Doctrinal Research in Law Field

Sk Jahangir Ali, Asst.Prof., Baurghat Law College

Basically research means investigation of the new thing and new thing means first-hand experience. Doctrinal research in law field indicates arranging, ordering and analysis of the legal structure, legal frame work and case laws to search out the new thing by extensive surveying of legal literature but without any field work.

Need of the Doctrinal Research

 To solve the legal problem with a new output within a short period of time with less expenses by closely examining and analyzing the legal doctrine, legal framework and case laws in a logical, systematic and scientific way .

 

Who is the Researcher?

In in the medical field the doctors and in the science field the scientists are the researchers. In the law field the judges, advocates, academicians and students are the researchers.

 

Research Laboratory

In the field of science for a research it needs research laboratory. But in the field of law for doctrinal research it needs only sound law library to do the table work.

 

Mode of Citation

Citation is very important for good research. Basically the researchers in the law field use to apply particular system of citation. Citation indicates the authority, authentication and the source of information.  The learner may follow any particular mode of citation like (1) Blue Book Mode of Citation, (2) MLA Citation and (3) ILI Citation. When the researcher taking any proposition of the work of other, the researcher must cite the work of other to show the sources for authenticity and for further study of the subsequent researchers. By citing the proposition the researcher also acknowledging the work of the other.

 

Every citation has its uniform style. For the easy understanding here is little a bit the focus of the Blue Book Mode of Citation. For broad understanding of any mode of citation, the learner should go through thoroughly any mode of the citation. The below mentioned citation is applicable as footnote.

 

Blue Book Mode of Citation

 

  • 1.      Book Published by a Single Publisher:

 

1.Author in capital letter, 2.Title of the book in capital letter 3. Page number 4. Edition with year

 

   DEVINDER SINGH, HUMAN RIGHTS WOMEN AND LAW  66 (2005)

 

FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW 205-06 (2d ed. 1911).

 

  1. 1.      Law Review Article

 

  1. 1.      The authors’ name full as it appears in the article, 2.The title of the article or headline (italicized),3.Volume number of the law review 4.The abbreviated name of the law review 5.The page number of the article’s first page  and 6.The law review’s year of publication.

 

Dan L. Burk & Julie E. Cohen, Fair Use Infrastructure for Rights Management Systems, 15 Harv. J.L. & Tech. 41 (2001)

 

Charles A. Reich, The New Property, 73 YALE L.J. 733, 737-38 (1964).

 

  1. 2.      Newspaper Article:

1. Author, 2.title in italic, 3 name of publication in capital, 3.date, and page

 

Ari L. Goldman, O’Connor Warns Politicians Risk Excommunication over Abortion, N.Y. TIMES, June 15, 1990, at A1.

 

Steven Greenhouse, Democrats Drop Key Part of Bill to Assist Unions, N.Y. TIMES, July 17, 2009, at A1

 

  1. 3.      Case:
    1. 1.      Name of the parties in italic, 2.volume number. 3.page number 4.year of decision in first bracket

 

Brown v. Helvering, 291 U.S. 193 (1934)

 

  1. 4.      Internet Document:

 

1) Author’s name, 2) Title in italic 3) Date of publication in first bracket, and 4) URL

 

Deborah L. Harrison, Victim of Human Trafficking or Victim of Research?(Sep.,2006),

http://www.childtrafficking.com/Docs/harrison_victims_research_oct07.pdf

 

Emily Bazelon, In Defense of the New Judicial Activists, Slate (Aug. 9,2010),

http://www.slate.com/id/2263347/.

 

Research Process

 

Step 1: Identifying the research area-The researcher has to choose a topic for the research.

 

Step 2: Introduction-The researcher will write the general introduction of the selected topic.

 

Step 3: Objective of the study -The researcher will discuss the objective of the study by highlighting the special reason to choose this topic for the research. The researcher should also highlight the present legal structure and its lacunas to take in hand this area for the study.

 

Step 4: Limitation of the study-The researcher should mention the limitation of the study.

 

Step 5: Research question-The researcher should formulate the logical research questions which he is searching.

 

Step 6: The researcher should formulate hypothesis which means general assumption and proposed explanation of a phenomenon .The researcher may prove his hypothesis or disprove it.

 

Step 7: Research Methodology-The researcher should discuss the research method.

 

Step 8: Survey of literature-The researcher must do extensive survey of the literature to establish

 

Step 9: Chapterization : The researcher has the freedom to establish his research chapter wise.

 

Step 10: Recommendation-Lastly the researcher should draw the recommendation and conclusion of his study

 

After completion of the research the researcher keeps the bibliography.

Bad System Of National Eligibility Test (NET)

By Sk Jahangir Ali,Asst.Prof,Balurghat Law College

 1. The minimum criteria for the post of Assistant Prof is either NET or Ph.D. as prescribed by UGC

NET and Ph. D is not same and not alike in nature.NET is only Eligibility Test and it’s not a degree like Ph.D. (which is treated as the highest degree) but NET is equated with Ph.D. at the entry level of Assistant Prof which is unreasonable because unlike is treated with alike and hence violation of Article 14 of the Constitution.

 

2. UGC notified for National Eligibility Test – December, 2012 for Junior Research Fellowship and Eligibility for Lectureship

As per of UGC prescribed regulation (Minimum Qualification for appointment of teachers and other Academic staff in universities and colleges and other measure for the maintenance of the standards in Higher Education) Regulation 2010, notified in the Gazette of India on 18.9.2010 that there is no notified post for Lectureship in it but UGC is conducted National Eligibility Test for Junior Research Fellowship and Eligibility for Lectureship for the entry of teaching profession and Research Fellowship. National Eligibility Test for Lectureship is ultravirous of the 2010 regulation because 2010 regulation is self-explanatory for Assistant Prof. at the entry level of teaching profession and not the post of lectureship.

 

3. UGC notified for National Eligibility Test – December, 2012 for Junior Research Fellowship and Eligibility for Lectureship and in this regard UGC fixed the scheme of the test that the Test will consist of three papers. All the three papers consist of only objective type questions.

Chance/luck factor plays a vital role to crack the National Eligibility Test and it erodes the general morals of the aspirant and deserving candidates that depth study is poorly needed and objective study is highly needed and bearer of the good luck are the winner and others are looser in this competitive market of NET. Further the sole objective method of evaluation fails to judge the subjective knowledge of the aspirant candidates. Basically teaching quality is measured by the parameter of the grasp of knowledge of the subject but this sole objective method totally fails to extract this great quality and virtue of subjective knowledge of a teacher which is traditionally treated as the merit of a good teacher in Indian Society. By the virtue of subjective knowledge in a particular subject in any branch of knowledge, a teacher is called the specialized teacher in any academic system and from whom the students obtain and inherit the special knowledge to well decorate him for the future journey of his carrier to face the global completion and to prove him the best in his academic and professional life. This objective method will be detrimental to the best interest of the students because in every society of the world the teaching quality is measured by the parameter of the grasp of knowledge of the subject, manner of presentation and to satisfy the students query in a simple and logical manner. The flavour of a lecture comes from the thorough knowledge of subjective and objective as well, but not from the one way traffic of objective knowledge in the road of higher education system and it must need two way traffic to run the sound academic road of higher education for the nourishing and flourishing of the best interest and future carrier of a student in a country.

4. Present marking criteria of NET

The chance memo of objective test and its marking criteria has diluted the academic standard and excellence in the society. This system bears a harmful effect in the society and students’ interest will be hampered as because there is no guarantee that a candidate having NET would be a good teacher. On the other hand there is possibility that a person without having NET can be a good teacher.

It is de facto proved in Indian society that the bright students throughout their academic life fervently unsuccessful to crack the NET. Such bright students always bears brilliant academic performance with brilliant marks but somehow is unsuccessful in NET and so their hard lalour, brilliancy and creativity is prevented by the baseless NET and the nation at a large suffers a lot because this talented candidates are not invited in the entry level of Assistant Prof because they are Non NET. It also has been found that a large number of students who ever had not been in the first row of brilliant performance in their student life but somehow cracked the NET and this fact does not prove that NET qualify person is eligible and fit for academic as because this NET is just like an effort and chance and it is not the test to bring out the hidden talent of the students .Further this NET is creating tension in the mind of the aspirant candidate who are always too good to produce qualitative output in the academic sphere but this types of students if fail in the mechanical OMR sheet base test of NET, it does not prove that this good student is a bad one. Further the mechanical OMR sheet base test of NET is failure to evaluate the real talent and teaching quality of a student. Hence it is against the notion of Art 21 of the Constitution.

5. NET 2012 June and cut off marks

Throughout the process and policy of cut off marks and subsequently shifting from this standard is vague and ambiguous and against the rule of Natural Justice.

6. NET 2O12 Dec and best 15 % criteria

UGC notified that best 15% shall be taken and in this regard it can be said that why UGC is cutting the aspirant candidates only who has appeared for Dec 2012 NET because in June 2012 there was no such tough criteria. This 15% is also ambiguous because 15% of what NET or JRF? It has not been clearly mentioned by UGC.

7. NET and mechanical process

There is no need to conduct NET exam to find out the good teacher. The expert Professors in the academic field is self-sufficient to find out the good academician from the main stream of the education system by constituting a reasonable and transparent search committee.

8. Objective base NET and unfair means

The objective system of NET carries in itself the bad outlet of unfair means. It is very easy to manage the answer in hall by unfair means.

9. NET in law field

Law is an open ended field and the logical argument of a law student can not be kept and confined only on objectivity test of NET.

Law is n professional degree and LL.M degree has it distinct character that it is just like M.Phil(10+2+5+2/10+2+3+3+2) in comparison to other subjects and NET on law is also unreasonable.

Part iv, Schedule iii, Clause 20 of The Bar Council of India Rule (2008), fixed only LL.M for lectureship and the UGC demands NET. So both are contradictory in nature.

 

Judicial Response On Bandh

Sk Jahangir Ali,Asst.Prof,Balurghat Law College

“Bandh” is a Hindi word which means “closed.” In India it has become a norm for political parties and organizations to call for ‘Bandh’s (shutdown) when they want to be heard.( Is ‘Bandh’ Constitutional or Unconstitutional in India? available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2212917).More than a decade after the Kerala high court ruled against the enforcement of hartals in 2000, Calcutta high court on Thursday directed the state administration to ensure normal life against forcible shut down on February 20 and 21 when 12 trade unions have called a strike. The administration has been asked to keep all essential services, including courts, running during these two days. While upholding the right to work that has taken a back seat in Bengal where trade unions have been flaunting the right to protest only, a division bench of Chief Justice Arun Mishra and Justice Joymalya Bagchi directed the director general of police to deploy adequate force at all points in the state – roads, railway tracks, railway stations, schools, colleges, market places – to remove blockades. Taking a step ahead, the bench wanted the administration to see to it that no one, willing to work on these two days, is prevented from joining duty. Allaying fears of disruption and damage to property, the division bench held those who called the strike liable for the disruption or damage, and observed that organizations calling the strike will have to compensate for the loss. The bench also directed all police control rooms to remain active on those days to avert “unlawful and illegal” activities. While passing the order, the division bench took note of the Supreme Court order, the order of the Kerala high court, and the preceding orders of the Calcutta high court and other high courts that had ruled that calling bandhs is unconstitutional. (Ensure normal life on bandh: Court,available at http://timesofindia.indiatimes.com/city/kolkata/Ensure-normal-life-on-bandh-Court/articleshow/18508995.cms).No force can be applied to observe the bandh, it was held.( No force can be applied to observe bandh: High Court, available at http://www.thestatesman.net/index.php?option=com_content&view=article&id=443636&catid=35).On 6th January, 2010 Gauhati High Court declared that “Bandh” is illegal and unconstitutional. It violates citizen’s fundamental rights. Chief Justice Jasti Chelameswar and Justice Arun Chandra Upadhyay in the light of a 1997 Supreme Court order upholding a Kerala High Court’s judgment declared bandhs are illegal. Gauhati High Court gave the Judgment after hearing two separate public interest litigations (PILs) which were filed by two citizens in 2005, seeking declaration of “bandh”s as illegal and unconstitutional in Assam and Meghalaya. The petitioners told that frequent “bandh”s affect the economy and education.(The Telegraph ,7th Jan 2010) In 2004, the Bombay High Court fined the Shiv Sena and BJP Rs 20 lakh for organising a bandh in Mumbai to protest bomb blasts. The court permits general strikes which protest against a specific establishment. But, they do not support total strike.(Open Magazine, 14th Aug 2010).In a landmark decision in Bharat Kumar , a full bench of the Kerala High Court has declared “Bandhs” organized by political parties from time to time as unconstitutional being violative of the fundamental rights of the people. The court refused to accept it as an exercise of the freedom of speech and expression by the concerned party calling for the bandh. When a bandh is called, people are expected not to travel, not to carry on their trade, not to attend to their work. A Threat is held out either expressly or impliedly that any attempt to go against the call for bandh may result in physical injury. A call for Bandh is clearly different from a call for general strike or hartal. There is destruction of public property during bandh.The High Court has directed that a call for bandh by any association, organization or political party and enforcing of that call by it, is illegal and unconstitutional. The High Court has also directed the sate and all its law enforcement agencies to do all that may be necessary to give effect to the court order. The Supreme Court has accepted the decision of The Kerala High Court. The Supreme Court refused to interfere with the High Court decision. The Court has accepted the distinction drawn by the High Court between a ‘bandh’ and a strike. A bandh interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing loss in many ways. (Bharat Kumar K. Palicha v State Of Kerala, AIR 1997 Ker 291).In Ranchi Bar Association v. State Of Bihar , following the Apex court decision mention above, the Patna High Court has ruled that no party has a right to organize a “Bandh” causing the people by force to stop them from exercising their lawful activities. The Government is duty bound to prevent unlawful activities like bandh which invades people’s life, liberty and property. The Government is bound to pay compensation to those who suffer loss of life, liberty or property as a result of a bandh because of the failure of the government to discharge its public duty to protect them. (AIR 1999 Pat 169).In appropriate cases, even the organizers of the bandh may be directed to pay compensation. Any organization interfering with the functioning of the courts commits contempt of court and can be punished accordingly. A peaceful strike which does not interfere with the rights and properties of the people is however not illegal. In the instant case, the High Court did award compensation against the State Government for loss of property and death of a person during the bandh for failure of the authorities to take appropriate action and provide adequate protection to the people’s life, liberty and property. The Government failed to discharge its public duty to protect the people during the bandh. (Ibid) .Supreme Court’s judgment in T.K. Rangarajan vs. State of Tamil Nadu (2003), declaring the right to strike is illegal, and ‘bandh’ is unlawful.

Taking a serious note of various instances of large-scale destruction of public and private properties in the name of agitation, bandhs, hartals and the like, suo motu proceedings were initiated by the Supreme Court in Destruction of Public & private properties , In re case ,[ (2007)4 SCC474.] After perusing various reports filed two committees were appointed ;one headed by a retired Supreme Court Judge, Justice K.T.Thomas(K.T.Thomas Committee), and other headed by Mr. F.S.Nariman, a senior member of the legal profession(Nariman Committee).Both the Committees submitted their reports separately. After considering the reports of the two Committees and hearing the matter, the Supreme Court held the recommendations of the Thomas Committee are wholesome and need to be accepted. To effectuate the reports of the two Committees and adding teeth to the enquiry, the following guidelines are to be observed as soon as there is a demonstration organized:

 

1. The organizer should meet the police to review and revise the route to be taken and to lay down conditions for a peaceful march of protest;

2. All weapons, including knives , lathis and the like should be prohibited;

3. All undertaking should be provided by the organizers to ensure a peaceful march with marshals at each relevant jurisdiction;

4. The police and the State Government should ensure videography of such protests to the maximum extent possible;

5. The person-in-charge to supervise the demonstration should be SP(if the situation is confined to the district) and the highest police officer in the State, where the situation stretches beyond one district;

6. In the event the demonstrations turn violent , the officer-in-charge should ensure that the events are videographed through private operators and also request such further information from the media and others on the incidents in question;

7. The police should immediately inform the State Government with reports on the events , including damage , if any , caused by the police; and

8. The State Government should prepare a report on the police reports and other information that may be available to it and should file a petition including its report in the High Court in question to take suo motu action.

 

Kindly Be An Advocate

Sk Jahangir Ali,Asst.Prof,Balurghat Law College

Most of the final year LL.B students of today want to get a job and they are not interested to do practice because they don’t have ‘God father’ and they would face problem to stand in this field. They thought that practicing field is very struggling field and it takes a lot of time to stand in this field. My point of view is that practicing field is the most charming field and advocacy is the noble profession. Advocates are just like demi God because justice comes from ‘Heaven’ through the help of Advocate. Social change, social revolution and social evolution come through the hands of advocates .So dear students please change your mindset. It is not true that you people always need ‘God father’ to get establishment in this field. It is not always true that the son/daughter of advocate has the monopoly in this profession. Just you need a good senior to learn the practice. Many Senior Advocates and advocates refer to the junior advocate and they praise their abilities and brilliance. I would also like to tell you people that in every field there is struggle. Listen, Ram Jethmalani and Arun Jetly, Harish Salve, Mukul Rohatagi and Abhishek Manu Singhvi etc are not built in a day. Just keep patience and put your tenacity in practicing field and one day you also will get good result. Look! No pain, no gain. Low risk low gain, high risk high gain. Practicing field is just like learning plus earning and sky is the limit of earning. Learned Advocates Salve, Rohtagi and Manusinghvi earn at Rs. 25 Lakh per day! Only practice can bring out your hidden talent in You.

 

INTROSPECTION TO BE A PRACTICING ADVOCATE

1. Are you an independent thinker?

2. Are you a confident and fluent speaker?

3. Do you like using language both to speak and to write?

4. Do your friends choose you to speak up for them?

5. Do you like to analyze problems and work out solutions?

6. Do you remain in control of yourself when you are angry?

7. Are you not easily intimidated?

8. Do you believe the strong should protect the weak?

 

INDEPENDENT PROFESSION

Dear you all, lawyers belong to an independent profession in two senses:

1. Advocates are not subordinate to the Government or to anyone else. Advocates are not dependent to any authority or anyone .They have their freedom to time and movement and are not bound by official time like the service man. Advocates always discharge their independent high standard responsibilities to the society at large.

2. Lawyers are ‘social engineer’ and they deal with all kind of problems of people from all sections of society, unlike say, doctors who are confined to medical problems or engineers who are confined to technical problems. Excellence Advocates have no limits to interpret the law for social, economic and political justice. Only advocates are called Learned. No other profession gets this dignity.

 

LAWYERS AND LEADERSHIP

Abraham Lincoln, the great American President during the American Civil war was a lawyer, and so was Robespierre, the great French leader during the French Revolution, Lenin, the great leader of the Russian Revolution of 1917 was a student of law. It is very relevant to say here that Barack Hussein Obama II, the President of United States has great law background. He worked as a civil rights attorney in Chicago and taught constitutional law at the University of Chicago Law School from 1992 to 2004. Prominent freedom fighters in India also belonged to the legal fraternity and played a leading part in the framing of Constitution of India. Gandhiji, Pandit Nehru, Dr.Ambedkar,Alladi Krishnaswami Iyer, K.M.Munshi to mention just a few. A best leader is the best pleader. Presently seventy five of the 543 members of the Lok Sabha and 73 of 244 members of the Rajya Sabha are lawyers in India. Present prominent politician lawyers in India are Arun Jethly,P Chidambaram,Sushma Swaraj,L.K Advani,Kapil Sibbal,A.Raja, Ram Vilas Paswan, SM Krishna, A.K Antony.

 

Examination of Section 66A of the Information Technology Act

Technology changes the dimension of the society. Obscenity in electronic form, morphing  of images, defamation, text bullying, stalking, spamming, unsolicited emails, criminal intimidation, extortion, public mischief, insult, threat to cause injury have penetrated in this modern society with the help of cyber technology. Under this back drop the legislative body incorporated section 66 A under the Information Technology Act. The Information Technology Act, 2000 was amended in 2008. The amended Act which received the assent of the President on February 5, 2009, contains section 66A.

Section 66 A of the Information Technology Act, 2000 runs as under:

“66A. Punishment for sending offensive messages through communication device, etc.-Any person who sends, by means of a computer resource or a communication device,—

(a)    any information that is grossly offensive or has menacing character; or

(b)    any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or

(c)     any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation.— For the purpose of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.”

 

Area of controversy:

Free speech is the life blood of a democracy. Now the free speech is becoming un-free due to vague section in Information Technology Act.  Section 66 (A) provides for a jail term of up to three years for anyone who uses a computer or any other communication device to send information that is grossly offensive, menacing’, causes annoyance or hatred. Section 66(A) fails to define the term grossly offensive and annoyance. Under the banner of the word grossly offensive and causes annoyance police can arrest any person because it gives the police unfetter power to arrest anyone in this modern technological age. It is very true that the mental ability of tolerance and annoyance differ person to person, place to place and time to time. Different persons with different mental structure have their different level of annoyance.An April Fool joke ca not also get exemption under Section 66A of the Information Technology Act.

Under this purview it can be said that Section 66 is vague and hence violative of Art 14 of the Constitution. Unfetter power of the police affects the very right of freedom of speech and expression under Article 19(1)(a) of the Constitution. Threat to public order, defamation, incitement to offence, contravening decency and morality, committing contempt of court, etc. are listed in Article 19(2) as grounds to limit freedom but not the matter of grossly offensive and annoyance, menacing character or causing inconvenience, danger, obstruction or insult. Right to life and personal liberty is a guaranteed right under Article 21 of the Constitution and by the virtue of the Section 66A the police gets the unfetter power to arrest any person to consider a tweet or blog ‘grossly offensive’ or ‘of menacing character’, or causing ‘inconvenience, annoyance, danger, obstruction or insult’, is also a great threat to Article 21.

 

Conclusion:

From the above noted observation it can be said that Section 66A of the Information Technology Act is in conflict with Article 14,19(1)(a) and 21 of the Constitution as because Section 66A  absolutely  provides the police with the power to arrest any person under the banner of the word ‘grossly offensive’ or ‘of menacing character’, or causing ‘inconvenience, annoyance, danger, obstruction or insult’ after considering  e-mails, SMSes, blog, vblog, tweets, image, sound(VoIP). It is the need of the hour to amend this draconian section of the Information Technology Act.

A Gross Copyright Violation by Photocopying Of Entire Books : A Socio-legal Study

educationBy Sk Jahangir Ali

Introduction

The photographic copying of books and other materials is a modern technique that started at the beginning of the 20th Century by the advancement of science and technology. Since then, photocopying has become the most popular mechanism of physical reproduction of documents, materials etc. Direct reproduction of the entire work of the author such as entire book is against the provision of the copy right law . Most of the student tends to do so without abiding by the “fair use doctrine” of the copy right law. The common picture in Bengal is that students borrow books from libraries and then get these photocopied from the photocopier and kept the books at the institution from where they borrowed it.

Objective of the study

The objective of the study is to investigate the reasons behind the photocopying of the entire books by the students in Bengal at the age group of 18-25.

Statement of the problem

Majority of the students at the age group of 18-25 in Bengal tend to photocopying of entire books randomly. It suffers a lot of economic loss to the publishers and original authors of the books.

Research Methodology

The research is carried on by both doctrinal and non doctrinal methods. By doctrinal method the researcher tried to analyze legal proposition, legal framework and case law in a logical and systematic manner .Under the non doctrinal method the researcher adopted the qualitative method and data is collected by open ended questions in semi-structure interviewing to 200 respondents who are students under the age group of 18 years to 25 years in Bengal to investigate the reason of photocopying of the entire book selected on the basis of ‘purposive’ sampling. The questions asked to the respondents are listed here

Research question

1. Why do you make a photocopy of the entire book?

2. What book do you like to photocopy entirely?

Meaning and definition of photocopy

The Encyclopedia of Librarianship defines, “Reprography” as the “art of producing single or multiple copies of documents whether by photographic or other means.”

The Focal Encyclopedia of photography defines, “Reprography” as “a general term applied to photographic techniques of reproducing flat originals such as documents, drawings, photograph and printed matter. Its scope includes silver halide and non silver coping processes such as microfilming and Xerographic office copies and photomechanical reproduction.”

Section 2(x) of the Copy Right Act,1957 says that “Reprography” means ‘the making of copies

Of a work, by photocopying or similar means’.

The new Webster’s Dictionary of the English Language International defines “a photographic reproduction of a document, illustration and so on.”

The Little Oxford English Dictionary defines “photocopy” as “a photographic copy of something produced by a process involving the action of light on a specially prepared surface.”

Legal Provision

Copyright law is, in the essence, concerned with the negative right of preventing copying of physical material existing in the field of literature and the arts. Section 14 of the Copyright Act 1957 says that the exclusive right of the author is to reproduce the work in any material form, to perform the work in public and to communicate the work to the public.

If any other person does any of these acts without proper authority he could be guilty of infringement of the copyright of the work.[Section 51(a)(1)]. In the case of Fateh Sing v. O.P Singhal [AIR 1990 Raj 8] the Court held that where a person has copyright in literary work ,and any other person produces or reproduces the work or any substantial part thereof in any material form , he is committing an infringement of copyright.

According to section 22 of the Copyright Act,1957 copyright subsists in any literary work within the lifetime of the author and sixty years of his death. So the term of copyright is life plus sixty years and after that there is no copyright on it.

While section 52 of The Copyright Act 1956 permits photocopying of literary works for limited private uses such as research, review or criticism. What happens, many a time is that the entire book is photocopied including the cover pages which is a gross violation of Section 14 of the Copyright Act 1956. Section 63 of the Act says that any person who knowingly infringes or abets the infringes of a copy right in a work shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees and provided that where the infringement has not been made for gain in the course of trade or business, the court may impose a sentence of infringement for a term less than six month or a fine less than fifty thousand rupees. By the virtue of section 64 of this Act any police officer, not below the rank of sub-inspector, may if he satisfied that an offence under section 63 in respect of infringement of copy right in any work has been ,is being ,or is likely to be committed, seize without warrant, all copies of work ,and all plates used for the purpose of making infringing copies of the work, where found ,and all copies and plate so seized shall ,as soon as practicable, be produced before the magistrate.

Findings of the Study

From the interview the researcher came to know from the respondents the following reason of photocopying the entire books:

1.Cheapness

2.Less enforcement of law

3.To avoid the hardship to purchase book and tend to easy process of photocopying

4. Allowing photocopying to the Xerox operator nearby campus even some time inside the college campus by the college authority

From the interview the interesting point came out that the students like to photocopy entirely the following books:

1.Popular book

2.Reference book

Conclusion and recommendation

Photocopying is random here because of less enforcement of the law and there is no watch dog to check the random photocopying of books. Proper enforcement of law is highly needed to protect the copy right violation and economic loss of the publisher and the original author.

 

 

Shaping of the society by applying sociology of law

international trade lawsBy: Sk Jahangir Ali

The beauty of sociology of law is that there is no specific, concise and precise definition of the subject. Various jurists define the subject in various ways. According to Horvath, Sociology of Law deals with the relations between the facts of life and judicial rules of evolution.

On the other hand the definition of Ehrlinch is to some extent different from the above proposition. According to Ehrlinch, at the present as well as at any other time, the centre of legal development lies not in legislation, nor in juristic science, but in society itself.

Generally sociology of law deals with the study of the human beings, the study of the social phenomena with the changing nature of the society. Rather to say sociology of law is about reconciliation between social expediency and legal expediency.

Weber’s Sociology of Law has for its main theme the analysis of transformation of law from a “charismatic” to a state of rationalization. The transformation is followed up in various legal phenomena: in the gradual distinction of public from private law, which is however, a distinction shifting with the development and principle of government, in the evolution from the decision of individual cases to general principles and eventually a systematization of law; in the development from the early status contract to the elastic and formless purpose-contract; from the autonomous legal personality of the Middle Ages to the modern state monopoly of the creation of legal personality.

Sociology of law gives a legal aspect whatever the circumstances is present at the present society. It suggest about the economic reform, legal reform and new legislation for the changing needs of the society. It always says about the impact of social change and legal order.

More broadly it can be said that sociology of law is about the biological study, social study, economic study, anthropological study, legal study and reconstruction of the law on the post modernization.

In a work of Donand Black, it has been said that sociology of law trying to reconcile the gap between the reality and the ideal.

Sociology of law is the study of relationship which the legal system of a society has with its other subsystems. The bounds of relationship between sociology and law are indeed deep and organic. Sociology deals with the study of social relationship, value, norms and attitudes. All of these form the foundation of law. The mutual dependence of law and sociology has therefore to be give due recognition. As the established pattern of social change, the laws must also change; otherwise a lag will be created which would generate tension in entire social system.

Today the world becomes a global village. Some laws have been formulated on the basic of global perspective. The internationalization of the national economy comes into the picture. A lot of scientific invention is going on and the nation of free and fair trade has tied up the global economy.

Every country has its own social values and the globalization policy creates a new tension all over the world. The tradition values are facing problem. By the virtue of the globalization new socio, economic, political problems are knocking of the doors of national and international level.

The sociology of law tries to solve various conflicting problems in the arena of postmodernism.

In today’s era, politically the issues between nationalism and transnationalism are really one of the clashing political ideals.

In the era of globalization, a lot of problem comes to the picture. There is wide gap between the rich and the poor. The British follows the capitalistic economy approach, on the other hand India follows the labour intensive economy. Globalization has not removed personal and regional income disparities. The gap between rich and poor is widening. We need a new global vision that ensures the gains from globalization are more widely shared.

 

 

The Weakness Of The Indian Federalism

Indian Federalism,Sk Jahangir Ali

The founding fathers of the Indian Constitution drafted a federal constitution with having the federal features namely (1) Distribution of Powers, (2) Supremacy of the Constitution, (3) A Written Constitution, (4) Rigidity and (5)Authority of Courts. The founding fathers adopted these characteristics from the constitutions of U.S.A, Canada, Australia and the Government of India Act 1935.

Distribution of Powers: – The Indian Constitution distributed the legislative, administrative and financial powers between the Union and the State in the scheme of Union List consisting of 97 subjects, State List consisting of 66 subjects and Concurrent List consisting of 52 subjects. The Union has exclusive power to make laws on items mentioned in the Union List and the State on the State List. A government can not transgress to the other field. The Union and the States are competent to legislate on Concurrent List but in case of conflict the Central legislation must prevail over the States.

Supremacy of the Constitution:-The constitution of India is the paramount document and the Union and the States are under the mandate of the constitution.

Written Constitution:-Indian constitution is a written document .It consists of 444 Articles divided into 26 Parts and 12 Schedules in accordance with ’92nd Amendment’ Act,2003.The constitution written and so supreme.

Rigidity:-The amendment of the constitution is not flexible .Any amendment of the above mentioned Lists need concurrence of the Union and the majority of the States.

Authority of Court:- The Indian constitution established the Supreme Court of India to guard the constitution and to interpret the letter and spirit of the constitution to settle the dispute between the Union and States or the States inter se by its Original Jurisdiction under article 131 of the constitution.

These above mentioned features designed to make cooperation between the Union and the States and to keep the independency in each field.

To protect the unity, integrity and sovereignty against the external aggression and internal disruption the framer of the constitution engrafted some provision which tend to a strong centralization tendency. According to article 3 of the constitution formation of the new States and alteration of areas, boundaries or names of the existing states goes the Parliament. Article 155 says that the Governor of a State shall be appointed by the President by warrant under his hand and seal. By the virtue of article 156 the term of office of Governor depends during the pleasure of the President. Article 248(1) confers exclusive power to the parliament to make any law to any matter not enumerated in the Concurrent List or State List. Article 249 deals with the concept of the power of Parliament to legislate with respect to a matter in the State List in the national interest. Article 250 envisages the power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation. Article 253 empowers the Union to make any law for giving effect to international agreements .Article 254 says if any provision of the law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which parliament is competent to enact , or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List ,then, the law made by the Parliament, whether passed before or after the law made by the Legislature of such State, or as the case may be ,the existing law, shall prevail and the law made by the Legislature of such State shall, to the extent of the repugnancy, be void. Regarding this nature of the constitution Dr. Ambedkar said, “I think it is agreed that our Constitution notwithstanding the many provisions which are contained in it whereby the Centre has been given powers to override the Provinces (States) nonetheless is a Federal Constitution.’’

Modern trends of decentralization:-The allocation of financial resources between the Union and States is unequal .The Union enjoys the substantial sources of revenue but the States are being assigned insufficient sources of revenue. The States are suffering from deficiencies of discharging the responsibilities of maintaining law and order, social development works as because at the modern time the expenditure is very high to do the work according to the needs of the States but the allocation of revenue is inadequate to satisfy the interest of the States. The States are obligated to submit their five years plans before the Planning Commission which is aquasi political body created by the Centre .The grants of the Planning Commission is discretionary. Too much dependency of the States for financial resources on the Centre creates a rift of the federalism.

Regionalism is a factor to weaken the federal structure. All over India a lot of regional parties are claiming new states to satisfy their regional needs, culture, trait and language which is very unhealthy for federalism. The regional parties are also claiming much more autonomy which strikes the bed rock of federalism.

The emergence of co-alliance government in Indian political scenario creates weakest Central Government which is under pressure of the co-alliance parties. If any initiative of the Central government nominally affects the interest of the co-alliance parties, it threatens to withdraw the support.

Illiteracy, poverty, multiple parties, lack of strong national leader, ill educated political leader, criminalization in politics and horse trading in parliament are bad for federalism.

 

 

Bio-piracy from India in this intellectual property rights regime: An analysis

Sk Jahangir Ali

The world wide economic integration by the GATT and the TRIPs opened the mind of the national and international policy markers to protect their bio-diversity from the free access and bio-privacy. The Biological Diversity Act 2002, The Protection of Plant Varieties and Farmers’ Rights Act, 2001 and The Patent Act 1970 as amended by the Patents (Amendment) Act 2005 in India have not realized the menance of bio-privacy, ‘re-colonization in the making’, ‘global village global tillage’ and the offspring of WTO.

India is a signatory of WTO and TRIPs and The Patent Act of India is being influenced by the TRIPs. Section 3 of the Patent Act, 1970 deals with the concept of what are not inventions. Sub-Section (j) of section 3 as added by Act 38 of 2002, sec. 4 (w.e.f. 20.05.2003) says:

“Plants and animals in whole or any part thereof other than micro-organism sent including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals.”

Article 27(3)(b) of the TRIPs says:

“Parties may exclude from patentability plants and animals other than micro-organism, and essentially biological process for the production of plants or animals other than non-biological and microbiological process. However, parties shall provide for the protection of plant varieties or any effective sui generis system or by any combination thereof. This provision shall be reviewed four years after the entry into force of this agreement.”

According to the Indian Patent Act, the geographical origin or the anticipation of the invention in local or indigenous knowledge constitute grounds for opposition or revoking a patent. Section 25 of the Patent Act 1970 says about the opposition of the patent. Sub-section (j) and (k) of see 25 runs as under:

See 25 (j) “that the complete specification does not disclose or wrongly mentions the source or the geographical origin of the biological material used for invention.”

See 25(k) “that the invention so far as claimed in any claim of the complete specification is anticipated having regard to the knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere,….”

Section 64 of the Patent Act, 1970 deals with revocation of patents. See 64(p) and (q) has been inserted by Act 38 of 2002, see 31 (w.e.f. 20.05.2003) which are the repetition of section 25(j) and (k).

The current international framework of the intellectual property law favours for the investment protection and the commercial exploitation of the biological resources and the related knowledge.

It is important to emphasized the Article 27(3)(b) of the TRIPs to protect the indigenous knowledge by a wide interpretation. International Union for Protection of New Varieties of Plants or UPOV deals with the concept of the protection of plant varieties grant of exclusive property right to the plant breeders on the basis of distinct, uniform and stable for the appropriation of biological resources and related knowledge but it does not recognize farmers as a breeders. The main philosophy of UPOV is to protect the interest of the corporate biotechnology and powerful seed companies.

At the present scenario to protect the threat of bio-privacy it is needed in India to evolve its own the generis system on community intellectual rights of farmers and not to follow the UPOV nodal.

The legislature with the objective of incentive to breeders and motivation of private sector for the development of the new varieties of plants recognized the right of the plant breeders and included farmers as breeders in respect of their contribution made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties. The present law is being rectified by providing farmers right at equal footing of the breeder but the main problem lies on the fact that the farmers can not easily obtain property right, benefit sharing on the financial compensation and the intellectual contribution not taken into account.

The Bio-diversity policy broadly encapsulates survey of bio-diversity, national data base, in situ and ex situ conservation, sustainable utilization, indigenous knowledge system, benefit sharing, people participation, international cooperation, research, education, training and extension. Failing in line with B.D. Policy, the Bio-diversity conservation Bill entail information sharing system, chronicling and documentation of bio-wealth, farmers and breeders right is tantamount to CBD – but the grey area of it is about the silence of conservation and sustainable use of biological resource. Another point is that the farmers have no right to allocation of property right.

The fundamental objectives of CBD are – (1) conservation of biological diversity (2) sustainable use of biological diversity and (3) right to sovereignty and equitable sharing of benefit among the indigenous community. The main problem of India is that CBD is directly learned by WTO and TRIPs on the binding character of the treaty to a country.

TRIPs provides for the IPR protection on the basis of monopoly and capitalistic approaches for the patent holders. The effective sui generis under the TRIPs indicate only the patent protection.

Our legislature should, therefore, refurbish the IPR regime over biological resources including the plant variety protection under the paramount consideration of human right to food, health, environment and socio-economic complexities and peculiarities of the country tune with global integral relation, monetary balance, free and fair trade to achieve, “the greatest good of the greatest number.”