This article is written by Kashish Kundlani, from Ramaiah Institute of Legal Studies, Bangalore. In this article, she discusses the International efforts to protect and improve the environment.

Introduction 

How blessed the countries are, as we are surrounded by beautiful nature and wildlife. In our surrounding, so many species are there which require a need to protect them as well as to conserve the environment. The exploitation of the environment can deplete the natural resources and in result will make everyone’s survival difficult. For human beings to survive, the environment needs to be clean, fresh and eco-friendly. It has been rightly said by Margaret Mead that “We won’t have a society if we destroy the environment”.  Indeed it is true and we can see the effects of the exploitation in the changing environment. 

Issues of environment protection

The need to protect the environment has arisen and it is important to understand the key areas where all the countries have to look upon and work. 

The main reasons for the protection are:-

• Ozone depletion, greenhouse effect and global warming– 

Ozone is a thick layer which acts as a shield to protect the earth from the ultraviolet radiations coming from the sun. This layer is of great importance because of the but obvious reason that its depletion will result in ultraviolet radiations. The concern or agitation arises towards the environment when this layer starts depleting or gets reduced. Earlier also the depletion of the ozone layer was the issue and now also it is the prevalent and significant issue which within the timeframe if not tackled then can cause a lot of problems to the environment as well as to the human beings.

For example, skin cancer, premature ageing,  eye damage, weak immune system etc. The main reason affecting the ozone layer is Chlorofluorocarbons (CFCs) which are mostly produced by the industries discharging chemicals and can also be found in household products. The ozone layer depletion is linked to the greenhouse effect and also with global warming.

Greenhouse effect- It is caused by the emissions of the pollutant gasses like methane, CFCs etc. When these gases are released or get mixed in the atmosphere, it results in the temperature to rise and this is known as global warming.

• Desertification– 

In simpler terms, this issue means land degradation. The destruction of the potentiality of the land which ultimately at the end results in a drought-like situation.

The example of land degradation is deforestation, change in climate etc. Where this kind of a situation arises, it forces the people residing there to migrate to another land or place. 

• Deforestation– 

It is a very recurring issue which every country faces. Deforestation not only affects climate but it also affects the animals living in the forests. It is an alarming issue which is every now and then country has to deal with. 

• Loss of biodiversity–

It is related to the extinction of the species from the earth and the reason is deforestation. Biodiversity means the variety of life on earth. Many of the species have already become extinct from the earth. Extinction of the species disturbs the balance of the ecosystem as well as disturbs the balance of the living species and also human beings. Earth’s biodiversity provides various sources from which we can get food and also medicinal plants. Besides deforestation the other reasons for the loss of biodiversity are fragmentation, using chemical fertilizers, pesticides, overexploiting the resources available etc.

• Disposal of wastes–

Disposing of the waste is also an important and significant issue. The major portion of waste is contributed by the industries and household. These industries or household wastes are either dumped in water or in empty unused land. 

As a result, the water gets contaminated and there are likely chances to get many diseases from that- for example, diarrhoea, typhoid fever etc. Industrial wastes consist of chemicals, metal compounds, nuclear waste etc. The nuclear waste is radioactive waste which gives rise to the large quantity of heat. These wastes are serious health hazards and endanger the environment and life. 

Treaties and conventions- for the improvement and protection of the environment

Montreal Protocol 

It was finalized in the year 1987 and adopted on 15 September 1987. It is a multilateral environmental agreement and this protocol is the only UN treaty ever up to date which was initially approved by only 46 countries but now it is ratified by all 197 UN member countries/states. This protocol regulates the production and consumption of man-made chemicals which can deplete the ozone layer. 

This treaty was made for the reason that certain substances or chemicals when released in the atmosphere that damages the stratospheric ozone layer which is earth’s protective shield that protects humans and as well as the environment from the harmful levels of ultraviolet radiations of the sun. The stratospheric layer in fact filters out the harmful radiation. If it doesn’t get filtered then there are increasing chances of having skin cancer and cataracts, and also reduces the agricultural productivity and damages the marine ecosystems. 

Under this treaty, the developed and developing countries have equal but differentiated responsibilities towards the ozone-depleting substances (ODS) but both groups countries have binding, time-targeted and measurable commitments. All countries have been given specific responsibilities relating to the curtailment of the ozone-depleting substances.

India became the signatory member of this treaty on 19th June 1992.

Hydrochlorofluorocarbons (HCFCs) is the gas which is used worldwide. It is present in the refrigerator, air-conditioners etc. It is very harmful and powerful than carbon dioxide.

The Montreal protocol has taken steps to control this harmful substance.

On 15th October 2016, parties of the Montreal Protocol adopted the Kigali amendment to curtail the consumption and production of the hydrofluorocarbons (HFCs). Countries have agreed to add HFCs to the list of controlled substances. The Kigali Amendment came into force on 1 January 2019 for those countries that have confirmed to this amendment.

Kyoto Protocol

Second commitment of Kyoto Protocol (2013-2020), bridges the gap between the end of the first commitment and the start of the second commitment with further emission cuts. The Kyoto Protocol is an international agreement within the United Nations Framework Convention on Climate Change (UNFCCC), which commits its Annex B-Parties (the countries which have adopted the targets to reduce the greenhouse emissions) with legally binding emission reduction commitments.

Whereas, in Annex A- six greenhouse gases are there where the Kyoto Protocol is applied the six greenhouse gases are:-  Carbon dioxide (CO2), Methane (CH4), Nitrous oxide (N2O), Hydrofluorocarbons (HFCs), Perfluorocarbons (PFCs), and Sulphur hexafluoride (SF6).

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Paris Agreement

It is an agreement within the United Nations Framework Convention on Climate Change (UNFCC) which focuses on reducing the greenhouse gas emissions. It is replaced by its predecessor, the Kyoto protocol which is also the international treaty for similar purposes and its second commitment expires this year i.e. 2020. The Paris Agreement came into force on 4th November 2016 and has been signed by 197 countries and as of November 2019- 187 countries have confirmed. India has also given its consent to this agreement. In the whole world, India stands at third after China and the US when it comes to the emission of the greenhouse effect according to May 2019.

The primary motive of this agreement is to fight back against climate change. This agreement also aims to curb the emission of the greenhouse to a certain level 

Kyiv Protocol on Pollutant Release and Transfer Registers 

On 8 October 2009, it became an International Law and is the only instrument which is legally binding upon the parties. The objective of this protocol is to increase public access to information through the formation of a systematic pollutant release and transfer registers.

All the UN member states can join this Protocol as it is designed by an ‘open global treaty’.

Vienna Convention for the Protection of the Ozone Layer 1985

Initially, this convention was agreed in 1985 and it came into force on 22 September 1988. It is a multilateral agreement. Montreal protocol comes under this convention. This convention was formed with a purpose to globally monitor and report on the ozone depletion. Under this convention, it made structures for the improvement of protocols and also for taking a more binding action.

The Vienna Convention and its Montreal Protocol are the first and the only global environmental treaties to obtain universal acceptance, with 197 member countries. The Vienna Convention does not include any goals which are legally binding on the countries. 

These legally binding goals are framed under the Montreal protocol with regards to the substances that can deplete the ozone layer.

Aarhus Convention

This United Nations Economic Commission for  Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters often referred to as Aarhus convention. It was adopted on 25th January 1998 and it came into force in October 2001. Only 47 Parties have ratified to this Convention till 16 October 2017.

In conjunction with its Kyiv protocol, it also aims to protect every person’s right to live in an environment which is sufficient enough for his/her health and also the well-being and also in accordance with the provision of this convention, each Party must guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters.

Basel Convention on the control of transboundary movements of hazardous waste and their disposal 1989

Commonly it is known as the Basel Convention. The Basel Convention was adopted in March 1989 in Basel, Switzerland, and came into force in 1992 and 187 parties are members of this convention till October 2018. It is an international treaty which formulated plans against the adverse effects of hazardous wastes in order to protect human health and the environment.

Basically, it made a structure or a framework in such a way so as to reduce the movement of hazardous waste between the nations and also to restrain the movement of waste from developed countries to less developed countries because the less developed countries are unable to dispose of the hazardous waste in an environment-friendly way and it pollutes the environment tremendously. On 24th June 1992, India ratified to this convention and included some of the provisions from this convention in its Act i.e the Hazardous and Other Wastes (Management and Transboundary Movement) Rules of 2016.

Basel Ban Amendment 1995

This amendment intends to prohibit the export of hazardous/dumped waste for any purpose to the developing countries. After Croatia ratified to this amendment on 6th September 2019 it has become an International Law. It entered into force on 5th December 2019. Till now the countries who haven’t ratified to this amendment are- the US, Canada, Japan, Australia, New Zealand, South Korea, Russia, India, Brazil, and Mexico.

Berne Convention on the conservation of European wildlife and natural habitats

This convention is a binding international legal instrument. The purpose of introducing this convention is to protect and conserve the species of flora and fauna and also their habitats.

After the discussions at the Council of Europe, the Berne Convention was introduced and has been in force since June 1982. By April 2019 there are 177 states that are parties to this Convention and since April 1928, India has been a member of the Berne Convention.

This was the first international treaty which looked into the matter relating to the protection of both species and habitats. And it also seeks to bring all the countries together so that they can determine an action to protect nature and to promote sustainable development.

The ratifying parties to be a part of this convention have to maintain biodiversity in the long term, according to different scientific and ecological requirements.

Convention on Biological Diversity, 1992 (CBD)

This convention provides a legally binding framework which came into force in 1993 with a purpose to conserve the biodiversity and use biodiversity feasibly. The main objective of this convention is to encourage those actions which will lead to a sustainable or viable future. The governing body of this convention is the Conference of the Parties (COP).

India giving effect to the provision of this convention enacted the Biological Diversity Act in 2002 which also provides a framework in order to tackle the issues related to biodiversity. Following this convention, India has taken part in many conventions which are related to conserving biodiversity.

In October 2020, the Governments have decided to gather at the UN Biodiversity Conference on Biodiversity (CBD COP15) in Kunming, China to decide upon an agreement regarding the new framework. To develop the post-2020 global biodiversity framework, it requires wide-range consultations, working of the groups and also meetings of the expert person involved in this convention.

The motive of this gathering regarding the Post-2020 Global Biodiversity Framework will is to define the mission for 2030 and to define a long-term vision for 2050 which has to be achieved with goals and targets, in order to encourage and synchronize the global efforts for conserving the planet’s biodiversity.

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

This convention is an international agreement between the countries and entered into force in 1975 which aims to protect wildlife from over-exploitation due to international trade. Basically under this agreement, the government regulates the traded wildlife and its products that it does not threaten the survival of the species in the wild, for example, leather goods, animals, food etc.

Convention on Long-Range Transboundary Air Pollution (CLRTAP)

This convention came into force on 16th March 1983. This convention aims that the contracting parties should make efforts to protect the environment against the adverse effects of the pollution, to ensure that the parties take several and necessary steps to fight against the release of the air pollutants and also to create committees for the further progress and imposition of the convention.

Convention on the Conservation of Migratory Species of Wild Animals (CMS)

This convention is an international treaty under the aegis of the United Nations Environment Programme. It came into force on 1st November 1983. Since 1983 India is a party to this convention. The primary focus of this convention is to provide for the conservation and sustainable use of migratory animals and their habitats. This convention tries to complement and co-operate the provisions with a number of international organisations, NGOs, corporate sector etc.

The recent event regarding this convention will be hosted by India from 15th to 22nd February 2020 at Gandhinagar in Gujarat, which will be the 13th Conference of Parties (COP). The eminent conservationists, international NGOs working in the field of wildlife conservation and representatives from 129 Parties are expected to attend the Conference. 

Convention on the Conservation of Migratory Species of Wild Animals (CMS)

This convention came into force on 1st January 2005 and as of February 2018, only 39 Council of Europe member states have ratified the Convention. 

The motive of this convention is to protect and manage the landscapes and to organise the international co-operation on landscape issues. The parties of this convention in order to implement the provision should undertake the activities which are set to raise public awareness, defining the quality of landscapes etc.

Minamata Convention on Mercury

This convention is a global treaty and entered into force on 16 August 2017 and as of 1st March 2019- a total of 105 parties (includes India also) have ratified to this convention.

The objective of this convention is to protect humans and the environment from the dangerous effects of the mercury. In Japan, there is a city named Minamata where the local communities got poisoned by contaminated mercury industrial wastewater at the end of the year 1950 and suffered untreatable and disabled effects. So the convention is named after this town.

Ramsar Convention on Wetlands

This convention is an intergovernmental treaty adopted on 2nd February 1971 and it entered into force on 21 December 1975. It provides a framework for international and national cooperation so that they can achieve sustainable development throughout the world by taking efforts towards the conservation and judicious/wise use of the wetlands. As of January 2016, 170 nations have joined the Convention as Contracting Parties. 

But the question arises that why we should conserve wetlands? Let’s first understand what are wetlands: they are those areas where water is the main source or part for controlling the environment and the related plant and animal life over there. They occur where the water table is either there or near to the surface of the land. And the conservation of wetlands is important because they are the only source of biological diversity which provides the water to the countless species of plants and animals who are depending on wetlands for its survival.

They help or contribute to the high masses of birds, mammals, reptiles, amphibians, fish and invertebrate species. Over-exploitation of freshwater resources by humans puts all the other people and as well as the environment at risk. 

By degrading the wetlands, the certainty to avail the access to safe water, human health, food production, economic development and geopolitical stability becomes difficult and also the degradation of wetlands has rapidly widened the gap between water demand and supply. 

The Ramsar convention under its fourth strategic plan set off a period from 2016-2024 with almost the same objectives mentioned earlier.

Stockholm Convention on Persistent Organic Pollutants

This convention is a legally binding international treaty which was adopted on 22nd May 2001 in Sweden and it came into force on 17th May 2004. Its objective is to protect human health and the environment from the dangerous outcomes from the organic pollutants (Pesticides, Industrial chemical, Aldrin etc.). POPs are the chemicals that remain intact in the environment for long periods and it gets widely distributed in the overall area which collects or gathers the fatty tissue of the living organisms which are toxic to the humans and wildlife. These POPs circulates globally which in result can cause damage wherever they travel. 

United Nations Framework Convention on Climate Change (UNFCCC)

It is an international environmental treaty which was adopted on 9th May 1992, and it was opened for signature at the United Nations Conference on Environment and Development. It is also known as Rio de Janeiro Earth Summit or Rio summit. It came into force on 21st March  1994. Almost every country on earth has ratified this convention.

It is an agreement made on climate change and mainly focuses on the prevention of dangerous actions or interference by humans on climate change or on the environment. The parties also agreed towards the stabilization of the greenhouse gas emissions. Every party/country by signing to this convention have dedicated themselves to do the regular reporting regarding the level of greenhouse emissions and also their initiation to reduce the interference. 

World Heritage Convention

This convention was adopted by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) in 1972 and as of 31st January 2016- 193 state parties (including India) have ratified to this convention. The primary objective of this convention is to protect the world’s natural and cultural heritage. It also manifests an idea that few places are so important that their protection is not only the responsibility of a single nation, but is also the duty of the international community as a whole, and not only for this generation but for all those to come. 

International organizations concerned with the environment destruction

Earth System Governance Project (ESGP) 

It started in January 2009. This is a research project and focuses on global change by the human’s action. The objective of the ESGP is to publish research which is concerned with the difficulties of regulating and controlling the global environmental change. By this analysis on the research, the researchers to an extent better understand the roles and responsibilities of organizations institutions and governments in the matter related to the environmental changes.

Intergovernmental Panel on Climate Change (IPCC) 

The IPCC was established by the World Meteorological Organisation (WMO) in 1988. For the assessment of climate change, it is the leading international body and is also the source of scientific information and technical guidance for Parties. The purpose of this organisation/ panel is to offer the world an unbiased, scientific assessment of climate change and its effects.

World Nature Organization (WNO) 

The WNO entered into force on May 1st 2014. Several countries- mainly emerging and developing countries were in favour of setting up a permanent international platform. It committed the protection to the international level and mainly focuses on energy efficiency, protection of the climate, sustainable development and a sustainable energy supply

United Nations Environment Programme (UNEP) 

The UNEP was founded in June 1972 and its headquarter is in Nairobi, Kenya. It’s a coordinating body of the United Nations environmental activities and played an important role in analysing the identified problems related to the environment, took efforts to develop environmental programmes and conventions at regional and international level and encourages the environmental science

International Union for Conservation of Nature (IUCN) 

The IUCN was established in 1948 on the 5th of October and it includes government and non-government members. Its goal is to promote nature conservation and the sustainable use of natural resources around the globe. It also focuses on issues such as poverty, gender equality etc.

Global Environment Facility (GEF)

In the year 1991, the GEF  was established as an alliance among 183 nations. Regarding climate change, land degradation, intentional water, biodiversity and the ozone layer, the organisation finances issues. The GEF provides grants for projects related to biodiversity, climate change, international waters, land degradation, the ozone layer, persistent organic pollutants (POPs), mercury, sustainable forest management, food security, sustainable cities. Basically, the purpose of this facility is to fund these subjects or problems.

Community-based Adaptation (CAB) Conference

Any change in the climate such as earthquake, drought, floods etc. adversely affects the poor or vulnerable people more than the settled and civilized one. The local communities, academics and project managers develop ways to cope up or tackle with the climate change and International Institute for Environment and Development (IIED) has worked to help them by sharing the knowledge developed by them.

IIED organises Community-based adaptation to climate change (CBA)  which focuses on granting the communities to use their own knowledge and decision-making processes to take action on climate change. The upcoming conference will take place in May 2020 at Bangkok, Thailand which will be the 14th conference on Community Based Adaptation to climate change. This conference will bring forth an open and interactive space for the community to meet and explore the transformative solutions.

Youth Climate Summit 2019

The UN Youth Climate Summit, 21st September 2019 took place at the United Nations Headquarters in New York prior to the UN Secretary-General’s Climate Action Summit on Monday, September 23, where the young climate action leaders were given a platform to tell the solutions as they think at the United Nations.

UN Climate Action Summit 2019 

The UN climate action Summit was organised by the UN Secretary-General António Guterres where all leaders were called to New York on 23 September 2019 with a realistic and detailed plans to strengthen their determined contributions by 2020, which was regarding the reduction of the greenhouse gas emissions by 45 per cent over the next decade, and to reduce it to zero emissions by 2050. 

This summit on climate action and also the Youth climate action succeeded as it gathered the attention of the world leaders, government, private sector and civil society on the extremity for action to tackle the climate disaster 

The Summit also exhibited the need to urgently update and reinforce their short-term commitments by 2020, and the mid-term commitments by 2030, that will be shown or represented in their national climate plans, known as Nationally Determined Contributions to the Paris Agreement.

The Summit gave them a good opportunity to exhibit the political leadership of 70 countries which were anxious and also were committed to delivering more aspiring and assertive plans on the climate change in 2020 and the strategies to reduce the emission to zero by 2050.

Conclusion

It is the need of the moment that people, government, leaders etc. to cater to environmental degradation which is getting worse day-by-day due to the ignorance of the people towards the environment. Many government organisations, NGOs etc. have taken initiative to protect the environment but it can only be protected when the people with the understanding and enthusiasm protect and conserve the environment.

Few of the examples where we can see the environment changing due to global warming are:-  Kerala floods India in 2019, where almost all the districts of Kerala were affected, Australia bushfire 2019- in 2020 is still ongoing where many species have died, environment is fully destroyed, pollution has risen in that country and many more issues. 

According to Argentinian research station thermometer, on 7th February 2020, Antarctica has recorded the hottest temperature so far which is 65 degrees Fahrenheit (18.27-degree Celsius) though officially WMO has not verified the finding yet as it will require a panel of atmospheric science experts from around the world to discuss the station’s data.

References

• https://www.unenvironment.org/ozonaction/who-we-are/about-montreal-protocol
• https://www.worldatlas.com/articles/major-international-environmental-organizations-operating-in-the-world-today.html
• https://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf
• https://www.geographyandyou.com/international-agreements-environment-india/

The post International Efforts for Protecting & Improving the Environment appeared first on iPleaders.

This article has been written by Ishaan Banerjee from the Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Indraprastha University. This article explains the doctrine of rebus sic stantibus, its application and its role in international law and also looks at several instances where this doctrine was raised.  

Introduction

The phrase ‘rebus sic stantibus’ (things thus standing) is a Latin phrase that refers to a situation where a contract cannot be withdrawn from or terminated as long as the conditions and circumstances surrounding the contract have not fundamentally changed. This has often been used in the form of doctrine in international law, more specifically in treaty law, and has been a subject of debate and disputes. This doctrine is a part of customary international law but a provision for this doctrine has been provided in Article 62 of the Vienna Convention on the Law of Treaties 1969 as well. In this article, we shall explore the constitution of this doctrine, the grounds, and objectives, as well as cases where this doctrine was used.

What is the doctrine of rebus sic stantibus?

Clausula rebus sic stantibus is a doctrine that allows for the contract or treaty to be withdrawn from or terminated when there is a fundamental change in the circumstances of the contract or treaty. It helps to escape the principle of ‘pacta sunt servanda’, which stipulates that all states must abide by the agreements formed between them in good faith. Pacta sunt servanda is also legally provided for in Article 26 of the Vienna Convention which provides that treaties in force are binding upon parties and are to be performed in good faith.

On what basis can this doctrine be applied?

Article 62 of the Vienna Convention on the Law of Treaties 1969 talks about the fundamental change of circumstances in which rebus sic stantibus can be invoked, however, this is also subject to conditions-

• There must be a fundamental change in the circumstances prevailing at the point where the treaty was concluded to the present prevailing circumstances. Such fundamental change must not have been foreseen by the parties.
• Those circumstances must have constituted an essential basis of the consent of the parties by which they entered and agreed to be bound by the treaty.
• The change has the effect of substantially and radically transforming the extent of obligations of a party under the treaty.
• If the treaty does not establish a boundary.
• If the fundamental change has occurred because of a breach by a party invoking the said change, this doctrine cannot be used to escape the obligations under the treaty. This breach can be a breach of an obligation under the treaty or the breach of any international obligation owed to any party under that treaty.

Objectives of rebus sic stantibus

The doctrine of rebus sic stantibus is not expressly mentioned in any international legal instrument but Article 62 of the Vienna Convention talks about fundamental change of circumstances. This doctrine has been often used in international relations by parties to withdraw from treaties. A state may use this doctrine where-

• At the time of the conclusion of the treaty, the state thinks the terms of the treaty to be beneficial but later might realise it to be unbeneficial. There might be some internal situation in a state where the treaty is found to be detrimental or harmful to the state. In such situations, the state may look to withdraw, terminate, suspend operations or render the treaty invalid.
• State sovereignty and policy might dictate that the state not always follow the terms of the treaty therefore the state might choose to withdraw from a treaty. If the state deems a treaty detrimental to its security or security of its subjects, it may choose this option. 

Therefore, it is observed that often states cite their own internal reasons like protection of its interests, to use this doctrine. This doctrine serves the objective of protecting state interests while simultaneously preventing misuse through the condition of ‘fundamental change in circumstances.’

Conflict of rebus sic stantibus with pacta sunt servanda and international law

There arises a conflict of rebus sic stantibus with pacta sunt servanda and international law due to their opposing nature and this has been a subject of great debate and legal discourse. Some contentions in favour of it are-

• There might be valid reasons for a state withdrawing from a treaty. This can usually happen when a state considers conditions and circumstances prevailing at the time of the conclusion of the treaty to be beneficial to it only to find that that was not the case. 
• The operation of the treaty might also hurt the functioning of the state, and the state may find the treaty to be unbeneficial or even detrimental to the interests of its subjects. 
• Going by the theories of sovereignty given by thinkers like Austin, who defined sovereignty as supreme and unquestionable. The state would work on its own will, therefore withdrawing from treaties whenever it chooses.

Some contentions against the doctrine are-

• While the very purpose of international law is to maintain order in state relations and among nations, there has been a view that providing for the doctrine of rebus sic stantibus in international law would nullify the purpose of international treaty law. 
• There are fears that states may have their own concept of ‘fundamental change’ and would use the excuse of state sovereignty to misuse this doctrine to pull out of treaties. 
•  The criticism arises that absolute power vested in the hands of the state would lead to arbitrary actions and suppression of human freedom and rights, and this would enable a state to do anything it wills, disregarding international law and morality.

Therefore, keeping in mind these arguments, international law has provided for provisions for both the doctrines of rebus sic stantibus and pacta sunt servanda, with requisite conditions.

Invalidity and termination of treaties with respect to international law

Article 42 and 43 of the Vienna Convention stipulate the conditions under international law when a treaty can be terminated. 

Article 42 states that the validity of a treaty and the consent of a party that binds it to the treaty can be impeached only through the application of the Vienna Convention. 

Article 43 states that invalidity, termination, denunciation, withdrawal, and suspension of operations, occurring through the application of the Vienna Convention or through the said treaty-

• would not obstruct or impair the duty of a State which it owes under international law, independent of the treaty. 
• A further simplification of this could be explained as: a State which withdraws from a treaty requiring the performance of a particular obligation would still be required to perform that obligation if other international law instruments to which it is a party, so dictate.

A similar provision to Article 43 of the Vienna Convention is Article 103 of the United Nations Charter, which states that in the event of a conflict between the obligations arising out of a treaty between parties and the obligations under the UN Charter, the obligations towards the UN Charter would prevail.

These provisions serve as a protection against the misuse of rebus sic stantibus as the termination can be done only through the application of the Vienna Convention and a State would still need to perform any obligation under international law even if it withdraws from a treaty, assuming that is it also a party to that international law instrument which stipulates the performance of that duty.

The procedure followed after the termination of a treaty 

Article 65 of the Vienna Convention stipulates the procedure that is to be followed when a treaty is terminated, withdrawn from, rendered invalid or has its operations suspended. The procedure is as follows-

• The party must notify the other parties of its claim; be it withdrawal, termination, operations suspension or invalidity. This notification shall state the measure to be taken. 
• There is an expiry period of three months after the receipt of the notification, during which parties to the treaty are allowed to raise objections against the actions of the claimant party. If after the expiry period, no party has raised an objection, the claimant party can proceed with its stipulated measure according to Article 67.
• In the event of an objection being raised by any other party, the parties shall together operate to get a solution under Article 33 of the United Nations Charter. 

Important cases and examples of the use of the doctrine of rebus sic stantibus

• In 1870, Russia notified the other parties that it no longer considered itself bound by Articles 11, 13 and 14 of the Treaty of Paris 1856, which was a treaty on military shipping. Russia also notified that it was unilaterally withdrawing from the treaty. It used the doctrine of rebus sic stantibus citing that the circumstances had changed as the port of Batoum was no longer free. The outcome of this incident was decided in a conference in London where it was decided that unilateral withdrawal would be prohibited. 
• During the Bosnian Crisis of 1908, the then empire of Austria – Hungary refused its rights and obligations under Article 25 of the Treaty of Berlin 1878. It annexed the territory of Bosnia-Herzegovina despite its obligation to only occupy the territory. It cited fundamentally changed circumstances wherein the conditions had changed in the Balkan states, most notably in the combining of Bulgaria and Eastern Rumelia. This set an important precedent in the use of rebus sic stantibus.
• In 1924, Norway dissolved the 1907 treaty with Sweden. This treaty had arisen out of the dissolution of the Union of Norway and Sweden. Norway cited changed circumstances like the Russian Revolution, the Versailles Treaty and the entry of Norway into the League of Nations. This treaty was restricted by a time limit, but the doctrine of rebus sic stantibus was still held to be applicable, thus setting the precedent that the doctrine is not only applicable to indefinite treaties, but also on definite as well. 

The Fisheries Jurisdiction case

• The most important case of the use of rebus sic stantibus in recent times is that of the Fisheries Jurisdiction case (United Kingdom of Great Britain & Northern Ireland v. Iceland [I.C.J. Reports 1973, p. 3.) In this case, the International Court of Justice judged a dispute wherein Iceland sought to extend its fisheries jurisdiction from 12 to 50 miles.
•  In 1961, the United Kingdom reached a settlement with Iceland that there would be a 12-mile fishery zone around Iceland and in return, any dispute regarding the Icelandic fishing zones shall be referred to the International Court of Justice. 
• However, in 1971, Iceland decided to extend the fishing zone to 50 miles and also decided that the 1961 settlement was no longer in effect. The United Kingdom thus approached the International Court of Justice. 
• Iceland contended that there had been a change in the circumstances since the 12-mile limit was now recognized by both parties through the 1961 settlement and this change necessitated the extension of the zone. 
• The main issue to be dealt with here by the Court was whether it was necessary that there be a transformation of the extent of the obligation to be performed by the party so that a change in circumstances may give rise to the termination of a treaty.
• The Court thus held that the 1978 Icelandic Regulations were a unilateral extension exercised by only Iceland and that it could not unilaterally exclude the United Kingdom from fishing in the areas agreed under the 1961 settlement. It was further held that in order to effect a change in circumstances for termination of a treaty, it is necessary that there has been a transformation of the extent of obligations yet to be performed. The change in the circumstances did not transform the extent of the jurisdictional obligation of Iceland to limit the fishery zone to 12 miles under the 1961 settlement.

Conclusion 

The doctrine of rebus sic stantibus is a controversial one, embroiled in fears of its misuse. It can be observed that international law has, to an extent, laid down the limits of the use of this doctrine through express provision as well as procedure, wherein objections can be raised towards the actions of a party. However, the use of the doctrine is still under the scanner, and it actually depends upon the discretion of the judicial body to determine whether there has been a fundamental change in circumstances along with a transformation in the extent of the obligation to be performed.

References

1. https://www.merriam-webster.com/dictionary/rebus%20sic%20stantibus
2. https://www.law.cornell.edu/wex/rebus_sic_stantibus
3. http://www.duhaime.org/LegalDictionary/R/RebusSicStantibus.aspx
4. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=8268&context=penn_law_review
5. https://www.brainkart.com/article/Austin-s-Theory-Of-Sovereignty-(Monistic-View)_1626/
6. https://www.informea.org/en/court-decision/fisheries-jurisdiction-case-united-kingdom-great-britain-and-northern-ireland-v
7. https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-3/fisheries-jurisdiction-united-kingdom-v-iceland/

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This article is written by Arijit Mishra, from KIIT School of Law, Odisha. This article talks about the Trade Dress Protection in India and the US and how goods and services get Trade Dress Protection.

Introduction

Trade Dress refers to a visual appearance of products which includes packaging, shape and combination of colours which can be registered or protected by the competitors in terms of their business and services. It helps the consumers to identify the product and distinguish it from other products. It also helps an illiterate consumer to differentiate the product based on the packing of the product. This concept was first recognised by the US. The new Trade Marks Act 1999 came into force in September 2003 and is largely based on the English Trademark Act, 1994 which recognized the concept of trade dress on the lines of The Lanham Act.

Objective 

Trade Dress protection is meant to protect consumers from packings or appearance of the product that are designed to take other products. It prevents consumers from buying a product with the belief that it belongs to others. The main objective is also to protect the goods and services from copying. It should be distinct from others. It should not create confusion among the minds of the consumers so that there should not be any unfair use of that product.

Essentials of Trade Dress

The essentials of trade dress are-

• It includes shape, size, colour, texture, product configuration etc.
• Packaging of a product is likely to be unique.
• The colour of the product also gives a distinct identity.

Requirements for Trade Dress Registration

The requirements for trade dress Registration of a product are as follows:-

• It must be graphically represented.
• It must be distinct from others.
• It must be used in relation to goods or services from others.
• It must be in a printed form.

Why protect Trade Dress?

Customers buy products because they like them. It is the visual appearance of the product that guides the customers to buy their preferred product. Even educated customers find difficulties in differentiating two similar looking products. Because of these reasons trade dress should be protected. Trade dress should be protected to prevent customers from confusion while they are shopping and also to protect the interests of genuine manufacturers. And the Products should be unique and distinct from other products. 

Trade Dress Protection in India

In India, there is no specific definition of trade dress under Trademark Act 1999. But due to the development in Intellectual Property Laws, a new Amendment recognised trade dress protection through a new definition of a trademark under Section 2 of the Trademark Act. Trade dress is regulated by the laws of unfair competition. Both State and Federal Laws prohibit businesses from duplicity or imitation.

Section 2 of the Trademark Act states that a graphical representation and the overall appearance of a product which distinguishes the goods and services of one person from other persons like the shape of goods, their packaging and combination of colours. 

This section also defines the term “package” and “Mark”.

“Package” includes any box, container, vessel, bottle etc. “Mark” includes a device, brand, ticket, signature etc, shape of goods, the combination of colours.

Before 2003, Indian Courts started recognising the concept of trade dress. The new definition of a trademark under Indian Law consists of all the elements of the trade dress under the U.S law. As a concept, trade dress may include the design of a cover page of a magazine, the visual appearance of a lamp, design of sports shoes, etc. However, a generic idea and a creative concept cannot be treated as a trade dress. Indian Courts have given protection to trade dress through common law remedy- “passing off” (enforcement against an unauthorised use). 

The shape of goods registration of the trademark is stated in the provision of Section 9(3) of the Trademarks Act 1999.

Section 9(3) of the Trademark Act 1999 states that- A mark shall only be registered if it does not consist of:

• A shape of goods which comes from nature.
• A shape which gives substantial value to the goods.

This shows about the Doctrine of Functionality (it prevents a party from obtaining trade dress in the functional feature of a product) which is recognised under Indian Trademark Law. Distinctiveness is also a key aspect under Trademark and Trade Dress as well, which means a trade dress must be distinctive i.e easily recognised by the consumers. Trademark protection is given for both registered and unregistered trademark, this is also same as to trade dress.

Many of the times Courts have given their decisions based on the trade dress factor of a product. The precedents of Indian Judiciary have also established trade dress as an essential aspect of Intellectual Property Protection. Indian Judiciary has recognised features like the shape of the product, combination of colours and packaging of the product as trade dress.

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Case laws

Colgate Palmolive and Company Vs. Anchor Health and Beauty, 2003

In this case, the dispute was regarding the combination of colour- red and white. The Court held that if the colour of both the products would be same then it will create confusion in the minds of the consumer with regards to the origin of the product. If an illiterate consumer uses another product based on the physical appearance of the product then it amounts to passing off (which is considered as similar to another party’s product, including registered or unregistered trademark).

Cadbury India Limited Vs. Neeraj Food Products,2007

In this case, there was a dispute in the name of JAMES BOND which was similar to GEMS of the Cadbury. The Court held that the word JAMES BOND is physically similar to the registered trademark GEMS of Cadbury. The High Court further held that the packing of Neeraj Foods is also similar to the Cadbury. So Neeraj Foods are restrained from using such packing because it was similar to Cadbury.

Gorbatschow Wodka Kg Vs. John Distilleries Limited, 2011

In this case, both of these were vodka companies. John made the same shaped bottle like Gorbatschow which has a unique bulbous shape inspired by Russian Architecture. The Court held that this shape has a deceptive similarity which can cause confusion in the minds of the consumers. John Distilleries was stopped from using the shape of the bottle for selling their products. 

Parle Products(P) Limited Vs. J.P and Company,1972 

In this case, J.P launched a brand of biscuits which was similar to ParleG. Both the packings of the company’s product looked like having the same colour, similar design and size. The Court held that it has deceptive or misleading similarity, both the packages cannot be kept side by side and cannot be compared. It creates confusion in the minds of the consumers and is not distinct from others. So, the Court’s order was against the J.P and Company which restrained them from using the same colour, design and size.

Steps to Register Trade Dress

• Trade dress can be registered with the USPTO(the United States Patent and Trademark Office) through State registration to get the trademark. 
• You have to show that it is non-functional and it is inherently distinctive. This can be achieved by advertising to promote the product.

Trade Dress Protection in the U.S

In the U.S trade dress protection is stated under Section 43(a) of the Lanham Act which says that trade dress is defined as the overall appearance of the product which may include size, shape, colour combination etc. it is available for both registered and unregistered trade dress (the symbol, word etc. used by the company which is registered under the Trademarks Act 1999 is known as registered trademark and any symbol, word etc. used by the company but is not registered is know as unregistered trademark). For the protection of the trade dress, it should be unique, unusual or widely recognised by the public.

Section 43(a) of Lanham Act provides civil aviation against any person who uses any word or combination of words, term, name, symbol etc. associated with any goods belonging to another which cause confusion. Functional feature of a product is not provided under this act.

Distinctiveness under the U.S law can be classified as- generic, descriptive, suggestive, arbitrary, fanciful. Generic marks cannot be protected under trademark because all the merchants should be equally allowed to use such terms to describe their goods while competing with the customers. Trade Dress is important because it stops the companies from using unfair practices.

Distinctiveness and Non-functionality are the two important criteria for the protection of trade dress in the U.S. It is necessary to follow this criterion for the trade Dress protection, if not compensation should be given to the affected party.

If a plaintiff claims for the infringement, it must prove below the three elements-

• The plaintiff owns a protectable trade dress in a perfect design or combination of elements that is distinctive.
• The accused trade dress creates confusion.
• If the defendant’s trade dress is not registered, then the plaintiff must prove that the trade dress is not functional. If it is registered then the burden of showing functionality lies on the defendant.

The third point mentioned above is interesting and to satisfy it, the trade dress for protection must not be functional. The configuration of shapes, designs, colours does not create any question in the minds of the customers.

If the above three elements for the trade dress are met, then two remedies are available-

• Injunctive relief (the Courts order to stop one party from infringing trade dress of another party)
• Money Damages (compensation for loss suffered by the injured party)

Wal-Mart Stores Vs. Samara Bros Inc, 2000

In this case, Samara had some children’s clothes decorated with appliques and marketed those clothes in the U.S. Wal-Mart and took pictures of that Samara products and also told his suppliers to produce the same. Samara sued Walmart alleging that Walmart had infringed the unregistered trade dress under Section 43(a) of  Lanham Act.

The Court made distinction between packaging and design and also stated that trade dress should be classified as a product design which had a secondary meaning to be entitled for trade dress protection. So, the Court was in favour of Walmart.

The affected party must prove three essentials to recover from trade dress infringements-

1. The trade dress must obtain secondary meaning (potential consumers).
2. The trade dress of the two product are similar and confusing
3. The features of the trade dress are primarily non-functional.

The trade dress infringement relating to passing off has been highlighted by various Courts in the U.S. If the mark and packaging are more distinctive then it will be better to claim protection to trade dress.

Comparative Study of India and the U.S

There is not a lot of difference between the laws of trade dress protection in both of these countries. One of the differences between the U.S trade dress and Indian trade dress is, in the U.S, trade dress gets registered by providing certain conditions, while in India the Trademarks Act does not recognise the term trade dress for which it doesn’t get protection. Certain features like a combination of colours, shape, etc. of the product can be registered. The U.S has an established trade dress protection, but while in India it is still progressing in recognising trade dress protection. But in both countries, they have similar trade dress protection.

Conclusion

Trade Dress protection can also be provided to the shape of the bottle of soft drinks, the shape of the furniture or design of the showroom. Some of the famous trade dress are the shape of a coca-cola bottle, grills of the Rolls Royce car. With growing competitors, trade dress provides a new forum to secure the aspect of distinctiveness. The illiterate consumers can even differentiate the product based on the packaging. The colour of the product also gives a product a distinct identity.

It basically deals with the appearance of the product. It is different from a trademark in a way that trademark deals with words, logos, phrases, emblem etc, which are fixed on that product in order to identify that product from another. Trade Dress is the appearance of the product to identify the producer. Under common law, trade dress may be protected using passing off which provides businesses goodwill.

References

• http://www.mondaq.com/india/x/262928/Trademark/Trade+Dress+Concept+And+Indian+Practice 
• https://legaldesk.com/business/trade-dress-protection-in-india 
• https://www.prometheusip.com/blog/trademarks/trade-dress-an-indian-perspective 
• https://www.upcounsel.com/trade-dress 
• http://www.legalserviceindia.com/legal/article-1239-trade-dress-protection-position-in-u-s-and-india-an-analysis.html 
• https://en.wikipedia.org/wiki/Trade_dress 
• https://corporate.findlaw.com/intellectual-property/trade-dress-the-forgotten-trademark-right.html 
• https://legal-dictionary.thefreedictionary.com/Trade+Dress

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This article is written by Mayank Bansal, pursuing a Diploma in Cyber Law, Fintech Regulations and Technology Contracts from Lawsikho.com. Here he discusses “What legal action you can take when your website is Hacked?”.

Introduction

With the evolution of technology and the cheap data rates, India has become the second-largest internet user’s country in the world, with around 451 million monthly active users in the year 201811. Further, it is also expected that internet users will grow as much as 666.4 million by the year 2023. Although, with this appalling rise in the internet users, the internet-based crime is also increasing, due to which the tech giants are under constant fear of data breaches. According to a report of Computer Emergency Response Team (CERT), there has been 292% hike in the hacking cases in India from 2015 to 201822. Further relying upon which the joint study by PwC India and Data security council of India (DSCI) suggested that the cybersecurity market in India will grow from $1.97 Billion in 2019 to $3.05 Billion by 2022. These reports in end impose a great question, what Legal action should a person take who is a victim of hacking?

What is hacking and who is a hacker and how is it different from cracking?

In a simple word, hacking is a skill of identifying a weakness in network security, through which a hacker could get unauthorized access to personal data. Although with the term “Hackers” there are general misconceptions among the people, that the hackers are the bad people, who act illegally in order to gain unauthorized access to personal information of the individual. However, in actual, there are three types of hackers -white, black and grey hackers and depending on the type of hacker there are categorized as a good or bad hacker.

• White Hat Hackers

White hat hackers are considered to be good hackers, who are generally employed by the tech organizations in order to strengthen the security of their systems. These hackers have prior permission to exploit the organization’s security networks and look for the loopholes in their system. These hackers intimate the organization about the loopholes in their security so that it can be fixed. 

• Black Hat Hackers

Black Hat hackers are considered to be bad hackers, who attempt to gain unauthorized entry to the personal information of the individuals and exploits them for malicious reasons. This kind of hackers tries to inflict damage on the organizations by compromising their system, altering functions of the websites or shutting down their whole systems. 

• Grey Hat Hackers

Grey Hat Hackers, tries to exploit the networks in a very similar way as the black hat hackers do, but the Grey hat hackers exploit the networks without any kind of malicious intent, as they disclose the loopholes in the networks to the administrators or the intelligence agencies. These people generally also offer to fix the vulnerabilities by charging a nominal fee from the network owner.

So, Hacking could be considered as a process of gaining access to computer systems without any authorization, for either good or bad purposes. However, it is not necessary that the hackers are behind all the cyber-attacks in societies. We’ll truth is that our media uses the term “Hacking” in a derogatory sense to describe all the cyber-attacks. In fact, the Majority of cyber-attacks fall under the definition of “Cracking”.

The basic difference behind the “Hacking” and “Cracking” is that Hackers work towards building the security of the network, whereas the Cracker work towards breaking it. Crackers also gain unauthorized access to a computer system, but with a criminal intention. In other words, they act as Black Hat hackers, by stealing personal information of users or by destroying important files, disclosing crucial information’s or by selling sensitive data of individuals for personal gains. 

Laws against Black Hat Hackers/Crackers

In India, the Information Technology act, 2008 tries to protect every individual from the Black hat Hackers i.e. bad hackers/crackers. Section 43 (penalty and compensation for damage to computer, computer system, etc) of the act, specifies almost every kind of hacking/cracking offence from illegal access, extraction of data, contamination of data, network disruption, denial of access, manipulation of data, destruction, removal or alteration of data to data theft, illegal concealment of data, etc. Further, this section imposes a penalty on a hacker/Cracker, to compensate for the damages which are incurred by the victim due to his acts. Adding to this, Section 66 (computer-related offences) of the act further punishes the individual, who dishonestly or fraudulently does any act referred under Section 43 of the Act, with the punishment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both. 

Therefore, relying on these provisions, one should rest assured that the Indian law duly supports the innocent people against the act of hacking.

Now, if the website of any organization is hacked then he should firstly stay calm, as he is protected by the law of India. Now as an immediate action, he should take the following steps:

• Take the website offline: as an immediate step the organization shall temporarily shut down the website, while it is fixed and protected. This step is taken to prevent further damage to the clients of the organization.
• Secondly, immediately file a cyber complaint: as an immediate step, file a cyber complaint in the cyber cell of the district in which the registered office of the organization is located. If there is no cyber cell in the district, the organization could also file a complaint online www.cybercrime.gov.in (which also provides an advantage of tracking the complaint, which is otherwise not available) 

A cyber complaint is drafted in a very similar way as FIR is drafted. The important thing to remember is that all necessary details of the crime are mentioned in the complaint. Further, with the cyber complaint, some copies of documents are required to be attached, which are generally not attached when the FIR is drafted. Here I am providing the general list of documents which are indicative but not the exhaustive list of documents, to be attached with any cyber complaints:

• Server Logs:  A copy of the server log shall be necessarily attached to the complaint. This log file contains details of the activities which are performed on the portal on the day to day basis.
• Hard as well as Soft copy of the defected material: a copy of the material that has been affected by the illegal act of the hacker. This is submitted as evidence in a cyber cell.
• Hard Copy of portal: Hard copy of the original portal and the defaced one shall be attached to the complaint. So, as to show the material defect caused by the hacker. 
• Personnel Details: An Organisation shall attach a comprehensive list of the employees with their cyber complaint, who is having access to the source codes of the websites.
• Suspicions: if the organization is suspicious about the hacker, then they shall mention the name of such suspected person, in their cyber complaint. It could help the cyber cell in its investigation.  
• Thirdly announce in the public: well reader might find it shocking, Why I am asking the organization about informing the public about their network breach?

Because it is important to understand that poorly handled cyber-attacks, could impact the long-term reputation of any organization, further affecting the customers and investors of the organization for years. Although, I duly accept that declaration of cyber attack in the public would affect the reputation of an organization, but for the short term. However, the early strategical communication about the cyber-attack could prevent further damage to the organization and its clients. Therefore, considering this, a clear and consistent message from the organization, could make a huge difference by minimizing the long-term reputation impact on the organization.

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Complications while pursuing legal actions against Hackers/Crackers

• NON-ACCEPTANCE OF COMPLAINT BY POLICE OFFICIALS: While filing a physical complaint in the local police station where the victim is located, or where the offence is committed against the individual, it is often found that cyber cell and police station dispute their jurisdiction, as generally, the crime does not place in the area in which the organization is located. As cybercrimes are considered geography less and borderless. 

However, to avoid the harassment of Police station and cyber cell, the government has initiated an online portal (www.cybercrime.gov.in) for filing a cyber complaint. Wherein, a complaint, can easily file their complaint and it will be automatically assigned to the respective cyber cell/Police station. Further, Complainant gets an added advantage of tracking the status of their complaint, if the complaint is lodged through this portal. 

• NON-TRACEABILITY OF HACKER/CRACKER: It is often found, that in the majority of cyber complaints, Police are unable to trace the accused person, who is behind the hacking/cracking. The reason behind this is that Hacker/Cracker often use High-Security VPN’s while initiating any crime, which makes them highly untraceable. Further, the cyber cell team or the police officials in India are not trained enough and often lack the appropriate infrastructure to track the accused person. Therefore, the government shall invest in the training and infrastructure need of the cyber cells. 
• VERY FEW CYBER-CELLS: India, currently have very few cyber cells and the majority of them are located in the Metro cities. On the other hand, Complaints in other cities are lodged in the Local Police Station. Wherein, Police in charge, often lack the basic information about the use of technology, which makes it rather impossible for them to take any action on the cyber complaints. Although, with the increasing rate of cyber-crimes, the government shall consider a need for establishing at least one cyber cell in every district throughout India. 

Conclusion

While ethical and unethical hacking/cracking is old concepts. But many people in the country are not aware of it. People are not aware of the potential harm which could be posed by the act of hacking in their lives and the remedies available against these illegal acts. The reason for this unawareness is the simple reason that the majority of Indians have got access to the internet very recently. But the hackers are the professionals, which had great experience of playing with source codes. They are proficient enough to hack, even the tech giants’ corporations. Majorly bad hackers/crackers usually work by blackmailing the individuals and corporations for fulfilling their demands, this can be seen in the recent popular case, wherein the Crackers got the early access to the episodes of Game of throne, they demanded 10 million dollars from the poplar streamer HBO33. This kind of blackmails bring in a panic in a organizations/individual, and the organizations/individual forgets about their legal remedies and fall under the trap of the Hacker/Cracker by fulfilling their demands. However, the corporations/individual should know that in India the Information Technology act, 2008 under its section 43 allows the victim to recover the damage without any cap on recovery, although before 2008 there was a cap on the recovery of damages, which was limited to one crore Rupees. Since now there is no cap on the recovery of damage, the organization/individual should not fall under the blackmailing traps of the hackers. Rather they should seek a legal remedy, by filing a cyber complaint on the matter. Further, I believe that the government should take appropriate measures in informing about the cybercrimes and the measures for their prevention. Also, I agree the laws against the hacking are stringent, but they are often unenforceable, as the majority of minor hacking/cracking cases are unnoticed, because the victim is unaware of their legal remedies. Therefore, I believe that the government should also promote awareness about the remedies available against cybercrime. 

Endnotes

1. https://economictimes.indiatimes.com/tech/internet/india-has-second-highest-number-of-internet-users-after-china-report/articleshow/71311705.cms
2. https://inc42.com/buzz/heres-how-much-an-average-data-breach-costs-indian-companies/
3. https://tvline.com/2017/11/21/game-of-thrones-hacker-charged-hbo-season-7-behzad-mesri/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Mayank Bansal, pursuing a Diploma in Cyber Law, Fintech Regulations and Technology Contracts from Lawsikho.com. Here he discusses “What legal aspects you should remember while developing a technology where many different agencies and parties are involved”.

Introduction

The revolution in the internet and technology has completely changed the work environment of every business corporations existing in the market. As today, almost every corporations from small scale to large scale do some kind of collaborations, outsourcing and pass some of their burdens to professionals available in the market. In other words, it could also be said that the technological revolution in the societies, has brought a new era of development, where almost every corporation is exploring a new model of inter-corporation collaborations, to boost their flexibilities, innovations, and competitiveness in the market. 

Although there is no doubt that the process of outsourcing and inter-corporation collaborations brings in the innumerous benefits to the corporation, as it increases the efficiency of the corporation as the outsourced project is handled by the expert personnel. Further such outsourcing provides cost advantages to the organization, as they do not need to invest their time and money in the department, in which they do not have expertise. 

However, with the innumerous benefits of outsourcing and inter-corporation collaborations, there remain few downsides, which need to be carefully determined to fulfill the milestone of the corporation. For this software/technology development agreement is generally signed between the parties and if this is properly drafted, it will ensure the dispute free operation of the corporation. In this paper, I will summarize the important clauses which must be made part of the technology/software development agreement. But before going to that let’s first find, what are the general disputes in technology/software development, when various parties or agencies are involved.

General Disputes in Developing Technology where different Agencies are involved

1. Achieving Milestone: This is a general complaint in almost every kind of software development where different agencies are involved and there is nothing worse than paying a developer when the projects are not completed as has been expected by the corporation or the development are not completed in the time stipulated by the corporation.
2. Integration of development with the existing system: The development could happen as has been expected by the corporation. However, there is always doubt, whether such development could be integrated into the existing structure of the corporation.
3. Intellectual Property: This is another very major dispute in every technology/software development. If the development agreement between the parties remains silent or ambiguous on this aspect. Then there is a very high possibility of creating chaos between the parties, over the ownership of such development. 
4. Support: Every organization, who is getting the technology/software developed from 3rd party, would wish to have future support and maintenance from the developer over the technical glitches. But ever expected, what will happen if the development agreement remains silent on this aspect.
5. Breach of confidential information: Often, in today’s technological developments, personal data of clients and employees are shared by the corporations to the developers. However, it is a general complaint in such developments, that data is not securely stored by the developer or the developer has sold/shared out the confidential information to the 3rd company or developer has not erased such confidential information after fulfillment of the agreement.
6. Consequences of failure: with the rapid transformation in technologies and increased competition, completion of the proposed project within the deadline is a must for survival of the corporation. However, this is also a regular complaint that the developer does not accomplish the development within the proposed time. Therefore, unless the software/technology mentions the harsh consequences for the delay, there is no way to solve this critical issue.  

These above-mentioned points are some of the critical issues which are often disputed in the majority of third-party software/technology development project on a regular basis. Although the roots cause behind such disputes are the vaguely drafted development agreements, because before entering into the agreement, parties do not realize the significance of the technology/software development agreements and in majority of cases parties simply refer to the template which are available online, without consulting any lawyer, which at the later stage leads to the above-mentioned disputes.   

Therefore, it is important to understand the significance of the technology/software development agreements. It is a very critical agreement, which has the ultimate power to alter the relationship between both parties and safeguard their interest.  Further, it is also important to understand that every agreement is drafted on completely different aspects, one cannot simply refer to the templates which are available online, without consulting any professional. 

As a first step before entering into any kind of development agreement, a checklist should be created to understand the requirements of parties and to find the various aspects on which such agreement shall be drafted.

In this part of the article, I will refer to important clauses, which every kind of technology/software development agreement must include to ensure smooth and dispute free developments. Further, this part would also help the reader in creating the checklist for technology/software developments. 

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Clauses which every Technology/Software Development Agreement must include:

• Description of project: Obviously as a first step, parties should unambiguously define in their agreement the development services, which need to be completed. Further, it is important to attach a document of specification or blueprint of the proposed development, which helps in comparing the standards of the developed product with the proposed specification. 
• Milestone & the cost of the project: every payer would like quality service with the cost certainty. However, the cost of every kind of development projects is linked to the development time. Unfortunately, it is generally found that the cost and time of software/technology development blow out the pocket of the payer/client. However, the best way to avoid this is to break down the development into separate parts and fixed the delivery time of each part. Accordingly, the specified funding shall be released to the developer. 

• Transfer of Intellectual property: This clause would determine, who will own the ownership over the source codes or any other material, which is produced under a development agreement. This is the most contested clause between the client and developer and often came as a deal-breaker for the development agreement. 

Majorly two kinds of ownership options are preferred by the parties, which range from sole ownership of the client over the development, to the sole ownership of the developer with the client merely having a license to use his source codes/software. 

Both parties need to determine their needs and shall negotiate over this issue accordingly.

• Integration of Software: As a client/corporation you would certainly want to oblige your developer to integrate his/her development to your existing software and system, for this you need to have such clause in your agreement. Further, such a clause should also clarify, whether the developer integration services would be subject to separate charges or not?
• Warranties and Indemnities: Every development agreement shall contain this clause. This clause came as a promise from the developer that his/her development will work the way proposed by the client/corporation, and that the developer is liable to fix it free of charge if it doesn’t. However, for developers’ essential point to remember is to clearly describe the period till which such warranty will last and thereby avoid making indefinite warranties. 

This clause might also include a warranty from the developer, that his/her development does not infringe any third person intellectual property rights.

• Confidentiality: Often, today’s technological developments require the transfer of confidential information of the corporation and their client to the developer. Therefore, to safeguard the confidentiality of the corporation, the technology/software development shall include this clause which bounds the developer to keep the confidential information securely. Further, this clause shall also include a time frame after which the developer shall be bound to erase all the confidential of the corporation from his/her database.
• Termination: This is a must-have clause for this kind of agreement. The clause comes handy when a party to the agreement want to terminate any agreement either due to breach of any term or for any other reason set out in the agreement, which empowers a party to terminate an agreement.  This clause shall be drafted carefully and clearly state the answer to the following questions:

• Who can terminate the agreement?
• Process of terminating the agreement.
• Circumstances under which a party could terminate the agreement.
• What will happen to the development which took place prior to termination?
• What will happen to confidential information which was shared by the parties with each other?

• Support and Maintenance: Corporation/client shall always consider for future support and maintenance while getting any product developed through the third party. It is recommended that in a development agreement the corporation/client shall negotiate with the developer on this clause and set out the fee which would be charged by the developer on the annual basis for such support and maintenance. 

• Disputes Resolution: while going to a court for settling the dispute is considered very expensive and time-consuming process. Therefore, it is important to have a clause which prescribes some procedure for resolving the disputes. Parties should prefer arbitration or mediation as their dispute resolution mechanism.

Conclusion

Having Technology developed from different parties/agencies is a very complex process. It is vital that both the corporation/client and the developers are on the same page regarding the development work be it a cost of the project, timeframes of development or the intellectual property rights, etc. Here, the technology/software development agreement plays an important role by ensuring the smooth and dispute free operation of the whole project. Therefore, it is vital to understand the significance of this agreement for every corporation/client, who is outsourcing any kind of development project to third party agencies.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post What legal aspects you should remember while developing a technology where many different agencies and parties are involved appeared first on iPleaders.

This article has been written by Kavita Chandra, from Vivekananda Institute Of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University, Delhi. She has discussed the meaning, need and relevance of International Law. For better understanding emphasis has also been laid on the difference between International Law and Municipal Law and the sources of International Law.

Introduction

Law is the element of the society which helps to develop a framework within which rights and duties can be established. The world today requires a method where interstate relations can be conducted, and International Law fills this gap. The United Nations developed this body of International Law for the purpose of promoting international peace and security.

Countries come together to make binding rules that they believe will benefit their citizens. International Laws promote peace, justice, common interests and trade. States work together to strengthen International Law because it plays an important role in society. International Law is directly and strongly influenced by the writings of jurists and publicists, instructions to diplomatic agents, important conventions even when they are not ratified, and arbitral awards.

Definition of International Law

According to Oppenheim, International Law is a “Law of Nations or it is the name for the body of customary law and conventional rules which are considered to be binding by civilized States in their intercourse with each other.”

Thus, International Law can be considered as treaties, set of rules and agreements between countries that are binding between them. International Law governs how nations must interact with other nations. It is extremely useful in regulating the issue of jurisdiction which arises when people trade among different States. The main purpose of International Law is to promote justice, peace and common interest.

Relevance and Function of International Law

International Law grew out of necessity. As International engagement increased, International Law expanded. International Law is the most convenient form of regulating world order in the present-day world. International Law aims to maintain international peace and security, which provide for fundamental rights, freedoms and human rights, to refrain the State from the use of threat or force against the territorial integrity of any other State, to provide for the right of self-determination to people, to solve International problems by achieving International cooperation, to use peaceful means for settlement of international disputes.

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Principles of International Law

International Law is based on the following two principles:

1. Jus Gentium: These set of rules do not form part of a legal statute but mutually governs the relationship between two nations.
2. Jus Inter Gentes: These refer to those treaties and agreements that are accepted by both countries mutually.

International Law provides effective means through which peaceful settlement of disputes can be done. It is mainly concerned with the rights, duties and the interests of the State.

Classification of International Law

International Law can be classified into two groups:

Public International Law

Public International Law is regulated by the treaties and globally accepted norms and customs which are included as State practice and opinio Juris. It regulates the relationship between those nations and peoples that are prone to be affected by a particular law as they are bound by these legal codes and rules.

Private International Law 

It regulates private conflicts between individuals rather than the States. It seeks to resolve disputes in the domestic municipal body which involves an issue revolving beyond its domestic jurisdiction. 

What are the sources of International Law?

The sources of International Law are treaties, custom, general principles of law recognized by civilized nations, judicial decisions and teachings of publicists.

Treaties

The concept of treaty is based on pacta sunt servanda, which is a customary law principle which means promises must be kept. In a treaty, countries create their terms of rights and obligations out of their volition, thus it is very similar to a contract. Therefore, a treaty is a written agreement between two or more States which lays down the manner in which every State would act while doing dealings with other participating States. Sometimes, in place of treaties other terms such as charters, declarations, conventions and statutes are often used. However, there is a slight difference in meaning of these terminologies.

Custom

Custom is one of the primary sources of International Law. In International Law, it is considered to be of particular importance because of its decentralized nature. Two conditions are essential for an act of a State to constitute as custom:

1. The first being the State practice itself, it is not necessary that the act of a State necessarily needs to be positive in nature. State practice should be extensive, uniform and consistent and prevail for at least such a period of time as would establish it as a recognized act of States. 
2. The second essential is opinio juris, which means, the psychological belief of a State that its act is creating a legally obligatory position for itself. But it should be noticed that not every activity of a State would necessarily create binding rules of customary law. For instance, if a particular pattern is used by the State on a particular issue in the General Assembly, it is reflective of the maxim opinio juris.

General Principles of Law

As in International Law there is no cohesive body for legislating laws or any Court that has the power to set precedents, thus it is relatively undeveloped as compared to the Municipal Law. Article 38 of the Statute of the ICJ provides for ‘general principles of law recognized by civilized nations’ as a source of law.

In the Chorzow Factory Case, the general principle of International   Law, it is the duty of a State to make reparations upon the breach of an international obligation, was recognized by the Permanent Court of International Justice. In the Corfu Channel Case, while referring to circumstantial evidence, the ICJ pointed out that ‘in all systems of law indirect evidence is admitted and its use is recognized by International decisions’. The principle of res judicata is too recognised by International Law.

Judicial Decisions

As per Article 38, judicial decisions are recognized as subsidiary means of determination of law. Article 59 of the Statute of the ICJ states that the decisions of the Court can only guide them but does not have any binding value on the Court and the court is authorised to apply the previous decisions of the court which are known as the evidence of International Law. Thus, the doctrine of stare decisis is not followed in International Law. 

ICJ through its case laws, advisory opinions and judges role-play a major role in the law-making process. One of the major examples of this was laid down in the case of Nicaragua vs. USA where the principle of the prohibition against the use of threat or use of force was recognised. This principle is now considered to be a part of Customary International Law.  In another case, that is, Alabama Claims arbitration, ICJ gave recognition to the peaceful settlement of international disputes. In this, judicial and arbitration methods were used in resolving conflict.

Writings of the Publicists

As per Article 38, teachings of the highly qualified writers of International Law such as Gentili, Grotius, and Vattel are considered as the subsidiary means of determination of law. The role of the writers is extremely significant in providing a structure and coherence in the field of International Law. Textbooks are used as a method of discovering law on any particular point and law cannot be created even by the writings of the most respected International Lawyers. As they provide an understanding and explanation of the principles of International Law these are considered as an evidentiary source of law. 

Can International Law be termed as a true law?

There has been a lot of controversy regarding this question. Some answered the question in negative while others in the affirmative. Some feel that International Law lacks the element of certainty, stability and predictability.

Not a true law 

John Austin, a leading English writer on Jurisprudence supports the view that International Law is not a law. As per him, International Law is a code of moral force and rules of conduct only. In his opinion, International Law does not have any sanction behind it and it doesn’t emanate from a law giving authority. He described International Law as the one consisting of positive International morality and opinions or sentiments which are followed by the nations as per their own wish.

Hobbes and Pufendorff are also of the view that International Law is not a true law as the law is not truly invested with true legal force and it is not backed by the command of a superior.

Holland is of the view that International Law is extremely different from ordinary laws as it is not supported by the State’s authority. As per him, the private law is writ large. He describes International Law as the vanishing point of Jurisprudence. He is of the view that as International   Law lacks sanction (which is the most important element of Municipal Law) it can not be kept in the category of true law. 

A true Law

Hall And Lawrence consider International Law as true law. According to them, International  Law is derived from custom and precedents which are a source of law and it is habitually treated like a certain kind of positive law.

Sir Frederick Pollock observed that for International Law to be binding upon the members,  the only essential conditions are the existence of political community and the recognition by its members of settled rules binding upon them in that capacity. International Law wholly satisfies these conditions. 

What is the difference between International Law and Municipal Law?

The basis of both laws is different in many ways.

• Firstly, International Law is majorly concerned with the relation among States. Whereas Municipal Law controls the relationship between individuals and the State and between the individuals within a State.
• Secondly, in the case of International Law, the law is not above the individuals but between the sovereign States and the States themselves create the law. In International Law, the States often disobey the laws or create laws as per their interests. Whereas in the case of Municipal Law, the law is deemed to be above the individuals, as is the case with the laws of most of the countries, the law is deemed to be above individuals. 
• Thirdly, the sources of both laws differ. Article 38 of the Statute of the ICJ is considered as the most authoritative statement of the sources of law for the Public International Law. It states the sources of law such as customs, conventions, treaties, general principles of law recognized by civilized nations and judicial decisions and teachings of highly qualified publicists. Whereas in the case of Municipal Laws there is a hierarchy of laws which determines, which legal commandment is more authoritative than others. For instance, in many countries, a hierarchy of courts is established wherein the judgments of higher courts are of more authoritative value and thus are relied upon by the lower courts.

Conclusion 

International Law is a set of rules which are necessary in order to regulate the behaviour of nation-States towards each other so as to ensure peace and welfare of the International community. It helps in resolving disputes amongst States. International Law may influence internal laws too and may become a part of domestic law.

It is not necessary for International   Law to be codified into an agreement. There have been a lot of developments in the Modern International Law and the International Court of Justice is considered as the principal body responsible for upholding the tenants of International Law.

References

1. https://legalcareerpath.com/international-law/
2. https://www.academia.edu/27871613/PUBLIC_INTERNATIONAL_LAW_LECTURE_NOTES
3. https://www.justia.com/international-law/
4. https://www.un.org/en/sections/issues-depth/international-law-and-justice/index.html

The post Nature and Definition of International Law appeared first on iPleaders.

This article is written by Shweta Rath, Team LawSikho.

I grew up playing the Age of Empires. It was such a fun game! 

If one were to pick a name for today’s age- it would certainly be called the age of start-ups. The global startup economy has generated a whopping $2.8 trillion in economic value (according to the report submitted by Forbes on May 09, 2019) over the past two years.

In India alone, there has been an addition of over 1300 start-ups in 2019 and it is considered to be the third-largest start-up ecosystem in the world after the United States of America and China!

How does that affect lawyers?  Apart from the diverse work that a lawyer can perform for startups, today I want to share with you the specific areas of competition law that are relevant to some of the practices in the startup industry.

In principle, high-growth startups of today seek to expand and ‘dominate’ the market – whether it is global, national or local. That’s how the competition concerns begin. 

Let us examine the most common practices that may run foul of competition law. 

#1 The Big Daddies May Consume Small Start-ups

The most concerning problem that the start-ups are facing today is the rising exploitation at the hands of the big daddies of the technology world which are: the FAAGM (Facebook, Amazon, Apple, Google, and Microsoft).

All these companies today are facing global investigations by competition authorities. Google has alone been penalized in the European Union (€ 5.4 Billion) and India (INR 137 crores). 

It all started with Microsoft being the oldest all that has spent a decade fighting antitrust battles. 20 years ago, Microsoft faced a challenge from the upstart company Netscape and its internet browser, Netscape Navigator. The suit accused Microsoft of illegally protecting its operating-system monopoly and seeking a new monopoly for its own browser, Internet Explorer.  Microsoft eventually lost that battle due to which today we users get to choose which internet browser we want to use. 

But now companies like Google and Apple are facing such allegations.

For example, Spotify, an international media service provider has alleged that Apple uses its App Store to stifle innovation and limit consumer choice in favor of its own Apple Music service. 

This is because Apple takes a 30% cut from Spotify on every Spotify subscription signed up via the App Store during the first year, and then 15 percent each year thereafter. Paying this kind of money forces Spotify to inflate its prices which makes it less competitive than iTunes. 

According to Spotify, Apple is abusing its monopoly in its app-store space.

What is your take on this issue? Do you think Apple is abusing its dominant position? Do let us know by commenting below!

Because of such instances, startups are of the opinion that this kind of tight grip that digital giants like Google and Apple have over distribution makes it very difficult for them as new players in the industry to not only make money from consumers but also grow as a brand.

This is a common tactic used by big players that are aware of the dependency that small players (who are also their competitors) have on them. Therefore, big tech dominance is a very crucial issue with more and more start-ups calling out the big daddies. 

Majority of the competition enforcement in India has been taking place in this particular area where lawyers have been involved in fighting cases under Abuse of Dominant Position. As mentioned above, the landmark ruling came in when Google was heavily penalised for the first time in India. 

Therefore, in the coming days, following the changes in the Act, we can see a lot of litigation cropping up where ‘informants’ will be filing information under Section 4 of the Act trying to dismantle the rising monopolies.   

#2 If you can’t kill, buy them

This is the golden rule that is being followed by these big tech giants who foresee a possible threat in the form of rising start-ups that cannot be competed with. 

Google leads the pack with around a whopping 236 acquisitions while Facebook to date has acquired over 70 companies with most of them being start-ups (most famous one being Whatsapp which was acquired for $19 Billion and Instagram for $1 Billion).

Due to this reason, a certain amount of customer-based innovation is dying out because start-ups are becoming more inclined towards acquisition-based innovation whereby they project themselves to get acquired by one of the big techs in 5-7 years. This not only protects but reinforces the dominance of these big tech companies. 

The biggest example has been the Walmart-Flipkart deal (A deal worth $ 16 Billion dollars) which opened the floodgates to more and more FDI in India. We welcomed 2019 with Zomato’s acquisition of Uber Eats. The CCI is looking to expand its combination division (the division which reviews all such merger/acquisition/amalgamations filing for approval). 

Infact, in 2018, a total of 118 acquisition deals were recorded in the Indian startup ecosystem. Do you know what this means for the merger control circle in competition teams in law firms? Even in-house counsels in such companies are required to pursue specialized training in competition law to ensure that the acquirer is able to pass safely through the CCI’s scanner.  

The workload is only going to multiply and firms in the coming days will be looking to hire more and more competition lawyers to cater to the rising demand of workload of transactions. 

#3 Deep discounting

Deep-discounting is the go-to strategy for all rising start-ups today. 

Even if it comes at the cost of heavy expenditure. Uber alone burnt $1 billion cash in 2019. The e-platforms follow a “growth over profit” model of business, and as such many small offline players that ride on these platforms are now feeling the “heat”. 

Discounts have eroded the value of their products, making it difficult for them to sustain their businesses.  The CCI has finally taken a step towards this issue by releasing its recent report on “market study of e-commerce in India”. 

We even wrote about it a few days back. Check it out here.

This is another area of competition enforcement which has found new ground. It all started with ‘Informations’ being filed against ride hailing apps like Ola and Uber which were alleged to be engaged in predatory pricing and deep discounting. Now such cases have spilled over to companies like OYO, MakeMyTrip and  Zomato as well. 

You can see a lot of traction in the coming months with respect to such cases being filed in the CCI. Competition lawyers will be expected to represent companies and the associations and informants who are involved in such cases. The main bone of contention in such cases will be to determine the dominance of these startups to engage in such harmful predatory pricing. 

 This brings us to our next issue. 

#4 Difficulty to ascertain dominance in India 

In India, it is not easy to penalize these start-ups for predatory pricing as it comes under the provision of abuse of dominant position and to date, our competition law does not have a provision for collective dominance. 

This means, unless a start-up is held to be dominant, you cannot bring a case of predatory pricing/aggressive discounting. This is the reason why all the emerging startups/unicorn startups/tech giants are going scot-free. 

The CCI has maintained the position that while the industry evolves rapidly, with changes and competition going nail-to-nail, it is not easy to ascertain one market leader in this space. This is why most of the cases under “abuse of dominant position” have been dismissed. 

Google has remained the one exception because, in the market of search engines, it does have an unparalleled dominance which it has been exploiting by giving preferences to some websites over others in terms of search results. Moreover, it is no longer a start-up. It was accordingly penalized for its conduct in 2018 with a penalty of INR 137 crores which are still in appeal before the NCLAT. 

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Now competition lawyers are using a different technique to target the rising startups. They are challenging the nature of the agreements (which comes under Section 3), that startups impose upon their stakeholders. The Amazon & Flipkart investigation order is one such example. Since a Section 4 case remains difficult to argue, a Section 3 case becomes easier to take up because there you don’t have to ascertain dominance. The order of the CCI against Amazon & Flipkart is just the beginning of many such cases.

In such matters, transactional lawyers will be expected to upskill and become adept with vetting contracts from a competition point of view to ensure that clauses mentioned in those contracts should not violate the Act in any manner.  Alternatively, they will simply pass the review work to dedicated competition teams in the law firms. 

If you are an independent practitioner who has been a competition lawyer earlier, you may be given some portion of this work through your existing networks or of-counsel relationships with big law firms.

#5 Anti-poaching agreements

This is an issue that has been cropping up outside India and was started mostly by the big tech companies. Now, this issue has also percolated across the start-up industry!

Last year, a US district court judge ruled that Apple, Google, Intel, and Adobe will have to shell out $415 million to put to rest an anti-poaching civil lawsuit that accused the companies of conspiring not to hire each other’s employees. The fear of losing talent and ideas is a very real concern for all employers, including start-ups. 

However, A non-compete that provides for an employment restriction for a short period of time (i.e., under two years), limited scope of focus of employment (i.e., only competitor employers and similar job position), and limited geographic scope could still substantially limit the movement of employees bringing in the focus of competition authorities. 

In order to address these issues, start-ups are bringing in non-disclosure agreements to protect their confidential information and trade secrets. However, start-ups are still figuring out a LEGAL way to retain their talent and not let them cross over to competitors which will not attract anti-trust/competition scrutiny.  Competition lawyers have to work with the employment lawyers to figure out a workable method which will avoid CCI scrutiny. 

Can you suggest a measure against this practice by these biggies? Let us know by commenting below!

The way forward for competition lawyers operating in the startup space

The big tech companies no doubt have too much power. As Peter Thiel wrote in Zero to One, the strategy used by companies to expand is to dominate the market segment they operate in. Therefore, start-ups are being acquired, or are decimated by big players as their market is eaten up. 

By design, strategies to dominate have a high tendency to run foul of competition law provisions. Some start-ups like Snapchat are still trying to resist the pressure by revamping corporate structure and bringing in innovation. 

As a competition lawyer, you will either defend a market leader or be on the side of the informant. You could even represent both sides of the table in different scenarios, as long as your work does not conflict, and as long as you do not take opposing stances against your client. 

What’s in it for you? The work for competition lawyers is expanding. The opportunity to rise up the ranks and be a well-known competition lawyer has not saturated yet. The road is vast open. The anti-trust law has not been completely solidified on this front as it is new waters for the authorities. The CCI has been trying to follow the footsteps of its EU and US counterparts but considering the importance of start-ups in India, it has expedited the process. Right now, we still don’t have a hard-core order against the practices of start-ups or the exploitation suffered. 

However, with the upcoming investigations, and the amendments in the Competition Act, we should be prepared for regular updates and changes in the law. And the best part is that it will be the fraternity of practitioners who will ultimately bring about this change with the rising complexity in matters!

In a time like this, corporate lawyers are certainly expected to get some solid expertise in this field so as to make a constructive contribution. 

• There is going to be a massive requirement of competition lawyers in the corporate firms – preferably with a background of cyber and IT laws to work on the transactions pertaining to merger/acquisitions or amalgamations of startups. 
• Such combinations should also be prepared to face resistance from some third parties like it happened in the case of the Walmart-Flipkart merger which is currently in appeal before the NCLAT
• Lawyers will also be required to do policy research and suggest new amendments in the Act which will cater to FDI in startups in India.
• As mentioned above, the competition enforcement scenario is also gaining momentum  with the increase in cases under Section 3 and 4. Hence, effective competition litigation is of vital importance. 
• A major issue that has been cropping up is that companies are trying to stifle the powers of the CCI by filing writs before High Courts challenging the investigation orders passed by the CCI. Very recently, Amazon challenged the investigation order in the Karnataka High Court. Companies usually try filing such writs outside Delhi to gain attention of courts in Mumbai, Madras, Bengaluru etc and make it more difficult for the CCI to operate. Therefore, now the fight is spreading geographically outside Delhi. 

To learn more about how you can perform real work for clients, you can explore the Certificate Course In Competition Law, Practice And Enforcement. You will have an opportunity to attend 1 online live class per week (after work hours – you can watch a recording if you cannot attend the live session and ask your doubts later), perform 2 simulation exercises and receive in-line feedback on your drafts, access online study materials (along with hard copies despatched to your address), doubt clearance within 24 hours and a lot of other benefits that you can find on the course page with details.

The course is aimed at bringing you at par with at least 1 year of post-qualification experience in a top law firm, in as little as 3 months’ time. Independent lawyers and professionals who specialize in a different area will be adequately empowered to spot competition concerns and deal with them. If you are a student, securing internships becomes a super-streamlined process, as you would have acquired the relevant skills. 

Comment below if you wish to speak to one of our experts for a  free career counseling session.

Do not forget to download and read through the free course material.

We also have the below-mentioned courses that are closing enrolments soon:

DIPLOMA 

Diploma in Business Laws for In House Counsels

Diploma in Companies Act, Corporate Governance and SEBI Regulations

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Corporate Taxation

Certificate Course in Trademark Licensing, Prosecution and Litigation

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Certificate Course in Competition Law, Practice And Enforcement

The post What is the role of competition lawyers in the age of high-growth startups? appeared first on iPleaders.

This article is written by Prachi Darji.

The assets of a company can be broadly divided into two main categories namely, tangible assets which consist of brick and mortar stores, land, machinery, etc., and intangible assets which include but are not limited to shares, rights and the brands of the company. Intellectual Properties (“IP”) are intangible assets of a company. While most companies consider it essential to invest initially intangible assets, investment in intangible assets like IPs may prove more fruitful in value addition and consumer attraction for the company.

From an Indian legal standpoint, the law identifies three types of IPs under three different legislations. They are trademarks under the Trade Marks Act, 1999, patents under the Patents Act, 1970, and copyrights under the Copyrights Act, 1957.

Defining Intellectual Properties in India

1. The Trademarks Act 

The Trademarks Act, 1999 defines a trademark as a mark represented in a graphical manner which can; 

(i) Distinguish the goods and services of one person from another (this includes a shape, packaging, and combination of colors); 

(ii) Indicate a connection in the course of trade between the goods and services and includes a registered trademark, and; 

(iii) Indicate that the proprietor or the permitted user has a right over the goods and services. 

It includes a certification trademark and a collective trademark within its ambit. A certification trademark is one which is used to distinguish the goods and services in a course of trade from that of another with respect to the origin, material, mode of manufacture of goods, quality of services performed, accuracy and other such characteristics. A collective trademark is one that distinguishes the goods and services of the members of an association from those of another.

2. The Patents Act

The Patents Act, 1970 defines patents to be any patent that is granted to an invention under the Act itself. It provides the patent holder the exclusive right to use, sell and make an invention for a specified number of years. The Patents Act goes on to define what inventions are patentable and which are not. A few inventions that are not patentable, for example, are; 

(i) Frivolous inventions; 

(ii) the mere discovery of a scientific principle; 

(iii) a method of agriculture or horticulture; 

(iv) a presentation of information, etc.

3. The Copyrights Act

The Copyrights Act, 1957 defines copyright to do a particular act in respect of a work or any substantial part thereof. The Act lists a number of acts that can be conducted with respect to the work, the work being; 

(i) a literary, dramatic, musical or artistic work; 

(ii) a cinematograph film, and; 

(iii) a sound recording.

4. The Design Act

The Design Act, 2000 defines “design” as the features of shape, pattern, the composition of colors or lines applied to any object whether in 2D or 3D or in both forms, configuration, ornament, but does not include any mode or principle of construction or anything which is in substance a mere mechanical device and does not include any trademark.

Registering Intellectual Properties

1. Procedure for Registering Trademarks

1. An application must be made to the Trademarks Registry Office by the person claiming to be the proprietor of the trademark.
2. The Registrar may accept or reject the trademark application or accept the same with amendments, modifications, conditions or limitations.
3. If the Registrar is satisfied that the trademark may be registered, the Registrar causes the same to be advertised.
4. Within 3 months of the advertisement, opposition to the registration application must be filed. 
5. The Applicant must provide his counter statement within two months of the receipt of the oppositions from the Registrar.
6. The Registrar after hearing both parties may accept or reject the registration of the Trademarks. If accepted, a certificate is issued with the seal of the Trademarks Registry regarding the registration of the trademark.
7. The Registration of a trademark lasts for 10 years and is subject to renewal every 10 years thereafter.

2. Procedure for Registering Patents

1. An Application must be made to the Controller General of Patents, Designs and Trademarks (“Controller”) for the registration of the patent. 
2. Upon proof to the title, the Controller may register the applicant as a proprietor or a co-proprietor and enter in the register the details of the instruments, the interest of the proprietor thereto and the manner in which the proprietor derives the title. 
3. The Controller may also refuse to register the patent in case of any pending litigation regarding the same.

3. Procedure for Registering Copyrights

1. An application must be made by the holder of the copyright to the Registrar of Copyrights for entering the particulars of the work into the Register of Copyrights. However, if the application is with respect to an artistic work which is used or capable of being used in relation to goods and services, a statement by the Registrar of Trademarks is required to the effect that no registered trademark or application thereof has been made which is identical or deceptively similar to the artistic work.
2. The Registrar of Copyrights on holding an inquiry may enter the particulars of the copyright in the Register.
3. Indexes of the Register of Copyrights are also kept with the Registrar of Copyrights.
4. On entry of the particulars of the copyright in the Register of Copyrights, the same is then published in the public domain.

4. Procedure for Registering Designs

1. An application has to be made to the Controller of Designs of the new design indicating the class of goods/articles in the same class.
2. The Application is filed along with a Representation Sheet, which showcases the various views of the new design, for example, top view, bottom view, side view, etc.
3. A brief statement explaining why the new design is novel and inventive.
4. The Controller then examines the application and if no objections are raised, the new design is entered in the design registry and a certificate of the grant is issued to the applicant. 
5. Post-grant the design is published in the official gazette with the Representation Sheet.

Benefits of Owning Intellectual Properties 

1. Innovations 

IPs provide legal protection to innovations thus preventing illegal product spin-offs and copies. IPs provide a platform for innovators to safeguard their inventions facilitating further innovation. This directly fosters the growth and development of the economy harnessed by well-protected innovations. 

2. Cognitive Value Addition

Yuval Noah Harari in his book “Sapiens: A Brief History of Humankind” speaks of a dual reality people began to live in as a product of cognitive evolution. This dual reality includes the actual visible, objective and tangible reality, and the imagined reality such as the elemental gods. He refers to the automobile company “Peugeot” and maintains that even if all the employees of the said company were to die, the company would still exist as an entity, an imagined entity. Thus the value affixed to such an imaginary entity in the form of IPs too can be a part of our cognitive evolution. Investing in the stock market itself is based on the value-added to IPs which in turn defines the value of the company. 

3. Habit Attribution Leading to Profitability 

IPs are legal fictions whereby people affix a particular understanding or familiarity with the IP as a means of understanding the company behind the IP. Habits may also be created through effective marketing of a product which leads to the attribution of the habit to the IP of the product itself. Charles Duhigg in his book “The Power of Habit: Why We Do What We Do And How To Change” makes a reference to a marketing strategy of “Procter and Gambles” product “Febreze” whereby the company highlighted a craving for a fragrant smell to the completion of cleaning activities in houses. When the product launched in the summer of 1998, users attributed cleanliness with the odor of Febreze, doubling sales within two months!

4. Consumer Trust and Loyalty

It flows as a natural corollary to the previous point that IPs create a sense of customer-to-company trust. It leads to further investments in well-known brands expanding the customer base and providing the company with a competitive edge. Without IPs, there would be no mechanism to create trust in a product that would garner the confidence of the customer. A typical example of customer loyalty is that of Coke and Pepsi during the “Cola Wars” of the 1970-80s. Despite flavor and price changes by both the companies, customers remained loyal to the initial brand of preference. 

5. Exclusive Rights of Usage 

Upon registration, the exclusive right to use a trademark is identified with respect to the proprietor. A holder of a registered patent has the power to grant licenses, assign or otherwise deal with the patent. By definition under the Copyright Act, 1957 the holder of the same is given the exclusive right to do particular acts with respect to a particular work. If an entry in the Register of Copyrights is prima facie evidence of the contents therein, that means registered copyright is prima facie evidence of the holder’s exclusive right to perform certain acts with respect to certain work that the copyright entails. This ensures that the company is consistently attributed to the IP once the same published.

6. Primary Evidence 

An entry in the Register of Trademarks, Patents, and Copyrights is considered primary evidence in a court of law without any further proof of the original document. The burden of proving the authenticity of registered trademarks, patents, and copyrights is thus relatively lighter than their unregistered counterparts.

Legal Remedies

The Trademarks Act, 1999 identifies only a registered trademark holder to have the right to take to legal proceedings in case of an infringement of a trademark. It prohibits any person from recovering damages for infringement of an unregistered trademark. Remedies do however exist in common law or tort actions in case of unregistered trademarks. In trademark infringement cases, the court may order for an injunction, award damages to the Plaintiff along with an account of profit or order for the destruction or erasure of any infringing labels or marks. 

The Trademarks Act, 1999 also dictates a number of criminal remedies that may be pursued which, to name a few, include; (i) falsely applying trademarks; (ii) falsely representing a trademark as registered; (iii) falsification of entries in the register, etc. The term of imprisonment and fine vary as per the offense.

The Patent Act, 1970 recognizes the right of an exclusive licensee to take proceedings against infringement. In patent infringement cases, the court may order for an injunction, damages to the Plaintiff, account of profit and seize, forfeit or destroy any of the infringing goods. Unauthorized claims of patent rights are punishable with a fine which may extend to one lakh rupees.

The Copyrights Act, 1957 the owner of the copyright may pursue civil remedies such as an injunction, damages, accounts or other such remedies as may be conferred by the law. The owner of the copyright also has the remedy of recovering the possession of infringing copies of the copyright. There are also criminal remedies that may be pursued. The offense of copyright infringement is punishable with imprisonment for not less than 6 months and not more than 3 years and with a fine of not less than fifty thousand and not more than two lakh rupees. 

Similarly under the Design Act, 2000, Design is also susceptible to infringement. It is an illegal act to make use of a registered design, or a fraudulent or obvious imitation of a registered design, without authorization from the registered owner of such design. In case of such an infringement, the registered owner may file a suit to recover a nominal sum as damages from the infringer, and also ask that the infringement stop taking place. 

Conclusion

It is thus quintessential that an IP must be registered as it makes it easier to protect in a court of law. It helps maintain the public image of the company without having to assert its authenticity via litigation. IPs garner investment and innovation which apart from adding value to the company creates a quid pro quo of trust between the company and its customers. 

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This article has been written by Rutuparna Sahu from KIIT School of Law, Odisha. This article talks about the Express and Implied Warranties under the Sale of Goods Act.

What is the warranty?

A Warranty is a condition present within a contract between parties, it comes into action the moment the condition is not satisfied or fulfilled by either of the parties. It is stipulated as collateral for the main deal. 

Section 13 of The Sale of Goods Act tells when a condition is to be treated as a warranty.

The conditions are as follows  :

• In a contract of sale, if any matter is subjected to a condition that is to be satisfied by the seller, the buyer is entitled to waive the condition at any time if there is any breach of contract on the part of the seller. The buyer can treat the breach as a breach of warranty but cannot reject the acceptance of the goods by the way of repudiation. 
• In a contract of sale, where the sale is without a severability factor and the buyer accepts the goods or its parts, the breach of any condition from the seller’s part will lead to a breach of warranty and the waiving of the warranty isn’t applicable on the grounds of repudiation by rejecting the goods after acceptance unless there is an implied or expressed condition stated before in the contract.
• Nothing contained in this Section shall affect the fulfilment of a warranty or the condition of the contract by any Act that has already been excused by the law because of impossibility or otherwise.

In addition to this, any kind of breach of warranty leads to a claim for damages but not to be misinterpreted with repudiation under Section 12 (3) of the Sale of Goods Act. 

There are two main types of warranties, that are :

• Express Warranty
• Implies warranty

Express Warranty

An express warranty covers the part of contracts that is done expressly by ways of speaking or writing. In addition to that, this kind of warranty expressly comes with a guarantee of reliability and to meet a certain level of credibility of a particular product. If there is a problem pertaining to the product, the manufacturer needs to fix it anyhow without charging an additional cost. These are often used for the purpose of reference as it is a written form of the conditions concerning the contract.

The seller warrants the buyer in various ways

• If any expressed statement of promise is made to the customer in a form of warranty in the context of the good’s quality or any other criteria by the seller, it needs to be true to the facts. 
• In case of any description made against a particular good to the buyer has to be true to the facts regarding the good in the form of warranty.
• Any sample or model showcased in order to promote the particular good has to be real to the facts as stated by the seller in a form of warranty.

A seller does not create the warranty just by a declaration. He may not choose to use any kind of explicit language to give a guarantee against the goods. However, it is difficult to acknowledge the seller’s intention in the context of selling the goods unless he expressly states about the credibility of the goods. A warranty is not merely created by means of a statement made by the seller against the good’s credibility or by the seller’s estimation regarding the product. 

Generally, during the course of a contract, the statements made by the parties are treated as statements of fact and as above stated unless there is an express statement, it is difficult to draw out any kind of opinion regarding the product whether to buy or not. 

Generally, products come with the terms and conditions applied against them from inception. So it gets easy for both manufacturers and buyers as well. 

Illustration 

For example, if a scooter dealer describes a scooter’s mileage to its customer of running about 55 km/lt and the scooter shows the exact mileage warranted by the dealer then there is no breach of express warranty but if it does not show the mileage as warranted by the dealer then it definitely is a breach of express warranty.  

Implied warranty

An implied warranty in the law of contract is solely based on presumption. Unlike express warranty, the guarantee is being served in ways of assurance by the ongoing circumstances involved in due course of the contract. A seller assures in detail about the good which the buyer is going to receive. These assurances take a form of warranty as there is hardly any other expression made for the required conditions to be fulfilled. These types of warranties are still considered even if it is not promised in any means of writing or orally. 

There are two types of implied warranty :

• The implied warranty of merchantability.
• The implied warranty of fitness for a particular purpose.

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Implied warranty of merchantability 

Warranty of merchantability is considered to be an implied warranty unless it is expressly stated somewhere with the tag of “to be merchantable”. Besides that, it needs to satisfy the basic criteria of genuinity i.e, the product needs to reasonably conform to the expectation of any ordinary buyer.

As the implied warranties are fully based on presumption, the buyer usually presumes the merchant’s warranty against the product’s credibility and inculcates a perception about the product as it has been showcased to the buyers. And talking about the merchant’s warranty, the merchant only guarantees the minimum credibility of the good. 

There are certain rights given to the merchant for the sale of its goods under Section 14:

• In a contract of sale, the merchant has a right entitling him to sell the goods and in case of an agreement to sell, he is entitled to sell the goods when the goods are ready to be passed into the market. 
• The processed goods come with an implied warranty assuring the buyer to enjoy it by possessing the particular good.
• It’s the merchant’s job to make the goods free from any encumbrances which are in favour of a third party not known to the buyer before or at the time of contract made.

No household goods that are being sold to the consumers can be disclaimed with a merchantable warranty under the provision of Massachusetts Consumer Protection Law. 

Illustration 

As a mosquito repellent manufacturing company claims to kill dengue mosquito but B a buyer buys the product and was still found dengue positive which concludes that there was a breach of warranty of merchantability by the seller. 

Implied warranty of fitness for a particular purpose

In case of an implied warranty of fitness for a particular purpose, the buyer here is totally dependent on the seller’s work and skill to furnish the goods. The buyer basically tries to make things their way for a particular purpose. And this involves a warranty from the seller’s side that the goods produced will fit for a particular purpose. And when we talk about any particular product or good, it just sticks to the usage by the buyer and no way attached to the products’ business.

Certain provisions under the Sale of Goods Act about the implied conditions as to quality or fitness under Section 16 :

• The buyer expressly or impliedly informs about the necessity of a product for a particular purpose to be fulfilled by the merchant and here the buyer totally relies upon the merchant’s skill or judgment for work. The goods are to be of a description as described in the course of the merchant’s business to supply. The good comes with an implied warranty of being fit for the purpose.
• The goods required for the particular purpose need to be bought from a merchant which deals with the articles of the same description as required for the purpose with a condition that the goods need to be merchantable. If in case the good has gone through an examination and is checked properly by the merchant himself and no such fault could be found which could have been faced by the buyer in near future, the seller is not bound to give any implied warrant for the same.
• Nothing contained in this Section is an express condition or warranty that negates the implied warranty or condition.

Illustration 

X a medicine manufacturing company dealing with a variety of medicines produced medicine for patients suffering from migraine. B, a migraine patient takes it and gets an adverse side effect by the consumption of the particular medicine which means that it isn’t fit for the group of people suffering from migraine and hence, it is concluded to be the breach of warranty of fitness for a particular purpose. 

Breach of warranty

Even if express and implied are two different types of warranties, they can be breached in a similar manner. So if there is any kind of breach against the buyer then the buyer has certain rights which are as follows :

• The buyer has an explicit right to reject or revoke the contract of buying of goods if there is any breach of the contract against the goods. The buyer can anytime reject to accept the nonconforming goods and any nonconforming good that violates the conditions of the contract in any way, gives the right to the buyer to cancel the whole contract.
• The buyer is entitled to recover any damages incurred by purchasing substitute goods, and by the difference between the market price for the substitute goods and the contract price. 
• If a buyer accepts a nonconforming good but in result incurs damages then the buyer can claim and recover monetary compensation for the breach of warranty but the buyer has to give a notice in this context within a reasonable time. Having said that, the compensation for damages is being measured by the difference between the goods accepted by the buyer and the value that would have been if it was warranted. 
• If there is a failure on part of the seller, the buyer has the same right to claim compensation for any incidental losses.

Cases breaching warranty 

• In this case of Jacob and Youngs, Inc. Vs. Kent, the plaintiff ( Jacob and Youngs ) was the builder of Kent’s ( defender ) house made the piping system using Cohoes Rolling Mill company’s pipes instead of Reading Iron company’s pipes which breached the conditions of the contract. The defendant then asked the plaintiff to exchange the pipes with the Cohoes pipes and build it again to which the plaintiff disagreed and filed a suit against the defendant for compensation of the remaining balance that has not been satisfied because the defendant did not pay them for the building. First, the Court ruled in favour of Kent which got reversed on appeal and then the plaintiff was eligible for the rest of the payment and did not have to replace the pipes. 
• In the Johnson and Johnson cancer case, a lady claimed that there was an asbestos chemical present in the Johnson and Johnson’s talcum powder which caused cancer and in addition to that, there were many complaints regarding ovarian cancer as well. The court in its verdict said that the lady was using the powder since her childhood so the powder wasn’t fully in fault but yes the company did not warn its customers about the adverse effects of using this powder so the lady was compensated with an amount of $29m by the Johnson and Johnson company. 

Conclusion 

From the above facts, we can derive that a warranty can be simplified as a guarantee. Which a seller has to prove to the buyer beyond all reasonable doubts because, in the end, it’s the buyer who is going to buy the goods of the manufacturer or merchants. So it’s important for the sellers to not to violate any of the conditions of the contract in which he is a party with the buyer. And buyers should not misuse the powers given to him by giving it a form of repudiation. 

References 

• https://indiankanoon.org/doc/1541687/ 
• https://www.lawteacher.net/free-law-essays/commercial-law/Section-12-of-sale-of-goods-Act-commercial-law-essay.php 
• https://www.lexisnexis.com/community/casebrief/p/casebrief-jacob-youngs-inc-v-kent 
• https://www.theguardian.com/us-news/2019/mar/14/woman-awarded-29m-in-damages-in-johnson-johnson-cancer-case 
• https://www.mass.gov/service-details/the-massachusetts-consumer-protection-law 
• http://www.legislation.gov.uk/ukpga/1979/54

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This article has been written by Chandan Kumar Pradhan, from KIIT School of Law, Odisha. This article talks about the various types of transfer of property under the Transfer of Property Act, 1882.

Introduction

Section 5 of the Transfer of Property Act, 1882 defines that, the property will be delivered by a living person to one or more other people in the present date or in future times or to himself only. The expression mentioned above “in present or in future” is deriving the meaning of the word ‘deliver’. There will be no transfer of future property. The transferee needn’t be a competent person like a transferor. A transferee can also be a minor, insane or child in a mother’s womb.

In this section “living person” includes “companies, private associations, which are registered or not, but nothing in this section affects the law while doing the transfer of property to any company or association or individual body”.

Kinds of transfer

Subsequent forms of transfer under the Act are: 

• Sale– It’s an out-and-out transfer of property And also the consideration is money.
• Mortgage– It’s a transfer of a limited interest during a property.
• Lease– A lease may be a transfer of a right to enjoy the immovable property for a particular time.
• Exchange– It’s the same as sale, but differ in consideration. Here the consideration is another thing not money.
• Gift– Here, there’s no consideration.

Which is not amounting to the transfer of property?

Another meaning of transfer of property is “Conveying the property”. A fresh interest within the mind of the transferee, if new interest has not been created in mind of the transferee, the property can not be said to be conveyed, thus no transfer of property is finished.

1. Partition- When two blood relatives like brother and brother dividing their property between themselves is called partition. And it can’t be transfer of property because that property was already in their own possession and no new property is created.new is formed by co-sharer on the partition, it’s not a transfer of property. His specific share, which settled in him earlier, is just separated.
2. Relinquishment (sacrifice)- Here, there is nothing to transfer, because in this, the successor who was the owner of that property, he sacrificed that property to his/her closet person, the transferee may be one or more then one. Therefore, those who got the profitable property they can enjoy over that.
3. Surrender- A transferor has a contract to transfer some property with a minor. But, if the guardian of the minor has a condition with another person then it will not be a transfer of property.
4. Easement- The creation of an easement doesn’t amount to a transfer.
5. Will- Because it comes from the death of the person making it, while the definition of transfer is for the future by a living person, it doesn’t come under the definition of transfer.
6. Compromise- It depends on the facts and circumstances of every case. It may or might not amount to transfer.
7. Family arrangement/settlement- Any family problem arises about their property, then if a third person came and solved that problem and put an end to the disputes is not amounting to transfer of property.

What is also transferred?

Section 6– “ Any types of property which can be additionally transferred, except provided by this act or by any other law for nowadays in effect”. 

This section specifies different types of property which can not be transferred (Exception to Section 6)-

1. Spes Successionis [Section 6(a)]- “The possibility that an heir apparent is clearly unsuccessful in a certain situation, that the possibility in a relationship, receiving an ancestral property by the death of an ancestor or in another natural event, then the transfer can not be performed.”

Any opportunity for the heir apparent to succeed under certain conditions is not included in the category of assets that can be transferred. 

For e.g, ‘X’ a Hindu, dies and leaves his wife with ‘C’. ‘C’ has only a spes succession, his succession depends upon two factors, that the surviving of the X’s wife and the property which was left by ‘X’.

• Right of Re-entry [Section 6(b)]- “A simple right of re-entry for breach of a condition following can not be transferred to anyone except the owner of the property.”
• Easement [Section 6(c)]- “An easement can not be transferred except from the dominant heritage.”

An easement right to use, or restrict the utilization of land of another in their way, for example- the right of way, right of water or light, etc. (Section 3 Easement Act).

• Restricted Interest [Section 6(d)]- “A right of the owner is strictly prohibited in its enjoyment to him or her personally can not be transferred to any other.”

E.g- A man can not transfer the right of enjoyment of the home to any different person. If the home is lent to the man for his personal use.

• Maintenance [Section 6(d)]– “A right of a person to his future maintenance, in whatever manner it would arise, that should be secured or determined, and can not be transferred to anyone.”
• Mere right to sue [Section 6(e)]- “A mere right to sue can not be transferred to anyone.”

A right to sue is a personal possibility for the injured..

• Public office [Section 6 (f)]- “A public office cannot be transferred to anyone because, it’s a public property and the person who has the qualities, they should only enjoy the rights of the office not all. And always changes and pays for work not for the office.”
• Pensions [Section 6(g)]- “Stipends are allowed only for the military, air force, naval and civil pensioners of the govt. and political pensions that can not be transferred to anyone, pension means a periodical allowance or stipend which they will get after their job is over.
• Nature of Interests [Section 6(h)]- “There is no transfer on this point because it against the nature of the interest affected thereby, or as far as unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act, 1872, or to someone who is legally disqualified to be a transferee.”

This clause restricts the transfer with anyone which is in nature and isn’t transferable, e.g- res communes (things are also utilized by all men, which nobody specifically is the owner), res nullius (things belonging to nobody).

• Untransferable interests [Section 6(i)]- “In this section it is not mentioned that, to authorize a tenant it is compulsory to have an non-transferable right of occupancy, like the farmer has a condition to pay the revenue, in which there are some conditions are also on the lessee, under the supervision of a Court’s department”.

When a person competent to transfer?

Section 7 of the Act provides that, “the person who is allowed to sign a contract is also allowed to transfer a property and then he will be allowed to enjoy the property wholly after it takes place. Legally permitted and determined for the time being in force.”

These are some persons can be competent to transfer:

Competent to contract, sound mind, the transferor must be entitled to transferable property.

Operation of transfer

Section 8 of the Transfer of Property Act provides transfer of various types of property and their legal incidents. It means that “A transfer of property passes to the transferee with all the interest which the transferee is then capable of using the property in his/her future within the all legal incident.”

In any situation, where the property is related to land or the property is rented, then the transferor and transferee should make a plan about the outcomes of the property which will be generated after the transfer takes place. After that, there will be no problem arising in the future and if the property generates money, then the income can be calculated after the transfer takes place.

Section 6(a) of the Act provides certain rules which are non-transferable (spes succession). These are as follows-

• The possibility of a person who is most likely to get the ancestral property after his or her ancestor’s death under certain situations.
• The probability of a relationship obtaining a legacy(gift) on the death of a blood relative.
• Another mere possibility from nature.

• Chance of an Heir Apparent

The expectation forbids both Hindu Law and Muslim Law. A mere possibility of an heir succeeding to a condition is eliminated from the class of transferable property. A Hindu successor has no right. In presents within the property which the female owner holds forever for her life.

• Chance of Legacy(gift)

The chance of getting a gift has more possibility of being non-transferable than getting the ancestor’s property as a legal heir.

• Chance of nature

This rule has more possibilities of being non-transferable than the other two, which are mentioned above.

E.g- The chance of winning a prize from a certain competition, which cannot be transferred in the property.

Transfer by an unauthorised person(Doctrine of feeding empty grant by Estoppels)

A person, who has no right to transfer any immovable property, cannot transfer that property. Transfer by such person will be called the transfer by an unauthorized person.

Section 43– Transfer by unauthorized persons means, where someone fraudulently shows that he’s authorized for the transfer of certain immovable property and declares to transfer such property for consideration such transfer shall at the choice of the transferee.

E.g,- ‘X’, the son of ‘Y’. ‘X’ has separated from his father. ‘X’ sells 4 fields to ‘Z’ that ‘A’, ‘B’, ‘C’, ‘D’, representing that he is authorized to transfer the same. From these fields ‘C’ does not belong to ‘X’, it has been retained by ‘Y’ on the partition. But on Y’s dying ‘X’ as heir obtains ‘C’. ‘Z’, not having revoked the contract of sale, may require ‘X’ to deliver ‘C’ to him.

The general rule of Nemo dat quod non-habet (no one can give to different person, what he himself doesn’t have the rights)has been relaxed through this section,

For the applying of this section following must be satisfied:

• There must be a fraudulent representation of ownership by the transferor.
• Transfer must be by the incorrect owner.
• The transferee must act on it false representation in good faith.
• The transfer is for consideration.
• The property which someone professed to transfer subsequently acquires some interest in that property.
• The contract of transfer still subsists.

Subsequently acquired interest doesn’t pass automatically to transferee but only if he claims right in such property.

The exception to the present section protects the rights of the record transferee in good faith and also the consideration who has no notice of the choice in favour of the primary transferee.

A legal question on Transfer of Property Act, 1882

Can you transfer a property you are going to inherit?

Legally, a son, who is hoping to inherit the property of his father can not transfer his rights of this property to any other person, till his father is alive. If a person promises to transfer his right over his future property to someone else when he will get the ownership, the contract between those two parties will be void. However, you can never make a contract to gift a property which you are hoping to get in future. Transfer of your future property as a gift without receiving any consideration will be void.

Conclusion

Section 6(a) and Section 43 have some problems with each other. Where Section 6(a) deals with spes successionis and defined that which property are untransferable property and which are not, whereas Section 43 deals with the unauthorized transfer of property, in such transfer very big problem will arose on behalf of transferee because the transferee had no idea that the property is unauthorized and the transferee will take that property in good faith which is wrong.

In this Act, if a transferor wants to transfer anything then he or she has to think clearly about the possibility of doing something which he has to sought to be conveyed to the transferee about the property.

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This article has been written by Neha Mallik from VIPS, Delhi. This article talks about everything you need to know about the concept of Condition and Warranty in the light of Sale of Goods Act, 1930.

Overview

The contract of sale of goods is a special type of contract and has a huge application in the business world. These contracts are governed by the Sale of Goods Act 1930, which was earlier part of the Indian Contract Act, 1872. Because of the wide use of the contract of sale of goods, a special enactment was necessary but despite the separate legislation, the law has its root in the Indian Contract Act, 1872. Both the laws are complementary to each other,  thus the basic provisions of the Indian Contract Act are applicable to the contracts of sale. 

Whenever we buy any goods like electronic gadgets etc, we are concerned about the warranty periods. We ask the seller about the warranty to make sure that even if the product is found to be faulty after purchase we can easily get the product replaced or repaired. The terms “Condition” and “Warranty” are set out in the contract of sale in order to determine remedies the parties can claim in case of the breach by either of the parties. Here in this article, we will see the manner how these terms are defined, their differences and their legality in the light of Sale of Goods Act, 1930. 

Definition

Certain provisions need to be fulfilled as demanded in the contract of sale or any other contract. The condition is a fundamental precondition on the basis of which the whole contract is based upon, on the other hand, warranty is the written guarantee wherein the seller commits to repair or replace the product in case of any fault in the product. Section 11 to 17 of the Sale of Goods Act enlightens the provisions relating to Conditions and Warranties.

Section 12 of the Act draws a demarcation between a condition and a warranty. The determination of condition or warranty depends upon the interpretation of the stipulation. The interpretation should be based on its function rather than the form of the word used.

Condition

In the context of the Sale of Goods Act, 1930, a condition is a foundation of the entire contract and integral part for performing the contract. The breach of the conditions gives the right to the aggrieved party to treat the contract as repudiated. In other words, if the seller fails to fulfil a condition, the buyer has the option to repudiate the contract or refuse to accept the goods. If the buyer has already paid, he can recover the prices and also claim the damages for the breach of the contract. 

For example, Sohan wants to purchase a horse from Ravi, which can run at a speed of 50 km per hour. Ravi shows a horse and says that this horse is well suited for you. Sohan buys the horse. Later on, he finds that the horse can run only at a speed of 30 km/hour. This is the breach of condition as the requirement of the buyer is not fulfilled. The conditions can be further classified as follows.

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Kinds of conditions 

Expressed Condition 

The dictionary meaning of the term is defined as a statement in a legal agreement that says something must be done or exist in the contract. The conditions which are imperative to the functioning of the contract and are inserted into the contract at the will of both the parties are said to be expressed conditions. 

Implied Condition

There are several implied conditions which are assumed by the parties in different kinds of contracts of sale. Say for example the assumption during sale by description or sale by sample. Implied conditions are described in Section 14 to 17 of the Sale of Goods Act, 1930. Unless otherwise agreed, these implied conditions are assumed by the parties as if it is incorporated in the contract itself. Let’s study these conditions briefly:

• Implied condition as to title

In every contract of sale, the basic yet essential implied conditions on the part of the seller are that-

1. Firstly, he has the title to sell the goods.
2. Secondly, in case of an agreement to sell, he will have the right to sell the goods at the time of performing the contract.  

Consequently, if the seller has no title to sell the given goods, the buyer may refuse or reject those goods. He is also entitled to recover the full price paid by him. 

In Rowland v. Divall (1923), the party bought a second-hand motor car from the former and paid for the same. After six months, he was deprived of it as the seller had no title to sell the car. It was held that the aggrieved party is entitled to recover the money. 

• Implied condition as to the description

Moving to  Section 15 of the Act, In the contract of sale, there is an implied condition that the goods should be in conformity with the description. The buyer has the option to either accept or reject the goods which do not conform with the description of the good. Say for example: Where Ram buys a new car which he thinks to be new from “B” and the car is not new. Ram’ can reject the car. 

Referring to Section 16(2) of the given Act, goods must be of merchantable quality. In other words, the goods are of such quality that would be accepted by a reasonable person. For eg: A purchased sugar sack from B which was damaged by ants. The condition of merchantability is broken here and it is unfit for use. It must be noted from this section that the buyer has the right to examine the goods before accepting it. But a mere opportunity without an actual examination would not suffice to deprive the buyer of his rights. If however, the examination does not reveal the defect but within a reasonable time period the goods are found to be defective, He may repudiate the contract even if he approves the goods.

The implied conditions especially in case of eatables must be wholesome and sound and reasonably fit for the purpose for which they are purchased. For eg: Amit purchases milk that contains typhoid germs and because of its consumption he dies. His wife can claim damages. 

• Implied condition as to sale by sample

In the light of Section 17 of the Act, in a contract of sale by sample, there may be following implied conditions:

1. That the actual products would correspond with the sample with respect to the quality, size, colour etc. 
2. That the buyer gets a reasonable opportunity to compare the goods with the sample. 
3. Further, the goods are free from any defect rendering them unmerchantable. 

For example, A company sold certain shoes made of a special kind of sole by sample sale for the French Army. Later when the bulk was delivered it was found that they were not made from the same sole. The buyer was entitled to the refund of the price and damages. 

• Implied condition as to Sale by sample as well as a description

Referring to Section 15 of the Sale of Goods Act, 1930, in a sale by sample as well as description, the goods supplied must be in accordance with both the sample as well as the description. In Nichol v. Godis(1854),  there was a sale of foreign refined rape-oil. The delivered oil was the same as the sample but it was having a mixture of other oil too. It was held in this case that the seller was liable to refund the amount paid. 

Warranty 

Warranty is the additional stipulation and a written guarantee that is collateral to the main purpose of the contract. The effect of a breach of a warranty is that the aggrieved party cannot repudiate the whole contract however, can claim for the damages. Unlike in the case of breach of condition, in the breach of warranty, the buyer cannot treat the goods as repudiated.  

Kinds of Warranty

Expressed Warranty 

The warranties which are generally agreed by both the parties and are inserted in the contract, it is said to be expressed warranties. 

Implied Warranty

Implied warranties are those warranties which the parties assumed to have been incorporated in the contract of sale despite the fact that the parties have not specifically included them in the contract. Subject to the contract, the following are the implied warranties in the contract of sale:

• Warranty as to undisturbed possession

Section 14(2) of the given Act provides that there is an implied warranty that the buyer shall enjoy the uninterrupted possession of goods. As a matter of fact, if the buyer having got possession of the goods, is later disturbed at any point, he can sue the seller for the breach of warranty. 

For eg: ‘X’ purchased a second-hand bike from ‘Y’. Unknown to the fact that the bike was a stolen one, he used the bike. Later, he was compelled to return the same. X is entitled to sue Y for the breach of warranty.

• Warranty as to freedom from Encumbrances

In  Section 14(3), there is an implied warranty that the goods shall be free from any charge or encumbrances that are in favour of any third party not known to the buyer. But if it is proved that the buyer is known to the fact at the time of entering into the contract, he will not be entitled to any claim.

For eg: A pledges his goods with C for a loan of Rs. 20000 and promises him to give the possession. Later on,  A sells those goods to B. B is entitled to claim the damages if he suffers any.  

• Implied warranty to disclose Dangerous nature of the goods sold

If the goods sold are inherently dangerous or likely to be dangerous and the buyer is not aware of the fact, it is the duty of the seller to warn the buyer for the probable danger. If there would be a breach of this warranty, the seller will be liable. 

For eg: A purchases a horse from B if the horse is violent and then It is the duty of the seller to inform A about the probable danger. While riding the horse, A was inflicted with serious injuries. A is entitled to claim damages from B.

Difference between Condition and Warranty

When does Condition sink to the level of Warranty?

Section 13 of the Act specifies the cases wherein a breach of Condition sink to the level of breach of Warranty. In the first two following points, it depends upon the will of the buyer, but the last one is compulsory and acts as estoppel against him:

1. When the buyer waives the condition, the condition is considered a warranty.
2. A condition would sink to the level of warranty where the buyer on his own will treat the breach of condition as a  breach of warranty.
3. Wherein the contract is indivisible and the buyer has accepted the whole or part of goods, the condition is treated as a warranty. Consequently, the contract cannot be repudiated. However, the damages can be claimed. 

Conclusion

At the time of selling or purchasing goods, both the buyer and seller put forth some preconditions with regards to the mode of payment, delivery, quality, quantity and other things necessary. These stipulations are either considered as condition or warranty differing from case to case. These concepts are necessary to be understood as it protects the rights of parties in case of breach of the contract. 

References 

• Sale of Goods Act, 1930
• Indian Contract Act, 1872
• http://www.e-lawresources.co.uk/Rowland-v-Divall.php
• https://keydifferences.com/difference-between-condition-and-warranty.html

The post Concept of Condition and Warranty under the Sale of Goods Act appeared first on iPleaders.

This article is written by Sangeet Kumar Khamari, KIIT School Of Law, Odisha. This article talks about what relationship a seller and buyer should have when a contract is made for the sale of a good. And also talks about the rights of an unpaid seller.

Introduction

The Sale of Goods Act 1930, was a part of the Indian Contract Act 1872 and got separated from it on 1 July 1930. This was applicable for the whole of India except the state of Jammu and Kashmir, but now it is also applicable on Jammu and Kashmir after it was declared as Indian territory in 2019. Earlier in the period of 1930, The Sale of Goods Act was “The Indian Sale of Goods Act” later in 1963 on 23 September the act was amended and named as “The Sale of Goods Act 1930”. It is still applicable in India after being amended in 1963.

According to the Sales of Goods Act 1930, the performance of the contract of sale comes under chapter IV from Section 31 to Section 44 it is described how the goods are being displaced and how their possession are being transferred from one person to another voluntarily. There are basically two parties for the agreement, one is the seller and the other one is the buyer. The seller sells the goods and the buyer buys the goods. There are some criteria on the basis of selling and buying which takes place, which we are going to discuss in this article.

Who is a seller

The definition of the seller is given in Section 2(13) of the Sale of Goods Act, 1930. The seller can be defined as a person who agrees to sell goods.

Rights of the Seller (Section 31)

• He can reserve the rights of the goods until and unless payment of goods is done. 
• He can assume that the buyer has accepted the goods or not.
• He will only deliver the goods when the buyer would apply for the delivery.
• He can make the goods delivered in instalments when so agreed by the buyer.
• He can have the possession of the goods until the buyer hasn’t paid for the goods. 
• He can stop the delivery of goods and resume possession of the goods unless and until the payment is done for the goods.
• He can resell the goods under certain conditions.
• He can bring the goods back if it is not delivered to the buyer.
• He can sue the buyer if the buyer fails to make the payment on a certain day, in terms of the contract.

Duties of seller

• He should make an arrangement for the transfer of property to the buyer.
• He should check whether the goods are delivered properly or not.
• He should give a proper title to the goods which he has to pass to the buyer.
• He should deliver the goods according to the terms of the agreement.
• He should ensure that the goods supplied should be agreed to the implied condition and warranties.
• He should keep the goods in a deliverable state and deliver the goods when the buyer asks for it.
• He should deliver the goods within a specific time fixed in the contract.
• He should bear all the expenses for which the good should be delivered.
• He should deliver the goods as said by the buyer in the contract in an agreed quantity. 
• To deliver the goods in instalments only when the buyer wants.
• He should make arrangements for the goods while they are in the custody of the carrier.

Who is a buyer?

The definition of the buyer is given in Section 2(1) of the Sale of Goods Act, 1930. The buyer can be defined as a person who buys goods from the seller.

Rights of the Buyer (Section 31)

• He should get the delivery of the goods as per contract.
• He can reject the goods if the quality and quantity are not as specified in the contract.
• To deny the contract when goods are delivered in instalments without any agreement to the effects.
• The seller should inform him when the goods are to be sent by sea route, so that the buyer may arrange for their insurance.
• He can examine the goods for checking whether they are in the agreement with the contract.
• If he has already paid he can sue the seller for recovery of the price if the seller fails to deliver the goods.
• He can also sue the seller for damages or the seller’s wrongful neglect or the seller refuses to deliver the goods to the buyer.
• He can sue the seller for damages for breach of a warranty or for breach of a condition.
• He can sue the seller for the damages of breach of contract.

Duties of the Buyer

• He should accept the delivery of goods when the seller is prepared to make the delivery as per the contract.
• To have possession on it he should pay the price for the goods as per the contract.
• He should apply for the delivery of the goods.
• He can ask to deliver the goods at a particular time.
• He should accept delivery of the goods in instalments and pay for it according to the contract.
• He should bear the risk of failure of delivery of goods if the delivery point is a distant place.
• He should pay the price on the transfer of possession of the goods as given in the term of the contract.
• He has to pay for not accepting the goods.

Delivery

Section 33 of the Sale of Goods Act, 1930 defines delivery as a voluntary transfer of possession from one person to another. It is also the process of transporting goods from a source location to a predefined destination. Cargo (physical goods) are primarily delivered via roads and railroads on land, shipping lanes on the sea and airline networks in the air.

The basic elements of delivery are:

• There must be two parties.
• One party out of those two parties should have the possession of the goods.
• One party should transfer possession to the other.
• This should be done voluntarily.

Mode of delivery

• When the seller transfers the possession of the goods to the buyer or to a person who is authorised on behalf of the buyer its called physical or actual delivery. 
• If the actual delivery is not done and only the control of the goods is transferred, then it is called symbolic delivery. In this case, neither physical nor symbolic delivery is made.
•  In constructive delivery, the individual possessing the products recognizes that he holds the merchandise for the benefit of, and at the disposal of the purchaser. Constructive delivery is also called attornment.

Constructive delivery may be effected in the following three ways.

• Where the seller, after having sold the goods, agrees to hold them as bailee for the buyer
• Where the buyer, who is already in possession of the goods as bailee of the seller, holds them as his own, after the sale, and
• Where a third party, for example, a carrier/transporter, who holds the goods, as bailee for the seller, agrees and acknowledges holding them for the buyer.

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Rules regarding delivery

• The delivery and payment of price are concurrent conditions unless the two parties agree.
• If the intention of the seller is to deliver the goods in parts then the delivery is called a valid delivery. But if goods are delivered in parts and the seller is not intending to contract fully then there is a breach of contract.
• If a part-delivery of the goods is made in progress of the delivery of the whole, then it has the same effect for the purpose of passing the property in such goods as the delivery of the whole. However, a part-delivery with the intention of severing it from the whole does not operate as the delivery of the remainder (Section 34). 
• According to Section 35 of Sale of Goods Act 1930 unless there is a contract to the contrary then the buyer must apply for delivery. But if it is mentioned in the contract that the seller has to deliver the goods then the seller has to deliver without the permission of the buyer.
• If no place is decided for the delivery of the goods that, they are to be delivered at a place at which the seller and the buyer are in the time of sale.
• There should be an appropriate time for the delivery.
• The expenses of delivery are to be carried out by the seller unless there is a contract to the contrary.

If the seller delivers the wrong quantity of goods to the buyer then the following cases may take place:

• If the quantity of goods is less as per the contract then the buyer can reject the goods.
• If the quantity of goods is more than that of contract than the buyer can keep the number of goods as per the contract and reject the rest or he may also reject the total.
• If the goods ordered are mixed with the goods of different descriptions( i.e. goods with a different title or different quality), the buyer may reject the goods or accept the goods. 
• If there is no contract for the instalment delivery, the seller cannot force the buyer to accept the instalment delivery. 
• The buyer has the right to check and examine the goods. 
• If the buyer once accepted the goods then he cannot reject the goods. 
• If the buyer refuses to take the delivery then he would be responsible for it. 

According to Section 36(3) of the Sale of Goods Act 1930, if at the time of delivery the goods are in possession of a third party then there will be no delivery unless and until the third party tells the buyer that the goods are being held on his behalf. This section would not create any impact on the transfer of title of the goods.

Who is an Unpaid seller?

As defined by Section 45 of Sale of Goods Act, 1930, a person has sold some goods and has not got the whole price and if the transaction is done through negotiable instruments like cheque, bill of exchange and a promissory note, then the person can be said as an unpaid seller.

Illustration- If A is a seller and he delivers the goods to B and transfers the possession, and if B hasn’t paid the sum then A becomes an unpaid seller.

Rights of an unpaid seller

Section 46 of the Sale of Goods Act 1930, discusses the rights of an unpaid seller. This can be of two types:

• Against the goods – jus in rem ( right against property)
• Against the buyer – jus in personam (right against the person)

Right against the goods 

• Right to a lien which means the seller has the right on the possession over the goods.
• Right to stoppage in transit which means the seller can call up the carrier transporter and tell not to deliver the goods.
• Right to resale means the seller can again sell the goods as he has the possession of the goods.

And the rights like the right to lien, the right to stoppage in transit and the right to resale are also applicable for the agreement which is made for sale.

Rights against the buyer

• The seller has the right to sue the buyer for the price if the seller has already sold the goods and the buyer hasn’t paid the sum.
• The seller has the right to sue for the damages, for e.g. if the seller has sent the carrier for the delivery and the buyer isn’t available to receive the delivery and the goods returned back by the carrier to the seller then he can sue the buyer for damages like the packing of goods, transportation charges and so many.
• If the buyer hasn’t paid the price of the goods to the seller after the delivery within a stipulated time period as given in the contract, then the seller can sue for the interest on the buyer.

References

• http://legislative.gov.in/sites/default/files/A1930-3_0.pdf
• https://www.toppr.com/guides/business-laws/the-sale-goods-act-1930/rights-of-unpaid-seller-against-goods/
• https://www.scribd.com/doc/80635998/DUTIES-OF-SELLER-AND-BUYER
• Rights and Duties of Buyer and Seller under Sale of Goods Act,1930 – Free BCom Notes
• https://blog.ipleaders.in/unpaid-seller-rights/
• https://www.toppr.com/guides/business-laws/the-sale-of-goods-act-1930/performance-of-contract-of-sale/ 

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Hi, I am Anubhav. I worked as Blog Manager at iPleaders Blog for 2 years (Till April, 2019) and currently, I am an expert at LawSikho, teaching Legal Writing to more than 1000 LawSikho family members.

This article is written by me and is a note from a teacher who forgot to take his class on the scheduled day of the week!

Hi,

This article is specifically focused on two classes of professionals.

First, Law Students.

Second, Professionals involved in the study of law who have hit the plateau of practice or learning of law.

People who are between any of the above two stages can take infinite risks and therefore, I am specifically urging you to be a little irresponsible. 

Those in the middle of the above two stages, I know, and you must, disagree with me. After all, one cannot afford irresponsibility in the prime of their career-making. Right?

(Caveat before I begin: My definition of irresponsibility is a negative one and is discussed somewhere in the middle of this article. The definition is an inclusive one. Therefore, go ahead and add more to the already existing list. Also, please hit a reply to this mail and let me know what is the next irresponsible step you are going to take).

Why am I asking you to be irresponsible? Because of the following two instances which made me think, how good at times can it be, to act a little irresponsible?

Instance One – Every Saturday, my weekly classes on legal research and writing is scheduled where I teach more than 1000 family members at LawSikho. 

I forgot to take the classes scheduled for February, the 8th. It was my roommate’s birthday. I forgot to inform my students regarding cancellation of the class out of sheer irresponsibility. 

Teaching has been my first profession. I started training students on writing legal blogs since I was in my third year of B.A.LL.B programme. 

Second Instance – Do you remember that one guy in the hostel who cooks excellent chicken? I am that guy! I am an excellent cook. Just to add, my estimate of excellence is to be measured among ‘hostel cooks’.

Every birthday, as a ritual, we cook paneer and chicken. No specific names of the dishes. Ingredients consist of the two and when coupled with drinks, rest becomes part of history.

I came to realise that I missed taking my classes in the middle of celebrations (The same day when my classes were scheduled). As a result, cooking went terribly bad. 

P.S – I added a handful quantity of Ajinomoto instead of salt. Rest I leave at your imagination.

These instances made me sit back and ponder on an important question, Is it alright to afford a little irresponsibility? If so, then how little?

Shout Out to Law Students

Have you been the responsible one throughout your law school?

Taking the lectures on time. Scoring well in semester exams. Applying for Internships on time. Writing Research Paper. Mooting. Being part of the committees. Taking an active part in cultural or sports fest?

After performing all or a couple of tasks listed above, do you still feel you just lack that spark!

Are you failing to get Internships in spite of applying on time?

Even after getting an internship, are you able to perform excellently in your internships?

Are you getting callbacks? 

Or your internship is just another case research mundane work where you are sticking your eyes in ‘or/and’ of legal research databases? Or perhaps you are asked to proofread yet another discarded document taken out from the official depository. 

Did you interned at a Tier 1 law firm quite many times and yet, called for an assessment internship, let alone PPO?

I know you must have done a self assessment. What was the answer received? What did your brain signal you? An answer coupled with solid reasons, ain’t it. Some of the answers might resonate the following.

• It was a Summer/Winter Internship. Jam-packed with law students. Therefore not getting enough work was natural. I will definitely apply for the off-seasons internship.
•  The reporting manager was least interested in teaching an intern. 
  • Obviously, he will be. 
  • Imagine you are having 5 years of practice in the legal profession. 
  • You get a team of enthusiastic interns every month, filled with energy, however, who do not even know even 10 percent of the Level 1 work  (as simple as writing a legal opinion).
  • Now, will you, take one hour of your every workday, 12 months a year and train interns, who anyways will vanish after 30 days or will you prefer spending that 1 hour with your family? 
  • No reporting manager feels like training interns from scratch. 
  • You are supposed to know Level 1 work. 
  • It is unfair I know. 
  • However, this is the way it is. Feel free to complain, no one is listening. 

Why do I suggest acting irresponsibly is the way out?

By acting irresponsibly, I mean acting unconventionally. 

Till now you have been following the advice of your teachers or seniors. 

Reading commentaries on contracts, doing an IBC moot, writing paper on biggest corporate governance failures and whatnot.

It is time to be irresponsible now. 

Irresponsible according to the conventional standards. 

Irresponsible according to the standards of your teachers/seniors.

Do not limit yourself to reading bulky commentaries on Contract but actually, draft one. Even a simple rent agreement will work. Offer your services to any of the local lawyers for free. I am sure you will get your first client with this method. 

Follow the latest development on IBC. Nonetheless, do not limit yourself to mere re-posting on the recent developments on IBC on LinkedIn. 

Write an article on how with the new development vide the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2019, the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease. Write a legal opinion on this.

How will you acquire these skillsets? 

After all, being irresponsible according to my standards sounds a little utopian!

You will have to cross the barriers and learn law through unconventional ways. Ways of which our traditional legal education haven’t even thought of yet. Or perhaps is afraid, since the legal fraternity knows, the teachers present lack the practical skillset required. 

Step 1 is to understand what is the area you need to learn. Most law students believe they are good in a particular area. Their belief comes from the fact that they can answer all the questions which come from teachers in classrooms. 

Please, do not be in this state of doubt. Come out of it. 

If you are interested in contracts and want a job, you will have to know, at least what law firm lawyers, in-house counsels, independent business lawyers, business leaders require in a well-drafted contract.

If you are interested in cyber law and planning to build a career, you will need to know the area of work around which the Lawyers working for technology and eCommerce companies such as Google, Facebook, Amazon, Uber, Flipkart etc. are establishing their practice. 

If you are interested in MnA, not having the skillset on how a scheme of merger is presented before NCLT for approval will leave you directionless.

Confused about your future? Can’t make up your mind? Reach out to me or any of the expert at LawSikho.

You can take a free career assessment by reaching out to us here, at LawSikho.

Do not be scared. It is difficult, I understand. Being irresponsible according to our standards is scary. 

We expect you to walk the Road Not Taken. Yes, the one which has been less travelled by and this is what will make all the difference. 

I will share a little anecdote of yet another act of irresponsibility before I shift to next part of the article where I discuss why it is alright to be irresponsible if you are a professional involved in the study of law and have hit the plateau of practice or learning of law.

2012, Battle of Bands, Ranchi

I am from Ranchi. It is a small tier 2 city. A city aspiring to be metro. But my go-to spend my weekend spots are not city pubs or malls, instead, waterfalls, mountains where we go for hitchhiking, lakes (specifically, fishing in the dark. Rohu bait works best at night. This fishing technique is not frequently found in fishing books but told as a tell-tale by village elders. 

Legally speaking, this technique is a Traditional Knowledge (:  

Ranchi hosts a battle of band event every year. All the rock bands perform and compete for the cash money. My band Explicit was registered for the 10th performance in the year 2012 

We were to perform Zeppelin’s Stairway to heaven and Floyd’s, Wish you were. 

Our Music Guru prepared us at a metronome higher than usual as we were ending with wish you were here. 

To cut it short, the first piece of music which we were playing was very fast and the second one, comparatively slower. Therefore, we decided to set the pace of the second song faster so that both the song can resonant an octave.

We rehearsed accordingly. The traditional way. We rehearsed responsibly. 

We rehearsed at the pace which we were supposed to perform at the event.  

Quite often, whenever sir was not around, we played unconventionally. It gave us immense pleasure. 

Ask any Guitarist. Playing Wish you were here, resonating David Gilmour is a dream. So was mine!

We were rehearsing to play at a higher pace as per the performance’s requirement. We felt troubled. What Explicit (My Band) wanted was not what we were doing. We were puzzled.

We were all set on the day of the event. Standard 10th kids, all set to compete with oldies. We were infamously referred to as Outlawed since we chose late 70s – 80s retro, rather than banging our heads at stupid death gore metal music. 

We chose melody over stupidity. 

We choose to act irresponsibly as per the standards of the competition.  

I was the lead guitarist and Achintya was at drums. 

I held my CORT AD series gifted to me by my grandfather and opened with A note, D string, 7th Fret. Guess what? The crowd went crazyyyyy!!!!

We were happy. Performing in the middle of thousand people. It was perhaps a dream come true.

After 4 minutes, it was time to shift to Wish you were here.

As per rehearsal, we were to go with PLAN A. (What our sir taught us).

Explicit went irresponsible. (We went with plan B. Plan B, which we wanted to play). 

We played differently. 

We slowed the pace down instead of boosting it up. We felt the music while playing.

We Played at a slower pace than was expected. 

Our Guru was shocked and angry. He went ahead to the point of trying to turn our plugs 

Till this time, the memory of November 14th, 2012 give me chills. The Stubborn we took over the

The crowd went crazy. They heard something 

Our sir was mad at us. He disapproved of the performance

We eventually were disqualified for not following the rules and extending our performance for 1 minute and 28 seconds.

When I Look back and connect the dots, I realise what that performance taught me. I realise this. 

It made me fearless. It made me strong. It made me realise that even though I might upset my teacher, however, I can cheer a thousand people up. 

Immaterial of the fact that I will be disqualified thereafter. 

This is being irresponsible according to me. Making things done. Finding answers. 

Have you found your answer yet? Drop me a WhatsApp text or you call even call me at 9915873870 and I will be more than happy to hear your story.

Shout out to Professionals who reached plateau 

If you are a good lawyer, work will come at your doorstep This is a traditional and conservative viewpoint.  Quite often in the alleys of court, it is discussed, a lawyer need not engage in business development or promotional activities, and that in fact such practices are unethical in the legal profession!

What if I tell you that there are lawyers who, after practising for decades, feel that the area of growth is saturated and there are no new avenues to look for.

These practitioners are having good practice backed with awesome clientele base. They can sense the plateau reached.

They are still hungry! They want to grow. They are just like Lions in a jungle. Looking for new prey, a new avenue of law, however, it is difficult to find answers for.

How would you like to grow your law practice predictably, reliably and smoothly? It is possible to do so by applying sound principles of management and building systems with purpose and clarity.

Surely, doing it systematically can make a world of difference. It is much less painful and far more profitable.

I am urging you to be a little irresponsible too, irresponsible as per the conventional standards. Because these set, standard conventional ways is unable to take your practice to heights. 

We are, therefore, proud to announce the Law Practice Development and Management course for lawyers looking to build law firms and chambers of the future.

The material taught in this course is distilled from the experience and wisdom of the most successful lawyers as well as business managers from other related services domains such as management consulting. We had the benefit of working with some great legal entrepreneurs who have built big law practices as well as have been partners in some of the most remarkable law firms.

We would have a few of them offering live classes as well as part of this effort. Hence, you will get to learn the most critical lessons straight from lawyers who have built great law practices, or manage some of the best law firms. This is really a rare opportunity.

We will answer the following

• What are the most important qualities of a lawyer who wants to set up a law firm or a solo practice
• What are the point of agenda for building a strong brand as a solo practitioner
• Why is online presence important for lawyers and law firms
• What kind of online presence should you build
• Top 5 things you can do to expand your law practice

These are just the tip of the iceberg.

The post Hey, You! The Responsible One. You Can Afford to be a Little Irresponsible appeared first on iPleaders.

This article is written by Namrata Kandankovi from Symbiosis Law School, Pune.

“There may be times when we are powerless to prevent injustice, but there never must be a time where we fail to protest”

-Elie Weasel

Abstract

The following article drags the attention of the readers towards the aspect of personal laws by explaining what personal laws are all about, how they evolved over time, their current status, recent judgments which brought various amendments to them and also discusses certain other personal laws which tend to be discriminative in nature and have become obsolete in the current times. It also analyses the pros and cons of decriminalising and criminalizing of personal laws, further it gives an outlook of what future action can be taken regarding certain laws and lastly includes a discussion concerning the implementation of Uniform Civil Code in India.

Introduction: What are Personal Laws?

Throwing light on the aspect of personal laws, it can be stated that personal laws are a legal system whereby a possibility is created for the application of different laws to people who differ in terms of religious and ethical identity from one another. Personal laws under the Indian context can be termed as the ones which are made applicable to a specific class or group of people and such a classification is made on the basis of faith, religion and culture. Taking into consideration the Indian scenario, it can further be stated, that the population is divided in terms of culture and faith and every individual in India tends to follow his or her own faith or belief[1]. Hence, there arises a need to decide on these beliefs by a set of laws which govern them. It should also be noted that personal laws in India have been brought into effect keeping in mind the numerous customs followed by people belonging to a different religion.

Evolution of Personal Laws in India- The present-day Indian society comprises of three prominent cultural systems, which are- Hindu, Muslim and Christians. Speaking of the personal laws of Hindus and Muslims, it can be assured that they derive their power and cause from their ancient religious scripts[2]. These religious scripts include under their ambit various aspects governing both public and private lives of an individual, but when it comes to enforcement of these rights with regard to law, the area of law dealing with them is restricted to Marriage, Guardianship, Inheritance, Succession, adoption etc.

Decriminalization of certain acts in the wake of recent judgments

Placing prominence on the recent judgments delivered by the Indian courts, it can be indicated that the year 2018 and 2019 have been the years of delivery of landmark judgments by courts with respect to personal laws. Ranging from Triple Talak to decriminalising of Adultery, the courts have dealt with various aspects related to personal laws which concern the general public at large in India. Some of such significant judgments given out by the courts have been discussed in the following segment of the paper[3].

Decriminalising Homosexuality

What was Section 377 all about?

It is important to note that Section 377 was brought into enforcement by the British during their colonial reign in India. The law was functional for a period which stretched for 157 long years. When it came to punishment for the commission of wrong under Section 377, the offences were classified under the domain of “Unnatural Offences”. The punishment for such acts varied from imprisonment ranging from 10 years or up to life imprisonment and fine. Section 377 of IPC stated that “whoever indulges in any kind of carnal intercourse, be it with a man, woman or an animal, which goes against the order of nature, will be held liable for a criminal offence under Section 377”. 

Scraping of Section 377 of Indian Penal Code which criminalized homosexuality

In the ruling of the renowned judgment of Navtej Singh Johar v. Union of India[4] the Apex Court of India decriminalized homosexuality by scrapping down Section 377 of Indian Penal Code, which criminalized homosexuality. The outline of the Judgment of the case has been discussed under; where some of the significant aspects related to Section 377 were highlighted by the apex court of India:

• The human rights and the fundamental rights granted in India will be in the same lines to each and every individual, be it any citizen of India or any member of the LGBTQ community. All of them would enjoy the same rights and any discrimination with reference to these rights would not be appreciated [5].
• Section 377 of IPC was termed as a law, which was moreover used as a medium to abuse the members of the LGBTQ community and as a result, the people belonging to LGBTQ community were discriminated against from the rest and hence, the said law was required to be quashed.
• Further, it should also be noted that the court, however, lay down that when it comes to any kind of intercourse with animals, any person indulging in such an activity, be it any kind of sexual activity, such a person would be held liable for a criminal offence.
• The bench further held that, when it comes to upholding the dignity and personal rights of an individual, it is always of paramount importance for the court to step in and ensure a safe and secure environment for all the citizens of India.
• The law which was defined under Section 377 was considered to be absurd and arbitrary with the changing norms of the society and hence, there was a growing need to strike down the Section and terminate its operation [6].
• Lastly, the bench also made a reference to the importance of personal laws in India and stated that sexual orientation is something that is solely a biological phenomenon and any discrimination made on such an aspect would entertain criminal action against the wrongdoer.

Section 377: A half won battle?

With the outcome of the landmark judgment on scrapping of Section 377, Indian sub-continent saw much fervour amongst its citizens as it was no longer an offence for the members of the LGBTQ community to involve in a sexual activity which was based on their individual sexual orientation. But, at the same time, there arises a grave need to also look at the flip side of it in order to address the matters which concern the current scenario.

It is imperative and rather astonishing to know that it is the married women in India who are found invoking and making use of Section 377 of the Indian Penal Code on a larger scale when compared to people of any other community. Whenever a woman files a case under Section 498A of the Indian Penal Code, Section 377 is also invoked in such a suit. This majorly happens because there exists a lacuna in the law whereby the punishment under section 498A of IPC is very meager and it is barely known to make any kind of difference and hence, the women in order to elevate the atrocious nature of the crime committed against them, invoke Section 377 which helps the women to highlight the “unnatural” abuse inflicted upon them by their husbands, be it husband forcing a wife to perform oral sex on him or anything in similar lines to it[7]. Hence, in order to resolve this matter, there was a need to provide a proper definition for the term “unnatural offences’ ‘ to make it clear as to what all aspects are included under its realm.  Therefore, it can be said that scraping down Section 377 would prove to be a blow on such women who were actually making use of it in order to overcome the cruelty committed against them by their husbands.

Decriminalising Adultery

Law relating to Adultery in India

Section 497 of the Indian Penal Code defined Adultery and commission of Adultery was categorized as a criminal offence. The enactment of the Adultery law dates back to the colonial era. Adultery was considered to be an extramarital affair, which led to the breach of the sacred institution of marriage, and along with this, adultery was considered to be a wrong committed against the moral, ethical and religious grounds[8]. The prime motto behind the existence and operation of the law of adultery was to secure and protect the sacred institution of marriage. The punishment for the commission of Adultery was regarded only to the man who indulged in it and there was no onus put on the woman.

Was the law of Adultery gender neutral?

Looking at the above-stated law, it can easily be concluded that there exist numerous loopholes in it as it holds only a man liable for his actions and not the woman, the second important aspect is the concept of consent whereby, consent of the wife is not given any importance and the wife is merely regarded as the property of her husband[9]. Hence, there was a grave need to bring an amendment in this law. It was a 41-year-old resident of Kerala who filed a PIL by invoking Article 32 of the Indian Constitution. The main object of the PIL was challenging the very existence and also the accord of punishment under Indian Penal Code Section 497. While delivering the judgment, the then Chief Justice of India Deepak Misra held that “husband cannot be considered to be the ‘master of his wife’ and in addition to this there is also a need to treat women on a par with men”[10].

Decriminalising Adultery:  A celebrated judgment?

Further, Justice Chandrachud also stated that “the law of adultery offers an inferior status to women and the law is rather anti-women which lead to an establishment of a society where women are deprived of their sexual autonomy and the law was also seen to be gender stereotypical”. This analysis also raises major concerns- whether the state has a right to intervene in the personal matters of an individual and if the law of Adultery promotes the same, how far would it be justified in doing so.

Lastly, an important aspect to be borne in mind is that the Apex court of India while delivering the verdict regarding the law of adultery, not only decriminalized the law but at the same time held Adultery would continue to remain a valid ground for divorce. Hence, it can be quantified that the ruling of the Supreme Court comes as an advantage to the society at large, as it decriminalized the law which was archaic and stereotypic and further by continuing to make it a valid ground for divorce it gave absolute rights to the parties to marriage to bring an end to the same if the sanctity of marriage was violated by one of the partners.

Sabarimala Issue

Inception of the Sabarimala Issue

Sabarimala is known to be one of the holiest temple shrines in India. Located atop the mountain ranges of Western Ghats, the temple receives an annual footfall of 40 to 50 million devotees. The ancient temple dedicated to Lord Ayyappa is open to people of all caste and creed except for women between the ages of 10 to 50 years. The deity in Sabarimala is regarded to be a “Naistika Bramhachari” which means a celibate for eternity. Considering this aspect, the temple board dispensed a notification calling on the ban for entry of women aged 10 to 50 years.

In the ancient days, it was the priests who wielded the power of deciding the entry of people in the temple shrine, but with the passage of time, the High Court of Kerala in 1991 imposed a ban on entry of women aged 10 to 50 years from entering the temple[11].

Unfolding of events after the imposition of ban by Kerala High Court

Following the verdict of the Kerala High Court, there were numerous objections raised by people of different walks of life: A group of lawyers objected to the decision by stating that it goes against the principle of right to equality and questions an individual’s right to worship. Again in 2016, an association led by prominent lawyers of India raised questions on the ruling of the Kerala High Court. It was finally in 2018 when a five-judge bench was constituted in order to determine the case regarding women’s entry into the holy shrine of Sabarimala[12].

The five-judge bench in its judgment regarding Sabarimala lifted the ban on the entry of women into the temple and ruled that every individual should be given the right to entry to the temple and right to worship. Justice Indu Malhotra ruled against the entry of women in the shrine, being the only one to have a dissenting opinion.

Turn of events following the ruling of Supreme Court

With the verdict of Sabarimala being rolled out by the Supreme Court, the country witnessed a number of protests and objections to the entry of women into the shrine. There were numerous instances of the locals stopping women from entering the shrine and there saw an uproar and disruption in the smooth functioning of the temple worships. The Kerala government witnessing such events understood there was an immediate need to take steps to bring the situation under control. Therefore, the government brought the attention of the court to the happenings in the state and there was a review petition filed by the royal family of Pandalam against the ruling of Supreme Court. Following this, the apex court stated that the case will be reviewed by a larger bench of 7 judges [13].

From the above discussion, it can be stated that- When issues like that of Sabarimala surface, it provides an outstanding prospect for the courts in India to regulate and re-consider the ancient customs in India. In addition to this, the courts also need to draw a parallel between the right to worship of devotees and the rules laid down by the Constitution of India in terms of right to equality and freedom of expression [14]. After making a keen observation in the issue of Sabarimala, it can be concluded that the courts in India are required to work out a method to deal with such issues and make sure that it doesn’t lead to violent clashes amongst various groups of people. This issue stood as an exceptional example of clash between personal laws and Fundamental Rights enshrined by the Indian Constitution.

Personal laws which await changes

Up until now, the paper dealt with various personal laws which were given a judicial pronouncement by the courts in India in order to resolve all that was going wrong with their existence. But at the same time, it should also be noted that there are a number of personal laws which await changes. The following section of the paper will bring to light such matters and the give out speculations on the future course of action for such existing personal laws.

Marital Rape in India

Marital Rape: A far-fetched reality in India?

Firstly, in order to understand the crux of the issue, it is important to note that, Section 375 of the Indian Penal Code states- any kind of sexual assault on a women, which does not involve consent will be considered to be a criminal offence and would attract punishment which could range from imprisonment for a period of 7 years to imprisonment for life.

Nevertheless, it would be quite astonishing to note that exception 2 of Section 375 omits non-consensual sexual intercourse between a husband and wife if the wife is above fifteen years of age. The existing law in India keeps the idea of marriage on an upper pedestal and favors it over the consent of a woman. While comparing this to other countries of the world, it can be stated that most of the countries in the world have made marital rape a criminal offence. India, on the other hand, remains to be one of the 34 countries which are yet to criminalize marital rape [15].

Criminalizing Marital Rape: A distant dream for India?

There have been a plethora of petitions lying in various courts of India regarding the exception clause laid down under Section 375 which legalizes marital rape. One of the main aspects which seem troublesome in the establishment of marital rape is the concept of “reasonableness” under the criminal law. The concept of reasonableness doesn’t have a fair play when it comes to marital rape, because in a patriarchal society like India, it is presumed that marriage gives constant consent to a man over his wife’s body, in additional it is usually presumed that a “reasonable act” or “reasonableness” is something that a man would always comply with.

Criminalising marital rape: Need of the hour?

Another significant aspect which serves as an obstruction for decriminalising of marital rape is the notion that women would use the law of marital rape as an instrument to harass their husbands. Here, it should be noted that there have been various women-centric laws enforced in India, which have been able to punish men for the wrongs committed by them and if there evolve cases of women making false use of the law of marital rape, it would actually become difficult for the husband to obtain a bail and he will additionally be required to pay damages to the wife. But, a significant characteristic to be considered is that a survey which was taken out by the International Centre and Research for Women showed that at least 20% of men had forced themselves on their wives at least once during their marriage, and further, it also revealed that 5.6% were categorized to be the ones subjected to physical abuse and were forced to have sex with their husbands when they clearly didn’t want to indulge in any sexual activity [16]. Such facts and figures raise prominent questions as to the safety and security of women and the same needs to be addressed and the problem should be brought to an end. Hence, it can be concluded that criminalizing marital rape is indeed the need of hour [17].

Child Marriage

The forgotten child brides of India

Put in simple terms, child marriage can be defined as an informal or formal union or marriage which an individual is obligated into before attaining the appropriate legal age for marriage. Taking a look back, it can be stated that child marriage in India existed from the time of Delhi Sultanate, where the general perception behind such an act was to safeguard the girls from the social evils like that of rape and abduction. But, with the passage of time, though India became free from foreign rulers, the nation couldn’t be free from the evil of child marriage and continues to be very much prevalent even till date in India.

Child Marriage takes place on a larger scale in developing countries when compared to developed countries. According to a survey conducted by UNICEF, about 4 out of 10 girls are married off before they attain 18 and the statistics of South Asia suggested 3 out of 7 girls are married off before attaining 18 years of age. One of the most alarming facts amongst all this is that India is known to have the highest number of child brides than any other countries in the world, with almost 15 million of them. Followed by India, Bangladesh ranks second with about 4.5 million child brides and further Nigeria and Brazil follow which have about 3 million child brides [18].

Untoward Consequences of Child Marriage

Whenever girls are married off at an early age, they are forced to drop out of school, deprived of their basic education and are transferred to their husband’s place as a kind of their husband’s property. Followed by this, young girls are put on a high risk of pregnancy, even when they are physically and psychologically immature to handle such circumstances. According to the survey conducted by the World Health Organisation, premature pregnancy was one of the prime causes for death among young girls in India. Hence, it can be stated that, by getting young girls married before they attain the right age, the girls have been robbed of their very basic rights to learn, grow and have a childhood which every child deserves and they are not only made to be dependent on others for the rest of their lives but also, ripped of their basic amenities and are made susceptible to various physical, mental and psychological abuses.

Laws prohibiting Child Marriage

Considering the Indian scenario, it can be indicated that there have been laws prohibiting child marriage from the past 90 years.

1) Prevention of Child Marriage Act 2006

One of the significant laws being Prevention of Child Marriage Act (PCMA) 2006, it states that any marriage between a man who is above 18 years of age and a girl below 18 years would be a punishable offence with imprisonment and a fine up to 1 lakh rupees. But the lacuna which exits in this law is that, though PCMA makes child marriage a non-bailable offence, it is voidable at the discretion of the bride. That is, the child bride has a right to declare her marriage null and void after attaining majority, and if she doesn’t take any measures regarding this, her marriage would still be valid. Considering the social scenario in India under which such marriages happen, it is practically impossible for the bride to go against the norms of the society and her parent’s decisions.

2) Section 5(n) of POCSO

Section 5(n) of Protection of Children from Sexual Offences makes penetrant sexual assault on any child by anyone related to the child or otherwise a punishable offence. In addition to this, clause 6 also states that any sexual act against a girl below 18 years of age, with or without consent would be a punishable offence. Certain exceptions to 375 which allowed husbands to consummate their marriage with wife being 15 to 18 years of age were amended in November 2017, in the case of Independent thought v. Union of India[19]. Therefore, according to POCSO, if the male is an adult and the bride is a minor and any family member of hers forcing, abetting or coercing her into marrying a man before she attains 18 years of age, will be prosecuted. Another significant aspect to be measured here is that, if the state governments strictly comply with these norms, they will have to take action against the various politicians who organize mass weddings which involve child brides.

3) Hindu Marriage Act, 1956

Speaking about Child marriage, it can be said that Hindu Marriage Act rather takes a backseat while dealing with such issues, as it makes only the parties to child marriage liable and not the parents who actually solemnize the marriage. Regarding the girl, the provision states that a girl can get her marriage annulled after attaining 18 only if she was married before 15 years. This again poses as a problem as it has been discussed early that, after a girl is married off at an early age, she becomes completely dependent on the husband and his family and will be left with no resources to support herself and hence, in most of the cases the brides usually do not opt to annul their marriages after attaining the age of majority [20]. 

Lastly, it can rather be stated that there exist numerous loopholes in the current law that deals with child marriage in India. In addition to this various other factors like that of poverty, lack of education, lack of awareness regarding the law, increase in demand for dowry, preserving the virginity of the girl, various customs and superstitions, lack of protection and safety for girls, act as driving forces in increasing child marriages in India. Hence, if the government strives to bring an end to child marriages in India, it will rather have to focus on bringing to book and addressing the above-mentioned factors.

Should India have a Uniform Civil Code?

Uniform Civil Code (UCC)

One of the major reasons behind Uniform Civil Code gaining ground and evolving as a mainstream issue is the plight of the Muslim women and them turning to Supreme Court in order to seek justice in order to uplift their socio-economic conditions and also to uphold the fundamental rights enshrined to them under the Indian Constitution. Moreover, Article 44 of the Indian Constitution, which speaks about Directive Principles, states that- “State shall attempt to provide the Uniform Civil Code to the citizens throughout the country”.

Arguments favoring implementation of UCC

1) Ensuring equal status to citizens- India being a democratic republic, there should be an existence of a state which treats every citizen equally irrespective of their caste, creed, religion or gender.

2) Establishing national integration- The very idea of a secular state underlines the importance of treating everyone on equal lines. UCC would ensure that the same set of criminal and civil laws are made applicable to people of all religions in India. This would also curb the politicization of various issues, special amenities enjoyed by people of certain religion or any kind of discrimination faced by people of a particular religion[21].

3) Making room for reforms in personal laws- The current personal laws in India tend to have a patriarchal notion and rather focus on treating women as a substitute or the second sex. But with the evolution of time, there arises a dire need to uplift women and give them their required status which can be ensured by way of UCC.

4) To render the aspirations of the youth- A large chunk of India’s population being below 25 years, it becomes important for a country like India to shape the goals, social thinking and aspirations of the youth in a correct manner. On the contrary, governing people differently based on their religious identity would cause much damage.                                                                       

Arguments opposing implementation of UCC

1) Vast diversity in India- India being a secular country, it becomes practically impossible to govern people belonging to different religions under the same set of laws which tend to go against their cultural and religious practices.

2) Is the time apt for such an implementation? In recent times, India has seen numerous oppositions from the Muslim community be it in terms of beef banning or saffronization of curriculum in school, or love jihad. Considering these aspects it can rather be concluded that this might not be the right time to implement UCC.

3) Intervention of the state in personal laws- Taking a look at the Constitution it can be specified that it provides for freedom to practice and profess any religion of one’s own choice. Bringing in UCC would mean mandating people to follow certain laws which go against the freedom ensured by the government of India[22].

Conclusion

The crux of the issue of personal laws has been discussed in detail in the paper. Additionally, there has also been a detailed study of ongoing changes regarding personal laws in contemporary India, certain personal laws which await changes, in order to be in line with the changing notions of the society, certain other laws which were changed recently by the courts in India, have also been deliberated in the paper. Lastly, it can be said that considering the vast diversity in India, any changes being brought in terms of personal laws should be done with utmost care and caution and at the same time, it is also important to bring reforms in laws from time to time, in order to accommodate the rapidly changing and evolving designs of the society.

References

[1] Raya Hazarika, Are all Personal Laws in India discriminatory?, Livemint blog, available at https://www.livemint.com/Opinion/Cn69qE9pQClmtQzzvw1oVP/All-personal-laws-in-India-are-discriminatory.html, last seen on  7th December 2019.

[2] Disha Madhok, Personal Laws in India and their working, Quartz India blog, available at https://qz.com/india/224632/indian-women-will-never-be-equal-as-long-as-these-9-laws-remain-on-the-books/, last seen on 6th December 2019.

[3] Shaswati Das, Section 377 verdict by Supreme Court: 5 things to know, Livemint blog, available at https://www.livemint.com/Politics/d8zjDGMLYr2hCHMt54iKcN/Section-377-verdict-by-Supreme-Court-today-5-key-things-to.html, last seen on 8th December 2019.

[4] Navtej Singh Johar v. Union of India, W. P. (Crl.) No. 76 of 2016, (Supreme Court of India)

[5] Namrata Kandankovi, Decriminalizing Homosexuality in India, available on Ipleaders blog, https://blog.ipleaders.in/decriminalising-homosexuality-section-377-india/, last seen on 8th December 2019.

[6] Naz Foundation v. Government of Delhi NCT of India, WP(C) No.7455/2001.

[7] Pradeep Chibber, Nirvikar Jassal, Next Steps after 377 judgment, The Hindu Blog, available at https://www.thehindu.com/opinion/op-ed/next-steps-after-the-377-judgment/article25184282.ece, last seen on 8th December 2019.

[8] Yusuf Abdul Aziz v. State of Bombay, 1954 AIR 321, 1954 SCR 930.

[9] Sowmithri Vishnu v. Union of India, 1985 AIR 1618, 1985 SCR Supl. (1) 741.

[10] Namrata Kandankovi, Effects and consequences of decriminalising adultery in India, Ipleaders blog, available at https://blog.ipleaders.in/legalising-adultery-in-india/, last seen on 10th December 2019.

[11] Aneesh Mathur, Sabarimala Case: SC refuses to have stay on the ban on entry of women in the holy shrine, India Today blog, available on https://www.indiatoday.in/india/story/sabrimala-temple-women-entry-sc-verdict-1619098-2019-11-14, last seen on 10th December 2019.

[12] N J Nair, Kerala not to allow women visit the temple for worship, The Hindu blog, available on https://www.thehindu.com/news/national/kerala/govt-not-to-entertain-women-in-sabarimala/article29985595.ece, last seen on 10th December 2019.

[13] K R Vidhyanathan, Pilgrimage to Sabarimala, 78 (1st ed., 2018)

[14] Anand Marga Pracharaka Sangha v. Commission of Income tax, 1996 218 ITR 254 Cal

[15] Rhea Singhal, Marital Rape: Consent, Marriage and Social Change in global context, 112 (1st ed., 2016)

[16] David Finkelhor, License to rape- Sexual abuse of wives, 43 (2nd ed., 2017)

[17] RTI Foundation v. Union of India, 2016 186 SCR 2313

[18] K. P Yadhav, Child Marriages in India, 58 (1st ed., 2018)

[19] Independent Thought v. Union of India, 2017 213 CRJ 1619.

[20] Yusuf Ibrahim Mohammad Lokhat v. State of Gujarat, 2014 1358 CR 213.

[21] Richard S Nowka, Mastering Secured Transaction: Article 9 UCC, 123 (1st ed., 2017)

[22] Stephen L Sepinuck, Practice under Article 9 of UCC, 112 (2nd ed., 2019)

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This article is written by Gareema Ahuja, Team LawSikho.

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This article has been written by Rutuparna Sahu from KIIT School of Law, Odisha. This article is an analysis of the hire purchase agreement.

Introduction

Hire purchase agreements are the kind of agreements whereby the owner of goods allows a person (the hirer) to hire goods from him for a specific period of time by paying instalments. Here, the hirer has the option to buy the goods at the end of the contract if all the instalments are paid respectively. Most of us get into the dilemma of whether this is a contract of sale.

Hire purchase agreement is not a contract of sale but a contract of bailment as the hirer hardly has the option to buy the goods and it is a notable fact that although the hirer has the right of using the goods, he is not the legal owner while the term of the agreement is functioning. In India, all the hire purchase finance organisations are controlled by the Hire Purchase Act, 1972. However, a Bill was initiated in the year 1989 for making certain amendments which could never come into force.

Such a transaction has two basic elements which are governed by the Indian Contract Act, 1872 and Sale of Goods Act, 193:

1. Bailment- This aspect of the hire purchase agreement is governed by Chapter IX of the Indian Contract Act which covers finance agreements like the purchase of consumer durables such as motor vehicles, computers, household appliances like televisions, refrigerator. 
2. Sale- This aspect of the hire purchase agreement is a part of the Sale of Goods Act. The law commission had recommended in its eighth report of Sale of Goods Act that there should be a separate enactment regulating hire-purchase transaction. As there were no proper laws to regulate such transactions of hire purchase hence provisions were made by a separate act called the Hire Purchase Act 1972.  

Features of Hire Purchase Agreement

• One should be cautious while selecting the asset and enquire about the rightful owner of that assets because it may so happen that the goods are hired and later on, it is found that the vendor is not entitled to those goods.
• Keeping a check on the cumulative instalment amount is very necessary to make sure that it should not exceed the actual value of assets.
• It is also required that the hirer should possess the copy of the hire purchase agreement.
• Hire purchase agreement is such that it can be changed as per the convenience with the consent of both the parties i.e. the hirer and the hiree just like any other agreement.
• The hirer should make sure that the agreement mentions the hire charges and other terms of payment and their consequences in the manner he understands and interprets and the terms are favourable as far as possible and agreeable.
• There should be transparency and the agreements should have clarity of terms that are mutually agreeable by the parties.
• This mode is generally used for cars and high-value electrical goods where the buyers are not able to pay for the goods directly.
• Generally, If we compare buying something with a hire purchase agreement with buying something outright, the former would cost you more.
• In a hire purchase agreement ownership is transferred to the purchaser after the full payment of the particular article.

Working of a Hire Purchase Agreement 

A hire purchase agreement is somewhat similar to the concept of rent-to-own transactions which gives the purchaser a fair chance to buy the article whenever it is feasible to him while the agreement is in force. Likewise, hire purchase gives a benefit to the purchaser by providing them with fewer credits by diverting the cost of expensive articles which they otherwise could not have afforded over a time period. However, the purchaser is not eligible to be the owner of the article unless he has paid the full amount of the article, which means it is no way related to the extension of credit. 

And as in Hire Purchase, the ownership is not transferred initially as the articles that they hire are protected by the vendor because the full payment is not yet done. The vendor must have the assurance that the article would be kept in good condition until the full payment is received. So it is one of the secured ways of transaction.

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How Hire Purchase is different from Installment Sale?

• Unlike in the instalment sale, where the buyer becomes the owner of the property immediately as the contract is signed by both the parties but in case of a hire purchase agreement, the hire purchase is eligible to be the owner only after the payment of all the required instalments to the hire vendor.
• Installment is a contract of sale. Here the buyer has all rights to dispose of the property as he wants, but in a hire purchase agreement, the hire-purchaser and hire-vendor are related to each other as a bailee and a bailor which does not allow the hire-purchaser to dispose of a property in any manner.  
• As in case of instalments, the buyer becomes the owner immediately after signing the contract. So, any loss to the goods will be compensated by the buyer himself but in case of a hire purchase agreement, the hire-purchaser is not bound to compensate for the losses to the goods (if any) if was taken care of with due diligence as the hire-purchaser is not yet the absolute owner.
• In case of default in payment of instalments the seller is only entitled to sue the buyer for the unpaid amount of installment and has no right to repossess the property. But in case of default in payment of installment by the hire-purchaser in a hire purchase agreement, the hire-vendor has a right to repossess the property. 
• In case of an installment, a buyer cannot terminate the contract and is liable to pay all the instalments. But in case of a hire purchase agreement, the hire-purchaser can terminate the contract if he wishes to and can return the goods but is not entitled to pay the remaining instalments.

Parties to a Hire Purchase Agreement

In the hire purchase agreement, the contract is basically between two parties viz. the hire-purchaser and the hire-vendor and sometimes there is an involvement of a third party that is the financer. 

Duties of the Hire-vendor (owner)

• The hire-vendor has to deliver the goods in due time as required and should make sure that the goods delivered are in good condition.
• It is the duty of the owner to ensure that the goods are true to the description in accordance with the buyer’s preferences. Also, the goods should match the expected description. 
• The owner must have a title to the goods that are to be contracted for the hire purchase.
• The hire-vendor and the hire-purchase both the parties are required to render the basic information required such as the dates of the transaction and a reminder for the payment of the remaining amount.
• The goods for hiring must be of merchantable quality and should satisfy all the criteria required to fit into the purpose for which they were hired. Moreover, the property should be free from encumbrances. If at all there is any kind of defect in the property, it should be of a minor one which is noticeable. For example in the case of Anoka vs. SCOA Warri, the hirer returned the bike of the vendor because of some defect in the engine. The court in this matter held that the implied term of fitness for the purpose would not be applicable in this case because the defect is a major one which cannot be noticed easily.
• The hirer has the right to quiet the possession anytime he wishes to but besides that, it is the duty of the vendor not to interrupt the hirer in any way while possessing the good.

Duties of a hirer

• It is the hirer’s duty to be present while receiving or accepting the goods delivered by the owner and if in case he fails to do so he can be sued for non-acceptance of the goods.
• No doubt the hirer has a right to use the property as if it was his own but with a condition that he must take care of the property with due diligence. 
• If in case, the hire purchase agreement ceases to be valid, the hirer is obligated to redeliver the goods to the owner in exactly the same condition as it was received. 
• The hirer is bound to pay all the instalments required when it is due. In the case of Animashawun vs. CFAO, the hirer was in default of payment of the instalments and as a result, the owner repossessed the goods. The court’s decision was in favour of the owner and held that the owner has all the rights to repossess the goods on default of the remaining instalments. 
• Mere hiring a good does not give a hirer the right to dispose of the goods delivered by the owner and this stays uninterrupted unless the full payment is done. 
• It is the duty of the hirer to not act inconsistent to anything relating to the goods nor to the owner’s right over the good and this stays uninterrupted unless the full payment is done. 

Contents of hire-purchase agreements under Section 4 of the Hire-Purchase Act 

Every hire-purchase agreement needs to state the followings –

• The price of the goods to be hired as agreed by the parties. 
• The said cash price of the goods, at which the goods are to be purchased by the hirer for cash.
• The exact date on which the agreement shall be deemed to have taken place.
• The number of instalments required to pay the hire purchase price, the amount for each of the instalments, with the date upon which the instalments are to be paid, the person to whom the instalments are to be paid and the proper place where the transaction needs to be done.
• About the goods that are to be hired in such a manner that it can be identified by the hirer.

Major demerits of a Hire-Purchase Agreement

• If we go through the real-life scenario this method of the transaction would cost you more than the usual buying option.
• Hiring never comes with absolute ownership because the vendor can repossess the goods on the failure of payment of instalments.
• The duration of most of the hire purchase schemes is very long and stringent. 
• The hire purchase schemes are never free of cost. You have to pay a certain amount initially, which is usually very high, with the amount of instalments agreed.
• Even if you are insured for the particular good and the product incurs damages, you cannot claim for the insurance money unless you own the property. And the cost of damage automatically gets added to the remaining instalment money that is to be paid.

Latest scandals regarding the hire purchase agreement 

• Errors in credit and loan agreements are the latest scandals to disturb the banking sector. According to the latest disclosure by HSBC (Hong Kong and Shanghai banking corporation), a huge number of consumers are to be refunded for mistakes in paperwork relating to the agreements. 
• Besides that, some of the reports by many Britain banks and building societies say that annual statements, arrears notices and other correspondence held by consumers could not comply with the Consumer Credit Act because of lack of information provided to the consumer which they are entitled to have the knowledge.  

Conclusion 

According to the above research, we can conclude that the concept of hire purchase agreement is the best way to hire any article which is generally expensive to afford and at the end, you can even purchase it if you are able to. But as a matter of fact, it costs you more because the instalment money is generally added with interests and outstandings of the particular article. 

References 

• https://indiankanoon.org/doc/1574709/
• https://indiankanoon.org/doc/171398/
• https://indiankanoon.org/doc/651105/
• https://www.legalcrystal.com/acts/search/name:indian-contract-act-1872-chapter-9-of-bailment
• https://www.coursehero.com/file/p6e43ft/Another-implied-condition-is-the-fitness-for-the-purpose-for-which-the-goods/
• http://www.ijhssnet.com/journals/Vol_5_No_10_October_2015/27.pdf
• https://indiankanoon.org/doc/1574709/
• http://www.legislation.gov.uk/ukpga/1974/39/contents

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This article has been written by Ishaan Banerjee, from Vivekananda Institute of Professional Studies, Delhi, affiliated to Guru Gobind Singh Indraprastha University. This article explores trademark law as a sought after option for lawyers and what are the top law firms practising trademark law in India. This list will be useful to know what exposure one can get and the level of skills one needs in the trademark law industry.

Introduction

Trademark law has emerged as a lucrative opportunity for practising law and it is still expanding. With the globalization and expansion of trade and business, India signed the TRIPS Agreement (The Agreement on Trade-Related Aspects for Intellectual Property Rights) for protection of trademarks and this has brought a large amount of business and litigation in trademarks being conducted in India. The government, in 2017, made some trademark rule changes which brought much-needed improvements like expedited prosecution and electronic service of documents. In this growing legal market, firms are succeeding and their specialisation in trademark matters is improving day by day. 

If you want to be a successful trademark lawyer, this compiled list of the top 10 trademark law firms in India, while not definitive, would certainly give you an idea of what law firms are the top in the business and identify their key practice areas, along with gauging the level of skills needed to work in these firms. 

This list has been divided into two parts: the first one is for firms leading in enforcement and litigation and the second is for firms leading in prosecution and strategy.

Enforcement and litigation

Anand & Anand

• Formed in 1923, Anand & Anand is a full-service intellectual property rights law firm, covering everything under the ambit of intellectual property. This includes trademarks, copyrights, litigation and other areas like geographical indications (a sign used on products that have a particular geographical origin and whose special features are due to that place of origin) and biodiversity etc. The firm’s key and most successful practice areas are in the fields of copyrights, designs, patents, trademarks and litigation.
• The firm has advised a range of top Fortune 500 corporations, medium and small enterprises and startups across different industries. The firm has been awarded ‘Firm of the Year’ in the Asia Awards 2019 under the Managing Intellectual Property category and has been ranked Tier 1 across the trademark prosecution and contentious rankings. The firm has had several victories to its name, including successfully obtaining a permanent injunction against a restaurant called Social Goregaon for the infringement of trademark and copyright. 
• The firm provides services in the trademark field, such as brand development through complex searches, protection, enforcement with regard to issues like counterfeiting, disparagement and commercialization through licensing, mortgage and other means.
• Here is the link to their website: https://www.anandandanand.com

K & S Partners

• Founded in 1994 as a three-member team, in this short period of time, K & S Partners has expanded to Gurgaon, Mumbai, Hyderabad, Chennai and Bangalore and now includes over 120 professionals with an overall strength of 260. The firm has dealt with clients from neighbouring countries such as Pakistan, Sri Lanka, Bhutan, Myanmar etc, along with national clients. 
• The firm offers services in the range of prosecution, advisory, protection and transactional services across the practice areas of copyrights, designs, geographical indications, litigation, patents, trademarks and plant varieties.
• The firm specialises in trademark prosecution and enforcement. While the trademark prosecution team has a lot of experience, the enforcement team is still relatively inexperienced. However, it boasts of an equally strong team dealing with both civil and criminal enforcement matters.
• Here is the link to their website: https://www.knspartners.com

Remfry & Sagar

• Remfry & Sagar practises in the areas of patents, trademarks, designs, copyrights, IP litigation, patent litigation, corporate law, technology, media, and telecom. 
• This firm holds to its account a huge 15% of all inbound trademark registrations in India. The firm’s clients include reputed businesses, startups and Fortune 500 companies, policymakers and government agencies. 
• The firm was ranked as a Tier 1 firm for IP for 4 successive years starting 2016 to 2019 under the Legal 500 Asia Pacific rankings and was the winner in the intellectual property rights category under the India Business Law Journal Awards 2019.
• Here is the link to their website: https://www.remfry.com

RK Dewan & Co

• RK Dewan and Co have rapidly grown to cross borders with its own team of foreign associates. It is already a well established firm in premier cities of India like Delhi, Mumbai, Kolkata, Pune and Chennai. 
• The firm has a wide range of clients ranging from small and medium enterprises, academic and research bodies, public and private companies to government bodies and MNCs. These clients come from varied fields like agriculture, nanotechnology, software, automobile industry and food packaging industry etc
• The firm practises in every aspect of IP and provides a multitude of services such as agreement drafting, IP litigation, valuation, audit and even IP training and education.
• In 2014, the firm successfully defended Taparia Tools Limited in front of the China Trademark Review and Adjudication Board against a trademark infringement suit instituted against it by a local Chinese brand, thus bringing great relief and serving as a victory to the client.
• Here is the link to their website: https://www.rkdewan.com/index.php

Saikrishna & Associates

• This is a tier 1 full-service firm with the practice areas being intellectual property, telecommunication, corporate law and competition law. Founded in 2001, the firm has expanded rapidly to include 19 partners & associate partners as well as over 100 plus lawyers.
• The firm has a humongous practice area along with engagement in industry sectors like FMCG and retail, automotive, media and entertainment, software and artificial intelligence etc.
• Sources have referred this firm for its enforcement and litigation services, which are under the charge of the experienced litigator Saikrishna Rajagopal. 
• Here is the link to their website: https://www.saikrishnaassociates.com/index.php

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Prosecution and strategy

Anand & Anand

• Anand & Anand once again tops the list for firms involved in trademark prosecution and strategy. Led by the outstanding litigator and Managing Director Pravin Anand, the firm has emerged as one of the top firms for not only trademark law but also for entire IP law. 

Archer & Angel

• This firm operates in the sectors of retail, franchising and distribution, real estate and construction, employment, corporate and anti-corruption and compliance, along with intellectual property matters. The team also advises on technology transfer, licensing, trade secrets and unfair competition. 
• The firm deals with clients of Fortune 100 and Fortune 500 repute and provides for the protection and defence of their trademarks. The firm has an established presence in SAARC countries.
• The firm particularly takes a front line action of cease notice/ legal notice to avoid the time involved in litigation. The firm also has been involved in collaborating with investigation teams and raids of places which have been accused of trademark infringement. The firm also has the specialised service of securing registration of brands with Indian Customs for border protection. 
• It has also successfully defended a South-East Asian company against a US corporation which filed a trademark infringement suit in connection to the distribution of products in the Indian markets.
• Here is the link to their website: http://www.archerangel.com/home/

AZB & Partners

• AZB & Partners practise encompasses a wide area including aviation, employment, microfinance, white-collar crimes, international trade and intellectual property etc.
• One of the top law firms in India, it is also a major player in intellectual property rights as well. It was Top Ranked in the Chambers Global 2019 and has been the recipient of various awards as well. The firm is renowned for its availability.
• The firm practises trademark due diligence, portfolio management, litigation, enforcement, prosecution etc.  
• Other specialised services include drafting, negotiation, conducting property and brand audits, customs records and border enforcement for brands.
• Here is the link to their website: https://www.azbpartners.com/

Chadha & Chadha Intellectual Property Law Firm

• Chadha & Chadha is a patent and trademark agency. It is involved in all areas of intellectual property including patents, trademarks, plant varieties, licensing, copyrights etc. The firm is known for its availability and keenness on building lasting relationships with its clients.
• The firm is also involved in practising in diverse technical fields like that of automotive, healthcare and pharmaceuticals, metallurgy, sports equipment etc
• It also has an international presence with organisations like the Institute of Trademark Attorneys (ITMA) and the International Trademark Association etc.
• Services include trademark searches, application filing, drafting, prosecution, registration, oppositions, assignment records etc.
• Here is the link to their website: https://www.candcip.com

De Penning & De Penning

• This firm is known for trademark prosecution; the case management system helps to cut costs and helps to work efficiently. Established in 1856, it is one of the oldest IP law firms in India. This firm is involved in all aspects of intellectual property.
• The firm provides its services not only in India but across the world. Trademark application filing, searches, opposition, prosecution and registration; a multitude of services are provided by the firm.  
• Here is the link to their website: http://www.depenning.com/intellectual_trade.htm

References

[1] https://www.worldtrademarkreview.com/directories/wtr1000/rankings/india

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The article is written by Ayush Verma from Dr Ram Manohar Lohiya National Law University, Lucknow.

Have you lost your wallet along with other documents like Driving License, Aadhar Card, PAN Card, Credit and Debit Cards?

You must be dreading to go to the police station as there is a constant fright that authorities might not be co-operative.

However, you need not worry or go to the police station to file your complaint. You can file a complaint online as police department of many states have come up with online websites where one just needs to follow some steps to file a complaint. This saves your time, money and is free of any harassment.

Things to be done immediately after losing your wallet

• The first thing you need to do is to block your credit and debit cards so that no one can misuse them. They can also be misused by doing some illegal transactions; that’s why you need to file an FIR so that you are not made liable for a payment done by some other person, though the person used your card.
• The second thing you need to do is re-apply for your lost Debit and Credit Cards. You will be provided with a form by your bank for getting a Debit Card. You may also be asked to submit the copy of your FIR for issuance of new Debit Card. Your bank may also ask to provide your Address proof, for re-issuance of Credit Card. 
• You also need to apply for important documents like PAN Card, Aadhar Card, Voter ID Card and Driving License etc.

Steps to register your online complaint in Uttar Pradesh

Step 1

• First, you have to go to the website of UP Police department. The website to file your complaint can be accessed here.
• You will have to register as a ‘new user’ if you visit the website for the first time. If you have already registered, you can click on ‘existing user’ and login to your account. The menu would be like this:

• When you click on ‘new user’, a new page will open in which you will have to enter your user name, mobile number and email to get yourself registered. The page would be like this:

• An OTP will be sent to your number which you will be asked to enter on the website to verify yourself.
• Your account will be activated as soon as you verify yourself; now you are ready to file a complaint.

Step 2

• Click on ‘Register Lost Report to file an FIR, or you can also see your previously submitted report by clicking on ‘View Registered Report’.
• You will have to enter your personal details like Complainant’s name, son of/ wife of/ daughter of name, Complete Correspondence Address, Mobile No. and E-Mail etc. Then, click on ‘next’ button.

Note: Do not enter any false information, otherwise strict action will be taken against you by Police. So you need to enter the information correctly.

The menu would be like this:

Step 3

• By clicking on ‘next’ button, the following menu will appear:

• Now, you will be asked to enter the details of the event like Place of Occurrence where you will have to write the name of the place where the event occurred. 
• After that, write the name of the district and police station which falls under the area where the event took place. 
• Then you will have to give an estimate of time during which the event took place. 
• Lastly, you need to enter the complete details of the incident in the ‘brief facts’ section. You should enter information like when and how the event happened and all the relevant information that you remember. 
• Click on ‘next button’.

Step 4

• After clicking on ‘next’ button, you will see the following menu:

• Under ‘Article Lost’ Section, select the name of the lost article from the drop-down menu. If the lost article is not mentioned in the list then you can select ‘others’ and describe about the article in brief. 
• If you want to add more than one article, the same can be added after clicking on ‘Add More Articles’ option, in a similar way.
• Click on ‘Submit’ button after entering the details. You will receive an OTP on your registered mobile number and E-mail address which you need to enter the OTP and click on ‘Confirm’ button in the following menu:

• After clicking on ‘Confirm’ button you will get a ‘Lost Report Confirmation’ with your Report number as shown below:

What to do next?

• A digitally signed copy of the FIR will be sent to your registered E-mail address in the PDF format. You can get your Lost Article Report printed and use it for the desired purpose.
• From time to time, you can check the status of your FIR report by entering the FIR number which you get after successful registration of the report.

List of documents needed 

You may lose several documents along with your wallet, so you should know what information you need to provide to register your lost articles/ documents.

However, one thing you should never forget is that you should always save the necessary information relating to a document like its No., place of issue, or any ID etc beforehand so that you can easily file a complaint when something is lost. Such information will also help you in getting your document back, if possible, for e.g. if you have lost your aadhar card but you know your aadhar card number, you can get your aadhar card reprinted. The following list will help you with the information to be provided, and don’t forget to save the information in advance.

Conclusion

If you have lost something and do not want to go to the police station to file your complaint, quickly follow the above mentioned steps to easily register your complaint. It will save your time and is free of any harassment. Also you can reach out to me for any help at ayushvvvvv@gmail.com or connect with me on Linkedin.

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This article is written by Arijit Mishra, from KIIT School of Law, Odisha. This article talks about the analysis of comparative advertisement and its disparagement. It also talks about how an advertisement is called disparaged.

Introduction

Advertisements of products are one of the best methods to reach the audience and provide information about a product. However, for the monetary benefit, the market players use lawful techniques which may damage the competitors image by disparagement. This form of disparagement (a misleading or untrue statement about a competitor’s goods) is comparative advertising.

In India, the Advertising Standards Council of India (ASCI) is a self-regulated voluntary organization which deals with the dispute relating to advertisements. The AISC aims at achieving fair advertising practices by controlling the content of the advertisement. Comparative Advertisement is a relevant field of IPR which is gaining importance due to the competition between various traders existing in the market economy.

When does Comparative Advertisement turn into Disparagement?

One technique that companies use during advertising their products and services is drawing comparison against their competitor’s product or services. This advertising technique is known as comparative advertising.

The common example of comparative advertising where many of us are familiar with the cellular telephone companies, where a wireless service coverage map of the United States is shown and side by side compare the leading competitor’s wireless service coverage map of the US.

The advertisements have a major impact because they show the visual comparison between the advertising company’s coverage map and the leading competitors. The purpose of these types of advertisements is to illustrate the customers about the low status of the competitors product or services and make them think that their product is better.

Comparative advertising is effective, but sometimes it can create false advertising where legal issues are created on the adviser who uses this technique. Misuse of Comparative Advertising can result in disparagement. 

A new dimension was provided for the extent of comparisons allowed under a comparative advertisement which is reflected in this case- 

Havells India Limited Vs. Amritanshu Khaitan & Others

In this case, the plaintiff was asking to restrain defendant for misleading and disparaging advertisements, where the defendant compared their product i.e “Eveready LED Bulb” with the product of plaintiff’s “Havells LED Bulb”

The Court held that comparative advertising is permitted when these following conditions are fulfilled-

• Goods and services meeting the same needs or for the same purpose.
• One or more material which is relevant(which can include price).
• Applicability of the product is the same.

The court stated that care must be taken in the statements while comparing with the competitors product which should not be defamatory, libelous, confusing or misleading. The Court again stated that a certain amount of disparagement is not directly expressed in the comparative advertisement. In looking at the above statements the court held that it is open to the adviser to highlight the special feature of a product which sets it apart from its competitor and make a comparison which is true. 

The Court also stated that mere trade puffery is uncomfortable to the registered proprietor than it did not bring the advertisement within the trademark infringement.

Comparative Advertisement as the Constitution of India

Article 19(1)(a) of the Constitution of India talks about Right to Freedom of Speech and Expression in which advertisements can be also argued. It is important to analyse Article 19(1)(a) of the Indian Constitution with relation to the comparative advertisement. The freedom under this article is available for public speaking, radio, television and press but, the State has put certain limits to it under Article 19(2) of the Constitution of India.

Hamdard Dawakhana (Wakf) Lal vs. UOI 

In this case, the validity of delegation (a body of representative) was challenged. The Drugs and Magic Remedies Act, 1954 was passed to prevent self-medication and unethical advertisements. Section 3 of this Act specify certain conditions in which an advertisement can be banned.

The Supreme Court held that the advertisements of the prohibited drugs are not speech and expression under Article 19(1)(a) of the Indian Constitution. The Court said that advertisements for non-prohibited drugs come under free speech. But, the advertisements of such drugs which are prohibited by certain statutes or codes in India then it will not be protected. This is the reason that Article 19(2) provides reasonable restrictions on the freedom of speech and expression which is guaranteed under Article 19(1) of the Indian Constitution.

Comparative Advertising and Trademark Infringement

The main objective of a trademark is to distinguish goods and services, which will help the consumer to identify the goods.

If in case, the advertiser uses the trademark of the competitor to mark a comparison between the goods than it amounts to disparagement. 

The act of the advertiser not only relates to the issues of Comparative Advertisement and product disparagement but also it is related to trademark infringement.

Legal Provisions in India relating to Comparative Advertisement

• The Monopolies and Restrictive Trade Practices Act, 1969 provides the indication on which comparative advertising works. Under this Act, any representation which gives false information or disparages the goods and services of other products, it will be considered as comparative advertising.
• The Trademarks Act, 1999 states that comparative advertising is permissible but with certain limitations i.e unfair trade practices and also states that a registered trademark is infringed by a person if he uses such registered trademark as his trade name or part of his trade name etc,.
• Section 29(8) of Trademarks Act, a registered trademark is infringed by any advertisement of that trademark, if such advertisement makes any unfair advantage, or is against the reputation of the trademark and if don’t have honest practice.
• Section 30(1) of Trademarks Act 1999, states that if someone violated Section 29 then he can be escaped by showing that it was an ‘honest practice’. When there are comparative advertisements then it might reduce the value of the trademark of the competitors. 

Problems or Shortcomings of Comparative Advertisement and Disparagement in India 

There should be some new laws to strengthen its application in India from the disputes arising out of comparative advertising. Judicial Decisions have an important role in determining the disputes arising from comparative advertisement, but they are very adequate precedence. Certain changes are required to boost the laws relating to comparative advertisement. There are certain abuses used in disparagement like false claims, false representation, unfair trade practices etc.

There must be certain laws to prevent these abuses. The injunction is the only remedy given by the Court in the methods related to disparagement.  

Relationship between Comparative Advertising and Disparagement

Comparative Advertisement can be supported on the basis that advertising is a commercial speech which can be protected under Article 19(1)(a) of the Indian Constitution. However, freedom of speech and expression do not allow defamation.

So, it would be wrong to say that, advertiser has the liberty to disparage the product of his competitors, under the freedom of speech and expression.

Product disparagement is not only limited to the comparative advertisement but, the act of the third party can also constitute product disparagement.

Case Studies

Reckitt and Colman of India Limited vs. Kiwi T.T.K Limited

In this case, Colman is the plaintiff and Kiwi is the defendant, the advertisement was between two liquid polish companies. The defendant while advertising state ‘KIWI’ on one side and ‘OTHERS’ on the other side with their respective liquid wax showed that the wax which was used to write ‘OTHERS’ fell from the surface,  but the wax which was used to write ‘KIWI’ was stuck properly.

The bottle named brand X which was used to write ‘OTHERS’ was on a shape as that of a registered designed bottle of Cherry Blossom. This advertisement was used both in electronic media and by different posters which were hung in the public market.

So, the plea of an injunction was filed by the plaintiff to prevent the defendant’s company from giving such advertisement.

Court held that the defendant was disparaging the goods and told to restrain from advertising in a disparaging manner. The High Court added to this judgement and held that the advertiser can make a statement that his goods are one of the superior quality but should not disparage or defame the competitors product.

Dabur India Limited Vs. Colgate Palmolive India Limited

In this case, a film actor was rubbing the plaintiff’s dental powder on the surface of the purchaser’s spectacles which left marks on spectacles depicting that it was sandpaper. This advertisement shows how the defendant’s product was sixteen times less effective than the plaintiff’s product and was also less damaging to the teeth. 

Relating to the precedents in the Pre-Trade Marks Act era, the Court held that this is a case of disparagement which cannot be allowed to do such an act under any circumstances and hence the plaintiff is entitled to an injunction and accordingly the defendant is restrained from telecasting such advertisement

Colgate Palmolive India Limited v. Hindustan Unilever Limited

In this case, the advertisement of the new Pepsodent disclosed that their product is better than the other leading toothpaste available in the market. In an add sample of saliva was taken from two boys, where one person brushed with the Pepsodent toothpaste and another brushed with a leading toothpaste.

This experiment shows that the maximum amount of germs in the saliva are present after brushing leading toothpaste. When the boys were asked which toothpaste they brush in the morning, from those two boys, one boy answered Pepsodent toothpaste. But during the time of the other boy’s response, it was muted. But looking at his lip movement, it was seen that the boy was referring to Colgate. As Colgate is used by a maximum number of people, it will be considered as the leading toothpaste brand.

The Court gave a temporary order to restrain the respondent from referring to any Colgate toothpaste in any manner, either directly or indirectly by means of any hint in any television ads, etc by comparison of its New Pepsodent with any of the Colgate products or Colgate Dental Cream in particular.

UK Jurisdiction on Comparative Advertisement

In the UK, comparative advertising is very liberal. The UK government thinks Comparative Advertising as a legitimate, useful, effective marketing tool and also helps in increasing the competition among the companies and educate consumers about such market practices.

Section 11(2) of the UK Trade Marks Act, 1994 permits only for the fair comparison of goods to be done between the advertiser and the competitor. The comparison must be an honest one. If these conditions are met then it will be admissible in this provision, if it isn’t met then won’t be admissible under any provision

Barclays Bank v. RBS Advanta 

In this case, RBS Advanta distributed a brochure which contained a comparative table of the fees and interest rates of different credit card companies which include Barclaycard Visa, which is a registered mark of the Barclays Bank. So, Barclays Bank considered this act of the defendant that it has infringed his mark.

The Court held that the objective of the defendants act was honest to inform the consumers. The defendant also stated that comparative charts gave them a better deal with the consumers. Hence comparative advertisement was allowed by the Court.

British Airways plc v. Ryanair Limited

In this case, Ryanair prepared comparative advertising by means of the banner where at the top of the banner, a comparison of the pricing was made which shows that British Airways airfare is five times costlier than Ryanair air fair but in reality, it was three times costlier than the Ryanair airfare. So, British Airways alleged that Ryanair infringed the trademark of British Airways.

Even though the Ryanair has made the wrong statement of comparison, the Court felt that it did not infringe the plaintiff’s trademark. But, the Advertising Standards Authority(ASA) stated that the statement by Ryanair makes false offences against British Airways.

Conclusion

From the above article, we have learned that when an advertiser takes unfair advantage or gives any statement which is misleading or untrue than it is a disparagement. An act done by a third party can also cause disparagement. Some laws should be made to stop disparagement. An injunction is the only remedy given by the Court for the offences related to disparagement. 

References

• https://www.lexology.com/library/detail.aspx?g=c200e9b5-d6a9-4584-9e9d-01ede06d2f56
• https://www.lakshmisri.com/insights/articles/comparative-advertising-acceptable-competitive-behaviour-and-law-of-disparagement#
• http://www.legalservicesindia.com/law/article/1136/7/ANALYSIS-ON-COMPARATIVE-ADVERTISEMENT-RESULTING-IN-TRADEMARK-INFRINGEMENT
• https://www.rplegalindia.com/comparative-advertising-and-product-disparaging/
• http://www.lawstreetindia.com/experts/column?sid=275

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This article is written by Aryan Kashyap, from Lloyd Law College, Greater Noida. This is an exhaustive article on International Space Laws, covering the legislation and jurisdiction of such laws. At the same time examining the crimes in space and its constituents.

Introduction

We can describe space laws as the statutory body of law having jurisdiction over all space-related activities. All the States fall under the purview of Space Laws. In this regard, they are very similar to International Laws. It is comprised of these:

• International Agreements.
• Treaties.
• International Conventions.
• United Nations General Assembly Resolutions.
• Other Rules and Regulations of International bodies.

Who legislates Space Laws?

The term “Space Laws” primarily refers to all the rules, regulations, principles and standards of procedures. The principle International Organisation which works on outer space-related affairs is the United Nations Office for Outer Space Affairs (UNOOSA). The main functions of the UNOOSA are:

• Ensuring the peaceful use of space.
• Regulating the exploration of space.
• Ensuring the usage of space science and technologies for sustainable economic development.
• The utilisation of space for social development.

United Nations Office for Outer Space Affairs (UNOOSA)

Initially, the UNOOSA was formed as a small expert unit under the United Nations Secretariat as an ad hoc committee, promoting the peaceful uses of outer space. It was established in 1958, in the General Assembly resolution 1348 (XII).

Soon after its formation, the UNOOSA unit was moved to the Department of Political and Security Council Affairs and later it was metamorphosed into the Outer Space Affairs division of the Department in 1968.

UNISPACE Conferences

Sputnik 1 marked the advent of the space age back in 1957. Since then the United Nations has been stressing on the importance of peaceful international coordination in outer space. The outer space is believed to be the wild west, but many don’t know it has the potential to support immense socio-economic development for the future. 

No single country had the technology advanced enough to go out there and reap those benefits. Thus, as the famous saying goes, “Unity is strength”, the need for global cooperation on this was recognised.

Overseeing this immensely beneficial scope of development, the UN organised a series of global conferences for the exploration and peaceful uses of outer space and its resources. These series of conferences were known as UNISPACE conferences. There have been three UNISPACE conferences, all of them were held in Vienna.

The key agendas discussed in each of the conferences:

UNISPACE I

The data and information as per the information provided by the Official UNISPACE I Report:

Timeline: held from 14th August to 27th August 1968.

Attendees: 78 member states, 9 specialized UN agencies, 4 other International organisations.

Key takeaways:  This was the first of the series of the conferences: 

1. Raising awareness of the vast potential of space. 
2. Discover possible space benefits for the entirety of humankind. 
3. Review the advancement of space science and technology. 
4. Promote international cooperation. 
5. Work for development, keeping in mind the benefit of the third world countries. 
6. Recommended the formation of an Expert Space Applications Unit. (This later turned out to be UNOOSA)

UNISPACE II

The data and information as per the information provided by the Official UNISPACE II Report: 

Timeline: held from 9th August to 21st August 1982.

Attendees: 94 member states, 45 Intergovernmental and Non-governmental organisations. 

Key takeaways: this was the second of the series of conferences. This question raised many important contemporary questions: 

1. Asked about the procedure of maintaining the usage of outer space for peaceful purposes.
2. Questions about preventing an arms race in outer space.
3. What shall be the essential requirements of maintaining a peaceful exploration of outer space?
4. Enable means for the developing countries to benefit from the peaceful and healthy uses of technology.
5. UNISPACE II strengthened the UNOOSA programme.
6. Marked the establishment of UN-affiliated regional space science centres for the development of science and technology.  

UNISPACE III

The data and information as per the information provided by the Official UNISPACE III Report: 

Timeline: held from 19th July to 30th July 1999. 

Attendees: 97 member states, 9 UN specialised agencies, 15 International Intergovernmental Organisations. 

Key takeaways: this was the third of the series of conferences. This conference laid the foundation of peaceful uses of outer space in the 21st century: 

1. The need to protect the environment on a global level. 
2. Efficient management of natural resources. 
3. Protecting the space environment.
4. Increase the outflow of space science and benefits to the developing nations.
5. This conference ended with the Vienna Declaration on Space and Human Development infamous as The Vienna Declaration.
6. The Vienna Declaration recommended 33 strategies addressing contemporary challenges in space activities.

Jurisdiction of Space Laws

The Outer Space Treaty of 1967

The Outer Space Treaty is also known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies. At the time it was signed up by three countries:

• The Russain Federation.
• The United Kingdom.
• The United States of America.

This treaty further brought the reassurance that outer space was to be used only for peaceful purposes and it shall be for the betterment of mankind. It further laid out the direction to proceed:

• It brought into action the points as promised in the treaty. (International cooperation in matters relating to outer space, peaceful co-existence).
• Requested the countries signing up for the treaty to ratify the treaty as soon as possible.
• The treaty expressed its hope for its successful adherence for a long time.

Requested the committee to adhere by certain measures for peaceful uses of outer space:

• To come to an agreement to set the liability for the damages caused in the due process of launching objects into outer space.
• To come to an agreement on the aid of astronauts and space vehicles (returns and assistance).
• To form a lucid definition of outer space and the processes of its utilisation.
• To decide the various implications of communication in space.
• Provide a report of progress in work at the 22nd General Assembly Session.

By the virtue of this treaty, the states came to an agreement on these points:

Article I

• The exploration of outer space, which includes the moon and all other celestial bodies, shall only be carried out for the benefit of humanity, in the interest of all countries, without any discrimination on any grounds.
• The definition of outer space, which includes the moon and other celestial bodies, shall be free for exploration and is also open for use for all the states. This shall adhere to the norms of equality and other International Laws.
• The states shall have the liberty of conducting scientific investigations in outer space (which includes the moon and other celestial bodies). All the states must promote International cooperation in the matters concerning such investigations.

Article II

No action taken by any State can permit them to make claims of sovereignty over outer space, including the moon and other celestial bodies.

Article III

The states undertaking outer space exploration activities must act in accordance with the international laws as well as the UN charter. They shall also maintain international peace and cooperation in doing so.

Article IV

• The States entering the treaty must not place objects carrying nuclear weapons or any kinds of WMDs (Weapons of Mass Destruction) in the Earth’s orbit, stations and celestial bodies.
• The state parties entering the treaty are eligible to use the moon and other celestial bodies but for peaceful purpose only.
• The states are forbidden from setting up military bases, frontiers, fortifications, or even test weapons of any kind and the conduct of military drills or manoeuvres on celestial bodies and the moon.
• The military personnel shall be allowed to conduct scientific research, but for peaceful purposes only.
• The use of any equipment and necessary facilities is also permitted on the condition that they are for peaceful purposes.

Article V

• The parties who have entered into this treaty shall consider astronauts as representatives of mankind into outer space.
• The states must provide any possible assistance in the advent of any accidents, distress, or emergency situations upon landing in the territory of another state or on the high seas.
• When the envoys make such a landing (in a foreign territory), they shall be without any harm or distress returned to the state of which their vehicle is registered to. 
• When conducting space activities (both outer space and celestial bodies), the astronauts of one member nation shall provide all the possible assistance to a fellow astronaut of another state.
• It is the fundamental duty of a member state to immediately pass on the information to other states or to the UN Secretary-General. Information related to any phenomena occurring in outer space, including on the moon and other celestial bodies., especially when these constitute a potential danger to the life and health of astronauts. 

Article VI

• Any member State of the treaty, which launches or acquires an object into outer space, including the moon and other celestial bodies as well as the member state from whose land the launch was facilitated shall be held internationally liable for any damage to another member state of the treaty.
• The member states in case of any damages shall be held liable if their acts caused damages to any natural or juridical persons, even by its component parts, in air, in the outer space, on the moon and other celestial bodies.
• The activities of any non-governmental entity in outer space shall require a permit and constant supervision on the state’s end. This is for the concerned state from whose territory’s individual the operations are being carried out.
• The member states must ensure the compliance of the international laws by their parties.

Article VII

• Each state party of the treaty procures the right of launching objects into outer space, including the moon and other celestial objects.
• They shall be internationally held liable if their object harms any other state, property or person.

Article VIII

• A member state of the treaty has the jurisdiction over any object any personnel it has launched in outer space or on a celestial body.
• There is no change in the ownership of any object launched into outer space, even though it might have landed or constructed on a celestial body before returning to Earth. 
• Any registered objects found off limits of the member state shall be furnished back to the respective owner-state upon a request post identifying the identity.

Article IX

• In the due process of exploration of outer space, the moon and other celestial bodies, the member states of the treaty shall act the principle of mutual cooperation and act keeping in mind the interests of fellow states.
• The states, in the due process of exploration, must not contaminate or cause harm to Earth’s environment or even alien land.
• If a state discovers that its activities might potentially cause harm to other nationals or affects extra-terrestrial lands then they must undertake due diligence and priorly take necessary international consultations before proceeding.
• Any other concerned member states, if it oversees any such potential harm to the earth’s or the extra-terrestrial lands, then it may request an international consultation regarding the same

Article X

• In order to promote international peace and cooperation in the exploration of outer space, the member states, if possible must grant the requests of member states for an opportunity to afford a flight of the space objects.
• Such an opportunity can be afforded by means of an agreement between the member states.

Article XI

• In order to promote international peace and cooperation in the exploration of outer space, the member states must inform the Secretary-General of the UN plus the international scientific community the most feasible and practical locations for the conduct of activities.
• It is the duty of the UN Secretary-General to immediately pass on the information to other states for the benefit of all.

Article XII

• Other member states in the due process of exploration of outer space including the moon and other celestial objects shall be allowed to use all the types of equipment, installations, stations, vehicles and other requires instruments upon a reasonably sound and scheduled activity.
• The member states upon using this privilege must ensure that they are not disrupting any routine activity in doing so.

Article XIII

• All the provisions apply to the member states as well as upon any joint state space exploration to be undertaken.
• In case of any pragmatic question or any issues being raised, they shall be resolved amongst the member states with a respective international organisation or organisations.

Article XIV

• This treaty is open to all the states. Any state which did not wish to sign up for the treaty before, may in accordance with paragraph 3 of this article is open to signing up for it anytime.
• The instruments of ratification lie with the governments of the United Kingdom and North Ireland, The Union of Soviet Socialist Republics and the United States of America. These nation’s governments are the depositary governments of ratification of treaties i.e they approve the application of other states who want to enter into the treaty.
• This treaty shall be brought into force upon the ratification of five governments including the depository governments.
• The states whose instruments of ratification are put on hold shall be allowed to enter the treaty only when they are provided with the clearance by the depository state government.
• It is the duty of the depository government to bring to the notice of all the member states and the states aspiring to be a member of the treaty, the date of deposit of each instrument.
• This treaty falls under the jurisdiction of Article 102 of the Charter of the United Nations.

Article XV

• Any member state of the treaty is open to proposing amendments to this treaty.
• The amendments shall come into force only when it is accepted by the majority of the member state of the treaty.

Article XVI

• The member states are allowed to withdraw themselves from the treaty only after completion of a year.
• Such withdrawals come into effect only after a year from the date of publishing of the notification.

Article XVII

• Equally authentic archives of the treaty shall be presented in these languages:
  • English
  • Russian
  • French
  • Spanish
  • Chinese 
• Duly certified copies of this treaty shall be provided to the depository governments.

Treaties and Conventions governing Space Laws

As Andrew G. Hailey rightly said, legislating space laws might be one of the toughest feats for the law. The cosmos is vast. It is difficult to adjudicate it. Principally there are five international treaties which deal with certain rudimentary issues related to space. These issues are:

• Any state not appropriating space laws.
• The freedom of exploration and related issues.
• Damages and liability caused by space objects.
• Safety and rescue of astronauts and spacecraft.
• Avoiding harmful interventions.
• Avoiding environmental interventions.
• Conducting scientific investigation procedures.
• Method of the settlement of disputes.

Primarily, there are five treaties dealing under the UN’s umbrella governing outer space. These are also known as “five United Nations treaties on outer space”. They are:

Outer Space Treaty

As described earlier, it is one of the main laws which govern all the member states, who have entered into the treaty. This also promotes the peaceful use and exploration of space-related activities. It was signed back in 1967 and continues to date.

Rescue Agreement

The rescue agreement was given the green light by the General Assembly in 1967. This agreement supporters every means possible to help and rescue the astronauts in situations of distress.

The member states, upon request from the party in distress, must promptly assist the states to return registered space objects of the launching party. These two articles describe this treaty best. They are:

Article 5

• Any contracting State, upon receiving the information regarding the discovery of a space object or its components, whether in high seas or under its jurisdiction must inform the launching state and the Secretary-General of the United Nations regarding the same.
• All the member states of the treaty, upon finding an outer space object or any component under its jurisdiction, on the request from the launching party shall try to recover such an object if it is pragmatically possible.
• All the member states of the treaty, upon finding an outer space object or any component under its jurisdiction, on the request from the launching party shall try to return the object after its proper identification.
• As per paragraphs 1 and 2 of this article, if in the due course of the procuring the object, if the party discovers that it is hazardous in nature, the launching state must immediately take appropriate measures to eliminate or control the harm from the object.
• The costs incurred by the helping party in the course of procuring an object or its component from the space must be borne by the launching party.

Article 8

• All the states are open to suggest amendments in this agreement.
• The amendments must be passed on the basis of the majority opinion.

The Liability Convention

The liability convention was reached to an agreement in the UN General Assembly in 1971. This treaty basically elaborates on the outer space treaty’s Article 7. This convention provides the criteria on which a state becomes liable to pay damages to another state. This convention also has laid down the procedures of settlements of disputes and of the claim for the damages caused.

Article VII

• Each state party of the treaty procures the right of launching objects into outer space, including the moon and other celestial objects.
• They shall be internationally held liable if their object harms any other state, property or person.

The Registration Convention

The Registration Convention was negotiated and agreed upon by the General Assembly in 1974. After the ratification of The Outer Space Treaty, The Rescue Agreement and the Liability Convention, the states expressed their concerns that in order for these treaties and agreements to work effectively, there was the need of some formal recognition/identity. The need for this was that:

• In the absence of a proper registration system, it could not be decided whom to hold liable for any damage caused.
• The owner of the objects returned from the space could not be determined.

The Moon Agreement

The Moon Agreement has been the controversial one, amongst other conventions. This agreement was highly debated between 1972 and 1979. However, much later in 1984, it came into force with the ratification of the fifth country, Austria. This happened after the passing of the resolution 34/68.

The main points of this agreement are:

• The primary task was to confirm the other provisions of the outer space treaty apply to the moon and other celestial bodies.
• The moon and other celestial bodies must be only used for peaceful purposes.
• In the due process of exploration of the moon and other celestial bodies, no harm must be caused to the environment.
• The United Nations must be informed of the location and aims and objectives of any station that is to be established on the moon and on other celestial bodies.
• This agreement recognises the moon to be a common heritage of mankind. 
• No international body shall be allowed to make any claims of sovereignty on the moon and other celestial bodies.
• No international body or state is allowed to use these bodies for the purpose of exploitation.

Thus, these five treaties and conventions primarily govern and constitute the majority of space laws.

The International Space Station (ISS)

The International Space Station is an international programme. It is a huge spacecraft, weighing a whopping 450 tons. It is a collaborated programme between the following nations:

• European member nations.
• Russia.
• Canada.
• Japan.
• The United States.

The astronauts in The ISS mainly conduct scientific experiments which cannot be conducted on Earth.

The legal framework of the International Space Station

The ISS falls under the jurisdiction of various legal frameworks and obligations. It is governed on these International Agreements and Memorandum of Understandings (MoUs):

The International Space Station Intergovernmental Agreement

• The International Space Station Intergovernmental Agreement commonly referred to as ‘IGA’.
• This is an international Treaty which was signed on 29th January 1998.
• 15 state’s governments participated in the Space Station project.
• This agreement laid the foundation for a long term partnership for constructing a prototype of a civil space station in space, which would be used for peaceful purposes only.

The Memoranda of Understandings (MoUs)

Four Memoranda of Understandings were signed between these nation’s space organisations: 

• The National Aeronautics and Space Administration (NASA).
• Europe Space Agency (ESA).
• Canadian Space Agency (CSA).
• Russain Federal Space Agency (Roscosmos).
• Japan Aerospace Exploration Agency (JAXA).

The main purpose of these space agencies is to designate the roles and responsibilities of the agencies in the building and designing of the space station. These MoUs also demarcate the management structure and provide the necessary guidelines for the maximum utilisation of the space station.

Other Bilateral Arrangements

Several bodies have been created amongst the various space agencies to distribute the work and to help implement the other guidelines as decided by the IGA.

The Intergovernmental Agreement 

This agreement was signed by 14 countries. They are:

1. The United States of America
2. Canada
3. Japan
4. The Russian Federation
5. Belgium
6. Denmark
7. France
8. Germany
9. Italy
10. The Netherlands
11. Norway
12. Spain
13. Sweden
14. Switzerland

This agreement laid down the framework promoting cooperative long-term partnership between the signed countries and the other countries to join in future.

Who is the owner of the International Space Station?

No individual country is the owner of the ISS. It was built as a result of the collaborative efforts of five countries:

• The United States
• Canada
• Russia
• Japan
• European member nations

The collaborated ownership of the International Space Station is described under an International treaty, which is titled International Space Station Intergovernmental Agreement (The IGA). Article 6 of the IGA talks about ownership.

1. The IGA extends the national jurisdiction of the member states into outer space, which means that the equipment and elements (E.g. Laboratories can be classified as elements) they provide are subjects of the respective partner states.
2. Thes laws imply that space station’ owners – the United States, Canada, The Russain Federation, Japan and Europe, the various countries within the European Space Agency are to be treated as a single unit.
3. The elements of a state are its property. By the virtue of this, if a country has any property, equipment or a laboratory, it shall fall under its jurisdiction.
4. The application of national laws implies that in criminal cases, liability issues, cases of intellectual property and other rights the national laws of a nation must apply.
5. In case a dispute or disputes arise on any matter, they are to be resolved on the basis of the already laid down procedures. 
6. The fundamental norms imply that the member states retain jurisdiction and gain complete control over:

• Its state’s registered elements and equipment.
• Over the personnel of its state.
• These norms apply to anything in or on the space station who is a national of the member state.  

MoU on Supply of elements

All the member states contribute and bring their own elements. The memorandum of Understanding laid down the elements provided by the partners:

The Canadian Government with its representational agency the Canadian Space Agency shall provide: 

• The Space Station’s infrastructure elements.
• A mobile servicing centre (MSC).
• An extra flight element.
• The Special Purpose Dexterous Manipulator.
• Space Station’s Unique ground Elements.

The European partner, through their space agency, the European Space Agency, shall provide these:

• The European Pressurized laboratory.
• The basic functional outfits.
• Flight elements to supply and boost the Space Station.
• Other Flight elements.
• Unique Space Station ground equipment.

The Japanese Government through its space agency must provide:

• The Japanese Experiment Module.
• The basic functional outfits. 
• The exposed facility.
• Experiment Logistics modules.
• Elements supplying Space Station.
• Basic flight equipment.
•  Space Station’s Unique ground equipment.

The Russain Government, through its Space Agency, The Russain Space Agency, shall provide:

• Servicing and other modules.
• Research modules.
• Basic functional outfits.
• Payload accommodation equipment.
• Space Station’s Unique ground equipment.

The United State’s Government, through its space agency NASA must provide:

• A Habitation Module.
• Laboratory modules.
• Basic functioning outfits.
• Attached payload accommodation.
• Supply elements.
• Space Station’s Unique ground equipment. 

Laws and liabilities in the International Space Station:

When such a big project is being undertaken many problems could arise. Such an event was foreseen and measures were planned for such dire actions. Fundamental rules of liability regarding space activities as it is laid down in the Liability convention 1972. The liabilities set under this convention and the Intergovernmental Agreement are:

1. The Intergovernmental Agreement has set up a provision of ‘cross-waiver of liability’. This allows all the five-member states in addition to their related entities (the contractor, the subcontractor, users, customers) to claim damages from another state member or its related entities.
2. Due to following these obligations, each state has to formally set up a contract with its own contractors and subcontractors.
3. There exist some exceptions to the cross-waiver of liability. They are:

•  Intentional misconduct. 
• Claims made by a person for bodily injuries.
• Claims made by a person for death.
• Intellectual Property Claims.

All the people using the Space Station agree to an inter-party waiver of liability. It is a component of their contract with the European Space Agency. It states that:

• No state shall sue or bring arbitrary claims to any other party for INternational Space Station related activities.
• The laws applicable to raised disputes and other procedures have to be mutually decided by the member states of the Space Station and the member so the European Space Agency. 
• The contract between the member states must pre-decide the country where the Arbitral-tribunal shall meet.

Crimes in Space

Space is considered to be ‘res communis’, meaning common ground. There are some areas which are regarded as common ground by all the states. No particular state is the sole owner of these areas. These areas include the high seas, outer space, Antarctica etc. 

The Intergovernmental Agreement of the Space Station’s member nations states that if any astronaut of a member state commits any crime in space, he/she will be subject to the laws of their states and the due course of law will proceed accordingly. 

Is Space Mining Legal?

The scientists believe that the moon and other celestial bodies can have many sustainable resources which might pave a way for providing resources for future generations. The scientists even claim that if we are able to find water on the moon, we might be able to cut down the costs of colonizing the moon by a whopping 90 per cent. It might also have other valuable minerals like platinum and whatnot, this can give humanity the further push required.  

There are some companies looking forward to conducting mining on the moon and other celestial bodies.

As we know that the outer space is free for exploration by all the states, only if it is for peaceful uses. The regulations regarding private entities are vague.

The Asteroids Act of 2015

• This Act states that the resources that will be extracted from the asteroids and other celestial bodies shall be the sole property of the individual or corporation who extracted them.
• This act requires the space mining companies to avoid causing any harm to the outer space.
• This act gives permission to all the companies to sue other countries in the scenario, where they are causing harmful interference to space.

Can you push a dead body into space?

• The Outer Space Treaty of 1967 in its Article IX called for the appointment of planetary officers. The main duty of a planetary officer is to make sure that we do not contaminate other planets or celestial bodies in the process of conducting space exploration. 
• In unfortunate circumstances where an astronaut died of some accident or any health issues, the fellow astronauts are not allowed to put the body of a dead astronaut into space, because it invokes the possibility of that body carrying microbes to some other extra-terrestrial planet.
• Every time any state undertakes any space exploration, it is contaminating the outer space a little, because the spacecraft carrying the astronauts will be carrying some microbes from the earth which can settle in some extra-terrestrial land. This might trick us into believing we have discovered some new alien species.

The First Space Crime ever Committed

• In August, NASA astronaut Anne McClain was accused by her ex-wife for charges of identity theft. It was alleged that the crime was committed from the International Space Station using a NASA computer.
• This incident made Anne McClain, the first individual to be ever investigated for an alleged space crime.
• Contemporarily, there is no solid framework established under the international laws for handling such disputes.
• The only jurisdiction covering any dispute as of now arises under the IGA, that is any astronaut in alleged for any crime, shall be tried on the basis of their national laws.

Conclusion

In this article, I have talked about International Space laws and its origin. I have answered certain questions about who makes these laws, and how they are implemented. We explored the legislation and laws applicable to the International Space Station. Finally, we have talked about the crimes in space and what are the activities that constitute to be a crime in space and what are measures undertaken to control it.

References

• https://www.unoosa.org/pdf/reports/unispace/viennadeclE.pdf
• http://history.nasa.gov/printFriendly/1967treaty.html 

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