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The cruel cut: Female genital mutilation

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FGM has always been a grave issue and will remain to be one until major steps are taken to cull it. This is not widely recognised as of yet but it will soon be. 

I was cut for my future husband. I remember the day clearly. My neighbour’s daughter said to me “You must be looking forward to today” and I looked at her crazy because it wasn’t my birthday or anything. She then giggled and said “oh you’re getting your gudniin done”. Gudniin means circumcision in Somali. As she explained to me what exactly was going to happen, I sat there thinking that didn’t my mother said to not let anyone touch me? Would she let them touch me? I heard screaming from the other side of the house. It was a shrill and agonising shreak. It was my sister’s. Then before I could respond to it or analyse anything, I heard “Get Leyla. It’s Leyla’s turn.” I ran off, but of course, a seven year old cannot outrun an adult. They took me inside, pinned me to this table. There were aunties all around me, holding my hands and spreading my legs apart. I could feel my flesh being cut off. I blacked out from the pain.” 

Recounts Leyla Hussain, a FGM survivor born in Somali, Africa. She now actively advocates against the practices and is one of the founding member of the Daughters of Eve non-profit organisation. Female Genital mutilation or female circumcision or locally known as Khatna (hereinafter FGM) is an age old tradition of forcibly removing a girl’s external genitals without anaesthetics for non-medical reasons.

 In extreme cases, the external genitals are completely cut and the wound that is left is sewn together. The skin with time heals and stitches itself together sealing maximum portion of a girl’s vaginal orifice. A very small hole is left for urine and menstruation. The small hole, of course, is not sufficient for efficient and smooth flow of urine and blood and hence produces complications ranging from extreme pain during menstruation and miscarriages. The mother could face fatal complications while delivering a child. After the delivery the mother is cut and sewn again.

 Why is this an issue now? 

FGM has always been a grave issue and will remain to be one until major steps are taken to cull it. This is not widely recognised as of yet but it will soon be. Because of the pandemic, many middle-class families are being pushed down the economy ladder. They are now lower-class. Poverty is increasing due to the unprecedented crisis. Parents now would want to marry off their daughters for financial gains. FGM will prevail as it is a sign or virginity and hence purity. Cut daughters will bring more bride price, or so is believed.

 What are different types of Female genital Mutilation? 

As per world health organization, Female genital mutilation is assessed into 4 major category. Category 1: This is often the partial or total removal of the clitoral glans (the external and visual a part of the clitoris, which may be a sensitive a part of the feminine genitals). 

Category 2: This is often the partial or total removal of the clitoral glans and therefore the labium (the inner folds of the vulva), with or without removal of the labium (the outer folds of skin of the vulva).

 Category 3: It is also referred to as infibulation, this is often the narrowing of the vaginal opening through the creation of a covering seal. The seal is made by cutting and repositioning the labium , or labium , sometimes through stitching, with or without removal of the clitoral prepuce/clitoral hood and glans. Deinfibulation is a practice of piercing the covered vaginal opening of a women who has been infibulated to facilitate intercourse and childbirth. 

Category 4: In this category, all other kinds of detrimental practices to the female genitals for unethical purposes. It damages healthy and normal female genital tissue, and indulges with the natural functions of women’s bodies. Risks of FGM increase with increasing severity from Category 1 to Category 4. It leads to range of problems which deteriorates women’s condition in future.

 Is FGM practised in India?

 Yes, sadly it is practiced in India. At least 200 million girls alive today living in 31 countries including India have undergone FGM, says UNICEF. It is practiced primarily in the Dawoodi Bohra comunity, a sect of shia muslims in India. The Bohra High priest Syedna calls the external part of female genitalia as haram ki boti, or sinful flesh which must be cut to preserve female chastity and virtue. Primarily, it ensures ‘pre-marital virginity’.

 The tradition is wrapped in patriarchal values of protecting and controlling abody and in gender inequality. Khatna, which is basically FGM as called in India, is practiced not only by Bohra women but also by a woman who wants to marry a Bohra man. She has to produce a certificate of cut before the marriage. FGM is basically telling a woman that her body is there just to carry babies. 

My mother was not cut once but twice because a neighbour thought not enough flesh was being taken away, recites a woman who refused to perform FGM. Women who refuse are labelled as outcasts and are isolated by the community. They are impure for a woman who thinks she has more right on her body than her future husband is impure. They are called feminists as if being called one is an insult. 

Recently a Petition has been filed by the name Sunita Tiwari v. Union of India where a complete ban on FGM has been prayed. It was prayed in September, 2018 too but the division bench recommended a constitutional bench to the case. It is pending before the Honourable Supreme Court of India. One could rant about banning FGM, holding protests with a group of like-minding people and it will still continue in the secret of the streets. It is called the positive deviant approach, no one will follow my lead like this. Hence, praying for a ban on the practice is means to achieve an end and not the end itself. 

If FGM is so horrifying and absurd, why does it still happen?

 I have three simple but concrete conclusions. 

First, we can’t let go of FGM simply because it is a tradition. No matter how absurd, no matter ho horrific, it is a tradition. It has been there longer than you and I, our ancestors did it and so it simply must continue. This is how almost everyone (primarily the males) who was asked about this practice responded. Here, we may question as to how FGM became a tradition? Because mothers in every culture felt a dire need to protect their daughters from monsters who will take away their chastity. Because daughters hold the honour of her father, of her community, she must be protected. She like a classic damsel-in-distress must wait for her prince to rescue her. 

Second reason why it is still practiced is the fact that FGM is a societal norm. It is something that I will do simply because you as my peer expect it of me. It is actually a social obligation. For example, waxing body hair. Nobody has asked us to do it, but somebody started doing it and now we all do it and if one of us doesn’t do it, we frown upon the person who does not do it. 

Third reason why it is still practised because FGM is related to cultural ideals of femininity and modesty. It is usually motivated by beliefs about what’s considered acceptable sexual behaviour. It aims to ascertain premarital virginity and marital fidelity. It is believed in many communities to scale back a woman’s libido and thus believed to assist her resist extramarital sexual acts. When a vaginal opening is roofed or narrowed, the fear of the pain of opening it, and therefore the fear that this may be acknowledged, is predicted to further discourage extramarital sexual activity among women with FGM. FGM is usually considered a necessary a part of raising a woman , and how to organize her for adulthood and marriage. Although, FGM has no health benefits, and it harms women in many ways. Since, we’ve identified why FGM still exists, we can think of a solution to prevent it. 

How do we stop the practice of FGM? Learning from the Tostan model in Senegal

 Now, we know it is a societal norm and what’s important for a societal norm is that it has to shift collectively. Aiming at banning a practice completely is never the solution. Prohibition creates rebels which is always more trouble. It simply doesn’t work. Why won’t it work?

 We didn’t make them question it. For this to work, every individual must consciously know why FGM is so wrong. Similar approach was implemented by an organisation called Tostan in Senegal, Africa. Tostan is non-governmental organisation headquartered in Senegal. The founder Molly Melching when arrived in Africa, found out that lack of basic education in the area fuelled the ongoing traditions, especially FGM and child marriage. She with the help of her team trained locals and implemented a three year educating program. The objective was to teach the locals about human rights. They need to know what their rights were and how they were being violated. They presented classes in local levels and provided a stage for dialogue and consensus building. The program is called the community empowerment program.

 The basic work of this organization is to convince pairs of villages to stop the practice of FGM together, so that each village will have partners which regard girls and women in the other village as marriageable. The desire for social acceptance and ensuring that your children are considered worthy of marriage by potential partners is one of the drivers of FGM.

 More than 7,200 villages have been convinced to give up this practice. This organisation helped change the pluralistic ignorance of the society towards a said tradition as a whole. A law is made according to a society. India didn’t decriminalise the sodomy law because the apex court felt the society wasn’t simply ready for the change. It was ripe for discussion but not implementation. Here, by changing the collective conscience of the society as a whole, Tostan helped change the future laws of the country.

 Conclusion 

The question never was about whether FGM should be allowed or not, but rather, whether it should be done to children to young to participate in it. It is essentially child abuse and hence a crime. In addition to this, FGM also tells us about how a girl is never her own person but always someone’s daughter, sister, wife or mother.

 Every 11 seconds a mother risks the life of her daughter by practicing FGM and we still find time to fight for justice of a celebrity. We are more interested in the fact that a certain female celebrity is sweeping her house and a certain president tweeted something absurd and created a new word called covfefe than the fact that a girl struggles to walk properly for weeks after the flesh between her legs is cut off. She experiences pain so excruciating that she often passes out cold.

 Banning as can be said is the first step, not the last. Since, the lockdown and the crisis have increased the probability of increasing cases of FGM, we need to act now.

Legally Speaking

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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Bit by bit to a big leap: India and the ISDS reforms

The need for reforming the ITAs or the system of Investor-State Dispute Settlement (ISDS) is not unique to India. Many developing countries have time and again raised concerns against ISDS and opposed this mechanism, which permits corporations to drag governments into arbitration claiming large sums of money in compensation. Even the European Union and European nations individually are opposed to ISDS in its present form and have proposed reforms including establishing a Multilateral Investment Court.

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“India’s bilateral investment treaty (BIT) programme is part of a larger trade and investment agenda of the Indian government to boost investor confidence and increase investment flows into and out of the country.”, notes the Law Commission of India, in its 260th Report. However, India’s experience with BITs, since it signed the first one in 1994, has been uneasy, to say the least. The recent decision of an arbitral tribunal in favour of Vodafone holding the Government of India liable to compensate the telecom giant with an amount in excess of four million pounds, has once again brought to fore India’s rather uncomfortable tryst with BITs and Investment Treaty Arbitrations (ITA) regime.

According to the information available on the website of Department of Economic Affairs, Government of India and the United Nations Conference for Trade and Development’s (UNCTAD) Investment Policy Hub, India has signed about 86 BITs along with 14 Treaties with Investment Provisions (TIP). Starting from 2010, India has faced a number of claims pursuant to these BITs with the currently known tally being twenty-five pending disputes. Thus, with an intent to address the rise in claims against the government’s regulatory measures and to reform the dispute mechanism, in 2016, a new model BIT was unveiled by the Government of India. Alongside, India unilaterally terminated its BITs with fifty-seven countries. In 2017, the government of India also set up a High-Level Committee to Review Institutionalisation of Arbitration Mechanism in India, which also mandated to look into the role of arbitrations in matters involving the Union of India, including ITAs and suggest suitable measures for reform.

The need for reforming the ITAs or the system of Investor-State Dispute Settlement (ISDS) is not unique to India. Many developing countries have time and again raised concerns against ISDS and opposed this mechanism, which permits corporations to drag governments into arbitration claiming large sums of money in compensation. Even the European Union and European nations individually are opposed to ISDS in its present form and have proposed reforms including establishing a Multilateral Investment Court.

REFORM PROCESS AT UNCITRAL

To address these concerns the United Nations Commission on International Trade Law (UNCITRAL), in 2017, mandated its Working Group III (WG III) (a) to identify and consider concerns regarding ISDS; (b) to consider whether reform is desirable in light of any identified concerns; and (c) if the Working Group were to conclude that reform was desirable, to develop any relevant solutions to be recommended to the Commission.

Since 2017, states, international organizations, think tanks and interest groups have been convening bi-annually to work towards reforming the extant ISDS. WG III is the first such approach to reforming the mechanism of dispute resolution that has exploded in a very short span of time, without any set rules or framework to contain it. Broadly, four concerns have been identified by the WG III, viz. concerns pertaining to consistency, coherence, predictability and correctness of arbitral decision of ISDS tribunals; concerns pertaining to arbitrators and decision makers; concerns pertaining to cost and duration of ISDS cases, and other concerns.

In terms of solutions, all participants, including governments have made their submissions to the WGIII and some common suggestions have emerged including development of appellate system, prior scrutiny of award, multilateral instruments on ISDS reforms, Multi-lateral Investment Court (MIC), dispute prevention mechanisms etc. Interestingly, some of these suggestions are the same as the reform measures proposed by the High-Powered Committee set up by the Government of India.

INDIA AND THE REFORM PROCESS

India has consistently opposed the extant mechanism and some of the reform measures proposed thus far. Simultaneously, India has been leading the reform process by example. For instance, the model BIT unveiled in 2016, diverges from traditional BITs in so far as it does not contain the often-criticised Fair and Equitable Treatment (FET) clause, has a narrower definition of investment, mandates exhaustion of domestic remedies before initiating arbitration, it provides for an appeals facility and leaves wide scope for regulatory measures to be adopted by the state without them constituting expropriation. Seemingly risk-averse and protectionist in nature, the BIT is, nevertheless, a change in status quo.

Apart from this, the India-Brazil BIT of 2020 offers a new and unique template for dispute resolution under BITs. The new BIT not only completely does away with ITA in favour of State-to-State Disputes Settlement (SSDS), it puts emphasis on dispute prevention. This treaty is particularly important not only because of its paradigm shift from the established dispute resolution mechanism but also for the fact that this change is being led by two developing nations. This aside, reportedly , the government of India is also working on such a legislation, the roots of which lie in India’s experience with BITs. These measures have all been criticised and praised equally by stakeholders; but what prevails remains to be seen.

What is worth noting, however, is that despite such strong emphasis by the Government of India on reforming ISDS, India has been conspicuous by its absence at the WGIII. It is imperative in the light of the measures taken by it that the Government of India become an active participant in the reform process being undertaken at UNCITRAL. More so, since one major limitation of the reform process undertaken there is that it is driven by those who share a common interest in long term survival of ISDS, in one form or the other.

That said, the options being considered in the process may, in fact, bring some modifications to the existing ISDS mechanism. Nevertheless, for more radical reforms it is required imperative that developing nations such as India, Brazil, South Africa, Ecuador, Indonesia who have long opposed the system, take a firm stand and share their ideas on a global platform. Moreover, in the present economic environment, when India is aiming to attract investors looking to move away from China, an apparently protectionist regime, such as the one that India’s proposed measures presents, will require clarifications and explanation. By participating more actively and publicly in the reform process India can assuage any reservations that exist in that regard. Alternatively, such participation can also help India fine-tune its measures to make them more acceptable for the other stakeholders. Either way, need of the hour is that India make its reasons and reasoning behind its big leaps of reforms known, in black and white, to the global community.

India has consistently opposed the extant mechanism and some of the reform measures proposed thus far. Simultaneously, India has been leading the reform process by example. For instance, the model BIT unveiled in 2016, diverges from traditional BITs in so far as it does not contain the often-criticised Fair and Equitable Treatment (FET) clause, has a narrower definition of investment, mandates exhaustion of domestic remedies before initiating arbitration, it provides for an appeals facility and leaves wide scope for regulatory measures to be adopted by the state without them constituting expropriation. Seemingly risk-averse and protectionist in nature, the BIT is, nevertheless, a change in status quo.

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The coloniality of modernity

It was around the 1430s that the term ‘modern’ was used in southern Europe’s Romance languages to show the past in poor light and congratulate the present. As for English, Scottish poet William Dunbar is credited for using it first in his poems wherein the word was used to show the present in positive light while remaining tight-lipped about the past.

J. Sai Deepak

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 In 2002, an interesting paper titled “Early Modernity: The History of a Word” was published in The New Centennial Review of the Michigan State University Press. The paper was authored by Prof. Patricia Seed, then a historian at Rice University, who specializes in early modern and colonial European eras. In the paper, she traced the origins of the word “modern” to the sixth century C.E. (then A.D.) when it was first used in northern Italy. This was when the Roman Empire still existed but northern Italy was conquered and ruled by Germanic Ostrogoths. According to Prof. Seed, the word modern made its debut in the context of architecture when the Ostrogothic ruler of northern Italy encouraged wealthy Roman families to undertake reconstruction of public buildings at their private expense. The outcome was that the new buildings had a different architectural style which distinguished them from those built under Roman imperial rule. Praising the contribution of a particular family for its reconstruction of the Theater of Pompey, the scribe of the Ostrogothic ruler called the family “a careful imitator of antiquity and the noblest founder of modern works” (translation). In this context, according to Prof. Seed, the word modern simply meant “different” without any value being imputed to it, neither positive nor negative.

Subsequently, for a brief period, the word doubled up as a synonym for “new”, thereby bringing in the element of time. In other words, the word modern was not only a reference to the time that something belonged to, it was equally, and perhaps more importantly, a reference to the period it did not belong to. Around the early fourteenth century, it was significantly used in Dante’s Divine Comedy wherein it acted as a synonym for contemporary. Importantly, it was used to compare the present with the past, with the present faring poorly compared to the past. Simply put, the use of modern was a coded criticism of the present.

It was only almost a century later, around the 1430s, that modern was used in southern Europe’s Romance languages to show the past in poor light and congratulate the present. As for English, Scottish Poet William Dunbar is credited for using it first in his Poems wherein the word was used to show the present in positive light while remaining tight-lipped about the past.

The adversarial pitting of the past and the present with the balance tilting in favour of the latter occurred in English in the sixteenth century when modern referred to “someone who takes part in the tastes and cares of his age, and is opposed to all conservatism”. While Prof. Seed’s paper captured the antagonism introduced between the past and the self-congratulatory present by the use of modern, she did not touch upon the relationship between European colonialism, the introduction of coloniality and the code embedded in the word “modern”. To understand this aspect of modernity and its colonial undertones, one has to refer to the literature on decoloniality wherein scholars such as Catherine E. Walsh and Walter D. Mignolo have captured the compound concept of modernity/coloniality, its use by colonizing powers on colonized societies, and their continuing effects on postcolonial societies and the rest of the world.

The literature on decoloniality itself declares that decoloniality was born in response to this all-pervasive Western-normative notion called “modernity” whose hegemonic use by colonizing powers as well as colonialized native elites in postcolonial societies has systematically isolated and ostracized indigenous traditions and knowledge systems in the very societies of their birth. In fact, modern has been used to shame the native into abandoning her traditions and push her into adopting the colonizer’s worldview. So much so, that the word “traditional” is hurled by colonialized natives themselves at native/indigenous worldviews as a pejorative to indicate parochiality and rigidity. This is precisely why decoloniality is indigeneity’s response to coloniality, to take back its identity and to declare its continued existence and validity in the face of an ocean of “modernity”.

The effect of modernity is that native onto-epistemological systems have been “otherized”; they are “alternatives” to the “modern mainstream” and must prove themselves on the anvils of the latter, which they will never succeed at because the coloniality/modernity matrix is designed to exclude indigenous perspectives. Despite its outward proclamations of open-mindedness, dialogue and diversity, the colonial DNA of modernity actively resists and ousts indigeneity. It refuses to accord indigeneity the respect of an equal and uses time as the weapon to question the very relevance of the indigenous point of view. Clearly, modernity effectively represents the weaponization of time by the colonizer who negates and denies the histories and the lived experience of entire civilizations, such as Bharat’s, from the moment of his arrival.

This is what makes decoloniality an active framework, tool, way of life and perspective of resistance and “re-existence”, as Walsh and Mignolo call it. It takes its own contextual shape based on local experiences of hitherto colonized societies which are still dealing with the transgenerational after-effects of colonization through the pervasive presence of coloniality at every turn in every institution.

In the next few pieces, the author shall attempt to unpack these thoughts in greater detail with examples.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court and the High Court of Delhi.

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Pressing priority: Stringent laws for formulation of Intellectual Property Rights in sports law

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The sports have been considered as a very important part of the country. Various sports are played in-country at the international level. There was a time were sports was considered as an activity but, with the time, sports became a crucial aspect and it also demanded a need for laws related to it.

The main issue that stands with sports is Intellectual Property Rights. The intellectual property rights are very important to safeguard anything from being used by any non- compliant authority. The cases that have been registered in India concerning sports are not seen as much. However, every other country such as the USA has advanced the scope of the sport and is the need of our country.

The legislature, judiciary and the administration, all need to take severe steps to provide stringent legislatures concerning sports. Such legislation which would also provide for the IPR protection to the sports law in the country. This will resolve many issues related to broadcasting, copyrighting and some important rights saved.

AUTHORITIES OF SPORTS IN INDIA

Various governing bodies in India are not governed under the Ministry of Sports of India. the body is BCCI for cricket, Indian Hockey Federation, All India Football federation etc. all the bodies are individual and not concerned with the state. However, in the case of Zee Telefilms v. Union of India,it was considered by the Supreme Court that BCCI denied to a part of the governing authority but, this should not be the case as it is important to have a proper governing authority for the bodies. This was stated considering the importance of sports in the country.

For making the Sports Law a well-framed and a stringent one, it is important to remove the individuality of the authorities. Since there is not a proper code for governing sports in India, The National Sports Development Code, 2011 does the governing. It governs the National Sports Federation of the country. In the case of Indian Olympic Association v Union of India, the validity of the above-mentioned code was upheld by the Delhi High Court.

PREVAILING SPORTS LAW IN INDIA

The Constitutional entry 33 in List II makes it difficult for making sports as a national reform as it puts the sports in the list of the state legislature. At present, sports bodies are said to make rules and regulations for sports. Such teams constitute of some members that take over the authority and take actions over the errors that arise. Strict actions are taken against them.

Such bodies are considered for selecting members for the sports at different levels. The rights related to broadcasting and telecasting is also given by these bodies. This means that not the legislature but, the bodies. This means that everybody makes rules on its own and does not coordinate with each other. This can lead to severe problems and the infringement of the rights by a third party too.

It’s not the sports law that is presently prevailing in the country but, the authorities that prevail over the rules and rules and regulations of the sports. The authorities that are at present are individual and therefore, they are away from the legislations and the governing authorities of the Central Government.

THE NEED FOR IPR IN SPORTS

Every commodity of any activity such as art, sports etc needs branding to increase its value. The branding means that a name, logo, tagline that legally becomes reserved. The reservation is done through IPR laws. The laws provide different kinds of rights such as copyright, trademark and patent depending on the type.

Different kinds of IPR are needed for different sectors of sports. The need forthe patent is for reserving the rights of emerging new records in the field of sports. Similarly, the need forthe trademark is for the players who become successful and derive their team for a sport. The trademarking of such things will increase the loyalty of the viewers too. Designs are important to make sports assets more valuable.

Also, copyrights play a vital role. The broadcasting of sports is an important aspect. This is the way of earning revenue for further development. This also constitutes the main issue in the sports industry because sometimes, the unknown authorities broadcast the matches effecting the contracts of the sports authorities with the channels.

IPR LAWS IN THE COUNTRY: NEED FOR NEW LEGISLATION

Several IPR laws in India act prevail in the country for the different kinds of Intellectual Property Rights. These laws provide for the guidelines and the rules and regulations concerning intellectual property rights. However, some points lag in them concerning sports. The changes needed under sports in the laws are as follows:

The Copyright Act, 1957- the act consists of all the information related to the copyrights, rules, regulations and other essentials. These are not being collectively followed in the sports field and there arises the problem. The amendment can be done in the act adding “sports” as an important definition in the interpretation clause and in the other sections through which it becomes clear about the areas where sports need the copyright.

Trademarks Act, 1999- the changes needed in this act is also similar to that of mentioned for the copyright act.

The other minor acts such as the act of patents and design must also get the amendments done. However, these acts provide for the information regarding these intellectual property rights in general. The increasing diversity of the sports in the country, a separate legislature for implementing these copyrights is needed. The legislature can be implemented to safeguard different aspects of sports.

The legislature can be implemented in the following way:

• The interpretation clause having the definition of all the important terms related to sports.

• The provisions having the procedures to get the rights reserved.

• The items and the procedures related to sports that need intellectual property rights.

• The punishments also need to be mentioned for giving punishments to the people not following the law.

• The miscellaneous part concerning the powers and authorities.

In this way, proper central legislation can be formed that can look after the sports in the country. This will prevent frauds and unwanted consequences.

NEED FOR STRINGENT SPORTS LAW

The laws in India concerning laws are much backward in comparison to laws in the USA, France and other countries. The reason for the same might be less importance given to the legislature of sports and derogatory powers of the authorities. The IPR Laws exist in the country but, they need minor amendments. However, this is not the only backlog that exists. The implementation of the existing laws is also not proper. The reason might be the absence of the single governing authority.

The division of powers to the different authorities make it difficult to implement all the rules in the same way. It is important to have a central legislature that also mentions the powers and limitations of such authorities. This will help in keeping a check over the activities of such bodies. This will ensure that all the authorities are following their duties.

The main impact will on the IPR of sports. The legislation will keep a check about having all the important rights reserved. This will make sports a better reserved activity. Sports in India has made it proud many times and the players give their best. However, sometimes they face the problem due to the absence of the proper sports law.

The Chapter of IPR in the sports law which might include the criteria, compulsions, punishments and every needed step to make sports an IPR oriented area. This is for the assurance of the people who play and who invest money. The major problem in relation the broadcasting will also be resolved after following the minute steps. These steps can bring about major changes that will lead to reformation in sports in the country.

One of the most important feature of IPR in sports law is to prevent Ambus Marketing. The meaning of Ambus Marketing can be clearly drawn out from the landmark case of National Hockey League (NHL) vs. Pepsi-Cola Canada Ltd, where a controversy arose between Pepsi Cola and Coca Cola, where Coca Cola was appointed as the official sponsor of the tournament by NHL while Pepsi has broadcasted an advertisement claiming to be the official drink of the tournament, the judgement states that there can be no claim of passing-off in the present case by Pepsi-cola. Ambus Marketing can be broadly be classified as attacking in a latent way. Therefore there is urgent need to prevent the copyrights and trademark of the owners through proper registrations of logo, brand , marks etc. which are linked with the sporting event

CONCLUSION

The condition of the sports law is not so proper in the country. The authorities that are prevailing in the country are also not concerning the governmental authorities. This means that there is no inclusion of the government in the sports law. the Central Authorities that must be concerned with the sports are not included. This means that making the authorities the governmental bodies is the need of the hour. This is because the rules and regulations they make might contradict with each other and this will never lead to a solution of having stringent laws concerning the IPR and sports.

The need for IPR is much more that can be explained. The problems that are being faced in the present era can decrease the importance of sports in the country shortly. This is because the people whoa re-associated with it might be having some expectations regarding the reservation of their rights. The existing problems are showcasing the other side.

Therefore, the need for stringent sports law is more than the need for the amendments in the present IPR laws. This is because the enforcement of such laws will not be seen in such away before we have a central authority governing it. As soon as the authorities will have a hold above them to show them the right path, the decisions taken by them will be more accurate. The much need for sports law is increasing day by day along with the increase in the problems. Also, when fresh legislation will be drafted, the judiciary will have better look upon the issues of the sports and the amendments to it can be made in the coming future for dealing with the situations along with the time.

“Intellectual-property rules are clearly necessary to spur innovation: if every invention could be stolen, or every new drug immediately copied, few people would invest in innovation. But too much protection can strangle competition and can limit what economists call ‘incremental innovation’ – innovations that build, in some way, on others.”

—James Surowiecki

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The US Supreme Court appointment conundrum

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The United States of America has an intense ongoing debate concerning the elevation of Amy Coney Barrett to the Supreme Court. President Donald Trump’s four-year tenure ends shortly— the voting through postal ballots for instance, has already begun and the results of the elections will potentially be declared sometime next month. In the United States, unlike India (and the UK) Judges are purely political appointees.

Due to Justice Ginsburg’s death, there is now a vacancy on the Supreme Court. Out of the of 8 judges who are presently serving on the US Supreme Court, 5 already are perceived as ‘conservative’ and are Republican appointees, and three are ‘liberals’ and are appointed by the Democratic Party. Of the total nine Justices in the Supreme Court, two have already been appointed by Trump. If Justice Barret’s nomination is confirmed (which barring a moral awakening in the Republican Party, it will most likely be confirmed)— then Trump would have appointed 30 percent of the Supreme Court Justices in a mere four years of his Presidency. With the expected appointment of Justice Barrett, the number would go up to 6. There are four main concerns which her appointment would create.

The first concern that the presence of a majority of conservative judges pose would come in the form of docket control. The Court is quite selective in picking which cases to hear, and on average hears less than a hundred cases a year. For a matter to be heard by the judges, at least four out of the nine judges need to concur that the matter in question involves significant questions of interpretation and therefore merits the grant of a writ of certiorari. If any such matter does not find the concurrence of four judges, the writ of certiorari is cursorily denied. With the appointment of Justice Barrett to the US Supreme Court, there is quite a likelihood that the sharpy divided 5-4 would be a thing of past as the judges of the US Supreme Court not be particularly inclined to pick on matters which align the favour to the liberal society.

The second concern is that with her appointment, the Supreme Court now has the avenue to be politically conservative at best and outrightly favour the conservatives at worst. In the past, test cases have popped up before the Court which have lead to precedents that have lasted half a century. For instance, Plessy was a test case which swung the momentum for the separate but equal laws. It is not a fantasy to envisage a situation when a similar test case may be put before the Court, which might lead to overruling of a some of the most sharply dividing social issues such as the constitutional right to privacy, or the constitutional right of a woman to have an abortion. In the recent senate confirmation hearings, Justice Barrett was asked to share her opinions on abortion and the impending Obama Healthcare case. She deflected both these questions and did not answer them conclusively. She said that she would do what the law required her to do.

The third concern is the timing of this appointment. A little less than half a decade ago, upon Justice Scalia’s death in 2016, the then President, Barack Obama nominated Merrick Garland. Nonetheless then the appointment could not be finalised- largely owing to the timing of this happening in an election year. An unwritten convention was essentially formed. Four years hence, this was not seen as a concern (in some cases by those who had previously suggested that nominations should not be made in election years). This principle, then widely referred to as the ‘Biden rule’ clearly evaded Trump administration. It was also in breach of Ruth Bader Ginsburg’s dying wish- that her replacement not be made before the next elections.

Fourth, her appointment raises a broader question. Should judges be appointed by the legislative or indeed the executive at all? In a democratic setup it is crucial that a balance is maintained between the branches of the Government. If judges are also political appointees, it erodes a part of this principle. It also certainly breaches the adage that justice should not only be done, but also seen to be done. The irresistible inference is that the nominated judges come from a political nomination and thus the boundaries of separation of power and judicial independence are obscured. The United States appoints judges for life- thus the implications of any appointment are in all probability be felt for decades to come.

Neither the constitutions of India and the United Kingdom’s permit any political interference in the appointments process. In fact the Supreme Court of India outrightly rejected the National Judicial Appointments Commission. Similarly, removing judges from their posts is a cumbersome process that requires majority in both the houses of Parliament and is a power rarely used. No judge has been impeached till date. This ensures that the independence of the judiciary remains intact and proper checks and balances can be nourished.

It is also crucial to remember that whilst most organs of the state have inbuilt checks and balances- courts are mostly their own conscience keepers. They must lead by example-the constitution has given them tremendous powers and as the old adage goes, with great power comes great responsibility. The Supreme Court of the United States is responsible for its own image and its own conscience. It can be conscience of Dred Scott and Plessy orit can be the conscience of Brown v Board. Either way,the world will certainly be watching the developments in the worlds biggest exporter of democracy with close interest..

Raunaq Jaiswal is faculty member at OP Jindal Global University. he holds a LLM from Central European University, Budapest.

Vishavjeet Chaudhary is a barrister by training, currently Delhi based Advocate specialising in criminal law and constitutional law. He holds an LLM from the University of Cambridge.

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