Indian Perspective of Right to Health

     BY:-Ms. Deepika Sood                                                       

                                                                                      India has been independent for 63 years but India has yet to provide its citizens the basic amenities like food security, health care, housing and good environment which are the basic amenities for a reasonable human existence. A highly inequitable health system has denied quality health care to all those who cannot afford it. Although the Directive Principles are asserted to be “fundamental in the governance of the country,” they are not legally enforceable. They are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the Constitution’s Preamble. Both the Centre and the State have powers to legislate in the matter of social security and social insurance, medical profession and prevention of the extension from one State to another of infections or contagious diseases or pests affecting man, animals or plants1.

The obligation on the State to ensure the creation and the sustaining of conditions congenial to good health is cast by the Constitutional directives contained in Articles 39(e) (f), 42 and 47 in Part IV of the Constitution of India. Securing the health and strength of workers including  men , women and the tender age  children  by ensuring that the right of individuals  are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength (Article 39(e)) .The  opportunities  and facilities are maintained in a  healthy manner and in conditions  wherein the  freedom and dignity and individual(s)  are protected against exploitation , moral and material abandonment. (Article 39(f)). Right to a healthy environment safeguards human life itself under two aspects, namely, the physical existence and health of human beings and the dignity of that existence, the quality of life that renders it worth living2. The State is required to make provisions for just and humane conditions of work and for maternity benefit (Article 42).

The State should ensure the raising of the level of nutrition and standard of living of its people by improving the public health of its citizen’s. Protection of health of citizens and improvement in their healthy existence is an enshrined cardinal duty of the State 3. The State legislature is under Entry 6 of the State List contained in the Seventh Schedule to the Constitution, empowered to make laws with respect to Public Health and sanitation, hospitals and dispensaries. Article 21 embarks on the State the duty to safeguard the Right to Life of every person, preservation of human life being of paramount importance.

The Constitution (Forty Second Amendment) Act 1976 explicitly incorporated environmental protection and improvement as part of State policy through the insertion of Article 48A.   Article 51A (g) imposed a similar responsibility on every citizen “to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for all living creatures.”In addition to the Constitution, there are five main instruments in the Indian legal system that deal with regulation of health care and safeguarding individuals against medical negligence. These are: Law of Torts; Consumer Protection Act, 1986; Indian Penal Code,1860; Indian Medical Council Act, 1956; Indian Contract Act, 1872.

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@Amity Law School, AUUP-Noida

1.  Entries 23, 26 and 29 respectively contained in the Concurrent list of the Seventh Schedule.  

2. See Ministerial Conference on Pollution and Climatic Change. The Noordwijk Declaration on

   Climate Change, 4 (Nov. 1989)

3. Article 48 A       

Various Municipal laws prescribe duties of such local authorities in the sphere of public health and sanitation which include establishment and maintenance of dispensaries, public vaccination, providing special medical aid and accommodation for the sick in the time of dangerous diseases, taking measures to prevent the outbreak of diseases etc. The   State may endow the Municipalities with such powers and authorities which may be necessary to enable them to function as institutions of self government (Article 242 of the Constitution). State has  provided with respect to the performance of functions and implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule to the Constitution which is  included at item 6, ‘Public  Health sanitation conservancy and solid waste management’. Similar provision is made for the Panchayats under Article 243-G read with the Eleventh Schedule (item 23), of the Constitution. There is, however, a significant difference between local government authorities and the State health authorities, the latter having enormous powers to make available financial resources and make key appointments. Healthy alliances between the two types of authorities are crucial, if health is to be effectively promoted. 

The citizens can approach the High Court under Article 226 of the Constitution for seeking a Mandamus to get the duties enforced whenever there is failure of these statutory obligations of the local authorities. A wide dimension of the Right to Life and the right to a healthy environment entails the consequent wider characterization of attempts or threats against those rights, what in turn calls for a higher degree of their protection. The importance of health promotion at the work place is increasingly recognized particularly in large organizations. Health promotion of workmen   reduces absenteeism thereby leading to gain in the productivity. In Consumer Education and Resource Centre Vs Union of India4 it was held that the Right to Health is essential for human existence and is, therefore an integral part of the Right to Life. Fundamental Right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and makes the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker and is a minimum requirement to enable a person to live with human dignity. Similarly in Bandhua Mukti Morcha Vs Union of India5, the Supreme Court has held that the Right to Life includes the right to live with dignity. The Supreme Court held that the right to health includes the health care and right to determinants of health such as food security, water supply, housing and sanitation etc. It reflected the importance of health as a prerequisite for Right to Life whereby it can be inferred that Right to Health is an important human right and its denial can be detrimental to the existence of human life. The Apex court held in Paschim Baga Khet Mazoor Samiti Vs State of West Bengal6 that that Article 21 imposes an obligation on the State to safeguard the right to life of every person therefore failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his Right to Life guaranteed under Article 21. Further, the Court ordered that Primary health care centers be equipped to deal with medical emergencies.  It has also been held in this judgment that the lack of financial resources cannot be a reason for the State to shy away from its constitutional obligation.

Medical practitioners do not enjoy any immunity from an action in tort, and they can be sued on the ground that they have failed to exercise reasonable skill and care. The Supreme Court has held that medical practitioners are governed by the Indian Medical Council Act and are subject to the disciplinary control of the Medical Councils. Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a

  1. AIR 1955 SC 636
  2. AIR 1984 SC 802
  3. AIR 1996 SC 426

Contract of personal service), by way of consultation, diagnosis and treatment, both medical and surgical, was held to fall in the case of within the ambit of ‘Service’ as defined in Section 2(1) (O) of the Consumer Protection Act, 1986.In Parmanand Katara v. Union of India7, the Supreme Court said that whether the patient was innocent or a criminal, it is an obligation of those in charge of community health to preserve the life of the patient. Every doctor has a professional obligation to extend his services with due expertise and care for protecting life. The Right to Health is integral to Right to Life as held in State of Punjab and Others Vs Mohinder Singh8. Government has a constitutional obligation to provide health facilities. In Mahendra Pratap Singh Vs State of Orissa9, a case pertaining to the failure of the government in opening a primary   health care centre in a village, the court had held that the government is required to assist people get treatment and lead a healthy life. Primary concern should be the primary health centre and technical fetters cannot be introduced as subterfuges to cause hindrances in the establishment of health centre. It also stated that, great achievements and accomplishments in life are possible if one is permitted to lead an acceptably healthy life.  Thereby, there is an implication that the enforcing of the right to life is a duty of the state and that this duty covers the providing of right to primary health care implying that the right to life includes the right to primary health care.

The Right to Life has been given a wider perceptive to include environment pollution affecting health of the citizens in the land mark  case of M.C Mehta Vs Union of India10 the Supreme Court has held that environmental pollution causes several health hazards, and therefore violates Right to Life. Specifically, the case dealt with the pollution discharged by industries into the Ganges. It was held that victims, affected by the pollution caused, were liable to be compensated. Similarly, in Subhash Kumar Vs State of Bihar11,  the Court observed that ‘right to life guaranteed by Article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life.’ Through this case, the Court recognised the right to a wholesome environment as part of the fundamental Right to Life. This case also indicated that the municipalities and a large number of other concerned governmental agencies could no longer rest content with unimplemented measures for the abatement and prevention of pollution. They may be compelled to take positive measures to improve the environment. The Supreme Court has used the right to life as a basis for emphasizing the need to take drastic steps to combat air and water pollution.12 It has directed the closure or relocation of industries and ordered that evacuated land be used for the needs of the community.13The first health related Public Interest Litigation was  filed in the Supreme Court   in  the Workmen of State Pencil Manufacturing Industries of Madhya Pradesh Case 14 concerning the death of workers at young age in the slate pencil manufacturing industries, due to the accumulation of soot in their lungs. The Court required the State to ensure installation of safety measures in the concerned factories, failing that it could close down the industries.

7. 1989(4)  SCC  286

8. AIR 1997 SC 1225

9. AIR 1997 Ori 37

10. AIR 1987 SC 1086

11. AIR 1991 SC 420     

12 V. Mathur v. Union of India, (1996) 1 SCC 119

13 M.C. Mehta v. Union of India, (1996) 4 SCC 351

14. CWP No. 5143 of 1980

In a Public Interest Litigation serious deficiencies and shortcomings in the matter of collection, storage and supply of blood through various blood centers were highlighted before the Supreme Court and directions were sought on the Union of India and State to take steps for obviating the malpractices, malfunctioning and inadequacies of the blood banks. 15 The issue of the working of commercial blood banks while recognizing that blood donation is considered as a great life saving service to humanity the court enforces a duty on the blood banks to ensure that the blood that is available with the blood banks for use is healthy and free from infection. The Supreme Court in this case laid down a system of licensing of blood banks.  It may be inferred from the above reasoning that the State is entrusted with the responsibility in matters of health, to ensure efficient functioning all centers relating to health care.

In M.C. Mehta Vs Kamal Nath and Others,16the court added that ‘[it] would be equally appropriate in controversies involving air pollution, the dissemination of pesticides, the location of rights of ways for utilities, and strip mining of wetland filling on private lands in a state where governmental permits are required.’ In both M.I. Builders Pvt. Ltd17  and Th. Majra Singh, 18 the court reconfirmed that the public trust doctrine ‘has grown from Article 21 of the Constitution and has become part of the Indian legal thought process for quite a long time.’

In Sheela Barse Vs Union of India and Another 19 a case pertaining to the admitting of non-criminal mentally ill persons to prisons in West Bengal, the Supreme Court has held that “(1) Admission of non-criminal mentally ill persons to jails is illegal and unconstitutional…. The Judicial Magistrate will, upon a mentally ill person being produced, have him or her examined by a Mental Health Professional/Psychiatrist and if advised by such MHP/Psychiatrist sends the mentally ill person to the nearest place of treatment and care.” It has further directed the state to improve mental health institutions and integrate mental health into primary health care, among others.

More recently the Supreme Court has addressed the epidemic of HIV/ AIDS. In a case where the court had to decide whether an HIV positive man should disclose his condition to the woman he was to marry, the court has held that “the woman’s right to good health to precedence over the man’s right to privacy” 20 There is sufficient case law on the issue of health in State run institutions such as remand homes for children and “care homes”.

With the onward march of science and complexities of living processes, hitherto unknown diseases are notified. New and emerging diseases, combined with the rapid spread of pathogens resistant to antibiotics and of disease carrying insects resistant to insecticides, are daunting challenges to human health. The gap between the ability of microbes to mutate into drug-resistant strains and man’s ability to counter them is widening fast. To meet the new challenges new drugs have to be found. The Central Government is by Section 26A of the Drugs and Cosmetics Act,  

15 AIR 1996 SC 83

16(1997) 1 SCC 388

17 M.I. Builders Pvt. Ltd v. Radhey Shyam Sahu AIR 1999 SC 2468

18 Th. Majra Singh v. Indian Oil Corporation AIR 1999 J&K 81

19 1993(3) SCALE 417

20 AIR 1999 SC 495

 1940 empowered to prohibit in public interest, manufacture, sale or distribution of any drug which is likely to involve any risk to human beings or animals or if does not have the therapeutic value claimed21.

The Supreme court in M.C. Mehta Vs Union Of India 22 held that there are dicta that life, public health and ecology have priority over unemployment and loss of revenue. The “precautionary principle” requires the State to anticipate, prevent and attack the causes of environment degradation 23. Right to pollution free air falls within Article 21 24, thereby there is no reason to compel a non-smokers to be helpless victims of air pollution25. Right to enjoyment of pollution free water26.

In Citizens and Inhabitants of Municipal Ward Vs Municipal Corporation, Gwalior the court deliberated on the question- Is the State machinery bound to assure adequate conditions necessary for health? The case involved the maintaining of sanitation and drainage facilities by municipal corporations. It was held that the State and its machineries (in the instant case, the Municipal Corporation) are bound to assure hygienic conditions of living and therefore, health. The Karnataka High Court has deliberated on the right of an individual to have access to drinking water.

 In Puttappa Honnappa Talavar v. Deputy Commissioner, Dharwad27, the High Court has held that the right to dig bore wells therefore can be restricted or regulated only by an Act of legislature and that the right to life includes the right to have access to clean drinking water. The High Court of Rajasthan has held that stray animals in urban areas pose a danger to people and also cause nuisance to the public. 28

The question before the Court was, does the negligence of restraining the number of these animals violate Art 21 of the public at large? The Court found that stray animals on the road interfere with transportation, polluted the city and therefore posed a health risk to people.  It was held that public nuisance caused by these stray animals was a violation of Art. 21, of the public at large. Thus, in light of above cases a wide dimension of the Right to Life embedding the right to a healthy environment. An example of the threats is provided by, e.g., the effects of global warming on human health: skin cancer, retinal eye damage, cataracts and eventual blindness, neurological damage, lowered resistance to infection, alteration of the immunological system (through damaged immune cells); in sum, depletion of the ozone layer may result in substantial injury to human health as well as to the environment (harm to terrestrial plants, destruction of the zooplankton, a key link in the food chain), thus disclosing the needed convergence of human health protection and environmental protection. 29

The right to health is an individual right imbedded in the Right to Life which requires the protection of the physical and mental integrity and dignity of the individual; and it is also a social right in that it imposes on the State and society the collective responsibility for the protection of the health of the citizens and the prevention and treatment of diseases. 30

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21 Vicent Parikulangara Vs Union of India, AIR 1987 SC 1990

22.  AIR 1987 SC 1086

23. M.C. Mehta Vs Union of India (1997) 3 SCC 715

24. Subhash Vs State of Bihar, AIR 1991 SC 420

25. Murli S.Deora Vs Union of India AIR 2002 SC 40

26. B.L Wadhera Vs Union of India AIR 1996 SC 2969

27. AIR 1998 Kar 10

28. Sanjay Phophaliya Vs State of Rajasthan, AIR 1998 Raj 96

29. Ct. A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of International

       Protection of Human Rights (At Global and Regional Levels),” 202 Recueil des cours de l’Académie   

      de droit international, 21-435 (1987) at 98-100.

30.  R. Roemer, “El Derecho a la Atención de la Salud,” in OMS, El Derecho a la Salud en ids Americas

        16     (H. L. Fuenzalida-Puelma and S.S. Connor, eds., OPAS, publ. no 509).  

 Conclusion

From the above discussion of cases it is evident that the Judiciary has held that Article 21, Right to Life embeds in it the Right to Health also .An effective system of people’s monitoring of public health services if organized at the village, block and district levels with powers conferred in Panchayati Raj system would involve community in health services whereby significantly increasing the accountability of these services. The citizens have a right to quality health care, treatment and medication regardless of race, religion, social status and ability to pay. The duties of the State and Municipal authorities can be enforced through the Courts whenever a breach occurs. It is in the enforcement of these obligations of the State and local authorities that the Courts can play an effective role in safeguarding the right to health of the citizens.

Torture is a Crime : Issue and Perspective

 

Introduction

 The practice of torture is endemic in India. It is believed that torture, in its cognate and express forms, is practised in every police station in the country. Torture in police custody involves a range of practices including position abuse, shackling, beating with canes, batons, iron rods and rubber pipes, the pouring of water to disrupt sleep, the administration of electric shocks to the body . Torture being a crime committed by the State agencies, it has remained and will remain a subject of intense discussion and condemnation, internationally  and thus  torture is to be considered as a crime against humanity.

 In India all the State agencies have tortured persons for various purposes unrelated to law enforcement or crime investigation, including  silencing of opposition, irrespective of its nature. The practice of torture in India has permeated  a high degree of fear about the State agencies in the psyche of the ordinary population. On the contrary, fear generates mistrust, thereby impending the establishment of the rule of law in the country.

It has long been overdue as torture is recognised as a heinous practice that needs to be criminalized. Tackling the question of torture involves creating a respectable and independent mechanism where a complaint of torture can be lodged without fear of repercussions to the complainant, whereupon the complaint will be investigated promptly with the assistance of all modern crime investigation tools and the investigation leading into an impartial prosecution that could render a reasonable sentence as punishment to the perpetrator.

 Throughout history, torture has often been used as a method of effecting political re-education and coercion. In the 21st century, torture is considered to be a violation of human rights, and is declared to be unacceptable by Article 5 of the UN Universal Declaration of Human Rights. Signatories of the Third Geneva Convention and Fourth Geneva Convention officially do agree not to torture prisoners in armed conflicts. Torture is also prohibited by the “United Nations Convention Against Torture” which has been ratified by 147 states .

Torture – its meaning

The word ‘torture’ comes from the French torture, originating in the  Latin tortura and ultimately deriving the past participle of torquere meaning ‘to twist’.

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions(1).

Torture , the intentional infliction of severe physical or mental pain or suffering in order to intimidate, coerce, obtain information or a confession, or punish. In international law, the term is usually further restricted to actions committed by persons acting in an official capacity.

Custodial torture in India : Issue

India has amongst the highest rates of custodial deaths amongst democracies. There is no consistent database on this. But according to the National Human Rights Commission data, more than 17,000 people have died in custody since the mid-’90s in Lok Sabha , the government admitted to more than 1,000 custodial deaths in 2008-2009 alone. There is virtually no systematic record of torture that does not lead to death; nor is torture against children separately recorded.  Torture in police custody remains a widespread and systematic practice in India. ACHR’s research into patterns of torture in police custody since 2008 (ACHR’s2008 and 2009 Annual Reports on Torture) suggests that victims suffer high risks of torture in the first twenty four hours following detention.

There are no safeguards to ensure that a person taken into custody will have their detention recorded, have prompt access to a lawyer or impartial medical examination upon their arrival at the place of detention, or at the time of his release. The lack of any effective system of independent monitoring of all places of detention facilitates torture. Torture is the most naked assault on human dignity. In India as elsewhere, it is the aam aadmi who suffers the most. Torture in state detention is endemic in India, involving a range of practices including shackling, beatings and the administration of electric shocks. Disadvantaged and maginalized groups including women, Dalits, Adivasis and suspected members of armed opposition groups are those most commonly abused. Torture is also reportedly widespread in prisons. The National Human Rights Commission registered 1,596 complaints of torture of prisoners in 2008-09. The number of deaths due to torture is not routinely reported.

Torture and impunity – Legal Perspective

Indian police and security officials who commit torture or inflict other cruel, inhuman or degrading treatment or punishment have long enjoyed impunity for their actions. Several provisions within the Indian Criminal Procedure Code (CrPC) and various national security related laws provide immunity to these officials. Section 197 of the CrPC allows for all-encompassing immunity by providing that the Central or state government in question must grant sanction for the prosecution of any government official or member of the armed forces alleged to have committed a criminal offence “while acting or purporting to act within the discharge of his official duty”[2] .The Supreme Court has upheld this provision[3] and has stated that even those who abuse their power are considered to be “acting or purporting to act” in their official position and thus enjoy immunity. Other examples of immunity provisions in the CrPC include section 45(1), which specifically protects members of the armed forces from arrest without prior sanction for acts purportedly committed during official duty[4], and Section 132(1), which protects police, armed forces, and even civilians who engage in activities to help disperse crowds from prosecution without prior sanction[5].

Similarly with respect to national security legislation, the in famous Armed Forces Special Powers Act (AFSPA) provides immunity from prosecution barring government sanction for armed forces personnel purporting to act in the exercise of their powers, even while granting vast powers to, for instance, shoot and kill[6]. The Supreme Court upheld the need for government sanction for prosecution under the AFSPA in Naga People’s Movement of Human Rights v. Union of India[7]. Although the Court laid down various guidelines in Naga People’s Movement with respect to the implementation of AFSPA in order to curb abuses of power, in Masooda Parveen v. Union of India[8], the Court subsequently held that government prerogatives even trump the Court’s own earlier prescriptions in Naga People’s Movement. Other national security legislation, such as the Unlawful Activities Prevention Act (UAPA), similarly grants vast powers to security personnel and then requires government sanction for any prosecution for acts purportedly done under the powers of the Act[9].  Law enforcement personnel enjoy virtual immunity from prosecution for torture and other human rights abuses, and prosecutions remain sporadic and rare.

In “disturbed areas”, such as Jammu and Kashmir and the north-eastern states where the Armed Forces Special Powers Act is in effect, Armed Forces personnel enjoy additional immunity protection and there is virtually no accountability for violations.  

The Prevention of Torture Bill, 2010

The Prevention of Torture Bill, 2010 is also a very important step in this regard. The Prevention of Torture Bill in India, 2010 is meant to bring India closer in line with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. India signed the Convention in 1997 but has yet to ratify it. Ratification is a process through which countries implement an international convention through a domestic legislation. The government recently decided to table Prevention of Torture Bill 2010 to address the issue.  

   Highlights of the Bill 
  • The Prevention of Torture Bill, 2010 seeks to provide for punishment for torture committed by government officials.
  • The Bill defines torture as “grievous hurt”, or danger to life, limb and health.
  • Complaints against torture have to be made within six months. The sanction of the appropriate government is required before a court can entertain a complaint.

The  Bill defines torture in a  limited sense. It states that if a public official  intentionally does an act to seek information or confession from a person by inflicting,

(i) grievous hurt to any person; or

(ii) danger to life, limb or health (whether mental or physical) of any person it would amount to torture.

Hence if a harm is inflicted on a person intentionally by a public official to seek information only then it would constitute torture. The definition not only ignores other purposes of torture like punishment and intimidation but also  makes infliction of grievous hurt or danger to life a necessary condition. Nevertheless, torture sometimes  include abuses like sleep and food deprivation, forceful positions and exposure to intense and continuous noise which are outside the ambit of physical harm or danger.

Further, Section 4 states that intentional infliction of grievous hurt must be coupled with animosity against a group in order to establish the crime of torture. Thus, if  a public official  inflicts grievous hurt on a person to extract information he would not be liable  unless it is proved that he had animosity against a group or community to which the person belonged.

Defects of the Bill

Section 6 states that a prior government sanction is required in order to prosecute a government servant. The section leaves wide scope for partiality and manipulation. A government may be biased towards its own employee. Also, it would be difficult for the victims to obtain such sanctions.

Moreover the limitation clause in Section 5 states that a complaint must be registered within 6 months of alleged torture but fails to recognize that sometimes the victims are subjected to prolonged torture which may last more than the specified period.There is no provision with regard to self- incrimination. The bill remains silent on the scheme of compensation and thus relies on courts to decide the amount of compensation is such cases. No appropriate review mechanisms to check interrogation practices are established under the bill. There is no provision to provide immediate legal help to those who have been arrested.

The convention states that no country must extradite a prisoner to another nation which has harsher laws than that prevalent in it. The bill fails to recognize this clause of the convention and remains silent on the issue.

Suggesstions for improvement  of the Bill

1. The definition of torture must be revised to include other purposes of torture like intimidation, coercion, punishment or discrimination.

2. Compensation Schemes must be enumerated in the bill.

3. Proper review mechanisms for interrogation must be established.

4. Clauses like procurement of  prior governmental sanction and  limited time period to file complaints must be removed.

5 A prohibition on the expulsion, return or extradition of persons to States where there are substantial grounds to believe those persons will face torture or cruel, inhuman or degrading treatment must be added.

6. Immediate legal aid must be provided to the arrested.

7. Other forms of torture which may not necessarily be physical in nature must be included in the definition.

 Conclusion

 If the government is serious about eliminating the use of torture and ensuring accountability for abuses, then any attempted legislation must, at a minimum, end all sanction requirements, provide adequate mechanisms for seeking compensation, and ensure the implementation of basic safeguards such as prompt access to legal counsel and judicial oversight.

The current draft of the Bill demonstrates that India does not take human rights seriously and only pays lip service to international norms and standards. Inviting suggestions for the Bill, the Select Committee said it would consider suggestions to incorporate provisions for monetary compensation of the victims of torture, payable by the torturers in addition to making the provisions regarding sanction of prosecution of the offending public servants purposive and meaningful.

Among other provisions, the definition of torture in the proposed Bill and the need to protect honest officials against frivolous prosecutions will also receive the committee’s attention.
The committee could also consider views on preventing tortured confessions to distort the course of justice.

References

  1. Press Release- Amnesty International of the USA, more information visit (www.amnestyusa.org)
  2. The Statesman – custodial death on the rise(14 april 2010).
  3. Deccan Herald – Experts differ on torture bill, by Deepak k Upreti, New Delhi, DHNS.
  4. Asia Centre of Human Rights: Prevent custodial Death in India(One World South Asia).
  5. PRS Legislative Research: Security/Law/Strategic affairs.
  6. Ethiopian Review, Amnesty International.
  7. The Prevention of Torture Bill (www.weeksupdate.com).
  8. The Torture Bill (www.indiaexpress.com).
  9. South India Cell for Human Right Education and Monitoring,(The Prevention of Torture Bill- an affront to civil liberties).

10.  Human Right Feature, Voice of Asia Pacific Human Right Network(www.hrdc.net/sahrdc)

11.  The Tribune Online Edition, Chandigarh, India(Prevention of Torture: Weak bill won’t do by Pushkar Raj (the writer is General Secretary of People’s Union for Civil Liberties, New Delhi).

End notes

  1. Torture, according to the United Nations Convention Against Torture.
  2. Code of Criminal Procedure [hereinafter ‘CrPC’], 1973, Section 197, available at: http://www.vakilno1.com/bareacts/CrPc/s197.htm
  3. See, e.g., Matajob Dobey v. H.C. Bhari, 1956 AIR 44.
  4. CrPC, Section 45(1).
  5. CrPC, Section 132(1).
  6. See, e.g., Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, available at: http://www.unhcr.org/refworld/publisher,NATLEGBOD,,IND,3ae6b52a14,0.html.
  7. Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109.
  8. Masooda Parveen v. Union of India and Ors, 2007 AIR 1840.
  9. Unlawful Activities (Prevention) Act Amendment Ordinance, 2004, Section 49(a).

Protection of Trade secret and Confidential Information : India Perspective

INTRODUCTION

In today’s globalised economy, the organization are protecting its intellectual property by adopting the available measures in form of patents,copyright,trademark etc. but besides these popular IP rights there are other IP rights not so popular but which are recently drawing attentions all over the world- Confidential Information and Trade Secret.

Confidential information and trade secrets are protected under the common law and there are no statutes that specifically govern the protection of the same. In order to protect trade secrets and confidential information, watertight agreements should be agreed upon, and they should be supported by sound policies and procedures. Protection of Confidential Information in the Hands of Employees In this information age, it’s imperative that a business protects its new formula, product, technology, customer lists, or future business plans. In the global marketplace, Indian corporations are often required to comply with foreign laws and are likely to be exposed to liabilities for violation of confidential information or trade secrets of their business partners or third parties. For example, the U.S. Economic Espionage Act, 1996 imposes criminal liability (including fines and prison sentences) on any person who intentionally or knowingly steals a trade secret, knowingly receives, or purchases a wrongfully obtained trade secret. The standards for protection have to be tailored to address the risks associated with rapid advancement in technology and communications. The standards accepted today may become inadequate tomorrow. However, one constant factor is the presence of a corporate culture imbued with information protection values. The employees of an organization are privy to confidential information and trade secrets on a daily basis. In the absence of any specific Indian statute conferring protection on such information in the hands of employees, recourse has to be taken to common law rights and contractual obligations.

MEANING OF TRADE SECRET AND CONFIDENTIAL INFORMATION

There is no legislation in India defining term trade secret and confidential information. However the concept has been discussed widely around the world and we can sum up under these headings.

What is trade secret?

A trade secret refers to data or information relating to the business which is not generally known to the public and which the owner reasonably attempts to keep secret and confidential. Trade secrets generally give the business a competitive edge over their rivals. Almost any type of data, processes or information can be referred to as trade secrets so long as it is intended to be and kept a secret, and involves an economic interest of the owner. For example, a business may have certain internal business processes that it follows for its day-to-day operations that give it an edge over its competitors. This could be regarded as a trade secret. 

The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) under the auspices of the World Trade Organization lays down the following three criteria for regarding any information as undisclosed information (or trade secrets):

• It must not be generally known or readily accessible by people who normally deal with such type of information

• It must have commercial value as a secret

• The lawful owner must take reasonable steps to keep it secret.

North American Free Trade Agreement (NAFTA) defines a trade secret as “information having commercial value, which is not in the public domain, and for which reasonable steps have been taken to maintain its secrecy.”

The Uniform Trades Secrets Act, 1970 also provides for the definition of trade secrets, which is as follows:-

“Information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from no being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy”

Section 2(3) of Indian Innovation Bill defines Confidential Information as “Confidential Information means information, including a formula, pattern, compilation, program device, method, technique or process, that: (a) is secret, in that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within circles that normally deal with the kind of information in question; (b) has commercial value because it is secret and (c) has been subject to responsible steps under the circumstances by the person lawfully in control of the information, to keep is secret.

However, the definition in the Innovation Bill also appears to be based (more than the US model law) on Article 39.2 of the TRIPs agreement.

Significance of Trade Secrets

Trade secrets in the industrial economy have increased greatly in the past few years, for a number of reasons. There are mainly two reasons for that, one among them is that other forms of intellectual property like Patent, Trademark and Copyright have an element of uncertainty as compared to Trade Secret. Secondly, trade secrets have gained importance because, in many fields, the technology is changing so rapidly that it has surpassed the existing laws intended to encourage and protect inventions and innovations.

Another significant factor which has enhanced the value of trade secrets is the relative ease of creating and controlling trade secret rights. There are no bureaucratic delays and no multiyear waits for government grants, such as those for patents. Trade secret rights, in contrast, can be established by the explicit conduct or agreement of the interested parties. A trade secret right starts upon the creation of the idea in some concrete form, and continues as long as secrecy is maintained. Protection of information such as ideas or information which does not qualify to be protected as intellectual property within the legal framework Intellectual Property Laws of the land can be protected by Trade Secrets. They also have the advantage of being lasting forever, again, as long as secrecy is maintained.

Of course, trade secrets have negative aspects. They are a volatile form of property, and they terminate when secrecy is lost. Also, they require constant vigilance to protect them. Nevertheless, trade secrets play a major role in protecting innovations and establishing rights to use new technology. It is thus important for the intellectual property practitioner to be alert to the intricacies of this large body of trade secret law.

Confidential Information vs Trade secret

A Trade Secret is some information or “secret” that is important to the business and is not known to the public. It is a term commonly used to cover information that has commercial value. The law on “trade secrets” is really about the protection of Confidential Information. Though there is no clear distinction between the both. At times both the concepts are so intermingled and overlapped that it’s become difficult to draw line. The terms “trade secrets” and “confidential information” have been used somewhat interchangeably by the courts. “Trade secrets” generally refers to information relating to more technical matters such as secret processes or formulas; and “confidential information” relates to non-technical matters such as business plans or pricing information. Although many concepts and ideas may be public knowledge, courts have upheld confidential/trade secret information protection for (i) specific ways to implement ideas and, (ii) combinations of known concepts and ideas. Novelty and invention are not required.

Though case law does not always define clearly whether trade secrets are synonymous with confidential information or proprietary information. Nevertheless, the case law does suggest that trade secrets and confidential information are essentially identical concepts.”

POSITION IN INDIA

The intellectual property laws in India have had an almost docile and stagnant existence ever since they were framed. Being a signatory of the TRIPs Agreement India is under an obligation to bring its intellectual property laws in conformity with international standards. India has achieved this to a large extent by enacting new and amending existing legislations on intellectual property laws. However, unlike the US and other developed countries India has no legislation dealing with trade secrets.

In India protection of trade secrets is Common Law based. However, section 27 of the Indian Contract Act provides some sort of limited remedy, it bars any person from disclosing any information which he acquires as a result of a contract. There are scores of reasons for the absence of any statute dealing with trade secrets. India has since its independence followed a socialist pattern because of which the Indian legal system has always strived for social benefit and public rights as a result of which private rights like intellectual property rights have not been given any importance. Another reason for absence of any trade secret laws is the dependence of Indian economy on agriculture. Also, with the absence of big private corporate houses in India until recently there has hardly been any pressure on the government for granting statutory protection to trade secrets. Protection of trade secrets is a very important and one of the most challenging tasks for the Indian government as this will enhance the foreign investment in India giving a boost to the Indian economy. Foreign investors have to be assured of the protection of their trade secrets, so that they can do business with our country. A proper policy for trade secret protection will further enhance the security in our own industry. Almost all the countries in the world have a policy for the protection of trade secrets and India also being a signatory to the TRIPS is under an obligation to amend its laws or create a new law in order to safeguard the trade secrets of various businesses. So a proper policy for the protection of trade secrets in India is the need of the hour in order to provide a sense of security among the foreign investors and the local businessmen regarding their trade secrets which will further boost the Indian economy.

As mentioned above, in India, no substantive authoritative text or case laws are available to determine the nature or ambit of trade secrets. But the Indian courts have tried putting the trade secrets of various businesses under the purview of various other legislations in order to protect them and also they have tried to define what a trade secret is in various cases, Trade Secret law has gained importance in India only recently with the intensification of competition. Coca cola’s formula has been protected for over a century under Trade Secret law.

PROTECTION OF CONFIDENTIAL INFORMATION/TRADE SECRET IN THE HAND OF EMPLOYEES

As businesses are growing out of their parochial moulds and going global, effective trade secret protection is becoming a necessity. Though there is no enactment in India that affords protection to trade secret, businesses can use the tools mentioned below to safeguard these trade secrets:

Non-disclosure Agreements:

Sound and concise company policies and non-disclosure agreements with the employees protecting confidential information and trade secrets are recommended so as to provide contractual remedy in addition to the one under the common law. Such agreements should define “confidential information” and the exceptions to confidentiality. Agreements should have clauses negating a grant of an implied license, restrictions on disclosure, use and copy; restriction on use of confidential information upon termination of the employment, return of information upon termination and right to withhold salary and emoluments till such return.

Non-compete clauses, depending upon their applicability in the Indian context, read with the confidentiality clauses would afford an organization added protection with respect to its confidential information. Such provisions must have a clear purpose, which is to restrict the use of confidential information and trade secrets obtained during employment and ensure that employees do not compete unfairly. However, non-compete provisions would need to be reasonable, and the Indian courts may treat a tough non-compete provision as unenforceable. In order to ensure that the rights of third parties are not violated, the non-disclosure/employment agreement should clearly impose an obligation on the employee not to integrate into the organization’s data or intellectual property, any confidential information of a third party. Employees should be required to indemnify the organization in case of violation of this clause. If the organization has not executed such agreements at the time of employment, subsequently executed agreements should expressly cover the confidential information obtained by the employee from the date of his employment.

Internal Processes:

Strong internal controls and processes to protect confidential information should be in place. Employees should be educated to identify information that is confidential or in the nature of a trade secret, to enable them to make an informed decision. They should have a clear understanding of their responsibilities to protect confidential matter and treat this as an on-going process that is integral to their work. Data that is confidential should be clearly indicated as such in all communications. Appropriate security procedures must be established and followed by the company and access to specific sensitive areas of workplace restricted or limited to certain senior employees only. Third-party interaction and disclosures should be channeled only through specified personnel. Wherever feasible, confidential information should only be shared with those employees who have a legitimate need to know such information, thus enabling the employees to perform the assigned tasks.

An Exit-Interview:

During such an interview, an employee should be reminded of his obligations with respect to the company’s confidential information and trade secrets and should be asked to sign a document reaffirming his obligations. If an employment agreement was signed, the document to be signed upon termination should be attached. A copy of the signed exit-interview form, including the employment agreement, must be given to the employee. Such an interview not only serves as a meaningful reminder but can also be valuable evidence of employee’s knowledge of such obligations. Success of suits for protection of confidential information and trade secrets depends upon production of satisfactory evidence to prove confidentiality of the information, act of disclosure and the damages caused thereby, as well as the reasonability of such restriction.

TRADE SECRET vis-à-vis OTHER INTELLECTUAL PROPERTY RIGHT

Trade secret protection presents no conflict with the patent law, as it is consistent with the patent policy of encouraging inventions. However, for trade secret protection, uniqueness in the patent law sense is not required. Further, the owner of a trade secret, unlike the holder of a patent, does not have an absolute monopoly on the information or data that comprises the trade secret. Other companies and individuals have the right to discover the elements of a trade secret through their own research and hard work.15 Consequently, inventors of items that may meet the standards of patentability would prefer to seek patent protection because such protection is far superior to the protection afforded by trade secret laws.

As far as copyright protection is concerned, there is no copyright in ideas and hence copyright law cannot protect confidential information. Section 16 of the Copyright Act, 1957 (“the Copyright Act”) states that nothing in the Copyright Act should be considered as restraining an action for breach of confidence or breach of trust. There is thus no copyright pre-emption of trade secret misappropriation claims.

Confidential information

Initially, an objective test dependent on the expectations of reasonable men was adopted. A subjective element was introduced by the decision in Thomas Marshall (Exports) Ltd. v. Guinle where the plaintiff sought an injunction against the Managing Director who had set up a competing business. The Court observed that information became confidential only when the owner of the information has a reasonable belief that its release would be harmful to him and that it was outside the public domain. This implies that the belief of the owner of the information must be taken into account while determining whether information is confidential.

These decisions were reviewed by the House of Lords in the famous Spycatcher case. A British spy published a book containing confidential information he had learnt during his career. Although the British Government sought an injunction, the action failed on the ground that the information had lost its confidential character, as this book was available in other countries. Hence, information must remain outside the public domain if it is to be protected.

However, the Court did not decide whether the above reasoning tantamount to allowing the holder of confidential information to rid himself of the obligation of confidence by disclosure. Lord Goff explained the “springboard principle” and held that disclosure by a third party does not release the confidant from his obligations. This reluctance shown by the courts to allow a confidant to benefit by breaching his confidence prevents an unequivocal declaration that information, which is confidential, cannot be public. Nonetheless, where the holder of the information himself discloses the information, no action for breach of confidence will lie. A lapse of time may also result in breach of confidentiality.32

The obligation of confidence

The obligation of confidence does not arise where the information is divulged in public or in other circumstances that negate the duty of holding it confidential. This test, which is an objective one, focuses on the relationship between the parties. The types of relationships in which such an obligation is said to arise can be divided into three broad categories:

1. Fiduciary relationships

The essence of a fiduciary relationship is that equity imposes an obligation on the trustee to act in the best interest of the beneficiary. For instance, directors may owe an obligation to their company, professionals such as auditors and solicitors may owe a duty to their clients and so on.

2. Contractual relationships

Parties to the contract are free to make such provision as they deem fit for the use of confidential information. It is common to stipulate that information would not be passed beyond the contract.

1. Employee-employer relationship

The basic duty of fidelity arises throughout the course of employment and continues to a limited extent even after the employment terminates. Thus, any employee who discloses confidential information is in breach of confidence.

The major drawbacks associated with an action for breach of confidence are that an adequate remedy is unavailable against the person to whom the information is disclosed, as the holder of the secret may be unable to prevent the continuing use of the confidential information by such person(s). Although damages may be sought against the confidants, they generally do not have the economic capacity to pay adequate damages. The question of liability of third parties assumes importance in this connection.

Misappropriation of trade secrets: liability of third parties

American courts have developed the tort of misappropriation, which imposes liability on third parties for the use of trade secrets. This tort is not committed by a person who uses or publishes a trade secret unless that person has used some unlawful means or breached some duty created by contract or implied by law resulting from some employment or similar relationship.37 It is the use of improper means to procure the trade secret, rather than the mere copying or use, which is the basis of liability.

UTSA contains definitions of “misappropriation” and “improper means”. The American Restatement of Laws has modernized the definition of “improper means” to include “the unauthorized interception of communications”. This implies that even computer hacking is included in the definition of improper means. The Restatement is clear that “improper means” that are “either wrongful in themselves or wrongful under the circumstances of the case” come within the tort of misappropriation.

Though English courts have not framed the issue in terms of “improper means”, the rationale for imposing liability on third parties seems to be the same in both English and American law. Courts have held that even if there is no contractual nexus between the parties, liability arises if the confidentiality of the information is obvious. It must be emphasised that third parties are liable only when the information is not only known, but also known to be confidential in character.

The Law Commission has recommended that the duty should be broader and prevent, for example, a company that has received information in confidence during the course of licensing negotiations from turning that information to its own use, though without disclosing it further.45 Thus, there is a need for reforming the law in this regard.

In India, the tort of misappropriation has not gained judicial recognition. However, Indian courts can adopt the common law approach and grant relief.

CONCLUSION:

The Innovation Bill of 2008 is considered to be a dynamic approach towards protection of Trade secret but it has been argued invariably and needs to be emphasized.

To conclude, Enactment of a strong statute for protection of confidential information and trade secrets would certainly help the Indian industry. In any event, strategies for protection of the organization’s confidential information and trade secrets have, in today’s economic scenario, become a prerequisite to the organization’s survival. Although realizing the need of legislation for the protection of trade secrets, the Indian legislature came up with a bill named

as “The Personal Data Protection Bill” which was introduced in Rajya Sabha on 8th December, 2006, but unfortunately the bill has not been passed till now and is pending the approval of the Indian Parliament before it can become an act.