INTERNSHIP

REPORT

Gaurav Singhal
07910303816
IV-B(2016-21)
 Internship
Report
(Week 1)
Topic: Development of
Arbitration in Intellectual
Property Disputes
Introduction
The Alternative methods of dispute resolution have eventually acquired a huge
popularity and utility in the commercial and business- commerce sector. One of
the most utilised methods is the arbitration, most of the parties associated with
the commercial transaction nowadays prefer to opt for arbitration for the
settlement of any kind of dispute. Arbitration in particular works especially well
in the areas of commercial and international disputes as a quasi-judicial system
developed to counter the snags of litigation and an overburdened judiciary
In the past, many legal systems did not allow the arbitration of IP disputes,
simply because the rights had been granted by a sovereign power. It was argued
that the nature of the rights was such that questions as to validity should only be
decided by the authority which issued the right. However, it is now broadly
accepted that disputes relating to IP rights are arbitrable, just like disputes
relating to any other type of privately held rights like transfer of granted IP
rights as in licensing or any other such commercial arrangements. The WIPO
has also promoted ADR in IPR matters by setting up the WIPO Arbitration and
Mediation Center, a neutral, international and non-profit dispute resolution
provider that offers time- and cost-efficient alternative dispute resolution (ADR)
options and enable private parties to efficiently settle their domestic or cross-
border IP and technology disputes out of court.
When talking about IP arbitration, two main issues must be considered:
 Is an arbitration clause in place? A core element of many IP disputes is
the IP owner’s right to prevent others from using its IP (cease and desist
claim). As a matter of fact, usually there is no contract in place between
the rival parties. And even if there is (for instance licence agreements,
technology agreements, trademark co-existence agreements or even
transaction agreements also containing IP-related issues), such
agreements often do not contain IP-specific arbitration clauses or any
arbitration clauses at all.
 Is the matter of the dispute arbitrable? In IP disputes, the existence,
validity, ownership or scope of certain IP rights are at least preliminary
questions to be resolved before the merits of a case can be determined.
With regard to registered IP (such as patents, utility models, trademarks
or designs), the question of whether such IP right has been lawfully
registered by the authorities is typically resolved in front of the national
courts and authorities, and not by private arbitrators.

Arbitration of IP disputes has inherent advantages of saving time and costs and
ensuring confidentiality while also maintaining long-term business relations.
The arbitrators which determine the outcome of the dispute are called the
arbitral tribunal. In most jurisdictions, an arbitrator enjoys immunity from
liability for anything done or omitted whilst acting as arbitrator unless the
arbitrator acts in bad faith. Arbitrations are usually divided into two types: ad
hoc arbitrations and administered arbitrations.
In ad hoc arbitrations, the arbitral tribunals are appointed by the parties or by an
appointing authority chosen by the parties. After the tribunal has been formed,
the appointing authority will normally have no other role and the arbitration will
be managed by the tribunal.

In administered arbitration, the arbitration will be administered by a

professional arbitration institution providing arbitration services, such as the
LCAI in London, or the ICC in Paris, or the American Arbitration Association
in the United States. Normally the arbitration institution will be the appointing
authority. Arbitration institutions tend to have their own rules and procedures
and may be more formal. They also tend to be more expensive, and, for
procedural reasons, slower.
Institutional arbitration is becoming important for the sectors that are growing
in India in the context of liberalisation and globalization. Arbitration, as a
private and confidential procedure, is increasingly being used to resolve
disputes involving intellectual property rights, especially when involving parties
are from different jurisdictions. Institutional arbitration is a process that is not
“ad hoc” or decided by arbitrators chosen case by case by the parties to a
dispute by mutual agreement or named by the courts but by arbitrators by the
panel of institution who have been chosen by their in depth knowledge of
different fields, and have to follow norms, including in relation to fees, set by
institution. All these sectors are increasingly characterized by international
transactions, where the laws applicable vary from country to country and
involve a high level of specialization in the domain concerned. Another
common factor is the criticality of time, considering that patent terms are
limited, and technology could become obsolete fast, and hence the long duration
taken by courts to settle dispute beyond, the scope for appeal goes against the
interest of disputants. Hence arbitration offers these sectors advantages
particularly valuable for them. The main obstacle to using arbitration to resolve
Intellectual Property Rights disputes is the issue of its subject matter
arbitrability.
Intellectual Property rights are territorial and are primarily derived from the
legal protection granted by the local sovereign power, which affords the grantee
certain exclusive rights to use and exploit the rights. It is argued that disputes in
relation to its agent, validity and the extent of rights granted should be
determined only by the authority which granted the right or in certain situations
by the courts of that country. This had an effect that the rights and entitlements
to IP and the legal issues which flowed from those rights could not usefully be
referred to or considered by an arbitration tribunal. Where however, the parties
enter into arrangements relating to the development, use, marketing or transfer
of IP rights granted, disputes arising from such commercial arrangements could
be arbitrated without any controversy arising from the issue of its arbitrability.
Such matters are generally regarded as inner parties’ commercial matter and are
arbitrable.
Arbitration offers a number of real benefits for certain IP disputes:
Globalisation can create unwelcome dilemmas for IPR holders. Whilst there is a
clear shift towards the global exploitation of IPR, those rights are by nature
territorial i.e. connected to the specific jurisdiction in which the right is
registered or protection is conferred. Accordingly, international patent disputes
therefore involve litigation proceedings in multiple jurisdictions which are
generally mandatorily subject to the laws of the country of registration. 
The uncertainties inherent in parallel litigation are self-evident: different legal
systems will involve differing procedural and substantive treatment of similar
issues, in different time frames and by decision-makers with varying degrees of
experience and/or relevant technical expertise. Given the risk of inconsistency
in national approaches, coupled with the uncertainty and expense of enforcing
foreign judgments in certain jurisdictions, arbitration can offer genuine
advantages.
Arbitration of global IP disputes yields various distinct advantages. It permits
the parties to resolve multiple “national” disputes involving the same IPR in a
single proceeding. There are obvious time and cost benefits to this: fewer
counsel are involved; less expert evidence is required where the arbitrators are
familiar with the technology at issue; and witnesses need only attend one
hearing to give their evidence. Importantly. there would also be no risk of
contradictory results due exclusively to inconsistent factual findings. Moreover,
the finality of arbitration also avoids protracted appeals and recourse practice.
Expertise of decision-makers is often critical in IP disputes, whether that be
knowledge of a particular area of science or technology or because the issues
involved arise at the intersection of intellectual property, regulation and
competition law. Judges in some jurisdictions will have such specialist
knowledge, but not in every jurisdiction. Arbitration provides for quality control
in this regard, either through party choice of arbitrator (including a technical
expert, rather than a lawyer, in appropriate cases) or through panel selection by
a specialist arbitral institution such as WIPO.
Confidentiality is often particularly important in IP disputes, certainly where
proprietary or commercially sensitive information is involved or where the
dispute involves products or processes still in the developmental phase.
Although the confidentiality of arbitral proceedings does not enjoy uniform
treatment even in the leading arbitral jurisdictions, the parties can by contract
create far-reaching obligations of confidentiality, including by incorporating
institutional arbitral rules which specifically address this issue. The WIPO
Arbitration Rules, for example, contain provisions dealing explicitly with the
treatment of trade secrets and other confidential information and even provide
for the appointment of a confidentiality advisor to determine, in lieu of the
tribunal, whether the information is confidential and, if so, what special
measures of protection are required within the proceedings to protect it.

WIPO
To meet the particular needs in IP and technology disputes, the World
Intellectual Property Organisation (WIPO) established the WIPO Arbitration
and Mediation Center (WIPO-Center) and specific arbitration (expedited and
non-expedited), mediation and expert determination regimes. Key figures
published by the WIPO Center show widespread use of its services in the field
IP (WIPO Mediation, Arbitration and Expert Determination Cases) and the
number of cases handled by the WIPO Center is consistently growing, showing
rising demand for such specialized services.
 
the key aspects of the WIPO arbitration regime are:
 WIPO Neutrals: the WIPO Center administers a comprehensive list of
experts specialised in various fields acting as arbitrators;
 Specific rules on interim injunctions: quick suspension of infringements
is often key in IP disputes – thus, the WIPO arbitration regime provides
specific focus on interim decisions;
 Confidentiality regime: IP and technology arbitration often involves
secret know-how and trade secrets; the WIPO Rules provide for a specific
set of provisions dealing with confidential information introduced in
arbitration proceedings;
 Evidence proceedings: the WIPO Rules provide specific sets of
provisions on taking evidence via expert witnesses, including arranging
for experiments to be conducted during arbitration.

Arbitrability and public policy

The interconnected issues of arbitrability and public policy are particularly
relevant in IP disputes. Many jurisdictions do not allow arbitration of disputes
involving issues of public policy, although the list of such “prohibited” disputes
gets ever smaller. On grounds of public policy, a small number of jurisdictions
prohibit the resolution by arbitration of certain aspects of IP disputes. The
rationale for this prohibition is usually based upon state involvement in the
creation, recognition or protection of IPR (rights that often grant areas of
exclusivity to their holders) but also rests upon the notion that a private
adjudicator should not resolve a dispute that may affect society at large.
Accordingly, some jurisdictions bar the arbitration of any kind of dispute
involving IPR, for example South Africa and, prior to 1993, Israel. Other
jurisdictions are at the opposite end of the spectrum.In the USA, parties can
arbitrate any kind of IP dispute, even disputes as to the validity of IPR. It is
generally accepted that in the UK issues of validity relating to IPR are
arbitrable, although the award will only bind the parties to the arbitration. The
position in Germany is similar. Switzerland goes further still.In its decision of
15 December 1975, the Federal Office of Intellectual Property held not only that
arbitral tribunals may decide upon the validity of patents, trademarks and
designs but also that registered IPR may be struck down on the basis of an
arbitral award. Other countries adopt a middle path, allowing the parties to
arbitrate the infringement of IPR but not to arbitrate the validity of registrations
(e.g. France, Italy, Japan and Spain). 

Arbitration of IP Disputes in India

The scope of this article is limited to analysing arbitrability of patent, copyright
and trademark regimes. These regimes allow a “statutory monopoly” to be
given to the creator of an intangible asset, conferring an exclusive right to
exploit it. There are corresponding statutory remedies to enforce this right. For
instance, there exist statutory remedies for infringement of copyright, trademark
and patent. As per the statute, these remedies must be granted by civil courts.
The statutory mention of courts, as a forum to grant these remedies, creates the
first hurdle in arbitrating IP disputes.

Lack of a Supreme Court precedent settling the issue

The Supreme Court of India has not conclusively settled the issue of
arbitrability of IP disputes. In the A. Ayyasamy vs A. Paramasivam & Ors 4
October, 2016 (Ayyasami Case), patents, trademarks and copyrights were listed
in the category of inarbitrable disputes. However, the main issue before the
court was of arbitrability of fraud. Thus, categorization of IP disputes as
inarbitrable was only obiter dictum. Therefore, this decision cannot be read to
bar arbitrability of IP disputes.
The Supreme Court in Booz-Allen & Hamilton Inc vs SBI Home Finance Ltd.
& Ors 15 April, 2011(Booz Allen Case) has stated that subject matter of
arbitration that involves only rights in personam are arbitrable in nature, but no
matter involving right in rem, for example, with validity proceedings, where the
effect of the award could potentially be to discontinue the existence or
enforceability of the monopoly, can be put before any private arbitral tribunal
for decisions. However, the Supreme Court also recognized that this rule isn't
infallible and that subordinate rights in personam that arise from rights in rem
might be subject to arbitration, for example, if the IP disputes arise from
commercial arrangements for the use of Intellectual Property, they are arbitrable
disputes.

Different positions of Indian High Courts

 In the Mundipharma Ag vs Wockhardt Ltd. 11 September, 1990(Mundipharma
Case), the issue was whether a claim of ‘copyright infringement’ was arbitrable.
The Delhi High court held the dispute to be inarbitrable given that infringement
of copyright is a statutory claim, having definite statutory remedies that are to
be granted exclusively by civil courts. This ruling thus seems to echo the second
test of arbitrability that bars arbitrability of disputes arising out of special
statutes which are reserved exclusively for civil courts.
Subsequently, in the SAIL Case [Suit No. 673/2014], a claim of ‘trademark
infringement’ was held to be inarbitrable by Bombay High Court reasoning,
“the rights to a trademark and remedies in connection therewith are matters in
rem and by their very nature not amenable to the jurisdiction of a private forum
chosen by the parties”. Accordingly, the dispute was held to be inarbitrable on
the basis of the first test of arbitrability that makes actions in rem inarbitrable.
The Eros International Media Limited vs. Telemax Links India Pvt Ltd 12
April, 2016(Eros Case) brought about the first winds of change to this negative
trend. The Respondent was granted a copyright license to distribute the
Petitioner’s films. The license contained an express negative covenant which
prohibited the use of copyrighted films upon termination of contract.
Respondent violated this term. Thus, the Petitioner initiated arbitration for
‘violation of the contractual covenant’ – a claim although sourced purely in
contract, still required an infringement of copyright to be established.
The Bombay High Court held for the first time that it would be too broad,
impractical and against all commercial sensibilities to hold that the entire realm
of IP disputes is inarbitrable. Accordingly, the case rightly noted the nuance that
that IP disputes arising purely out of contracts are arbitrable because they are
actions in personam, i.e. “one party seeking a specific particularized relief
against a particular defined party”.  The court went a step ahead to state that, a
finding of infringement had to be made for proving such a contractual breach
and that an arbitrator was empowered to make such a finding of infringement as
‘infringement’ can only be in personam. Thus, an infringement claim could now
be determined by arbitration.
The Court while deciding in favour of the defendant (Telemax), observed that
provisions of the Copyright Act and the (Indian) Trade Marks Act, 1999
(Trademarks Act) do not oust the jurisdiction of an arbitral panel, they only seek
to ensure that such actions are not to be brought before the Registrar or the
board. Further, where there are matters of commercial disputes and parties have
consciously decided to refer these disputes arising from that contract to a private
forum, no question arises of those disputes being non-arbitrable. Such actions
are always actions in personam, one party seeking a specific relief against a
particular defined party, not against the world at large. Eros’ action is in
personam as it is seeking a particular relief against a particular defined party.
The Delhi High Court in the matter of HDFC Bank v. Satpal Singh Bakshi
( 2012 ), observed that ‘all disputes relating to “right in personam” are arbitrable
and choice is given to the parties to choose this alternate forum. On the other
hand, those relating to “right in rem” having inherent public interest are not
arbitrable and the parties choice to choose forum of arbitration is ousted’.
Bombay High Court, in the case ofAddhar Mercantile Private Limited V. Shree
Jagdamba Agrico Exports Pvt. Ltd Arbitration Petition No. 910/2013 dated June
12, 2015, stated that Indian parties, choosing foreign law to govern their
arbitration agreement, could be considered to be opposing public policy of the
country.
However, in the case of Sason Power Ltd. V North America Coal Corporation
India Pvt. Ltd First Appeal No. 310/2015 dated September 11, 2015, the
Madhya Pradesh High Court held that two Indian parties may conduct
arbitration under foreign law.

Analysis and conclusion

In earlier cases of Munidpharma and SAIL, where arbitrability of IP disputes
was tested, the petitioners raised statutory claims of infringement of
copyright/trademark, and expected statutory or public law-based remedies in
return. Thus, the only gamut of IP disputes whose arbitrability had been tested
hitherto were those that were purely born out of IP statutes. However, IP
disputes are not merely statutory, but can be contractual as well.
With increase in quantum and complexity in commercial transactions, the
arbitrability of purely contractual IP disputes arose very recently in recently in
the EROS and case. This case have rightly not applied SAIL’s holding about the
inarbitrability of purely statutory I.P. claims to contractual IP claims.
Thus, as per the current position in India, there is no blanket bar on arbitrability
of IP disputes. Instead, arbitrability is determined on the basis of nature of
claims raised. Disputes of royalty, geographical area, marketing and other terms
of the license agreements, which are purely contractual, would be arbitrable.
Parties in India can and should freely arbitrate such disputes. However, a
dispute of validity/ownership of an IP right should be decided by the
court/assigned public administration, for the dispute would result in a
judgement affecting the general public’s right to use the respective asset.
The position of infringement claims is dependent upon each case. Statutory
infringement simpliciter would not be arbitrable in accordance with
the Mundipharma and SAIL cases; while infringement arising purely out of
contract will be arbitrable in accordance with EROS cases. However, often as is
the case, if a counter-claim about the validity of IP right is raised against an
infringement claim, the counter-claim needs to be resolved by the court for it
would then be an action in rem. Pending such resolution, the arbitration may be
stayed.
arbitrability of IP disputes in India is a budding scheme which needs legislative
support and a proper mechanism for better implementation. Though court
rulings are quite unclear in the present scenario still it can be inferred that IP
disputes are arbitrable, but still there is a long way ahead.
 Internship
Report
(Week 2)
Topic: 2015 Amendments To
The Arbitration And
Conciliation Act 1996
Relating To International
Arbitration
Introduction
In the two decades since India’s Arbitration and Conciliation Act 1996 (the
‘Act’) was enacted, both domestic and international arbitration in the country
have become protracted, unreliable and vulnerable to excessive interference by
the judiciary. After years of efforts to effect legislative reform, the Arbitration
and Conciliation (Amendment) Act 2015 (the ‘Amendment’) was notified in
India’s Official Gazette on 1 January 2016. The Amendment, which applies to
arbitration proceedings commenced after 23 October 2015, overhauls the 1996
Act. This article analyses key provisions of the Amendment and evaluates their
implications on India’s arbitration regime. The first section of the article
examines the major changes that impact the relationship between Indian courts
and international arbitrations seated outside India. The second section addresses
the reforms applicable to domestic and international arbitrations in which India
is the seat.

Court assistance to foreign-seated arbitrations and enforcement

of arbitral awards
The Amendment modifies provisions in both Part I and Part II of the Act. Part I
governs domestic arbitrations and ‘international commercial arbitrations’,
referring to proceedings seated in India involving an international element. Part
II of the Act addresses awards in foreign-seated arbitrations and the
enforcement of such awards under the New York Convention and Geneva
Convention. The Amendment provides parties in foreign-seated arbitrations
with access to two valuable means of support from Indian courts – interim relief
and assistance in obtaining evidence – that were previously foreclosed by the
Indian Supreme Court’s BALCO decision, which held Part I of the Act to be
inapplicable to arbitrations held outside India. The Amendment also narrows the
public policy ground on which an Indian court may refuse to enforce an arbitral
award. This section discusses the implications of each of these reforms.

As a preliminary matter, the amendment to section 2(1)(e) of the Act designates

India’s High Courts as the courts of original jurisdiction for all applications
arising out of international commercial arbitrations and applications to enforce
foreign arbitral awards. This is a prudent choice, as India’s High Courts are
often more familiar with and supportive of international arbitration than are the
lower courts of first instance.
Interim relief and assistance in obtaining evidence
The amendments to section 9 of the Act restore the authority of Indian courts to
grant interim measures in aid of international arbitrations seated outside India,
while also striving to curtail the potential for resulting delays or judicial
interference. If a court grants interim relief before an arbitration has
commenced, the arbitral proceedings must be commenced within 90 days of the
court’s order or within a time period specified by the court. Once the tribunal
has been constituted, Indian courts are precluded from accepting applications
for interim relief unless the tribunal is unable to provide an efficacious remedy.
The Amendment also extends the scope of section 27, providing for court
assistance in taking evidence in support of arbitration, to arbitrations seated
outside India.

Significantly, section 17 of the Amendment bestows upon arbitral tribunals the

authority to grant interim measures that are enforceable in Indian courts in the
same manner as court orders. This development aligns with the United Nations
Commission on International Trade Law (UNCITRAL) Model Law on
International Commercial Arbitration, and attempts to resolve the obstacles in
enforcing orders issued by tribunals encountered under the 1996 Act. However,
a recent ruling by the Kerala High Court illustrates the complications emerging
concerning interim relief granted by tribunals under the Amendment. In Pradeep
KN v Station House Officer, the court held that a tribunal could not pass an
order directing the advocate commissioner or receiver to enforce an interim
measure by the tribunal, which had ordered the repossession of a vehicle from
the respondent. The court acknowledged that the Amendment empowers the
tribunal to order interim relief, but concluded that the tribunal could not
exercise the authority vested with the court to ensure compliance with the
interim order. It remains to be seen whether other courts will adopt a similar
approach to the enforcement of interim measures granted by arbitral tribunals.

Enforcement of arbitral awards

Pursuant to sections 34(2)(b)(ii) and 48(2)(b) of the Act, courts may set aside or
refuse to enforce arbitral awards that conflict with the public policy of India.
However, the term ‘public policy’ was not defined in the 1996 Act, enabling
Indian courts to interpret this ground broadly and to engage in a review of the
merits of a dispute at the enforcement stage. The Amendment attempts to rectify
this situation by expressly limiting the public policy ground to three
circumstances:
  the making of the award was induced or affected by fraud, corruption or
the violation of certain provisions concerning conciliation and settlement
discussions;
 the award contravenes the ‘fundamental policy of Indian law’; or
 the award conflicts with ‘the most basic notions of morality and justice’.
The Amendment clarifies that a court’s determination of whether an award is in
contravention with the fundamental policy of Indian law shall not entail a
review on the merits of the dispute. Further, ‘patent illegality’ may only be
invoked as a basis to set aside an award rendered in a domestic arbitration, not
to refuse enforcement of an award in an international arbitration.

These limitations on the scope of the public policy ground for challenging
awards establish essential parameters for Indian courts and aim to reduce
judicial interference in the recognition and enforcement of international
arbitration awards. However, there remains some uncertainty within these
parameters, particularly with respect to how courts will interpret the terms
‘fundamental policy of Indian law’ and ‘basic notions of morality and justice’,
which are not defined in the Amendment.

Reforms applicable to domestic and international arbitrations

seated in India
The Amendment provides for extensive changes to the regime governing
domestic and international arbitrations in which India is the seat. This section
examines the major reforms, which span from the commencement of arbitration
to the enforcement or vacatur of the arbitral award.

Courts’ referral of disputes to arbitration and appointment of

arbitrators
Section 8(1) of the Amendment requires Indian courts to refer a dispute to
arbitration so long as there is prima facie evidence of a valid arbitration
agreement, even if a court has deemed the dispute to be non-arbitrable.
Consequently, courts may no longer engage in an extended inquiry into the
validity or scope of arbitration agreements, preserving tribunals’ kompetenz-
kompetenz to determine these issues.

Under the pre-Amendment regime, Indian courts also frequently inquired into
the validity of an arbitration agreement where they were tasked with appointing
arbitrators. The amendments to section 11 of the Act clarify that the power to
appoint arbitrators is not a judicial function, and that courts’ scrutiny at this
stage is limited to the determination of whether an arbitration agreement exists.
Courts shall endeavour to appoint an arbitrator within 60 days, and are
permitted to delegate the appointment power to another person or institution.

Ensuring arbitrator neutrality

The Amendment revises section 12 to incorporate disclosure requirements and
conflict of interest rules for potential arbitrators that largely mirror the IBA’s
Guidelines on Conflict of Interest in International Arbitration. Two new
schedules in the Amendment describe circumstances that give rise to ‘justifiable
doubts as to an arbitrator’s independence and impartiality’, or which render an
individual ineligible to be appointed as an arbitrator. These detailed
amendments provide clarity on the standards for arbitrator neutrality and have
already been applied. For example, the Delhi High Court recently relied upon
the new provisions to prohibit a party’s current or retired employee from being
appointed as an arbitrator.

Time limit for the tribunal to issue an award

In an ambitious attempt to ensure the speedy resolution of arbitral proceedings,
section 29A of the Amendment imposes a 12-month deadline for the tribunal to
issue an award, measured from the date on which the arbitrators received
written notice of their appointment. This period may be extended by agreement
of the parties for a maximum of six months. If the parties do not reach such an
agreement, a party must apply to the court for an extension of the time period
for the tribunal to issue an award, which will be granted only for ‘sufficient
cause’. If the award is not made within the specified or extended period, the
arbitrators’ mandate terminates. Tribunals that issue an award within six months
of the date of reference are entitled to additional fees as agreed upon by the
parties, whereas if the award is delayed beyond the deadline for reasons
attributable to the tribunal, the court may reduce the arbitrators’ fees by up to
five per cent per month of delay. While extending the period for the issuance of
an award, the court may replace one or all of the arbitrators without repeating
the proceedings. Courts may also impose cost penalties on any of the parties in
connection with delays in the arbitral proceedings.

Although these provisions reflect a vital effort to curb delays in India’s

arbitration regime, questions abound as to the efficacy and risks of the new
rules. The amendments restrict parties’ autonomy to determine the arbitral
procedure to be followed. By requiring parties to seek court approval for an
extension of time beyond 18 months, even if the parties agree to the extension,
these provisions also undermine the Amendment’s broader goal of preventing
unnecessary judicial intervention in arbitration. From a practical perspective,
tribunals will be hard-pressed to satisfy the 12-month time limit in complex
arbitrations. The new rules will be counterproductive if they lead tribunals to
sacrifice quality for speed, if courts are deluged by applications for an extension
of time or if the potential dissolution of the tribunal after the time period expires
compels parties to re-arbitrate their dispute. In addition, a disparity among
courts might develop as to what circumstances constitute ‘sufficient cause’ to
extend the time limit. The Amendment does not specify whether the tribunal
may be heard before a court decides whether to reduce the tribunal’s fees as part
of a party’s extension application, or if this determination is made upon the
parties’ submissions alone. Further, if a party requests that a court sanction the
tribunal for delay in issuing the award, an eventual award that is unfavourable to
that party may raise questions of potential bias on the part of the tribunal.

Introduction of fast-track arbitration

A more straightforward means of increasing the speed and efficiency of
arbitrations seated in India is the newly available fast-track procedure under
section 29B of the Amendment. Upon the parties’ agreement, a sole arbitrator
may decide the dispute on the basis of written pleadings and documents alone,
with an oral hearing held only if necessary or upon the parties’ agreement. The
arbitrator or tribunal must issue the award within six months of the date of
reference. The introduction of a fast-track arbitration option is an especially
welcome development to ensure the swift resolution of less complex disputes or
those in which a prompt conclusion is critical to the parties.

Expeditious disposal of applications to set aside or enforce awards

Following the amendments to section 34 of the Act, attempts to vacate an
arbitral award rendered in India on public policy grounds are subject to the
limitations discussed previously. The Amendment also endeavours to expedite
the process of challenging or enforcing awards in two notable ways.

First, the Amendment introduces a new subsection 34(6), which requires a court
to dispose of an application to set aside an award within one year of the date
notice was served on the other party. Secondly, the amended section 36
eliminates the 1996 Act’s provision for an automatic stay on enforcement of an
award when an application to set aside the award has been filed, which
previously delayed enforcement efforts and prompted frivolous challenges.
Under the Amendment, an arbitral award may be enforced while a set-aside
application is pending unless the party challenging the award obtains a court
order staying enforcement. Further, a party seeking to stay enforcement of an
award ordering the payment of money must supply the sum in dispute as a
deposit or furnish sufficient security in accordance with the provisions of the
Code of Civil Procedure 1908.

Conclusion
The Amendment represents a crucial effort to remedy many of the afflictions
that have beset India’s arbitration regime. Although the revisions are generally
promising, notable risks and uncertainties remain. Ongoing observation of how
parties, courts and tribunals apply the Amendment will enable evaluation of the
need for further reform.
 Internship
Report
(Week 2)
Topic: List of 10 Cases
Relating to Intellectual
Property Disputes
1.Hindustan Unilever Ltd v Reckitt Benckiser (India) Pvt Ltd
(Detol Case)
the Defendant, Reckitt Benckiser India Limited, manufacturer and supplier of
DETTOL liquid hand wash broadcasted an advertisement disparaging the
Plaintiff, Hindustan Unilever Limited’s Lifebuoy soap by depicting the same
trade name, trade dress of the plaintiff and their associated product. They also
stated that hands must be washed by using the DETTOL liquid hand wash
instead of a solid soap like that of the plaintiff’s which could be ineffective in
protecting oneself. The Defendant broadcasted a comparative advertisement by
comparing the attributes of their product with that of the Plaintiff’s. Aggrieved
by this act of the Defendant, the Plaintiff filed a case before the High Court of
Bombay for disparagement and infringement of their intellectual property.
The Plaintiff constituted the infringement suit after it came across the impugned
advertisement, which blatantly claimed that its soap bars are ineffective to ward
off infections and that a liquid soap must be used, particularly DETTOL liquid
hand wash to deal with COVID-19.
The Plaintiff pleaded that the malicious comparison of the products in the
impugned advertisement, could mislead people, and is disparaging their product
since the ad displayed a red soap bar similar to the registered Lifebuoy soap.
They also averred that Reckitt Benckiser blatantly copied HUL’s older Lifebuoy
ad where they had illustrated to public to use any soap not just Lifebuoy soap
for the purpose of cleansing hands. They finally pleaded that they are creating
awareness in line with WHO’s guidelines to encourage public to use any soap to
wash hands without any ulterior motive, whereas the Defendant is using the
pandemic as an excuse to propagate the soap bars are ineffective. Their plaint
read- “Nations across the world are communicating just the opposite and asking
people to wash their hands with soaps and water whereas the Defendant is
creating scare amongst the general public by falsely propagating that soaps are
useless by maligning the market leader in the soaps category. When the need of
the hour is for everyone to come together and work towards common good, the
Defendant’s action is irresponsible and against public morality.”
Therefore, the Plaintiff sought the help of the Court to restrain the Defendant
from broadcasting the impugned advertisement and claimed 10 million in
damages.
On the other hand, the Defendant contended that as per the WHO guidelines,
liquid soaps are recommended for washing hands only in the absence of soap
and water. Further contended that the Plaintiff could not prove the soap depicted
in the advertisement is that of the Plaintiff’s and is not a fit case of
infringement. Meanwhile, the defendant company has agreed to suspend the use
of the advert from March 22nd to April 21st as per Court’s order.
The Court held that the TV commercial of the Defendant for promotion of its
‘Dettol Liquid Hand Wash’ purported to disparage, denigrate the Plaintiff’s red
‘Lifebuoy soap’ in its distinctive shape. The displayed soap is identical and / or
deceptively similar to the registered trademark and design of the Plaintiff’s soap
‘Lifebuoy’ and the same is unambiguously understood and registered in the
minds of a viewer by a simple glance at the advertisement. The malice of the
Defendant becomes evident and obvious by the fact the Defendant in its
advertisement purports to show a soap, similar to LIFEBUOY, which does not
remove any germs and is an ineffective, useless and unreliable product.
Comparative advertisement can be described as any statement that portrays a
competitors’ similar/ identical goods in bad light while simultaneously
promoting the manufacturers own goods. This practice is not permitted and is
treated equivalent to disparagement, as laid down in various precedents.

2. Turmeric Patent, Neem Patent and the Traditional Knowledge

Digital Library
The Traditional Knowledge Digital Library is a pioneer initiative of the Indian
Government, and came to the fore due to the India's efforts on revocation of
patent on wound healing properties of turmeric at the USPTO and the patent
granted by the European Patent Office(EPO) on the antifungal properties of
neem. India's traditional medicinal knowledge exists in local languages such as
Sanskrit, Hindi, Arabic, Urdu, Tamil etc. is neither accessible nor
comprehensible for patent examiners at the international patent offices. It was
identified by the TKDL expert group in 2005 that annually around 2000 patents
were granted around the world erroneously concerning Indian system of
medicine by patent offices around the world. TKDL provides contents of the
ancient texts on Indian Systems of Medicines i.e. Ayurveda, Siddha, Unani and
Yoga, into five international languages, namely, English, Japanese, French,
German and Spanish, with the help of information technology tools and an
innovative classification system - Traditional Knowledge Resource
Classification (TKRC) Bio-piracy and Misappropriation of TK.
 Turmeric Case
Turmeric is a tropical herb grown in east India. Turmeric powder is widely
used in India as a medicine, a food ingredient and a dye to name a few of its
uses. For instance, it is used as a blood purifier, in treating the common cold,
and as an anti-parasitic for many skin infections. It is also used as an
essential ingredient in cooking many Indian dishes. In 1995, the United
States awarded patent on turmeric to University of Mississippi medical
center for wound healing property. The claimed subject matter was the use
of "turmeric powder and its administration", both oral as well as topical, for
wound healing. An exclusive right has been granted to sell and distribute.
The Indian Council for Scientific and Industrial Research (CSIR) had
objected to the patent granted and provided documented evidences of the
prior art to USPTO. Though it was a well known fact that the use of turmeric
was known in every household since ages in India, it was a herculean task to
find published information on the use of turmeric powder through oral as
well as topical route for wound healing. Due to extensive researches, 32
references were located in different languages namely Sanskrit, Urdu and
Hindi. Therefore, the USPTO revoked the patent, stating that the claims
made in the patent were obvious and anticipated, and agreeing that the use of
turmeric was an old art of healing wounds. Therefore, the Traditional
Knowledge that belonged to India was safeguarded in Turmeric case.
 Neem Case
The patent for Neem was first filed by W.R. Grace and the Department of
Agriculture, USA in European Patent Office. The said patent is a method of
controlling fungi on plants comprising of contacting the fungi with a Neem
oil formulation. A legal opposition has been filed by India against the grant
of the patent. The legal opposition to this patent was lodged by the New
Delhi-based Research Foundation for Science, Technology and Ecology
(RFSTE), in co-operation with the International Federation of Organic
Agriculture Movements (IFOAM) and Magda Aelvoet, former green
Member of the European Parliament (MEP)4. A tree legendary to India,
from its roots to its spreading crown, the Neem tree contains a number of
potent compounds, notably a chemical found in its seeds named azadirachtin.
It is used as an astringent in so many fields. The barks, leaves, flowers, seeds
of neem tree are used to treat a variety of diseases ranging from leprosy to
diabetes, skin disorders and ulcers. Neem twigs are used as antiseptic tooth
brushes since time immemorial. The opponents' submitted evidence of
ancient Indian ayurvedic texts that have described the hydrophobic extracts
of neem seeds were known and used for centuries in India, both in curing
dermatological diseases in humans and in protecting agricultural plants form
fungal infections. The EPO identified the lack of novelty, inventive step and
possibly form a relevant prior art and revoked the patent.

3. A&M Records, Inc. v. Napster, Inc.

Napster was an early peer-to-peer file sharing network which could be used
for transmitting various files, but which attained massive popularity as a way
to share music through .mp3s. Unsurprisingly, major record companies took
issue with large-scale distribution of their music for free, and sued Napster
for direct, contributory, and vicarious infringement of copyright in order to
protect their intellectual property.
The first issue the court dealt with was “fair use.” Fair use is a defense to
infringement codified at 17 U.S.C. § 107, which states that otherwise
infringing activities are permitted if pursued, “[F]or purposes such as
criticism, comment, news reporting, teaching … scholarship, or research.” In
order to determine whether the defense is met in a particular case, the statute
directs Courts to consider the following four factors:
 The purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
 The nature of the copyrighted work;
 The amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
 The effect of the use upon the potential market for or value of the
copyrighted work.
In Napster’s case, their platform allowed for “repeated and exploitative”
copying, which met the meaning of the first factor, even though no sales
were taking place. In addition, songs were found to be “close to the core” of
the types of creative works intended to be protected by copyright, and entire
songs were downloaded, setting the second and third factors against Napster.
Finally, the effect of the downloads was found to harm possible album sales,
which was the final nail in the coffin of Napster’s argument in favour of a
fair use defence.
As for the contributory infringement claim, Napster knew of widespread
infringement taking place on its system, and its policing efforts were quite
thin. Moreover, Napster materially contributed to the infringement, making
success on this claim likely for the appellants. Similarly, the court found that
Napster’s lack of effort to reduce infringement, combined with the fact that
the company financially benefited therefrom, made success on the vicarious
infringement claim likely as well.
As a result, the court ordered the creation of an appropriate injunction
consistent with its opinion against any of Napster’s future infringing
activities.
Metallica, et al. v. Napster, Inc. was a 2000 U.S. District Court for the
Northern District of California case that focused on copyright infringement,
racketeering, and unlawful use of digital audio interface devices. Metallica
vs. Napster, Inc. was the first case that involved an artist suing a peer-to-peer
file sharing ("P2P") software company
Metallica sought a minimum of $10 million in damages, at a rate of
$100,000 per illegally downloaded song.
In March 2001, the federal district court judge ruling over the case, Marilyn
Hall Patel, issued a preliminary injunction in Metallica's favor pending the
case's resolution. The injunction, which was substantially identical to one
ordered in the A&M case, ordered Napster to place a filter on the program
within 72 hours or be shut down. Napster was forced to search its system and
remove all copyrighted songs by Metallica.
Other artists including Dr. Dre, a number of record companies, and the
RIAA subsequently filed their own lawsuits which led to the termination of
an additional 230,142 Napster accounts.[13] On July 12, 2001 Napster
reached a settlement with Metallica and Dr. Dre after Bertelsmann AG BMG
became interested in purchasing the rights to Napster for $94 million. The
settlement required that Napster block music being shared from any artist
that did not want their music to be shared.[14] This $94 million deal was
blocked when Judge Peter Walsh ruled that the deal was tainted because
Napster Chief Executive Officer Konrad Hilbers, a former Bertelsmann
executive, had one foot in the Napster camp and one foot in the Bertelsmann
camp. Napster was forced to file for Chapter 7 (bankruptcy) and liquidate its
assets.

4. S. Victor Whitmill v. Warner Bros. Entertainment Inc.

Tattoo artist S. Victor Whitmill filed a copyright infringement lawsuit
against Warner Brothers. Whitmill alleged that the facial tattoo worn by
actor Ed Helms in The Hangover II, which duplicated the tattoo Whitmill
designed for boxing champ Mike Tyson, infringed on his copyright in the
tattoo. Specifically, Whitmill sought a preliminary injunction, which if
granted, would have halted the film’s release.
On May 24, 2011 Chief Judge Catherine D. Perry of the United States
District Court for the Eastern District of Missouri denied an injunction on the
movie’s release, but said Whitmill still had a case.
Warner Bros. contended that even if Whitmill owned a copyright to the
tattoo, it had a legal right to reproduce the tattoo in The Hangover II under
the fair use doctrine. Warner Bros. argued that the tattoo on Helm’s face in
The Hangover II was used to parody Tyson, who makes a personal
appearance in the film.
Judge Perry characterized Warner Bros. fair use argument as “silly.” She
found that “there was no parody” and the use of “the entire tattoo in its
original form, not in parody form” was a blatant copyright infringement.
However, before reaching trial, Warner Bros. and Whitmill “amicably”
settled the copyright infringement lawsuit during a mediation session.
Details of the settlement have not been released.

5.DR. DRE VS. A GYNECOLOGIST

In 2018, Draion M. Burch, a gynaecologist and the author of 20 Things You
May Not Know About the Vagina, trademarked the name Dr. Drai. No one
in the world had a problem with that, apart from Andre Romelle Young,
better known as Dr. Dre. The rapper tried to prevent the trademark, arguing
that the public would be confused at the similarity of the names. The U.S.
trademark office, however, sided with the real doctor, quite reasonably
arguing that the public would be unlikely to confuse a rapper with a
gynaecologist.

6. MGA Entertainment, Inc. v. Mattel, Inc. (July 22, 2010)

The problems between the two companies began in August 2000, when
Mattel employee Carter Bryant pitched his idea for the Bratz line of dolls
to Mattel’s competitor, MGA Entertainment. Upon discovering that
Bryant had conceived the Bratz idea while he was still employed by
Mattel, Mattel sued MGA and Bryant on a theory of copyright
infringement and breach of contract. In 2008, a jury in California
awarded Mattel $10 million in damages and the district court transferred
the Bratz trademark portfolio to Mattel.
The Ninth Circuit reversed the Central District of California, which had
given Mattel ownership rights to the Bratz doll brand after a jury found
that the designer who created the dolls was working for Mattel when he
conceived the idea. Along with ownership of the Bratz brand, the district
court also ordered Bratz manufacturer MGA to pay Mattel $10 million in
damages.
The Ninth Circuit noted that there was ambiguity in Bryant’s employment
contract in which he agreed to assign all of his “inventions” to Mattel
while he was employed by the company. Although it is possible that the
definition of “invention” could include an idea, such as the idea for the
Bratz dolls, the Ninth Circuit held that the text of the agreement does not
compel this conclusion. As a result, the district court erred in holding that
the agreement, by its terms, clearly covered ideas. According to Judge
Kozinski, ideas like Bryant’s conception of the Bratz dolls “are
ephemeral and often reflect bursts of inspiration that exist only in the
mind” therefore they may differ from tangible inventions.
Furthermore, the Ninth Circuit found that it would be unfair to revoke
MGA’s ownership rights to the Bratz dolls after the company had
invested significant time and money to develop and market the
incredibly successful brand. The district court’s decision was inequitable
because “Mattel acquired the fruit of MGA’s hard work, and not just the
appreciation in value of the ideas Mattel claims it owns.”
The Ninth Circuit’s ruling is significant because it may make it more
difficult for corporations to claim ownership of their employee’s ideas,
especially if those ideas are conceived in a private context. Mattel has
stated, however, that it is looking forward to a retrial of all of its claims
against MGA. Despite MGA’s apparent legal victory in the Ninth Circuit,
the battle between Barbie and the Bratz is far from over.

7. Adidas America, Inc et al v. Payless Shoesource, Inc, 2002

in Nov 2001, Adidas brought this action against Payless Shoesource for
trademark infringement and dilution, injury to business reputation, unfair
competition under the Trademark Act of 1946; anti-dilution laws of several
states, including that of Oregon; the fair business practices and unfair and
deceptive trade practices acts of several states, including the Oregon
Unlawful Trade Practices Act. Specifically the complaint alleges that
Payless, the defendant, is offering a shoe that bears the same THREE
STRIPES trademark and SUPERSTAR Trade Dress of Adidas and is likely
to deceive, confuse and mislead prospective purchasers and purchasers into
believing that footwear sold by defendant is manufactured, authorized by or
in some manner associated with Plaintiffs, which it is not. The likelihood of
confusion, mistake and deception engendered by Defendants
misappropriation of Plaintiff trademark and trade dress is causing irreparable
harm to the goodwill symbolized by the THREE STRIPE Mark and
SUPERSTAR Trade Dress and the reputation for quality that they embody.
Adidas trademark is very famous and non-functional and the three stripe
logo means to the public that it is adidas.
The jury found 267 different styles and colours of Payless shoes resembled
Adidas trademarks. In particular, the jury that sat before the district court
unanimously awarded Adidas U.S. subsidiary $30.6 million in actual
damages, $137 million in punitive damages and $137 million in Payless
profits for a total of $304.6 million.
8. Apple Computer Inc. v. Microsoft Corp.
Apple had previously agreed to license certain parts of its GUI to Microsoft
for use in Windows 1.0. When Microsoft made large improvements in
Windows 2.0, such as overlapping windows and other more Macintosh-like
GUI features, Apple filed suit, and then added additional claims to the suit
when Windows 3.0 debuted.
Apple claimed the "look and feel" of the Macintosh operating system, taken
as a whole, was protected by copyright, and that each individual element of
the interface (such as the existence of windows on the screen, the fact that
they are rectangular, the fact that they are resizable, the fact that they
overlap, and the fact that they have title bars) was not as important as all
these elements taken together. After long argument, the judge insisted on an
analysis of specific GUI elements that Apple claimed were infringements.
Apple came up with a list of 189 GUI elements; the judge decided that 179
of these elements had been licensed to Microsoft in the Windows 1.0
agreement, and most of the remaining 10 elements were not copyrightable—
either they were unoriginal to Apple, or they were the only possible way of
expressing a particular idea.
The lawsuit was filed in 1988 and lasted four years; the decision was
affirmed on appeal in 1994, and the appeal to the U.S. Supreme Court by
Apple was denied.

9. Apple Inc. v. Samsung Electronics Co.

Apple Inc and Samsung Electronics Co Ltd have finally settled the seven-
year-old patent dispute which was centred around whether Samsung copied
Apple’s iPhone’s design to gain the competitive edge in the market.
Apple and Samsung, both filed more than 50 patent cases over design and
utility features against each other in about 20 countries including South
Korea, Germany, Japan, Italy, Netherlands, England, France and Australia.
Timeline of the dispute between the companies :
2010: Apple had warned Samsung saying that it believes that the Korean
company is infringing upon Apple patents.
2011: The patent battle started in 2011 when Apple alleged Samsung of
“slavishly” copying the iPhone design.
Samsung then countered the allegation by suing Apple accusing the
company of infringing Samsung’s software patents. This went on and on,
and the multiple cases were filed on multiple patents.
2012: In favour of Apple a US jury ruled that Samsung must pay Apple more
than $1.05 billion for copying certain features of iPhone and iPad.
2013: In a retrial, the penalty of $1.05 was reduced to $600 million later due
to a “jury error”. In addition, the jury said that Samsung should pay Apple
over $290 million for infringing on the company’s patents.
2014: In one of its trial, a jury found both Apple and Samsung infringing
upon each other’s’ patents. For which Apple was awarded $120 million, and
Samsung with $160,000.
Meanwhile, both the companies decided to drop all the patent cases outside
the US.
2015: Samsung agreed to pay $548 million to Apple to settle the original
patent infringement filed 2011. By this time, none of the 16 infringing
smartphones was available in the market any longer.
In 2016: The case reached to US Supreme court, and Samsung challenged
lower court’s ruling that Samsung should pay 100% of the profits earned
from its smartphone business- close to $399 Million. However, Supreme
Court rejected the ruling and returned the case to lower courts saying that
paying all profits was wrong, as the infringed patents are only a small part of
the devices and not the full devices.
May 2018: US jury ordered Samsung to pay Apple $539 million in lieu of
the damages for “copying features of the original iPhone”.

10. Monkey selfie copyright dispute

On July 2011, British photographer David Slater travelled to a national park
in North Sulawesi, Indonesia, to take pictures of the local wildlife. Once
there he followed a troop of monkeys, trying to get a few unique pictures.
Mr. Slater claims that he was specifically looking for a very close shot of a
monkey’s face using a wide-angle lens, but the monkeys were obviously shy,
and didn’t allow him to get too close. While he managed to take a few
pictures, he didn’t get the shot he was looking for. He claims he placed his
camera on a tripod as the monkeys were curious about the equipment, and
clicked a few shots. The first pictures they took were of poor quality. He
claims he then changed the camera settings and that one monkey in
particular, was drawn to the reflection of the lens. The monkey then went on
to take a few pictures.
Mr. Slater claims that one of these images was an astounding, once-in-a-
lifetime shot that captured an expression of pure joy and self-awareness on
the monkey’s face. He imagined it appearing on the front of National
Geographic, so he sent it and a few others to his agent, who then circulated
them to a number of news sources. Eventually, it was first picked up and
published by the Daily Mail as a feature story, and then went viral.
In 2014, it triggered a dispute between Mr. Slater and Wikipedia when the
online encyclopaedia uploaded the picture and tagged it as being in the
public domain, reasoning that monkeys cannot own copyright.
When Mr. Slater tried to get the picture removed, Wikipedia did not relent,
and the so-called monkey selfie is still listed on that site as public domain
material.
Then, in September 2015, the campaign group People for the Ethical
Treatment of Animals (PETA) sued Mr. Slater in a California court on
behalf of the monkey (named Naruto in the suit) to assert copyright over the
picture, claiming that the selfie “resulted from a series of purposeful and
voluntary actions by Naruto, unaided by Mr. Slater, resulting in original
works of authorship not by Mr. Slater, but by Naruto.”
In January 2016, the trial judge dismissed the action on the basis that even if
Naruto had taken the pictures by “independent, autonomous action,” the suit
could not continue as animals do not have standing in a court of law and
therefore cannot sue for copyright infringement.
PETA appealed the dismissal, in the Court of Appeals of the 9th Circuit, and
those following the case were treated to the spectacle of US Federal Court
judges and lawyers making monkey jokes and discussing whether PETA had
identified the right monkey.
However, the drama was cut short as the parties reached a settlement out of
court. While the exact terms of the settlement are unknown, lawyers for
PETA have said that the deal includes a commitment from the photographer
to pay 25 percent of all future royalty revenue to the monkey sanctuary
where Naruto lives.
 Internship
Report
(Week 2)
Topic: List of 10 Cases
Relating to Intellectual
Property Disputes
Introduction
Over the years, with the greater realisation of the significance of efficient and
effective disaster management, the critical role of a comprehensive framework
of policy, along with legal and institutional arrangements in the management of
disasters have been emphasized by scholars in various parts of the world.
INDIA Happens to be one of those most disaster prone countries in the world
that are fairly deficient on having a comprehensive constitutional-legal
framework of disaster management. Interestingly, for obvious reasons,
management of successive devastating disasters, till recently, has predominantly
been based on discretionary trial and error approach of disaster managers in the
absence of any specific constitutional stipulation or dedicated statutory
enactment on the subject. In other words, owing to lack of categorical
constitutional-legal stipulations, the issue of disaster management was
conjecturally decided on the basis of its operational dynamics. Thus, for a long
time, disaster management was supposed to fall within the exclusive legislative
competence of the states with the central government having no or very limited
say in the matter. Clearly, this resulted in a situation where different states
evolved differing, and sometimes contradictory, policies and followed
haphazard approaches on managing disasters despite commonality of causes
and impacts of such disasters on the lives and assets of the people.
Two significant developments induced the move to reshuffle the matrix of
disaster management, and help in evolving a sound legal framework on the
subject. One, the declaration by the United Nations General Assembly to
observe the decade of 1990s as the International Decade for Natural Disaster
Reduction (IDNDR) initiated a mammoth global campaign towards
mainstreaming natural disasters in the broad socio-economic development
strategy of the countries. Being an ardent adherent to the United Nations (UN)
policies and programmes, India could not resist joining the global move for
prioritizing disaster administrative framework for full proof management of
disasters. Two, the dawn of the new millennium in India was marked by a series
of catastrophic natural disasters such as the Gujarat earthquake, 2001 and the
Indian Ocean Tsunami, 2004. Leaving behind them a sorry trail of massive
death and destruction, these disasters also exposed the inherent chinks and
inadequacies of the concerned state governments to effectively manage the
disasters of such a magnitude. Subsequently, the focus of attention was turned
towards the Central Government with a call for its active involvement in
evolving a comprehensive national legal framework for disaster management,
along with creation of a dedicated federal agency to guide and coordinate the
disaster management operations undertaken by states in times of calamitous
events.
The central government, which had already set up a High Powered Committee
(HPC)5 on disaster management in 1999 to commemorate the conclusion of the
IDNDR, started the process of drafting a federal law on the subject. Eventually,
on a subject that has been argued to be within the exclusive legislative
jurisdiction of the states, Parliament enacted the Disaster Management Act in
2005 that presently constitutes the core of legal framework of disaster
management in the country.

National Disaster Management Authority (NDMA)

The National Disaster Management Authority (NDMA) is the apex statutory
body for disaster management in India. It was formally constituted
on 27th September 2006, in accordance with the Disaster Management Act,
2005 with Prime Minister as its Chairperson and nine other members, and one
such member to be designated as Vice-Chairperson.
Its primary purpose is to coordinate response to natural or man-made disasters
and for capacity-building in disaster resiliency and crisis response. It is also
the apex body to lay down policies, plans and guidelines for Disaster
Management to ensure timely and effective response to disasters.
Its vision is to build a safer and disaster resilient India by a holistic, proactive,
technology driven and sustainable development strategy that involves all
stakeholders and fosters a culture of prevention, preparedness and mitigation

Evolution of NDMA
In recognition of the importance of Disaster Management as a national
priority, the Government of India set up a High-Powered Committee (HPC) in
August 1999 and a National Committee after the Gujarat earthquake
(2001), for making recommendations on the preparation of Disaster
Management plans and suggesting effective mitigation mechanisms.
The Tenth Five-Year Plan document also had, for the first time, a detailed
chapter on Disaster Management. The Twelfth Finance Commission was also
mandated to review the financial arrangements for Disaster Management.
On 23 December 2005, the Government of India enacted the Disaster
Management Act, which envisaged the creation of NDMA, headed by the
Prime Minister, and State Disaster Management Authorities (SDMAs) headed
by respective Chief Ministers, to spearhead and implement a holistic and
integrated approach to Disaster Management in India.
Functions and Responsibilities of NDMA
 Approve the National Disaster Plan
 Lay down policies on disaster management
 Approve plans prepared by Ministries or Departments of the Central
Government in accordance with National Plan
 Lay down guidelines to be followed by State Authorities in drawing up
State Plan
 Lay down guidelines to be followed by different Ministries or
Departments of Central Government for purpose of integrating
measures for disaster prevention or mitigation of its effects in their
development plans and projects
 Coordinate enforcement and implementation of disaster management
policy and plan
 Recommend provision of funds for the purpose of mitigation
 Provide such support to other countries affected by major disasters as
determined by Central Government
 Take such other measures for prevention of disasters or mitigation or
preparedness and capacity building for dealing with threatening disaster
situation or disaster as it may consider necessary
 Lay down broad policies and guidelines for the functioning of National
Institute of Disaster Management

Institutional Framework for Disaster Management in India

The Disaster Management Act, 2005 has provided the legal and institutional
framework for disaster management in India at the national, state and district
levels.
In the federal polity of India, the primary responsibility of Disaster
management vests with the state government. The central government lays
down the plans, policies and guidelines and provides technical, financial and
logistical support while the district administration carries out most of the
operations in collaboration with central and state level agencies.
National Executive Committee (NEC)
A National Executive Committee is constituted under Section 8 of DM Act,
2005 to assist the National Authority in the performance of its functions.
Union Home secretary is its ex-officio chairperson.
NEC has been given the responsibility to act as the coordinating and
monitoring body for disaster management, to prepare a National Plan,
monitor the implementation of National Policy etc.
National Institute of Disaster Management (NIDM)
NIDM has the mandate of human resource development and capacity
building for disaster management within the broad policies and guidelines
laid down by the NDMA.
National Disaster response force (NDRF)
NDRF is the specialized force for disaster response which works under the
overall supervision and control of NDMA.

State level Institutions

State Disaster Management Authority (SDMA)
Headed by Chief Minister of the respective state, SDMA lays down the
policies and plans for disaster management in the state.
It is responsible to coordinate the implementation of the state Plan,
recommend provision of funds for mitigation and preparedness measures and
review the developmental plans of the different departments of the state to
ensure integration of prevention, preparedness and mitigation measures.
State Executive Committee (SEC)
Headed by the Chief Secretary of the state, SEC has the responsibility for
coordinating and monitoring the implementation of the National Policy, the
National Plan and the State Plan as provided under the DM Act.

District level Institutions

District Disaster Management Authority (DDMA)

Section 25 of the DM Act provides for constitution of DDMA for every district
of a state.

The District Magistrate/ District Collector/Deputy Commissioner heads the

Authority as Chairperson besides an elected representative of the local authority
as Co-Chairperson except in the tribal areas where the Chief Executive Member
of the District Council of Autonomous District is designated as Co-Chairperson.
Further in district, where Zila Parishad exists, its Chairperson shall be the Co-
Chairperson of DDMA.
The District Authority is responsible for planning, coordination and
implementation of disaster management and to take such measures for disaster
management as provided in the guidelines.

The District Authority also has the power to examine the construction in any
area in the district to enforce the safety standards and to arrange for relief
measures and respond to the disaster at the district level.

Guidelines of NDMA

 Guidelines for Preparation of Action Plan - Prevention and Management

of Heat Wave
 Landslide Risk Management Strategy
 Guidelines on Disability Inclusive Disaster Risk Reduction
 Guidelines on Temporary Shelters for Disaster-Affected Families
 Guidelines on Prevention & Management of Thunderstorm &
Lightning/Squall/Dust/Hailstorm & Strong Winds
 Guidelines on Boat Safety
 Guidelines on Cultural Heritage Sites and Precincts
 Guidelines on Museums
 Guidelines on Minimum Standards of Relief
 Guidelines on Hospital Safety
 Guidelines on School Safety Policy
 Guidelines on Seismic Retrofitting of Deficient Buildings and Structures.
 Guidelines on Scaling, Type of Equipment and Training of Fire Services
 Guidelines on National Disaster Management Information and
Communication System
 Guidelines on Management of Drought
 Guidelines on Management of Urban Flooding
 Guidelines on Management of Dead in the Aftermath of Disaster
 Guidelines on Management of Tsunamis
 Guidelines on Incident Response System
 Guidelines on Psycho-Social Support and Mental Health Services in
Disasters
 Guidelines on Management of Chemical (Terrorism) Disasters
 Guidelines on Management of Landslides and Snow Avalanches
 Guidelines on Management of Nuclear and Radiological Emergencies
 Guidelines on Management of Biological Disasters
 Guidelines on Management of Cyclones
 Guidelines on Management of Floods
 Guidelines on Medical Preparedness and Mass Casualty Management
  Guidelines on Preparation of State Disaster Management Plans
 Guidelines on Chemical Disasters
 Guidelines on Management of Earthquakes

Achievements of Disaster Planning in India

Cyclone Fani, was one of the worst cyclones to hit India in last two decades.
Odisha’s preparedness, efficient early warning system, timely action, and well-
planned large-scale evacuation strategies helped 1.2 million people move
safely into nearly 4,000 cyclone shelters, thereby saving the lives of vulnerable
population in the sensitive coastal region.
The United Nations office for Disaster Risk Deduction (UNISDR) and other
organizations have hailed government and volunteer efforts that have ensured
the levels of destruction to keep minimum.
Similarly, Andhra Pradesh demonstrated an equally excellent evacuation
strategy for millions during cyclone Hudhud in 2014.
There has been significant reduction in mortality rate from the loss of over
10000 lives in 1999 during Super Cyclone in Odisha to a mortality of 16 in
2019 during cyclone Fani.
NDMA runs intensive earthquake and extreme weather events awareness
campaigns and provides guidelines regarding natural and man-made disasters.
NDMA has released Guidelines on School Safety, Hospital Safety and
Minimum Standards for Shelter, Food, Water, Sanitation and Medical Cover in
Relief Camps. The Authority worked closely with the States in mitigating the
impact of Heat Wave and the number of casualties came down drastically.
NDMA conducts mock exercises for better crisis management during a
disaster situation.

Shortcomings and challenges

 Questions were raised about the role of NDMA during Uttarakhand
Flooding in 2013, where it failed to timely inform people about the flash
floods and landslides. The post disaster relief response had been equally
poor. Experts blamed the poor planning of NDMA that lead to
unfinished projects for flood and landslide mitigation.
A CAG report noted that there were delays in completion of projects
under the flood management programmes. It noted the projects were not
taken up in an integrated manner and blamed NDMA for institutional
 failures for poor flood management.
It held that there were huge delays in completion of river management
activities and works related to border areas projects which were long-
term solutions for the flood problems of Assam, north Bihar and eastern
Uttar Pradesh.
 Devastations during Kerala Floods in 2018 and Chennai Floods in
2015 were eye-opening for the institutions regarding preparedness for
the disaster situation.
CAG report on 2015 Chennai Floods termed it to be a “man-made
disaster” and holds Tamil Nadu government responsible for the
catastrophe.
 The NDRF personnel lack sufficient training, equipment, facilities and
residential accommodation to tackle the crisis situation properly.
 Misutilization of Funds- Government constituted National Disaster
Response Fund and State Disaster Response Fund to deal with the
disasters.
Audit findings reveal that some states have mis-utilized funds for
expenditures that were not sanctioned for disaster management.
There was in a few cases significant delay in releasing funds.
Additionally, some States didn’t invest the funds thereby incurring huge
interest losses. This shows financial indiscipline in states management
of funds.

Way Forward
 Policy guidelines at the macro level are needed that would inform
and guide the preparation and implementation of disaster
management and development plans across sectors.
 Building in a culture of preparedness and mitigation is the need of
the hour.
 Operational guidelines should be framed for integrating disaster
management practices into development, and specific developmental
schemes for prevention and mitigation of disasters.
 Robust early warning systems coupled with effective response
plans at district, state and national levels should be put in place.
 Community, NGOs, CSOs and the media should be involved at all
stages of disaster management.
 Climate risk management should be addressed through adaptation
and mitigation. A dynamic policy is required to develop disaster-
resilient infrastructure through proper investment in research. ISRO,
NRSA, IMD and other institutions have to collectively provide
technological solutions to enhance capabilities to tackle disasters.
 India should learn from best global practices. Countries such as
Hong Kong, China, Japan and Korea have built a robust
infrastructure over the years to effectively tackle typhoons and other
disasters.
 Internship
Report
(Week 3)
Topic: Practical Side of
Section 144 CrPC
Introduction
Section 144 was first introduced to curb nationalist activities in 1861. Post-
independence, it has been mostly used to curb unlawful assemblies and
processions that are anticipated as a danger to public tranquillity. 
Section 144 of CrPC gives power to a District Magistrate, a sub- divisional
Magistrate or any other Executive Magistrate on behalf of the State Government
to issue an order to an individual or the general public in a particular place or
area to "abstain from a certain act" or "to take certain order with respect to
certain property in his possession or under his management".
This means the fundamental right of peaceful assembly provided under Article
19 of the Constitution is curtailed by the administration. Action under this
section is anticipatory, that is, it is utilized to restrict certain actions even before
they actually occur. 
Scope of Section 144 of the Criminal Procedure Code:
Action under this section is anticipatory, that is, it is utilized to restrict certain
actions even before they actually occur. Anticipatory restrictions are imposed
generally in cases of emergency, where there is an apprehended danger of some
event that has the potential to cause major public nuisance or damage to public
tranquillity.
Rationale for the application of Section 144: 
Orders under this section should be applied only when it is likely to prevent any
of the following events from happening:
 Annoyance: Annoyance may be either physical or mental. This section
covers both kinds of annoyance. Section 144 Criminal Procedure Code,
can be used even against newspapers in proper cases of incitements to
breaches of the peace or to commit nuisances, dangerous to life or health
or to annoy officers lawfully employed.
 Injury to Human life: A Magistrate has no jurisdiction to make an order
under this section merely for the protection of property. He has got to be
satisfied that the direction is likely to prevent injury or risk of injury to
human life or safety.
 Disturbance of public tranquillity: The section prohibits an act if it is
likely to disturb public tranquillity, etc. 
Conditions related to the issue of an order under Sec. 144:
The magistrate has to pass a written order which may be directed against a
particular individual, or to persons residing in a particular place or area, or to
the public generally when frequenting or visiting a particular place or area. 
In emergency cases, the magistrate can pass these orders without prior notice to
the individual against whom the order is directed.
The order can also be revoked or altered by the magistrate or the state
government on their own (Suo moto) or after an application by an aggrieved
person(s). 
Powers of administration under the provision:
The magistrate can direct any person to abstain from a certain act or to take a
certain order with respect to certain property in his possession or under his
management. This usually includes restrictions on movement, carrying arms
and from assembling unlawfully. 
It is generally believed that assembly of three or more people is prohibited
under Section 144. However, it can be used to restrict even a single individual.
The restriction could be imposed in a specific locality or in the entire town or
state.
All civilians are barred from carrying of weapons of any kind including lathis,
sharp-edged metallic objects or firearms in public places. 
Violation of Section 144 is liable for punishment up to three years in jail.
However, in most cases involving public protests, as is the case with protests
over the Citizenship Amendment Bill, the protesters are taken into custody by
police and released after a few hours. 
Section 144 is a temporary remedy, under which an order is valid only for a
period of two months. This order can be extended to a further period of six
months if the State Government deems it necessary to prevent a riot, affray, or
for the health and safety of citizens. 
Section 144 Vs. curfew:
In the areas where curfew is imposed, all public activity is barred. Civilian
traffic is also stopped. Curfew warrants much graver situation posing a bigger
danger of rioting and violence.
Communication blockade: 
Rumours, automated fake accounts, and chain letter scams on social media and
messaging often create serious security concerns that spark the shutdowns.
The rules for suspending telecommunication services, which include voice,
mobile internet, SMS, landline, fixed broadband, etc, are the Temporary
Suspension of Telecom Services (Public Emergency or Public Safety) Rules,
2017. 
Section 69A of the IT Act, along with the Information Technology (Procedure
and Safeguards for Blocking for Access of Information by Public) Rules,
2009 provide for a mechanism to block information from public access through
any computer resource by a direction from the Central Government or any
officer specially authorized in this behalf. 
The final order was given for such blocking to a Government agency, or
intermediary has to have its reasons recorded in writing as stated under Section
69A (1) of the IT Act.
Pros of section 144:
 Handling new age protest:
o Leaderless protests: Protests nowadays sometimes embrace entire
communities and tend more and more to be ‘leaderless’. This is
both a strength and weakness. Police are outnumbered by
mobilised crowds.
o Use of internet: New agitational methodologies are being
employed with the use of the ‘digital wave’. The police find
themselves severely handicapped in handling agitations, especially
those agitations sponsored by today’s newest ‘elite’, viz. the
middle class.
With little amendments, promulgation of Section 144, is helpful in
containing the new age protests,
 Tackling extremism: For example, in view of the prevailing security
situation in Jammu and Kashmir in recent days, the government has
imposed Section 144 of the Code of Criminal Procedure (CrPC) in the
state.
 Tackling climate emergency:  In 2019 Section 144 was imposed in Bihar,
to prevent deaths from Heat Waves.
Concerns:
 Absolute power: the words of the section are wide enough to give
absolute power to a magistrate that may be exercised unjustifiably. 
The immediate remedy against such an order is a revision application to
the magistrate himself. 
 Shortcomings of writ petition: An aggrieved individual can approach the
High Court by filing a writ petition if his fundamental rights are at stake.
At best, the courts can make sure that the procedure was correctly
followed, but they cannot substitute their judgment for that of the officer
on the ground.
 Not specifically tailored towards the kinds of dangers: Section 144(1)
confers powers for achieving certain goals, i.e. preventing any damage to
life or property, but frames these objectives as widely as possible given
the logic of emergencies.
However, there is nothing in the statute itself that says that the executive
officer can only do A, B, or C to, say, prevent any “disturbance of public
tranquillity”, where this did not suggest any active threats to life or
property. 
 Imposition of Section 144 to an entire state, as in UP, has also drawn
criticism since the security situation differs from area to area.
 Violation of fundamental rights:
o It may violate the right to assemble peaceably and without arms is
laid down in Article 19(1)(B) of the Constitution.
o Internet shutdowns: it may amount to a direct violation of
the fundamental right to freedom of speech guaranteed under
Article 19(1)(a) of the Constitution of India.
o An infringement of freedom 'to practice any profession, or to carry
on any occupation, trade or business' as laid down under Article
19(1)(g) of the Constitution: The heavy losses accrued by e-
commerce business due to untimely shut down of the internet
violates this right. This fundamental right can only be limited on
the grounds as laid under Article 19(6).
 Dilemma of choosing between digital economy and banning
internet: Over 16,000 hours of internet shutdowns cost the economy a
little over $3 billion over the last five years, according to a report by the
Indian Council for Research on International Economic Relations
(ICRIER).
Section 144 has often been used to block communication overriding
various safeguards in the IT Act.
Courts’ rulings on Section 144:
Proportionality criteria: The orders under this provision may lead to the
infringement of fundamental rights to freedom of speech and expression,
assembly and movement guaranteed under Articles 19(1)(a),(b) and (c) of the
Constitution. 
Hence, the orders under Section 144 have to meet the test of "reasonable
restrictions" as per Article 19.
Puttaswamy case (2017), the SC laid down a four-fold test to determine
proportionality:
 A measure restricting a right must have a legitimate goal (legitimate goal
stage).
 It must be a suitable means of furthering this goal (suitability or rationale
connection stage).
 There must not be any less restrictive but equally effective alternative
(necessity stage).
 The measure must not have a disproportionate impact on the rights holder
(balancing stage).
In Babulal Parate v State of Maharashtra (1961) case, the SC held that the
power can be used even in anticipation of danger. But it should be based on
sufficient materials which show that immediate prevention of certain acts is
necessary to preserve public safety.
In Madhu Limaye v SDM (1970) case, the SC upheld the Constitutionality of
Section 144 on the reasoning that it constituted a reasonable restriction 'in the
interest of public order'. However, the Court added that this power should be
exercised only in emergent and urgent situations
Upholding the constitutionality of the law: It ruled that the restrictions imposed
through Section 144 cannot be held to be violative of the right to freedom of
speech and expression, which is a fundamental right because it falls under the
“reasonable restrictions” under Article 19(2) of the Constitution. The fact that
the “law may be abused” is no reason to strike it down.
Powers subject to judicial review: A seven-judge Bench of the Supreme Court
said that the power of a magistrate under Section 144 “is not an ordinary power
flowing from administration but a power used in a judicial manner and which
can stand further judicial review”. 
Justifying blanket prohibitory orders: A general order may be necessary when
the number of persons is so large that the distinction between them and the
general public cannot be made,” the court said.
‘Urgency’ criteria: The Supreme Court held that the scope of Section 144
extends to making an order which is either prohibitory or mandatory in nature
and 'urgency' is the only criteria that can justify an order under this Section. 
Ramlila Maidan case 2012: The Supreme Court came down heavily on the
government for imposing Section 144 against a sleeping crowd in Ramlila
Maidan. It said that such a provision can be used only in grave circumstances
for the maintenance of public peace. 
As explained in In Re Ramlila Incident Case, the necessary prerequisites of the
order under Section 144 are:
Such an order can be passed against an individual or persons residing in a
particular place or area or even against the public in general. 
Such an order can remain in force, not in excess of two months. 
The Government has the power to revoke such an order and wherever any
person moves the Government for revoking such an order, the State
Government is empowered to pass an appropriate order, after hearing the person
in accordance with Sub-section (3) of Section 144 Cr.P.C. 
Out of the aforestated requirements, the requirements of existence of sufficient
ground and need for immediate prevention or speedy remedy is of prime
significance.
Way forward:
The police on their part need to realise that existing laws and procedures
notwithstanding, merely putting faith and focus on strength is not likely to
succeed. 
Improving intelligence: Various reports have recommended revamping
intelligence and introduction of new methods to overcome the lacunae in
intelligence collection. 
The police should strengthen their ‘contextual’ intelligence which
involves anticipating the meaning of ‘street power’ – enhanced by information
technology and the presence of flash mobs. 
Employing smart tactics which are the imaginative combination of techniques
allowing police to move into unexpected places, at unexpected times, with
unexpected speed, deception, and surprise using their sense-making abilities and
adaptability.
Employing Section 133: While Section 144 is often referred to in cases
pertaining to threats to public order, Section 133 is deemed the first option to
consider when dealing with cases of unlawful nuisance. The fundamental
difference between the two sections is that an order affecting Section 133 can be
passed only after a police report is received by the magistrate, while the
decision to impose Section 144 can be taken without the police report.
Reducing internet shutdowns: ICRIER has recommended several remedies,
including official communication and data about shutdowns and policies, as
well as restricting the use of blanket shutdowns.
Following Shreya Singhal v. Union of India case guidelines: While highlighting
the subtle difference between discussion, advocacy, and incitement, the
Supreme Court held that only speech that may lead to 'incitement' can
justifiably be curtailed under Article 19(2).
Section 144 is a useful tool to help deal with emergencies. However, absence of
any narrow tailoring of wide executive powers with specific objectives, coupled
with very limited judicial oversight over the executive branch, makes it ripe for
abuse and misuse.
 Webinar Report 1
Date: 28th May 2020
Topic:” Landmark Judgments that
Changed Paradigms in the Society with
Reference to Part III of the Indian
Constitution.”
Speakers: Hon’ble Judge of HC of
Rajasthan, Dr. Justice Pushpendra
Singh Bhati;
Mr. Aman Lekhi, Solicitor General of
India & Sr. Advocate of SC;
Prof (Dr.) Sanjeev Kumar Sharma, Vice
Chancellor Mahatma Gandhi
University, Bihar;
Mr. Siddharth, Founder and Director of
PSL LEGAL, New Delhi
1. Personal Liberty:
Procedure Established by Law:
A.K.Gopalan VS. State of Madras ,[1950] SCR 88
 The petitioner, detained under the Preventive Detention Act
challenged the legality of detention under Art. 32 of the Constitution
on the ground that the said Act contravened Arts. 13, 19, 21 and 22 of
the Constitution and was, therefore, ultra vires.
 The S.C. held- that Article 22 was a self-contained Code and if
personal liberty is taken away by the State in accordance with the
procedure established by law i.e. if the detention was as per the
procedure established by law, then it cannot be said that the law was
violative of provisions contained in Articles 14 ,19 and 21 of the
Constitution.
Maneka Gandhi v. Union of India (AIR 1978 SC 597) (1978).
• The view expressed in A. K. Gopalan’s case was revisited in this case after
about 28 years.
• The main issues were whether the right to go abroad is a part of the right
to personal liberty under Article 21 and whether the Passport Act prescribes
a ‘procedure’ as required by Article 21 of the Constitution.
• The SC held that the right to go abroad is a part of the right to personal
liberty under Article 21.
• The SC also ruled that the mere existence of an enabling law was not
enough to restrain personal liberty. “The procedure prescribed by law has to
be fair, just and reasonable, not fanciful, oppressive or arbitrary. ”
LIFE AND LIBERTY:
ADM Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521
• A Constitution Bench by a majority of 4:1, ruled that while a proclamation
of emergency is in operation, the right to move High Courts under Article
226 for Habeas Corpus challenging illegal detention by State will stand
suspended. The apex Court said “ . .....If extraordinary powers are given,
they are given because the Emergency is extraordinary, and are limited to the
period of the Emergency.”
• The judgment is more recognised for the dissenting opinion of Justice HR
Khanna in which he said - "detention without trial is an anathema to all those
who love personal liberty... A dissent is an appeal to the brooding spirit of
the law, to the intelligence of a future day, when a later decision may
possibly correct the error into which the dissenting Judge believes the court
to have been betrayed".
In Justice K.S. Puttaswamy (retd.) Vs. Union of India and ors. , (2017)
10 SCC 1 para 121 (Nine Judges),
 the apex Court overruling the majority view expressed in ADM
Jabalpur v. Shivkant Shukla (1976) 2 SCC 521, held-
 “The view taken by Justice Khanna must be accepted, and accepted in
reverence for the strength of its thoughts and the courage of its
convictions...”
 Sanjay Kishan Kaul, J. in his concurring judgment said: “...the ADM
Jabalpur case which was an aberration in the constitutional
jurisprudence of our country and the desirability of burying the
majority opinion ten fathom deep, with no chance of resurrection.”

2. Amendability of Fundamental Rights

Shankari Prasad v. Union of India , [1952] SCR 89 (1951)
 This case dealt with the amenability of Fundamental Rights (the First
Amendment’s validity was challenged).
 The SC Court held that the power conferred on Parliament by Art. 368
to amend is a very wide power and includes the power to take away
the fundamental rights guaranteed by Part III. , and
 that in the context of Art. 13 (2), "law" must be taken to mean rules or
regulations made in exercise of ordinary legislative power and not
amendments to the constitution made in the exercise of constituent
power with the result that Art. 13(2) does not affect amendments made
under Art. 368.
 This view was reiterated in Sajjan Singh vs State Of Rajasthan, AIR
1965 SC 845

In I. C. Golak Nath v. State of Punjab, AIR 1967 SC 1643

 The questions in this case were whether amendment is a law within
the meaning of Art.13(2) of the Constitution of India, and
  whether Fundamental Rights can be amended by the Parliament?
 Overruling Sajjan Singh by a majority of six to five the Supreme
Court held that amendment under Article 368 is “law” within the
meaning of Article 13(2);
 It further ruled that Legislature does not enjoy the power to amend
Part III of the Constitution to take away or abridge fundamental rights.

3. The Doctrine of Basic Structure

Kesavananda Bharati Sripadagalavaru v. State of Kerala, AIR 1973 SC
1461 (decided by a Bench of 13 Judges)
 The most celebrated case in the history of Indian Constitutional
law in which the apex Court dealt with the issue - whether the
Parliament can amend any part of the Constitution and what was
the limit to that power?
 The Bench by a majority of 7-6 Overruled the proposition of law
propounded in I. C. Golak Nath v. State of Punjab, AIR 1967 SC
1643 and held that Constitutional amendment is not “law” within
the meaning of Article 13 and that although no part of the
Constitution, including Part III comprising of fundamental rights,
was beyond the Parliament’s amending power, the “basic structure
of the Constitution” could not be abrogated even by a
constitutional amendment.”
 As regards the basic structure, the Court held that it would be
decided from case to case .
In Indira Nehru Gandhi v. Raj Narain 1975 SC 2299
 The validity of 39th Constitution amendment enacted in 1975
which (Article 39-A ) sought to place the election of the President,
the Vice President, the Prime Minister and the Speaker of the Lok
Sabha beyond the scrutiny of the constitutional courts was
challenged in this case.
 The S.C. resorting to the theory of basic structure of the
Constitution struck down Clause (4) of Article 329-A on the
grounds that it was beyond the Parliament’s amending power as it
destroyed the basic structure of the Constitution.

In Minerva Mills case, (1980) AIR 1980 SC 1789

 Validity of Constitution (42nd Amendment) Act, 1976 ,which inter alia
provided for exclusion of judicial review of constitutional amendments
 and expressly conferred unlimited amendment power to the Parliament,
was challenged on the ground that they are violative of the ‘basic
structure’ of the Constitution.
 The Court by a majority of 4 to 1 struck down clauses (4) and (5) of
article 368 holding that they violated the basic structure of the
Constitution.
 he Court ruled that Parliament’s power to make Constitutional
amendments is limited which itself is a basic feature of the Constitution.
The judgement makes it clear that the Constitution, and not the
Parliament is supreme.

4. Public Interest Litigation

In Mumbai Kamgar Sabha, Bombay ,AIR 1976 SC 1455
 This case is considered to be the foundation of public interest litigation in
India.
 In this case Justice V.R. Krishna Iyer speaking for the Court held that-
“Procedural prescriptions are handmaids, not mistresses, of justice... . Our
adjectival branch of jurisprudence, by and large, deals not with
sophisticated litigants but the rural poor, the urban lay and the weaker
societal segments for whom law will be an added terror.
 • Test litigations, representative actions, pro bono publico and like
broadened forms of legal proceedings are in keeping with the current
accent on justice to the common man and a necessary disincentive to
those who wish to bypass the real issues on the merits by suspect reliance
on peripheral procedural, shortcomings.

Sunil Batra v. Delhi Administration & Others, AIR 1978 SC 1675

 A landmark decision on prison reforms ,
 in this case the apex Court held that a convict is entitled to the precious
right guaranteed by Art. 21 that he shall not be deprived of his life or
personal liberty except according to the procedure established by law.
 The Court ruled that fundamental rights do not flee the person as he
enters the prison although they may suffer shrinkage necessitated by
incarceration. Our Constitutional culture has now crystallised in favour of
prison justice and judicial jurisdiction.
 The intervention of social welfare organisations in litigative processes
pregnant with wider implications is a healthy mediation between the
people and the rule of law.
 The Court issued a number of direction for improving the conditions of
jail inmates

5. Human Rights
Art.21- Right to Die With Dignity
Aruna Shanbaug Case (2011)
 In this case the victim of rape continued to be in persistent
vegetative state (PVS) for a period of 36 years. This case triggered
the debate on need to change euthanasia laws.
 In a writ petition under Article 32 it was prayed that the hospital
where she is laying for last 36 years be directed to stop the life
support system. • The Supreme Court ruled that individuals had a
right to die with dignity
 Issuing guidelines regarding passive euthanasia the court ruled that
a decision to discontinue life support can be taken either by the
parents or the spouse or other close relatives, or in the absence of
any of them, even by a person or a body of persons acting as a next
friend or in their absence by the doctors attending the patient,
subject to approval of the High Court. 1
In Common Cause (A Regd. Society) vs. Union Of India on 9 March,
2018 -Right to Die With Dignity
 The apex Court held that right to life and liberty as envisaged
under Article 21 of the Constitution encompasses within its sphere
individual dignity and that the right to live with dignity also
includes the smoothening of the process of dying in case of a
terminally ill patient or a person in PVS with no hope of recovery,
and
 that a competent person who has come of age has the right to
refuse specific treatment or all treatment or opt for an alternative
treatment, even if such decision entails a risk of death.
 Detailed directions issued by the apex Court in this regard.

Human Rights: Recognition of Transgender Persons as a Third

Gender
National Legal Services Authority vs Union Of India & Ors. (2014)
  Gender identity is integral to the dignity of an individual and is at
the core of “personal autonomy” and “self-determination” and
Article 14, 19 and 21 of the Constitution within their sweep include
transgender and are not as such limited to male or female gender.
 Eunuchs, therefore, have to be considered as Third Gender, over
and above binary genders under our Constitution and the laws.
 The apex Court directed the Centre and the State Governments to
take steps to treat them as socially and educationally backward
classes of citizens and extend all kinds of reservation in cases of
admission in educational institutions and for public appointments. (
W.P.(civil) no.400 of 2012 dt.15.04.14)

Human Rights: Right to Privacy a Fundamental Right under Article

21
Justice K.S. Puttaswamy (retd.) Vs. Union of India and ors. , (2017)
10 SCC 1 (2017)
 In this case , popularly known as Aadhaar Case, the SC held that
privacy is a constitutionally protected right which emerges
primarily from the guarantee of life and personal liberty in Article
21 of the Constitution.
 Further held that elements of privacy also arise in varying
contexts from the other facets of freedom and dignity recognised
and guaranteed by the fundamental rights contained in Part III .

Human Rights: Decriminalising Homosexuality

Navtej Singh Johar vs. Union Of India , (2018) 10 SCC 1(2018)
 A five-judge SC bench gave a historic, unanimous decision on
Section 377 of the Indian Penal Code, decriminalising
homosexuality.
 The S.C ruled that sexual orientation is an intrinsic element of
liberty, dignity, privacy, individual autonomy and equality and that
intimacy between consenting adults of the same-sex is beyond the
legitimate interests of the state.
  Section 377 was the product of the Victorian era, with its attendant
moral values. Victorian morality must give way to constitutional
morality.
 That insofar as Section 377 criminalises consensual sexual acts of
adults (i.e. persons above the age of 18 years who are competent to
consent) in private, is violative of Articles 14, 15, 19, and 21 of the
Constitution. 2

Gender Justice: Triple Talaq Unconstitutional

Shayara Bano vs Union Of India And Ors. Vs. Union of India 22
August, 2017 (5 Judge)
 The Court held by a majority of 3:2 that triple Talaq is manifestly
arbitrary in the sense that the marital tie can be broken
capriciously and whimsically by a Muslim man without any
attempt at reconciliation so as to save it. This form of Talaq must,
therefore, be held to be violative of the fundamental right
contained under Article 14 of the Constitution of India.

Gender Justice: Entry of Females in Sabrimala Temple

Indian Young Lawyers Association vs. The State Of Kerala on 28
September, 2018:
 In Sabrimala Temple- a Hindu pilgrimage centre in Kerala, female
devotees between the age group of 10 to 50 years were denied
entry on the basis of certain custom and usage.
 A Constitution bench of the apex Court led by CJI Dipak Misra
overruled the Kerala High Court’s 27-year-old decision that had
upheld the restriction on entry of women into the temple.
 The court said, “The dualism that persists in religion by glorifying
and venerating women as goddesses on one hand and by imposing
rigorous sanctions on the other hand in matters of devotion has to
be abandoned. Such a dualistic approach and an entrenched
mindset results in indignity to women and the degradation of their
status.”

Gender Justice :Sec.497 IPC Unconstitutional

 Joseph Shine vs. Union Of India , (2019) 3 SCC 39
 The apex Court struck down Section 497 of IPC which
criminalised adultery holding that it is violative of Articles 14, 15
and 21 of the Constitution.
 The Supreme Court called the law unconstitutional because it
“treats a husband as the master”.
 The Court held- “Any provision of law affecting individual dignity
and equality of women invites the wrath of the Constitution. It’s
time to say that the husband is not the master of the wife. Legal
sovereignty of one sex over other sex is wrong”. 2

Constitutional Democracy: Election Reforms Right Not to Vote-

NOTA Case
 The S.C. dealing with the issue of election reforms held that
democracy and free elections are part of the basic structure of the
Constitution.
 In a parliamentary democracy A positive ‘right not to vote’ is a
part of voter’s right to expression under Article 19(1)(a) and it has
to be recognized and given effect to in the same manner as ‘right
to vote’.
 The only way by which it can be made effectual is by providing a
button in the EVMs to express that right. Therefore, the voter must
be given an opportunity to choose none of the above (NOTA)
button, which will indeed compel the political parties to nominate
a sound candidate.

6. Environmental Protection:

In MC Mehta v. Union of India, AIR 1987 SC 1086 (1986)

 Popularly known as the ‘Oleum gas leak case’, the Supreme Court
disapproved the ‘Strict Liability’ test enunciated in the English
case of Rylands v. Fletcher for deciding the liability of an
enterprise engaged in a hazardous or inherently dangerous activity
and propounded the principle of ‘Absolute Liability’.
 The Court held that in the case of industries engaged in hazardous
or inherently dangerous activities, absolute liability was to be
followed.
  It also said that the amount of compensation must be correlated to
the magnitude and capacity of the industry so that it will be a
deterrent.

7. Social Justice: 50% Threshold in Reservations and Exclusion of

‘Creamy Layer’.
Indra Sawhney etc. Vs. Union of India and others, AIR 1993 SC 477
(1992) (9 Judges Bench)
 The apex Court examined the scope of Article 16(4) of the
Constitution, which provides for the reservation of jobs in favour
of backward classes and held that ‘backward classes’ mentioned in
Article 16(4) can be identified only on the basis of caste and not
economic conditions.
 It upheld the constitutional validity of 27% reservation for the
OBCs with certain conditions.
 The propositions of 50% threshold in reservations, the bar against
reservations in certain types of posts and the exclusion of ‘creamy
layer’ were propounded in this case
 Webinar Report 2
Date: 10 June 2020

Topic: “Criminal Law”

Speakers: Advocate Pramod Kumar

Dubey
Introduction
In case of every crime, Firstly there is an intention to commit it, Secondly,
preparation to commit it, Thirdly, attempt to commit it and Lastly the
accomplishment.

Stages of Crime

1. Intention

The intention is the first stage of any offense and is known as the mental or
psycho stage. In this stage, the offender decides the motive and decides his course
or direction towards the offense. The ironical fact about this stage is that the law
cannot punish the person just for having an intention to do any illegal act.

Moreover, being the mental concept, it is very difficult to judge if a person

possesses any such intention. Just by having an intention will not constitute an
offense.

2. Preparation

Preparation is the second stage amongst the stages of crime. It means to arrange
the necessary resources for the execution of the intentional criminal act. Intention
and preparation alone are not enough to constitute a crime. Preparation is not
punishable because in many cases the prosecution fails to prove that the
preparations in the question are for the execution of the particular crime.

3. Attempt

An attempt is a direct movement towards the execution of a crime after the

preparation of the plan. According to law, a person is guilty of an attempt to
commit an offense if he/she does an act which is more than simply preparatory to
the commission of the offense. Moreover, a person is guilty of attempting to
commit an offense even though the facts are such that the execution of the offense
seems to be impossible.

4. Accomplishment

The last stage in the commission of an offense is its successful completion. If the
accused becomes successful in his attempt to commit the crime, he will be guilty
of the complete offense. Moreover, if his attempt is unsuccessful he will be guilty
of his attempt.

Procedure for Administration of Criminal Justice

The procedure of administration of criminal justice in our country is divided
into three stages namely investigation, inquiry and trial. The Criminal procedure
code 1973 provides for the procedure to be followed in investigation, inquiry
and trial, for every offence under the Indian Penal Code or under any other law.

The three stages: namely investigation, inquiry and trial are as follows

1. Investigation

Investigation is a preliminary stage conducted by the police and usually

starts after the recording of a First Information Report (FIR) in the police
station. Section 154 provides that any information received in the police
station in respect of a cognizable offence shall be reduced into writing, got
signed by the informant and entered in the concerned register. Section 156(1)
requires the concerned officer to investigate the facts and circumstances of
such a case without any order from the Magistrate in this behalf. If
Magistrate receives information about commission of a cognizable offence
he can order an investigation. In such cases citizen is spared the trouble and
expense of investigating and prosecuting the case.

Section 157 of the code provides for the procedure for investigation which is
as; if the officer-in-charge of a police station suspects the commission of an
offence, from statement of FIR or when the magistrate directs or otherwise,
the officer or any subordinate officer is duty-bound to proceed to the spot to
investigate facts and circumstances of the case and if necessary, takes
measures for the discovery and arrest of the offender. It primarily consists of
ascertaining facts and circumstances of the case, includes all the efforts of a
police officer for collection of evidence: proceeding to the spot; ascertaining
facts and circumstances; discovery and arrest of the suspected offender;
collection of evidence relating to the commission of offence, which may
consist of the examination of various persons including the accused and
taking of their statements in writing and the search of places or seizure of
things considered necessary for the investigation and to be produced at the
trial; formation of opinion as to whether on the basis of the material
collected there is a case to place the accused before a magistrate for trial and
if so, taking the necessary steps for filing the charge-sheet. The investigation
procedure ends with a submission of a police report to the magistrate under
section 173 of the code this report is basically a conclusion which an
investigation officer draws on the basis of evidence collected.
2. Inquiry

Inquiry dealt under sections 177-189 of the code which consists of a

magistrate, either on receiving a police report or upon a complaint by any
other person, being satisfied of the facts.

3. Trial

Trial is the judicial adjudication of a person’s guilt or innocence. Under the

Crpc, criminal trials have been categorized into three divisions having
different procedures, called warrant, summons and summary trials.

Section 2(x) of the Crpc defines Warrant-case i.e. “Warrant-case” means a

case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years; A warrant case relates to
offences punishable with death, imprisonment for life or imprisonment for a
term exceeding two years. Trial of warrant cases is dealt under sections 238-
250 of the code.

The Crpc provides for two types of procedure for the trial of warrant cases
i.e. By a magistrate, triable by a magistrate, viz., those instituted upon a
police report and those instituted upon complaint. In respect of cases
instituted on police report, it provides for the magistrate to discharge the
accused upon consideration of the police report and documents sent with it.
In respect of the cases instituted otherwise than on police report, the
magistrate hears the prosecution and takes the evidence. If there is no case,
the accused is discharged. If the accused is not discharged, the magistrate
holds regular trial after framing the charge, etc. In respect of offences
punishable with death, life imprisonment or imprisonment for a term
exceeding seven years, the trial is conducted in a session’s court after being
committed or forwarded to the court by a magistrate.

A summons case means a case relating to an offence not being a warrant

case, implying all cases relating to offences punishable with imprisonment
not exceeding two years. In respect of summons cases, there is no need to
frame a charge. The court gives substance of the accusation, which is called
“notice”, to the accused when the person appears in pursuance to the
summons. The court has the power to convert a summons case into a warrant
case, if the magistrate thinks that it is in the interest of justice. The
 provisions regarding the procedure to be followed in summons case is dealt
under section 251-259 of the Crpc.

Summary trials are dealt under section 260 – 265 of the Crpc the procedure
is as provided; the high court may empower magistrates of first class to try
certain offences in a summary way where as second class magistrates can
summarily try an offence only if it is punishable only with a fine or
imprisonment for a term not exceeding six months. In a summary trial no
sentence of imprisonment for a term exceeding three months can be passed
in any conviction. The particulars of the summary trial are entered in the
record of the court and in every case which is tried summarily in which the
accused does not plead guilty the magistrate records the substance of the
evidence and a judgment containing a brief statement of the reasons for the
finding.

The common features of the trials in all three of the aforementioned procedures
may be roughly broken into the following distinct stages:

1. Framing of charge or giving of notice.

This is the beginning of a trial. At this stage, the judge is required to weigh the
evidence for the purpose of finding out whether or not a prima facie case against
the accused has been made out. In case the material placed before the court
discloses grave suspicion against the accused that has not been properly
explained, the court frames the charge and proceeds with the trial. If, on the
contrary, upon consideration of the record of the case and documents submitted
and after hearing the accused person and the prosecution in this behalf, the
judge considers that there is not sufficient ground for proceeding, the judge
discharges the accused and records reasons for doing so.

The words “not sufficient ground for proceeding against the accused” mean that
the judge is required to apply a judicial mind in order to determine whether a
case for trial has been made out by the prosecution. It may be better understood
by the proposition that whereas a strong suspicion may not take the place of
proof at the trial stage, yet it may be sufficient for the satisfaction of the court in
order to frame a charge against the accused person.

The charge is read over and explained to the accused. If pleading guilty, the
judge shall record the plea and may, with discretion convict him however if the
accused pleads not guilty and claims trial, then trial begins. Trial starts after the
charge has been framed and the stage preceding it is called inquiry. After the
inquiry, the charge is prepared and after the formulation of the charge the trial
of the accused starts. A charge is nothing but formulation of the accusation
made against a person who is to face trial for a specified offence. It sets out the
offence that was allegedly committed.

2. Recording of prosecution evidence

After the charge is framed, the prosecution is asked to examine its witnesses
before the court. The statement of witnesses is on oath. This is called
examination-in-chief. The accused has a right to cross-examine all the witnesses
presented by the prosecution.

Section 309 of the Crpc further provides that the proceeding shall be held as
expeditiously as possible and in particular, when the examination of witnesses
has once begun, the same shall be continued day-to-day until all the witnesses in
attendance have been examined.

3. Statement of accused

The court has powers to examine the accused at any stage of inquiry or trial for
the purpose of eliciting any explanation against incriminating circumstances
appearing before it. However, it is mandatory for the court to question the
accused after examining the evidence of the prosecution if it incriminates the
accused. This examination is without oath and before the accused enters a
defence. The purpose of this examination is to give the accused a reasonable
opportunity to explain incriminating facts and circumstances in the case.

4. Defence evidence

If after taking the evidence for the prosecution, examining the accused and
hearing the prosecution and defence, the judge considers that there is no
evidence that the accused has committed the offence, the judge is required to
record the order of acquittal .However, when the accused is not acquitted for
absence of evidence, a defence must be entered and evidence adduced in its
support. The accused may produce witnesses who may be willing to depose in
support of the defence. The accused person is also a competent witness under
the law. The accused may apply for the issue of process for compelling
attendance of any witness or the production of any document or thing. The
witnesses produced by him are cross-examined by the prosecution.

The accused person is entitled to present evidence in case he so desires after

recording of his statement. The witnesses produced by him are cross-examined
by the prosecution. Most accused persons do not lead defence evidence. One of
the major reasons for this is that India follows the common law system where
the burden of proof is on the prosecution, and the degree of proof required in a
criminal trial is beyond reasonable doubt.
5. Final arguments

This is the final stage of the trial. The provisions of the Crpc provide that when
examination of the witnesses for the defence, if any, is complete, the prosecutor
shall sum up the prosecution case and the accused is entitled to reply. The same
is provided for under section 234 of the code.

6. Judgment

After conclusion of arguments by the prosecutor and defence, the judge

pronounces his judgment in the trial. Here it is relevant to mention that the Crpc
also contains detailed provisions for compounding of offences. It lists various
compoundable offences under table 1 of the Indian Penal Code which may be
compounded by the specified aggrieved party without the permission of the
court and certain offences under table 2 that can be compounded only after
securing the permission of the court compounding of offences also brings a trial
to an end.

Under the Crpc an accused can also be withdrawn from prosecution at any stage
of trial with the permission of the court. If the accused is allowed to be
withdrawn from prosecution prior to framing of charge, this is a discharge,
while in cases where such withdrawal is allowed after framing of charge, it is
acquittal.

The above described is the process how a trial takes place for dispensation of a
criminal case although this six stepped procedure looks plain and simple it
suffers from many inherent lacunas which become the reasons for delay and
hampers an expeditious trial and not to forget the option of appeal is again there
where the state or the criminal has option to appeal to appellate court and as
well as seek a permission to file a special leave petition to the supreme court
where in again all this process is repeated except for the fact that the supreme
court only deals with cases where there is a question of law involved.
 Webinar Report
Date: 22 June 2020

Topic: “E-filing in Courts: Pavements

and Procedure”

Speakers: Mr. Shantanu Singh,

Advocate on Record, Supreme Court of
India
Electronic Filing

Electronic filing (e-Filing) of cases is the first step in moving towards the e-
Courts system. The Indian Government established the e-Committee of the
Judiciary in December 2004, which has overseen the steady adoption of
electronic infrastructure by courts across the country

Courts are an integral part of our society and are required to keep functioning so
as to maintain law and order. They are a necessary fixture not just for a section
of the community but everyone at large. It is impossible to imagine the regular
working of a nation without the regulatory supervision of the judicial system,
even for a short period of time. This has been brought to light via the recent
COVID-19 pandemic which called for a complete lockdown on all services to
avoid the spread of the virus. The only solution which was recognised also by
the Supreme Court was to turn to digitalizing legal proceedings through the
medium of video conferencing. This only goes to justify the understanding of
courts as a ‘service’ and not a ‘place’.

The e-Courts project was conceptualized on the basis of the National Policy and
Action Plan for Implementation of information and communication technology
(ICT) in the Indian Judiciary–2005 submitted by e-Committee (Supreme Court
of India), with a vision to transform the Indian Judiciary by ICT enablement of
Courts. In other words, e-Court project is all about providing ICT enablement of
courts to make justice delivery system affordable and cost-effective. The
objective of the e-Courts project is to provide designated services to litigants,
lawyers and the judiciary by universal computerization of district and
subordinate courts in the country and enhancement of ICT enablement of the
justice system.

The chairman of the Supreme Court E-Committee, Dr. Justice Chandrachud

held a video conference with chairpersons of the computer committees of
various high courts on April 04, 2020, to ensure that courts could conduct
urgent hearing matters through video conferencing and also to enable e-filing of
documents and affidavits consistent with Section 6 of the Information
Technology Act.
Chief Justice of India S.A. Bobde said e-filing was the basis of a system based
on artificial intelligence, which can extract information at an incredible speed of
one million words per minute. “Imagine the help it would have provided in
deciding a case like the Ayodhya matter, how fast we could have dealt with it
since it could deal with thousands of pages in a minute. And e-filing is a basis
of that system,”
Necessity/Advantages of e-Courts

 ‘Social distancing’ is the only weapon which till date can actively help
contain the spread of this pandemic. This is where video-conferencing
plays an important role such that instead of going for physical hearings to
courts or tribunals and exposing lawyers, litigants and judges to the
spread of infection, video conferencing helps reduce direct contact with
other human-beings thereby cancelling the chain of contact and the
disease.  
 As per the established practice, the documents and submissions made are
filed in at least duplicates or triplicates depending upon number of judges,
etc. if we substitute these practices with e-filing of documents we can
save substantial quantities of paper. E-filing of appeals / paperbooks is a
very achievable goal since most records are already available / submitted
in soft form before lower authorities.With video conferencing and
especially e-filing facilities we can go paperless which will have huge
benefits not only from making our offices paper free, but in turn will have
far reaching environmental benefits.
 Video conferencing can be used in almost any kind of legal matter
including bail application, remand hearing, civil matters like matrimonial
disputes, criminal proceedings, etc. as has already been the practice in
India in special cases. The sole requirement of the act is that the court just
requires the oral evidence to be made before it. Hence, the evidence can
be presented before the courts by the way of video conference or other
electronic means as well.
 Remote-conferencing i.e. video conferencing from remote locations will
help us overcome the geographical hurdle in physical appearances.
Lawyers or litigants can be situated in one state and still appear for a case
in another state. Now, this achieves dual purposes, this help the problem
of overcrowding in courts in general and we can maximise our resources,
save time and money in travelling to different courts or tribunals and
therefore redirect our efforts in achieving higher productivity. 
 Digitalization of operating systems has always brought out more
efficiency and transparency. Video conferencing will further help to bring
out more transparency as the entire hearing can be recorded and kept as
an archive for future reference.
 Creation of a digital library containing legal-reference books,
commentaries, bare acts, case laws all in a single place will not only help
with spread of knowledge but also conduct research for a particular case.
 Justice Madan B. Lokur in-charge of E-Committee of the Supreme Court
said that “twenty-five to thirty per cent of cases in the lower judiciary are
 pending because summons does not get delivered to parties.” This would
be possible through e-mail summons/ SMS summons.

Challenges of e-filing

 A Video Conference call requires a computer along with a video-camera

and a good quality internet connection, to be able to see, speak and hear
clearly. Since a majority of Indian population live in poorer economic
conditions, affording a PC system plus a regular working Internet
connection is a matter of luxury one cannot afford, a computer becomes
even rarer as one moves towards lesser developed areas.
 Video-conferencing, at present, requires dependence on third-party
applications or websites to conduct hearings. The Home Ministry has
issued an advisory stating that the use of  ‘Zoom’ is not safe for
government offices citing it as “unsafe and vulnerable to cyber
attacks”. This is especially concerning as the Hon’ble Supreme Court and
some High Courts like the Bombay and Telangana High Court, etc. are
making use of the Chinese based website/ application ‘Zoom’ to conduct
hearings through video-conferencing. In order to continue the use of
video conferencing and e-filing and online document transfer in daily
court proceedings creating a website or application which is India-based
and Government approved will become essential, primarily from the
point of view of security.
 Sharing data virtually also brings with it security concerns. Incidences of
government websites and AADHAR data being hacked has been reported
in the past. Leaking of information can significantly impact the case of a
litigant and it will also be a gross violation of their right to privacy. Steps
like using ‘captcha codes’ or ‘one-time passwords’ on the user-end and
employing high-end firewall security, etc on the creator’s end should be
taken. 

Response of Judicial systems across the world during the times of

pandemic

The Supreme Court of India has announced that only matters urgent in nature
shall proceeded. It regularly issues updated guidelines to conduct hearings via
video conferencing via ‘Vidyo’ but also Skype, Whatsapp and any other
application if the need arises and has impressed upon using e-filing for filing
petitions and other documents. It has also set up a helpline for assistance with e-
filling and video conferencing. Various High Courts like the Bombay, Delhi,
Madras, Karnataka and Orissa have cancelled their summer vacation, for the
High courts as well as their subordinate courts, to make up for the working
hours lost to COVID-19 lockdown. The National Green Tribunal too has
announced cancellation of summer vacation.

In case of Telangana HC, all benches will function through video-conferencing

from 20th April, 2020 onwards. Previously it had operated through “virtual
courts” where the judges would be present in one court room and the advocates
for the respective matter in another court room, through video conferencing 

Gujarat High Court has been one of the most progressive courts in this front. A
press note released by Gujarat HC informed that on 15th April, 2020 it heard a
total of 111 matters out of which 59 were disposed of. These matters were heard
via video-conferencing from the respective residences of the Judges.

Justice D.Y. Chandrachud, who heads the e-committee of the Supreme Court,
said the apex court and the other 17,000 courts in the country had responded
well in overcoming the challenge posed by COVID-19. He pointed out that the
Patna High Court heard 450 matters through video-conferencing on Thursday.