CHILD WITNESS

BY:ANUJA AIYAPPAN

CHAPTER 1

1.1 Witness: Meaning and Scope

Witnesses and document are the chief sources of evidence. A witness is a person who gives testimony or evidence before any court. As a matter of fact every person is competent to give evidence but in certain circumstances he may not be compelled to give evidence. As per Bentham, witnesses are the eyes and ears of justice. Often oral evidence is needed to clarify or help determine the rights and liabilities of the parties in a legal proceeding.

Witnesses can be the people or experts with valuable input for the case. It is through witnesses and documents that evidence is placed before the court. Even the genesis of documents can be proved by the witnesses. Thus, the law has to be very clear with regards to certain issues like who is a competent witness? How many witnesses are needed to prove a fact? Can a witness be compelled to answer every question posed? How can the credibility of the witnesses be tested? Whether a witness can refer to notes to refresh his memory and what are the judges standing with respect to the witnesses?

1.1.1 Who is a Witness?

A witness is a person who gives evidence or testimony before any tribunal. Section 118 of the Indian Evidence Act, 1872 generically lays down who may testify. Prima facie, the section says that everyone is competent to be a witness as long as they can understand and respond to the questions posed and the Court is expected to pay special attention to the capability of the witnesses. This section is not concerned with the admissibility of the testimony of the witnesses or their credibility; it deals with competency of parties to be witnesses. A witness has a privilege i.e. a right to refuse to give answer to the question. There are certain persons who enjoy certain privilege and they cannot be compelled to testify.

The competency of a witness is the condition precedent to the administration of oath or affirmation, and is a question distinct from that of his creditability when he has been sworn or has been affirmed.

1.1.2 Competency of Witnesses

A witness is said to be competent when there is nothing in law to prevent him from appearing in court and giving evidence. Whether a witness is competent, depends on his capacity to understand the question put to him and the capacity to give rational answers thereto. By competency to give evidence is meant that there is no legal bar against the person concerned to testify in a court.

The Section 118 of the Indian Evidence Act, 1872 makes all persons as competent to testify the questions put to them or from giving rational answers to those questions (a) by tender years, (b) extreme old age, or (c) disease. Thus understanding is the sole test of competency. The test of competency is the capacity to understand the questions and to give rational answers. The court has to ascertain, in the best way it can, whether from the extent of intellectual capacity and understanding he is able to give a rational account of what he has seen or heard or done on particular occasion.

A witness may be competent and yet not compellable he may have the power of understanding the question and may be able to give rational answers thereto, but may not be subject to the authority of the court; that is to say the court cannot compel him to attend and depose before it. In general a witness who is competent may be compellable. Again a witness is competent and also may be compellable yet the law may not force him to answer certain questions. This is called restricted compellability or privilege.

Thus, it can be said that every person is competent to give evidence provided he satisfied the test of the being able to understand the questions which are put to him, and he is in a position to give rational answers to those questions. Any person who satisfies these tests shall be competent to testify. A child, deaf and dumb persons can give evidence.

CHAPTER 2

2.1 Child Witness

Under Section 118 of the Indian Evidence Act, 1872 , a child can be competent witness. Before admitting or recording the statement of a child, the court must satisfy itself that:

1. The witness understands the questions, and

2. Ascertain in the best way it can, whether from the extent of his intellectual capacity and understanding he is able to give a rational account of what he has seen, heard or done on a particular occasion.

If a person of tender years can satisfy the requirements, his competency as a witness is established. This prevention is based on the presumption that children could be easily tutored and therefore can be made a puppet in the hands of the elders. In this regard the law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge. To determine the question of competency courts, often undertake the test whether from the intellectual capacity and understanding he is able to give a rational and intelligent account of what he has seen or heard or done on a particular occasion. Therefore it all depends upon the good sense and discretion of the judge.

Although recognizing that children may be less likely than adults to give reliable testimony, the courts have been reluctant to hold that, because of age, children below the designated age are per se incompetent to testify. Rather, the competency of child witnesses of any age must be established on a case-by-case determination of whether the child’s testimony will enhance justice.

Do children make good witnesses, and are young children as reliable as older ones? Are they as reliable as adults? Are they more prone to lies or suggestion or errors of perception? Is it possible to identify features or characteristics which distinguish truthful child testimony from that which has been invented, or planted in the child’s mind by others? Can more be done to ease the stress or distress which giving evidence may involve?

Children are the most vulnerable of all witnesses. Several factors influence children’s memory capacity, including the child’s age, psychological development and intellectual ability, the complexity of the event, their familiarity with the event and the delay between the event and the time at which the event is recalled. The intimidation of potential child witnesses by interviewers remains a problem, and it is possible that false suggestions might be implanted in a child’s mind. Children could be easily tutored and therefore can be made a puppet in the hands of the elders. In this regard the law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge. Although children’s evidence has historically been seen as weak, experimental studies have shown that when children are allowed to recall information “freely,” or when information is elicited through the use of general questions, even very young children can give evidence that is as accurate as that given by adults.

Two major concerns about child witnesses are their competence and credibility as witnesses. Although, children’s actual ability to provide accurate and reliable evidence is critical to their role as witnesses, so too is their perceive reliability. Unless children are perceived as reliable witnesses, their evidence will not be effective and may not even be heard. Even if children are capable of giving accurate evidence, their evidence will be of limited value unless they are perceived as credible witnesses by those dealing with them: lawyers, prosecutors, police and judges.

In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, the Court examined the provisions of Section 5 of the Indian Oaths Act, 1873 and Section 118 of the Indian Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. The Court further held as under:

“…..It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate….”

In Suresh v. State Of Uttar Pradesh, it was decided that a child as young as 5 years can depose evidence if he understands the questions and answers in a relevant and rational manner. The age is of no consequence, it is the mental faculties and understanding that matter in such cases. Their evidence, however, has to be scrutinized and caution has to be exercised as per each individual case. The court has to satisfy itself that the evidence of a child is reliable and untainted.

2.2 Legality and Admissibility of Child Witnesses

All witnesses who testify in court must be competent or able to testify at trial. In general, a witness is assumed to be competent. This presumption applies to child witnesses. It is well known that the attitude of children to reality and truth differs widely from that of adults and that, while some young children will make fairly reliable witnesses, it is absurd to expect true testimony from others though older.

The traditional view about child witness is reflected in the United States Supreme Court’s 1895 decision in Wheeler v. United States. In that case the court held that the 5-year-old son of a murder victim was properly qualified as a witness:

“That the boy was not by reason of his youth, as a matter of law, absolutely disqualified as a witness, is clear. While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence o f the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath.”

In Rameshwar v. State Of Rajasthan, the accused was convicted for the rape of an eight year old girl. The basis of this conviction was the statement made by the victim to her mother. On appeal the Sessions Court held that the evidence was sufficient enough to form the basis of a moral conviction, but was legally insufficient. When the matter reached to the High Court, it was held that no doubt the law requires corroboration but here this statement itself is legally admissible as corroboration. Later, the High Court granted leave to appeal and therefore the matter reached to Supreme Court, where it made observations with regard to the question of admissibility of the statement. The assistant Sessions judge certified that she did not understand the sanctity of an oath. But there was nothing to show whether the child understood her duty to speak the truth. The Apex Court observed that the omission to administer an oath goes only to the credibility of the witness and not his competency. Section 118 of the Indian Evidence Act, 1872 makes it very clear that there is always competency in fact unless the court considers otherwise and since there is nothing as to suggest incompetence, therefore Section 118 would prevail. It is desirable that the judge or magistrate should always record their opinion as to whether the child understands his duty to speak the truth and also to state that why they think that ,otherwise the credibility of the witness would be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. In the situations where the judge or the magistrate doesn’t make any express statement as to this effect then inferences has to be collected from the circumstances of the case. here, the assistant sessions judge omitted to administer the oath to the child as she could not understand its nature, but still continued to take her evidence , shows his intention to the fact that he was satisfied that the child understands her duty to speak the truth. Moreover, the accused also never raised any objection as to the same, at that stage. Though, Section 114 of the Indian Evidence Act, 1872, requires that every statement of an accomplice must be corroborated but a vast majority of cases show that it is not a very hard and fast rule, especially in rape cases and that too of a child of tender year. On the basis of the above observations the Supreme Court had affirmed the decision of the High Court.

The Supreme Court has held in Dalip Singh v. State Of Punjab, that if it appears from the version of teenaged children that it is so truthful that can be rightly believed then the arguments like children were tutored or had given the prosecution version parrot like and so on are not acceptable. It has been held by the Supreme Court that an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118 of the Indian Evidence Act, 1872 . It will be observed that there is always competency in fact unless the court considers otherwise. It has been further held been further held that an omission of the court of the authority examining a child witness, formally to record that in its opinion the witness understands the duty of speaking the truth, though he does not understand the nature of an oath or affirmation, does not affect the admissibility of the evidence given by that witness.

In State of Maharashtra v. Dama Gopinath Shinde, it was held by the Supreme Court that a girl of seven years of age has lost her neighbour and playmate, the deceased, while they were playing together. Later on the dead body of the deceased was recovered. It was held by Supreme Court that the rejection of testimony of child solely on the ground that it was not possible for a child of that age to remember what happened three years ago was not proper.

In Suresh v. State of Uttar Pradesh case, it was held that a child who is not administered oath due to his young years and is not required to give coherent or straight answers as a privileged witness can give evidence but this evidence should not be relied upon totally and completely.

Thus the competency of a child to give evidence is not regulated by the age but by the degree of understanding he appears to possess and no fixed rule can be laid down as to the credit that should be assigned to his testimony. The question depends upon a number of circumstances such as the possibility of tutoring the consistency of the evidence, how far it stood the test of cross examination and how far it fits in with the rest of evidence.

 

CHAPTER 3

3.1 Competency of Child Witness

The competency of children as witnesses presents an ancient problem faced by every system of jurisprudence. The courts are aware that children often witness crucial events associated with pending litigation. And, likewise, the courts are cognizant of the limitations of children on the stand. A tendency to interweave imagination with fact, to recite testimony propounded by parents and counsel, to unconsciously invoke the sympathy of a jury, to prejudice a defendant’s case by the propensity of a jury to rely too heavily upon a child’s testimony are a few of the complexities that have disturbed the legal profession.

In order to be a competent witness, a child has to have sufficient intelligence. The child has to be able to remember and describe events and must understand the difference between the truth and a lie. Even very young children can be competent witnesses. Various factors affect the reliability or a child’s testimony. In determining a child’s competency to testify, the courts have tended to place primary emphasis o n the child’s ability to differentiate truth from falsehood, to comprehend the duty to tell the truth, and to understand the consequences of not fulfilling this duty. This inquiry has often followed a line of questions on Voir dire directed toward ascertaining a child’s religious and moral beliefs. The child need not, however, understand the legal and religious nature of an oath.

While necessary, adherence to the truth is not sufficient to establish competency. There is also a necessity that the child has cognitive skills adequate to comprehend the event he or she witnessed and to communicate memories of the event in response to questions at trial. If a child’s view of the truth bears little resemblance to reality, it will also have little value to the Trier of fact. Thus, competency to testify implies some measure of competency at the time of the event witnessed as well as at the time of the trial. The child must be able to organize the experience cognitively and to differentiate it from his or her other thoughts and fantasies. Furthermore, the child must be able to maintain these skills under psychological stress and under pressure, real or perceived, from adult authority figures to shape his or her responses in a particular way. Thus, level of suggestibility is an important factor. The assessment of a child’s competency to testify may require a rather extensive and formal assessment of the child’s cognitive, moral, and emotional capacities on Voir dire.

In State v. Allen, it was observed that the burden of proving incompetence is on the party opposing the witness. The Court considered five factors when determining competency of a child witness. Absence of any of them renders the child incompetent to testify. They are:

  • 1. An understanding of the obligation to speak the truth on the witness stand;
  • 2. The mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it;
  • 3. A memory sufficient to retain an independent recollection of the occurrence;
  • 4. The capacity to express in words his memory of the occurrence; and
  • 5. The capacity to understand simply questions about it.

The plain and simple test of competency is whether a witness can understand the questions being posed to him and answer accordingly in a rational manner. Competency of witness to testify is actually a prerequisite to him being administered an oath. In Rameshwar v. State Of Rajasthan, it was held that an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not to his competency.

In M.Sugal v. The King, it was decided that a girl of about ten years of age could give evidence of a murder in which she was an eye-witness as she could understand the questions and answer them frankly even though she was not able to understand the nature of oath.

Child witness as far as defence is concerned is dangerous witness. Because once tutored they stick on that version in any circumstances. The court can check for a level of understanding in the child witness and then decide to refrain from taking evidence from them. Before putting a child into witness box a Voir dire test must be conducted by the Court. As a matter of prudence courts often show cautiousness while putting absolute reliance on the evidence of a solitary child witness and look for corroboration of the same from the facts and circumstances in the case.

3.1.1 Assessment of Voir dire

Voir dire is a phrase in law which comes from Anglo-Norman. In origin it refers to an oath to tell the truth, i.e., to say what is true, what is objectively accurate or subjectively honest in content, or both? The word voir (or voire), in this combination, comes from Old French which states, “that which is true”.

Under this test the court puts certain preface questions before the child which have no connection with the case, in order to know the competency of the child witness. Some examples of the questions asked under this test can be that regarding their name, father’s name or their place of residence. This prevention is based on the presumption that children could be easily tutored and therefore can be made a puppet in the hands of the elders. In this regard the law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge.

To determine the question of competency of the child witness the courts, often undertake the test whether from the intellectual capacity and understanding he is able to give a rational and intelligent account of what he has seen or heard or done on a particular occasion. Therefore it all depends upon the good sense and discretion of the judge. When the court is fully satisfied after hearing the answers to these preliminary questions, as to the capability of the child to understand these questions and to give rational answers thereto, then further court starts with substantial questions which are considered as evidences.

In Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, the Supreme Court observed that the evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross- examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence on an oath and the import of the questions that were being put to him.

In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, the Apex Court dealing with the child witness has observed as under:

“The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”

Children are seen as more likely than adults to accede to leading or suggestive questioning, and to revise their testimony in response to coaching, threats, and challenges to their integrity. They were also seen as much less likely to be able to distinguish fantasy from reality. Thus judges and magistrates have ultimate control over the admission or exclusion of evidence. Special rules have attended the reception of children’s testimony because their evidence has traditionally been considered to be inherently unreliable. Although the restrictions on the admissibility of children’s evidence have been eased in many jurisdictions, their competence to testify is generally still subject to judicial discretion.

A child need not understand the special importance that the truth should be told in court or understand every single question or give a readily understood answer to every question. Provided that she could understand the questions put to her by the prosecution and the defence and could provide understandable answers, she was competent.

CHAPTER 4

4.1 Credibility of Child Witness

As a matter of prudence courts often show cautiousness while putting absolute reliance on the evidence of a solitary child witness and look for corroboration of the same from the facts and circumstances in the case, the Privy Council decision in R v. Norbury, where the evidence of the child witness of 6 years, who herself was the victim of rape, was admitted. Here the court observed that a child may not understand the nature of an oath but if he is otherwise competent to testify and understand the nature of the questions put before him and is able to give rational answers thereto, then the statement of such a child witness would be held to be admitted and no corroborative proof is necessary. The Supreme Court in Tahal Singh v. Punjab, observed:

“In our country, particularly in rural areas it is difficult to think of a lad of 13 year as a child. A vast majority of boys around that age go in fields to work. They are certainly capable of understanding the significance of the oath and necessity to speak the truth.”

In this regard a very important observation has been made in Jarina Khatun v. State of Assam, that the Trial Court is the best judge in the matter of deciding the competency of such a witness as there, the child himself appears before the court. Therefore it has an opportunity to see him, notice his demeanours, record his evidence and thereafter on scrutiny accepted his testimony.

The Supreme Court, in State of Madhya Pradesh. v. Ramesh & Anr., has examined the law relating to deposition by Child Witnesses. While examining the law on the aspect the Court has observed that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the Court and there is no embellishment or improvement therein, the Court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition.

In the 90’s a trend emerged where the Courts started recording their opinions that child witnesses had understood their duty of telling the truth to lend credibility to any evidence collected thereof. The Supreme Court has also commended this practice. If the court is satisfied, it may convict a person without looking for collaboration of the child’s witness. It has been stated many a times that support of a child’s evidence should be a rule of prudence and is very desirable.

4.2 Need for Corroboration

Though Section 114 of the Indian Evidence Act, 1872, requires that every statement of compliance must be corroborated, but a vast majority of cases show that it is not a very hard and fast rule, especially in cases which involve children of tender age. There is difference between “what the rule is” and “what has been hardened into a rule of law”. In such cases the judge must give some indication that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.

In Panchhi & Ors. v. State of Uttar Pradesh, the Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that “the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.”

The Court, in State of Uttar Pradesh. v. Krishna Master & Ors., held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

In Mangoo & Anr. v. State of Madhya Pradesh, the Apex Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness.

In a very recent case State of Madhya Pradesh. v. Ramesh & Anr., in which a trial court based its conviction on the evidence given by an eight-year-old daughter of a murdered man, the Supreme Court had stated that:

“…..There is no principle of law that it is inconceivable that a child of tender age will not be able to recapitulate the facts in his memory…………… A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in future………….. In case a child explains relevant events at the crime (scene) without improvement or embellishment, and the same inspire the confidence of the court, his deposition does not require corroboration whatsoever. The child at tender age is incapable of having any malice or ill-will against any person……”

 

CHAPTER 4

5.1 Conclusion

Children present a special challenge when they become participants in the legal system. The child witness presents a double truss for those conducting a forensic interview. In my opinion young children produce a higher percentage of accurate and relevant information in a free recall situation in which they are merely asked to tell in their words everything they remember, without prompts, cues, or suggestions.

But young children are gullible and vulnerable to making serious errors in their court testimony. When children are questioned skilfully and appropriately and supported and encouraged to tell their story in their own words, they can provide accurate and forensically useful information. But when questioners use suggestive, leading, specific, and coercive questioning to get the child to confirm pre existing biases about abuse, there is a risk of eliciting false statements from the child.

Several factors influence children’s memory capacity, including the child’s age, psychological development and intellectual ability, the complexity of the event, their familiarity with the event and the delay between the event and the time at which the event is recalled. Children could be easily tutored and therefore can be made a puppet in the hands of the elders.

Though a child may be competent witness, a closer scrutiny of its evidence is should be done before it is accepted. The competency of a child is not consistent and her statement probably may be drawn upon her imagination sometimes. So the deposition of a child witness may require corroboration, but in case if the deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court should reject his statement partly or fully. However, an inference as to whether a child has been tutored or not, can be drawn from the contents of his deposition. Thus it can be concluded that a child witness is a privileged witness and their competency and credibility is to be decided by the court which may differ from case to case.

BIBILIOGRAPHY

Books Referred

1. Batuk Lal, The Law of Evidence, (19th ED. : 2010) (Central Law Agency Allahabad)

2. Ratanlal and Dhirajlal, The Indian Evidence Act, (19th ED. : 2010) (Central Law Agency, Allahabad)

3. S V Joga Rao, Woodroffe & Ameer Ali’s The Law of Evidenc (Vol.4, 17th ED. : 2002) (Lexis Nexis Butterworths Wadhwa, New Delhi)

Articles / Websites Referred

1  www.childwitness.com (Last Visited: Mar. 27, 2011).

2  http://childwitnesstoviolence.org (Last Visited : Mar. 20, 2011)

3  David B. Battin & Stephen J. Ceci, Children as Witnesses: What We Hear Them Say May Not Be What They Mean, http://www.docstoc.com/docs/51991065/Children-as-Witnesses-What-We-Hear-Them-Say-May, (Last Visited : Apr. 03, 2011)

TABLE OF CASES

1. Akhoy Kumar Mukherjee v. Emperor, AIR 1919 Cal 1021

2. Bagdi Ram v State of Rajasthan ,1984 Raj LW 10

3. Changan Dam v. State Of Gujrat, 1994 CrLJ 66 SC

4. Dalip Singh v. State Of Punjab, AIR 1979 SC 1176

5. Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516

6. Govind Balvant Laghate v. Emperor, AIR 1916 Bom 229

7. Jarina Khatun v. State of Assam, 1992 Cr LJ 733

8. Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292

9. M. Sugal v. The King, 1945 48 BLR 138

10. Magan Lal Radhakrishnan v. Emperor, AIR 1946 Nag 173

11. Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959

12. Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460

13. Panchhi & Ors. v. State of Uttar Pradesh, AIR 1998 SC 2726

14. Prakash Singh v. State of Madhya Pradesh, AIR 1993 SC 65

15. R v. Norbury, (1978) Crim. LR 435

16. Ram Jolaha v. Emperor, AIR 1927 Pat. 406

17. Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54

18. S Rasul v. Emperor, AIR 1930 Sind 129

19. Sataji Nathaji v. State, 1975 Mah Cr R 278

20. State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967)

21. State of Delhi v Vijay Pal, (1980) 1 SCC 582

22. State of Karnataka v. Shahbuddin,1955 Mad LJ 748 (Cr)

23. State of Madhya Pradesh. v. Ramesh & Anr, 2011 (3) SCALE 619

24. State of Maharashtra v. Dama Gopinath Shinde, AIR 2000 SC 1691

25. State of Uttar Pradesh. v. Krishna Master & Ors., AIR 2010 SC 3071

26. Suresh v. State Of Uttar Pradesh, AIR 1981 SC 1122

27. Tahal Singh v. Punjab, AIR 1979 SC 1347

28. Wheeler v. United States, 9 U.S. 523 (1895).

 

 

Environment Protection : A Challenge Before Legal System

By – D.B. THENGADI

INDEX 

1. ENVIRONMENT PROTECTION (Speech of D.B. Thengadi)

2. ANNEXURE 

(i) Major Treaties 

(ii) Selective Legislations, Remedies to Public & Some Important Cases 

(iii) Common Convictions in Stockholm Proclamation 

(iv) The Scope – Environmental Law 

(v) Education

3. THE WOUNDED EARTH – Story on Rio Earth Summit 

 

 

ENVIRONMENT PROTECTION 

 

The Government of India is conscious of this fact that is why they hastened to announce that from the new year no Government Vehicle, including DTC buses, that do not conform to the pollution control norms will be allowed to play on Delhi’s roads. Both the Ministry of Power and Coal have been served notices reminding them of the need to conform to the pollution control norms by the thermal plants by the new year. The Thermal plants have been asked only to use washed coal to bring down air pollution to acceptable levels. The Environment Ministry declared that it is in the process of setting up task forces to check pollution with the environment of the community and checking of Government vehicles in Delhi will be carried out from January 3. Similar action in the case of private vehicles will follow soon. The name of the pollution control board will be changed to Environment Protection Authority.

 

Why this sudden awakening on the part of the Central Government? It indicates the urgency of the topic, though for us in this country the subject has been almost equally urgent from the Vedic times.

 

The world was surprised to learn from Srimati Indira Gandhi at Stockholm Conference, 1972, that ecology-conciousness prevailed in India right from the Rig Vedic period. More than foreigners who attended the Conference as delegates, our own self alienated, anglicized intellectuals resented this approach of their Prime Minister. In the past, in keeping with the tradition of the land, legislation for protecting environment formed part and parcel of the Dharma which stood for ever-changing socio-economic order in the light of the unchanging, eternal universal laws. Every Smriti has dealt appropriately with the problem of ecology treating it as an integral part of the scheme for Dharma of the Society. It is interesting to note that advocate-authors Chaturvedis have tried to elucidate the Dharma of ecology as suited the requirements of the modern times.

 

The movement for law on environment gathered momentum after the Stockholm declaration. The Bhopal Tragedy, the (swaroopan silent) valley affair, the long-drawn struggles over Narmada and Tehri Dam, DDA’s Yamnua Plan and some other local agitations have further intensified the popular demand for perfect legislation on environment.

 

The number of environmentalists is growing. Some of them, like Sunderlal Bahuguna and Medha Patkar are known for their contribution and competence outside the country also Consequently, there is the recent growth in literature n this subject. For example, books like “Emering Right to Environment” ‘An Indian Experience by G.M. Jariwala; ‘Law of Consumer Protection, Principles and Practice” by Vandana Shiva; Journals like “ Down to Earth” and speeches made and article written by environmentalists from time to time.

 

For lawyers in this country this is not a new subject. The cognizance of this problem was taken by laweven during the British period and a few of the Acts contained provisions slightly helpful for protection of environment. During the post independence period this trend continued and the law paid greater attention to this aspect even before the Stockholm Conference of 1972. Earlier, the environmental legislations lay scattered in about 40 central and State Acts.

 

There is an excellent, comprehensive book, “International Law and The Environment” by Brinie and Boyle (1992). “Environmental Law” by Simon Ball and Sthart Bell; “Environment Protection” edicted by Paras Diwan; Lal’s “Commentaries on Water, Air Pollution of Environment (Protection) Laws”; “Law on Protection of Environment and Prevention of Pollution (Central of State)” by Chaturvedi’s (Dr. R.G. and Dr. M.M.; are same of such important books. ‘Legal Control of Environmental Pollution’ (S. Agarwal ed.); Ramakrishna. ‘The Emergence of Environmental Laws in the Developing Countries: A case study of India”; ‘In arrangement of National Parks and Sancturies in India: A Status Report – such documents are also helpful for proper understanding. Then, They have with them the table of cases on environmental law in India. (over and above these, when ever any legislation is passed, it is customary in our country to bring out expeditiously some bare commentaries on it. Such commentaries are helpful for immediate purpose).

 

Earlier the American law on noise (The Noise Control Act, 1972 of U.S.A.) had already received their attention, and now the comprehensive Environmental Response, Compensation and Liability Act of United States is also available. Not for blind imitation but as the helpful factor in evolving our own polices, European Community’s law and history, philosophy and current direction of environmental policy have become important for all third world countries. The “Mannual of European Environmental Laws” prepared by professors Alexandre Kess and Dinah Shelton furnishes us with chronological table of International and E C Documents, table of National Laws and cases, list of abbreviations and technical terms, etc.

 

For evolving a separate law on noise pollution, the American Law can be utilized, but with number of modifications. Britain was the pioneer in this field; its experience can be valuable for southern countries; but it should be simultaneously borne in mind that the British law on this topic suffers from anachronism because of the domination of conservalism in that country. Environmental laws in third World Countries, China, Japan, South America and Africa have not yet been available. Therefore, it is difficult to assess their relevance and utility under Indian conditions.

 

One general book “The Crisis of the Indian Legal System” by Upendra Baxi suggests some alternatives in development of law. The same can be helpful to some extent for removing the laeuna in our Environmental Law.

 

The interested and knowledgeable persons in the country are nowrealising that our law on environment is far from being perfect. The title for Djilas’ second book was 1 Unperfect Society’. By way of explanation Djilas said that he had deliberately avoided the use of the adjective ‘imperfect’, because that would have conveyed the impression that, according to him, society could at any time be perfect, that could never be. The implication of the term, ‘imperfect’ was that society could never be perfect, but efforts should be constantly made to minimize its imperfection as far as possible. The same holds good about every legal system also.

 

People are aware that the law is not the only instrument to achieve the desired goal. There are other useful non-legal measures also. For example, market mechanism for prevention of pollution by sending signals to consumers as to the true environmental cost of their activities, pressures from purchasers, consumers and share-holders, pollution taxes, tax incentives, recycling credits, levies on environmentally unfriendly activities; pressures through the supply chain and through investors and lenders etc. Tax levels, grants, or incentives have an indirect effect.

 

Most of all, general education of masses on the protection of environment is a must.

Nevertheless, the fact remains that law is the most important if not the only weapon useful for this purpose.

Ecology is the Natural Resources law on Environmental Balance or equilibrium.

 

In common parlance, environment means surroundings. Einstein said, “The environment is everything that is not me”. But in practical it has specific meaning, physical surroundings common to all of us, including air, space, water, land, plants and wild life.

 

It is necessary to remind the rules or the ruled that it is fundamental human right to live in an unpolluted environment and that it is fundamental duty of every individual to maintain purity of environment.

 

In India there is no independent Act to deal with the problem of noise pollution. No doubt the air (prevention and control of pollution) Act, 1981, has defined the expression “air pollution” to mean “any solid, liquid or gaseous substance (including noise) present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment” the fact remains that there is no comprehensive separate law on the problem of noise pollution. This subject is not taken up with the seriousness it deserves because as justice Krishna Iyer had said, the environmental pollution is still regarded as “a subject to halting legilation, hypocritical implementation and helping interpretation”.

 

Probably time is not yet ripe for setting up special courts to deal with environmental laws, or to create a special mental crimes. But various other measures deserves expeditious implementation.

 

Presently, damages are payable for injury to the person or lost to one’s property. But no provision against injury to environment. Liability for environmental harm should be located and punished, notwithstanding the opposition to such provision by vested interests.

 

Now it is generally appreciated that there is need to restructure the law and practice on the protection of air, water and land against pollution, and the protection of the eco-system, together with those ancillary issues which help to explain these areas, such as, public participation, access to information, remadies and procedures.

 

There is a need for a Regulation on Eco-Management, and auditing which should require a public statement of environmental performance, external verification procedures, and commitment to continuing improvements in environmental performance. (There should be environmental auditing firms and businesses).

 

Deserving special notice is the absolute absence of a law to tackle the twin problems of pollution, namely, the emission of the gases from the Power Stations, and the concentration of vehicular exhausts.

 

Attention needs to be given to protection of the cultural heritage. It is necessary to spell out the concept of ‘sustainable development’ under Indian conditions.

 

The term “Sustainable development”, taken from the report of the World Commission on Environment and Development ‘Our Common Future’, published in 1987 has led to the creation of an International sustainable development commission.

 

The people have come to realize that the current criminal law as applied to pollution problem in quite inadequate. To cite a single example, an imprisonment for a couple of months or a fine even if running into thousands, would hardly compensate the aggrieved or the injured.

 

The law under which stringent penalties have been provided for contravention of provisions which provides for imprisonment upto five years and find upto Rs. 1 lakh and in some cases imprisonment upto 7 years and find upto Rs. 5,000 per day is often ignored by executive authorities.

 

Wid powers have been conferred on the relevant authorities under these Acts which includes the power of entry and inspection for various purposes as per procedure prescribed in the Acts and power to take sample of effluents, etc., for analysis, prescribed procedure to be followed in connection therewith. Stringent punishment and penalties viz. imprisonment and heavy fine have been provided for contravention of the various provisions of these three Acts. But it nis widely known that these powers are often misused or not used at all.

 

Environmental Law remedies should be of two types (1) Remedies that are properly charactersied as administrative uin nature, and (2) Truly Criminal remedies that are kept for blatant cases of environmental vandalism.

 

There should be a specific edntry in the concurrent list of the seventh schedule of the Constitution, under the title ‘Environment’.

 

A Central law on noise pollution should be enacted.

 

Appropriate tax deduction incentives be gien.

 

It is advisable to compare definition of ‘occupier’ in environmental law and that under the Factories (Amendment) Act, 1987.

 

 

Professor Chhatrapati Singh, in his Article in “Legal Policy for the control of Environmental Pollution” has outlined the structural framework of various environmental laws under two heads. Chhatrapati Singh has also explained the functional basis of environmental laws. He has enumerated the deeper problems, in the legal policy, which require deeper consideration. His conclusion deserves serious consideration by this conference. General flaws in policy, principles and administration of the current laws-whether criminal or civil, are to be found in the drafting and implementation of environmental laws also, particularly specific-more specific- ‘definition’ of key terms such as ‘air pollutant’, ‘water pollutant’, ‘such contamination’, ‘such concentration’, ‘nuisance’, ‘environmental pollution’, ‘hazardous substance’.

 

Restitutive justice is a new branch of interpretative jurisprudence adding a new dimension to the cause of social justice. The Supreme Court has stemmed out of Article 32 a new jurisdiction to award compensation for alleviating the human suffering by action or omission of Govt. or of Corporate Bodies resulting in violation of the basic or natural rights of individuals.

 

It is the inalienable and fundamental right of man-good environment. Article 48-A of the Constitution enjoys that the State shall endeavour to protect and improve the environment. But the right to breathe should fall within the scope of right to life guaranteed under Article 21. Purety III of environment necessary to the right to breathe also finds place in the fundamental duties, in clause (g) of Article 51-A Part IV-A of the Constitution.

 

Pollution Control is a part of social justice. Directive Principles are only expansion of Article 14.

 

Public health is a part of social justice. Relevent Articles in Part IV of the Constitution: Article 41; Art 43; Art. 47; Art 48-A; Clause (g) of Article 51-A.

 

A comprehensive study of the area of action and the powers of executive and judicial authorities and the powers of the authorities created under the Water Act, the Air Act, and the Environment Act would reveal that there are vast areas relating to pollution which may not come within the ambit of the Acts and can, therefore, be dealtwith under the general poenal or preventive provisions, and allusion, may be relevant to the width of the comprehensive concept of nuisance.

 

In the wider sence of nuisance, pollution is nothing but species of nuisance.

 

In its causalgenesis, pollution is nuisance-oriented. Pollution is atmospheric nuisance, and, in that sence, it is covered by the larger notion of nuisance. (The terms ‘nuisance’ is not capable of exact definition Pollock C.B., in ‘Banford v. Turneky’ has observed (31L 23 292).

 

“I do not think that the ‘nuisance’ for which an action will lie is capable of any legal definition, which will be applicable to all actions and useful in deciding them.

 

Speaking generally, nuisance is “the unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it.

 

Nuisance may however, be distinguished from negligence or trespass. In India Pollution cases can usually be construed as admixture of nuisance and trespass.

 

Chapter XIV of the Penal Code, 1960, relates to “Offences affecting the public health, seafety, convenience, decency and morals’. Further, even obscenity whether visible or audible, wether recited or written, will amount to criminal nuisance.

 

According to experts, Section 290 of the Penal Code has been enacted to provide the punishment for ‘public nuisance ‘k jin cases not otherwise provided for. The width of the concept of ‘public nuisance’ under the Penal Code extends to number of offences, all of which must be taken as species of criminal nuisance. Out of the list of such nuisances, those having affinity with pollution proper are relatable to Section 277, 278, 284, 290 and 291. Section 268 of the Penal Code defines ‘Public Nuisance’. But there is no separate penal section prescribing punishment for the commission of ‘public nuisance’ as defined under section 268. That is why Section 290 has been enacted toprovide for punishment for ‘public nuisance’ in cases not otherwise provided for.

 

‘Nuisance’ considered as an offence is much wider in scope than pollution and extends even to cases of abstructions and a number of other annoyances. ‘Nuisance’ may be distinguished from ‘negligence’ and trespass speaking generally, ‘nuisance’ is the unlawful interference with a person’s use or enjoyment of land, or of some right overf or in connection with it.”

 

Section 133 of the Code of Criminal procedure is not repealed by the Air Act.

 

Nuisance in India is a subject common to civil and abnoxious to the community or to the individial member of it, for which some legal remedy may be found’. Any thing done which unwarrantably effect rights of others, endangers life or health, gives offence to the sense, violates the laws of decency, obstr4ucts the comfortable and reasonable use of property, may amount to nuisance. Injury must be real and not fanciful.

 

Nuisance: I) Public, ii) Private.

While takingh protection of environment into consideration, prevention of harm should be given priority. Greater emphasis should be laid on progressive adoption of laws that set standards for products or the processes by which they are made, rather than on discharges or omissions. The introduction of integrated pollution control, a process-based control, is necessary.

 

For prevention of future harm there should be progressive adoption of laws that set standard for products or the processes by which they are made, rather than for discharges or omissions. Introduction of integrated pollution control, a process – based control is necessary.

 

Strict cognizance should be taken of sulphurdioside ommisions, the dumping of sewage sludge in the sea and reductions in omissions from vehicles, acid rains.

 

The cheap option of incineation on dumping sewage sludge in the sea should be phased out.

The policy now is that waste reduction and education is to be preferred to recycling, and srecycling to disposal.

The minimization of waste should be given priority in future production methods.

 

The ‘wild beasst theory’ must be applied to (a) fire, (b) gas, (c) electricitym (d) explosives, (e) engines, (f) motorcar containing petrol (g) noxious fumes, (h) other dangerous things, such as, rusty wire or flagpole, poinsonous vegetation and chair-o-plate.

 

Apart form the devastating leakages of lethal gases, from carbide and fertilizer plants, a large quantity of the deadly substance is spewed forth by the main power stations in any town.

 

The law on town and country planning should take into consideration various means of disposing of waste, sewage disposal, incineration, landfill, discharge to rivers, m discharge to the sea and recyling.

 

Also the problems such as, abandoned water taps, dereliet land, discharges of toxle wastes and untreated sewage into estuaries and the sea, etc.

 

Protection of environment and protection of people are interlinked like regulation or radio activity.

 

Protection of environment includes not only pollution control but also other issues, such as, the retention of biological diversity and the preservation of landscape.

 

Problem of environment protection requires remedies Legal as well as scientific, technological, social and economic solutions (Environmental law is a separate discipline). Interrelatedness of problems should be recognized. For example, irrigation facilities producte salinity leading to land pollution. Industrial development causes pollution of land, m air and water. Over exploitation-increases burden on natural resources like land, forests and water. How cope with the escalated need for shelter involving housing schemes, for fuel, fodder and furniture. 100 million hectares of land, almost one third of total area, stands infected by degradation, erosion, salinity, alkalinity and wind erosion. Automobiles causing air and noise pollution. Deforestation resulting into uneven availability of water, exhibiting an alternating cycle of flood and draughts. Untreated human wastes in urban areas, create health problems

 

The decline in environmental quality is evidenced by increasing pollution, loss of vegetal cover and biological diversity, excess concentration of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threet to the support-systems. All motor vehicles including buses and trucks, three wheelers, etc. are known for smoke commission-level and carbon monoxide level, by contravening rules for test for smoke omission level and carbon monoxide levels for motor vehicles.

 

Protection of environmental pollution includes water, air, land and soil, forests, lakes, rivers, sea, wild life and other living creatures, and the inter-relationship which exists amongst and in between these elements-vis-human beings and other living creatures, plants, forests, property and micro-organism, etc.

 

Identity of the polluters-Cars, factories, powerstations, etc. Nature of the pollutant (e.g. radiation, leads, pesticides, CFCs, etc.) the targets being medium in which the threat manifests itself (e.g. air, water, land, etc.). The principle should be polluter pays’.

 

Obligations: 

 

It is difficult and inadvisable to disentangle our national policies or environment from global ones.

 

Environmental pollution is a global problem more on the premises that the atmospheric ocean is shared by the peoples of the nations. As Arthur C. Ster suggests, the aim has to be the welfare and the preservation of health not only of the nationals of a State but of man throughout the world, with the other objectives of protection of and preservation against damage to plant and animal life, prevention or damage to physical property and interference with the normal use and enjoyment thereof, provisions of visibility required for safe air and ground transportation, ensuring continued economic growth and development, and maintenance of an aesthetically acceptable enjoyable environment.

 

As L.N. Mathur said, the use of air has to be planned along substantially the same lines as the use of multinational rivers and water channels for the conservation of land water resources.

 

International issues of Environment are : (a) Global warning; (b) depletion of the Ozone layer; (c) the protection of the rain forest; (d) attempts to save the animals; (e) the control of hazardous substances and processes; (f) the minimization and management of waste; (g) the conservation of natural resources; and (h) protection of eco-systems.

 

There should be organized ‘watch-dog committees’ of citizens to keep constant watch on problems arising from time to time and region to region, for example a significant portion of the 15000 plants species and 75000 animals species activity on land and forests. India lost between 1951 and 1972-3.4 million hectares of Forest lands to dams, mining, new crop lands, roads and industries. It means an annual rate of deforestation of about 0.15 million hectares.

 

Deforestation, floods, famines and other inter-related facts should be taken into consideration in an integrated manner.

 

Even our sacred rivers like Ganga and Yamuna often appear in the news, under pollution head. It has also now been scientifically established that some kinds of polluted water can also adversely affect the fertility of the soil. Air pollution apart from being a source of various diseases is also threatening the very existence of ancient and historical monuments.

 

Various such problems should be identified alertly from time to time by such ‘watch-dog’ committee.

 

It should be a matter of pride and satisfaction for us that the problem of the protection of environment received attention of the members of the constituent Assembly, at that early stage.

 

The Indian Constitution is amongst the few in the world that contains specific provisions on environmental protection. The directive Principle of State Policy and the Fundamental Duties chapters explicitly the national comtunately, some extraneous phychological factores also played some role in the matter.

 

The authors of the ‘Environmental Law and Policy in India’ state:

 

‘The constituent Assemble that framed India’s Constitution did not specifically consider the question of whether parliament or the State Legislature should regulate environmental matters. Instead, the distribution of environmental subjects within the three lists was influences by the Govt. of wished to create a strong center and others who preferred to a decentralized versus a centralized federal structure prevaild over the issue of whether the central or state legislatives were better situated to regulate environmental matters.”

 

Number of complicated problems intensified such differences of opinion. For instance, floods which cause considerable hevoc in the plains may be the result of indiscriminate felling in the catchment areas under the control and jurisdiction of an entirely different province.”

 

When the Forty Second Amendment Act of 1976 a with its Article 48-A and Article 51-A was passed, the Lok Sabha rejected several amendments. One of them required the State to “Conserve and develop the water, soil and other natural resources”., while another proposed to ensure that the State’s efforts to protect and improve the environment would not harm tribal forest dwellers.” The rejected amendments of the Rajya Sabha proposed that the Article should also mention “mineral wealth” and require the Government to “undertake adequate and effective measures to check environmental Pollution.”

 

The 42nd Amendment also expanded the list of concurrent powers in the constitution. The amendment introduced a new entry “Pollution control and family planning”. While “forest and “Protection of wild animals and birds” were moved from the state list to the concurrent list.

 

Article 253 of the Constitution empowers parliament to make laws implementing India’s international obligations as well as any decision made at an international conference, association or other body. The Article apparently gives Parliament the pwer to enact laws on virtually any entry contained in The State List. Article 253, with its broad language, serves as an adequate handle for a court to uphold Parliaments’ powers to enact environmental laws.

 

In 1980, the Tiwari Committee recommended that a new entry on “Environmental Protection” b introduced in the concurrent list to enable the Central Govt. to legislate on environmental subjects. The committee’s recommendation was based on a note from the Indian Academy of Environmental Law which observed that there was no direct entry in the 7th schedule enabling parliament to enact comprehensive environmental laws. The note, however, did not consider parliaments’ power under Article 253.

 

Notwithstanding such difficulties, commendable progress has been made by the country in this respect.

 

There are many indications; for example, Article 39-A guarantees every citizen the right of access to the court. The right to a clean environment has been included by the Supreme Court in the definition of the right to life guaranteed to all citizens by Article 21. The right to breathe clean air and drink unpolluted water has now become as sacred as the right to life.

 

The Supreme Court has throughout the last few years expanded the horizon of Article 12 primarily to inject respect for human rights and social conscience in the corporate structure. Any new and innovative expansion of human rights is bound to disturb the status-quoist vested interests, but their arguments should not deter the court from widening the scope of human rights and expanding their ambit. Article 12 of the Constitution should not be presumed to obstruct this process of expansion. The General public also is srecently becoming aware of the valuable contribution of judiciary to the cause of environment.

 

In Agra pollution case the Supreme Court pulled up Indian Oil Corporation for not taking steps to control the environmental damages caused by the Mathura Oil Refinery especially to Taj Mahal. Many other important moves such as the Court’s directive on the relocation of Delhi’s noxious industries, the Court’s stem directive in the Delhi Ride case, have focused the attention of the people on the judiciary’s role in this respect.

 

In fact the environmental matters have been taken up in the Court since the days of Chief Justice P.N. Bhagwati in the early “80s” and other Brother Judges have made further important contributions to this cause.

 

Various cases mentioned in the Annexure show that our judiciary is alert but the magnitude of this problem. For example, P.N. Bhagwati C.J. impressed upon the Government of India to evolve a national policy for location of chemical and other hazardous industries in areas where population is scare and there is little hazard or risk to the community, and when hazardous industries are located in such area, every care must be taken to see that large human habitation does not grow around them. There should preferably be a green belt of 1 (one) to 5 KM width around such hazardous industries.

 

Population as base of huge industries conflicts eagerly with employment value of such industries, but as the High Court of Kerala has observed that where a workshop has been responsible for causing nuisance by air pollution and noise pollution, the mere fact that it proves livelihood to some persons, unmindful of consequences, is not a valid ground to justify causation of pollution (Madhavi V. Thilakam, 198).

 

P.N. Bhagwati, Chief Justice has aptly observed “where science and technology are increasingly employed in producing goods and services calculated to improve the quality of life, there is certain element of hazard or risk inherent in the very use of science and technology and it is not possible to eliminate such hazard or risk altogether. We cannot possibly adopt a policy of not having any technical or other hazardous industries merely because they pose hazard or risk to the community. If such a policy were adopted it would mean the end of all progress and development. Such industries, even if hazardous, have to be set up since they are essential for economic development and advancement of well-being of the people. We can only hope to reduce the element of hazard or risk to the community by taking all necessary steps for locating such industries in a manner which would pose least risk or damage to the community and maximizing safety requirements in such industries”.

 

(M.C. Mehta V. Union of India, AIR 1987 SC 965 (981) etc. many such cases can be cited to prove the point, and their list is given in the Annexure attached herewith.

 

But of particular importance is the spirit in which this subject should be considered by our law makers, lawyers and the judiciary. It is a matter of great satisfaction that appropriate lead in this matter is given by our judiciary in the field of law and jurisprudence, which has been a marked departure from the age-old tradition of our intellectual slavery. Dealing with the problem of hazardous industries, P.N. Bhagwati (C.J.) has declared in un-equivocal term that judgments of the British Courts need not be followed by us blindly, the conditions in our country are different from those in Britain. We should, therefore, have our own law and its interpretation, keeping in view our national scene.

 

The Supreme Court of India justified itself in departing from the Rule laid down in Rylands vs. Fletcher reported in 1868 LR 3 HL 330 for two reasons. Number one is the incapacity of the rule to cope with the liabilities of an industrialized society. And secondly because of the need for a free and native thinking in order to develop an indigeneous law. This remarkable ruling is reported in M.C. Mehta vs. Union of India, AIR 1987, SC, Page 1086.

 

The following passages are in page numbers 1098-99.

 

“This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise, the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the newproblems which arise in a highly industrialized economy. “As to the second reason, the Court held (per Bhagwati, C.J.):

 

“We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence and we cannot coutenance an argument that merely because the new law does not recovnise the rule of strict and absolute liability in cases of hazardous or dangerous liability or the rule as laid down in Rylands Vs. Fletcher as is developed in England recognizes certain limitations and responsibilities. We, in India cannot hold our hands back and I venture to evolve a new principle of liabilty which English Court have not done. We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous orinherenly dangerous industries which are concomitant to an industrialized economy, there is no reason way we should hisitate to evolve such principle of liability merely because it has not been so done in England”.

 

These remarks clearly indicate that though we may benefit from the experience of developed countries, their exact or blind limition will not help us in finding out solutions for our own peculiar problems. Fresh and original thinking against the back ground of Indian conditions is necessary.

 

The following observation of the authors of ‘Environmental Law and Policy in India (Cases, Materials and Statistics) is more specific on this point.

 

“Unlike the situation in the western countries, Indian environmental law and policy is not a preserve of the affluent middle class interested in resisting growth. In India those most deeply affected by environment deterioration are the poor. Displaced and dispossessed by deforesation and other natural resource depletion, they are the first victims of poor sanitation, bad air, contaminated water and scarece wood for fuel and fodder”.

 

In this context, I am reminded of a couplet from a Spanish Poet which, as rendered in English run thus :-

“Traveller, there are no paths,

Paths are made by walking”.

 

Who is competent to accomplish this task? Frankly, lawyers, not legislators. Even in Britain there was a complaint that Parliamentarians could not do justice to this issue because of the tight time-schedule of the Parliament and the incompetence of Parliamentarians to study and grasp the subject thoroughtly. Hence the propriety of the Adhivakta Parishad taking up the issue. All of you have preliminary discussion on this problem in course of this conference, and subsequently, I hope, it will be followed by a public debate on the initiative of Adhivakta Parishad activists on different levels throughout the country. Similarly this Conference will have to finalise the programme for the next year. On the eve of the next general elections, I appeal to all political parties to declare in their manifestos that they shall provide fresh water and fresh air to all citizens and living creatures. We know that this is not easy and simple as some one would have us believe. Some authority on practical politics has said that “Politics is a gentle art of getting votes from the poor and campaign funds from the rich, by promising to protect each from the other”. For this purpose, the parties will have to discard the current concept of ‘development’, and adopt a new one which requires ‘development’ to revolve round man, rather than man revolving round ‘development’.

 

 

MAJOR TREATIES AND AGREEMENTS TO WHICH INDIA IS A PARTY:

 

INDIA’S TREATY OBLIGATIONS:

1. Convention Relative to the Preservation of Fauna and Flora in their Natural State (London, 1936) (S).

2. International Convention for the Regulation of Whaling (Washington, 1946), (S)

3. International Plant Protection Convention (Rome, 1951), (S).

4. The Antartic Treaty (Washington, 1959), (S).

5. Convention Concerning the Protection of Workers Against Ionizing Radiations (Geneva, 1960), (S).

6. Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water (Moscow, 1963), (S).

7. International Convention of Civil Liability for Oil Pollution Damage (Brussels, 1975), (S).

8. Convention of Wetlands of International Importance, Especially as Waterforl Habitat (Ramsar, 1971), (CP).

9. Convention on the Prohibition of the Development Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons, and on their Destruction (London, Moscow, Washington D.C. 1972), (CP).

10. Convention concerning the protection of the World cultural and Natural Heritage (Paris, 1972) (CP)

11. Convention of International Trade in Endangered Species of Wild Fauna and Flora (Washington DC, 1973), (CP).

12. Protected of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL), London, 1978), (CP).

13. Convention on the conservation of Migratory species of Wild Animals (Bonn, 1979), (CP).

14. 14. Convention on the conservation of the Antarctic Marine Living Resources (Canberra, 1980, (S).

15. U.N. Convention on the Law of the Sea (Montego Bay, 1982), (S).

16. International Tropical Timber Agreement (Geneva, 1983).

17. Convention of Early Notification of a Nuclear Accident (Vienna, 1986).

18. Convention on Assistance in the case of Nuclear Accident or Radiological Emergency (Vienna, 1986).

 

 

SIGNATORY (S); CONTRACTING PARTY (CP)

 

SELECTIVE LIST OF ENVIRONMENT RELATED LEGISLATION:

 

1. CENTRAL ENACTMENT

 

ENVIRONMENT (PROTECTION) ACT 1986.

 

1. WATER POLLUTION

The river Boards Act, 1956.

The Merchant Shipping (Amendment) Act, 1970.

The Water (Prevention and Control of Pollution) Act, 1974.

The Water (Prevention and Control of Pollution) Cess Act, 1977.

 

2. AIR POLLUTION

The Indian Boiler’s Act, 1923.

The Mines and Minerals (Regulations and Development) Act, 1947.

The Factories Act, 1948.

The Industries (Development and Regulation) Act, 1951.

The Air (Prevention and Control of Pollution) Act, 1981.

 

 

3. RADIATION

The Atomic Energy Act, 1962.

The Radiation Protection Rules, 1971.

 

4. PESTICIDES

The Poision Act, 1919.

The Factories Act, 1948.

The Insecticides Act, 1968.

 

5. OTHERS

The Indian Fisheries Act, 1897.

The Indian Forest Act, 1927.

The Prevention of Food Adulternation Act, 1954.

The Ancient Monuments and Archaeological Sitesand Remains Act, 1958.

The Wild Life (Protection) Act, 1972.

The Urban Land (Ceiling & Regulation) Act, 1976. Vide Dr. Tewar Report on Pollution.

First Conservation Act, 1980.

 

 

II. STATE ENACTMENTS

 

1. WATER POLLUTION

The Orissa River Pollution Prevention Act, 1953 and

The Maharashtra Prevention of Water Pollution Act, 1969.

 

2. SMOKE CONTROL

The Bengal Smoke Nuisance Act, 1905.

The Bombay Smoke Nuisance Act, 1912.

The Gujarat Smoke Nuisance Act, 1963.

 

3. PEST CONTROL

The Mysore Destructive insects and Pests Act, 1917.

The Andhra Pradesh Agricultural Pest and Disease Act, 1919.

The Assam Agricultural Pests and Disease Act, 1954.

The U.P. Agricultral Disease and Pests Act, 1954.

The Kerala Agricultural Pests and Disease Act, 1958.

 

4. LAND UTILISATION AND LAND IMPROVEMENT

The Bihar Waste Lands (Reclamation, Cultigation and Improvement) Act, 1946.

The Andhra Pradesh Improvement Scheme Act, 1949.

The Acquisition of Land for Flood Control and Prevention of Erosion Act, 1955.

The Delhi Restriction of Uses of Land Act, 1964.

 

 

The first law on this subject was “The Shore Nuisance (Bombay and Kolaba) Act of 1853. Other Laws inherited from the British period are :

 

The Fisheries Act, The Merchant Shipping Act, Mines Act, Thr Ports Act, other penal and compensatory provisions. The Indian Boilers Act, 1923, The Floro Act, The Indian Forests Act, 1927, The Indian Easement Act, The Bengal smoke Nuisance Act of 1905; The Bombay Smoke Nuisance Act of 1912; The 1873 Madras Act for the protection of wild elephants; The (Central) Elephants Preservation Act of 1879; Wild Birds and Animals Protection Act, 1912; The hailey National Park Act of 1936.

The Workmen’s Compensation Act, 1923; the Fatal Accidents Act, 1855;

Relevant Sections of Indian Penal Code and Code of Criminal Procedure.

 

III. RELEVENT RULES

The Water (Prevention and Control of Pollution) Rules, 1975.

The Air (Prevention and Control of Pollution) cess Rules, 1978.

Air (Prevention and Control of Pollution) Rules, 1982.

The Water (Prevention and Control of Pollution) cess Rules, 1977.

The Hazardous Micro-Organism Rules.

The Hazardous Wastes Rules.

The Environment (Protection) Rules, 1986.

Hazardous Wastes (Management and Handling) Rules, 1989.

Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989.

Andhra Pradesh Water (Prevention and Control of Pollution) Rules, 1976.

Andhra Pradesh State Board for the Prevention and Control of Water Pollution (Procedure for Transaction of Business) Rules, 1976.

Andhra Pradesh Air (Prevention and Control of Pollution) Rules, 1982.

Gujrat Air (Prevention and Control of Pollution) Rules, 1983.

Kerala Water (Prevention and Control of Pollution) Rules, 1976.

Kerala Water (Prevention and Control of Pollution) Appellate Authority Rules, 1977.

Kerala Air (Prevention and Control of Pollution) Rules, 1984.

Maharashtra Water (Prevention and Controlof Pollution) Rules, 1983.

Maharashtra Air (Prevention and Control of Pollution) Rules, 1983.

Uttar Pradesh Water Consent for Discharge of Sewage and Trade Effluents) Rules, 1981.

Uttar Pradesh Air (Prevention and Control) of Pollution Rules, 1983.

West Bengal Air (Prevention and Control) of Pollution Rules, 1983.

Air (Prevention and Control of Pollution) (Union Territories) Rules, 1983.

The Uttar Pradesh Air (Prevention and Control of Pollution) (First Amendment) Rules, 1988.

 

LIABILITIES 

 

LIABILITIES : 1. Fines, 2. Imprisonment, 3. Variation, suspension of revocation of a licence, 4. Costs to clean up after a pollution incident to be recovered from the pollution or (in some cases) the occupier, 5. Civil liability – including for ‘toxic torts’, 6. Adverse Publicity.

 

PENALTIES AND PROCEDURE : 

 

Section 20 of the Water Act : Water Act Sac. 3(1) ©; Sec. 41(d) (1); Water Act – Sec. 41 (2); Sec. 43; Sec. 25; Sec. 26; Sec. 44; Sec. 45; Sec. 46; Sec. 48; Sec. 49; Sec. 49(2); Sec. 298 and Sec. 29 of the Criminal Procedure Code.

 

Air Act :- Sec. 37, Sec. 22, Sec. 38; Sec. 39; Sec. 41; Sec. 43; Sec. 49 of the Waste Act and Sec. 43 of the Air Act deal with cognigance of offences, the same provided under section 19 of the Environment Act.

 

STRAY LEGAL NOTES

 

Provision under the Factories Act, 1948 and Pollution Control Laws.

 

Definition of the term ‘Occupier’.

 

Factories Act – obligation on occupier relating to disposal of Waste and effluents.

 

Provisions relating to hazardous processes.

 

Penalities and procedure.

 

(Consult Chapter X of the Factories Act).

 

A new Part X-B and Part XI-A has been inserted by the merchant Shipping (Amendment) Act, 1983., (No. 12 of 1983) dealing with pollution.

 

Ealier Analogous Indian Statutory Provisions on Water, land air and noise pollution :-

 

a) Shore nuisance (Bombay and Colaba) Act, 1953.

 

b) Oriental gas company Act, 1887.

 

c) Section 288 and Section 278 of the Penal Code (Penalities for Pollution) (277+278+279 sec.).

 

Section 431; Section 432).

 

Section 284 (Penality for negligent conduct with respect to section (-do- -do- Poisonous substances.

 

Section 430 (Penal Code-IPC)

 

Section 268 (Penal Code-IPC)

 

Section 269 (Penal Code-IPC)

 

Section 290 (Penal Code-IPC)

 

Section 286 (Penal Code-IPC)

 

Section 291 (Penal Code-IPC)

 

Section 336 (Penal Code-IPC)

 

Section 337 (Penal Code-IPC)

 

Section 338 (Penal Code-IPC)

 

Section 279 (Penal Code-IPC)

 

Section 3904-A (Penal Code-IPC)

 

Section 425 (Penal Code-IPC)

 

Section 426 (Penal Code-IPC)

 

Section 430 (Penal Code-IPC)

 

d) The Police Act 1861 refers to Noise Pollution and punishment thereof. Section 30; Section 30-A; Section 31; Section 31; Section 32; Section 33; Section 34;

 

e) The Sarais Act, 1867.

 

f) Section 70 of the Northern India canal and Drain age Act 1873.

 

g) Section 8 of the obstruction in Fairways Act, 1991.

 

h) The illustration (f) the Section 7 of the Easement Act 1882.

 

The illustration (h) of the same section (Repair rights).

 

On riparian rights – riparian rights.

 

Section 2 of the Easement Act.

 

i) Section 5(1) of the Indian Fisheries Act, 1897.

 

j) Section 133 to the 144 (new of the Chapter X of the Code of the Criminal Procedure 1973.

 

k) Section 6 of the Indian Ports Act, 1909.

 

l) Section 54 (b) of the Indian Steam Vessels Act, 1917.

 

m) Section 32 of the Forests Act, 1927.

 

n) The Motor Vehicles Act, 1939, repealed by the Motor Vehicles Act 1988, particularly section 110 of the new Act.

 

o) Section 12 of the Factories Act, 1948 (disposal of Waste, etc.)

 

p) Section 16 of the Damodar Valley Corporation Act, 1948.

 

q) The various Municipalities Acts, passed by the State Legislatures and rules, regulations and bye-laws made thereunder.

 

r) The Rivers Boards Act, 1956.

 

s) Section 356-C of the Part XI-A of said Act also the new part –B of the said act.

 

t) Exclusive economic zone and other maritime zones Act, 1976.

 

Indian Penal Code:

 

Sec. 266; Sec. 269; Sec. 277; Sec. 278; Sec. 279; Sec. 248; Sec. 285; Sec. 286; Sec. 290; Sec. 291; Sec. 336; Sec. 337; Sec. 338; Sec. 304-A; Sec. 425; Sec. 426; Sec. 430; Sec. 431; Sec. 432.

 

Code of Criminal Procedure, 1973.

 

Sec. 133 to 144 (new of the Chapter X of the Code of Criminal Procedure, 1973.

 

Establishment, constitution and functions of Boards – Established under the two relevant Acts for the prevention and control of water and air pollution. Two kinds of Boards envisaged by both the Acts, The Central Board and the State Boards. Power of the Boards to obtain information and to enter and to inspect. The power of a State Board or any officer empowered in that behalf to take samples. Apprehended pollution of water in stream or wells and legal action, mainly sec. 33, Chapter XXIX of the Criminal Procedure Code, particularly Sec. 372; Sec. 373; Sec. 374; Sec. 375; Sec. 376; Sec. 377; Sec. 378; Sec. 379; Sec. 380; Sec. 397; Sec. 399; Sec. 401; Sec. 386.

 

Order XXXIX Rule 1, CPC Rule of the same order, Rule 3-A of the same Order XLIII of CPC. The constitution (Forty-second Amendment) Act, 1976. Part IV of the Constitution Directive Principles Article 47, Article 48-A.

 

Amendment to the Seventh Schedule of the Constitution –

 

– Entry of “17-A Forests” and entry “17-B Protection of Wild animals and birds” in the concurrent List III.

 

 

 

REMEDIES OPEN TO PUBLIC

 

 

 

Remedies open to Public regarding Pollution and Civil and Criminal Jurisdictions Inclusive of Injunctions.

 

1. Right of riparian owner of accustomed flow of water.

 

2. Easementary right of irrigation.

 

3. Acquisition of easement over surface water.

 

4. No right of easement in respect of collected and impounded surface water.

 

5. Right to change a channel.

 

6. Easement to draw water from well.

 

7. Right to discharge water by means of watercourse.

 

8. Use of nala water for irrigation.

 

9. Injunction to restrain disturbance of easement.

 

10. Temporary mandatory injunction in relation to flow of water in the street.

 

11. Injunction to restrain interference with the use of water of tank.

 

12. Injunction to restrain interference with the use of water of tank.

 

13. Injunction to restrain interference with easement of water.

 

14. Injunction to restrain discharge of roof water.

 

15. Injunction for restoration of normal supply of water.

 

16. Injunction to restrain flow of dirty water through private land.

 

17. Distinction between easementary right and natural right.

 

18. Cause of action in case of apprehended infringement of natural right.

 

19. Grant of injunction in case of pollution of water.

 

20. Injunction directing commissioners of Muncipality to construct a suitable pucca drain.

 

21. Corporation’s liability for torte bought about at its instance.

 

22. Public nuisance create by pollution – Remedies.

 

23. Promissory estoppel in fixing responsibility to remove pollution.

 

 

 

SOME IMPORTANT CASES

 

 

 

1. State of Himachal Pradesh and Others Versus Ganesh Wood Products and Others.

 

2. Write Petition © No. of 1994. Dairy No. 1716 of 1994, Petitioners – Mr. M.C. Mehta.

 

3. Rural Litigation and Entitlement Kendra. State of Uttar Pradesh, Air 1988 S.C. 2187. And D.N. Pandey versus Union of India, AIR 1985, S.C. 652.

 

4. Shriram Foods and Fertilizer Industries case (M.C. Mehta Versus Union of India, AIR 1987, S.C. 965.

 

5. Shri Sachidanand Pandey Versus, State of West Bengal, AIR 1987, SC 1109.

 

6. Charanlal Sahu Versus State of West Bengal, AIR 1987, S.C. 1109.

 

7. Tarun Bharat Singh, Alwar, Versus Union of India, AIR 1992, SC 514.

 

8. Municipal Commissioner of Ratlam Versus Vardhichand, AIR 1980, SC 1622.

 

9. Govinda Singh Versus Shanti Swaroop, AIR 1979, SC 143.

 

10. Krishna Gopal Versus State of Madhya Pradesh, 1986, Cri. L.J. 396 (Madhya Pradesh)

 

11. The General Public of the Saproo Valey Versus State of Himachal Pradesh, AIR 1993, (M.P. 52).

 

12. M.C. Mehta Versus Union of India, AIR 1992, SC 382.

 

13. D.D.Vyas Versus Ghaziabad Development Authority, AIR 1993, AIR 57.

 

14. Attakoya Taangal Verus Union of India (1990), Kerala, L.T. 580.

 

15. Damodar Rao Versus Municipal Corporation, AIR 1987, A.P. 1971.

 

16. (Oleum gas leaks case) M.C. Mehta versus Union of India, AIR 1987, SC 965.

 

17. Subba Rao Versus State of Himachal Pradesh, AIR 1989, S.c. 171.

 

18. Public Versus State of West Bengal, AIR 1993, Cal. 215.

 

19. M.C. Mehta Versus Union of India, AIR 1987, SC 965.

 

20. R.R. Singh Versus State of Bihar, AIR 1992, Patna, 96.

 

21. The Goa Foundation Versus the Konkan Railway Corporation, AIR 1992, Bombay 471.

 

22. Calcutta Youth Front Versus State of West Bengal, AIR 1988, SC 436.

 

23. Smt. Satyavani Versus Andhra Pradesh Pollution Control Board, AIR 1993, A.P. 257.

 

24. M.C. Mehta Versus Union of India, AIR 1988, SC 1037.

 

25. AIR 1980, SC 1922.

 

26. AIR 1992, Pat. 86.

 

27. A.K. Thangudurai Versus D.F.O. Madurai, AIR 1985, Madras 104.

 

28. M.C. Mehta Versus Union of India, AIR 1992, SC 382.

 

29. M.C. Mehta Versus State of Orissa, AIR 1992, Orissa, 225.

 

30. S.K. Singh Versus State of Bihar, AIR 1991, SC 1042.

 

31. AIR 1987, SC 359.

 

32. Daham Taluka Environment Protection Group Versus Bombay Subarban Electricity Supply Co. 1991 (25 Sec., 539.

 

33. Virendra Gaur Versus State of Haryana, 1995 (2) SCC.

 

 

 

 

 

COMMON CONVICTIONS IN STOCKHOLM PROCLAMATION

 

 

 

Along with other basic items the Stockholm proclamation also contained certain common conviction of the participant nations and made certain recommendations on development and environment. The common convictions stated include the conviction that the discharge of toxic substances or of other substances and the release of heat in such quantities or concentrations as to exceed the capacity of environment to render them harmless must be halted in order to ensure that serious or irreversible damage is not inflicted upon eco-system, that states shall take all possible steps to prevent pollution of the seas so that hazards to human health, harm to living resources and marine life, damage to the amenities or interference with other legitimate uses of seas is avoided that the environmental policies would enhance and not adversely affect the present and future development potential of development countries, that science and technology as part of their contributions to economic and social development must be applied with identification, avoidance and control of environmental riska and the solution of environmental problems and for the common good of mankind, that states have the responsibility to ensure that activities of exploitation of their own resources within their jurisdiction are controlled and do not cause damage to the environment of other states or areas beyond the limit of national jurisdiction, that it will be essential in all cases to conside the systems of values prevailing in each country and the extent of the applicability of standards which are valid for the most advances countries but which may be in appropriate and of unwarranted social cost and that man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. These are only some of the statements of principle proclaimed by the Stockholm Conference.

 

 

 

 

 

THE SCOPE : Extracts from – ‘Environmental Law’

 

 

 

The Scope of environmental law is continuously expanding. Therefore, to define it at any point of time is like trying to hit a moving target. Certain items we decide upon today may become out of date almost immediately.

 

 

 

The commitments at the United National Conference on Environment and Development at Rio De Janeiro.

 

 

 

Regulations on eco-managements and audit and on economic labeling, as well as on environmental information and directives on urban waste water treatment, waste and habitants, with others on intergrated pollution prevention and control and on packing (on the horizan). (The drinking water and Bathing waters directives). Important constitutional changes along the lines of the Meastrient Treaty (on European Union).

 

Laws on the lines of (British) the Water Act 1989 (the Water Resources Act 1991 and the Water Industry Act 1991), on air pollution (the Clean Air Act 1993) and on radio-active substances (the Radioactive substances Act 1993).

 

 

 

In the town-planning area, a policy that moves us from a ‘developer-led’ system towards a ‘plan-led’ one.

 

 

 

Nature conservation; waste and water pollution-including the defence available to sewerage undertakers;

 

 

 

Directions of environmental policy. Integrated pollution control, air pollution, waste management and water pollution, statutory water quality objectives.

 

 

 

There should be a debate over a carbon tax and proposals for directive on bonafied and packaging, and the scope of the subsidiary doctrine.

 

 

 

 

 

THE BRITISH SCENE

 

 

 

FROM :

 

ENVIRONMENTAL LAW

 

 

 

Britain had the first national public pollution control agency. The Alkali Inspectorate, established by the Alkali tact 1863 to control atmospheric emissions primarily from the caustic soda industry. Water pollution controls followed in the rivers pollution prevention act, 1876. Britain’s first legislation of cover town planning was the flousing, town planning, etc. Act 1909. Britain had also then the law on nuisance.

 

 

 

The deposit of poisonous wastes Act, 1872.

 

The wild life and country side Act 1981.

 

The Control of pollution Act 1974

 

The control of Pollution (Amendment) Act 1989.

 

The protection of the birds Act 1954.

 

 

 

Britain the ‘Environmental Protection Act, 1990”, contains the main bulk of provisions on air pollution from stationary sources, waste management and disposal, the integrated control of the most potentially polluting processes, litter, the environmental impact of genetically modified organisms, noise and statutory control of environmental nuisance. The ‘Water Resources Act 1991’ contains the law on water pollution and water resources, whilest the ‘Water Industry Act, 1991; covers matters relating to water supply and sewerage. The wildlife and country side Act 1981 includes much of the relevant law on nature conservation includes much of the relevant law on nature conservation in Part I and II “The Town and Country Planning Act,” 1990 includes in consolidate from most of the relevant statutory law on town and country planning and tree protection. The “Planning 9 Listed Buildings (Hazardous substances) Act” 1990 include separtated treatment of listed buildings and hazardous substances. There is also the” Planning and Compensation Act” 1991 which made some significant amendments to the 1990 Acts.

 

 

 

The white paper on environment “The Common Inheritance” 1990, underlined the commitment to a planned development of environmental policy.

 

 

 

Institutional coherence – For example The National River Authority.

 

 

 

Her Majesty’s inspectorate of pollution, etc.

 

 

 

Controls over stationary sources of pollutionh are more coherent than those over mobile or non-point sources.

 

 

 

Needed a unified Environmental Agency covering all institutions and laws. Britain’s Law on environment suffers from anachronism.

 

 

 

Needed a policy of splitting production from regulation, e.g. separation of waste regulation functions from waste disposal function or separation of the regulation of water pollution from regulation of pollution from sewage works.

 

 

 

 

 

 

 

FROM :

 

MANUAL OF EUROPEAN ENVIRONMENTAL LAW

 

– By A. Kiss and D. Shelton

 

 

 

1. Over View : Contents – Mainly – Fundamental Concepts, tech niques of environmental law, institutions and agencies–National, European, International Institutions.

 

 

 

II. Biodiversity and the Promotion of Nature :

 

Sectoral Protection.

 

Protection of the soil.

 

Fresh Water.

 

Protection of the marine environment

 

Atmospheric pollution.

 

 

 

III. Treans-sectoral issues

 

Regulating sources of environmental harm Intergranted environmental protection The role of the public and non-government organization.

 

About the legal frame work, the book states – Organization

 

1. Source of National Laws (a) Constitution; (b) Legislation; (c) Executive decrees (d) Common Law; (e) Administrative agency rules – making; (f) Regional; or Local Law.

 

2. The European Community – (a) Treaty Provisions; (b) Regulations; (c) Directives (d) Action Programmes (e) Implementation.

 

3. International Law – (a) Treaties; (b) Custom; (c) Other sources.

 

4. Relationships between the systems of law.

 

 

 

Documents

 

1. The Stockholm Declaration on the human environment

 

2. The Rio-Declaration on environment and development

 

3. The Single European Act, Amended.

 

 

 

Issues

 

1. Hazardous substances

 

2. Nuclear radiation

 

3. Hazardous Processes and activities

 

4. Waters

 

5. Noise

 

A. Urban and Rural Planning – Urban, Rural and Integrated Planning

 

B. Environment and Development.

 

1. The role of the public

 

a) The right of information

 

b) Public Participation

 

2. The role of non-Governmental organizations

 

a) Delegating management functions to NGOs.

 

b) Using NGO experience

 

c) Complaining of violations

 

d) Participation in licensing and permit procedures.

 

e) Funding environmental projects.

 

 

 

 

 

EDUCATION

 

 

 

(A) In M.C. Mehta Vs. Union of India, the Supreme Court observed that “it is the duty of the Central Government to direct all the educational institutions throughout India to teach atleast for one hour in a week lessons relatively to the protection of the improvement of the natural environment including forests, lakes, rivers, and wild life in the first ten classes”.

 

(B) All American and many European Law curricula include atleast one course in environmental law.

 

(C) Recommendations of the Seminar in 1984 organized by the Deptt. Of law, Punjab University.

 

 

 

The Education on :-

 

a) Over population and the ways to check its rapid growth;

 

b) Afforestation as a prevention to soil erosion and water pollution;

 

c) Rules as to the use of water, taking fuel from the woods, and grazing of cattles.

 

d) Methods to prevent air pollution, insisting one smokeless cooking;

 

e) Discipline in playing radio and television sets and a ban on use of loudspeakers;

 

f) Elementary knowledge of the scientific and philosophical basis of man and the environment;

 

g) Scientific interpretation of ethics – religious tenents of worshipping the constituents of nature, e.g. the fire, the water, the trees and other objects.

 

h) Rules regarding disposal of house hold waste and filth and human exer, etc.

 

i) Restraints to be observed while on roads on places of public resort and during journey; and

 

j) Other general principles of sanitation.

 

 

THE WOUNDED EARTH

 

In 1971 when Edgar Mitchell flew to the moon on board Apollo 14, his first glimpse of earth from space sent him into rhapsody. “It looks like a sparkling blue and white jewel… Laced with slowly swirling veils of white… Like a small pearl in a thick black sea of mystery.” He radioed back effusively to Houston.

 

Twenty-one year later, if Mitchell was to be sent back into space, this time with special spectacles that allowed him to see the invisible gases of the earth’s atmosphere, a vastly different sight would greet him. He would see giant puntures in the protective ozone shiels over Antarctica and North America. Instead of a sparkling blue and white jewel he would see a dull, dirty earth filled with dark, swirling clouds of dioxides of carbon and sulphur.

 

If Mitchell took out his camera and shot images of forest cover of the earth and compared it with those he took in “71, he would be stunned by the amount they have shrunk. And if he opened his special telescope to help him examine the filth in the waters of the earth, he would see ribbons of poison criss-crossing the land masses and dark balls of tar lining much of the ocean floor, “Houston”, he would have radioed back, “What on earth have we done?’

 

Actually, we don’t need to go 36,000 km into space to know what we have done. Today, we can drink, breathe, smell and see pollution. Within a 100 years, and more so in the past 30, human beings have brought the earth to the brink of disaster. By spewing an excessive amount of heart-trapping gaes intothe atmosphere we are riggering debilitating climatic changes. Gases that our refrigerators and air-conditioners use are now responsible for depleting the protective ozone layer, exposing us to skin cancer and altering the gene structures in smaller animals. Meanwhile, we have degraded vast tracks of land, destroyed forests at suicidal rates, dumped tones of poison into rivers indiscriminately and poured toxic chemicals into our seas.

 

Now more than anything else the threat to humanity comes from the destruction of the earth’s environment. And it needs a movement of planetary dimensions to arrest the holcaust. It is this realization that is bringing together heads of 150 nations for a historic summit at Rio de Janeiro from June 3 to June 14.

 

While it would send the right message across the earth, it is not enough. As the two years of preparation for the summit have shown, serious rifts between the developed and developing countries over how to tackle the problem have surfaced. So wide has the gulf been that nations have begun forming power blocks quite similar to the erstwhile military alliances. Environment has suddenly become a major foreign policy issue. And as policy makers are increasingly understanding, no longer can the earth’s ecological ills be treated as separate from issues such as debt, trade, unemployment and inequality.

 

Much of the conflict that has arisen is understandable. The solutions have fundamental implications on the economic progress, or lack of it, for every nation. The next few years may call for some radical measures. It may involve nations making major alterations in their patterns of energy consumption. With the burning of fossil fuels like coat, petrol and wood directly linked to the warming of the earth, countries may be forced to explore other options. Even going nuclear in a big way may have to be considered. It may also bring in startling measures like a tax on carbon emissions. Or carbon budgets being imposed on nations. For industry, environmentally sound technology may become a competitive necessity. Good economic management and environment movements could, in fact, go together.

 

What all this requires is an extraordinary effort by both the rich and poor nations to solve problems. Richer countries would need to reflect on their excessive consumption paterns and realize when how much is too much the poor nations, with some financial assistance, should radically improve their energy efficiency levels, make a serious attempt to limit their population growth, adopt low tech solutions to prevent soil erosion and conserve scarce water resources. The North and South should enter into a constructive partnership, in which technology and finances are used to help poor countries reach sustainable levels of development.

 

All this must be done without delay. For the threat is no more to your children’s future. It is now. And here

 

(Story on Rio Earth Summit. Source : India Today, 15 June, 1992)

 

 

 

WORTH READING BOOKS 

NATIONALISATION OF GOVERNMENTALISATION

FOCUS ON SOCIO ECONOMIC PROBLEMS

PERSPECTIVE

THE GREAT SENTNEL

HIS LEGACY OUR MISSION

COMPUTERISATION

MODERNISATION WITHOUT WESTERNISATION

WHY BHARATIYA MAZDOOR SANGH

CONSUMER : SOVEREIGN WITHOUT SOVEREIGNTY

SPECTRUM

THIRD WAY

RASHTRA

Cruelty Against Husband in India

DHAWESH PAHUJA

In India where marriage is the union between man and woman to get social status in the society and marriage is nothing but procreation and caring of the child. According to Westmark Marriage has been often like as an institution made by itself. As there is increase in number of marriages every day, at the same time breakdown of marriages in the society has also been seen to be increasing whether by fault of husband or wife. Though cases filed by wife against husband and in-laws under Domestic Violence Act and 498-A of IPC to claim maintenance and divorce but all complaints are not filed bona-fidely. Freedoms of education, job opportunities, economic independence and social attitude have brought tremendous change in the status of women. The balance of scale has tilted reversely in favour of women.

Cruelty is an inhuman treatment and it is an act that causes mental sufferings and endangers to the life and health of the other. Cruelty may be in the form of physical as well as mental by the act either of the husband or the wife. Though it is the women who have always been subjected to be tortured and harassed by the husband and relatives, in fact saying this will not be proper as cases of torture and harassment against the husband by the wife is increasing day by day. Cruelty is the main ground to seek divorce as defined under ‘Sec 13(1) (i-a)’ of ‘The Hindu Marriage Act, 1955’ and party who is filing a case must prove that living between husband and wife became impossible.

There are many provisions made applicable for the protection of the women, which has got recognition from our constitutional law. The biased nature of these laws is evident from that fact that unlike almost all laws in INDIA the burden to prove innocence lies on the accused and this means as soon as the complaint is made by the aggrieved person/ wife, the result is that the husband and his family may be immediately arrested and will be considered as accused in the eyes of law. According to the ‘Section 498-A’ of the ‘IPC’ the wife and her parental family can charge any or all of the husband’s family of physical or mental cruelty but genuineness of the case has to be looked into by the court as this section is cognizable, non-compoundable and non-bailable in nature.

What amounts to cruelty against husband? Though it is the duty of the court to decide the case based on facts and circumstances but what amounts to cruelty is an important aspect as misuse of Laws by the wife against husband in society is growing day by day and most apparently some Indian Urban educated women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives and there are certain grounds on which cruelty against husband can be proved:-

• Misuse of Dowry Laws, Domestic Violence Act and ‘Sec: 498-A’ of IPC by wife against husband and in-laws of husband through lodging false complaints.

• Desertion by wife which means wife deliberately intending for separation and to bring cohabitation permanently to an end.

• Adultery by the wife means wife having sexual relationship with some other person during the lifetime of marriage and there must be strict law to punish wife who has committed adultery.

• Wife opting out for second marriage without applying for the divorce proceedings.

• Threatening to leave husband’s home and threat to commit suicide by the wife.

• Cruel behavior of wife where wife tearing the shirt of the husband, refusing to cook food properly or on time and breaking of the mangalsutra in the presence of husband’s relatives.

• Abusing and accusing husband by way of insulting in presence of in-laws and in some cases wife abusing husband in front of office staff members.

• Wife refusing to have sex with husband without any sufficient reasons which can be considered as a ground of cruelty and husband can file a divorce petition.

• Lowering reputation of the husband by using derogatory words in presence of family members and elders.

• Lodging FIR against husband and in-laws which has later proved as false report.

• Conduct and misbehavior of the wife against husband i.e. pressuring husband to leave his home, insisting for the separate residence, mentally torture and disrespectful behavior towards husband and in-laws as well.

• Some other grounds of cruelty i.e. mental disorder and unsoundness of wife, Impotency of wife, illicit relationship of wife with some other person and Wife suffering from the filarial.

• Extra-marital affairs of wife can also be a ground of cruelty against the husband.

• Initiating criminal proceedings against husband and in-laws of husband with mala-fide intention by the wife.

CASE LAWS: situations in Hindu marriage where a wife was held as ‘cruel’ to the husband and the Hindu divorce law was applied by the Supreme Court:

I. Mrs. Deepalakshmi Saehia Zingade v/s Sachi Rameshrao Zingade (AIR 2010 Bom 16)

In this case petitioner/wife filed a false case against her husband on the ground of ‘Husband Having Girl Friend’ which is proved as false in a court of law so it can be considered as cruelty against husband.

II. Anil Bharadwaj v Nimlesh Bharadwaj (AIR 1987 Del 111)

According to this case a wife who refuses to have sexual intercourse with the husband without giving any reason was proved as sufficient ground which amounts to cruelty against husband.

III. Kalpana v. Surendranath (AIR 1985 All 253)

According to this case it has been observed that where a wife who refuses to prepare tea for the husband’s friends was declared by the court as cruelty to husband.

Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. A strict law need to be passed by the parliament for saving the institution of marriage and to punish those women who are trying to misguide the court by filing false reports just to make the life of men miserable and ‘justice should not only be done but manifestly and undoubtedly be seen to be done’.

 

TORT OF PASSING-OFF

 CHAPTER 1

THE CONCEPT OF PASSING OFF

Passing off is a wrong, a common law tort which protects the goodwill of a trader from misrepresentation. Misleading the public into believing falsely, that the brand being projected was the same as a well known brand is a wrong and is known as the tort of “passing off” .

As held in the famous case of N. R. Dongre Vs. Whirlpool Corporation

“A man may not sell his own goods under the pretence that they are the goods of another man.”

Law aims to protect traders from this form of unfair competition.

Legally, classifying acts under this tort aims to protect the right of property that exists in goodwill. Goodwill is defined as the part of business value over and above the value of identifiable business assets. So basically it is an intangible asset .

It enables a business to continue to earn a profit that is in excess of the normal or basic rate of profit earned by other businesses of similar type. It might be due to a particularly favourable location, reputation of the brand in the community, or the quality of its employer and employees. The value of goodwill of a brand can be calculated by a number of methods, like

• subtracting the value of all tangible assets from the total value to establish the value of the intangible assets

• the amount of earnings that are in excess of those normally earned by a similar business

• averaging the past five years net income and subtracting a reasonable expected rate of return for tangible assets and salary requirements capitalising the resulting value

Goodwill can be classified into two zones, viz. institutional goodwill and professional practice goodwill. While institutional goodwill associates itself with business houses, their market position, professional practice goodwill, as is quite obvious from the name, associates itself with professional practices like law, medicine, architecture, engineering and many others .

In itself, professional practice goodwill can be divided into practitioner goodwill, where the skill and reputation of the individual practitioner comes to play, and practice goodwill, which is very similar to institutional goodwill and depends on the institute reputation.

The Dutch Advocaat case was the first case where the basic elements of the wrong of passing off were put forth by Lord Fraser. They were as follows

• a misrepresentation

• made by a trader in the course of trade,

• to prospective customers of his or ultimate consumers of goods or services supplied by him,

• which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and

• which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do so.

Later in the Jif Lemon case, Lord Oliver reduced these principles to three basic features (now known as the classical trinity) which included

• reputation

• misrepresentation

• damage to goodwill

To sum it up, the tort of passing off covers those cases where one trader falsely misrepresents his goods as those of another trader/brand, which has a good reputation/goodwill in the market and thus leads to damaging his goodwill.

In a passing off action, the plaintiff must prove that there is a similarity in the trade names or marks and that the defendant is passing off his goods as those of the plaintiff’s . Remedies could include injunction or damages or both. Damage or likelihood of damage form the core all passing off actions. The concepts of reverse passing off and extended passing off also hold significance.

Extended passing off consists of those cases where misrepresentation of a particular quality of a product or services causes harm to the plaintiff’s goodwill. A famous case example would be Diageo North America Inc v Intercontinental Brands (ICB) Ltd ., where the defendant marketed a drink named “Vodkat”, which was actually not vodka, but the marketing did not actually make it clear that it wasn’t so. The plaintiffs were the biggest manufacturers of vodka and they filed a suit against the defendants for passing off and it was held so.

If a defendant markets the products made by the plaintiff as the products of the defendant, the tort committed is known as reverse passing off.

CHAPTER 2

EVOLUTION AND DEVELOPMENT OF THE CONCEPT

Liability in the tort of passing off ultimately boils down to misrepresentation. It all started in the 17th century, in the cases Southern v. How and Dean v. Steel . Usually, the judges categorised such torts under deceit or defamation .

Later in the eighteenth century, all cases of passing off were classified as cases of deceit, where the action was usually brought not by the deceived, but by the one whose mark was used to deceive. (Blanchard v. Hill ), limiting the tort to cases where there was a proof of bad faith .

Later, in the nineteenth century, in the case Millington v. Fox , it was decided that proof of fraud was not necessary in such a wrong and it was from here that the actual tort of passing off began building its own definition .

The concept of equity was largely used to realise the scope of passing off. The predominant view was that equity intervened to restrain what would be a fraud if allowed to go ahead and that it protected proprietary rights. This particular viewpoint led to the equity courts to awarding compensations instead of injunctions. This idea was based on the theory that, in such a tort, constructively, the defendant was an agent of the plaintiff .

Later, in the case Cartier v. Carlile , it was decided that a “man must be taken to intend” the natural consequences of his act and mere proof of likelihood of deception was sufficient to prove the wrong.

In Edelsten v. Edelsten , it was put forth that mere notice of plaintiff’s rights satisfied the requirement of fraud and a man could be held liable in such a case whether or not his actions were honest.

Whatever the case be, fraud continued to remain an essential element in the tort. Where fraud was not proved, usually an inquiry into the damages caused was ordered.

Finally it was concluded gradually, that fraud need not be shown while judging such a case.

The final question would be, if the defendant was unaware of the existence of the plaintiff or his brand, would he still be liable for such a tort. The question remained open ended for a long time and at one point, the authorities were opposed to the imposition of liability in such a case. But as of now, the motive of the defendant is not very important in such an action. The only thing that needs to be proved is the reputation established by the plaintiffs .

CHAPTER 3

ANALYSIS OF JUDICIAL DECISIONS

1. Southern v. How

The earliest documented case where there was an indication of passing off, this one dates back to 1618. In this case mark of an eminent clothing brand was used to dupe a customer, who bought the defendant’s low grade clothing thinking it was the plaintiff’s brand.

The defendant was held liable. This though was more a case of deceit, but the principle of passing off clearly started its journey from this case.

2. A.G. Spalding & Brothers v. A.W. Gamage, Ltd.

The defendants had organised a sale where they announced they would sell the plaintiffs’ footballs at a nominal price. But in reality, the intention of the defendants was to sell a different ball, belonging to the plaintiffs’ company of course, than the one advertised.

An action was brought by the plaintiffs seeking to recover damages, which they contended, they had incurred from the dip in sale of their genuine footballs.

It was held that in this type of a wrong, actual passing off was unnecessary. What was important was a description of this wrong in terms of representation. Referring to the defendants’ contention that the writ was issued before there was any kind of sale, there lay no basis in the action and hence, it could not succeed, it was declared that offering to sell was an actionable act. It was also declared that there could be no sort of a limit for awarding damages for such a wrong.

3. Hendricks v. Montagu

The plaintiffs, the “Universal Life Assurance Society” brought an action against the defendants to stop them from carrying on business with the trade name “Universal Life Assurance Association”. The injunction sought was granted and it was mentioned that since the names were too similar for differentiation, the tort of passing off was indeed committed.

4. J Bollinger v Costa Brava Wine Co. Ltd.

Popularly known as the Spanish Champagne case, this particular case saw an action being brought by twelve biggest champagne manufacturers of France, on behalf of every champagne manufacturer in their country, seeking injunctions on use of the word “champagne” while describing Spanish wine, and passing it off as champagne. An injunction was granted.

5. The Dutch Advocaat Case

Erven Warnink B. V. v. J. Townend & Sons is popularly known as the Dutch Advocaat case. This was the first case where basic elements of passing off were first put forth. Lord Fraser, while delivering the judgment had listed five principles of such a tort, which have already been discussed.

In the present case, the first plaintiff was a company from the Netherlands which manufactured a beverage made from eggs and brandewijn spirit. The drink was called Advocaat. The defendants were an English company manufacturing a drink of a similar name (Old English Advocaat), but altogether different in nature, being prepared from eggs and fortified wine. Being a wine based drink, the excise duty on the defendants’ product was much lesser than that on the plaintiff’s product, which had a huge share of the English “Advocaat” market. This resulted in the defendants taking over much of the plaintiff’s market share. An injunction was sought to stop the defendants from using the name “Advocaat”.

Initially it was held that the term “Advocaat” had earned a good reputation and goodwill, being recognised as a drink of good quality and taste, something which the defendants’ product did not comply with, with it having a different recipe. It was held that the defendants were guilty of the tort of passing off. The Court of Appeal reversed this decision by Goulding J., only to see the House of Lords restoring it.

6. The Jif Lemon case

Reckitt & Colman Products Ltd. v. Borden Inc. is popularly known as the Jif Lemon case. The judgment in this case finally formulated three basic principles of the tort of passing off.

The facts of this case go as such;

The plaintiff was a manufacturer of lemon juice and, since 1956, had been selling such juice under the name “Jif” in plastic containers resembling real lemons. The defendant’s product, manufactured in 1985-86 marketed three different kinds of lemon juice in containers precariously similar to those of the plaintiffs’, the only difference being a differently coloured cover and a different brand name, “ReaLemon”.

The plaintiffs’ brought an action for passing off and were successful, with both the Court of Appeal and the House of Lords upholding the decision.

Walton J., observed that a careful shopper might be able to distinguish between the different brands, but, to quote him;

“the slightest peradventure that the effect of the introduction of any of the defendant’s lemons on to the market would be bound to result in many housewives purchasing them in the belief that they were purchasing the well known and liked Jif brand.”

The fact that the brand “Jif” was identified by the shape of its container and not by its label provided the ultimate evidence.

7. Calvin Klein Inc. USA v. International Apparel Syndicate

In this case, the plaintiff, an internationally reputed US company with a tremendous goodwill for designer clothing brought an action for passing off and trademark infringement against International Apparel Syndicate, an Indian company to stop them from using the trade name Calvin Klein and the mark CK.

Calvin Klein did not have a market in India, but their goodwill was based on their reputation earned through advertisements. They also had worldwide trademark registrations in 136 countries including India. In India, their registration covered only textile goods, while their application for trademark registration for clothing, footwear and headgear was still pending. False representation by the Indian company that they were official CK licensees and marketing their products under the trade name of Calvin Klein led to the Calcutta High Court passing an interim order for injunction, stopping International Apparel Syndicate from using the name Calvin Klein and the mark CK, which subsequently became permanent.

The defendants’ contention that the plaintiffs could not bring an action because they did not sell their goods in India was disallowed. The court said that the marks were used with an intention to deceive the customers and to trade riding on the international reputation of Calvin Klein.

8. Honda Motors Co. Ltd. v. Mr. Charanjit Singh and Ors

The defendants manufactured pressure cookers under the name “Honda”, in India. Their application for registration had already been rejected once before and they had applied for registration again, while continuing to sell their products.

The plaintiffs, popular all over the world for their motor goods and electrical appliances brought an action against the defendants. In India, they ran a joint venture with the Siddharth Shriram Group.

In the judgment, it was held that with an established business and sale of quality products, the name “Honda” had become associated with the plaintiffs’ reputation and its goods. It was said that it is very easy for the public to associate the plaintiffs with any product that carries the name of “Honda”. Further, the honourable judges also held that by using the name “Honda” the defendants were creating confusion in the consumers’ minds, which was indirectly affecting the business of the plaintiffs in an adverse way. An injunction was ordered to stop the defendants from using the name “Honda”.

9. Colgate Palmolive Company and Anr. v. Anchor Health and Beauty Care Pvt. Ltd.

Both the plaintiffs and the defendants manufacture well known toothpaste brands. The plaintiffs sued the defendants for passing off. The contention of the plaintiffs was that the defendants’ use of colour and pattern of colours in their dental products was dangerously similar to the plaintiffs’. According to the plaintiffs the proportion of colours (red and white) used by the defendants was almost identical to that of the plaintiffs (1/3:2/3). The reason for bringing in such an action was that the plaintiffs were established in the Indian market since 1951, and had a tremendous goodwill in the country, while the defendants had entered the market only in 1996.

It was held by the court that though there cannot be any monopoly over colour, in a country with a huge number of illiterate and semi-literate people, by marketing a new product with a design closely resembling that of the older product, it is easy to create confusion in the minds of the public, especially when a similar product has been prevailing in the market for close to half a century. It was adjudged that the defendants were using the trade dress of the plaintiffs. The court ordered an injunction, restraining the defendants from using the red/white combination in the disputed order.

10. Smithkline Beecham v. V.R. Bumtaria

The defendants used the name “ACIFLO” for one of their pharmaceutical preparations. The plaintiffs’ sued the defendants for passing off since they had been using the name of “ARIFLO” for the same product, a name which was registered. They did not have a market in India. The plaintiffs contended that advertisements in medical journals amounted to building of a goodwill in India, which was being misused by the defendants. The court held that the reach of medical journals was restricted to a specific class of people and so was the reputation, hence, there was no passing off.

CHAPTER 4

PASSING OFF AND TRADEMARK INFRINGEMENT

Passing off is different from trademark infringement.

To understand the differences between passing off and trademark infringement in India, we need to analyse the scope of trademark infringement and the Trademarks Act, 1999.

Trademark is a company’s identity enabling a customer to distinguish products under that trademark according to the goodwill of the company and quality of the products. Trademarks help the owners to avoid their competitors from using the trademark to their own benefit. The most important and significant point is that the name and reputation of a company is deeply rooted within the trademark. A company cannot afford to let any other person misuse its trademark and in the process harm the reputation, goodwill, and not to forget the business, which must have taken years to become solid .

Section 29(1) of the Trademarks Act, 1999 helps define infringement;

“A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.”

Passing off is not defined in the Trademarks Act, 1999. But various courts have tried to follow the common law in helping build an idea of passing off. Passing off is said to take place when a trademark, registered or unregistered is infringed in a manner where not only is the mark dangerously similar to that of the plaintiffs’, but also it rides on the plaintiffs’ goodwill to help establish a market and thus ruin the plaintiffs’ market. “Goodwill” plays a big part in instituting an action against the tort of passing off.

Trademark infringement is protected by Section 29 of the Trademarks Act, 1999, as its ambit stretches up to registered trademarks only.

“29. Infringement of registered trade marks

(1) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.

(2) A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which because of-

(a) its identity with the registered trade mark and the similarity of the goods or services covered by such registered trade mark; or

(b) its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark; or

(c) its identity with the registered trade mark and the identity of the goods or services covered by such registered trade mark, is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark.

(3) In any case falling under clause (c) of sub-section (2), the court shall presume that it is likely to cause confusion on the part of the public.

(4) A registered trade mark is infringed by a person who, not being a registered proprietor or a person. using by way of permitted use, uses in the course of trade, a mark which-

(a) is identical with or similar to the registered trade mark; and

(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered; and

(c) the registered trade mark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark.

(5) A registered trade mark is infringed by a person if he uses such registered trade mark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern dealing in goods or services in respect of which the trade mark is registered.

(6) For the purposes of this section, a person uses a registered mark, if, in particu1ar, he-

(a) affixes it to goods or the packaging thereof;

(b) offers or exposes goods for sale, puts them on the market, or stocks them for those purposes under the registered trade mark, or offers or supplies services under the registered trade mark;

(c) imports or exports goods under the mark; or

(d) uses the registered trade mark on business papers or in advertising.

(7) A registered trade mark is infringed by a person who applies such registered trade mark to a material intended to be used for labelling or packaging goods, as a business paper, or for advertising goods or services, provided such person, when he applied the mark, knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee.

(8) A registered trade mark is infringed by any advertising of that trade mark if such advertising-

(a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or

(b) is detrimental to its distinctive character; or

(c) is against the reputation of the trade mark.

(9) Where the distinctive elements of a registered trade mark consist of or include words, the trade mark may be infringed by the spoken use of those words as well as by their visual representation and reference in this section to the use of a mark shall be construed accordingly.”

To make things crystal clear as far as unregistered trademarks are concerned, Section 27 of the same act would be enough;

“27. No action for infringement of unregistered trade mark

(1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark.

(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof.”

Unregistered trademarks are not protected against pure infringement by the Trademarks Act, 1999 and infringement of such marks can only be protected by bringing an action for passing off. Similarly, confusion between two registered trademarks can be solved by bringing in an action for passing off. Clause 2 of Section 27 gives clear mandate that nothing mentioned in the entire act would affect the rights of any person for instituting an action for passing off.

Unregistered trademarks are granted protection against passing off under Section 134 of the aforementioned act. Sub-clause c of clause 1 of Section 134 says that no suit for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.

Section 135 of the act deals with relief in suits for infringement or for passing off and basically includes injunction and damages.

CHAPTER 5

CONCLUSION

In a country where a considerable percentage of the population lives in rural areas, it is very easy to pass off goods. Thousands of instances of passing off can be found out throughout India. Right from garments to tobacco to toothpaste to pencils to pens, you name it, you find it. Unfortunately, a legal solution has evaded most of these. But with the Trademarks Act, 1999 providing protection against passing off, situation has improved, as can be observed from a huge splurge in the number of Indian cases concerning passing off in the recent past. Passing off has come a long way through the common law system and now has some well defined principles and ambit. Perhaps the time is ripe to bring in legislation and enact a statute concerning passing off.

REFERENCES

1. R.F.V. HEUSTON AND R.A. BUCKLEY, SALMOND & HEUSTON ON THE LAW OF TORTS, 395-399 (20th Ed. 2004).

2. W.L. Morison, Unfair Competition and ‘Passing-off’, 2 Sydney Law Review. 50. (1956)

3. Suman Naresh, Passing-Off, Goodwill and False Advertising: New Wine in Old Bottles, 45(1) The Cambridge Law Journal. 97 (1986).

4. Andrew Christie, Of Passing off and Plastic Lemons, 49(3) The Cambridge Law Journal. 403 (1990)

5. Peter Russell, Passing off by Misdescription, 43(3) The Modern Law Review, 336-340 (1980).

6. http://www.valuadder.com/glossary/business-goodwill.html

7. http://www.ventureline.com/accounting-glossary/G/goodwill-definition/

8. http://www.legalserviceindia.com/article/l226-Trademark-Infringement-&-Passing-Off.html

9. The Trademarks Act, 1999.

LIST OF CASES REFERRED

1. Southern v. How, (1618) Cro. Jac. 468, Poph. 14.3, 2 Roll. Rep. 26.

2. Dean v. Steel, (1626) Latch 188.

3. Blanchard v. Hill, (1742) 2 Atk. 484.

4. Millington v. Fox, (1838) 3 My. & Cr. 338.

5. Cartier v. Carlile, (1862) 31 Beav. 292.

6. Edelsten v. Edelsten, (1863) 1 De G., J. & S. 185.

7. Hendricks v Montagu, (1881) 17 Ch.638

8. Spalding & Brothers v. Gamage (A W) Ltd, (1915) 84 LJ Ch 449

9. J Bollinger v. Costa Brava Wine Co. Ltd., [1960] Ch 262

10. Erven Warnink v. J Townend & Sons (Hull) Ltd, [1979] AC 731

11. Reckitt and Colman Ltd. v. Borden Inc., [1990] 1 All E.R. 873

12. Calvin Klein Inc. USA v. International Apparel Syndicate, MANU/WB/0083/1994

13. N. R. Dongre v. Whirlpool Corporation, (1996) 5 SCC 714

14. Kishore Zarda Factory (P) Ltd. v. J.P. Tobacco House, AIR 1999 Delhi 172

15. Honda Motors Co. Ltd. v. Mr. Charanjit Singh and Ors, 101 (2002) DLT 359

16. Colgate Palmolive Company and Anr. v. Anchor Health and Beauty Care Pvt. Ltd, 108 (2003) DLT 51

17. Smithkline Beecham v. V.R. Bumtaria, MANU/DE/2890/2005

18. North America Inc. v. Intercontinental Brands (ICB) Ltd., (2010) EWHC 17 (Ch)

DOMESTIC VIOLENCE AGAINST WOMEN IN INDIA

In India where almost half of the population are women, they have always been ill-treated and deprived of their right to life and personal liberty as provided under the constitution of India. Women are always considered as a physically and emotionally weaker than the males, whereas at present women have proved themselves in almost every field of life affirming that they are no less than men due to their hard work whether at home or working places. Behind closed doors of homes all across our country, people are being tortured, beaten and killed. It is happening in rural areas, towns, cities and in metropolitans as well. It is crossing all social classes, genders, racial lines and age groups. It is becoming a legacy being passed on from one generation to another. But offences against women which reflects the pathetic reality that women are just not safe and secure anywhere. According to a latest report prepared by India’s National Crime Records Bureau (NCRB), a crime has been recorded against women in every three minutes in India. Every 60 minutes, two women are raped in this country. Every six hours, a young married woman is found beaten to death, burnt or driven to suicide.

Violence against women is not a new phenomenon. Women have to bear the burns of domestic, public, physical as well as emotional and mental violence against them, which affects her status in the society at the larger extent. The statistics of increasing crimes against women is shocking, where women are subjected to violence attacks i.e. foeticide, infanticide, medical neglect, child marriages, bride burning, sexual abuse of girl child, forced marriages, rapes, prostitution, sexual harassment at home as well as work places etc. In all the above cases women is considered as aggrieved person.

The term used to describe this exploding problem of violence within our homes is ‘Domestic Violence’. This violence is towards someone who we are in a relationship with, be it a wife, husband, son, daughter, mother, father, grandparent or any other family member. It can be a male’s or a female’s atrocities towards another male or a female. Anyone can be a victim and a victimizer. This violence has a tendency to explode in various forms such as physical, sexual or emotional. ‘Domestic Violence’ includes harms or injuries which endangers women’s health, safety, life, limb or well being, whether mental or physical. It may also be through physical, sexual, verbal, emotional and economic abuse. According to ‘United Nation Population Fund Report’, around two-third of married Indian women are victims of Domestic Violence attacks and as many as 70 per cent of married women in India between the age of 15 and 49 are victims of beating, rape or forced sex. In India, more than 55 percent of the women suffer from Domestic Violence, especially in the states of Bihar, U.P., M.P. and other northern states.

What amounts to domestic violence against women? -Domestic Violence undoubtedly a human right issue where it is very important to know what actually leads to act of domestic violence. The most common causes for women stalking and battering include:- exploitation of women for demanding more dowry, discrimination of women, alienation of women’s self acquired property fraudulently, torture by husband and in-laws of the husband, arguing with the partner, refusing to have sex with the partner, neglecting children, going out of home without telling the partner, not cooking properly or on time, indulging in extra marital affairs, not looking after in-laws, cruelty by husband or in-laws mentally or physically, abusing & insulting by using vulgar language, sexual harassment, molestation, immoral traffic, rape, sodomy and all other inhuman acts. In all above stated causes women are subjected to torture and will be considered as the aggrieved person. Usually violence takes place due to lack of understandings between the couple as well as in the family.

The consequences of domestic violence attack on women, which will affect victim as well as family of the victim. Domestic Violence affects women’s productivity in all forms of life i.e. assaulted women will always get agonized and emotionally disturbed and remain quite after occurrence of the torment. The suicide case of such victimized women is also a deadly consequence and the number of such cases is increasing day by day. A working Indian woman may lose her efficiency in work or drop out from work in some cases. Domestic Violence may affect the life of children at the larger extent because child will be having greater attachment with her mother and once the mother’s grief and sufferings revealed then child may turn silent, reserved and express solace to the mother. In some of the cases violence will lead to maintain distance from the partner whereby sexual life gets affected adversely. Sometimes marriage life will become a burden to the spouse and one of the spouses will opt out for divorce or separation which again affects life of the children.

In a case where wife is beaten up by her husband doesn’t amount to domestic violence unless a sufficient reason of violation of right to life is shown. In another case where the women just not given food, it amounts to domestic violence if it is intended to achieve the ultimate purpose of necking her out of the benefits of shared household.

To prevent violence against women and to protect the rights of aggrieved women, the legislation ‘The Protection of Women from Domestic Violence Act, 2005’ was passed by the parliament. According to this act every women who have been deprived of their right to life by the act of husband or relatives of the husband, can file a complaint to the protection officer, police officer or magistrate in the form of ‘Domestic Incident Report’ (Similar to FIR). Complaint can be filed by the victim /aggrieved person or relatives, it will be considered as the prima-facie evidence of the offence. Every ‘Domestic Incident Report’ has to be prepared by the Protection Officer which will assist in the further investigation of the incidence. The protection officer will pass certain orders i.e. protection of the women, custody of respondent and order of monetary relief to the victim.

The Government of India should come out with some more stringent laws to protect the rights of women who are victims of violence of any kind occurring within the family, so that it will work as the preventive measure to eradicate the crime. A strict law to be passed to punish those women who are filing a false compliant against husband or relatives by misusing of Domestic Violence Act so that there will be fair justice to all.

 DHAWESH PAHUJA

A CRITICAL ANALYSIS OF THE DOCTRINE OF LEGAL PRECEDENTS

ADITI GHOSH

 INTRODUCTION:

Judicial methods are the techniques adopted by the judges in deciding cases. Judicial method plays an important role in the development of law, irrespective of the fact whether a community lives in rural simplicity or modern complexity, or whether it follows case laws to decide cases or codified laws. In this paper the researcher is going to discuss the judicial method of legal precedents and the fundamental issues raised by following this method.

There are two types of law – statute law and common law. The first category refers to the law passed by the parliament, it is written and must be adhered to. The second type is the common law where judges decide cases by looking at previous decisions that are sufficiently similar and utilize the principle followed in that case. This is called stare rationibus decidendi, usually referred to as stare decisis, which means ‘Let the decision stand’.

Hence a court may be bound by the statutes or by the decisions of the superior courts. And to understand what judicial precedence and ratio decidendi are, we must study this area of the legal system ie following case laws and legal precedents.

One of the functions of the judicial opinion is to help preserve the confidence of the bar and the public in the ability, learning, fairness and open mindedness of the judiciary as a whole, as well as the careful attention due to the particular case, by indicating the grounds upon which the decision is based whenever the case is one not entirely clear.

WHAT IS MEANT BY A PRECEDENT?

A precedent or authority in common law parlance means a previously decided case which establishes a rule or principle that may be utilized by a court or a judicial body in deciding cases that are similar in facts or issues.

TYPES OF PRECEDENTS

There are different types of precedent within the law.

ORIGINAL PRECEDENT

The first is ‘original precedent’ which refers to a case having a point of law which has never been decided before, then the decision of the judge in such a case forms an original precedent. Eg. The famous case of Donoghue v Stevenson (case of negligence of the manufacturer and the duty of care he owes to his customers). In such a case the judge has to reason by analogy and look at cases that are similar and are closest in principle and thus arrive at a judgment by using similar reasoning.

AUTHORITATIVE OR BINDING PRECEDENT

As the name suggests authoritative precedent or decision (a.k.a binding decision) is one which judges must follow whether they approve it or not. It is also known as mandatory precedent or binding authority. As per the doctrine of stare decisis, a court lower in the hierarchy follows and honours the findings of law made by a court higher in the hierarchy. The decisions of lower courts are not binding on courts higher in the system.

Lower courts are bound by precedent (that is, prior decided cases) of higher courts within their region.

PERSUASIVE PRECEDENT

And a persuasive decision or precedent is one which the judges are under no obligation to follow but which they will take into consideration and attach as much weight as it deserves.

It is a precedent that the court need not follow, but may consider when a decision is being made as it is relevant and might be useful. Persuasive precedent comes from many places. Courts lower in the hierarchy can create a persuasive precedent.

These cases could be cases that are decided by lower courts, or courts equivalent in the hierarchy or in some exceptional circumstances, cases of other nations, judicial bodies of the world etc.

Once a persuasive precedent has been adopted by a higher court it becomes a binding precedent for all the lower courts that time onwards.

THE DOCTRINE OF STARE DECISIS?

“Stare decisis” is an abbreviation of the Latin phrase “stare decisis et non quieta movere” which translates as “to stand by decisions that are already settled and not to disturb those settled matters”. And “Stare decisis” literally means “to stand by decided matters”.

Stare decisis is a policy adopted by the court to stand by a precedent. The word “decisis” means ‘the decision’. Under the doctrine of stare decisis, the decision of the court for a case is only what is important and not the real facts and proceedings of the case. In other words it is the ‘what’ of a case which is important and not the ‘how’ and ‘why’.

The principle of stare decisis can be divided into two components or principles:

The first is the rule that a decision made by a higher court is binding precedent which a lower court cannot overturn.

The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and lower courts. The second principle is an advisory one which courts can and does occasionally ignore.

Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other jurisdiction. Other factors include the date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as authority for a given proposition, although this is not necessarily so. And on some occasions, the judge’s reputation may affect the degree of persuasiveness of the authority.

Glanville Williams in Learning the Law (9th ed. 1973), describes the doctrine in simple terms :

What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.

The ratio decidendi [reason of deciding] of a case can be defined as the material facts of the case plus the decision thereon. The same learned author who advanced this definition went on to suggest a helpful formula. Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B and C are material and fact A immaterial, and then reaches conclusion X (e.g. judgment for the plaintiff, or judgment for the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist the conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy.

For stare decisis to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case. In India, The Supreme Court of India is the supreme authority in legal matters as it is the highest judicial body and the cases decided by it form the precedent for all the other courts in India; it includes the High Courts, district courts and the other lower courts. The Supreme Courts serves as the precedential body, resolving conflicting interpretations of law. Whatever this court decides becomes judicial precedent.

It has been stated by The United States Court of Appeals for the Ninth Circuit :

“For the system of precedents to work effectively there are three elements that are very important to be present in the legal system of that country. First, there needs to be an undisputed and accepted hierarchy of courts with one court having the supreme authority over all the other courts of the land. The second is the presence of an efficient law or case reporting system. And the third element is to strike a balance between the need of having consistency and certainty in legal matters resulting from following the previously decided binding cases and on the other hand to avoid the restricting effect on the development of law by following such a method. ”

HOW RELEVANT IS THE IDEA OF JUDICIAL PRECEDENTS?

In the words of one British journalist, “Judicial precedent means a trick which has been tried before, successfully.”

In the language of a layman the term ‘precedent’ implies that what was done before should be done again the same way. The method adopted in any problem solving exercise is to find out if a similar problem has been tackled before. If yes, then the next step is to find out the degrees of similarity that exists between the problems. If the similarities are found to be significant then next it needs to be analysed whether the same principle that was applied to the previously solved problem can be applied successfully to solve the problem at hand. This way the precedent works as an effective guide to solve new problems having similarity with the earlier one. This helps in achieving consistency and certainty in legal matters. And the corollary of this situation is that people making decisions are often afraid to do something new and striking in case ‘it creates a precedent’. In the words of a renowned legal philosopher and Scottish politician, MacCormick:

“To understand case-law . . . is to understand how it is that particular decisions by particular judges concerning particular parties to particular cases can be used in the construction of general rules applying to the actions and transactions of persons at large.”

WHAT IS THE BINDING ELEMENT OF A CASE?

What is binding on the lower court??

Every judgment contains four major elements:

• statement of material (relevant) facts

• statement of legal principle(s) material to the decision – the ratio decidendi

• discussion of legal principles raised in argument but not material to the decision – obiter dicta

• the decision or verdict

It is not the entire judgement that is binding on the lower courts but only the ratio decidendi. The ratio decidendi of a case is the underlying principle or legal reason on which the result of the case depends. This ratio is different from the obiter dicta which is not held to be binding but may be regarded as having persuasive control. And what we are concerned with is not who won or lost but the legal principles that can be extracted from the case which is known as the ratio decidendi. In the words of the Supreme Court: “A decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein.”

WHY SHOULD WE FOLLOW PRECEDENTS IN DECIDING CASES?

The weight attached to precedent in every department of life is closely connected with the force of habit, and has its root deep in human nature. That judicial precedents have exercised great influence in all systems of law is more than probable; the feeling that a rule is morally right has often arisen from the fact that it has long been followed as a rule; but the degree in which judicial decisions have been openly recognized as authoritative, simply because they are judicial decisions, has varied greatly in different systems. Judges are everywhere largely influenced by what has been done by themselves or their predecessors, but the theories to explain and control such influence have been diverse, and the development of the law has not been unaffected by them.

The purpose is to create certainty and fairness. Precedent is created by the judgements on past cases. The judgement is the speech made by the judge who has made the decision on the case, and it is split into two parts. It should be noted that there is often more than one judge hearing a case, and so there may be many judgements on one case. The first part is the “ratio decidendi” (“reason for deciding”). This is the most important part as it gives the judge’s decision.

That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of American philosopher William K. Frankena as to what constitutes injustice:

The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all between the individuals concerned and their circumstances, he or they will be guilty as charged.

The critics of the doctrine accept it as the general rule but chafe under it when the staleness of old law leads to unfairness and injustice. For example, Lord Denning, the former Master of the Rolls has argued:

“If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice.”

The benefit of following precedents in deciding cases provides certainty to judges in deciding cases, people to plan and lawyers to advice their clients. It provides sufficient flexibility to common law to develop in order to meet the changing times. This method balances these two competing aims.

How significant are the differences?

Similarities and differences both are equally important in deciding the precedents to be applied to a case. Only because the fact looks apparently similar does not necessarily mean that both the cases should be decided in the same manner.

For example if a dog of German Shepherd breed called Tommy howls in a way similar to that of wolf doesn’t mean that every other German Shepherd dog would howl similarly. This syllogism here is thus faulty.

CIRCUMSTANCES WEAKENING AND STRENGTHENING THE AUTHORITY OF A PRECEDENT

There can be ways through which precedents may be overruled or judges may chose to deviate from using the precedent.

The first is called per incuriam. Here due to a significant oversight, an important statute was overlooked and this affected the decision significantly. In other words per incuriam means that a court failed to take into account all the relevant and vital statutes or case authorities and that this had a major effect on the decision. The second reason is the ‘lapsed rule’, this simply means that the previous decision was valid when it was made but has simply been outdated. The final reason is if there are conflicting decisions within the Court of Appeals own decisions, this could occur if two similar cases were being tried at the same time but different verdicts were reached. This would mean that the next time a similar case came to be heard there would be two conflicting precedents from which to choose. Therefore one of those decisions would have to be overruled. In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent.

The relief or tool available to a judge who wishes to avoid following a previous decision which they would otherwise be bound to follow is called distinguishing. When a judge finds the material facts of the present case to be sufficiently different from the earlier case he may distinguish the two cases and refuse to follow the earlier decision. An advantage of distinguishing is that it helps to keep judicial precedent and the law flexible.

The lawyer can argue that while the precedent case does stand for the legal proposition for which it has been cited, the case at bar is different; that is, the cases are factually distinguishable. Glanville Williams suggests that there are two kinds of “distinguishing”: restrictive and non-restrictive and states:

“Non-restrictive distinguishing occurs where a court accepts the expressed ratio decidendi of the earlier case, and does not seek to curtail it, but finds that the case before it does not fall within this ratio decidendi because of some material difference of fact. Restrictive distinguishing cuts down the expressed ratio decidendi of the earlier case by treating as material to the earlier decision some fact, present in the earlier case, which the earlier court regarded as immaterial.”

There are various factors that strengthen the authority of a precedent. The number of judges constituting the bench, their eminence and the majority strength in the decision (a unanimous decision is considered more valuable). Also the lapse of time meaning thereby the years that have passed after the judgement and its relevance in present times. All these factors help in strengthening the hold of a precedent.

ADVANTAGES AND DISADVANTAGES OF THE DOCTRINE OF JUDICIAL PRECEDENTS

There are both advantages and disadvantages in following the method of precedents in deciding cases.

The most significant advantage is the element of consistency and certainty that is brought in with the application of precedents. A good decision making process must be consistent. Similar cases must be decided similarly to avoid inconsistency. Consistency is perhaps the most important advantage claimed for the doctrine of judicial precedent. It may also allow persons generally to order their affairs and come to settlements with a certain amount of confidence. The interests of justice also demand impartiality from the judge. In this method the Judges have clear cases to follow. This is assured by the existence of a binding precedent, which he must follow unless it is distinguishable. If he tries to distinguish an indistinguishable case his attempt will be obvious. And hence this method ensures impartiality from the judge. Case law is practical in character. It is based on the experience of actual cases brought before the courts rather than on logic or theory. Case laws are viable statute law and the rules and principles are derived from everyday life. This means that it should work effectively and be intelligible and is thus practical. It removes any element of ambiguity regarding the authority of the binding precedents and enables lower courts to follow the decisions of higher courts unanimously. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances. There has built up over the centuries a wealth of cases illustrative of a vast number of the principles of English law. Also the hierarchy of the courts ensures that lower courts follow higher courts and this leads to an orderly development of law. It is also a convenient timesaving method. If a problem has already been answered, it is natural to reach the same conclusion by applying the same principle. It also helps save unnecessary litigation. The existence of a precedent may prevent a judge making a mistake that he might have made if he had been left on his own without any guidance. The doctrine of precedent may serve the interests of justice. It would be unjust to reach a different decision in a similarly situated case.

The most evident disadvantage of this method is the rigidity it confers on the development of law. The doctrine of stare decisis is a limiting factor in the development of judge-made law. Practical law is founded on experience but the scope for further experience is restricted if the first case is binding. The cases exemplify the law in great detail, therein lies another weakness of case law. It is in bulk and its complexity makes it increasingly difficult to find the law. There are so many cases that it is hard for judges to find relevant cases and the reasoning may not be clear. The convenience of following precedent should not be allowed to degenerate into a mere mechanical exercise performed without any thought. Judicial mistakes of the past are perpetuated unless bad decisions happen to come before the court of appeal for reconsideration. A system that was truly flexible could not at the same time be certain because no one can predict when and how legal development will take place. However, the advantage of certainty is lost where there are too many cases or they are too confusing. The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it. Precedent may produce justice in the individual case but injustice in the generality of cases. It would be undesirable to treat a number of claimants unjustly simply because one binding case had laid down an unjust rule.

CONCLUSION

This paper has focused on one aspect of legal reasoning and argument, that of the use of precedent. However, it must be conceded that stare decisis is only a part of this topic. There is much more. There are substantive rules for the interpretation of statutes, there are unique considerations when principles of the law of equity are involved and problems caused by the evidentiary rules of onus of proof. Yet, while the multitude of these rules provides the lawyer with a large variety of other tools and techniques for legal reasoning and legal argument, it also has to be conceded that stare decisis continues to play the pivotal role. The great American judge, Oliver Wendell Holmes Jnr, had said ‘The life of the Law has not been logic; it has been experience’. It can be concluded that for an organized and orderly development of law the method of using judicial precedents is inevitable.

Lord Halsbury has said that there is more to the law than a mechanical process of logical deduction. It is obvious that the Judge has in every case to decide for himself which of the circumstances of the alleged precedent were relevant to the decision and whether the circumstances of his own case are in their essentials similar. Once he has decided which principle to apply, a bit of logic may enter into his application of principles. But there cannot always be a principle which imposes itself or an absolutely inescapable logical deduction. Generally there is a choice. And this has been explained by Chandrachud, C.J. in Deena v. Union of India as “Any case, even a locus classicus, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of the decision cited as a precedent.”

WILL under Indian Law

Will is the legal declaration of a person’s intention which he wishes to be performed after his death and once the Will is made by the testator it can only be revoke during his lifetime. A person cannot give his ancestors property in the form of a Will but he can make a Will only of his Self-Acquired property. A Will does not involve any transfer, nor affect any transfer inter-vivos, but it is an expression of intending to appoint a person who will look after the properties after his (Testator) death. A Will regulates the succession and provides for succession as declared by the testator.

Historical Background of ‘Wills’: As the time rolled the emergence of the Will became more popular, Indian Law which is governed under ‘Section: 5’ of “The Indian Succession Act, 1925” which provides different rules for intestate succession and testamentary succession in India. It applies to all the communities in India except Muslim community. In India there is a well developed system of succession laws that governs a person’s property after his death. ‘The Indian Succession Act 1925’ applies expressly to Wills and codicils made by Hindus, Buddhists, Sikhs, Jains, Parsis and Christians but not to Mohammedans as they are largely covered by Muslim Personal Law.

 Statutory Definition of ‘Will’: The term ‘Will’ is defined under ‘Section: 2(h)’ of The “Indian Succession Act, 1925”, means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. A testator is authorised with a power to appoint any person as beneficiary of his Will whereas ‘Section: 5’ deals with the law regulating succession to deceased persons moveable and immovable property

Meaning of ‘will’: A Will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at the time of death. A Will can be made by anyone above 21 years of age in India. A Will is a statement made by a testator in the written form stating the manner in which his estate/property must be distributed after his death. A Will being a testamentary document comes into effect after the death of the testator and if the person dies without writing any Will then he is said to be have died intestate. The person in whose favour the testator bestows the benefits called beneficiary or legatee. A Will is otherwise called as Testament.

 Features of A Valid ‘Will’: There are certain characteristics which should be included in the instrument of will such as :-

• The Name of The Testator: The name of the testator should be mentioned accurately without any error in initials, spelling or grammatical mistake so that it will not affect the instrument of Will. The name of the testator can also be clarified by looking into his birth certificate or any school certificates.

• Right To Appoint Legatee: The testator is having absolute right to appoint any person as a legatee or beneficiary of a Will and legatee should execute the Will carefully and in accordance with the law.

• To Take Effect After Death: A testator who is having power to make the Will during his lifetime, but it will take effect only after his death. A gift made by a person during his lifetime and will take effect during his lifetime, cannot be considered as a Will.

• Revocability Under The Law: In general a Will made by the testator can be revoke at any time during his lifetime and testator can choose any other person as his legatee. There may be chances where a testator wishes to bring some alterations in the Will then he can make some necessary amendments in the prepared Will which is otherwise called as Codicil. A third party can not file a civil suit against the testator on the ground of cancellation of the Will. A Will made by the testator may be irrevocable in some cases where an agreement is entered into contrary to the Will, may bind the testator.

• Intention of The Testator supreme: The testator of the Will has right to revoke Will at any time which can only be proved by the intention of the testator that whether he is intending to revoke the previous testamentary instruments made by him or he can state in his Will that ‘This is my last Will’ then it can be presumed that all the earlier testamentary instruments has been revoked.

• The Declaration to be ‘Last Will’: A person as testator has power to make declaration of Will unnumerable times but it is always the last will of testator which will prevail. The words “I declare this to be my last will” need not be stated in the instrument of the Will. Once the Will is made by the testator Inserting of words ‘Last and Only will’ at the time of death it can be presumed that all the previous Wills will get revoked and fresh Will has to be effected.

• Lost Subsequent ‘Will’: Mere loss of the original Will does not operate a revocation but it has to be inferring by the stringent evidence to prove its revocability and a testator must show the genuine reasons for the loss of the Will. Once it is proved that a original will is lost then ‘Subsequent Will’ will be valid.

 Kinds of ‘Wills’: A testator who has right to make a Will for the future benefits of his family members which will take effect after his death, the there are certain types of Wills which has to be looked into:

1. Privileged ‘Wills’: As it can be understood from the word privilege provided to certain persons. A privileged Will is one which is made by any soldier, airman, navy persons, mariner who are willing to dispose of their estate during their course of employment. A soldier includes officers and all other rank officers of service but does not include a civilian engineer employed by the army, having no military status. A soldier while making an instrument of Will must have attained the age of 18 years and where a will made by the soldier is in the oral form, will be valid only for a month though a written Will always remain operative. A privileged Will may be revoked by the testator by an unprivileged Will or codicil, or buy any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged Will, or by the burning, tearing or otherwise destroying the same by the testator.

2. Unprivileged ‘Wills’: Wills executed according to the provisions of ‘Section 63’ of the ‘Indian Succession Act, 1925’ are called Unprivileged Wills. An unprivileged Will is one which is created by every testator not being a soldier, airman, mariner so employed. An unprivileged Will like Codicil can be revoked by the testator only by another Will or by some writing declaring an intention to revoke the same and to be executed in the manner in which an unprivileged Will can be executed under the Act or by burning, tearing or destroying of the same by the testator or by some other person in his presence and by his directions with the intention of revoking the same.

Who Can Make ‘Will’: Every person who is competent to contract may make a will but he must be major, sound mind and willing to write a Will. Any person who is the sole owner of a self-acquired property can bequeath by way of will. A person of unsound mind can also make a will but only in lucid intervals. A Will cannot be made by some persons i.e. minors, insolvent, persons disqualified under any law by the court. A Will executed by a minor is void and inoperative though a testamentary guardian can be appointed for the minor to dispose off the property. A Will can be made by the deaf and dumb person by showing consent through writing or gestures in sign language. Nothing prevents a prisoner or alien in India from drawing a Will.

For Whom The ‘Will’ Can Be Made: Any person capable of holding property can be a legatee under a will and therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person can be a legatee. Sections 112 to 117 of ‘Indian Succession Act, 1925’ put some restrictions on the disposition of property by will in certain cases. Dispositions of property by will in some cases have been declared void. If the minor person has been named as legatee by a testator then a guardian should be appointed by the testator himself to manage the bequeathed property.

What Can Be Bequeath In A ‘Will’: Any movable or immovable property can be disposed off by a will by its owner, that property must be a self acquired property of that person and it should not be an ancestral property of the testator. According to Section: 30 of ‘Hindu Succession Act, 1956’ provides that any Hindu may dispose off by will or other testamentary disposition any property, which is capable of being so, disposed of by him in accordance with law.

General Procedure To Make A ‘Will’: A ‘Will’ should be prepared with utmost care and must contain several parts to make a complete Will though there is no defined format for making a Will but a general procedure should be adopted while writing a Will by the testator which includes:

1. Declaration In The Beginning: In the first paragraph, person who is making a Will, has to declare that he is making this Will in his full senses and free from any kind of pressure and undue influence and he has to clearly mention his full name, address, age, etc at the time of writing the Will so that it confirms that a person really wishes to write a Will.

2. Details of Property and Documents: The next step is to provide list of items and their current values, like house, land, bank fixed deposits, postal investments, mutual funds, share certificates owned by testator. He must also state the place where he has kept all the documents if the will documents are under safe custody of the bank then testator has to write details about the releasing of the Will from the bank. Here it is the most important duty of the testator to communicate the above matter to the executor of the Will or any other family members, which will make the Will valid after testator death.

3. Details of ownership By The Testator: A testator while making a original Will should specifically mention that who should own his entire property or assets so that it will not affect the interest of the successors after his death. If testator wishes the name of the minor as beneficiary then a custodian of the property should be appointed to manage the property.

4. Attestation of the ‘Will’ : At the end, once the testator complete writing his Will, he must sign the will very carefully in presence of at least two independent witnesses, who have to sign after his signature, certifying that the testator has signed the Will in their presence. The date and place also must be indicated clearly at the bottom of the Will. It is not necessary that a person should sign all the pages of the Will instrument but he must sign to avoid any legal disturbances.

5. Execution of A ‘Will’: On the death of the testator, an executor of the Will or an heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they have any objections to the Will. If there are no objections, the court will grant probate .A probate is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. In case any objections are raised by any of the heirs, a citation has to be served, calling upon them to consent. This has to be displayed prominently in the court. Thereafter, if no objection is received, the probate will be granted and It is only after that Will comes into effect.

 Registration of ‘Wills’: According to the Section: 18 of the ‘Registration Act, 1908’ the registration of a Will is not compulsory. Once a Will is registered, It is a strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after. The process of registration begins when a Will instrument is deposited to the registrar or sub-registrar of jurisdictional area by the testator himself or his authorised agent. Once the scrutiny of Will instrument is done by the registrar and registrar is satisfied with all the documents then registrar will make the entry in the Register-Book by writing year, month, day and hour of such presentation of the document and will issue a certified copy to the testator. In case if registrar refuses to order Will to be registered then testator himself or his authorised agent can institute a civil suit in a court of law and court will pass decree of registration of Will if court is satisfied with the evidence produced by the plaintiff. A suit can only be filed within 30 days after the refusal of registration by the registrar. If the testator willing to withdraw the Will after the process of registration then a sufficient reason has to be given to registrar, if satisfied he will order for the registration of Will.

Revocation of ‘Wills’: A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will. A Will can be revoked by testator of the Will at any point of time which can be classified into two aspects such as:-

• Voluntary Revocation: A testator who wishes to revoke his original Will which is made by him on a specified date and time, he can make revocation of the will himself by writing a subsequent Will or codicil duly executed and by destruction of the previous will, means by burning, tearing, destroying or striking out the signature of the original instrument of a Will.

• Involuntary Revocation: According to the Section: 69 of the Indian Succession Act, 1925 which deals with revocation of will by the testator’s marriage, however this provision does not apply to Hindus. Section 57 of the Indian Succession Act clearly states that a testator’s marriage will not make the Will invalid.

 Probate: It is the copy of the will which is given to the executor together with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the will has been proved. The application for probate shall be made by petition along with copy of last Will and testament of the deceased to the court of competent jurisdiction. The copy of the will and grant of administration of the testator’s estate together, form the probate. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator. A probate is obtained to authenticate the validity of the will and it is the only proper evidence of the executor’s appointment. The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator. Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased.

 ‘Wills’ By Muslims Under ‘Mohammedan Law’: A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property. The Mohammedan Law restricts a Muslim person to bequeath his whole property in a will and allows him to bequeath 1/3rd of his estate by writing will, which will take effect after his death. A will may be in the form of oral or written if the will is in writing need not be signed if signed need not be attested. Acc to Shia Law if served bequests are made through a will, priority should be given to determination by the order in which they are mentioned a bequest by way of will. A Will Can be made by a person who is of sound mind, major and possessing a absolute title, in favour of a person who is capable of holding property except unborn persons and heirs. The revocation of will is possible only if the subsequent Will is made by the testator. A Muslim person who is allowed to bequeath 1/3rd of his estate, he can exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs gives consent or only heir is husband or wife.

Statutes Relating To ‘Wills’: There are many laws which are dealing with the concept of ‘Wills’ as follows:

Indian Succession Act, 1925

• Hindu Law (Hindus Personal Law)

• Muslim Law (Muslims Personal Law)

• Indian Registration Act, 1908

Anti-Terrorism Laws – Distinguishing Myth or Reality

“Every man when driven to the wall by a murderous assailant will override all laws to protect himself and this is called the great right to self defence” by ABRAHAM LINCOLN.

Anti-Terrorism Laws It is the ‘great right of self defence’ from which the moral justification to all anti-terrorism laws is derived. The term “terrorism” comes from the French word “terrorisme” which is based on the Latin verb terrere(to cause to tremble).It was used to describe the actions of Jacobin Club in their rule of post revolutionary France ,the so called ‘Reign of Terror’. Terrorism is defined in the U.S. by the code of Federal Bureau of Investigation as “the unlawful use of force and violence against person or property to intimidate coerce a government, the civilian population or any segment thereof, in furtherance of political or social objectives.”

Terrorism has immensely affected India. Anti-terrorism laws in India have always been a subject of much controversy. One of the arguments is that these laws stand in the way of fundamental rights of citizens guaranteed by part III of the Constitution. Anti-terrorism laws are laws made by the government which guides the practices, tactics, techniques and strategies that government, militaries, police departments and corporations adapt in response to terrorist threats and acts both real and implied.

The need of anti-terror laws in the present scenario .Under Article 355 of the Indian Constitution the central government has a duty to protect states from internal disturbances. The dramatics of the December 13th attacks on the parliament building combined with the September 11th atrocities in the United States, gave rise to need of increasing power of security forces despite long history of past abuses. The United Kingdom adoption of the Prevention of Terror Act and United States PATRIOT Act strengthened the notion that other countries had acknowledged the need to move beyond traditional domestic criminal procedure in order to properly battle terrorism. In one of the Indian cases in which the Supreme Court took note of it in Kartar Singh V. State of Punjab , where it observed that country had been in the firm grip of spiraling terrorist violence and it’s caught between deadly pangs of disruptive activities.

The first law made in independent India to deal with terrorism and terrorists activities that came into force on 30th December 1967 was-The Unlawful Activities (Prevention) Act 1967.This was an act to provide for the more effective prevention of certain unlawful activities of the individual and associations and for matters connected there with. The UAPA Act is particularly vile, and will have the effect of turning India into a virtual police state. The myth of UAPA Act is that it containing a number of draconian clauses. On 14 May, 2007 a prominent doctor and human rights defender Dr Binayak Sen was arrested under this act by Chhattisgarh government. This raised a lot of criticism of this act again and 22 Noble Prize winners wrote to Indian Government in response for release of Dr Sen, arguing that “he is charged under two internal security laws that does not comport with international human rights standards.” Now after the November 26-29 attack UAPA Act has been amended. Now it is also applicable to the entire country, which was originally not extended to the strife-torn state of Jammu and Kashmir. In Kalyan Chandra Sarkar V. Rajesh Ranjan @ Pappu Yadav and Anr the court stated that the law in regard to grant or refusal of bail is very well settled. The hardcore reality is that The Unlawful Activities (Prevention) Amendment Act,2008 is what is called true example of –Repeating the mistakes of past. The new definition now includes acts done with the intent to threaten or “likely” to threaten the unity, integrity, security or sovereignty of India, and offences related to radioactive or nuclear substances, and even attempts to overawe, kidnap or abduct constitutional and other functionaries that may be listed by the government. “The list is potentially endless”. Under the Act, an accused can be held liable in police custody for 30 days, and further detained without charges for 180 days, although courts can restrict the period to 90 days. “This is a travesty of constitutional rights and the rule of law”. “Even worse is the presumption of guilt in case there is a recovery of arms, explosives and other substances, suspected to be involved, including fingerprints on them. The police in India routinely plants such arms and explosives, and create a false record of recovery.”When coupled with the denial of the presumption of innocence, the 2008 amendment empowers the government to construe anything as a terrorist act. This is a dangerous development that threatens ordinary citizens who may be prosecuted under the amended UAPA if it is politically convenient. Under this act Central Government has the power to “freeze, seize…attach” and prohibit use of “funds, financial assets or economic resources” of individuals “suspected to be engaged in terrorism”. Thus anyone could be targeted if the government had an interest in freezing their assets or preventing their entry into India, and accused would have little recourse, as suspicion is inherently difficult to disprove. The 2008 UAPA amendments reinstate draconian laws from the past and, in some cases, have been made a permanent feature of the criminal justice system. Terrorist and Disruptive Activities (Prevention) Act and Prevention of Terrorists Activities Act were at least only temporary legislative frameworks, with provisions for their review, and if required withdrawal. The 2008 amendments lack these review mechanisms. India’s UAPA 2004 grants immunity from prosecution to the Indian and State governments, and their employees. Additionally, the 2008 UAPA amendments provide very limited judicial oversight of criminal proceedings. The 2008 amendments have not altered the provisions in the 2004 Act regarding immunity from prosecution for government officers and authorities and for members of the armed forces. Thus, an individual wrongly arrested, detained and/or imprisoned has virtually no legal recourse to seek compensation or combat impunity.

TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987(TADA)

The second major act came into force on 3 September 1987 was the terrorist and disruptive activities (prevention) act 1987 this act had much more stringent provisions then the UAPA and it was specifically designed to deal with terrorist activities in India . When TADA was enacted it came to be challenged before the apex court of the country as being unconstitutional. The Supreme Court held its constitutional validity on the assumption that those entrusted with such draconic statutory power would act in good faith and for the public good in the case of Kartar sing vs. state of Punjab. However, there were many instances of misuse of power for collateral proposes .TADA lapsed in 24 May 1995 other major anti-terrorist law in India is The Maharashtra control of organized crime act 1999which was enforced on 24th April 1999.

The armed force special powers act (hereinafter AFSPA) dealt with a targeted, troubled region within India, The terrorist and disruptive activities (prevention) act of 1987 (hereinafter TADA) was an anti-terrorist legislation that was meant to apply throughout India. TADA allowed for the admission of confessions of detainees in police custody in legal proceedings against them. TADA prescribed various “disruptive activities “ which included not only acts that disrupt the sovereignty or territorial integrity of India ,but also acts which “question” such sovereignty or territorial integrity or “support any claim…directly or indirectly… for the secession of and part of India from the union. Finally, TADA created a presumption of guilt in situations where arm or explosive were found ,in the possession of the accused, which were similar to those used in the terrorist act or in cases where the accused fingerprints were found at scene or vehicles used in terrorist act ,or where the accused rendered any financial assistance to a person accused of or reasonably suspected of a terrorist act, of the 52,998 people detained under TADA at the end of 1992 a mere 434 or 0.81% had been convicted. It is submitted that, the shadow of TADA continues to loom as, even though TADA is longer effect, as the state retains the power to charge suspected persons retroactively for crimes committed during its enactment. Under TADA the conviction rate was less than 1% despite the fact the confessions made to the price, even though being given under torture were admissible as evidence .TADA where 98%of the cases never reached the trial stage this section 48(2) also be misused by the police by keeping an accused for long period of detention without charge could not be trial.

PREVENTION OF TERRORISM ACT 2002

On the 13th of December 2001, five Pakistani terrorist attacked the Indian parliament, killing seven people and placing the country into heightened state of alert, in response to the domestic pressures for the failure to crack down on terrorism, like its American counterpart the Indian central government on 26 March 2002, passed the prevention of terrorism act, though joint session of parliament, to enhance India’s ability to crack down to possible terrorist threats. The criminalization of “abetting “a terrorist, which had been struck down in TADA by the Indian supreme court was revived under POTA. Section 20 of POTA presumes that an individual charged with being a member of a terrorist organization is a terrorist unless that person can show that he or she has not participated in terror activities and that the organization itself was not declared illegal by the state at the time when person joined. Hence by placing this type of onus on the individual, the state inevitably inhibits those peaceful persons who might wish to join a non –mainstream association but fear that doing so could subject them to potential arrest or at the very least to the hassle of having to prove their innocence. Furthermore, section 57 of the act gives the governmental authorities immunity from prosecution under POTA as long as the actions taken to combat terrorism are done in good faith. Moreover, POTA has established special court to handle cases of terrorism. Under section 49(2), of POTA the police may place a suspected terrorist in jail for up to ninety days without any court proceedings. On the 11th of July, 2002 in the state of Tamil Nadu, Vaiko a leader of opposition political party was arrested and charged of violation of section 21 of POTA which prohibits the promotion of any terrorist group explicitly banned by the statute .Vaiko had made remarks in support of the liberation tigers of Tamil Eelam an organization deemed terrorist by the central government. According to the state government on the 29th of June 2002, Vaiko in a speech allegedly stated “I was, I am and I will continue to be a supporter of the LTTE .Two weeks later, P. Neduraman another opposition leader in Tamil Nadu was arrested under POTA for similar charges. In April 2003, Vaiko petitioned the Supreme Court to declare section 21 of POTA as unconstitutional. In December 2003 , a two judged bench of the court refused to grant release and upheld the validity of section 21 however it opined that the special court not find an individual guilty of violating this section for expressing only “moral support” to banned terrorist group. In Uttar Pradesh 25 Dalit were arrested under POTA between April and July 2oo2 .Tribals in the area claim that POTA has been used to characterize their struggle for worker’s right as membership in the banned, extreme leftist Maoist Leninist groups known collectively as naxalites. In one district, “nine out of twelve people arrested were bonded laborers who refused to return to work because of the physical abuse of their employer.” POTA has been used in a similar way in the state of Jharkhand on the 19th of February 2003, almost 200 people were arrested under POTA, including a “twelve year- old boy and an eighty –one year old man”. After the Gujarat communal riots the Gujarat police arrested hundreds of Muslims and charged them with violating POTA not a single Hindu has been charged under POTA. Article 14 of the constitution of India reads, “the state shall not deny any person equality before law or the equal protection of laws “furthermore, article 15 reiterates this tenet more specifically by prohibiting the state from discriminating against any citizen on the basis of” religion, race, caste, sex place of birth or any of them. Two years from the enactment of the POTA a number of issues as to possibilities of misuse of the provisions of the anti-terror law including the targeting of minorities and using it against political opponents had arisen. In Gujarat all except one of the POTA detainees are from the minority and in Tamil Nadu and up to the ostensible anti-terror law has been abused to look, without lucidity and accountability political opponents and underprivileged communities respectively. the development after the enactment of the POTA ,including the responses received by the POTA review committee show that the POTA is worse than TADA .POTA provides for criminal for criminal liability for mere association or communication with suspected terrorist without the possession of criminal intent(section 3(5)of the POTA)section 4 of POTA is similar to section 5 of TADA in laying out the legal presumption that if a person is found in unauthorized possession of arms in a notified area ,he/she is automatically linked with terrorist activity .Sec48(2)provides for the option of pre-trial police detention for up to 180 days. The act effectively undermines the tenet of criminal justice system by putting the burden of proof on accused. Further legal representatives of the accused can be present for the part of the interrogation. Moreover police officers can be prosecuted for abusing their authority. The POTA also provided that victims could pay compensation. At the peoples tribunal of POTA and other security legislation and other security legislation at press club in new Delhi on July 16,2004 a 629 page report based on depositions made before the tribunal by victim s and their families from ten states in India as well as expert depositions by lawyers and activists show that such security legislations grant sweeping powers to authorities ,which hassled to misuse of these power and severe restrictions of basic rights .at the same time, such legislation do not address the political ,social and economic roots of the problem. The tribunal concluded that the review of victim and expert testimony showed that the misuse of the act is inseparable from normal use.

Finally on September 17 2004 the Union Cabinet in keeping with the UPA government’s common minimum program approved ordinances to repeal the controversial prevention of terrorism act 2002(POTA) and amend the Unlawful Activities (Prevention) Act 1967, home minister Shivraj Patil said that government would provide a sunset period of one year during which all cases pertaining to POTA would be reviewed by the central POTA review committee. He added there would be no arrests made after the ordinance is promulgated. To fill the lacuna that have been created due to repeal of the act adequate, amendments were being brought to the unlawful activities (prevention) act 1967to define a terrorist act and provide for banning of terrorist organization and their support systems including funding of terrorism attachment and forfeiture of proceeds terrorism etc. All terrorist organization banned under POTA would continue to remain banned under the unlawful activities act, after the repeal of the act. Some of the clauses contained in POTA which will be completely dropped in the amended unlawful activities act are the onus on the accused to prove his innocence , compulsory denial of bail to accused and admission as evidence in the court of law the confessions made by the accused before the police officer.

A “multi-prolonged approach” has been advocated by the Second Administrative Reforms Commission; incorporating legal reform, improved institutional efficiency, increased resources, and socio-economic development and equality. Such an approach is better placed to deal with domestic terrorism because it reflects the multifaceted nature of terrorism.

NEED FOR ANTI-TERRORIST LEGISLATION IN INDIA

Under article 355 of the Indian constitution ,the central government has a duty to protect the state from internal disturbances. Half a million cases in the high court have been on hold for 10 years or more and almost 1 million in the lower courts .the united kingdom adoption of the prevention of terrorism act and the united states PATRIOT ACT strengthened the notion that the countries had acknowledged the need to move beyond traditional domestic criminal procedure in order to properly battle terrorism.

Firstly, the government should immediately repeal the Unlawful Activities (Prevention) Act, 2008, and enact separate emergency legislation dealing specifically with terrorism.

Secondly, the government must promote social cohesion and address the grievances of its constituents so to “lessen the influence of terrorist propaganda”. Former UN Secretary-General Kofi Annan has argued that “discrimination on the basis of ethnic origin or religious belief ….create[s] grievances that can be conducive to the recruitment of terrorists, including feelings of alienation marginalization and an increased propensity to seek socialization in extremist group.” As highlighted above, past terrorist laws, such as TADA and POTA, have been used to target minority communities in India.

Thirdly, state governments should ensure that any tough anti-terror provisions are balanced by safeguards against brutality, corruption, and discrimination. A number of expert commissions have advocated the establishment of a Police Complaints Authority in each state to ensure that police actions are within law and to allow citizens to lodge complaints against police abuse of power such as arbitrary arrest and detention.

Patent of Inventions, Innovation in Softwares: Patinformatics

A comparative analysis of Global players

Ankit Kumar Singh

A. Background:

The practice of granting monopolies by patent has a long history of over 600 years. The term patent can be traced to the term Letters Patent, a grant in the form of a document rolled up with the King’s or Queen’s seal appended at the bottom, conferring certain rights and privileges on an individual. The grant was not sealed or closed but it was open to public. Though letters patent were granted for various purposes, they were most often granted to inventors, and hence the word ‘patent’ was eventually used to describe the inventor’s monopoly. It only excludes others from practising his invention without his permission. The patent system achieves this goal by granting limited exclusive rights to inventors in return for public disclosure of inventions that would encourage scientific and technological advancement. An invention is the creation of a new technical idea and of the physical means to accomplish or embody it. Thus, there must be a concept and a way of putting the concept into some practical form. An unimplemented idea is not patentable. Software is a set of interacting programmes. Each programme is a sequence of instructions written in a well-defined language, encoding operations, processes or algorithms applied to data in the broadest sense. The programme is initially written in a programming language understandable to professionals. At this stage, it is in the form of ʺsource codeʺ, which permits the development and production of a software product. Once written, this sequence of instructions can be compiled, which means translated and transformed into a binary sequence (of 1s and 0s) signalling the presence or absence of an electric impulse, comprehensible for a machine, but no longer to a human mind. It is then in the form of an ʺobject codeʺ or binary code. In simple words, a computer program, or software, is a “set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” A software-related patent is a “patent that claims as all or substantially all of its invention some feature, function or process embodied in a computer program that is executed on a computer.” A major subject of debate is whether software alone, not in combination with other physical elements or steps, should be, or is, patentable.

B. Arguments in Favour of Patenting:

Although software exists as written text, both as source and object codes, unlike other copyrightable subject matters, its primary purpose is not that they be read by human beings. Rather, software, at least in object code form, is written for the purpose of performing functional tasks. Computer software, in conjunction with the computer, carries out the particular task or set of tasks itself. In short, software is a functional work of technology. Historically, patent protection has always been available for functional subject matters. Patent protection of computer software is that a patent can protect a concept underlying the computer program, and thus would promote the development of the software industry and computer-related industry. Software provides a set of instructions that allow a machine to indicate, perform or achieve a particular function, task or result. In that sense, both hardware and software exhibit technical behaviour.

Since software invention requires considerable investment of time and money, it should be protected. Given the limited ability of copyright to protect the valuable functional aspects of software such as behaviour and structure, sequence, or organization, second comers could simply copy these aspects either directly from the source code or by decompiling the object code. These kinds of practices diminish the real value software and deprive the original developers of the ability to recoup their development costs and from earning money from their inventions. Therefore, the prospect of obtaining an exclusive right to practice and/or license an invention under patent protection gives inventors important financial incentives to invest time and resources in developing new inventions.

The reward in the shape of a patent serves as an incentive to innovators, as it can be argued that developers need means to recuperate their investment. In other areas of innovation, patents have encouraged substantial investment in research and development and have generally promoted innovation. Software development is a vibrant area of innovation, despite the uncertain nature of its legal protection. The success of open source software also serves to diminish the claim, as there is a field of endeavour where thousands of developers innovate without the incentive of patent protection. If a computer program contains elements that meet patentability requirements, it should be awarded software protection. Since software development is a technical field like any other its results should be patentable. Effective protection of the software industry is an economic necessity. Over the few past decades, the software industry has achieved a substantial growth rate which continues to grow unabated. Countries that want to increase or at least to sustain investments in this sector should provide effective protection mechanisms for these technologies.

C. Arguments against Patenting:

Computer programs are already protected by copyright, and thus it is not necessary to provide any other titles of protection. Smaller software developers would not be able to enjoy expensive patent protection, and would be put in a position to pay royalties to patents owned by big corporations. Computer software is actually an algorithm or a mathematical formula. An algorithm is a series of steps to solve a problem and computer program is an implementation of that algorithm, which is like an implementation of mathematical equation. Granting patents for mathematical algorithms would preclude others from performing the same process. So like mathematical algorithms, computer programs should not be patented.

Exclusive rights granted by patents diminish competition by creating monopolies in the market. On the other hand, exclusive rights conferred by a patent owned by small and medium enterprises would strengthen their market position and negotiation power with the possibility to license or assign patents. Patent protection of computer programs would inhibit competition in this field due to the characteristics of software innovation. It is said that software innovation typically involves cumulative, sequential innovation and re-use of others’ work. To a certain extent, this is an inevitable and permitted consequence of the patent system. However, the fact that the software industry has a natural tendency towards monopolies as a consequence of the need for standardization, allows software patents to have a further effect on monopolization in the sector.

Software patents encourage the creation of the so-called ‘patent thickets’: a dense undergrowth of interrelated patents that researchers have to navigate in order to develop new technologies. There are two different types of thickets. The first one is a single technological innovation that may be protected by several patent holders. This situation would require anyone interested in developing software in that area to obtain separate licences from numerous owners. The second type of thicket occurs when a product is covered by a large number of patents, not just one. Patent thickets increase the cost of innovation, they encourage inefficiency through the creation of complex cross-licensing relations between companies, and they may even stop newcomers entering the market if they fail to penetrate the thicket. However, at least one commentator takes issue with critics of patent thickets: even where thickets exist, they have no effect on innovation through research and development spending.

D. Protection of Softwares:

  a) International Perspective:

The most common systems for protecting computer software are: Copyright, Patents, and Trademarks. Copyright protects the expression of an idea in a tangible (material) form. The recent Copyright Treaty by the World Intellectual Property Organization confirms that computer software is to be protected by copyright as a literary work throughout the world. Literary works, such as books and poems, have traditionally been expressed in a written form which is readable to humans. With regards to software, both the source code (human readable form) and object code (machine readable form) qualify for copyright protection. Patents protect the underlying ideas of a product which has commercial value in industry. Computer software incorporates ideas in the form of algorithms and data structures. These ideas can be protected by patents if proven to be innovative enough and of commercial value. Trademarks protect the name that uniquely distinguishes a company or product from the rest. Trademarks are available in regards to computer software in software names and software company names.

In particular, prior to the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the status of computer program protection was undefined under the Paris Convention, which regulates global patent rights, and was controversial under the Berne Convention, which regulates the worldwide copyright regime. The TRIPS Agreement places computer programs under the copyright section by stating that “computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention.” Furthermore, TRIPS mandates that all member states create an adequate judicial and administrative enforcement mechanism and provide a dispute resolution mechanism not only for the protection of computer programs but all intellectual property rights.

Despite the TRIPS Agreement, the question of whether or not computer programs can be patented has not been solved. Article 27 of the agreement states that “… patents shall be available for any inventions…in all fields of technology, provided they are … capable of industrial application.” While the second and third paragraphs of the same article allow member states to exclude from patentability some categories such as medical treatment, or inventions dangerous to health or environment, it makes no mention of computer programs. By not commenting on the viability of software patents, TRIPS leaves this decision to the individual signatories. However, even the developed countries differ as to whether computer programs should be patentable, and if so, which limitations should apply.

b) United States:

The U.S. Code defines inventions that are the proper subject matter of U.S. patents as follows: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.” Not all “inventions” are patentable in the U.S. because neither a mathematical formula nor an algorithm for making mathematical computations or conversions can be patented. Nevertheless, the U.S. Supreme Court also excluded “laws of nature, natural phenomena, and abstract ideas” from patent protection. Before 1981, the United States Patent and Trademark Office (USPTO) treated computer programs and inventions relating to computer programs as mathematical algorithms or abstract ideas and did not grant patents. Attitudes towards software patents have changed significantly following Diamond v. Diehr, in which the Supreme Court stated that a patent claim could not be denied solely because the invention uses “…a mathematical formula, computer program, or digital computer.” An idea in and of itself is also not patentable. The implication is that any mathematical procedure is akin or identical to a law of nature, which leaves doubt as to whether any computer-implemented inventions are patentable.

Following the decision in In re Freeman, the U.S. Patent and Trademark Office (“USPTO”) applies a two-step test—which was further refined in In re Walter and in In re Abele —to determine whether a particular invention is patentable. The first step is a determination of whether the patent claim describing the invention recites elements or steps that are themselves mathematical algorithms. If a mathematical algorithm is not present, patent protection may be the proper vehicle of protection if the other statutory requirements are met. If a mathematical algorithm is present, a second step attempts to determine whether the claim reciting the mathematical algorithm relates or applies, in a non-trivial fashion, the algorithm to physical elements or process steps, so that the claim as a whole must be analyzed.

In 1981, the U.S. Supreme Court clarified that computer technology should not be treated differently from other technologies under the patent law and that inventions involving a computer program can be the proper subject matter for protection by U.S. patents. Furthermore, the Federal Circuit in In re Alappat held that software has the power to convert a general purpose computer into a special purpose machine, which constitutes patentable subject matter. Today, the U.S. grants patents for a wide range of computer software-related inventions provided that they produce “concrete, useful and tangible” results.

c) Europe:

Traditionally, software has been protected by copyright and excluded from patent protection in Europe. Article 52(2) of the European Patent Convention excludes “schemes, rules and methods for performing mental acts, playing games or doing business, and programming computers” from patentability. These exclusions are made for abstract and intellectual mechanisms, as opposed to useful tangible products or processes. Despite this language, however, patents covering computer software have been granted pursuant to decisions of the European Patent Office Board of Appeal. The panels in those cases interpreted Article 52(2) in light of other provisions of the Convention, including Article 52(3), and concluded that while computer software and business methods cannot be patented as such, they can be patented on the basis of the technical effects produced by the software or method. Over the last fifteen years the Technical Board of Appeal of the European Patent Office (“EPO”) has tried to get over this obstacle, almost even to the point of undermining the clear intent of the entire European patent system, but it is still shackled by its current provisions.

On Aug. 31, 2001, the European Patent Office issued new guidelines with respect to the patenting of computer programs and business methods. The purpose of these amendments was to confirm the guidelines to the aforementioned European Patent Office Board of Appeal decisions concerning the patentability of business methods and computer-related inventions and with current European Patent Office practice on examining such subject matter. Under the 2001 amendments, the European Patent Office, as it had in the past, relied on language in Article 52(3) of the Convention and language in Rules 27 and 29 of the Convention’s Implementing Regulations to issue computer software patents. Under the revised, current guidelines, the European Patent Office may, assuming all other requirements are met, grant a computer software patent provided it is of a “‘technical character’ to the extent that it must relate to a technical field, concern a technical problem, and have technical features in terms of which the matter for which protection is sought can be defined in the claim.” Accordingly, although computer programs per se are not patentable, under the guidelines, “if a computer program is capable of bringing about, when running on a computer, a further technical effect going beyond … normal physical effects, it is not excluded from patentability, irrespective of whether it is claimed by itself or as a record on a carrier.” It is clear that the existing procedure is well established in favour of some limited patentability of software, even after the defeat of the Directive. European Commissioner Benita Ferrero-Waldner has pointed out that, despite the vote, ‘patents for computerimplemented inventions will continue to be issued by national patent offices and the European Patent Office under existing law’.

d) Japan:

Under Article 2(1) of the Japanese Patent Law, computer software, like all other inventions, is patentable if it is a highly advanced creation of technical ideas by which a law of nature is utilized. In February 1997 the Japanese Patent Office issued its Implementing Guidelines for Computer Software-Related Inventions, published, in part, to “adequately protect software related inventions by clarifying that ‘computer-readable media recording computer programs’ ” may constitute statutory subject matter. Just three years later, in 2000, the Japanese Patent Office issued revised Examination Guidelines for Patent and Utility Model in Japan, which included Computer Software-Related Inventions. Under these lengthy guidelines, the Patent Office sought to address the issues raised concerning the patentability of software-related inventions that are not necessarily recorded on computer-readable media (i.e., Internet-related inventions), as well as the patentability of business methods. Its purpose was to, among other things, achieve consistent decisions among patent office examiners and efficient implementation of the patent and utility model laws.

e) India:

Under the Indian law, computer programmes are protected under the Copyright Act, 1957; they are not entitled to protection through patents. The law relating to patents in India is governed by Indian Patents Act, 1970 as amended by Patents (Amendment) Act, 1999 and Patents (Amendment) Act, 2002, which came into force with effect from May 2, 2003. Section 3(k) of Patent Act, 1970“A mathematical or business method or a computer programme per se or algorithms are not patentable.” According to the Draft manual of practice and procedure :

4.11.1 A computer implemented invention mean any invention, the performance of which involves the use of computer, computer network or other programmable apparatus, or an invention one or more features which are realized wholly or partially by means of a computer programme/ programmes.

4.11.2 Computer programmes are a set of instructions for controlling a sequence of operations of a data processing system. It closely resembles a mathematical method. It may be expressed in various forms e.g., a series of verbal statements, a flowchart, an algorithm, or other coded form and maybe presented in a form suitable for direct entry into a particular computer, or may require transcription into a different format (computer language). It may merely be written on paper or recorded on some machine readable medium such as magnetic tape or disc or optically scanned record, or it may be permanently recorded in a control store forming part of a computer.

4.11.3 If the patent application relates only to a machine i.e., hardware based invention, the best mode of operation may be described along with the suitable illustrations. However, in the case of a process related inventions, the necessary sequence of steps should clearly be described so as to distinguish the invention from the prior art with the help of the flowcharts. The source/pseudo/object codes may be incorporated in the description optionally.

4.11.4 In order to distinguish the invention from the prior art, relevant prior art is also required to be given in the specification. It is always essential to analyze the invention in the light of what is described and the prior art, in order to identify the contribution to the art and hence determine whether this advancement resides in, or necessarily includes, technological features and technical application or is solely intellectual in its content. A hardware implementation performing a novel function is not patentable if that particular hardware system is known or is obvious irrespective of the function performed.

4.11.5 Applications related to computer inventions may broadly fall under the following categories:

(a) Method/process:

(b) Apparatus/system:

(c) Computer program product.

The following aspects should be looked into while dealing with such applications.

4.11.6 The method claim should clearly define the steps involved in carrying out the invention. It should have a technical character. In other words, it should solve a technical problem. The claims should incorporate the details regarding the mode of the implementation of the invention via. hardware or software, for better clarity. The claim orienting towards a “process/method” should contain a hardware or machine limitation. Technical applicability of the software claimed as a process or method claim, is required to be defined in relation with the particular hardware components. Thus, the “software per se” is differentiated from the software having its technical application in the industry. A claim directed to a technical process which process is carried out under the control of a programme (whether by means of hardware or software), cannot be regarded as relating to a computer programme as such.

For example, “a method for processing seismic data, comprising the steps of collecting the time varying seismic detector output signals for a plurality of seismic sensors placed in a cable.” Here the signals are collected from a definite recited structure and hence allowable.

4.11.7 The apparatus claim should clearly define the inventive constructional hardware features. The claim for an apparatus should incorporate a “process limitation” for an apparatus, where “limitation” means defining the specific application and not the general application. As a general rule, a novel solution to a problem relating to the internal operations of a computer, although comprising a program or subroutine, will necessarily involve technological features of the computer hardware or the manner in which it operates and hence may be patentable. For example, in a computer comprising means for storing signal data and a first resistor for storing data, the clause starting with “for” describes the function or process carried out by the apparatus, and form the part of “process limitation” here.

4.11.8 The claims relating to software programme product are nothing but computer programme per se simply expressed on a computer readable storage medium and as such are not allowable. For example, if the new feature comprises a set of instructions (programme) designed to control a known computer to cause it to perform desired operations, without special adoption or modification of its hardware or organization, then no matter whether claimed as “a computer arranged to operate etc” or as “a method of operating a computer”, etc., is not patentable and hence excluded from patentability. The claim might stipulate that the instructions were encoded in a particular way on a particular known medium but this would not affect the issue. e.g., A program to evaluate the value of PI or to find the square root of a number are held not allowable. An invention consisting of hardware along with software or computer program in order to perform the function of the hardware may be considered patentable. e.g. embedded systems.

4.11.10 A mathematical method is one which is carried out on numbers and provides a result in numerical form (the mathematical method or algorithm therefore being merely an abstract concept prescribing how to operate on the numbers) and not patentable.

However, its application may well be patentable, for example, in Vicom/Computer-related invention [1987] 1 OJEPO 14 (T208/84) the invention concerned a mathematical method for manipulating data representing an image, leading to an enhanced digital image. Claims to a method of digitally filtering data performed on a conventional general purpose computer were rejected, since those claims were held to define an abstract concept not distinguished from a mathematical method. However, claims to a method of image processing which used the mathematical method to operate on numbers representing an image can be allowed. The reasoning was that the image processing performed was a technical (i.e. non- excluded) process which related to technical quality of the image and that a claim directed to a technical process in which the method used does not seek protection for the mathematical method as such. Therefore the allowable claims as such went beyond a mathematical method.

4.11.11 The patent application No.558/DELNP/2005 related to method of operating the credential management processor. This was refused as it was found to be attracting the provisions of section 3(k) as the alleged method was relating to ‘receiving ‘, ‘de-referencing’ and ‘storing’ being purely a computer implemented software application. As well as the enhancement of security as claimed in method claims was already disclosed in the cited document and is obvious to a person skilled in the art.

E. Conclusion:

Economists view patent protection as a trade-off between the need to encourage innovation and the necessary evil of allowing a temporary monopoly to the innovator. Although it is controversial, no one can deny the importance of software. There are those who argue that software is so fundamental that our society should not allow anyone to own it to the exclusion of others. Some are content to treat software as copyrightable literature, affording protection only to its expressive, but not its functional aspects. Some argue strenuously that the patent system, which has existed since the late eighteenth century, is outdated and cannot handle this new technology and that some different, sui generis, form of protection should be created for software technology. Others argue that the current patent system is working fine and that it will adapt to this new technology, just as it has done many times before. Failure of TRIPS Agreement to determine whether computer programs can be patentable or not and if so which limitations should apply, creates different application among the member states. The U.S. provides for the patent of computer software and even European Union provides for the patent in the Computer programmes if it has “Technical Effect”. On the lines of US, Japan also provides for the patent to the computer software. India too provides for the Patent of the Computer Program in the Hardware form, in spite of its express negation in Patent Act, 1970.

Pre-emptive rights of shareholders of Private Company

Pre-emptive rights of shareholders of Private Company: Enforceable to what extent

Transferability of shares is the primary feature of the incorporation of a company. Section 3 (iii) and (iv) of Companies Act 1956 deals with the definition of private and public company which determines the freedom and restriction to transfer shares as exercised by the shareholders of private and public companies respectively.

If we go through some of the cases filed at the Supreme Court of India in relation to restriction on transferability of shares, then we may conclude that in some of the cases, appellants have objection on their brethren shareholder’s act of transferring shares not in according with the shareholders agreement. Although Section 82 of the Companies Act states that the shares or debentures or other interest of any member in a company shall be movable property, transferable in the manner provided by the articles of the company.

Lets have a view on some of the landmark Supreme Court decisions relevant to transferability of shares:

The questions raised in the case of V.B Rangaraj v. V.B Gopalkrishnan and ors [1992] 73 is whether the shareholders can among themselves enter into agreement which is contrary to or inconsistent with the Articles of Association of the Company.

In this case the shares of a company are held by two brothers. There was an agreement between brothers that each branch of the company would hold equal number of shares. Hence if any member of the branch wished to sell its share, first option was to be given to member of that branch. The agreement was not incorporated in AOA and one of the member sold the shares in contravention of agreement.

The defendant contended the following contentions in defense:

• The restriction was not envisaged by AOA, thus it is not binding on shareholders or a vendee of the shares.

• It was unenforceable in law and thus not binding on the company.

The Supreme Court held that the Companies Act 1956 makes it clear that AOA is binding on company and shareholders and transfer of shares is regulated by AOA. The only restriction on transfer of shares binding on the company is one contained in AOA. Restrictions not specified in AOA is neither binding on company nor on the shareholders. Vendee cannot be denied registration except for grounds in AOA.

 

In the case of Madhusoodhanan v. Kerala Kaumudi the issue raised was whether a suit for specific performance would lie upon contravention of pre-emptive right in family settlement (Karar). In this case there were 9 shareholders (family members) in a private company. 5 shareholders enetered into a Karar (family settlement) that on the death of the Chairman (also a shareholder) her shareholders would divide in ratio of the 50:25:25 between the three shareholders. 50% was to be held by Madhu. The Karar was embodied in AOA.

 

On the death of Chairman, the 50% shares were not transferred to Madhu in terms of Karar. Hence Madhu filed a suit for specific performance.

The defendant contended that this restriction on transfer of share is in contravention of AOA, therefore unenforceable both against company and shareholders and no suit for specific performance would lie.

The Supreme Court held that holders of shares in a private company may agree to sell his shares to a person of his choice. Such agreements are specifically enforceable under Specific Relief Act.

Generally, Specific Relief does not lie for contract to transfer movable property unless covered by exception to Section 10. One such exception is if the property is not easily obtainable in the market. Shares of private limited company are not easily obtainable in the market. Thus Suit for specific performance would lie.

In this case the decision given in Rangaraj case was overruled making it clear that the Court never held that an agreement for transfer of shares among particular shareholders cannot be enforced like any other agreement.

In the case of Rolta India Ltd and Another v. Venre Industries Ltd and Others the appellants asked for the following relieves

• Restraining the defendants from taking any steps pursuant to or in implementation or in furtherance of the resolution passed in respect of the allotment of rights shares.

• Restraining the appointment of any additional directors on the board of directors of defendant Company.

This case was filed on the basis of a pooling agreement on curtailing the statutory rights given to the Board of directors to manage the company.

The defendant contended that a pooling agreement may be utilized in connection with the election of directors and shareholders’ resolutions where shareholders have a right to vote. However, a pooling agreement cannot be used to supersede the statutory rights given to the Board of directors to manage the company, the underlying reason being that the shareholders cannot achieve by pooling agreement that which is prohibited to them, if they are voting individually. Therefore, the power of shareholders to unite is not extended to contracts, whereby restrictions are placed on the powers of directors to manage the business of the Corporation. It is for this reason that a pooling agreement cannot be between directors regarding their powers as directors.

The Supreme Court held that since the company was in need to increase the capital, there was need for professionalization, but it would be deprived of it despite the fact that there is no such restriction in the articles of association. The objection was raised on the basis of Clause 8 of MoU. In our view, the curtailment of the powers of director by enforcement of such a clause would not be permissible. Clause 8 would result in curtailment of the fiduciary rights and duties of the directors. The shareholders cannot infringe upon the directors fiduciary rights and duties. Even directors cannot enter into an agreement, thereby agreeing not to increase the number of directors when there is no such restriction in the articles of association. The shareholders cannot dictate the terms to the directors, except by amendment of articles of association or by removal of directors. The agreement infringes upon the right of the first defendant to have more number of directors, in the interest of the company. The grant of interim injunction would amount to stultifying management of the company.

In Satyanarayana Rathi v. Anna Maliar Textiles Pvt. Ltd., (1999) 32 CLA 56, the articles of as-sociation of a private company contained that no share of the company shall be transferred to any person who is not a member of the company so long as any member of the company is willing to purchase the same at a fair price which shall be determined by directors from time to time. The appellant, in whose favour certain shares were pledged for dues for supply of cotton, asked the company to register the transfer of shares in his favour as the dues were remaining. The company refused to register the transfer as it would have been against the Article of Association. The Company Law Board (CLB) upheld the decision of the Board. It observed that a close scrutiny of the above articles will show that no share shall be transferred to an outsider if any member of the company is willing to purchase the same at a fair price which shall be determined by the directors. Further, transfer to an outsider is permissible only when the Board is unable to find a willing member to purchase the shares within a stipulated period.

In Tarlok Chand Khanna v. Raj Kumar Kapoor, (1983) 54 Com. Cas. 12 (Delhi), one of the regulations in the articles of the company was that all transfers of shares shall be sanctioned only with the unanimous decision of the directors. The Delhi High Court held that such provision which is preserved by S. 111(1) [now S. 111(13)] of the Act and being not inconsistent with any provision of the Act would be outside the reach of S. 9 of the Act. In the absence of any words of limitation such as the expression ‘Present and voting’ in the phraseology of the article, the same should be construed to mean that the sanction should be with the unanimous decision of all the directors of the company and a transfer which is otherwise valid, cannot be given effect to when it is based on the decision of the board in a meeting at which one of the directors was absent.

If we consider what Section 111 says then we will construe that the company has the power to refuse to register the transfer of shares if it is in contravention of AOA or otherwise. Also there is a remedy lying with the transferor or transferee to appeal against the refusal to register in CLB.

Likewise Section 111A says that the shares or debentures and interest therein of a company shall be freely transferable. In case the company without sufficient cause refuses to register the transfer, the transferee may appeal to CLB against refusal to register the transfer.

Thus it may be concluded that the power to refuse the transfer of shares cannot be exercised arbitrarily or for any other collateral purpose and can only be exercised for a bonafide reason in the interest of the company and general interest of the shareholders. However in cases where by its articles of association a company reserves the right to refuse the transfer of shares, the burden of proving that such refusal was not bonafide is on the person who so alleges.

This may also be noted that there may be restriction on transferability of the shares, there cannot be an absolute prohibition on the right to transfer shares. A pre-emption right has been held to not amount to a prohibition upon transfer.