The government, instead of bringing an amendment to the 1986 Consumer Protection Act (“CPA 1986”) enacted a new act altogether. The objective to introduce a novel act was primarily to provide enhanced protection to the consumers whilst keeping the track-record in the account and the exponential boom in the e-commerce industry, including all the modern methods used for providing goods and services to the consumers via online mode. The rubrics of the Act has been designed in a way to provide safety of the pursuit of consumers, a mechanism to settle shopper disputes, the establishment of central grievance resolving authority, and regulation on deceptive advertisements. The developments of the new act attempt to cover effective administration and well-timed disposal of consumer grievances and complaints. There have been many significant changes in the Consumer Protection Act, 2019 (“CPA 2019”), set out below are some of the key highlights of the new act.
Consumer: Act of 2019 has broadened the scope of the definition of Consumer by including all the consumers who avail/hire any kind of services/goods through either online and offline mode, resultantly, taking the E-commerce industry involving electronic means, direct or multilevel marketing, teleshopping; under the sphere of the new consumer protection act. CPA 1986 remained silent upon this facet.
Unfair Trade Practice: CPA 2019 has broadened the horizons of the definition of unfair trade practice. It now covers all the misleading online advertisements, common practices of non-issuance of the invoice, disclosure of personal information unless required by law or in the public interest, failing to return defective goods or defective services and refund of the amount within the prescribed time limit.
The novel concept of Product liability has been introduced under CPA 2019. This definition is not exhaustive, but rather inclusive as it includes product manufacturer, product service provider, and product seller, for any claim of compensation. Essentially, it means that if any harm is caused to a consumer by a defective product, manufactured or sold or by a deficiency in services, relating to the product then it would a responsibility of the product manufacturer or product seller of any product or service related to the product. The Product manufacturer or product seller will compensate for any harm caused to a consumer by such defective product manufactured or sold or by a deficiency in services relating to the product. Since the product seller is included in the definition it would automatically include all the e-commerce platforms within its realm.
This essentially bars the execution of any such contracts, which ex facie favors the manufacturer(s) or the service provider(s) and are against the interest of the consumer(s). Therefore, it has been embarked to cover the dominance/ prerogatives of banking and e-commerce industries over the pool of consumers in the market. Consumers being left with no other viable option but to sign such unfair contracts resulting in insubordination of consumers at a large level.
CENTRAL CONSUMER PROTECTION AUTHORITY
Another significant amendment that the act of 2019 includes is the establishment of the CCPA. This body has an underline objective “to regulate, protect, and enforce the interest of the consumers and ancillary matters pertaining to unfair trade practices. In order, to curb the menace caused by such Unfair Practices, CCPA has been also provided with extensive powers to inquire, investigate, and take action against the said violations. In addition, the CCPA is now vested with powers to penalize and take action against the endorser who has nexus with false or misleading advertisements, which essentially means a celebrity endorsing misleading advertisement can be penalized under the realm of CPA, 2019.
The CPA 2019 provides relief to the aggrieved party in terms of the period for preferring an appeal, instead of 30 days; now an appeal can be preferred against the order passed by the District Commissioner within 45 to State Commissioner. Whereas, the pre-deposit amount for preferring an Appeal has been increased from Rs. 25, 000 to 50% of the amount ordered by the District Commissioner.
It is to be noted that CPA 2019 has broadened the ambit of ‘Service’ by adding the word ‘Telecom’ to the list of services. Whereas, it astonishes that such additions have not been worded as ‘telecommunication service’ defined under the Telecom Regulatory Authority of India Act, which would have included internet, cellular, and data services.
FILLING OF COMPLAINTS THROUGH E-MODE
In CPA 2019, consumers can lodge complaints online/electronically. Moreover, now permission may be taken to attend the hearing through video conferencing. This will ultimately help in minimizing unnecessary burden upon consumers.
1. Pecuniary Jurisdiction: The pecuniary jurisdiction has been expanded and the new law, consumers can file complaints at the district level if the value of the goods and services in the dispute does not exceed Rs. 1 crore. Another remarkable change in relation to pecuniary jurisdiction is that for the purposes of jurisdiction, only the value of the goods and services are taken into account and not the amount of the damage claimed thus, the consumer can no longer delegate jurisdiction to a forum his choice/convenience by demanding excessive compensation for mental harassment, etc.
2. Territorial Jurisdiction: The new act bestows an advantage to the consumer by now authorizing them to launch the complaint where either complainant resides or actually works for gains.
3. Mediation: Chapter 5 of the 2019 act allows courts to work towards a settlement with the aid of mediation cells.
THE UNRESOLVED FACET
The definition of service has been amended under CPA 2019 but the head of Healthcare, still remains a matter of question. Though it was explicitly added in Consumer protection Bill, 2019, but due to high revolt form the medical practitioners it was subsequently removed from the definition through the amendment known as “Healthcare Amendment”. However, it is significant to note that the definition has a very wide connotation as before, listing out the categories of services it states, “but not limited to”, which leaves it open for judicial interpretation. Furthermore, in the case of Indian Medical Association v. VP Shantha (“VP Shantha”), the Hon’ble Supreme Court ruled that patients are consumers as long as they are making some form of payment for the medical service rendered moreover; the healthcare is to be included in the definition of services. Therefore, it remains a matter of ambiguity that whether the VP Shantha Case will continue to apply or, the new act will take away the basis of the Judgment.
Indubitably, the new act will bolster grievances of the consumers, but on the other hand, it may cause serious discomfort to the manufacturers and sellers. In a country like India, where people happily lodge complaints just to check whether a complaint has a plausible point, so to say that the complainant can use it to seek compensation from the courts, therefore, it behooves upon the justice delivery system of the country to infuse the intent with which CPA 2019 has been brought into effect. Therefore, to say, this would be a horrendous task for the courts to identify the veracity of the complaints and to ensure that none is left helpless on the cost of satisfaction of others (consumers).
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EXAMINING INDIA’S FOREIGN TRADE DATA: DECEMBER 2020
India’s overall exports (Merchandise and Services combined) in April-December 2020-21* are estimated to be USD 348.49 Billion, exhibiting a negative growth of (-) 12.65 per cent over the same period last year. Overall imports in April-December 2020-21* are estimated to be USD 343.27 Billion, exhibiting a negative growth of (-) 25.86 per cent over the same period last year.
I. MERCHANDISE TRADE
EXPORTS (including re-exports)
• Exports in December 2020 were USD 27.15 Billion, as compared to USD 27.11 Billion in December 2019, exhibiting a positive growth of 0.14 per cent. In Rupee terms, exports were Rs. 1,99,770.58 Crore in December 2020, as compared to Rs. 1,92,984.47 Crore in December 2019, registering a positive growth of 3.52 per cent.
• The commodities/commodity groups which have recorded positive growth during December 2020 vis-à-vis December 2019 are Other cereals (278.23%), Oil meals (196.92%), Iron ore (69.26%), Cereal preparations & miscellaneous processed items (47.14%), Jute mfg. including floor covering (21.93%), Handicrafts excl. hand-made carpet (21.78%), Carpet (21.17%), Ceramic products & glassware (19.56%), Drugs & pharmaceuticals (17.47%), Spices (17.3%), Electronic goods (16.51%), Fruits & vegetables (14.88%), Organic & inorganic chemicals (10.79%), Rice (10.76%), Mica, Coal & other ores, minerals including processed minerals (10.76%), Cotton yarn/fabs./made-ups, handloom products etc. (10.35%), Meat, dairy & poultry products (6.8%), Gems & jewellery (6.75%), Tea (4.51%) and Engineering goods (0.3%).
• The commodities/commodity groups which have recorded negative growth during December 2020 vis-à-vis December 2019 are Petroleum products (-35.35%), Oil seeds (-31.62%), Leather & leather products (-17.73%), Coffee (-16.38%), RMG of all textiles (-15.05%), Man-made yarn/fabs./made-ups etc. (-14.56%), Marine products (-14.25%), Cashew (-12.04%), Plastic & Linoleum (-7.25%) and Tobacco (-4.91%).
• Cumulative value of exports for the period April-December 2020-21 was USD 200.80 Billion (Rs. 14,95,705.96 Crore) as against USD 238.27 Billion (Rs. 16,77,370.97 Crore) during the period April-December 2019-20, registering a negative growth of (-) 15.73 per cent in Dollar terms (negative growth of (-) 10.83 per cent in Rupee terms).
• Non-petroleum and Non-Gems and Jewellery exports in December 2020 were USD 22.22 Billion, as compared to USD 21.06 Billion in December 2019, registering a positive growth of 5.50 per cent. Non-petroleum and Non-Gems and Jewellery exports in April-December 2020-21 were USD 166.33 Billion, as compared to USD 178.15 Billion for the corresponding period in 2019-20, which is a decrease of (-) 6.63 per cent.
• Imports in December 2020 were USD 42.59 Billion (Rs. 3,13,407.53 Crore), which is an increase of 7.56 per cent in Dollar terms and 11.18 per cent in Rupee terms over imports of USD 39.59 Billion (Rs 2,81,880.86 Crore) in December 2019. Cumulative value of imports for the period April-December 2020-21 was USD 258.27 Billion (Rs. 19,22,790.49 Crore), as against USD 364.18 Billion (Rs. 25,62,539.91 Crore) during the period April-December 2019-20, registering a negative growth of (-) 29.08 per cent in Dollar terms and a negative growth of (-) 24.97 per cent in Rupee terms.
• Major commodity groups of import showing negative growth in December 2020 over the corresponding month of last year are:
CRUDE OIL AND NON-OIL IMPORTS:
• Oil imports in December 2020 were USD 9.58 Billion (Rs. 70,516.27 Crore), which was 10.61 percent lower in Dollar terms (7.59 percent lower in Rupee terms), compared to USD 10.72 Billion (Rs. 76,310.52 Crore) in December 2019. Oil imports in April-December 2020-21 were USD 53.69 Billion (Rs. 3,99,976.85 Crore) which was 44.49 per cent lower in Dollar terms (41.23 percent lower in Rupee terms) compared to USD 96.71 Billion (Rs. 6,80,620.86 Crore), over the same period last year.
• In this connection it is mentioned that the global Brent price ($/bbl) has decreased by 24.27% in December 2020 vis-à-vis December 2019 as per data available from World Bank.
• Non-oil imports in December 2020 were estimated at USD 33.00 Billion (Rs. 2,42,891.26 Crore) which was 14.30 percent higher in Dollar terms (18.15 percent higher in Rupee terms), compared to USD 28.88 Billion (Rs. 2,05,570.34 Crore) in December 2019. Non-oil imports in April-December 2020-21 were USD 204.58 Billion (Rs. 15,22,813.64 Crore) which was 23.51 per cent lower in Dollar terms (19.08 percent lower in Rupee terms), compared to USD 267.47 Billion (Rs. 18,81,919.04 Crore) in April-December 2019-20.
• Non-Oil and Non-Gold imports were USD 28.52 Billion in December 2020, recording a positive growth of 7.99 per cent, as compared to Non-Oil and Non-Gold imports of USD 26.41 Billion in December 2019. Non-Oil and Non-Gold imports were USD 187.80 Billion in April-December 2020-21, recording a negative growth of (-) 23.16 per cent, as compared to Non-Oil and Non-Gold imports of USD 244.42 Billion in April-December 2019-20.
II. TRADE IN SERVICES
• As per the latest press release by RBI dated 15th January 2021, exports in November 2020 were USD 17.08 Billion (Rs. 1,26,767.42 Crore) registering a negative growth of (-) 5.09 per cent in Dollar terms, vis-à-vis November 2019. The estimated value of services export for December 2020* is USD 17.31 Billion.
• As per the latest press release by RBI dated 15th January 2021, imports in November 2020 were USD 10.12 Billion (Rs. 75,110.44 Crore) registering a negative growth of (-) 11.79 per cent in Dollar terms, vis-à-vis November 2019. The estimated value of services import for December 2020* is USD 10.32 Billion.
•MERCHANDISE: The trade deficit for December 2020 was estimated at USD 15.44 Billion as against the deficit of USD 12.49 Billion in December 2019, which is an increase of 23.66 percent.
•SERVICES: As per RBI’s Press Release dated 15th January 2021, the trade balance in Services (i.e. Net Services export) for November 2020 is USD 6.96 Billion. The estimated trade balance in December 2020* is USD 6.99 Billion.
•OVERALL TRADE BALANCE: Taking merchandise and services together, overall trade surplus for April-December 2020-21* is estimated at USD 5.22 Billion as compared to the deficit of USD 64.09 Billion in April-December 2019-20.
*Note: The latest data for services sector released by RBI is for November 2020. The data for December 2020 is an estimation, which will be revised based on RBI’s subsequent release.
*Note: i) The latest data for services sector released by RBI is for November 2020. The data for December 2020 is an estimation, which will be revised based on RBI’s subsequent release ii) the figures in bracket are growth rates vis-à-vis corresponding period of last year.
Raising the bar for graduates
As the Bar Council of India has stated that the fresh law graduates lack an experience when they are posted as judicial officers, this problem of inexperience will still persist. It takes a number of years for lawyers to set them up and learn each and every nuance of the legal system. In reality, there are very few lawyers who practise independently which gives them a chance to learn and explore.
In the two announcements dated 2 January 2021 and 4 January 2021, the Bar Council of India (BCI) has proposed to make ground shifting changes in the lives of recent law graduates.
A SETBACK TO JUDICIARY ASPIRANTS
Through its Press Release dated 02.02.2021, the BCI notified its interest in changing the pattern of entry in the Indian Judicial System. BCI has clarified its intention to seek impleadment as a party to the on-going case in the Supreme Court (“SC”), titled Regalagadda Venkatesh v. State of Andhra Pradesh W.P. (C) No.1479/2020 where the petitioner has challenged a notification issued by the Andhra Pradesh Public Service Commission bearing No. 9/2020-RC dated 03.12.2020, which invites application for appointment of Civil Judges Junior Division in the Andhra Pradesh State Judicial Services. The notification states that eligible candidates for applying for the post shall be advocates having a minimum eligibility requirement of 3 years as a practicing advocate. The same has been challenged by the petitioner contending that “requirement of 3 year experience at the Bar is illegal and unwarranted”.
With the Press Release, BCI stated that it strongly favours a minimum of 3 years’ experience for advocates to gain an entry in the judiciary via Judicial Service Exam. BCI stated that the present system which gives access to judiciary to fresh graduates overlooks that the new entrants’ lack experience and thereby might not be well versed and able to efficiently handle and deal with matters. The BCI went on to say that “Most of such officers are found impolite and impractical in their behaviour with the Members of the Bar and Litigants. They have lack of understanding of the aspirations and expectations of Advocates and Litigants in the matter of proper and decent behaviour.”
BCI also attributed the delay in disposal of cases to inexperience of the new entrants in the judicial system. According to the BCI, trained and experienced judicial officers can comprehend and dispose of matters at a much faster pace, thereby leading to efficient administration of justice.
BACKGROUND TO THE ELIGIBILITY CRITERIA
In the case of All India Judges Association & others v. Union of India (2002) 4 SCC 247, the Division Bench of SC opined that “With the passage of time, experience has shown that the best talent which is available is not attracted to the judicial service. A bright young law graduate after 3 years of practice finds the judicial service not attractive enough.” The Court had accepted the recommendations of Shetty Commission and held that the need for an applicant to have been an Advocate for at least 3 years should be done away with. With this, from 2003, judiciary was made accessible to the new law graduates for their contribution as judicial officers.
The BCI said that it will file an application before the SC seeking modification of the above mentioned order.
This move of BCI seems to be an answer to the selection of a 21 year old person who cleared the Rajasthan Judicial Services (“RJS”) examination by securing the first position. The state had reduced the minimum age of eligibility to sit in RJS exam from 23 years to 21 years. At the time when this person secured the first position, many had the opinion that due to his young age, he will not be able to comprehend the complex procedures adopted in the Courts of law.
But instead of making three years practice as a lawyer to be mandatory, it would have been far much better to increase the age of eligibility. This move gives a huge set back to the judiciary aspirants who have been preparing and looking forward to the examinations.
The authors would be discussing in detail that why in their view, such a step by BCI is not in the best interest of law students as well as future judiciary aspirants.
As we know that judiciary suffers from an acute lack of sufficient judicial officers. While putting blame on the current system of giving entry to fresh graduates in the judicial system of India, BCI overlooked the fact that delay in disposal of cases is due to less number of sitting judges in Courts. This move will only make judiciary more unapproachable, which in-turn, may result to a very less amount of lawyers applying for the post of judicial officer.
As rightly said in the All India Judges Association & others v. Union of India, judiciary is not much of a lucrative option even today, and after such a move, more and more people will prefer alternative career options. This three years time gap gives opportunities to fresh graduates to prepare and sit for other examinations, which also brings more pay with it.
As the BCI has stated that the fresh law graduates lacks an experience when they are posted as judicial officers, this problem of inexperience will still persist. It takes a number of years for lawyers to set them up and learn each and every nuance of the legal system. In reality, there are very few lawyers who practice independently which gives them a chance to learn and explore. Whereas, the lawyers practicing under seniors or firms would not be able to acquire all the knowledge in regards to procedural and substantial aspects as such lawyer do not deal with the case first-hand and do not receive the case from the start. This renders them having half experience of all the aspects of the proceedings, but not full knowledge can be acquired in this span of time.
One threat which this change will pose is of ‘favourism’. A lawyer having three years experience of practice would eventually be connected with a lot of people belonging to the legal fraternity. These connections could be easily materialised during proceedings, turning the odds in favour of the person known to such judicial officer.
Instead of making three years experience mandatory, the BCI should make provision of proper training of the newly recruited judicial officers under senior judicial officers. Such training could range from a time span of one to two years and should be extensive in nature, so as to solve the purpose of BCI of bringing quality talent into the judiciary and speeding up the judicial process. A classic example of this can be posting of officers through Union Public Service Commission (“UPSC”) examination. These officers are given rigorous training and are made ready by the academies, instead of asking them to be firstly prepared and then sit for the exams. Such officers also perform judicial and quasi-judicial functions, irrespective of the fact whether they are law graduates or otherwise. A similar training mechanism should be devised for new entrants into judiciary which will make them ready to face the challenges they might encounter as judicial officers.
THE NEW RIGOROUS PATH TO LLM
On 04.01.2021, the BCI notified Bar Council of India Legal Education (Post-Graduate, Doctoral, Executive, Vocational, Clinical and other Continuing Education), Rules, 2020 (“BCI Rules”), which will bring a change in the Post Graduate Legal education in India.
Under the new education policy, 2020, the Higher Education Commission of India (“HECI”) alongwith National Higher Education Regulatory Council (“NHERC”) did not touch upon the legal education and left it for the BCI to regulate. To promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education as per section 7(1)(h) of the Advocates Act, 1961, BCI has notified standard for:
Post Graduate and research education;
Continuing Legal education;
Vocational and Para-legal Education;
Technology and Court-management education
The BCI will also provide direct and institutional set up necessary for all such levels of education to deliver quality in all forms of legal education, including on-line virtual education and off-line education in real terms, para-legal education for wider access to and timely delivery of justice.
Appointment of Special sub-committee
The rules provide for setting up of a special sub-committee, the tenure of which would be three years. The committee will undertake implementation of these Regulations under the overall control and guidance of Legal Education Committee (“LEC”).
MASTERS OF LAW
Abolition of One Year LL.M.
In January, 2013, one year LL.M. programme was introduced on the recommendation of the Expert Committee constituted by the University Grants Commission (“UGC”), which is now abolished by the BCI Rules. The LL.M. will of two years, spreading in four semesters.
Entry Requirements of LL.M.
LL.M. candidates cannot be persons without a recognised LL.B. degree (three year LL.B. or five year LL.B.). A Master degree in any specialized branch of Law offered in the Open System to any graduate, such as Business Law or Human Right, or International Trade Law without having LL.B degree (three year LL.B. or five year LL.B.) as the requisite entry level qualification shall not be designated as LL.M. It may be designated as Master’s degree in Business (MBL), Master’s in Governance and Public Policy (MGPP), Master’s in Human Rights (MHR), Master’s in Industrial Laws (MIL) etc., but it is not considered as equivalent to LL.M.
Introduction of Common Entrance Test
BCI has made provisions to introduce an All India Common Entrance Test under the name of Post Graduate Common Entrance Test in Law (“PGCETL”) which would be conducted annual by Bar Council of India, either directly or through its Trust for giving admission into LL.M. programme. After introduction of PGCETL, it would be mandatory for Universities to admit students on the basis of merit list.
EQUIVALENCE OF LLM FROM FOREIGN UNIVERSITIES
LL.M. from foreign universities would be deemed to be equivalent to Indian LL.M. only when the entry requirement of Indian LL.M. is fulfilled. One year LL.M. obtained from any foreign University is not equivalent to Indian LL.M. degree. However, one year LL.M. degree obtained after an equivalent LL.B. degree from any highly accredited Foreign University may entitle the person concerned to be appointed as a visiting professor in an Indian University for at least one year so as to consider such one year LL.M. degree with one year teaching experience as a Visiting Faculty/internee faculty/clinical faculty the Master degree obtained on one year term may be considered equivalent.
DOCTORATE OF PHILOSOPHY
Provision for Ph.D./SJD
For pursuing Ph.D./SJD, LL.M. shall be minimum entry requirement. The programme shall be a minimum of three years. The students should preferably be Junior Research Fellow (JRF). Each student shall have Teaching Assistantship and every student must participate in credit-based teaching learning for required number of classes weekly for at least one semester in any undergraduate/postgraduate program. On successful defence of the scholar in public and on the assessment of the thesis, the Ph.D./SJD may be conferred.
Educational Up-gradation and efficiency enhancement of Professional Education
Associate Programme: The B.C.I. Trust will introduce two professional efficiency enhancement continuing education courses only for Advocates who are enrolled with any State Bar Council. The associate programme will be equivalent to LL.M. which would be conducted over a period of three years. The teaching methodology for this programme will be home study, completion of questions on lessons and sending the answers through emails, feedback from the evaluators and one-to-one online discussion for doubt clearance.
Fellowship Programme: The fellowship programme of BCI would be equivalent to Ph.D. LL.M. and/or Associate Programme would be entry qualifications for the fellowship programme. The programme shall not be less than three years. The Rules provide for teaching methodology and assessment systems.
INTRODUCTION OF BCI COURSES
Short Term refresher courses, the duration of which will range from five days to fifteen days in any general or specialized field of law shall be conducted. On successful completion of the course, certificate of participation in terms of credit points acquired in such courses shall be issued. BCI shall notify the details of such courses.
BCI Trust may conduct para-legal (including land survey work, notarization, registration and all other judicial work of court and lawyers’ chamber management) and technology and Court Management courses of suitable duration either in online and/or in offline mode, to facilitate para-legal works and court-management.
Apart from the above mentioned ‘reforms’ in the eyes of BCI, these Rules also provide for improvement of faculty and teacher training, teaching internships alongwith outlining the prospective LL.M. programme.
Although the idea to enhance the quality of legal education in India is an impressive one, but elongating the time period for pursuing LL.M. from India does not sound to be a pleasing one.
The first reason that extra year for LL.M. is not feasible is because to the total tally of years pursuing the complete legal education in India. To become a lawyer, a student has to invest either 5 or 6 years of their precious time, depending whether they undertake an integrated course or not. An addition to the years of pursuing higher legal education does not appease the prospective students.
The other reason that this extension to the programme is uncalled for is due to spike in the cost of the education. Adding another year to LL.M. means doubling the cost of pursuing LL.M., as against to its original cost.
India is a country which is slowly and steadily attaining a platform in the international domain. LL.M. from foreign universities lets Indian students have access to finest legal education and a chance to explore the law in an international perspective. Every jurisdiction accepts the one year LL.M. programme, thereby expanding their horizons to teach and reach the laws globally. Certain laws in current times are transnational and are especially taught by the foreign universities. By not recognising one year LL.M. offered by foreign universities, the BCI is isolating the scope for Indian law students to explore and grow. This rule is also unfair as the Indian law students aspiring or planning to pursue LL.M. from a foreign university would now be compelled to pursue the same from India, instead of availing the facility of world class education offered by the foreign institutes.
The decision of scraping of one year LL.M. and derecognizing the LL.M. from foreign universities has been challenged in the SC by a law student. The petition says that this decision is in violation of the Right to Education and amounts to interference in the right to practice profession and will adversely affect future career and liberty of choosing quality education.
It can be said that this progress in the field of LL.M. does not seem to be a progressive step to Indian law students.
Although the intention of BCI is to make amends in the existing legal framework (education and judiciary) to make it more efficient, but the changes announced by the BCI are hitting hard on people associated to the legal fraternity. Current times need a more empathised approach, especially towards the new graduates who are perplexed about the situation while entering into the most crucial aspects of their lives. Whereas the two decisions of BCI in regards to judiciary and LL.M. are disregarding the efforts students have been making during their college times to prepare for judiciary or LL.M. examinations.
TIME TO REVISIT THE CONCEPT OF WELL-KNOWN TRADEMARKS IN INDIA
Before 2003, well-known trademarks were protected under Section 47 of the Trademark and
Merchandise Act, 1956 which provided for defensive registration of well-known marks and
passing-off actions. The decisive factor and eligibility for defensive registration under Section 47(1)
of the TMM Act was whether the use of same or similar mark in other class of goods or services would
cause confusion and deception in the mind of public about the true owner of the mark and use of such
mark would indicate a connection of goods or services with that of the well-known trademark.
Well known trademarks are defined as marks, words or logos which have gained immense reputation in the market so much that people associate and relate to the trademark even if same or similar mark used in relation with different goods or services. Any registration or unauthorized usage of such well known mark is considered trademark infringement as it may create a confusion in the mind of consumer and general public about the true owner of the product or services. Well-known marks are recognized by most of the countries and enjoys special protection against the reproduction, imitation or translation of the mark which might create confusion in the mind of relevant public.
Indian Trade Marks Law grants additional rights and protection to well- known trademarks against registration or use of identical or deceptively similar marks as well as against their misuse. This special protection was initially granted under the Trade Marks and Merchandise Act, 1958 and later through the Trade Marks Act, 1999.
The Concept of well known marks has seen a drastic changes since its origin. The Courts while examining the infringement of a Well Known trademark have shifted from the original concept of likelihood or deceptiveness to the newer concept of dilution of well known mark. However, this newer concept of dilution of well known mark is lately been used by companies for Trademark Bullying. The Articles discusses as to why the courts needs to revisit this concept.
The concept of well known trademark finds its origin from the Paris Convention of 1925. According to Article 6bis of the Paris Convention, any trademark which is identical or similar to well known trademark and is liable to create confusion in the mind of public shall not be registered. However, the scope was kept limited to similar or identical goods and it did not cover trademark use for service. In the year 1967 TRIPS Agreement extended the scope of Well Known Trademarks to services as well. Further, it also extended the scope for protection of well known trademark to dissimilar goods or services, provided that use of such trademark indicate a connection with goods or services of well Known mark.
Most of the countries post Paris Convention and the TRIPS Agreement have amended their Trade Marks Legislation and provided for special protection of well known marks.
EVOLUTION OF KNOWN TRADEMARKS IN INDIA
Before 2003, Well Known Trademarks were protected under Section 47 of the Trademark and Merchandise Act, 1956 which provided for defensive registration of well known marks and passing- off actions. The decisive factor and eligibility for defensive registration under section 47(1) of the TMM act was whether the use of same or similar mark in other class of goods or services would cause confusion and deception in the mind of public about the true owner of the mark and use of such mark would indicate a connection of goods or services with that of the Well Known Trademark.
The 1st Case dealing with the concept of Well Known trademark in India was Sunder Parmanand Lalwani & Ors v. Caltex (India) Ltd. wherein the Divisional bench of Bombay High Court while holding CALTEX a well known mark observed that the use of word CALTEX by Applicant would mislead the public about the origin of the product and people will relate it with Opponent only even though both the products were in the different class. The court noted that the applicant had no reason to adopt the Opponent’s mark CALTEX which is a known mark across India and the potential trade channel of Applicant’s product is similar with that of Opponent’s which will create a confusion about the true origin of the products.
A similar approach was taken by the Allahabad High Court in the case of Bata India Ltd. v. Pyarelal & Co., Meerut City & Ors wherein the court while questioning the reason for use of word BATA by applicant held Opponent’s mark as a Well Known Mark and any use of Opponent’s Mark even in different class would deceive people and create a confusion in the mind of public about the true owner of the mark. However, the courts in the last two decades have changed the approach in analyzing the concept and infringement of well known marks in India. There has been a shift from the test of likelihood of deceptiveness to the dilution of well known mark.
The Delhi High Court in the case of Daimler Benz Aktiegessellschaft & Anr. v. Hybo Hindustan for the first time established the concept of dilution of Well Known Marks in India. The case concerned use of word BENZ along with a “three pointed human being in a ring” by Applicant for underwear which is essentially Opponent’s mark used for its cars. The court while considering BENZ and 3 pointed star, a Well Known Mark which are associated only with the Opponent held that the use of same or similar Well Known Marks are not available to any person for anything or product and such use of mark will dilute the reputation of Well Known Marks. The Court further went on to say that the Trademark Law does not intend to protect people who uses well known marks to gain unfair advantage from the worldwide reputation of well known mark.
In Another case of Caterpillar Inc. v. Mehtab Ahmed, the Delhi High Court, took a step further in analyzing the concept of dilution of well Known Mark. The court held that the use of same or similar mark for identical goods would decrease the value of well known mark and that it will also dilute its strength and identification value. The court further held that the Opponent is not required to show the likelihood of deception by use of mark by Applicant as long as the Opponent shows that the Applicant adopted the mark with an ill intention to ride upon the goodwill and reputation of the Opponent. Various other matters came before the court for analyzing the concept and infringement of well known mark. The Court’s finding in most of the cases were based on two factors, first being deception of the public, and second dilution of the plaintiff’s goodwill and reputation in the mark. All the above cases discussed above were issued under the TMM Act however, section 47 of the TMM Act, does not make any reference towards the dilution of mark rather, the reference is to consumer confusion and deception caused by use of same or similar well known mark.
However, the Courts took a step further and made dilution of mark as one of the main element for analyzing the infringement of well known trademark. This was seen as an step taken to move forward from mere defensive registration of mark which cause confusion or deception.
WELL-KNOWN TRADEMARKS UNDER THE TRADE MARKS ACT, 1999
Trade Marks Act, 1999 was enacted as a subsequent act to fulfill all the recommendation of the Paris Convention and the TRIPS Agreement thereby repealing the older TMM Act. The Act gave special protection to Well Known Marks in India. Section 2(z) (g) of the Act defines well known trademark same as that of TMM act, whereby use of Plaintiff’s mark in goods or services of different class would be “likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and a person using the mark in relation to the first mentioned goods or services.” However, Section 11(2) and Section 29(c) of the TM Act protects Well Known Mark on basis of dilution of reputation of mark. The Act while protecting the infringement of well known mark has focused on both the aspect, first being the likelihood of deceptiveness as mention in section 2(z)(g) of the act and dilution of mark under section 11(2) and section 29(c) of the Act.
The Courts while interpreting these provisions of well known mark has neglected the concept of likelihood of deceptiveness and rather has focused on the dilution of mark only. In the case of Ford Motor Co. & Anr. v. Mrs. C R Borman & Anr. the Delhi High Court held that where the Opponent has proved the reputation of mark in Market, he has no obligation to prove deception on the part of the Applicant or likelihood of the customer being misled because of the use of the challenged trademark. There have been cases wherein the courts have looked into concept of deceptiveness of the mark as well. In the case of ITC Ltd. v. Philip Morris Products SA & Ors. the Delhi High Court placed the similarity of mark on higher platform and dilution of mark & reputation of mark as the secondary aspect to deal with the infringement of well Known mark.
However, the concept of Dilution has become one of the major aspect while dealing with the infringement of Well Know Trademark in India. The Courts in majority of Judgments have placed the concept of dilution at a higher Platform and the likelihood of deception has taken a set back. Recently, Facebook objected against the use of word FACEBAKE by a bakery shop contending that the mark FACEBOOK is a well known mark in India and that the use of similar mark will create a confusion in mind of public and they will relate the Applicant’s mark with Facebook. The court granted Interim Injunction only on the basis that the Opponent’s mark is a well known mark without going into whether the use of word FACEBAKE by Applicant will create confusion in mind of public or whether they will relate it with Opponent. Similar case came up with the US court where Apple sued Prepear alleging the use of Pear logo by the Applicant would create confusion in the of public and that they will related it will the Opponent. The case is still pending before the court but such cases involves huge finance to compete with big giants in court which small companies or startup lacks.
The owners of well known trademarks have started using this concept to take unfair advantage by harassing the new and small business to give up the trademark which is distinct having no relation to the well known mark. This is known as Trademark Bullying. The bully ( Mostly the Owner of the Well Known Trademark) puts pressure on opponent through Cease & Desist Notices to stop using certain trademarks that it believes resembles its own and threaten legal sections is demands are not met. Individuals and small businesses often capitulate rather than face a harrowing legal battle that could bring them to the brink of financial destruction.
According to USPTO Trademark Bullying is , “the act where the trademark owner that uses its trademark rights to harass and intimidate another business beyond what the law might be reasonably interpreted to allow”. Section 142 of The Trade Marks Act, 1999 protects Trade Marks Bullying in India. According to section 142, when any person by means of circulars, advertisements or otherwise threatens another person with an action or proceeding for infringement of a registered trademark or alleged to be a registered trademark; the aggrieved person may bring a suit against such person and obtain a declaration to the extent that such threats are unjustified.
However, There are very less cases that come up to the courts or in public domain as infringement proceedings include high costs of litigation and any injunction granted may lead to irreparable loss such as loss of revenue and reputation.
The concept of well known Trademark was developed with a progressive view to strengthen the process of globalization across the world. This led to development of many MNCs which now operated without any fear of trademark infringement across the globe. This also helped companies which were into varied businesses to build reputation and restrict other from using same or similar mark even for different services. As the concept of well known mark grew with time, it brought with itself various other concepts for its protection like the concept of dilution.
These concepts were developed to make the Trademark Law more relevant to the current situation. However, in the last decade, the newer concept of dilution of well known mark have been misused by the Owners of such mark through trademark bullying. The courts have restricted the scope of protection of trademark but has not done the same while discussing the scope of Well Known Trademarks.
It is high time the courts revisit the concept of Well Known Trademark and decide these cases only on the basis of likelihood of deceptiveness rather than dilution of the mark. The World has become a global Village and many companies will be adapting names which might have some similarity with the well known mark however, such use of trademark will not cause deception in the mind of public and people will not relate it with the Well known mark. As we advance towards newer technology and market, the similarity of marks must also be seen very precisely and mere similarity of marks without any deceptiveness must be allowed registration even in cases of Well Known trademark
No attempt made to frame Uniform Civil Code despite judicial exhortation
At the outset, there can be no denying that it is a matter of greatest concern that none other than the Supreme Court which is the highest court in India has just recently in a latest, landmark and extremely laudable judgment titled Jose Paulo Coutinho vs. Maria Luiza Valentina Pereira & Anr. in Civil Appeal No. 7378 of 2010 delivered on September 13, 2019 and authored by Justice Deepak Gupta while speaking for the Bench for himself and Justice Aniruddha Bose has minced just no words to drive home the valid point that no attempt has been made yet to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations by it. Where is any doubt in this? We all know it very well but yet we see that Centre and Parliament has taken just no action in last more than seven decades to do something concrete to address it!
First and foremost, the ball is set rolling in para 1 of this notable judgment wherein it is pointed out that, ““Whether succession to the property of a Goan situated outside Goa in India will be governed by the Portuguese Civil Code, 1867 as applicable in the State of Goa or the Indian Succession Act, 1925” is the question which arises for decision in this appeal.”
While narrating the facts, it is then stated in para 2 that, “One Joaquim Mariano Pereira (JMP) had three daughters viz. (1) Maria Luiza Valentina Pereira (ML), Respondent No. 1 (2) Virginia Pereira and (3) Maria Augusta Antoneita Pereira Fernandes. He also had a wife named Claudina Lacerda Pereira. He lived in Bombay and purchased a property in Bombay in the year 1955. On 06.05.1957 he bequeathed this property at Bombay to his youngest daughter, Maria Luiza Valentina Pereira, Respondent No. 1. He bequeathed Rs 3,000 each to his other two daughters. His wife expired on 31.10.1960 when he was still alive. JMP died on 02.08.1967. The probate of the Will dated 06.05.1957 was granted by the High Court of Bombay at Goa on 12.09.1980. Both the other daughters were served notice of the probate proceedings.”
Briefly stated, it is then brought out in para 3 that, “Goa was liberated from Portuguese rule on 19.12.1961. An ordinance being The Goa, Daman and Diu (Administration) Ordinance was promulgated on 05.03.1962 and thereafter the Goa, Daman and Diu (Administration) Act, 1962 was enacted, hereinafter referred to as ‘the Act of 1962’. Both the Ordinance as well as the Act of 1962 provided that the laws applicable in Goa prior to the appointed date i.e., 20.12.1961 would continue to be in force until amended or repealed by the competent legislature or authority. Section 5 of the Act of 1962 which is relevant for our purpose reads as follows:-“5. Continuance of existing laws and their adaptation-(1) All laws in force immediately before the appointed day in Goa, Daman and Diu or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority.(2) For the purpose of facilitating the application of any such law in relation to the administration of Goa, Daman and Diu as a Union territory and for the purpose of bringing the provisions of any such law into accord with the provisions of the Constitution, the Central Government may within two years from the appointed day, by order, may (sic make) such adaptations and modifications, whether by way of repeal or amendment, as may be necessary or expedient and thereupon, every such law shall have effect subject to the adaptations and modifications so made.”
More importantly, it is then pointed out in para 4 that, “It is not disputed before us that the Portuguese Civil Code, 1867 (hereinafter referred to as ‘the Civil Code’) as applicable in the State of Goa before its liberation in 1962 would apply. The Civil Code is in two parts – one part deals with all substantial civil laws including laws of succession and the other part deals with procedure. As far as the present case is concerned, they are governed by the Civil Code. The main dispute is that whereas the appellant, who is one of the legal heirs of the daughters of JMP, claims that even the property of JMP in Bombay is to be dealt with under the Civil Code, the case of the respondent i.e., the daughter who was bequeathed the property in Bombay is that as far as the immovable property situated outside Goa in any other part of India is concerned, it would be the Indian Succession Act, 1925 which would apply.” Needless to say, it is then made amply clear in para 14 that, “The Civil Code may be a Code of Portuguese origin but after conquest and annexation of Goa, Daman and Diu, this Code became applicable to the domiciles of Goa only by virtue of the Ordinance and thereafter, by the Act. Therefore, the Civil Code has been enforced in Goa, Daman and Diu by an Act of the Indian Parliament and thus, becomes an Indian law. This issue is no longer res integra.”
What’s more, para 17 then further brings out that, “It is important to note that this Court held that in so far as the continuance of old laws is concerned, the new sovereign is not bound to follow the old laws. It is at liberty to adopt the old laws wholly or in part. It may totally reject the old laws and replace them with laws which apply in the other territories of the new sovereign. It is for the new sovereign to decide what action it would take with regard to the application of laws and from which date which law is to apply. As far as the present case is concerned, firstly the President by an Ordinance and later Parliament by an Act of Parliament decided that certain laws, as applicable to the territories of Goa, Daman and Diu prior to its conquest, which may be referred to as the erstwhile Portuguese laws, would continue in the territories. It was, however, made clear that these laws would continue only until amended or repealed by competent legislature or by other competent authority.”
Furthermore, it is then also made clear in para 18 that, “We are clearly of the view that these laws would not have been applicable unless recognised by the Indian Government and the Portuguese Civil Code continued to apply in Goa only because of an Act of the Parliament of India. Therefore, the Portuguese law which may have had foreign origin became a part of the Indian laws, and in sum and substance, is an Indian law. It is no longer a foreign law. Goa is a territory of India; all domiciles of Goa are citizens of India; the Portuguese Civil Code is applicable only on account of the Ordinance and the Act referred to above. Therefore, it is crystal clear that the Code is an Indian law and no principles of private international law are applicable to this case. We answer question number one accordingly.”
While making a strong pitch for uniform civil code and lamenting total inaction on this front, it is then envisaged in para 20 that, “It is interesting to note that whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard. Though Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court in the case of Mohd. Ahmed Khan vs. Shah Bano (1985) 2 SCC 556 and Sarla Mudgal & Ors. vs. Union of India & Ors. (1995) 3 SCC 635.” It would be worthwhile to recall that in Shah Bano case of 1985, the Apex Court pulled back no punches to hold clearly and categorically that, “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”
It would also be worthwhile to recall that the landmark judgment in Sarla Mudgal case which was authored by Justice Kuldip Singh began with this note: “ “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India” is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law – a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said “I do not think that at the present moment the time is ripe in India for me to try to push it through”. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments – which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance any more, the introduction of “uniform civil code” for all citizens in the territory of India.”
Most notably, it is also observed in John Vallamattom vs Union of India (2003) by the then CJI VN Khare that, “It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.” Can anyone ever deny this? Certainly not!
Moving on, it is then very rightly underscored in para 21 of this latest noteworthy judgment that, “However, Goa is a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights. It would also not be out of place to mention that with effect from 22.12.2016 certain portions of the Portuguese Civil Code have been repealed and replaced by the Goa Succession, Special Notaries and Inventory Proceedings Act, 2012 which, by and large, is in line with the Portuguese Civil Code. The salient features with regard to family properties are that a married couple jointly holds the ownership of all the assets owned before marriage by each spouse. Therefore, in case of divorce, each spouse is entitled to half share of the assets. The law, however, permits pre-nuptial agreements which may have a different system of division of assets. Another important aspect, as pointed out earlier, is that at least half of the property has to pass to the legal heirs as legitime. This, in some ways, is akin to the concept of ‘coparcenary’ in Hindu law. However, as far as Goa is concerned this legitime will also apply to the self-acquired properties. Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for followers of Islam there is no provision for verbal divorce.” In other words, the Supreme Court has minced just no words to convey it loud and clear as is quite ostensible from the above discussion in this extremely landmark judgment that no attempt has been made to frame uniform civil code despite judicial exhortation. Time and again the top court has written reams and reams on the dire need of the uniform civil code in our country but Centre has repeatedly turned a blind eye to it! The top court has once again now lauded the shining example of Goa where uniform civil code is applicable to all, regardless of religion except while protecting certain rights.
The million dollar question that arises now is: Why can’t then it be extended all over India to all people of all religion equally? It can be extended provided political strong will is there which so far has been totally lacking! This is what the top court has suggested by being most vocal about framing uniform civil code and lambasting successive Central governments for not doing anything on this score despite judicial exhortation and very rightly so!
Centre must stop dishing out excuses for not framing uniform civil code in light of this latest, landmark and extremely laudable judgment and promptly act in this direction so that no one feels that just one community or religion is getting special privileges at the cost of the other! When polygamy can be banned among Hindus in 1955 then why after more than 64 years can it not be banned among Muslims also? It cannot be also lightly dismissed that many Muslim women are battling this out also in litigation as they feel that women is inexorably suffering the most because of it!
Most importantly: Why evil practices like triple talaq, nikah halala and polygamy have been allowed to continue for so long since 1947 till 2019 which has made the life of a woman worse than that of animal? Why triple talaq has been banned after such a long time? Why nikah halala which makes a complete mockery of women has not been banned even now? Same holds true for polygamy!
To summarise, the Supreme Court has in a catena of leading cases time and again forcefully argued in favour of uniform civil code but what an unbeatable irony that even after more than 72 years of independence, the idea of uniform civil code still remains just a pipedream! Centre must act right now by boldly acting on what the Supreme Court has directed now so remarkably in this leading case just like it has done in so many cases earlier also! Unquestionably, it is our national interests that will gain most and this must be uppermost in Centre’s priority list at all cost!
A note on the presidential insurrection
With a view to prevent any further violence, President Trump’s Twitter and other social media accounts were suspended and some of his tweets were censored, leading to the President’s son, Donald Jr., taking to Twitter himself to question the validity of censorship by a company, and its congruity with 1st Amendment provisions. Intriguingly, the events that occurred on the 6th are remarkably similar to events that occurred close to 52 years previously. In 1969, the US Supreme Court delivered their judgement in Brandenburg. Brandenburg, who was one of the leaders of the K.K.K (a white supremacist group) was arrested and charged with advocating violence and terrorism as a means for achieving reform.
The primary piece of evidence against him was a video clip, in which Brandenburg made a speech to those who had assembled at his rally. In his speech, he suggested violence against the Government, and requested his followers to join him in Washington. Brandenburg claimed protection under the 1st Amendment, and all 9 judges of the US Supreme Court agreed with him. In their judgement, the judges held that “constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Thus, under this, the standard of review required firstly, an express advocacy in violation of law, secondly, such an advocacy has the propensity to cause immediate illegal action, and thirdly, there must be done with an intention to cause this illegality.
With this, the standard to get a conviction for mere advocacy had been set extremely high, as there must not only be advocacy for imminent illegal action but there must also be an intention for it as well. In a rousing speech which bore an odd resemblance to Mark Antony’s speech at Caesar’s burial, President Trump iterated his complaints against the media, against the election being stolen due to voter fraud. “There’s never been anything like this. We will not let them silence your voices. We’re not going to let it happen. Not going to let it happen…” he said. To this, the crowd chanted, “Fight for Trump! Fight for Trump! Fight for Trump!”. In the moment after this, he proceeds to tell them, “There’s never been a movement like this ever, ever for the extraordinary love for this amazing country and this amazing movement. Thank you”, to which the crowd replies with chants of, “We love Trump! We love Trump! We love Trump!”. With all the guns loaded, he tells finally presses the trigger, telling them “…we fight. We fight like Hell and if you don’t fight like Hell, you’re not going to have a country anymore… So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol.” Taking his cue, the mob of supporters stormed into the Capitol in a naked attempt to overawe the Congressmen, and violence and destruction of property soon began.
If we analyse portions of his speech here, President Trump appears to be advocating an imminent lawless action as per the Brandenburg standard, and given the numbers, and their proximity to the Capitol, there was a clear threat for lawless action to occur rapidly. However, it is the intent, which would remain problematic to establish, as his actions during and after the incident would probably indicate otherwise. It is here that it becomes clear to see that immediately after the crowd reacted to his speech, a necessity for suspending the President’s Twitter sprang up, so as to arrest the likelihood of further violence, and Twitter, being a private forum, was entitled to regulate content, since the repeated judgements of the Roberts Court has held that by action under the 1st Amendment will lie against the Government. What will be intriguing to see in the coming days is how the court reconciles this with the judgement of a lower court, which had last year barred the President from blocking his followers, calling his account a public forum. It will also be interesting to see how the Courts in future decides on the issue of the whether public forum provided by a private company, can be regulated in any manner to manage public participation, and resolve its possible conflict with the individual’s first amendment rights.
While this issue may be far down the road in future, a more immediate question that needs to be resolved in light of the presidential insurrection is how far constitutional accommodations be provided to those who use the constitutional platform to break the democratic machinery itself? As the motions for impeachment begins, we will surely see more about this in the coming days.
Raunaq Jaiswal is a lecturer of Law at the O.P. Jindal Global University. The views advanced here are the author’s own.
Animals’ rights: All you need to know
Human beings cannot use intellectual powers against other animals for torturing and killing them.
Living beings are the gift of God. All of nature is the creature of God. In the ancient period, human beings were acted like animals. After the decades, many of the philosophers and scientists discovered Innovative Things and developing themselves for achieving more prosperity and self-attainment in life. Every human being has its nature and included features of Animals. We live in a global society where love and fraternity are a feature of humanity. Love and sympathy towards society and peoples is true humanity. Spread love and care for Animals, Plants, Trees, and other creatures of Nature are true features of Gratitude. In the context of Animals, the Human being is the most Intelligent and Sensitive Animal in this world because of his Intellectual quotient more than other animals.
Human beings cannot use Intellectual Powers against other Animals for torturing and killing them. Every living being has the right to live life and liberty in this world. As a human being living fearlessly in this Society, similarly, Other Animals and creatures of the World have the right to live life without any Undue Influence from another. But In this decade of “Kaliyuga” where Greed, Anger ness are Signs of Maya Jal, whose captures emotions and mind of human beings and insist them to do bad deeds in the life of them. Humans usually capture animals and detained them for personal use and security or the purpose of getting Income from them and using them for Exhibitions and Training Purpose. In Many Incidents, Humans give them miserable pain in name of greed and self-attainment. Killing them for god-worships, starving them from water and food, misuse of them in circus, battle-games, for an amusement purpose. According to the Indian constitution, Article 51(A) G deals with Every citizen of India to protect and Improve Natural Environment including Forests, Lakes, Rivers, Wildlife and to have compassion for living creatures.
Animals are similar to human beings. They have emotions and the Right to live in a world without any reasonable restrictions. This Earth belongs to them as much as It belongs to us human beings. Every human must take preventive measures to protect animals from cruelty. To have compassion on behalf of them. There is some legislation passed in India, which Protects Animals.
Prevention of Cruelty to Animals Act, 1960, passed purporting to punish persons who Severely indulging in cruelty Against Animals. Animal Welfare Board establishes under this act, Amounting to Cruelty against Animals and Adopt them in the shelter of Protection if they are starving on Roads.
According to Section 2(c) of the prevention of Cruelty to Animals Act, 1960 states the Term ‘Animal’ is defined as under living creatures except to Human beings. This term Animal not includes only Mammals but also includes birds, Insects, Reptiles, etc.
Section 11 of the Prevention of Cruelty Act,1960 states that eat, kicks, runs over, drives over, loads over, tortures, or otherwise treats any animal by causing unnecessary pain or suffering or causes or being the owner permits, any animal for such employment;
Cages or confines any animal or other receptacle having insufficient growth in height, length, and breadth for permitting the animal a reasonable opportunity to move around;
Abandoning any animal in such situations causing it to suffer pain because of starvation or thirst, without any reason.
Such Accused Person Shall be Punished for First Time Offence as Rupees 50/- Fine with Warning. With the subsequent and second offense within 3 years of Previous Offence, with fine which may extend up to Rupees 100 Or Shall be Punished for Imprisonment for Term which may extend up to Three Months.
Section 13 of the Prevention of Cruelty to Animals Act,1960 explains that when the owner of an Animal is Convicted in any Offence then the court may suggest that an Animal should be kept alive. If such animal suffering from any Contagious Disease or suffering in pain which may affect in another human life. Because such animal can attack on human being or his Property and can be done the harmful act, Thus Court may direct concern any upper-rank Policer Officer or in-charge police officer other than a constable or Appointed officer by State or Central Government, in case of Inspection to kill those suffering animals after done forensic examination of Animals in a forensic lab. After receiving the report of Forensic examination and such animals found harmful for others then such concerned authority has the power to kill such Suffering Animal.
USING ANIMALS FOR EXHIBITION AND TRAINING PURPOSE
Section 21 of the Prevention of Cruelty to Animals Act, 1960 states that Animal using for purpose of Exhibition and Training for personal use. In this exhibit, Peoples making entry by selling tickets.
According to section 22 of this act, such person who unregistered or not withhold license of the exhibition as per provisions of this chapter, cannot organize exhibit or training of animals. Section 23 of this act prohibits such exhibit or training of Animals during exhibitions or Training suffers in Unnecessary Pain then such activities prohibited by law and Court issues order against the defendant, prohibiting training or exhibition. Section 25 of this act granted the power to any upper-rank police officer or authorized police officer to enter premises where animals are kept in writing search warrants. Any District Magistrate or upper-rank police officer can enter premises where Animals are kept for inspection purposes.
According to Section 26 of this Act, Persons who committed an Offence under this act, by exhibitor trains to the unregistered animal, hides any animal to avoid inspection. Being the person who arranges exhibits but fails to provide his Registration Certificate.
Unlawfully detains animals then They shall be punishable with Imprisonment extended to 3 months or with a fine up to Rupees 500 or both.
According to Sec.28 of this act, killing animals on behalf of getting worship of god prohibited and punishable up to 3 months Imprisonment with Fine.
Section 29 of this act granted the power to the court if any Owner of Animal is convicted in any offense under this act then the court can issue an order to concerned police officer or authority to forfeiture animal in his custody from Owner of Animal.
THE WILDLIFE PROTECTION ACT, 1972
The Wildlife Protection Act,1972 Includes provisions relating to Provide Protection to Zoo Animals, Wild Animals, Aquatic Animals. Section 48 A of the act rejects transportation of any wild animal or birds aside from without permission of chief wild warden or authorize authority appointed by the state government. Section 49 of this act forbids the purchase of any Animal from a dealer who does not have a license.
Sec.16 (c) of the Wildlife Protection Act, 1972 states that the punishment for injuring or destroying wild birds, reptiles, etc., or damaging or disturbing their eggs or nests. The person found guilty can be punished with an imprisonment of 3 to 7 years and a fine of Rs 25,000.
Teasing, molesting, injuring, feeding, or causing disturbance to any animal by noise or otherwise is prohibited according to section 38(j) of the Wildlife Protection Act, 1972. Anyone found guilty of this offense may face imprisonment of up to 3 years or a fine of up to Rs 25,000 or both.
According to section 98 of the Transport of Animals Rules, 1978, animals should be healthy and in good condition while transporting them. Any animal that’s diseased, fatigued, or unfit for transport then they should not be transported. Young animals and Pregnant Animals should be transported separately.
Section 428 and Section 429 of the Indian Penal Code, 1860 states that killing, Poisoning, maiming, or torturing Any Animal is Cognizable and Non-Bailable Offence. The Persons who are convicted under this offense shall be punishable for Rigorous Imprisonment which may extend to 2 years and Fine.
When cattle are to be transported by rail an ordinary goods wagon shall carry not
more than ten adult cattle or fifteen calves. While transporting cattle by goods vehicle, only six cattle can be loaded in per truck.
The permissible loading in a truck is only 4 buffaloes, as per Transport of Animals Rules, 1978. If any vehicle or Vehicle owner is found guilty under this offense then he shall be punished and such vehicle can be seized by an upper rank police officer of the nearest police officer in his jurisdiction and Send this vehicle for examination to Nearest Magistrate.
Conclusion: Animals are part of living creatures. We believed in human beings have discretionary power and emotions but they fail to deal with animals in empathetical way.
Incidents of cruelty towards animals increases very rapidly in world.
Animals using in business and exhibition purpose leads to increase crimes against animals. Bombay Society for prevention of cruelty to Animals (BSPCA) Reveals that in last five years, 19,028 cases of cruelty against animals registered in Mumbai.
The victims: dogs, cats, birds, goats, fowl and cattle. Dr. Khanna, CEO of BSPCA States that “There are 350-400 private veterinary doctors worked in clinics, but they are focus in only profit-making”. After implementing of wildlife protection act 1972, central government insists state government to make amendments in own state Animal Protection legislations in favor of Animals safety and make control on crimes. Provisions included in Wildlife Protection Act, 1972 are more stricter fines and punishment than Prevention of Cruelty to Animals Act, 1960.
Article 51 (A) G of constitution of India states that every citizen of India should make efforts in protect and Improve Natural Environment includes forest, rivers, wildlife, lakes and to have compassion towards living creatures. Organizing Public Awareness Campaigns of Knowing Animals Rights and Major Public Participation can reduce the number of crimes held against Animals in India.
Legal awareness of Animals Rights and make stricter punishment for crime against Animals is only solution for protect and conserve Wildlife in world. And For maintains balance in Cycle of nature and environment.
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