RIGHT TO PRIVACY AND REPUTATION POST DEMISE

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In the present day, Privacy is a necessity for each and every person. Privacy is an essential part of our lives and one of the very basic needs. The supreme court in the judgement on the case of Puttuswamy v. Union of India[1], declared that the right to privacy is a fundamental right that is protected under the Part III of the Indian Constitution.

The words privacy and right to privacy can not easily be formed into a particular concept or idea. Privacy takes into consideration and puts emphasis on the concept of natural rights and usually refers to the new communication and information technologies. The right of privacy is our right to the ability of being free from any public attention or interference with our personal acts and decisions, this includes all the things that are part of us, such as our body, home, feelings etc, the right to privacy gives us the capacity to choose which parts of our private life can be accessed by outside people and to control the extent, manner and timing of the use of those parts that we have chosen to disclose to others.

The recognition of the concept of Privacy in India, mainly traces its origin back to the case of Kharak Singh v State of Uttar Pradesh[2] where the majority were of the opinion that the right to privacy is not a guaranteed right under the constitution of India and due to this the attempt to ascertain the movements of an individual which is just an act in which privacy is being invaded is not an infringement of the fundamental right.

Privacy is an essential aspect of a society or a group’s self regulation which is defined by its various aspects to different people. In a democracy like India which is known for its diverse nature, having people from all religions, customs and backgrounds and therefore it is easy to understand that one thing may not be the same to everyone as there are bound be difference in opinions from person to person. Privacy holds different meaning for different people. For some people it may be the privacy of information, for another the privacy of body and many similar forms of privacy can be the meaning of privacy.

[3]Privacy of a person: Our Indian legal system guarantees the right of life and freedom of speech of a person which involves his/her privacy where no one can be forced to talk about their private matters such as about their marriage. It also provides protection from various forms of force, infirmity and fear. This system tries to make sure that no one is forced to behave in a certain manner. The system aims to protect the rights of a person from fear and force in order to guarantee the rights of a person.

Privacy of home: No one should live in dread or be concerned about the invasion of their privacy at home, which is a haven of solace, safety, and security. A home’s sacredness should be preserved. The value and sanctity of home is recognised by most countries.

Privacy of a family: The primary social impact of privacy, is on a family, it is viewed as a group of personal relationships that may thrive if kept hidden from public scrutiny. Starting from one’s financial ability to the observation of marital rights, privacy with regard to one’s family is extremely important. Due to the fact that everyone treats and considers their spouses as their confidants, the law protects all communication between a husband and his wife, as it  is necessary to make the world a better place to live in. If such privacy is not maintained between the spouses, an individual will have no one to confide in and will eventually be left alone.

Privacy and press: This is sometimes referred to as the Fourth Estate, and it is the cornerstone of any democracy. Individual privacy is to be defined as private even by the fourth estate, despite the fact that no legislation exists in the country to do so.

Privacy of gender: This privilege serves as a deterrent not only to the improper sharing of private information, but also to the misrepresentation of the accurate image. This is a right that every individual, male or female, famous or not, possesses. This right does not only exist for men in this country, but also for women, and regardless of who she is or what information she has, her life is her own and nobody else’s, from marriage to her conjugal obligations, whether she is a housewife, an employee, a corporate junkie, a vendor, or even a prostitute, no one has the right to invade her privacy.

Privacy of Health: In the health-care industry, privacy is a big problem. The trust connection between a doctor and a patient is known as a fiduciary relationship, which refers to those partnerships that are established on mutual trust and confidence. Every person has the option of keeping their medical history private or sharing it with someone they choose. No one is allowed to peek into someone’s personal or medical life, and physicians are not permitted to release the information, as the courts have ruled in circumstances when doctors are morally and ethically sound in maintaining secrecy.

Privacy and Data Protection: As a result, data privacy becomes even more vital, because no one wants their personal information leaked. As a result, all aspects of data protection, including data on individuals, their families, employment, health, and so on, must be a top priority for any government.

Privacy of Dead And Article 21-

[4]Article 21 states that “No individual shall be deprived of his life or personal liberty unless in accordance with a procedure established by law,”. In order to protect the privacy of the departed, the term “person” in Art 21 should also include “dead.” As a result, it is critical to examine the definition of the term “person.”[5]

The word “person” is not defined in the defining clause of Article 366 of the constitution. As a result, the General Clauses Act and the Indian Penal Code must be used to define it. A person is defined in Section 3 (42) of the General Clauses Act 1897 as “any corporation, association, or group of persons, whether incorporated or not.”

Also read: MEDIA TRIAL AND CRIMINAL ANGLE

Rights of the Dead

There are some rights that can’t be taken away from the dead. Even if the body is devoid of life, the combination of life and body makes a human person. The Indian Succession Act of 1923, allows a person’s will to be carried out after his death. Under the Human Organ Transplantation Act of 1994, a person has the right to prevent his or her dead body from being mutilated, wasted, or having the organs removed, except with the consent of the person when he or she was alive, or with the consent of his or her kith and kin or the state if the body is unclaimed. As a result, only limited rights like as will execution and the right to a respectful cremation of the body were available to the dead. However, because privacy is a component of dignity, it can be extended even beyond death.

RECENT VERDICT OF MADRAS HIGH COURT ON THE ISSUE – RIGHT TO PRIVACY, REPUTATION EXTINGUISHES AFTER DEATH

The issue was relating to the petition filed by J Deepa[6], the niece of the former Chief Minister J Jayalalitha, J Deepa had filed a High Court petition to prevent the screening of the biopic titled “Thalaivi.” The film is based on the former CM’s life. The petitioner claimed that the film is damaging her reputation. In addition, she stated that the life biography of Jayalalitha cannot be told without including the lives of her family. It will also be invasion of her (Deepa’s) privacy.

The appeal was filed in response to a single judge’s reluctance to halt the distribution of Kangana Ranaut and Arvind Swami’s Thalaivi, claiming that the film was not created with her approval and hence may tarnish Jayalalithaa’s reputation.

“We believe that ‘posthumous right’ is not a ‘alienable right,” stated the division bench comprising of Justice R Subbiah and Justice Sathi Kumar Sukumara Kurup, finding that a person’s privacy or reputation gained during his or her lifetime expires with his or her death. They further stated that the appellant (Deepa) is not entitled to an injunction on the grounds that the respondents are attempting to tarnish her aunt’s “posthumous right” as a result of the film’s publication.” They stated that the legal heirs cannot attempt to protect them through the introduction of legal trials.  The bench also noted that the film in issue is yet to be published, saying, “Even prior to that, the appellant is not entitled to seek an injunction on the premise that her aunt has been presented in the film in a negative light, therefore attempting to bring her image and name into disrepute.”

[7]The film’s distribution is contingent on certification by the central board of film certification, which will have the opportunity to review the film’s subject matter. The court also ruled that the film producers are not needed to obtain the petitioner’s permission before making a film on her aunt’s life. The court also quoted a Bombay high court decision, which stated that people who are in the positions of power must have shoulders which are broad enough in order to gracefully recognise a review of themselves. Democracy is built on the foundation of critical thinking. The filmmaker cannot be forced to convey simply one version of the facts since the film’s strength as a medium of expression depends in its potential to add to that evaluation. The court went on to say that the same thing happened with the online based series “Queen”. In one case, the council stated that the web series was not a true story, but rather a cost-effective adaptation of a story inspired by true events.

The Appellant is entitled to bring this claim as a Class I legal successor (as defined by Hindu law) of late Dr. J. Jayalalitha to defend the “posthumous right to privacy” and the dignity and legacy of her late aunt Dr. J. Jayalalitha.[8]

While making this submission the Appellant cited the case of Rajagopal Vs. State of Tamil Nadu[9] wherein, the Supreme Court of India, while summarizing the principles therein, Had observed that a citizen has a right to protect his or her own privacy, as well as the privacy of his or her family, marriage, procreation, and other matters, and that no one can publish anything concerning the above matters without his consent, whether true or not, laudatory or critical, and that if he does so, he will be violating the person’s right to privacy and will be liable in a damages action. It’s worth noting that the 1st and 2nd Respondents also cited the Rajagopal Judgment, which said that the Supreme Court found that there is a right to publish if it’s based on public documents. Both sides’ arguments relying on the Rajagopal decision shape the outlines of the right to privacy and essentially link back to the Single Bench’s rationale that the right to privacy must be balanced with the right to freedom of expression under the Constitution, both of which are fundamental rights, i.e., the balance of convenience theory. The Appellant claimed that the Series depicts false and distressing events, such as scenes in which Dr. J. Jayalalitha cuts her wrist, scenes in which Dr. J. Jayalalitha begs her male co-star to marry her, and scenes in which Dr. J. Jayalalitha’s brother is shown as a drug addict. The Appellant argued that these were not true incidents and that it is depicting Dr. J. Jayalalitha and her family members in a negative light, and Respondent No.3 is exploiting the Series’ completely fictional status as a smokescreen to sensationalise Dr. J. Jayalalitha’s personal life. At first glance, the Appellant’s allegations appear to be more along the lines of defamation than of violation of the right to privacy and unauthorised use of one’s personality rights, i.e., that the aforementioned dramatised scenes in the Series would harm such person’s reputation because they were factually incorrect. Respondent No. 3 relied on the fact that the Series was a “dramatisation and fictitious reproduction of real events,” that it was based on Book 2, and that it carried a disclaimer expressly indicating that the Series was not a biography of Dr. J. Jayalalitha. In numerous defamation matters, as discussed in Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai[10], this combination of fictionalisation, dependency on a prior publication, and an appropriate disclaimer has been seen to be used, as discussed in the case of Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai. The Division Bench did not go into great detail on this aspect of defamation in this decision, although it was mentioned briefly during the reading of Section 306 of the Indian Succession Act, 1925[11], and Rule 1 of Order XXII of the Code of Civil Procedure, 1908[12].

“Such a disagreement cannot be permitted so close to the debut of the film,” the bench added. Its release is conditional on the CBFC awarding a certificate following an evaluation of the film’s content.” The film’s expressive power derives from its ability to contribute to that evaluation, and the director cannot be obliged to reflect only one version of the facts. Similarly, the justices passed a similar ruling refusing to grant any remedy against the web series Queen. They noted that senior lawyer Satish Parasaran, speaking on behalf of the company’s director Gautham Vasudeva Menon, said that the web series has been available for a long time and that an injunction was superfluous. The online series, according to the lawyer, was not a true biography in the traditional sense, but rather a fictionalised rendition of a true story.

Restrictions (as indicated in the Court Order):

Only state action that passes each of the three standards is cabable of limiting the right: Any state action, first and foremost, must be founded on a legal obligation; second, it must be pursuing a legitimate state purpose; and third, it must be carried out in the public interest. Next, it must be proportionate, which means that such state action must be necessary in a democratic society, both in terms of kind and extent, and the action must be the least invasive of the available choices for accomplishing the aims.

RECENT VERDICT OF DELHI HIGH COURT IN THE CASE OF SUSHANT SINGH RAJPUT BIOPICS

Sushant Singh Rajput’s father, Krishna Kishore Singh, claimed to be “the Category-I or Class-II legal heir of SSR and absolute legal heir under Section 16 of the Hindu Succession Act, 1956,” and filed a suit in the Delhi High Court to protect his son’s “reputation, privacy, and rights of deceased son,” which he claimed were being violated by the making of films like “Nyay: The Justice,” “Shashank,” and others stating that hey are said to be based on Rajput’s life and events. The death of SSR was widely reported in electronic, social, and print media. The Plaintiff has asked the court for an ad-interim ex-parte injunction prohibiting the Defendants from exploiting his son’s name, caricature, lifestyle, or image in upcoming films and other endeavours, among other things. Any such publishing, production, or portrayal, he claims, would be a violation of his personality rights and the right to privacy, which includes the right to publicity, among other things, and could not be done without his legal heir’s permission.

[13]On 10^th June 2021, the Delhi High Court dismissed the appeal brought by Sushant Singh Rajput’s father, Krishna Kishore Singh, wanting to restrain filmmakers from making films on his son, the late actor Sushant Singh Rajput. The film was supposed to be out on June 11th.

Nyay, Shashank, and an undisclosed crowd-funded film are a few of the future or proposed movie projects based on Sushant’s life. According to a petition signed by KK Singh, the filmmakers are profiting from the situation and hence do not have the right to free speech and expression. KK Singh demanded damages of nearly Rs 2 crore from the producers for “loss of reputation, emotional stress, and harassment,” claiming that the films might tarnish his son’s image. The petition also argued that allowing a “movie, web-series, book, or any other comparable materials to be published or televised would jeopardise the victim’s and deceased’s right to a free and fair trial. According to the lawsuit, because Sushant is a well-known star, “any abuse of his name/ image/ caricature/ way of delivering phrases also amounts to infringement of the plaintiff’s personality right alongside acts of passing off.”

On the issue as to whether ‘celebrity rights’ can be enacted after a person’s death,  Singh had claimed that such rights are inheritable by a celebrity’s legal heirs, citing the Gujarat High Court’s verdict of Kirtibhai Raval[14], which held that celebrity rights can be transferred to a direct descendant. In the said case the Plaintiff, claiming to be a direct descendant of late Shri Jalaram Bapa of Virpur, filed a lawsuit based on the right to privacy and the right of publicity, seeking an injunction against the publication of any film or creative work based on the life of late Jalaram Bapa without his approval. The Gujarat High Court upheld the trial court’s injunction, reasoning that “irreparable harm will be caused by violation of right to publicity or privacy that cannot be compensated monetarily,” but it also believed that the parties’ arguments needed to be thoroughly considered after appropriate evidence was presented.

The single judge bench led by Justice Sanjeev Narula, who delivered the judgement, first stated that the terms “publicity right,” “celebrity right,” and “personality right” are not expressly recognised by any Indian laws. There are, however, limited laws under which certain of these rights can be asserted as intellectual property rights, such as the Trade Marks Act and the Copyright Act, 1957 – none of which are applicable in this instance. The court concluded that whether these rights exist posthumously would have to be investigated further, as in the absence of codified laws protecting such rights, the common law that governs such rights would have to be examined, and further investigations would first require evidence from the Plaintiff to show that SSR’s persona is still surviving as a commercial property. While Singh “has sought to distinguish ‘celebrity rights’ from the ‘right to privacy,’ any assertion of such (celebrity) rights (except those claimed through Intellectual Property Rights for which special statutory protection is provided) cannot be appreciated apart from the concept of right to privacy, according to Justice Narula. In the unavailability of legislation recognition of such rights, the right to privacy derived from Article 21 would be the source of such rights.”

Also read: RIVALRY BETWEEN THE ANTI- CONVERSION LAWS AND THE JURISPRUDENCE OF SECULARISM

According to the court, “a limited class of celebrity rights that are protected as intellectual property rights under applicable law are assignable and licensable, and may outlast the actor’s death.” “However, because it is integrally linked to and sprouted from the right of privacy,” it added of the publicity right, “the Court prima facie finds merit in the Defendants’ argument that the posthumous privacy right is not acceptable.” [15]The Delhi High Court based its decision on the Supreme Court’s ruling in the Puttaswamy case, which stated that “any person’s right to privacy is essentially a natural right and remains with the human being until his or her last breath as it is born with the human being and extinguishes with the human being itself. “The court also quoted the Madras High Court’s judgment in the case of Makka Tholai Thodarpu Ltd’s Managing Director, which mentioned that a person’s “right of privacy cannot be inherited after his death by his legal heirs, and that a person’s personality right, reputation, or privacy enjoyed during his lifetime comes to an end after his lifetime,”.

“The name, caricature, lifestyle, and/or likeness of SSR is not being exploited by putting it on any object such as t-shirts, toys, posters, mugs, and so on in order to convey his personality,” the court decided. The Defendants are not making any false claims or misrepresenting their films in any way. The Court noted that it was not satisfied that the Saraogi, Sharma, and Gulati’s work infringed on celebrity rights since they “assert their work to be fictional, i.e., neither a biography nor based on true facts.”

CONCLUSION

As the current legal situation shows, dignity lasts even after death, thus privacy, as part of dignity, should be extended as well. The Supreme Court of India, on the other hand, recognised just the right to the dignity of a dead body in the Paramananda Katara case, and the ruling did not address the whole concept of preserving the dignity of the dead. As a result, we may conclude that privacy does not extend to the deceased based only on the legal position. However, in order to avoid a breach of a person’s privacy just because he is deceased, this right must be recognised and safeguarded by legislation. The public will surely be deceived if this right is not safeguarded. There’s a significant possibility that the law will be misunderstood by the public.

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[1] (Justice K.S. Puttaswamy v. Union of India) (2017) 10 SCC 1

[2] (Kharak Singh vs The State Of U. P. & Others) 1963 AIR 1295, 1964 SCR (1) 332

[3] Privacy and its relation to different aspects of society, available at https://blog.ipleaders.in/know-the-right-to-privacy-in-india-its-sanctity-in-india/ (Last Modified June 12, 2020 )

[4]Article 21, available at, https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2021

[5] Privacy of Dead and Article 21, available at http://www.legalserviceindia.com/legal/article-120-should-your-privacy-die-with-you-.html 

[6] Right to privacy, reputation extinguishes after death, available at https://www.thehindu.com/news/national/tamil-nadu/right-to-privacy-reputation-extinguishes-after-death-hc/article34340089.ece

[7] HC refuses to ban Jaya biopic, says right to privacy cannot be inherited, available at https://www.dtnext.in/Lifestyle/LifeStyleTopNews/2021/04/17031838/1288135/HC-refuses-to-ban-Jaya-biopic-says-right-to-privacy-.vpf

[8] [8] POSTHUMOUS SURVIVAL OF PRIVACY & PERSONALITY RIGHTS: PART 2, available at https://www.legal500.com/developments/thought-leadership/posthumous-survival-of-privacy-personality-rights-part-2/

[9] (R.Rajgopal v. State of Tamil Nadu) 1995 AIR 264, 1994 SCC (6) 632

[10] (Vadlapadla Naga Vara Prasad v Chairperson, Central Board of Film Certification, Bharat Bhavan, Mumbai) WRIT PETITION No.30376 of 2011

[11] Section 306 of the Indian Succession Act, available at https://indiankanoon.org/doc/261549/

[12]Rule 1 of Order XXII of the Code of Civil Procedure, 1908, available at http://www.bareactslive.com/ACA/ACT379.HTM

[13] Sushant Singh Rajput’s father’s plea rejected, Delhi HC refuses stay on Nyay release, available at https://www.indiatoday.in/movies/celebrities/story/sushant-singh-rajput-s-father-s-plea-rejected-delhi-hc-refuses-stay-on-nyay-release-1813154-2021-06-10

[14] Kirtibhai vs Raghuram on 20 January, 2010 (Gujrat High Court)

[15] Sushant Singh Rajput Case : Are Celebrity Rights Available Posthumously? Delhi High Court To Decide, available at https://www.livelaw.in/top-stories/sushant-singh-rajput-case-are-celebrity-rights-available-posthumously-delhi-high-court-to-decide-175506

Author: CHANDRIMA DAS, SYMBIOSIS LAW SCHOOL, NAGPUR

Editor: Kanishka Vaish, Senior Editor, LexLife India.

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IMPLICATIONS ON GST COMPLIANCE AND LITIGATION DURING AND AFTER COVID

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The COVID-19 pandemic has dealt a severe blow to an already stressed global economy. The severity of the pandemic across the globe has pushed countries and organizations into unchartered territories. The macro-economic impact of COVID-19 could result in a significant dip in GDP growth, an adverse impact on fiscal deficit and a substantial erosion of investor wealth. While the path to recovery is unpredictable, a prolonged “see-saw” shaped recovery looks most likely for India, leading to a “new normal”. To cope with the crisis, the government initially in the year 2020 announced a stimulus package amounting to INR 20.97 lakh crore, that was around 9.8% of FY21 estimated GDP. Of this package, only 9.7% was the additional burden on the centre’s FY21 budget. An analysis carried out by EY’s Tax and Economic Policy Group shows that, the centre’s fiscal deficit in FY21 may be estimated at 7.1% if this additionality in the recently announced stimulus is to be provided for and the budgeted level of expenditures is to be protected. The pandemic’s impact on Indian economy and finding our way through the new normal. The article on world trade post COVID discusses the potential new environment where countries may start to protect their vital supplies and increase tariff and non-tariff barriers while defending their existing domestic industries through trade remedies measures. As this disease was new in the world and took the entire globe by storm, fewer studies were conducted in so far related to its impact on the fiscal sector; researchers have reviewed some papers to know the implications of this virus on countries economy, review of some papers have been given below.

Balajee, A., Tomar, S., &Udupa, G. in their study entitled, “Fiscal Situation of India in the Time of COVID-19” and found that the Central government has declared package of Rs. 1.7 trillion for mitigating the effects of shut down of the economy. Researchers have also suggested that subsidy rationalization can reduce the fiscal deficit. This study forecasted that fiscal deficit will be as high as to 8.4%”.

Venkateswaran, A. researched, “The Impact of Covid-19 on India” and focuses to know the attitude and awareness level of new viruses among the public. Researcher has also focused on the role of Government, politician, and healthcare officers. This study also suggested that tax concession should be given to small industries, GST relief, guarantee of wages, and, easy accessibility of credit. This research found that coronavirus put a destructive effect on every country of the world.

Every study concluded that it put a negative impact on each sector. Researchers have found that various researches that have been done on coronavirus, but none of the studies has been done related to GST amendments or relaxation during this Covid-19 pandemic.

Objectives: To counter the impact of this new virus on the economy, Government has taken various measures. Relaxation packages of GST is one of the measures. The Central Government has introduced various concessions and relaxation in GST compliances to provide relief to affected persons. The article’s objective is to determine whether the relaxations and relief provided by the Government fulfils its purpose.

Pertinent Questions:

1. What has been the current impact, of the lockdown due to Covid-19, in the GST litigation space?
2. What are the changes in the substantive laws that have come about?
3. What are the changes in procedural laws that have come about?
4. What are the disputes that may arise or the loopholes that might cause a problem in the future due to these changes?

 Implications on GST compliance during COVID-19 crisis

The last two quarter year have had even the strongest economies across the world struggle with the coronavirus crisis. India is no stranger to economic challenges but a pandemic of this degree is on the verge of crippling several industries and businesses in the country. When a business crumbles, the tax system that generates revenue because of said business will also face challenges. India’s indirect tax system, the Goods and Services Tax is still in its development phase having been implemented merely three years ago in July 2017. Before looking at the GST aspect, looking at the economical aspect is more feasible. The lockdown due to Covid-19 has brought all the economic corporations to a halt, a month-long shut down for a 2.6 trillion dollar economy implies a loss of 217 billion dollars which roughly translates to about 1.4 lakh crores and if the stimulus is seen which is the central government has released which is to the tune of 1.7 lakh crores which clearly shows that Covid-19 disease has put a serious dent in the economy already it was only inevitable that the government would announce to defer the compliances under the GST law and other laws, many measures also include some concessions in other areas of the law example Insolvency and Bankruptcy Code. If we go chronologically on March 19^th Prime Minister came before the public and announced the Janta curfew on March 20^th, 2020, returns GSTR-3B was required to be filed and subsequently on March 24^th, 2020 the Prime Minister again announced the lockdown for 21 days accordingly it was imperative that returns were deferred. On March 24^th, our Finance Minister in reference to this lockdown due to the outbreak of COVID-19 they declared certain concessions in a press release. On March 24^th the government made some announcements with respect to the indirect taxes, then on 31^st March the President came out with the ordinance that was related to taxation and other laws, then finally on 3^rd April, the Central Government issued various notifications to bring into effect some proposed concessions.

The plausible challenges that India’s indirect tax reform is currently facing because of the Covid-19 economic crisis, have been demarcated below:

• Falling revenue collection: Tax collections have suffered in wake of the coronavirus pandemic and consequent lockdown. Union Finance Minister, Nirmala Sitharaman announced that collections for the month of April and May were 45% lower than the usual range. There could be an up in the revenue numbers since the deadline for filing returns has been extended to September 30^th, 2020. GST collections for the month of March, 2020 stood at a five-month of Rs. 97,500 crores, falling short of its target of Rs. 1,25,000 crores.
• Challenges in meeting GST liabilities: The lockdown has disrupted business operations across the nation. Challenges like shortage of raw materials, hiked prices, slowdown in demand, liquidity crisis and delayed payment cycles are likely to cause a lot of issues while filing GST liabilities, even after an extension in deadlines file returns, waiver of late fees and reduction in rate of interest on late filing charges,
• Demand for rate cuts: Experts have reckoned that the economic crisis caused due to the Coronavirus pandemic is likely to cripple a number of industries especially hospitality, travel and tourism. Obviously, a number of industries are going to demand rate cuts and exemptions. This is going to be quite a challenge for the Government, both Centre and State as any spry of rate cuts will lead to lower revenue collections. On the other hand, no GST exemptions or rate cuts are likely to lead to failure in payment and a build -up of output tax liabilities.
• Possible disputes while expanding GST ambit: If the Centre Takes on recommendations from certain ministries and other experts and brings certain commodities like crude oil, oil and gas, aviation turbine fuel and natural gas which are taxed under VAT system, under the GST ambit, it could help with revenue collection. But this is likely to fuel the ongoing dispute between States and the Centre who are already knocking heads with the Centre for delayed compensation.

Relaxation in GST compliances during Covid-19 circumstances

To counter the impact of this new virus on the economy Government has taken various measures. Relaxation packages of GST is one of the measures. Due to sudden lockdown taxpayers and professionals are facing various challenges for fulfilling the tax activities. The Central Government has introduced various concessions and relaxations in GST compliances to provide relief to affected persons. All the GST relaxations have been discussed below. For instance:

• Due Dates of GST returns: The Central Government has taken this lead to give more time to taxpayers for filing the returns. As per the notifications number 30/2020 to 36/2020 issued by the Government in the view of the novel coronavirus, the time limit of indirect tax returns has been extended.
• Waiver of late fees: Late fees for filing the returns: has also been waived by the Government, till the date of extended due dates of tax returns,
• Waiver for the Interest: The Government has also waived the interest, if all the return will be filed by the extended due. If a taxpayer unable to file the return within the extended deadlines then interest will be levied at the rate of 9% and 18%.
• Opting Composition Scheme: Due to this crisis the central government has issued an advisory which states that registered taxpayers who already in the composition scheme are not required to register themselves again for the financial year 2020-21. The date for opting composition scheme has also been increased to 31^st March, 2020, for new taxpayers who want to opt the composition scheme through GST CMP-02. ‘
• Reduces the Compliances: As per the rule 67A a registered tax person can file his amount tax return (GSTR-3B) by typing a typing a short message from a registered mobile number. This return will be verified through the EVC (Electronic Verification Code). Through this no login required, just by SMS return will be filled.
• EVC Return Filing of Companies: Previously GST return-3B under section 39 of the companies were filed through DSC (Digital Signature Certificate) only, but now the indirect tax returns of companies can be filed by EVC also till 30^th June, 2020.
• Unclaimed Transition Credit Date Extended: The Central Government has extended the date of TRAN-1 till 30^th June, 2020. A registered person, who has not taken the transition input or unclaimed ITC by not filing the TRAN-1, will be allowed until 30^th June.
• Validity of EWB: As per the notification no. 40/2020: Central Tax, the validity of an E-Way Bill has increased till 31^st May 2020. It will apply to those e-Way Bills, which have been generated before 24^th March, 2020 and its expiry is in between 20^th March to 15^th April, 2020.
• IRP/RP Registration Time Limit Extended: As per the notification no. 39/2020-Central Tax, the time limit of registration of Interim Resolution Professional (IRP) and Resolution (RP) has been increased to 30^th June 2020 or within 30 days of the appointments of IRP/RP whoever is later.
• Merchant Exports: A merchant exporter has to export within the 90 days of invoice date, but due to lockdown they are unable to export. In view of this the Central Government has issued a circular, which states that merchant exporters will get the extension to 30^th June, 2020. It will applicable to those exporters whose 90 days period comes in between 20^th March to 29^th June, 2020.
• Validity of LUT: As per the circular 137/7/20, the validity of a LUT (Letter of Undertaking) has also been extended. A LUT, which has been expired on 31^st March, 2020, it will be valid up to 30^th June, 2020. Changes in procedural and substantive law brought during covid19.

Changes in Procedural and substantive law brought during covid19

Changes in Procedural law: The government has issued 7 notifications, starting from notification number 30 to notification number 36. Now for the purposes of GSTR-3B which is the method through which we remit our tax liabilities, in respect of the concessions with the respect to GSTR-3B the government divided the taxpayer into three brackets, but has not changed the due dates and has granted concession with respect to the imposition of interest. The first bracket includes taxpayers having an aggregate turnover of more than Rs. 5 crores in the previous financial year. In the second taxpayers having an aggregate turnover of more than Rs. 1.5 Crores but less than equal to Rs. 5 crores in the previous financial year. Lastly, in the third bracket taxpayers having aggregate turnover up to Rs. 1.5 Crores in the previous financial year are included. Taxpayers falling in the third bracket have given much more concession in comparison to the taxpayers falling in the other two brackets. Basically, this is the deferment of Returns and the due dates prescribed are higher in case the turnover limit is lesser. So, an assessee having a turnover of up to 1.5 crores would have much higher benefit. These are but with respect to the changes that are on the grounds of interest and late fee for filing the returns.

Notification number 35 was also issued by the government, in terms of this particular notification all the returns under GST regime, for instance, GSTR-6 which has to be filed by the Input Service Distributor, GSTR-7 which is required to be filed by the Taxpayer Deducting Tax at Source, GSTR-5 applicable on Non-Resident Taxable Person, they have also been deferred. In earlier scenarios for GSTR-1 and GSTR-3B the due date was not extended only the concession was granted, however in case of all the other returns the government says that where was the due date with respect to any returns false between March 20^th, 2020 to June 25^th 2020 the government has extended has extended its due date to June 30^th, 2020. Apart from this another important issue was regarding the validity period of the e-way bills, the government has extended the validity period of each e-way bill which expires between March 2020 to April 15^th, 2020 it has been extended till April 30^th, 2020.

Changes in the Substantive laws: The first change is the insertion of force majeure clause, Clause 8 of the Taxation and Other Laws Ordinance 2020 that has been issued by the president exercise of article 123 provides for the insertion of Section 168A in the CGST Act. Force majeure under clause 8 has been explained as a case of War, epidemic, flood, drought, fire, cyclone, earthquake, or any other calamity caused by nature or otherwise affecting the implementation of the provisions of the act.

The second change was that the government issued notification number 35, in which there is a time limit which has been prescribed in the statute in the CGST Act which prescribes that the appeal has to be filed before the appellate authority within 3 months and there is a condonable period of 1 month. Now the government stated that in terms of this notification whenever the time limit for filing replies, appeals Falls within the period of March 20^th, 2020 to June 29^th, 2020 was extended to June 30^th 2020 and similar concessions have been granted in the ordinance with respect to excise laws and service tax laws also. The third change was added in respect to the restrictions in availing of input tax credit which were added by rule 36(4) of the central goods and services Tax rules 2017 which restricts input tax credit attributable to inward supplies the details of which do not feature in form GSTR-2A to the extent of 10%. Applicability of aforementioned restrictions in respect of ITC attributable to the month of February 2020 to August 2020 will have to be cumulatively observed while filing return for September 2020.

The fourth change was with the respect that any taxpayer who is making Exports is required to realize the proceeds of Exports in order to avail the export benefits under the GST law and the RBI prescribes a time limit for realizing that export proceeds. Now the RBI has extended the period for realization of the export proceeds, in respect of Exports made up to July 31^st 2020, from 9 months to 15 months. The negative consequence that can arise is that one would not be entitle to export incentives that basically pertains to the taxability of the transaction and admissibility of refund of the ITC.

Disputes that may arise or the loopholes that might cause a problem in the future due to these changes

All these amendments that are being made are not free from faults. So there is a possibility of a litigation that may arise in the future, if the Supreme Court’s order dated March 23^rd, 2020 is considered, this order was passed in exercise of the powers conferred under Article 141 as per which the law declared by the Supreme court is the law of the land. The Court basically took Suo-moto cognizance pf the situation arising out of the challenges faced by the country on account of the outbreak by the virtue of its powers the court had ordered that a limitation period in all such proceedings irrespective of the limitation prescribed under general law or special law whether condonable or not shall stand extended from 15^th March, 2020. The ordinance on the other hand, stated that any time limit for completion or compliance of any authority inclusive of filing of appeals if its appeals if it falls during the period from 20^th March, 2020 to 29^th June. 2020.

So, whenever an assessee is filing an appeal the appellate authority and in case is time period was to expire on or post 15^th of March. The appellate authority would probably tell assessee that there was no condonation prescribed under the ordinance or under the notification and if it has not been made in such period it shall get extended to 30^th June, 2020. Therefore, there is a conflict between the Supreme Court order and the ordinance passed. Therefore, an appeal to the appellate authority lies against the original order within 3 months from the date of communication of the order, furthermore, one month is also granted which is condonable by the appellate authority thereafter it is not condonable by the appellate authority and had been held in a number of judgments. But the issue which will arise would be whether taxpayer filing the appeal will be required to prefer an application for condonation of delay if such a case arises.

Apart from these there are certain other issues that may arise for instance the ordinance allows the central government to pass notifications with retrospective benefit from the date of commencement of the act and not beyond it. Therefore, we can see that there are inconsistencies between the ordinances and these notifications. There are all these amendments being made in the CGST Act now identical GST law has been framed by the state legislature also. If it is observed these ordinances are making changes in the Central law however there are no corresponding changes being made in the state law so currently there is a conflict exist the state GST law and the central GST law.

SUGGESTIONS/CONCLUSION

Temporary or short-term exemptions on essential goods: While exemptions and rate cuts don’t really help either the Government or businesses or the consumer in the long run, a temporary or short term exemption or a rate cut in the supply of essential goods and services that will help curb the spread of the novel Coronavirus is the need of the hour. Goods like soap, disinfectant and hand sanitizers have had price control imposed on them but fall under the range of 12% to 18% GST. Because the cost of manufacturing essentials has gone up due to a shortage of manpower, raw materials and logistics, a short term rate cut could help businesses continue with production. Needless to say, stringent anti profiteering measures will have to be implemented to ensure that businesses remain ethical.

Zero rated essential services: It is very common to hear consumers shelling out lakhs of rupees on healthcare especially during this pandemic, This could probably be because services are exempt from output GST. While that is a good measure, hospitals cannot claim input tax credit. Yet, they have to incur the expense of input taxes on drugs, medical equipment etc. All of these expenses are then built into the price of the services provided to the consumer. If hospital services were zero rated, they could claim input tax credit and thereby reduce the price of the service delivered to the consumer.

Optimizing flow of input tax credit: Most business sectors have stated that ITC flow is a major pain point for them as it blocks working capital. As businesses start to normalize post lockdown, the offset of input tax credit is likely to stagger, several business verticals like travel and tourism will require immediate and an optimized flow of ITC. A mechanism to ensure optimal flow of ITC will be highly appreciated.

Suspended GST on settlement: Several contractual obligations were violated because of the coronavirus outbreak and consequent lockdown. Obviously, parties will attempt to settle these liabilities through liquidated damages or arbitration. But if the Centre demands GST on settlement amounts, it is highly unlikely that resolutions of these disputes could be delayed indefinitely.

This is an opportunity for India’s biggest indirect tax reform to prove its worth as a user-friendly tax; a collaborative approach between the Centre and businesses could help normalize the situation efficiently. The Centre has been implementing reform and relief measures for various different businesses and hopefully, we should be able to drift through this crisis.

Author: Parth Tehri, Bhartiya Vidyapeeth (New Delhi)

Laws Regarding Autonomous Vehicles in India

Photo by Roberto Nickson on Pexels.com

With the technological advancement and rise in the AI (Artificial Intelligence) development we see new wonders and miracles almost similar to a fantasy becoming real every day. One of such miracles is the introduction of the term “Autonomous” in modern technology.

Autonomous means being “not subject to the rule or control of another”, in simple terms not being under any outside control. From the past, scientists have tried to develop machines which will make most complicated and even day to day activities easy for the human kind.

However, these machines still required supervision and care from any outside force. To make the machines free from the taxing and unneeded supervision, autonomous technology was introduced to the modern age. Although automation is not such a foreign concept in other fields, transportation has seen rise in this field recently. A lot of speculations were made regarding the future of vehicles and modes of transportation in general, being automatic was a given in them. Despite being far away from seeing flying cars in our daily sky, the age of seeing driverless cars is here. For a firm standpoint, the vehicles which are able to drive themselves from point A to point B and take all the decisions encountered between those points itself are called autonomous.

 History

The efforts of people trying to make machines needing less manual support and introducing automation dates back to the period between about 300 BC and about 1200 AD. It used to be a preoccupation of the Greeks and Arabs.

A fully automated machine was not introduced till 1771¹, when Richard Arkwright invented the first fully automated spinning mill driven by water power, known at the time as the water frame. An automatic flour mill was developed by Oliver Evans in 1785, making it the first completely automated industrial process.

 Experiments

However, experiments on self-driving cars didn’t begin till the 1920’s. Worthwhile results came till 1950’s and work has proceeded since then. In 1925, Houdina Radio Control demonstrated the radio-controlled “American Wonder” on New York City streets, traveling up Broadway and down Fifth Avenue through the thick traffic jam. The technology has advanced by leaps and bounds every decade since then. General Motors at the 1939 World’s Fair, exhibited radio-controlled electric cars moving with the help of electromagnetic fields provided by the circuits embedded in the roadways.

The main focus of the researchers and scientists has been on how to move the vehicle from point A to point B without any human interference or manipulation. Any consideration for the outside factors involving environment and obstacles was not given until mid 70’s, therefore, the cars till that era cannot be said to have achieved autonomous driving. Focus on the factors said before and research into the intelligent automated logic needed for autonomous cars was conducted at the Coordinated Science Laboratory of the University of Illinois in the early to mid-1970s.

The first semi-automated car was introduced to the world in 1977. It was a project run by Japan’s Tsukuba Mechanical Engineering Laboratory, which required specially marked streets that were recorded, interpreted

¹ https://en.wikipedia.org/wiki/Automation#Early_history

and processed by two cameras on the vehicle and an analog computer. The vehicle reached speeds up to 30 kilometers per hour (19 mph) with the support of an elevated rail.²

 Major Landmarks

The first landmark autonomous car appeared in the 1880’s when Carnegie Mellon University introduced Navlab³, which was funded by the United States’ Defense Advanced Research Projects Agency (DARPA).

Navlab⁴ were a series of computer operated vehicles developed by the robotics institute teams from the school of computer science in the university. In the series, some required little human input and some were completely autonomous. Consequently, experiments and research were conducted thoroughly. By 1985, the ALV had demonstrated self-driving speeds on two-lane roads of 31 kilometres per hour, obstacle avoidance being added in 1986, and till 1987 ⁵it achieved off road driving in day and nighttime conditions achieving a greater milestone in the field of autonomous vehicles.

The research achieved substantial heights in 1995 when Carnegie Mellon University’s NavLab 5 completed the “first ever autonomous coast-to-coast drive of the United States. From the 4,585 km between Pittsburgh, Pennsylvania and San Diego, California, 4,501 km were autonomous (98.2%), which were completed with an average speed of

102.7 km/h.”

² “Autonomous Cars Through The Ages”. Wired. Retrieved 26 July 2018.

³ The Carnegie Mellon University Navigation Laboratory. The Robotics Institute. Retrieved 20 December 2014

⁴ “Navlab: The Carnegie Mellon University Navigation Laboratory”. The Robotics Institute. Retrieved 14 July 2011.

⁵ (May 1988). “VITS-a vision system for automated land vehicle navigation”

These projects led to the basics and foundation of modern technology involving the development of autonomous vehicles. The dream for having driverless cars was not too far behind after this.

 Automated or Autonomous?

Confusing Automated to Autonomous is a common mistake. The earlier experiments and research conducted can be said for automated technology, while the goal was to create a completely self-governing, requiring little to no human interaction in between the decisions taken by the vehicle going through the journey. These decisions not just mean travelling in a straight line from point A to B. Being truly autonomous means going through all the hurdles and also interacting with the ever changing environment by itself.

Many historical projects related to vehicle automation have been automated (made automatic). They were heavily relying on artificial aids in their environment, such as magnetic strips, rails, radio controlled frequencies, external influence and more. Autonomous control implies satisfactory performance under significant uncertainties in the environment, and the ability to compensate while coming up with a solution for system failures without any external intervention.

 Understanding by Law

Wood et al. wrote in “The potential regulatory challenges of increasingly autonomous motor vehicles”. 52nd Santa Clara Law Review. 4 (9): 1423–1502.an article in 2012⁶, the term “autonomous” was chosen “because it is the term that is currently in more widespread use (and thus is more familiar to the general public). However, the latter term is arguably more accurate. ‘Automated’ connotes control or operation by a machine, while ‘autonomous’ connotes acting alone or independently.”

Fact implied by the above review is that the use of the term autonomous was purely for convenience and not intentional. Current technology cannot, unfortunately, afford to be called autonomous and there is still a considerable amount of innovation to be done in the field.

In Europe, however, the words automated and autonomous might also be used together. The “automated vehicle” and “fully automated vehicle” are defined by the Regulation (EU) 2019/2144 of the European Parliament and of the Council of 27 November 2019 on type-approval requirements for motor vehicles on the basis of their autonomous capacity:⁷

1. “Automated Vehicle” means a motor vehicle designed and constructed to move autonomously (without human interaction) for certain periods of time without continuous driver supervision but in respect of which driver intervention is still expected or required.

• “Fully Automated Vehicle” means a motor vehicle that has been designed and constructed to move autonomously without any driver supervision altogether.

According to the Automated and Electric Vehicles Act 2018 The British law interprets the meaning of “automated vehicle” based on the interpretation section related to a vehicle “driving itself” and an insured vehicle.

 Types and Definitions

Autonomous vehicles are a very wide concept which includes all kinds of technical jargon. Classifying and dividing the different kinds of autonomous vehicles is important for understanding and evaluating them accordingly. Moreover, it gives a sense of understanding to the

non-technical folk with a curiosity towards them.

The British Automated and Electric Vehicles Act 2018 law defines and considers a vehicle as “driving itself” if the vehicle “is operating in a mode in which it is not being controlled, influenced or manipulated, and also does not need to be monitored, by any individual.⁸”

A classification system with six levels which ranges from fully manual to fully automated systems was published in 2014 by SAE International, an automotive standardization body. It was published as J3016, Taxonomy and Definitions for Terms Related to On-Road Motor Vehicle Automated Driving Systems⁹. This classification was purely on the basis of the driver interaction and attentiveness required from them while driving the vehicle rather than the capabilities or the technology used in the vehicle to make it autonomous.

 The different types are as follows:

1. No Automation: This type requires full-time performance and attention of the human driver in all aspects of the controlling and driving task of the vehicle; it is needed even when the vehicle is “enhanced by warning or intervention systems”

• Driver Assistance: This type is also called “hands on” driving. It uses the information about the driving environment and with the expectation that the human driver performs all remaining aspects of controlling and driving tasks of the vehicle. In simpler terms, an automated system performs the task of acceleration/deceleration while the steering wheel is handled by the driver.

• Partial Automation: Often referred to as the “hands off” driving. The automated driving system controls the task of steering, accelerating/decelerating and braking. However, it does not imply that hands can remain off the vehicle completely. A little interaction and presence of mind is required during the drive by humans. Although, automated driving system monitors the driving environment.

Tesla Autopilot system is classified as an SAE   Level 2 system

• Conditional Automation: This kind of automation can be referred to as the “eyes off” driving system. The entire tasks from controlling the emergency brakes, steering, engine to the general or soft turns are automated. The computer can be compared to a co-driver who alerts the driver when his intervention is required by the vehicle. Other than the frequent intervention and keeping an eye on the road, the driver is free to perform other tasks of his/her choice.

• High Automation: It is referred as the “mind off” automation. The driver is free to leave the driving seat and perform the tasks which could take his mind completely off the road for ex: sleeping, eating or watching a movie. Under special circumstances, the automation system can fully take control over the vehicle and perform any or almost all the tasks required while controlling the vehicle. The automation system, however, can park the vehicle or stop if intervention from humans is required or the passenger is off the steering wheel at the time.

• Full Automation: This kind of driving system is referred to as “steering wheel optional” automation system. Here, no human intervention is required at all. An example of this kind of automation system would be a robotic vehicle that works on all kinds of surfaces, all around the world, in every season, in all weather conditions.

 Criticism

The classification system by Automation Levels of SAE has been criticized for only paying attention to the technology and making it the sole criteria for dividing autonomous vehicles¹¹. According to this system, the more automation, the better it will be. This cannot always be true, taking external factors into consideration is also important. They also never took into account the changes that may be required to infrastructure and road user behavior¹². Urban use of autonomous vehicles encounters a lot of unseen forces and many factors may still be unknown, future regulations might change the current classification system completely.

 Legal Status

The 1968 Vienna Convention on Road Traffic,¹³ which is subscribed by over 70 countries worldwide is responsible for regulating and establishing traffic laws, it also governs them. The basic groundwork for the principles was that the driver is and will be in full control of the vehicle, given there is no outside interference. In 2016 a reform was done which opened many possibilities for the automated technology, trusting a significant amount of tasks, which are performed by the driver to the system. However, the technology which is assisting in this is still undermined, implying the superficial thought given to automation systems. This means, in those countries cars might be automated or autonomous or self-driving but they can’t be driverless.

India, although not being a signatory of the Vienna convention 1968, has conversely applied the principles established in the convention.

However, Global road safety body, International Road Federation (IRF) has urged India to become a signatory to the Vienna Convention on Road Traffic (1968) and be on par with international standards in this area.¹⁴ A satisfactory decision is still to be taken on for being a signatory or not of the Vienna convention.

 Regulations in different countries

1.   United States

The United States of America is non-signatory to the Vienna convention. It does not practically accept everything about autonomous systems of driving; however, it prohibits them completely as of 2012¹⁵. Several

¹³ “GAR – 1968 Vienna Convention”.

14

http://opiniojuris.org/2015/04/02/guest-post-indian-court-embraces-the-vienna-convention-on-law-of-treati es/

¹⁵ “Automated Vehicles Are Probably Legal in The United States”

states in the country have accepted and considered enacting laws for the regulation of automated vehicles. Moreover, by 2016, seven states have even enacted some of these laws in their region. Unfortunately, the recent incidents with Tesla’s autopilot system have forced these states to re-revise and consider the laws for automation more thoughtfully.

2.   Europe

In 2013, the government of the United Kingdom took the lead and allowed testing of driverless cars on public roads.¹⁶ Before this all projects were researched and experimented on private properties, generally them being enclosed tracks.

As if taking an example, the governments of France¹⁷, Switzerland, Hungary and Germany allowed testing of automated vehicles with proper conditions and restrictions imposed in 2015 and 2017 respectively.

Regulation (EU) 2019/2144 of the European Parliament and of the Council of 27 November 2019 on type-approval requirements for motor vehicles defines specific requirements related to automated vehicles and fully automated vehicles. The law is applicable from 2022. It is based on uniform procedures and technical specifications for the systems and other items.

3.   Asia

In 2016, the Singapore Land Transit Authority began testing a fleet of robo taxis on its streets in partnership with Delphi Automotive; a UK based automotive supplier company. They will be an on demand cab service which will take effect by 2017

Japan

Japan amended two laws in 2019, “Road Traffic Act” and “Road Transport Vehicle Act”. In the Road Traffic Act level 3 self-driving cars were allowed on public roads and in the Road Transport Vehicle Act process to designate types for safety certification on Level 3 self-driving function of Autonomous Driving System (ADS) vehicles; and the certification process for were legally defined. Accepting the modern technology and taking the future to the next step, Japan, in 2020, issued an official roadmap and development plans which considered the commercialization and public acceptance of level 4 self-driving cars.¹⁹

• China

China introduced regulations for partially automated, highly automated and complete automation vehicles in the year 2018.²⁰ Chinese regulations make it mandatory to remotely monitor and make it capable to remake the incidents occurred during test driving and analyze them later. Also, they made it mandatory to have a test driver having at least 3 years of experience with “no incidents” occurring during that period. For future prospects China plans to add highways for the development and public use of automated vehicles in 2021.

4.   Issues posed in India

India, being a country in the process of development itself had and is trying it’s best to be on par with the modern technology. With the introduction of Tesla autopilot in the country India is closing on with the world. However, regulations relating to testing and legalization of automated driving system (ADS) vehicles are still lacking and proper consideration is to be given. Issues for self-driving cars in India are not just limited to proper roads or liability during the accidents, India faces crises bigger and more attention worthy than these.

All the operations for transports are governed by the Motor Vehicles Act, 1988, which does not even allow testing of self-driving vehicles on Indian roads. An amendment was proposed in the Motor vehicles Act bill of 2017 which provides regulations for testing. However, it is still pending.²¹

In India, current laws provide for ‘no fault’ liability of the owner or the insurance company if an accident results in death or permanent disablement. But with driverless cars around it is very difficult to gauge the situation and assess proper liability. A recent incident with tesla autopilot tried to hold company liable for autonomous system failure.

However, it was stated clearly that self-driving cars does not allow driver to leave the driving seat yet. This confuses law makers’ around the world.

Another major crisis for Indian government is to tackle unemployment which will be caused by driverless cars around. The government argues that there are 40 lakh drivers in the country with a shortfall of 25 lakh drivers. The government does not want to put employment opportunities for skilled drivers at stake and give that job to an automated system.

The roads in India are clearly not suitable for even normal driving. The driverless system will have even more of a hard time in navigating through crowded, traffic packed, and rash drivers. All these issues make autonomous cars a pipe dream for years to come in India.

 Future of Automation

Waymo, a US based automotive company started testing driverless cars without a safety driver in 2017. However, there was still a person present in the passenger position for monitoring and analyzing the situation from inside. In December 2018, “Waymo was the first to commercialize a fully autonomous taxi service in the US, in Phoenix, Arizona”. Waymo launched a geo-fenced driverless ride hailing service in Phoenix in October 2020.

In March 2019, Robocar, set the Guinness world record in being the fastest autonomous car in the world. It pushed the limits of self-driving vehicles, Robocar reached 282.42 km/h, an average confirmed by the UK Timing Association at Elvington in Yorkshire, UK. This was the new achievement which introduced autonomous vehicles to different fields other than public service.

On March 5, 2021, “Honda began leasing in Japan a limited edition of 100 Legend Hybrid EX sedans which were fully equipped with level 3 automated driving systems;” which had already passed with certification of Japanese government to their autonomous “Traffic Jam Pilot” driving technology. This legally allowed drivers to take their eyes off the road.²²

 Conclusion

The Autonomous system is not developed and neither completely safe, still it is a necessary evil which is required for the overall betterment of society and leap of humankind into the future of AI (Artificial Intelligence) development. Without a doubt there are several challenges which come along with the automated technology but the advantages which tag with it cannot be ignored too. Accidents can be avoided which take countless lives around the world, mostly caused by human faults.

Time management can be made easier by not involving commute time and leaving driving to an autonomous system. A paradox of automation refers to the necessity and involvement of humans in automation. It says that the more efficient and developed automated systems becomes; the more involvement of the human mind will be needed. It is critical for humans to work along with the AI to take advantage of it effectively.

Lisanne Bainbridge, a cognitive psychologist, identified these issues notably in her widely cited paper “Ironies of Automation.” If an automated system has an error, it will multiply that error until it is fixed or shut down. This is where human intervention is needed. A fatal example of this was Air France Flight 447, where a failure of automation put the pilots into a manual situation they were not prepared for.

Any progress made by humankind has not come without a price in history, and at the time of making development for a new century, being patient and drafting out proper regulations is what needed most.

Following the examples of the past, the dream of having completely automated cars running around our roads is not so unfathomable.

 Author:  Aditya Fouzdar, Jemtec School Of Law, Noida

Pandemic’s Impact on Work Ethics & Cybercrime

Work from home, a word of fantasy that arises in the mind of every employee in the morning when he goes to work by waking up from his laziness and moving out struggling through transports, traffic, and the noisy outdoors of the city. Who would have thought that one day this dream would come true due to the pandemic that has made work from home the new normal. In March 2020 when World Health Organization announced the COVID-19 epidemic, many have made changes to work from home; millions have lost their jobs. The future looks uncertain. The pandemic may have reduced the physical threats like home breaking, pickpocketing, and more but a large population can be affected due to cyber threats. The main cause of an increase in cybercrime is our dependency on them. Even for our basic things like shopping, grocery, ordering food, bank transaction everything and when the dependency is uncontrollable some people can take advantage of the situation.

Studies from Kaspersky researchers have found that the number of cyberattacks on Remote Desktop Protocols (RDP) has increased by 242% this year, compared to the last. Cruel attackers consist of an attacker who submits multiple passwords or passwords in the hope that he or she will eventually guess the combination correctly. The attacker systematically scans all passwords and passphrases until they are found to be correct. The report also revealed that there were nearly 330 crore attacks on Remote Desktop Protocols between January and November 2020, compared to 96.9 crore attacks recorded in 2019, worldwide. In India, the number of RDP attacks found has increased from 1.8 crores in 2019 to 3.6 crore by 2020, from January to November, almost double.

If we talk about the IBM X-Force Threat Intelligence Index, India has been a target of 7% cyberattacks in Asia in 2020. The reports tell that Finance and insurance are the most affected industries which are followed by the manufacturing and professional services. Microsoft in November revealed that it detected cyberattacks from nation-state actors targeting seven companies directly involved in researching vaccines and treatments for Covid-19, including in India. Dr. Reddy laboratories suffered a major ransomware attack this year.

RECENT INCIDENTS OF CYBERCRIME

The first case in India of cybercrime was Yahoo v. Akash Arora. The case took place in 1999. In the case, defendant Akash Arora was accused of using a trademark or domain name ‘yahooindia.com’ and seeking a permanent injunction. Another case is that of Vinod Kaushik and ors. v. Madhvika Joshi and ors. Where it was held that access to the husband and father’s e-mail accounts illegally without their consent is not authorized under section 43 of the IT Act, 2000. The case was decided in 2011. All of these cases are as real as cybercrime, which is rampant, especially in India.

One of the major cybercrime or hacking incident was the hacking of Twitter accounts of some top leading men of the world like Jeff Bezos, Gates, Elon Musk, Jeff Bezos (& Apple), Kanye West, and Mike Bloomberg. The attacks were a part of a major data breach and bitcoin scam. The fake tweets made from these blue tick accounts offered to send USD 2,000 for every USD 1,000 sent to a bitcoin address.

Many such incidents like the zoom app controversy, In April 2020, Zoom, a popular video conference app, was in the middle of a controversy. During the coronavirus, Work from home was started worldwide to prevent the spread of the disease, the use of video conferencing applications increased, and Zoom was among the most widely used. In April, there was an attack, Zoom bombing, where malicious people could join private meetings, read conversations, and share screenshots of anything they wanted, especially annoying ones, like adult videos or shocks. There have been many other security concerns in the Zoom app. The company later updated its iOS system to stop sending user data to Facebook. Zoom later improved the security of their Zoom sessions.

 It was due to the lockdown that people were ordering everything online and then Big Basket (an Indian grocery company) leaked personal information for up to 20 million users such as full names, email IDs, password hashes (which may burn OTPs), pin, contact numbers (mobile and phone), full addresses, date of birth, location and IP addresses where users have previously been sold on the dark web for $ 40,000.

These Incidents have been alarming situations for authorities. India is the second-largest hit country of cybercrime. Not only the work from home but also in a general way it is a cause of concern in the world. There has been an influx of fake apps, domain names, and websites that use two realities, firstly, fear in the general public and their quest for information related to the pandemic, and second, companies around the world are turning to ‘work from home’ through the internet.

Phishing is also one of the newly developed cybercrimes. The latest was the one on Nidhi Razdan, a journalist who was offered a position of assistant professor at the Harvard University by a fraudulent mail. According to her, the attack was to get her bank account, personal data, emails, medical records, passport, and devices like computer and phone.

There have many more these types of cybercrime you should be aware of. Online harassment is often related to how you live in the community and if you choose to use a social network such as Facebook or Twitter. Cyberbullying may include threats sent via email, instant messaging or through a social media message/post.

Cyberstalking-Cyberstalks will do their best to monitor the victims’ online activity. This could include injecting a person’s computer with malware that could infect a computer. Cyberstalks is known for continuing to harass potential victims.

 Identity theft scams-Cybercrooks who may have access to your credit card or bank account information may use that information to make purchases on your behalf. Theft of personal information has been a major problem even before the Internet was considered but as you may know, the physical world has made it much easier for criminals to use and steal your identity

Cybercriminals have changed their methods and now targeting people at their homes, which is their office as well. However, cybercriminals who try to obtain company information, customer information, and intellectual property are not the only ones that threaten businesses – employees can also be a weak link in IT security systems. While the ultimate goal of cyberattacks is to steal personal information or access the company’s network in the hope of making money, most begin with the crime of stealing sensitive information. These social engineering style methods are designed to get enough detail to allow bad characters to produce program credentials, or to contain harmful uploads – ransomware, viruses, and remote access trojans.

These malicious packages allow cyber makers to access, remotely, configure systems, and perform Remote Desktop Protocol actions. These are often tightly controlled, but the epidemic has seen a dramatic increase in RDP actions, as a significant increase in telecommunications has led to the rapid construction of additional IT infrastructure. This new infrastructure, designed to enable remote operation, often does not include the level of protection that would otherwise be lacking, including the absence of firearms or ultimate response solutions.

CYBERCRIME LAWS IN INDIA

Many laws are made in India to curb these mishappenings of cybercrime. The first one is

IT (information technology) ACT OF 2000- It is the primary law dealing with cyber crimes and electronic commerce. The Government of India enacted the Information Technology Act, 2000 for such purposes as: “to provide legal recognition for transactions carried out using electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”.

An offence under this act are-

1.Tampering with Computer Source Documents as provided for under the IT Act, 2000 -Section 65 of the IT Act lays down that whoever knowingly or intentionally conceals, destroys, or alters any computer source code used for a computer, computer program, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may extend up to INR 200,000, or with both.

2.Computer-related offences-Earlier, the IT Act under Section 66 defined the term ‘hacking’ and provided a penalty for the same. However, the term ‘hacking’ has now been deleted by the introduction of the IT Amendment Act, 2008. The substituted Section 66 now reads as “If any person, dishonestly or fraudulently does any act referred to in Section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.

3. Punishment for violation of privacy– Section 66E says “Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both

4. Section 72 provides that – Keep as an alternative provision to this Act or any other law of the applicable time, any person, by any power conferred on him or her by this Act, rules or regulation under which he or she acts, information, document or other matter without the consent of the person disclosing the matter to any other person shall be liable to imprisonment for a term not exceeding two years, or a fine not exceeding one lakh rupees or both.

Even IPC covers a part of the damage due to cybercrime. Although these sections may not directly relate to this issue sections like 419 talking about ”cheating by personation’ and provides that any person who cheats by personation shall be punished with imprisonment of either description for a term which may extend to 3 (three) years or with a fine or with both as well as Sections 463, 465 and 468 of IPC dealing with fraud and “fraud with intent to cheat”, may also apply if the information is stolen. Section 468 of the IPC prescribes a forgery for cheating and provides for a penalty of imprisonment for any term of up to 7 (seven) years and a fine.

Conclusion-

But the laws framed in India are not able to stop the rising crime. India’s Cyber Security score is 51.2 points on 100 and has been ranked 19th out of 21 in the National Privacy Test conducted recently by global VPN service provider Nord VPN. The Information Technology Act of 2000 outlines many amendments to repair and cover existing holes. But even after the amendment, the loopholes are still there and the growing number of cyber-criminal cases is proof of this. In the most famous case of Shreya Singhal v. Union of India, Mr. Tushar Mehta, who read the Solicitor General on behalf of the defendant, argued that any matter posted online or made available to network owners is certainly available worldwide or any other media, not limited to any particular limit, unlike other media. So it is clear that this requires a lot of rules. The rising crime rate makes it harder to deal with current legal systems. According to the current scenario, we can see that the proof is easily erased in these cases so the investing authorities should be given more time to investigate the matter, as well as the punishment in the matters, should be increased.

The rise and fall of new technologies have begun to star the use of many cyber cases in recent years. Cybercrime has become a major threat to humanity. The prevention of cybercrime is an important part of the social, cultural, and security sectors in the country. The Government of India enacted IT Act, 2000 to deal with cybercrime. The Act also reviews the IPC, 1860, IEA (Indian Evidence Act), 1872, Banker’s Books Evidence Act 1891, and the Reserve Bank of India Act, 1934. Any part of cybercrime in the world is possible, but it has begun to cross the country’s borders illegally the internet is creating both technical and legal difficulties in investigating and prosecuting these cases. International efforts and cooperation between nations need to take action on cybercrime. With the comfort of work from home comes cyber threat which we all should be aware of.

Author: Saumya Shukla

1. The Information Technology Act, 2000 (Act 21 of 2000)
2. “How big is the Big basket data breach?” ,The Indian Express, Nov. 12, 2020
3. “India Hit By 375 Cyberattacks Daily In 2020, Says Pant” available at inc42.com
4. “Verified accounts on Twitter hacked in massive breach. Netizens have the best memes” available at www.indiatoday.in
5. Yahoo v. Akash Arora (1999) DLT 285
6. http://www.cyberlawsindia.net/internet-crime.html last visited on 18-04-2021

Criminalization of Politics in India: Recent Developments

Elections are the spirit of any democratic state; it is the most basic way to impose the public will.  In India, we follow the Parliamentary form of government therefore; we have general elections all over the nation every five years. Politics is an idea, which works in nexus with the group of people propagating it. This propagating group is called a political party. When these political parties contest for election and give tickets to candidates with a criminal background this is called the criminalization of politics. However, the criminalization of politics has many forms, the most serious and established form is the participation of candidates with a criminal background.

 In India, we advocate free and fair election we have Election Commission, an autonomous body that conducts elections in India. We spend millions of rupees in elections every year as several states have legislative elections at various times. But the reality is far from what is written in the constitution; the Indian election is now not about electing government and voters exercising their rights. Now it is about the quagmire of candidates, hungry for votes and political powers. Buying, threatening voters, booth capturing, bribing them to gain more votes has now become an integral part of the election in India. This has been a problem in the Indian Political System for decades, the nexus between the political parties and criminals must break if we have to have a healthy political and electoral process. It is a deeply rooted problem in the Indian political system which must be addressed as immediately as possible if not this will make the entire electoral procedure futile.

The criminalization of politics started way back, a couple of decades after gaining independence around the 1970s criminals started to tarnish Indian politics. The more winning possibility, influencing and threatening voters to get elected are major advantages why they easily get tickets from political parties. Back when it was started there was no legislation to prevent, nor the awareness in the general population to raise voice against it, because of which there is a drastic upswing in the percentage of candidates with criminal background into our political structure. The candidates with criminal backgrounds were around 24% in the 2004 general election which rose to 43% in the latest 2019 General election[1].

WHAT IS THE CAUSE OF CRIMINALIZATION OF POLITICS?

The political party which is to contest election must have capital and most importantly muscle power to influence people. The candidate with criminal background provides muscle power to the respective political party to strengthen its roots in a particular region.  The influence or fear of a criminal furnishes a strong voter base and ensures victory. The people who oppose are either bough; bribed or eliminated. This is done with power and unlawful means. Influencing the preference of voters with the caste-based reservation system prevailed all over the nation is another complication, people vote to the candidate of their caste irrespective of their criminal background. Ignorance of the criminal background by the general public is an accepted practice. A large section of voters is either bough or fear to raise their voice. The flow of money plays a vital role in the election campaign, as most of the time the money is obtained by illegal and unethical means. Extorting money from local business, blackmailing and harassing general public is how the cycle of money keeps running; almost all political party thrives in the election campaign on black money. The nexus of black money is crucial for election; the candidate who can raise a handsome sum of money is given preference by the party than a candidate who genuinely wants to serve the public. This makes the way easier for both, the party and the candidate as the candidate is self-financed the party won’t have to allocate money to the candidate and can even raise money for the party when the time comes.

  Lack of political understanding in the public is prompting this evil to grow into our electoral system. For a voter to distinguish between a qualified and strong candidate and a deplorable candidate is consequential for an election to successfully conclude. An ignorant voter is dangerous to a democratic nation. With a gigantic population and crore of voters, the Criminalization of politics is a grave and deep-rooted problem in India. With the rising cost of contesting an election, the political parties look for a candidate who is self-financed which most of the time is a candidate with a criminal background. Corruption in the present system assists this; the officials involved are equally responsible for the degradation of Indian politics. A dead person casting a vote, removing the indelible ink to cast vote again in the same election is not an uncommon event in the election process, the camaraderie between the bureaucracy and political party stimulates this wrongdoing in the system

With the total Member of Parliament being 539 in 17th Lok Sabah in the year 2019, 233 candidates have criminal cases against them this is an increase of 44% since 2009[2]. These numbers are a matter of concern for a country that is labeled as the ‘Largest Democracy’. The likelihood of winning for a candidate with a criminal background is considerably higher as compared to a candidate with a clean background. The gravity or heinousness of the crime should also be scrutinize the statistics are even more concerning when the category of dangerous crime is assessed. 159 MPs (around 29%) have registered crime against them in this category, case relating to rape, murder, culpable homicide, attempt to murder. In the year 2004, the percent of MPs with criminal cases elected to the parliament was 24% which rose to 30% in the next election[3].

 The situation of state election is also dismal, candidates with criminal background elected in the state legislature are also high those elected member called MLAs were chosen from each constituency within a state, the highest number comes from Uttar Pradesh where most of the sitting and former MLAs have criminal cases against them, while 141 MLA in the 2017 Legislative Assembly has registered criminal cases against them which is 35% of the total representatives elected. Candidates with serious criminal cases against them are 108, i.e. 27%.[4]

In the recent Bihar election, the candidates with criminal cases made up 70% of the total elected candidate. The fact is no party is ashamed to give tickets to a candidate with criminal background the responsibility lies on the shoulder of the general public to say No!

RECENT JUDGEMENTS AND REPORTS

Specific laws, judgments, and acts have been formed to deal with the issue of criminalization of politics but the ground reality remained unchanged over the years.

The Representation of people acts, 1951 was framed for smooth conduction of parliament election (Lok Sabah and Rajya Sabah) which also deals with the election of the state legislature. Section 8 Representation of people acts, 1951[5] of the act deals with the disqualification of candidates, the Supreme Court has given various judgments to tighten the grip on criminals entering politics. This law was framed to regulate election and to disqualify candidates with criminal cases and if convicted, the candidate cannot contest election for 6 years from the date of his release. Lack of proper implementation and long-pending cases and a low level of convection rates make this law irrelevant and ineffective. The Supreme Court has given series of Landmark judgments regarding the criminalization of politics in India.

Supreme Court in the case of Union of India v. Association for Democratic Reforms[6] held that the voters have the fundamental right to know about the details of the candidate who might get elected and hold public office. Thereafter, the Election commission was directed to ensure that all the contesting candidates submit an affidavit disclosing pending criminal cases against them. The information also includes the status of their case whether they are acquitted/ convicted/ pending. Also, if they were convicted what the time and quantum of punishment awarded. Later, in the case of Peoples Union for Civil Liberties v. Union of India[7], the amendment in 33B of the Representation of peoples act was challenged. The amendment brought by the government nullified the judgment of Union of India v. Association for Democratic Reforms, but the apex court held the amendment unconstitutional. A step further in reforms was taken with the case of Lily Thomas v. Union of India[8] where the division bench held that the member of parliament or member legislative assembly convicted of crimes and awarded a minimum sentence of 2 years will be immediately disqualified from the date of sentencing the court further also struck down the 3 months time period which was given to the lawmakers to appeal against the judgment pronounced. The law commission of India submitted its report on electoral disqualification to the ministry of law and justice the issues reported were disqualification of candidates and filing of a false affidavit. The crux of the report was that the current convection laws are unable to curb the criminalization of politics the rare convection and delay in judgment were the primary reasons. In the Public interest Foundation v. Union of India, the five-judge bench unanimously observed that the court does not have the power to disqualify candidates against whom the charges have been framed and the court respects the division of power. The bench asked the parliament to frame laws regarding the issue to make voters form an informed decision and to prohibit criminals from entering politics. The apex court gives direction until a law is not framed in this matter. The same decision was re-iterated in 2020 in Rambabu Singh Thakur v. Sunil Arora[9] where the court insists on the following of its previous order given in 2018 

The Bihar election held in 2020 was the first election held with the implementation of Supreme Court directives, the candidates have to publicize their criminal record in local and national newspaper along with posting it on the respective social media handles and official website of the party, within 48 hours of getting ticket form the party. The political parties will also have to state the reason for the selection of the particular candidate with criminal background with winnability cannot be the sole reason. With some parties still not obeying the order and doing the same, many parties did publicize the details. Surprisingly, even after the Supreme Court directive, the number of the candidate elected with a criminal background is significantly higher. In phase one of the elections itself, the candidate with a criminal background made up to 31% and with serious charges 24%[10].These stats put a question mark on the type of society we are living in. The Supreme Court has given directives but now it is our responsibility to make our electoral process better and clean. The picture of west Bengal election also reflect the same problem in the 1st phase of election 25% candidate have criminal cases against them and 22% have serious cases filed against them. [11]

CONSEUENCES

When lawmakers become lawbreakers the trust of people in the governance breaks. The rise in criminal candidates encourages the flow of unaccounted black money in the Indian political scenario system. This forms a bad opinion of Indian politics as violence, crime oriented among the younger generation to enter into politics to taste power and influence. The voters develop a feeling of apathy towards the election system. The objective of electing a government is not fulfilled a good governance model and development is still only on paper and in the manifesto of the party and not in reality. The reputation of India is also at stake when it comes to the criminalization of politics. India is now no longer seen as a progressive and a model for other democratic nation, our electoral system needs immediate strategic reforms.

WAY FORWARD

We need more concrete laws to battle this problem; awareness at the ground level is the most fundamental thing which the general public must-have. Their votes will play a decisive role in shaping the politics of the nation. Reform is a continuous process with the present system it is very difficult for us to decriminalize the political system of India. Giving more powers to the election commission of India, auditing the financial asset, and putting a limit on the expenditure during election campaigns. Hate speech and causing unrest should be dealt with an iron fist. All of these combined will help in monitoring and effective enforcement of the Supreme Court’s directive and other rules. The legislature must also bring laws to increase transparency and accountability in the election and remove this deep-rooted problem. Government agencies responsible for the smooth conduction of elections need a mechanism to tackle this. A better funding structure should be proposed in the election for the parties, which should be monitored regularly. A speedy hearing of disputes regarding state legislative and union legislature though the high courts are empowered to deal with these disputes under section 80 of R.P. act, 1951 the conduction of election, the high courts have to pronounce judgments within six months of filing case but these cases take years, even full time of the house expires until the judgment comes.  

The citizen should be themselves equipped with better knowledge and awareness as voters, a proper discharge of their rights and duties is essential for a better political environment, standing up against the thug- culture prevailed in the Indian politics can only be removed when the citizen wants to. The present system of first past the post system should also be reviewed; it can be replaced by two- ballot system under which the candidate is declared elected on majority votes. If no candidate secures 50% of the total votes, the second round of voting takes place where only the top two candidates contest. This process makes it difficult for a candidate with a criminal background to win; the better candidate comes out from this process of election.The executive, the judiciary, and the legislature can only play a limited role the responsibility lies on our shoulders to bring the change.  Since corruption and criminalization are so widespread there are a situation was no desirable candidate is contesting election from a particular area the option of NOTA should be exercised by the voters. Negative or neutral voting can further result in re-polling when there are no eligible candidates.

CONSLUSION

From the analysis above it is quite clear that there has been a steep decline in the Indian Political system over the ears. Money and muscle power, corrupt practices are freely exercised in the election by the political parties. Several measures have been taken by the judiciary and Election commission to keep a check on the criminalization of politics in India but have not made significant progress.  Judgment and honest measures are tackled through legislation and strict laws are broken or bypassed. Right to information can be used to have a check on the candidates, source of income, criminal background, and expenditure. The nexus between the political party and the gangster is what we need to destroy. The lack of political will in the Indian population needs to be addressed and the role of the opposition is decisive here.  The country must stand united against this; we can overcome this only by staying united.

Author: Amey Vikrama Singh Sikawar.

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[1]  Association for Democratic Reform, “ Lok Sabha Election 2019 analysis of criminal background, financial, education, gender and other detail of Winner (2019)

 [2] Association for Democratic Reform, “ Lok Sabha Election 2019 analysis of criminal background, financial, education, gender and other detail of Winner” (2019)

[3] Association for Democratic Reform, “ Lok Sabha Election 2019 analysis of criminal background, financial, education, gender and other detail of Winner” (2019)

[4] Association for Democratic Reform, “Report on Financial and Criminal Cases Details of MLAs and MPs of Uttar Pradesh (2004- 2019)” (2019)

[5] The representation of  the people act, 1951 s.80

[6]  AIR 2001 Delhi 126, 2000 (57) DRJ 82

[7] AIR 2003 SC 2363

[8]  AIR 2013 SC2662

[9]  AIR 2020 SC952

[10] Association for democratic reforms,  “ Bihar election 2020”  (November , 2020)

[11] Association for democratic reform , “ West Bengal 2021”  (March 2021)

CRITICAL SCRUTINY OF ‘NO WORK NO PAY’ DOCTRINE IN LABOUR LAW

Reading time : 10 minutes

Overview

The employer-employee relationship depends on the way that a laborer consents to give her work/labour to the employer as a byproduct of which the employer consents to repay her with cash/benefits/different contemplations. Such cash/advantage/other thought is alluded to as Wages. The Industrial Disputes Act stipulates that wages means any remuneration paid to the workman by the employer, for the work she performs for the employer.^[1]It includes benefits and allowances such as dearness allowance or the value of any housing or the supply of light, water, electricity etc. It does not, however, include bonuses, gratuity or any contribution to the pension or provident fund.^[2]

The rule of ‘No Work No Compensation’ is cherished in the connection between an employer and employee. Where an employee refuses to work as a result of a strike or absence from work or various other reasons, the employer has no obligation to pay any wages.^[3]

The rule of ‘No Work No Compensation’ is revered in the connection between an employer and employee.^[4] Absence from duty means the absence of an employed person from the place or places at which she is required to work as per the terms of employment for the whole or any part of the period during which she is supposed to work.^[5]Such deduction of wage, however, must in no instance be disproportionate to the period of absence from work.^[6]

Absence from work is not limited to the physical presence of the employee in the place of work. A refusal to work in pursuance of a stay in strike or for any other cause which is not reasonable would make the employee who refuses liable for deduction of a proportional amount from her wages.^[7] The guideline of ‘no work no compensation’ is of most extreme pertinence as to the circumstance of strike. In this paper, the researcher  plans to investigate the different sorts of strikes and the pertinence of the previously mentioned guideline to such circumstances. Advancement of the doctrine.

Right to strike

The presence of a right to strike has involved an extraordinary question. Huge jurisprudence has been made on the issue coming full circle with the risky judgment in the T.K. Rangarajan case.⁸

Statutory Right

Before digging into the judicial decisions on the issue, it is relevant to comprehend the statutory arrangements that are included. The Announcement of Articles and Reasons of the Mechanical Debates Act itself gives us a thought of the aim of the designers with respect to strike. The announcement peruses:

“The power to refer disputes to Industrial Tribunals and enforce their awards is an essential corollary to the obligation that lies on the Government to secure conclusive determination of the disputes with a view to redressing the legitimate grievances of the parties thereto, such obligation arising from the imposition of restraints on the rights of strike and lock-out, which must remain inviolate, except where considerations of public interest override such right”.^[8]

Right to strike as a method of review of authentic complaints of the laborers against the employers is perceived under the plan of the ID Demonstration. Besides, s.24 separated among legitimate and unlawful strikes (those which don’t meet the arrangements set down in the ID Demonstration.) Sections 22,23 and 24 of the Demonstration suggest a right to strike for laborers and the associative right of lockout for the employer. This was explained on by Equity Gajendragadkar who said the weapon of strike is accessible to the laborer as is the weapon of the lockout to the employer.

Other than the ID Demonstration, the Worker’s organizations Demonstration likewise perceives the right to strike. Sections 18 (xiii) and 19 (xiv) of the Act confer immunity upon trade unions on strike from civil liability.

Fundamental and Legal Right

The working class has earned the right to strike after a lengthy and arduous struggle.^[9] Strikes are integral to the process of bargaining in an industry.^[10]A worker has few other means of defending her wage other than seeking an increase in money wage. If a capitalist does not grant the requested increase, she can be brought to the negotiating table by workers going on strike. The same applies to government servants as well but it is not merely the authorities but also the general public which suffers a loss. This places considerable pressure on the relevant to authority to negotiate.^[11]

The right to strike shares deep links with the practice of collective bargaining.^[12]  The Supreme Court has held that the ability of trade unions to bargain with the employers will be substantially affected if they are unable to demonstrate by adopting methods such as strike, go-slow or sit down strike.^[13]

As far as the right to strike being a fundamental right, the Supreme Court has held that even a liberal interpretation of Article 19(1)(c) cannot lead to the conclusion that it is a fundamental right.^[14]

These issues were finally decided by the Supreme Court in its decision in the T.K Rangarajan Case.^[15]The Court dealt with the contention, raised in the All India Bank Employees’ Association case^[16],that the freedom to form an association under Article 19(1)(c) of the Constitution carried with it the right to strike by saying that interpreting the constitution in such a manner would lead to a never ending circle where rights concomitant to concomitant rights would also have to recognized.

While it is acceptable that the right to strike cannot be seen as a fundamental right, the manner in which the Court dealt with the issue of there being a legal right to strike was shocking. The Court categorically held that Government Employees have no “legal, moral or equitable right” to go on strike. This decision seems to go against both statutory provisions as well as previously decided cases. Furthermore, the bench in this case was smaller than the 3 Judge Bench in the Gujarat Steel Tubes case and could not overrule that decision.

Strike and ‘no work no pay’

The remuneration or salary earned by a worker depends on the performance of work in accordance with the contract of employment. No part of the remuneration can be claimed unless the service is completely performed in a situation where the contract provides for payment on the completion of a period of service or a piece of work. The employer may deduct the salary of the entire day if the worker absents even for a period of a few hours.^[17]

In the event that the employee absents from work without admirable motivation, she submits a break of the terms of agreement. The legitimate position is that an employee relinquishes compensation when she doesn’t release her obligation as in the circumstance of a strike.^[18]

A strike expects laborers to stop accomplishing work or work in a moderate way to decrease creation. The inquiry that will be addressed is whether the wages of laborers can be deducted for the periods when they were on strike. It is relevant in this setting to comprehend that strikes might be lawful or unlawful and defended or unjustified.^[19]

The subject of whether the wages of laborers could be deducted for the time of strike originally came up in the Churakulam Tea Estate^[20] case. The case included a contest with respect to non-installment of reward for an extensive timeframe. After the disappointment of assuagement procedures, almost 27 laborers struck work. The administration from that point declined to pay wages for the time of the strike. The issue was alluded to the Industrial Tribunal which held that in the conditions of the strike was both lawful and defended and guided the administration to pay wages for the day of the strike.

The judgement delivered in the Crompton Greaves^[21]case. The Calcutta branch of Crompton Greaves was planning on laying off a considerable number of workers as a result of economic recession. In order to negotiate a middle path, a few meetings were held between both the parties. However, the differences remained and the Management chose to retrench 93 workers. The workers saw this as a serious step and resorted to strike after giving required notice to the Management and Labour Commissioner.^[22]

The Court stated the well settled principle of law that in order to be entitled to wages for the period of strike, the strike must be both legal and justified and that a strike cannot be said to be unjustified unless the reasons for it are unreasonable or perverse.^[23] The Court in the long run concurred with the choice of the Tribunal in the present case and allowed wages to the laborers for an impressive segment of the time of the strike. Both these cases mirror the position that up to a strike is both legitimate and advocated, the guideline of no work no compensation can’t be applied and laborers are qualified for wages for the previously mentioned period.

However, in the T.S. Kelawala^[24] case, the Supreme Court observed that in a situation where the contract, standing orders or service rules are silent, the management can deduct wages for the period of absence when such absence is not disputed and is the result of a concerted action on part of the workers.^[25]

Also read: VVIP chopper scam: Legal angle

Subsequently, while holding that laborers apparently reserve an option to strike, the Court expressed that no wages could be paid for the time of the strike regardless of whether the strike was lawful or illicit. This declaration made a contention with the two choice talked about already.

On the issue of a workman’s privilege to wages during a strike, paying little heed to its lawfulness, the Preeminent Court was confronted with a contention in itself – Churakulam and Crompton Greaves underlined on the legitimateness of the strike by saying that just during lawful and legitimized strikes will a worker be qualified for wages while the instance of Kelawala opined that a laborer isn’t qualified for wages during a strike independent of it being lawful or illicit.

To comprehend this division, the Constitution Seat of the SC took up the instance of Umesh Nayak . Here, the Seat separated the different sides to explicitly bring up that Kelawala never tended to the issue of privilege to wages during an advocated strike since it didn’t address the issue of whether the strike being referred to (for the situation) was defended or not. It further separated the different sides by worrying on how the two instances of Chitrakulam and Crompton Greaves were not refered to in Kelawala which prompts the end that no clear clash emerges between them – and consequently, these two cases shouldn’t\’t have been considered in Kelwala.

It explained the substitute the two choices of Churakulam and Greaves – that regardless of whether the strike is legitimate however is unjustified, the laborer would not be qualified for her wages; and if the strike is unlawful yet supported, she would in any case not be entitled subsequently worrying on the requirement for a lawful and advocated strike.

In realities relating to Umesh Nayak, the SC followed this equivalent line of thinking – it requested a legitimate and advocated strike for the laborer to interest for her wages (during the time of the strike). On the meaningful inquiry of whether a strike is lawful or supported, the Preeminent Court arranged it to be inquiries of realities that must be chosen by the modern adjudicator dependent on the proof she gets. However, the Court gave its supposition on the best way to distinguish legitimateness and reasonability of a strike – a strike is legal if it is carried out in accordance with the Industrial Disputes Act and a strike is justified based on examining factors which pushed for the strike such as the nature of demands sought, its causes and urgency, conditions of service, reasons for avoiding the mechanisms under the Act et al.

Conclusions and Recommendations

All in all it must be said that the rights of laborers have not been maintained by the courts as they ought to have.

Initially, the right to strike is an all around perceived right. Article 8 of the Global Agreement on Financial Social and Social Rights (ICESCR) perceives a right to strike. India being an individual from the Pledge will undoubtedly give such a right to its laborers. While statutory arrangements, for example, those contained in the ID Demonstration or the Worker’s guilds Demonstration give some acknowledgment to the right, ongoing judicial decision have a struck a sledge blow. The previous decisions, for example, Gujarat Steels^[26] were in consonance with the existence of the right. However, the Supreme Court’s decision in T.K. Rangarajan^[27] has virtually negated the existence of the right for employees. In this way, as for the right to strike, it is suggested that the choice in the Rangarajan case be thought of. An enactment or revision to existing Acts to explicitly perceive the right to strike would go far in securing the interests of laborers. Given that the level of influence is supportive of the Administration, it is important to ensure weapons, for example, a strike which the laborer may use to have her requests heard and followed up on.

Concerning the rule of no work no compensation, it is presented that the judgment in the T.S. Kelawala^[28] is erroneous in so far as it does not consider the decisions in Crompton Greaves^[29] and Churakulam Tea Estate^[30]. Laborers must be qualified for wages for strikes which are defended and legitimate. Legitimateness includes following the method set down in different arrangements while support requires the nonattendance of unreasonable reasons. Both must be learned on a case to case premise. Consequently, the choice of the Incomparable Court in the Syndicate Bank^[31]case is accurate and embraces the field as far as the principle of “no work no pay” in thought.

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[1] s. 2(rr), Industrial Disputes Act, 1947.

[2] Ibid.

[3] C. Krishnamurthi, Dies Non (no Work No Pay) in Banking Industry, Serial Publications, 01 Jan 2009.

[4] s. 7(2)(b), Payment of Wages Act, 1936.

[5] s. 9(1), Payment of Wages Act, 1936.

[6] s. 9(2), Payment of Wages Act, 1936.

[7] Explanation to s. 9, Payment of Wages Act, 1936

[8] Statement of Objects and Reasons, Industrial Disputes Act, 1947.

[9] Bank of India v. T.S. Kelawala, 1990 (4) SCC 744.

[10] Supra, note 14.

[11] R. J. Kochar. Right to Strike: Has Supreme Court Moved Backward? Economic and Political Weekly 25.29 (1990): 1564-566.

[12] Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896

[13] B.R. Singh v. Union of India,[1990] Lab I.C. 389 (396) (S.C.)

[14] Kameshwar Prasad v. State of Bihar, (1962) Supp 3 SCR 369

[15] Supra, note 11.

[16] All India Bank Employees ‘Association v. National Industrial Tribunal, AIR 1962 SC 171.

[17] Dharam Singh Rajput v. Bank of India, [1979]12 LIC 1079.

[18] Vikram Thamskar v. Steel Authority of India. 1982 II LLN 319 (M.P.)

[19] Panyam Cements & Minerals Industries v. Deccan Wire Employees Association, 1998 II CLR 923 (Karn.H.C.).

[20] Management of Churakulam Tea Estate v. Its Workmen and Anr, AIR 1969 SC 998

[21] Crompton Greaves Ltd. v. Its Workmen, AIR 1978 SC 1489.

[22] Id, 2.

[23] Id, 3.

[24] Supra, note 17.

[25] Id, 11.

[26] Supra, note 20.

[27] Supra, note 11.

[28] Supra, note 17.

[29] Supra, note 33.

[30] Supra, note 28.

[31] Supra, note 39.

Author: Vaishanavi Krupakaran

Editor: Kanishka Vaish, Senior Editor, LexLife India.

Existential Moment for The high-Street, Traditional Shopper and Retailer

Reading time : 6 minutes

According  to a survey about the impact of coronavirus  (covid19)  on Indians  between March  and May 2020, retail stores consistently seemed more reliable during the survey period for consumer  to able to  buy  essential  goods.

The coronavirus  pandemic  represent  an “ existential threat”  to the  entire  retail sector  and there will  be  “fundamental changes” to longer – term business model. At the best times, many retailers were struggling to gain any footing with customer but now it is even more difficult to survive

SWISS CONSUMER  want to go shopping  again ,but  uncertainty remains. Many turned to online shopping because of COVID 19. The time it seems unlikely that high street shops face an existential threat. If Shopping  in future is no longer  an easy , pleasant and safe experience for consumer. When lockdowns will unwind is still unclear, but it seems certain the swiss   retail  sector faces a painful loss revenue.

The COVID-19  Outbreak has completely  changed   the face of retail  in India  and almost every country  worldwide. Until early to mid-may, most goods, such as furniture, clothes and books, were  either completely unavailable or available only online.IN survey  shows that the COVID -19 crisis is likely to trigger a decline in “traditional shoppers”- that  is, shoppers in brick –and-mortar stores – across all categories of goods. Almost two-third of respondent report that before the pandemic.

FOR EXAMPLE:  They Preferred to purchase  furniture and furnishing in shops, but only 60% say they will continue to do so after the crisis, a decrease of five percentage points .

Many Consumers delaying purchases:

 The survey also shows that since the  COVID -19 outbreak, SWISS consumers  have purchased mainly groceries, with other consumer goods less of priority. some consumer will only purchase  certain item again once the shops have responded.

The shopping experience versus health protection:

Traditionally, many  people enjoy the  atmosphere  and shopping experience of the high street, strolling along, window shopping, tempted by the sheer range of goods and distraction in shopping malls. As mention above, initial surveys and experiences from India and another country suggest that customers are now very purposefully buying what  they  bought in the past but in larger quantities.

Also read: Explained: Privacy Policy of WhatsApp

If Queueing, physical distancing and the need to wear a face mask  in public spoil the shopping  experience- and once online retailer get delivery time back to normal then traditional shoppers may well  switch to online  shopping in large number. Retailers are therefore intending to take advantage  of the almost two months in which  shop  have been closed not only  to get their shop in order, but also to creatively introduce new safety  measures. both retailers and brands  need to do more to bring  the online and offline world together  and find new ways to meet evolving  customer needs fast.

Impact of COVID-19 on Indian Retailers:

Indian Retail Industry has more than 15 million retailers, both small and big, traditional and modern trade . Retail employs 40-50 million Indians directly of which Modern trade employs more than 6 million Indians equaling to almost 12% of the total Retail consumption of the country.

 Following were the key highlights of the survey results:

(1) Impact of non-food retailers –Most than 95% of non –food retailers have their shops closed in the lockdown and are looking at practically no revenues till the lockdown is in place. In the next 6 months, NON-FOOD RETAILERS EXPECT TO EARN 40% as compared to last year’s revenues.

(2)Impact on food retailers- most  of food retailers also sell non -essential goods in the same and /or different stores. The non –food business in the stores has come to a standstill in the lockdown leading to revenue loss.

(3) Overall business Outlook – 70% of retailers  expect business recovery  to happen in more than 6 months, 20% expect it to take more than a year 10% of Medium and Large Retailers expect  to earn any profits  till Aug’ 20, 26% of Small retailers expect to earn profits in the same time period.

(4) Manpower  rationalization – Small Retailers are expecting  to lay-off 30% of their manpower going  forward, this number falls to 12% for Medium Retailers and 5% for Large  Retailers.

All this could change  Rapidly , However . Our survey shows 19% of swiss national  expect to lose their job due to the COVID-19 crisis.

Author: Anushka Kumari

Editor: Kanishka Vaish, Senior Editor, LexLife India.

Also read: EXPLAINED: DOCTRINE OF ELECTION UNDER PROPERTY LAW

EXPLAINED: DOCTRINE OF ELECTION UNDER PROPERTY LAW

Reading time : 10 minutes

Introduction Vis-à-Vis Origin Of Doctrine Of Election

In general connotation, the term election refers to the act of picking up or choosing. However, in the context of Transfer of Property Act (TOPA)1882, the Doctrine of Election is envisaged under Section 35 of the Act & also under Sections 180 to 190 of the Indian Succession Act, 1925, referring to making a choice between two alternative or erratic rights. If by the dint of any instrument two rights are bestowed on an individual in a manner that the person has to only pick one of the conferred rights, in such a scenario the Doctrine of Election is beseeched. In C. Beepathumma & Ors. v. V.S. Kadambolithaya & Ors., the court stated that a person can’t take under & against the same instrument. This dogma is considered to be one of the imperative portions of TOPA, 1882 aiming to settle the dispute amid people. This proposition was procured from the principle of equity. According to this principle, the person can’t hold fast to all the transactional benefits & therefore, he can’t hold on to the property & still draw the benefits. The person has to choose or elect either for or against such an instrument. This dogma works on the general legal norm that needs the receiver to choose if the beneficiary desires to own someone else’s property & choose whether to preserve the property or receive his intents.

Legal Principle Validating The Doctrine Of Election

The legal principle fundamental to the instant doctrine is Allegans contraria non-est audiendus which means he is not to be heard who claims things antithetical to each-other. This principle was determined in Codrington v. Lindsay that a person may not approbate & reprobate a species of estoppel has risen which appears to be transitional between estoppel by a matter of record & estoppel in pais. The two premises expressed by the principle that a person may not approbate & reprobate are:

1. The person in question, having a choice between two lines of conduct, is to be treated as having made an election from which he can’t shirk, &
2. In general, the person will not be regarded to be elected unless he has derived an advantage under or arising out of the line of conduct which he has been primarily followed by him & with which his following conduct is varying.

Further, it was deliberated & elucidated in one of the momentous case of Cooper  v. Cooper, stated that the equity principle based Doctrine of Election is applicable to every class of instrument whether deed or will & to every type of movable or immovable property. It was further stated that it is the duty of the beneficiary under the will or other instrument to proffer complete effect to the instrument under which the person draws the benefit & if it is found that the instrument professes to deal with something which was beyond the benefactor’s or settlor’s power to relinquish, but to which effect can be provided by the concordance of the beneficiary under the same instrument, the law will impose the responsibility on the beneficiary of carrying the instrument into full & complete force & effect.

The Doctrine of Election in the words of Maitland, He who receives a benefit under a deed/will or another instrument is obligated to; (a.) espouse the complete contents of that instruments; (b.) comply to all the provisions of such instrument; & (c.) relinquish all rights that are incompatible with the instrument.

Also read : ANALYSIS: RIGHTS AND LIABILITIES OF A MORTGAGOR

Applicability Of Doctrine Of Election

This doctrine is applicable to both the Hindu & Muslim law & also to both the movable & immovable property. It is known that this dogma is ground on the equity principle that where a person coaxes another to act in a way to his preconception & draws any kind of benefit from such an action then the person can’t reverse & allege that he wasn’t accountable to perform his part as it was found to be void. This doctrine is also applicable to the cases where a vendor/transferor of property attempts to take benefit of his own misdeed & also to the cases of gift/will. However, the doctrine isn’t usually applicable to the cases pleading legal remedy. In Shanmugam Pillai & Ors. v. K. Shanmugam Pillai & Ors. it was noted that, this equitable principle of election doesn’t necessitate any ratification. Basically, the doctrine is applicable to the transfer property which the person has no right to transfer. 

Therefore, the instant doctrine according to Section 35 of the TOPA, 1882 becomes necessary & applicable when the person acknowledges to transfer the property he isn’t entitled to hold on to. In the similar transaction, the person is ought to elect either to receive such transfer or not, in case he doesn’t take the benefits conferred, the bestowed benefits must be abandoned & reverted back to the transferor as if not given.

Nevertheless, when the conferred benefit is transferred back to the transferor, he must make certain good to the transferee, at best what can be done is, where the transfer is voluntarily done & the transferor had died or had become incompetent of carrying out a new transfer & where such a transfer is for consideration.

Prerequisites To The Application Of Doctrine Of Election

The imperative requisites that are to be fulfilled prior to beseeching the Doctrine of Election has been identified in Mst. Dhanpatti v. Devi Prasad & Ors.

• Ownership Interest On The Property

Unquestionably, the property owner ought to have proprietary interest in the property. The transferor should have acknowledged to transfer property not his own.The person can’t be asked to make an election unless he holds on to a proprietary interest which are relinquished in disparagement of rights of the person. The transfer mustn’t be made by the property owner of the property which he intends to transfer. Certainly, the transferor is ought to transfer the other owner’s property to a third person. Thusly, it is to be noted that the election can’t be made in case of the two transfers, (i) transfer of owner’s property is made by the transferor to the transferee, basically to whom an interest is being provided via the transfer; (ii) transferor fails to bestow any benefit on the property owner through the similar transaction to the original property owner.

• Part Of The Similar Transaction

This is another fundamental condition for invoking the Doctrine of Election. The bestowment of benefit on the property owner should be made by the similar transaction by which he transfers the property over which he has no entitlement to transfer. Notably, both the benefit conferred & the transfer are the part of the similar transaction. They are regarded to be part of the similar transaction if they are intertwined & inexplicable, that is to say that, there is no election if the transfer claimed & benefit bestowed on both are discrete transactions. Nonetheless, it isn’t obligatory that both of them must be stated in the similar instrument since it is conceivable that both are executed with less than two distinct instruments.

In Ramayya & Anr. v. Mahalakshmi, the court stated that a person can’t be omitted from the Doctrine of Election under the will for contesting the previous gift if isn’t the issue of the will whatsoever. Moreover, it is instated in Ammalu Achi v. Ponnammal Achi & Ors., it is to be taken note of that diverse nature of two properties isn’t an obstruction to election by the owner.

• Intention Of The Transferor

For the purpose of beseeching the Doctrine of Election, it is imperative to ensure the clear & certain intention of the transferor regarding parting with the property which isn’t owned by him. Since, antecedent negotiations aren’t admissible & therefore the transferor’s intention should be apparently clear. 

• Deriving Indirect Benefit

The property owner shouldn’t be the beneficiary directly under a transaction, but directly diverting a benefit under it, needn’t elect. In case, when benefit is provided to a person in a different capacity then the question of election doesn’t arise. The term owner should be taken cognizance of as it has quite a broad scope for construal & includes a person having both a contingent & a vested interest. Even the person having a far-flung interest falls within the purview of the interpretation of the term owner regarding section 35 of TOPA, 1882. Note that, it is always the property owner who has to be put to an election & hence he is given certain benefit as recompence instead of his property ownership. Moreover, the direct benefit should be deliberated upon the property owner & not indirectly. Taking heed of, election envisaged under the Indian Succession Act (Sec 180 to 190), in Valliammai Achi v. Nagappa Chettiar & Ors., the court ruled that the coparcener can’t be said to draw any benefit under the will & wasn’t put to an election.

• Variance In Capacity

When the benefit is provided to a person in totally discrete capacity, the question of election doesn’t arise. An individual in one capacity can use a benefit whilst can disagree or repudiate that benefit in another capacity. It is likely to enable two roles of an individual where he can for instance, admit bequest for an estate whereas in his personal capacity, he could hold the property.

Also read: Explained: Freedom of expression in India

Exceptions To The Doctrine Of Election

This doctrine has certain exceptions to it. The exceptions are as follows:

• Where a specific benefit is expressed to be bestowed on the property owner, possessed by the transferor to transfer & such benefit is instead of that property, if such owner professes the property, he isn’t entitled to abandon any other benefit that is accomplished by him via the similar transaction.
• The acceptance of the benefit by the original property owner will be regarded to be an election by him to affirm the transfer, if he is aware of his responsibilities & obligations & of the conditions that may have an effect on a reasonable man making an election.
• This knowledge of the conditions could be presumed if the beneficiary enjoys it for a period of more than 2 years without doing any act to express disagreement.
• The transferor would ask him to elect his choice, if the original owner doesn’t elect his option within 1 year of the transfer of property. Even after the reasonable time, if he still doesn’t elect, the original owner shall be assumed to have elected the authentication of the property transfer as his choice.
• In connection with some sought of disability or minor, the election period must be deferred till the individual becomes competent or reaches majority respectively, until the minor has to be represented by a guardian.

Modes Of Election

For election, there are two approaches to it. The election by the owner can either be direct or indirect. Direct election is merely via impartation about the elected choice or possibility. Nevertheless, indirect election is about receiving the benefit by the original owner. However, it is contingent upon two circumstances:

1. He has to be mindful of his responsibility to elect, &
2. There necessarily should be proof of knowledge of conditions which would have an impact on the decision of a prudent man in making an election.

Such an election would result in an implication that the owner has chosen in the support of the transaction. In the trailing situations, it is presupposed that the owner has agreed to the transaction,

1. Where the property owner on whom such a benefit is conferred has sustained the enjoyment of such a benefit for a period no less than 2 years without any disagreement or repudiation to such transaction. It is supposed that since the beneficiary has enjoyed the benefit for 2 years then he has relinquished from the inquiry.
2. Where the property owner or the transferee acts/uses the benefit bestowed on him or the property gifted to him in a way that it becomes inconceivable to position back the interested parties or reinstate it to the original owner in the similar condition as prior to the conferment of such property or benefit.

Momentous Case Laws Advocating The Doctrine Of Election

There are multiple cases in which Doctrine of Election is invoked & applied. As mentioned above the significant cases of C. Beepathumma & Ors. v. V.S. Kadambolithaya & Ors., Codrington v. Lindsay,  Cooper  v. Cooper, etc., some of the other cases that have beseeched the instant doctrine are;

In Dr. Aloys Wobben v. Shri Yogesh Mehra & Ors., the court stated that, the doctrine of election is a division of rule of estoppel,  assuming a person may be excluded by his acts/conduct/silence when it is his obligation to speak, from asserting a right which he otherwise would have had. The doctrine of election assumes that when two remedies are available for the same relief, the distressed party is vested with the option to elect either of them but can’t elect both. However, there are some exceptions to the instant doctrine.

In Baishakhu Ram Binjhavar vs South Eastern Coaldields Ltd., the court stated that, a person isn’t entitled to approbate & reprobate at the same time. By the virtue of doctrine of election, no person can receive & repudiate the similar instrument. This dogma isn’t restricted to instruments. At one time, the person can’t say that the transaction is licit & hence attain certain benefit, to which he can only be eligible because it’s lawful & then refuted the claim asserting that the transaction is illicit in order to derive certain benefit. Consequently, no approbating & reprobating the transaction at the same time. This shows that doctrine of election is based on another equitable principle of Estoppel.

Conclusion

One of the fundamental equitable principles, Doctrine of Election is envisaged under Section 35 of TOPA, 1882. The Article tries to approach & understand numerous gradations involved in the doctrine with the aid of several important case laws, the profound & special accentuation has been put on giving a lucid & certain clarity to the imperative conditions for the application of the doctrine. The underpinning of the doctrine of election is that the person deriving a benefit under an instrument is ought to bear the burden too. To put it simply, a person can’t take under & against one & the similar instrument. Several other facets like proprietary interest, deriving indirect benefit, transferor’s intention, etc. have been deliberated & elucidated for the augmented & better understanding over the notion of Doctrine of Election.

Author : Vaidehi Gupta, a third-year student at Tamil Nadu National Law University, Tiruchirappalli.

Editor: Kanishka Vaish, Editor, LexLife India.

Also read: Code of Civil Procedure, 1908: Place of Suing

Analysis: Trademark Infringement in Naming Products in Light of Divergent Precedents

Reading Time: 6-8 minutes

By: Tamanna Gupta, Student, RGNUL Punjab.

Introduction

Recently, the tussle between two leading conglomerates, Emami Ltd & Hindustan Unilever Ltd. (HUL) hit the headlines. In Hindustan Unilever Limited v Emami Limited (2020), Both the companies contended that the trademark of the phrase “Glow & Handsome” belonged to their respective organization. The row over the trademark began when HUL rebranded its skin lightening products in light of anti-racism protests. HUL removed the word “fair” from its skin lightening creams, replacing it with the word “glow”, thus rebranding the products as “Glow & Lovely” & “Glow & Handsome”. While HUL claims that it applied for the trademarks way back in September 2018, Emami claimed ownership of the trademark. However, the court denied relief to Emami stating that ‘prima facie’ it could be discerned that HUL applied for the trademark first, thus it has a right over using the phraseology for marketing, etc.

Several claims regarding Trademark Infringement under Section 29 of the Trademarks Act, 1999 have reached the court in recent times, which has led to an ambiguity in the criteria for deciding claims involving trademark infringement & deceptive similarity. While several tests have been laid down both nationally & internationally, the haphazard approach of the court in deciding the rights of the prevailing party with respect to use of trademark has led to complications, leaving the parties in a lurch as to the proper recourse. This article analyzes the divergent precedents laid down by the courts, further suggesting compliance with international precedents in order to present a unified stance in cases involving trademark infringement.

Laws Governing Trademark Infringement

In the Indian Context, the Trademarks Act, 1999 governs the disputes arising due to claims over trademark infringement. Section 2(h) of the Trademarks Act, 1999 defines “deceptively similar”, stating that a particular trademark shall be deemed to be deceptively similar in nature to another if there is a close resemblance between the two that is likely to deceive consumers or cause confusion amongst the consumers regarding the two. Furthermore, Section 29 of the Trademarks Act, 1999, under Clause (2) lays down the requirements for “Infringement of Registered Trademark”, stating under Section 29(2)(b) that similarity to another registered trademark is a ground for infringement. 

The Indian Trademark law falls in line with the acts governing common law countries, as can be ascertained from the provision regarding trademark infringement laid down under Section 10(2)(b) of the Trademarks Act, 1994 of the United Kingdom, that states that “similarity” is a ground for trademark infringement. In Australia, The Trademarks Act, 1995defines “deceptively similar” under Section 10 of the act, the definition in consonance with the Indian act. Despite such a watertight compartmentalized definition in the Indian Context, courts find themselves at sea when deciding claims regarding trademark infringement, due to varying precedents in cases involving deceptively similar trademarks & trademark infringement.

Conflicting Precedents & The Paradox of “Deceptively Similar”

When it comes to trademark infringement cases that are resolved by the courts, the court mainly has to deal with two categories of cases-

1. Cases wherein both the goods/services/products have a similar/identical name but both conflicting companies cater to different consumer base.
2. Cases wherein both the goods/services/products have a similar/identical name and the companies also work in the same line of business/ have the same consumer base.

In cases involving “deceptively similar claims”, but with companies working in different lines of business, or serving a different consumer base, the courts have laid down a pretty uniform interpretation. In the case of AMF Inc. v Sleekcraft Boats (1979), the plaintiff, involved in sale of boats meant for recreation, owned the trademark “Slickcraft”, while the defendant, dealing with sales of high speed performance boats, used the mark “Sleekcraft” for commercial purposes. While the court acceded to the fact that the name of the products sounded similar, the court stated that the two types of boats served substantially different markets, thus taking this factor into consideration, before ultimately deciding against the respondents. Thus, the jurisprudence regarding whether the businesses serve the same consumer base also came into play, which led to easy disposal of cases wherein the market was completely divergent from one another. However, most claims involving trademark infringement involve companies serving the same clientele, which leads to the question of which party should be given precedence.

In cases involving a similar/identical name and companies working in the same line of business, the courts have laid down various precedents. In the case of M/S Lakme Ltd. v M/S Subhash Trading (1996), involving an infringement claim by petitioner company “Lakme”, a cosmetic giant, against the respondent for using the mark “LikeMe”, and selling cosmetic products, the court stated that both the marks were “separate marks”, and do not cause confusion, despite the fact that both catered to the same target consumer base. Similar ratios were stated in the case of SM Dyechem Ltd. v Cadbury (India) Ltd. (2000) & M/S Allied Blenders & Distillers Pvt. Ltd. v Govind Yadav & Anr., wherein arguments regarding the fact that similar pricing, packaging & even the name of the product was likely to cause confusion amongst the “same consumer base”, were dismissed by the court. 

However, the court laid down a contrasting decision in the case of Cadila Health Care Ltd v Cadila Pharmaceutical Ltd (2001), wherein the plaintiff marketed medicines by the name of “Falcigo”, while the defendant sold medicines under the name “Falcitab”. Taking note of the fact that both the drugs were used to cure the same disease, the court held the marks to be phonetically & deceptively similar. The court also stated that due to the diversified population of the country, and factor such as illiteracy, confusion regarding the said products is likely to arise amongst the masses, thus holding them to be “deceptively similar”.

Haphazard Application of “Test of Likelihood of Confusion”

The test of “likelihood of confusion”, literally means analyzing both the trademarks, to find out whether any likelihood of confusion between the consumers is possible, which might lead to a consumer mistaking one product as the other and vice versa. While the term “likelihood of confusion” is not defined under the Trademarks Act 1999, several courts have laid down jurisprudential principles as to the components of the test. In the case of Frisch Rests Inc. v Elby’s Big Boy (1982), the court laid down several factors that could lead to an inference regarding the likelihood of confusion. The court stated that factors such as relatedness of goods or services marketed, likelihood of expansion of product line, and marketing channels used have to be taken into consideration, in order to decide claims involving trademark infringement. 

However, Indian Courts in most cases has not taken the aspect of “similarity of business” into consideration, rather relying solely on factors such as the appearance, spelling and phonetics of the trademarks in question. It can be inferred that the Indian jurisprudence & precedents are restricted to the trademark in question, completely disregarding external yet important factors such as consumer base, marketing & expansion of product lines. However, with the rise of claims involving trademark infringement, the direction in which Indian Courts proceed is yet to be ascertained.

Concluding Remarks

With the rise of disputes involving Trademark Infringement in the Indian Context, it is imperative that Indian Courts should also expand its horizons and expand factors taken into consideration while applying the “test of likelihood”, in cases involving trademark infringement. While the Indian jurisprudence in this context is yet to evolve, the Indian courts can also give wide berth with regards to inclusion of factors in applying the “test of likelihood” in resolving claims involving trademark infringement & deceptive similarity of trademarks. 

By: Tamanna Gupta, Student, RGNUL Punjab.

Quantum Leap: Analysing the Transition from Traditional Institutional Arbitration to Online Dispute Resolution due to the COVID-19 outbreak

By-Tamanna Gupta, Student, Rajiv Gandhi National University of Law, Punjab.

Reading Time: 6-8 minutes

Introduction 

The onset of the COVID-19 (Coronavirus Disease) pandemic, which has disrupted economies worldwide, led to severe financial strain, and has led to the imposition of lockdowns worldwide, has left no domain of life unscathed. The Arbitration community has also faced several challenges due to the pandemic. The pandemic has forced several arbitral institutions to alter long-standing modes of functioning, shifting to virtual platforms to perform functions that were traditionally performed at the seat of the dispute concerned. While ad-hoc arbitration proceedings have witnessed considerable changes in lieu of the pandemic, a dramatic transition in institutional arbitration proceedings has been observed due to the pandemic.

A United Front: Joint Statement by International Arbitral Institutions 

In a statement issued by 13 major International Institutional Dispute Resolution Centers, including signatories such as International Court of Arbitration (ICC), Singapore International Arbitration Centre (SIAC), Hong Kong International Arbitration Centre (HKIAC), amongst others, major concerns raised by stakeholder parties & tribunals affiliated to or dealing with the institutes were addressed. The arbitral institutions jointly proclaimed their aim to support the continuation of stability and foreseeability in arbitration proceedings, by way of several measures, including speedier disposal of pending cases, without compromising on the rights of the parties to be heard in a fair and reasonable manner.

The Legality of Online Disputes Resolution

While it can be ascertained that the major institutes of arbitration have rapidly adapted to the change in circumstances, it is important to analyze the legality of the transition to Online Dispute Resolution (ODR) in light of the numerous challenges it raises. Article 2 of the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules states that any notice for arbitration, including any notification, communication or proposal, is deemed to have been received if it is “physically delivered” to the addressee at his or her habitual residence. This clause stands as an exclusionary clause since no addition for electronic transmission of notices has been made. 

However, the United Nations Commission on International Trade Law (UNCITRAL), in its 46^th Session (2013), adopted the Rules on Transparency in Treaty Based Investor State Arbitration, wherein Sub-clause (2) states that dissemination of the Rules on Transparency in Treaty Based Investor State Arbitration must be done, both physically and electronically, thus acquiescing to the fact that electronic and online dispute resolution is an emerging trend, which shows no signs of subsiding in the recent future.

 It was stated by the Supreme Court in the case of State of Maharasthra v Dr. Praful B. Desai (2003) that video conferencing is an acceptable method of recording evidence in witness testimonies. Thus, ODR, which is based on video conferencing, is a conducive method for resolving disputes, especially in the COVID-19 context. 

Paradigm Shift: The leap from Institutional Resolution to Online Dispute Resolution 

While Online Dispute Resolution (ODR) as a mechanism for dispute resolution was fairly common in the pre-pandemic scenario, the extent of reliance on the same has increased exponentially. Earlier, only certain circumstances such as the physical impossibility of appearance, or electronic transmission of evidence warranted virtual or video-conferencing, however, in the present stage, virtual proceedings, even at crucial stages of the case have become a “norm” rather than the “exception”. Several institutions have released an organizational response, clearly demarcating an action plan for further disposal of cases. Several remarkable characteristics mark the advent of the Online Dispute Resolution Process initiated by various institutes- 

1. Shutdowns, Timings, and Disposal of Cases

Complete shutdowns marked the Modus Operandi of most of the Institutions, wherein employees from London Court of International Arbitration (LCIA), International Chamber of Commerce (ICC) & Singapore International Arbitration Centre (SIAC), etc. shifted to remote arrangements temporarily. Noting the easing of several restrictions during the subsequent stages of the lockdown, organizations such as Judicial Arbitration & Mediation Services (JAMS) announced a systematic and phased re-opening of offices, by June-July, 2020. However, several precautions have been taken such as installing Plexiglass screens, proper sanitization and cleaning at regular intervals, reduction in the number of cases being resolved daily in order to maintain social distancing, etc.

2. General Case Administration, Meetings & Hearings 

Most institutions have allowed the filing of notice for institution of arbitration proceedings via email/online modes of communication in light of the pandemic, while a few institutions such as Deutsche Institution Germany (DIS) depart from the status quo, continuing to accept hard-copies of requisite documentation, utilizing postal and courier services. The dissemination of information regarding changes instituted by various institution varies from case to case, with some institutions updating their website regarding the same.

3. Guidance, Hearing Service Providers & Helplines

In order to safeguard the various interests involved during the entirety of the arbitration process, steps have to be taken in order to ensure that maximum security is maintained. In order to serve the dual objectives of privacy & security during proceedings, several arbitral institutions have released “Guidance Notes”, which lays down measures for compliance in order to maximize security and minimize risks during the proceedings. 

International Chamber of Commerce (ICC) has released a Guidance Note, specifically taking into consideration conditions created due to the COVID-19 pandemic, also stating suggested clauses to inculcate in case cyber-security is involved. Furthermore, even language services are being provided in order to maximize the output of arbitration proceedings during the pandemic. 

4. Conduction of Events & Conferences

Due to the onset of the pandemic, several major arbitral events stood cancelled in light of the restrictions imposed due to lockdowns, etc. Other events were postponed to the year 2021, contingent to change in circumstances. Many institutes took to conducting their annual events and seminars relating to arbitration online, specifically discussing methodologies of adaptation in the COVID-19 context. Some examples of such enterprising arbitral institutions include Hong Kong International Arbitration Centre (HKIAC) that conducted a webinar series, Stockholm Chambers of Commerce (SCC) conducted Online Seminars, Conflict Prevention & Resolution (CPR) conducted a webinar on Alternative Dispute Resolution in the COVID-19 context etc. 

 Probable Way Forward & Concluding Remarks

“Justice Delayed is Justice Denied”

It is imperative that the COVID-19 pandemic is increasingly pressurizing the arbitration community to step up to the plate, regarding which the top-tier institutions of arbitral excellence have responded well. The arbitral community has systematically & swiftly adopted technologies for facilitating ODR, or virtual hearings. Three leading arbitration bodies, the Arbitration Place, Maxwell Chambers & International Disputes Resolution Centre (IDRC) have already formulated an alliance to facilitate hearings in conformity with COVID-19 guidelines. Many steps are being taken by other institutes swiftly, in order to dispose off the pending cases swiftly, and ensure no harm ensues to the parties due to the onset of the pandemic.

The current crisis has opened the doors of ODR for various stakeholders & arbitral institutions on a global scale. While ODR practices were prevalent even before the advent of COVID-19, the onset of the pandemic has speeded up the popularity of ODR as a mode of dispute resolution. While several concerns regarding ODR arise, such as cyber-security, data privacy, confidentiality, etc., major stakeholders are formulating guidance notes & rules to counter the same. In order to ensure minimum loss of time, technology has to be incorporated in the dispute resolution process on a large scale. Concerned stakeholders, such as arbitrators, judges, counsels, & parties must rapidly adapt to the advent of ODR, which will prevail even in the times to come, marking the future of dispute resolution.

Author: Tamanna Gupta, Student, Rajiv Gandhi National University of Law, Punjab.