Trademark Protection to Fictional Elements from Television Shows: An Emergent Reality

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

Reading time: 8-10 minutes.

Introduction

Due to the increasing commercialization of television series & cinematic experiences, several new challenges in protecting the fictional elements presented in such works emerges. Television series & films profit from displaying such characters not only as a part of visual presentation, but also as a part of advertisements, franchising, feature films, mobile apps, outreach programs etc., thus it is no surprise that private entities often try to copy the themes presented in such shows in order to increase their outreach & appeal. Several courts have ruled that trademark protection extends to characters or elements in the “fictional” form also. This article analyzes the decision of the court in Viacom International v IJR Capital Investments (2018)(Hereinafter, Viacom’s Case) & other cases, in light of established precedents, in order to analyze to what extent a trademark over a “fictional entity” can be claimed.

The Tussle over Fictional Elements

According to the Lanham Act (1946), the term “trademark” includes any word, name, symbol, device or any combination thereof”. Trademarks are generally words, phrases, logos and symbols used by producers to identify their goods.  However, shapes, sounds, fragrances and colors may also be registered as trademarks, as has been stated by the court in the case of Qualitex v. Jacobson Products Co. Inc.

However, the court has broadened its horizons when interpreting the term due to need for distinctive analysis. In cases involving fictional entities, it has been stated in the case of Union Nat’l Bank of Tex., Laredo v Union Nat’l Bank of Tex., Austin (1990) that while registration of a trademark can be construed as a “prima facie” evidence of ownership, ownership can be established by “use” of the trademark rather than registration. In most cases wherein trademark infringement of fictional elements is alleged, the prior use of the said element is what aids the aggrieved party. In the case of Viacom International v IJR Capital Investments (2018), the court dealt with the question regarding whether specific elements within television shows, other than the title of the shows, receive trademark protection. The court concluded in the affirmative, stating that trademark protection may be granted to certain characters, places, & elements of an entertainment entity.

Laws Governing Trademark

In India, The Trademark Act (1999) is the law governing Trademarks. Section 2(zb) of the Act defines trademark as follows- “Trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colors.

Furthermore, the act provides for the definition of various types of Trademarks, such as Certification Trademark, defined under Section 2(e), Collective Mark, defined under Section 2(g), Registered Trademark under Section 2(w), Well-Known Trademark under Section 2(zg) of the act. Furthermore, Section 2(2) of the act lays down guidelines with regards to the use of the trademark.

In the United States, The Lanham Act (1946) governs Trademarks. Section 2 of the act defines trademark as a mark used in commerce, or registered with a bona-fide intent to use it in commerce. According to the act, the mark’s eligibility for trademark protection is limited by the application of the categories laid down under the act. The act also lays down detailed guidelines for registration, certification, renewal of registration, appeal, and other procedures under the act.

Juxtaposition of Owners Right vis-à-vis Other Claimants

In the case of Warner Bros., Inc. v. Gay Toys, Inc. (1981), it was held that trademark protection may be accorded to the specific ingredients of a successful T.V. Show. The court stated that trademark protection extends to a case where “General Lee”, an orange car with a confederate flag emblem that was “prominently featured” on the successful television show, “The Dukes of Hazzard”, thus according protection solely on the basis of featuring on a show.

In the Viacom’s case, Viacom sued IJR Establishments due to their alleged trademark infringement of the “Krusty Krab”, a fictional restaurant featuring in the show “SpongeBob SquarePants., after IJR proposed to open a seafood restaurant with the same name, further filing an intent-to-use trademark application with the name “Krusty Krab”. Viacom had not previously registered the “Krusty Krab” trademark. The court stated that Viacom had rights over the trademark, based on the following considerations-

  • Viacom established its “use” of the trademark by way of licensing & sales of products involving the fictional “Krusty Krab”.
  • Viacom proved that “Krusty Krab” had acquired distinctiveness, and its name can be sourced back to the show of “SpongeBob SquarePants”, which was produced by Viacom.
  • Likelihood of Confusion could arise by IJR’s subsequent use of the trademark.

Interestingly, the court has broadened its horizons regarding “use” of trademark, after its decision in the case of Paramount Pictures Corp. v. Romulan Invasions (1988) (Hereinafter, Paramount Pictures Case) wherein Paramount Company claimed trademark protection regarding “Romulan Mark”, a fictional alien race in the popular “Star Trek” series. The “Romulan Mark” was featured on television, in movies, books, licensed plastic spaceship models as well as figurines & dolls, puzzles, games, etc. The Trademark Trial & Appeal Board (T.T.A.B.) concluded that the mark was merely “used from time to time” and held that Paramount failed to establish any clear use of the term “Romulan Mark” to distinguish its services. Despite the clear use of the “Romulan Mark” in various contexts, the court denied the claim of trademark infringement, which it subsequently broadened in the present context, as could be ascertained from the decision of the court in Viacom’s case.

The Road Ahead for Protection of “Fictional Elements” 

From a perusal of the abovementioned judgments, it can be ascertained that even in cases wherein the party fails to register a trademark based on the television show aired, protection can be accorded if a party can prove consistent “use” of the trademark. However, the jurisprudence regarding the interpretation of “use” is riddled with subjectivity, as can be ascertained from the Paramount Pictures Case, wherein despite showing clear use of the trademark, the appellant Paramount Pictures Corporation was denied relief. 

However, with the increase in commercialization of television series, the courts are taking into consideration broader factors such as the use of trademark, in addition to primary factors such as appearance & distinctiveness of the mark. Thus, it can be ascertained that it is imperative to widen the ambit of trademark infringement cases with the inclusion of fictional entities in the gamut, in order to ensure that the trademark owner rights are not infringed. Only with the inclusion of wide ranging tests such as the test of “use” can the rights of such parties be redressed, which shall remain an issue of contention in the times to come.

Conclusion

With the emergence of commercial ventures using fictional entities from television, there is an increasing need for television and online platforms to duly register their characters & symbolisms as trademarks. However, even if a fictional character is not registered with the trademark office, it does not spell a death knell on the rights of the creator of the character, etc. Fictional entities are now accorded equal protection vis-à-vis other entities. In the present day and age, various businesses attempt to copy themes, colors, and patterns that give a layperson the impression of a resemblance with a particular Television program. In light of these factors, there is a need for creating a balance between the rights of the owner/creator of the character accorded trademark, and that of third parties.  However, with an influx of litigation regarding protection to fictional entities, it can be inferred that the owner of the fictional entities have an upper hand in the present scenario. Only with a proper balance or “harmonious construction” of the conflicting interests of various stakeholders, such as creators, owners, and users, can a middle path be reached in the present state of affairs.


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

Analysis: Karnataka HC on Social Distancing Norms

Reading time: 8-10 minutes.

India went into a lockdown owing to the novel coronavirus on March 24th 2020. Since then we have seen that the number of COVID-19 cases does not seem to stop. With the passing time, the Government enabled a low transition to reopen after the lockdown. For the same, the Central Government laid down two National Directives for COVID-19 Management, one on May 30th and the other on June 29th. The Karnataka Government too issued guidelines called the Standard Operating Procedure, which listed social distancing and safety measures for various occasions during the pandemic. Violation of the aforementioned provisions is subject to legal action. There have been allegations of the violation of safety and social distancing orders by public and political figures in Karnataka. The same was questioned before the Karnataka High Court by the way of a Public Interest Litigation.

Facts of the Issue

The aforementioned Plea was filed as two applications by two advocates. The first by Advocate G.R. Mohan, and the second by Advocate Puthige Ramesh. There were three allegations highlighted in these applications.

First being, that the former Chief Minister, a highly influential man in the State of Karnataka, organised a marriage ceremony for his family member, without keeping in mind social distancing provisions. The alleged public figure in question was the former Chief Minister H.D. Kumaraswamy. Photos and videos of the wedding went viral, depicting a violation of the social distancing guidelines like not wearing masks and lockdown norms like large gatherings. However, Kumaraswamy claimed that no one from outside attended the wedding and also that the venue was shifted to a green zone, to adhere to the lockdown norms. This incident is noted to have taken place on April 17, 2020. In court, the Petitioner Advocate Ramesh argued that till date no legal action has been taken against politicians for violating COVID-19 safety norms.

Secondly, the Court was told that the ceremony conducted on June 27 to commemorate the erection of the 108-foot tall statue of Kempegowda, did not follow the necessary social distancing norms either. The ceremony in question is pooja and commemoration of the construction of the aforementioned statue, in front of the international airport in Bangalore.

Third, being the safety violations that took place during the cycle protest rally in Bangalore on June 29. The rally took place to protest the spike in petrol prices. There have been allegations of the rally violating gathering orders and non-compliance to wearing marks. It has been noted that a day after the aforementioned rally, Karnataka reported more than 1000 cases in a single day. Bengaluru alone saw more than 700 cases on Sunday. The party claimed to have obtained permission to gather 200 people while maintaining adequate social distancing and precautionary measures.

Another important observation made before the Court by Advocate Ramesh was that there were several inconsistencies in the written submissions filed by the State Government. This shows bias towards publicly and politically influential persons.

Legal Provisions Involved

The afore-stated examples by the Petitioner call for different guidelines and legal provisions. When India first went into lockdown for 21 days, the citizens were strictly forbidden to conduct any public gathering, except funerals with a capacity of twenty people, until the relaxation and release of further guidelines on April 20th, 2020.

While, from June 1st 2020, India went in “Unlock 1.0”. Ministry of Home Affairs issues guidelines to be followed till June 30, 2020. The Government allowed for gatherings limited to fifty people. These guidelines allowed for religious places in “non-containment” zones to open, but with maintaining a distance of a minimum of six feet between the worshippers.

Both of the aforementioned guidelines were issues under the Disaster Management Act, 2005. Non-compliance of these guidelines could call for legal action against the individual under Section 51 to 60 of the Disaster Management Act, 2005. These Sections state in detail, offences and penalties for non-compliance with the directions laid by the State or Central Government under the said Act. These Sections impose a punishment ranging from one to two years of imprisonment or a fine or both.

Along with this Section 188 Indian Penal Code, which deals with disobedience to follow orders promulgated by public servants, will also be attracted for non-compliance of these orders. This section imposes a punishment of either a month of imprisonment, fine of Rs.200 or both.

The Government of Karnataka also issued precautionary measures of its own, under the Epidemic Diseases Act, 1897. Sections 2 and 2-A of the Epidemic Diseases Act places powers among the State Governments to take certain actions when they are satisfied that the State is visited or threatened with an outbreak of any dangerous epidemic disease.

Thus, came into the picture the Karnataka Epidemic Disease Ordinance, 2020. Sections 4, 15 and 17 of this Ordinance empowered the State Government to issue these guidelines. The measures imposed strict maintenance of social distancing of one metre along with wearing masks in “Public places”. Non-compliance of these said orders will be met with a fine of Rs.200 for violation in Municipal Corporation areas and Rs.100 in others. 

The Court was also made to look into Section 283 of the Indian Penal Code which dealt with a penalty for obstructing public ways or lines of navigation.

Critical Analysis

The Court opined that the State must enforce the adequate provisions in place irrespective of the influence of the individual in question. The Court mainly focused on non-violation of the guidelines issued under the Disaster Management Act, 2005.

Another observation was made with regard to violation of the guidelines during the protest rally on June 29 2020. Instead of filing for action under the Disaster Management Act, the violators were only convicted under Section 283 of the Indian Penal Code. This said Section does not deal with a violation of COVID-19 guidelines but only deals with obstruction of public navigation. Only a fine of Rs. 200 was imposed on the violators.

The Court also directed the State to issue a summary of all the action being taken against the violators of the guidelines issued under the Disaster Management Act. These actions must be under Section 51 to 60 of the Disaster Management Act or Section 188 of the Indian Penal Code.

Conclusion

This judgement shows the reliability of India’s judiciary. It highlights the morals our judiciary stands on, that is, “Justice is blind”. This judgement also shows how serious India is about its fight against the novel coronavirus.

Author: Vidhi Basrani from O.P. Jindal Global University.

Editor: Astha Garg, Junior Editor, Lexlife India.

India’s Election Campaign for UNSC Elected Seat

Reading time: 8-10 minutes.

A detailed brochure was released by the Government of India on 5th June 2020, which highlighted India’s campaign for securing an elected seat at the United Nations Security Council (hereinafter referred to as ‘UNSC’). The elections for the same are scheduled to take place on 17th June 2020, in New York. If India succeeds in this, this will mark the country’s eighth term of occupation as a non-permanent seat at the UNSC, the last term being 2011-12. The present term, if a seat is secured, will begin in January 2021. The objectives of UNSC are to ensure international peace and security, launch peacekeeping missions, recommend the general assembly, enact international sanctions etc.  The non-permanent members in the UNSC also get to be involved in global security briefings.

Salient features

As highlighted in the brochure, the features of this election campaign have laid out several objectives and priorities for India. The approach of the campaign has been guided by “FIVE S’s which are as follows:

  • Samman (Respect),
  • Samvad (Dialogue),
  • Sahyog (Cooperation),
  • Shanti (Peace), to create conditions for universal
  • Samriddhi (Prosperity)

The objective of India during this tenure of two years has been highlighted as the achievement of N.O.R.M.S: A New Orientation for a Reformed Multilateral System. The mantra of “The World is one family” adopted from the Sanskrit slogan of “Vasudev Kutumbakam” has been adopted for the campaign. India’s vision to achieve the objectives of UNSC is guided by the following factors:

  • Dialogue and Cooperation,
  • Mutual respect and
  • Commitment to International Law

Objectives and purposes

India is committed to fight terrorism which is an eminent threat to international peace and security and association with the council can help in help in combating the menace in all forms. In the post-COVID era, India can also help in the reform of the council which is much needed for the promotion of greater cooperation in multilateral institutions. In the international context, the Security Council will face new challenges in the wake of this pandemic due to a more complex economic and political environment and India can help in having a sound approach to tackle the same. Another purpose which India can help fulfill if elected as a non-permanent member is to harness the benefits of technological innovation by building partnerships and resilient communities as it has promised in the campaign to build ‘Technology with a human touch’. In today’s context the security challenges faced by the world require a comprehensive and integrated approach to harmonize international priorities and India’s vision can help in achieving that objective. A comprehensive approach to foster international peace and security will definitely help in realizing the objectives and purpose of the institution.

Critical analysis

India is the sole candidate from the Asia-Pacific region, but it will need two-third of the general assembly to vote in its favour. The government of India has been looking forward to this since 2013 and this particular year is important for two reasons; 2021 marks the 75th year of independence and no slot for this was available before 2026, it is only because Afghanistan’s cooperation that we are given a chance to contest as they backed out, showing a friendly gesture to India. The engagement with UNSC can also be seen as a tactic of foreign policy and can help in India becoming an advocate of dialogue, a proponent of International law and significant factor in decision making.

Also, India, wants a change in UNSC P5 to get included in it so that it can wield greater power and influence. India is a super power aspirant and it needs to be there to be reflective of its power. This will also be seen as a status of power or a power symbol for the country. It will also help in having a say in the decision making at an international level and will also provide opportunities to foster ties with other countries in regards to security and peace cooperation. As discussed above, global institutions like UNSC are in need of reform and India’s vision and approach as promised in the campaign can definitely play a positive role in that regard. It will also help in developing an effective response to counter terrorism which is one of the biggest aims of the country as well as the institution.  

Conclusion

This campaign launched by India highlights an integrated approach to deal with the contemporary challenges and the need of reform faced by global institutions like the UNSC. Through the campaign, a positive role promised to be played by the country can be realized and the vision behind it as highlighted forms a strong base for India to be re-elected for the 8th time. The constructive and innovative support will also help the institution and other developing countries to recover from the crisis due to the upsurge of COVID-19 pandemic. The government looks confident enough for getting 2/3rd votes of the General Assembly.

Author: Aakash Batra from Symbiosis Law School, Pune.

Editor: Silky Mittal, Junior Editor, Lexlife India.

Explained: What is Delimitation Commission

Reading time: 8-10 minutes.

Lok Sabha speaker Om Birla has nominated 15 MPs from Jammu and Kashmir, Assam, Manipur, Nagaland and Arunachal Pradesh to assist the Delimitation Commission in redrawing the Lok Sabha and the Assembly constituencies of the Northeastern States and the Union Territory. The delimitation of Jammu and Kashmir was due since the notification released in the aftermath of Jammu and Kashmir Reorganization Act, 2019.

What is Delimitation Commission?

The delimitation commission is a high power body entrusted with the work of drawing and redrawing of boundaries of different constituencies for state assembly and Lok Sabha election. The commission is appointed by the president and aids the election commission for the smooth conduct of elections. In India, four such commissions have been constituted in 1952, 1963, 1972 and 2002. They are also responsible for reserving of seats for Scheduled Caste and Scheduled tribe as far as practicable, in those areas where the proportion of their population to the total is comparatively large. Initially, they were to redraw the boundaries after every census for subsequent elections till the exercise was suspended in 1976 and then again resumed in 2002.  The restructuring done in 2002 is supposed to continue until 2026 as far as Lok Sabha elections are concerned.

Its powers and functions

The Delimitation Commission consists of an Election Commissioner, a retired or working SC Judge and a State Election Commissioner from the state in which the exercise is going to happen. Apart from this, the commission can appoint up to ten associates to assist in the process. The functions of the Commission include readjustment of boundaries and publishing the result along with the orders in the Official Gazette of India. For this purpose, the commission is empowered to summon any Central or State Government officer and can take the help of any state document or public record.

Legal/constitutional provisions

Article 82 and 170 of the Constitution empowers the Central and State government respectively to enact a delimitation act after every census. Further, Article 327 authorizes the Central government to initiate the delimitation process for elections and Article 329 provides that no such delimitation can be called in question in any court of the land. In the case of Meghraj Kothari vs. Delimitation Commission and Ors, SC ruled that any notification released as a result of this process is deemed to have the force of Law as any other act passed by the parliament and as such cannot be called into question by any court. Further in the case of Association of Resident of Mhow(ROM) and Ors. vs. The Delimitation Commission of India and Ors., the SC emphasized that the constitutional provisions also restrict them from looking into the merits of the end product and determine whether they are in accordance with the Delimitation Act, 2002.

Critical analysis

The provisions are called in question mainly from the fact that delimitation on the basis of population seriously harms the states that are better in implementing the family planning norms. This occurs purely because of two reasons: Firstly, state having more Lok Sabha seats naturally gain more political power and secondly according to the Finance Commission norms dilution of State funds must be proportional to the population of the state. To correct this disparity, the delimitation process was completely stopped in 1976.

However, this, being far from a perfect solution, created several logistical issues. This led to wide discrepancies in the size of constituencies, with the largest having over three million electors, and the smallest less than 50,000. To reduce such a vast gap, the process was again initiated in 2002. However, the next such delimitation is going to happen only after 24 years. Stopping the readjustment of boundaries to address the differential treatment of states according to their population was like throwing the baby out with the bathwater.

In the case of Election Commission of India vs. Mohd. Abdul Ghani and Ors, SC ruled that even if a particular constituencies’ district has been changed, the Delimitation Act doesn’t empower the Election Commission to go to the extent of changing the boundary of the constituency and only after the delimitation exercise, the required alteration can be done. This reasoning seemed completely out of the place considering the enormous time gap decided by the government between subsequent commissions.

Conclusion

The delimitation commission is involved in an extremely key process required for the effective functioning of a democracy. Unfortunately, India hasn’t been able to maintain a balance between a regular conduct of delimitation and a proper enforcement of the family planning norms. Several states have correctly initiated the process of demarcating areas for local bodies’ elections with their separate Delimitation Commissions. These local measures can also go a long way in assisting the nation-wide exercise. In addition to this, Election Commission must also be empowered to consistently update the list at a smaller level if the next commission is not going to be set up in the near future.  

Author: Mayuresh Kumar from NALSAR University of Law, Hyderabad.

Editor: Silky Mittal, Junior Editor, Lexlife India.

Analysis: Nithyananda Case

Reading time: 6-8 minutes.

Self-proclaimed godman Swami Nithyananda, booked in a criminal case identified with his ashram, has fled the nation, with the Gujarat police attempting to assemble solid proof against him in the wake of taking two of his pupils in remand.

An FIR was registered against the controversial guru on the charges of kidnapping and wrong confinement of children to make them collect donations from followers to run his ashram here, Yogini Sarvagyapeetham.

Two of Nithyananda’s devotees – distinguished as Pranpriyanand and Riddhi Kiran – were arrested on charges of assault, kidnapping, and unlawful confinement. A court in Ahmedabad sent them to five days in police custody.

Background of the case:

The Gujarat police said that they have moved to the immigration office with passport details of a teenager and her 21-year-old sister after their parents affirmed that the two were kept in “wrongful confinement” at so called godman Nithyananda’s ashram, authorities said.

Police authorities said they are attempting to find the sisters, Lopamudra Sharma, 21 and Nandhitha Janardhana, 18, daughters of Janardhana Sharma, a previous disciple of Nithyananda, so they could be produced under the watchful eye of the Gujarat High Court according to its request on a ”habeas corpus” petition.

It is told that parents were denied the permission to meet their daughters after the girls were shifted to Yogini Sarvagyapeetham in Ahmedabad from Bangalore, without the parent’s consent. While the parents were successful in freeing two of their four daughters enrolled in the Ashram, with the help of local police; they filed the ‘Habeas Corpus’ petition to save the other two.

The request has been recorded by the guardians who asserted their daughters were being illegally detained. A Division Bench of Justices S.R. Brahmbhatt and A.P. Thaker directed the police to consult Interpol and the Ministry of External Affairs, as well as other agencies, to find the two women, ensure their protection from any threat, and assure them that their independent will and choice would be respected by the judiciary.

Allegations against him:

Apart from the case of two missing women, another case of torture and wrongful confinement is being investigated after two of his disciples were arrested following a complaint by two children enrolled in his ashram. The children made a complaint that they were assaulted, confined and made to work illegally.

Acting on the complaint so filed, the police has arrested two of Nithyananda’s disciples, Pranpriya and Priyatatva, who are currently being questioned by the police. A complaint containing similar allegations has been filed by the parents of two other children who were previously rescued from the ashram.

Apart from the complaints of kidnapping and wrongful confinement, allegations of sexual assaults are nothing new for the Godman. While a video showing him in a compromising position with a Tamilian actress got viral in March, 2010, he was also accused of sexual assault by a previous follower in 2012, who claimed to have been raped multiple times between 2004 and 2009.

Legal Principles involved:

Nithyananda and his two devotees, have been booked under various sections of the Indian Penal Code along with Section 14 (forced labour) of the Child Labour (Prohibition and Regulation) Act, 1986.

They have been have been booked under sections 365 (kidnapping or abducting with intent to secretly and wrongfully confine a person), 344 (wrongful confinement for ten or more days), 323 (voluntarily causing hurt), 504 (intentional insult with intent to provoke breach of peace), and 502 (sale of printed or engraved substance containing defamatory matter) of the Indian Penal Code (IPC).

Cardinal principle of criminal jurisprudence: Presumption of innocence

Presumption of innocence implies that a man must be considered innocent until proven guilty. While the case has been registered, the police is still finding it to hard to gather concrete evidence against the accused in this case. Also, as Nithyananda has fled the country and has not appeared for hearings in the Court, he shall be considered innocent till the time the charges against him are proven.

RV Ansari, SP Ahmedabad (Rural), has said that, “If required, we will go through proper channel to seek his custody from abroad. We will definitely arrest him if he comes back to India.”

Similar Instances in the Past:

Criminal case against self-proclaimed God-men like Nithyananda doesn’t comes as a surprise. History is replete with such examples; Criminal cases against Asaram Bapu is still fresh in our minds. He had cases ranging from land grabbing to murder filed against him.

He was awarded a life imprisonment sentence after he was proven to have raped a minor girl of around 16 years of age. He was also investigated in the case of death of two boys whose bodies were found near his ashram.

Next in line is Dera Sacha Sauda chief, Gurmeet Ram Rahim, who was held guilty in a rape case by a Special Court. He was accused to have raped the victim multiple times inside the Dera Campus in Haryana. Apart from the rape charges against him, he was also accused of being responsible for two different murders, in 2001 and 2002 respectively.

Another prominent name in the list is that of Sant Rampal, who was convicted of murder and awarded life imprisonment in two different murder cases, one in 2006 and the other in 2014. While these are few of the well-known names, the list of god-men turned criminals seems to be never ending.

Conclusion: A probable way forward

The self-styled God-men, use the shortcomings or issues existing in the different social establishments like marriage, family, religion, and so on; to their advantage, by saying that they’ll have the option to give prompt cures or perform supernatural occurrences to take care of the problems. The issue with the Indian society is that the greatest populace comes up short on a logical viewpoint and rational which makes them a simple prey to such problematic god men.

The best way to manage this issue is by creating awareness among the individuals on the most proficient method to separate between logical remedies and these shallow, superstitious cures. Likewise, it is critical to teach them about the genuine significance of spirituality and guide them to look for modern solutions for their issues.

–This article is brought to you in collaboration with Satvik Mishra from Rajiv Gandhi National University of Law, Patiala.

Analysis: Indictment of Benjamin Netanyahu

Reading time: 6-8 minutes.

On 21st November, Israel’s Prime Minister Benjamin Netanyahu was indicted on charges of bribery, fraud and breach of trust; making history for being the first Israeli Prime Minister to have been indicted while in office.

The charges pressed are the culmination of a long series of corruption cases, which might prove the end of Netanyahu’s political career and the beginning of a restless struggle for a new leader. The charges against Netanyahu include allegations of offering favors to media houses in exchange for favorable news coverage, and ill-intentioned gifts worth thousands of dollars.

The allegations in this historical prosecution were laid down by Israel’s Attorney General Avichai Mandelbit. In the interest of public justice, he said that the conviction and rigorous prosecution of the Prime Minister is essential. To quote him;

“The public interest requires that we live in a country where no one is above the law.”

Netanyahu responded instantly, fiercely alleging that the charges against him were based on lies and political prejudice. He angrily accused the prosecutors of staging “an attempted coup”. He also blamed the police and the investigating authorities, ordering the public to “investigate the investigators.” Thus ensued a bloody war of political animosity, the country split in its support or condemnation of their national leader.

Significance of the indictment for Israel:

Apart from the fact that Netanyahu was the first premier to be charged against while in office, the indictment is especially significant in the context of Israel’s present political scenario.

Legally speaking, charges of bribery, breach of trust and fraud do not by itself disqualify the premier from continuing in office. Hence, he will not be required to step down, even if the case were to be tried. However, Israel’s political situation is already on thin ice. This would make it very difficult for Netanyahu to retain power if the case against him were to proceed.

Israel’s democracy has failed to elect a new Prime Minister in spite of two elections for the same. Netanyahu’s right-wing government Likud was unable to assemble a government that would satisfy the majority number of 61 seats. The rival government, the Centrist Blue and White Party, also failed to form a coalition that would reach this magic number. This deadlock between the two parties has been continuing for a year, with no chance of resolution.

The challenge is now faced by the Parliament, to conduct a third election in hopes that a coalition might take form. With the charges against the Prime Minister and the public unrest that follows, the Parliament may have to conduct the third election sooner than planned, to avoid political upheaval in the country.

The Pawars and the 2019 scams: India’s very own Netanyahu:

Criminal charges pressed against political leaders are becoming less uncommon by the day. Political leaders are but human, and slight errors are accepted and forgiven. However, the increasing number of political frauds, scams, and corruption is alarming. This is not only in the country of Israel; India has its fair share of corrupt politicians.

After many failed attempts and a period of political vacuum, the state of Maharashtra finally has a government in place, i.e. the Shiv Sena – NCP coalition. The post of Chief Minister would be held by Shiv Sena’s Uddhav Thackeray, while NCP’s Ajit Pawar would be appointed as the Deputy Chief Minister. Mr. Ajit Pawar and his uncle Sharad Pawar were involved in the infamous irrigation scam of 2019, making them akin to Israel’s Netanyahu.

The recent case against Sharad Pawar was registered by the Economic Offence Wing against him and the top functionaries of the Maharashtra State Co-op Bank (MSCB), alleging his commission of money laundering and scamming Rs. 25,000 Crore. In brief, the police report charged him of conspiring with the top functionaries of MSCB to provide him with loans in a fraudulent manner.

Prior to this, Pawar and his nephew, Ajit Pawar, faced charges of corruption from the Anti-Corruption Bureau (ACB). The ACB had alleged that the senior government officials were involved with a 70,000 Crore irrigation scam. The scam related to alleged irregularities in approval and execution of various irrigation projects.

The investigation of these cases abruptly came to a close on 26th November, which was unsurprisingly proximate to the date on which Ajit Pawar was sworn into the post of Deputy Chief Minister. Mere days after the NCP came into power, a senior official of the ACB reported that none of the irrigation cases instituted in September were linked to Ajit Pawar. 

The surprising stoppage of criminal proceedings against a person enjoying political power just goes to show how corruption in the political arena changes very little from jurisdiction to jurisdiction. The general approach towards criminal charges against the politically influential is at present fear-induced, and requires change.           

Presumption of innocence in Politics – A death trap?

Public servants enjoy a greater immunity to offenses charged against them, as it is assumed that they, by virtue of gaining the public vote, are more likely to be innocent of committing certain crimes. Section 21(12)(a) of the Indian Penal Code defines the term, as ‘in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the government’.

However, it has been categorically held that ministers are not public servants. In the disproportionate assets case against Tamil Nadu Chief Minister Jayalalithaa in 2016, the Supreme court dealt went into the merits of whether Chief Ministers and other Cabinet Ministers can be categorized as ‘public servants’, along with government functionaries performing public duties.

In the 1979 case of M. Karunanidhi v. Union of India,the apex court held that Chief Ministers very well fall under the definition of public servants. The petition challenged this interpretation followed by the court. It contended that only civil servants, and not politicians, are public servants.

Parliamentary law prescribes that public servants include those who must write a qualifying examination to prove their credentials and suitability for the post. They must be of a set age limit, should be politically neutral, and are governed by the Central State Civil Services Conduct Rules.

On the other hand, cabinet ministers are appointed by the President or the Governor, as the case may be, on the basis of the electoral outcome. They execute the political agenda of their respective parties, and their remuneration is decided by the State Legislature.

The difference between the two boils down to the functions that they execute for the country. While civil servants actually ‘serve’ the public by performing administrative functions; cabinet ministers and politicians do not perform these administrative functions, rather they oversee the entire functioning of the country.

Hence, it cannot be said that politicians fall within the criteria of ‘public servant’ as provided by Section 21(12)(a) of the Indian Penal Code. Therefore, politicians cannot enjoy the protection offered by the section.

The doctrine of presumption of innocence is a legal construct. Article 20(3) of the Indian Constitution provides this right to the people of India, saying that they have a right to remain silent and they are not required to prove their innocence in a court of law.

This right is given to all persons, civilians, servants and politicians alike. However, the doctrine operates to protect the accused from the State’s power to deprive liberty. It was not enacted with the objective of immunizing political leaders from scrutiny.

Nevertheless, it would be unfair to believe allegations against a popularly elected political leader over the trust and confidence he/she has gained over the period of their rule. The presumption of innocence can and should be afforded to politicians, though cautiously, to prevent misuse.

–This article is brought to you in collaboration with Anna Kallivayalil from NLU, Delhi

Explained: The Places of Worship Special Provisions Act,1991

Reading time: 6-8 minutes.

Western political history shows the concept of Secular State and how the religious freedom was granted and developed out of many different historical situations and philosophical impulses.

Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the Constitution, the concept of secularism was very much embedded in our constitutional philosophy from the very beginning.

The basic question, however, has always been raised whether the separation between religion and the State in the absolute sense can ever be maintained? 

Political decisions affect every aspect of human life, especially moral and religious issues, which are on a high priority list of any and every individual. It becomes difficult to maintain the absolute separation, which ultimately hampers our lives.

Salient features of the Act:

The Places of Worship (Special Provisions) Act, 1991, was enacted by the Narsimha Rao government in order to prohibit the conversion of any place of worship and to ensure the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947.

Section 2(c) of the Act defines “Place of worship” as a temple, mosque, gurudwara, church, monastery or any other place of public religious worship of any religious denomination or any section thereof, by whatever name called. The clauses do not include recognised ancient monuments, though. The law wasmade with intentionto deter copycat politico-religious movements to change the nature of existing religious places elsewhere.

Section 3 of the act states that no person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of different section of same religious denomination or of a different religious denomination or any section thereof.

Offences under the act are punishable with a jail term which may extend up to three years as well as a fine. Even making an attempt to change any place of worship, abetting it, or being party to a conspiracy to do so would invite a jail term. The offence would also be included in Section 8 of the Representation of People Act, 1951, for the purpose of disqualifying candidates in elections should be sentenced for two years or more, under this act.

Relevance of the Act in the Ayodhya dispute:

The infamous Ayodhya dispute that has been going on for decades now, finally seems to be standing at the thresholds of a solution. The major element proposed for the settlement is an offer by the Uttar Pradesh Sunni Waqf Board to surrender its claim on 2.77 acres of disputed land in Ayodhya.

The Board wants the court to implement the Places of Worship (Special Provisions) Act of 1991, whereby the law strictly prohibits conversion of any place of worship and also demands maintenance of the religious character of a place of worship as existed on the day of Independence. Moreover, special provision ensures that the act would not apply to the place or place of worship commonly known as Ram Janma Bhoomi- Babri Masjid.

The Places of Worship (Special Provisions) Act of 1991 was brought at a time when the Ayodhya movement – led by the Vishwa Hindu Parishad (VHP) and backed by the Rashtriya Swayamsevak Sangh and the BJP – was at its peak.

Only a year later, BabriMasjid was demolished by the Karsevaks (volunteers) who had gathered in Ayodhya at the call given by the VHP.The law was a measure to block all copycat agitations at places like Mathura and Kashi – similar to the condition of settlement claimed to have been reported by the mediation panel on Ayodhya Ram Mandir-Babri Masjid dispute.

If the government repeals the 1991, Place of Worship Act, it will become legally easy to return such religious places across the country to their original claimants and worshipers.

Criticisms of the Act:

Places of Worship (Special Provisions) Act, 1991 is Unconstitutional and Ultravires, because it discriminates on the very basics of the idea of our Constitution which does not allow any discrimination or special preference to any particular place, monument, suit, etc. As given in section 5 of the act, it shall not apply to the suit or dispute related to Ram Janmbhoomi-Babri Masjid in Uttar Pradesh. This kind of exclusion clearly points out Narasimha Rao government’s biased nature towards this case or this act.

Such legislation that gives socio-political immunity to a particular political ideology is a travesty against Constitutional morality. The only demand mandated by the Indian Constitution, is that the State must treat all religious creeds and their respective adherents absolutely equally and without any discrimination in all matters under its direct or indirect control.

Communal violence destroys the constitutional values and national integrity and widens the gap between people of different communities. It calls for concerted, democratic and rational approach from all sections of the people. The law enforcement agencies should not hesitate to expose, resist and challenge any forces, groups or parties, which are detrimental to our Constitution, democracy, secularism and pluralist culture. The current government must either rectify it or quash the section to safeguard the very idea of our Constitution.

Conclusion: The way forward

If we take this plea of enforcing the places of worship act strictly in the Ram Janmbhumi- Babri masjid dispute, which dragged on since before independence and for which clear instructions are mentioned in the act, by prima facie, it will definitely be rejected.

Issue raised by the Sunni Waqf Board can be upheld in the apex court on the grounds of the above-mentioned criticisms, but it seems implausible that the apex court will nullify section 5 of the act, due to the long overdue nature of dispute. Section 5 Clearly states that this act will not affect the Ramjanmbhoomi – Babri Masjid dispute. Further, the Archaeological Survey of India has verified that the temple was forcibly occupied and demolished and a mosque was raised.

All one can do now, is to keep faith on the apex court of our country and wait for the final judgement which has to be accepted by both the parties, their religious ideologies notwithstanding, in order to finally settle this dispute for once and for all.

This article is brought to you in collaboration with Ajitesh Priyadarshi from University of Calcutta.

Analysis: Citizenship (Amendment) Bill, 2016

Reading time: 6-7 minutes.

The controversial Citizenship (Amendment) Bill, 2016 was introduced in Lok Sabha on July 19, 2016. The Bill was referred to the Joint Parliamentary Committee which submitted its report in January this year. The Bill has been passed by the Lok Sabha.

The Bill amends the Citizenship Act of 1955 with regard to two categories of persons- illegal migrants and Overseas Citizen of India (OCI) card-holders.

How can Indian Citizenship be acquired? Who are Overseas Citizens of India?

Under the Citizenship Act, a person can acquire Indian citizenship by being born in the country or by being born to Indian parents or by residing in the country over a period of time (i.e. by naturalization). The Act prohibits illegal migrants from acquiring citizenship. An illegal migrant is a foreigner who either enters the country without valid travel documents like Passport or enters with valid documents but stays in India beyond the permitted period of time. Illegal migrants are liable to be imprisoned or deported under the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.

Overseas Citizens of India, in simple terms, are foreigners who are persons of Indian origin or who are spouses of persons of Indian origin. Compared to others foreigners, OCI enjoy various benefits like right to travel to India without a visa and to work or study in the country. Under the Citizenship Act, 1955 the central government may cancel OCI registration on various grounds and in case of cancellation, an OCI residing in India may be required to leave the country.

What are the Salient features of the Citizenship Bill?

The Citizenship (Amendment) Bill, 2016 seeks to provide citizenship to those Hindus, Sikhs, Jains, Buddhists, Parsis and Christians of Afghanistan, Pakistan and Bangladesh who fled to India before 31st December, 2014 because of religious persecution or fear of persecution in their home countries. These people were treated as illegal migrants by the Citizenship Act, 1955.  

The Bill also relaxes the minimum years of residence required for obtaining citizenship through naturalization from 11 years to 6 years for immigrants of these six religious communities from Afghanistan, Pakistan and Bangladesh.

With respect to OCI card-holders, the Bill introduces an additional ground on which the government can cancel the registration of OCI card-holders viz. violation by OCI of any law of the land. Earlier, their registration could be cancelled only if, within five years of registration, the cardholder was sentenced to imprisonment for two years or more for violation of any law. The effect of the amendment would be that the registration of an OCI card-holder will get cancelled if he breaks any law of the land, irrespective of whether it is a major or minor violation, and even if he has stayed in India for more than five years after registration.

What are reasons behind the introduction of this Amendment Bill?

The main reason for this amendment was the atrocities that the six religious communities faced in the three neighbouring country, Afghanistan, Pakistan and Bangladesh, which forced them to migrate to India. The Citizenship Act, 1955 treated them as illegal migrants and denied citizenship. It was in order to alleviate their plight that these amendments were proposed.

In September, 2015 and in July, 2016 the Central Government issued two notifications by which illegal migrants belonging to six religious minority communities of Afghanistan, Bangladesh and Pakistan who had migrated to India on or before December 31, 2014 were exempted from the provisions of the Foreigners Act, 1946 and the Passport (Entry into India) Act, 1920.This implies that these illegal migrants cannot be imprisoned or deported for not having valid papers.

The Citizenship Amendment Bill, 2016 seeks to grant further benefits to these migrants by making them eligible for citizenship.

What are the criticisms against the Bill?

The Bill has been staunchly opposed by the North-Eastern states. It is argued that continuous migration from surrounding areas has increased the population of the North-East in such a way that the average size of land holding in the region is only about one hectare. While the population of ‘India of 1901’ (which comprises of India, Pakistan and Bangladesh) increased by about 5.4 times between 1901 and 2011, the population of North-East increased by more than ten times during the same period.

The opponents of the Bill also stress that Assam cannot accommodate any more immigrants and that the Bill goes against the 1985 Assam Accord signed between the Rajeev Gandhi government and leaders of the Assam movement spear headed by the All Assam Students Union (AASU). Under the Accord, any person who came to Assam after midnight of March24, 1971, were to be identified as a foreigner. Opponents in Assam also argue that the National Register of Citizens (NRC) which would declare those who had entered Assam illegally after 25 March 1971 as foreigners will also be nullified by the Bill.

Another major criticism against the Bill is that by limiting accelerated citizenship to non-Muslims it tends to be discriminatory and violative of Article 14 of the Constitution which guarantees right to equality to citizens as well as foreigners. Article 14 requires that a law can be justified of treating persons differently only if there is a reasonable rationale for doing so. The Statement of Objects and Reasons of the Citizenship Bill does not provide any such rationale for restricting its benefits to only six religious communities. As the Rohingya crisis may have highlighted, even Muslims are fleeing persecution from neighbouring countries. Unfortunately they will not be eligible for Indian citizenship under the Bill. It is clear that the differentiation between illegal migrants on the basis of religion does not meet the Article 14 standards of equality protection.

The proposed change regarding Overseas Citizen of India (OCI) card-holders has also evoked criticism. Making their registration liable to be cancelled for violation of any law of the land, irrespective of the gravity of violation, leads to a situation wherein OCI registration can be cancelled for even minor offences like parking in a no parking zone or jumping a red light. The amendment is worrying given that the consequence of cancellation of registration is drastic as the person would be required to leave the country.

The North-eastern states have been marred by two waves of protest for some time now – protest in support of the Bill and protests against the Bill. During and after the visit of a Joint Parliamentary Committee to Assam and Meghalaya to collect feedback regarding the Bill, the Brahmaputra Valley saw protest opposing the Bill while the Barak Valley saw counter-protests in support of the Bill. In Guwahati, 135 groups submitted memorandums objecting the Bill and one of the memorandums was even signed in blood.

Union Home Minister Mr. Amit Shah has tried to pacify the protestors by assuring that the people of North-East had nothing to fear from the Bill and that it will not dilute Article 371 of the Constitution which grants autonomy to the North-Eastern states. He also assured them that the Bill will not affect any rights of the indigenous people nor will it affect the requirement of Inner-Line Permit that any visitor to Arunachal Pradesh, Mizoram and Nagaland has to possess for temporary stay in these places. Mr. Shah also pointed out that the proposed Bill had December 31, 2014 as the cut-off date and that no illegal immigrant arriving after this date would be granted citizenship.

Probable future…

The Bill would have both positive and negative consequences. The positive consequence is that the people of minority religious communities of the three neighbouring countries who flee to India from persecution can be assured of safety and peace. They would be treated as Indian citizens and would get food, livelihood, shelter and most-importantly, identity.

The negative effect of the Bill would be faced by the people of North-east as increase in population due to illegal immigrants would put stress on the scarce resources of the states. Moreover, there is a deep fear that the indigenous people of the states would become a minority if more outside people come and settle there. There is also apprehension of ethnic violence, which will hinder progress of the states.

A solution for alleviating the negative impact of the Bill on the North-eastern states is to shift the immigrants to other state also so as to ease the pressure on the resources of the North-East.

-This article is brought to you in collaboration with Rishabh Dixit from New Law College, Pune.