INTRAGROUP DISSENT & SABRIMALA

“The irony of these times is that as actual places and localities become ever more blurred and indeterminate, ideas of culturally and ethnically distinct places become perhaps even more salient.” [1] Legal systems across the world have tried to preserve the cultural identity and sanctity of a particular group by equipping them with group rights. [2] The doctrinal argument favouring this kind of legal protection centres on the idea of preventing the infringement of cultural autonomy of certain groups by external factors. However, despite the common treatment of social groups as cohesive entities, these groups experience internal dissent sometimes. The members of the group disagree on how to define their group’s core values, goals and advocacy strategies.[3] As a consequence of the rapid change in socio-economic conditions modern society is becoming more heterogeneous from inside but homogeneous from outside. Differing opinions abound in a cultural community. In our modern world which is being globalized with an unprecedented pace, it is now people’s personal choice to as to how, where and with whom they want to live their lives and what cultural practices to exercise. [4]

Today more and more people are dissenting against the cultural and traditional norms of their community, they want culture best suited to their situation in time and space and thus changing the nature of culture itself. This kind of civilizational dynamism has posed a serious question to the law and legal system which has steadfastly been committed to the old worldview of cultural diversity and untouched by the changes happening inside a cultural community. So far the dissenters inside a culture have been suppressed to preserve the distinctiveness of a group. [5] In this paper the researchers will analyse as for how group dissent is grounded in the constitutional commitment of preservation of group autonomy as well as individual autonomy and found space and recognition in judicial pronouncements in the recent backdrop of Sabrimala judgment.

Before landing on the issue of group dissent in the context of constitutional philosophy it is imperative to understand the importance of group rights in an individual’s life. While elaborating the significance of group rights Peter Jonas posits that “Some of what is fundamentally important for people relates to identities that they can possess and to practices in which they can engage only in association with others.” Hence in order to develop a sense of self-social groups play an important part in this process as an individual identify himself as a part of that group. But when it comes to the cohesiveness of group there are always fissures in that cohesiveness. Members of the same church might disagree on the issue of interpretation of religious texts; members of same community disagree in terms of practices and norms. At this juncture, the role of law comes into play to ensure that the dissenting members of that particular community must remain unrobed of their basic rights and protection of the law.

“Cultural dissent symbolizes a movement away from imposed cultural identities to a new age of autonomy, choice and reason within the culture.” [6] While attempting to strike a balance between the individual’s liberty versus group autonomy the problem with Cultural survival approach is that it imposes the culture on individual rather than a choice based approach where an individual can choose culture best suited for him and this approach somehow jeopardize the prospect of sanctity of identity of an individual. The problem underlying behind this kind of conception is the misconceived notion of ‘Culture’ in a judicial and legal fraternity. Legal Scholars for a long time has been interpreting culture as something concrete and fixed entity existing without interference in time and space. However, the postmodern scholars have dissected the settled notion of culture. “By presuming culture is static, imposed, bounded, homogeneous, and unitary, law actively obstructs internal efforts within cultural associations to move away from imposed identities to identities of choice and reason.” [14]

As Charles Taylor puts forwards the argument that in the era of modernity to preserve the cultural integrity cultural rights are necessary but he missed the point that by legally bounding a culture degenerates the prospect of change and puts dissenters in a precarious situation. [7] As Janet Halley observes “culture, by its very nature, ‘constrains’.” [8] “We ought to ensure that legal efforts to counter globalization and modernization do not buttress the hegemony of cultural elites and suppress efforts by cultural dissenters to gain autonomy and equality within their cultural context.” [9]

The problem behind this is the misconceived perception of culture where traditional thinkers observed culture as something crystal and distinct entity existing with an uninterrupted continuance but modern thought especially the postmodernism has attacked the notional aspect of culture. Today anthropologists perceive culture as increasingly fluid, heterogeneous and more dynamic than ever. [10] “Moreover, culture is understood as subject to individual agency and internal contest, and increasingly so as cultures modernize and become more interrelated.” Now when it comes to the question of rights of minority culture, more or less these are the special rights with the liberal commitment to individual autonomy. The rights to minority cultures ensure the protection of certain cultural uniqueness from the encroachment by political and economic decisions by the majority culture.

“Liberalism is committed to (perhaps even defined by) the view that individuals should have the freedom and capacity to question and possibly revise the traditional practices of their community should they come to see them as no longer worthy of their allegiance.” 

In the course of time, there has been a shift in the ethical balance between individual and group in the direction of the individual. The liberal theory expounds that every individual must have a right to exit and this is completely different form coercively imposing liberalism on minority groups but it provides an individual with the option to make an informed choice on the way he wants to conduct his life. In furtherance of the discussion above Chandrachud J. in Sabarimala case while relying on the concept of radical equality observed that “Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny is to deny the primacy of the Constitution.” [11]

While acknowledging the concerns of minority group over protection of cultural rights the historical injustices pervading in the guise of culture cannot be sanctioned by constitutional morality. Chandrachud J. was of the same view in Sabrimala case where he observed at “In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life is the equal participation of women in all spheres of social activity.” [12]

When a group of people within a community feels that adherence to particular custom or practice of their group is robbing them of their dignified and free existence then they must have a remedy against it law. Constitution framers could never have conceived a cultural right violating the autonomy of an individual. The judgment of Sabrimala in this sense sets a new era in the conceptual framework of group rights by placing itself inside the atomistic conception of rights in harmony with group autonomy. The right to religion and protection of minorities under Article 25, 26, 29 respectively must be understood in terms of facilitating an individual a choice within a particular group to control and direct the conduct of the life of his/her choice. When it comes to the question of gender justice or some kind of historical discrimination the social emancipatory objective of the constitution must be taken into consideration as this kind of issues would fall within the ambit of what Sunder Calls “Cultural dissent”.

Authors: - Bhaskar Kumar & Snehil Kuwar Singh, National Law School of India University

Contact: - bhaskarkumar@nls.ac.in

[1] Akhil Gupta & James Ferguson, "Beyond Culture" Space, Identity, and the Politics of Difference, 7 CULTURAL ANTHROPOLOGY 6, (Feb. 1992).

[2] Holning S. Lau, An Introduction to Intragroup Dissent and Its Legal Implications, University of North Carolina School of Law Carolina Law Scholarship Repository,  https://scholarship.law.unc.edu/cgi/viewcontent.cgireferer=https://www.google.co.in/&httpsredir=1&article=1185&context=faculty_publications.

[3] V.I Chirkov, R.M Ryan, Y Kim, & Kaplan, Differentiating autonomy from individualism and independence: A self-determination theory perspective on internalization of cultural orientations and well-being, JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY, 84(1),(2003).

[4] Madhavi Sunder, Cultural Dissent, 54 STANFORD L.R3,  3 (2001).

[5] Madhavi Sunder, Cultural Dissent, 54 STANFORD L.R3,  3 (2001).

[6] 1 Austin Sarat & Thomas R. Kearns, The Cultural Lives of Law, 11 LAW IN THE DOMAINS OF CULTURE (1st ed.)

[7] Madhavi Sunder, Cultural Dissent, 54 STANFORD L.R3,  3 (2001).

[8] Janet E. Halley, Culture Constraints, in Is MULTICULTURALISM BAD FOR WOMEN? 100, 103-04 (Joshua Cohen et al. eds., 1).

[9] Madhavi Sunder, Cultural Dissent, 54 STANFORD L.R3,  3 (2001).

[10] Renato Rosaldo, CULTURE & TRUTH: THE REMAKING OF SOCIAL ANALYSIS (1989).

[11] Indian Young Lawyers Association v. State Of Kerala & ors, (2017) 11 SCC 577

[12] Id.

REVIEWING OF RESERVATION POLICY IN INDIA

India’s reservation policy is an issue today that almost every Indian ponders over, criticizes, appreciates or suffers from at some stage of time. Over the decades, the premise of Indian reservation policy has changed. The Reservation policy which was meant to be temporary has turned permanent feature of our society. The way successive governments have cemented the reservation policy, and increase quotas to gain vote bank has led to the feeling of resentment among majority as they feel discrimination in recent times. Moreover, the way well-off communities such as Patidar, Jats, Marathas n others asking for reservation show that there is something really wrong with our policy. Strange but true that India is the only country in the world where one fights to be recognized as backward. It is a strange paradox despite our reservation policy to uplift backward classes, there is no reduction in the list of backward classes.

This is undeniable that reservation was necessary to create an equal playing field. With this intent, the Constitution contemplated reservation for a limited period for the advancement of socially and educationally backward classes of citizens. As these communities don’t have equal opportunity to compete with well-off communities. But the big question before us today is about the efficiency and sustainability of our reservation policy which is exclusively based on caste? The policy is doing more harm than good to the national interest and unity of this country. It is also a matter of deep regret that with time there is increasing demand from different communities to be notified as a backward class. There is politics going on over the caste-based reservation. It seems that it is politically more rewarding to all parties to promise reservation to the largest possible number of castes. In recent, we have an example of state government like Rajasthan who has tried to increase more quota more than 50 per to satisfy a particular community. It is only because of the Hon’ble Supreme Court they are not able to increase above 50%.

Undoubtedly Reservation policy [1] had brought opportunities to the people of backward classes but limited impact on social mobility. Reservation policy is not able to change the mindset of the people toward the backward classes. They are still seen as they were seen before. If a change has brought to the mindset of the people it is through good education, not the reservation policy. We need understand and accept this view that reservation is necessary but it cannot be a panacea for all like social backwardness, inequality, poverty, and economic inequality. Reservation is both sensitive and debatable topic in our country. The time has come when we need to sit and analyze whether affirmative action is really helping the intended people and society at large? Whether caste-based reservation policy is cementing casteism? If we don’t talk and think about it now even a greater danger looms ahead. In my personal opinion, the politics over reservation policy has developed a perception among the majority that reservation for a few is denying opportunities for bigger cohorts is fueling resentment against the beneficiaries of the system and widens the gaps between the communities. The reservation which is a democratic tool to end discrimination has led to the feeling of reserve discrimination. The way well-off communities are making political pressure for reservation in jobs and educational institution raises the question about the efficacy of reservation? Moreover, it seems that government decisions made without any kind of statistical data to identify the backwardness or inadequate representation in the service under the central or state governments. The Supreme Court in various judgments has repeatedly called upon the states to periodically review the extent of backward classes but these suggestions never the saw the light. In today’s time, caste can’t be the true indicator of poverty and backwardness. There needs to be an economic-based reservation system in which criteria for reservation should be their financial capability. Even our former Prime Minister Jawaharlal Nehru pointed out the dangers of reservation based exclusively based on caste without reference to economic consideration. In a salutary recommendation by Pandit Nehru to all chief ministers sent on 27th June 1961, one of the points among what he observed is that: “The only way to help a backward group is to give opportunities of good education. But if we go reservations on communal and caste basis, we swamp the bright and able people and remain second-rate or third-rate”. [2]

The author personally supports the reservation but I strongly stand up for the argument that this policy needs continuous revision, rectification and writing in order to make it more effective. The need of the hour is to determine the backward classes and then restrict the benefit to those classes that were not adequately represented in public employment. The affirmative action will triumph if it disappears with time than keeping up. The current policy focuses more on economic mobility through quota in education and jobs but the social mobility of these communities requires deep social reform for which education can be a useful tool.

Author: - Krishna Sharma, Law Center- II, Faculty of Law, University of Delhi

Contact: - kskrish630@gmail.com

[1] Dinesh Narayanan, Is Original objective of caste-based reservation lost in muddied waters of entitlement politics, The Economic Times (Oct. 20, 2015), https://economictimes.indiatimes.com/news/politics-and-nation/is-original-objective-of-caste-based-reservation-lost-in-muddied-waters-of-entitlement-politics/articleshow/49460477.cms

[2] Soli Sorabjee, Nani Palkivala - The Courtroom Genius (Arvind Datar, LexisNexis 6th Edition, 2016)

DECRIMINALIZATION OF ADULTERY LAW: A STEP IN A RIGHT DIRECTION

1. INTRODUCTION

On 27th September 2018 the Apex Court of India unanimously struck down the 158-year old penal provision criminalizing adultery as unconstitutional. Section 497 of Indian Penal Code criminalized a man having consensual sexual intercourse with a married woman without the consent of her husband. The Supreme Court in the case of Joseph Shine v. Union of India [1] held that this particular provision is unconstitutional as it denies women the right to equality and right to life, which includes right to live with dignity. However, the Court clarified that adultery will still be a ground for divorce. It was also stated by the Court that if an act of adultery leads the aggrieved spouse to suicide, the adulterous partner could be prosecuted for abetment of suicide under Section 306 of the IPC. The judgment further struck down Section 198 (2) of Code of Criminal Procedure which was supplementary of Section 497. [2]

2. BACKGROUND OF SECTION 497

Before the Indian Penal Code was enacted adultery was not an offence in India either for men or women. Further, it was also not included in the first draft of the Penal Code. However, the Second Law Commission added to it. The Law Commission noted that the then prevalent social infrastructure and the secondary and economically dependent position of women were not conducive to punish adulterous men. Further, the authors noted that a wife was socially conditioned to accept her husband’s adulterous relationship as polygamy was an everyday affair. The Law Commission thereby incorporated adultery as an offence in the Penal Code [Section 497] punishing only the adulterous men, leaving women, who, in their opinion, were already living in humiliated and oppressive conditions within the family. [3] The essential ingredients of the offence of Adultery under Section 497 were as follows:

1. A man needs to have sexual intercourse with a married woman
2. The woman must be married.
3. The man should have known that the woman is the wife of another man.
4. Sexual Intercourse should not constitute to rape.
5. Consent of the husband has not been obtained before sexual intercourse. 

Further this Provision was supplemented with Section 198 (2) of CrPC which stated that no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the Penal Code. Further, in the case of absence of the husband, any other person who had the care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on husband’s behalf.

3. JUDICIAL HISTORY OF SECTION 497

Section 497 for the first time was challenged in the case of Yusuf Aziz vs. State of Bombay [4] wherein it was contended that the law was discriminatory in nature. It was argued that the adultery law discriminated against men by not making women equally culpable in an adulterous relationship. However, the Court held that Section 497 is constitutionally valid. It was stated by the Court that making a special provision for women to escape culpability was constitutionally valid under Article 15(3) of the Constitution. In 1985 again a case Sowmithri Vishnu v. Union of India [5]  was filed before the Apex Court to make the law gender neutral. The Court, however, in this case, held that women need not be included as an aggrieved party in the name of making the law gender neutral. The Supreme Court further stated that the men shouldn't be allowed to prosecute their wives and vice-versa so as to safeguard the virtue of marriage. The judgment thus held that adultery was a crime committed by a man against another man. Further the Supreme Court in the case of V Revathi v. Union of India [6] held that not including women in the prosecution of adultery cases promoted social good. It is because it offered the couple a chance to make up and keep the sanctity of marriage intact. However, the Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on Criminal Law Reforms of 2003 proposed amendment of Section 497 by making it gender neutral.[7] Finally in the case of Joseph Shine v. Union of India[8], the Supreme Court struck down Section 497 of IPC which was anachronistic in nature and revolved around the Victorian ideals of marriage sanctity.

4. WAY AHEAD

The Joseph Shine judgment upholds sexual agency, autonomy and equality of spouses within marriage, on an equal footing as an inviolable aspect of the rights to liberty and privacy. The judgment affirms the right to privacy in the context of the sexual agency of women within marriage and it also clarifies that privacy cannot be a shield when it comes to protecting women from domestic violence. The Court also observed that Section 497 was merely a legal means to enforce patriarchal ownership over the wife’s body and sexuality. As a result Section 497 is not sanctioned by the constitutional mandate to protect women or the preservation of the institution of marriage and thereby needs to be struck down. [9] Apart from that this the judgment also lays down the way for criminalization of marital rape. With the Supreme Court adopting an outlook of transformative constitutionalism against draconian and oppressive notions, one can now expect for the criminalization of marital rape, which is long overdue. [10]

Authors: - Raj Krishna and Teresa Dhar, Chanakya National Law University, Patna

Contact: - rajkrishnacnlu@gmail.com; dharteresa120@gmail.com

[1] Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 of 2017.
[2] Mehal Jain, ‘Husband Is Not The Master Of Wife’, SC Strikes Down 158 Year Old Adultery Law Under Section 497 IPC, Live Law (Nov. 12, 2018, 2:50 PM), https://www.livelaw.in/husband-is-not-the-master-of-wife-sc-strikes-down-158-year-old-adultery-law-under-section-497-ipc/
[3] PSA Pillai, Criminal Law 550 (KI Vibhute 2014).
[4] Yusuf Aziz v. State of Bombay, 1954 SCR 930.
[5] Sowmithri Vishnu v. Union of India, 1985 SCR Supl. (1) 741.
[6] V Revathi v. Union of India, 1988 SCR (3) 73.
[7] Prabhash K. Dutta, Section 497: 3 past Supreme Court judgments on adultery law, India Today (Nov. 16, 2018, 4:30 PM), https://www.indiatoday.in/india/story/adultery-law-section-497-3-past-supreme-court-judgments-
1349993-2018-09-27

[8] Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 of 2017.

[9] Madhu Mehra, Supreme Court verdict on adultery opens door for fuller understanding of women’s equality, Hindustan Times (Nov. 10, 2018, 1:30 p.m.), https://www.hindustantimes.com/opinion/supreme-court-verdict-on-adultery-opens-door-for-fuller-understanding-of-women-s-equality/story-9NpphXg1jshIj0sfKDcoFI.html
[10] Kali Srikari Kancherla & Shreyasi Tripathi, Indian Supreme Court Decriminalises Adultery: A Step Closer to Criminalising Marital Rape, Oxford Human Rights Hub (Nov. 14, 2018, 6:00 PM), http://ohrh.law.ox.ac.uk/indian-supreme-court-decriminalizes-adultery-a-step-closer-to-criminalising-marital-rape/

TRIUMPH OF EQUALITY OVER CULTURE BY THE INDIAN SUPREME COURT IN THE SABARIMALA

The Supreme Court of India recently delivered a landmark judgment in the case of Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors. The Supreme Court allowed the entry of women of all ages in the Sabarimala Temple. The judgment is a triumph of justice and equality over devotion based on gender discrimination. For several decades, gender discrimination was practised in the name of faith and devotion by the followers of Lord Ayyappa. Women in the age group of 10 to 50 were prohibited from entering the Sabarimala temple. The judgment has been subjected to severe criticism by the followers of Lord Ayyappa, who think it is unnecessary interference into their religious affairs. However, the verdict has many commendable aspects which are mentioned below. 

A little background is important to understand the issue at hand. Historically in India, women have been placed at a higher place and worshipped like a deity. However, in many instances, they are subjected to discrimination by society. One such case is the bar on the entry of women of the menstruating age in the temple of Sabarimala. The reason given for such discrimination was that the chief deity of Sabarimala temple is considered to be a celibate. The followers of the deity believe that entry of women of menstruating age will cause impurity in the temple which cannot be allowed. Public interest litigation was filed by young lawyers against such bar and which was accepted and decided by the Supreme Court of India. The commendable aspects of the decision besides gender equality are discussed below: First, it acts as a guardian where tradition comes into conflict with a person’s fundamental rights. Practising faith and devotion in the guise of gender discrimination is contrary to the basic tenets of the Constitution. The bar on the entry of women of menstruating age into the temple is grossly inconsistent with the principle of equality and untouchability. The recent verdict places person’s rights above culture and tradition which are propagated through discrimination. Second, it promotes rationality in religion. No right is absolute in India. It is subject to public health and morality. Right to religion is also subject to certain restrictions so that it does not interfere with the rights of a third person. Right to religion cannot be given an unconditional and wide connotation such that it suppresses other’s rights. Hence, a balance has to be maintained between the rights of a person and the faith of a person.

Third, it serves as a good and rational precedent for the future cases of the clash between rationality and dualism and irrationality in the guise of faith and tradition. It advocated for the end of dualism approach towards our female. On one hand, we preach women like a deity and on the other hand, they are subjected to irrational sanctions and restriction only on the basis of gender. The verdict came heavily on irrationality in name of faith and culture. It also prevents the perpetuation of inequality and untouchability by imposing sanctions on the women. Fourth, it gave a wide interpretation of the freedom of religion. Freedom of religion is subjected to certain restrictions. It should not interfere with the fundamental right of a third person. Furthermore, the court also noted that the bar on the entry of Sabarimala is not an essential religious practice and hence not protected under Article 25 of the Constitution. Fifth, it came down heavily on the patriarchy of religion. A religion is a universal thing above any kind of bias nature. There can be no space for patriarchy of religion in name of faith and tradition. The judgment is a big blow to narrow mindset to a bigot who in the name of religion spreads indignity to women. The judgment is widely celebrated as it reminds us of the idea that above

all religion is the religion of humanity and love.

Author: - Suvum Kumar, National Law University, Jodhpur
Contact: - suvamkumar271998@gmail.com

RESOLVING THE CONUNDRUM PERTAINING TO THE APPLICABILITY OF ARBITRATION (AMENDMENT) ACT OF 2015.

The Arbitration (Amendment) Act of 2015 (“Amendment Act”) was enacted to remove the lacunae in the Arbitration and Conciliation Act 1996 (“Arbitration Act”). However, it has created its own set of problems. The 246th Law Commission Report headed by Justice A.P. Shah recommended the introduction of section 85A, which defines the applicability of the Amendment Act. Section 85A provided that the Amendment Act will have a prospective effect and shall be applicable to “fresh arbitration” and “fresh application” with certain exceptions. This implies that new amendment will apply to all the new applications filed in court, irrespective of whether they are related to arbitrations conducted in the pre-amendment regime.  

Tussle regarding the applicability of the Amendment Act 

The legislature did not pay heed to the recommendation and enacted Section 26 that fails to clearly guide the applicability of the Amendment Act to “Court proceedings”, both pending and fresh. Due to lack of proper legislative guidance, the Indian Courts subscribed to three different opinions-

• Firstly, the Amendment Act has no applicability to “court proceedings” (fresh and pending), where the arbitral proceedings that have commenced before 23rd October 2015.[1]
• Secondly, sentence 2 has a wider implication as compared to sentence 1(sentence 1 and sentence 2 explained later). Thus, the Amendment Act will guide pending and fresh “court proceedings” in relation to arbitral proceedings commenced before 23rd October 2015.[2]
• Thirdly, the wording “arbitral proceedings” in Section 26 cannot be interpreted in a manner that includes “related court proceedings.” The Amendment Act will have its applicability to all arbitrations commenced on or after 23^rdOctober 2015. As far as court proceedings are concerned, the Amendment Act will apply to all “court proceedings” from 23^rdOctober 2015, pending or fresh pertaining to the arbitration commenced before, on or after 23^rdOctober 2015.[3]

Attempt to resolve the tussle (Board Of Control For Cricket In India v. Kochi Cricket Pvt. Ltd)[4]

Section 26 of the Amendment Act reads as follows- “ Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of section 21of the principal Act, before the commencement of this Act unless the parties otherwise agree (Sentence 1) but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act (Sentence2).”

The Hon’ble Court in BCCI v. Kochi bifurcated the above-mentioned provision into two parts –

• Sentence 1, which contains “to the arbitral proceedings” was interpreted in a manner that included only the” arbitral proceedings” and not the “court proceedings” pertaining to the same. The Court relied upon Section 21(mentioned in Sentence 1) and Chapter V titled as “Conduct of arbitral proceedings “of the Arbitration Act to show that Sentence 1 covers only arbitral proceedings.
• Sentence 2, which contains "in relation to arbitral proceedings", was construed in a manner that makes Amendment Act applies only to "court proceedings" "in relation to" to the "arbitral proceedings" because there is no reference to Section 21.

The judgment provided clarity and expressly held that “arbitral proceedings” and “court proceedings” will not be guided by the amended provision if they were commenced before the Amendment Act came into force. However, the Court did not hesitate to carve out an exception to the above rule. 

A false hope (lacunae in BCCI v Kochi)

The judgement that apparently seems to resolve the conundrum, fails to do so when analyzed in depth. The court held that section 36,has to be applied retrospectively effect on the ground-“Since it is clear that execution of a decree pertains to the realm of procedure, and that there is no substantive vested right in a judgment debtor to resist execution, Section 36, as substituted, would apply even to pending Section 34 applications on the date of commencement of the Amendment Act.”The Supreme Court has rejected to decide the fate of different provisions, which are procedural in nature as they were separate inquiries.
For example, Section 17 empowers arbitral tribunal to provide an interim relief. The Amendment Act added section 17(2) that provides an interim relief to be enforced as if, an order of a court is enforced. Relying on BCCI v Kochi it can safely be concluded that Section 17(2) should have a retrospective effect, as the same is "procedural in nature" and is "in relation to arbitral proceedings." Further, section 8 and 34 is also procedural in nature and in absence of any clarity on the same provides an opportunity for a conniving party to delay the arbitration mechanism by having a litigation pertaining to the applicability of the same.

Conclusion and Suggestion

It is a sad state of affair to know that until now, theapplicability of several provisionsof the Amendment Act is inanambiguous state. The Supreme Court was expected to clear the air but the same failed to do so. The author suggeststhatthesolution lies in the Arbitration and Conciliation (Amendment) Bill, 2018 which says that "arbitral proceeding" and "court proceedings" related to it, commenced after the Amendment Act will be guided by the amended provisions. "Arbitral proceedings" and "court proceedings" commenced before the Amendment Act will be guided by the unamended provision. It is pertinent to note that the Supreme Court had a look while deciding BCCI v. Kochi,but refused to abide by the same. It is suggested by the author, thateither the Court should settle the matter at once or should abide by the intention of the legislature behind the Arbitration and Conciliation (Amendment) Bill, 2018.


Authors: - Atif Ahmed & Rajvansh Singh, National Law University, Odisha
Contact: - 16ba111@nluo.ac.in; rajvansh.singh6@gmail.com

---

[1] Electrosteel Castings Limited v. Reacon Engineers (India) Private Limited, A.I.R. 2016 (NOC 764) 349; Pragat Akshay Urja Limited Company v. State of Madhya Pradesh (2016) 3 M.P L.J. 334.

[2] M/s Rendezvous Sports World v. The Board of Control for Cricket, (2016) SCC OnLine Bom. 6064.

[3] Tufan Chatterjee v. Rangan Dhar, (2016) SCC OnLine Cal. 483.

[4] Board Of Control For Cricket In India v. Kochi Cricket Pvt. Ltd, (2018) 6 SCC 287. 

CONSTITUTIONAL HISTORY OF JAMMU AND KASHMIR IN THE LIGHT OF ARTICLE 370

1. INTRODUCTION

Before independence, there were 562 princely states in British India and Kashmir was one those states that were not under the British rule directly. After independence, the Indian government asserted that Kashmir should be acceded to India and only then it would send the armed forces. This made the King agree to the accession and both parties signed the Treaty of Accession (“The Instrument”) on October 26, 1947. 

2. CONSTITUTIONAL HISTORY & REASONS FOR INCORPORATING ART. 370

First of all, the question arises as to why Article 370 was incorporated in the Constitution of India. The reason for this was given by Gopalaswami Ayyangar that for various reasons Kashmir was not like other merged princely states because it was not ready for amalgamation with India. India had been battling with Pakistan over the state of Jammu and Kashmir and there was a ceasefire, the conditions had not improved were uneasy. Another important event was the opposition by Sardar Vallabhbhai Patel to Article 370. Pandit Nehru was undeniably uncompromising and passionate about Kashmir.[1] Although Patel was highly cynical that it did not adhere to the fundamental rights and directive principles of State policy enshrined in the Constitution, he still played a role. However, Article 370 is not in its old form. It is a big myth. After Independence, many Presidential Orders have worn out Article 370 in a significant way. Then, the succeeding series of Presidential Orders have changed the situation in such a way that many Central laws and provisions are applicable to Jammu and Kashmir. There is practically no organization of the Indian Union that excludes Jammu and Kashmir from its ambit. The major distinctions are that most other States deal with permanent residents or citizens and their various rights and duties; the Emergency provisions cannot be applied due to reason of “internal disturbance” without the agreement of the State; and other things such as the name and borders of the State because this cannot be changed without prior consent of the State legislature.
However, Jammu and Kashmir is not unique in this regard because there are other provisions for various States also which have been incorporated under Article 371[2] and Articles 371-A to 371-I. A big topic of debate again is the revoking of Article 370 unilaterally. Clause 3 says that the President may declare by a public statement that the Article is inoperative but it can be done only when recommended by Constituent Assembly of Jammu and Kashmir. This means that Article 370 can be revoked but only if there is a new Constituent Assembly in Jammu and Kashmir which has been assembled and had recommended the revocation of Article 370. 

3. THE SCOPE OF AMENDMENT OF ART. 370

Article 370 cannot be amended. In the Constitution, Article 368[3] is applicable to all the states of Indian Union except Jammu and Kashmir. A proviso was added to Article 368 which states that any constitutional amendment will not have any effect with relation to Jammu and Kashmir until it has been applied by any order assented to by the President of India as per Article 370 of the Constitution. However, any such amendment as per Article 368 necessitates the issuing of an order by the President as per Article 370. This will, in turn, require the state government’s agreement under Clause (1) (d) of the present article.

4. THE MAGNITUDE OF REPEALING ART. 370

A likely significance of repealing this Article would be destabilizing of the relationship of Jammu and Kashmir with India. Article 1 lists all the territories of India and can be applied to Jammu and Kashmir but by virtue of Article 370 and hence the extermination of Article 370 would result in the removal of Jammu and Kashmir from the list of constitutional territories of Indian Union. It comes again to a full circle because the use of Article 1 for Jammu and Kashmir is dependent on Article 370 and the annulment of Article 370 will destroy the association between India and the State of Jammu and Kashmir.

Author: - Sumaira Imtiaz, National Institute of Study & Research in Law, Ranchi
Contact: - sumaira.nusrl@gmail.com

[1] S.R. Weisman,  Kashmir: A Story of 'Blowback' in Paradise, New York Times. (July 18, 1999) https://www.nytimes.com/1999/07/18/opinion/editorial-observer-kashmir-a-story-of-blowback-in-paradise.html
[2] INDIA CONST. art. 371

[3] INDIA CONST. art. 368. 

TRADE DRESS- AN EVOLVING CONCEPT UNDER THE AMBIT OF INTELLECTUAL PROPERTY RIGHTS

Trade dress is a form of intellectual property, which deals with the visual appearance of a packaged product, which can even be the design of a building, that signify and illustrate the source of the product to the consumers.  Trade Dress broadly encompasses the overall image created by the product or package and the overall get up of the product. It encompasses features and characteristics such as size, shape, package, colour combinations, texture, graphics and even particular sales techniques. A trade dress must necessarily be non-functional to attain legal protection, otherwise, it will become the subject matter of patent law. It’s an expensive concept, a trade dress may include the design of a cover page of a magazine, design of a door-knob, appearance of a water meter or a lamp, design of a sports shoe, a different performing style of a music band, etc. However, a generic idea, a hypothesis or a creative concept cannot be treated as a trade dress. An action claiming trade rights cannot be entertained in any ordinary or commonplace exterior or interior retail building design, shared by multiple competitors. The set of laws that govern and protect unregistered trademarks are also applicable to trade dress. Trade Dress is a type of commercial shorthand that provides a source-associating cue to an unthinking consumer. This feature may make rational minds treat trade dress similar to a traditional trademark. The point of difference between the traditional trademark law and the law governing trade dress is that unlike traditional trademark law that protects words or logos, trade dress law protects the total packaging and design of a product. 

The origin of trade dress can be traced back to the United States of America. Trade dress, back then in the United States was considered as the overall appearance of labels, wrappers and containers used in the packaging of a finished or semi-finished product. With the advent of law, a plethora of additional elements of trade dress was included under the ambit of trade dress. The packaging of a McDonald’s burger, the shape of a bottle of Coca-Cola or even the theme of a restaurant or eating joint can be considered as an example for the same. Trade dress as a concept has originated from the legislation of The U.S. commonly known as The Lanham Act. Under section 43(a) of the Lanham Act, a product's trade dress can be protected without formal registration with the PTO. In relevant part, section 43(a) states the following:

"Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which

1. is likely to cause confusion, or to cause mistake, or to deceive [...] as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
2. in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such an act."

It is the appearance of the product, which arises from the final packaging of a product, which guides consumers in identifying the products they prefer. At times, even educated consumers find it difficult to differentiate between two similar looking products. Since many sellers prefer stocking imitation goods in order to garner better profits, it becomes difficult for genuine trademarked products to reach all the customers willing to purchase them. The aim behind the protection of trade dress should be preventing consumers from being misled into purchasing substandard articles and protection of the interests of genuine manufacturers, who do not aim to garner profits unreasonably by taking advantage of the established goodwill and reputation of a product. Protection is provided, by the act, to the marks which are distinguishable. For Example, Class 11 protects a particular shape of a barbeque; Class 30 protects the triangular shape applied to a chocolate. A package for the inclusion of any case, box, container, vessel, casket, bottle, wrapper, label brand, ticket, frame, capsule, cap, lid, stopper or cork is defined by the act. Protection of trade dress is broader in scope than that of the trademark. A level of distinctive character is required for a product to be granted a trade dress since the overall brand value of a product is protected. Further, the claim for a trade dress for a product will only be taken into consideration only when it is made identifiable to the consumer, as a brand value is created for a product when it is made identifiable to a consumer. Thus, the fact that trade dress had an important role in creating a brand value for the product, makes the protection of trade dress very essential. 

Unlike the law of the United States, which recognizes the concept trade dress under Section 43(a) of the Lanham Act, the Indian law does not have a separate provision for the trade dress under its existing Trademark legislation. However, the common law of passing off serves the purpose of protection of trade dress consisting of shape, packaging and combination of colours, etc. The same has been elucidated in Section 2 (zb) of the Trademarks Act 1999. The new Trade Marks Act, 1999, which came into force in 2003, is largely based on the English Trade Mark Act, 1994 and recognized the concept of trade dress on the lines of The Lanham Act. Through the amended Act of 1999, Trade Dress has been recognized through a new definition of Trademark, according to which there is an encompassment of the shape of goods, packaging, a combination of colours or any combination thereof. Broadly speaking, according to Section 2 of the Trade Marks Act 1999, the following are defined as: (m) "mark" includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof; (q) "package" includes any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper an cork; Hence the new definition of trademark under Indian law comprises all the elements of the trade dress as under US law. The Indian courts have been recognizing the concept of trade dress even before 2003.

To be eligible for protection, the overall appearance of the product has to be different from that of other competing products. This distinctiveness may either be inherent or acquired. Rather than looking into disputes involving infringement of trade dress as a mere infringement of trademark and using conventional methods to ascertain the same, the courts have the Courts have taken into account various other factors, such as the extent of passing off in the copy of an aspect of a trade dress or the implication of the design of a finished product and the impact caused when the same is used for another commodity serving the same purpose, while extending protection to the right holders in order to protect their trade dresses or prevent infringement or violation of the same. In 2017, the High Court of Delhi and Bombay High Court have promulgated orders/judgments which would add on to the prior cases characterizing customary law relating to assurance of Trade Dresses. No specific provision for trade dress has been provided for trade dress in the Trademark Act of 1999. However, with the development of law, the laws of India pertaining to Intellectual Property Rights are at par with international standards. Well, known marks have been introduced and service marks have been recognized by the Act. For the process of streamlining and simplification of the procedure of registration, it has now been made possible to file one single application for registration of a mark in different classes of goods and services. Amendment in laws pertaining to Intellectual Property Rights has also led to the expansion of the definition of trademarks so as to incorporate the shape of goods and colour combination and shape of goods and combination of colour and also provides for the registration of collective marks owned by associations. Under the Trademark Act of 1999, packaging of a product or design and combination of a product may be registered as a mark. Statutory and common law protection is given to trademark by Indian Law. Passing off action is provided by The Indian Law on trademark against the use of similar trade dress. Thus, a passing off action can be claimed for infringement of trade dress. 

Coming to the landmark judgements in India with regard to passing off, in India, it was held by the Delhi High Court in the case of Cadbury India Limited and Ors. v. Neeraj Food Products [1], that the trademark “JAMES BOND” was physically and phonetically similar to “GEMS” which is a product of Cadbury. It was further held by the Court that the packaging of Neeraj Foods was similar to that of Cadbury. Thus, Neeraj Foods was restricted from using the said trademarks as well as packaging similar to that of Cadbury.

In the case of Parle Products Pvt. Ltd. v. J.P. & Co. [2], Mysore, a brand of biscuits similar to Parle G was launched by the defendants, J.P & Co., Mysore. Both the packs were similar in colour scheme, design and size. It was held by the Supreme Court that for the purpose of ascertainment of deceptive similarity, a pack of biscuits manufactured by the companies, which were parties to the suit, need not be placed beside each other and compared, but an overall action would serve the purpose, and the defendants were held liable in this case.

Another landmark judgement was Gorbatschow Wodka Kg v. John Distilleries Ltd. [3] Gorbatschow Wodka is one among the top brands of vodka in the world. The bottles of Vodka manufactured by this company have a unique bulbous structure inspired by Russian Architecture. The bottle of vodka manufactured by Salute Vodka, a product launched by an Indian Company named John Distilleries, was shaped in a manner similar to the bottles of vodka launched by Gorbatschow Wodka Kg but used a different trademark and colour of the label. The defendants (John Distilleries Ltd.) argued that the consumers of Gorbatschow Vodka were affluent and could never be confused by an economic brand like Salute. However, the Bombay High Court held that the shape of the bottle manufactured by John Distilleries was deceptively similar to that of Gorbatschow Wodka, and the sale of Salute Vodka would lead to tarnishing of the image of the plaintiff (Gorbatschow Wodka) and thus the defendant was directed to stop using that particular shape for selling their product.  

Author: -  Tejas Hinder, National Law Institute University, Bhopal
Contact: - hindertejas@gmail.com  

[1] Cadbury India Limited and Ors. v. Neeraj Food Products, 2007 SCC OnLine Del 841
[2]  Parle Products Pvt. Ltd. v. J.P. & Co, (1972) 1 SCC 618
[3] Gorbatschow Wodka Kg v. John Distilleries Ltd., 2011 SCC OnLine Bom 557