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Farmers at the centre of political debate once again: Looking at farm bills from competition lens

Prof (Dr) Vijay Kumar Singh

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It is surprising for many that ‘Kisan’ (the Farmer) is at the center of political debate and legislative action but for an election season. Generally, farmers in India are at the center of debate during Lok Sabha elections, as every political party has to make assurances in their manifestos for the farmers. Mostly these promises relate to ‘waiver of debt’ (karz mafi’), easy credit or some financial allowances. No one thinks to empower the farmer as a businessman himself to negotiate and be part of the competitive market regarding his produce. NITI Aayog in it policy paper in March 2017 proposed strategy and action plan for ‘doubling farmers’ income’. The present debate is going around the three legislations (Farm Bills) passed by the Parliament in a stormy monsoon session. While the proposal is awaiting final signatures of the Hon’ble President of India to become law with effect from 5th June 2020 (date on which the Ordinance was brought), let us have a look at the main features of the following legislation from competition perspective.

 • The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 (Freedom of Choice to Sell Farmers’ Produce) 

• The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Bill 2020 (Framework for farming agreements) 

• Essential Commodities (Amendment) Act, 2020 (decontrolling supply of farm produce) An analysis of the aforesaid three Bills from the competition reforms perspective is a welcome step for the following reasons: 

FREEDOM OF CHOICE

 One of the greatest problems which have been highlighted across the governments in the past years was that of Agricultural Produce Market Committees (APMC) and its higher commission rates and exploitation of poor farmers. As the state APMC laws had restrictions, Competition Commission of India (CCI) had on several occasions said that “APMC laws and the pricing policy needs to be reviewed to remove competitive bottlenecks for the benefit of the farmers”. The new law takes away the exclusive rights of the APMC to trade in agricultural produce in an area. A farmer is free to choose competitive alternative trading channels for price discovery. While a trader would require mandatory PAN card, the farmer producer organizations or agricultural cooperative society are exempted. The freedom extends to the interstate as well as intra-state trade of farmer’s produce. No market fee by any name whatsoever can be charged under any state APMC Laws.

 Timely Payment to Farmer:

 Law requires the farmer to be given a receipt on the same day as an evidence of the trade and payment not later than 3 working days of the trade.

 Electronic Trading and Transaction Platform: Any person other than an individual may establish the ETTP for facilitating inter-State or intra-State trade and commerce of scheduled farmers’ produce in a trade area. This would be greatly helpful to the farmer to sell their produce online. This would be another open market, where competitors of ETTP would ensure advocacy, quality, and efficiency of their platforms. Though a government portal e-NAM exists, regulated privatization in this space would bring healthy competition. This is also forwardlooking keeping in view the focus on dynamically changing agri-economy, ecommerce and agri-exports.

 Price Information and Market Intelligence System (PIMIS): 

It is said that information and data is the ‘new oil’. Information is a double edged sword, while information asymmetry dissuades competition, information sharing sometimes may lead to anticompetitive practices like cartelization. Law enables the Central Government to develop a PIMIS for dissemination of information and would be a great tool at the hands of the farmers to know the demand and supply information for getting best for their farm produce. From competition perspective, the only challenge would be to monitor cartelisation in this space. 

CONTRACT FARMING:

 Fragmented small landholdings is one of the major challenges in India agricultural sector’s growth to which contract farming may be one solution. The second proposed legislation provides for empowerment and protection of farmers while entering into contract farming agreements if they wish to. The agreement would be in relation to the (a) the terms and conditions for supply of such produce, including the time of supply, quality, grade, standards, price and such other matters; and (b) the terms related to supply of farm services. Responsibility of the legal compliance part shall be on the sponsor. Rights of the sharecropper (bataidar) cannot be compromised through this agreement. Minimum period for this agreement would be one crop/livestock cycle and maximum 5 years, unless mutually decided more by the farmer and the sponsor wherein the production cycle of the crop is longer. 

Protection to Farmers: There shall be clarity on prices and would not depend on contingency. Farm produce under contract farming shall be exempted from the applicability of State Acts. Sponsor is prohibited from acquiring ownership rights or making permanent modifications on farmer’s land or premises. Farming agreement may also be linked to the insurance or credit instrument under any scheme of Central/State Government. A registration authority is contemplated to provide facilitative framework for registration of farming agreements. One of the provision clearly mentions that “no action for recovery of any amount due in pursuance of an order passed under this law, shall be initiated against the agricultural land of the farmer.” 

Minimum Support Price (MSP): This has been the most contentious issue in agriculture sector. While competition does not suggest prescribing any pricing, or MSP or subsidy, as this may be considered as market distorting. India being member of WTO has to also comply with the requirements on Agreement on Agriculture. A competitive market provides for price discovery based on demand and supply. Farm Bills does not provide any statutory backing to MSP. Otherwise, MSPs are announced by the government on the recommendations of the the Commission for Agricultural Costs and Prices (CACP) under the Ministry of Food and Agriculture for the enlisted crops (14 kharif, 6 rabi and 2 commercial crops). For sugarcane, Fair and Remunerable Prices (FRP) is declared. This topic requires a separate deliberation. 

Aggregators and Farm Service Providers: Small farmers may take services of “aggregator” who acts as an intermediary between a farmer or a group of farmers and a Sponsor and provides aggregation related services to both farmers and Sponsor as well as that of farm service providers like pesticide control, harvesting services, etc. 

Producer companies have now been proposed to be made part of the Companies Act 2013 under the 2020 Amendment (chapter XXIA-378A-ZU). ‘Producer companies include companies which are engaged in the production, marketing and sale of agricultural produce, and sale of produce from cottage industries.’

 DE-REGULATION:

Regulation of the supply of such foodstuffs, including cereals, pulses, potato, onions, edible oilseeds and oils may now only be done under extraordinary circumstances which may include war, famine, extraordinary price rise and natural calamity of grave nature by notification of the Central Government. An order regulating stock limit (hoarding) of agricultural produce may be issued in the following circumstances: (i) hundred per cent increase in the retail price of horticultural produce; or (ii) fifty per cent increase in the retail price of non-perishable agricultural foodstuffs, over the price prevailing immediately preceding twelve months, or average retail price of last five years, whichever is lower. Public Distribution System (PDS) or the Targeted Public Distribution System orders are exempted from application of this deregulation, which means that procurement for PDS will not be hit by this order. Some concession is also available to a processor or ‘value chain participant’ of agricultural produce. VCP includes a set of participants, from production of any agricultural produce in the field to final consumption, involving processing, packaging, storage, transport and distribution, where at each stage value is added to the product. 

What would need serious attention by the Government? 

State Governments on Board: Agriculture is a State subject (Entry 14); however, the aforesaid legislation are likely framed under the concurrent powers vested with the Central Government (Entry 33) as opening up the whole agricultural produce market would require interstate facilitation, which in turn would need intervention of Central Government. Integrating the agricultural markets as one common market for the whole country offers several opportunities but also challenges which needs to be addressed.

 Advocacy: Prime Minister has said that people are spreading rumors about the farm Bill’s disutility for the farmers. Hence it is necessary to educate the poor and gullible farmers about the benefits of the legislation and how they can avail it.

 Dispute Resolution System: Conciliation Board has been provided as the mechanism of resolution and SDM is made the owner of this process. While this is a welcome step, if Mediation mechanism could have also been included it would have been better. Further the SDMs handling this profile would require special training and an orientation towards service (‘sevak’) and support to farmers. MS Swaminathan National Commission of Farmers in 2006 recommended that “the “net take home income” of farmers should be comparable to those of civil servants”. Farmers need to be treated as equal partners in economic development of this country. Let it not become another license raj bureaucratic system.

 Paralegal Volunteers: The modern day farmer cannot be at the mercy of the traders. Farmers have to take assistance from legal professionals when entering into the legal contract. There is a huge opportunity to create para-legal professionals in each village who can help the farmers with their legal issues of farming contract and other disputes with traders. While the government shall provide for facilitation in terms of guidelines, some support through the existing village community information and service centers.

 Competitiveness of Farmers: It is important to raise the agricultural competitiveness of farmers with small land holdings. However, at the same time, age old sensitivities to subsidies and MSP needs to be taken care of by the government, once the farmer gets hang of the new system, things would improve. Any change meets with some resistance, and this is a huge change rather a transformation of its kind. The visualization of farmers have mostly been dictated in movies and Indian literature as poor down-trodden person being exploited by traders (sahukars); however, the present requirement is that we look at the brighter side, that is ‘mere desh ki dharti sona ugle, ugle hire moti’ (my country’s land produces gold and pearls – lyrics from movie Upkar). If the farmer’s son looks at farming as an entrepreneurship opportunity, a lot can change the way we look at farming and its potential. This will cure several ills like migration, job scarcity and rapid urbanization. Need is to suggest positive changes in the laws and support implementation to the core. 

Dr. Vijay Kumar Singh is Dean, School of Law at UPES Dehradun. Views are personal

Legally Speaking

The status quo of criminal investigation in India: A cause for worry?

The Common Cause report on ‘Status of Policing in India, 2019’ reveals some shocking numbers. The report shows that police in India work at 77% of their sanctioned strength which is 3/4th of their capacity. The report also shows how the representation of SCs, STs, OBCs and women is extremely poor in our police forces. Reserved positions for such personnel have lied vacant for years.

Anurag Tiwary and Abhinav Narayan Jha

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“Everything has been said already, but as no one listens, we must always begin again.”

Andre Gide – French Thinker and Writer

Justice Malimath Committee, which was tasked with suggesting reforms in the Criminal Justice System, started its report with the above quote by Andre Gide. This was in 2003. The authors of this piece have decided to do the same. And, there are three specific reasons for that. Firstly, demands for reforms to the Criminal Justice System and specifically Criminal Investigation in India have remained almost similar for the past three decades. In that, we have continuously raised the issues of outdated and colonial legislations, structural and behavioural inadequacies in the police force and the force’s inability to adapt to developing technologies and scientific tools of investigation. Secondly, India has historically had a secret love for constituting committees, giving them a time frame to suggest reforms and, the legislature then implementing them in bits and pieces. This has been a routine affair. We have done improvements. But, in that, as we just said, we have missed the root of the problem which is to create a dynamic and an inclusive police force. Thirdly, several civil society organisations, supreme court judgments, reports by international organisations and experience on the ground have suggested that our citizenry have no trust in the entire police administration when it comes to investigation and allied affairs connected to it. This has inevitably led to a backlog of cases, increased corruption, custodial violence and deaths, tampering of evidence and reduced conviction in criminal offences.

So, yes, everything has been said already and has also been repeated by many since decades. But there is no time like the present. Our courts have become increasingly vigilant to this development and this is more than it ever was. A Committee for ‘Reforms in Criminal Laws’ has been set up this year by the Ministry of Home Affairs, Government of India, with the mandate “to recommend reforms in the criminal laws of the country in a principled, effective, and efficient manner which ensures the safety and security of the individual, the community and the nation; and which prioritises the constitutional values of justice, dignity and the inherent worth of the individual.” So, these are exciting times in criminal law and for a student of criminal law, ‘hope against hope’ is the best medicine.

SOME NUMBERS FOR STARTERS

It is only fair, if we criticise the police force, to ceremoniously present facts in support of that narrative. The NCRB report on the status of crimes in India for the year 2019 was released recently on the 25th of September. The report suggests an increase in 1.6% of registered cases under the IPC and Special and Local Laws in the whole of India from 2018. Infact, the past decade has witnessed a steep rise in crime statistics in India. There has been a drastic increase of 63% cases under cognizable and 73% cases under local and special laws. The conviction rate of crimes in India on the other hand is 50.4% and chargesheeting rate is 67.2%. In rape cases, the chargesheeting rate was 81.5% and the conviction rate was 27.8%. In cases of murder, kidnapping & Abduction, Rioting and hurt (including acid attack), the conviction rate for the year 2019 was 41.9%, 24.9%, 19.4% and 30.6% respectively. There are only 30 cybercrime cells in India for a population of 1.3 billion people. There are only 7 central forensic science laboratories, and this has consistently been reported to be as ‘inadequate’.

The Common Cause report on ‘Status of Policing in India, 2019’ reveals some shocking numbers too. The report shows that police in India work at 77% of their sanctioned strength which is 3/4th of their capacity. The report shows how the representation of SCs, STs, OBCs and women is extremely poor in our police forces. Reserved positions for such personnel have lied vacant for years. The states topping the list here are U.P. and Haryana. Furthermore, it also shows how such groups are less likely to be posted at officer-level ranks than General personnel. They are also more likely to face unequal distribution of work wherein they are asked to do their senior’s chores, private jobs and household work.

One out of four female police personnel reported the absence of sexual harassment committee in their respective police stations and one out of five reported absence of separate toilets for female personnel. States like Bihar, Karnataka and Bengal have the highest levels of institutional bias against women in the forces. The report goes on to state that senior Police officers have a feeling that “women are less hardworking, less efficient and should focus on household duties”. Data shows that women police personnel are given in-house tasks like maintaining registers, etc. whereas, male personnel are given in-field investigation, law and order, policing and patrolling tasks.

What is shocking is that many police personnel have a feeling that Gender-Based Violence (GBV) complaints are false and motivated. They also feel that members of the Transgender community, Muslims, Dalits, etc. are more ‘naturally’ prone to committing crimes. Convincingly, a plausible reason for why states like UP tops the list in the greatest number of custodial deaths.

The increasing nature of politicization of crimes, in general, has gained momentum in the last decade. The 2019 report shows how police personnel almost always face political pressure while investigating crimes that have political ramifications. It is also seen that there are certain areas where political control is exercised more effectively with the help of the police. The areas where the majority population is from the Dalit or minority community, the police infrastructure in those areas is in shambles. There is a greater lack of adequate training, digital accessibility, vehicles and funding provided to the police. In such a situation, crimes either go unreported or are met with state-sponsored violence in police stations. Only 6.4% of the police force has been provided in-service training over the last five years. This too has been provided mostly to senior-level officers. Transfers of police officers involved in investigating crimes are highest in the states of U.P. and Haryana.

WHAT DO THESE NUMBERS SHOW?

So, the next obvious question will be – what do these long lists of statistics and survey reports state. After a point, they look confusing because they hint at the same problem in different ways. However, for our convenience, let’s point out five critical points of conclusions from the above data.

POLICE FORCE REMAINS SEVERELY UNDERSTAFFED, OVERBURDENED AND UNDERREPRESENTED

Lack of adequate number of police personnel ensures that the existing workforce is overburdened with work. The police have majorly two responsibilities – law and order and crime investigation. However, there is no categorization of the force into these two departments. Our personnel are involved in both these jobs which severely hampers the progress of any investigation that is being simultaneously carried out. Majority of our personnel are overburdened with work. They are required to be available for work 24 hours a day and 7 days a week. Most of them who are qualified enough, are put into VIP bandobast duty – making life easier for businessmen, stars from the entertainment industry, sports and politics. Reduced efficiency and depression are a normal consequence.

Under-representation of the force, on the other hand, ensures a lack of diversity. Our administrations are yet to learn that people from different communities and different backgrounds will bring with them different experiences and this would enable new ideas to be brought to the table. Yet, our police force is majorly represented by one section of the community. Reserved positions have mostly lied vacant for years. Let’s understand that lack of diversity leads to the strengthening of the behavioural biases that we have historically gathered as an institution. If women, SCs, STs, OBCs and minority communities are a part of the police force, the discriminatory practices against them would also decrease. It’s a simple formula of representative democracy. If people don’t relate to the crimes they are investigating or are prejudiced against the accused or the victim, as the data’s show, it will hamper the investigation and that is exactly the story of our criminal investigation system so far.

FORCES REMAIN UNDERTRAINED

The other problem we discuss is the lack of training in the police forces. The little available training is only given to the officer level personnel. Many states in India have little to no training available for its personnel. This ensures feudal mindsets to grow within the force, especially among the lower level personnel. The first reaction to a crime on the street, from the police force, is by a hawaldar or an Assistant Sub-Inspector who leads a team of sepoys (the lowest-ranked personnel) to investigate the most serious to the most heinous offences. Before the case is handed to an Investigating Officer, they are the ones who are tasked with collection of evidence from the scene of the crime, initial arrests that are to be made and empathetic response to the victim and his/her family. Training to such lower rank personnel ensures that they would, in this entire process, follow the spirit of the law and react most professionally. However, the reality is exactly the opposite. We know this either from experience or from the several observations made by our courts on how the police had failed in its initial duty which lead to the entire case falling apart.

RETICENT TO CHANGE

While most of the world’s homeland security and local police administration has shown inclusivity and have incorporated the new developments in science and technology that act as revolutionary tools for investigation, our state police forces remain mostly the same. Changes have ofcourse happened and simply writing them off and not acknowledging those developments would be unfair. However, they remain so little and so much controlled by the political executive, that it would suffice to term it as merely symbolic. As numbers have shown above, India has merely 7 Forensic Science Laboratories for a population that is the world’s second-largest while America has 400 FSLs. India has merely 30 cybersecurity cells in an age of globalization when Internet has become the medium we use to live and enjoy most of our lives and so, as we see, is going to be the case increasingly in the near future as well. Local police stations in most of the country are not even aware of the dangers that cybercrime poses, while on the other hand internet penetration in our villages is now increasing like never before. We are not prepared to deal with the huge gamut of cases that will come in the next decade relating to cybercrime. Our police force is also least trained to deal with people’s data and their personal information with sensitivity.

Understanding how new technologies in criminal investigation has changed the way police forces across the globe respond to crimes and its after-effects is crucial in speedy justice and ensuring the efficiency of our forces.

LACK OF CO-ORDINATION

Another aspect of this is – the lack of a formal integration mechanism of criminologists, psychologists, psychiatrists, civil society organisations and experts in victimology with the police force in the investigation procedure. It is to be understood that crimes today are extremely complicated – in that, we know that there are new kinds of offences and new means and modes have emerged that facilitate the criminal. Also, criminals, today can no more be categorized in the same fashion as we used to earlier. Today, increasingly, crimes are committed by people for no reason at all. Socio-economic inequalities, years of oppression, systemic violence and gradual marginalization are the prime reasons for the increase in crimes. Such criminals have no fear for the law, and neither are they afraid of any kind of deterrence. In such times, integration of psychologists and other such experts, who help in psychological mapping and other such techniques to extract a confession, will further the cause of investigation. Infact, it will also help in analysing how our future investigations must be carried out and help shape our public policy towards the prevention of crime in the longer run.

Our police force continues to rely on violence for extracting confession and carrying its investigation properly. This does not just lead to a violation of the most basic human rights of those accused but is also highly unsustainable. Such a mechanism cannot be carried for long behind closed doors. Inclusion of such experts as mentioned above wouldn’t just solve these problems but infact, with more expertise and reliability ensure that our systems are sustainable and do not face popular backlash in the coming years.

NEW ROLES OF POLITICS AND MEDIA

The role that the political system in India and the new age of media (including digital and social media) has played in the last decade, is slowly becoming a huge threat to impartial and unbiased investigation of crimes by police forces. Political interference has almost become a norm and politicization of crimes a new hobby of the media. In these difficult times, when media trial is carried out and no laws or legislations are in place to regulate it, the police force is either swayed by popular opinion or is forced to do what its political masters ask it to do. The recent challenges to media trial have shown how it poses a grave danger to the entire criminal justice system where a group of people sitting in a studio, with little to no experience in investigation can dictate terms to the police force. The proliferation and normalization of such a development will become the biggest challenge of our times with respect to protecting the Rule of law from becoming an outdated model of constitutional governance.

Special branches of the investigation machinery such as the CBI, ED, NCB, etc. remain controlled heavily by the political executive. Sensitive cases that are transferred to these departments are controlled the way the political system wishes to control them. And this has led to a severe loss of credibility and trust in these organisations who were constituted to offer professionalism, efficiency, expertise and better results.

The Police force has been consistently accused of its failure to register crimes, investigate politically sensitive cases impartially, extrajudicial killings, custodial deaths, arrests on false charges, detention without charges and for due process not being followed.

THE ROAD AHEAD

The problems, as we stated at the starting of this piece are not being pointed for the first time and so there is absolutely nothing innovative about the solutions either. They remain the same. What has changed is the context in which these reforms are being demanded by organisations, departments and other stakeholders who are affected by the crisis. Crimes impact each one of us and they are a serious threat to the way our societies will grow.

Unless we realise the root of the problem, we will never be able to identify the bottlenecks and resultantly our solutions will simply be all talk and no constructive work.

Our solutions in making criminal investigation more accountable, structured, speedy, modern and professional will have to start with doing away with the laws that govern our forces. Our police forces are still working under the archaic Indian Police Act of 1861. We need to fund alternate organisations to ensure better integration of scientific experts, forensic experts, criminologists, etc. with the police in their investigation who would not just assist in investigation but would also shape our future policies for crime reduction. We need to be more open and accepting towards diversity in our forces and ensure that training – both physical as well as emotional and intellectual training is imparted to the personnel.

In our view, the committee setup this year has a bigger task before itself. This is because, its work should not just be limited to suggesting amendments in the existing laws but to do a complete policy analysis and ensure that structural, legal and behavioural changes are introduced in our criminal investigation machinery. If it fails to do so, it will remain just another committee, which will be read by us for a study on ‘historical development of criminal law’ in legal history books.

Anurag is a student of National Law University, Visakhapatnam and Abhinav is a student of Amity Law School, Noida

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Protection of whistleblowers in India: Myth versus reality

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“The purpose of whistleblowing is to expose secret and wrongful acts by those in power to enable reform.”

— Glenn Greenwald

INTRODUCTION

The term whistleblowing can be understood as raising our voice against some malpractices that are there in an organization. It can be understood as when any person discloses any information that is illegal or unethical present in any organization to the people at large. The term whistleblowing originally came from sports where referee blows their whistle to ensure that there is no foul play involved in the match.

The RTI act 2005 is an effective tool for whistleblowers, because of this act only they can obtain any information about activities which they think are illegal or unethical. In many cases, they can bring corrupt practices to light by using this act only. A large number of whistleblowers were RTI activist, who believes that by doing this they can reform the government and end the malpractices that are present in an organization. But by doing this they have a constant threat to their lives because the information they seek from the government or any public offices can destroy the carriers of many corrupt officers. These officers hold a very big position in these offices and have political connections as well so they can do extreme measures to take revenge. We can say that there were several problems in the existing structure of the act, lack of anonymity of the information seeker raises the chances of getting threats from the people who were at discomfort because of information. People use to harass or give threats to the person to take the request back and if the person did not do so then they even kill the person. Some of such examples Are the killing of Rajendra Prasad in Bihar who exposes the local government for corrupt practices in the police recruitment process and the public health sector as well in another case an RTI activist named as Amit Jethwa who exposes the illegal mining in the Gir forest area of Gujarat also gets killed. In the year 2003, an engineer named Satyendra Dubey in Bihar shot dead after he exposes the malpractices present in the golden quadrilateral project. After this, a call for an act that protects the whistleblower in India arises. After the wait of so many years in the year of 2014, a whistle blower protection act is enforced. Under this act, it is the government’s responsibility to ensure the protection of the whistleblower against the victimization and to conceal their identities. But even after the introduction of this act the number of death of the RTI activist continue to increase in our country. some states also say that they will provide police protection to those activists whose lives were in danger but there were several loopholes in this system as well.

LEGAL FRAMEWORK OF OUR COUNTRY ON WHISTLEBLOWING

The Indian companies (Amendment) Act, 2017 – There is a concept of whistleblowing that is provided by this act, but this term is nowhere expressly mentioned in the act. Under chapter 14th of the companies’ act 2013, that is inspection, inquiry, and investigation the concept of whistleblowing is given. Under the act, it is said that whistleblowing is not an individual job to do but it is an obligation of everybody who is working for an organization to look at its functions and report if he thinks that the organization is not working properly. Under the section 218 of the act, protection is given to the employees while the investigation, this act promotes that every individual who thinks and has reason to believe that the company is using any malpractices or not doing the work by the companies act 2013 then he/she can make an official complaint of the same to the registrar of the company.

Whistleblower protection act 2014- The main motive behind the incorporation of this act is to provide a platform where any person can disclose any information regarding the malpractices or illegal activities present in a company or they can file a complaint against the public servants who were misusing their powers. This act provides us the opportunity to disclose any information through public interest disclosure before the competent authority. The person who is disclosing any information through public interest disclosure has to reveal his identity before the authority and no complaints should be entertained if the person is not revealing his identity. The identity of the complainant is needed only to cross check that whether the complaint is filled by himself or any other person is using his name without his knowledge. If the identity and the facts of the complaint are established then after that the authority will investigate into that matter discreetly. If the identity of the complainant is disclosed by any means then there should be an internal inquiry in that manner and the person responsible for disclosing the identity should be punished according to the law. This act also protects the person against any victimization, if the authority thinks that there is a need to protect the complainant then they will do the necessary arrangements to protect the complaint from any threats.

CORPORATE FRAUDS

THE INFOSYS EPISODE- In this case, a group of employees filed a complainant against the top management of the company under which it is stated that the company is using unethical and illegal practices to increase the profits and the short term revenue. The complainant sends that complaint to the board of directors of the Infosys and the US Securities and Exchange Commission because the company is registered in the US and it allows filling confidential complaints with it. In the complaint, the complainants did not reveal their identity because if he will reveal his identity then he has to face the retaliation of the same. The complainant also assured that they have evidence such as call recording and a copy of the email that will prove the above allegations. In the complaint, he alleges the CEO, Mr. Salil Parikh that he directed them to manipulate the documents and make wrong assumptions.

Another thing that is stated in the document is that the position of the CEO of Infosys is to be based in Bangalore itself so why the company is not forcing the CEO to begin his work from Bangalore, not from Mumbai. The funds that are used in the visits of the CEO to Bangalore belong to the company, if he wants to work from Mumbai then all the traveling expenses to Bangalore are covered by his salary only not from the funds of the company. But after all the investigation conducted by the audit committee of the company, they gave a clean chit to the CEO of the company that they did not find any substantial evidence confirming the same. The SEC also gave a clean chit to the company in this matter.

THE SATYAM SCAM – In this, the company misrepresented the accounts of the company to the board, the investors as well as the shareholders. In this scam, the company is alleged in fraudulent auditing practices that are done by the chartered accountants and the auditors of the company. This company is following the whistleblowing policies since it’s starting but it is not followed correctly and due to that only it leads to such a big scam. In this scam, the chairman of the Delhi metro rail corporation suspected big mischief that is happening in the company and raised a red flag about the same in front of the head of the planning commission of India. After all these accusations the owner of the company Ramalinga Raju surrendered himself to the police for the fraud. The original whistleblower that is the chairman of DMRC faced defamation charges by the Andhra Pradesh government because of his letter.

THE RANBAXY COMPANY FRAUD- In this the whistleblower named Dinesh Thakur was an employee of that company and he suspected that some malpractices are being practiced in the company and because of that he raised his concerns to the concerned authority. But after that, he was forced to resign from the company because the issues he raised consists of drug development, manufacturing, and testing data, and these were very serious allegations so the company management forces him to resign. After resigning he started working for the US food and drug administration and from there he was able to expose the malpractices present in the Ranbaxy Corporation. Only because he took the protection of the US whistleblower protection program.

WHISTLEBLOWING IN NEW ERA: BY INTERNET

The main benefit that people think of this option is the anonymity of their identity. Many people want to expose the malpractices present in the system but they were not doing that because they have to give their identity and because of that theirs, as well as their family, lives come into danger.

These people want to expose the malpractices so the only option left with them is to take the help of these online sites to bring all these data in public. It is a lot easier option to expose anything by the internet because here we don’t have to get the print out of all the documents, where we can just share them as they were available in soft copies. Now a day all the government offices have also become digitalized so it is very easier for low-level employees to get secret data that is enough to expose any malpractices that were present there.

There were many sites such as wiki leaks that offer the whistleblower a sophisticated platform to give that information without giving any of their personal information. They claim that they even do not keep the record of where you uploaded that thing, your time zone, or even your browser. Due to all of these benefits people tend to use these platforms more than the government laid procedures because in that we have to disclose our identity.

With all the benefits that we are getting by the online platforms, there were some risks also attached to them such as the threat to national security. Our government agencies have some power to protect national interest they can have some information as secrets with them. These documents are very important for the development of the country and if such documents are leaked by anyone over the internet then the image of the country is degraded worldwide. It will also jeopardize the security of the nation, so we have to be cautious all the time before using any platform for discussing such things.

MEASURES TO PROTECT WHISTLEBLOWERS

PUBLIC INTEREST- As discussed in the case Common Cause and Ors. Vs. Union of India and Ors. The Supreme Court has mentioned that the whistleblower cannot be penalized if he discloses any confidential information for the public interest. Currently, as per the act, every disclosure is a public interest disclosure, there is no specific definition for the public interest is given in our statutes. Because of this many times, there was confusion regarding the information that whether it can be of public interest or not. There is a difference of opinion between many agencies regarding this topic so in our country we need a test that could define whether the disclosure of particular information is of public interest or not. We can decide this thing by looking at whether the disclosure of information informs the public about the working system of the organization, whether the disclosure helps in the decision-making system of the government, whether the disclosure of information informs the public about the danger that is there on their lives because of the negligent conduct of an organization if these type of disclosure is happing by anybody then the agencies can choose not to disclose by saying that it is not in the public interest but by seeing the larger picture in the place we can see that the agencies were only trying to save themselves from the embarrassment caused by their actions. So there should be a test to determine this in our country.

ANONYMOUS COMPLAINTS – The act in our country doesn’t allow anonymous compliant to be filled and if any such complaint is filled it is rejected straight away and the complainant has no other option than using the online tools for disclosing information. In our country the government didn’t entertain the anonymous complaints because several complaints are there without any evidence, these are filled only to defame that particular person.

It would take a very large amount of task force and time to check the validity of each complaint and to save themselves from this, the government didn’t allow anonymous complaints. There is a need to find a solution to this problem because many times the complainant did not want to disclose the name and he could have some information that is of national security and because he cannot disclose such information to the government he chooses to disclose it online and the information jeopardizes the national security. In this case, we cannot blame the complainant completely because even we did not give him the chance to disclose that information to us. Some countries develop a solution to this problem such as establishing a hotline in Germany that allows the whistleblower to share his information without giving his credentials, In Indonesia, they develop a website where the whistleblower can share such information and in South Korea, they also established an anonymous hotline for this.

VICTIMIZATION- The act in our country has a very general idea about the protection of the victimized whistleblower. It only directs the concerned authority to give protection to the whistleblower but the authority has the final call over it and in almost all the cases the local authority was not so efficient in providing securities to them because of the local pressure by those against whom the whistleblower has filled the complaint. Certain things could empower the whistleblower if added in the act were if the whistleblower has the entitlement of getting a transfer from a place or to revoke his transfer then this will give some sense of job security to him. In many cases, the whistleblower is falsely arrested in some different cases to pressurize him to take back his complaint so there should be a rule of immunity from prosecution given to the complainant. He should have given legal assistance by the government to fight from any other false complaint against him. People try to harass the whistleblower in any way possible so if he had legal assistance with him then he can fight with all of this easily. If the whistleblower thinks that he has some kind of threat to the life of him and his family then they all should have given police protection.

The competent authority may analyze the threat level and after that, they can decide the level of protection they get.

INCENTIVES – There is no such concept of giving incentives is there in the act but if some person provides a false complaint against someone just for his grudge then the person will get punishment according to section 17 of the act.

So if any person is getting punished for giving false information then why not give a reward to the person that discloses very important information and because of that information the government gets various benefits and also the lives of the people are saved. So according to me, the government can give some incentives to such people.

The only problem, with this rule, is that after this many people will complain only about the reward. But this problem can be solved the government punishes those people who allegedly file complaints to settle his grudge then only in that way the government can recognize that whether the complaints filed by him are in the interest of the public or not.

CONCLUSION

In our country, the condition of protecting the whistleblowers is not very encouraging, even after implementing so many acts and doing amendments to them the condition of the system is not good. One of the major problems is corruption is present in every department and office whether private or government. Companies don’t let their employees speak against them, and if anyone dares to raise their voice against the malpractices then the company use its enormous wealth and power to win that case and after that the employee that raised his voice, either he gets terminated from the company or his life becomes miserable their so he had to leave that company. In our country to be a whistleblower enormous strength is required, everybody cannot take such amount of pressure that a whistleblower gets in our country.

Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.

–Lord Acton

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THE FALLACY OF PUBLIC INTEREST LITIGATION

Siddharth Shrivastava

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Recently, the Hon’ble Supreme Court of India ordered the removal of 48,000 slum dwellings around railway tracks in Delhi, affecting approximately 2,40,000 people. Prior to this order, the Apex Court and the Delhi High Court have ordered many such removals of slum dwellings throughout the city. To freshen up the readers’ memory, one may recall the large scale slum demolitions in Okhla and Wazirpur in 2003 or the removal of slums along Yamuna-Pushta wherein 1,50,000 slum dwellers were displaced pursuant to Delhi High Court’s orders in a PIL seeking their removal, at the command of Shri Jagmohan, the man behind infamous emergency era demolitions. It is correct to say that the courts have not held back from enforcing law & order in the city through means of PIL. However, the courts have time and again ousted their jurisdiction due to the excessive use of PILs which are a violation of multiple facets of the legal foundation of a society. The author intends to highlight these violations through this article.

First, the very foundation of a legal system, often referred to as the Rule of law, provides that no person can be condemned unheard i.e. if the court is punishing a person or imposing any liability, such a person must be heard. However, in a public interest litigation, the affected persons are never heard by the court. The court appoints an amicus curiae, a friend of the court, who helps the court with the legal actions which could be taken against social causes highlighted in the PIL but, the persons directly affected by such PILs are not heard by the court. In all these aforementioned cases including the recent order of removal of slums near railway tracks, the order was passed without the presence of any representation from the affected persons nor were such persons allowed to intervene in the matters. As a result, the homes of these persons were ordered to be demolished, depriving them of a roof over their head, without giving them a right to be heard.

Second, the court appoints committees to assess the on-the-ground situation and report directly to the court. Any other party affected is not allowed to file any evidence. Therefore, the court relies completely on the reports of such committees which are, on many occasions, not in public domains. As a result, there is absolutely no way of availing the report even if a person is directly affected by it. Further, the committee can gather and rely on any evidence, without considering its authenticity, such as surveys, journal articles etc. Generally, such forms of evidence are not relied upon by the courts in normal proceedings however, if the committee relies on such evidence, it is not questioned by the courts. Further, it is a general rule of evidence and procedural law that any evidence used in a proceeding shall be disclosed to other parties and such other parties shall be given a chance to cross examine the evidence. However, since the court does not permit affected persons to be impleaded as parties to the case, no such evidence is disclosed.

Third, every order passed by courts in PILs ordering removal of slums in aforementioned cases have been interim orders and not judgements. The fallacy lies in the fact that on most occasions, such orders are not explanatory or speaking orders as compared to judgements wherein the judges provide well-reasoned arguments supporting their decisions. As a result, people lose their homes and livelihood on the basis of unreasoned orders which, in normal circumstances, would not be regarded good in the eyes of law.

Considering the aforementioned, the public interest litigation in India is inundated with fallacies and violations of the rule of law. The courts seem to have overlooked the procedural aspects and the protections afforded to the people, thereby taking a stance that procedural complexities do not apply when courts are hearing PILs. On the other hand, it may be argued that the PILs have had a more positive impact than negative. As Colin Gonsalves, a leading PIL lawyer quoted “The PIL court has capacity to do good and do bad. I would rather the court has this capacity than not.” The PILs are swamped with processual fallacies however, there positive impact cannot be questioned. The courts, however, must find credible grounds for justifying the procedural violations.

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Understanding IP through utility and incentive-based approach

Saransh Chaturvedi

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In the previous piece, the author discussed how personality matters in intellectual property. The author relates to the personality theory giving Hegelian’s justification for intellectual property. The claim over the property by the creator is because others should identify the work with the creator. If we see any type of literary work, stories, novels, etc. we find that these works signify the authors’ personality which can be expressed as the persona. The individual image and what the society perceives is what is ones’ persona. This Intellectual property and personality connection focus on the creator’s will through the medium of the creation. Now, this piece will specifically be dealing with the utilitarian based approach of intellectual property. Whether utility will work only when there is an incentive-based approach, is something that the paper will throw light upon.

What is the basic understanding of Utilitarianism? Utilitarianism is based upon the simple understanding that any action is morally right action when it produces the most good. It can be said that this theory is primarily dependent upon the consequences of an action. Your action’s consequences will determine whether your actions are justified or not, hence a form of consequential determination. Jeremy Bentham looks at the good with pleasure and pain. The good has to provide with the greatest pleasure and with the least pain. His famous contention was that humans were ruled by two sovereign masters- pleasure and pain. We seek pleasure and avoidance of pain. Well, the foundation being relied upon “moral values” can invite various criticisms. If a poor person is needy and hungry, he stole money and food. So if we rely upon the moral justification, that poor man has not done anything wrong. Because the consequence of his action is morally justified, being that his need and hunger are addressed. Similarly, any grant of intellectual property which is frivolous might be morally justified. Hence this moral justification can be subjected to various criticisms. So our understanding regarding the moral justification will be subjected to a system or institution and not on the individual actions to save ourselves from such criticism.

The utilitarian is based on two classifications, act utilitarian and rule utilitarian. Act utilitarian holds that the individual act is morally right when that act produces the maximum utility. While, on the other side, the rule utilitarian holds that whether an act is right or wrong depends on considering its moral value. If an act ‘A’ produces maximum utility, it will be correct even if ‘A’ is morally wrong, according to act utilitarian. But for rule utilitarian, even if ‘A’ produces maximum utility it will not be correct until it is proved that ‘A’ is morally correct. Hence specific action is morally justified if it confirms moral rules. And moral rules are justified if it creates more utility. Our system of intellectual property falls within the parameter of rule utilitarianism. Therefore, any action will be justified if it conforms to the rules of intellectual property. And the rules of intellectual property will be justified since these rules create more utility.

Now let us understand the above-mentioned premise more thoroughly. In a society, we tend to create a product that gives us the maximum utility. That product should be useful to us more than that of any other product. A simple vacuum cleaner of one company will provide more utility if it is more efficient in working than its counterpart of other companies. Hence we tend to buy that vacuum cleaner. This is where we gave more importance to the consequence of the act. Now, for a rule utilitarian, a vacuum cleaner will be justified under the intellectual property, and the system of intellectual property will be justified as it provides more utility. Hence the vacuum cleaner will be justified for providing more utility.

After understanding the first part of the utility-based model, let us work to link the utility-based model with that of the incentive-based approach. An idea or knowledge is free. We can say that both are Non-excludable and Non-rival. By non-excludable it means that no one can exclude others from the possession of information. Even an IP holder cannot prevent others from the possession of his IP’s information. By non-rival, it means that one person’s consumption will not undermine another person’s consumption. Consumption of information by me will not undermine the consumption of the same information by others. Now if we assume that the idea and knowledge are non-excludable and non-rival, we can conclude that the idea and knowledge transmission is negligible as nobody can be prevented. This follows that there will be no incentive to the person who has executed an idea, as it is free. The inventor will not be able to recover his investment as it is being free-flowing. This brings us to a situation where there will be a complete free-riding. Will anyone take the pressure of inventing something when he knows that it will ultimately be a free-ride for all? The answer to this is no. Now here comes the importance of an incentive-based model. When any person is being given an incentive for his work and he knows that his work will not have a free-riding, it will ultimately result in having better inventions. The better the invention is, the better are the incentive. This will instill a system where we will have goods of more utility, i.e. the best of all the goods.

This again reiterates the similar above proposition. Society seeks to maximize overall utility by ensuring that new products and intellectual work are created. Limited intellectual rights are granted as incentives for the production of such goods. These policies in itself are granted because this acts as incentives to authors and inventors. Hence conclusively, society ought to adopt a system or institution if and only if, it leads to or is expected to lead to maximization of overall social utility. This is where the above proposition of rule utilitarianism that the intellectual property system is morally justified holds as this system helps in maximizing the utility. The system of maximum utility will be possible only when there is an incentive-based approach. And this is where we can draw a substantial link with that of utility and incentive-based approach. By adopting a system of copyright, patents, etc. we can lead to an optimal amount of intellectual work being produced and a corresponding amount of social utility in society.

Some people argue that the system of monopoly should not be supported as it stops others from doing the invention. Adam Moore in his article “Intellectual Property, Innovation, and social progress: the case against incentive-based arguments” explains this very beautifully. For seeking something alternative to patents rights to inventors as incentives, can support by the government be sufficient? He argues negatively. This type of government incentive or funding can stimulate the production of intellectual property without giving monopoly control to the inventor or an author. But will that be enough? James Watt, the holder of the steam engine, denied the license to improve it to Jonathan Hornblower and Richard Trevithick. They have to wait for Watt’s patent to expire before they could develop their high-pressure engine. Adam’s main contention was that this type of government’s incentives will not be enough as one cannot predict the demand in the future market, research development, and resource allocation. This incentive might undermine the inventor as there is a possibility that the inventor will be under-incentivized.

What about granting equal patents to all who discovered similar nature of the product? Adam gave a beautiful example that if X and Y, both are granted the same patents, it will not be beneficial for both. Suppose tomorrow if Y thinks of putting up his invention in the public domain, what will be the use of X’s invention, and what about his incentive. Hence this system will not work like this. How unique will the X’s invention be, when it has already been put into the public domain by Y?

Through this comprehensive article, one can able to understand how important is utility coupled with an incentive-based approach. We cannot imagine a society getting maximum utility without providing an effective consideration. This is where the system of intellectual property plays a massive role in providing maximum utility. After Locke justifies property and Hegel’s personality justification, the utility-based incentive approach forms the bedrock of the jurisprudential foundation of Intellectual property.

Author is an advocate practicing in Allahabad High Court.

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Untenability of the constitutional challenge to farm reform laws

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The Union Government may have had to face political brickbats as a result of the radical changes introduced by way of The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 (hereinafter, ‘Produce Trade Act’) and The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 (hereinafter, ‘Price Assurance Act’), however, with the petering out of the initial political outrage against the Modi government’s farm reform measures, the opposition has decided to alter the battle field from the highways and rail-tracks to the Hon’ble Supreme Court.

In an earlier piece, I had traced the long-drawn process of reforms in agri-marketing as initiated by the Modi Government right from the initial years of its first term as have culminated in the promulgation of the ordinances (subsequently the ‘Act’ as collectively referred to as ‘farm reform laws’). In fact, I had argued that not even the greatest critic of the said laws can remain impervious to the benefits of dismantling the artificially constructed monopsony of the Agricultural Produce Marketing Committees (APMCs), colloquially referred to as mandis. Nevertheless, keeping ones biases aside, the endeavour herein is to evaluate the tenability of the constitutional challenge to said farm reform laws.

Before venturing into the specific grounds of challenge as before the Apex Court, it ought to be definitively clear that legislations duly passed by the Parliament or State Assemblies cannot be brought into question unto their stated or intended intentions, purposes or motives barring prima facie unreasonableness, irrationality and incompetence of the legislature enacting such laws. Additionally, presumption as to constitutionality of lawfully enacted statutes is a settled principle of law and must be taken into account by constitutional courts when considering the challenges thereof. The mere possibility that a law may be abused does not render it unconstitutional ex facie and thereby any under-inclusion, exclusion and/or preclusion emanating from such laws need not need be scientifically pure and all-embracing; considering the same, Parliament is perfectly empowered to promote, dismantle, alter and/or restructure inter-state trade and commerce.

The petitions as presented before the Apex Court challenge the supposed violation of the right to ‘equality before law’ under Article 14, ‘right to life’ emanating from Article 21 and ‘prohibition of traffic in human beings and forced labour’ vide Article 23. It has been erringly argued thereof that the combined effect of the farm reform laws would be to reduce the labour of the farmers to that of begaar, i.e. forced labour.

Not only is the above submission founded on perceptions and conjectures, no cause of action is forthcoming by way of these surmise-driven averments. Any submission that these laws are adverse to farmers’ ‘choice’ is disingenuous at the very least. Impugning these laws on perceived dismantling of the mandi system and the minimum support prices (MSP) is tantamount to unwarranted fearmongering and to that extent suffers from patent falsity emanating from political considerations and compulsions.

Nevertheless, what warrants deeper inquisition is the petitioners’ assertion challenging the legislative competence of the Parliament to enact these laws and the supposed encroachment into the legislative field of the State Legislatures. Briefly stated, Part XI of the Constitution read-with the VIIth schedule outlines the ‘legislative relations’ between the Parliament and the Legislatures of States. Therefore, while Parliament enjoys plenary powers to enact laws as to legislative subjects vide List-I (Union List), the State Legislatures enjoy a similar competence vis-à-vis legislative subjects of List-II (State List). Insofar as List-III (Concurrent List) is concerned, while both the Parliament and the State Legislatures can legislate, Article 254 manifestly vests primacy unto laws enacted by the Parliament over those by State Legislatures.

The challenge before the Supreme Court stands on the supposed encroachment that the farm reform laws make into the exclusive legislative field of the States. While it can be no one’s case that the powers of the States to make laws concerning ‘Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases’ are exclusive, the purveyors of such an averment wholly fail to take into account that the Parliament may, to the complete exclusion of the State Legislatures, make laws concerning ‘Inter-State trade and commerce’. Though an overlap between the two entries is evident, the law concerning the plenary powers of legislation has evolved over time to provide the widest legislative amplitude to the Parliament, albeit with certain safeguards.

In any federal polity, enumerating legislative competence in watertight compartments is a near impossibility. Therefore, despite the fact that the Constitutional provisions concerning the dichotomy at hand provide a more extensive amplitude to the Parliament, where two entries, one being of the Union List and the other of the State List purportedly overlap and there is scope for conflict regarding the powers emanating from such entries, the courts attempt to construe them harmoniously and read them together such as to avoid a conflict. In arriving at such harmony, one entry may be watered down to make way for the other one when it appears that the clear adjunct of the concerned entry includes the concomitant subject of the legislation.

Concerning the challenge before the Supreme Court, the farm laws are clearly within the competence of the Parliament by way of the above-specified Entry 42 (Inter-State trade and commerce).

Furthermore, upon its true construction and interpretation, the ‘pith and substance’ of the above-enunciated farm laws, taken as a whole, is well-within the competence of the Parliament and it is well settled that any incidental encroachment or invasion into the legislative field of the State Legislatures, although none exists concerning the farm reform laws, would not make such laws ultra-vires and unconstitutional.

In addition to the above, a common refrain against the said farm laws, especially the Produce Trade Act has been that in legislating upon ‘intra-state trade’ an overt encroachment has been made into the legislative field of State Legislatures as per Entry 26 (Trade and commerce within the State subject to the provisions of entry 33 of List III) and Entry 27 (Production, supply and distribution of goods subject to the provisions of entry 33 of List III). The same however is specious and ex facie untenable considering that the same has ostensibly been made subject to Entry 33 of the Concurrent List.

There is legislative precedence unto Entry 33 of the Concurrent List in the much maligned Essential Commodities Act, 1955 as was enacted by the Parliament towards ‘control of the production, supply and distribution of, and trade and commerce, in certain commodities’. Therefore it can be no one’s case that the Parliament lacks legislative competence to enact the present farm reform laws, even to the extent of ‘intra-state trade’. The same is further bolstered by way of the scheme of our Constitution, whereby even if one assumes an apparent conflict between the farm reform laws and the various state APMC legislations, the latter shall be deemed to be repugnant and void to the extent that the concerned field of legislative competence has been covered or occupied by the Parliamentary laws.

In conclusion therefore, once the legality of the said reforms is separated from the politics, it transpires that any challenge thereof is untenable and liable to be rejected. In so far as the political battle-field is concerned, an authoritative verdict from the Supreme Court will surely be a shot in the arm for the ruling dispensation.

Unlike the challenge to the Citizenship (Amendment) Act, 2019, the judiciary ought to dispose of the matter at the earliest such that unwarranted speculation is put to rest and the nation may move ahead with reforms which if implemented in their true spirit and form are bound to be truly transformative for a vast majority of the marginalised farming sector.

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Impact of coronavirus and nationwide lockdown on the proceeding of IP in India

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With the outbreak of Corona Pandemic and announcement of nationwide lockdown in the country on 23rd March 2020, the initial lockdown was from 23rd March 2020 to 14th April 2020 later seeing the conditions it was extended to 3rd May 2020 and further more extended. This all circumstances lead to the situation for the courts to find out the alternatives in this pandemic situation prevailed in the country. The Hon’ble Court took some decisions such as continuing the proceeding via video conferencing hearing of only urgent matters cancelation of summer vacation this was the transformation period for our judicial system which was running with the same old process was much transformed. As per the report presented 116 benches of Supreme Court heard 835 matters during the 1st Lockdown of 21 days. Also the State of Uttar Pradesh became the first state of India were all the court proceeding was done online not only High Courts of Allahabad and Lucknow bench but also the District and Sessions Court are Online, even the fees by the Advocates of State was preferred to be taken online. Also the Hon’ble Supreme Court of India took Suo Motu Cognizance to matter and the challenges being faced out by the legal practitioners. In order to up-come from these difficulties the Supreme Court used its plenary power under Article 142 of the Constitution and it extended the limitation period till any further notice issued.

The Intellectual Property Office and Hon’ble High Court of Delhi have issued several guidelines which would be affecting the IP proceeding in the country.

The Delhi High Court issued an order were it fully understood the difficulties of the litigants and issued the order of online hearing also for convenience the Court ordered to increase the number of benches which would be hearing the matter.

The summer break of the court was also cancelled and the person who is designated Registrar (Council by record) the urgent matters would be heard before him.

HEARINGS BEFORE THE IP OFFICES 

A circular being issued by the Controller General of Patents, Designs & Trade Marks which speaks as that no registered office in the country would be opened (Physically) for the common public to visit and file the case or complain. The “Work from Home” shall be promoted and all the matters will be filled online i.e., E- Filling through http://www.ipindia.nic.in/ also because the Supreme Court waived away the limitation period amid this pandemic so there would be no penalty on the late filling of the case or renewal of Trademark or others. The period of limitation shall remain suspended from 23rd March to 4th April till any further notice being issued by the court.

The limitation period to file any important pleadings, appeals, or application, will be suspended from March 23rd to April 4th. The High Court of Delhi and all other courts subordinate to it have been ordered to be “closed” from the point of view of Section 4 of the Limitation Act 1963.

So, if any expiry period happens between 23rd April to March 4th would not be liable for any kind of penalty the party would not be in any kind of default as because of the pandemic and the order issued by the Supreme Court to remain suspended till any further notice issued. Those parties may proceed with their work after this short time break. But the filling of urgent matters was continued.

HEARING OF URGENT MATTERS

The High Court of Delhi announced some reforms and changes promulgated to urgent hearing of any matter in the High Court:-

First way was the satisfying the court that the matter related is urgent and need to be heard urgently, they have to satisfy the court via telephonic call between 10’o clock to 12:30 PM and make the court satisfy that the matter related in urgent.

When the court is satisfied and agrees that the matter is urgent and need to be heard the matter would be listed next day after 11:30 via video conferencing. Also all the interim order which has been passed by the High Court before the pandemic shall continue till 15th May 2020 except those orders which has been issued by the Supreme Court of India.

If any party has been aggrieve because of the extension of the interim order till May 15th than the abused party may move toward the court and record the vital application to restrict or change the activity of such interim orders. On the off chance that a party wishes to move toward the court during the time of suspension then it might do as such as per the means mentioned previously.

MEASURES TAKEN IN PATENT OFFICE

All matters related to the office of patent shall be conducted via video conferencing between the days of 23rd March till 14th April all filings, including installment of charges, recording of reports and reactions, which are expected in the period between March 25 and April 14 will stay suspended during this period. The ideal opportunity for such filings will get powerful from the date on which the Patent Office resumes activities.

In a notification distributed in March, the Patent Office encouraged candidates and gatherings to utilize the arrangements of Rule (6) of the Patents Rules 2003 to demand an expansion of time or support delay in recording reports and different reactions. Nonetheless, one must remember that the Supreme Court’s headings to broaden restriction periods for all courts, councils will be material to these procedures also.

MEASURES TAKEN IN THE COPYRIGHT OFFICE

All the material and cases related to the copyright office was first suspended from 17th March till 30th March which was further extended to 15th April 2020. All filings, for example, installment of expense, recording of reports, reactions and so forth which are expected in the period between March 25, 2020 and April 14, 2020 will stay suspended in this period. The ideal opportunity for such filings will get viable from the date on which the concerned Office resumes activities.

The Supreme Court’s bearings to expand impediment periods for all courts and councils will be pertinent to these procedures too.

HEARING RELATED TO DESIGNS

All hearings before Dr S K Barik who is the Assistant Controller of Patents & Designs, which were scheduled for March 27 have been rescheduled after April 22 and all hearings before Mr Arup Guru who is the Assistant Controller of Patents & Designs, which were scheduled between March 18 and April 3 have been rescheduled for dates between April 16th and April 28th 2020.

All filings, including installment of charges, recording of reports and reactions, which are expected in the period between March 25 and April 14 will stay suspended during this period. The ideal opportunity for such filings will get viable from the date on which the concerned Office resumes activities. The continued activity will be as per the Supreme Court request on the augmentation of the restriction time frame.

MEASURES TAKEN IN THE TRADEMARK OFFICE

All the matter related to the trademark office was suspended from 17th March 2020 to 14th April 2020 and rescheduling date of reopening was to be announced by the trademark office. After 15th April all the hearing of trademark was carried on through normal procedure and activities.

All filings, including installment of expenses, recording of reports and reactions, which are expected in the period between March 25 and April 14 will stay suspended during this period.

The ideal opportunity for such filings will get successful from the date on which the Trade Mark Office resumes activities.

In a notification distributed in March, the Trade Marks Office encouraged candidates and gatherings to know about the arrangements of Article 131 of the Trade Marks Act 1999 and Rules 109 and 110 of the Trade Marks Rules 2017 which concern applications for an expansion of time. Such applications can likewise be documented after the pandemic circumstance standardizes and they will be chosen by the Registrar as per law.

These procedures are additionally limited by the Supreme Court’s organisation on expansion of impediment period.

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