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Legally Speaking

MEDICAL NEGLIGENCE IN THE TIME OF COVID-19

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It has been almost fourteen months since the COVID-19 was declared as a pandemic by the World Health Organization.  The second wave of the novel coronavirus has significantly stressed the public healthcare system in India as the new cases are skyrocketing every day. This pandemic on one side has forced our Corona-Warriors, Doctors, into a challenging situation where they are overburdened with the caseload. On the other hand, the instances of medical negligence and patients being denied medical assistance are rampant. Due to the unprecedented rise in death toll due to COVID-19, the medical negligence litigation is expected to rise in the future. Let us first understand the concept of medical negligence in the light of decided case laws and the medico-legal issues that may arise in COVID-era.

WHAT AMOUNTS TO MEDICAL NEGLIGENCE?

The primary ingredients constituting negligence in normal sense are duty of care, breach of duty and resultant injury. Medical Negligence means any act or omission by a medical professional that deviates from the accepted medical standard of care. In case of medical negligence, a very high degree of culpability is required to hold a medical professional liable. The victim has the option of bringing a civil action or criminal action or both against the medical professional, as the circumstances of the case may require. Under civil law, negligence is punishable under law of torts or under Consumer Protection Act, 1986. Under the criminal law, if death is caused by “gross negligence” of the doctor, charges under Section 304A of the Indian Penal Code, 1860 can be framed. The Delhi High Court laid down three degrees of negligence: lata culpa (gross neglect); levis culpa (ordinary neglect) and levissima culpa (slight neglect). Slight neglect being too trivial is not punishable and ordinary neglect, as the name suggests, is not something unusual, hence it also ought not to be punished. It is gross negligence which is punishable, however, the degree of negligence and remedy shall depend upon the facts and circumstances of each case.

The burden of proof generally lies on the complainant to prove that the doctor acted grossly negligently. In certain situations, the Courts have invoked that the principle of Res ispa loquitur (things speaks for itself) in cases where the patient suffers a complication which is not contemplated normally. It is no more res integra that medical negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because a doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. Indian Courts have adopted the United Kingdom’s Bolam Test of Medical Negligence and has been using it to adjudicate cases of medical negligence. The Bolam’s Test as laid down in Bolam v. Friern Hospital Management Committee, gives more emphasis on what medical practice ‘is’ rather than what the practice ‘should be’. As per the Bolam’s Rule, the following criteria’s that have to be fulfilled to fix the culpability of the medical professional-

1. It must be proved that the there is a usual and normal practice;

2. It must be proved that the defender has not adopted that practice;

3. It must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care

Hence, to prosecute a medical professional for negligence as per this test, it must be shown that the medical professional did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. In nutshell, to ascertain the culpability it needs to be proved that the doctor made a mistake which no careful and skillful medical practitioner would have made in the given facts and circumstances. The Supreme Court of India while protecting the rights of medical professionals, in a recent order categorically held, “Wrong Diagnosis is not a ground for Medical negligence and the medical professionals should not be dragged into criminal proceedings unless negligence of a high order is shown.”

GUIDELINES GOVERNING THE PROSECUTION OF DOCTORS UNDER 304B IPC

Considering that the medical profession renders noble service to the society, the Apex Court Jacob Mathew v. State of Punjab (2005), laid down the following guidelines governing the prosecution of doctors for the offence of criminal negligence to protect them from unjust and frivolous prosecutions

1. A private complaint may not be entertained unless the complainant produces prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge negligence.

2. The investigating officer should, before proceeding against the doctor accused of negligence, obtain an independent and competent medical opinion, preferably from a doctor in government service qualified in that branch of medical practice.

3. A doctor accused of negligence should not be arrested in a routine manner unless, his arrest is necessary for furthering the investigation or unless there is a flight risk.

It was further held that to prosecute the medical professionals for criminal medical negligence, something more than mere negligence had to be proved. The Court added that, “Medical professionals deal with patients and they are expected to take the best decisions in the circumstances of the case. Sometimes, the decision may not be correct, and that would not mean that the medical professional is guilty of criminal negligence.” 

In the case of Indian Medical Association v. Shantha, Supreme Court held that the patients aggrieved by the deficiency in treatment, from both private clinics and Govt. hospitals, are entitled to seek damages under the Consumer Protection Act, 1986. Furthermore, in Mohan Dai Oswal Cancer Treatment & Research Foundation case (2019), NCDRC held the Doctor vicariously liable for the acts of his team which assisted the doctor in every sphere in rendering treatment to the patient. The onus is on the hospital and doctor to explain the exact line of treatment rendered which resulted in the incident. 

MEDICO-LEGAL ISSUES IN COVID ERA

Steps taken by the Government by deploying final-year medical and nursing students to offer services in COVID patient management are undoubtedly commendable and in good-faith but it follows certain legal implications. For instance, if a patient dies due to a trainee doctor’s inexperience or lack of knowledge of a particular symptom or medication, what will be the culpability of the trainee doctor? As per the settled legal principles, it is presumed that a professional entering into a particular profession professes a reasonable level of skill which shall be exercised with reasonable degree of care and caution. The law doesn’t expect an extra-ordinary knowledge or skill, but rather a reasonable degree of skill and knowledge. Another legal issue that may arise in future is, in an extraordinary situation like this, where rapidly rising cases have resulted in the number of intensive care patients exceeding the healthcare capacity, will the same medical “standard of care” apply in ascertaining the medical negligence? The major issue with this health crisis is confusion about its pathogenesis and unidentified treatment. The Indian Council of Medical Research in consultation with the Ministry of Health & Family Welfare has issued various guidelines on Clinical Management of COVID-19 depending upon the severity of patients. While determining the “standard of care”, the Courts may take into consideration such guidelines, clinical protocols and best practices in COVID-19 management issued by the appropriate authority, and decide on case-to-case basis, if a case of medical negligence is made out. The authors strongly recommend that comprehensive guidelines for adjudicating medical negligence cases should be formulated by the Judicial Officers and Medical Council of India. There should a set minimum standard of care that should be devised to balance the interests of the patients, doctors and nation, as a whole. The legislature may also consider extending limited protection to Doctors under Section 73 of Disaster Management Act and Section 4 of Epidemic Diseases Act. The actions of Doctors and Hospitals taken in good-faith during this health emergency may be given certain immunities by carving out cases of gross-negligence and malpractices’ as exceptions.

“While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity”, as held in Martin F D’Souza case (2009). Extraordinary situations require extraordinary measures and there are always chances of collateral and unintended errors. There is no denying that a medical practitioner faced with an emergency situation like COVID-19 tries his best to treat the patient and save his life. It must be remembered that he does not gain anything by acting negligently; therefore, it will be for the complainant to clearly make out a case of gross negligence before a medical practitioner is charged with medical negligence. Under the fear of legal action, a medical professional cannot be expected to perform his best and charging doctors for medical negligence in the absence of well-formulated guidelines in these times would be a disservice to society.

Authors are Advocates practising in Delhi High Court

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Legally Speaking

Worse than expulsion, punishment on constituency: SC

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To start with, we saw how just recently the 12 BJP MLAs from Maharashtra had gone to the Supreme Court in protest against their year-long suspension from the State Assembly which definitely appears too harsh a punishment. Without any reservation, the Apex Court expressed an inclination to interfere with the resolution passed on July 5, 2021 by the Maharashtra State Legislative Assembly. We also saw how when the petition in this case titled Ashish Shelar And Ors. Vs The Maharashtra Legislative Assembly And Anr. in W.P.(C) No. 797/2021 and connected cases was called for hearing on January 11, 2021, the Apex Court Bench comprising of Justice AM Khanwilkar, Justice Dinsh Maheshwari and Justice CT Ravikumar after hearing the case in part minced no words to observe that the suspension of 12 BJP MLAs from the Maharashtra Assembly for a full year is “prima facie unconstitutional” and “worse than expulsion” as the constituency is remaining unrepresented.

It cannot be glossed over that the Apex Court has flagged the statutory requirement to not keep a seat vacant for more than 6 months! What Apex Court has said is absolutely valid. The Apex Court also minced no words to say most effectively, elegantly and eloquently that a “constitutional void” and a “hiatus situation” has been created in these constituencies and the “consequences are dreadful”.

To put things in perspective, the Bench also pointed out that, “If there is expulsion, there is a mechanism to fill up the vacancy. The suspension for one year will amount to a punishment on the constituency.” Justice AM Khanwilkar observed in simple, suave and straight language that, “This decision is worse than expulsion. No one can represent these constituencies in the House when they are not there…This is not punishing the member but punishing the constituency as a whole.”

To recapitulate, on July 5, 2021, we witnessed for ourselves how soon after the Assembly met for its two-day monsoon session, there was a lot of commotion and furore as Leader of Opposition and former Chief Minister of Maharashtra – Devendra Fadnavis of BJP objected seriously to an attempt by State Minister Chhagan Bhujbal of NCP to table a resolution demanding that the Centre release data on Other Backward Classes (OBCs) so that seats could be reserved exclusively for them in local bodies in Maharashtra. While protesting we also saw how several BJP MLAs had entered the well in protest, snatched the mace and uprooted mics which led to frayed tempers. We also witnessed how the Shiv Sena MLA Bhaskar Jadhav who was in the Chair presiding the House then adjourned the House for 10 minutes following which some BJP MLAs allegedly entered his chamber and threatened, abused and misbehaved with him which is definitely most outrageous and cannot be ever justified.

In hindsight, it must be mentioned here that the Maharashtra House was devoid of any Speaker in the House stemming from Nana Patole of the Congress party resigning and Shiv Sena MLA Bhaskar Jadhav was one of the four presiding officers that were named by Acting Speaker Narhari Zirwal the previous day. It also deserves mentioning here that Maharashtra Parliamentary Affairs Minister Anil Parab subsequently moved a resolution to suspend 12 BJP MLAs – Bunty Bhangdia, Abhimanyu Pawar, Girish Mahajan, Atul Bhatkhalkar, Parag Alavani, Harish Pimpale, Yogesh Sagar, Jaikumar Rawal, Narayan Kuche, Ram Satpute and Bunty Bhangdia – for a year. Naturally, the suspended 12 BJP MLAs then filed a writ petition in the Apex Court in 2021 against the Maharashtra State Assembly and the State of Maharashtra and asked for the suspension to be quashed as they felt that the punishment was too much. The matter has been posted for further hearing on January 18.

To be sure, we need to pay attention here that the Bench made it absolutely clear that as per the relevant rules, the Assembly has no power to suspend a member beyond 60 days. In this regard, the Bench then sought it fit to refer to Article 190(4) of the Constitution which stipulates that a seat will be deemed to have become vacant if a member remains absent in the House without its permission for a period of 60 days. The Bench pointed out clearly that as per Constitutional provisions, a constituency cannot go unrepresented for a period beyond 6 months. It cannot be lost on us that while saying so, the Bench flatly refused to buy the argument of senior and eminent advocate of Apex Court C Aryama Sundaram who appeared for the State of Maharashtra that the court cannot examine the quantum of punishment imposed by a Legislative Assembly.

As it turned out, what followed next was that after the Bench expressed its views, Sundaram then politely sought time to take instructions from the State. The hearing was then accordingly adjourned to January 18. The Bench made it clear that it will not go into other aspects except the quantum of punishment. Justice Khanwilkar told Sundaram that, “…we can say that the decision to suspension can only operate till 6 months and later than that it will be hit by a constitutional bar.”

As we see, the petition of suspended 12 BJP MLAs submitted that their suspension is “grossly arbitrary and disproportionate”. The challenge that they bank upon is denial of the principles of natural justice and violation of laid down procedure as per the law. It is the strong grievance of these MLAs that they were not even given an opportunity to present their case and that their suspension violated their fundamental right to equality before law as enshrined under Article 14 of the Constitution. They have also submitted that contrary to rules, they were not given access to video of the proceedings of the House and it was not clear how they had been identified in the large crowd that had gathered in the chamber. They do have a point!

Furthermore, the MLAs have reckoned that under Rule 53 of the Maharashtra Legislative Assembly Rules, the power to suspend can only be exercised by the Speaker and it cannot be put to vote in a resolution as was done glaringly in this case. For esteemed readers exclusive benefit, it must be mentioned here that Rule 53 states that, “The Speaker may direct any member who refuses to obey his decision, or whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly.” The member must “absent himself during the remainder of the day’s meeting.” Should any member be ordered to withdraw for a second time in the same session, the Speaker may direct the member to absent himself “for any period not longer than the remainder of the Session”.

Of course, it cannot be denied that the Bench rightly said that, “The basic structure of the Constitution would be hit if the constituencies of the suspended MLAs remained unrepresented in the Assembly for a full year.” The Bench very rightly referred to Article 190(4) of the Constitution which stipulates that, “If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant.”

Be it noted, under Section 151 (A) of the Representation of the People Act, 1951, “a bye election for filling any vacancy..[in the House] shall be held within a period of six months from the date of the occurrence of the vacancy.” This clearly implies that barring exceptions specified under this Section, no constituency can remain without a representative for more than six months. This is why the Apex Court flagged most commendably the statutory obligation to not keep a seat vacant for more than 6 months which no one can ever deny!

It would also be worth noting that Rules 373, 374 and 374A of the Rules of Procedure and Conduct of Business in Lok Sabha stipulate for the withdrawal of a member whose conduct is “grossly disorderly” and suspension of one who abuses the rules of the House or willfully obstructs its business. It is quite noteworthy that the maximum suspension as per these Rules is as stated “for five consecutive sittings or the remainder of the session, whichever is less.” It has to be conceded that the maximum suspension as per these Rules is “for five consecutive sittings or the remainder of the session, whichever is less.”

What’s more, the maximum suspension for Raja Sabha under Rules 255 and 256 also does not exceed the remainder of the session. Several recent suspension as we witnessed of members did not exceed the remainder of the season. This is exactly what the Apex Court took into account also.

In addition, we saw how Mahesh Jethmalani who is an eminent and senior lawyer of the Supreme Court pointed out cogently that recently when the Rajya Sabha suspended 12 MLAs for disorderly behaviour, it operated only for the duration of the session. He argued that the rights of the constituency are also to be protected. Mukul Rohatgi who is the former Attorney General of India and also an eminent and senior Supreme Court lawyer too argued that the principles of natural justice were violated by the House. The petitioner’s lawyers argued that the Court has jurisdiction to examine the correctness of the punishment of the House. Senior advocate Siddharth Bhatnagar raised the argument that the suspension cannot exceed 6 months. He submitted that, “If seats are allowed to be vacant then it has a major effect on the democracy. This is worse than expulsion.” He also added that this can allow the government to manipulate the strength in the House to secure majority votes in crucial issues.

In conclusion, we definitely have to keep our fingers crossed as to what the Apex Court will finally rule when it comes up for hearing on January 18. But it goes without saying that the case of the petitioner is strong. This quite evident from what we see the initial observations of the Judges who are hearing this high profile case. One is sure that the Apex Court will decide the case as per the law and we will soon read what is ruled also in this leading case!

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Patentability and copyrightability of blockchain assets in India

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INTRODUCTION

Blockchain, Cryptocurrencies, and NFTs will get surrounded in our life in the potential future. The scope of blockchain is increasing day by day. The use of blockchain started with the Finance–Tech industry, i.e., cryptocurrencies. Its use has expanded to include the healthcare industry, real estate, governance, e-commerce and more. With its commercial use, several legal issues have started to come up. These issues include the patentability and copyrightability of blockchain.

Here, two questions arise- what is blockchain and what does patentability and copyrightability entail. Blockchain is a type of distributed ledger technology. At any moment, blockchain keeps a secure and transparent account of all transactions from the beginning to the end in the form of blocks. This article aims to highlight the patentability and copyrightability of blockchain in India and discuss the potential solutions.

BLOCKCHAIN PATENT IN INDIA

Seeing the potential of blockchain technology, various companies have started to file their patent applications. Thereby raising issues of intellectual property rights in each jurisdiction. A patent is a kind of Intellectual Property Right. In India, patent applications must pass three essential criteria- novelty, non-obviousness and industrial application.

Blockchain patents aim to protect a combination of application software and encryption. Therefore, they are linked to software patents. Section 3(k) of the Patent Act 1970 states that “mathematical or business method or a computer programme per se or algorithms are excluded from patentability.” In recent developments, computer programmes have been granted an exclusion from this provision and can be considered a patent if they have a technical effect.

Therefore, two main issues relating to blockchain patents are-

1. Will invention be considered patentable subject matter under Section 3(k) of the Indian Patent Act?

2. How to decide whether blockchain technology developed is novel and non-obvious?

• Issue 1- u/s 3(k) of Indian Patent Act

In “Ericsson v. Intex Technologies, the Delhi High court interpreted the term per se. It stated, “any invention which has a technical contribution or has a technical effect and is not merely a computer program per se” is patentable. This was also upheld in Ferid Allani vs UoI, wherein it was held that “If the invention demonstrates a ‘technical effect’ or a ‘technical contribution’, it is patentable even if it is a computer program. The Court relied on the Computer Related Inventions Guidelines 2013 to define technical effect”. Therefore, for blockchain technology to be considered for a patent application, it must demonstrate a specialised product or technical contribution.

• Issue 2- Novelty and Non-obvious

There are three main essentials for a patent application- novelty, non-obviousness and industrial application. In the introduction, blockchain has vast applications in different industries. The main issues lie with originality and non-obviousness. It is noted that blockchain technology has limited novel features because innovators are merely using existing technology for making transactions. Concerning non-obvious nature, it’s essential to figure out whether a person who is usually skilled in the art can apply the same technique to blockchain technology.

On top of that, few people understand how this technology works. To overcome this, government employees technologically advanced specialists must determine whether the application is novel and has an inventive step. It is essential as granting a patent to a technology that is not novel and is vital would give a monopoly to a company and further reduce the growth of technology.

THE INTERSECTION OF COPYRIGHT AND BLOCKCHAIN

You might be hearing the word NFT accompanied by the news, such as The girl in this viral meme selling her iconic image as an NFT for $1,000,000. So, you might be thinking, what is an NFT and what does the selling of NFT means?

NFT stands for a non-fungible token, a digital token representing art, films, video and other media and is recorded on a blockchain and kept as a link. They are purchased and traded over the internet using cryptocurrency, primarily Ethereum. Artists monetise their digital art, audio, and other digital assets by selling them to anybody in the world using NFTs. NFT has also raised important questions in Intellectual Property Rights- Does selling of NFT confers IP Rights to the buyer? What are the implications of selling NFT by infringing the IP rights of the creator? What are the remedies in case of infringement?

NFT is a form of expression. Therefore it embodies the copyright of the creator in it. “Many people think that owning NFT is the same as owning the copyright to work. However, it is not the case. Copyright always remains with the creator, and only ownership is transferred to the buyer. It is the same as owning a physical copy of an artist’s painting. Here, the artist who painted the picture would be the holder of copyrights in it, and he will be entitled to make duplicates and create other derivatives of it”.

Given how frequently things are copied and distributed online, NFT can be copied and circulated indefinitely. As a result, there’s a reasonable risk that NFT’s copyright will be violated. The Copyright Act of 1957 protects and registers the author’s creative works in India. Copyright can be obtained for original literary, musical, dramatic, and artistic works that last sixty years after the author’s death. “Section 51 of the Act specifies the circumstances under which a copyrighted work is considered infringing. Interlocutory injunctions and damages are available as remedies for infringement. Infringers will face up to three years in jail and a fine of two lakhs if they violate the copyright”.

These remedies are ineffective when persons make money by selling NFTs under false identities. There are currently no stringent laws to prevent copyright infringement in the case of NFTs. It is essential to enact legislation that will aid in assessing the legitimacy of the underlying asset.

CONCLUSION

Blockchain has gained prominence worldwide with its varied industrial and innovative applications. Legal solutions related to IPR, such as patent and copyright, play a vital role in determining its future. Blockchain and NFT trading present several IP issues, and it is required to develop worldwide norms based on pre-existing IP laws and treaties to prevent a breach. This will eventually defend the creator’s moral and commercial rights.

In addition, blockchain technology would help in the protection of intellectual property. The content owner will register how they want their material to be utilised and disseminated on the database. The decentralised ledger will ensure that the content is delivered in a regulated way. There will be no confusion about where the content came from, who contributed it, who used it, and how it was used, as well as the constraints that came with it, putting a stop to conflicts. Content artists, like authors, might use blockchain’s decentralised, peer-to-peer structure to directly distribute their work to customers, circumventing existing distribution methods and retaining a more significant part of earnings. This might influence everyone from huge media companies to small blogs, allowing artists to connect directly with their audiences.

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Legally Speaking

WHOLE POLICE STATION SHOULD BE MONITORED THROUGH CCTVS INCLUDING INTERROGATION ROOM: P&H HC

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In one of the best judgment that I have ever read, it is most heartening to learn that the Punjab and Haryana High Court in a very commendable, cogent, courageous, composed and creditworthy judgment titled Kaushal v State of Haryana and others in CRM-M-43672 of 2021 delivered on January 7, 2022 has directed that CCTVs should be installed in every part of police stations including the interrogation room as per the directions issued by the Apex Court. According to the single Judge Bench comprising of Justice Amol Rattan Singh of Punjab and Haryana High Court, the directives issued by the top court clearly state that no portion of police stations should be left uncovered by CCTVs. The court further stated that our country cannot make the excuse that our interrogations techniques are different than that of western countries and authorities cannot use methods like the third degree as a means of interrogation.

To start with, in this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Justice Amol Rattan Singh of Punjab and Haryana High Court, the ball is set rolling by first and foremost pointing out that, “Case heard by way of video conferencing. By this petition, the petitioner seeks a direction to respondents no.1 to 3, with a prayer that whenever the petitioner is sought to be taken for interrogation in any case, a videography be done of his leaving the jail premises till his reaching the concerned police station and during interrogation, a videography be also done.”

While continuing in the same vein, the Bench then states that, “It is further prayed that during interrogation his medical examination be also got conducted through a board of doctors or through a civil hospital, so that if any torture ‘is done to him’, then it can be revealed through the said medical examination; with a further prayer made that when he is to be taken outside jail on remand, then either his family members or his lawyer be informed of the location, with his lawyer to be permitted to be present there, where he is being taken and appropriate security be also provided so that he may not be killed in a fake encounter. It is further prayed that respondents no.1 to 3 be directed to comply with the provisions of Section 31 of the Prisons Act, 1894.”

To be sure, the Bench then discloses in the next para that, “A detailed order had been passed by this court on 03.12.2021, directing the DGPs of Punjab and Haryana to file affidavits in response to the observations made in that order, in reply to which both, the DGP, Punjab and the DGP, Haryana, have filed affidavits, both dated 06.01.2022, which are ordered to be taken on record. The affidavit earlier filed by the SSP, Chandigarh, dated 26.10.2021, which is now on the case file, is also ordered to be taken on record.”

While narrating what happens with many of the prisoners, the Bench then points out that, “Before proceeding further, what has been contended by the petitioner in paragraph 22 of the petition is again being reproduced in this order, which is as follows:- 22. That the incidents that are happening with the petitioner inside the jail and during remand are as follows:-

i) The investigating agency spits on the floor and asks the petitioner to lick it and if the petitioner refuses to do so, then he is forcible made to lick the spit of the police officers.

ii) The investigating officers urinates on the face and on the body of the petitioner after removing his clothes.

iii) The petitioner is made to be naked throughout the remand and given merciless beatings.

iv) Sharp objects are inserted in the private parts of the petitioner.

v) The petitioner is given electric shocks behind is ears and on his private parts so that he is tortured badly and even signs of said torture are not openly visible to the ld. Magistrate as well as medical officer.

vi) His legs are put in wooden logs and then pulled aside thereby causing damage to his muscle and rollers are rolled over his thighs so that the petitioner feels the worst kind of pain and still there is no visible mark of injury.

vii) The petitioner legs are tied with a rope and he is hanged with his head down and this is repeated every day while in police remand.””

As anticipated, the Bench then states that, “As regards the allegations of absolute inhuman treatment, as made in the aforesaid paragraph, as expected, the allegations have been completely denied by both the DGPs, with is also stated that no such allegation was ever made earlier by the petitioner and that therefore the petitioner has only made the allegations with mala fide intentions.”

Most significantly, what forms the cornerstone of this notable judgment is then elucidated stating that, “As regards video recording of investigation of the interrogation process, the DGP, Haryana, has stated that there is no such provision in the Cr.P.C. for conducting investigation under surveillance of CCTV cameras. The DGP, Punjab, is conspicuously silent in his affidavit on that aspect. Though, as regards installation of video cameras in all police stations, as pointed out by the learned State counsel, in the affidavit of the DIG (Law & Order), Haryana, dated 02.12.2021, it has already been stated that CCTV cameras are installed in all entry and exit gates of prisons and all police stations (which has already been noticed in the order previously passed by this court), it is to be noticed that such cameras were also installed by both the States on directions issued by the Supreme Court and this court, with Mr. Ghai again pointing today to the directions issued by the Supreme Court in the case of Paramvir Singh Saini v. Baljit Singh and others (2021) 1 SCC 184, which read as follows:-

“16. The State and Union Territory Governments should ensure that CCTV cameras are installed in each and every Police Station functioning in the respective State and/or Union Territory. Further, in order to ensure that no part of a Police Station is left uncovered, it is imperative to ensure that CCTV cameras are installed at all entry and exit points; main gate of the police station; all lock-ups; all corridors; lobby/the reception area; all verandas/outhouses, Inspector’s room; Sub-Inspector’s room; areas outside the lock-up room; station hall; in front of the police station compound; outside (not inside) washrooms/toilets; Duty Officer’s room; back part of the police station etc.

17. CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power. The internet systems that are provided must also be systems which provide clear image resolutions and audio. Most important of all is the storage of CCTV camera footage which can be done in digital video recorders and/or network video recorders. CCTV cameras must then be installed with such recording systems so that the data that is stored thereon shall be preserved for a period of 18 months. If the recording equipment, available in the market today, does not have the capacity to keep the recording for 18 months but for a lesser period of time, it shall be mandatory for all States, Union Territories and the Central Government to purchase one which allows storage for the maximum period possible, and, in any case, not below 1 year. It is also made clear that this will be reviewed by all the States so as to purchase equipment which is able to store the data for 18 months as soon as it is commercially available in the market. The affidavit of compliance to be filed by all States and Union Territories and Central Government shall clearly indicate that the best equipment available as of date has been purchased.

18. Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it.”

To put it differently, the Bench then observes that, “Hence, with the directions issued by the Supreme Court also being to the extent that cameras be installed at not just entry and exit points and main gates of police stations, but also in all lock-ups, corridors, lobby and reception areas, verandas, out houses, rooms of officials, outside the lock-up rooms, station hall and in front of the police station compound, as also outside washrooms and toilets, the obvious implication is that no part of the police stations would be left uncovered by CCTV surveillance. Naturally therefore, any interrogation room would also be covered by such directions.”

Furthermore, the Bench then holds that, “Consequently, the DGP, Haryana, the DGP, Punjab, as also the DGP, U.T., Chandigarh, are now directed to file affidavits as to whether the aforesaid directions of the Supreme Court have been complied with or not, and if of course the matter is still being monitored by the Supreme Court, any order passed after 02.12.2020 would be brought out in the affidavits to be filed by the DGPs of both the States and the U.T., Chandigarh.”

Be it noted, the Bench then points out that, “It is to be again specifically noticed that the contention of the DGP, Haryana, to the effect that there is no such provision in the Cr.P.C. would seemingly get completely negated by the aforesaid directions given by the Supreme Court of India, with it to be highlighted by this court (which obviously would be in the knowledge of every authority), that as per Article 142 of the Constitution of India, the Supreme Court, in the exercise of its jurisdiction, may pass such decree or order as is necessary for doing complete justice in any cause or matter pending before it, and any order or decree so passed would be enforceable throughout the territory of India. Further, the law declared by the Supreme Court would be binding on all courts as per Article 141.”

As a corollary, the Bench then naturally observes that, “Consequently and obviously, non-compliance of the directions issued by the Supreme Court in Paramvir Singh Sainis’ case, would amount to contempt of Court and this court would, naturally, also be bound to ensure that the directions issued by the Supreme Court are actually carried out at ground level by the States and Union Territory falling within the jurisdiction of this court. Hence, the aforesaid direction to the DGPs.”

At the risk of repetition, the Bench then envisages that, “Of course, to repeat, if the Supreme Court has passed any further order after 02.12.2020, as would grant further time to the States to comply with the directions given on that date, or the order issued has been modified in any manner, such orders would be brought out very specifically in the replies to be filed by the DGPs.”

It is worth noting that the Bench then mines no words to hold that, “Further, it is directed that not just in the case of the present petitioner, but in the case of every person who is in police custody or is being taken into police custody, all provisions of the Cr.P.C., including Section 41-B, 41-C, 41-D and 54, 55 and 55-A would be meticulously followed, with compliance reports in that regard to be made a part of the report under Section 173 of the Cr.P.C., as regards even medical examination necessarily to be conducted in terms of Section 55-A thereof.”

Quite ostensibly, the Bench then hastens to candidly add that, “Naturally, any non-compliance of the said statutory provision would amount to violation of the direction hereby given and any accused would have his/her remedy available to him/her in respect of violation of any such provisions and the directions given.”

Most remarkably, the Bench then is quite forthright in holding that, “It is to be again reiterated in this order, as was said in the last order, that no court is oblivious to the fact that the police faces a very uphill task in dealing with criminals, especially hardened criminals and the work done by the police force and any investigating agency is to be highly appreciated, in trying to apprehending criminals and actually apprehending them and bringing them to justice; yet, as per the constitutional scheme and the statutory provisions framed thereunder in India, not even the worst criminal can be denied a fair procedure in terms of the statutory provisions laid down in the Code of Criminal Procedure, 1973, and any such law in force. Hence, violation of such procedure, especially leading to violation of human rights even in the case of the worst criminal, cannot be ignored by any court.”

Most forthrightly, the Bench then also underscores that, “Further it is not an excuse for us, in India, to take a plea that many other countries are far more advanced than us and therefore there can be no comparison with the methods adopted there, in interrogating accused persons here. We are the 5th or 6th largest economy in the world and therefore any such plea taken would only seem to be taken as an excuse to not actually adopt contemporary methods of investigation, including interrogation, rather than taking shortcuts by using third degrees methods etc.”

Finally, the Bench then concludes by holding that, “Adjourned to 09.02.2022. To be shown in the urgent motion list.”

To sum it up, it merits no reiteration that what the Punjab and Haryana High Court has directed must be strictly implemented in letter and spirit. Of course, it must be rigorously ensured that the whole police station is monitored most effectively through CCTVs including interrogation room as directed most commendably by the High Court! No doubt, it must also be regularly ensured that no third degree method is resorted to by police under any circumstances and those who are found complicit in indulging in torture must be punished adequately and strictly so that the right message percolates among the men in uniform that they cannot take the right to life and personal liberty as guaranteed to every person as a fundamental right in India under Article 21 of the Constitution is actually rigorously implemented on the ground also where it matters the most! Let’s fervently hope so because this is exactly what forms the touchstone of this most commendable judgment!

Sanjeev Sirohi, Advocate.

CCTV systems that have to be installed must be equipped with night vision and must necessarily consist of audio as well as video footage. In areas in which there is either no electricity and/or internet, it shall be the duty of the States/Union Territories to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power.

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A comparative study on capital punishment in India

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India is a well emerging nation simultaneously bunches of crime percentages were expanding these days. There are heaps of regulation in India to pause and control wrongdoings, despite the fact that the wrongdoing rates are expanding in light of the fact that the disciplines are not adequate for the crimes. The discipline ought to be extreme to lessen the crime percentage. All disciplines depend on a similar rationale to give punishment for the transgressor. There are various types of discipline in India like capital discipline, life detainment, detainment etc., Capital discipline is known as the most serious type of discipline.. This paper says about the situation with the death penalty generally the world and furthermore characterizes the idea of capital offense. It additionally clarifies about the methods of capital discipline in India . This article clarifies two significant speculations connected with the death penalty, to be specific reformative hypothesis and preventive hypothesis. In this exploration the specialist additionally clarified about most extraordinary of uncommon cases. This article referenced with regards to abolitionist and retentionist nations, likewise the death penalty in old India. This article has a point by point view about the capital discipline in India and furthermore the techniques for execution in India.

INTRODUCTION

India is a country which comprise of enormous number of violations and crooks. In India all disciplines depend on the thought process to give punishment for the miscreant. There are two fundamental purposes behind monumental the discipline, one is the transgressor ought to endure and other one is forcing discipline on miscreants deters other from doing wrong. There are various types of discipline in India in light of their offense like the death penalty, detainment, life imprisonment, imprisonment with fine, ,etc. In this exploration the analyst zeroed in on the death penalty or capital punishment. The death penalty is one of the significant piece of Indian criminal equity framework. Violations bring about capital punishment are known as capital wrongdoings or capital offences. The term the death penalty is gotten from the Latin word “capitalis” signifies “with respect to head”. The term capital punishment is otherwise called capital punishment .Capital Discipline is an interaction by an individual is executed by a state for their criminal offense. Capital discipline or capital punishment implies the guilty party condemned to death by the official courtroom for a criminal offense. The death penalty which has been granted for the most terrible wrongdoings against humankind .Death punishment varies from spot to place, state to state and nation to country. There are numerous common liberties developments in India which says the death penalty is unethical. The common liberties associations are contended that death penalty influence one individual’s right. In jurisprudence, criminology and punishment, the death penalty implies a sentence of death.

Indian criminal statute depends on the blend of two hypotheses. The constitution too gave powers to president and lead representative to suspend or exonerate capital punishment. In India capital discipline is granted for the most genuine and appalling offenses. The death penalty is given for murder, robbery with murder, waging battle against the public authority and abetting mutiny,etc.,. Capital punishment is given just when the court reaches a conclusion that life detainment is lacking, in light of circumstance of the case. The Main point of this review:

To learn about the death penalty in India.

To learn about the criminological methodology of the death penalty.

CAPITAL PUNISHMENT IN INDIA

The death penalty is a lawful capital punishment in India. India gives the death penalty for a genuine offences .In India the death penalty is granted for generally egregious and terrible offense. In India Article 21 of the Indian constitution is”security of life and individual freedom”. This article says,” No individual will be denied of his life or individual freedom besides as per technique set up by law”. This article says right to life is guaranteed to each resident in India. In India IPC gives capital punishment as a discipline for different offenses, for example, criminal conspiracy, murder, waging battle against the government, abetment of insurrection, dacoity with murder, and hostile to – psychological warfare. The Indian Constitution has arrangement for kindness of capital discipline by the President. There are 22 the death penalty is occurred in India starting around 1995. After the autonomy a there are 52 the death penalty is taken in India In “Mithu vs territory of Punjab” the Supreme Court struck down the IPC Section 303 which give obligatory capital punishment for the offenders, India casted a ballot against a United Nations General Gathering goal requiring a restriction on the demise penalty. In November 2012, India again proceed with its stance on the death penalty by casting a ballot against the UN General Assembly draft goal demand. to boycott passing penalty.

CASE LAWS

MITHU VS STATE OF PUNJAB ( 1983)

In this case the Supreme Court struck down Section 303 of the Indian Penal Code, which provided for mandatory death sentence for offenders.

BACHAN SINGH VS STATE OF PUNJAB

In this case the Supreme Court says that capital punishment was given only to the rarest of rare Cases

JAGMOHAN VS STATE OF UP

This was the first case dealing with the question of constitutional validity of capital punishmentin India.

METHODS OF EXECUTION IN INDIA

In India the capital punishment is executed by hanging or shooting.

HANGING

All capital punishment in India is implemented by hanging. After independence , In Mahatma

Gandhi case Godse was the first person to be executed by capital punishment in India. The SC

of India suggested capital punishment must be given only to the rarest of rare cases in India .

EXECUTION

In India the Army Act and Air Force Act also provide implementation of capital punishment in India In Air Force Act, 1950, section 34 allows the court martial to thrust the death sentence for the unlawful act mentioned in section 34(a) to (o) of The Air Force Act, 1950. In Indian the government mostly used hanging method to execute capital punishment.

CRIMINOLOGICAL APPROCH OF CAPITAL PUNISHMENT-:

There are two types of theories of punishment in capital punishment are-:(1)- Reformative theory

(2)- Preventive Theory

REFORMATIVE THEORY

“tit for tat turn the entire world blind” by Mahatma Gandhi. This line is the pushed of reformative hypothesis of discipline. All speculations depend on the guideline to offender. The primary goal of every one of these hypothesis is to change the sentenced individual through individual treatment. The principle point of the reformative hypothesis is to instruct or change the wrongdoer without anyone else. A guilty party is discipline for his own benefit. This hypothesis has been upheld from different sides. Reformative hypothesis support criminal science. Criminal science says each wrongdoing as phenomenon, a gentle type of madness. criminal human sciences ,criminal social science and therapy upholds Reformative hypothesis. This hypothesis intends to address the criminal personalities into a decent way and they can lead a day to day existence like typical resident. This hypothesis condemn all sort of corporal punishment.

PREVENTIVE THEORY

The principle point of this preventive hypothesis is to get the wrongdoer far from the general public. As per preventive hypothesis the fundamental point of discipline is to set a model for other people and keep them from crimes. In this hypothesis the guilty parties are rebuffed with death punishment, life detainment. Preventive hypothesis was upheld by numerous law reformers on the grounds that preventive hypothesis has adapting Penal law. On numerous reformers view the preventive hypothesis has a genuine impact on guilty parties. The primary reason for preventive hypothesis is to make strides that blamed individual doesn’t rehash the wrongdoing after satisfaction in Punishment. This hypothesis clarifies that capital discipline as a most extreme type of discipline due to its disadvantage impact. A man has ended the existence of another man. So he is dependable to be denied of his life. In India they follows preventive hypothesis.

CONCLUSION

In India, the death penalty has been Practiced since old occasions. Numerous nations nullified capital punishment11. At the point when we check out our public wrongdoing insights capital punishment has not ended up being obstacle for doing offense, the wrongdoings rates increment as it were. We need to change our laws particularly for capital punishment in India. Our laws should change and the discipline ought to be so afflictions and it ought to be a model for individuals around him, about his unlawful demonstrations. There is a discipline more terrible than capital punishment. Make the wrongdoer nonstop conversation about the death penalty and the thorough life in jail is more awful than capital discipline. Every constantly the wrongdoer should feel for his offense.

The death penalty isn’t viable to lessen violations in Society.

Henceforth invalid theory demonstrated.

Indian criminal statute depends on the blend of two hypotheses. The constitution too gave powers to president and lead representative to suspend or exonerate capital punishment. In India capital discipline is granted for the most genuine and appalling offenses. The death penalty is given for murder, robbery with murder, waging battle against the public authority and abetting mutiny,etc.,. Capital punishment is given just when the court reaches a conclusion that life detainment is lacking, in light of circumstance of the case.

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AN OVERVIEW OF TRADEMARK INFRINGEMENT IN INDIA

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Brand name recognizes the proprietor of the item. Under any approved understanding of item, a brand name can be utilized, an illustration of brand names products names are, iPod and a major Macintosh. Organization logos like the Golden Arches at McDonald’s and McDonald’s “I’m Lovin’ it. Brand names as Mcdonald Apple’s, and Dolce and Gabbana.

The use of the brand name by unapproved implies or unlawful means by delivering it in exchanging is known as brand name robbery. Assuming there is an encroachment of brand name, the proprietor of the enrolled brand name can make a lawful move and for an unregistered brand name, the main choice passes off. Numerous nations like the United States, Canada and a lot more likewise, acknowledge the brand name strategies, so they additionally gave the right to the expert of item to make the move for the security of their brand name A typical idea of a brand name is that the proprietor of an enlisted brand name has a more legitimate appropriate for assurance than the proprietor of unregistered brand name.

The idea of use of the non-actual brand name the Supreme Court held on account of Hardie exchanging Ltd. v. Addison paint and synthetic substances Ltd. The Supreme Court gave a more extensive translation on the utilization of a brand name that it very well may be non-physical and that there were no grounds to confine the client to use on the items or to the offer of the products bearing the brand name.

ENCROACHMENT OF BRAND NAME

An enrolled brand name is encroached by an individual who not being an enlisted owner or an individual utilizing via allowed use over the span of exchange, an imprint which is indistinguishable with or misleading like the brand name corresponding to labor and products in regard of which the brand name is enrolled. After encroachment, the proprietor of the brand name can go for common judicial actions against a the enlisted party brand name. Essentially, Trademark encroachment implies the unapproved utilization of a brand name on in regards to items and advantages in a way that will create turmoil, troublesome, about the dealer or possibly benefits.

THE TRADEMARKS ACT

The Trademarks Act, 1999 (hereinafter alluded to as the Act) is the regulation that secures brand names in India. The Act sets out the guidelines managing enlistment, insurance and punishments against encroachment in regards to brand names. Brand names are given the situation with protected innovation across the globe. There are numerous associations, both worldwide and public, that undertaking to ensure scholarly properties like brand names.

In India, the association that arrangements with the security of brand names are the Indian Patent Office regulated by the Controller General of Patents, Designs and Trademarks. In straightforward words, brand name encroachment is the unapproved utilization of an imprint that is indistinguishable or misleading like an enlisted brand name. The term beguilingly comparable here implies that when a normal purchaser takes a gander at the imprint, it is probably going to confound him/her of the beginning of the labor and products.

TRADEMARK LAW IN INDIA

Before 1940 there was no law on brand names in India. Various issues of encroachment of enlisted and unregistered brand name emerged which were settled under Section 54 of the Specific Relief Act, 1877 and enrollment was mediated under the Indian Registration Act,1908. To conquer these hardships, the Indian Trademark law was implemented in 1940. After the requirement of the brand name law, interest for assurance of brand names expanded as there was significant development in exchange and business. The Trademark law was supplanted with the Trademark and Merchandise Act, 1958. It gives better assurance of brand name and forestalls abuse or deceitful utilization of imprints on stock. The Act gives enrollment of the brand name with the goal that the proprietor of the brand name might get a legitimate appropriate for its elite use. This past Act got supplanted with the Trademark Act, 1999 by the public authority of India by consenting it with TRIPS (Trade-related parts of protected innovation freedoms) commitment suggested by the World Trade Organization. The point of the Trademark Act is to give assurance to the clients of brand name and direct the conditions on the property and furthermore give lawful solutions for the execution of brand name freedoms.

The Trademark Act, 1999 gives the right to the police to catch in occurrences of infringement of the brand name. The Act gives a total definition for the term encroachment which is oftentimes utilized. In Trademark Act, it gives disciplines and punishments to the wrongdoers. It likewise builds the time term of enlistment and furthermore enrollment of a modern brand name.

DESGINATION OF TRADEMARK

Trademark is assigned by:

• ™ (™ is utilized for an unregistered trademark .it is utilized to advance or brand products)

• ( utilized for an unregistered help mark. it is utilized to advance or brand administrations).

• R (letter R is encircled by a circle and utilized for enrolled brand name).

USES OF TRADEMARK

Brand name recognizes the proprietor of the item. Under any approved understanding of item, a brand name can be utilized, an illustration of brand names products names are, iPod and a major macintosh. Organization logos like the Golden Arches at McDonald’s and McDonald’s “I’m lovin’ it. Brand names as mcdonald Apple’s, and Dolce and Gabbana.

The use of the brand name by unapproved implies or unlawful means by delivering it in exchanging is known as brand name robbery. Assuming there is an encroachment of brand name, the proprietor of the enrolled brand name can make a lawful move and for an unregistered brand name, the main choice passes off. Numerous nations like the United States, Canada and a lot more likewise, acknowledge the brand name strategies, so they additionally gave the right to the expert of item to make the move for the security of their brand name A typical idea of a brand name is that the proprietor of an enlisted brand name has a more legitimate appropriate for assurance than the proprietor of unregistered brand name.

The idea of use of the non-actual brand name the Supreme Court held on account of Hardie exchanging Ltd. v. Addison paint and synthetic substances Ltd. The Supreme Court gave a more extensive translation on the utilization of a brand name that it very well may be non-physical and that there were no grounds to confine the client to use on the items or to the offer of the products bearing the brand name.

ENCROACHMENT OF BRAND NAME

An enrolled brand name is encroached by an individual who not being an enlisted owner or an individual utilizing via allowed use over the span of exchange, an imprint which is indistinguishable with or misleading like the brand name corresponding to labor and products in regard of which the brand name is enrolled. After encroachment, the proprietor of the brand name can go for common judicial actions against a the enlisted party brand name. Essentially, Trademark encroachment implies the unapproved utilization of a brand name on in regards to items and advantages in a way that will create turmoil, troublesome, about the dealer or possibly benefits.

INFRINGEMENT OF TRADEMARK

The development of the web is additionally prompting an extension of improper brand name encroachment charges. Likely, an organization will attest brand name encroachment each time it sees one among its brand names on a web-based page of a Third party. For instance, a person who fosters a site online that talks about her mastery with Microsoft programming could utilize Microsoft’s brand names to counsel careful product without the concern of encroachment .Notwithstanding, she predominantly would never again be equipped to involve the imprints in this sort of means as to plan watchers of her web page to feel that she is partnered with Microsoft or that Microsoft is someway supporting her net page. The honor could easiest be broke down after perceiving how the imprints are truly utilized on the encroachment of brand name on the web.

CASE LAW ON INFRINGEMENT

Hearst organization Vs Dalal road verbal trade Ltd.

The court held that a brand name is encroached when a person throughout exchange utilizes an imprint which is same with or beguilingly like the brand name as far as the products in regard of which the brand name is enrolled. Utilization of the imprint by utilizing such man or lady should be in a way which is bound to be taken as getting utilized as a brand name.

ACCORDING TO TRADEMARK ACT, A MARK WILL BE REGARDED TO BE INFRINGED MARK IF:

1. It is found copy of whole enlisted mark with a couple of augmentations and adjustments,

2. The encroached mark is used throughout exchange,

3. The usage of the encroached mark is printed or normal portrayal of the imprint in promotion. Any oral use of the brand name isn’t encroachment.

4. The imprint used by the other person which nearly appears as though the quality of the enlisted proprietor as is likely going to misdirect or create turmoil and according to merchandise in regard of which it is enrolled.

PROTECTION AGAINST INFRINGEMENT OF TRADE MARK:

Under section 29 of the Trade mark Act, 1999, the use of an exchange mark by a person who not being enrolled proprietor of the exchange mark or an enlisted customer thereof which is unclear with, or misleadingly like an enrolled brand name adds up to the encroachment of brand name and the enlisted proprietor can take action or gain alleviation in regard of encroachment of brand name.

For a situation Supreme Court has held that in an activity for encroachment assuming the two imprints are undefined, by then the encroachment made out, in any case for the situation the Court needs to take a gander at the two denotes, the level of likeness by phonetic, visual or in the fundamental ides as introduced to the enlisted proprietor, whether or not the fundamental elements of the sign of the enrolled owner is viewed as utilized by other individual the Court might close the matter.

IN AN ACTIVITY FOR ENCROACHMENT OF TRADE MARK :

1. The outraged party should be the enlisted owner of a brand name

2. The respondent should use an imprint misleadingly comparative with the outraged party’s imprint.

3. The usage should be comparing to the products in respect of which the outraged party’s imprints is enrolled,

4. The usage by the respondent should not be unintentional anyway throughout the span of exchange.

LATEST UPDATES ON TRADEMARK LAW – 1ST AUGUST TO 8TH AUGUST ,2021 –

INDIAN TRADEMARK UPDATES

Samsung India faces temporary Injunction in trademark infringement suit- In a new choice by the City Civil Court at Bengaluru, innovation monster Samsung India, alongside its specialist organization Story Experiences Pvt. Ltd., have been briefly limited from utilizing the expression “Attendant”. The suit was initiated by Dipali Sikand, the organizer of Lesconcierges Services Pvt. Ltd. furthermore Club Concierge Services (India) Pvt. Ltd., who guaranteed that she was the first individual to present attendant services in Quite a while, and who had enlisted the brand name “Attendant” under classes 35, 39, 41, 43, and 45. It was stated by Sikand that she was giving attendant services to Samsung India, nonetheless, after the expiry of her underlying commitment with the tech monster, Story Experiences was named to give the previously mentioned administrations to Samsung India. Story Experiences along these lines started sharing flyers and handouts bearing the expression “Attendant” to planned customers, which prompted Sikand documenting this case, asserting encroachment of her brand name privileges. The City Civil Court at Bangalore in this way allowed a brief directive against Samsung India and Story Experiences Pvt. Ltd. until the finish of the suit

Before 1940 there was no law on brand names in India. Various issues of encroachment of enlisted and unregistered brand name emerged which were settled under Section 54 of the Specific Relief Act, 1877 and enrollment was mediated under the Indian Registration Act,1908. To conquer these hardships, the Indian Trademark law was implemented in 1940. After the requirement of the brand name law, interest for assurance of brand names expanded as there was significant development in exchange and business. The Trademark law was supplanted with the Trademark and Merchandise Act, 1958.

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ARTICLE 21 AND EUTHANASIA

Shubham Kashyap

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INTRODUCTION:

The word Euthanasia originated from Greek origins “eu” that denotes “well” or “good” in addition to “Thanatos” which denotes “death”, so in essence Euthanasia signifies good death.

It basically indicates a deliberate termination of someone’s life by someone else at the clear request of the individual who wants to die. In practice, it involves the action of killing an individual who is ill and not curable out of care and compassion for that individual’s agony. Some even call it ‘mercy killing’. Merriam Webster defines Euthanasia as the action of killing or letting a hopelessly ill individual die in a comparatively pain free method for merciful intentions. Black’s Law Dictionary has a similar definition stating it to be the action of killing or causing death of an individual suffering from an ailment that isn’t curable, specially an agonizing one for merciful aims. Right to die has continually been a contentious subject globally. Article 21 of the Indian constitution states that “no individual should be deprived of life or personal freedom except in accordance with legally prescribed procedures”. The term liberty is the appreciation and attainment of choice and the attributes that go with that choice and the word life denotes the aim to have the same in a dignified way. Both of these are intertwined. Liberty permits people the space to reflect and perform without constraint and life deprived of liberty would be a pointless existence. Courts have included different aspects to

Right to life like right to have a respectable existence, right to food, to get adequately educated, to have a clean environment, to get adequate shelter, privacy and numerous different rights to allow people to enjoy a better and a more fruitful life.

ANALYSIS OF

ARTICLE 21

This generous dealing of Article 21 by the courts could be owed to the judiciary’s appreciation of the principle that constitutional provisions should be interpreted not in a limited sense but in a broad and liberal way. Benches have continually held that when understanding the correct implication and substance of right to life, the court must try to expand the scope of the fundamental right and not weaken its content.In Maneka Gandhi v Union of India, 1978 AIR 597, justice Bhagwati, in an attempt to make Article 21more meaningful, stated that “Courts should try to expand the scope and range of fundamental rights instead of attenuating their implication and substance by means of juridical construction”. This is why numerous of rights have been included in Article 21. In Francis Coralie Mullin v The Administrator, the Supreme court made huge development when it contended that Article 21 doesn’t amount to simply ‘animal existence’ but to something more than just that. It comprises of living with human dignity. In Shantisar builders v Narayanan Khimalal Totame, the Supreme Court distinguished between the shelter that humans require and those that animals require. They stated that animals require just the minimum bodily security but humans require a habitation that permits them to grow in all facets be it mentally or physically. So, it isn’t just right to survival but living a complete quality life of dignity and value. The Supreme Court has claimed article 21 to be ‘heart of fundamental rights’ and has consequently allowed very broad boundaries with widest conceivable understandings to this article and correctly so. It has evolved into a basis for many essential rights and procedural protections. It can be contended that at the very least, every individual has a right to live with modicum amount of dignity and where the existing condition drops beneath that point, the individual should be permitted to terminate such agonizing existence. There is no legislation in India that provides for Euthanasia, so people relied on the constitution to provide relief with the question being, ‘whether Right of Life under article 21 accommodates a Right to die?’.

ANALYSIS OF INDIAN LEGAL JURISPRUDENCE ON EUTHANASIA

This issue first arose in the case of State of Maharashtra v Maruty Sripati Dubal. The court here held that Right to Life included Right to die and held Section 309 of IPC that made attempt to suicide a crime as unconstitutional. 29 The court reasoned those fundamental rights have both positive and negative facets. It also distinguished between suicide and euthanasia saying that the former includes the act done by the individual himself whereas the latter meant the act done by an intervening party. As opposed to this, in Chenna Jagdeshwar v Sate of AP, the court stated that right to die isn’t secured under article 21. In P. Rathinam v Union of India, the court followed Maruty Dubal case’s reasoning and stated that article 21 included the right not to lead a coerced life that is damaging, unfavorable and detested by someone. It also held attempt to suicide as not punishable by calling the provision against this as ‘ultra-viruses. This was a drastic approach and it could not last long. The court in Gian Kaur v State of Punjab while overruling this judgment, stated that Right to Life doesn’t incorporate the Right to die a death that isn’t natural and held suicide to be a criminal offence. They held s.309 of IPC that makes attempted suicide an offence to be constitutional. They reasoned that Article 21 is a natural right whereas the right to end one’s life by committing suicide would be unnatural.36 The court stated that dignity rights under the same only exist till the ‘natural’ termination of life. They distinguished Euthanasia from suicide and asserted that the former involves ending an individual’s life who is already fatally ill or in a PVS. They stated that in euthanasia, the course of dying has already begun and it merely accelerates this process of natural death and isn’t causing an unnatural termination. They therefore held that right to die a dignified death of a patient whose ‘life is ebbing out’ may come within the preview of right to a dignified life. So, in Gian Kaur, the court already acknowledged right to a dignified death specially for incurably ill patients, but they did not exactly rule on euthanasia be it active or passive. They just primarily focused on the legitimacy of anti-suicide laws. So, this issue was again brought up in Aruna Ramchandra Shanbaug v Union of India. Runa Shanbaug was a nurse who was a victim of sexual assault, after which she wasn’t in the condition to feel anything anymore. The ruthless incident rendered her visionless, deaf, paralyzed and in a vegetative condition for 42 years. A petition was brought before the Supreme Court for her euthanasia. The court passed a ground-breaking judgement legalizing passive euthanasia. The court held that in cases were the natural progression of death had already initiated or the patient was in a permanent vegetative state, then it wouldn’t be an offense to passively quicken demise by refusal of medical support. 43 Here the court instead of dealing with right to die, dealt with whether there is a compulsion to lengthen life when the sufferer was fatally ill. It laid down the following checks and safeguards that need to be adhered to so that this aid isn’t abused, specially forbidding third party from being involved in the decision-making.

1-The decision to not continue with aids that lengthen the patient’s life must be undertaken by their lawful guardians, their partner, someone who is close to them,

2- The approval of the high court is mandatory as relatives might give approval to get inheritance benefits.

3- Two judges of the high court will take the call after taking assistance from a panel of three medical experts. The English case of Airedale has been one of the major cases that facilitated the benches to consider passive euthanasia in Indian framework. 48The aforementioned legal delivery had also been undertaken by the court in Airedale case cogitating the High Court to be ‘parens patriae’ and personally examining every case for securing the paramount interest of the individual given euthanasia like a rational and reliable parent.

In Common Cause v Union of India, the Constitutional Court performed an arduous undertaking of pronouncing Right to die with dignity as a fundamental right and a vital component of right to live a life of dignity as enshrined in Article 21. It arranged extensive system for protecting the dignity of fatally ill individuals and those in PVS with no prospect of recovery and in this course, it 1- legalized advance medical directives (AMD) and health attorneys and 2- put forth rules to give force to passive euthanasia. This is now the current law with respect to euthanasia till a legislature is made on the same. This court also scrutinized some discrepancies in the Aruna Shanbaug case. The constitutional court in Common Cause increased the extent of Euthanasia allowed in Aruna case by attaching the concept of living will, where individuals can leave written guidelines on the type of health care they could be administered with, in the occasion of them being in a unresponsive and incurably ill state .It is important to remember that only passive euthanasia has been allowed yet that involves withholding life-lengthening procedures voluntarily, when the patient requests this or when he leaves a living will behind that provides for this or, involuntarily when the patient isn’t in a conscious state and this decision is taken by his family, doctors, close affiliations with the approval of the high court. Active euthanasia is different as it involves positive action of using lethal drugs to cause deliberate demise of the individual through direct interference and this isn’t permitted. The Jurisprudence across the globe has grown on passive euthanasia and it has managed to get moral and legitimate approval more or less. This can’t be said for active euthanasia as there still exists some hesitation and doubt about it.

CONSTITUTIONAL ASPECTS OF DIGNITY AND PRIVACY THAT PLAY A ROLE HERE

According to prof Upendra Baxi, dignity means respect for a person built on the value of liberty and power to construct choices and a decent social system would be where dignity is respected by allowing settings to exercise uncontrolled and informed choices. Even though the term ‘dignity’ isn’t defined anywhere in the constitution or statutes, by analysing the views taken by courts, we can see the how intrinsic it is for Article 21. To deny an individual of his dignity at the conclusion of his life would deny him of meaningful existence. A subsistence that holds meaning would include individual’s right of self-determination and independence to choose their healthcare procedure. Respect for a person, particularly their right to decide how they must live their life amounts to self-autonomy or right of self-governance. It is the right against non-intervention by people that offers a competent individual that is in his majority, the right to decide things that concern his being and body, exclusive of other’s control or meddling. Individual’s right of self-rule and autonomy include their choice to whether and to whatever degree they are prepared to submit themselves to health treatments, deciding between alternate procedures or in that regard, deciding for no procedure at all, which according to their comprehension is in consonance with their personal desires and principles. 61 Nevertheless, a critical issue is yet to be addressed of whether right to die as a part of article 21 is absolute or it would be controlled by reasonable constraints. Considering this right involves the choice vis-à-vis terminating one’s life, the circumstances that accompany the meaning of ‘dignity’ need to be lucidly articulated. Without explicit reference of reasonable constraints influencing this right, the noble intent of the constitutional court advancing this judgement may prove ineffective.

In KS Puttaswammy v Union of India, the Constitutional Court that included nine justices held privacy to be a fundamental segment of right to life that also recognizes a person’s right to refuse health treatments that prolong lifespan. Here, Justice Chelameshwar stated that “force feeding of particular individuals by the Government raises alarms for privacy. A person’s right to deny healthcare that prolongs his existence or ends the same is a liberty that comes within the preview of privacy”. Article 21 guarantees privacy rights and in cases where individuals are in PVS or are bed ridden, unconscious to an extent where they are unable to eat own their own, switch clothes or even utilize the lavatory, whether or not their privacy rights are being met is something to reflect on. These are things that no one would normally like to rely on others for.

EUTHANASIA IN THE NETHERLANDS

Netherlands was the first European state that allowed euthanasia by introducing the statute ‘termination of life on request and assisted suicide act” in 2002. 69 This legislation permitted euthanasia in extremely rare and extraordinary circumstances.70 There, killing someone on their request or with their permission is illegal but this statue makes an exemption for doctors who perform euthanasia provided they meet the following factors:

1-If there isn’t any possibility for the patient’s condition to improve and they are in insufferable agony, 2-The patient themselves, voluntarily opt for this without any encouragement from others and this request should be persistent over a period,

3- The patient makes an informed decision with comprehensive information of his alternatives,

4-This issue must be discussed with other free doctors for confirming everything,

5-euthenesia must take place with proper process by competent doctors, and

6- patient must be minimum twelve years of age.

CONCLUSION

Low educational and legal knowledge being the reality of many people in India, there could be a chance of misuse of living wills by greed-stricken heirs and this should be appropriately attended by the parliament for the paramount usage of the novel right added in the binder of fundamental rights. Lack of sufficient and affordable healthcare and monetary limitations on middle class families may force them to opt for passive euthanasia or make living wills hastily out of compulsion. Therefore, mere allowing passive euthanasia by the benches isn’t enough till the parliament appropriately aids the matter by giving the required attention to health facilities and insurance, specially for economically backwards individuals. Appreciating the right of dying with dignity for terminal patients and persons in a PVS is only part of the picture, and the issue of how this right would be construed with respect to individuals wanting to die due to other serious reasons like agedness, indigence, dearth of prospects etc. to die with respect still remains. The apex court has only recognized this right to dignified death in terms of right to withdraw or deny life prolonging treatments for the aforementioned categories, so how this right should be construed with respect to patients who have terminal illnesses that hamper their life adversely but haven’t made them dependent on some life supporting machine is something to deliberate on. For instance, individuals permanently paralyzed from neck down, individuals with severe case of dementia that leaves them in a disoriented state, not recognizing themselves or their loved ones etc. These individuals aren’t dependent on life prolonging systems that they can withdraw but nevertheless they have to permanently depend on others for basic needs and their dignity, privacy, autonomy and quality of life can be said to be obstructed by their degenerated circumstances. To cause death in these situations, a positive action would be needed. This may have the capacity to unlock floodgates for Mandamus Writs before constitutional benches. In my opinion, active euthanasia, although very restrictively and only in extraordinary and rare instances, should also be included in right to dignified death under art 21. For this, heavy safeguards and riders are needed so that this right isn’t abused. This is also keeping in mind the broad frame the courts have given to ‘life’ under art21, to signify more than ‘animal survival’, to include a life of dignity, quality, good physical and psychological wellbeing. India’s legal situation shouldn’t be reviewed in isolation. We have drawn our constitution from the charters of diverse states and benches have frequently referred to several international decisions. Netherland’s statue with respect to Euthanasia should be examined and appreciated in Indian context and used to broaden euthanasia framework in India. Death is as essential is life in certain situations. Death shouldn’t be seen as negative or disappointing when the individual is going through unbearable agony from an ailment that isn’t curable for an alarmingly long time. Humane and proficient dealing for the dying is necessary.

Low educational and legal knowledge being the reality of many people in India, there could be a chance of misuse of living wills by greed-stricken heirs and this should be appropriately attended by Parliament for the paramount usage of the novel right added in the binder of fundamental rights. Lack of sufficient and affordable healthcare and monetary limitations on middle class families may force them to opt for passive euthanasia or make living wills hastily out of compulsion.

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