INDIAN BPO: VICTIM OF MISINFORMATION

The paper discusses way in which the Indian BPO industry is being projected by the western media after the alleagtion of data theft revelation the Sun Tabloid UK.

This particular BPO theft episode is unnecessarily being dragged to the wrong direction. Even before the completion of the initial inquiry into the matter the whole Indian BPO sector is being projected to the world as an organized sector of economic crime and a threat to the global business.

I see this particular episode as a victim of over reaction by every section of society.Without going through the details of the case some part of the media, particularly western media starting naming it as an blot on the BPO business and started even warning companies to reconsider their decision of transferring BPO works to India.

Similarly, issues relating to the adequacy of Data Protection laws in India are being misinterpreted in this regard. Cyber experts have been writing and stressing for long that India has sufficient Data Protection laws and problem is not of the their inadequacy but of their proper implemention.

The law concerning “Data Protection”.

The laws, till now, governing the protection of “Data Property” can be found in the Copyright Act, 1957 and the Information Technology Act, 2000. The Copyright Act is the most important law, which is providing the most effective and strongest protection to “Data Property”. The Copyright Act, 1957 protects “databases” as “literary works” under section 2(o) of the Copyright Act.It is supplemented by the Information Technology Act that is taking care of ‘Data stored in electronic form”(1). Similarly, adequate provisions are there under the TRIP'S agreement to protect the databases.

Hence, The basic information and public awareness about their existence in India is missing and the same is required to be provided as soon as possible.

(1) http://perry4law.blogspot.com/2005/06/insuring-data-property_111831618809117833.html

© Geeta Narula. All rights reserved with the author.
* Advocate, Delhi High Court

Contact at: advocategeeta@yahoo.com / advocategeeta@rediffmail.com

DIGITIAL MARRIAGE

The present paper tries to analyse the possibility of digital / cyber marriage or simply speaking marriage through the medium of internet with specific reference to the domicile and jurisdictional aspect, which are important parts of law of marriage especially in cases of conflicts of laws.

I. INTRODUCTION

Since the time when man in primitive society decided to live in groups and formed the society, marriage and family are the institutions which were considered to be not only a union of a man and women but as a sacrament and in upholding of which society at large was deeply interested for a long time. The things have changed with the technological developments made by the mankind and Marriage is not an exception to this. The form and formalities required for the marriages too have changed now.

However this law of marriage is not as simple as it seems to be but is rather complex and law governing the marriage varies with community or religion. Every community has its own personal law governing the issues relating to marriage. To be valid a Hindu marriage must be in accordance with either the Hindu Marriage Act or the Special Marriage Act. Similarly, a Muslim marriage must be in accordance with the Muslim Personal law applicable to the parties.

Every marriage to be legally valid must satisfy two things

(1) essential validity and

(2) formal validity of the marriage.

While an essential validity refers to the legal capacity or the requirement of complying with the "capacity" aspect of the marriage which are generally fixed by the law of the land. For example, to enter into a valid marriage contract one must be above the minimum age fixed by the relevant law to which the parties are subject. Whereas, the formal validity generally encompasses within its ambit the "formality aspects" of the marriage i.e. customary rituals which are fixed by the personal law of the parties.

II. DIGITAL MARRIAGE

There is great disagreement among the legal scholars over the possibility of Digital Marriage or marriage with use of internet. The main point of their disagreement is the relaxation of the requirement of physical presence. Though at present, marriage under the Hindu Marriage Act can not be performed in the cyberspace as traditional Hindu Law emphasizes on the ceremony of "saptapdi" as an essential ceremony for the validity of it which can not be performed without physical presence of both the parties to the marriage. But such a marriage would be equally valid if there is a custom to the contrary that allows the party to marry by simply accepting each other as husband and wife. As far as marriage under Special Marriage Act and Muslim marriage are concerned, they can be performed in the cyberspace since facilities of digital signature and video conferencing can be used for this purpose. Similarly marriage under Muslim law where marriage is essentially a contract it is possible.

III. LAW OF DOMICILE

As law of marriage is governed by the relevant personal law, and personal laws are applied on the basis of one's domicile. Hence, for the application of proper marriage law, one must have a domicile.

The domicile is the legal relationship between an individual and a territory with a distinctive legal system, which invokes that system as his personal law. The determination of domicile of an individual has a great legal significance. It helps in identifying the personal law by which an individual is governed in respect of various matters such as the essential validity of a marriage, the effect of marriage on the proprietary rights of husband and wife, jurisdiction in divorce and nullity of marriage, illegitimacy, legitimation and adoption and testamentary and intestate succession to moveables. Each person who has, or whom the law deems to have, his permanent home within the territorial limits of a single system of law is domiciled in the country over which the system extends; and he is domiciled in the whole of that country even though his home may be fixed at a particular spot within it.

Generally speaking domicile is of 3 types:

(i) Domicile of origin that is received by birth by operation of law.

(ii) Domicile of choice, residence coupled with intention to reside permanently or for an indefinite period of time in a country; and

(iii) Domicile by operation of law.

Till a new domicile is acquired by a choice or by operation of law, the domicile of origin continues. In Mr. Louis De Raedt v U.O.I the Supreme Court observed: "For the acquisition of a domicile of choice, it must be shown that the person concerned had a certain State of mind, the animus manendi. If he claims that he acquired a new domicile at a particular time, he must prove that he had formed the intention of making his permanent home in the country of residence and of continuing to reside there permanently. Residence alone, unaccompanied by this state of mind, is insufficient.

IV. THE JURISDICTIONAL PROBLEM

The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.

The exceptions to this rule may be as follows:

(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;

(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married;

(iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

V. CONCLUSION

There is nothing that makes a marriage valid or invalid for it being performed with the use of internet or information technology. Once a person satisfies the essential and formal validities of the marriage his/her marriage is perfectly valid.

© Geeta Narula. All rights reserved with the author.

* Advocate, Delhi High Court
Contact at: advocategeeta@yahoo.com / advocategeeta@rediffmail.com

ONLINE DISPUTE RESOLUTION IN INDIA

The aim of this article is to analyse the prospective use of online dispute resolution mechanism (ODRM) in India. The necessity of the same has arisen due to the growing use of alternative dispute resolving mechanism (ADRM) in India to reduce the burdening of the already overburdened courts in India. The popularity and use of ADRM is increasing but it can achieve its best only if the same is integrated with the information technology.

I. INTRODUCTION

The swift growth of e-commerce and web site contracts has increased the potential for conflicts over contracts which have been entered into online. This has necessitated a solution that is compatible with online matters and is netizens centric. This challenging task can be achieved by the use of ODRM in India. The use of ODRM to resolve such e-commerce and web site contracts disputes are crucial for building consumer confidence and permitting access to justice in an online business environment. These ODRM are not part and parcel of the traditional dispute resolution machinery popularly known as “judiciary” but is an alternative and efficacious institution known as ADRM. Thus, ADR techniques are extra-judicial in character. They can be used in almost all contentious matters, which are capable of being resolved, under law, by agreement between the parties. They have been employed with very encouraging results in several categories of disputes, especially civil, commercial, industrial and family disputes. These techniques have been shown to work across the full range of business disputes like banking, contract performance, construction contracts, intellectual property rights, insurance, joint ventures, partnership differences etc. ADR offers the best solution in respect of commercial disputes. However, ADR is not intended to supplant altogether the traditional means of resolving disputes by means of litigation. It only offers alternatives to litigation. There are a large number of areas like constitutional law and criminal law where ADR cannot substitute courts. In those situations one has to take recourse of the existing traditional modes of dispute resolution.

II. THE PREMIER MODE OF ADR

Arbitration is the supreme method for resolving and adjudicating commercial disputes[1]. It is a procedure in which the dispute is submitted to one or more arbitrators, for adjudication, who resolve the dispute. The decision is given in the form of an award. The main objects of arbitration are speed, economy, convenience and simplicity of procedures. It encourages healthy relationship between the parties. The Arbitration and Conciliation Act, 1996 governs the “arbitration procedures” in India. Section 5 of the Act provides that notwithstanding anything contained in any other law for the time being in force, in matters governed by Part I (Sections 2 to 43), no judicial authority shall intervene except where so provided in the said part. This clearly indicates the legislative intent to minimise supervisory role of courts to ensure that the intervention of the court is minimal. Section 4 is a deeming provision, which lays down that where a party proceeds with the arbitration without stating his objection to non-compliance of any provision of Part I from which the parties may derogate or any requirement under arbitration agreement, it shall be deemed that he has waived his right to so object. Section 7 provides that the arbitration agreement shall be in writing and such an agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Sub-section (4) of Section 7 provides the conditions under which a document or exchange of letter or exchange of statement of claim and defence may amount to an arbitration agreement. Section 11 of the Act provides for appointment of arbitrators and sub-section (6) thereof empowers the Chief Justice of the High Court or any person or institution designated by him to make such an appointment on the happening of certain conditions enumerated in clauses (a), (b) or (c). Section 16 of the Act is important and it provides that the arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or authority of the arbitration agreement[2]. Thus, the base provided by the Act is sufficient to accommodate the mandates of ODRM. It must be noted that a court of law cannot render justice unless the ultimate decision is based on the contemporary law as prevailing in the society. A decision based on an old law, which does not satisfy the requirements of the present situation, and environment should be avoided. In such a situation the efforts of the courts should be to give the law a "purposive, updating and an ongoing interpretation". This position makes the interface of justice delivery system with the information technology inevitable and unavoidable. We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly keep on adapting itself to the fast changing society and not lag behind[3]. Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of the law is its flexibility and its adaptability; it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. Thus, the justice delivery system cannot afford to take the information technology revolution lightly[4]. The judiciary in India has not only recognised this need but has also utilised the information technology to do complete justice. The Supreme Court has on various occasions encouraged the use of information technology for meeting the ends of justice and to do complete justice. There is nothing that shows that the courts in India will not encourage the concept of ODRM in India. The Supreme Court has encouraged the use of ADR techniques in India and very soon the same will be extended to ODRM as well.

III. E-JUSTICE SYSTEM IN INDIA

The judicial response vis-à-vis information technology is positive and technology friendly.

In M/S SIL Import, USA v M/S Exim Aides Silk Exporters[5] the words "notice in writing", in Section 138 of the Negotiable Instruments Act, were construed to include a notice by fax. The Supreme Court observed: "A notice envisaged u/s 138 can be sent by fax. Nowhere is it said that such notice must be sent by registered post or that it should be dispatched through a messenger. Chapter XVII of the Act, containing sections 138 to 142 was inserted in the Act as per Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1988.Technologiacl advancements like Fax, Internet, E-mail, etc were on swift progress even before the Bill for the Amendment Act was discussed by the Parliament. When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipments already in vogue and also in store for future. If the court were to interpret the words "giving notice in writing" in the section as restricted to the customary mode of sending notice through postal service or even by personal delivery, the interpretative process will fail to cope up with the change of time. So if the notice envisaged in clause (b) of the proviso to section 138 was transmitted by Fax, it would be compliance with the legal requirement".

Thus the requirement of a written notice will be satisfied if the same is given in the form of a fax, e-mail etc, using the information technology. It must be noted that a notice by e-mail can be send instantaneously and its delivery is assured and acknowledged by a report showing the due delivery of the same to the recipient. This method is more safe, accurate, economical and lesser time consuming as compared to its traditional counterpart, popularly known as "Registered A.D".

In Basavaraj R. Patil v State of Karnataka[6] the question was whether an accused need to be physically present in court to answer the questions put to him by the court whilst recording his statement under section 313. The majority held that the section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in the facilities of legal aid in the country. It was held that it was not necessary that in all cases the accused must answer by personally remaining present in the court. Once again, the importance of information technology is apparent. If a person residing in a remote area of South India is required to appear in the court for giving evidence, then he should not be called from that place, instead the medium of "video conferencing" should be used. In that case the requirements of justice are practically harmonised with the ease and comfort of the witnesses, which can drastically improve the justice delivery system.

In State of Maharashtra v Dr.Praful.B.Desai[7] the Supreme Court observed: "The evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video conferencing. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. Thus, it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is recorded in the "presence" of the accused and would thus fully meet the requirements of section 273, Criminal Procedure Code. Recording of such evidence would be as per "procedure established by law". The advancement of science and technology is such that now it is possible to set up video conferencing equipments in the court itself. In that case evidence would be recorded by the magistrate or under his dictation in the open court. To this method there is however a drawback. As the witness is not in the court there may be difficulties if commits contempt of court or perjures himself. Therefore as a matter of prudence evidence by video conferencing in open court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of court and perjury are also punishable".

This judgment of the Supreme Court is a landmark judgment as it has the potential to seek help of those witnesses who are crucial for rendering the complete justice but who cannot come due to "territorial distances" or even due to fear, expenses, old age, etc. The Courts in India have the power to maintain anonymity of the witnesses to protect them from threats and harm and the use of information technology is the safest bet for the same. The testimony of a witness can be recorded electronically the access to which can be legitimately and lawfully denied by the Courts to meet the ends of justice.

The above discussion shows that the judiciary in India is not only aware of the advantages of information technology but is actively and positively using it in the administration of justice, particularly the criminal justice. Thus, it can be safely concluded that the "E-justice system" has found its existence in India. It is not at all absurd to suggest that ODRM will also fine its place in the Indian legal system very soon.

IV. ONLINE DISPUTE RESOLUTION

The ADR mechanism can be effectively used to settle online disputes by modifying it as per the need. It is time effective and cost efficient. It can also overcome the geographical hurdles. However, there are certain issues revolving around ADR mechanism like need for personnel with knowledge of IT, ADR and law; technical concerns; legal sanctity of proceedings; industry support etc. But these hurdles are just a passing phase. The use of ADR mechanisms for resolving online disputes is increasing day by day. A number of web-sites provide for some type of online dispute resolution method like arbitration, negotiation, mediation etc. and also certain conflict management services. These services fall into the general categories of complaint handling, negotiation, mediation and arbitration. These services will be in great demand in the future since the 1996 Act has given paramount importance to “party autonomy” by accepting the intention of parties as a platform for dispute resolution. Thus, what law will be applicable will depend on the intention of parties. If the parties have adopted the mechanism of ODRM then it will definitely apply with necessary minor modifications. The language used in various sections of the Arbitration Act give options to the parties to opt for the procedure as per their agreement during the arbitral proceedings before the arbitrator. So if there is an agreement between the parties with regard to the procedure to be followed by the arbitrator, the arbitrator is required to follow the said procedure. However, this would not mean that in appeal parties can contend that the appellate procedure should be as per their agreement. The appellate procedure would be governed as per the statutory provisions and parties have no right to change the same[8]. It must be noted that party autonomy presupposes the existence of an arbitration agreement. There may be a situation where the parties had not entered into an arbitration agreement. To meet such situations Sec.89 of CPC can be invoked. The reason for inserting Sec.89 has been to try and see that all the cases which are filed in the court need not necessarily be decided by the court itself. Keeping in mind the law delays and the limited number of judges, which are available, it has now become imperative to resort to ADR Mechanism as contemplated by Sec.89. There is a requirement that the parties to the suit must indicate the form of ADR, which they would like to resort to during the pendency of the trial of the suit. If the parties agree to arbitration, then the provisions of the Arbitration and Conciliation Act 1996 will apply and that will go outside the stream of the court[9].

V CONCLUSION

The need and necessity of ODRM is going to be felt very soon and we must be prepared for the same. A sound techno-legal base must be established in advance. There is a possibility that we may get BPO services in arbitration matters in the distant future. In any case it is also a mandate of Article 21 of the Constitution of India. Art.21 confers a Fundamental Right on every person not to be deprived of his life or liberty, except according to procedure established by law. Such procedure is not some semblance of a procedure but the procedure should be “reasonable, fair and just”, and therefrom flows the right to speedy trial[10]. It cannot be doubted that if the State is encouraging ODRM it is thereby assisting in the attainment of a speedier, economical and convenient justice system. Thus, the sooner ODRM is adopted the better it will be for the nation in general and the justice seeker in particular.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator, Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Telephone no: 9899169611.

[1] The other methods like conciliation, mediation, etc are also available but arbitration is generally used to resolve the disputes.
[2] Shree Subhlaxmi Fabrics Pvt. Ltd. v Chand Mal Baradia, Civil appeal no: 7653 of 2004.
[3] Justice Bhagwati in National Textile Worker’s Union v P.R.Ramakrishnan, (1983) 1 SCC 228, at p. 256.
[4] Praveen Dalal, “Justice through electronic governance”, http://www.naavi.org/, posted on 05-12-04.
[5] AIR 1999 SC 1609.
[6] (2000) 8 SCC 740.
[7] 2003 (3) SCALE 554.
[8] N S Nayak v State of Goa, 2003 (6) SCC 56.
[9] Salem Advocate Bar Association v U.O.I, Writ Petition No.496 of 2002 decided on 25.10.2002.
[10] Hussainara Khatoon (1) v Home Secretary, State of Bihar [(1980)1SCC 81]

CHILD RIGHTS IN INDIA

In this 21st century, when we Indian are busy counting our economic and political success both at national and international level, still is much needed to be done to improve the status of children in India for the coming future. In this paper, I have tried to discuss the rights of children and efforts done by India in the recent past to make these rights available to Indian children.

Introduction

Child rights are considered to be one of those issues, in a world full of conflict and economic, social, intellectual and violent confrontations on which we have achieved some consensus. But the question is have we taken necessary measures to make rights of children meaningfully available to them for their overall social, cultural and individual growth.

India has 375 million children, more than any other country in the world. Their condition has improved in the last five decades, with child survival rates up, school dropout rates down, and several policy commitments were made by the government at the national and international levels. India has made some significant commitments towards ensuring the basic rights of children. However, many things are still needed to be done to improve the survival and healthcare needs of infants and children, their education, development and protection[1]. The inclusion of Right to Primary education in the Constitution as a fundamental right under Article 21-A and recent decision of the Union cabinet to bring a legislation to provide for A National Child Commission to safeguard and protect the rights of children are the welcome steps in that direction only.

In the last century, there have been various conventions and covenants held at national, regional and international levels and various declarations signed to acknowledge the need for global consensus on the rights of children. Following are considered to be the milestones in this regard.

Geneva Declaration of 1924 - a five point text drawn by the 'Save the Children International Organization
1948 Universal Declaration of Human Rights
1959 Declaration of the Rights of the child' adopted by the UN General Assembly
1979 Convention on discrimination of women (CEDAW)
1989 Convention on the Rights of the Child
1990 World Summit on Children 2002

SAARC Convention for the Promotion of Child Welfare in South Asia

However, it is the Convention on the rights of the child (CRC) ratified by 192 countries which is considered to the most comprehensive and complete international legal declaration on children's rights concerning their protection development and welfare. As a universal declaration and international law on the basic rights of a child, the convention is considered as a powerful tool for changing human, social, political and legal attitudes in relation to Rights of Children. It envisages changes in national legislation and practice for promoting child rights in the protection, development and welfare of children. The principles as contained under Article 2, 3, 6 and 12 of CRC are considered to be guiding authority for every nation while taking any decision concerning the child.

However in the context of child rights, the very basic question which emerges to our mind is "WHO IS A CHILD" ?

The Convention on the Rights of the Child (CRC) defines children as persons below the age of 18. But under Indian legal system, there is no uniformly fixed age of a child. It depends upon the context and law to be applied to particular children.

After this the next question that comes to our mind is why special rights for children when all human rights are available to them otherwise also. The answer is very simple; it is the children who suffer most in every kind of situation. Infact, some of the worst kinds of human right violations are against children. Being vulnerable, dependant and developing human beings, they depend upon their adults for protection and fulfillments of their rights. But they are not the possessions of their parents or the state, nor are they the simple object of concern; rather they are holder of human rights in their individual capacity. Further, the Human rights instruments have not been that much effective in curbing the problem of violation of their human rights.

As per CRC the Rights of children can be further subdivided into four categories for the purpose of better understanding of them. They are Civil, Economic, Social and Cultural rights.

Civil Rights of children: These rights include right to name and nationality, protection from torture and maltreatment, special rules governing the circumstances and conditions under which children may be deprived of their liberty or separated from their parents, etc.

Economic Rights of children: They include the right to benefit from social security, the right of a standard of living adequate to ensure proper development and protection from exploitation at work.

Social Rights of children: The right to the highest attainable standards of the health and access to medical services, the right to special care for the handicapped children, protection from sexual exploitation and abduction and the regulation of adoption.

Cultural Rights of children: Include the right to education, access to appropriate information, recreation and leisure and participation in artistic ad cultural activities[2].

Indian Government's Policy on Children

Since the Independence of India; we have seen committed efforts of Indian government for the protection of child rights in India at all levels. There are various constitutional and legal provisions providing for policies beneficial to the rights of children. Following are the notable provisions among them: Article 15 of the Constitution gives power to State to make special provision for the betterment of children; Article 24 prohibits employment of children below the age of 14 year in any hazardous activity; Article 39(e) which is in the form of Directive Principles of State Policy directs state to ensure against the abuse of the children of tender age for any kind of economic benefits; Article 39(f) requires children to be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth be protected against exploitation and moral and material abandonment; Article 45 as it stood before 86th amendment to the Constitution provided for free and compulsory education for all children until they complete the age of 14. However, after the inclusion of Art. 21-A it has now become a Fundamental right of every children below the age of 14 year to get primary education. This fulfills the requirement of Articles 28 & 29 of the CRC which recognize the right of children to education and interlinks the development of children to their right to education.

The importance of education as a fundamental right was also recognized by the Supreme Court which clearly declared education as a fundamental right, in the case of "Unnikrishnan V. State of Andhra Pradesh"[3] and held, that "Though the right to education is not stated expressly as a fundamental right, it is implicit in and flows from the right to life guaranteed under Article 21."

The Factory Act, 1948; the Employment of Children (Amendment) Act, 1949; the Plantation Labour Act, 1951; the Mines Act, 1952; the Factories (Amendment) Act, 1954; the Merchant Shipping Act, 1958; the Motor Transport Workers Act, 1961; the Apprentices Act, 1961; the Beedi and Cigar Workers (Conditions of Employment) Act, 1966; the Employment of Children (Amendment) Act, 1978 and the Child Labour (Prohibition and Regulation) Act, 1986 there are numerous enactment which strongly provide provisions for the better of children in our society. Juvenile Justice (Care and Prevention of Children) Act, 2000 is also important law relating to child welfare in India which prohibits any kind of torture or other cruel, inhuman or degrading treatment or punishment to juveniles.

Any discussion on Child Rights in India can not be complete without the mention of recent move of Indian government to setup a National Child Commission in India. It is expected that The NCC will have statutory powers to inquire into violations of child rights.The commission proposes to be the legal mechanism to oversee and review the implementation of the National Policy for Children. According to official sources, the commission is expected to recommend remedial action in cases of violations of child rights. It will also help improve the survival rate, health, nutrition and education of children, particularly girls, and equip them to become economically productive adults.

© Geeta Narula. All rights reserved with the author.

* Advocate, Delhi High Court

Contact at: advocategeeta@yahoo.com / advocategeeta@rediffmail.com

[1] http://www.infochangeindia.org/ChildrenIbp.jsp

[2] Pillai, Malthi; UNICEF

[3] AIR 1993, S.C. 2179-2254

REVITALISING PERSONAL LAWS BY JUDICIAL CODIFICATION

The aim of this article is to analyse and appreciate the role played by the Apex Court of India in reviving and revitalizing the personal laws concerning marriage of various communities, particularly the Muslim community.

I. Introduction

Some questions, which arise under the ordinary civil and criminal law, are of a far-reaching significance to large segments of society, which have been traditionally subjected to unjust treatment. Women are one such segment. Thus, in dealing with the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated both economically and socially and women are assigned, invariably, a dependant role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her entire life a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner we could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief, which partakes basic human rights to secure gender and social justice, is universally recognised by persons belonging to all religions. The solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints (1).

II. Necessity of a Uniform Civil Code

Marriage is the very foundation of a civilised society. The relation once formed, the law step in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist. This societal interest mandates the enactment of a “Uniform Civil Code” (UCC) so that we can have a uniform law governing the marriages and the relationships and obligations arising out of them. Article 44 of the Constitution of India is the source for the enactment of a UCC to bring harmony between various personal laws governing the matrimonial relationships. Dr. Tahir Mahmood in his book ‘Muslim Personal Law' (1977 Edition, pages 200-202) has made a powerful plea for framing a uniform Civil Code for all citizens of India. He says: "In pursuance of the goal of secularism, the State must stop administering religion based personal laws". He wants the lead to come from the majority community but we should have thought that, lead or no lead, the State must act. It would be useful to quote the appeal made by the author to the Muslim community: "Instead of wasting their energies in exerting theological and political pressure in order to secure an "immunity” for their traditional personal law from the state legislative jurisdiction, the Muslim will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India". It is a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State, which is charged with the duty of securing a uniform civil code for the citizens of the country, and, unquestionably, it has the legislative competence to do so. The difficulties involved in bringing persons of different faiths and persuasions on a common platform are appreciable but a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because; it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a Common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case (2). One wonders how long will it take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu law – personal law of the Hindus-governing inheritance, succession and marriage was given go-bye as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27 (3). Any legislation that brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation. It is a matter of regret that Article 44 of the Constitution has not been given effect to. The Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies (4). The political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus were concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Mohammedans. The 1772 Regula-tions followed by the Regulations of 1781 where under it was prescribed that either community was to be governed by its” personal" law in matters relating to inheritance, marriage, religious usage and institutions. So far as the criminal justice was concerned the British gradually superseded the Muslim law in1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the British regime until independence and the territory of India was partitioned by the British Rulers into two States on the basis of religion. Those who preferred to remain in India after the partition fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation - Indian nation - and no community could claim to remain a separate entity on the basis of religion. It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. The Legislation - not religion – being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India. The Successive Governments till date have been wholly re-missed in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India. It must be noted that the legislative competence is one thing, the political will, sensitivity and courage to use that competence is quite another. Thus, unless and until the political parties unite together for the common betterment of India, the hope for a UCC will always remain a distant reality. They must sacrifice their own personal interests and work for the interest of nation at large. The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play. Though on the face of it the decision may look legitimate but as a matter of fact the reasons may not be based on values but to achieve popular accolade that decision cannot be allowed to operate. The Constitution of India envisages separation of power between the three organs of the Constitution so that the working of the constitution may not be hampered or jeopardized. This thin and fine line of distinction should never be ignored and transgressed upon by any of the organ of the Constitution, including the judiciary. This rigid perception and practice can be given a go by in cases of “abdication of duties” by one of the organ of the Constitution. Thus, the judiciary can interfere if there is an abdication of duties by the legislature or the executive. In such cases, the theory of separation of powers would not come in the way of judiciary while exercising the power of judicial review (5). The Supreme Court provided a sound legal base in the form of guidelines for preventing sexual harassment of women at workplace in Vishaka v State of Rajasthan, (1997) 6 SCC 241 even in the absence of legislative will to fill in the vacuum. Thus, judicial law making is permissible in certain exceptional circumstances and the problem of UCC can be solved by this process. A careful perusal of the recent decisions of the Supreme Court shows that the same is happening in a systematic and phased manner, for the common betterment of society at large.

III. Judicial codification of personal law

The codification of personal laws into a UCC has remained a secluded and disgruntled reality, but the judiciary has given them a new dimension and meaning with the exercise of its legitimate and Constitutional powers of judicial activism. This is more so where Muslim personal law was involved. The object seems to be to empower Muslim women with the basic Human Rights so that they can live a dignified and respectful life. It must be appreciated that a nation which does not respect its women cannot be described as a civilised nation at all. Such a nation cannot grow and develop and will ultimately perish due to its own rudimentary and tyrannical dogma. It seems the Supreme Court has followed this philosophy without any exceptions attached to it.

In Mohd Ahmed Khan v Shah Bano Begum (6) the Supreme Court considered the application of section 125 of the Cr.P.C to Muslim women. The Court gave section 125 a humanistic and benign interpretation and observed: “ Under section 125(1)(a), a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees. By clause (b) of the Explanation to section 125(1), 'wife' includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws, which define and govern the rights and obligations of the parties belonging to particular religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. Clause (b) of the Explanation to section 125(1), which defines 'wife' as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Section 125 is truly secular in character. Therefore, a divorced Muslim woman, so long as she has not remarried, is a 'wife' for the purpose of section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her. According to the Explanation to the second proviso to section 125 if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. It is too well known that a Mohammedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that section125 overrides the personal law, if there is any conflict between the two”.

In Smt. Sarla Mudgal v U.O.I (7) the Supreme Court considered the effect of conversion to another religion on marriage and observed: “The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the effect of dissolving a Hindu marriage. Conversion to another religion by one or both the Hindu spouses did not dissolve the marriage. In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties. A marriage solemnised under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion. A marriage solemnised, whether before or after the commencement of the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Looked from another angle, the second marriage of an apostate-husband would be in violation of the “rules of natural justice”. The second marriage after conversion to Islam would, thus, be in “violation of the rules of natural justice” and as such would be void”.

In Danial Latifi v U.O.I (8) while upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court summed up its conclusions as follows: 1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1) (a) of the Act. 2) Liability of Muslim husband to his divorced wife arising under Section 3(1) (a) of the Act to pay maintenance is not confined to iddat period. 3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. 4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

In Shamim Ara v State of U.P (9) the Supreme Court streamlined the position regarding the requirements for a valid Talaq under the Muslim law. The Court held that the correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected.

In Savitri Pandey v Prem Chand Pandey (10) the Supreme Court held that the second marriage by a spouse during the subsistence of an appeal by the other spouse against the decree of divorce would be subject to the end result of the proceedings. The court further observed: “ There is no denial of the fact that right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending in the High Court. No person can be permitted to flout the course of justice by his or her overt and covert acts. At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf”. The legislature accepted this request of the apex Court of India and enhanced the period of appeal from 30 days to 90 days, which is an appropriate step in the right direction.

In Amina v Hassn Koya (11) the Supreme Court while adjudicating upon the validity of a marriage entered into by a pregnant Muslim female observed: It is very difficult to believe that a woman who is five months pregnant will be able to conceal the pregnancy from the husband. Such an advanced stage of pregnancy cannot be concealed as the pregnancy starts showing by that time. In any case the pregnancy cannot be concealed from the husband. A husband will at least know for sure that the wife is pregnant especially when the pregnancy is five months old. Therefore, we cannot accept that that the respondent did not know at the time of marriage that the appellant was already pregnant. If this fact was known to the respondent, the marriage cannot be said to be illegal or void. Also, the conduct of the respondent at the relevant time is to be considered. He went through the marriage. He did not raise any objection even after the marriage. He was present at the time of delivery of the child. Presumably he gave his own name as the name of the father of the child for the official record. Even thereafter, for nearly four years he went along with the marriage and brought up the child while treating the appellant as his wife. Any person, who learns that his newly married wife is already pregnant for five months and who does not accept that marriage or pregnancy, will not behave in the manner in which the respondent did. In the present case, the facts on record show that the husband was aware of the pregnancy of the wife at the time of the marriage. Therefore, such a marriage cannot be said to be invalid”.

In B.S. Joshi & Ors v State of Haryana & Anr (12) the Supreme Court held that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code. The Court observed: “ The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier”.

In K.A. Abdul Jaleel v T.A. Shahida (13) the Supreme Court held that the Family Court has jurisdiction to adjudicate upon any question relating to the properties of divorced parties. The Court observed: “The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement of Objects and Reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts the matters relating to the property of the spouses or either of them. The Statement of Objects and Reasons would clearly go to show that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other; irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise”.

IV. Conclusion

The Constitution is organic and living in nature. It is also well settled that the interpretation of the Constitution of India or statutes would change from time to time. Being a living organ, it is ongoing and with passage of time, law must change. New rights may have to be found out within the constitutional scheme. It is established that funda-mental rights themselves have no fixed content; most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court (14). We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree it will shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind (15). It is further trite that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation (16). These changed circumstances may also create a vacuum in the legal system, which has to be suitably filled up by the legislature. If the legislature fails to meet the need of the hour, the courts may interfere and fill-in the vacuum by giving proper directions. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field (17). Thus, directions given by the court will operate only till the law is made by the legislature and in that sense temporary in nature. Once legislation is made, the court has to make an independent assessment of it. In embarking on this exercise, the points of disclosure indicated by this court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure there from cannot be countenanced (18). The courts may also rely upon International treaties and conventions for the effective enforce-ment of the municipal laws provided they are not in derogation with municipal laws (19). Thus, till India has a UCC, the judiciary should continue its benign and much needed codification drive. This will provide a sound and judicious platform for the ultimate UCC enacted by the legislature, after considering and giving due credence to the observations of the highest Court of India.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Telephone no:9899169611.

(1) Danial Latifi v U.O.I, (2001) 7 SCC 740.
(2) Mohd Ahmed Khan v Shah Bano Begum, AIR 1985 SC 945.
(3) Smt. Sarla Mudgal v U.O.I, AIR 1995 SC 1531.
(4) John Vallamattom and Anr v Union of India, (2003) 6 SCC 611.
(5) Praveen Dalal; “ Judicial review: Nuisance or absolute necessity”, www.naavi.org, dated: 06-0804.
(6) AIR 1985 SC 945.
(7) AIR 1995 SC 1531.
(8) (2001) 7 SCC 740.
(9) (2002) 7 SCC 518.
(10) AIR 2002 SC 591.
(11) (2003) 6 SCC 93.
(12) AIR 2003 SC 1386.
(13) AIR 2003 SC 2525.
(14) P.U.C.L v U.O.I, (2003) (3) SCALE 263
(15) Justice Bhagwati in National Textiles Workers Union v P.R.Ramakrishnan, (1983) 1 SCC 228.
(16) John Vallamattom v U.O.I, (2003) 6 SCC 611.
(17) Vishaka v state of Rajasthan, (1997) 6 SCC 241.
(18) Per P.V.Reddi.J in P.U.C.L v U.O.I, 2003(3) SCALE 263: JT 2003 (2) SC 528(Para 122). (19) Praveen Dalal, Judicial review: Nuisance or absolute necessity, www.naavi.org, dated: 06-08-04.

RIGHT TO INFORMATION AND CORPORATE SOCIAL RESPONSIBILITY

The present work tries to analyze the possibility of using Right to Information to bring social responsibility and accountability to the actions of corporations; be they public or private owned.

In a true democratic society, the affairs of the society are run through equal, active and effective participation of all the citizens in its affairs. To be effective, the participation has to be well informed, the information available to the people being full and truthful. Hence, to make self-governance a living reality Right to Information is must. But, it is not the state machinery or government departments that should be under a mandatory obligation to provide details of all their activities. Every corporation be it public funded or private, state run or MNC; should be under a similar statutory requirement to account for their actions because all their actions in some way or the other effect the common man only.

The concept of Corporate social responsibility or CSR also implies the same. All corporations being a functional part of this society only, are required to inform about their activities to the general public. Such information makes the functioning of the corporations more transparent as public knows whether a particular activity or mode of functioning of the corporation is beneficial to the society or not? and it is complying with statutory requirements or not specially the public welfare laws including those on Environment pollution. Such information will give the option to general public to use their Right to reject goods or services of those companies which fail to comply with such provisions or deliberately ignore to comply with them. And in this way right to information will sooner or later will compel the corporations to comply with their social requirements to stay in market.

Further, if we talk in terms of Constitutional law, then the fundamental right to freedom of speech and _expression, as guaranteed by Article 19 (1) (a) of the Constitution, would be meaningless without authentic requisite information about issues and subjects on which opinions are to be formed and expressed.

Hence, if the recently passed enactment on Right to Information is implemented in its true spirit and with necessary modifications such as procedural formalities and inclusion of all corporations be they private or public under its net, it will go long way in providing real justice to our countrymen.

© Geeta Narula. All rights reserved with the author.
*Advocate, Delhi High Court
Contact at: advocategeeta@yahoo.com / advocategeeta@rediffmail.com

THE GOLDEN PATH OF TRIPS

The aim of this article is to analyse the implications of and opportunities arising out of the TRIPS Agreement to which India is a signatory. The most important aspect of the TRIPS Agreement is that it protects Intellectual Property Rights (IPRs) very efficiently and effectively. The IPRs can act as a lever for economic growth and India could be one of the countries for which IPRs can do this task.

I. INTRODUCTION

The law regulates the conduct of the society in its most desirable and benign form. It maintains the order in the society and eliminates unhealthy delinquencies and deviations. Thus, law plays an important role in developing a civilised society. The law of a country is generally based on its social, economic, and political ideologies and notions. These ideologies and notions are essentially different in various societies. This usually gives rise to “conflict of laws” which is generally taken care of by the “Private International Law”. An important aspect of the Private International Law is that it is territorial oriented and society specific. Thus, the laws of the country in question prevail, if there is a conflict between the two laws of the different sovereign States. The position is, however, totally different when it comes to “Public International Law” that primarily encompasses within its ambit the law(s), which are, required to be uniformly followed by the “Member Countries”. The Treaties and Conventions entered under the banner of a common platform like WTO bind these “Member Countries” and they cannot plead that the same is against the notions and ideologies of their nation. That is why countries are very cautious while entering into various Treaties and Conventions. The Treaties and Conventions so entered are not automatically incorporated in the “Municipal Legal System”, though some countries endorse the concept of “automatic incorporation” of the same. In India, we have to take an independent action of “legislation” U/A 253[1] of the Constitution of India to make the Treaties and Conventions functional. This shows the legislative superiority of Parliament over the respective States. The laws concerning Intellectual Property Rights (IPRs) are also part of Public International Law and the TRIPS[2] Agreement governs most sturdily and persuasively the protection requirements of IPRs in India. In fact, with effect from 01-01-2005 the provisions of Indian Patents Act, 1970 also allows “product patent” along with the “process patents” for medicines. It is interesting to note that India was sternly against extending the protection of product patents to “medicines”, but as a trade-off[3] it has accepted to confer the same protection to pharmaceutical industry[4]. It must be noted that by acceding to the TRIPS Agreement India has secured for itself a “golden path of economic development”. Thus, to appreciate the value and importance of IPRs a brief evaluation of TRIPS becomes essential.

II. THE TRIPS AGREEMENT

The provisions of TRIPS Agreement are the most extensive and rigorous in nature. They protect all the forms of IPRs collectively. The protective umbrella of TRIPS covers the following IPRs:
(1) Copyright and Related Rights,
(2) Trademarks,
(3) Geographical Indications,
(4) Industrial Designs,
(5) Patents,
(6) Layout designs of Integrated Circuits, and
(7) Protection of Undisclosed Information.

It must be noted that by virtue of Article 1(2) of the TRIPS Agreements[5], the Control of Anti-Competitive Practices in Contractual Licences has been excluded from the definition of “intellectual property”. Thus, the TRIPS Agreement covers virtually the entire gamut of IPRs. The protection to these IPRs is provided by India in the following manner:

(1) Copyright and related rights: The Indian Copyright Act, 1957 protects the copyright and related rights of their owners. The rights under this category can be further sub-divided as:

(a) Copyright: The Copyright Act, 1957 protects the copyright of the holders of the same,

(b) Neighbouring rights: Copyright has some closely related rights that confer similar principles of protection. These are known as “related rights” or “neighbouring rights”. These rights protect persons, other than the creators, who are involved in the dissemination of copyrighted work. These rights are confined to three specific categories of persons: performers, producers of phonograms and broadcasting organizations. In some countries such rights may be a part of the copyright law,[6] while in others there is different legislation to protect these rights.

(c) Data property rights: The Copyright Act, 1957 protects “databases” as “literary works” under section 2(o) of the Copyright Act[7]. It must be noted that the definition of “literary work” is “inclusive” in nature and it is capable of encompassing more categories. Secondly, the concept of “compilation” used in this section is itself inclusive in nature and the compilation of “databases” is one of them. Thus, the expression “compilation”, as used in section 2(o), includes at least two forms of compilation. The one is compilations for the purpose of conferment of Copyright and the other is compilation for the purpose of Data Protection. Thus, when the section 13(1) (a) of the Copyright Act uses the expression “original literary works, it is used not only in an “inclusive” manner but also in a “multifunctional” manner. It should not be confused to mean the literary work vis-à-vis copyright only. The inclusive nature of the definition of “literary work” is permeating the entire Copyright Act and it cannot be allowed to be whittled down while interpreting section 13(1) (a) of the Copyright Act. In short, the copyright Act protects original compilations as “both” copyright and databases. It would be wrong to suggest that copyright and data protection are one and the same thing. These two are different Intellectual Property Rights, which are expressly protected not only under the TRIPS Agreement but also equally under the Copyright Act. The erroneous treatment of databases as copyright and with similar parameters has created a position where the government is planning to make a separate law for data protection. The present requirement is only to issue an “explanatory notification” clarifying this position. In fact, the definition of “literary work” is capable of accommodating “other materials” as well, which may be non-data in nature. This possibility has been expressly recognised and provided by both the TRIPS Agreement and the Copyright Act[8].

(2) Trademarks: The Trademarks Act, 1999 (TMA) protects the trademarks and their infringement can be challenged by a passing off or/and infringement action. The Act covers the remedies peculiar to Indian legal system as well as the well-known common law principles of passing off. At the same time it is in conformity with the recognised international principles and norms set by TRIPS Agreement. Thus, the protection provided under the Act is reliable and secure. It is interesting to note that the TMA also protects the trademarks from being acquired in the form of “domain names”. A domain name, though properly registered as per the requirements of ICANN[9], is still subject to the Trademarks Act, 1999 if a person successfully proves that he has “rights’ flowing out of the Act. A domain name may have all the characteristics of a trademark and could found an action for passing off[10] by applying the principles of TMA. The protection of domain name under the Indian legal system is standing on a higher footing as compared to a simple recognition of right under the UDNDR[11] Policy. The ramification of the Trademarks Act, 1999 are much wider and capable of conferring the strongest protection to the domain names in the world[12].

(3) Geographical Indications and Plant varieties: The occupational structure of India is dominated by the “agricultural sector” and the “manufacturing sector” and the “service sector” is lagging far behind in this context. This shows that India is predominantly an agricultural economy and hence it requires strongest protection of its “agricultural resources”. The attempts to acquire patent rights in “Basmati rice”, “Neem”, “Turmeric”, etc were the outcome of non-enactment of laws on “Plant Varieties” and “Geographical Indications”. The Indian Government immediately reacted by not only winning back these “agricultural resources” but equally by enacting the Protection of Plant Varieties and Farmers Rights Act, 2001(PVA) and the law concerning Geographical Indications. The Geographical Indications Act, 1999 protects the IPRs flowing out of the “geographical indications” in India. The TRIPS Agreement defines geographical indications as an indication which identifies a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin[13]. Article 23 of TRIPS provides additional protection for Geographical Indications concerning Wines and Spirits.

Similarly, the Plant Varieties and Farmers Act, 2001 protects the “plant resources” of India. It must be noted that the TRIPS Agreement protects the “plant varieties” as an Intellectual Property Right under Part II, Section 5, which is dealing with “Patent protection”. Article 27(3) (b) of the TRIPS Agreement provides that “Members” shall provide for the protection of Plant Varieties “either” by Patents or by an effective sui generis system or by a combination thereof. It is interesting to note that the TRIPS Agreement is “encouraging” the Member Countries to adhere to well recognised International Treaties and Conventions already in force. Surprisingly enough it is not requiring its members to follow the rules laid down by the UPOV Convention of 1978 and UPOV Convention of 1991. It has given a choice to the members to protect plant varieties either through “Patent law” or through an “effective sui generis system”. Thus, no fixed criteria is available that is compulsorily required to be followed by the members. The general provisions and limitations of the TRIPS Agreement will still permeate the laws providing the protection to plant varieties. The law of India combined the provisions of both UPOV 1978 and UPOV 1991 by taking the best of both. The adoption of a sui generis law by India is a good step in the right direction[14].

(4) Industrial Designs: Article 2.1 of TRIPS Agreement obligates its members to comply with Articles 1 to 12 and Article 19 of the Paris Convention. Article 25.1 obligates the members to provide protection of independently created industrial designs that are new or original. However, members may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. In addition countries are free to exclude protection of designs that are dictated essentially by technical or functional considerations. Article 25.2 mandates each member to ensure that requirement for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to see and obtain such protection. This obligation can, however, be met either through copyright law or design law. Article 26.1 confers upon the owner of a protected industrial design, the right to prevent third parties not having his consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design when such acts are undertaken for commercial purposes. Article 26.2 provides limited exceptions that do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner, taking account of the legitimate interests of the third parties. Article 26.3 provides for a minimum term of protection of at-least 10 years.

In 1911 the Designs Act was passed by the then British Government in India, since then extensive amendments have been made in the designs Act. In the meanwhile India has made tremendous progress in the field of science and technology. There has been considerable increase in the registration of designs. To provide more effective protection it had become necessary to make the legal system of providing protection to industrial designs more efficient. It was also intended to ensure that the law does not unnecessarily extend protection beyond what is necessary to create the required incentive for design activity while removing impediments to the free use of available designs. To achieve these objectives and in order to repeal the Designs Act, 1911, which had been extensively amended, the Designs Act, 2000 was enacted[15].

It is interesting to note that the protection under the Design Act is provided in the form of “copyright in design”. Copyright means an exclusive right to apply a design to any article in any class in which design is registered[16]. If a design is registered under Design Act, it is not eligible for protection under Copyright Act[17]. In case of a design capable of being registered under Designs Act, but not so registered, copyright will subsist under the Copyright Act, but will cease to exist as soon as any article to which design has been applied has been reproduced more than 50 times by an industrial process by the owner of copyright or with his license by any other person[18].

(5) Patents: The Indian Patents Act, 1970 provides patent protection in India. The same is in accordance with the provisions of the TRIPS Agreement. The recent conferment of “product patent” along with the “process patent” is an example of such compatibility. The protection to plant varieties has been excluded from the realm of patent law and a separate Act has been made for that purpose. Further, the provisions of “international patent application” and “compulsory licenses” are also in conformity with TRIPS Agreement and Doha Declaration respectively. Thus, the interest of the public at large has also been taken care of by the Indian Patents Act, 1970 and there is no need of being panicked from product patent of medicines.

(6) Layout designs of Integrated Circuits: The Semiconductor and Integrated Circuits Act, 2000 provides protection to them in the Indian context and it is sufficient to meet the requirements of the time. Further, it is in conformity with TRIPS Agreement.

(7) Protection of Undisclosed Information: An intellectual property right (IPR) has no value if it cannot be asserted and protected. If an individual cannot protect what he owns, he owns nothing. This is more so in case the right falls under the “Trade Secret” category. The trade secret presupposes the existence of valuable business information, which provides an additional benefit or competitive advantage over the competitors. The right in trade secret remains so long the owner can prevent its disclosure. The moment it is disclosed or becomes public, the right in it ceases to exist. Thus, if properly protected, trade secrets may last forever. It is believed that the formula for COCA-COLA is locked in a vault with no person having access to it. This shows that information, which provides a competitive edge over rivals, must be protected on a priority basis. Thus, recognizing the importance of this right, the countries all over the world provide protection to trade secrets. If trade secrets were not legally protected, the companies would loose incentive for investing time, money and labour in research and development, which is very important for the overall development of the country. Further, the existence of law also works as a deterrence for wrongdoers and discourages unfair conduct of the business[19].

This is the only area where India lacks drastically. The undisclosed information is protected by providing “trade secrets” protection all over the world. This field of IPR has, however, not aroused much interest in the minds of the legislature and India is still struggling for a good law on trade secrets. It is hoped that very soon we will also have a good law on trade secrets[20].

III. THE GOLDEN PATH

The signing of TRIPS Agreement by India has given birth to new opportunities and challenges for India. For a proper analysis of the same they have been categorized as:
(1) Opportunities due to TRIPS, and
(2) Implication due to TRIPS.

(1) Opportunities due to TRIPS: The TRIPS Agreement has the potential of providing a sound and stable economic growth for India. Firstly, it will provide ‘employment opportunities” to many skilled and trained Indians. It cannot be doubted that the Indian workforce is the best in world when it comes to IPRs and Information Technology. This may take the form of direct employment in the firms and organizations dealing in IPRs and Information Technology in India. It may also be in the form of providing “business process outsourcing” (BPO). The scope of BPO is gaining momentum in India and the same has been used to provide legal outsourcing and outsourcing for matters pertaining to information technology. These employment opportunities will also bring valuable “foreign exchange” to India and this can make the Indian currency stronger against the foreign currency. At the same time these foreign dealings will also bring technology and infrastructure into India that is very important for the overall development of the nation. The insurance sector can also be benefited from this phenomenon as there will be a need to insure IPRs and technology assets in India. Thus, all that is needed is to explore the “golden path” of the TRIPS in its true perspective.

(2) Implication due to TRIPS: The TRIPS Agreement has provided numerous opportunities for India but at the same time it also requires India to fulfill certain “minimum standards” for the protection of IPRs in India. It has eliminated the possibility of conferring any “special treatment” to any particular nation. It has also provided the basic standards that have to be followed so that IPRs can be enjoyed up to their fullest extent. Thus, to enjoy the fruits of TRIPS India is required to make its IPRs regime compatible with the TRIPS mandates. The recent conferment of “product patent” is an example of the same. There is, however, a long distance to cover yet. The enforcement of these IPRs requires a dedicated and arduous effort on the part of India. Thus, we must be very cautious about the legal protection of these IPRs in India. The biggest threat to IPRs is coming from the frontiers of Internet. This is so because Internet recognises no boundary and sovereignty. The “jurisdiction problem” is still vexing the legal systems of the worlds. The jurisdictional issues, particularly those relating to on-line violations of IPRs, are not easy to handle. The legal system of each nation reacts differently to these violations. At the international level various treaties and reciprocal arrangements have been adopted to deal with these violations of IPRs. This will definitely help in providing strong and effective IPRs protection to their owners. The ultimate success of these laws and arrangements would, however, depends upon a pro-active role played by the judiciary of the respective nation. If the judiciary recognising the need of the hour takes IPRs violations seriously, then the chances of their future violations become nominal.

IV. CONCLUSION

The TRIPS Agreement is a blessing in disguise for India and the only thing which we have to appreciate is its proper utilisation as per Indian socio-economic conditions. The golden path of TRIPS cannot be explored unless we venture upon it with full dedication and seriousness. It must be noted that the benefits of TRIPS are too numerous to be ignored. The possibility of India being a leader in the field of IPRs cannot be doubted and India will emerge as a leader in this field. The ultimate success of India, however, depends upon public awareness and vigilant citizenry. A person does not own anything unless he can protect it and a person cannot protect an IPR unless he is aware of it. The basic frame and guidelines have been prescribed by the TRIPS and it is now for India to encash them for its benefit.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com

Telephone No: 9899169611.

[1] Article 253 reads- Legislation for giving effect to international agreements: Notwithstanding anything in the foregoing provisions of this Chapter (Part XI, Chapter 1-Legislative Relations), Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.
[2] The Trade Related Aspects of Intellectual Property Rights
[3] The benefits of acceding to TRIPS Agreement are numerous and tempting enough to allow product patent and to adhere to the requirements of TRIPS Agreement.
[4] Praveen Dalal, “The mandates of WTO”, www.naavi.org, posted on 27-02-05.
[5] Article 1(2) reads- For the purpose of this Agreement, the term “intellectual property” refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II. The Control of Anti-Competitive Practices in Contractual Licences falls in the 8th category; hence it is excluded from the protective umbrella of intellectual properties.
[6] For instance, in countries like US or India, copyright law covers the rights of producers of phonograms.
[7] Section 2(o) provides that unless the context otherwise requires, literary work includes computer programme, tables and compilations including computer databases.
[8] Praveen Dalal, “Mandates of WTO”, www.naavi.org, posted on 27-02-05. Kindly see the article for more details.
[9] The Internet Corporation for Assigned Names and Numbers.
[10] M/s Satyam Infoway Ltd v M/s Sifynet Solutions Pvt. Ltd, (2004) 6 SCC 145.
[11] Uniform Domain Name Disputes Resolution Policy.
[12] Praveen Dalal, “Domain name protection in India”, www.naavi.org, posted on 04-11-05.
[13] Article 22 (1).
[14] Praveen Dalal, “Plant variety law in India”, (Under publication).
[15] Shruti Gupta, “Design protection in India: An overview”, (Under publication).
[16] Sec.2(c)- Design Act,2000
[17] Sec.15(1) of Copyright Act,1957
[18] Sec.15(2) of Copyright Act,1957
[19] Praveen Dalal. “Trade secrets law in India”, IJIPR, Nov-04 issue, page 21.
[20] Till then the concerned IPR holders can avail the remedies and solutions provided by the author in the abovementioned article on trade secrets.