CASTRATION – A SOLUTION?

Author: Pulkit Gopalkrishan Popli, (2nd Year student of IIT Kharagpur Law School)

“Issue writ, direction or order to the Union of India, the respondent No. 1 to consider to impose castration as an additional punishment for child sex abusers and child rapists;

Issue writ, direction, or order to the respondent No.2 (Ministry of Women and Child Development) to frame guidelines in regard to the protection of the children from sexual abuse and impose castration as an additional punishment for the rape of the minor girls to protect their constitutional rights.”

Source: Google Image

This was the prayer of the Supreme Court Women Lawyers Association (SCWLA) v. Union of India & Anr.[i] that was heard by the Honorable Supreme Court by the bench of Justice Dipak Misra and Justice NV Ramana on January 11, 2016. The bench clearly mentioned that the law should not be made sentimentally or emotionally and distanced itself from issuing any such direction or punishment as there is a law already available for the same. But the court further said that the parliament may go on to amend the penal provisions to award the harsher punishment for raping girl child and may also define the term 'child' in respect of rape as the offence.

Castration as defined by the Merriam Webster’s dictionary means the removal or to deprive of the testes. The Castration may be done surgically or chemically by anti-androgens. The demand of castration as punishment for the sexual offences is not new and has been voiced from time to time.  The Madras High Court in October 2015 in the case of Jonathan Robinson v.  The Inspector of Police[ii] perhaps got sentimental or emotional about the same offence and went on to suggest the castration as the punishment. Justice Kirubakaran in this judgment in the very first paragraph has very strongly and heavily recommended the punishment saying that the brutality of the offence would justify the punishment. Further, taking a dig at the Human Rights Activists, Honorable Justice has said that they are aware that there would be a lot of hue and cry by the people who claim themselves as the Human Rights Activists but they should also think about the human rights of the victims and the agony and suffering that they have suffered.

Justice Verma Committee Report of 2013 in paragraph 40 on the Castration as penalty mentions

“We note that it would be unconstitutional and inconsistent with basic human rights treaties for the State to expose any citizen without their consent to potentially dangerous medical side effects. For this reason we do not recommend mandatory chemical castration of any type as a punishment for sex offenders. For the same reason the government of India also does not prescribe chemical castration as a family planning method.”

If the reliance is put on the report of Asian Centre of Human Rights, India's Hell Holes: Child Sexual Assault in Juvenile Justice Homes, more than 48,838 child rape cases were recorded from 2001 to 2011 and that India saw an increase of 336% of child rape cases from 2001 (2,113 cases) to 2011 (7,112 cases). The report of National Crime Records Bureau 2013, in Chapter 6 very proudly mentions that a total of 12,363 cases of child rape were reported in the country during 2013 as compared to 8,541 in 2012 accounting for an increase of 44.7% during the year 2013. Maximum of child rape cases were reported in Madhya Pradesh (2,112 cases) followed by Maharashtra (1,546 cases) and Uttar Pradesh (1,381 cases). These three States together accounted for 40.8% of the total child rape cases reported in the country. On an average, 3 children out of one lakh children population are victims of rape. For population of every one lakh children , maximum of such incidents were reported in Mizoram and A & N Island (16 children each) followed by Delhi (14 children), Sikkim and Goa (12 children each).

Though there has been a strong rise in the support for the abolition of death penalty and harsh punishments such as castration, Guam has recently passed “Chemical Castration for Sex Offenders Act” in September 2015 which requires the chemical castration of the offenders going out on parole to minimize the risk. This Act was passed after the alarming rise in the number of Children related offences in Guam. It has also received a mixed response.

Now, with the huge number of the offences throughout the country, it is hard to predict whether the sentiments of Justice Kirubakaran are in the right direction or the logics of Justice Misra and Justice Ramana. But one thing is clear that India is one of the 5 countries with the highest number of Child abuses and this problem needs immediate and effective solution, either by parliament or by judiciary. 

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[i] Writ Petition (C) No. 4 of 2016 [PIL]

[ii] Crl. O.P.(MD) No. 11735 of 2014

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Weekly Legal Updates

Here we are... to begin this new session. We start with the updates from last week. 

The Supreme Court in a recent judgment has ruled that CCTV cameras should be installed in the prisons within one year and not later than that. The court has also suggested that all lock-ups in the country should have CCTV cameras installed as per the satisfaction of the police commissioner/DGP concerned. This was, however, left to the discretion of the respective states and union territories. The Supreme Court has also said that every police station should have at least two women constables to deal with women who are accused or suspects.

The Supreme Court came down heavily on the Central Government for not filing a counter affidavit in a petition questioning the functioning of the Juvenile Justice Boards (JJBs) across the country. The Social justice bench of the Apex Court, while imposing Rs.25,000 cost on the Ministry of Women and Child Development remarked “You are not even bothered to file your affidavit. You will have to pay the cost”. The bench, was hearing a Public Interest Litigation seeking proper implementation of Juvenile Justice Act and its rules. The Court had sought complete details on the pendency of cases, frequency of its sittings, vacancy of posts and other related issues.

The Bombay High Court has denied the relief under Protection of Women from Domestic Violence (DV) Act to a woman who was living with a married man for 15 years. The Additional Sessions Judge had ruled that the woman was in a “live-in relationship” with the married man and was entitled to relief under the Protection of Women from Domestic Violence (DV) Act. The Court observed that since they had been in a relationship for almost 15 years, common sense required that she should have made enquiries about his marital status. The Court also noted that the woman had not been able to give a single instance where they had appeared as husband and wife in the society on any occasion of marriage or party. The Court hence ruled that such a relationship cannot be relationship in the nature of marriage. She and her daughters were therefore, not entitled for any relief under the Protection of Women from Domestic Violence Act, 2005.  The Court however noted that the daughters may be entitled for relief under Section 125 of the Code of Criminal procedure.

A PIL has been filed in the Supreme Court challenging the appointment of Mr. K.V. Chaudhary as the Central Vigilance Commissioner and Mr. T.M. Bhasin as the Vigilance Commissioner as being “illegal and arbitrary”. The petitioners have claimed that there was complete non transparency on the part of the Central Government in making the appointment of the CVC and VC. The Petitioners have also claimed that the appointments violate the principles of ‘impeccable integrity’ and ‘institutional integrity’ laid down in the landmark judgments of Vineet Narain case (1998) 1 SCC 226 and Centre for Public Interest Litigation (CPIL) case (2011) 4 SCC 1.

Yakub Memon, convicted in the 1993 Mumbai serial blasts, has approached the Supreme Court challenging the death warrant for his execution scheduled on July 30. According to his plea the death warrant is illegal because it did not follow the proper procedure prescribed by the Supreme Court in Shatrughan Chauhan & Anr. v. Union of India & Ors.

The Supreme Court of India in a ruling (DM Wayanad Institute of Medical Sciences vs. Union of India and Another – Writ Petition (C) No. 441 Of 2015) has reaffirmed the settled legal position that under Article 32 it will not interfere with an administrative order where the constitutionality of the statute or the order made there under has not been challenged on the ground of contravention of Fundamental Rights. The Apex Court added that no question other than that relating to the Fundamental Rights will be determined in a proceeding under Article 32 of the Constitution.

The SC has dismissed a Public Interest Litigation that came up before the three Judges Bench praying “to stop the use of names and images of gods and goddesses for commercial exploitation”.  The court dismissed the petition remarking that “You have raised the issue which concerns the faith of the people. This country has 33,000 crore gods. Sorry.”

We hope that this summarizes the last week's News. Your comments and suggestions are welcomed.

Until next post of weekly News updates.

Anjana Srinivasan, (3rd Year student of IIT Kharagpur Law School)

For 'OFF Court.'

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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Weekly Legal Updates

We bring you the updates for last week. Hope it updates you with all the news from legal world.

Updates: 03th January to 11th January 2015:
In a major move the Supreme Court has revised rules regarding its selection of judicial clerks which allows non-NLU students to apply.  The new rules, published on the Supreme Court’s website, specifies that applicants can come from any law college accredited by the Bar Council of India (BCI).

The President of India  promulgated the Citizenship (Amendment) Ordinance, 2015 on January 06, 2015 with immediate effect which provides for the following amendments to the Indian Citizen Act, 1955:

• At present one year continuous stay in India is mandatory for Indian Citizenship which is relaxed stating that if the Central Government is satisfied that special circumstances exist, it may, after recording such circumstances in writing, relax the period of twelve months specified upto a maximum of thirty days which may be in different breaks.

• To enable for registration as Overseas Citizen of India (OCI) by a minor, whose parents are Indian Citizens.

• To enable for registration as Overseas Citizen of India (OCI) by a child or a grand-child or a great grandchild of such a citizen.

• To enable for registration as Overseas Citizen of India (OCI) by such spouse of a citizen of India or spouse of an OCI registered under Section 7A and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the presentation of the application under this section.

• In respect of existing PIO card holders central government may, by notification in Official Gazette, specify a particular date from which all existing PIO card holders will be deemed to be OCI card holders.

The Delhi High court dismissed a plea against Amir Khan starrer movie- PK, holding that there was no substance in the allegations leveled against the movie, in the PIL filed by Ajay Gautam. The Court also observed that the provision for appeal against the CBFC’s decision on certification of films was restricted to film-makers. Mr. Gautam had alleged that the movie defamed and maligned the Hindu religion and culture. It was also contended that the movie hurt the religious sentiments of Hindus.

In a submission made before the Apex Court, the Central Government has said that it wants to stop NGOs that do not submit their balance sheets of last three years. The Central Government represented by the Additional Solicitor General P S Patwalia submitted to the Bench headed by Chief Justice of India HL Dattu that the submission of balance sheets by the NGOs must be a condition precedent for grant of funds.

The Supreme Court has published the in-house mechanism adopted by it in 1999 to deal with complaints against the judges of the Supreme Court and High Court in its website. This has been published pursuant to its judgment in the sexual harassment case involving a sitting judge of the Madhya Pradesh High Court. In the above judgment the Court relied on the in-house mechanism and had scrapped the investigation initiated by the Madhya Pradesh Chief Justice on the ground that it was not in compliance with the in-house mechanism.

Siemens, Dong Energy and London Array – the world's biggest operating offshore wind farm – are all heading for a UK court showdown with German turbine-maker Enercon over alleged patent infringement of 'Storm Control' technology developed by the latter's founder, Aloys Wobben. The Wobben Properties lawsuit names Siemens, Dong and turbine-installation specialist A2Sea as defendants.  The 630MW London Array – which is already using 175 3.6MW Siemens turbines – is the subject of a similar but separate action, and is set to join the other defendants in contesting the case at a High Court hearing in London, currently scheduled for June. Enercon had previously successfully sued turbine OEM Gamesa in Spain over the 'storm control' patent, a verdict which is currently being appealed.

We hope that this summarizes the last week's News. Your comments and suggestions are welcomed.

Until next post of weekly News updates.

Anjana Srinivasan, (2nd Year student of IIT Kharagpur Law School)

For 'OFF Court.'

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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News Updates

We bring you the updates for last week. Hope it updates you with all the news from legal world.

15 December 2014

The Bombay High Court refused to entertain a Writ filed by an advocate challenging the imposition of service tax on advocates. So the business clients of individual lawyers and law firms will continue to pay service tax as mandated by the Finance Act.

16 December 2014

In the case of Italian Marines who are accused of killing two Indian fishermen, the Supreme Court denied the plea of one Italian Marine to extend the stay in Italy on health grounds and the plea of the other Marine to travel to Italy for Christmas. The Court held that they want the system to work and that the relief cannot be granted even though the trial has not commenced. Therefore, the accused must come to India and the charge-sheet be filed.

17 December 2014

The Delhi High Court which had earlier passed an ex-parte ad-interim injunction against the Chinese manufacturer, Xiaomi, allowed the company to sell and import handsets which have chipsets of Qualcomm Inc., till 5 February 2015. Xiaomi argued that Erricsson had suppressed the facts to obtain an injunction. Qualcomm has a license from Erricsson and therefore the license does not make Xiaomi an infringer of Ericsson’s patent rights.

The Central Information Commission (CIC) on 17 December ordered that information relating to the death of the former Chief Justice of India J S Verma be disclosed to RTI activist Mr. S C Agrawal. The Commissioner, M Sridhar Acharyulu said, “Such letters (documents) from eminent citizens from all walks of life on death of a devoted and honest jurist who spent his post-retirement life in a rented house is indeed a matter of serious concern”.

18 December 2014

The Supreme Court bench has extended the former Chief Minister of Tamil Nadu J. Jayalalthaa’s bail by 4 months and directed the Karnataka High Court to constitute a special bench to hear her appeal expeditiously and decide it within 3 months, till 18 April 2015. The former CM challenged her conviction in Karnataka High Court in a ‘Disproportionate Assets Case’ after being found guilty.

19 December 2014

Three judge bench of the Supreme Court dismissed the appeals in relation to the Coal Ordinance. The deadline to pay the penalty is 31 December which was marked from 24 September judgment in which the 214 of the 218 coal blocks allocations was quashed.

22 December 2014

The Allahabad High Court dismissed a batch of Writ Petitions which were filed praying for protection as a married couple as they had tied the knot after the girls got their religion converted from Hindu to Islam and then performed Nikah. The court observed that “Conversion to another religion basically requires change of faith and belief of personal relations of a major individual of sound mind by his free will, with what he/she regards as cosmos, his/her Make or Creator, which he/she believes, regulates the existence of insentient beings and the forces of Universe.”

24 December 2014

The Department of Industrial Policy and Promotion (DIPP) has released the 1^st draft on the National IPR Policy submitted by the ‘Think Tank’ chaired by Justice Prabha Sridevan. The draft policy can be accessed here.

26 December 2014

The Delhi High Court issued a notice to RBI on the decision to impose a limit of five transactions per month from the customers’ own bank ATM and charging Rs. 20/- per transaction beyond it. RBI had also imposed a limit of three transactions per month from ATMs of other banks, located in the six metro centres- Mumbai, New Delhi, Chennai, Kolkata, Bengaluru and Hyderabad. During the hearing, the court said, “You (banks) are unnecessary taxing your account holders.” The response has been sought by 18 February 2015.

The Delhi High Court distinguished between Uber and Ola cabs and refused to give a similar order in favor or Uber. Ola was given relief as they are only a technology platform and not a radio taxi operator. The court observed that ‘You (Uber) take money from customers and give it to drivers. So you are providing the service.’ By the virtue of December 8 Government Order, Uber had been effectively banned in India.

We hope that this summarizes the News from 15th to 27th December . Your comments and suggestions are welcomed.

Until next post of weekly News updates.

Wishing you all a very delightful and successful New Year. 

Manish Kumar, (3rd Year student of IIT Kharagpur Law School)

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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Legal News Updates

We bring you the updates for last week. Hope it updates you with all the news from legal world.

Updates: 23rd November to 07 November 2014.

The Supreme Court has constituted a Special Bench christened ‘Social Justice Bench’ to achieve the Constitutional  goal of securing ‘social justice for the citizens of the country. The bench comprising of Justice Madan B Lokur and Justice UU Lalit will hear all cases in the Supreme Court falling within the domain of “social justice”. The Bench will start functioning from December 12 and will sit at 2 pm on every Friday.

The Centre is planning to partially open up legal market to foreign firms. According to the proposal put forward by the Centre, foreign lawyers could be permitted to practice in India in conjunction with Indian lawyers, as a joint venture, with a cap on foreign participation. Also, advisory or non-litigious services in Indian law could be opened up subject to foreign lawyers going through a prequalification examination in various aspects of Indian law. However, the Bar Council of India and Society of Indian Law Firms (SILF) have voiced their opposition to this proposal.

The Delhi High Court refused to quash the FIR filed against three men who tried to molest a Delhi Police Constable. The woman registered an FIR against the three persons, who incidentally lived in her locality only. She later agreed to take back her complaint, after the intermediation of some people. When the matter reached the Delhi High Court for quashing of FIR, Justice Pratibha Rani, refusing to quash the FIR said, ‘if a woman police officer can’t walk on the street what will happen to common girls?’

The Union Cabinet, chaired by the Prime Minister has approved the introduction of the Companies (Amendment) Bill, 2014 in Parliament to make certain amendments in the Companies Act, 2013. The Companies Act, 2013 (Act) was notified on 29.8.2013. Out of 470 sections in the Act, 283 sections and 22 sets of Rules corresponding to such sections have so far been brought into force. In order to address some issues raised by stakeholders such as Chartered Accountants and professionals, some amendments have been proposed.

The Allahabad High Court dismissed a PIL challenging Rule 7 of the recently released Bar Council of India Rules, 2014. Under Rule 7, a lawyer must practice for two years in a trial court and three in a high court before being allowed to practice before the apex court. It was dismissed not on merits, but on the ground that Rule 7 has still not been notified and therefore it would be an exercise in futility if the petition is examined on merits.

The Delhi High Court has held that the Competition Commission of India (CCI) has the right to file an appeal in cases where its probes have been stayed by courts. The order came after a CCI appeal in a dispute involving JCB India Ltd, in which all CCI proceedings, including the probe, were stayed by the HC after its director general raided JCB’s premises. Doubts were raised whether CCI could file such an appeal, as it was the CCI that ordered the probe against JCB in the first place; the court ruled that CCI has the right. The court also held that “the interference by us at this stage is unwarranted”. It asked both parties to raise their issues before the single judge who is hearing the case.

The Delhi High Court recently interpreted S.107A expansively to conclude that it is applicable when a party exports a patented product to a third party outside India as long as the purpose of export is the facilitation of research. The case relates to the Compulsory License granted by the Court to Natco for the compound Sorafenib tosylate. One of the conditions was that Natco should use the licensed product “solely for the purpose of making, using, offering for sale and selling the drug covered by the patent for the purpose of treating HCC and RCC in humans within the territory of India”. However, Bayer found that Natco was exporting the product outside India. In March this year, an interim order was passed by the Delhi High Court preventing Natco from such export. The present application was filed by Natco to seek permission from the Court to export 1 kilogram of Sorafenib to a Chinese Pharmaceutical Company for preparation of a trial batch of the generic drug in China.

The application filed by Venus Remedies Ltd. (the applicant) for an invention titled “Parenteral Composition Comprising Ceftriaxone and Vancomycin for Bacterial Resistance and Process of Preparation Thereof” was opposed in a pre grant opposition by (Akums Drugs & Pharmaceuticals) on the grounds of lack of inventive step as required under Section 2(1)(j), 2(1)(ja) and 2(1)(l) and also on the grounds of section 3(d) and 3(e) of the Patent Act. The opposition, however, was not successful. The invention was a single unit combination of two incompatible antibiotics (Ceftriaxone and Vancomycin) which are combined together with stabilizing agents, such as L-arginine, EDTA and Na₂CO_3.  The Controller observed that the claimed invention was held not to be a mere aggregation of property/features since Ceftriaxone and Vancomycin are made compatible, due to the existence of a chemical stabilizing and solubizing agent. The opponent also contended that various studies have shown the concomitant use of vancomycin and ceftriaxone and cited two documents.  However, both these documents failed to form ‘prior art’ because they were published on 3/3/2006 and 20/12/2005 after the filing of the present patent application in 14/2/2005. Moreover, the prior art failed to contemplate the problem of incompatibility between Ceftriaxone and Vancomycin. Also, the contention on Section 3(d) was dismissed on the ground that nothing in the prior art qualified as a “known substance” and hence Section 3(d) was not attracted.  The Controller declared that that the invention was both a technical advance as well as economically significant and therefore qualified the inventiveness criteria.

We hope that this summarizes the last week's News. Your comments and suggestions are welcomed.

Until next post of weekly News updates.

Anjana Srinivasan, (2nd Year student of IIT Kharagpur Law School)

For 'OFF Court.'

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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Legal News Updates

We bring you the updates for last week. Hope it updates you with all the news from legal world.

Updates: 03rd November to 22nd November 2014.

In an interim order passed by the Delhi High Court, Micromax has to pay a royalty that amounts up to 1% of the selling price of its devices to Ericsson. Ericsson had alleged that Micromax had refused to enter into a licensing agreement covering its patented innovations across several wireless technology standards such as GSM, EDGE and third generation (3G). The patents in question are a part of what are called “standards-essential” patents and holders are expected to license them on Free Reasonable and Non-Discriminatory (FRAND) terms. Micromax was said to have keen on negotiating a FRAND license with Ericsson but the companies could not come to a suitable conclusion.

The E-Committee of the Supreme Court has rejected the Government’s proposal to record the Court proceedings in a subordinate court.  The E-Committee rejected the proposal saying it was not acceptable at present. The proposal to record court proceedings was made by the government after an advisory council meeting of the Law Ministry held in August this year. This was as a part of the E-court project under which the government had sought to initiate recording of the proceedings in lower courts and subsequently bring the High Courts and the Supreme Court under its ambit.

The Supreme Court is facing an interesting case of murder where the accused was tried as an adult though the accused was a juvenile at the time of commission of offence.  Since, the accused was a juvenile when the offence was committed, the criminal trial stands vitiated and a fresh trial will have to be held before the Juvenile Justice Board (JJB).  The Court has sought the assistance of the Attorney General to resolve the issue.

In a letter to the High Courts, Chief Justice of India H.L. Dattu has asked for the judgments delivered by the Judges of the High Courts, in order to “ascertain quantitative as well as qualitative disposal of cases”. So far Reported Judgments have been accepted as one of the parameters for ascertaining “qualitative disposal”. Now as per this letter, the details of all judgments will have to be provided. The letter also demands resumes of the Chief Justices and the Judges in a specified format. It also demands details of total and reported judgments.

In Criminal writ petition before the Bombay High Court, the Petitioner was seeking criminal prosecution of a Judge in respect of acts discharged during judicial functions. It was held no Court shall entertain or continue any civil or criminal proceeding against a Judge for any act, thing or word committed, done or spoken by him, when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. The Court also held that no Judge can be prosecuted without a prior sanction, whether the alleged offence is punishable under the provisions of Prevention of Corruption Act, 1988 or under the Indian Penal Code or under any other law.

The Central Information Commission has held that refusing to give details of foreign tours by ministers and officers, and staff particulars of AG without hearing the appellant was wrong.  It set aside the order of First Appellate Authority of Department of Legal Affairs as it was given without hearing the appellant.  CIC also recommended action against the officer for this ‘illegal’ order.

The Bar Council of India has recently notified the Certificate of Practice and Renewal Rules of 2014. Under these rules, a lawyer must practice for two years in a trial court and three in a high court before being allowed to practice before the apex court. The new rules also mandate the renewal of licenses every five years, in an attempt to “weed out” those lawyers who are no longer practicing.

In accordance with the Andhra Pradesh Reorganisation Act, the Ministry of Law and Justice has decided on the formation of a separate High Court for Andhra Pradesh. According to section 30 of the A.P. Reorganisation Act, 2014 the High Court of Judicature at Hyderabad shall be the common High Court for the State of Telangana and the State of Andhra Pradesh till a separate High Court for the State of Andhra Pradesh is constituted under Article 214 of the Constitution of India and other provisions of the Act.

The National Pharmaceutical Pricing Authority (NPPA) is all set to slash the prices of popular medicines for stress, hypertension, HIV, pain and pneumonia. The move seeks to cover as many as 100 new drugs and would apply to drugs of varying strengths. This is the second time that NPPA has proposed regulating the price of drugs outside the National List of Essential Medicines (NLEM), 2011. The announcement by NPPA comes in light of its findings that certain “anomalies or discrepancies” exist in the description/specification of drugs in NLEM.

We hope that this summarizes the last week's News. Your comments and suggestions are welcomed.

Until next post of weekly News updates.

Anjana Srinivasan, (2nd Year student of IIT Kharagpur Law School)

For 'OFF Court.'

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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Legal Updates

In this new feature of our blog, we will be bringing you all that has happened in the legal world last week. We hope that the augmentation of these news will be helpful for all of us in updating ourselves.

Updates: 13th October to 18th October 2014.

The Last week started with the SEBI barring DLF and six executives from entering the securities market and from buying or selling securities for three years. This follows the failure of DLF to provide key information on subsidiaries and pending legal cases at the time of its 2007 public offering. This might be a crucial decision taken by SEBI and it remains to be seen what course the court takes on this issue.

The Delhi High Court laid down guidelines in examining child witnesses when it overruled a judgment of the Dwarka District Court acquitting the accused in the rape of a 3 year old girl. The Court referred to Section 118 of the Indian Evidence Act, which states that the testimony of a child can be considered as a basis of conviction provided the child understands the questions. The Court criticized the approach of the trial court which had held the testimony of the child to be inadmissible.

AIADMK supporters had a reason to cheer and celebrate as the Supreme Court granted bail to the party supremo J. Jayalalitha and suspended the trial court’s sentence on a condition that there will be no attempt to delay the criminal proceedings in the Karnataka High Court. There can be different stands of legal scholars on this but as for the courts are concerned, they would take reason and practicality in accord for now.

The CIC has held that during the pendency of a RTI application the relevant record should not be destroyed by the public authority even if it’s weeding out policy permits. The CIC has cautioned that such a destruction of record would be a serious breach of the Right to Information Act.

India says no to unilateral opinion. The Government of India has told the American authorities that they will not be co-operating USTR’s Special 301 Out of Cycle Review (OCR) process. Indian authorities have said that they would engage US in bi-lateral dialogue mechanisms under the new IP working group, rather than the unilateral process.

The e-commerce business and its meaning and limits are being tested in the courts now. In the last week development, the famous WWE (World Wrestling Entertainment, Inc.) filed suit of infringement and passing off against an Indian company. The question that was settled was regarding the ‘carries on business’ in cases of e-commerce. The Delhi High Court has concluded that the jurisdiction will be determined by the buyer’s place of residence. This was supported by the interpretation of section 134(2) of The Trademark Act and section 62(2) of The Copyright Act along with section 4 (“contracts would be completed at the place where the acceptance is communicated.”) of the Indian Contract Act.

And here is some new for the ‘firsts’. The Controller General of Patents Designs and Trademarks recently launched a couple of features on online search services for patents and trademarks to make the search process easier and provide transparent results. The features include innovative tools such as “Stock and Flow”—a utility which existed for trademarks, has now been extended to patents also. The Indian Patent Office is the first in the world to achieve such transparency.

Now, its time for some filmy news. The Allahabad High Court has issued a notice to the makers of the film ‘Haider’ on a PIL filed by the Hindu Front for justice on the grounds that the movie was against national interests. The petitioner have criticized that the movie shows the Indian Army in poor light and song sequence was shot in the Markand Sun Temple with actors dancing with their footwear.

Red Chillies Entertainments Private Limited’s film ‘Happy New Year’, starring Deepika Padukone and Shah Rukh Khan which is set to release in theatres across India on 24th October, has recently obtained a John Doe order from the Bombay High Court dated 14th October. It will be interesting to follow this case for what remains to be a potential area of IP.

We hope that this summarizes the last week legal News. Your comments and suggestions are welcomed.

Until next post of weekly News updates.

Anjana Srinivasan, (2nd Year student of IIT Kharagpur Law School)

For 'OFF Court.'

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Public performance or not.!!

 Author : Shweta Khurana, 2nd Year student of RGSOIPL, IIT Law School.

Is the evolution and interpretation of laws lagging behind the technological advancements? The recent Supreme Court judgment in the case of American Broadcasting Companies Inc. v. Aereo Inc. 573 US 2014 implies so. The ruling observes that the retransmission of programs to the paid subscribers without the copyright owner’s authorisation or license is violative of the copyright law. The case raises the question of liability of the companies that offer the subscribers the ability to watch and record local broadcast television over the internet on payment at monthly basis. The US Supreme Court rejecting the respondent’s contentions as to their retransmission activity not coming within the meaning of “public performance” pointed out that such service was a tool or way to avoid being held liable for copyright infringement.

Analysing the judgement, if we look into the technology to get a clearer view as to the service in dispute being within the meaning of “public performance” the said service allows all the paid subscribers to watch programs airing on network television or record programs that will air in the future over the Internet.  The service provides three-in-one function as that of a regular television antenna, a recording device, and an application that makes these services work on devices other than televisions and computers. This is enabled by use of thousands of antennas that are distinct for each subscriber and function to capture the local broadcast signals i.e. thus the service bears similarity to modern day cable systems. Pointing to the definition of the public performance under the US Copyright Act, 1976^[1], 17 U.S. Code § 101 states that:

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Interpreting the words of the definition and applying it to the dispute under question, it is noted that Aereo sent each of its subscribers an individualized/ private transmission of a performance from a unique copy of each copyrighted program captured and transmitted through different antennas. Also the servers are subscriber specific and does not involve transmission of performances “to the public,” but rather a number of "private" performances to paying subscribers.

Referring to two similar cases of Fortnightly Corp. v. United Artist Television Inc.^[2] and Teleprompter Corp. v. Columbia Broadcasting System Inc.^[3] where the community antenna television (CATV) systems were considered to be outside the purview of ‘public performers’ and these systems were said to be like a viewer rather than a broadcaster as these systems only perform the function of carrying the programs which have already been released to the public by private channels to individual viewers.

Drawing a comparison with the Indian Copyright Act, 1957 as amended in 2012 that gives an expanded definition of “communication to public” under Section 2 (ff)^[4]  so as to include both works and performances (instead of just works as was the case prior to the coming into effect of the 2012 amendments i.e. 'earlier'). Also, the definition now explicitly states that it does not matter whether the communication is ‘simultaneous or at places and times chosen individually’. As such, it appears to include multicasting, narrowcasting and unicasting. The explanation to the aforementioned section helps in understanding the intricacies of the copyrighted works transmitted through satellite or cable transmission so as to be considered within the definition of ‘public performance’. This makes it clear that such a dispute under Indian Jurisdiction would have suffered the same fate, preserving and protecting the broadcaster’s rights ruling out copyright violation on part of the service provider.  

Looking a bit deeper into the issue, one can see the economic and technological implications of this judgment on the new and upcoming technologies like Apple’s iCloud and Dropbox and other cloud computing tools that provide easy online access to stored data, music, pictures and other information via an online platform. It also raises concern as to the affordability issue as the service enabled the viewers or subscribers to watch and record local programs from various electronic devices on a very cheap subscription monthly payment.

So, instead of leaving the judiciary to interpret the law on their own, there is a need to find out such loopholes within the legislation and improvise or evolve the law to keep pace with the leaping technological breakthroughs as a 1976 legislation is not an appropriate legal proposition to be applied in the era of Internet, digital video recorders and smart phones.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[1]http://www.law.cornell.edu/uscode/text/17

[2] 392 U.S. 390 (1968)

[3] 415 U.S. 394 (1974)

[4] "communication to the public" means 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.

Explanation.- For the purposes of this clause, 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;

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