CASE ANALYSIS- SHARAD BIRDICHAND SARDA V. STATE OF MAHARASHTRA, AIR 1984 SC 1622

Abstract

The researcher has, in the present case-analysis tried to summarize the relevant facts pertaining to the case and discuss the applicable laws of evidence. Further, an attempt to read the laws of evidence with the judgment at hand is done, in addition to which a critical analysis of the relevant portion of the original judgment in light of the decisions relied upon while delivering it and the decisions which relied upon the original judgment is done to evaluate the impact of the judgment. 

Case Map

After the trial court and the High Court of Bombay ruled against the accused in the case, the matter came before the Hon’ble Supreme Court through a SLP under Article 136 of the Constitution of India against the judgment of a division bench of the Bombay High Court. The case pertains to the death of one Manju who was the wife of the main accused (Sharad Birdichand Sarda). The facts surrounding her death and evidences put forth paint a rough sketch of the events leading up to the unfortunate death. 

The deceased was in an unhappy marriage. She was depressed and sad about the ill-treatment she received by her in-laws and her husband. Even the court observed that she was a sensitive person and was depressed.  

The conviction awarded by the lower courts was based loosely on appreciating circumstantial evidence and by shifting the burden of proof on the accused. 

Rules of Evidence

Criminal proceedings reach a just and fair conclusion through the various facts put forth via the examination of witnesses and appreciation of evidence. The onus to prove guilt generally is on the prosecution, and in order to do so, the guilt must be established conclusively, and proved beyond reasonable doubt.[1]

In the current case two concepts pertaining to Law of Evidence are dealt, the two of them will be discussed in brief by the researcher before critically analysing the case in light of the two concepts.

1. Burden Of Proof

2. Circumstantial Evidence

Burden Of Proof

The Criminal Justice system in India provides for an evidence to be proved before a court of law in order to ascertain the guilt of the accused. Proving as per the Indian Evidence Act, 1872 as interpreted by several judicial pronouncements[2], the standard set provides the evidence to substantially prove the case beyond reasonable doubt. The burden of proof in a criminal case rests on the prosecution and not the defence.[3]

Circumstantial Evidence

In certain cases, it becomes very difficult to find direct evidences and the facts and evidences put forth in absence of directly associated evidences assist the courts to decide the matter conclusively. While these evidences are usually brought forward in cases where there is a dearth of primary evidence, circumstantial evidence is also put along with the general evidence to strengthen the case in general. The circumstantial evidences attempt to prove the core facts which go on to prove the contentions required for the completion of an offence.

The admissibility of circumstantial evidence is often debated in the legal community at lengths. Circumstantial evidences such as dying declarations, last seen appearances etc. are seen as evidences of last resort, or weak evidences.[4] These evidences are admissible only if they conclusively establish the line on which they proceed.[5] The circumstantial evidences should further also rule out any other probability of the chain of events that it establishes or seeks to establish.[6]

Critical Analysis of The Application of the Rules of Evidence in the case

The case of Sharad Birdichand is considered to be a landmark in the field of Law of Evidence. The case discusses in detail the treatment of circumstantial evidence in cases they are inconclusive, and while doing so, reiterates that the burden of proving entails the burden to prove conclusively and without any doubt. 

The judgment lays down the panchsheel test to examine circumstantial evidences in general. The test is extracted from para 153 of the judgment.[7]

The judgment discusses and deliberates upon the concept of burden of proving guilt beyond reasonable doubt through a chain of events which must yield only one outcome, the one which proves the accused to be guilty.  The court laid down that the onus of proving the guilt rests on the prosecution, and the inability to defend oneself extensively should not be attributed to the accused is a negative manner.  The facts and the hypothesis should be in line and there should be apparent coherence between the two to be able to accept the circumstantial evidences against the accused. The sequence of the events must be such as to not leave any reasonable ground in favour of the innocence of the accused.  The judgment cited and reasoned 23 judgments to logically reach at the conclusion that a situation which offers two possible explanations should not be attributed to the accused to prove his guilt.[8]

Building upon the case and relying on the judgment several recent judgments have meted justice by holding that the weakness of the defence cannot cure the lacunae in the case of the prosecution. The judgment has been accorded a correct interpretation and innocent accused have been acquitted pursuant to the guidelines laid down in the case.[9]

The case has been reported regularly in the various judgments pertaining to evidence issues and has guided justice by treating a accused with dignity and fairness. The judgments following the precedent have kept the administration and the investigatory authorities on their feet, as it has been made clear to them that the weakness of the defence cannot automatically be factored into their favour. 

Conclusion

The laws of evidence in particular, and the applicability of the burden of proof to circumstantial evidences gives a broad understanding of the nature and function of the criminal justice system of the country. The current exercise helped the researcher analyse not just the case at hand but also the key postulates upon which the Law of Evidence relies.  The case had Mr. Jethmalani argue his way through one of his first big cases where he interpreted Laws of Evidence in a manner favorable to the accused. The factual matrix of the case was very well linked by both the advocates and the judges and the authorities cited provided a brief history lesson on the evolution of Laws of Evidence. The impact of the judgment is very significant to the criminal law development in the country even today, and the researcher is really thankful for being


[1] Krishan v. State, 2003 7 SCC 56.

[2] Shankarlal Gyarasilal Dixit v. State of Maharashtra, 1981CriLJ 325.

[3] Hanumant v. State of M.P, AIR 1952 SC 343.

[4] Rambraksh vs. State of Chhattisgarh, (2016) 12 SCC 251.

[5] Bodh Raj vs. State of Jammu and Kashmir AIR 2002 SC 316.

[6] M. G. Agarwal v. State of Maharashtra, 1963 2 SCR 405.

[7] Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622.

[8] M.G. Agarwal v. State, 1963 2 SCR 405.

9] Vijay Shah v. State of Delhi (NCT)., MANU/DE/4661/2018.

This article has been authored by Anurag Shankar Prasad.

The Sabrimala Issue – An Ancient Victory

  • The Temple

Sabrimala is a temple complex situated inside the Periyar Tiger Reserve, Kerala, India. The temple is devoted to the Hindu celibate deity “Lord Ayyappan” and as per belief; he is the son of Shiva and Mohini (the female avatar of Vishnu). It is the largest annual pilgrimage in the world with an estimate of 17-30 million devotees visiting each year. It has outshined all the accepted concepts of a pilgrim centre.

  • The Issue

The issue which arose regarding the Sabrimala temple was women and young girls of menstruating age were not allowed to enter the temple since they were considered as “Impure”, in order to offer their prayers to the celibate deity Lord Ayyappan.

  • The Beginning of an Enchanting Episode
  • Kerala High Court

In 1990, S. Mahendran filed a petition in the Kerala High Court, alleging that young women were visiting the temple for non-religious purposes. There were evidences to show that women were visiting the temple to conduct first rice feeding ceremony of their children.

The Kerala High Court banned the entry of women between the age of 10 to 50 years from entering and worshipping at the temple. The reason behind such a judgment by the Court was prohibition on women of menstruating age to enter the Sabrimala temple had become a “Usage”, which was being followed by the people of Kerala since the time immemorial.

Also, the Court had directed the Kerala Government to use the police force to enforce the order to ban the entry of women to the temple. It further held that such restriction of not allowing women to enter Sabrimala was imposed by the Devaswom Board and was not violative of
Articles 15, 25 & 26 of the Constitution of India and the  Place of Worship (Authorization of Entry) Act, 1965, as there is no prohibition between one section and another section or between one class and another class among the Hindus in the case of entry to Sabrimala whereas the prohibition is only in respect of women of a specific age group and not women as a class.

  • Supreme Court

In the year 2006, six women who were the members of the Indian Young Lawyers Association, filed a petition to the Supreme Court for the lifting of the ban against women in their menstruating age to enter the Sabrimala Temple. They further alleged that the practice was a violation of their constitutional rights, thereby questioning the validity of provisions in the Kerala Hindu places of Public Worship (Authorization of Entry) Rules, 1965 which aided it.

On 28 September 2018, the Supreme Court with a majority 4:1 ruled that the women of all ages can visit and worship in the Sabrimala temple. It was of the view that not allowing women in their menstruating years into the temple is ultra vires the Constitution and all women should be permitted to enter the temple.  The Judgment was delivered by 5 Judge Constitution Bench comprising of then CJI Dipak Misra, Justices R.F. Nariman, AM Khanwilkar, D.Y. Chandrachud and Indu Malhotra. Justice Indu Malhotra was the only Judge who had the dissenting opinion.

Failed Attempt

Before the Supreme Court Verdict: A few women of menstruating age had entered the temple and it was purified using tantric rituals.

Post Supreme Court Verdict:  No women between the ages of ten to fifty were able to go inside the temple. Even after the Court delivered its judgment in favor of women and lifted the age old ban, there seemed no cure to the issue of Sabrimala pertaining to women as they were still being stopped from entering the temple.           

Numerous protests took place at several base camps when Sabrimala was opened for pilgrims for the first time after the Supreme Court verdict.

When two women of menstruating age tried o enter the temple in the year 2018, they were blocked by protestors. One woman was also arrested on the ground of hurting religious sentiments for posting her photo on one of the social networking websites in which she was seen sitting in an allegedly ‘obscene pose’, dressed up as a devotee of Ayyappan.

The Present Position

Two women aged below fifty years of age entered the Sabrimala temple on 2nd January 2019 along with the escort of the police personnel and became the first to do so, since the judgment of Supreme Court.

On 4th January, 2019, a forty six year old Sri Lankan woman entered the temple and offered her prayers to Lord Ayyappan at Sabrimala Temple.

On 18 January 2019, the Kerala Government has notified the Supreme Court that fifty one women of menstruating age were able to fight the protestors to enter the Sabrimala temple and offer their prayers to the celibate deity.

Conclusion

The issue involved in the case does not emphasize on the fact that women are impure so that they are unable to enter the temple, as the eminence does not particularly point towards those specific five days. The fact that women at that point of age are capable of creating a life, and the deity being celibate, chose not to involve such devotees.

The Patriarchal affair continues to persist in our society which has affected the women especially at a larger scale. The conception of the notion that women are impure during their menstruation period is a complete myth; however it is still believed to be true by many. Also, there must be realization that there is a rational cause behind this specific notion; one must be given respect for the sake of the devotees that are “Crores in numbers.” Women are not prohibited legally and have no constraints yet it is the profound system of belief and rules which are collated by the real idea of impurity which does not permit them to even make an entry during the menstruation period. These implanted forms of faith are to be broken free from, restricting them to be passed onto the next generation and scraping the age old prejudice against women.

This article has been authored by Gurpreet Kaur Arora from Team LawSkills.

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SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN- ANALYZING ORDER 30 OF THE CPC.

ABSTRACT

 In practical situations it is more often than observed that the various liabilities emanate from latent sources rather than the apparent ones. The Civil Procedure Code being a subservient statute does not create an impediment on account of this technicality. Order XXX deliberates upon the procedural aspects of Suits by or against firms or persons carrying on business in names other than their own. The researcher herein has attempted to present a brief discussion on the subject.

Introduction

It is very common to observe issues arise out of civil transactions. Business transactions often result out of business relationships, these relationships are often established between two entities owing to a business structure which facilitated such establishment in the first place. As such situations present themselves in abundance, certain issues arise out such relationships and it becomes impracticable to litigate against an individual entity. Hence, it is imperative to have a proper and comprehensive code to govern these litigations which pertain to such transactions. 

Business actions are not attributable to a single individual every time, moreover, certain remedies tend to have a very limited scope if they are exercised against an individual instead of a corporation or a business partnership. Further in cases where an entire business setup or a partnership has been affected due to a certain individual’s actions, there should be a proper channel to follow to enforce the laws in the own name of the business entity or partnership.

Order 30 of the Code of Civil Procedure deals with such transactions which involve suing or being sued in the name of a firm or an association of people who carry on a business in a name other than one’s own.[1] The order runs through 10 rules which discuss the various essentials of such litigations, ranging from service, notice, appearance etc. The following analysis will provide a brief synopsis of Order 30 and proceed to analyze the order in light of judicial pronouncements and basic jurisprudence. 

An Analytical Synopsis Of The Order

Rule 1 of the order gives a basic idea of the nature of the procedural law that Order 30 seeks to establish the nature of the entire order. It provides for two or more persons who are either liable to be partners or are partners to sue or be sued in the name of the firm which they were a part of when the cause of action arose.[2] This facilitates the process of litigation by providing both the partners and the individuals seeking relief against the partners by making the litigation about the entire partnership firm i.e. every partner rather than a single individual.[3]

The aggrieved are further provided under Rule 1 with an option to apply to the court for a list of the partners of a firm to ascertain the concerned people at the time when the cause of action arose. 

The order further provides that were the partners sue in the name of the firm, the defendants may demand in writing that the names of all partners of the firm be declared.[4]4The rule provides that the proceeding shall proceed in the name of the firm but the decree shall mention the names of all partners. In addition to that, the rule provides that the proceedings may be stayed by the court in case the firm or the partners fail to comply with the requisition. The suit may not be dismissed if the names of all of the partners is not disclosed and the implication of such an action shall merely be that the litigation shall be deemed to be against only the declared names. However, if the list of the declared names contains certain names which are not present in the register of the firms, the suit is not maintainable.[5]

Rule 3 deals with the manner of service of summons on partners of a firm, and provides for the service to be made either on i) one or more of the partners or ii) at the principal place of business of the firm upon the person who is in charge of the management of such place at the time as directed by the court. Such service may be made whether or not any of the partners are in India at the time.[6]

However, if the plaintiff was aware of the fact that, the partnership was dissolved, service of summons should be made on any of the persons who are in India at the time and who are sought to be made liable.[7]Service will further be deemed proper even if the person accepting it is doing so through someone else.[8]

It is provided under Rule 5 that, where a summons is served, the person so served must certainly be given a notice with regards to the capacity in which he is being sued, i.e. whether as a partner or as a person in charge of the partnership business or both.[9]However, it is only mandatory for a partner to appear before the court and not the person who is in charge of the partnership business.[10]

Further, despite the proceedings being conducted in the name of the firm, each partner is required to attend and appear at the proceedings individually.[11]

Rule 4 discusses the consequences upon the death of a partner. It provides that when a partner dies, before the institution of the suit or during its pendency, it shall not be essential to join the legal representatives in the suit,[12] however, the legal representatives may exercise their right to be impleaded.[13]

A person who has been served summons under Rule 3 may appear in protest stating that he was not a partner of the firm when the issue arose and contest it before the court.[14] Such person’s liability as a partner is not absolved unless the court decides so. 

Rule 9 provides that the suits instituted by one or more partners against the firm or between firms having certain common partners. In such case, execution may be issued only with the leave of the court to safeguard the interest of all the partners.[15] Thereafter, the court may even direct accounts and inquiries to be made at the time of the execution.

The liability under a decree (other than a decree with respect to a property) passed against the firm will only be attributable to the partners who were served summons to appear.  

Rule 10 extends the applicability of Order 30 to cases where an HUF is carrying on business in any name or any person is carrying on business in any other name or style other than his own, and also to a proprietary concern, as the nature of such case permits.[16]

Concluding Comments

The essence of the ten rules of Order 30 lays down the various nuances of a civil suit concerning an entity at a non-individual level. The Order was introduced as an enabling provision to facilitate institution of suits against firms, as the same is bound to yield a just compensation in case someone is wronged. 

Suits by or against firms or persons carrying on business in names other than their own are in can be very well said to be analogous to the Company Law doctrine of distinct legal personality and the concept of piercing of the corporate veil.  The provision for the same in the CPC retraces back the liability to the firm which established the relationship responsible for the liability and while doing so, ensures that the principles of natural justice are followed. 

The Order is worded cautiously to give it the desired meaning and nothing more, something which often lacks in the procedural laws pan India.


This article has been authored by Anurag Shankar Prasad.

[1] Purushottam Umedbhai and Co. v. Manilal and Sons, AIR 1961 SC 325. 

[2] Bharat Sarvoday Mills Co. Limited v. Mohatta Brothers. AIR 1969 SC Guj 178.

[3] Shanker Hoursing Corporation v. Mohan Devi, AIR 1978 Del 255 (D.B).

[4] Rule 2, Order XXX, Code of Civil Procedure, 1908.

[5] Alwar Iron v. Union of India, AIR 1970, Raj 86.

[6] Rehmankhan Dawood Khan v. Bombay Iron Syndicate, AIR 1953 Bom 23.

[7] Karkishandas Lallubhai v. Rana Gulabdas Kalyandas, AIR 1956 Bom 513.

[8] P. Sen Pvt Ltd. v. Delite Builders

[9]  Srinath Bros v. Century Mill

[10] Rule 7, Order XXX, Code of Civil Procedure, 1908.

[11] Rule 6, Order XXX, Code of Civil Procedure, 1908.

[12] Krishna Chandra Agarwalla v. Shanti Prasad, AIR 1981 Cal 199.

[13] Upper India Cable Company v. Bal Kishan, AIR 1981 SC 1381.

[14] Rule 8, Order XXX., Code of Civil Procedure, 1908.

[15] Lakshmanan Chetty v. Nagappa Chetty, AIR 1918 Mad 167.

[16] Ashok Transport Agency v. Awdesh Kuma, AIR 1999 SC 1484

TRADE SECRETS IN INDIA


Trade Secret is a kind of Intellectual Property which comprises of Confidential Information of an organization which is not known by the general public and for which the owner of such a company has taken reasonable steps to keep it as a secret and has commercial value.

Examples can include: Business procedures, methods, formulas, know how, plans, policies system, programs, client database, etc. Also, Coca Cola’s formula for the production of its aerated drinks and KFC’s recipe for its fried chicken are considered to be the best examples of the protection of trade secrets over the years.

It can encompass any information which can give the company a competitive advantage over and above others. The unwarranted disclosure of such information may injure the owner hence it needs to be protected as a trade secret.

It is extremely difficult for the companies across the country to protect their confidential information as there are several types of tools available over the internet and physically as well to transfer the information. The biggest challenge which exists is that the employees have an access to the crucial information of the organization which acts an internal threat. Hence, there persists both internal as well as external challenge for the protection of trade secrets.

Why Protect Trade Secrets?

The need to protect trade secrets is of vital importance for any organization as it includes all the information that effectively makes the company of one a kind in the industry. Trade Secret is a kind of fragile intellectual property that needs to be given protection under the law of confidentiality incase a contract is entered into between two or more companies. For example, companies usually make the other party sign a Non Disclosure agreement so that all the crucial information remains protected throughout the term or there might be separate clause in the contract for the same.

The need for a Confidentiality agreement arises for the following factors:

  • It will aid in establishing a basic contractual commitment. Hence, it will protect an assertion under the common law as it will form a relationship of faith.
  • It will put a limit on the information that needs to be revealed.
  • This will also have a moral effect on the party who has signed the agreement as he/she will always be informed about the conduct that is expected from him or her. Hence, proper methods and procedures will be put in place to keep a check on the disclosure of the information which is being communicated.
  • Also, the inventor has an option to keep his invention as a trade secret, i.e., he has the option of keeping his confidential information as a secret for some period of time prior to making his invention public and to seek for the grant of a Patent.

Position in India

India does not have a distinct statute for the governance and protection of Trade Secrets. The Indian Judiciary has upheld the Trade Secret protection under the principles of Equity and sometimes under the Common Law of Action for the violation of any of the Contractual Obligations. The remedies which are available in the case of Breach of Confidence are Injunction that is to prevent the infringer from further making unauthorized use of the information and disclosure of the trade secret to any other third party, restoring the company with all of its proprietary and crucial information and damages or compensation for the losses that have been borne by the company for the unwarranted revelation of the trade secret.

  • Richard Brady v. Chemical Process Equipment Private Limited (AIR 1987 Del. 372)

FACTS

In this case, Plaintiff had invented a Fodder Production unit and for the local production of the same, the Defendant was asked to supply the thermal panels. For the same, the Plaintiff had shared the technical material, technical know- how, drawings and specifications with the Defendant. However, no confidentiality agreement was signed in between the parties.

An agreement was entered into for the supply of Thermal Panels between the Plaintiff and the Defendant. After some period of time the Plaintiff learnt that the Defendant will not be able to supply the thermal panels and did not go ahead with the placing of the orders.

ISSUE

The Plaintiff after acquiring knowledge of the Defendant’s own fodder production unit filed a suit against for the misappropriation of the Plaintiff’s information that was exchanged with the Defendant

JUDGMENT

The Court awarded an injunction against the Defendant even when there was no confidentiality agreement signed in between the parties and further widened its equitable jurisdiction.

  • Ritika Private Limited v. Biba Apparels Private Limited (DEL HC DE 0784 2016)

FACTS AND ISSUE

In this case, the Plaintiff had sought injunction against the Defendant as he alleged that the Defendant had imitated his clothing designs.

JUDGMENT

However, the Court was of the view that if an injunction has been prayed for in the pleadings for the infringement of the trade secrets then the Plaintiff must specify what is his trade secret and how does he hold the ownership of it, only then the will the Court contemplate the passing of the injunction against the Defendant. Incase, the Plaintiff is unable to prove the above mentioned then the Court cannot pass an order of injunction against the Defendant. Additionally, no relief would be provided under the Copyright Act, 1957 when the design, sketch or drawing has been used for the creation of 50 or more apparels.

Hence, the aggrieved not only has to prove that his confidential information has been breached upon but also, the quality of the information and its nature needs to be proved in the Court of Law in order to get remedied.

CONCLUSION

India is a member and signatory of the Paris Convention and the provisions of the Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS) clearly stipulate about the protection of Confidential Information or Trade Secrets under Article 1(2).

Also, under article 39 of the TRIPS there is a provision of guard against Unfair Competition which is additionally mentioned under article 10 bis of the Paris Convention for the information that is:

  • Secret and unknown and is not accessible by the general public
  • Has Commercial Value,
  • For which the owner of the information has taken reasonable steps to keep it as a trade secret.

On May 12, 2016 the Government announced and came up with the National IP  Rights Policy which encompasses seven aims and objectives in its sphere. One of the aims of the policy is to ensure Legal and Legislative Guard in the form of a Statute for the protection of Trade Secrets or Confidential Information.

Currently, India completely relies upon the Indian Judiciary for the protection and provision of remedies against the breach of Confidence, Contractual Obligations and Unauthorized use of Confidential Information. However, with the forming of the National IP Rights Policy, one can be certain for the making of the statute pertaining to Trade secret protection in India in the near future.

This article has been authored by Gurpreet Kaur Arora from Team LawSkills.

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CRITICAL ANALYSIS OF THE LAWS AGAINST CYBER CRIMES IN INDIA

Introduction

Innovation is inherent to human nature. The human race has tried since time immemorial to keep building and rebuilding things to make things easier for the world. Right from the invention of the wheel ages ago, to the first telephone call by Alexander Graham Bell, remarkable unprecedented developments have been achieved by the humanity due to research and innovation. 

With every major achievement of the world, the society has dynamically reciprocated and has transformed accordingly. Introduction of Telephones prompted the deployment of large-scale telephone lines, and installation of Public-Call-Offices. People stood in lines and waited for their turn to talk, later with subsidization and advancements directed at making the technology feasible people got telephone connections at their houses via telephone lines. The introduction of broadband-internet was based on and facilitated by the existent telephone network.

The 1990s saw the Indian economy open up and allow investments from the private players, government lax the norms for business and permit the foreign investors to freely invest in India. As a result of improved trade and commerce between the world at large and India, improved technology made its way to India. Computers flooded Indian markets with the IT-revolution and the advent of call-centers, soon enough the early cellular phones made their way into the markets. With ubiquitous technology available across sectors, the Indians became more and more reliant on the innovations of the present, and started improving and tailoring technology to suit their needs. Most of the technology got commercialized, and overwhelmed the entire nation. 

Of the various advancements brought about in the 21st century, the most significant one by far is the commercialization of internet, and the exponential increase in the users of the technology that it subsequently achieved.  

However, as is the case with almost every positive development that the world has seen, adversities start showing up almost parallel to the growth. Telephones posed a multitude of issues such as rampant stealing of connections, tapping of phones, using telephone numbers to organize criminal activities etc. The introduction of portability via the cellular phones further posed a number of threats ranging from better organization and coordination of organized crimes, widespread dissipation of telephone numbers of innocent people to miscreants who would then utilize the hand-held phones to stalk and threaten people.

The dawn of internet however opened a Pandora ’s Box as, internet was way bigger than any technology ever built. It complemented everything from banking to communications, from easing ticket reservations to revolutionizing retail. Internet today is integrated in almost every other technology. Cell phones, computers, cars and televisions everything runs internet on it. Such is the reach of internet today that most of the tech today is unimaginable without internet. No one would be willing to use a cell phone or a computer that cannot run internet on it.

The internet today has connected the world like never before. Every information needed by a man is literally on his finger-tip. However, the same reach that remarks internet’s success has been at the root of several unforeseen offences. The growth in the cyber-space (mobile devices, processors, internet etc.) has resulted in the growth of new offences and the increase in the magnitude and intensity of the existing offences. 

Cyber-laws concern themselves with the various aspects of the budding cyber technology. It provides for the regulations pertaining to the licenses, revenue and conduct relating to the computer, internet and mobile technology. A large part of the cyber laws however concerns itself with the menace of cyber-crime. 

There is no specific definition of cyber crimes under the IPC or the IT Act, 2000 which is the governing statute for Information Technology in India. However, the nature of the crimes which in common parlance comes to mean cyber-crimes extends so widely that, putting the definition into a strait-jacket is next to impossible. 

Bank frauds, forgery, data theft, pornography etc. are some of the several common cybercrimes which plague the society today. The researcher in the instant paper has tried to discuss the various laws in place intended to check the rampant cyber crimes in India, and has tried to analyze their contribution in doing so, in addition to which, the researcher will attempt to critically analyze the legal regime around cyber-crimes.

Laws around Cyber Crimes in India

As cyber-crimes are often carried out against subjects which are defined and discussed under the Information technology Act, the statute further penalises these crimes. The Indian Penal Code is the central legislation which deals with conventional crimes in India. As, the scope of these crimes stand expanded today in the light of the technological revolution, a form of these crimes can easily be classified under the ambit of cyber-crimes. Hence primarily, the cybercrimes in India are dealt under the following two statutes. 

  1. Information Technology Act, 2000.
  2. Indian Penal Code, 1860.

Information Technology Act, 2000

India had by the early 2000s, identified IT as a key factor in its quest to achieve economic superiority and overall growth. The governments at the centre and the state level incentivized the growth of centers for IT education, basic computer skills were mandatorily taught by the centrally affiliated schools, and an entire population was soon equipped with primary computer skills. The investment made in the development of the IT sector yielded the results soon enough, and the IT industry boomed in the country. The IT industry was of a tertiary nature and assisted the functioning of the primary and the secondary sectors of the economy, while some professionals formed companies and had standalone operations in form of software giants and consultancies, a major chunk of the IT- educated population transitioned into the mainstream corporate to help with the IT requirements of these organizations. A small population however resorted to utilizing their proficiency in IT to certain ulterior motives. The Information Technology Act, 2000 was legislated both to cater to the growing needs of the IT community in the country and to identify and punish the fringe elements who indulged in misusing information technology. 

Chapter 11 of the IT Act (S.65 to S.78) details and discusses various cyber-crimes, and prescribes the punishment for them. Herein discussed are a few common offences which have been made punishable under the IT Act:

  1. Tampering with source documents: The IT Act prescribes a punishment for concealing, destroying and altering any data which is required not to be maintained and preserved in accordance with the law.[1]For instance, if a disc is required as an evidence to be submitted before a court, alteration in its contents or the production of a fabricated copy of the same may attract a 3-year prison sentence along with a fine. [2]
  2.  Identity Theft: The concept of identity theft refers to the act of using the electronic signature or password etc. of an individual. The same is made liable under the Act with a 3-year prison sentence along with a fine.[3]
  3. Cheating by Personation: The Act penalizes cheating by personation using a computer source with a 3-year prison sentence and a fine.
  4. Privacy Violation: In wake of the acknowledgement of the fundamental right to privacy by the Hon’ble Supreme Court of India.[4]and the recent exposes relating to privacy violation by big MNCs like Google and facebook, Privacy violations have taken the centre stage at various national debates. The IT Act, 2000 prescribes a 3-year prison sentence and a fine for the same u/s 66E.
  5. Cyber terrorism: The act of putting a nation’s sovereignty in danger by the use of a computer resource is referred to as cyber terrorism. Often the use of computer programs such as viruses etc. aids the acts of cyber-terrorists, these acts tend to affect the lives of the people adversely and can even lead to the death of people.  The Act has dealt with cyber terrorism very strictly and has made it punishable with life imprisonment u/s 66 F.
  6. Transmission of Pornographic Material: Transmission of pornographic content has been discussed very strictly under the Act. The implications of the transmission of pornographic content have been appreciated by the legislatures and, since the transmission is bound to have a long term and intense adverse effect on the lives of the victims[5]Section 67 prescribes a minimum punishment of 3-years’ worth jail-time and 5 lakhs in fine. The punishment for a second-time offender has been set at a jail-term for 5 years and a fine of 10 lakhs.

Further, Section 67-B exclusively deals with child pornography for victims below the age of 18 years. The prescribed punishments for a first conviction in cases of child pornography is 5-years of jail time and a fine of 10 lakh rupees, a second conviction can land one a sentence of 7 years and an additional fine of 10 lakh rupees.

  • Compensation for failure to protect data: S. 43-A of the IT Act deals provides for compensation in case a body corporate which handles sensitive personal data fails to protect the same. The body corporate operating with sensitive personal data are required under the section to adopt reasonable security practices and procedures to prevent the loss of data failing which they will be liable to compensate for the loss of the data. 

The IT Act further provides for the central government to issue guidelines and prescribe for security procedures and practices to ensure that the contravention of the various mandates of the statute does not happen.[6] The Act also provides for the rule making power of the legislature to better execute the enactment.

Indian Penal Code, 1860:   

The amended Indian Penal Code in light of the IT Act, 2000 includes electronic records and documents under the ambit of records and documents. Hence, the offences pertaining to the fabrication of the records and falsification of documents etc. extends to the e-records and documents. 

The Sections dealing with false entry in a record or false document etc (i.e. 192, 204, 463, 464, 464, 468 to 470, 471, 474, 476 etc) have been amended by the enactment

Apart from these two legislations, certain other legislations which govern areas that share an interface with internet and technology do have a few provisions dealing with the culpability of cyber threats. However, the substantial provisions of these two statutes lays down a basic framework for the Indian law enforcement against cyber-crimes. 

Critical Analysis

Crimes are as dynamic as a society is, with considerable growth in education and exponential upgradation of the society’s cumulative technology, the criminals have evolved as well. New crimes are being carried out which affect a large number of people, further the conventional crimes are being conducted today with exceptional precision with the help of readily available technology. As the effect of these crimes transcend down to the common folk more often than not, cyber-crimes are now a hot subject matter of the law. As, it is sought to rectify the wrongs perpetrated against the society through the instrument of legislations and their execution. 

While the common cyber crimes have been adequately dealt with under the IT Act, 2000, the legislature constantly keeps bringing about new rules to cater to the growing corpus of the crimes. Currently a key issue faced by the nation at large is that of ‘Data Privacy’, herein the researcher has analyzed how the laws have emerged around the same to accord protection to the people’s fundamental right to privacy. S.66 C of the IT Act, 2000 penalizes Identity theft and S.66 E penalizes violation of an individual’s privacy.

The Rules under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011[7] complement the existing data protection mechanism in the country. 

Rule 8(1)[8] talks about the need for the existence of reasonable security practices and procedures. The international Standard IS/ISO/IEC 27001 on “Information Technology – Security Techniques – Information Security Management System – Requirements”.

In the wake of the debate around Aadhar infringing Right to Privacy, the law pertaining to data privacy was re-examined and on 4h May 2017, The Ministry of Information Technology, Government of India published ‘Guidelines for Securing Identity Information and Sensitive Personal Data or Information in compliance with AADHAR Act,2012 and the Information Technology Act,2000’ 

B.N. Shrikrishna committee further analyzed the various jurisdictions globally in light of the Right to Privacy, data protection etc. and submitted a report which provided a basis for the recent Right to Privacy Bill, 2017.[9] The bill shields an individual’s right to privacy against the world at large and attempts to establish the control of one’s personal data in their own hands. 

Conclusion

In certain ways, the unearthing of these new age crimes tend to bring about a greater degree of awareness among the people and the regime and helps the building of a better, more nurturing society. Laws around the crimes have to be ever-changing as the ill-elements in the society keep on coming up with innovative ways to carry out their malicious acts. The instant paper helped the researcher understand the policy-making process up close and the implications of new-age cyber-crimes on the society. On being acquainted with relevant facts and laws, the researcher is of the belief that the cyber-crimes can only be countered through awareness and cyber education across the masses. 

The knowledge of laws and their applications will, in the researcher’s opinion prove to be of instrumental value in curbing the menace of rampantly increasing new-age cyber-crimes. 


[1] S.65, Information Technology Act, 2000.

[2] Bhim Sen Garg v. State of Rajasthan, 2006 Cri LJ 3463 Raj 2411.

[3] S.66C, Information Technology Act, 2000.

[4] K.S. Puttaswamy v. Union of India, 2017 10 SCC 1.

[5] State of Tamil Nadu vs Suhas Katti.

[6] S.16, Information Technology Act, 2000.

[7] G.S.R. 313(E) Ministry of Communications and Information Technology (Department of Information Technology) Notification, New Delhi, (Apr.11, 2011).

[8] IT Rules, 2011, Rule 8(1).

[9] B.N. Shrikrishna J., White Paper of the Committee of Experts on a Data Protection Framework for India, Ministry of Electronics and Information Technology, (2017).

This article has been authored by Anurag Shankar Prasad.


De-criminalization of Section 377 in India

INTRODUCTION

The Supreme Court passed a historic judgment on 26th September 2018 which gave an identity to a minority community and lifted a colonial ban on gay sex. The road to this freedom is nothing less than a battle fought. The bench led by CJI Dipak Misra restored the historic Delhi High Court judgment[1]. The petition which led to decriminalization of homosexuality started way back in 2001. It took almost two decades for the LGBTQ community to be recognized by the courts. And after a long court battle, the victory achieved is hailed by the minority community.

Apart from criminalizing homosexuality, this section was a dreaded tool against other kinds of “unnatural sexual” acts as well. It was its arbitrary, irrational and archaic nature which led to its repeal by the Supreme Court. After the Supreme Court overturned the Naz Foundation judgment in 2013, five petitions reached the Supreme Court until 2017 challenging the constitutional validity of Section 377.

TIMELINE OF EVENTS:

The Delhi High Court judgment decriminalized homosexuality among consenting adults in violation of Article 14, 15 and 21 of the Constitution of India. In a 105 page judgment Bench comprising Chief Justice A P Shah and Justice S Murlidhar had said that “We declare section 377 of Indian Penal Code in so far as it criminalizes consensual sexual acts of adults in private is violative of Articles 21,14,and 15 of the Constitution,”. They further added that “As it stands, Section 377 denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.”

Article 14 which is Equality before law guarantees equality to its citizen, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, and Article 21 guarantees protection of life and personal liberty.

The petition filed by Naz foundation, an NGO working for the betterment in the field of HIV/AIDS and sexual health claimed in the court that the section is ancient in nature and keeping up with the need and change in the society, it simply criminalizes and denies basic human rights to entire community/individuals (a minority). They further submitted that the clear motive behind section 377 lacks a clear legislative objective as there is rational nexus between natural and unnatural sexual acts as defined by the section.

The respondents of the case i.e Government of NCT & Ors. pleaded in response to the petition filed on the lines of public acceptance and morality and the perils of HIV/AIDS contraction among the LGBTQ community.

`

The celebration of the acceptance of a minority community did not last long as the Supreme Court overturned the Naz foundation case in 2013 on the grounds that it is “against the order of nature”. The Supreme Court bench of Justices G. S. Singhvi and S. J. Mukhopadhaya stated that “In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”[2] But the court opined that the Parliament should further debate about the future of the minority community. Soon a review petition was filed in the court by Naz Foundation stating that the criminal code enacted by the East India Company in 1860, with the passage of time had become arbitrary and unreasonable to be still implemented in the 21st century. On the other hand the Centre stated that “The judgment suffers from errors apparent on the face of the record, and is contrary to well-established principles of law laid down by the apex Court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution.” 

But after several review petitions filed in the Supreme Court, Chief Justice of India Dipak Misra along with Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra heard the petition gave a unanimous decision to uphold the 2009 Delhi High Court judgment. The court stated that “The law must be interpreted as per the requirement of changing time”.

The court was of the opinion that “Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. Section 377 results in discrimination and is violative of constitutional principles,” 

The judiciary has given a rational argument towards the acceptance of LGBTQ community and has further given an apology for the harassment and ostracism that they have suffered through the centuries. The decision gave a ray of hope of social acceptance and upliftment to those affected by this decision. With a positive attitude, the court dismissed the matter and henceforth for once and all repealed the archaic section.


[1] WP(C) No.7455/2001

[2]  CIVIL APPEAL 10972 OF 2013

This article has been authored by Aditi Khatri.


INTERNATIONAL REGIME OF INTELLECTUAL PROPERTY LAWS AND ITS IMPORTANCE IN TRADE

Introduction

Innovation is inherent to human nature. The quest to conceptualize and create a better version of everything drives human innovation,[1] and makes the human race alter the status quo every moment of its existence on this planet. Since innovations characteristically cater to a utility, it is imperative that such utility will induce commerce. In this age of extensive globalization everything, right from new and creative products to new ideas and advancements in technology are today being traded faster and wider than ever.  

The corporations and individuals involved in various businesses are interested in expanding their own business, and to do the same they promote innovation to appeal to the consumers as it would yield a greater market acquisition.  Then, these innovations are packaged into appealing capsules to be ingested by the customers through several marketing gimmicks. Hence, big corporations today are willing to pay hefty prices to own the most trivial-looking innovations related to their fields.

Intellectual Properties (IP) today are regarded as basic business assets, as often entire businesses are built on single or multiple IPs, or rely upon these IPs for a big chunk of their business. Jingles and taglines are associated and used interchangeably with the product, as we often hear people ask for a Colgate (a toothpaste), a packet of Nutrela (Soya Bean nuggets) etc. 

With the more play-back kind of IPs like patents and copyrights, the situation is quite similar too, corporations and individuals intending to use the patented/ copyrighted IPs pay hefty license fees to be able to do so, and yet they continue doing so to further their own business interests. For instance, there are technology giants which are very much capable of making software that may suffice their purpose, yet they opt to license the more famous software so as to appeal to the customer. 

With the apparent increase in global trade, and advancement in communication and transportation technologies, international trade and commerce throughout the globe is booming today. The customers are aware of the advancements in the technology almost as soon as they come in the public domain, and are unwilling to settle for anything below the latest most efficient piece of equipment. Indian globalization which begun with the opening up of the economy in the early 90s is currently on its peak, riding on the gift of affordable and almost universally available mobile internet devices. 

The scope of IPs cannot be limited today, with the various growths and developments, new and upcoming areas involving IP rights are being recognized. In such times, the need for a comprehensive set of IP Laws at a global level is very much felt throughout the nations. However, each nation has its own understanding, expectations, and reasons to enforce laws which inadvertently tend to be detrimental to the interests of certain other nations.[2]

The needs and expectations of a developing nation is bound to be different from a developed nation, hence the laws which cater to these needs are different. Certain nations such as Brazil, Argentina and India failed to accord extensive patent protection to the pharmaceutical products as the domestic industry was reliant on the same for its indigenous industry.[3] It therefore becomes very difficult to reconcile various national interests while legislating with respect to Intellectual Property at a global level.

International Regime of Intellectual Property Laws

Intellectual Property rights were first recognized at an international level at the Paris Convention for the Protection of Industrial Property, 1883.[4] There was a growing two-fold need to acknowledge the protection of IP rights by way of legislation, these can be summarized as follows:

  1. To give statutory expression to the rights of creators and innovators in their creations and innovations, balanced against the public interest in accessing creations and innovations
  2. To promote creativity and innovation, so contributing to economic and social development.

The Paris Convention however was revised from time to time. After every such revision, a new Act of the Paris Convention was adopted. The latest Act is that of Stockholm, 1967.[5] The convention provides for the following key provisions:

  1. Right to National Treatment- Accord same rights to the nationals of the member nations as available to one’s own nation.
  2. Right of Priority- Treatment of a later application with retrospective effect if filed in a member nation.
  3. Universal rules to be adopted by the member nations.
  4. Establishment of an administrative framework to implement the convention. 

The World Intellectual Property Organization administers major patents, trademarks and copyright treaties as per the convention.

The General Agreement on Tariffs and Trade governed the various crucial aspects of international trade from the Second World War. Thus, when the discussions on IPs and their commercial governance begun, the discourse on Trade related aspects of IPs originated from the GATT in 1995 in the Uruguay round.[6] When GATT culminated into WTO and the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the global trade in IPs begun to be universally governed by the TRIPS agreement. 

The agreement comprehensively sets out the various IPs including the nascent IPs relevant to developing economies such as Geographical Indications[7]along side Trademarks[8], Patents etc. The agreement further provides for the signatory members to enact relevant statutes to accord protection to the various recognized IPs. TRIPS agreement further discusses the process of acquisition and management of IPs and also provides for settlement and dispute prevention. 

The Anti-Counterfeiting Treaty, along with several bilateral and multilateral treaties are also currently in operation at various international levels to facilitate the trade in IPs and related aspects.

International Trade and Intellectual Property

International trade and intellectual properties interface regularly. Trade of any sort is targeted at revenue creation, and a robust framework to administer intellectual property laws proves to be instrumental in helping out the individuals, businesses, consumers and governments.

Even though the entire liberal dialogue favours a lassiez faire economic structure with free markets and no regulation, at times, it becomes pertinent to regulate certain aspects of trade so as to protect the interests of the sellers and to promote development and innovation in the market. These regulations with respect to the various IPs give rise to trade in IPs. The legal recognition of ownership with respect to a certain IP helps the overall trade of a nation. 

While trading domestically involves a lot of physical trade, and trade in essential commodities, the corpus of international trade is largely driven by more qualitative factors apart from the usual market forces of demand and supply. The global village today is very receptive to change and welcomes the same. The trade in IPs at an international level is much easier to realize as the considerations are not as stringent as they are in traditional trade. Extensive migration, increase in the growth rates of developing nations and major policy reforms around the globe has today changed the entire discourse around international trade, and has made Intellectual Property a key subject matter of international trade.

Importance of Intellectual Property in Trade

Intellectual properties are often subject matters of trade. Businesses often employ the use of certain software which subsist in the form of a copyright in India, and patents in some other nations including the US. Certain industries such as the defence industry pay a premium for the license to manufacture a certain military technology, other businesses such as secondary sector manufacturers employ the use of such technologies which might be licensed to them as an IP. Further, corporate re-structuring is at times motivated by the growth and development of the other competitors in the industry, and at times motivated by goals of self-development and expansion. Intellectual Property Rights can be utilized by the individuals or companies to spearhead further innovation in an industry by improving their product through incorporating the acquired knowledge. Further, often such acquisitions are done to eliminate potential and actual competitors with an aim to increase the market share of one’s product. Failing to acquire a key IP asset might vitiate the entire purpose of the acquisition in certain cases. E.g. a technological giant acquiring a small start-up which is engaged in manufacturing tailored softwares for mobile phones wants to acquire the start-up for one particular Operating system, the start-up’s working on, the technological giant will not settle for the other software and would definitely insist for the Operating System which it plans on integrating with the devices produced by the giant and, also develop and license to other competitors. A similar acquisition was that concerning Google’s acquiring android, which would have not gotten through unless the Operating system was a part of the deal. 

IPs such as patents in technology or copyrights in codes facilitate trade in the following manners[9]

  1. They incentivize innovation and makes the market competitive- The other players in the market cannot simply sit idle if a patent for a superior good/ technology exists[10] that would push the market players to innovate and improve the status quo.
  2. Provide technological and market information- Preconditions to the grant of the IP rights include the mandatory disclosures to be made before the government, if these are in the nature of public welfare, the information may be dissipated to the public in a few years’ time, depending on the jurisdiction. The information can also spearhead a related development.
  3. Shields the domestic market- The subsistence of a patent prevents a foreign player to be awarded one. This effectively protects the domestic goods and technology from predatory trade practices of big nations. This is extremely important for a developing nation.
  4. Helps expand the reach to other nations- The grant of IPs in foreign nations, helps a corporation expand its reach to a foreign territory, this is more often than not a very strategic move targeted to capture a developing/underdeveloped nation’s market with lots of potential.[11]
  5. License fee- The royalties due out of the licensing of various IPs runs into millions and billions of Rupees. Certain evident royalties accrue when a book is turned into a feature film or a television series. Royalties also arise out of patents vested in technology and licensed software. The income from license fee hence propels innovation and creation of IPs.
  6. Trademarks provide product recognition in the international markets.[12] If the product proves to appeal to a certain community or a nation, the chances of the trademark’s acceptability increases, the trademark brings along with it repute to the owner and the nation as well. 
  7. Economic growth- Trade concerns itself with revenue generation, creation of opportunities and cumulative growth of a nation. Trade in IPs help in all of the above, in addition to which it helps the economy extract more money by investing in education, innovation and skill-training. The economic growth follows as a by-product of trade in IP.

Apart from the discussed significances, IPs shape up the nature of businesses, creates new areas of trade and enhances the overall awareness level of the trading community by making them keep up with the recent developments.

Conclusion

While the international regime definitely sets down the guidelines to be followed, at times they are motivated and driven by vested interests of certain nations. Several developing nations and their IPs such as Geographical Indications, Traditional Knowledge etc. has not been given due deliberation at the international levels. 

Further, the entire idea of Intellectual Property Rights ends up creating monopolies which aspire to merely control the market and make it anti-competitive and less favorable towards the customers. The creation of universal IP laws can hence prove to create global monopolies over very essential and very trivial things, which might not be in the larger interest of the public.

Suggestions

  1. Rather than being dictated by global organizations, similar economies such as India, Brazil, and Argentina etc. should formulate its own IP laws pertaining to trade and commerce.
  2. The universalization of the laws despite being enforced through the popular TRIPS Agreement, remain to be soft law, nations should come up with their own legislations combining the elements of the agreement and their own policies like India did.
  3. Trade usually operate between two parties; hence more and more bi-lateral accords should be entered into by the nations to give full and fair effect to the IP laws.

The focus of IP laws should be to incubate the small industries rather than equip the big ones with more teeth, hence awareness regarding formal recognition of IPs should be brought about by domestic governments, and an attempt to reconcile the interests of the masses with the interest of the in


[1] Christopher M Kalanje, Role of Intellectual Property in Innovation and New Product Development, Consultant, SMEs Division, WIPO.

[2] Kenneth W. Dam, The Growing Importance of International Protection of Intellectual Property, The International Lawyer, Vol. 21, No. 3, 627 (Summer 1987).

[3] Annual Report on National Trade Estimates 9 (1985) (U.S. Trade Representative’s report to Senate Finance Comm. and House Ways and Means Comm. on National Trade Estimates for year ending Oct. 31, 1985.

[4] Understanding Industrial Property, https//:www.wipo.int, 8th August, 2018.

[5] Paris Convention, History, https://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch5.pdf.

[6] John M. Curtis, Intellectual Property Rights and InternatIonal Trade: An Overview, CIGI Papers No.3, May 2012.

[7] Art. 22.1, TRIPs Agreement, 1994.

[8] Art 15, TRIPs Agreement, 1994.

[9] Gerald J. Mossinghoff, The Importance of Intellectual Property Protection in International Trade, Vol.7, Issue 2, 8-1-1984.

[10] Mansfield, Patents, Innovation and U.S. Technolngy Policy, 10 AM. PAT. L.A.Q.J. 42 (1982).

[11] Grabowski & Vernon, The Pharmaceutical Industry, in GOVERNMENT AND TECHNICAL PROGRESS 292-95 (R. Nelson ed. 1982).

[12] Lunsford, Consumers and Trademarks: The Function of Trademarks in the Marketplace, 64 TRADE-MARK REp. 81 (1974).

This article has been authored by Anurag Shankar Prasad.