Cow, Constitutionalism, and interpretations of Article 48- “Meat of the Matter”

Aryan(Jindal Global Law School) & Gauri Singh(Durham University,U.K.) analyzes the interpretation of Article 48 by Indian Courts with special emphasis on the issue of cow slaughter and importance of the principle of ‘Constitutionalism’

In the landmark case of I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors[1], The Supreme Court of India highlighted the importance of the principle of ‘Constitutionalism.’ The Court noted that Constitutionalism limits absolutism[2] and denotes the control on the exertion of authority by the Government, to ensure that the fundamental principles of democracy are not undermined. The Court further acknowledged that the principle of Constitutionalism extends to the safeguard of fundamental rights, separation of power, and the sacredness/supremeness of the Constitution. The ruling of the Court replicates the principles of ‘Basic Structure’that has been historically laid down in the ‘Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala’, wherein the Court laid down that “basic features”of the Constitution cannot be amended.[3] The question of Constitutionalism is often discussed in relation to Article 48 of the Constitution and its application to prohibit the slaughter, sale, and consumption of cow in India. Article 48 of the Constitution of India has been prescribed under the ‘organization of agriculture and animal husbandry’and is a directive principle of state policy for the prohibition of cow slaughter.[4] Relying on the same, several states in India have laws pertaining to restrictions upon sale, consumption, and slaughter of cows.[5]

‘Article 48 of Constitution of India’ is a controversial inclusion in the Constitution of India, and both economic and religious reasons were cited to support its incorporation during the Constitutional Assembly debates.[6] However, as evident from the language of the Article, the drafters have conceived the inclusion of the Article on scientific and economic grounds. Several important cases have delved into the interpretation of Article 48 of India’s Constitution and its conflict with the fundamental rights prescribed under Part III of the Constitution. One of the first cases dealing with the Constitutional validity of laws prohibiting cow slaughter, and Article 48 was Mohd. Hanif Quareshi v State of Bihar[7].In this case, the Court considered the conflict between a total ban under Article 48 and Article 19(1)(g) and 25 of the Constitution of India. The Court dismissed the claims pertaining to Article 25, citing that cows’ slaughter was not an essential practice in Islam and thus didn’t violate the religious rights of any Muslim. With respect to the claims regarding the right to the profession of butchers under Article 19(1)(g)of the Constitution of India, the Court cited the economic utility of cows in the agricultural process as a justification of the cow slaughter laws. However, importantly, the Court interpreted Article 48of India’s Constitution as a practical provision and calved out an exception with respect to the slaughter of buffaloes and bulls in the event that they cease to be productive and are rendered incapable of providing milk or operating as draught cattle. 

To analyze the rationale adopted by this case, we must understand the conflict between Article 48 of India’s Constitution and the fundamental rights under the Constitution.[8] There is an inherent contradiction in the Court’s reasoning in adopting different thresholds for cows as against the bulls and buffaloes, and the same suffers from several Constitutional loopholes. Firstly, while the Court acknowledges that bulls and buffaloes fail to retain economic utility after a certain age, it doesn’t extend the same analysis to cows’ position. This is a problematic distinction as even cows, after a certain age, fail to remain productive and cease to provide milk. There are millions of unproductive cows, and the same is a burden on the farmers, who are restricted from slaughtering or selling them.[9] Therefore, this distinction is in violation of Article 14 of India’s Constitution as it is ‘manifestly arbitrary‘ as it doesn’t provide any rational justification of extending economic utility to only unproductive cows. Secondly, a blanket ban is in violation of the right to the profession (Article 19(1)(g) of Constitution of India of the butchers and also abridges their right to livelihood (Article 21of Constitution of India). This challenge was considered and dismissed by the Court, the same was done on the basis of ‘reasonable restriction in the interests of the general public.’ However, it must be noted that the Court didn’t extend the same justification to she-buffaloes, bulls, and bullocks and opined that they become useless after a certain age, becoming a burden on the economy. Drawing from the same rationale, butchers must be allowed to slaughter cows after they cease to remain useful. This practice is evident in some states wherein cows are slaughtered after obtaining ‘fit for slaughter certificates.’Thirdly, the blanket ban of slaughter, sale, and cow consumption is against the right to personal liberty and privacy of the citizens (Article 21of the Constitution of India). It must be noted that beef is a staple food for several communities and also a cheap source of protein for poor people. Therefore, in the absence of any ‘public interest’ justification as discussed above, an absolute restriction is against the personal liberty of an individual to decide the choice of his food. Moreover, as the right to privacy has been held to be a fundamental right, an individual’s food habits must not be subject to protection under the principle of ‘Constitutionalism‘ and shall not be arbitrarily restricted. In 2016, the Bombay High Court, giving due importance to Fundamental Rights, had rightly stated: “As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health.[10]

Therefore, Constitutionalism’s principles require practical application of Article 48 as the Supreme Court accorded to bulls and buffaloes but shied away from according to cows. The economic standpoint of Article 48 must be respected in order to ensure that an absolute bar is not imposed on unproductive cattle, and the fundamental rights under Part III are not violated.


Aryan is a third year student from Jindal Global Law School & Gauri Singh is a year law student from Durham University,U.K.


[1]I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors, AIR 2007 SC 861.

[2]Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr., AIR 2006 SC. 980.

[3]Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala, (1973) 4 SCC 225).

[4]Article 48, Constitution of India, 1950.

[5]Cow Slaughter Prevention Laws in India, July 7, 2018, https://cjp.org.in/cow-slaughter-prevention-laws-in-india/, last accessed on May 7, 2020.

[6]Shalvi Singh, Cow Slaughter, and the Constitution: Uneasy Compromises, https://rmlnlulawreview.com/2016/08/31/cow-slaughter-and-the-constitution-uneasy-compromises/, last accessed on May 7, 2020.

[7]Mohd. Hanif Quareshi v. State of Bihar, [1958] AIR 731 (SC).

[8]Sandhya Ram, Ban on Cow Slaughter: The Camouflage of Article 48, October 25, 2015, https://www.livelaw.in/ban-on-cow-slaughter-the-camouflage-of-article-48/, last accessed on May 7, 2020.

[9]Murad Ali Baig, Cow Slaughter Is Mainly Bull, October 9, 2015, https://www.outlookindia.com/website/story/cow-slaughter-is-mainly-bull/295550, last accessed on May 7, 2020.

[10]Sheikh Zahid Mukhtar v State of Maharashtra, 2016 SCC OnLine Bom 2600.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

Madras HC directs constitution of a committee to decide on implementation of OBC Reservations regarding seats in Tamil Nadu Medical colleges

Today, the Madras HC directed the formation of a committee to decide the manner in which reservation for Other Backward Classes (OBC) in State-surrendered medical seats for the All India Quota (AIQ) in non-Central Medical Colleges in Tamil Nadu can be implemented.The Bench of Chief Justice AP Sahi and Justice Senthil Ramamoorthy passed the verdict on a batch of pleas filed by a number of petitioners, including various political parties in Tamil Nadu as well as the Tamil Nadu Government. However, since the Centre is yet to enact any law on this particular issue, the Court refrained from issuing any positive, straight mandamus. It was noted that the Centre had only proposed to bring about a policy to allow OBC reservation for State surrendered seats with some riders. Therefore, the Court opined that the question of implementing OBC reservation would require the participation of the Central Government, the State Government, the Medical Council of India and the Dental Council of India.

(BY- SAMARTH GOGIA)

TISS student gets to the UN climate change advisory group, Archana Soreng joins the six membered group named by UN chief

Archana Soreng joins six other youthful atmosphere pioneers from around the globe who have been named by UN Secretary-General Antonio Guterres to his new Youth Advisory Group on Climate Change. A atmosphere extremist from India has been named by UN Secretary-General Antonio Guterres to his new warning gathering involving youthful pioneers who will give viewpoints and answers for tackle the intensifying atmosphere emergency, as the worldwide body prepares activity as a component of the COVID-19 recuperation endeavours.

“Our precursors have been ensuring the woodland and nature over the ages through their conventional information and practices. Presently it is on us to be the leaders in battling the atmosphere emergency,” said Soreng, who has considered administrative administration from the Tata Institute of Social Sciences (TISS) Mumbai and is the previous TISS Students Union President.The youthful activists, matured somewhere in the range of 18 and 28 years, will prompt the UN boss normally on quickening worldwide activity and desire to handle the compounding atmosphere emergency.

The declaration denotes another exertion by the United Nations to bring increasingly youthful pioneers into dynamic and arranging forms, as the UN attempts to activate atmosphere activity as a major aspect of the COVID-19 recuperation endeavours.

The individuals from the Secretary-General’s Youth Advisory Group on Climate Change speak to the different voices of youngsters from all locales just as little island states. They will offer points of view and arrangements on environmental change, from science to network activation, from business enterprise to governmental issues, and from industry to protection, the UN said.

The highest point brought more than 1,000 youthful atmosphere champions together from in excess of 140 nations to share their answers on the worldwide stage and convey an unmistakable message to world pioneers: we should act presently to stand up to the atmosphere emergency. The activity is additionally lined up with the Secretary-General’s vision for the UN Youth Strategy, propelled in September 2018.

(By- Adarsh Khuntia)

CHINA’S NATIONAL SECURITY LAW AND WHAT IT MAY MEAN FOR THE INTERNATIONAL RULE OF LAW

Ekta Garg, a 3rd year student of Army Institute of Law, Mohali discusses China’s National Security Law and it’s implications on International Rule of Law

Pro-democracy activists in Hong Kong and Chinese Authorities have locked horns several times since the past few years over the alleged violations of the rights guaranteed to the Hong Kong Special Administrative Region (HKSAR).[1] Hong Kong, widely considered as Asia’s economic and financial powerhouse, owes its status to the ‘one country, two systems’ principle. However, the pro-democracy movement in Hong Kong received a death blow after the Chinese legislature passed the highly controversial National Security Law in the region. This article aims to analyse the legal standing of the legislation under the Hong Kong’s Basic Law and the Sino-British Joint Declaration in brevity, and why the act of passing such legislation is a blow at China’s commitment to International Rule of Law.

Hong Kong’s political history at the root of unrest?

Hong Kong became a British colony in 1842, and with the conclusion of the Treaty of 1898, the New Territories and surrounding islands region of Hong Kong was leased to the British for a period of 99 years ending July 1997. The years following the end of World War II saw the city turning into a reliable business hub attracting companies who feared communist mainland China. In order to preserve the economic prestige of the city, the Sino-British Joint Declaration was signed, establishing the ‘one country, two systems’ principle, thus ensuring Hong Kong’s capitalist system and other rights to the people of Hong Kong, for a period of 50 years following the end of the treaty in 1997. Since then, the city follows the Basic Law, the mini-constitution governing Hong Kong.[2] The Basic Law, since the handover, required the city’s legislature to enact a national security law on its own, but its failure does so, coupled with the escalated pro-democracy protests of last year, appears to be the reason behind such undue haste behind the move by the National People’s Congress.

The National Security Law

Wang Chen, Vice Chairman of the National People’s Congress Standing Committee, while speaking at the opening of the Annual Session of the NPC- China’s Parliament, stated that the proposed legislation seeks to criminalise the following acts[3]:

  • Secession
  • Subversion
  • Foreign Interference in Hong Kong activities.
  • Terrorism

He also stated that to achieve the proposed objectives, the new law would provide for the establishment of national security organisations in Hong Kong in order to “improve the enforcement mechanisms for safeguarding national security.”[4] The legislation would surpass the Hong Kong Legislature, and not only imperil the preferential trade status enjoyed by the region but also threaten the civil liberties of the Hong Kong citizens. In the wake of the escalated pro-democracy protests last year, and failed attempt at pushing the extradition bill, such an unprecedented move insinuates at Beijing’s aim to throttle the movement once and for all.

Position under the Basic Law

Article 23 of the Basic Law, the territory’s mini-constitution, specifically states that laws prohibiting treason, secession, foreign political organizations conducting political activities in the region, etc. shall be enacted by the Hong Kong Special Administrative Region “on its own.” After Hong Kong Legislature’s crushed attempt to bring the law in 2003.[5] Beijing decided to take the matter in its own hands. But, is it justified under the law? The answer is No. Article 23 not only imposes an obligation on the city’s legislature to enact such a law but is also indicative of the exclusive authority to do so, which, therefore, questions China’s authority to legislate on the subject.  

Hong Kong has a long-cherished Rule of Law in place that would suffer a huge setback with the implementation of the law. Article 18 of the Basic Law explicitly prohibits Beijing from applying national laws in the region, exempting the laws listed in the Annex III of the Basic Law, which shall be confined to those “relating to defense and foreign affairs” and other matters “outside the limits of the autonomy of the region”.[6] It remains far from clear how widely these words could be interpreted to include national security laws in their ambit. The proposed law has become the first National law with criminal provisions to be applied in the region, which raises concerns over China’s commitment towards the protection of the rights and autonomy guaranteed to the people of Hong Kong. 

A major concern that the legislation raises is the setting up of security enforcement institutions in the city. Article 22 prohibits setting up of Central People’s Government’s departments in the city.

Sino-British Joint Declaration of 1984 and the International Rule of Law

It is pertinent to note that the commitment of the Chinese Government towards the Sino- British Joint Declaration has been subjected to speculations in numerous instances, including when the Chinese Foreign Ministry stated that the Treaty “no longer had any practical significance.[7] The ‘high degree of autonomy’ promised to the region under the Declaration is deeply undermined with the said law. The following issues remain answered-

  • Whether the Chinese intelligence agencies in Hong Kong will have the authority to carry out enforcement activities.
  • Whether the Standing Committee of the National People’s Congress will have extra powers to interpret the Hong Kong court rulings on National Security. 
  • What is the scope and ambit of the ‘select cases’ that Beijing would have jurisdiction over?

Although the details are still few, the tailor-made security law would be left for interpretation at the behest of Chinese Security Organisations such as the Ministry of State Security, and the People’s Armed Police would endanger the rights to freedom of speech, expression, and free press.

On October 24, 2014, China reaffirmed its status as the ‘Builder of International Rule of Law’.[8] Strengthening the rule of law at the international level involves respect for the norms of international law. The above mentioned law is, therefore, a grave breach of the treaty raising concerns on the protection of the International rule of Law by Beijing. China acceded to the Vienna Convention on the Law of Treaties of 1969; the rule of pacta sunt servanda under Article 26 of the convention requires it to stay bound to the treaty and perform it in good faith.[9] Not only has China recognized Hong Kong’s right to democratization in the Basic Law, Customary International Law also provides for a ‘right to democratization.’ The move will undoubtedly have a severe impact on the ongoing Pro-Democracy Movement in the region. 

Conclusion

The people’s Republic of China must honor its commitment to the Sino-British Declaration and not interfere with the Rule of Law in Hong Kong. The fate of the pro-democracy movement in Hong Kong is now unknown, and bringing a tailor-made national security law contradicting the Basic Law not only jeopardizes the economic status and pro-democracy Movement in Hong Kong but also imperils Beijing’s status at the international level. Beijing must, therefore, review its move, which is gravely inimical to the International Rule of Law. 


Ekta Garg is a third year student from Army Institute of Law, Mohali.


[1]Kate Mayberry, ‘There’s never an endgame’: Hong Kong after a year of protest, Aljazeera, (June 16, 2020),  https://www.aljazeera.com/indepth/features/game-hong-kong-year-protest-200615104936779.html.

[2]Lily Kuo, A history of resistance: Key dates in Hong Kong’s Battle with China, The Guardian, (May 27, 12:53 BST), https://www.theguardian.com/world/2020/may/27/a-history-of-resistance-key-dates-in-hong-kongs-battle-with-china.

[3]Tony Cheung and Kimmy Chung, Two Sessions 2020: new law will ‘prevent, frustrate and punish’ acts in Hong Kong that threatens national security, top official says, South China Morning Post, (May 22, 2020, 02:52 pm), https://www.scmp.com/news/hong-kong/politics/article/3085617/two-sessions-2020-national-security-law-hong-kong-will.

[4]Id.

[5]Elson Tong, Reviving Article 23 (Part I): The rise and fall of Hong Kong’s 2003 National Security Bill, Hong Kong Free Press, (February 17, 2018, 22:30), https://hongkongfp.com/2018/02/17/reviving-article-23-part-i-rise-fall-hong-kongs-2003-national-security-bill/.

[6]Basic Law, Art. 18.

[7]“China says Sino British Joint Declaration on Hong Kong no longer has meaning, Reuters, (June 30, 2017, 4:51 pm), https://www.reuters.com/article/us-hongkong-anniversary-china/china-says-sino-british-joint-declaration-on-hong-kong-no-longer-has-meaning-idUSKBN19L1J1

[8]Full text of Chinese FM’s signed article on Int’l Rule of Law(2), Xinhua, (October 24, 2014, 18:21), http://en.people.cn/n/2014/1024/c90883-8799769-2.html.

[9]Vienna Convention on the Law of Treaties, Vienna, May 23, 1969, 1155 UNTS 331.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

SECULARISM: THE BASIC STRUCTURE

Govind Kumar, a 2nd year law student of Banaras Hindu University discusses the concept of Secularism as the Basic Structure of Indian Constitution.

THE CONCEPT OF SECULARISM

Eastern concept of secularism emphasizes equal respect and equal treatment of every religion; whereas, western concept of secularism iterates law and religion as independent of each other. They talk about the separation of law and religion in toto. It is said that the western concept of secularism evolved due to conflict between church and state. Because of the intervention of the state in the matters of the church, there rose a battle.  However, ultimately the state won the conflict. Thus, at this juncture, we can conclude by saying that secularism is the ultimate victory of state over the church.

Industrialisation changed the role of the state. Notwithstanding, development in science and technology empowered state to assert itself. This was followed by rationality in the minds of the people, ultimately raising questions. In the USA, there is the presence of a functional state.

HISTORICAL ANALYSIS OF RIGHT TO RELIGION 

In India, religion is not denoted by mode of worship, but Dharma indicates it, ‘Dharma’ means duty.[1] From ancient times kings used to patronage religion. Religion and state were never separate, so, the western concept of secularism is not applicable in India.

In India, religion was used as a tool to convey the message to the masses by sufi poets, Kabir, Nanak etc.[2]

In the political sphere, Gandhi used religion to propagate freedom movement. He used to say Ram Rajya instead of ‘rule of law’.[3] One should not be confused that Gandhi was using the religion of the majority. He also used the Khilafat movement in freedom struggle, although there was no connection between the two. Gandhi used religious symbol to spread the reach and scope of the freedom movement.[4]

In 1857, the state attempted to make the people secular by introducing a new type of arms and ammunition. The people revolted, and in 1858, transfer of power took place after this incident and the British government made a policy not to intervene in the religious matter.

In 1918, a special session of Congress held in Delhi. Pandit Madan Mohan Malviya presided it. He raised the issue of basic rights. Fundamental right to religious freedom is one of the main components of those basic rights.

The commonwealth of India bill 1925 was introduced in house of commons. Through this bill, they promised to provide religious freedom to the native population. But this Bill was not passed. 

PARAMETERS OR FACETS OF FUNCTIONAL SECULARISM

Following are generally regarded as the facets of functional secularism-

  • Right to religious freedom
  • The state shall not discriminate based on religion.
  • No religious qualification is prescribed for holding any public office.

In 1947, Dr.Radhakrishnan viewed that secularism means equal respect and equal treatment to all religion. The word ‘secularism’ was added in Preamble by 42nd constitutional amendment in 1976. Supreme court in the case of S.R Bommai v. Union of India[5] declared secularism is the basic structure of the Indian constitution. Justice Sawant talked about religious tolerance and equal treatment. He spoke about protection of life, liberty and also security of places of worship. These elements are an essential part of secularism. Justice B.P Jeevan Reddy said that state is neutral. The state will treat every section of society equally. The state will not discriminate based on religion; the State should not give preferential treatment to any religion. 

Justice J.S.Verma in the case of Dr M.Ismail faruqui vs Union of India[6] linked Preamble with Article 25 to 28 also with rights of minority, DPSP and fundamental duties. According to him, right to religious freedom and right to equality are closely related. It is the responsibility of the state to treat every religion equally. If state is discriminating among different faith, then it will be violating the right to equality guaranteed by Constitution. Our preamble enshrines the word ‘SECULAR’ and right to equality is one of the facets of secularism. According to him, one can explain the concept of secularism by linking right to equality with right to religious freedom, right of minority,  obligation of state and obligation of citizens.

Apex court in the case of Santosh Kumar vs Secretary, ministry of HRD[7] held that inculcating the Sanskrit language in the academic curriculum is not against the concept of secularism.

Supreme court in the case of Ms Aruna Roy vs Union of India[8] ruled that concept of secularism is not endangered if the basic tenets of all religion all over the world are studied and learnt. Value-based education will help the nation to fight against fanaticism, ill-will, violence, dishonesty and corruption. These values can be imbibed if the basic tenets of all religion are studied from. 

Supreme court in the case of State of Karnataka vs Praveen Bhai Thogadia[9] upheld an order of Additional District Magistrate restraining Dr Thogadia from entering Karnataka for 15 days. The court said that whenever the authorities concerned in charge of law and order observe that person speech or action are likely to trigger communal hatred, undermining and affecting communal harmony, prohibitory orders need necessarily to be passed, to avert such untoward happening effectively. 

Apex court in the case of Abhiram Singh vs C.D. Commachen[10] declared seeking a vote in the name of religion is corrupt practise under Section-123 of People Representative Act, 1951. Supreme court has linked religion and electoral reform with the concept of secularism. This decision of the Supreme court helps to facilitate democracy through election by way of secular politics. 

Supreme Court in the case of St.Xavier’s vs State of Gujarat[11] said secularism in not supportive of or anti the concept of the almighty but it is neutral towards all religions at large. Even atheist, agnostic has every right to follow their belief, faith or practise. This explanation of the Supreme court is more close to the western concept than Indian concept.

K.T. Shah made two attempts to incorporate the term ‘SECULAR’ in the Constitution in Article 1. But constituent assembly rejected both of his efforts. Justice Gajendragadkar explained if meeting would have accepted his suggestion, then it must have been the western concept of secularism but the constituent assembly was looking for eastern concept. 

CONCLUSION                                                                  

Secularism is a value system. World consider Europeans as mostly secular and Indians as essentially religious. But after 1950 framers of Indian constitution has excluded religion from the public sphere and India has been declared as secular state. There must be freedom of religion and freedom from religion.The state must be a neutral institution towards any religion.There must not be any discrimination based on religion.


Govind Kumar is a 2nd year law student from Banaras Hindu University, Varanasi.


[1]Satya Sundar Shety, Dharma as religion, Reinterpreting Gandhi’s Notion of “Dharma”: An Entanglement of Duty, Religion, and Ethics (May 16, 2020, 08:30 PM), https://www.mkgandhi.org/articles/reinterpreting-gandhis-notion-of-dharma.html.

[2]Anand, The Sufi movement, Sufi and Bhakti Movement in India (May 15, 2020, 07:30 PM), https://www.historydiscussion.net/history-of-india/sufi-and-bhakti-movement-in-india/3052.

[3]Supra note 1.

[4]Supra note 1.

[5]AIR 1994 SC 1918. 

[6]AIR 1995 SC 672.

[7](1994) 6 SCC 579. 

[8]AIR 2002 SC 122.

[9]AIR 2004 SC 2081.

[10]AIR 2017 SC 182.

[11]AIR 1974 SC 1389.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

GOOGLE SUED BY AUSTRALIAN COMPETITION AND CONSUMER COMMISSION FOR ALLEGEDLY MISLEADING CONSUMERS

The Australian Competition and Consumer Commission (ACCC) has filed a legal action against Google over allegations the company did not gain explicit consent from consumers when it expanded its use of personal data and privacy policy.
Aside from tracking people’s online activity on its search engine and platforms, Google also monitors users’ internet activity on “non-Google” sites to boost its targeted advertising.
Google’s updated privacy policy also stated that: “We will not reduce your rights under this Privacy Policy without your explicit consent”.
The ACCC alleges that as Google did not obtain explicit consent from consumers about this change to the privacy policy, Google’s statement that it would not reduce consumers’ rights without their explicit consent was also misleading.

(BY- ANUPAMA SOUMYA)

THE NET NEUTRALITY WAR AND ABUSE OF DOMINANT POWER BY AT&T.

Avni Sharma & Anurag Mohan Bhatnagar, both 2nd year law students of National Law University, Odisha discusses the concept of net neutrality in India.

Introduction:

Lockdown in the 21st Century has led to a hefty increase in the usage of the internet. Social distancing has urged the global population to go online. All the market giants, including Netflix, Amazon Prime, Hulu, and HBO Max, have gained massive popularity and have become a major source of entertainment. At this juncture, net neutrality plays a major role as this opportunity might be used by market powers to benefit their sales.

Network neutrality or net neutrality is a concept that promotes equality of all data on the internet regardless of the platform, usage, content, or device. The Over The Top (OTT) Platforms require strict regulation during these times. There is a wide scope for abuse of dominant position related to the usage of data on the cloud platforms. The concept was floated in 2002, as a response to the Federal Communication Commission’s (FCC) efforts in providing infrastructure to competing firms who are sharing data usage. These guidelines also restricted the service providers like Comcast and AT&T to speeding or slowing the traffic to specific websites or portals without a justifiable reason. However, it can be noticed that prime competitors have introduced measures to abuse their dominant power, which was acquired as a result of a significant merger.[1] This article examines the effect of abuse of dominant power by way of breaching network neutrality

FCC’s Guidelines to Prevent Abuse of Dominant Power, 2015:

In 2015, the Federal Communication Commission (FCC)  passed a ruling in favor of net neutrality by sorting out broadband as a regular carrier as under Title II of the Communications Act, 1934[2] and Section 706 of the Telecommunications Act, 1996.[3] 

From its inception, the FCC guidelines have been controversial. FCC has variegated broadband connections as a telecommunication service of Title II.[4] This would, in turn, mean that the broadband providers and the telephone networks would follow the same set of regulations. Comcast and AT&T appealed that Title II enables the FCC to foist high rates, which will restrict them from enhancing their network. The order from the FCC derives three key rules which the market powers were concerned about: 

  1. Prohibits Blocking – Broadband services would be banned from blocking legal applications, services, or non-harmful devices. 
  2. Prohibits Suppression – Initially, FCC permitted the system of throttling, which proscribed broadband providers from hampering certain applications or services.[5] However, the guidelines did not permit the use of throttling.
  3. Outlawed Paid Prioritization – Broadband providers could not charge a fee for treating some content as preferred content. The order prohibited internet fast lanes.

Competitive Unilateral Effect of Acquisition of Time Warner by AT&T:

In 2016, AT&T announced its intention to acquire Time Warner. However, the authorities were skeptical about this transaction as it could compromise the competition in the market. The authorities were also concerned about the potential power to raise the price of the content taken by its competitors in the market.[6] However, the Appeals Court’s final decision affirmed that this is a ‘vertical merger,’ which is unlikely to have an effect on antitrust grounds. However, this merger, as stated earlier, has started to have competitive repercussions as it has introduced data caps for customers who use its’ rival companies’ services.

It is observed that vertical mergers must also be scrutinized for violating antitrust structures of the market. Even senators like Ed Markey, Ron Wyden, and Richard Blumenthal have criticized the action taken by AT&T.[7] This also comes after the company’s statement, which affirms with net neutrality concepts.[8] It also marks a crucial time to enforce the net neutrality principles because of the hour’s urgent requirement.  

AT&T has zero-rated the data on HBO Max, which means, on the one hand, it might sound beneficial, but it harms the competition in the market.[9] Where AT&T will not be charged for using the services of HBO max, Netflix and Amazon Prime will be charged. Since it has a great competitive advantage, it will be considered as unfair. Hence, the authorities must take consideration of vertical mergers, as it was because of the huge acquisition in 2018, that AT&T was able to make such arrangements and take unfair advantage of its dominant power.

Net Neutrality in India and its Effect on Competition Law:

Competition Commission of India (CCI) determines the appreciable adverse effect by factors mentioned under Section 19(3) of the Competition Act, 2002 (‘The Act’).[10] According to these factors, breach of net neutrality is also considered abuse of a dominant position. The presence of private players in India’s market calls for independent regulation for net neutrality in India.

India began its journey for net neutrality in the year 2015.[11] In 2015, Airtel was dictated to withdraw a plan which demanded additional amount for internet accessed calls and discontinued a platform called ‘Airtel Zero,’ which authorized the customers to access certain applications free of cost”[12].. This is known as “zero-rating”.  The Telecom Regulatory Authority of India (TRAI) published a paper on net neutrality in March 2015 which was not welcomed by the Indian market and even set up websites such as “savetheinternet(dot)in”.[13]

In 2016, TRAI released the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016 to prevent the abuse by service providers in India. Such an abuse of power in India would result in heavy losses to many mediocre players in the market. Therefore, it is of utmost importance that our authorities learn from the American jurisdiction and enforce a specific set of regulations for net neutrality in India to prevent any abuse. 

Concluding Remarks:

India has been adaptive to changing models, and now is the time to make our laws accustomed to the network-neutral era. We suggest that the authorities formulate immediate regulations for net neutrality and the protection of the competitive market in India while keeping the vertical mergers into consideration. The competition law regime in India has also evolved with the changing times. The regime now needs to focus on the idea of vertical mergers affecting the competitive market. The authors suggest that since the internet has become an integral part of our lives, the laws must be formulated according to the needs of a net neutral world.


Avni Sharma & Anurag Mohan Bhatnagar are 2nd year law students from National Law University, Odisha


[1]Tyler Hersko, AT&T Ignores Net Neutrality: HBO Max Won’t Hit Data Caps but Competing Streamers Will (June 4, 2020, 9:05 PM)https://www.indiewire.com/2020/06/att-net-neutrality-hbo-max-no-data-caps-1202235538/.

[2]Communications Act, Title II (1934).

[3]Telecommunications Act, § 706 (1996).

[4]Marguerite Reardon, you need to know about the FCC’s 2015 net neutrality regulation, CNET (June 8, 2020, 1:44 PM), https://www.cnet.com/news/13-things-you-need-to-know-about-the-fccs-net-neutrality-regulation/.

[5]Rebecca R. Ruiz, F.C.C. Sets Net Neutrality Rules, The New York Times (June 8, 2020, 2:18 PM), https://www.nytimes.com/2015/03/13/technology/fcc-releases-net-neutrality-rules.html.

[6]Is the AT&T Time Warner Decision a Blow against Antitrust?, Knowledge at Wharton, (June 4 2020, 7:20 PM) https://knowledge.wharton.upenn.edu/article/impact-att-time-warner-decision/.

[7]Letter to Mr. Randall Stephenson, https://www.markey.senate.gov/imo/media/doc/Markey%20ATT%20HBO%20NN%2006.04.20.pdf.

[8]AT&T Blog Team AT&T Statement on Support for Uniform, National Open Internet Protections,(October 1, 2018, 10:11 AM) https://www.attpublicpolicy.com/consumer-broadband/att-statement-on-support-for-uniform-national-open-internet-protections/

[9]Jay Peters, Senators criticize AT&T for not counting HBO Max toward data caps,(June 4, 2020, 6:27 PM) https://www.theverge.com/2020/6/4/21280914/sen-ed-markey-at-t-zero-rating-hbo-max-net-neutrality.

[10]The Competition Act, 2002 No. 12, Acts of Parliament, 2003 (India).

[11]Adi Robertson, India just approved net neutrality rules that ban ‘any form’ of data discrimination, The Verge (June 13, 2020, 7:30 PM) https://www.theverge.com/2018/7/11/17562108/india-department-of-telecommunications-trai-net-neutrality-proposal-approval.

[12]India adopts ‘world’s strongest’ net neutrality norms, BBC News (June 8, 2020, 7:45 PM) https://www.bbc.com/news/world-asia-india-44796436.

[13]Alan Cohen, Net Neutrality DoT Committee Report, Department of Telecommunications (June 13 2020, 7:34 PM) https://dot.gov.in/sites/default/files/Net_Neutrality_Committee_report%20%281%29_0.pdf.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

NEED FOR MENTAL ILLNESSES TO BE COVERED BY INSURANCE POLICIES

Pranali Vyas, a 2nd year law student of Pravin Gandhi College of Law discusses the need for insurance policies to cover the important issue of mental health.

INTRODUCTION:

Mental health issues are more prevalent in conflict-affected areas. Given the large numbers of people in need and the humanitarian imperative to reduce suffering, there is an urgent need to implement scalable mental health interventions to address this burden.[1] In light of the ongoing pandemic, making means meet one’s ends is but a distant dream. These adverse effects strike not only the economically weaker sections but also the middle class who strive to live a sustainable life. COVID-19 has had a serious impact on people’s socio-economic and mental health. Human beings are social animals, and separating them from society would have dire psychological consequences. Hence, making provisions for psychological illnesses under insurance policies during this pandemic and in perpetuity is imperative as it eases the financial burden on patients and their families in difficult times. 

LEGAL PROVISIONS:

In India, the Insurance Regulatory and Development Authority (IRDA) regulates insurance-related schemes and provides rules and regulations to govern the same.[2] The Mental Health Act, 2017[3] (hereinafter ‘the said act’) aims at destigmatizing this tabooed topic along with creating awareness about it. In India, mental health lies buried under the superficial layer of well-being; it is considered a figment of imagination rather than a result of any suppression.  

Recently, the Supreme Court had issued a notice to the IRDA and the Centre regarding a PIL seeking inclusion of mental health to be considered under insurance policies.[4] The Petitioner, Gaurav Bansal, has urged the Supreme Court to take action on this matter by establishing that Sec. 21(4) of the said act talks about the Right to equality and non-discrimination. He also placed reliance on an IRDA order in August 2018, stating the above. However, none of the insurance companies have complied with it and extended the scope of the illnesses under their respective policies.

Sec. 21(4) of the act talks about the Right to equality and non-discrimination. It states that every insurer should make medical insurance provisions to treat mental illness the same way they do for physical illness.[5]

Analyzing the provisions outlined in this section, emphasis on mental illness is included in insurance policies is widely expressed. With the evolving times and technology, humans are becoming more susceptible to mental strains. To provide them with a sense of security, these laws are laid down. Non-compliance with these laws shows badly on the company’s part, which works in the insurance sector. The essence of insuring something lies in the fact that the possessions in question are valuable; insurance acts as a contingency plan. Hence, the mind being the most valued asset of an individual should, without a doubt, be insured against unforeseeable or foreseeable circumstances. Clause 4 of this section explicitly provides for equality in treatment for physical and mental illness.

Insurance is an important tool with the help of which one can be excused from paying complete medical costs. It guarantees access to the proper treatment required to get well. While opting for any type of medical insurance, the following factors should be kept in mind:

  • Affordability- Comparing monthly premiums, deductibles, co-pays, and/or co-insurance for surety of the best deal available. On should consider the payment per month as well as how much money is needed to pay co-pays and co-insurance.
  • Availability of mental health professionals- Ensure there is a broad range of mental health professionals included in the health plan’s network of providers. Some mental health professionals do not take insurance. Therefore, an individual should check to see what the insurance plan will pay for out of network providers.
  • Coverage of prescription medications- If a person has found the right medication to treat their illness, they should find a plan covering that medication to maintain wellness.
  • Limits on the number of mental health-related office visits- Some health plans place limits on the number of office visits for things like therapy. Hence, choosing a plan that allows the number of visits is of utmost importance.[6] 

CONSTITUTIONAL PROVISIONS:

The Constitution incorporates provisions guaranteeing everyone’s right to the highest attainable standard of physical and mental health.[7] Art. 21 guarantees the Right to life and liberty to all citizens of the country.[8] The Supreme Court has held that the Right to live with human dignity, enshrined in Article 21, derives from the directive principles of state policy and therefore includes the protection of health.[9] Hence, it is safe to equate mental health with physical health for the convenience and better interpretation of laws. 

Adv. Gaurav Bansal through his petition[10] brings out that due to the red tape attitude of the IRDA, provisions of the said act are not being complied with. This matter holds great significance as health experts have said that the lockdown amid the COVID pandemic has led to a rise in cases of depression and anxiety. He further argued that the Parliament had treated mental health at par with physical health after due consideration emanating from their wisdom.[11] But still, non-compliance is observed on the part of these insurance companies. As a result, they are hampering several patients’ lives due to the incompetence/laid back attitude of the IRDA in strictly implementing these rules and regulations. For this, the Petitioner suggests an effective remedy of penalizing them for their non-compliant behavior.

FOREIGN PERSPECTIVE:

In these times, the pandemic has not targeted particular regions but has plagued the entire world. In countries like Canada, The Canadian Mental Health Association collects games, craft supplies, and more to engage their patients and members during COVID-19 to help them cope.[12] Apart from this, Governments around the world are urged to get on board and employ the various tools of the state to provide targeted support to groups of individuals identified as needing this support, informed by sound scientific evidence, to prevent a pervasive mental health crisis in the future. [13]

CONCLUSION:

The facts being in black and white, it is high time that insurance companies consider bringing mental illness under the scope of insurance. The Judiciary, as well as many public-spirited persons, have sought to achieve this goal through PILs and reinforcement of court orders, but being a democratic society, success is only possible if all the citizens and companies that work for the benefit of these citizens function in harmony keeping in mind the betterment of the people and upliftment of society as a whole.


Pranali Vyas is a Second year law student from Pravin Gandhi College of Law, Mumbai.


[1]Fiona Charlson,  Mark van Ommeren, Abraham Flaxman,  Joseph Cornett,  Prof Harvey Whiteford, Shekhar Saxena, New WHO prevalence estimates of mental disorders in conflict settings: a systematic review and meta-analysis, THE LANCET(June 11, 2019), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(19)30934-1/fulltext.

[2]Insurance Regulatory and Development Authority https://www.irdai.gov.in/.

[3]Mental Healthcare Act 2017.

[4]Samanwaya Rautray, SC wants mental illness to be covered by insurance companies as provided in law, ECONOMIC TIMES (Jun. 21, 2020, 2:30 PM), https://economictimes.indiatimes.com/wealth/personal-finance-news/why-not-give-insurance-cover-for-mental-illness-sc-to-centre-irdai/articleshow/76400702.cms

[5]Mental Healthcare Act, 2017 §21(4).

[6]Understanding Health Insurance, NATIONAL ALLIANCE ON MENTAL ILLNESS, https://www.nami.org/Your-Journey/Individuals-with-Mental-Illness/Understanding-Health Insurance#:~:text=Insurance%20is%20a%20crucial%20tool%20that%20can%20grant,from%20paying%20the%20full%20cost%20of%20medical%20services.

[7]K Mathiharan, The fundamental right to health care, Vol. 11 No. 4, INDIAN JOURNAL OF MEDICAL ETHICS,(2003),https://ijme.in/articles/the-fundamental-right-to-health care/?galley=html#:~:text=Article%2021%20of%20the%20Constitution%20guarantees%20protection%20of,policy%20and%20therefore%20includes%20protection%20of%20health%20%284%29.

[8]INDIAN CONST. Art. 21.

[9]Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802.

[10]Gaurav Kumar Bansal v. Union of India and Another, 2020.

[11]Ibid.

[12]Natalie Fournier, ‘This is an extreme’: Canadian Mental Health Association adjusts amid coronavirus pandemic, GLOBAL NEWS (Jun. 21, 2020, 4:40 PM), https://globalnews.ca/news/7034954/coronavirus-covid-19-mental-health-cmha-halifax-dartmouth/

[13]Rita Corser, COVID-19: Dealing With The Post-Pandemic Mental Health Crisis, VANGUARD (Jun. 21, 2020, 4:42), https://www.vanguardngr.com/2020/05/covid-19-dealing-with-the-post-pandemic-mental-health-crisis/.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

FADING HUMANITY: EXTENDING SCOPE OF ARTICLE 21 OF THE INDIAN CONSTITUTION TO ANIMAL RIGHTS

Pratikshya Das and Lahama Mazumdar elaborates upon the scope of Article 21 of the Constitution of India with regard to animal rights.

INTRODUCTION

Several shocking incidents of animal cruelty had surfaced in India in the last few months when the world was facing the COVID-19 pandemic. With this article, we are trying to bring across the different shades of sadistic activities of mankind around inflicting pain on the co-living creatures with whom we were normatively supposed to share our spaces. Three incidents have happened back to back within 14 days. A pregnant elephant, a jackal, and a leopard fell prey to the cruelties of village dwelling tribal people in the Indian states of Kerala, Tamil Nadu, and Assam. The question which hovers over all these incidents is whether the forest rights and rules fail in the jungle and whether the seamless co-existence of animals and members of the tribal community is an impossible thing to ask for. 

CONCERNS OF THE UNHEARD

On May 27, 2020, an alarming incident triggered nationwide outrage. A sick fifteen-year-old pregnant elephant fell prey to human cruelty when it consumed a pineapple filled with explosives which exploded in her mouth. The elephant died standing in the Valliyar River with her trunk and mouth in the water. Later, in a statement by the Forest Department, it was claimed that the forest fringe farmers had placed the fruits filled with explosives in the cultivation land to keep the wild boars away to protect their crops and livelihood and with a sudden turn of events the elephant fell prey to it.[1] 

The country had not recuperated from the tragic incident of death of the pregnant elephant when the news of a leopard being lynched to death came forward. A leopard was allegedly captured and brutally beaten to death by villagers in Fatasil Reserve Forest in Guwahati, Assam. According to the divisional forest officer, the residents had claimed that the leopard was killing goats and poultry and was also attacking village dogs. According to few reports, the forest officers claimed that the villagers killed the leopard, but they chopped off its body parts – skin, teeth, nails.[2] 

Another monstrous incident saw the light of the day when twelve men of Tribal Community decided to kill a jackal luring the animal with meat-filled with explosives. As per the Forest Department officials, the gang was arrested by an alert cop because of the suspicious-looking bag that the gang was carrying. After interrogation, the twelve men admitted to killing the jackal for its teeth and meat.[3]

UNENLIGHTENMENT OR BUREAUCRACY?

In a country as big as India, knowledge of tribals and villagers living in interior forest areas has stayed limited. We are already aware of the many problems that tribal people face because they are not aware of their rights, and the state bureaucracy responsible for raising this awareness fails to do so. In recent years there have been several decisions delivered by the Honourable Courts of India where the legal rights of animals have been recognized. In Animal Welfare Board of India v. A. Nagaraja, 2014.[4] The court held that animals are supposed to be brought under the protection of the rights provided in Article 21 of the Constitution of India, thereby extending the Right to Life to animal life and welfare. Here, the state of co-existence of Animals and Humans was reiterated to assert the norm of equality between the two species, bringing the fact that animals form a crucial part of the human environment, and their rights are also to be protected. However, this development is not new as reflected in the Kerala High Court Judgement in N.R Nair v. Union of India[5], 2000 where the court had considered the question of extending fundamental rights to animals and had decided that fundamental rights are non-exclusive to humans and therefore are supposed to be extended beyond them. In the widely discussed and hailed 2014 Nagaraja Judgement, the old practice of Jallikattu (Bull-fighting festival) and bullock cart races were banned in Tamil Nadu, Maharashtra Punjab. The Supreme Court cleared its stance whereby it held that animal rights fall within the ambit of right to life under Article 21 but to the extent where human rights are not harmed. It pondered on the notion of protecting the dignity and honor of animals, whereby they had the right not to be beaten and not to be kicked. The relevance of this case law is not only particular to the recognition of Animal rights under Article 21 but also because of the decision on the angle of the historical, cultural, and religious significance of the practice. There was a hue and cry about the court abolishing the practice where locals had expressed their unacceptability. That it was their culture and tradition, the court declared that the evolved practice was not a culture or a tradition. Drawing reference to the Prevention of Cruelty to Animals Act, 1960, the court banned such unnecessary infliction of pain on animals.[6]

In a criminal Revision petition: Karnail Singh v State of Haryana, Punjab and Haryana High Court recognized the privacy and rights of animals. The court held that the entire animal kingdom has distinct legal persona with corresponding rights, duties, and legalities of a living person. Justice Rajiv Sharma made several mandatory directions to ensure the animal kingdom’s safety and welfare, such as no animal is supposed to carry weights beyond the prescribed limits issued by the Regulations. Further, it was held that every species has the right to live and be protected by law. The court focused primarily on the part where animals of all species are conferred with legal entity status or legal person status to protect and promote the animals’ greater welfare.[7] 

In the aftermath of the judgments, the issue of preservation of culture and traditions of Tamil Nadu kept burning. There were protests and unacceptability among masses about the decision. However, customs and traditions need to change and have to evolve with the changing circumstances around the world. As has been rightly observed by Justices Dipak Misra and Rohinton F. Nariman: 

 “You say that jallikattu is an age-old tradition, so was child marriage until it was declared a crime.”

CONCLUSION

The tribals have customarily believed from time immemorial about the survival of the fittest in the jungle, which is believed as such because of the incident of the pregnant elephant’s death and even from the Assamese incident of leopard’s death. Farmers and villagers often use snares to keep wild animals away from their farms and crops, and they do it as they consider it a threat to their property. Laws and legal doctrines have geographical limitations, so there is no claim to general validity outside the geographical borders of the legal system concerned. Legal doctrines are limited to a normative system and acceptability among masses. So, the issue is about bestowing equal rights to animals and humans; it is also about engraving the change in the masses of that geographical area. The unfortunate practices need to end, and changed norms have to be engraved in their minds.[8]


Pratikshya Das is an Advocate at High Court of Orissa & Lahama Mazumdar is Teaching Assistant at National University of Study and Research in Law, Ranchi.


P S Gopikrishnan Unnithan, One arrested in Kerala elephant killing case, more people under the scanner, Indiatoday.in (June 15, 2020, 12:30 AM) https://www.indiatoday.in/india/story/one-arrested-in-kerala-elephant-killing-case-1685755-2020-06-05.

Trapped, Killed, body parts chopped: Fifth leopard death this year in Assam, Timesnownews.com, (June 15, 2020, 1:30 AM) https://www.timesnownews.com/mirror-now/in-focus/article/trapped-killed-body-parts-chopped-fifth-death-of-leopards-this-year-in-assam/603009.

Bobins Abraham, In yet Another Shocking case of Animal Cruelty, Jackal Dies After Biting Explosive- Laden Meat, indiatimes.com, (June 16. 2020, 8: 30 AM)  https://www.indiatimes.com/news/india/in-yet-another-shocking-case-of-animal-cruelty-jackal-dies-after-biting-explosive-laden-meat-515250.html.

Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547.

N.R. Nair v. Union of India, AIR 2000 Ker 340.

Jessamine Therese Mathew & Ira Chadha-Sridhar, Granting Animals Rights Under the Constitution: a Misplaced Approach ? (2014).(June 16, 9:30 AM) http://docs.manupatra.in/newsline/articles/Upload/F6A0FB5A-88EF-4DF0-9583-3CBE36BDB956.pdf.

Karnail Singh and Others v/s State of Haryana, CRR-533-2013.

Anjali Singh Deswal, Fact Check: Kerala pregnant elephant was not ‘fed’ Pineapple stuffed with firecrackers, International Business Times (June 16, 9:20 AM) https://www.ibtimes.co.in/fact-check-kerala-pregnant-elephant-was-not-fed-pineapple-stuffed-firecrackers-821484?fbclid=IwAR2OaXYOAlUNk9KJFalQYbKHapBZF51eANuBOUnU7nWpPcHODh2TD-FdPYk.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

NOVELTY AS A CRITERION FOR PATENTABILITY: A COMPARATIVE ANALYSIS

Disha Mohanty & Satvik Mishra discusses the concept of Novelty as a criteria for patentability through a comparative analysis.

INTRODUCTION TO NOVELTY

Novelty refers to any original or unfamiliar material and places the owner of such material at a higher pedestal than the competitors.[1] In layman’s words, any development will be viewed as a novel only if it doesn’t shape state of the art. 

The Indian Patent Act[2] doesn’t characterize “state of the art.” Over the years, through various case laws, it has been established that if an innovator’s work which has already been put forth in the public domain, is similar to another patentee’s work, then the latter’s novelty is revoked.[3] This essentially means that any innovation will not be considered novel if it has been made available to the public through verbal, written, or any other means before the date of documenting the patent application.[4] The amount of information available in the public domain isn’t limited to the information provided by the creator only.

But, in case the innovation is even the best in a particular field, a patent can’t be granted to it for the same. In this case, the materials previously filed in various patent reports and had a prior date of documentation but not made accessible to the public shall be considered the best in class.

SYSTEM OF PATENT IN INDIA

As far as India is concerned, a patent application is viewed as an invention if the development is revealed in a patent or whatever other records are distributed before the date of the application.[5] Notwithstanding, if the innovator demonstrates that the issue distributed was obtained falsely and was distributed without their assent, at that point, it may not be viewed as unique.[6]

In the case of Lallubhai Chakubhai Jariwala v. Chimanlal Chunilal and Co[7], the Court pronounced that even though the two most essential components of a patent are novelty and utility, the innovation’s uniqueness is the actual test of the patent.

While determining the novelty of any innovation, the grounds of public display, public working, and traditional knowledge form major judging parameters.[8] Likewise, any sort of innovation can be foreseen due to the existence of information that exists in any form, in India or anywhere else.[9]

SYSTEM OF PATENT IN THE U.S.

In the United States, to meet the litmus test of patentability, the innovative idea must fulfill a three-pronged trial of uniqueness, non-conspicuousness, and utility.[10] Additionally, the creation must not have been out in the open use or deal in the U.S. for over one year before documenting the patent application. The U.S. patent resolution expresses that development is regarded as self-evident if the distinction between the subject matter trying to be protected and the earlier workmanship is with the end goal that the subject would have been clear to an individual having common aptitude in the art to which the subject relates.[11] The “utility” prerequisite is most likely the simplest measures to meet as essentially any helpfulness is considered to meet the “utility” necessity.

A patent shouldn’t be obvious, and it should include a creative advance in the case of Gragham v. John Deree Co.[12], the U.S. Supreme Court set out specific factors to be considered to see if the innovation was evident or not.

I) Degree and substance of the earlier craftsmanship, 

ii) The distinction between the earlier workmanship and cases at issue and,

iii) The degree of normal ability in the relevant workmanship. 

Further, the courts may use additional grounds such as business achievements. These necessities have been felt over some time but couldn’t be taken care of, etc., to judge the innovation.

In the past thirty-five years, due to the issuance of several low-quality licenses, the number of documented licenses has gone up.[13] To keep a check on this, there is a provision for Post-grant Review (PGR) under the America Invents Act, which allows any person to demand the revaluation of issued licenses.[14]

COMPARATIVE ANALYSIS

The patent frameworks of India, the US, and the U.K. appear to be generously similar. They all reward innovators with specific rights for a fixed timeframe in return for their revelation in regards to the technique for creating the development.[15] Besides, their way of dealing with patentability, outcomes, and its essential job in empowering advancement are significantly comparable despite a couple of local contrasts.[16] Even then, this doesn’t delineate the genuine picture concerning worldwide patentability completely.  

After looking at the patent law in the U.S. and India, the latter is less expensive, generally less tedious, and progressively solid because of the nonappearance of the association of a jury in the dynamic procedure. Furthermore, similar to India, the U.K. patent framework is a first-to-record framework dissimilar to that of the U.S., a first-to-invent framework.

In the U.S., the business strategy patents are allowed only if the business process stands out in the field or is proved to be extremely significant.[17] However, in India, in most cases, it’s not possible to patent business techniques unless the innovation deals with some specialized issues and is specifically created for that purpose.[18] 

The arrangement of novelty under the Indian legal framework and that of the United States are not the same. While the ‘first-to-develop’ system followed by the U.S. decides novelty taking into consideration the date of such innovation, the ‘first-to-record’ system followed in India demarcates an invention to be a novel based on the date on which the initial application for patent is made.[19]

CONCLUSION

The problem that arises concerning the territorial restrictions of patents can be resolved by creating uniform worldwide standards for patents. However, because of the failure of such a method, a need for a relative investigation to bring about a common legal framework about patents arises. 

The dissimilarity in procedural and somewhat the considerable patent guidelines and laws in various nations likewise impact the innovator’s rights. Anyway, the other side, whenever broke down, uncovers that a couple of corporate monsters have exploited such and along these lines, protected in not many nations to abuse their item commercially.

Therefore, the primary concern remains is to come up with a uniform system of the patent framework to work on the defects, loopholes, and other shortcomings associated with various law zones.


Disha Mohanty is a student of National Law University and Judicial Academy, Assam & Satvik Mishra is a student of Rajiv Gandhi National University of Law, Punjab.


[1]S. S. Rana & Co. Advocates, Understanding Novelty for Invention to be Patentable, Mondaq (Mar. 26, 2019), https://www.mondaq.com/india/Intellectual-Property/792726/Understanding-Novelty-For-Invention-To-Be-Patentable.

[2]The Patents Act, 1970, No. 39, Acts of Parliament, 1970 (India).

[3]Supra note 1.

[4]Jaya Bhatnagar & Vidisha Garg, Patent Law in India, Mondaq (Dec. 13, 2007), https://www.mondaq.com/india/patent/54494/patent-law-in-india

[5]Supra note 2, § 2(1)(I).

[6]Frequently asked questions: Patents, World Intellectual Property Organisation (Jun. 16, 2020), https://www.wipo.int/patents/en/faq_patents.html.

[7]Lallubhai Chakubhai Jariwala v. Chimanlal Chunilal and Co., (1935) 37 BomLR 665 (India).

[8]Pankaj Musyuni, Novelty: An Indian Perspective, Mondaq (Dec. 18, 2017), https://www.mondaq.com/india/patent/655226/novelty-an-indian-perspective.

[9]Id.

[10]General Information concerning Patents, United States Patent and Trademark Office (Jun. 15, 2020), https://www.uspto.gov/patents-getting-started/general-information-concerning-patents.

[11]Id.

[12]Gragham v. John Deree Co., 383 U.S. 1 (USSC 1966).

[13]Stephen Merrill et al., A Patent System for the 21st Century 47 (National Academic Press ed., 2004). 

[14]America Invents Act, 35 U.S. C § 282 (2012).

[15]History of the Indian Patent System, Intellectual Property India (Jun. 15, 2019), http://www.ipindia.nic.in/history-of-indian-patent-system.htm.

[16]Supra note 4.

[17]Brette Sember, What a Business Method Patent is, Legal Zoom (Sep. 2018), https://www.legalzoom.com/articles/what-a-business-method-patent-is.

[18]Id

[19]Patent, Trademark and Trade Secret, Find Law (Jun. 8, 2017), https://corporate.findlaw.com/intellectual-property/patent-trademark-and-trade-secret.html.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.