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

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[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

WALKING THE EXTRA MILE

1. INTRODUCTION

In its historic judgement, the Supreme Court of India has read down Section 377 for situations where consenting adults willfully take part in carnal intercourse which essentially means that the law will not be applicable in such scenarios. Section 377 managed to survive for almost one and a half decade, impervious to both the anti-colonial struggle as well as the formation of a democratic India, which guarantees fundamental right to choose who to love to all its citizens. But that is not all.  Several aspects of our interactions have rested on the premise that the LGBT community has no legal recognition. Now that the situation has changed considerably, an approach which is both flexible and sensitive is required to bring about transformations in the management of public spaces in order to make the society a more inclusive one where rights of every person are respected. Therefore, more space is needed in general to constitute a safe haven for the LGBT community which is often oppressed by the hetero-normative perception of the society. The strongly gendered dimension of public spaces like public restrooms suggests that a discursive revisioning of gender is needed to create a more transgender friendly public space. This assertion can be backed by studying the moves of the biggest spender of the country i.e. the Government. A glance through the data of the Swachch Pakhwada campaign reaffirmed our belief.[1] In nearly every report published by the government in power regarding the toilet construction campaign, data of a number of toilets constructed have been tabulated under heads of ‘Males’ and ‘Females’. This approach surely is disastrous as it leaves out a major population out of its tables and fails to cater to their needs. Moreover, the campaign could have had a more social impact if it had focussed on the other gender too. Both the goals, namely of having better infrastructure and refining the social consciousness would have been achieved if the approach were followed.

2. GROUND REALITIES

Given the often-contentious intersection between advocates fighting for the rights of LGBTs and the regressive social forces, a central question is how the rights of those are negotiated and secured in the public places. It is important to consider to what extent the society allows individuals to express their gender in ways that may challenge socially expected gender dichotomy without fear of hetero-normative restrictions and approbation. The stereotype fostered by Section 377 is obvious in how other individuals and non-state actors treat the community. The Social disapprobation for the queer community, hitherto backed by Section 377, sanctioned verbal harassment, familial fear, restricted access to public spaces and the lack of safe spaces.[2] The concern with inclusivity is especially relevant in the light of the reformist action by the Apex court in reading down of the harsh section for consenting adults from the Indian Penal Code. There is no doubt that they face special problems the rest of us don’t.[3] For instance, using Public toilets in India is less a matter of choice than of ingrained instinct for most people. Men use the men’s room, women the women’s.  For anyone belonging to the transgender community, locating a toilet is a herculean task. Unavailability of specific toilet forces them to use male or female toilets which brings with it the risk of sniggering, stares, taunts, threats of violence, sexual assault and harassment. The Apex court in National Legal Services Authority vs Union of India[4]  reaffirmed this finding. And finding a “gender neutral” or unisex toilet is rarely an option. Introducing Gender-neutral toilets in public spaces address the concerns of persons who face intimidation and harassment in gender-segregated facilities when they are perceived by others to be in the “wrong” one. It will require changes in architecture, which are costly or even plain impossible in many of our listed buildings. Most striking and inhumane claim could be that since they constitute a minuscule fraction, a hefty budget cannot be allocated for their welfare.  The meagre size of the population of LGBT community cannot be the reason for us to evade our responsibility. The high levels of social stigma attached to being gender variant may also make an assessment of the size of the trans population extraordinarily difficult.   

3. WINDS OF CHANGE

In the backdrop of this judgement[5], it is essential for us to pay attention to basic needs of transgender persons such as access to public spaces. Forming a holistic perspective requires that the law focuses on more than just recognising their sexuality. Regulations have to be made in efforts to accommodate all lifestyles to meet the needs and requirements of the third gender in order to steer the movement in the right direction. The demand for gender-neutral public spaces must also be understood from the perspective of a rights discourse. While doing so, it becomes necessary to understand the constitutional source from which the claim emerges. Since the court has now placed the entitlement of the transgender population in a constitutional framework, the matter can be approached from the perspective of constitutional analysis. Therefore, the proposed solution is to construct toilets for the other gender too. However, the task of new constructions involves huge expenditure. This leads us to think for solutions which minimize cost and does not entail new constructions. One solution to this is to reserve one toilet out of the many as a gender neutral. This will involve no extra costs and will sufficiently cater to the population of transgenders. Such a move will not only uphold the fundamental rights of the transgender people but can also mark the starting of an awareness campaign of inclusivity.

The unavailability of Unisex toilets violates the fundamental guarantee against discrimination because it unequally targets those whose sexual expression falls in this category. This results in a denial of the self. Identities are obliterated, denying the entitlement to equal participation and dignity under the Constitution. It is a basic right of every person under Article 21[6] of the Indian Constitution to have access to a safe and hygienic toilet. The stability of India’s foundation lies in its effort to protect diversity in all its facets: in the beliefs, ideas and ways of living of her citizens. The mandate to transform society in allegiance to the constitutional principles is a task vested in the state, the judiciary and in the citizen. We must ensure that rights of transgenders are guaranteed. Unless we do that, we risk becoming the cause and not just the inheritors of an unjust society.

Author: - Kuman Satyam & Bihaan Pandey, National Law School of India University
Contact: - kumarsatyam@nls.ac.in

[1] Ministry of Drinking Water & Sanitation, Govt. of India, Swachhta Pakhwada, Ministry of Drinking Water & Sanitation (2017), https://mdws.gov.in/sites/default/files/Swachhta_Pakhwada_Year_Book_2017.pdf

[2] Zaid Al Baset, The Tasks Ahead Supreme Court Judgment against Section 377, Economic & Political Weekly (Sept. 29, 2018), https://www.epw.in/journal/2018/39/commentary/supreme-court-judgment-against-section.html

[3] Saptarshi Mandal, Section 377: Whose Concerns Does The Judgment Address?, EPW (Sept. 15, 2018), https://www.epw.in/engage/article/section-377-whose-concerns-does-judgment

[4] MANU/SC/0309/2014

[5] Navtej Johar v. Union of India, 2018 SCC OnLine SC 1350

[6] Article 21, The Indian Constitution

SIMULTANEOUS ELECTIONS: AN ANALYSIS

Electoral institutions are considered a principal explanatory phenomenon for a wide range of political phenomenon. Representative democracy is imperfect and continuous public participation through elections provides a system of communication to cure these imperfections in a representative democracy. The current electoral system of multiple elections in India provides political diversity which is essential to address the social diversity of India. The Supreme Court, in the Keshvanand Bharti case[1] and the S.R Bommai case[2], has laid down that the federalism is the basic structure of the Constitution.

The first elections to the Lok Sabha and all State Legislative Assemblies were held simultaneously in 1951-52. The practice continued in the next three elections held after that till 1967, but got disrupted post-1967 due to premature dissolution of some Legislative Assemblies. Thereafter, due to political instability across various states and the Lok Sabha, it became impossible to hold simultaneous elections.[3] However, the electoral system that lasted till 1967 from the adoption of the Constitution was not a planned electoral process but continued because the power was concentrated to a few political parties. Therefore, the Simultaneous elections to parliament and state legislatures till 1967 can be attributed more to the dominance of a single party throughout the nation and less to a well-organized plan by the election commission to hold simultaneous elections.

Article 83(2) of the Indian Constitution provides that the House of the people shall continue for five years from the date of its first meeting.[4] A similar provision under article 172(1) provides for five-year tenure from the date of its first meeting for the state governments. For the government to conduct Simultaneous elections, the tenure of the State Legislative assemblies has to be either curtailed or extended which is not provided under the current provisions in normal circumstances. Article 85(2)(b) of the Indian Constitution grants the power to dissolve the Lok Sabha to the president.[5] A similar provision for dissolution of state legislative assemblies by the governor is mentioned under Article 174 (2)(b). In the backdrop of the existing provisions in the Constitution, it is not possible to conduct simultaneous elections. The exercise will require extensive amendments to articles 83, 174 and 356 of the Indian Constitution.[6] These amendments can upset the balance of power between the state and the union in favour of the union. Even if some of the articles are amended, practical problems will still arise. There is no country in the world as big and diverse as India that has managed to hold and sustain simultaneous elections to Federal and Provincial Legislatures. South Africa and Sweden still hold simultaneous elections to national and provincial legislatures.[7] The electoral system in these countries is based on party-list proportional representation. we cannot expect such political stability in a country like India and it will not be possible to provide for all the situations and eventualities and still protect the spirit of democracy.

The very idea of simultaneous elections undermines the parliamentary system itself. It is not feasible to conduct simultaneous elections in the Westminster model for the long term. One of the basic features of the parliamentary system is that it offers the prerogative of dissolution of the legislature to the executive, which will end if the term of the central and state legislatures is fixed through amendment of the Constitution. The introduction of Simultaneous elections to the central and the state legislature will make article 356 a rule rather than an exception. It would be against the wishes of our Constitutional forefathers. B.R. Ambedkar, chairman of Drafting Committee of the Constitution, discussed in reference to article 356, “Such Articles will never be called into operation and they would remain a dead letter.”[8] Simultaneous elections will give an unprecedented power to the president who acts on the aid and advice of the prime minister and council of ministers. This system would obviously favor the national parties and marginalize the state parties in the political scenario. A state government during the President’s rule is virtually under the direction and control of the union government. In practice, the executive authority is delegated by the President to the Governor. The governor functions on the aid and advice of his advisers who are mostly bureaucrats.[9] This is simply surpassing the principles of democracy because neither the Governor nor his advisers are elected by the people and as such, they are not the representative of the will of people.

Democracy is not just about ensuring proper election to the Central and State legislatures. Democracy in its real sense is about ensuring accountability to the people. Frequent elections also evaluate the representatives and the party to which the representative belong. One of the major consequences of simultaneous elections is that public participation is vastly diminished. Simultaneous elections will also unduly benefit the national parties as most of the conversations at the time of synchronous elections will be about the issues that plague the nation at large. In these campaigns, local issues that are present in the most immediate environment will be lost. National parties will always have a better say in the elections and it will distract the attention of people from the most immediate issues. The national elections and the welfare of the nation at large will hit the nationalist sentiments in every citizen. Therefore, national issues will seize most of the people imagination and media coverage. This will divert local issues from peoples’ attention and the election will solely be based on national interests. Staggered elections do not only help in representing both local and national issues, but it also provides a way to keep a check on the work of the government and express the displeasure of people to the works of the government.[10] Multiple elections also to some extent communicates the pulse of the nation to the ruling parties.

According to a research by the IDFC institute, voters get confused between national and local issues and end up voting the same party for both the legislatures. There is a 77% chance that voters chose the same political party for centre and state during simultaneous elections.[11]  However, the same data provides that when elections were held beyond six months of the national elections, the chances of voters voting for the same party dropped to 48%. These data mean that holding simultaneous elections may influence voter behaviour in a manner that voters would ignore the immediate local issues and end up voting on national issues. Effectively, this will result in larger national parties winning both State and Lok Sabha elections thereby marginalizing regional parties which often represent the interests of local social and economic groups. This will have a debilitating effect on the federal principles of our Constitution.

Lastly, the only argument in favour of simultaneous elections that has some ground is of expenses. But, we need to ponder over the fact that the Constitution makers did not mention “simultaneous elections” in the Constitution. They presumably held the view that some costs are indispensable and essential in running an effective democratic system. In a country as diverse and large as India, elections are bound to be expensive. These election costs are much easier to endure than the degradation of democratic and Constitutional principles. Any proposition favours simultaneous elections to the Central and state assemblies lacks imagination, practicality and profound knowledge of the federal spirit of the Constitution.

Author: - Kuman Satyam, National Law School of India University
Contact: - kumarsatyam@nls.ac.in

[1] Keshvanand Bharti v. Union of India, (1973) 4 SCC 225

[2] S.R. Bommai v. Union of India, 1994 AIR 1918

[3] Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, Seventy-Ninth Report, Feasibility of Holding Simultaneous Elections to the House of People (Lok Sabha) and State Legislative Assemblies, (2015), available at http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20Personnel,%20PublicGrievances,%20Law%20and%20Justice/79.pdf

[4] INDIA CONST. art. 83

[5] INDIA CONST. art. 85(b)

[6] INDIA CONST. art. 356

[7] Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, Seventy-Ninth Report, Feasibility of Holding Simultaneous Elections to the House of People (Lok Sabha) and State Legislative Assemblies, (2015), available at http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20Personnel,%20PublicGrievances,%20Law%20and%20Justice/79.pdf

[8] Ambedkar, B. R. (1949), Constituent Assembly Debates, vol. IX, no. 5, p. 177(4 Aug. 1949)

[9] Singhvi, G.C. (2000), "Our Representative Democracy: Some Incompatible Practices," Indian Journal of Public Administration, vol. XLVI, no. I, New Delhi, p.ll6., (January-March, 2000).

[10] Meghnad Desai, Out of My Mind: All together now, Indian Express (Feb. 02, 2018), http://indianexpress.com/article/opinion/columns/out-of-my-mind-all-together-now-simultaneous-elections-lok-sabha-state-assembly-polls-5050501/

[11] Praveen Chakravarty, Different vote for State and Centre, (Dec. 03, 2015), Livemint, https://www.livemint.com/Opinion/O3hCQggLS2ASxW5zz8fJ6K/Different-vote-for-state-and-centre.html