLoop) Technology, Media & Telecommunications Thu, 02 Jul 2015 15:17:12 +0530
EFFECT OF THE NEGOTIABLE INSTRUMENTS (AMENDMENT) ORDINANCE, 2015 (6 OF 2015) http://www.legallyindia.com/Blogs/effect-of-the-negotiable-instruments-amendment-ordinance-2015-6-of-2015 http://www.legallyindia.com/Blogs/effect-of-the-negotiable-instruments-amendment-ordinance-2015-6-of-2015 The President of India has promulgated the Negotiable Instruments (Amendment) Ordinance, 2015 (6 of 2015) on 15th June 2015. The amendments to the Negotiable Instruments Act, 1881 (“The NI Act”) are focused on clarifying the jurisdiction related issues for filing cases for offence committed u/s 138 of the NI Act.

A three Judge Bench of the Hon’ble Supreme Court in Dashrath Rupsingh Rathod vs. State of Maharashtra[1] held that a Complaint of dishonour of cheque can be filed only to the Court within whose local jurisdiction where the cheque is dishonoured by the bank on which it is drawn. This judgment overruled the earlier two Judge Bench Judgment of the Hon’ble Supreme Court in K. Bhaskaran v. Sankaran Vaidhyan  Balan[2] .

The Hon’ble Supreme Court in the matter of Dashrath, directed that the complaints u/s 138 NI Act should be returned to the Complainant to presented within 30 days from the date of such return before the Court having jurisdiction where the cheque is dishonoured by the bank on which it is drawn.

The amendment of 2015 inserted Section 142(2) in the Principal Act. The amendment reads as follows:

“(2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction –

     (a)    If the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

     (b)    If the cheque is presented for payment by the payee or holder in due course otherwise through his account, the branch of the drawee bank where the drawer maintains the account, is situate.

Explanation – For the purpose of clause (a), where the cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.”

 

To cite examples to understand the jurisdiction as per the amendment:

  1. A holds an account with Fort Branch, Mumbai of XYZ Bank, issues a cheque payable at par in favour of B. B holds an account with M.G. Road Branch, Pune of PQR Bank, deposits the said cheque at Nagpur Branch of PQR Bank and the cheque is dishonoured. The Complaint will have be filed before the Court having local jurisdiction where M.G. Road Branch, Pune of PQR Bank is situated.
  2. A holds an account with Fort Branch, Mumbai  of XYZ Bank, issues a cheque payable at par in favour of B. B presents the said cheque at Nagpur Branch of XYZ Bank, (but B does not hold account in any branch of XYZ Bank) and the cheque is dishonoured. The Complaint will have be filed before the Court having local jurisdiction where Fort Branch, Mumbai  of XYZ Bank is situated.

 Therefore, to summarise, firstly, when the cheque is delivered for collection through an account the complaint is to be filed before the Court where the branch of the bank is situated, where the payee or the holder in due course maintains his account and secondly when the cheque is presented for payment over the counter the complaint is to be filed before the Court where the drawer maintains his account.

 

In addition to the aforesaid amendment, Section 142A is inserted which reads as follows:

 

“(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases arising out of section 138 which were pending in any court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Act, 2015, shall be transferred to the court having jurisdiction under sub-section (2) of section 142 as if that sub-section had been in force at all material times.

 

(2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1), all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were presented for payment within the territorial jurisdiction of that court.

 

(3) If, on the date of commencement of the Negotiable Instruments (Amendment) Act, 2015, more than one prosecution filed by the same person against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section 142(2) before which the first case was filed as if that sub-section had been in force at all material times.”

 

Sec. 142A can be summed up as under:

  •  All cases pending before any Court, whether filed before it or transferred to it pending before 15th June 2015, shall be transferred to the Court having jurisdiction as per Sec. 142 (2).
  •  If a complaint is filed by the payee or the holder in due course against a drawer before the Court having jurisdiction u/s 142(2), all further complaints against that drawer shall be filed before the same Court where the first complaint is filed, irrespective of whether the cheque is presented or delivered for collection to the bank/ branch within the local limits of Court having jurisdiction where that bank/branch is situated.
  • If on 15th June 2015, there are more than one cases u/s 138 NI Act pending between the same parties in different Courts, then the cases should be transferred to the Court having jurisdiction u/s 142 (2) and all subsequent complaints between the same parties should be filed before the same Court.

In view of this amendment, all cases transferred pursuant to the judgment in the matter of Dashrath and all other pending cases would have to be transferred as per Sec. 142A

 

Dominic Braganza

Partner

Abhay Nevagi & Associates, Advocates, Pune


[1] (2014) 9 SCALE 97

[2] (1999)  7 SCC 510


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sanjana@anevagi.com (Abhay Nevagi Associates) Analysis Wed, 01 Jul 2015 14:28:36 +0530
Analysis of the Labour Code on Industrial Relations Bill – Part I (Trade Unions) http://www.legallyindia.com/Blogs/analysis-of-the-labour-code-on-industrial-relations-bill-part-i-trade-unions http://www.legallyindia.com/Blogs/analysis-of-the-labour-code-on-industrial-relations-bill-part-i-trade-unions

Editor’s Note: A group of faculty and students of the National University of Juridical Sciences, led by Prof. Saurabh Bhattacharjee, prepared a report on the Labour Code on Industrial Relations Bill, 2015. In a series of blog posts, the authors analyze the draft bill based on their report. This post is written by Sohini Chatterjee and Vasujith Ram, and examines the provisions relating to trade unions.

In this post, we comment on matters relating to trade unions in the Labour Code on Industrial Relations Bill, 2015 (‘Draft Code’ or ‘Code’). As per the Code, the erstwhile Trade Union Act, 1926 would stand repealed, and would instead be replaced by the provisions of the Code.

Requirements for Registration

The provision relating to requirement for registration makes several changes from the corresponding provision in the Trade Union Act, 1926 (S. 4). From a reading of the new Draft Code (S. 5(1)), it appears that at least 10% of the members of the establishment or industry must be members of the Trade Union seeking registration. The existing alternate threshold of 100 members has been removed without providing any explanation. The first proviso permitting 100 members to apply is only for the purpose of making the application. A minimum of 10% of the members of the establishment or industry have to be members of the Trade Union to qualify it for application.

Earlier, 7 or more members would have sufficed to apply for registration. The Draft Code however mandates that 10% or 100 members, whichever is less, are to be the applicants. In large establishments, this would inevitably mean that 100 members must be applicants for registration. This is inexplicable, especially in light of the amended requirement that the applicants must submit a copy of resolution authorizing applicants to apply (S. 6(1)(c) of the Draft Code).

The amendments relating to removal of the 10% threshold for the unorganized sector and the clarification with respect to Trade Union of employers are appreciated (S. 5(b) of the Draft Code). It has been rightly noted that employee-employer relationship is unclear in the unorganized sector, and thus the threshold has been inapplicable.

Rules of the Trade Union

In the clause relating to the provisions to be contained in the constitution and rules of the trade union (S. 9 of the Draft Code), a few changes have been made, notably with respect to subscription fee for members (provided for in a separate Section; also alternatively creating a general welfare fund) and office duration for members of the executive (reduced from 3 years to 2 years). The latter (S. 9(i) of the Draft Code) needs to be explained with reasons.

Recently, the Supreme Court of India in Charu Khurana v. Union of India, held that “A clause in the bye-laws of a trade union, which calls itself an Association, which is accepted by the statutory authority, cannot play foul of Article 21.” Thus, it may be useful to add a clause that the rules or bye-laws of the trade union must not be inconsistent with the constitution in letter and spirit.

Registration and Certification of Trade Unions

With respect to registration and certification of Trade Unions (S. 10 and S. 11 of the Draft Code), it is observed that a 60 day limitation period for the decision for the Registrar has been appreciably added. It has also been rightly provided that the Trade Union will be deemed to have been registered in case of non-communication of the decision of the Registrar within 60 days.  However, a couple of aspects may be clarified:

  1. If the Registrar communicates a decision to register the Trade Union, a certificate of registration is issued, and it is treated as “conclusive evidence” of registration (S. 10(2) of the Draft Code). However, what must be treated as “conclusive evidence” in case the Trade Union is deemed to have been registered due to non-communication of the decision within 60 days?
  2. Is the 60 day limitation period from the date of the original application? What if the Registrar sends the application back to cure defects – does the 60 day period or cycle begin again after curing the defects?

We also approve of the addition of clauses providing that: i) rejection of registration must be accompanied by reasons (a basic administrative law principle); ii) decision can be communicated electronically.

It must be clarified whether the applicant for cancellation can only be the registered trade union. For example, in Tirumala Tirupati Devasthanam v. Commissioner of Labour & Ors, the Devasthanam had applied to the registrar to cancel the registration of the trade union of its employees. The Supreme Court held that S. 10 of the IDA does not permit the Devasthanam to apply, and that only the trade union could do so. This position was reiterated recently in the case of R.G. D’Souza v. Poona Employees Union. There appears to be no objective reason to disallow applications by a different party to the registrar if there are grounds for cancellation. Even the appellate remedy under S. 13 of the Draft Code is also allowed only against refusal to register or cancellation. No remedy would be available to the employer or third parties even if there is a genuine case for cancellation of registration. The registrar, in any event, has to apply his mind and record reasons for cancellation (as provided by the Draft Code). Thus it is advisable to allow third parties to apply for cancellation.

S.13 of the Draft Code also states, “Any person aggrieved […]if the Registrar has not acted within 60 days on the application for registration may within such period as may be prescribed prefer an appeal to the Industrial Tribunal whose decision shall be final”. However, S. 11(2) of the Draft Code provides that there shall be deemed registration if the registrar does not act within 60 days. Thus it is unclear why a provision for appeal to the Industrial Tribunal needs to be provided.

Office Bearers of the Trade Union

While a few grounds for disqualification to be office bearer of trade unions have been added (such as being an office bearer in 10 other trade unions as well as order of Industrial tribunal), an important clarification has to be issued. In Section 25, a clarification needs to be issued with respect to what happens when a sitting member, who has been convicted, gets a stay on conviction? Does he retain his office or does he have to apply or contest again? This is an issue what the Election Commission of India has been grappling with, in the light of the judgment in Lily Thomas v. Union of India.

S. 27 of the Draft Code drastically reduces the allowed proportion of office bearers not engaged in the establishment or industry. For the unorganized sector, the earlier threshold was half, i.e., the number of officer bearers not engaged in the establishment or industry could not be more than half (S. 22(1) of the Trade Union Act). The Draft Code provides that the maximum number can be two. For all other sectors, the Draft Code completely bars anyone not engaged in the establishment or industry from being an office bearer. This is a drastic reduction from the earlier permitted number of one-third of the office bearers or five, whichever is less (S. 22(2) of the Trade Union Act). This reduction needs to be accompanied with reasons or explanation, since this affects the autonomy of the trade unions. Many of the campaigns and advocacy efforts, interlinked with the process of collective bargaining, would need the support and advice of non-workers.

Adjudication of Trade Union Disputes

S. 26 of the Draft Code is a separate provision for adjudication of disputes of trade. The Industrial Tribunal is the adjudicatory body and the jurisdiction of the civil court is explicitly barred. It also states that the order/award of the Tribunal shall be final. A possibility of a provision for appeal may be explored.

S. 26(2) provides that the appropriate government may make an application to the Tribunal for ‘seizing’ the trade union dispute when it involves a question of ‘considerable’ importance. There is no indication in the statute as to what ‘seizing’ entails. This may affect the autonomy of trade unions and may amount to interference with the due process of law. Similarly, S. 26(3) provides a corresponding power to the Central Government in cases of disputes of national importance or if one of the parties to the dispute has offices in more than one state. The ‘or’ is perhaps a typographical error and must be changed to ‘and’.

Original author: jilsblognujs


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jils@nujs.edu (JILSblog) Analysis Tue, 30 Jun 2015 20:12:51 +0530
Directive Principles of State Policy: An Analytical Approach – VI: Limiting Principles and Conclusion http://www.legallyindia.com/Blogs/directive-principles-of-state-policy-an-analytical-approach-vi-limiting-principles-and-conclusion http://www.legallyindia.com/Blogs/directive-principles-of-state-policy-an-analytical-approach-vi-limiting-principles-and-conclusion

S0 far, we have argued that the Directive Principles of State Policy ought to play a role as structuring values, which give concrete meaning to the abstractly-worded fundamental rights in Part III. But in that case, is there any difference that now remains between fundamental rights and directive principles, one may well ask – apart from the fact that laws cannot be struck down for violating the DPSPs? The Court answered that question in its 1982 case of Ranjan Dwivedi v. Union of India, well into the heyday of the Directive Principles era. Article 39A mandated the State to provide equal justice and free legal aid. In Ranajn Dwivedi, the petitioner’s claim to a State-paid counsel engaged at a fees commensurate with the fees the State was paying to its own counsel was rejected, the Court holding that:

“As is clear from the terms of Art. 39A, the social objective of equal justice and free legal aid has to be implemented by suitable legislation or by formulating schemes for free legal aid. The remedy of the petitioner, if any, lies by way of making an application before the learned Additional Sessions Judge.”

 In other words, the Court understood that shaping the State’s fiscal policy was most definitely beyond its remit. A similar set of concerns guided the Court’s decision in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan. In that case, the Court invoked Articles 38, 39 and 46 to read into the right to life the right to shelter, and a correlative constitutional duty upon State instrumentalities to “provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over [indigent persons’] heads to make the right to life meaningful, effective and fruitful.” In the same breath, however, it also held that “courts cannot give direction to implement the scheme with a particular budget as it being the executive function of the local bodies and the State to evolve their annual budget.” Thus, the Directive Principles played a structuring role in determining the contours of the right to life under Article 21, but insofar as enforcement of that right appeared to require decisions that, according to classical separation of powers models, belong to the legislative or executive branches, the Court said, thus far and no further.

This primarily institutional concern is reflected most vividly in the history of the right to education through the 1990s and the 2000s. In a series of cases such as Mohini Jain and Unnikrishnan v. State of AP, the Court invoked the Directive Principles to read into Article 21’s guarantee of a right to life, a right to education as well – but conspicuously refrained from going any further into an issue that would have profound economic and social implications, not to mention a massive reorientation of budgetary priorities. Eventually, it was the legislature that amended the Constitution to introduce Article 21A, codifying the right to education; and the Court’s task was to uphold the validity of legislation passed under that provision that imposed certain economic burdens upon private schools.

Conclusion

It has now become almost routine for the Supreme Court to invoke Part IV in its decisions – as routine as Articles 14 and 21. With the increasing role of the Directive Principles, the need for judicial discipline cannot be overstated. If the DPSPs are interpreted to mean everything, then they will end up meaning nothing. This series of posts has attempted to use constitutional text, history, precedent and philosophy to tether the DPSPs to a firm conceptual foundation, offering both a faithful description of existing practice, as well as prescriptive recommendations for the road ahead.

The Directive Principles, I have argued, serve three distinct roles in judicial interpretation. First, legislation enacted in service of the Directive Principles meets the “public interest” threshold in a fundamental rights challenge (importantly, its reasonableness must then be examined, and not on the touchstone of the Directive Principles). Secondly, if legislation is intelligibly susceptible to more than one interpretation, then the meaning that corresponds more closely to the DPSPs is to be preferred over others (although, as we discussed, the Court is yet to clarify the standard applicable to this enquiry). And thirdly, the DPSPs play a structuring role in selecting the specific conceptions that are the concrete manifestations of the abstract concepts embodied in the fundamental rights chapter. This is the best way to understand the Court’s dictum that fundamental rights “ought to be interpreted in light of the DPSPs.” There is thus a clearly delineated role for the Directive Principles in constitutional analysis.

The limits to this role are twofold: first, the Court may not strike down legislation for non-compliance with the DPSPs; and secondly, the Court may not incorporate the DPSPs to a point that requires it stepping outside its designated role under classical separation of powers theory – making policy choices and budgetary allocations (of course, the Court has not shrunk from this role more generally).

Such an approach, I suggest – although complex – is both intellectually defensible, and constitutionally faithful. Importantly, it ensures against the judicial drift that has blighted Articles 14 and 21, and is threatening to blight Part IV, with its recent, indiscriminate usage. Only time will tell, however, whether the Court follows this path.

Original author: gautambhatia1988


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gautambhatia1988@gmail.com (Gautam.Bhatia) Constitutional Law Tue, 30 Jun 2015 10:35:05 +0530
Katju moves Supreme Court against Parliament for resolutions passed against him http://www.legallyindia.com/Blogs/katju-moves-supreme-court-against-parliament-for-resolutions-passed-against-him http://www.legallyindia.com/Blogs/katju-moves-supreme-court-against-parliament-for-resolutions-passed-against-him

Markandey KatjuFormer Supreme Court Justice Markandey Katju has approached the Supreme Court of India through a writ petition praying for quashing of resolutions passed against him by the Lok Sabha and Rajya Sabha for his remarks against Mahatma Gandhi and Netaji Subhash Chandra Bose.

The Writ Petition has been filed by Shadan Farasat (Advocate-on-Record) and the blog states that “Senior Advocate Gopal Subramaniam will be Katju’s senior lawyer”.

It is worth noting that Supreme Court had recently in Devidas Tuljapurkar v. State of Maharashtra & Ors, dealt with a case related to defamation of Mahatma Gandhi through alleged obscene poems.

Parties
  1. Petitioner:
    1. Justice Markandey Katju
  2. Respondents:
    1. Speaker, Lok Sabha (Representing the Lok Sabha)
    2. Chairman, Rajya Sabha (Representing the Rajya Sabha)
    3. Secretary General, Lok Sabha
    4. Secretary General, Rajya Sabha

In March 2015, in his blog (www.justicekatju.blogspot.in), Katju had called Mahatma Gandhi a British agent and Netaji Subhash Chandra Bose a Japanese agent.

Subsequently his remarks were condemned by the Parliament of India – by Rajya Sabha on 11 March 2015 and by Lok Sabha on 12 March 2015 and both the houses passed resolution against Katju.

Reacting to the action of Rajya Sabha,  had blogged:

O wonderful news ! The Rajya Sabha ( the upper House of the Indian Parliament ) has passed a resolution condemning me!

May I make a humble.suggestion to the Hon’ble Members of the House ( because evidently they have run out of ideas ). Just pass a resolution that immediately on my return to India I will be arrested and hanged, drawn and quartered.without any trial. Na rahe baans na baje baansuri!

Later on he protested against the above resolutions alleging violation of principles of natural justice for being condemned unheard. He also suggested that he would take a legal recourse and said:

 Will no one defend me ? And will I not even be allowed to defend myself ?

Defends his stand

In his Writ Petition, a copy of which has been posted on his blog, Katju has defended his stand on Gandhi, submitting:

…by constantly using religious symbolism in politics for several decades, Gandhiji, in effect furthered the British Policy of Divide and Rule by alienating the Muslim population of the Indian sub-continent away from the national movement.

Defending his words against Bose, petition states:

…through his actions knowingly or unknowingly, he ended up perpetuating Japanese imperial interest in the Indian sub-continent.

Comments were academic in nature

The petition states that his statement was one “made by a private person and were academic in nature and were in fact a manifestation of scientific temper of a citizen.” To support his claim on scientific temper, petition cites a para from Nehru’s ‘Discovery of India’ and Article 51-A (h) of the Constitution of India.

93. There can be no two opinions that one can express his views freely about a historically respected personality showing his disagreement, dissent, criticism, non-acceptance or critical evaluation.

Violation of fundamental rights – Article 14, 21 and 19(1)(a)

Petition states that the resolutions passed by both the Houses of the Parliament were without jurisdiction – without giving the Petitioner [Katju] an opportunity to be heard and hence has caused the violation of the his rights under Article 14, 21 and 19 (1) (a) of the Constitution of India.

Resolution without Jurisdiction

Claiming that the resolution were without jurisdiciton, Petition states:

17. Thus the Impugned Resolution do not fulfil the jurisdictional requirement, and the necessary jurisdictional facts are lacking.  The present case is not a case of mere procedural irregularity. Further, whether or not the Petitioner’s statement are deplorable or condemnable can only be judged by bodies performing judicial function and cannot be decided by the Lok Sabha or the Rajya Sabha.

18.   That the power to pass resolution as in the instant case, is not a power which depends upon and are is necessary for the conduct  of the business of each House, and is therefore not protected under Article 105.

“Katju prejudiced”

Petition states that Katju has been seriously prejudiced, the condemnation causing grave and irreparable harm to his reputation, and life’s endeavour to uphold the Constitution, fundamental duties, and the rule of law.

Prayer

The petition makes the following prayer:

A. Quashing the Impugned Resolutions in respect of the Petitioner passed by the Lok Sabha on 12.3.2015 and the Rajya Sabha on 11.3.2015;

IN ALTERNATIVE TO PRAYER (A) ABOVE

B. Directing the Respondent No. 1 and Respondent No. 2 to give the Petitioner a post decisional hearing either himself or through his duly designated lawyer(s), and/or,

C. Pass such other orders as this Hon’ble Court may deem fit in the facts and circumstances of this case

It should be interesting to see how this case turns out to be. We will be back with some legal insight on this Petition.

Original author: Mohit Singh


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mohit@onelawstreet.com (OneLawStreet) Litigation, arbitration & dispute resolution Mon, 29 Jun 2015 18:25:13 +0530
Directive Principles of State Policy: An Analytical Approach – V: Framework Values in Operation http://www.legallyindia.com/Blogs/directive-principles-of-state-policy-an-analytical-approach-v-framework-values-in-operation http://www.legallyindia.com/Blogs/directive-principles-of-state-policy-an-analytical-approach-v-framework-values-in-operation

As discussed in the last essay, interpreting the DPSPs as framework values within which the nature and scope of Part III rights are determined, is perhaps the best way of understanding – and intellectually grounding – the Court’s approach that Mr. Seervai finds so unpalatable. In a series of cases, from Kesavananda Bharati through Minerva Mills and beyond, the Court has called for a “harmonious construction” of Parts III and IV, and regularly cited Granville Austin to observe that Parts III and IV “are complementary and supplementary” to each other, followed by vague pronouncements that leave it entirely unclear how this harmonizing is done, and what basis it has. If we view harmonizing as the Directive Principles providing the structural foundation within which fundamental rights are understood, it is not only one way of understanding what the Courts are doing, but also – as we have seen above – grounded in both text and history.

Although we have traced this interpretive approach to N.M. Thomas, we find glimpses of it throughout the Court’s jurisprudence. In his concurring opinion in Re Kerala Education Bill, for instance, Justice Aiyer refused to find a right to State recognition in minority educational institutions under Article 30(1) as implicit in the right to establish minority institutions, on the ground that this would make Article 45 redundant. Justice Aiyer was very clear that the question was not about a conflict between Article 30(1) and Article 45, and which was subordinate to the other. Rather, the question was about the content of the Article 30(1) right, whose determination was informed by Article 45.

 We can also find the argument in cases after N.M. Thomas. In Randhir Singh v. State of UP, the question was whether different pay-scales for drivers working in different departments violated Articles 14 and 16. Invoking Article 39(d) – equal pay for equal work, the Court held:

“Construing Articles 14 and 16 in the light of the Preamble and Art. 39(d) we are of the view that the principle ‘Equal pay for Equal work’ is deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do identical work under the same employer.”

This is precisely the kind of reasoning we have discussed above. The Court invokes the Directive Principles to understand what equality under our Constitution truly means, in concrete circumstances; that is, in this case, it is the Part IV commitment to equal pay for equal work that informs the understanding of the Court that a distinction in pay for similar work is precisely the kind of arbitrary/irrational classification that amounts to unequal treatment under Article 14. A similar argument was echoed in Atam Prakash v. State of Haryana, where the Court referred to the Preamble and the Directive Principles to examine whether a particular classification was legitimate under Article 14.

Interestingly, the argument made by the Court in N.M. Thomas, Randhir Singh and Atam Prakash had been anticipated as far back as 1973, in the context of Article 19(1)(a). In Bennett Coleman the Court held that the government was not permitted, under 19(1)(a), to impose restrictions upon big newspapers in an attempt to equalize market conditions and facilitate the entry of new players into the marketplace of ideas, who wouldn’t otherwise be able to compete. In so doing, the Court adopted a particular individualistic, liberal theory of free speech that rendered constitutionally irrelevant the economic conditions that limited access to the existing means of effective communication of ideas in society, such as newspapers, television etc., all of which require a substantial resource base. Justice Mathew’s dissent invoked the Principles to argue against this conception, and advocate an alternative vision of free speech that refused to separate the freedom of expression from the economic and social conditions that defined and shaped it in a liberal-capitalist society. He held:

“… any theory of freedom of expression must take into account… the right of the public to education arising from the affirmative duty cast on the Government by the directive principles to educate the people, apart from the right of the community to read and be informed arising under the theory of the freedom of speech itself.”

Justice Mathew’s rejection of free speech as an individual right of non-interference, in favour of it being a social good characterized by principles of equal access, was grounded in the DPSPs, much like N.M. Thomas’ changed vision of equality. And twenty years after Bennett Coleman, in LIC v. Manubhai D. Shah, the Supreme Court, in holding that Article 19(1)(a) required a having a right to reply, even for an in-house journal, in order to ensure complete information, essentially accepted the free-speech-as-a-social-good approach. Although the LIC court did not expressly cite Part IV, the implications are obvious, when it held that fundamental rights were broadly  phrased, as abstract concepts, precisely so that Courts could ground them and give them meaning in accordance the socio-economic goals found elsewhere in the Constitution (which, obviously, would be the Preamble and Part IV):

“[The framers] had themselves made provisions in the Constitution to bring about a socio-economic transformation. That being so, it is reasonable to infer that the Constitution makers employed a broad phraseology while drafting the fundamental rights…”

Similarly, in Bandhua Mukti Morcha, the Court referred to Articles 39(d) and (e), 41 and 42 to infuse substantive content into the dignitarian principle underlying Article 21’s guarantee of the right to life – and many of the substantive rights that the Court was to subsequently read into Article 21 were located within this dignitarian foundation. In Olga Tellis, used the same technique (relying upon Articles 39(a) and 41) to read in a right to livelihood under the right to life. In Nashirwar v. State of MP, the Court invoked the Directive Principles dealing with prohibition to infuse moral content into Article 19(1)(g)’s freedom of trade: the right to freedom of trade itself was held not to include activities of a res extra commercium nature such as trade in alcohol. And as recently as 2014, it invoked Articles 39(e) and (f) to hold the right to a safe and healthy environment was part of the right to life.

In sum, therefore: We have seen how the Directive Principles have structured the application of equality under 14-15-16, free expression under 19(1)(a), freedom of trade under 19(1)(g), and life under Article 21, helping the Courts to select what conceptions, our of a number of available (and conflicting) ones, all consistent with the abstract concepts of equality, speech etc., are concretely required by the Constitution.

But doesn’t this approach, it might be objected, render fundamental rights utterly subordinate to the Directive Principles? We are, after all, arguing for the Directive Principles playing a role in ascertaining the very content of fundamental rights. It is important to understand that this is not so. The Directive Principles, we have argued, inform the content of fundamental rights; they do not determine them. The fundamental rights continue to embody concepts, and concepts themselves not only have determinate meaning, but also have core, paradigm cases that any conception must respect and account for. To invoke an old chestnut: H.L.A. Hart’s famous “No vehicles in the Park” rule has its penumbra of doubt in the case of bicycles and toy trucks, where the decision might go either way without necessarily being right or wrong, but it also has its core of certainty that definitively proscribes buses and tractors. Similarly, the Directive Principles might tell us which conception of equality the Constitution subscribes to, as they did in N.M. Thomas, but they can only do so within the bounds allowed by the concept of equality.

The tortured history of Articles 31A and 31C seem to bear this out. 31A, aimed at land reform, was inserted into the Constitution following a series of Article 14 challenges to land legislation. 31A bars an Article 14 challenge to laws – inter alia – authorizing the acquisition of any estate, taking over the management of any property, and so on. Although the Amendment itself – historically – was necessitated by a particularly doctrinaire interpretation of equality by the early Court, it is also obvious that its provisions are broad enough for land legislation that might be difficult to justify on most conceptions of equality, even those shaped by the Directive Principles – hence the need for the protection of a constitutional amendment. Similarly, 31C insulated any law aimed at giving effect to anything in Part IV from a 14 or 19 challenge – clearly indicating that it is possible for Part IV-grounded laws to violate fundamental rights (hence, the need for an amendment to insulate them). This understanding, at least partially motivates the Court’s 2005 opinion in State of Gujarat v. Mirzapur Moti Kasab Jamat, another cow-slaughter case. There, the Court observed:

“A restriction placed on any Fundamental Right, aimed at securing Directive Principles will be held as reasonable and hence intra vires [as long as] it does not run in clear conflict with the fundamental right…”

In light of our discussion above, I suggest that “clear conflict” is best understood as implying the settled, indisputable central (or minimum) core of any concept (such as equality, free speech, freedom of conscience etc.) that conceptions cannot violate if they are to be conceptions of that concept in the first place. The Directive Principles are structuring values, but they themselves operate within a web of constraints determined by the very concepts (located in Part III) whose underlying structure they must provide.

Original author: gautambhatia1988


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gautambhatia1988@gmail.com (Gautam.Bhatia) Constitutional Law Mon, 29 Jun 2015 09:50:33 +0530
Directive Principles of State Policy: An Analytical Approach – IV: The DSPSs as Framework Values http://www.legallyindia.com/Blogs/directive-principles-of-state-policy-an-analytical-approach-iv-the-dspss-as-framework-values http://www.legallyindia.com/Blogs/directive-principles-of-state-policy-an-analytical-approach-iv-the-dspss-as-framework-values

In the previous post, we saw how in the 60s and 70s, the Court gradually chipped away at its earlier jurisprudence: beginning with making the Principles constitutionally relevant, and then erasing their subordinate status to the fundamental rights. The consequences of these two moves are crucial. Before we examine the cases, however, a brief digression into political philosophy is apposite.

It hardly needs repeating that Bills of Rights are framed in abstract language, laying down broad principles and concepts rather than concrete conceptions. Take the classic example of “freedom”. Everyone agrees that if I am locked up in a room, my freedom is curtailed. Everyone also agrees that my inability to fly unaided is a limitation upon my actions, but not an infringement upon my freedom. My body structure and the forces of gravity, which combine to render it impossible for me to fly, are simply background conditions that structure the world in which we all live. But now consider this: my lack of money bars my access to goods and services that I otherwise want or need. Is this a violation of my freedom? The philosopher Friedrich Hayek would answer in the negative, holding that only the intentional actions of individuals – and not the impersonal workings of the market – can constitute restrictions upon liberty. G.A. Cohen, on the other hand, would argue precisely the opposite. What, then, are we to make of a constitutional clause that promises freedom? Does it embody Cohen’s vision – and thus, potentially, place an obligation upon the State to provide adequate social security – or does it embody Hayek’s vision – placing no such obligation? Or another vision altogether? To answer this question, naturally, we must investigate the basic values that underlie the Constitution in question, and going beyond that, the political, economic and social values that structure the polity that has adopted that Constitution.

The result of the Indian Supreme Court’s twenty-year incremental approach to the Directive Principles brought it to a point, I argue, where the Directive Principles finally came to assume the role of these structuring values. The best example is State of Kerala v. NM Thomas. In order to understand what was at stake in NM Thomas, recall the judgment in Champakam Dorairajan, in 1951. The government’s affirmative action program for admissions to medical and engineering colleges was struck down on Article 15 grounds, and the state’s reference to the Directive Principles (Article 46) was rejected. That same year, Parliament amended the Constitution to introduce Article 15(4), specifically allowing for affirmative action in educational institutions.

The Court’s judgment, and Parliament’s action, demonstrate a specific vision of equality running through Articles 15 and 16. Let us call this the “colour-blind conception” of equality. This holds that there is a specific harm whenever the State classifies individuals on the basis of their caste, race, sex etc. – because historically, it was these bases that were used to sort people into categories, and determine their worth. Therefore, any distribution of benefits or burdens that classifies us into groups on such grounds, is presumptively suspect. Individuals are to be treated qua individuals, and not as members of groups. That this was the animating vision of the Dorairajan court is evident from the fact that it refused to locate the permissibility of remedial affirmative action within Article 15 itself, and that it required a specific amendment from Parliament to legalise it. Cases after Dorairajan affirmed this view, treating Articles 15(4) and 16(4) as exceptions to the 14-15-16 equality code.

While the colour-blind conception of equality is individual-centric, there is a competing vision. Call it the “group-subordination” vision. This argues that groups have been the locus of historic discrimination. Thus, remedial action must take into account the subordinate status of groups (such as women, or “lower-castes), and governmental policies are perfectly legitimate if they make groups the site of redressing historic discrimination and achieving genuine present-day equality. Article 46, which was cited and dismissed by the Court in Champakam Dorairajan, specifically envisages this conception, when it refers to the interests of the weaker sections of the people.

Under the colour-blind conception of equality, NM Thomas ought to have been an easy case. The question was about the constitutionality of caste-based affirmative action in employment. Article 16 guaranteed the equality of opportunity in employment. Article 16(4) carved out a specific exception for “socially and educationally backward classes.” It was not disputed that caste-based affirmative action was not covered by the 16(4) exception. Surely, then, this was a straightforward equal-opportunities violation. Not so, said the Court. Articles 15(4) and 16(4) were not exceptions to 15(1) and 16(1), but emphatic restatements of it. In other words, remedial affirmative action for certain historically subordinated groups was no longer grounded in 15(4) and 16(4), that specifically provided for it, but implicit within the logic of the Constitutional commitment to equality itself.

What justifies this departure from precedent, and seemingly from the text as well, that speaks of “persons” under Articles 15(1) and 16(1)? The majority doesn’t say, but Justice Mathew and Justice Krishna Iyer, in their concurring opinions, do. According to Justice Mathew:

“…if we want to give equality of opportunity for employment to the members of the Scheduled Castes and Scheduled Tribes, we will have to take note of their social, educational and economic environment. Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the Court… the guarantee of equality, before the law or the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality. It implies differential treatment of persons who are unequal… today, the political theory which acknowledges the obligation of government under Part IV of the Constitution to provide jobs, medical care, old age pension, etc., extends to human rights and imposes an affirmative obligation to promote equality and liberty. The force of the idea of a state with obligation to help the weaker sections of its members seems to have increasing influence in Constitutional law.”

This is crucial, because the shift from the precedent-based colour-blind vision of equality to a group-subordination conception is justified by invoking the Directive Principles in general, and Article 46 in particular. Articles 14, 15 and 16 set out the abstract concept of equality. Justice Mathew uses the Directive Principles to decide which conception – colour-blind or group-subordination – is more faithful to the Constitution. It is in this way that the Directive Principles act as structuring values. Thus, as Justice Krishna Iyer observed: “The upshot after Bharati, is that Article 46 has to be given emphatic expression while interpreting Article 16(1) and (2).”

The point is perhaps summed up best by Justice Bhagwati’s partially-dissenting opinion in Minerva Mills:

“Where a law is enacted for giving effect to a Directive Principle in furtherance of the constitutional goal of social and economic justice it may conflict with a formalistic and doctrinaire view of equality before the  law, but  it would almost always conform to the principle of equality before the law in its  total magnitude and  dimension…”

Once again, then, it is the directive principles that inform the conception of equality that Articles 14, 15 and 16 only lay out abstractly. More recently, Ashoka Kumar Thakur put the point another way, holding that “the facets of the principle of equality could be altered… to carry out the Directive Principles…”

 The present argument reflects a point first made by Tripathi, long before this jurisprudence came into being. In 1972, Tripathi argued that it is the Supreme Court’s “duty so to discharge its own function of enforcing fundamental rights as not to obstruct the legislature in its respective function of applying the directive principles in the making of laws.” Drawing an analogy with the American Supreme Court’s upholding of President Roosevelt’s extensive New Deal social welfare legislations (despite no express textual peg in the American Constitution on which to hang them), Tripathi understood the Directive Principles to be performing a similar function of mitigating the social evils that spring from a laissez-faire interpretation of formal equality, the right to property and other such civil rights. Indeed, Tripathi saw the abstract wording of Part III rights as an invitation for “judicial creativity”. The aim of this essay has been to demonstrate how such creativity might best be applied in a manner that is most consistent with the text, structure and animating philosophy of the Constitution.

This argument conforms with the three-pronged holistic interpretation of Article 37 that we discussed above. It is consistent with the prohibition on enforcement, while maintaining a place for the Principles in the judicial enquiry, and saving them from redundancy. It also tracks a strain of constitutional thought that was present throughout the late stages of the freedom struggle, up to the framing of the Constitution. In her survey of the primary material, Jayal notes that economic and social rights were understood through the 1930s and 1940s as essential for securing the “meaningful” enjoyment of civil and political rights. In his 1947 Memorandum, Ambedkar specifically argued that political democracy must ensure that an individual is not forced to “relinquish… rights as a condition of receiving a privilege”, and focused on the meaninglessness of civil and political rights to the unemployed, starving and economically powerless. Ergo, even if social and economic rights were not to be made enforceable, there was strong support for the proposition that meaningful civil and political rights could not exist without being conceptualised in a way that took into account socio-economic considerations.

This tempered understanding of socio-economic rights – unenforceable yet relevant – is evident in the Constituent Assembly Debates. Consistent with the role of the principles as structural values, arguments to make them more detailed and specific were repeatedly rejected. For example, an amendment to add the prohibition of monopolies to the Directive Principle prohibiting the concentration of economic wealth did not succeed. K.T. Shah’s proposal to add “socialist” to the Preamble was met with Ambedkar pointing out that the “socialistic direction” of the Constitution was provided by the Directive Principles such as equal pay for equal work, the rejection of the concentration of economic wealth, and so on. Yet perhaps the best evidence of the framers’ intent can be gleaned by Ambedkar’s elaborate speech in defence of the Directive Principles. Ambedkar identified the goal of the Directive Principles as the achievement of “economic democracy”, complementary to “parliamentary democracy”, which was the task of the rest of the Constitution. He steadfastly refused to identify economic democracy with a particular economic or political school of thought (notwithstanding his earlier remark about the socialistic direction of Part IV), only referring ambiguously to the principle of “one man, one value”.

Ambedkar’s speech does two things. First, it affirms that there is an animating vision underlying Part IV as a whole, one that is sufficiently abstract so as not to be tied to political and economic –isms, but also sufficiently constraining (through specific provisions such as non-concentration of wealth, equal pay for equal work, and so on). And secondly, if economic democracy and parliamentary democracy are meant to be complementary and of equal importance – as the speech reflects – then the interrelation between Parts III and IV that we have proposed appears to be a seamless integration of the two. Parliamentary democracy is guaranteed by the set of individual rights located in Part III; but the substantive content of those rights – whether equality means colour-blindness or remedying group subordination, for instance; whether the free speech guarantee requires the government to adopt a laissez faire approach or permits it to remedy market inequalities guaranteeing persons an equitable access to the modes of communication (like newspapers) – these questions, that Part III leaves open, are to be resolved by determining what economic democracy under Part IV means, and informing the content of fundamental rights based upon that understanding.

 

Original author: gautambhatia1988


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gautambhatia1988@gmail.com (Gautam.Bhatia) Constitutional Law Sun, 28 Jun 2015 10:36:14 +0530
Mandatory Reporting Under POCSO: Are We Ready? http://www.legallyindia.com/Blogs/mandatory-reporting-under-pocso-are-we-ready http://www.legallyindia.com/Blogs/mandatory-reporting-under-pocso-are-we-ready

by Mansi Binjrajka

Although there is much discussion and awareness about sexual violence against women, the same is not the case with child sexual abuse. In Dr. A. P. J. Abdul Kalam’s words, a “conspiracy of silence” surrounds the subject. This is partly a result of the deep-seated belief that child sexual abuse is a western concept, and not something that can occur in India. The fact that most families are uncomfortable talking about sexuality with children in their growing years exacerbates this problem.

It is time to dispel these myths. Child sexual abuse does occur in India. Although there is very little empirical data available on the scale of abuse in India, a study conducted by the Ministry of Women and Child Development in 2007 revealed that every second child in the country is facing some form of sexual abuse and the perpetrator in 50% of the cases is a person known to the child.

A step in the right direction was the enactment of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’), a move finally fulfilling India’s international obligations under the United Nations Convention on the Rights of the Child and the Convention on the Elimination of all Forms of Discrimination Against Women. One of the controversial sections in this Act is Section 19 under which every person is required to report apprehensions or knowledge of offences having been committed against children to the police. Failure to report attracts imprisonment of up to six months and a fine or both.

Mandatory reporting can be quite the double-edged sword as can be seen from the divided views on the topic. The proponents have a simple argument.  Imposing an obligation is the only way to detect all cases of abuse because children do not have the resources to protect themselves. Mandatory reporting becomes especially important in light of the proximity of the offender to the children, the offenders most commonly being fathers, cousins, uncles, brothers-in-law, and neighbours. These cases involve continued abuse over a number of years and often go unreported. If other family members know about the abuse they either remain silent, or disbelieve the child or ask them to remain silent due to fear of social stigma and an unwillingness to implicate family members. Children are unable to remove themselves from the abusive conditions and hence, they need adults to act on their behalf. Simply put, mandatory reporting protects children from further abuse and prevents the abuser from abusing again.

However, mandatory reporting alone cannot ensure effective intervention in all cases of abuse. “Well-framed legal provisions, adequate teacher training, good reporting practice, and properly-resourced investigative and intervention bodies”[1] are required to complement mandatory reporting. Are these too many assumptions in the Indian context? Have we put the cart before the horse?

A point of difference between mandatory reporting under POCSO and the same under laws of other countries is that it imposes an obligation on every person. In most states of USA, Australia and most member states of the EU, only certain professionals such as doctors, teachers, counselors, social workers, psychologists are mandated reporters. These are categories of people who are frequently in contact with children and are sensitive to the manifestations of sexual abuse in the form of behavioral changes, low self-esteem, and aggression among others. This advantage is lost when every citizen is a mandated reporter, which may result in the lodging of false complaints, the most common argument adopted by opponents of mandatory reporting. Is the penalty for false reporting under the Act sufficient to discourage over-reporting?

Now that we have put the cart before the horse, there is a need to focus on putting things in the right order again. RAHAT, a project that aims to provide socio-legal assistance to victims of sexual abuse has discovered that one of the main fears held by victims is the process that follows after a complaint has been filed with most of them discouraged by imagining the time period between the filing of the FIR and the conclusion of the trial. By providing assistance at every stage after an FIR has been filed, RAHAT has been able to secure a conviction in 70% of its cases. Their support, which includes counseling and preparing the child for the court procedures, goes a long way in helping the case reach its logical conclusion. Their findings seem to suggest that the problem lies in the absence of child support systems. Many problems crop up after a report has been made. What is the use of mandatory reporting if, for example, the victim and the witnesses turn hostile, or if the entire procedure after the filing of the complaint does more harm to the child?

The tension between under-reporting and over-reporting is inevitable as long as there is a gap between the requirements and the existing structures. In the absence of proper data, it becomes difficult to make probable claims about the implications of mandatory reporting. It is unfortunate that the National Crime Records Bureau statistics do not provide any data about cases under POCSO. Since we already have mandatory reporting, the focus should not be on whether it is good or bad, but instead on what needs to be done to make it work.

(Mansi Binjrajka is an Associate Editor at the Journal of Indian Law and Society)

[1] Ben Mathews & Kerryann Walsh, Issues in Mandatory Reporting of Child Sexual Abuse by Australian Teachers, 9 Austl. & N.Z. J.L. & Educ. 3 (2004).

Original author: jilsblognujs


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jils@nujs.edu (JILSblog) Analysis Sat, 27 Jun 2015 16:02:27 +0530
Directive Principles of State Policy: An Analytical Approach – III: The Relationship between Fundamental Rights and Directive Principles http://www.legallyindia.com/Blogs/directive-principles-of-state-policy-an-analytical-approach-iii-the-relationship-between-fundamental-rights-and-directive-principles http://www.legallyindia.com/Blogs/directive-principles-of-state-policy-an-analytical-approach-iii-the-relationship-between-fundamental-rights-and-directive-principles

In this post, we continue our examination of the place and role of the Directive Principles of State Policy within the constitutional scheme. Part I dealt with the conceptual foundations underlying the division between fundamental rights and directive principles, and Part II focused on the history and text of Article 37, along with early judicial interpretation. In this post, we shall look at the Court’s evolving understanding of the relationship between Directive Principles and Fundamental Rights over time)

As we discussed towards the end of Part II of this series, the Supreme Court judgment in Re Kerala Education Bill  marked a shift in the Court’s understanding of the DPSPs. In the first decade of its existence, the Court had largely cleaved to H.M. Seervai’s understanding of Part IV – namely, that the directive principles were politically significant but constitutionally irrelevant. In Re Kerala Education Bill, however, we see for the first time the fateful phrase – “harmonious construction of fundamental rights and directive principles”. Harmonious construction – a phrase borrowed from the legislative competence cases – is of elastic ambit, and has been used elastically by the courts. In this post, we consider two ways in which the court has understood the relationship between Parts III and IV of the Constitution.

The Directive Principles as Markers of Reasonableness

The Indian Constitution provides inbuilt, textual limitations to its fundamental rights. For instance, Article 19(1)(g), that guarantees the freedom of trade, also permits the government to legislate “reasonable restrictions… in the interests of the general public”. In the aftermath of In Re Kerala Education Bill, the Court began to invoke the DPSPs to decide the ambit of the restrictions upon fundamental rights. This happened primarily in the realm of labour legislation, where a number of employee-oriented laws were challenged under Article 19(1)(g). In Prakash Cotton Mills v. State of Bombay, the question was whether the state could compel companies to join collective bargaining agreements that they had not directly consented to. Examining the application of Article 19(1)(g), the Bombay High Court observed:

“In the larger interests of the country an employer must submit to those burdens and carry on his business in conformity with the social legislation which is put upon the statute book.” (para 6)

While Prakash Cotton Mills did not directly refer to the Directive Principles, Jugal Kishore v. Labour Commissioner did so, citing no less than three of the Principles to hold that notice requirements and other restrictions upon employers’ discretion were restrictions in interests of the general public. Similarly, in Chandrabhavan v. State of Mysore, the Court upheld state minimum wage legislation, cursorily dismissing the 19(1)(g) claims of the employers by stating:

“We are not convinced that the rates prescribed would adversely affect the industry of even a small unit therein. If they do, then the industry or the unit as the case may be has no right to exist. Freedom of trade does not mean freedom to exploit.” (p. 612)

 Chandrabhavan is also noticeable in that it came at the end of the 60s, and marked another shift in the Court’s jurisprudence by abandoning the “subordinate-but-relevant” doctrine of In Re Kerala Education Bill. In Chandrabhavan, the Court observed that the bill of rights and the directive principles were “complementary and supplementary” to each other. In some way, this approach had already been adopted in Golak Nath v. State of Punjab, and it was echoed in two of the important constitutional cases of the 70s, Kesavananda Bharati v. State of Kerala, and Minerva Mills v. Union of India. The Court rationalized this approach by defining the directive principles as “social goals”, and the fundamental rights as “side constraints” to be scrupulously adhered to by the government in its pursuit of those goals. In thirty years, therefore, the Court moved from a position where the Directive Principles were constitutionally irrelevant to a point where they were constitutionally at par with the bill of rights, with the only difference being that citizens could not move the Court directly to enforce them. Yet the judgments of the 70s, placing the Directive Principles on the same conceptual level as the bill of rights was to have far-reaching consequences, as we shall presently note.

The shift in the 70s, that we shall go on to discuss, was complementary to the reasonableness-of-restrictions approach. It did not replace it. Throughout its history, the Court has regularly invoked the Principles to find that Article 19 restrictions are valid, in fairly unproblematic ways. The Court has done this through a simple argument: the Directive Principles, it has held, are self-evidently expressions of what public interest is. Any governmental policy aimed at advancing a Directive Principle, then, cannot but be in the public interest, and can, at times, raise a presumption of reasonableness. Unfortunately, the Court has also held, on occasion, that such a policy is reasonable simply by virtue of being enacted in pursuit of a directive principle.

This is clearly unwarranted. Consider, for example, the 2012 Right to Education Case. The Court held that the obligations imposed by the Right to Education Act upon private schools – i.e., a compulsory 25% intake from economically underprivileged households within a certain catchment area – to be reasonable restrictions under Article 19(6), by virtue of being in pursuance of the Directive Principles. The Court would probably not have reached the same result had the compulsory reservation been, say, 80%, although that too would have been in pursuance of the Directive Principles. Clearly, then, it is quite possible to implement the goals set out in Part IV in an unreasonable manner. This was something the Court clearly understood in Mirzapur Moti, where it held that a restriction aimed at fulfilling the Directive Principles will be reasonable insofar as it does not run in “clear conflict” with the fundamental right. It is this line of reasoning that is correct and – it is submitted – ought to be followed in the future.

The Directive Principles as Interpretive Guides

Once the Court had cleared the path for invoking the Directive Principles in legal adjudication in In Re Kerala Education Bill, it was not long before it took the next logical step: using them as interpretive guides. In Balwant Raj v. Union of India, a 1966 judgment of the Allahabad High Court, an employee of the Indian Railways contracted tuberculosis and was unable to come to work for a time. Consequently, he was discharged for “failing to resume duty” under the stipulated rule. Reading the Directive Principle requiring the State to secure the right to work, the Court limited the phrase “failing to resume duty” to voluntary failures, holding that “the rule must be interpreted in accordance with letter and spirit of the Directive Principles of State Policy.” Thus, the Court assumed the legal fiction that the State had, in fact, applied the Principles in framing the contested legislation.

Yet what, precisely, is the strength of that legal fiction? A survey of comparative constitutional practice reveals four distinct standards that constitutional courts have adopted when construing legislation to harmonise with standards contained in a super-statute or Constitution. Let us call these four standards “weak”, “medium”, “strong” and “modificatory” .

A weak standard only requires Courts to select that interpretation, out of a series of equally reasonable interpretations arrived at independently, which coheres better with the background right at issue. A medium standard, found in New Zealand, requires a meaning that is “fairly open… and tenable” to be preferred if it is consistent with the bill of rights. The strong standard, adopted by the UK Supreme Court in interpreting the Human Rights Act, goes one further and allows for any interpretation, no matter how strained, to be preferred if it is consistent with the Human Rights Act and is an intelligible reading of the statute in question. And the modification standard goes furthest of all – it stipulates that the meaning of legislation itself is to be determined by referring to the background right.

In Balwant Raj, the Court adopted – arguably – a strong standard of review, infusing an additional condition into a provision that was nowhere in evidence on its face. Subsequently, however, it went even further: in UPSEB v. Hari Shankar, the Supreme Court was interpreting the phrase “Nothing in this Act shall apply…” The technical details of the case need not detain us here; it is this observation of the Court that is striking:

“That is the only construction which gives meaning and sense to Sec. 13-B and that is a construction which can legitimately be said to conform to the Directive Principles of state Policy proclaimed in Articles 42 and 43 of the Constitution.” (p. 371)

In other words, the Court treated the Directive Principles as constitutive of legislative meaning: the maximum degree to which it could infuse directive principles into the law without directly enforcing them. This strong vision of the Directive Principles has been latent in the Court’s jurisprudence since then. In 2013, for example, the Court invoked the Directive Principles in determining the meaning of the phrase “public purpose” under Article 282 of the Constitution. It held that the Tamil Nadu state government’s distribution of free televisions was a valid “public purpose” under Article 282 because it was in pursuance of the Directive Principles.Unfortunately, however, the Court – thus far – has failed to undertake a coherent, doctrinal analysis of the precise role that the Principles are meant to play in statutory interpretation.

In the next essay, we shall examine – and defend – one final way in which the relationship between Parts III and IV has been instantiated by the courts: that of using Part IV to establish the framework values within which Part III rights are given meaning and sense.

Original author: gautambhatia1988


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gautambhatia1988@gmail.com (Gautam.Bhatia) Constitutional Law Sat, 27 Jun 2015 13:01:26 +0530
Guest Post: Why the Collegium will revive if the NJAC is Struck Down http://www.legallyindia.com/Blogs/guest-post-why-the-collegium-will-revive-if-the-njac-is-struck-down http://www.legallyindia.com/Blogs/guest-post-why-the-collegium-will-revive-if-the-njac-is-struck-down

(We are continuing our coverage of the key issues in the NJAC litigation. In this guest post, Saranagan Rajeshkumar argues that were the Supreme Court to strike down the 99th Amendment, the Collegium would revive).

Over the past week, most individuals involved in this debate seem to be of the opinion that if the Supreme Court proceeds to strike down the 99th Amendment Act the country will then face a void, where there will be no process for appointment of judges to the higher judiciary. Even the Union, in its submissions, seems to be of this opinion. This is because the collegium system of judicial appointments is an institution fashioned by the Supreme Court based on its construction of the phrase “consultation with such of the Judges of the Supreme Court and of the High Courts” under Article 124. Thus the Union believes that if these words are removed from the constitution, then even in the case the amending act is struck down, the words themselves will not revive.  However, this is far removed from the actual position of law.

It is true that when it comes to ordinary statutes, a repeal of the statute would mean that the statute had never existed in the first place. Thus, in the context of an amendment – since it involves the repeal of the earlier provision of law and then the enactment of a new one – when an amending act is struck down the pre-amendment version of the act will not revive. However, there are three exceptions to this rule, collectively known as the “doctrine of revival”.

Firstly, when an act is struck down for want of legislative competence(such as when it is not of a subject mentioned in the relevant constitutional list) then the amending act itself is deemed to be ‘still-born’. The implication of this is that the amending act itself is held to have never been in existence, thus reviving the old act.  The second exception is invoked when an act is struck down as being violative of one of the fundamental rights under the constitution. The result, again, is that the act, as it stood prior to the amendment, will revive. These exceptions have been clearly laid down by the Supreme Court in the case of State of Tamil Nadu v Shyam Sunder.

“Thus, the law on the issues stands crystallized that in case the Amending Act is struck down by the court for want of legislative competence or is violative of any of the fundamental rights enshrined in Part III of the Constitution, it would be un-enforceable in view of the provision under Article 13(2) of the Constitution and in such circumstances the old Act would revive, but not otherwise.”

The third exception, however, is something which is yet to come up before the Supreme Court and has till date only been addressed by the High Court of Madhya Pradesh in its decision in Sharique Ali v State of Madhya Pradesh. In this case, the court held “any law that corrodes the basic essence of the Constitution cannot be regarded as a good law and when the same is struck down the original provision rises like phoenix and the doctrine of revival gets attracted”. Therefore, even when an amending act is violative of the basic structure of the constitution, and not any specific provision, it must be held to have never been in existence, thus reviving the old law. It is this test of the basic structure, which will be employed in deciding the constitutionality of the NJAC. Thus, if the NJAC is struck down as being violative of the basic structure, then Article 124 of the Constitution as it stood prior to the NJAC amendment should revive and the collegium should also be restored as well.

Admittedly, these three exceptions were laid down in the context of ordinary statutes and not that of constitutional amendments. Ordinarily it is true that statutes must be treated on a different footing as compared to constitutional amendments, such as for the purpose of Article 13. But this is because, as the Supreme Court has held, amendments are made in exercise of constituent power, while laws are made in exercise of legislative power. The difference in the kind of power that the parliament exercises will have no bearing upon the doctrine of revival. Consequently, the logic that an act that violates the Constitution is still-born, should apply with equal force to an amendment that violates the basic structure.

Nonetheless, the applicability of the doctrine of revival to constitutional amendments, as opposed to ordinary laws, has never been conclusively pronounced by the Supreme Court. This question was to be decided in the case of Property Owners Association vState of Maharashtra, which was then referred to a 9-judge bench of the Supreme Court. The 9-judge bench is yet to hear the case. In this case, the question that was to be decided was whether subsequent to the case of Minerva Mills v Union of India, which struck down parts of Article 31C of the Constitution, the un-amended Article 31C would be revived?

However, a closer look at the order of the lower bench would reveal that the only issue that has in fact been referred to a larger bench is only the interpretation of Articles 39(b) and 39(c) and not the question of applicability of the doctrine of revival. Since the case concerned an exception under the constitution under Article 31C, given to statutes passed pursuant to Articles 39(b) and (c), the question of interpretation of the two articles would be irrelevant if the doctrine of revival did not apply. Thus, it must be assumed that the 5-judge bench held that the un-amended Article 31C had been revived.

The implication of this is that the Supreme Court, in the case at hand, will not be prevented from deciding on the revival of the Collegium since the referral 9-judge bench is not on a similar question.

It must be noted that even prior to Property Owners Association, in the case of Rashtriya Mill Mazdoor Sangh v Union of India and in State of Maharashtra v Basantibai Mohanlal Khetan, the Supreme Court, by applying the un-amended Article 31C, had implicitly accepted its revival. In fact, in the later case, it was stated:

” Let us proceed on the basis that after His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala [1973] Supp. S.C.R. 1. and Minerva Mills Ltd & Ors. v. Union of India & Ors. [1981] 1 S.C.R. 206, Article 31C reads as “notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on  the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or Article 19.”

Considering that Minerva Mills was the case that struck down the amended 31C, this paragraph provides strong support to the doctrine of revival.

These decisions were of particular relevance in the case of Shri Qucxova Sinal Cundov Union of India, where the Bombay High Court, considering that the Supreme Court had upheld the validity of un-amended Article 31C, held that the High Court would have no option but to accept the same as binding. The Court held that despite the existence of the common law rule that the striking down of an amending act would not revive the old law, un-amended Article 31C must be considered valid.

Thus, if the logic which upholds the validity of un-amended Article 31C were to be extended to Article 124, then even if the court were to strike down the validity of the 99th Amendment Act, the old Article 124 would be revived and along with it the collegium.

(Sarangan is a third-year student at NLSIU Bangalore)

Original author: gautambhatia1988


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gautambhatia1988@gmail.com (Gautam.Bhatia) Constitutional Law Wed, 24 Jun 2015 19:41:10 +0530
CLAT 2015: Satyamev Jayate - Truth Alone Wins http://www.legallyindia.com/Blogs/clat-2015-satyamev-jayate-truth-alone-wins http://www.legallyindia.com/Blogs/clat-2015-satyamev-jayate-truth-alone-wins

CLAT 2015 Organizing Committee has openly and brashly refused to accept the most obvious errors in the Question Paper for one simple reason – they know from experience that human beings, including the youth, are by nature laid-back and lazy.

They know they can count upon this laziness of today’s youth – which will never go beyond a few sporadic expressions of their frustration scattered over Facebook and Twitter.

If even a handful of ‘law’ aspirants this year truly have the fire in their belly to fight against injustice, and prove the CLAT organizers wrong, this is their moment of opportunity.

Sit on a ‘Dharna’ in your City

The world’s largest fires begin with the burning of a single match-stick. When Bhagat Singh, Rajguru and Sukhdev decided to bring a revolution against an oppressive, imperialist British empire, they did not wait for a large crowd of people to back them. They simply did it alone.

If just three young students today decide to sit on a peaceful, democratic ‘dharna’ in the center of their town or city to expose the imperialist arrogance of the CLAT 2015 Organizing Committee, it can spark off a debate, catch the attention of the national mainstream media, wake up the judiciary, and transform CLAT forever. History will remember the names of those students, and undoubtedly, they will make outstanding careers as lawyers in the future – CLAT or no CLAT.

SC Quotes Bhagat Singh

The Supreme Court of India extensively quoted Bhagat Singh in the case of Bhanumati v. State of U.P. AIR 2010, SC 3796. Here are some excerpts from what the Supreme Court said in that case:

Quote

In the criminal trial Crown v. Bhagat Singh, the great martyr Bhagat Singh said:

“I, Bhagat Singh, was asked in the lower Court as to what we meant by the ‘Revolution’. In answer to that question, I would say that Revolution is not the cult of the bomb and the pistol. By Revolution we mean that the present order of things, which is based on manifest injustice, must change. Revolution is the inalienable right of mankind. To the altar of this Revolution, we have brought our youth as incense; for no sacrifice is too great for so magnificent a cause.”

The Supreme Court remarked: “Let these momentous words of a convict of British India form part of the judicial record in the last Court of our Democratic Republic, the largest democracy in the world.”

The Supreme Court concluded: “The Judge cannot act like a phonographic recorder, but he must act as an interpreter of the social context articulated in the legal text. The Judge must be, in the words of Justice Krishna Iyer, “animated by a goal oriented approach” because the judiciary is not a “mere umpire as some assume, but an active catalyst in the Constitutional scheme.”

Unquote

Be the Game-changer

The young CLAT 2015 students who are feeling cheated and humiliated by the unbelievable arrogance of the CLAT Organizing Committee must find the courage to stand up for themselves. There is no need to feel helpless. Every challenge is but a hidden opportunity. History waits for that game-changer who finally decides to seize that opportunity and rises to the occasion.

Remember the words of the popular American poet Ezra Pound: “A slave is one who waits for someone else to come and free him.”


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gsbgsb31@gmail.com (GSB) News and current affairs Mon, 22 Jun 2015 20:42:45 +0530
A suicide for no purpose: Beijing loyalists’ self-destructive move on electoral reform package in Hong Kong http://www.legallyindia.com/Blogs/a-suicide-for-no-purpose-beijing-loyalists-self-destructive-move-on-electoral-reform-package-in-hong-kong http://www.legallyindia.com/Blogs/a-suicide-for-no-purpose-beijing-loyalists-self-destructive-move-on-electoral-reform-package-in-hong-kong
The Chinese honor the memory of Qu Yuan, a poet and political activist (3-4 Century BC) on the 5th day of 5th lunar month of every year. Yuan took part in a fight to save his state against hostile take over by a neighbouring state but had to retreat and be in exile owing to orchestrated maligning of his character. He wrote poetries creating a genre of political and philosophical verses. Finishing his masterpiece, he chose to give up his life by drowning than being a witness to the loss of his state. Yuan was so loved by the people that they rushed in boats to rescue him and later threw cooked rice in water that fish spares his body.  This is a popular legend of Dragon Boat festival. The festival includes dragon boat races that replicate the haste to save the life of Yuan and eating Zongzi, cone shaped sticky rice wraps. A death for a cause, well remembered after centuries.

The political suicide of pro- establishment Hong Kong legislators just three days ahead of commemorating Qu Yuan, in relation to vote on political reform, but will go down in history as a blunder that served no purpose. The run up for reform in Hong Kong with relation to universal suffrage in electing its Chief Executive has been a long strenuous period of struggle, strain, grit and grind. All collapsed in a miscalculated walkout giving advantage to none but causing severe dent to self-worth. The fate of the truncated reform proposal that offered pseudo-democracy was pre-destined; it was bound to fail but for any last minute converts from the pan-democrats.

A short background

Electoral reform to ensure universal suffrage in electing the Chief Executive of the Hong Kong SAR has been in vogue for sometime now. The debate has been centered on the details of the proposal. The reform offered all eligible a chance to vote but to candidates vetted by a committee packed with pro-Beijing sympathizers. The pan-democrats adopted a stance to veto the proposal in legislature.  The pro-Beijing camp meanwhile had steered a roadshow and campaign to garner support for the reform proposal. The tagline of pro-Beijing camp was - ‘pocket it’.  The pan-democrats were warned that by disapproving the reform package, they are holding the right to vote of the people of Hong Kong to ransom.

The reform was put to vote on 17th of June 2015 in a legislative council of 70 members with 43 Beijing loyalists and 27 democrats, assured to vote against the motion. Statistics indicate the predictable outcome of veto, as win require 2/3 majority. The count of vote on reform proposal was an anticipated veto but the surprising element was the margin, the motion got defeated by a whooping differential; 28 nos (one unexpected vote from the block of 43 joined the democrats) and a measly 8 yes. This surprising self-goal by the pro-establishment clique happened because of an untimely and miscommunicated staging of a walkout to facilitate voting of one member who was late to report and was on his way to the House. The walkout turned out to be partial leaving quorum for voting, resulting in a loss of opportunity for the walked out to express their loyalties to Beijing.

Outcome

Fall of the reform package was inevitable. Who defeated it and how became the matter of amusement. With it crumbled the preplanned strategy of the pro-establishment in the forthcoming district election that could alter the composition of the next legislature. A major plank for them would have certainly be, how the pan-democrats snatched away the possibility to pocket the reform graciously offered by Beijing and lost an opportunity to move ahead. As a strategy to secure reform henceforward, more seats in Legislative council would have been sought. The present shoddy performance leaves less room to convincingly take out the democrats on this count.

The loyalists have exposed their political naiveté and miscalculation at a critical juncture. It shows them in poor light and cast doubt on capabilities of holding future and higher responsibilities. This also highlight that, they may be competent business people but yet to be evolved as adept politicians.

The flurry of activities that happened in the liaison office of Central Government for Hong Kong, post the fiasco clearly shows how it irked Beijing. It is sure to cost at least some their dreams of running for the post of Chief Executive or a second term in legislature.

The democrats had the last laugh. The expected defeat of the proposal was sweetened by the unanticipated gift of gaffe by the treasury benches. In long term, this episode does not contribute anything definite to achieving the ultimate aim of universal suffrage in form and substance. At the most, they might be in a position to use it as a campaign tool.  Even gaining a decisive majority in the Legislative Council is no guarantee towards democracy as it is contingent on the Central Government in China given the Basic Law of Hong Kong.

Epilogue

The debacle has changed nothing but for an exposé of inefficiency of a bunch of representatives with whom the destiny of Hong Kong is vested. This is an indication that the political system needs a serious relook as to who represents the people and how they are chosen.

In the backdrop of reform contest, a disquieting and radical trend of localism is perceived to be emerging. Asia’s world city is under a serious threat of turning into a parochial population. 

Original author: Jasmine Joseph


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lawbadri@gmail.com (Practical Academic) Analysis Sun, 21 Jun 2015 07:57:00 +0530
Fashion Laws: An Addition to the IPR Regime http://www.legallyindia.com/Blogs/fashion-laws-an-addition-to-the-ipr-regime http://www.legallyindia.com/Blogs/fashion-laws-an-addition-to-the-ipr-regime The current market scenario demands what is trendy and unique in its own way. Therefore it is now that Fashion Designers are seeing the numbers, the growth possible and the money involved. Today, if a consumer wants to buy a designer garment, they have the option of going for Prada, Armani or Gucci- something they did not have before. If today one of our designers wants to sell their business, they will get zero value, because nothing is protected.

Fashion Industry is one of the most creative industries across the globe. Fashion is considered to be a significant aspect of social life which is branded continuity as well as innovation. In the legal sphere, this continuity and innovation is addressed by Intellectual Property Laws. Fashion Laws is a rapidly growing speciality which includes Copyright, Trademark, Designs, Patents and Licensing but still fashion products do not squarely fall within the areas of Intellectual Property.

Fashion in brief refers to anything that is the current trend in look and dress up of a person. Fashion design is the application of design and aesthetics beauty to the items of fashion. It is a form of art dedicated to the creation of original clothing and other lifestyle accessories. Considered as “principle creative element “ of fashion industry, a fashion design is influences by cultural and social attitudes and has varied over time and place.

Piracy is the unauthorized and illegal reproduction distribution of materials protected by copyright, patent, or trademark law. It is an act in which unauthorized copies are made of any intellectual property.

Knockoff is a copy or imitation of someone or something popular and it is produced illegally without license. In the fashion world, a knockoff is a close copy of the original fashion design, mimicking its elements, but is sold under a label different from the label of the original design. In contrast of knockoff, a counterfeit is a copy of the original fashion design as well brand logo or label of that design.

As a product of human intellect and creativity, fashion design is an apt subject matter for IPR protection without any iota of doubt. However, on the issue pertaining to the need for fashion design protection under the IPR regime, consensus is eluding .Conflicting views have been made on this issue as some of the validate the urgent need for IPR protection for fashion design and, on the other hand, some does not see any such requirement. Examining the need for IPR protection for fashion industry in general and fashion design in particular, plethora of articles has been written in favour of as well as against such protection.

The IPR Regime in India provides protection to the fashion design under three different legislations, The Designs Act, 2000. The Indian Copyright Act, 1957 & The Trademarks Act, 1999.

  1.       Industrial Design Protection for Fashion Design
  2.       Copyright Protection for Fashion Design
  3.       Trademark protection for fashion Design

From the perspective of Fashion Industry, the Act does not protect the entire garment as a whole; rather, it only protects the particular/individual aspects like shape, pattern, colour etc. of the garment. Moreover, to be protected under the act, these particular aspects must not only satisfy the definition of “design” provided in the Act but must also be registered under the Act. This means that the Act affords protection not in a particular article but against a class of articles as enumerated in Schedule III of the Design Rules.

Copyright protection is another legal protection model employed by the fashion designers to protect their creative works. Copyright Act and Design Act overlap each other on the issue of design protection, particularly section 15 of the Copyright Act when read conjointly with the Design Act. Considering the fact that fashion design which is capable of being registered as design “design “under the Design Act 2000 and registered as per the provision of the Act will get copyright protection only under the Design Act. But the protection offered to fashion design as an original artistic work is much stronger than the protection offered under the Design Act, a fashion design is better protected as an artistic work under Copyright Act.

Trademark helps to maintain a prestige premium for particular brands and can be quite valuable to apparel and accessory firms. The utility of trademark law, however, in protecting fashion designs, as distinct from fashion brands, is quite limited. A trademark is useful for a fashion design only in that situation when it is visibly integrated into design to such an extent that it becomes an element of the design. In India, the Design Act of 2000 under section 2(d)  while defining design it expressly excludes the trademark within the meaning of section 2(1)(v) of Trade and Merchandise Mark Act. this would mean that there is an express exclusion under the Designs Act anything which is capable of being trademark. Therefore, a proprietor by electing to go for registering a design explicitly fore closes his right to claim the said article as trademark which is evident from the definition of “design” under Section 2 (d) of the Designs Act. It means that a fashion design which is trademark cannot get protection under the Designs Act and similarly if a fashion design is registered under the Designs Act the same cannot be protected under the Trade Marks Act, 1999.

The global fashion industry is growing by leaps and bounds. It has become as insignificant part of the global economy and should therefore receive intellectual property rights protection for its growth. At the heart of growing fashion industry are fresh and new designs. However, growth of this industry is marred by fashion design piracy. The Indian fashion design industry is encounter in with the same problem.

On the basis of analysis made in thepreceding section of this paper it can berightly concluded that current intellectual property regime in India is not sufficient and efficient enough to protect Indian fashion design industry. There is a need to improvise the current intellectual property regime in India so as to make it more favourable to protect fashion design from piracy. First and foremost, a separate definition of “fashion design” should be included in the Designs Act, 2000.And this definition should facilitate the entire appearance and over all look of a particular piece of apparel or garment as against the present definition under Section 2 (d) of the Act which protects each aspect of a garment individually. Secondly, a simplified procedure for design registration should be made under the Designs Act, 2000 as present procedure is a tedious one and does not suit the needs of dynamic fashion design industry. And thirdly, the provision for protection of unregistered design should also be included in the Designs Act; 2000.The protection for even short period of time will serve the needs of fashion design industry in this situation. Incorporation of all these suggestions would certainly make the current Indian intellectual property regime more effective and efficient enough to deal with the menace of fashion design piracy. This would encourage fashion designer to innovate new designs which would ultimately lead to the growth of the fashion industry.

By :

TANYA GUPTA


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gupta.tanya1991@gmail.com (tanyagupta91) Legally Drawn Sat, 20 Jun 2015 13:20:26 +0530
Can Sales Tax Dept attach & sell auction property for recovery of dues of seller? http://www.legallyindia.com/Blogs/whether-sales-tax-department-can-attach-and-sell-property-of-auction-purchaser-for-recovery-for-dues-of-previous-owner http://www.legallyindia.com/Blogs/whether-sales-tax-department-can-attach-and-sell-property-of-auction-purchaser-for-recovery-for-dues-of-previous-owner A Company in the course of business obtained financial assistance from financial institutions and banks. For securing the debt, the said company had mortgaged its immovable properties and thus created security interest in the said properties. The Company defaulted in repayment and the banks and financial institutions sold the mortgaged properties under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’). Sale Certificate was issued in favour of the Auction Purchaser and it was mentioned in the said Sale Certificate that the sale is on “as is where is” and “as is what is” basis. The Sale Certificate was duly registered and possession was handed over to the Auction Purchaser.

Thereafter, the Sales Tax Department intimated the Auction purchaser that the dues of the Company are recoverable and in view of the statement in the Sale Certificate that the sale is on “as is where is” and “as is what is” basis proceeded to attach the property of the Auction Purchaser purchased under SARFAESI Act.

The Auction Purchaser approached the Bombay High Court challenging the said attachment by way of Writ Petition No. 2608 of 2014. The Sales Tax Department, put forth an argument before the Hon’ble High Court that the Auction Purchaser has acquired a capital asset within the definition of the term “capital asset” as appearing in section 2(14) of the Income Tax Act, 1961. The term “business” as appearing in section 2(5A) of the Bombay Sales Tax Act (for short ‘BST Act’) includes a capital asset. Section 19(4) of the BST Act was heavily relied upon, that a dealer who is liable to pay tax under the BST Act transfers or otherwise disposes of his business to any other person or affects change in the ownership thereof, then the person succeeding  shall jointly and severally liable to pay the tax. It was also asserted before the Hon’ble High Court that once the Sales Tax dues are in arrears, they are always payable, then, there is a charge on the properties of the dealer or any other person within the meaning of section 38C of the BST Act. That would enable the Sales Tax Department to go after the properties of the Auction Purchaser.

The Division Bench of the Hon’ble High Court held that a debt, which is secured or which by reason of the provisions of a statute becomes the first charge over the property must be held to prevail over the Crown debt which is an unsecured one. The Crown's preferential right to recovery of debts over other creditors is confined to ordinary or unsecured creditors. As to the liability of the successor in interest, such a liability can be fastened on that person who had purchased the entire unit as an ongoing concern and not a person who had purchased land and building or the machinery of the erstwhile concern. It is only in those cases where the buyer had purchased the entire unit i.e. the entire business itself, that he would be responsible to discharge the liability of the previous owner. The subsequent purchaser cannot be fastened with the liability relating to the dues of the Government. The general stipulation in the agreement and sale certificate would not enable the authorities to levy attachment and on the properties, which are no longer belonging to the Company i.e. previous owner. The Auction Purchasers are not the defaulters nor they are successor in interest. In these circumstances, the attempt to foist the liability of the defaulting Company (previous owner) on the Auction Purchaser and proceed against their properties cannot be sustained and the order of attachment was quashed.

By Dominic Braganza

Partner

Abhay Nevagi & Associates, Advocates, Pune


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sanjana@anevagi.com (Abhay Nevagi Associates) Analysis Thu, 18 Jun 2015 17:42:27 +0530