JOIN HANDS

IPR TRENDS IN INDIA-2007 BY IPR HELPDESK

Tue, 15 Jan 2008 11:45:36 +0100

Intellectual Property Rights (IPRs) play an important role in the social, economic and cultural development of a society. Intellectual Property Rights in India (IPRs in India) are gaining lot of attention and importance in India. IPR Helpdesk of Perry4Law has been instrumental and decisive in spreading public awareness and coordinating activities regarding IPRs in India. IPR Helpdesk of Perry4Law has been continuously celebrating World IP Day each year in order to match Indian IPRs standards and norms with International requirements. This celebration and IPRs awareness drive has been supported by IPR Helpdesk, ICT Helpdesk, ICT Helpdesk and WTO and International Trade Segment of Perry4Law. These “unique initiatives” of Perry4Law aim at coordinating International and National IPRs efforts and expertise on the one hand and managing IP Development Issues related to the Development Agenda on the other. A Special Initiative against Counterfeiting and Piracy has been undertaken by Perry4Law keeping in mind the challenges of Electronic Era and Digital Millennium.

This year’s trend is as follows:

(a) Public Awareness and Harmonisation: Intellectual Property Rights (IPRs) in India (IPRs in India) consist of Copyright, Trade Marks, Patents, Designs, Plant Varieties, etc. With the adoption and ratification of TRIPS Agreement, India has to keep itself abreast of the International IPRs Standards and norms. This is a challenging task. The Information and Communication Technology (ICT) has also given IPRs in India a new meaning and shape. IPRs in the digital era require a totally different outlook and protection and the traditional methods are not effective for the same. IP issues in cyberspace bring with them certain additional rights and liabilities for both the owner as well as the person dealing with the same. IP issues in cyberspace must therefore be dealt with in a techno-legal manner rather than purely legal or purely technological manner. With this objective in mind, the first and exclusive IPR Helpdesk has been launched in India a few years back and the same is catering the contemporary Techno-Legal IPRs needs of India from a considerable period of time. IPR Helpdesk of Perry4Law is also providing IPRs Trends in India.

(b) Fight against Counterfeiting and Piracy: The year 2007 saw some good initiatives in the direction of prevention of counterfeiting and piracy in India.[1] For the first time the issue of counterfeiting and piracy was discussed during the “WIPO Week-07”[2] in a holistic and techno-legal manner. The feedback of WIPO Week[3] also saw a balance between the proprietary rights and public interest while recognising the menace of counterfeiting and piracy in India and worldwide. A resolution to fight against the same was also adopted during the week.

(c) ICT and IPRs in India: There is an inevitable relationship between ICT and IPRs. India witnessed some good steps in this direction by strengthening IPRs in India through ICT.[4] India was also recognised as an “International Search Authority”. Perry4Law’s Techno-Legal Base (PTLB TM/SM) also supplemented this initiative of Indian Government by committing to extend its expertise for e-filing and other matters. Further, IPRs protection in India also got mention and support in the ICT Trends in India-2007.[5]

(d) IPRs and Entertainment Industry: The Entertainment Industry in India also showed interest in protecting its IPRs.[6] The segments like Television, Radio, etc showed their growing interest in IPRs and their protection in India.

(e) Techno-Legal Protection of IPRs in India: An important and original concept that originated during the year was “Techno-Legal IPRs Protection in India”. This assumed importance due to the “Digital Millennium Requirements” and other “Techno-Legal Requirements” arising out of the contemporary ICT era. A Techno-Legal Analysis of Intellectual Property Rights in India was suggested to strengthen Indian Government with contemporary policies and strategies necessary to deal with issues arising in the electronic era.[7] India needs Techno-Legal Platforms like PTLB TM/SM to continuously deal with these issues.[8]

(f) Semiconductor Protection in India: The year also saw some good steps in the direction of Semiconductor protection in India. This also increased the level of domestic as well as international investment in India. India’s semiconductor and electronics manufacturing policy also contributed a lot in this regard.

(g) Bilateral agreements and MOUs: India also entered in various bilateral agreements and signed certain memorandum of understanding (MOU) with countries like Switzerland for safeguarding IPRs on a mutual basis. Technology transfer also came into limelight during some discussions.

Overall 2007 was a busy and interesting year for India. India needs a good initiative for meeting the “Techno-Legal Mandates” of IPRs. Further, counterfeiting and piracy must also be taken seriously and sternly. Let us hope that the year 2008 would take care of these issues.

© Praveen Dalal. All rights reserved with the author.
*Techno-Legal ICT, IPR and Cyber Security Specialist at PTLB TM/SM
Managing Partner-Perry4Law (First Techno-Legal and ICT Law Firm, New Delhi, India).
LL.M, Ph.D (Cyber Forensics in India: A Techno-Legal Perspective).
Contact at: perry4law@yahoo.com , pd37@rediffmail.com

[1] Praveen Dalal, “ The Menace of Counterfeiting and Piracy in India”, http://www.bloggernews.net/16196

[2] Praveen Dalal, “ WIPO Week-07 by Perry4Law”, http://www.bloggernews.net/16088

[3] Praveen Dalal, “ Feedback of WIPO Week-07 by Perry4Law”, http://www.bloggernews.net/16874

[4] Praveen Dalal, “ Strengthening IPRs in India through ICT”, http://reclaiming-india.blogspot.com/2007/07/strengthening-ipr-in-india-through-ict.html

[5] Praveen Dalal, “ ICT Trends in India-2007”, http://reclaiming-india.blogspot.com/2007/12/ict-trends-in-india-2007.html

[6] Praveen Dalal, “ Entertainment Industry in India: A Techno-Legal Analysis”, http://reclaiming-india.blogspot.com/2007/07/entertainment-industry-in-india-legal.html

[7] Praveen Dalal, “Techno-Legal Analysis of Intellectual Property Rights in India”, http://reclaiming-india.blogspot.com/2007/06/techno-legal-analysis-of-intellectual.html

[8] Praveen Dalal, “ India needs Techno-Legal Platforms like PTLB”, http://reclaiming-india.blogspot.com/2007/05/india-needs-techno-legal-platforms-like.html

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INTER-PERSONAL CONFLICT OF LAWS IN INDIA

Sat, 03 Jun 2006 06:26:25 +0200

The aim of this article is to provide a uniform solution for the inter-personal conflicts of laws. The laws in India, in this regard, are not only scattered but also archaic and redundant. This is more so after the Constitution of India came into force. The Constitution, being the grundnorm, is alone capable of providing the solution to these inter-personal conflicts of laws.

I. INTRODUCTION

The conflict of laws is nothing but our inability to cope up with the conflicts of minds. The primary responsibility for elimination of this supposed conflict lies with the legislature of India, which has drastically failed to solve this problem by enacting a “uniform civil code”. This unfortunate situation is further made complicated by non-uniform judicial precedents given by various High Courts of India. It is interesting to note that there is a wide gap between the judicial precedents of the apex court of India and various High Courts of the respective States. Thus, despite there being judicial precedents of the apex court, which can safely be relied upon for solving this problem, the High Courts are giving inconsistent judicial decisions. This situation requires an immediate action on the part of the three “Sovereign organs” of the Constitution of India[1] as well as an active and constructive participation of vigilant citizenry. To achieve this benign and much needed task, the Constitution of India can and must be taken as the base. This is because the Constitution, being the supreme law of the country, provides the constitutionality and legitimacy to all other laws of the country. Similarly, any law or provision in conflict with the provisions of the Constitution will be unconstitutional and void. Thus, the matter of conversion must also be judged in the light of the Constitution of India.

II. CONVERSION LAWS IN INDIA

The Indian laws do not prohibit conversion from one religion to another though forcible conversion is prohibited. The matter of conversion is a personal choice and the State normally does not interfere unless the medium of conversion is used as a façade to hide the naked truth of criminal tendencies. In that case the veil of conversion is lifted and the “true character” or “morality of the conversion” is considered by the Courts. The conversion laws in India can be found in:

(1) The Constitution of India, and
(2) Respective personal laws.

(1) Constitution of India

The choice of conversion to another religion is a Fundamental Right within the meaning of Article 25 of the Constitution. This right to convert is, however, subject to public order, morality, health and other provisions of Part III of the Constitution. Further, exceptions are engrafted upon this right by Article 25(2) itself. Article 25(2) (a) saves the power of the State to make laws regulating or restricting any economic, financial, political or secular activity. These restrictions or regulations should be primarily concerned with the “secular aspect” of religious practice rather than with the essentials of religion as per judicial pronouncements. Article 25(2)(b) reserves the State’s power to make laws providing for social welfare and social reform even though they might interfere with religious practice, including conversion.

(2) Respective personal laws

The conversion to another religion is a personal choice which is not forbidden by any of the personal laws operating in India. If any personal law tries to curb the choice of conversion, the same will violate Article 25 of the Constitution. Thus, it is clear that the matters pertaining to conversion are ultimately governed by the Constitution of India and not by the codified or uncodified personal laws of various parties.

III. CONSTITUTIONAL LIMITATIONS

The freedom of conscience and free profession, practice and propagation of religion is not absolute but is subject to various restrictions. This means that the right to conversion is equally subject to these restrictions. The practice of conversion can be grouped under the following categories:
(A) Conversion simplister, and
( Culpable and immoral conversion.

(A) Conversion simplister: The conversion simplister is that form of conversion which is not actuated by any malice, wrong and immorality. It satisfies not only the Constitutional requirements but even the requirements mandated by a civilized society. Thus, if a conversion does not fall within the limitations prescribed by the Constitution as well as by the civil and penal laws of a country, the same can reasonable and safely be termed as a valid, legal and morally sound conversion. If a conversion is vulnerable to Constitutional and statutory attacks and is against public policy and morality, the same becomes a culpable and immoral conversion, which must be checked and curbed at all counts with a punitive sting.

( Culpable and immoral conversion: All conversions which fail to be conversion simplister, which has a backing and protection of the Constitution of India, will be termed as “culpable and immoral conversion”. The courts take a serious note of such conversions and the façade of religious practice is made transparent to make the guilty responsible for his immoral act. This is more so where the matrimonial relationships are involved and the noble concept of conversion is used to advance an ulterior motive of re-marrying again. It must be noted that 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. 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[2]. It would be appropriate to mention that religion is a matter of faith stemming from the depth of heart and mind. Religion is a belief which binds the spiritual nature of a man to a supernatural being; it is an object of conscientious devotion, faith and pietism. If the person feigns to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited. The institution of marriage under every personal law is a sacred institution[3]. Thus, conversion should not cross the limits of morality and legality as adopted and accepted by the contemporary society. This means that religious freedom, including conversion, cannot be used as a protective shield against acts having adverse effect on public order, health, morality, etc. In Ramji Lal v State of U.P[4] the Supreme Court held that the section 295A[5] of IPC is not inconsistent with Articles 25 and 26 of Constitution as it imposes a restriction in the interest of public order. Similarly, in Stainislaus v State of M.P[6] the Constitutionality of laws prohibiting conversion by force, fraud, or inducement was challenged on the basis of Article 25(1). The Supreme Court held that the right to propagate one’s religion does not grant the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets.

IV. EFFECTS OF CULPABLE AND IMMORAL CONVERSION

The effects of conversion simplister are totally different from the effect of a culpable and immoral conversion. This means that in addition to the effects generated by conversion simplister, which are essentially civil in nature, the culpable and immoral conversions attract penal sanctions as well. This is so because the 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. Thus, the façade of conversion cannot be used to “bypass” the obligations and liabilities imposed by law.

A conversion simplister by a Hindu will have the following consequences:

(a) The spouse of the converted spouse can obtain a decree of “judicial separation”[7],

(b) The spouse of the converted spouse may obtain a decree of divorce[8],

(c) The children born to that spouse, after such conversion, and their descendants shall be disqualified from inheriting the property of any other Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens[9].

If the convert remarries after such conversion, then besides the civil consequences as mentioned above, penal sanctions may also arise. It is interesting to note that on the second marriage by the convert the aggrieved spouse has an “additional ground” to obtain “both” a decree of judicial separation and divorce. This is because the moment the defaulting spouse maintains a physical relation with any other person other than his or her spouse, section 13(1) (i) become attracted[10]. This further starts the penal chain reaction and the offending spouse becomes liable for the offence of adultery and bigamy, provided the conditions for the same are satisfied. For instance, if a male Hindu husband converts to Muslim law and marries another converted female Hindu wife of another person, then he will be liable for the offence of adultery and bigamy. This, however, presupposes the existence of a second valid marriage. Thus, in an adultery or/and bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it, must be proved. An admission of the marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case[11].

V. JUDICIAL RESPONSE

The judicial response to the conversion phenomenon has been always good except where the “purpose” of conversion or its “mode” is legal and morally sound[12]. In that case the courts have taken the moral aspect of the conversion very seriously and they have occasionally pierced the façade to see the true purpose of conversion. At the same time, genuine and conversion simplister were given due credit and recognition by the courts.

In Gove of Bombay v Ganga[13] it was held by the Bombay High Court that where a Hindu married woman, having a Hindu husband living, marries a Mohammedan after conversion to Islam, she commits the offence of polyandry as by mere conversion the previous marriage does not come to an end.

In Emperor v Mt. Ruri[14] a Christian wife renounced Christianity and embraced Islam and then married a Mohammedan. It was held that according to the Christian marriage law, which was the law applicable to the case, the first marriage was not dissolved and therefore the subsequent marriage was bigamous.

In Sayeda Khatoon @ A.M. Obadiah v M. Obadiah[15], Lodge, J speaking for the court hearing the case of conversion observed:

“The parties were originally Jews bound by the Jewish personal law. The Plaintiff has since been converted to Islam and may in some respects be governed by the Mohammedan law. The defendant is not governed by the Mohammedan law. If this were an Islamic country, where the Mohammedan law was applied to all cases where one party was a Mohammedans, it might be that plaintiff would be entitled to the declaration prayed for. But this is not a Mohammedan country; and the Mohammedan law is not the law of the land. I can see no reason why the Mohammedan Law should be preferred to the Jewish Law in a matrimonial dispute between a Mohammedan and a Jew particularly when the relationship, viz.: marriage was created under the Jewish law. There is no matrimonial law of general application in India. There is a Hindu law for Hindus, a Mohammedan law for Mohammedans, a Christian law for Christians, and a Jewish law for Jews. There is no general matrimonial law regarding mixed marriages other than the statute law, and there is no suggestion that the statute law is applicable in the present case. It may be that a marriage solemnised according to Jewish rites may be dissolved by the proper authority under Jewish law when one of the parties renounces the Jewish faith. It may be that a marriage solemnised according to Mohammedan law may be dissolved according to the Mohammedan law when one of the parties ceases to be a Mohammedan. But I can find no authority for the view that a marriage solemnized according to one personal law can be dissolved according to another personal law simply because one of the two parties has changed his or her religion."

Sayeda Khatoon's case was followed with approval by Blagden, J. of the Bombay High Court in Robasa Khanum v Khodadad Bomanji Irani[16]. In this case the parties were married according to Zoroastrian law. The wife became Muslim whereas the husband declined to do so. The wife claimed that her marriage stood dissolved because of her conversion to Islam. The learned Judge dismissed the suit. On appeal Chagla, J. elaborating the legal position held as under:-

"We have here a Muslim wife according to whose personal law conversion to Islam, if the other spouse does not embrace the same religion, automatically dissolves the marriage. We have a Zoroastrian husband according to whose personal law such conversion does not bring about the same result. The Privy Council in Waghela Rajsanji v Shekh Masludin expressed the opinion that if there was no rule of Indian law which could be applied to a particular case, then it should be decided by equity and good conscience, and they interpreted equity and good conscience to mean the rules of English law if found applicable to Indian society and circumstances. And the same view was confirmed by their Lordships of the Privy Council in Muhammad Raza v Abbas Bandi Bibi. But there is no rule of English law which can be made applicable to a suit for divorce by a Muslim wife against her Zoroastrian husband. The English law only deals and can only deal with Christian marriages and with grounds for dissolving a Christian marriage. Therefore we must decide according to justice and right, or equity and good conscience independently of any provisions of the English law. We must do substantial justice between the parties and in doing so hope that we have vindicated the principles of justice and right or equity and good conscience. It is difficult to see why the conversion of one party to a marriage should necessarily afford a ground for its dissolution. The bond that keeps a man and woman happy in marriage is not exclusively the bond of religion. There are many other ties which make it possible for a husband and wife to live happily and contentedly together. It would indeed be a startling proposition to lay down that although two persons may want to continue to live in a married state and disagree as to the religion they should profess; their marriage must be automatically dissolved”.

The court further observed:

“Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But section 4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. This is a very clear and emphatic indication that the Indian legislature has departed from; the rigor of the ancient Muslim law and has taken the more modern view that there is nothing to prevent a happy marriage notwithstanding the fact that the two parties to it professed different religious. We must also point out that the plaintiff and the defendant were married according to the Zoroastrian rites. They entered into a solemn pact that the marriage would be monogamous and could only be dissolved according to the tenets of the Zoroastrian religion. It would be patently contrary to justice and right that one party to a solemn pact should be allowed to repudiate it by a unilateral act. It would be tantamount to permitting the wife to force a divorce upon her husband although he may not want it and although the marriage vows which both of them have taken would not permit it. We might also point out that the Shariat Act (Act XXVI of 1937) provides that the rule of decision in the various cases enumerated in section 2 which includes marriage and dissolution of marriage shall be the Muslim personal law only where the parties are Muslims; it does not provide that the Muslim personal law shall apply when only one of the parties is a Muslim."

Again, in Andal Vaidyanathan v Abdul Allam Vaidya[17] a Division Bench of the High Court dealing with a marriage under the Special Marriage Act 1872 held:

"The Special Marriage Act clearly only contemplates monogamy and a person married under the Act cannot escape from its provisions by merely changing his religion. Such a person commits bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage. Section 17 provides the only means for the dissolution of a marriage or a declaration of its nullity. Consequently, where two persons married under the Act subsequently becomes converted to Islam, the marriage can only be dissolved under the provisions of the Divorce Act and the same would apply even if only one of them becomes converted to Islam. Such a marriage is not a marriage in the Mohammedan sense which can be dissolved in a Mohammedan manner. It is a statutory marriage and can only be dissolved in accordance with the Statute”.

In Gul Mohammed v Emperor[18] a Hindu wife was fraudulently taken away by the accused a Mohammedan who married her according to Muslim law after converting her to Islam. It was held that the conversion of the Hindu wife to Mohammedan faith did not ipso facto dissolve the marriage and she could not during the life time of her former husband enter into a valid contract of marriage. Accordingly the accused was convicted for adultery under Section 497 of the IPC.

In Sarla Mudgal v U.O.I[19] the position was finally clarified by the Supreme Court. The court observed that 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. Thus, conversion to another religion by one or both the Hindu spouses did not dissolve the marriage.

It is, thus, obvious from the catena of case-law that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouse converts and the other refuses to do so. Where a marriage takes place under Hindu law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu. Thus, a Hindu marriage continues to subsist even after one of the spouses converted to Islam. There is no automatic dissolution of the marriage. A marriage solemnised, whether before or after the commencement of the HMA, 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. A marriage performed under the Act cannot be dissolved except on the grounds available under section 13 of the Act. In that situation parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife. A second marriage by an apostate under the shelter of conversion to Islam would nevertheless be a marriage in violation of the provisions of the Act by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion to Islam. 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. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be nonest.

It is no doubt correct that the marriage solemnised by a Hindu husband after embracing Islam may not be strictly a void marriage under the Act because he is no longer a Hindu, but the fact remains that the said marriage would be in violation of the Act which strictly professes monogamy. The expression "void" for the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning within the scope of the definition under the Section. On the other hand the same expression has a different purpose under Section 494, IPC and has to be given meaningful interpretation. The expression "void" under section 494, IPC has been used in the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494, IPC. A Hindu marriage solemnised under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494, IPC. Any act which is in violation of mandatory provisions of law is per-se void.

The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-bye to the substance of the matter and acting against the spirit of the Statute if the second marriage of the convert is held to be legal.

The conduct of a spouse who converts to Islam has to be judged on the basis of the rule of justice and right or equity and good conscience. A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute "where the parties are Muslims" and, therefore, the rule of decision in such a case was or is not required to be the “Muslim personal law". In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC.

Looked from another angle, the second marriage of an apostate-husband would be in violation of the rules of natural justice. Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void[20].

It is clear from the above discussion that though the conversion simplister is recognised by the courts the culpable and immoral conversion is always taken with a punitive sting. That is an essential requirement to prevent abuse of the conversion process.

VI. THE ROADS AHEAD

The challenges of conversion have Constitutional colours and dimensions that can be tackled properly only by taking recourse of the Constitution of India. 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 fundamental 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[21]. Thus, horizons of constitutional law are expanding. It is presumed that the Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law[22]. 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[23]. The law of conversion seems to be lagging far behind than the requirement of contemporary society, since it is scattered in various personal laws and the same process of conversion may have different consequences. The solution to this problem lies in the enactment of a “Uniform Civil Code” (UCC) under Article 44 of the Constitution of India, which has remained a secluded and disgruntled reality[24].

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

[1] These are the legislature, the executive and the judiciary.
[2] Danial Latifi v U.O.I, (2001) 7 SCC 740.
[3] S.Saghir Ahnad.J, in Lily Thomas v U.O.I, AIR 2000 SC 1650, para 38.
[4] AIR 1957 SC 620.
[5] Section 295A makes a deliberate and malicious act, intended to outrage religious feelings of any class by insulting its religion or religious beliefs a punishable offence.
[6] AIR 1977 SC 908.
[7] Section 10 of the Hindu Marriage Act, 1955.
[8] Section 13(1) (ii) of the Hindu Marriage Act, 1955.
[9] Section 26 of the Hindu Succession Act, 1956.
[10] Section 13(1) (i) of the Hindu Marriage Act, 1955 provides a ground of divorce to the aggrieved spouse if the offending spouse, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.
[11] Kanwal ram v H.P.Administration, AIR 1966 SC 614, Para 7.
[12] The judicial response in this article has been given vis-à-vis culpable conversion only and it is not covering conversion simplister.
[13] ILR (1880) 4 Bom 330. A case before HMA came into force.
[14] AIR 1919 Lahore 389.
[15] 49 CWN 745.
[16] 1946 Bombay Law Reporter 864.
[17] AIR 1946 mad 446.
[18] AIR 1947 Nagpur 121.
[19] AIR 1995 SC 153.
[20] Sarla Mudgal v U.O.I, AIR 1995 SC 153.
[21] P.U.C.L v U.O.I, (2003) (3) SCALE 263.
[22] State of Maharashtra v Dr Praful. B. Desai, (2003) 4 SCC 601.
[23] National Textiles Workers Union v P.R.Ramakrishnan, (1983) 1 SCC 228.
[24] Praveen Dalal, “ The desperate need of UCC”,

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CUSTOMARY DIVORCE LAW IN INDIA

Thu, 04 Aug 2005 07:45:04 +0200

The aim of this article is to explore the inverse relationship of a custom empowering the parties to the marriage to dissolve their marriage and the sacramental continuity of a marriage soleminised under the Hindu Marriage Act, 1955. A valid and legally recognised custom is respected and given due weight by the courts so that it can have its full operation. This is so because no person, including a court, has a right to challenge a well recognised and universally accepted custom, which has passed the test of time and the rigorous of public and societal interest.

I. Introduction

II. The inverse relationship

The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29(2) providing that nothing in the Act can affect any right, recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. Thus, a marriage which may not be permissible to be dissolved as per the provisions of the Act can still be dissolved if the party relying on a custom can successfully plead and prove it. This shows that a valid and recognised customary law of divorce will prevail over the provisions of the Act and thus it shares an inverse relationship with the provisions of the Act, which restrict the right of the spouses to get divorce on limited grounds only. It must be noted that the customary law of divorce can be relied upon only if it satisfies certain well-accepted principles, as enumerated by the Courts from time to time. The characteristics of a valid and binding custom or usage empowering the parties to obtain divorce are:

(1) it must be of immemorial existence, it must be reasonable, it must, be certain and it must be continuous. Every custom must have to be in existence preceding memory of man and if the proof was carried back as far as living memory would go, it should be presumed that the right claimed had existed from time of legal memory[3],

(2) it is the essence of special usages modifying the ordinary law that they should be ancient and invariable; it is further essential that they should be established to be so, by clear and unambiguous evidence and that it is only by means of such findings that the Courts can be assured of their existence and that they possess the conditions of antiquity and continuity and certainty on which alone their legal title to recognition depends. Custom must be proved and the burden of proof is on the person who asserts it[4],

(3) after the existence of a custom for some years has been proved by direct evidence, it can only, as a rule, be shown to be immemorial by hearsay evidence and it is for this reason that such an evidence is allowable as an explanation to the general rule[5],

(4) the breach of a custom in a particular instance need not destroy it for all times[6],

(5) the material customs must be proved in the first instance by calling witnesses acquainted with them until a particular custom has by frequent proof in the Court becomes so notorious that the Courts take judicial notice of it. A custom cannot be extended by logical process[7],

(6) an oral evidence as to instances, which can be proved, by documentary evidence cannot be fairly relied upon to establish custom when no satisfactory explanation for withholding the best evidence is given. Custom cannot be extended by analogy and it cannot be established by a priori method[8], and

(7) the ordinary rule is that a custom, general or otherwise, has to be proved under Section 57 of the Evidence Act. However, nothing need be proved of which the Courts can take judicial notice. When a custom has been judicially recognised by the Court then it passes into the law of the land as proof of it becomes unnecessary under Section 57(1) of the Evidence Act[9].

III. Judicial response

The response of the courts in India is two fold. On the one hand they respect the mandates of the valid and well-recognised customs whereas on the other hand any attempt, which fails to satisfy the rigours of public policy and societal interests, is thwarted at the very threshold. The courts are also very conscious to ensure that the requirement of the existence of a valid custom are duly fulfilled and they must be expressly pleaded and clearly established before any relief is granted. The general impression is that since these customs are going against the basic theme and policy of the Act, they must be construed narrowly and strictly. At the same time once these customs are validly recognised even in the limited, narrowed and restricted parameters of societal interests, they are given their due weight age and the wisdom of courts is not substituted for their wisdom and recognition.

In Sankarlingam v Subban[10] divorce by consent was held valid as a matter of custom of the Pakhali caste of Ahmedabad observing that there was nothing immoral in a caste custom by which divorce and remarriage were permitted by mutual agreement. There was no invalidity in a custom by which married couple on account of disagreement between them by consent could divorce and were divorced by parties approaching the headman and other relations, paying certain amount and taking away tali or the sacred thread from round the wife's neck and giving it back to the husband. It was only when the divorce was enforced against the wishes of his wife that the custom permitted divorce would be illegal.

In Pakhali Jina Magan v Bai Jethi[11] it was held that a custom of divorce with mutual consent of husband and wife stated to exist among the Hindus of Pakhali caste of Ahmedabad was not repugnant to Hindu Law. When it was contended that the institution of divorce was itself opposed to the concept of Hindu law and that there was no decision of any Court in India which held a custom of divorce as valid as it was observed that divorce is not contemplated by the Hindu Law but it is not repugnant to its principles, and if there be a well established custom in its support, it may override the general provisions of that law. It was further observed that there had been many cases in our Courts arising out of divorce in the lower castes. In all those cases even where it was held that the divorce had not been properly granted, it had been taken for granted that the custom of divorce can validly exist in a particular community, especially if it is a Sudra community, but that divorce granted cannot be forced by the caste against an unwilling person.

In Veerappa Chettiar v Michael[12] the main question involved in both the appeals was whether the marriage of Bangaru Ammal was in Asura form or in Brahma form. The contention of the appellant was that it was not in Asura form. The Court held that the marriage of Bangaru Ammal was not in Asura form but in Brahma form. The Court observed: “Except a bare allegation in the plaint that the said marriage was held in Asura form, the plaintiffs did not give any particulars or set up any custom in the community to which the parties to the marriage belonged. There was nothing to show that there was a practice in the family to give Kambu as 'Parisam for the bride or Kambu was paid as 'Parisam' at the time of the betrothal ceremony in connection with the marriage of Bangaru Ammal. We are also in these appeals not concerned with any customary form of marriage but only with a marriage sanctioned by Hindu Law, for no custom was pleaded in derogation of Hindu Law. But there may be a custom in a community not in derogation of the Hindu Law but in regard to the manner of complying with a condition laid down by Hindu Law. That is to say if the criterion for an Asura marriage was that there should be a sale of the bride, there may be a custom in a community in regard to the manner of paying the consideration' for the sale”.

In Shakuntalabai v V.L.V. Kulkarni[13] the Supreme Court held that custom must be proved and the burden of proof is on the person who asserts it. A custom cannot be extended by logical process. The Court observed: “ Customs cannot be extended by analogy and it cannot be established by a priori method. Further, nothing need be proved of which the Courts can take judicial notice. When a custom has been judicially recognised by the Court then it passes into the law of the land as proof of it becomes unnecessary under section 57(1) of the Evidence Act. The Court entertaining no doubt that there has been ancient and unbroken customs of dissolution of marriage and of Serai Udiki marriage among the Panchamasal Lingayats which was judicially noticed by the Courts, and that the marriage in the instant case, of the fourth defendant with Gurulingappa was proved to have been customarily dissolved and that she was subsequently legally married with Gurappa in the valid customary form of Udiki marriage, whereafter, she lived with Gurappa as husband and wife until Gurappa died, and that, thereafter, she enjoyed the family pension by dint of her being nominated as wife of Gurappa to the knowledge of all concerned. She was accepted by the community as wife of Gurappa even after his death. There is, therefore, no scope for declaring the marriage illegal posthumously”.

In Dr. Surajmani Stella Kujur v D.C.Hansdah (14-02-01) the Supreme Court observed: “It is conceded even by the appellant that the parties to the petition are two Tribals, who otherwise profess Hinduism, but their marriage being out of the purview of Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed only by their Santal Customs and usage. The appellant has, however, relied upon an alleged custom in the Tribe, which mandates monogamy as a rule. It is submitted that as the respondent has solemnized a second marriage during the subsistence of the first marriage with the appellant, the second marriage being void, the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status, the establishment of which may be used for the purposes of proving the ingredients of an offence which, under Section 3(37) of the General Clauses Act, would mean an act or omission punishable by any law by way of fine or imprisonment. Article 20 of the Constitution, guaranteeing protection in respect of conviction of offence, provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause (3) of the Constitution means the law made by the Legislature including intravires statutory, orders and orders made in exercise of powers conferred by the statutory rules. For custom to have the colour of a rule or law, it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. Nowhere in the complaint the appellant has referred to any alleged custom having the force of law, which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void, the appellant was under an obligation to show the existence of a custom, which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non- est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability, the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute. In view of the fact that parties admittedly belong to the Scheduled Tribes and in the absence of specific pleadings, evidence and proof of the alleged custom making the second marriage void, no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent”.

In Yamanaji Jadhav v Nirmala[14] the Supreme Court observed: “We find that the courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document, which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong.
Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. In the instant case, we have perused the pleadings of the parties before the trial court and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true in the courts below that the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law. In our opinion, even though the plaintiff might not have questioned the validity of the customary divorce, the court ought to have appreciated the consequences of their not being a customary divorce based on which the document of divorce has come into existence bearing in mind that a divorce by consent is also not recognisable by a court unless specifically permitted by law. Therefore, we are of the opinion to do complete justice in this case it is necessary that the trial court be directed to frame a specific issue in regard to customary divorce based on which the divorce deed dated 26th of June, 1982 has come into existence and which is the subject matter of the suit in question. In this regard, we permit the parties to amend the pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary divorce (otherwise through the process of or outside court) in their community and then test the validity of the divorce deed dated 26.6.1982 based on the finding arrived at in deciding the new issue”.

IV. Conclusion

A close reading and appreciations of the traditional Hindu Law and the Act reveals that the codification of the traditional Hindu Law is a positive step in the right direction, which recognises a benign movement from the statehood of non-recognition to the platform of recognition of grounds for divorce. The traditional Hindu law did not recognise the system of divorce and the husbands were literally free to desert their wives, as this was a socially accepted phenomenon. There was, of course, the customary law which recognised that divorce can be granted by either party to the marriage if a custom prevailing in their community permits them to do so. The legislature by way of codification has improved the “marital equality” among the spouses by formulating certain grounds, which can be invoked by either spouse to get a decree of divorce. In this sense the legislature has made “positive and constructive departures” from the traditional Hindu law. The best part about this codification drive is that it expressly and in clear terms reserved the right to grant divorce under the customary Hindu law by incorporating Section 29(2) in the Act. Thus, the spouses are now free to get divorce either by invoking the provisions of the Act or by successfully pleading and proving a valid custom permitting them to obtain divorce.

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

[1] Smt. Sarla Mudgal v U.O.I, AIR 1995 SC 1531.
[2] Lily Thomas v U.O.I, AIR 2000 SC 1650.
[3] Edward v Jenkins, (1896) 1 Ch.D.308, reiterated in Mohammed Ibrahim v Shaik Ibrahim, AIR 1922 P.C. 59.
[4] Ramalakshmi Ammal v Sivanantha Perumal Sethurayar, 14 M.I.A.81.570.
[5] Raja Rajendra Narain v Kumar Gangananda, AIR 1925 PC 213.
[6] D.C. Bara Banki v. Receiver of the Estate of Choudhry & Ors, AIR 1928 PC 202.
[7] Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147.
[8] Saraswati v Jagadambal AIR 1953 SC 20.
[9] Uzagar Singh v Mst. Jeo, AIR 1959 SC 104.
[10] [1894] 17 Madras 479.
[11] I.L.R.1941 Bom 535.
[12] AIR 1963 SC 933.
[13] AIR 1989 SC 1359.
[14] (2002) 2 SCC 637.

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MARRIAGE AND DIVORCE LAW REVISITED

Wed, 03 Aug 2005 08:27:16 +0200

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.

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AN INSIGHT OF PUBLIC INTEREST LITIGATION IN INDIA

Wed, 20 Jul 2005 08:23:35 +0200

The aim of this article is to analyse the cachet and efficaciousness of the instrument of Public Interest Litigation (PIL) in India. At the same time an attempt is made to evaluate the sociological aspect of the PIL in India. The article further vocalizes the scope and nature of PIL in India.

I. Introduction

The Constitution of India is not intended to be the arena of legal quibbling for men with long purses. It is made for the common people. It should generally be so construed as that they can understand and appreciate it. The more they understand it the more they love it and the more they prize it. It is really the poor, starved and mindless millions who need the court’s protection for securing to themselves the enjoyment of Human Rights[1]. The Constitution precedents cannot be permitted to be transformed into weapons for defeating the hopes and aspirations of our teaming millions, half-clad, half-starved, half-educated. These hopes and aspirations representing the will of the people can only become articulate through the voice of their elected representatives. If they fail the people, the nation must face the death and destruction. Then, neither the court nor the Constitution will save the country[2]. This line of thinking has been now recognised and adopted by various social reformers, lawyers, judges and social workers. Even, general public now knows that the court has constitutional power of intervention, which can be invoked to ameliorate their miseries arising from repression, governmental lawlessness and administrative deviance[3]. The socio-justice tool through which these aspirations of the Constitution and people of India are achieved is known as “Public Interest Litigation” (PIL). Before proceeding further, it would be appropriate to appreciate the meaning of the expression PIL. A matter of “public interest” does not mean that which is interesting or gratifying curiosity or a love of information or amusement but that in which a class or community have a pecuniary interest or some interest by which their legal rights or liabilities are affected[4]. The expression “public interest” or “probity in governance” cannot be put in a straightjacket. Public interest takes into fold several factors. There cannot be any hard and fast rule to determine whether government action was taken in public interest or was taken to uphold probity in governance. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilised 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[5]. The expression “litigation” means a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression PIL means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights and liabilities are affected[6].

II. Evolution of PIL

The legal movement, which has resulted in the shaping of PIL in India, has been influenced stalwartly by the benign movement in U.S.A. The “Council for Public Interest Law” set up by the “Ford Foundation” in the U.S.A defined public interest law as follows: “Public interest law is the name that has recently been given to efforts to provide legal representation to previously non-represented groups and interests. Such efforts have been undertaken in the recognition that the ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the poor, environmentalists, consumers, racial and ethnic minorities and others. It was born out of the need of a large number of people who individually lacked the economic resources or operational capacity to vindicate important social values and their own specific interest through court”. In India, the courts exercising their power of judicial review found to its dismay that the poorest of the poor, depraved, the illiterate, women, children and other downtrodden have either no to justice or had been denied justice. A new branch of litigation known as PIL was evolved with a view to render complete justice to the aforesaid classes of persons. It expanded its wings in course of time. The courts granted relief to the inmates of the prisons, provided legal aid, directed speedy trial, maintenance of human dignity and covered several other areas. The court has intervened when there had been callous neglect as a policy of the State, a lack of probity in public life, abuse of power in control and destruction of environment. The court interferes and gives appropriate directions when there has been an element of violation of Art1cle 21 or of Human Rights or where the litigation has been initiated for the benefit of the poor and the underprivileged that are unable to come to the court due to some disadvantage[7].

The evolution of PIL in India has an interesting background. In the famous case of Kesavananda Bharati v State of Kerala[8] the Supreme Court ultimately put a brake on the arbitrary and unreasonable power of legislature to destroy the “Basic features” of the Constitution. Thus, the seeds of PIL could never have been planted had the Supreme Court not brought justness and fairness in the “Indian Legal System” in the year1973, by formulating the “Doctrine of Basic Structure”. Justice Krishna Iyer sowed the seeds of the new dispensation in Mumbai Kamgar Sabha v Abdulbhai Faizullabhai[9] and used the expression PIL and “ epistolary jurisdiction” in Fertilizer Corporation Kamgar Union v U.O.I[10]. In between, the Supreme Court interpreted the expression “procedure established by law” as a procedure which must be just, fair and reasonable in the year 1978[11]. This led to the testing of any “law” on the touchstone of Articles 14, 19 and 21 collectively and thus brought justness and fairness in the State’s dealing with the general public. The Supreme Court in the year 1993 declared “independence of judiciary” a “basic feature” and acquired autonomy in the selection and appointment of judges[12]. This made the interference of “Executive” in the appointment of judges a forgotten practice and made the judges more free and impartial to render justice. In the year 1993 the Supreme Court held that judicial review U/A 32 and 226 is a basic feature of the Constitution, which is beyond the pale of amendability[13]. Thus, the discretion to entertain a dispute or petition was reserved exclusively with the judiciary. This was a landmark judgment since all the PILs are either filed U/A 226 or U/A 32. This means that the discretion to entertain a PIL itself can be considered to be a part of basic feature and the only limitation could be the self-imposed restriction by the court itself. To supplement all this, the collective powers of Articles 32, 136, 141 and 142 made the Indian Supreme Court one of the most powerful court of the world.

The courts in India found that the oppression of the weaker and disadvantaged groups was considerably greater in India as compared to U.S.A. The political and legislative sensitivity was also missing. The Supreme Court was left with no choice but to assume a much more concerned guardian and protector of Fundamental Rights. The resources in India were always claimed to be limited, hence the financing of legal aid programme for giving a boost to PIL was ignored by the government as much as possible. This led to the relaxing of the requirement of “procedures” and “locus standi” by the Supreme Court. The court treated even a simple letter as a PIL. Since the coffers of the State were not burdened by this practice, the “Executive” did not object to the growth of PIL as a measure for emancipation of the poor and the weaker sections. Even the public at large supported the PIL drive. It is interesting to note that the tool of PIL proved to be a grand success in India as compared to its counterpart in U.S.A. This may be because the strategy for giving the poor and oppressed meaningful access to justice is not, as in the U.S.A, to provide funds so that they may participate in the traditional system on an equal economic footing. Instead the strategy is to change the system. Thus, volunteer social activists are allowed standing; a simple letter can be accepted as a writ petition, the court itself will shoulder much of the burden of establishing the facts through the commissions, and whenever possible the case will move swiftly to the issue of remedy, by-passing the time-consuming and costly process. The substantial accomplishments of Indian PIL surely prove that it is a development worthy of the most serious consideration by jurists, lawyers and judges from all societies, and particularly from the United States where the parallel and contrasts are so striking[14].

III. Scope of PIL in India

The scope of PIL, reflecting its sociology, is very wide which is clear from the following principles:

(1) The court in exercise of powers U/A 32 or 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who are in a disadvantaged position and, thus, not in a position to knock the doors of the court. The court is constitutionally bound to protect the Fundamental Rights of such disadvantaged people so as to direct the state to fulfill its constitutional promises.
(2) Issues of public enforcement, enforcement of fundamental rights of large number of public vis-a-vis the constitutional duties and functions of the state, if raised, the court treat a letter or a telegram as a PIL upon relaxing the procedural laws as also the law relating pleadings.
(3) Whenever injustice is meted out to a large number of people, the court will not hesitate to step in. Articles 14 and 21 of the Constitution of India as well as the International Convention on Human Rights provide for a reasonable and fair trial.
(4) The common rule of locus standi is relaxed so as to enable the court to look into the grievances complained on behalf of the poor, deprived, illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right.
(5) When the court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the government from raising the question as to the maintainability of the petition.
(6) Although procedural laws apply to PIL cases but the question as to whether the principles of res judicata or provisions analogous thereto would apply depend on the nature of the petition as also facts and circumstances of the case.
(7) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a PIL.
(8) However, in an appropriate case, although the petitioner might have moved a court in his private interest and for redressal of the personal grievances, the courting furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice.
(9) The court in special situations may appoint commission, or other bodies for the purpose of investigating into the allegations and finding out facts. The court will not ordinarily transgress into policy.
(10) The courts would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice to the parties, it does not have a power akin to Article 142 of the Constitution of India.
(11) Ordinarily the High Court should not entertain a writ petition by way of PIL questioning constitutionality or validity of a statute or a statutory rule[15].

The sociology of PIL makes it clear that through this mechanism the courts seeked to protect Human Rights and Fundamental Rights in the following ways:

(1) By creating a new regime of Human Rights by expanding the meaning of Fundamental Rights to equality, life and personal liberty. In this process right to speedy trial, free legal aid, dignity, means of livelihood, education, housing, medical care, clean environment, etc emerged as Human rights. These new reconceptualised rights provide legal resources to activate the courts for their enforcement.
(2) By democratization of access to justice. This has been done by relaxing the traditional rule of locus standi. Any public-spirited citizen or social action group can approach the court on behalf of the oppressed classes. Court’s attention can be drawn even by writing a letter or sending a telegram. This has been called “epistolary jurisdiction”.
(3) By fashioning new kinds of reliefs under the court’s writ jurisdiction.
(4) By judicial monitoring of State institutions such as jails, women’s protective homes, juvenile homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual improvement in their management and administration. This has been characterized as creeping jurisdiction in which the court takes over the administration of these institutions for protecting Human Rights.
(5) By devising new techniques of fact finding. In most of the cases the court has appointed its own socio-legal commissions of inquiry or has deputed its own officials for investigations. Sometimes it has taken the help of National Human Rights Commission or Central Bureau of Investigation or experts to inquire into Human Rights violations. This may be called investigative litigation[16].

The court may face the following challenges of the social-justice mandate, which they are competent to tackle:

(1) The expanded role of the judges in modern social state and the new demands for judicial responsibility.
(2) The rise and growth of varied system of judicial review and legitimacy of such growth.
(3) The emergence of the notion of “access to justice” as a judicial answer to egalitarian ideals and demands for effectiveness, and the development of PIL.
(4) The role of the courts in promoting its legal system in terms of PIL[17].
These challenges can be effectively met if we select an appropriate locus standi strategy, which advances the cause of social justice.

IV. Social justice and locus standi

The social justice requirement of India mandates that the concept of locus standi should be treated with a pragmatic approach. The present socio, economic and political conditions of India requires a “liberal locus standi” policy. Thus, PIL should be entertained as much as possible, by diluting the concept of locus standi. It must be noted that the right to move the Supreme Court U/A 32 itself is a Fundamental Right, which along with Article 226 has acquired a status of basic feature. The concept of PIL must be looked in the light of the judicial review power of the Supreme Court and the High Court in India, which is also a basic feature of the Constitution. This means that whenever a violation of any Fundamental Right is seeked to be protected either U/A 226 or U/A 32, the courts are “duty bound” to take note of the same. The doctrine of basic structure is not meant for “executive” or “legislature” alone but it equally binds the courts to exercise their power of judicial review wherever the situation demands so. If enforcement of Fundamental Right U/A 32 were refused by the Supreme Court, then the whole purpose of providing the Fundamental Rights under Part III would become futile. Thus, the doctrine of basic structure takes away the “discretion” of the High Courts and the Supreme Court to refuse to entertain a PIL, except in cases of abuse of process of law or abuse of process of court.
Some people discourage the expanded role of PIL by arguing that the PIL are overburdening the already overburdened courts. The fallacy of this argument is apparent and it suffers from at least two weaknesses. Firstly, the problem of overburdening is an “administrative” problem whereas the rights sought to be enforced are Constitutional and legal in nature. It is difficult to appreciate how the sacrosanct Fundamental Rights and Human Rights can be brushed aside simply on the basis of a hyper-technical “administrative argument”. Even if we prohibit the entertainment of PIL absolutely, it will not solve the problem of overburdening of courts. The problem of overburdening of the courts can be solved only by adopting a positive attitude by the judges and lawyers and it has no relationship whatsoever with the benevolent concept known as PIL. It must be appreciated that two wrongs cannot make a thing right. Thus, the overburdening of courts cannot be lessened by limited use of PIL. The solution lies in administrative efficiency and not in curbing the essentially required PILs. Secondly, the doctrine of basic structure and the socio-economic conditions of India obligates the Constitutional courts to liberally use the tool of PIL. If we look back at the past what would have been India had the tool of PIL not been used by the courts in India. In any case, the maintainability of a writ petition which is correlated to the existence and violation of a Fundamental Right is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in watertight compartments. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding be it under Article 226 or under Article 32 of the Constitution. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. The civil remedies for administrative wrongdoing thus depend upon the action of individual citizens. In such an action, the individual is pitted against the State-always an unequal contest. The individual does not have even the few procedural devices that the common law imports into criminal actions to try to redress the balance. At his own expense, he must challenge the vast panoply of State power with all its resources in personnel, money, and legal talent, by a civil action for a declaratory judgment or for an extraordinary remedy-injunction, writ of mandamus, or writ of prohibition. Aside from the manifold technical insufficiencies of these forms of action, the financial impediments to such an action are staggering. In simple terms, locus standi must be liberalized to meet the challenges of the times. Ubi just ibi remedium must be enlarged to embrace all interests of public-minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets .Law is a social auditor and this audit function can be put into action only when some one with real public interest ignites the jurisdiction. We cannot be scared by the fear that all and sundry will be litigation-happy and waste their time and money and the time of the court through false and frivolous cases. In a society where freedoms suffer from atrophy and activism is essential for participative public justice. Some risks have to be taken and more opportunities opened for the public-minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi. Public interest litigation is part of the process of participate justice and 'standing' in Civilization of that pattern must have liberal reception at the judicial doorsteps. If the courts cannot, or will not, give relief to people who' are in fact concerned about a matter then they will resort to self-help, with grave results for other persons and the rule of law. Some may reply that if there is no evidence of a great increase in numbers there is no evidence of need for enlarged standing rights. The reply would overlook two considerations. One case may have a dramatic effect on behaviour in hundreds of others; this is the whole notion of the legal 'test case'. Secondly, the mere exposure to possible action is likely to affect the behaviour of persons who presently feel themselves immune from legal control[18]. It is of utmost importance that those who invokes this court's jurisdiction seeking a waiver of locus standi rule must exercise restraint in moving the court by not plunging into areas wherein they are not well versed. Besides, it must be remembered that a good cause can be lost if petitions are filed on half -baked information without proper research or by persons who are not qualified or competent to raise such issues as the rejection of such a petition may affect the third party's rights. Lastly, it must also be borne in mind that no one has a right to the waiver of the locus standi rule and the court should permit it only when it is; satisfied that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in public interest and is not moved by other extraneous considerations[19]. It must be noted that even where a writ petition has been held to be not entertainable on the ground or otherwise of lack of locus, the court in larger public interest has entertained a writ petition. In an appropriate case, where the petitioner might have moved a Court in his private interest and for redressal of the personal grievance, the Court in furtherance of e-public interest may treat it a necessity to enquire into the state of affairs of the subject of litigation in the interest of justice. Thus, a private interest case can also be treated as public interest case[20].

V. Abuse of PIL

PIL is a weapon, which has to be used with great care and circumspection, and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to citizens. The court must not allow its process to be abused for oblique considerations. The petition of such persons should be thrown out at the threshold and in appropriate cases exemplary costs should be imposed. PIL cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions U/A 32 were entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this court. Personal interest cannot be enforced through the process of this court U/A 32 of the Constitution in the garb of a PIL. A person invoking the jurisdiction of this court U/A 32 must approach this court for the vindication of the fundamental rights of affected persons and not for the vindication of his personal grudge or enmity. It is the duty of this court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extra ordinary jurisdiction of this court for personal matters under the garb of the P.I.L[21]. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance deserves rejection at the threshold[22]. It must be noted that once the court has accepted the PIL, its withdrawal is not permissible unless the court permits the same. Thus, the petitioner is not entitled to withdraw his petition at his sweet will unless the court sees reason to permit withdrawal. In granting the permission the court would be guided by considerations of public interest and would also ensure that it does not result in abuse of process of law. Courts must guard against possibilities of such litigants settling the matters out of the court to their advantage and then seeking withdrawal of the case[23]. Thus, a writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clear mind and clear objective. It is depressing to note that on account of the trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for disposal of cases of genuine litigants. Further, The court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of Information given by him; and (c) the information being not, vague and indefinite. The information should show gravity and seriousness involved. The court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others, and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court, cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature[24].

VI. Social justice through PIL

The Supreme Court has played an active role in attaining social justice through the mode of PIL. In Hussainara Khatoon v State of Bihar[25] the PIL was filed by an advocate on the basis of a news report highlighting the plight of thousands of undertrial prisoners languishing in various jails in Bihar. This litigation exposed the failure of criminal justice system and led to a chain of proceedings resulting in the release of over 40,000 undertrial prisoners. The right to speedy trial was recognised as a Fundamental right U/A 21 of the Constitution. In Bandhua Mukti Morcha v U.O.I[26] the Supreme Court considered the plight of bonded labourers engaged in the stone quarries of Haryana. An action in the form of PIL was initiated for the identification, release and rehabilitation of the bonded labourers. The court issued direction to the Haryana Government in this regard, which were updated from time to time to meet the end of justice. In Sheela Barse v U.O.I[27] a PIL was filed to assist the release of juveniles kept in jails. The Supreme Court issued directions for the release of such juveniles and asked for the information regarding the number of such juveniles who are placed in jails. In P.U.D.R v Commissioner of Police, Delhi[28] the attention of the Supreme Court was drawn to the police atrocities committed against poor people who were forcibly taken to a police station in Delhi to work there without wages. As a consequence of such atrocities, one person died. The while granting a compensation package to the legal representatives of the deceased, the court directed the recovery of the same from the erring policeman. In M.C.Mehta v State of Tamil Nadu[29] a PIL was brought before the Supreme Court complaining that thousands of children were employed in match factories in Sivakasi. These children were exposed to fatal accidents occurring frequently in the manufacturing process of matches and fireworks. The court directed the State Government to enforce various welfare legislations including the Factories Act and to provide facilities for recreation, medical care and basic diet to the children during working hours and facilities for education. The court further directed for the formulation of a scheme requiring a compulsory insurance of both adult and children employed in hazardous industries. In Delhi Domestic Working Women’s Forum v U.O.I[30] the Supreme Court took a serious note of the sexual assault by seven army personnel against six domestic servants travelling in the train. The Supreme Court laid down various guidelines to protect and assist rape victims. The guidelines include the legal assistance, anonymity, compensation and rehabilitation of rape victims. The National Commission for women was directed to evolve a scheme for providing adequate safeguards to these victims. In the landmark judgment of Vishaka v State of Rajasthan[31], the Supreme Court declared that sexual harassment of women at work place constitutes violation of gender equality and right to dignity, which are Fundamental Rights.

VII. Conclusion

The role of PIL in bringing and maintaining the concept of “social justice and equality” cannot be either doubted or rejected. The roads ahead are, however, very tedious, difficult and complex in nature. The toughest competition is from the “executive” wing of the Constitution as it is careless about and ignorant of its noble role, which the founding fathers of the Constitution have framed for it. The court may keep on recognising the basic Human Rights and Fundamental Rights, but their “enforcement” is equally important. The “executive” seems to be indifferent towards the goals set by the Constitution and is interested in self-fulfillment only. This process is reflected by the increasing judicial activism of the Supreme Court, which is encroaching upon, though rightly and justly, those areas which primarily and exclusively were reserved “executive” and the “Legislature”. The abdication of the “Constitutional duties” by the Executive and the Legislature has left no choice for the Supreme Court but to assume the role of “limited policy making and law making”. This further has necessitated the acceptance of “unlimited qualitative quantity” of PILs in India. This means that the deserving cases should be admitted and appropriate reliefs should be granted irrespective of the number of PILs involved. Thus, the wings of PIL are required to be spread further till Executive and Legislature wake up and fulfill their duties and responsibilities.

© 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: +91 011 9899169611.

[1] Justice Dwivedi in Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.
[2] Justice Chandrachud in Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.
[3] Upendra Bakshi; “Taking suffering seriously: Social Action Litigation in the Supreme Court of India” Law and Poverty (ed) Upendra Bakshi, pages 387-415 (1988).
[4] Janta Dal v H.S. Chowdhary, AIR 1993 SC 892.
[5] Onkarlal Bajaj v U.O.I, (2003) 2 SCC 673.
[6] S.R.Pandian. J in Janta Dal v H.S.Chowdhary, AIR 1993 SC 892.
[7] Balco Employees Union v U.O.I, AIR 2002 SC 350.
[8] (1973) 4 SCC 225.
[9] (1976) 3 SCC 832.
[10] AIR 1982 SC 344.
[11] Maneka Gandhi v U.O.I, AIR 1978 SC 597.
[12] Supreme Court Advocate on record v U.O.I, (1993) 4 SCC 441.
[13] Kihoto v Zachilhu, AIR 1993 SC 412.
[14] Clark D. Cunningham; “ Public Interest Litigation in Indian Supreme Court: A study in the light of American Experience”, J.I.L.I, V-29: 4. P-494 (1987).
[15] Guruvayur v C.K.Rajan, 2003 (6) SCALE 401.
[16] Parmanand Singh, “ Public interest litigation in India”
[17] S.R.Pandian. J, in Janta Dal v H.S.Chowdhary, AIR 1993 SC 892.
[18] Fertilizers Corporation Kamgar Union v U.O.I, AIR 1981 SC 344.
[19] S.P.Anand v H.D.Deva Gowda, AIR 1997 SC 272.
[20] S.N Patil v M.M.Gosavi, AIR 1987 SC 294.
[21] Subhash Kumar v State of Bihar, (1991) 1 SCC 598.
[22] Janta Dal v H.S.Chowdhary, (1992) 4 SCC 305.
[23] S.P.Anand v H.D.Deva Gowda, AIR 1997 SC 272.
[24] Ashok Kumar Pandey v State of West Bengal, JT 2003 (9) SC 140.
[25] AIR 1979 SC 1360.
[26] (1984) 4 SCC 161.
[27] AIR 1986 SC 1773.
[28] 1989 (1) SCALE 114.
[29] AIR 1991 SC 417.
[30] (1995) 1 SCC 14.
[31] (1997) 6 SCC 241.

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Comments

COPYRIGHT LAW IN INDIA

Wed, 13 Jul 2005 15:28:43 +0200

Introduction

The copyright law protects the intellectual creations in original works. The subject matter of copyright is literary and artistic work. The copyright protection commences as soon as the work is created and it does not require any registration formalities. Traditionally the concern of copyright law was limited to books, music, paintings or films. Copyright protection has now taken new dimensions and today it extends to even computer software and compilations of data. 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,[1]while in others there is different legislation to protect these rights. The Berne Convention for the protection of Literary and Artistic works, as revised up to 1971, provided the highest level of international legal protection for copyright, prior to TRIPS. With the conclusion of TRIPS under the Uruguay Round of multilateral trade negotiations, protection of copyright and related rights became, for the first time, a subject covered by the international trade law. Articles 9 to 13 of TRIPS prescribe the “minimum standards” for the protection of copyright. Article 9.1 of TRIPS establishes that WTO members must comply with Articles 1 to 21 of the Berne Convention, 1971, including the Appendix thereto. The Berne Convention requires that the enjoyment and exercise of copyright cannot be subjected to any formality such as registration. The only exception to adherence to the Berne Convention is Article 6bis, which obliges the members to protect the moral rights of the authors. Article 9(2) of the Berne Convention contains exceptions to the exclusive right of reproduction conferred by the copyright law. The pre-requisites for the applicability of this Article are:
(a) These limitations and exceptions should be granted in certain special cases,
(b) These should not conflict with the normal exploitation of the work, and
(c) These should not unreasonably prejudice the legitimate interests of the author.
In the context of copyright, TRIPS does not confine this Berne exception only to the right of reproduction but extends it to all exclusive rights conferred by copyright.

Indian perspective on copyright protection

The Copyright Act, 1957 provides copyright protection in India. It confers copyright protection in the following two forms:
(A) Economic rights of the author, and
( Moral Rights of the author.

(A) Economic Rights: The copyright subsists in original literary, dramatic, musical and artistic works; cinematographs films and sound recordings.[2]The authors of copyright in the aforesaid works enjoy economic rights u/s 14 of the Act. The rights are mainly, in respect of literary, dramatic and musical, other than computer program, to reproduce the work in any material form including the storing of it in any medium by electronic means, to issue copies of the work to the public, to perform the work in public or communicating it to the public, to make any cinematograph film or sound recording in respect of the work, and to make any translation or adaptation of the work.[3] In the case of computer program, the author enjoys in addition to the aforesaid rights, the right to sell or give on hire, or offer for sale or hire any copy of the computer program regardless whether such copy has been sold or given on hire on earlier occasions.[4] In the case of an artistic work, the rights available to an author include the right to reproduce the work in any material form, including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work, to communicate or issues copies of the work to the public, to include the work in any cinematograph work, and to make any adaptation of the work.[5] In the case of cinematograph film, the author enjoys the right to make a copy of the film including a photograph of any image forming part thereof, to sell or give on hire or offer for sale or hire, any copy of the film, and to communicate the film to the public.[6]These rights are similarly available to the author of sound recording.[7]In addition to the aforesaid rights, the author of a painting, sculpture, drawing or of a manuscript of a literary, dramatic or musical work, if he was the first owner of the copyright, shall be entitled to have a right to share in the resale price of such original copy provided that the resale price exceeds rupees ten thousand.[8]

( Moral Rights: Section 57 of the Act defines the two basic “moral rights” of an author. These are:
(i) Right of paternity, and
(ii) Right of integrity.

The right of paternity refers to a right of an author to claim authorship of work and a right to prevent all others from claiming authorship of his work. Right of integrity empowers the author to prevent distortion, mutilation or other alterations of his work, or any other action in relation to said work, which would be prejudicial to his honour or reputation. The proviso to section 57(1) provides that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer program to which section 52(1)(aa) applies (i.e. reverse engineering of the same). It must be noted that failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section.[9] The legal representatives of the author may exercise the rights conferred upon an author of a work by section 57(1), other than the right to claim authorship of the work.[10]

Judicial Response

The response of Indian judiciary regarding copyright protection can be grouped under the following headings:
(1) Ownership of copyright,
(2) Jurisdictional aspect,
(3) Cognizance taken by the court,
(4) Infringement of copyright,
(5) Availability of alternative remedy, and
(6) Rectification of copyright.

(1) Ownership of copyright: The ownership in copyright may vest in different persons under different circumstances.

In Eastern Book company v Navin J.Desai[11] the question involved was whether there is any copyright in the reporting of the judgment of a court. The Delhi High court observed: “It is not denied that under section 2(k) of the Copyright Act, a work which is made or published under the direction or control of any Court, tribunal or other judicial authority in India is a Government work. Under section 52(q), the reproduction or publication of any judgment or order of a court, tribunal or other judicial authority shall not constitute infringement of copyright of the government in these works. It is thus clear that it is open to everybody to reproduce and publish the government work including the judgment/ order of a court. However, in case, a person by extensive reading, careful study and comparison and with the exercise of taste and judgment has made certain comments about judgment or has written a commentary thereon, may be such a comment and commentary is entitled to protection under the Copyright Act”.
The court further observed: “In terms of section 52(1)(q) of the Act, reproduction of a judgment of the court is an exception to the infringement of the Copyright. The orders and judgments of the court are in the public domain and anyone can publish them. Not only that being a Government work, no copyright exists in these orders and judgments. No one can claim copyright in these judgments and orders of the court merely on the ground that he had first published them in his book. Changes consisting of elimination, changes of spelling, elimination or addition of quotations and corrections of typographical mistakes are trivial and hence no copyright exists therein”.

In Godrej Soaps (P) Ltd v Dora Cosmetics Co[12] the Delhi High Court held that where the carton was designed for valuable consideration by a person in the course of his employment for and on behalf of the plaintiff and the defendant had led no evidence in his favour, the plaintiff is the assignee and the legal owner of copyright in the carton including the logo.

(2) Jurisdictional aspect: The question of territorial jurisdiction of the court to deal with copyright infringement was considered by the courts on several occasions.

In Caterpillar Inc v Kailash Nichani[13] the plaintiff, a foreign company, was carrying on business in several places in India including Delhi, through its Indian distributors and collaborators. The plaintiff claimed the relief of ad-interim injunction for preventing infringement of its copyright by the defendant, though the defendant was dealing in different goods. The Delhi high Court held that it was not necessary to show that the business being carried on by the plaintiff in Delhi should necessarily be in respect of footwear and articles of clothing as well. It is sufficient if the business was being carried on by the plaintiff in Delhi and further that there was an infringement of plaintiff’s copyright in respect of certain goods, which were being sold by the defendant in Delhi. The court further held that section 62 of the Copyright Act makes an obvious and significant departure from the norm that the choice of jurisdiction should primarily be governed by the convenience of the defendant. The legislature in its wisdom introduced this provision laying down absolutely opposite norm than the one set out in section 20 CPC. The purpose is to expose the transgressor with inconvenience rather than compelling the sufferer to chase after the former.

In Lachhman Das Behari Lal v Padam Trading Co[14] the Delhi High Court observed that the plaintiff being a firm functioning at Delhi, the suit filed by it in the Delhi courts is maintainable and is not liable to be rejected under Order 7 Rule 11 of the CPC as prayed. The Court further observed that the plea regarding want of territorial jurisdiction is not covered by Order7 rule 11 of CPC. The court observed that even if it is held that this court has not the territorial jurisdiction, the plaint cannot be rejected. At the most it can be returned for presentation to the proper court.

In Exphar SA & Anr v Eupharma Laboratories Ltd & Anr[15] the Supreme Court finally settled the position in this regard. The Court observed: “Section 62(2) cannot be read as limiting the jurisdiction of the District Court only to cases where the person instituting the suit or other proceeding or where there are more than one such persons, any of them actually and voluntarily resides or carries on business or presently works for gain. It prescribes an additional ground for attracting the jurisdiction of a court over and above the “normal” grounds as laid down in Section 20 of the C.P.C. Even if the jurisdiction of the Court were restricted in the manner construed by the Division Bench, it is evident not only from the cause title but also from the body of the plaint that the Appellant No 2 carries on business within the jurisdiction of the Delhi High Court. The Appellant No 2 certainly “a person instituting the suit”. The Division Bench went beyond the express words of the statute and negatived the jurisdiction of the Court because it found that the Appellant No 2 had not claimed ownership of the copyright, infringement of which was claimed in the suit. The appellant No 2 may not be entitled to the relief claimed in the suit but that is no reason for holding that it was not a person who had instituted the suit within the meaning of Section 62(2) of the Act”.

(3) Cognizance taken by the court: To prevent copyright infringement, timely cognizance taking by the appropriate court is absolutely essential. The taking of cognizance by the court depends upon the limitation period as mentioned in the Limitation Act, 1963 and Cr.P.C, 1973.

In David Pon Pandian v State[16] the Madras High Court, while dealing with section 68A of the Copyright Act, observed: “ The Court can take cognizance of the offence if the charge sheet is filed within the period of limitation prescribed under Section 468 of the Cr.P.C and in computing the period of limitation, the date of commission of the offence is to be reckoned as the starting point. If the charge sheet is not filled so, the Court has no power to entertain the complaint”

The court referred the decision of the Supreme Court in State of Punjab v Sarwan Singh[17] in which it was observed: “The object of Cr.P.C in putting a bar of limitation on the prosecution was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of Court by filing vexatious and belated prosecutions long after the date of the offence. The object, which the statute seeks to sub-serve, is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. It is, therefore, of utmost importance that any prosecution, whether by State or a private complainant, must abide by the letter of the law or to take the risk of the prosecution failing on the ground of limitation”

In Shree Devendra Somabhai Naik v Accurate Transheet Pvt Ltd[18] the Gujarat High Court explained the inter-relationship between Article 137 of the Limitation Act, 1963 and section 50 of the Copyright Act, 1957. The Court observed: “ The order passed by the by the Copyright Board is an order whereby it is held that the provisions of Article 137 of the Limitation Act are not applicable and the board has also held that the Copyright Board is a Tribunal and quasi-judicial authority for all other purposes except for the purposes which are specifically provided in the Copyright Act. It is an order by which an application under Section 50 of the Copyright act is entertained and the Copyright Board will decide the same on merits. The Copyright Board does not believe the delay alleged by the present appellant. Entertaining an application is a matter of discretion. In the present case, the Copyright Board in its wisdom, overruling the contention that the application was barred by limitation, decided to entertain the application. It is a discretionary order”.

(4) Infringement of copyright: A copyright owner cannot enjoy his rights unless infringement of the same is stringently dealt with by the Courts .The approach of the Indian Judiciary in this regard is very satisfactory.

In Prakashak Puneet Prashant Prakashan v Distt.judge, Bulandshahr &Ashok Prakashan (Regd)[19] the Allahabad High Court held that if the petitioner publishes a book by adding any word before or after the book “Bal Bharati”, he infringes the copyright of the respondent.

In Hindustan Pencils Ltd v Alpna Cottage Industries [20] the Copyright Board of Goa held that where the similarities between the artistic works of the parties are fundamental and substantial in material aspects, it would amount to copyright violation and the defendant’s copyright is liable to be expunged from the register of copyright.

The Board referred the decision of Prem Singh v Cec Industries[21] wherein it was observed: “ In a case where the first party himself is shown to have adopted or imitated a trademark and copyright of a third party, then Courts can resolutely decline to step in aid of this party because honesty of action is the crux of the matter and Courts protection is extended only on the principle that damage to a party who has acquired goodwill or reputation in certain trading style for making his goods, should not be allowed to be affected by the dishonest user of the same by another”.

The Board further referred the decision of the apex court in R.G. Anand v M/S Delux Films[22] where the Court observed: “Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case, the Courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work with some variations here and here. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of the act of piracy”.

In Ushodaya Enterprises Ltd v T.V. Venugopal[23] the division bench of the Andhara Pradesh High Court held that even though the defendant has registered the carton under the Trademark Act, that may not come to the aid of the defendant as the case of the plaintiff is that it owns a copyright of the artistic work under the Copyright Act and no registration is required for the same. Thus the court held that the plaintiff was justified in alleging infringement of his artistic work.

In Khajanchi Film Exchange v state of MP [24] the appellants apprehending the violation of their copyright in the film, prayed for the writ of “Mandamus” without first exhausting the alternative remedy available under the Copyright Act. The Division Bench of the Madhya Pradesh High Court Observed: “ There is no dispute in the submission that it is the duty of police to be watchful in the area and detect crime and punish the criminal in accordance with law. But the petitioners did not complain that any stage nor did they seek action from other functionaries of the State. They ask for mandamus without putting the grievance before the respondent and seeking their reaction. The writ petition was filed 16 days before the release of the film. Enough time appellants had, to approach the authorities/ police and later to the respondents giving their reaction to the grievance and how it was ready to deal with the matter. Therefore, unless the demand was put across and reaction awaited for some time, moving the court was premature and unsustainable. Therefore, petition was filed on mere apprehension that appellants would be deprived of their rights which did not exist when claim for mandamus was made. Mandamus can be granted only when default, commission, or omission takes place which had not happened in this case”.

In Jolen Inc v Shoban Lal Jain[25] the Madras High Court held that latches and acquiescence is a good defence to an action for copyright infringement. The court held that the plaintiff having allowed the defendant to carry on the business under the trade name of the plaintiff for 7 years is prima facie guilty of acquiescence and it cannot claim for relief of injunction against the defendant as the balance of convenience is in favour of him.

(5) Availability of alternative remedy: The availability of an efficacious alternative remedy prevents a person from invoking the writ jurisdiction of the High court.

In Khajanchi Film Exchange and Another v State of M.P and others [26] petitioners instead of approaching the concerned authorities filed a writ petition in the High Court. The Madhya Pradesh High Court observed: “ The film was not yet released. The petitioners did not approach the respondents. There was no failure on the part of the respondents in performance of their legal duties with respect of the right complained of. The entire machinery was put to doubt by the petitioners on the basis of the averments made in the writ petition that it is to the common knowledge that they do not take action. Thus apprehending infringement of their rights, the writ petition was filed. The petitioners should have approached the concerned authorities first; and in the event of their failure to take preventive measures/seizure of cassettes under the M.P.Police Regulations and the copyright Act, the petitioners should have approached this Court. If a writ is entertained and relief readily granted before release of the movie without approaching the respondents who have to prevent threatened violation of copyright, it would open a flood gate of litigation. The copyright Act provides adequate safeguards and procedure. It cannot be said that a mere apprehension that certain offence may take place, a writ can be filed seeking a direction that no such offence be allowed to take place. First authorities have to be asked to prevent it. The function of the police is to prevent piracy and unauthorized exhibition. In the instant case there was no inaction on the part of the police and other concerned officials and they were unnecessarily dragged in writ petition without even putting them to notice of proposed writ. No demand notice was served, no specific complaint was lodged. Thus writ is not maintainable”.

(6) Rectification of copyright: In the rectification proceedings, an entry in the Copyright Register pertaining to a particular copyright can be expunged by the Copyright Board.

In Lal Babu Priyadarshi v Badshah Industries[27] the Division bench of the Patna high Court Observed: “ Rule 16(3) of the Copyright Rules, 1958 which embodies the principle of natural justice provides that when there is a rival claim with regard to subject matter of the copyright then no order can be passed in favour of any party without hearing the application of the other applicant. Non-observance of the said provision will vitiate the order with regard to the entry in the Register of the Copyright. The said requirement cannot be waived nor non-observance of the said provision can be said to be a mere irregularity. If a person making an application under section 45 is not aware of the rival claim then the matter would be different. But in this case, as is evident from the notice sent by the appellants through their counsel, they were aware of the claim of the respondents and as such they should have given notice to the respondents intimating them of their intention to file an application for registration so that the respondents could have raised objections and, thereafter, the matter would have been decided in terms of provisions contained in Section 45, read with Rule 16. In this case Rule 16 has not been followed before making the entry in the Register of Copyright under section 45 and, thus, the Board rightly came to the conclusion that non-observance of the provisions of Rule16 (3), which is mandatory in nature, has vitiated the certificate of registration in favour the appellants”.

On-Line Copyright Issues

The Internet is a paradox. It is everywhere, yet, at the same time, it is nowhere. It is “a worldwide entity whose nature cannot be easily or simply defined.[28] The ease with which computers can transfer and exchange digital information on the Internet have caused concern among intellectual property owners, especially copyright owners. The information technology allows the computer users to easily and secretly transform the copyrighted materials into digital form and store them in their computer memory. Once a user digitized information, he can easily upload it to the Internet. Once the information is available on the Internet anyone in the world with Internet access can download, modify, and distribute it. Thus, in an instant, a copyrighted work can potentially lose its value and significantly suppress an author’s incentive to create new material.[29]

Thus, with the advancement of information technology, copying, modifying, and distributing of copyrighted materials has become very simple and difficult to trace. The copyright owners are now at the mercy of a technology that has raced ahead of the law. Because the Internet “is a cooperative venture not owned by a single entity or government, there are no centralized rules or laws governing its use.

Traditional Copyright infringement Theories: Traditionally there was only one copyright infringement theory known as “primary infringement”, which made the person infringing the copyright personally liable for his acts. Thus, the concept of third party liability or secondary liability was not recognized by the legal systems of various countries all over the world, including the United States. As the society progressed, need was felt to develop new theories to meet the challenges thrown by it. While there were no express provisions, which talked about infringing acts of another, third party liability theories were evolved in the courts over the years. The courts derived these theories from the traditional tort law and patent law theories of contributory and vicarious liability.

The U.S Supreme Court articulated the rationale for incorporating “third party liability” into the copyright law in Sony Corporation of America v Universal Studios, Inc. [30]The court specifically noted patent law’s explicit statutory prohibition against inducing infringement and against contributory infringement, and held that he absence of express language in the Copyright Act did not preclude third party liability. Moreover, the court reasoned that “ vicarious liability is imposed in virtually all areas of law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another.”

Direct Infringement: Direct infringement is a strict liability offence and guilty intention is not essential to fix criminal liability. The requirements to establish a case of copyright infringement under this theory are:
(1) Ownership of a valid copyright; and
(2) Copying or infringement of the copyrighted work by the defendant.

Thus, a person who innocently or even accidentally infringes a copyright may be held liable under the Copyright Act of the U.S. and under the laws of various other countries. The guilty intention of the offender can be taken into account for determining the quantum of damages to be awarded for the alleged infringement.

Contributory infringement: The contributory infringement pre-supposes the existence of knowledge and participation by the alleged contributory infringer. To claim damages for infringement of the copyright, the plaintiff has to prove:
(1) That the defendant knew or should have known of the infringing activity; and
(2) That the defendant induced, caused, or materially contributed to another person’s infringing activity.[31]

Vicarious Infringement: Vicarious copyright infringement liability evolved from the principle of respondent superior. To succeed on a claim of vicarious liability for a direct infringer’s action, a plaintiff must show that the defendant:
(1) Had the right and ability to control the direct infringer’s actions; and
(2) Derived a direct financial benefit from the infringing activity.[32]

Thus, vicarious liability focuses not on the knowledge and participation but on the relationship between the direct infringer and the defendant.

Legal precedent for vicarious copyright infringement liability has developed along two general relational lines. The first relational line involves the employer/employee relationship, whereas the second involves the lessor/lessee relationship.

Internet and copyright infringement theories: The advent of information technology has made it difficult to apply the traditional theories to various cyberspace entities and organizations. These cyberspace players can be grouped under the following headings:
(1) Internet Service Providers (ISPs),
(2) Bulletin Board Services Operators (BBSO),
(3) Commercial Web Page owner/operators, and
(4) Private users.

(1) Internet Service Providers (ISPs): An ISP most often provides Internet access and he may be held liable for copyright infringement. In Religious Technology Center v Netcom On-Line Communication Services, Inc[33] a former minister uploaded some of the copyrighted work of the Church of Scientology to the Internet. He first transferred the information to a BBS computer, where it was temporarily stored before being copied onto Netcom’s computer and other Usenet computers. Once the information was on Netcom’s computer, it was available to Netcom’s subscribers and Usenet neighbors for downloading for up to eleven days. The plaintiffs informed Netcom about the infringing activity; nonetheless, Netcom refused to deny the subscriber’s access because it was not possible to prescreen the subscriber’s uploads, and kicking the subscriber off the Internet meant kicking off the rest of the BBS operator’s subscribers. Thus, plaintiffs sought a remedy against Netcom for infringement under all three theories –direct, contributory, and vicarious.

The court first analyzed whether Netcom directly infringed plaintiff’s copyright. Since Netcom did not violate plaintiff’s exclusive copying, distribution, or display rights, Netcom was held not liable for direct infringement. The court then analyzed the third party liability theories of contributory and vicarious infringement. The court held that Netcom would be liable for contributory infringement if plaintiffs proved that Netcom had knowledge of the infringing activity. The court then analyzed whether Netcom was vicariously liable. Here, once again the court found that a genuine issue of material fact supporting Netcom’s right and ability to control the uploader’s acts existed. The court found that Netcom did not receive direct financial benefit from the infringement. Thus, the court found that the Netcom was not liable for direct infringement, could be liable for contributory infringement if plaintiffs proved the knowledge element, and was not liable for vicarious infringement.

(2) Bulletin Board Services: The BBSs are more vulnerable to copyright infringement litigations than the ISPs because they can operate independent of the World Wide Web.

The first case in this category was Playboy Enterprises, Inc v Frena[34] In this case, the defendant operated a subscription BBS that allowed the subscribers to view, upload, and download material. The court held that Frena had violated Playboy’s exclusive distribution right and their exclusive display right. Because Frena supplied a product containing unauthorized copies of copyrighted work, he has violated the distribution right. Moreover, because Frena publicly displayed Playboy’s copyrighted photographs to subscribers, he violated the display right. The court concluded that Frena was liable for direct infringement, though Frena himself never placed infringing material on the BBS and despite his arguments that he was unaware of the infringement. The court relied upon the strict liability theory and held that neither intent nor knowledge is an essential element of infringement.

In Sega v Maphia[35] the BBS was providing services to numerous subscribers who upload and downloaded files to and from the BBS. The evidence clearly showed that the BBS operator knew that subscribers were uploading unauthorized copies of Sega’s video games to and downloaded from his BBS. The court held that since the BBS operators only knew and encouraged uploading and downloading, but did not himself upload or download any files, he was not liable for direct infringement. The court, however, found the BBS operator contributory liable. Regarding the knowledge element, the BBS operator admitted that he had knowledge of the uploading and downloading activity. The court rejected the BBS operator’s asserted fair use defense since their activities were clearly commercial in nature. Further, the nature of the copyrighted games was creative rather than informative and the entire copyrighted works were copied, uploaded, and downloaded. This copying had adversely affected the Sega’s sale.

(3) Commercial Web sites: The Web Page owners must be cautious of the things they post on their Web Pages so that they do not violate the stringent provisions of the copyright laws. A Web Page owner cannot successfully plead and prove that they were unaware about the copyrighted material because copyright notices are prominently given in authorized software. They also have the controlling power over the content of their pages. The owner are usually the parties that actually perform the uploads to their pages.

(4) Private Users: A computer user who uploads copyrighted material to the Internet is liable for direct infringement. This liability could be avoided only if he can prove the fair use doctrine. Thus, an Internet user should not post copyrighted material on the Internet in a casual manner.

On-line copyright issues in India

The reference to on-line copyright issues can be found in the following two major enactments:
(1) The Copyright Act, 1957, and
(2) The Information Technology Act, 2000.

(1) Copyright Act, 1957 and on-line copyright issues: The following provisions of the Copyright Act, 1957 can safely be relied upon for meeting the challenges of information technology:

(a) The inclusive definition of computer is very wide which includes any electronic or similar device having information processing capabilities.[36] Thus, a device storing or containing a copyrighted material cannot be manipulated in such a manner as to violate the rights of a copyright holder.

(b) The term computer programme has been defined to mean a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.[37] It must be noted that Section13(a) read with Section 2(o) confers a copyright in computer progamme and its infringement will attract the stringent penal and civil sanctions.

(c) The inclusive definition of literary work includes computer programmes, tables and compilations including computer databases.[38] Thus, the legislature has taken adequate care and provided sufficient protection for computer related copyrights.

(d) The copyrighted material can be transferred or communicated to the public easily and secretly through electronic means. To take care of such a situation, the Copyright Act has provided the circumstances which amount to communication to the public. Thus, making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available, may violate the copyright.[39] The communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.[40]

(e) The copyright in a work is infringed if it is copied or published without its owner’s consent. The Copyright Act provides that a work is published if a person makes available a work to the public by issue of copies or by communicating the work to the public.[41] Thus, the ISPs, BBS providers, etc may be held liable for copyright violation if the facts make out a case for the same.

(f) The copyright in a work shall be deemed to be infringed when a person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-
(i) Does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii) Permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.[42]

(g) The Copyright Act specifically exempts certain acts from the purview of copyright infringement. Thus, the making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme from such copy in order to utilize the computer programme for the purpose for which it was supplied or to make back-up copies purely as a temporary protection against loss, destruction, or damage in order only to utilize the computer programme for the purpose for which it was supplied, would not be copyright infringement.[43] Similarly, the doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme is not a copyright violation if such information is not otherwise readily available.[44] Further, there will not be any copyright violation in the observation, study or test of functioning of the computer programme in order to determine the ideas and principles, which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied.[45] The Act also makes it clear that the making of copies or adaptation of the computer programme from a personally legally obtained copy for non-commercial personal use will not amount to copyright violation.[46]

(h) If a person knowingly makes use on a computer of an infringing copy of a computer programme, he shall be held liable for punishment of imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees. However, if the computer programme has not been used for gain or in the course of trade or business, the court may, for adequate and special reasons to be mentioned in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees.[47]
It must be noted that copyright can be obtained in a computer programme under the provisions of the Copyright Act, 1957.[48] Hence, a computer programme cannot be copied, circulated, published or used without the permission of the copyright owner. If it is illegally or improperly used, the traditional copyright infringement theories can be safely and legally invoked. Further, if the medium of Internet is used to advance that purpose, invoking the provisions of the Copyright Act, 1957 and supplementing them with the stringent provisions of the Information Technology Act, 2000, can prevent the same.

(2) Information Technology Act, 2000 and on-line copyright issues: The following provisions of the Information Technology Act, 2000 are relevant to understand the relationship between copyright protection and information technology:

(a) Section 1(2) read with Section 75 of the Act provides for extra-territorial application of the provisions of the Act.[49] Thus, if a person (including a foreign national) violates the copyright of a person by means of computer, computer system or computer network located in India, he would be liable under the provisions of the Act.

(b) If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network accesses or secures access to such computer, computer system or computer network[50] or downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium[51], he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected. Thus, a person violating the copyright of another by downloading or copying the same will have to pay exemplary damages up to the tune of rupees one crore which is deterrent enough to prevent copyright violation.

(c) While adjudging the quantum of compensation, the adjudicating officer shall have to consider the following factors:
(i) The amount of gain or unfair advantage, wherever quantifiable, made as the result of the default;
(ii) The amount of loss caused to any person as a result of the default;
(iii) The repetitive nature of the default.[52]
Thus, if the copyright is violated intentionally and for earning profit, the quantum of damages will be more as compared to innocent infringement.

(d) A network service provider (ISP) will not be liable under this Act, rules or regulations made there under for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.[53] The network service provider under section 79 means an intermediary and third party information means any information dealt with by a network service provider in his capacity as an intermediary.[54]

(e) The provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.[55]

Conclusion

The provisions of the abovementioned two enactments show that the Copyright protection in India is strong and effective enough to take care of the Copyright of the concerned person. The protection extends not only to the Copyright as understood in the traditional sense but also in its modern aspect. Thus, on-line copyright issues are also adequately protected, though not in clear and express term. To meet the ever- increasing challenges, as posed by the changed circumstances and latest technology, the existing law can be so interpreted that all facets of copyright are adequately covered. This can be achieved by applying the “purposive interpretation” technique, which requires the existing law to be interpreted in such a manner as justice is done in the fact and circumstances of the case. Alternatively, existing laws should be amended as per the requirements of the situation. The existing law can also be supplemented with newer ones, specifically touching and dealing with the contemporary issues and problems. The Information Technology Act, 2000 requires a new outlook and orientation, which can be effectively used to meet the challenges posed by the “Intellectual Property Rights” regime in this age of information technology. Till the country has such a sound and strong legal base for the protection of Intellectual Property Rights, the judiciary should play an active role in the protection of these rights, including the copyright. The situation is, however, not as alarming as it is perceived and the existing legal system can effectively take care of any problems associated with copyright infringement.

[1] For instance, in countries like US or India, copyright law covers the rights of producers of phonograms.
[2] Section 13
[3] Section 14(a)
[4] Section 14(b)
[5] Section14(c)
[6] Section 14(d)
[7] Section 14(e)
[8] Section 53A
[9] Explanation to Section 57(1).
[10] Section 57(2)
[11] 2001 PTC 57(Del)
[12] 2001 PTC 407(Del)
[13] 2002 (24) PTC 405(Del)
[14] 2002 (25) PTC 508(Del)
[15] 2004 (2) SCALE 589
[16] 2002 (24) PTC 377(Mad)
[17] AIR 1981 SC 1054
[18] 2002 (25) PTC 434(Guj)
[19] 2001 PTC 213 (All)
[20] 2001 PTC 504 (C (Goa)
[21] AIR 1993 Del 223
[22] AIR 1978 SC 1613
[23] 2001 PTC 727 (AP) (D
[24] 2003 (26) PTC 183(MP) (D
[25] 2001 PTC 216 (Mad)
[26] 2002 (25) PTC 812(MP)
[27] 2002 (25) PTC 173 (Patna) (D
[28] Religious Technology Center v Netcom On-Line Communication services, Inc, 907 F.Supp. 1361(1995)
[29] Mary Shulman, Internet Copyright Infringement Liability, 27 Golden Gate U.L.Rev.555, 558(1997)
[30] 464 .U.S.417 (1984)
[31] Gershwin Publishing Corpn v Columbia Artists Management, Inc 443 F2d 1159(2d Cir.1971)
[32] Netcom, 907 F.Supp. at 1375
[33] 907 F.Supp.1361 (N.D. Cal.1995)
[34] 839 F.Supp.1552(M.D.Fla.1993)
[35] 948 F.Supp .923 (N.D. Cal.1996
[36] Section 2(ffb)
[37] Section 2(ffc)
[38] Section 2(o)
[39] Section 2(ff)
[40] Explanation to Section 2(ff)
[41] Section 3
[42] Section 51(a)
[43] Section 52(1) (aa)
[44] Section 52(1) (ab)
[45] Section 52(1) (ac)
[46] Section 52(1) (ad)
[47] Section 63B
[48] Section 13(1) (a) read with Section 2(o)
[49] Praveen Dalal and Shruti Gupta: The Unexplored Dimensions of Right To Privacy (May-04 issue of IJCL)
[50] Section 43(a)
[51] Section 43(b)
[52] Section 47
[53] Section 79
[54] Explanation to Section 79
[55] Section 81

Comments

DATA PROTECTION IN INDIA

Sat, 02 Jul 2005 20:59:47 +0200

The aim of this article is to evaluate the mandates and requirements of Treaties and Conventions entered under the banner of World Trade Organisation (WTO). The discussion becomes essential, as the heat of these mandates has been felt with effect from 01-01-2005 when the provisions of these Treaties and Conventions came into full force in India. A timely attempt has been made to make the people and the Government of India aware about the impact of the same vis-à-vis data protection requirements.

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 prevails, 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 eneterd 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 it has accepted to confer the same protection to pharmaceutical industry. This protection is, however, subject to various “public interest limitations” that can be invoked against these industries in situations of calamities and emergencies. In fact, none of the IPRs are absolute in nature and public interest is pervading all of them. The provisions of TRIPS Agreement expressly recognise this requirement and the “Doha Declaration” was adopted as a “safety valve” for releasing the pressure created by the apprehensions of possible charging of “excessive prices for the medicines” in “Least Developed Countries (LDCs))” and “Developing Countries (DCs))”. Thus, to appreciate the level of protection available for “data property”, a brief evaluation of TRIPS becomes essential.

II. The TRIPS Agreement- A Magna Carta of IPRs

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[3], the Control of Anti-Competitive Practices in Contractual Licences has been excluded from the definition of “intellectual property”. The discussion in the present article is addressing only the “data protection” aspect, hence it is confined exclusively to section 1, i.e. Copyright and Related Rights[4]. Article 9(1) of the Agreement provides that Members shall comply with Articles I through 21 of the Berne Convention, 1971 and the Appendix thereto. The members, however, shall not have any rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom[5]. Thus, although TRIPS utilises Berne as a “minimum standard”, it deviates from the Berne in two aspects. TRIPS is broader than Berne, in that it protects “software and databases”; but at the same time, TRIPS is also narrower than Berne, in that it does not require compliance with moral rights provided by Berne Article 6bis[6]. The member will, however, have to continue to fulfill the existing obligations that Members may owe to each other under the Berne Convention[7]. It means that if two Members of TRIPS Agreement are “already” extending protection to each other in the form of “moral rights” of the authors under the Berne Convention, then the TRIPS Agreement will not prevent them from doing so. The combined reading of Article 2(2) and Article 9(1) shows that the two provisions are not contradicting each other. The TRIPS Agreement is not “recognising” the “moral rights” of the authors and the story ends here only. It is in no way restricting the conferment of the same under the Berne Convention if the Members to the TRIPS Agreement are already extending the same to each other on a “reciprocal basis”. Thus, in no way TRIPS should be misunderstood as laying down the rule that it is “prohibiting” or “regulating” the moral rights. It has only refused to bring the same under the protective umbrella of TRIPS Agreement.

III. TRIPS Agreement and Data Protection

The TRIPS Agreement recognises the protection of “data property” in Article 10(2) of the TRIPS Agreement. Article 10(2) of the Agreement provides that “compilation of data” or “other material”, whether in machine-readable or other form, which “by reason of the selection or arrangement” of their contents constitute intellectual creations shall be protected “as such”. The Article further provides that such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.

A closer perusal of the Article reveals the following facts:

(1) It is the ‘compilation” of data or other material, which is protected under TRIPS Agreement. It must be noted that “compilation” of a subject matter of Copyright is protected under almost all the legal systems. This is also protected in the Berne Convention. Thus, if a data is compiled in a particular manner, the same cannot be used in the similar manner. Further, by using the words “other materials” the ambit of this Article has been extended to even “non-data items”.

(2) The compilation may be either in a machine-readable form or in some other form. The previous category includes storing of data in “computers” and its “parallels”, whereas the latter category includes storing of the data in the traditional paper mode. The storing of “data property” in computers and its parallels necessitates protection of the same in Information Technology law as well. That may be why the government is planning to amend the relevant provisions of the Information Technology Act, 2000. The proper approach, however, seems to be to incorporate necessary “explanatory provisions” in the Indian Copyright Act, 1957 and making minor suitable amendments in the Information Technology Act, 2000. In no case it should pressed forward through Information Technology Act alone. If a data stored in a computer or its parallels is misused, the provisions of the Information Technology Act can be pressed in to service along with the Copyright Act, depending upon the nature of violation or contravention. At this point it may be noted that the Copyright Act, 1957 already protects “databases” as “literary works” under section 2(o) of the Copyright Act[8]. 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

(3) The claim for data protection originates only because of the “selection or arrangement” of the contents by using the “intellectual creations”. Thus, if there is no intellectual endeavor involved in the selection or arrangement of the contents, then the same may not be protected as “data property”. The same will, however, still be entitled to the protection of Copyright, since the protection of copyright is not dependent upon the “quality” of the contents but their “expression” as such. It must be mentioned at this point that the claim of copyright is no dependent upon the formality of registration. The moment the contents are “expressed” in an original manner, the same will get the protection of Copyright. If the contents are arranged using some intellectual endeavour, the same can be claimed as either the copyright or as databases. Thus, it can safely be concluded that all “databases” are capable of copyright protection but not all copyrightable material qualifies for the data protection. This shows that it is easier to get copyright protection than data protection. This suggestion should not be misinterpreted as suggesting that the copyrightable material can be absolutely devoid of any intellectual shade. It only means that the requirement of “quality” is more demanding and stringent in cases of data protection than the copyright. Thus, the same material may fail to qualify for data protection, but it can be still protected by the copyright. This point is further strengthened by the use of the expression “as such’ in Article 10(2) of the TRIPS Agreement. Thus, either the work is protected as databases or it may qualify for the protection as copyright.

(4) The protection in the databases is not available for the data or material itself, but it is exclusively available for the intellectual creation in the form of selection or arrangement. Further, the right in databases is without prejudice to any copyright in the data or material itself. Again, it shows that a person possessing the data has two rights. On the one hand he has a right in the form of databases, which is available in the intellectual creations in the form of selection or arrangement. On the other hand, he has a right in the “very data or material itself”, which is available to him in the form of copyright. In short the right to data protection is available only in the “form and manner” of intellectual selection or arrangement and not in the data or material itself, whereas the copyright is available in the data or material itself since the same is an expression”. Thus, the Copyright Act, 1957 adequately protects both the databases and the copyright equally.

IV. Conclusion

The above discussion shows that the proposed change in the Information Technology Act, 2000 for conferring data protection is not only unwarranted but is equally based on misinterpretation of the provisions of the Indian Copyright Act, 1957 and the TRIPS Agreement. The concerns and apprehensions of the MNCs are far-fetched and unwarranted. The TRIPS Agreement and the Copyright Act, 1957 provides sufficient safeguards for preventing violations of databases of MNCs. The data, information and details provided by the MNCs will get the protection of ‘Data Property” if the same involves intellectual creations within the meaning of Article 10(2) of the TRIPS Agreement. If they fail to satisfy the requirement of Article 10(2), still they will be protected as copyright. The brightest and the positive aspect of this situation is that even non-data items are also protected, both under the TRIPS Agreement and the Copyright Act, 1957. Thus, the MNCs should concentrate on their “business initiatives” rather than wasting their resources and time on unnecessary concerns.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Phone No: 9899169611.
http://praveen-dalal.blogspot.com/

http://perry4law.blogspot.com/

[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] 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.
[4] As provided in Articles 9 and 10 of the TRIPS Agreement.
[5] Article 6bis of the Berne Convention confers “Moral Rights” on the owners of the Copyright, which is not available under the TRIPS Agreement.
[6] Elaine B. Gin: “ International Copyright Law: Beyond the WIPO and TRIPS Debate”, JPTOS, (Oct-04), page 785.
[7] Article 2(2) of TRIPS Agreement.
[8] Section 2(o) provides that unless the context otherwise requires, literary work includes computer programme, tables and compilations including computer databases.

Comments

PRIVACY AND DATA RIGHTS OF NETIZENS

Wed, 22 Jun 2005 14:04:52 +0200

The aim of this article is to analyse the privacy and data rights of the netizens in the cyberspace. A comparative analysis of the TRIPS Agreement and the Indian laws has also been made to give a holistic picture. Further, certain strategies for the companies have also been recommended.

I. INTRODUCTION

The rights are essential for the survival of a welfare state like India. That is why we possess certain rights coupled with a corresponding duty on others to respect them. These rights may be personal rights like privacy or proprietary rights like data property. These rights, with necessary modifications, are also available to companies who though do not fall within the definition of “citizens” but yet are covered by the definition of “persons” . The concepts of “privacy rights” and “data rights” have acquired great significance in the contemporary world where the boundaries of all nations have vanished due to the inevitable and essential presence of Internet. The advantages associated with the use of Internet are so overwhelming that none can afford to avoid its use. Thus, the solution lies in techno-legal solutions of the privacy and data violations rather than a pure legal action or avoidance of technology. The fight against privacy and data violation requires a “harmonized” and “coherent initiative” rather that individual and country based actions. At the same time it must be appreciated that it is not the “enactment” of a law but the desire, will and efforts to accept and enforce it in its true letter and spirit, which can confer the most strongest, secure and safest protection for any purpose. The enforcement of privacy rights requires a “qualitative effort” and not a “quantitative effort.

II. NETIZENS RIGHTS

The netizens rights can be grouped as:
(A) Fundamental and constitutional rights, and
( Statutory rights.

(A) Fundamental and Constitutional rights of netizens

The constitution of India confers certain Fundamental and Constitutional rights on the netizens. These rights can be personal rights or proprietary rights. The right to privacy (Article 21) is a personal right whereas the right to enjoy data property is a proprietary right (Articles 19(1) (g), Article 21 and Article 300A).

(i) Right to privacy

Article 21 of the constitution confers the right to privacy on the netizens. This is not expressly mentioned in it but the same has been enunciated by way of judicial interpretation by the Supreme Court. It is personal in nature and only the concerned netizens has a right to control it subject to the restrictions imposed by the law. India is a signatory to the international covenant on civil and political rights, 1966. Article 17 thereof provides for the ‘right of privacy’. Article 17 of the international covenant does not go contrary to any part of our municipal law. Article 21 has, therefore, to be interpreted in conformity with the international law. In Kharak Singh v state of UP (1963) justice Subba Rao, while expressing the minority view, laid down the foundations for the development of law of privacy in India and observed that the concept of ‘liberty’ in article 21 was comprehensive enough to include privacy. In Gobind v State of MP (1975) the Supreme Court observed that ‘right to privacy’ must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child bearing. In R.Rajagopal v State of TN (1994) the Supreme Court held that the right to privacy is a ‘right to be let alone’. None can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. In P.U.C.L. v union of India (1997) the Supreme court held that the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as right to privacy. Telephone tapping would, thus, infringe article 21 of the constitution of India. In Mr. X v Hospital Z (1998) the Supreme Court held that the right to privacy may, apart from contract, also arise out of a particular specific relationship, which may be commercial, matrimonial or even political. Public disclosure of even true private facts may amount to an invasion of the right to privacy.

(ii) Right to trade and profession

Article 19(1) (g) guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business. This freedom is, however, not absolute and is subject to clause (6) of article 19. Thus, reasonable restrictions can be imposed to curtail this right. Thus, data property is protected by this article and so long the data are possessed and owned within the restrictive parameters of this Article, it will have the Constitutional protection.

(iii) Right to livelihood

Article 21 confers right to livelihood upon all persons. If the means of livelihood are taken away, then right to life is definitively violated. The apex court in Kapila Hingorani v State of Bihar (2003) held that the term “life”, includes livelihood and facets thereof. Thus, means of livelihood like data property cannot be taken away except by a procedure established by law. The right to hold data in privacy and enjoy its fruits and benefits is definitely a part of Article 21 as it helps in the earning of livelihood. The holding of crucial data brings certain strategic and financial advantages over the competitors that help in earning a livelihood better that the others.

(iv) Right to property

Article 300A of the constitution confers a right on all persons to hold and enjoy their properties. Thus a person cannot be deprived of his property save by authority of law. Any violation of this right can be challenged in a court of law. The expression “property” is of wide amplitude and it includes tangible as well as intangible properties, including data property. Thus, data property cannot be taken away except by authority of law and an unlawful deprivation of data property will be remedied at law.

( Statutory rights of netizens

The Fundamental and Constitutional rights are supplemented by certain statutory rights. The statutory rights of netizens can be grouped as:

(a) Personal rights, and
(b) Proprietary rights.

(a) Personal rights

The statutory law of privacy is the recognition of the individual’s right to be let alone and to have his personal space inviolate. It is scattered in various statutes and is not recognised as such. For instance section 228A of IPC, 1860 prohibits the disclosure of the identity of a victim. Similarly, the ITA, 2000 also contains provision for the vindication of privacy rights. For instance, if a person authorised under the act, rules or regulations, secures access to any electronic record, information, document etc without the consent of the person concerned and discloses the same to any other person then he shall be punished with imprisonment up to 2 years, or with fine up to Rs.1 lakh, or with both .

The following provisions of the Information Technology Act, 2000 reflect India’s concern for protection of privacy rights of its citizens, as available against private individuals, in the realm of information technology:

(1) Long Arm Jurisdiction- Sec.1 (2) read with Sec.75 of the Act provides for an extra-territorial application of the provisions of the Act. Thus, if a person (including a foreign national) contravenes the privacy of an individual by means of computer, computer system or computer network located in India, he would be liable under the provisions of the Act.

(2) Unauthorised Use- If a person makes an unauthorised use of the computer, computer system or computer network of another person by accessing, downloading, introducing computer contaminant, damaging, disrupting, denying access etc. , he will automatically violate the privacy of the owner. Such a person shall be liable to pay compensatory damages not exceeding rupees one crore to the person so affected. Thus, the right to privacy includes the right of an individual to be free from restrictions or encroachments on his person or property, whether these are directly or indirectly brought about by calculated measures .

(3) Computer Tampering-The privacy of a person will also be intruded if his computer source documents are tampered with. The person tampering with such computer source documents shall be punishable with imprisonment up to 3 years or with fine, which may extend up to Rs.2 lakhs, or with both .

(4) Computer Hacking- If a person causes wrongful loss or damage to any person, by destroying, deleting or altering any information residing in his (owner’s) computer resource or diminishes its value or utility or affects it injuriously by any means, he commits hacking and thus, violates the privacy of the owner. The person hacking shall be punishable with imprisonment up to 3 years or with fine, which may extend up to Rs.2 lakhs, or with both. However, an innocent infringer will not be liable if he proves that he committed the act without any intention or knowledge .

(5) Network Service Provider’s Liability- A network service provider shall be liable for violation of privacy of a third party if he makes available any third party information or data to a person for the commission of an offence or contravention. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages . However, a network service provider will not be liable if he proves that the offence or contravention was committed without his knowledge or he had exercised all due diligence to prevent such commission .

(6) Liability of Companies- Where the privacy rights of a person are infringed by a company, every person who at the time of contravention was incharge of and was responsible to the company for the conduct of its business as well as the company shall be guilty of the contravention and liable to be processed against and punished accordingly. However, such person shall not be liable if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention .

These provisions provide sufficient protection against privacy violations by private individuals by misusing the information technology .

(b) Proprietary rights.

The proprietary rights, in the form of data property, are available under both the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement and the Indian Copyright Act, 1957.

(i) It is the ‘compilation” of data or other material, which is protected under TRIPS Agreement. The “compilation” of a subject matter of Copyright is protected under almost all the legal systems. This is also protected in the Berne Convention. Further, by using the words “other materials” the ambit of this Article has been extended to even “non-data items”.

(ii) The compilation may be either in a machine-readable form or in some other form. The previous category includes storing of data in “computers” and its “parallels”, whereas the latter category includes storing of the data in the traditional paper mode. This storing of “data property” mandates protection of the same in IT law as well. The Copyright Act, 1957 protects “databases” as “literary works” under section 2(o) in an “inclusive” manner and it can cover more categories. Secondly, the concept of “compilation” used in this section is itself inclusive and the compilation of “databases” is one of them. Thus, “compilation” U/S-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. Section 13(1) (a) of the Copyright Act uses the expression “original literary works not only in an “inclusive” manner but also in a “multifunctional” manner. 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. In fact, the definition of “literary work” is capable of accommodating “other materials” as well, which may be non-data in nature.

(iii) The data protection originates because of the “selection or arrangement” of the contents by using the “intellectual creations”. If there is no intellectual endeavor involved in it, then the same may not be protected as “data property but as Copyright, since the protection of copyright is not dependent upon the “quality” of the contents but their “expression” as such. Thus, all “databases” are capable of copyright protection but not all copyrightable material qualifies for the data protection. The requirement of “quality” is more demanding in data property than the copyright. A material may fail to qualify for data protection, but it can still be copyrighted. This point is clarified by the use of the words “as such’ in Article 10(2) of the TRIPS Agreement.

Thus, the TRIPS Agreement and the Copyright Act, 1957 sufficiently safeguard databases. The data, information and details will get the protection of ‘Data Property” if the same involves intellectual creations within the meaning of Article 10(2) of the TRIPS Agreement. If not, still they will be protected as copyright. Even non-data items are also protected, both under the TRIPS Agreement and the Act .

The following “Data protection principles” must be adhered to by the individuals and company handling the same:

(a) the data should be processed fairly and lawfully,
(b) the data should be obtained for specific and lawful purpose,
(c) the data should be adequate, relevant and not excessive,
(d) the data should not be kept for longer than necessary,
(e) the data should be processed in accordance with the rights of data subjects, and.
(f) measures should be taken against unauthorized or unlawful processing.

III. STRATEGIES FOR COMPANIES

The companies operating in cyberspace are at the risk of violating various laws including laws protecting privacy rights and data property. The companies must formulate sound strategies to deal with them.

The following strategies must be adopted by the companies for meeting various techno-legal requirements:

(1) The companies must be cautious of the “liability clause” of various statutes. They must appoint an “officer in default” who must be responsible for managing cyber law matters of companies.
(2) The web-site contracts made by the companies must be unambiguous and fair.
(3) The companies must restrict their liabilities under those contracts.
(4) The companies must adopt the well accepted standards of the contemporary practices.
(5) The privacy rights of the netizens should be properly safeguarded.
(6) Precautionary measures for the protection of valuable data, information, and trade secrets should be adopted.
(7) The companies must take care of IPRs violations of various segments.
(8) The companies must adopt sound advertisement policy.
(9) The companies must be very cautious while dealing with juveniles as they are protected by laws but not the companies.
(10) The companies must insure their business for uncertain risks.

IV. CONCLUSION

The above discussion shows that the proposed change in the Information Technology Act, 2000 for securing privacy and conferring data protection is not only unwarranted but is equally based on misinterpretation of the provisions of the Information Technology Act, 2000, Indian Copyright Act, 1957 and the TRIPS Agreement. The concerns and apprehensions of the MNCs are far-fetched and unwarranted. The TRIPS Agreement and the Copyright Act, 1957 provides sufficient safeguards for preventing violations of databases of MNCs. The data, information and details provided by the MNCs will get the protection of ‘Data Property” if the same involves intellectual creations within the meaning of Article 10(2) of the TRIPS Agreement. If they fail to satisfy the requirement of Article 10(2), still they will be protected as copyright. The brightest and the positive aspect of this situation is that even non-data items are also protected, both under the TRIPS Agreement and the Copyright Act, 1957. Similarly, both the Constitution of India and the Information Technology Act sufficiently protect the privacy concerns of the MNCs. Thus, the MNCs should concentrate on their “business initiatives” rather than wasting their resources and time on unnecessary concerns.

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PRIVATE DEFENCE IN CYBERSPACE

Wed, 08 Jun 2005 18:36:23 +0200

The aim of this article is to analyse the applicability of the concept of “private defence” in cyberspace, particularly against cyber terrorism. The traditional concept of private defence is available under the provisions of Indian Penal Code, 1860 (IPC). The same is equally applicable to the Information Technology Act, 2000, (ITA) as well, though with its peculiar modifications.

I. Introduction

The information technology is a double edge sword, which can be used for destructive as well as constructive work. Thus, the fate of many ventures depends upon the benign or vice intentions, as the case may be, of the person dealing with and using the technology. For instance, a malicious intention forwarded in the form of hacking, data theft, virus attack, etc can bring only destructive results. These methods, however, may also be used for checking the authenticity, safety and security of one’s technological device, which has been primarily relied upon and trusted for providing the security to a particular organisation. For instance, the creator of the “Sasser worm” has been hired as a “security software programmer” by a German firm, so that he can make firewalls, which will stop suspected files from entering computer systems . This exercise of hiring those persons who are responsible for causing havoc and nuisance is the recognition of the growing and inevitable need of “self protection”, which is recognised in all the countries of the world. In fact, a society without protection in the form of “self help” cannot be visualised in the present electronic era. The content providers, all over the world, have favoured proposed legislations in their respective countries, which allow them to disable copyright infringers’computers. In some countries the software developers have vehemently supported the legislations which allows them to remotely disable the computer violating the terms and conditions of the license allowing the use of the software. This position has, however, given birth to a debate about the desirability, propriety and the legality of a law providing for a disabling effect to these “malware” . The problem is further made complicate due to absence of a uniform law solving the “jurisdictional problem”. The Internet recognises no boundaries, hence the attacker or offender may belong to any part of the world, where the law of the offended country may not be effective. This has strengthened the need for a “techno-legal’ solution rather than a pure legal recourse in the present electronic era .

II. The need of private defence

The most deadly and destructive consequence of this helplessness is the emergence of the concept of “cyber terrorism”. The traditional concepts and methods of terrorism have taken new dimensions, which are more destructive and deadly in nature. In the age of information technology the terrorists have acquired an expertise to produce the most deadly combination of weapons and technology, which if not properly safeguarded in due course of time, will take its own toll. The damage so produced would be almost irreversible and most catastrophic in nature. In short, we are facing the worst form of terrorism popularly known as "Cyber Terrorism". The expression "cyber terrorism" includes an intentional negative and harmful use of the information technology for producing destructive and harmful effects to the property, whether tangible or intangible, of others. For instance, hacking of a computer system and then deleting the useful and valuable business information of the rival competitor is a part and parcel of cyber terrorism. The definition of "cyber terrorism" cannot be made exhaustive as the nature of crime is such that it must be left to be inclusive in nature. The nature of "cyberspace " is such that new methods and technologies are invented regularly; hence it is not advisable to put the definition in a straightjacket formula or pigeons hole. In fact, the first effort of the Courts should be to interpret the definition as liberally as possible so that the menace of cyber terrorism can be tackled stringently and with a punitive hand. The law dealing with cyber terrorism is, however, not adequate to meet the precarious intentions of these cyber terrorists and requires a rejuvenation in the light and context of the latest developments all over the world. The laws have to take care of the problems originating at the international level because the Internet, through which these terrorist activities are carried out, recognises no boundaries. Thus, a cyber terrorist can collapse the economic structure of a country from a place with which a country may not have any reciprocal arrangements, including an "extradition treaty". The only safeguard in such a situation is to use the latest technology to counter these problems. Thus, a good combination of the latest security technology and a law dealing with cyber terrorism is the need of the hour .

III. The concept of private defence

In India there is no law, which is specifically dealing with prevention of malware through private defense. Thus, the existing analogous provisions have to be applied in a purposive manner. The following provisions of the I.P.C, which is a general law dealing with offences in India, are of great significance in dealing with and tackling the use of malware by the use of private defence:

(i) Section 96 of the Code declares that nothing is an offence, which is done in the exercise of the right of private defence. This section recognises the principle of self-help which is considered to be just, fair and reasonable in all the countries of the world.

(ii) Section 97 of the Code provides that every person has a right, subject to the restrictions contained in Section 99, to defend:
Secondly- The property, whether moveable or immoveable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass. This section recognises the right of a “third party” to protect the property of another, besides protecting his property. Thus, a public-spirited individual has a right to self-help by helping innocent victims of malware. For instance, a netizen who is an expert in protecting computers from viruses may make a programme, which has a potential to curb the virus put on the internet and may launch the same on it. In such a situation the person launching the malware cannot complain that such third party has no reason to feel aggrieved and has no right to retaliate. Such an action on the part of that public-spirited individual is morally, equitably and legally justified and will be protected by this section. This is a benign concept and it requires the most liberal, purposive and updating interpretation.

(iii) Section 99, among other things, provides that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Further, it provides that the right to private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence, i.e. the principle of proportionality. It is suggested that this section applies to offences involving human beings as such and not the results created due to acts or omissions of the human beings. Thus, the requirement of taking recourse to public authorities arises only when the following two requirements are fulfilled:
(a) There must not be any apprehension of death or grievous hurt (because in that case the concerned person is left with no choice but the instant life saving action) by the act or omission in question, and
(b) Such act or omission must originate out of an active physical participation of human agency and it should not be limited to any act or omission unsupported by its physical presence.

Reading Section 103 along with Section 99 further strengthens this argument. Section 103 provides that the “right of private defence of property” extends, under the restrictions mentioned in Section 99, to the voluntary causing “death” or of any other harm to the wrongdoer, if the offence of robbery, house breaking by night, mischief by fire to certain properties, theft, mischief or house trespass, are committed or attempted to be committed under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. A close reading of these sections reveals that these sections are tracing the operation of private defence vis-à-vis human being’s active and physical involvement and not in the sense of malware. This position is made crystal clear if we read the definition of “death” under section 46, which provides that the word “death” denotes death of a human being, unless the contrary appears from the context. It would bring absurd results if we argue that the context in the present situation is talking about the “death of the computer” or the “operating system”. Similarly, it will be unreasonable, in fact unrealistic and imaginary, to argue that for protecting one’s computer from malware, every time recourse to public authorities has to be taken. In fact, the main reason for providing the provisions concerning private defense is that State cannot protect the life and property of the citizen at all times. Thus, as a measure of public policy and practical convenience, the concept of self-help has been given a moral, equitable and legal sanction. Even under the Code there is an inherent and patent conflict between Section 99 and Section 103. Section 103 is subject to section 99, whereas section 99 itself is subject to Section 99. It is talking about taking recourse of public authorities when the act “does not” reasonably cause the apprehension of death or of grievous hurt. It means that if there is an immediate threat of death or grievous hurt, then recourse to public authorities need not be taken. This is logical and satisfies the tests of common sense, because a person cannot approach the public authorities after his death, which may result due to immediate peril to the life. Similarly, no useful purpose will be served by approaching the public authorities if grievous hurt has already been afflicted. In fact if there is an apprehension of death or grievous hurt, the right to private defence can be exercised even against a public servant who is though acting in good faith under the colour of his office is not strictly justifiable by law. It must be appreciated that no malware can cause any physical injury or apprehension of the same, which may necessitate recourse to public authorities within the meaning of section 99. Thus, it can safely be concluded that recourse to self-help can be taken under section 103 of the Code without approaching public authorities since it does not involve the real and active physical presence of the human agency. This is also in conformity with the basic theme and object of the concept of self-help and the practical requirements of law and its regulation of society.

The application of Section 99 is not, however, completely excluded while exercising the right of private defense under Section 103. It must be noted that section 99 also recognises the principle of proportionality among other things. This means that the proposed harm given by the technological property holder must commensurate with the nature and gravity of the threat. Thus, the harm, if at all it is considered to be so, caused must be reasonable, proportionate and not unduly harsh. The moment it exceeds the limits, which may be deemed to be appropriate by a reasonable person, it will offend the benign objects of section 99, and may become illegal. Thus, to this extent, and in this sense only, Section 103 is subject to section 99. This interpretation satisfies the conflicting interests of private defence of information technology and the proportionate action required to be taken by the person exercising the private defence. This is not the end of this matter. Sections 99 and 103 must be interpreted in the light of Section 105 to make them meaningful. Section 105 of the Code provides that the right of private defence of property commences as soon as a reasonable apprehension of danger to property commences. There is a possibility that a particular malware may not give rise to such apprehension at all because of its programming and operational specifications. In such a case, the owner of the information technology comes to its knowledge when the damage has already been done. In such a situation no useful purpose will be served by approaching the public authorities, as they cannot undo what has already been done. To avoid such an eventuality, it is advisable to adopt precautionary technological measures, since precaution is always better than the cumbersome and expensive cure. As a concluding argument it may be pointed out that, by virtue of Section 40 of the Code, the right of private defence is allowed against offences committed under the “special laws” as well. In India the Information Technology Act, 2000 (ITA) is a special law applicable to matters pertaining to information technology. Thus, the provisions pf private defence will also take their colour from it. In case there is a conflict between the provisions of the Code and the ITA, the latter will prevail. Fortunately, there is no conflict between the provisions of the Code and ITA, hence the interpretation given to the sections, as mentioned above, together with a purposive interpretation of the provisions of the ITA would be sufficient to take care of the principles governing private defence of technological property, including the Intellectual property Rights stored in it.

IV. Conclusion

The problems associated with the use of malware are not peculiar to any particular country as the menace is global in nature. The countries all over the world are facing this problem and are trying their level best to eliminate this problem. The problem, however, cannot be effectively curbed unless popular public support and a vigilant judiciary back it. The legislature cannot enact a law against the general public opinion of the nation at large. Thus, first a public support has to be obtained not only at the national level but at the international level as well. The people all over the world are not against the enactment of statutes curbing the use of malware, but they are conscious about their legitimate rights. Thus, the law to be enacted by the legislature must take care of public interest on a priority basis. This can be achieved if a suitable technology is supported by an apt legislation, which can exclusively take care of the menace created by the computers sending the malware. Thus, the self-help measures recognised by the legislature should not be disproportionate and excessive than the threat received by the malware. Further, while using such self-help measures the property and rights of the general public should not be affected. It would also not be unreasonable to demand that such self-help measures should not themselves commit any illegal act or omission. Thus, a self-help measure should not be such as may destroy or steal the data or secret information stored in the computer of the person sending the malware. It must be noted that two wrongs cannot make a thing right. Thus, a demarcating line between self-help and taking law in one’s own hand must be drawn. In the ultimate analysis we must not forget that self-help measures are “watchdogs and not blood-hounds”, and their purpose should be restricted to legitimate and proportionate defensive actions only. In India, fortunately, we have a sound legal base for dealing with malware and the public at large has no problem in supporting the self-help measures to combat cyber terrorism and malware. If still there remains any doubt or objection, then it will be sufficient to mention that only a computer can react fast enough to take care of the menace of malware and the traditional methods of law enforcement are helpless in this regard. The problems of lack of harmonisation, doubt regarding jurisdiction, lack of a uniform extradition law between various countries of the world, etc can be solved only by using a legitimate, proportionate and reasonable mechanism of self-help, which is not only instant but also free from technicalities and formalities .

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