Below are ten important case law precedents led by the best-known brands that have played critical precedent in the development within the field of IP law and provide an improved understanding of the application as well as the interpretation of the such rights at the worldwide level:

• PEPSICO INDIA LIMITED VS. GUJARAT POTATO FARMERS

In a case of, Pepsi Co.India Limited sued nine farmers on April 5, 2019, in three courts in the districts of Sabarkantha, Aravalli, and Deesa and Banaskantha in the state of Gujarat. The case was filed regarding the cultivation and selling of the FC5 variety of potatoes, for which, under Section 28 of the Protection of Plant Varieties and Farmers’ Rights Act, 2001, Pepsi Co claimed exclusive rights. Pepsi Co claimed that the farmers had violated its rights in intellectual property and demanded compensation ranging from ₹2 million to ₹10 million.

This case quickly became a major controversy, receiving high public and media attention. A broad range of farmers’ rights activists and organizations mobilized for the farmers, raising the argument that PPVFR had been designed to ensure protection of the farmers’ rights, for savings, use, sowing, resowing, exchange, share, or sell of farm produce, including the produce of the protected varieties. The protesters argued that the nature of Pepsi Co’s legal moves was malodorous under the Act and harassment of poor, small-scale farmers. The public outcry was immense, with several protests supporting the rights of farmers and advocates in social media campaigns to boycott all Pepsi Co India products across the country. It has also exposed conflicts raised by corporate intellectual property assertions of some firms and traditional agricultural practice in India, among others. Finally, as the protests were gaining strength, and the adverse publicity was hitting hard, Pepsi Co India relented and withdrew the lawsuits against the farmers.

Now it would prefer to have a negotiated settlement and make sure that the rights of the farmers are protected. A victory for the rights of the farmers, indeed, this judgment served as a reminder to companies to strike a balance between their interests and the rights available to the farmers under Indian laws. The case of Pepsi Co India Limited vs. Gujarat Potato Farmers is a primary example of the challenges and controversies that inescapably lie and really all too often crop up at the intersection of intellectual property rights with agricultural practice and further how clear, equitable regulations ought to safeguard the interests of all those directly involved. 

• VLSI TECHNOLOGIES V. INTEL CORPORATION   NO. 6:21-CV-00057 (W.D. TEX. 2021)

This case explains the recent legal fight between VLSI Technologies and Intel Corporation has been the subject of keen anticipation in the technological as well as legal fraternities. On a rather negative note, the appeals court in Washington made it clear that Intel had, in fact, violated a patent owned by VLSI. Nonetheless, it raised objections to the method of damages analysis and ordered a retrial to establish the correct award. The jury had first decided to award VLSI up to $1.5 billion for a patent that Intel had infringed. Intel’s stock slid following the ruling, down more than 4% in Monday morning trading.

That slide spilled over into other major chipmakers’ stock, too. In the other major trial held in Waco later in 2021, Intel was found not liable and for more than $3 billion in damages claimed by VLSI. Alternatively, in a jury trial in Austin, Texas, VLSI has won majorly and was awarded almost $949 million from Intel in another patent case, their third highest. The high stakes and high profile of the present litigation between the two technology behemoths underpins how complex and high-stakes patent infringement cases can be within the semiconductor industry. Add to this a strong emphasis on increased patent protection that has a significant financial impact on the enforcement of intellectual property rights.

• APPLE INC. V. SAMSUNG ELECTRONICS CO., LTD. 11-CV-01846, N.D. CAL. 2011

The most standing-out case of patent infringement in the technology sector is the legal dispute between Apple Inc. and Samsung Electronics Co.

The case, filed before the Court on May 12, 2011, was an action brought by Apple for expedited discovery. According to Apple, Samsung had infringed on its trademarks, trade dress, and utility and design patents. Apple had thus requested an order for Samsung to be compulsorily produced with samples of products, marketing, and relevant documents, and a corporate witness under Rule 30(b)(6) on an expedited basis in order to support the charges. The Court has reviewed Apple’s requests and arguments on the May 12, 2011, hearing. Based on the review, Apple said the requested infringing products of Samsung bears striking similarities to Apple’s iconic designs and functionalities. Apple underlined that they urgently need to obtain discovery materials in order to prevent more market confusion and possible damage to their brand. Apple moved for expedited discovery to prepare themselves for the upcoming stages of litigation and rehearing of the request for preliminary injunctive relief.

The Court took seriously Apple’s allegations and ordered limited expedited discovery that might help demonstrate the allegations and could influence the case to both parties’ advantage. This includes required examples of products that Apple says have been copied, some of the marketing materials that can portray how Samsung is describing those portrayed products, along with the internal documents relevant to the accusation. The Court also required a 30(b)(6) corporate witness from Samsung to testify about the design, development, and marketing strategies pursued with respect to the products at issue.

This is formally the case of Apple Inc. v. Samsung Electronics Co., Ltd., and it was the opening shot in one of the lengthiest and most highly publicized legal wars that two technology giants have waged against each other. This fast-track discovery gave Apple the opportunity to gather crucial evidence that the company will need at an early stage of litigation, which will be integral to their takedown strategy.Over the course of the proceedings, Apple and Samsung went through extensive legal maneuvers, with lots of arguments and counter-arguments. After all these maneuvers, the case was finally taken to trial, then had several appeals afterward that defined patent law and how the tech industry would do businesses involving intellectual property rights.

This case only highlights the importance of intellectual properties in the technology sector and how the top players are scrambling one over the other to retain the share of the market pie, particularly for new-generation products. The outcome of these litigation will decide the path that product design and development will likely take in the industry.

• ROCHE PRODUCTS (INDIA) PVT. LTD. V. CIPLA LTD.  2008 (37) PTC 71 (DEL)

Roche Products (India) Pvt. Ltd v. Cipla Ltd is an important case in Indian patent law between the Roche Group, a world-famous Swiss multinational healthcare company, and Cipla, an Indian multinational pharmaceutical and biotechnology company. The Roche case mainly concerned the infringement of the patent in the Erlocip drug.

In the present case, Roche claimed an infringement of its patent by the act of unauthorized manufacture and selling of Erlocip by Cipla. The decision went in favor of Roche, laying down some very important principles on different aspects of law relating to patent infringement in India.

The court ordered an account of all revenues that Cipla had earned from the manufacture and sale of Erlocip and awarded costs amounting to Rs. 5,00,000 to Roche. The court did not, however, grant a permanent injunction restraining Cipla from manufacturing Erlocip.

The aforesaid ruling was, in fact, significant to Indian patent jurisprudence, since it cleared much of the drift pertaining to the liability for patent infringement, the damages and the grant of injunction. It not only accentuates the necessity of protection of intellectual property rights over pharmaceutical inventions but also forms itself as various jurisdiction for patent disputes in the years to come.

Citation: Roche Products (India) Pvt. Ltd. v. Cipla Ltd., [2012] (49) PTC 348 (Del).

The abstract will be very brief, covering the general and essential facts of the case as well as the outcome of the case for parties.

• HINDUSTAN UNILEVER LIMITED V. GUJARAT COOPERATIVE MILK MARKETING FEDERATION  LTD , 2017 SCC ONLINE BOM 8677

Introduction- The clash of Hindustan Unilever Limited v. Gujarat Cooperative Milk Marketing Federation Ltd. is centered around the disputable question regarding comparative advertisement and ambit of permissible bounds of commercial speech inside India.

The legal tussle ensued as the two television advertisements by Amul, facilitated by GCMF, insinuated that consumers should reach out for an ice cream like Amul with real milk, unlike the “frozen desserts” laced with vanaspati or vegetable oil. The ads ran with the tagline, “Amul is real milk, Real ice cream,” thereby putting across to consumers that frozen desserts, including those manufactured by Hindustan Unilever Limited, were of an inferior quality in comparison to their ice cream. HUL filed a case against GCMF stating “generic disparagement/slander of goods” with respect to frozen dessert products. They claimed the advertisements had been taking potshots at the whole category of frozen desserts, which actually made HUL prone to market reputation and loss of sales. The Bombay High Court, headed by Justice S J Kathawalla, gave the order to prevent the release of Amul’s ads.

Justice Kathawalla, in his ruling, accepted that even though the objective behind the Amul advertisements would be to bring it to the notice of the public at large as to how the frozen desserts were being made, the methodology adopted was disparaging.

He furthered that the advertisements ran down the entire category of frozen desserts just because they used ‘vanaspati,’ by implication, saying that they were inferior because of this ingredient, causing confusion to the public. The court ruled that in such an advertisement, though apparently informative, there was misleadingly wrong information that would lead the public against the reputation of the products, which were in conformation with all the legal and safety standards. This case set a precedent in the field of comparative advertisement within India.

It was also made very clear by the court that, though comparative advertisement is permissible, it definitely need not reach the level of ridicule or defamation of the competitor’s products. In short, advertising can indicate the positives of one’s product at the expense of the product of competitors, a setup that is permissible- described as “puffing” -but only if without trashing the products of one’s competitors. The comparative advertisement, it added had has, to be honest and truthful and that no simulation and avoid undue comparison. 

• FOGERTY V. FANTASY, INC., 510 U.S. 517 (1994)

John Fogerty v. Fantasy, Inc. is certainly one of the strangest copyright battles ever to find itself within a courtroom: a record label suing a musician for ripping off his own music. John Fogerty is a widely known singer and songwriter; he was also a main member of the hard-rocking band Creedence Clearwater Revival. After Fogerty had left the group and finally went solo, he remained steadfastly successful during that time in the 1980s. The trouble began when Fogerty released a song entitled “The Old Man Down the Road.” The record company, Fantasy Records, owned the rights to CCR’s music and said that Fogerty had stolen a song that he himself wrote and sang with CCR — “Run Through the Jungle.” Indeed, he was being sued for sounding too much like himself.

But, weirdly, it boiled down to a verdict about self-plagiarized infringement.

The court ruled in favor of Fogerty and eventually declared, “You can’t rip somebody off if they are ripping off you.” This ruling of the courts finally put to rest the argument about whether an artist can be held accountable for creating a new composition that is substantially the same in spirit and tone to one’s old material. The court decision was littered with derision and reinforced the conclusion that there are certain things artists just should not be sued for and this was one of them. After successfully defending his case, Fogerty brought a counter suit against Fantasy for his attorney fees he accrued while litigating the case.

His counter suit eventually went to the Supreme Court of the U.S. This seminal case, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), provided that the facts of the case simply did not cry consonance with the very underlying object of copyright law. The values of copyright legislation should protect creative efforts, not assault new creation through frivolous litigation. Moreover, this ruling by the Supreme Court made a conscious effort not to place an unreasonable legal burden on an artist because, naturally, most of his or her future creations would have an imprint of his or her former works. This decision also established a precedent for the award of attorney’s fees to the prevailing defendant in copyright cases in order to discourage groundless claims and make sure that copyright law would indeed achieve the goal of promoting creativity and innovation.

• CHRISTIAN LOUBOUTIN S.A. V. YVES SAINT LAURENT AMERICA  696 F.3d 206 (2d Cir. 2012)

The case of Christian Louboutin S.A. v. Yves Saint Laurent America Holding, Inc. is a benchmark in the law of marks, in individual color mark protection and the doctrine of aesthetic functionality. He claimed that Yves Saint Laurent had infringed on its trade marks through its design of a red pump monochrome business shoe, also with a red sole. The judgment emanating from the Second Circuit incorporates the following core principles of the trademark law.

To appreciate fully the court’s decision here, one must be familiar with the overall scheme of trademark law and the policy reasons under girding the extension of protection to a holder of a mark. Trademarks are source indicators for goods and services, so that consumers do not become confused about who produces an article. In applying its prior holding in the matter at hand, the court inquired into the protect-ability of Louboutin’s mark – the single-color mark on a shoe sole – under two inquiries, the former of which was undoubtedly set to defeat the rights of the fashion house. The court held that the doctrine of aesthetic functionality did not make Louboutin’s trademark invalid. Aesthetic functionality operates when a product feature is ‘essential to the use of the article or it affects the cost or quality of the article,’ thus needing to be available for all to use. The court decided that Louboutin’s red sole could meet none of these tests because fundamentally it was all about branding rather than being functional.

It was, however, very controversial, the extent to which the court judged its decision to the doctrine of trademark use, in determining the claim of infringement. The doctrine of trademark use decides whether the use of mark by accused is in the sense of trademark, which shows the origin of products, or in a descriptive sense. It found that the use of the red sole on a monochrome shoe was not trademark use but an artistic decision and this would not refer, or suggest Louboutin in any way. It is this fact that enabled the court to stand on this reliance, rather than entering fully into this likelihood of confusion analysis, which is otherwise central to trademark infringement cases, in striking down Louboutin claims of infringement. The decision raised questions about the effect of the trademark-use doctrine and whether it may supersede the fact-intensive approach to likelihood of confusion. While some language in the court’s various decisions still reflects that the doctrine more generally might undergo an extensive likelihood of confusion consideration in a different setting, its use of the trademark-use doctrine in this setting extinguishes that possibility.

• ORACLE AMERICA, INC. V. GOOGLE LLC, 141 S. Ct. 1183 (2021)

The Oracle America, Inc. v. Google LLC case has relatively been a landmark in the progress of copyright law, more importantly, their doctrine of fair use. In 2021, the Supreme Court decided that modern copyright law shall have substantial bearing on the constitutional objectives which it has to achieve. Here the unauthorized use of Oracle’s code for Java SE by Google in its Android operating system became the point of contention. Oracle had accused Google of a copyright violation since it had copied 11,500 lines of the code, to which Google responded that its use of the code was an exception through the doctrine of fair use. In the end, the Supreme Court went on to say that it was Google and cited the transformative use Google made of it.

The Court also recognized that the doctrine of fair use may have expanded in scope since the time of Campbell v. Acuff-Rose Music, Inc., but such expansion was necessary to correct an overly restrictive status quo of copyright. Indeed, this case strengthens the reasoning for lower courts to grant flexibility and allow transformative uses of the functional nature of software. Functions in software are often of crucial importance for reasons of innovation. It simply limits the rights of the copyright holders and furthers the constitutional aim of the copyright law—i.e., to promote the progress of science and useful arts. The ruling of the Court is thus a much-needed counterbalance to help ensure that copyright does not become a tool in the stifling of creativity and technological progress. In application to this case, the doctrine of fair use is a very powerful tool that supports new and innovative uses of existing works to assure greater progress in science and the arts.

• NARUTO V. SLATER 888 F.3d 418 (9 th Cir. 2018)

The case of Naruto v. David Slater is related to the singular and contentious issue of animal rights in the context of copyright law. In 2011, Naruto, a crested macaque, took a series of selfies using the camera belonging to photographer David Slater. Slater published a book containing these pictures and sold it; one of his photographs became too popular on the internet. In response, People for the Ethical Treatment of Animals filed a lawsuit on behalf of Naruto as next friend and claimed Slater had committed copyright infringement by publishing the “monkey selfies.”

It is on this ground that arguments were heard by the Ninth Circuit Court of Appeals in this landmark case. The PETA contended that since the selfies were made by Naruto, he should hold the copyright to the photos. Slater, on the other hand, postulated that under existing copyright law, animals cannot hold copyrights reserved only for human creators. In the end, the Ninth Circuit court sided with Slater by fleshing out that animals enjoy no legal standing to sue for copyright infringement pursuant to Article III of the U.S. Constitution.

Although the Ninth Circuit decided its ruling based on a lack of similar cases in other circuits, the case nevertheless embodied some encouraging internal court disagreements about Article III standing. This proves that the broader questions posed by this case have not been quite resolved and may still give rise to further legal challenges and associated discourses over the extent of copyright law and animal rights.

Naruto case finished up resolving with a settlement providing that Slater would give 25 percent of his future proceeds from the selfies to charities concerned with the protection of crested macaques’ habitats. A case which has settled with no doubt shutting the doors to further litigation over similar issues in the near or far future.

• FMC CORPORATION & ORS. V. NATCO PHARMA LIMITED, [2018] EWHC 2993 (CH)

In the pharmaceutical field, a very important example of patent infringement is FMC Corporation & Ors. versus Natco Pharma Limited. According to facts, FMC Corporation, through its co-plaintiffs, alleged that Natco Pharma Limited infringed on their patent for the chemical compound Chlorantraniliprole, which is used as an insecticide in agriculture. The FMC patent not only covered the compound but the method of manufacturing it.

FMC had claimed that Natco Pharma was infringing on its patent rights by using a similar process to manufacture CTPR. The case brought into sharp relief the complexities of patent laws in the pharmaceutical sector, which are founded on proprietorial process patents and compounds, hold the key to competitive advantage, and in effect, encourage innovative trails.

The ruling in this case much further underscored the reduction to practice of patented methods of production of compounds as much as the compounds themselves, under intellectual property law. This judgment by Delhi High Court came in favor of FMC Corporation. It held that even minor changes in manufacturing processes still rightfully remain an infringement if they come within the ambit of the patented method.

Author: Tanya Kathuria, a final-year BBA LLB student at Shree Guru Gobind Singh Tricentenary University, has interned with notable legal entities such as the Ministry of Law and Justice and the Competition Commission of India. She excels in legal research, has presented research at various platforms, and achieved recognition in moot court competitions.

The post Top 10 Case Laws on Intellectual Property Rights appeared first on Legal Desire Media and Insights.

Summary of Facts of the case

In this case, the plaintiffs are Scotch Whiskey Association, a company incorporated under the statutory legislation the Companies Act of the United Kingdom with a basic objective to protect the interests and promotion of famous Scottish Whiskey trade in the United Kingdom and even abroad and it has about 116 members who carry on the business of distilling, blending and selling “scotch whisky” and one of its member (Plaintiff No. 2) is a company incorporated as under the Companies Act of the United Kingdom carrying on business of and as a distiller, blender and dealer of scotch whisky; specifically caters the market of India and has been making extensive export of scotch whisky to India over the years.

The defendant, Pravara Sahakari Shakar Karkhana Limited, is a Cooperative Society incorporated under the provisions of the Maharashtra Co-operative Societies Act, 1960 and carries on the business of a manufacturer, distiller and dealer of Indian whisky.

It is a known fact that the plaintiff has a definite distinguished reputation and goodwill in the market across the world related to the speciality of a distinctive type of Whiskey famous on the name of its origin- the Scottish Whiskey. It is also known that the famous Scotch Whiskey is exported to various countries and have a distinguished reputation in the market.

The plaintiffs instituted the action of passing off against the defendant on the fact that the defendant is misleading the other traders and customers and damaging the reputation and goodwill of Scotch Whisky and its genuine distillers, blenders and dealers by using the device of a Scottish Drummer wearing a kilt or the tartan band on the label and/or using the word ‘Scotch’ in the specific description as label “Blended With Scotch” on their Indian whisky product marketed under the mark “Drum Beater” and also “Gold Tycoon”.

They have also prayed for issuance of permanent injunction and interim injunction against the defendant from advertising or offering for sale or selling or distributing whisky which is not “Scotch Whisky” in any country bearing the impugned label of “Blended with Scotch” or the impugned carton bearing the mark “Drum Beater” or “Gold Tycoon” containing the word “Scotch” or the device of a Scottish Drummer wearing a kilt or the tartan band or the word “Scotch” or any other mark, label, carton, device or description suggesting Scottish origin, so as to pass off or enable others to pass off its whisky as that of “Scotch Whisky.”

Issues Raised

1. Whether the plaintiffs had a locus standi in passing off action against the defendants under the Trade and Merchandise Marks Act, 1958?
2. Whether the delay by the plaintiff in passing off action against the defendant could disentitle them to interim relief?

Judicial Reasoning Analysis of the Case

*Locus Standi

The court while examining the facts and circumstances specifying the dominant market the Scotch Whiskey has and the reputation and goodwill across the world held that the plaintiffs had sufficient interest and locus standi to prevent passing off of Indian whisky manufactured by the defendants as Scotch Whisky and damage reputation and goodwill of Scotch whisky trade.

*Point related to intention by using the term “Blended with Scotch”

While referring to the copy of the booklet entitled “Scotch Whisky: Questions and Answers” published by the 1st plaintiff, stated the definition of the expression “Scotch Whisky” which has been defined by the British legislation as whisky which has been distilled and matured in Scotland and the expression “Blended Scotch Whisky” as a blend of a number of distillates each of which separately is entitled to the description Scotch Whisky, hence it is well established and it is indisputable that blended scotch whisky consists of two or more scotch whiskies each of which is exclusively a scotch whisky and in practice it is usually a blend of as many as fifty different scotch whiskies. Hence, the usage of words “Blended with Scotch” can mislead the customers. The court dismissed the defendants’ contention that they mix the part of “scotch whisky” with its Indian whisky and hence used the term “blended with scotch” on the ground that no permission to market its product as blended scotch whisky merely by using the word “with” in between can be allowed as the unwary customer with his average intelligence and imperfect recollection is bound to treat the product as Blended Scotch Whisky i.e. whisky of which each of the blends is exclusively scotch. The customer is not expected to compare the words used with due care and caution and serious risk of confusion and deception is sufficient to prove the tort of passing off but that too subject to other ingredients being proved.

The usage of the extra word “with” does not make any difference and as observed by Lord Diplock in case Ervin Warnik B. V. v. J. Townend & Sons (Hull) Ltd (1979) 2 All ER 927 that the theory of added material as an escape route in passing off action has been considered irrelevant when the cause of action pleaded was ‘not passing off in its classic form but it its expanded form’ and such additions did not distinguishes the defendants’ goods from those of the plaintiffs or it could not releases the defendant from attempting to damage the business reputation and goodwill of scotch or wipe out the glaring misrepresentation.

Also, while referring to the case of B. K. Engineering Co. v. USHI Enterprises, MANU/DE/0404/1984: AIR1985Delhi210, the Court pointed out that even if the defendants were to prove that they were mixing genuine scotch whisky of Scottish origin with their product, the defendants would not be entitled to market their product by describing the same “Blended with Scotch”. 

*Related to label showing the device of a Scottish Drummer wearing a kilt

While examining as a whole, the label containing image of the device of the Scottish Drummer and also usage of the term “Blended with Scotch” clearly shows the fraudulent intention on the part of the defendants to pass off and misrepresent their goods as Scotch whisky and thus damage reputation and goodwill of ‘Scottish whisky trade’.

And it was further held that the defendant would be restrained from advertising or offering for sale or selling or distributing whisky which is not “Scotch Whisky” in any country bearing the impugned label of “Blended with Scotch” or the impugned carton bearing the mark “Drum Beater” or “Gold Tycoon” containing the word “Scotch” or the device of a Scottish Drummer wearing a kilt or the tartan band or the word “Scotch” or the term “Blended with six year old Vatted Malt Scotch” or any other mark, label, carton, device or description suggesting Scottish origin, so as to pass off or enable others to pass off its whisky as that of “Scotch Whisky.”

*Related to affecting the reputation and goodwill

The Court held that there was no restrictive concept for passing off and hence the plaintiffs had a cause of action to obtain relief to prevent unlawful competition where the goodwill and trade reputation of the persons dealing in a particular product genuinely indicated by a trade description was damaged by the defendants by attaching to their product a name or description with which it had no natural association and with a mere intention to misrepresent themselves in the market. And the same fact should be examined in order to keep the check that the similarity has taken place in order to deceive or cause confusion and whether the customers were likely to be confused on the first impression, the customers being persons of average intelligence and imperfect recollection. Hence, creating the higher chances that the customers were likely to be misled into thinking that the defendant’s firm had an intimate connection with the plaintiffs and such misrepresentation of some connection with the plaintiffs was sufficient to constitute the tort of unfair trading, forming part of the law of passing off.

*Related to interim relief

The Court held that the denial of interim relief would indirectly constitute the allowance and permission of continual of the wrong of the defendants. Hence, interim relief was granted.

Critical Analysis and Developments evolved over the time

The main object of the trademark recognition is to give recognition to goods and/or services of manufacturers/ traders/ service providers in order to accrue its reputation in the market. 

The object of the trademark law has been discussed and explained by the Supreme Court in the case Dau Dayal v. State of Uttar Pradesh AIR 1959 SC 433 as: “the object of trademark law is to protect the rights of persons who manufacture and sells goods with distinct trademarks against invasion by other persons passing off their goods fraudulently and with counterfeit trademarks as those of manufacturers….”

Even the Constitution of India under Article 19 (1) (g) enshrines the fundamental right the freedom to practise any profession, or to carry on any occupation, trade or business; hence the right of free trade and business without any legal infringement.

The Preamble of the Trade and Merchandise Marks Act, 1958 states that the Act is to provide for the registration and better protection of trademarks and for the prevention of the use of fraudulent marks on merchandise.

Generally, Geographical Indication (GI) is a recognition given to products that have a specified geographical origin and possesses reputation due to the origin. Typically, such a name conveys an assurance of quality and distinctiveness which is essentially attributable to the fact of its origin in that defined geographical locality, region or country.

Prior to 1999, there were no specific laws and legislations in India related to geographical indications in order to protect the interests of the manufacturers or traders or producers.

However, the judicial interpretation related to various aspects of geographical indication has been observed by preventing individuals to take any such unlawful advantage of geographical indications and grants an assurance of its distinctiveness to the producers at large. One of such landmark judgment is Scotch Whisky Association v. Pravara Sahakari Shakar Karkhana Ltd. (1992).

Earlier, various remedies have been provided available under the Trade and Merchandise Marks Act, 1958 according the reliefs in suit of infringement and passing off under Section 106 of the said act. 

But later it was repealed. As the globalization of trade, brand names, trade names, marks, etc. started attaining an immense value, a uniform minimum standard of protection and efficient procedures for enforcement as were recognized under the Trade-Related Aspects of Intellectual Property Rights were found to be required. In view of the same, extensive review and consequential amendment of the old Indian Trade and Merchandise Marks Act, 1958 was carried out and the new Trade Marks Act, 1999 was enacted. The said Act of 1999, with subsequent amendments, conforms to the Trade-Related Aspects of Intellectual Property Rights and is in accordance with the international systems and practices.

India, being a common law country, follows not only the codified law, but also common law principles, and as such provides for infringement as well as passing off actions against the violation of trademarks. Section 135 of the Trade Marks Act recognizes both infringement as well as passing off actions, which has been seen in conformity with that time established provision Section 106 of the Trade and Merchandise Marks Act, 1958 and even extends to include criminal complaints relief and also providing ex parte or interlocutory order and interim injunctions as per the facts and circumstances of the case.  

The said case is related to the passing off action. Passing off, as similar to trade mark infringement, applies to protect unregistered rights associated with a particular business, its goods or services.

The principle related to the tort of passing out has been stated in the case Perry v. Truefitt (1842) that “A man is not to sell his own goods under the pretence that they are the goods of another man”.

In Kerly’s Law of Trade Marks and Trade Names, “Passing off” is defined as “an actionable wrong for the defendant to represent, for trading purposes, that his goods are those or that his business is that of the plaintiffs…” Thus, the basic essence of the cause of action for passing off consists of misrepresentation by the defendant in respect of goods marketed by the defendant by colourable imitation and by using labels or badges resembling those of others in such manner as to be calculated to cause the goods to be taken by ordinary purchasers for the goods of the plaintiffs.

In each and every case of action of passing off, the main issue is the risk of misrepresentation and deception by someone as to the origin of the goods or services to general public.

If someone creates a belief in the minds of the consumers that their goods or services are connected with another business when in reality it’s not the case, such situation might put the reputation of the other company in the market at stake. Hence, this is one of such grounds of suing for passing off action.

The assertion on which this common law remedy is established is that no man through representation by way of trading name, mark, sign, symbol, or any other means, either intentionally or unintentionally, is entitled to represent his goods as being the goods of another or as in conformity with another’s business.

Lord Diplock has identified various characteristics in order to categorise an act as action of passing off in case Ervin Warnik B. V. v. J. Townend & Sons (Hull) Ltd (1979) 2 All ER 927. The essentials are:

1. “Misrepresentation,
2. The act must be made by the defendant in course of trade,
3. The prospective or ultimate customers of the plaintiff’s goods and services have been misrepresented,
4. Such an act of misrepresentation is calculated to injure the business or goodwill of the plaintiff, and
5. Such act causes actual damage to the business or goodwill of the plaintiff.”

These essential characteristics has been recognised and adopted by Indian courts also. In case Baker Huges Ltd. v. Hiroo Khushalani (2000) 102 Comp Cas 203 (Del), it has been held that “the plaintiff in an action of passing off must establish the elements that:

1. the plaintiff has acquired a reputation or goodwill in his goods, name or mark;
2. a misrepresentation, whether intentional or unintentional, which proceeds from the defendant by the use of the name of mark of the plaintiff or by any other method or means and which leads or is likely to lead the purchaser into believing that the goods or services offered by the defendant are the goods and services of the plaintiff; or that the goods and services offered by the defendant are the result of the association of the plaintiff;
3. the plaintiff has suffered or likely to suffer damage due to the belief endangered by the defendant’s representation.”

The laws related to action of passing off has been designed to protect the distinctive traders and manufacturers against the unfair competition of acquiring through means of misleading devices and ways and hence affecting the goodwill and reputation of them in the market.

Conclusion

The country where around 65% of the population lives in rural areas, the action of passing off and creating a deception of others’ product as own is quite easy. Thousands of cases can be observed related to such misrepresentation; starting from the essential good- toothpaste to the luxury- Scotch whisky.

With the enactment of the Trademarks Act, 1999 in conformity with TRIPS, it has provided even criminal protection against action of passing off. The scenario has been evolved long way from common law principle to well defined principles and reliefs specified under the codified act and accordingly improved, as can be observed from a huge spree in the number of cases related to action of passing off in the recent past. But there is still scope of development as we can see that market is dynamic and so the principles and laws should be enacted and made accordingly as per need at that moment.

Author: Mannat Sardana

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In this particular case, Mahmood Farooqui, the appellant here was accused of Rape under section 376 of IPC. The prosecutrix in this case is a student from Columbia University in New York. She met with the accused through a common friend and Mahmood invited her to a wedding. The charge against the accused was that on March 28, 2015, he undertook forcible oral sex on the prosecutrix in his flat without her consent, and the offender’s defence at the trial court stage was that such a case hadn’t ever occurred; however, after being convicted at the trial court stage, the accused
proposed a different argument (that was acknowledged by the court) that, if the act of oral sex had taken place, it was with the consent of the prosecutrix. Oral testimony, call detail records, and several emails and WhatsApp discussions were among the evidence presented by both parties. The High court acquitted the appellant on the basis that the prosecution’s events appeared improbable, and even if they were probable, it was unclear whether they occurred without the prosecutrix’s consent, and even if the events occurred without the prosecutrix’s consent, it was unclear whether the accused understood this lack of consent.”

So the question here is, Did the accused understand her lack of consent?

Talking about effective communication where both parties understand what they mean, the court had an interesting opinion which was the basis of ruling in this particular case. The sexual partners are equally responsible for obtaining a “unequivocal voluntary agreement” under this concept. In addition to the woman’s willingness to participate, the male must be accountable and sincere in his understanding and appreciation of what is being expressed. Far from grasping this significant shift in
understanding of consenting sexuality, the Farooqui decision falls short of conceiving sexual freedom for women. Instead, the feminist shift in the concept of consent is being undone in a variety of ways. The ruling replaces the woman and reinstitutes the male as the subject of law, rejecting
feminist reforms. The court’s conclusion was based on what the man understood, not what the lady said: “even though the act was not done with her consent, she actually transmitted something that the appellant took as consent.” As a result, the woman’s voice in questions of sexuality was effectively silenced. Also the court’s questions were framed from the man’s perspective: “whether the appellant mistakenly accepted the prosecutrix’s moves as consent; whether the prosecutrix’s feelings could be effectively communicated to the appellant; and whether mistaking all of this for genuine consent by the appellant.” Moreover, the court stated that “the prosecutrix’s unwillingness was only in her own mind and heart, but she communicated something different to the
appellant. It is unclear at when point during the act she did not grant her consent, and it is safe to assume that the appellant was completely unaware of the prosecutrix’s unwillingness. It is not uncommon for one of the parties to be less willing or even unwilling during sexual actions, but when there is assumed permission, it makes no difference whether one of the couples is hesitant. Such faint hesitancy may never be interpreted as a positive rejection of the other partner’s advances.”1
The court attempted to read stereotypes into consent by stating that a ‘feeble no’ from a woman can be taken into account as a ‘yes’ in some circumstances, and by distinguishing between the ‘no’ of a learned woman versus a more orthodox woman, and when the victim knows the accused versus when they are strangers. In this concept, women (especially “intellectually/academically capable” women) are expected to be loud (not feeble), aggressive (not timid), and show “genuine opposition” (not feeble disinclination).

The court’s explanation of section 375 requires a ‘unequivocal willingness from the victim to the sexual act,’ which implies that “men should receive affirmative expressions of consent, regardless of whether this is a common practise in our sexual encounters or not,” but nowhere are these kinds of subtleties added to meet the criteria of consent from a female.

In my opinion, the judgement here is flawed reason being the High Court entirely dismissed important aspects in the facts of the case. The prosecutrix did say no, she denied accused’s advancements on her body but the court only considered the point where in her no was timid and feeble. In the trial court, the accused denied the entire situation in one god, what does that say about the accused? Later on he said that it did happen with her consent, then what was the reason of lying in the trial court hearing? How is it possible that the high court dismissed several important aspects of this case and just blamed it on the prosecutrix that you should’ve been clearer with your
disagreement. How was the man not expected to understand that she said no, not once but twice. Verbally as well as through her body language when he pulled her underwear down and she pulled it back up. How is it that the man in this case was not expected to ask id she wanted oral sex or not?
This judgement had a chance to write history with respect to the amendment in rape laws but has set a really negative precedent for the coming future.

Author’s Disclaimer: This article is written on the basis of personal judgments and pure opinions.

The post A Feeble No is a Yes: Is It? Mahmood Farooqui v. State (Govt of NCT of Delhi) appeared first on Legal Desire Media and Insights.

Author: S Mohan

Bench: Mohan, S. (J)

Act:

Advocacy–Significance of profession–Punishment whether  to be commensurate with the degree and gravity of misconduct. Advocates Act, 1961-Section 38-Appeal-Misappropriation-Proof of–Enhancement of punishment and direction of Supreme Court to refund of amount pending with advocate.

Introduction:

Ethical codes apply to every profession irrespective of the nature of work. Doctors, teachers, corporate employees, every professional is guided by a set of ethical guidelines he/she is expected to adhere to. Professional ethics drive a person’s professional life and success. When it comes to the legal profession, ethical codes are given utmost importance. These apply to everyone starting from an intern to the Supreme Court Chief Justice. It is an advocate’s responsibility that he/she be truthful. The current case deals with misappropriation of amount paid. It is one of the rarest and unfortunate cases wherein the advocate was at fault and used his position to deceive his client who trusted him. The Bar Council and the court interpreted the facts right and based on the merits of the case found the advocate guilty of professional misconduct.

Issues Raised:

Whether the decision of the disciplinary Committee of the Bar Council be set aside ?

Whether there is misappropriation at the end of appellant?

Whether the appellant be punished for professional misconduct?

Facts of the Case:

1.     The respondent in the current case engaged the appellant in an earlier suit in which he was the defendant.

2.     The suit was compromised and the court ordered the respondent to pay Rs. 64,000 out of the total amount lying with the court receiver to the plaintiff.

3.     The court ordered to pay the balance to the respondent and to hand over the suit property over to the respondent by the court receiver.

4.     While the suit was pending, the court receiver inducted a tenant who filed for an interim injunction restraining the court receiver from handing over possession of the property to the respondent.

5.     That suit was continued.

6.     Upon the passing of the compromise decree, the appellant being the counsel for the respondent was requested to withdraw the amount lying with the court receiver and hand over the same to the respondent. A letter of authorisation was issued for the same.

7.     Pursuant to the instructions given in the letter, the appellant withdrew Rs. 50,379 from the court receiver but paid only Rs. 18,000 to the respondent.

8.     The respondent therefore filed a complaint before the Bar Council of India upon which the a notice was issued to the appellant.

9.     The appellant submitted his reply to the notice.

10.  The Disciplinary Committee of the Bar Council of India after hearing his arguments and considering the evidence produced by him as explanation, said that the burden of proof with respect to the total sum being paid to the respondent was on the appellant.  

11.  The committee did not accept the receipts the appellant produced as evidence of payment. He pleaded that the account books were lost which the committee believed was untrue.

12.  The appellant was suspended for two years and was directed to pay a sum of Rs. 500 to the complainant.

13.  He subsequently filed the present appeal against the order of the Disciplinary Committee of Bar Council of India.

Judgement:

The Court in this case pointed out that the order under appeal is unexceptional and found that there was no case for interference. It further stated that the order of two year’s suspension was not commensurate with the charges of misappropriation directing the issue of notice to the appellant.

The court with respect to the decision of the disciplinary committee was of the opinion that the committee had come to a conclusion that the receipts were faulty after proper appreciation of the evidence owing to the fact that the receipt was got up on a blank signed paper. The court recognised the fact that the appellant could not prove the due execution of the receipt. The Court stated that the appellant’s statement of account books had being lost in transit were rightly disbelieved. The Court firmly stated that considering all the circumstances it is a clear case of the misappropriation by the appellant and professional misconduct can be established. 

The court with respect to the appropriate punishment to be given to the appellant, spoke at length about the duties of an advocate and the responsibilities he must be bound by. The Court reiterated how and why the legal profession is considered to be noble.

The court referred to M. Veerabhadra Rao v. Tek Chand, wherein the advocate had committed forgery. It was held as a serious misconduct. This was referred in an attempt to discuss how professional misconduct must be dealt with.

The court referring to  Bar Council Of Maharashtra v. M.V Dabholkar stated that the role of the members of the Bar must be appreciated.

In this regard, the court spoke of the assumptions monopoly licence to practice law is based on. While the first is that lawyer has a socially useful function to perform, the second is that the lawyer is the professional person who must perform that particular function, and third about his/her performance  as a professional lawyer being regulated by themselves and by the profession as a whole formally.  

With respect to the punishment for professional misconduct, the court having regard to the gravity of the misconduct and keeping in view the motto that the punishment must be commensurate with the gravity of the misconduct, the court ordered for suspension of five years.

Besides the punishment to be given to the appellant, the court with respect to justice being served to the respondent, was of the view that the respondent should not be driven to a civil court for recovery of this amount after the appellant was found guilty thereby directing the decree in favour of the respondent for a sum of Rs. 22,379 with interest at 9% per annum from the date of the complaint till the date of payment.

The appeal was dismissed.

Conclusion:

No matter how much courts and their lengthy procedures are criticsed, people still say “I will see you at court”, “Justice prevails”, etc. This is reflective of people’s trust in judiciary. A client engages a lawyer and completely trusts him/her. A layman will not understand legal proceedings and cannot speak while the case is being heard in the court. The entire burden is on the advocate. Considering the amount of trust and hopes in the advocate, it is their obligation to atleast be truthful to the client if not help them win the case.

In the current case, the issue at hand was monetary in nature. When money is involved the last thing an advocate must do is fall prey to temptation and greed. The advocate deceiving the client for money is unfortunate and totally uncalled for. However, the case sends two strong messages. One from the respondent and one from the bar council and court. The respondent was vigilant and rightly identified the fraud and reported it. Often people either ignore the mishap and be happy that some money has reached them or let it go thinking it is a risk to mess with lawyers. The respondent fought for justice and got it delivered. It is often believed that professional relations are strong and a lawyer supports their peer. This was proved wrong in this case. The Disciplinary committee could rightly gazed through the facts and chose justice over supporting their professional peer. The court instead of striking the committee’s report, giving a harsher punishment restored faith in justice. As an advocate, the appellant tried to cover up his mistakes and play around with the loopholes in cases of monetary relief. A suspension was definitely called for. It can be concluded that when he ignored his professional responsibilities, the court used it’s professional duty towards the general public who fight for justice.

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Court Name: Supreme Court of United States

Date of Judgement: March 22, 2017

Bench Name: Supreme Court

Facts: The Respondents (Varsity Brands) are manufactures of cheerleading uniforms. They design, make, and sell them in the market. Over the years, they have acquired more than 200 registered copyrights for two-dimensional structures. These designs consist of many lines, chevrons, and vibrantly colored shapes, which appear on the surface of these cheerleading uniforms. The Petitioner is alleged to have, infringed their copyright. Respondents sued Petitioner for violating their copyrights in five of their designs. The Petitioner (Star Athletica) also markets cheerleading uniforms. He was granted summary judgment from the district court, holding that the designs could not be conceptually or physically separated from the uniforms and were therefore ineligible for copyright protection. The sixth circuit reversed this, and it concluded that the graphics could be “identified separately” and were “capable of existing independently” of the uniform under Section 101.

Issues of the Case: Can graphics printed on the cheerleading uniform be protected by copyright law?

The contention of Parties:

Respondents:

·         The respondents claim that their designs are two-dimensional surface decorations that are always separable, even without a Section 101 analysis. They are implanted on articles or pieces with a helpful nature rather than the designs or graphics themselves being a substance with some valuable values.

Petitioners:

·         The Petitioner claims that a copyright cannot protect the designs or graphics since they are not helpful or helpful in an article in themselves. Even when they are separated from the cheerleading uniform, they retain the uniform outline and hence cannot be called a separate article or an independent article.

·         The Petitioner contends that by protecting surface designs, the court deters from the intention of congress to exclude industrial designs from copyright protection. He calls the respondent’s decoration as industrial decorations.

Judgement Held: The court holds the Sixth Court’s verdict; it states that graphics that were used by a company that manufactures cheerleading uniforms are copyrightable because they could be identified separately and are capable of existing independently of uniforms the company manufactured. The court finds that any feature or design or graphic which has been incorporated or implanted on the design or as the design of a helpful article is eligible for copyright protection if it can be perceived as two-dimensional works or design, which are separate from the helpful article itself and qualifies as a protectable “pictorial, graphical, or sculptural work,” either on its own or after being fixed in some other tangible medium of expression if they were imagined separately from the article into which they are incorporated.”. This aligns with section 101 of the copyright act.

Case Comment/ Analysis of Judgement:

Thomas, J., delivered the majority opinion. He was joined by Roberts, C.J., Alito, Sotomayor, and Kagan, JJ.,

Ginsburg, J., filed the concurring opinion, and Breyer, J., joined by Kennedy, J., filed the dissenting opinion in the case.

The main issue is that the respondent’s copyright has been infringed by the petitioners, who argue that the cheerleading uniform and the graphics implanted on them are the same articles that cannot be separated and protected by copyright. They pay more attention to the fact that one should consider the utility of a commodity rather than the identity of graphics and the clothes separately.

The District Court gave a summary judgement that favored the petitioners, but the Sixth Circuit reversed this judgement and stated that graphics are separate and capable of independent existence. The majority opinion applied the separability analysis (which is used to decide if a feature has a distinct identity from the cloth or article it is applied on). It stated that “on applying the proper test here (separability test), it is found that the surface decorations or graphics or features or designs which used or lay on the cheerleading uniforms of Varsity, are separate and therefore eligible for copyright protection. They came to this conclusion based on the following steps:

 Firstly, the decorations can be identified as features having “pictorial, graphic, or sculptural qualities” independent from the article. Secondly, if those decorations were separated from the uniforms and applied in another medium or theme, they would qualify as two-dimensional works of art under §101. And in case of imaginatively removing these decorations from the uniforms and applying them in another medium also would not replicate the uniform itself but generate a separate article of individual identity.”

The court has used the literal interpretation of the statute, which states that any “Pictorial” or “graphical” designs are used to denote the two-dimensional features, such as pictures, paintings, or drawings. Thereby to protect “pictorial, graphical, and sculptural works” implanted or applied into the “design of an article,” which is considered helpful by a prudent person.  The particular identity requirement is met if the decision-maker can look at the helpful article and spot some two-dimensional or three-dimensional elements with pictorial, graphic, or sculptural qualities. When separated from the graphical design, the cheerleading uniform holds a separate identity from the other.

The dissenting opinion was based on the logic that cheerleading uniforms are ineligible for copyright protection. When both cloth and the design are separated, the remaining product is only a blot of material, and the decorations retain the outline of a cheerleading costume. They further try to explain this by using the example of a two-dimensional painting that has the canvas’s shape. This opinion is based more on utility than the article’s objective, which contradicts the separability test, which focuses on the extracted part of the article and not its usefulness after it is separated from the graphics. The concurring opinion given by Justice Ginsburg is that he does not this there is a need to use the separability test here because the designs and graphics are copyrighted pictorials and techniques which are implanted in the valuable article. They are not helpful, but he also agrees that pictorial, sculptural, and graphical work is copyrightable under section 102 of the act. Hence, the varsity graphics are not themselves valuable articles and outside the purview of section 101 but “standalone” features that can get copyright protection and exclusivity in usage over valuable articles.

The final judgement has given way for much disagreement over the separability and identity issue, the two requirements of an article being perceived as a two or three-dimensional work of art which has a separate identity from the valuable article on which is implanted or incorporated and also qualify as a protectable “pictorial, graphic, or sculptural work” either on its own in its original form or after it are fixed in some other tangible medium of expression, whereby if it were imagined separately from the helpful article, it has some identity. In the instant case these requirements are fulfilled, the court stated that “graphical designs” were “separately identifiable” because both the design and cheerleading outfit were separate items: a uniform and a graphical design.

The identity of an article is being questioned here, not the utility, copyright is given to protect some design or feature specially made by one company, and the utility of that design or quality is not under the purview of the copyright act. It is not the function of a graphic implanted on a cloth to identify a person as a cheerleader, and hence neither is copyright granted for that reason. I agree with the interpretation and application of law that the court has used in this case.

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On April 2, 2021, a lawsuit was filed by the plaintiff Russell Denes, a licensed applicator of paraquat who had been exposed to the herbicide for approximately three decades, against Syngenta AG and Chevron U.S.A. Inc. The manufacturers failed to warn paraquat users of the risk of developing Parkinson’s disease as a consequence of frequent exposure, as there is no mention of this brain disorder on the label of their products. According to the lawsuit, it was the defendants’ negligent acts and omissions in the research, testing, design, manufacture, marketing, and sale of paraquat that caused the plaintiff’s injury. It is important to know that Russell Denes, a Jackson County, Missouri resident, had been wearing personal protective equipment during every application of paraquat, which one may think would shield him from exposure to this harmful herbicide. Nevertheless, he was diagnosed with Parkinson’s disease, which raises the question: is personal protective equipment enough when working with paraquat?

The Defendants Had Knowledge of the Neurological Consequences of Exposure to Paraquat

Syngenta AG and Chevron U.S.A. Inc. knew or, in the exercise of reasonable care, should have known that paraquat is a highly toxic herbicide, exposure to which can result in severe neurological injuries and impairment, and they should have taken measures in their research, manufacture, and sale of paraquat to ensure that people would not be harmed by foreseeable uses of the product. Both companies have manufactured, distributed, licensed, marketed, and sold paraquat for use throughout the country since 1964. Defendants are liable to plaintiff under a products liability theory for marketing a defective product, as well as for failing to adequately warn of the risk of severe neurological injury caused by chronic, low-dose exposure to paraquat. Studies have also related long-term pesticide exposure to increased incidence of several types of cancer and neurodegenerative diseases such as Parkinson’s and Alzheimer’s disease. There’s a spurt seen in the number of Paraquat Parkinson’s lawsuits against the manufacturer, Syngenta. Farmers were unaware of the serious health risks connected with the herbicide Paraquat and are seeking justice and coverage for their injuries. If you or your loved one was endangered to Paraquat and suffered from Parkinson’s disease or similar symptoms, you have the right to file a lawsuit against it and seek help from the Paraquat Parkinson’s lawyer.

The defendants are also liable to Russell Denes under a product liability theory based on their failure to adequately warn of the risks of paraquat exposure. Plaintiff Russell Denes worked in the agricultural business, initially working for a certified herbicide applicator and subsequently working as a certified herbicide applicator himself, having been exposed to paraquat from the late 1970s to 2013. Defendants’ acts and omissions were a legal, proximate and substantial factor in causing Russell Denes to experience severe and permanent physical injuries, pain, mental anguish, and disability, and will continue to do so for the rest of his life.

How Paraquat Exposure Resulted In Plaintiff Russell Denes Diagnosis Of Parkinson’s Disease

Despite wearing personal protective equipment, Russell Denes was exposed to paraquat as a result of spray drifts and as a consequence of contact with sprayed plants. When he would remove the personal protective equipment, he would inevitably breathe in vapors of paraquat that were carried by the wind nearby his house, which eventually reached his brain, slowly causing damage to the substantia nigra, the portion of the brain that is always affected in people with Parkinson’s disease. In fact, one of the primary hallmarks of Parkinson’s disease is the selective degeneration and death of dopaminergic neurons in the substantia nigra. Dopamine is a neurotransmitter that is essential in the brain’s control of motor function, which is severely altered in Parkinson’s disease. Paraquat entered the plaintiff’s body through the following routes:

• absorption or penetration of the skin, mucous membranes, and other epithelial tissues
• through the olfactory bulb
• through respiration into the lungs
• through ingestion into the digestive tract of small droplets swallowed after entering the mouth, nose, or conducting airways

Therefore, it was reasonably foreseeable that paraquat that entered the human body could induce the misfolding of the alpha synuclein protein and, consequently, the plaintiff wearing personal protective equipment was not sufficient in shielding him from exposure to the dangerous herbicide. Paraquat is highly toxic to both plants and animals, creating oxidative stress that causes or contributes to the degeneration and death of plant or animal cells. Medical researchers who study Parkinson’s disease agree that oxidative stress is a major factor in the degeneration and death of the neurons that release dopamine, as well as in the accumulation of Lewy bodies in the remaining dopaminergic neurons, both of which being the primary hallmarks of Parkinson’s disease. The ability of certain chemicals to cause Parkinson’s disease has been known to medical researchers since at least the 1930s.

What the Defendant Is Eligible for from the Liable Companies

Russell Denes received his diagnosis of Parkinson’s disease in August 2016 and, at the time, was not aware that the cause of his brain disorder was paraquat exposure. Even though the plaintiff knew that the paraquat to which he was exposed was acutely toxic, he had no reason to suspect that chronic, low-dose exposure to it could cause neurological disorders such as Parkinson’s disease. Furthermore, he was not told by medical professionals, by the media, or by the liable companies that chronic, low-dose exposure to paraquat could cause him to suffer from Parkinson’s disease. The plaintiff requests the court to enter judgment in his favor and against the defendants for the following:

• actual or compensatory damages in such amount to be determined at trial and as provided by applicable law 
• exemplary and punitive damages sufficient to punish and deter the Defendants and others from future fraudulent practices 
• pre-judgment and post-judgment interest 
• costs including reasonable attorneys’ fees, court costs, and other litigation expenses 
• any other relief the court may deem just and proper 

From 2013 to 2017, the rate of Parkinson’s disease diagnosis increased by 107%, which is very alarming and may have a connection with the emerging use of paraquat across the United States. The use of paraquat has more than doubled from 2011 to 2017. Accordingly, it went from 3 million kilograms being used to 7 million kilograms being employed throughout the country. California is currently the leading consumer of paraquat, with 10,262,736 kilograms of the herbicide being applied to crops every year. Although the Environmental Protection Agency proposed a series of new safety measures with regard to paraquat use, such as forbidding aerial application for all uses except cotton desiccation and adding mandatory spray drift management label language on October 22, 2020, nothing came of it until now. If the employment of paraquat continues at this rate, we may come to witness more and more cases of Parkinson’s disease in the near future.

About the Author:

As the Director of Claims and Chief Financial Officer at Environmental Litigation Group, P.C., Jonathan Sharp is responsible for case evaluation, management of firm assets, and financial analysis, as well as for managing client relations and the collection and proper distribution of all the funds.

Environmental Litigation Group, P.C. is a law firm whose main area of practice is toxic exposure that is located in Birmingham, Alabama. Jonathan Sharp has been a part of the legal team of the firm for nearly 28 years. 

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1. Bennett Coleman and Co. vs Union of India AIR 1973 SC 106

The petitioners (Bennett Coleman and Co.) challenged the restrictions imposed on the import policy of the newsprint under Import Control Order 1955 and under the Newsprint Order 1962. The newsprint policy of 1972-73 then placed further restrictions under four features:

•established newspaper companies cannot start new newspapers if they already own two newspapers, one of which is a daily newspaper.

•The maximum limit on the number of pages in a newspaper was set to be 10 pages.

•Increase in the number of pages shall not be more than 20% for newspapers that are under 10 pages.

•interchanging newsprint was not allowed between different papers of same establishment or between different editions of the same newspaper.

Under these newsprint policies, even within the quota limit, the petitioners were not allowed to make adjustments and hence this was challenged under Article 19(1)(a) of the Constitution of India i.e., Freedom of Speech and Expression.

Held:

The Supreme Court in this case held that the petitioner’s case was maintainable and stated that even though the petitioner was a company, it cannot be taken as a bar to not award relief for violation of rights of shareholders and staff. The Court also said that as claimed by the respondents, Article 358 cannot be applied to laws passed before the proclamation of emergency and hence, the newsprint policy can be challenged in the court.

The Court noted that freedom of press is an essential element of Article 19(1)(a) and the absence of an express mention of such freedoms as a special category was irrelevant.[1]

The court observed that the fixing quotas can easily tackle the problem of shortage of newsprint and said that the direct interference with respect to page limit and other such regulations were irrational and no justified. Limiting the pages of a newspaper would mean forcing the establishment to reduce the content or reducing advertisement which would cause them a economic downfall which hence, would limit the freedom of speech and expression.

 The Court held that the Newsprint Policy of 1972-73 was unconstitutional. And the case went in favor of the petitioners.

2. Hamdard Dawakhana vs Union of India

This case was related to the advertisement of prohibited drugs and commodities. The product sold by the petitioners was said to have self-medicating values which was advertised to the general public as well. The petitioners in the case alleged that they were experiencing difficulty to advertise their product as many objections were raised against their advertisements.

The Supreme Court in this case held that an obnoxious advertisement cannot come within the scope of Article 19(1)(a). It held that an advertisement as an ‘commercial speech’ has two things to keep in mind:

•advertisement which is a commercial transaction is just spreading of information regarding the product.

•it is beneficial for the public if the information is available to them through the means of advertisement.

Examined from another angle, the court said that the public at large has a “right to receive” the “commercial speech”. Article 19(1)(a) not only guaranteed freedom of speech and expression but also protects the right of an individual to listen, read and receive the said speech.[2]

Advertisement of prohibited drugs would, therefore, not fall within the scope of Article 19(1)(a).

3. Romesh Thappar vs State of Madras

In this case, the petitioner used to a publish and circulate a newspaper names “cross roads” which used to review and criticize the schemes and activities of the government of Madras. The government of Madras banned the entry and circulation of this newspaper in the state by the restriction of public safety grounds.

The supreme court in this case said that the right of circulation of the newspaper lies solely with the establishment i.e., the company of the newspaper and the state of Madras cannot interfere with the same. The ground of Public safety under Article 19(2) is not a reasonable restriction and hence a ban on entry and circulation of the newspaper by the state of Madras cannot be imposed under Article 19(2).

4. Prabha Dutt vs Union of India

The petitioner, Smt Prabha Dutt Chief reported of Hindustan Times filed a petition under Article 32 of the Indian Constitution asking for a writ directing the respondent, the superintendent of Tihar Jail, to allow her to interview the two convicts named Billa and Ranga who are charged with death sentence for an offence under Section 302 of the Indian Penal Code and the petitions filled by them to the President of India for communication of the sentence are reported to have been rejected by the President recently.

The Supreme Court in this case directed the Superintendent of the Tihar Jail to allow the representatives of a few newspapers to interview two death sentence convicts under Article 19(1)(a) as “the right under Article 19(1)(a) is not an absolute right, nor indeed does it confer any right on the press to have an unrestricted access to means of information”.[3]

5. Indian Express Newspaper vs Union of India

Prior to this notification newsprint had enjoyed exemption from customs duty. The petitioners challenged the import duty on newsprint under the Customs Tariff Act 1975 and the auxiliary duty under the Finance Act 1981, as modified by a notification under the Customs Act 1962 with effect from March 1, 1981. They contended that after this notification the costs and circulations had been affected highly and it also had a crippling effect on freedom of expression under Article 19(1)(a) of the Indian Constitution and the freedom to practice any trade or occupation under Article 19(1)(g).

The Supreme Court of India in this case held that Article 19 of the Indian Constitution does not use the phrase “freedom of press”[4] in its language, but it is contained within Article 19(1) (a). There cannot be any interference with the freedom of press in the name of public interest. The purpose of the press is to enhance public interest by publishing facts and opinions, without which a democratic electorate cannot take responsible decisions. It is, therefore, the primary duty of courts to uphold the freedom of press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate[5]

6. A. Abbas vs Union of India

The issue of censorship of films under Article 19(2) was mentioned in this case in front of the Supreme Court of India. Films are divided into two categories i.e., “U” films which can be viewed by the general public of all ages and “A” that can only been shown to adults i.e., people of or above the age of 18 years can only view the film. This was done under the Cinematograph Act, 1952 to protect the viewers.

The petitioner’s film got an “A” certificate instead of “U” certificate and hence, the petitioner challenged the censorship in the court. He said that it was a clear violation of his fundamental right i.e., freedom of speech and expression.

It was held by the court that “it had been almost universally recognized that motion pictures must be treated differently from other forms of art and expression, because a motion picture’s instant appeal both to the sight and to hearing, and because a motion picture had become more true to life than even the theatre or any other form of artistic representation. Its effect, particularly on children and immature adolescents was great.”[6]

Hence the court upheld the censorship on the film and the case was dismissed.

7. People’s Union for Civil Liberties vs Union of India

The validity of Section 33B of the Representation of People Act, 1951 was challenged by the People’s Union of Civil Liberties. Section 33B provided that an electoral candidate is not bound to disclose any information apart from that required. In Union of India v. Association for Democratic Reforms[7], the Supreme Court of India recognized that the right to know about electoral candidates is well within the ambit of right to information available under the right to freedom of speech and expression described in Article 19(1)(a) of the Indian Constitution. Furthermore, it stated that information about the criminal background of candidates, assets and liabilities of candidates and their family members, and educational qualifications of candidates should be available to the voters as a part of the rights.

It was held by the Hon’ble Supreme Court that Telephone tapping, therefore, violates Article 19(1) (a) unless it comes within the grounds of reasonable restrictions under Article 19(2).[8]

8. Emmanuel vs State of Kerala

Three students were expelled from their school in 1985 for not singing the national anthem of India. Since they were from the religious background of Jehovah’s witnesses, they just stood silently during the national anthem of India in the School’s morning assembly. After they were expelled from school, their father filed a writ petition in the High Court of Kerala stating that the expulsion was a direct violation of their fundamental right which is Freedom of speech and expression and freedom of religion which is protected by the Indian Constitution under Article 19 and 25. The court dismissed the case and stated that “no words or thoughts in the national anthem was capable of offending religious convictions”[9]. Under Article 136 of the Constitution of India, their father later filed a special leave petition in the Supreme Court of India.

The Supreme Court held that the expulsion of school children merely for not singing the national anthem was a direct violation of their right to freedom of expression. It was stated that there were no provisions of law that made the three students or any individual obliged to sing the national anthem and the state of Kerala’s department of education lacked statutory force to require school children to participate.

9. Sakai Papers Pvt. Lmt. vs Union of India

The constitutional validity of the Newspaper Act, 1956 is being challenged by the petitioners of the case which are a private newspaper company, its shareholders, and the two readers. The newspaper act empowers the central government to regulate the cost of the newspapers with respect to the number of pages and the allocation of space for advertisements. The company also challenges the Daily Newspaper Order, 1960 under the Newspaper Act which was passed by the government to start such regulations. The act and order regulated the prices a publisher could charge for the newspaper and hence the petitions argued that both the Newspaper Act and the Newspaper Order violated the freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution.

The court in this matter held that the laws mentioned by the petitioners i.e., Increasing advertisement prices would either result in the increase in the cost of the newspapers or would result in reduced number of pages which would be dissemination of ideas which indeed is a fundamental aspect of right to freedom of speech and expression. The court held that the right to freedom of speech cannot be taken away from a company with the sole objective of restricting business and hence the Newspaper Act and Newspaper Order were said to be unconstitutional by the Supreme Court of India.

10. R. Rajagopal vs State of Tamil Nadu

A prisoner named Auto Shankar, who was held for murder and was sentenced to life imprisonment and death sentence, wrote an autobiography when he was imprisoned. The book discussed his personal life and his relation with many senior police officials, lot of whom have said to be involved with him in many illegal acts. Before his death sentence, he handed over the book to his wife after informing the prison officials of the same and the wife gave the book to the petitioners i.e., the editor, the associate editor, the printer and the published of a Tamil Magazine, for its publication. The Inspector General, when he got to know about the book, wrote to the published stating that the contents of the book were false and untrue, and that the book was defamatory in nature and that strict legal action will be taken against them if they proceed with publishing the book. The Tamil Magazine editor filed a petition against the Inspector General of Prisons to prevent him from violating their and the prisoner’s right to freedom of speech and expression.

The Supreme Court in this case held that the magazine had the right to publish the autobiography written by the prisoner, without his consent or authorization. It held that the state cannot prevent the publication but may sue the plaintiff for defamation after the article is published, but they had no right to stop the petitioners from publishing the book. It held that every person has the right to publish his/her autobiography because of his/her fundamental rights under Article 19 of the Indian Constitution and hence, the case was in favor of the petitioners.

Refences:

• https://globalfreedomofexpression.columbia.edu
• https://www.lawctopus.com/academike/freedom-of-speech-and-expression/
• http://www.legalservicesindia.com/article/1847/Freedom-of-Press—Article-19(1)(a).html
• http://www.legalserviceindia.com/legal/article-572-constitution-of-india-freedom-of-speech-and-expression.html
• https://blog.ipleaders.in/freedom-of-speech-and-expression/
• https://www.legitquest.com

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Equivalent citation : 1991 SCR (3) 189, 1991 SCC (3) 655

Bench : Shetty, K. J. Judge, Ray, B.C. Judge, Sharma L. M. Judge, Venkatachalliah, M.N. Judge, Verma, Jagdish Saran Judge.

Facts of the case : A complaint against the appellant who is a former Chief Justice of a High Court, was made to the CBI on which a case under  s. 5(2) read with s. 5( I )(e) of the

Prevention of Corruption Act, 1947 was  registered on 24.2.1976 and an F.I.R was the filed in the court of Special Judge on 28..2.1976. The appellant proceeded on leave from  9.3.1976  and retired on 8..4.1976 on attaining the age of superannuation. Investigation was then culminated and a charge sheet was filed against the appellant on 15.12.1977 before the Special Judge. The Charge-sheet stated that the appellant after assuming the office of the Chief Justice on 1.5.1969 gradually commenced accumulation of assets and was in the possession of pecuniary resources and property, in his name and in the names of his wife and two sons,  disproportionate to his known sources of income for the period between the date  of his appointment as Chief Justice and the date of  registration of the case, and thereby he committed the      offence of criminal misconduct under s. 5( 1 )(e), punishable under s.5(2) of the Prevention of Corruption Act, 1947. The  Special judge issued process for appearance of the appellant. Meanwhile, the appellant moved the High Court under s. 482, CrP.C. to quash the said criminal proceedings.

The  matter was heard by a Full Bench of the High Court which dismissed the application by 2:1 majority; but granted a certificate under Articles 132(1) and 134(1)(c) of the

Constitution in view of the important question of law involved. The matter then came to the Supreme Court of India.

Issues Raised : 

1)    Whether a judge of a High Court or of the Supreme Court is a ‘public servant’ within the meaning of s. 2 of the Prevention of Corruption Act, 1947 ?

2)    Whether a Judge of the High Court including Chief Justice or a Judge of the Supreme Court can be prosecuted for an offence under the Prevention of Corruption Act, 1947?

3)    Who is the competent authority to remove a Judge either of the Supreme Court or High Court from his office in order to enable that authority to grant sanction for prosecution of the Judge under the provisions of s. 6 of the Prevention of Corruption Act, 1947 ?

Arguments by both the sides 

PETITIONER :  The petitioner contended that the provisions of the Prevention  of  Corruption Act, 1947 do not apply to a judge of a superior Court as for such prosecution,

previous sanction of an authority competent to remove a public servant as provided under s. 6  of the Prevention of Corruption Act, 1947 is imperative and power to remove a Judge is not

vested in any single individual authority but is vested in the two Houses of Parliament and the President under Article 124(4) of the Constitution; that the Parliament cannot be the

sanctioning authority for the purpose of s. 6 and if the President is regarded as the authority,he cannot act independently as he exercises his powers by and with the advice of his Council of Ministers and the Executive may ‘misuse the power by interfering with the judiciary that s. 6 applies only in cases where there is master and servant relationship between the public servant and the authority competent to remove him, and where there is vertical hierarchy of public offices and the sanctioning authority is vertically superior in the hierarchy in which office of the public servant against whom sanction is sought exists and that no prosecution can be launched against a Judge of a superior Court under the provisions of the Prevention of Corruption Act except in the mode envisaged by Article 124(4) of the

Constitution. He also contended that no law prohibits a public- servant having in his possession assets disproportionate to his known sources of income and such possession becomes an offence only when the public servant is unable to account for it; and that the public servant is entitled to an opportunity by the investigating officer to explain disproportionality between the assets and the known sources of income and the charge sheet must contain such an averment, and failure to mention that requirement would vitiate the charge-sheet and render it invalid and no offence under s. 5(1)(e) of the Act could be made out.

RESPONDENT : The respondent in this case relied on the investigation conducted by the CBI as well as on the charge sheet filed by them and had evidence as to the disproportionate sources of income of the appellant to which the appellant does not deny hence no arguments by them. The only question they had is the competent authority to decide on the case.

Judgement of the case :

1.     A Judge of a High Court or of the Supreme Court is a ‘public servant’ within the meaning of s. 2 of the Prevention of Corruption Act, 1947.

2.     Prosecution of a Judge of a High Court, including the Chief 192 Justice, or a Judge of the Supreme Court can be launched after obtaining sanction of the competent authority as envisaged by s. 6 of the Prevention of Corruption Act.

Per Verma, J. (dissenting)–

1.     Judge or Chief Justice of a High Court is a Constitutional functionary, even though he holds a public office and in that sense he may be included in the wide definition of a public servant. But a public servant whose category for the grant of sanction for prosecution is not envisaged by s. 6 of the Act is outside the purview of the Act, not intended to be covered by the Act.The Prevention of Corruption Act, 1947, as amended by the 1964 amendment is inapplicable to Judges of the High Courts and the Supreme Court.

(Per Majority–Ray, Shetty and Venkatachaliah, JJ.)

1.     For the purpose of s. 6(1)(c) of the Prevention of Corruption Act, 1947, the President of India is the authority competent to give previous sanction for prosecution of a Judge of a superior Court.

2.     No criminal case shall be registered under s. 154, Cr. P.C. against a Judge of the High Court, Chief Justice of the High Court or a Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter.

3.     If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received, the Government shall consult any other judge or Judges of the Supreme Court.

4.      There shall be similar consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India.

 Verma. J. (dissenting)

1.     Section 6 of the Act is inapplicable to Judges of High Courts or of the Supreme Court and such Constitutional functionaries do not fail within the purview of the Preven- tion of Corruption Act, 1947.

Per B.C. Ray, J.

1.     A Judge of the High Court or of the Supreme Court comes within the definition of public servant under s. 2 of the Prevention of corruption Act, 1947. and he is liable to be prosecuted under the provisions of the Act. 

2.     A Judge will be liable for committing criminal misconduct within the meaning of s. 5(1)(e) of the Act, if he has in his possession pecuniary resources or property disproportionate to his known sources of income for which he cannot satisfactorily account. 

3.      Judge of a superior Court will not be immune from prosecution for criminal offences committed during the tenure of his office under the provisions of the Act.

4.     In order to launch a prosecution against a Judge of a superior Court for criminal misconduct failing under s.5(1)(e) of the Act, previous sanction of the authority competent to remove a Judge, including Chief Justice of a High Court, from his office is imperative.

5.     The President of India has the power to appoint as well as to remove a Judge from his office on the ground of proved misbehaviour or incapacity as provided in Article 124 of the Constitution and, therefore he, being the authority competent to appoint and to remove a Judge, of course, in accordance with the procedure envisaged in clauses(4) and (5) of Article 124. may be deemed to be the authroity to grant sanction for prosecution of a Judge under the provisions of s. 6(1)(c) in respect of the offences provided in s. 5(1)(e) of the Act .

6.     In order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before 194 him and tender his advice to the President for giving sanction to launch prosecution or for filing FIR against the Judge concerned after being satisfied in the matter. The President shall act in accordance with the advice given by the Chief Justice of India.If the Chief Justice of India is of opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned, the President shall not accord sanction to prosecute the Judge. This will save the ,fudge concerned from unnecessary harassment as well as from frivolous prosecution against him.In the case of the Chief justice of the Supreme Court, the President shall consult such of the Judges of the Supreme Court as he may deem fit and proper and shall act in accordance with the advice given to him by the Judge or Judges of the Supreme Court. 

7.     In the instant case, the appellant had resigned from his office and ceased to be a public servant on the date of lodging the F.I.R. against him by the C.B.I. and, therefore, no sanction under s. 6(1)(c) of the Act was necessary. R.S. Nayak v. A.R. Antulay, [1984] 2 SCR 495, referred to.

8.     A Judge of the Supreme Court as well as a Judge of the High Court is a constitutional functionary and to maintain the independence of the judiciary and to enable the Judge to effectively discharge his duties as a judge and to maintain the rule of law, even in respect of against the Central Government or the State Government, he is made totally independent of the control and influence of the executive by mandatorily embodying in Article 124 or Article 217 of the Constitution that a Judge can only be removed from his office in the manner provided in clauses (4) and (5) of Article 124.

9.     Power to remove by impeachment or address, a person holding office during good behaviour, is an essential counterpart to the independence secured to the holders of high office by making their tenure one of good behaviour instead of at pleasure. 

10.  A Judge of the Supreme Court or of the High Court can only be removed on the ground of proved misbehaviour or incapacity by an order of the President passed after follow- ing the mandatory procedure expressly laid down in Article 124(4) of the Constitution. Without an address by each of the Houses of the Parliament, the President is not 195 empowered under the Constitution to order removal of a Judge of the Supreme Court or of the High Court from his office on the ground of proved misbehaviour or incapacity. Therefore, the repository of this power is not in the President alone but it is exercised after an address by each of the Houses of Parliament in the manner provided in Article 124(4).Union of India v. Sakalchand, AIR 1977 SC 2328 and S.P. Gupta and Ors. v. President of India and Ors, AIR 1982 SC 149, referred to.

11.  There is no master and servant relationship or employer and employee relationship between a Judge and the President of India in whom the executive power of the Union is vested under the provisions of Article 53 of the Constitution.

12.  It is necessary to evolve some method commensurate with the grant of sanction in cases of serious allegations of corruption and acquisition or the possession of disproportionate assets which the Judge cannot satisfactory ac- count for or possession of property disproportionate to the sources of income of the Judge. Otherwise, it will create a serious inroad on the dignity, respect and credibility and integrity of the high office which a superior ,fudge occupies resulting in the erosion of the dignity and respect for the high office of the Judges in the estimation of the public.

13.  The purpose of grant of previous sanction before prosecuting a public servant including a Judge of the High Court or of the Supreme Court is to protect the Judge from unnecessary harassment and frivolous prosecution more particularly to save the Judge from the biased prosecution for giving judgment in a case which goes against the Government or its officers though based on good reasons and rule of law.

14.  Frivolous prosecution cannot be launched against a Judge for giving a judgment against the Central Government or any of its officers inasmuch as such decision does not amount to misbehaviour within the meaning of Article 124 of the Constitution. [226G-H] Shamsher Singh & Ant. v. State of Punjab, [1975] 1 SCR 814 and G.K. Daphtary v.O.P. Gupta, AIR 1971 SC 1132, referred to.

Per Shetty, and Venkatachaliah, JJ.

1.     The expression “public servant” as defined under s. 2 of the Prevention of Corruption Act, 1947 means a public servant as defined in s. 21, I.P.C. From the very commencement of the I.P.C. “Every Judge” finds a place in the categories of public servant defined under s. 21 and this expression indicates all Judges and all Judges of all Courts. It is a general term and general term in the Act should not be narrowly construed. It must receive comprehensive meaning unless there is positive indication to the contrary. There is no such indication to the contrary in the Act. A Judge of the superior Court cannot therefore excluded from the definition of ‘public servant’

2.      A public servant cannot be prosecuted for offences specified in s. 5 of the Prevention of Corruption Act, 1947, unless there is prior sanction under s. 6 for prosecution from the competent authority.

3.      There are two requirements for the applicability of clause (c) of s. 6(1) to a Judge of the higher judiciary–the Judge must be a public servant, and there must be an authority competent to remove him from his office. If these two requirements are complied with, a Judge cannot escape from the operation of the Act.

4.     The Judges are liable to be dealt with just the same way as any other person in respect of criminal offence. It is only in taking of bribes or with regard to the offence of corruption the sanction for criminal prosecution is required. There is no law providing protection for Judges from criminal prosecution.It is not objectionable to initiate criminal proceedings against public servant before exhausting the disciplinary proceedings, and a fortiori, the prosecution of a Judge for criminal misconduct before his removal by Parliament for proved misbehaviour is unobjectionable. [252D-E] The “proved misbehaviour” which is the basis for removal of a Judge under clause (4) of Article 124 of the Constitution may also in certain cases involve an offence of criminal misconduct under s. 5(1) of the Act. But that is no ground for withholding criminal prosecution till the Judge is removed by Parliament. One is the power of Parliament and the other is the jurisdiction of a criminal court. Both are mutually exclusive. 

5.     For the purpose of s. 6(1)(c) of the Act, the President of India the authority competent to give previous sanction for the prosecution 197 of a Judge of the Supreme Court and the High Court.

6.      Section 6(1) brings within its fold all the categories of public servants as defined in s. 21 of the I.P.C.

Considering the views above, the appeal therefore stood dismissed because the Court not being the competent authority to decide on the matter and the authority competent be decided by the Parliament,President along with the consultation of Chief Justice of High Court and Supreme Court.

Effect of the Judgement : 

A need was felt for a law providing for trial and punishment of a superior Judge who is charged with the criminal misconduct of corruption by abuse of his office. The Parliament being the sole arbiter, it was for the Parliament to step in and enact suitable legislation in consonance with the constitutional scheme which provides for preservation of the independence of judiciary and to expand the field of operation of the existing law to cover the superior Judges by usurping the legislative function of enacting guidelines since without the proposed guidelines the existing legislation cannot apply to them.

Case comments : 

There really is a need for an authority competent to remove the Judges of the subordinate, High court and Supreme Court under this Act. I totally agree with the view of dismissing the appeal since there was no authority who can grant the sanction for prosecution in case of criminal misconduct and taking no action except from removal of the Judge is also not appropriate. A punishment is also needed to be prescribed and the Judge being a public servant,even harsher punishments need to be enacted.

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Court Name – Supreme Court of India

Date of Judgment- 06 October 1993

Citation – AIR 1994 SC 868

Bench Name- Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M. Punchhi, Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand, S.P. Bharucha

FACTS OF THE CASE

This case deals with the interpretation of the word “consultation”. The Supreme Court of India dealt with this in the case of Union of India v. Sakalchand Seth and defined the scope of the word “consultation”. The court held that for an effective consultation, all the constitutional functionaries must have full and identical facts to be able to take decisions. The court empowered the president to be able to differ from the Chief Justice of India (CJI) and make a different decision. The judgment was that the word “consultation” does not necessarily mean “concurrence”. The effect of this judgment was that judiciary gave the executive an upper hand in appointing judges to insure the independence of judiciary. This court decision was reaffirmed in in the case of S.P. Gupta v. Union of India, which emphasised the independence of judiciary in India. These two judgments were bound to have an adverse impact on the impartiality and independence of Judiciary that is often the last hope of the citizens in this democratic nation of India. The effect of these decisions was that the appointment of judges will be the duty of the executive sphere of government. This resulted in political influence and favouritism in the appointment process of the judiciary. The entire system of justice delivery system was vitiated with these judgments.

The case of Supreme Court Advocates-on-Record Association and another v Union of India was filed as for such as a writ in the apex court for filling up the vacancies in the higher judiciary. This writ petition brought into review the controversial judgment of S.P. Gupta v. Union of India.

ISSUE

To determine the scope of the word “consultation” as in Article 124(2) of Constitution of India.

ARGUMENTS BY BOTH SIDES

PETITIONERS

In terms of Article 50 of the Constitution, the executive must be separate from the functioning of judiciary as much as possible. Therefore, such upper hand in appointment procedure vested in the executive is a clear violation of Article 50. The interference of executive in judiciary appointment must be minimised and CJI recommendation shall not be ignored. This power of defiance with the President has made the CJI a passive body instead of being an active participant in the appointment procedure. This passive and uninvolved status of CJI has proved to be counter-productive to the independence of judiciary. The basic feature of independence of judiciary is strangulated in the clutches of this executive superiority and this will result in erosion of a free and fair administration of justice. Therefore, to save the basic feature of independence of judiciary the court through its decision must construe the word “consultation” as equivalent to “concurrence”.

RESPONDENTS

In terms of Articles 124 & 214 of the Constitution, the president being the executive head of the nation, he is given power by the Constitution to appoint judges in Supreme Court and High Court based on the advice of the Cabinet Ministers. The CJI is a mere consulter in the process, the executive has a greater authority to act. The executive differing from the views of CJI is no impairment of Independence of Judiciary. The Constitution itself has granted greater autonomy to the President in the appointing process. The only role of CJI is that he has to make the President aware of the facts unknown to him regarding the considered candidate. The CJI’s role ends at this stage and then it is upon the President to finally appoint whoever he deems fit to hold the office.

The respondents submit that the independence of judiciary is not violated. The power to appoint the respective judges has been given by the Constitution to the President and during appointment the judge owes his faith & allegiance to the constitution and not to the appointing authority. The tenure of the office of these judges are fixed by the Constitution and no branch either Parliament or Executive has the competence to remove the judge from his office except in case of impeachment. The perks, allowances and salary of these judges are fixed by the Constitution and the Parliament cannot even by a unanimous bill reduce the quantum of such salary, perks & allowances. The conduct of a judge of SC or HC can never be discussed in a session of Parliament due to the privileges granted by the Constitution. Both higher judicial courts are Courts of Record, they have the power to punish the ones who disrespect their decision. Both the higher judicial courts are given the power to decide the constitutionality of actions of the governments of the state as well as union government.

Therefore, by virtue of these Constitutional provisions the Parliament or Executive can neither impair Independence of Judiciary which is basic structure of Constitution nor can they make an amendment in these constitutional provisions since they constitute to be components of Independence of Judiciary.

JUDGMENT

The 9-judge bench, the judgment was delivered with 7 to 2 majority which overruled its earlier decision in S.P. Gupta v. Union of India case and held that in issues regarding the appointment of judges in higher judiciary the opinion of CJI must be given primacy in order to minimize the executive influence in the judicial functions. The majority judgment was delivered by Justice Verma on behalf of Ray, Anand, Dayal and Bharucjajj. while Kuldeep Singh and S.R. Pandian delivered separate but concurring opinion and Ahmadi & Punchhijj. gave the minority opinion.

The court overruling its decision of S.P. Gupta v. Union of India case and held that the largest importance must be given to the recommendation of the CJI formed after taking into consideration the opinion of 2 senior most judges of the Supreme Court. Therefore, this judgment saving the spirit of article 50 of the Constitution minimized the executive influence in judicial appointments. Further, the judgment thereby reduced the political influence and personal favouritism from the appointment procedure.

The court ruled that the appointment shall be made by giving primacy to the opinion of CJI and the executive branch of the government shall only play the role of checks and balances on the judges’ exercise of power. Thus, through this judgment the court corrected the mistakes committed in the past by reducing executive influence in the appointment process and the elimination of the political influence, biasness, and favouritism. The court also expanded the scope of the word “consultation” by construing it in equivalent terms with “concurrence”.  

The minority opinion by Ahmadi & Punchhi JJ was that if as per majority’s view the primacy is to be given to the CJI then as a result of this upper hand the role of other constitutional functionaries discussed in the relevant provision of appointment procedure would become minimal and close to negligible. This erosion of power will result in an injury irreversible to the basic facet of Constitution as of the separation of power. In their opinion if this would be the case then there is way too much levy on the part of the judiciary and this inequality in the panel would often result in biasness, conflict and finally to chaos.

The majority along with delivering this landmark judgment also provided guidelines which must be followed in future in the procedure of appointment of judges in higher judiciary. The majority bench provided that in case there is a need of appointment of judge of apex court the initiation of proposal must be from CJI and in matters of High Court through CJ of the respective High Court. The same way must be adopted for the transfer however, transfer of CJ of HC must be on the initiation of CJI. Reiterating the ratio of the case the court held that no appointment shall be made unless it is in conformity with the opinion of CJI. For the appointment of CJI the senior most judge of the apex court must be appointed as the next CJI.

The court gave guidelines as to that the CJI’s opinion must be given primacy but he must consult with his two senior-most colleagues; all the constitutional functionaries involved in the appointment process must participate harmoniously; and transfer of Judges cannot be challenged in the courts.

EFFECT OF THE JUDGEMENT

The decision of this case is a very important and sound decision in the sense that the majority overruled its earlier decision which gave the power of final word to the government. The majority now gave up a much more liberal and flexible interpretation of the word “Consultation” which earlier meant an opinion with no binding value. This position was changed by the judgment as now “Consultation” was meant as “Concurrence” and therefore granted it binding value. By the virtue of this decision the government cannot ignore the opinion and recommendation of the Chief Justice of India thereby reducing executive influence, political biasness, favouritism and influence. The decision upheld the validity of Article 50 which demanded the state to minimize the executive influence from the judicial works. The majority bench shifting its stance on the matter considered that in matters of selection of the best suitable candidate for the office the CJI has the most extensive and thorough knowledge and that should be respected. The decision sought to strengthen the foundational features and basic structure of the constitution. The court has further to balance the powers of the panel had recommended that the process should be treated as one with mutual participation by taking into consideration the opinion of each and every consultee and giving the greatest weight to the CJI. In this way the powers of all the member participants would be balanced and there would be no misuse of authority. The law laid down in this decision is one of great importance and therefore must be cherished. This decision minimized the political influence that the judiciary was suffering since independence. It also checked the government’s practice to appoint a judge bypassing the opinion of CJI.

CASE COMMENT

The overall effect of the decision was great as in history quite a many times government to influence a decision played with the appointments as they were playing a game of Chess. The decision finally stored the power of appointment in the hands of CJI to minimize and control the executive influence in judicial appointments. Therefore, due to this decision to a great extent the political influence, biasness and favouritism was reduced in judicial matters which boosted the foundational and basic structure of constitution. However, this system is non-transparent since it does not involve any other branch of government. Favouritisms can still occur as there is no public knowledge of how the CJI will make its decisions. Taking in regard his opinion there is surely a need to rethink the matter and to come up with a stringent solution.

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Citation: 1967 AIR, 1 1966 SCR (3) 744

Date of Judgment: 3^rd March, 1966

Court Name: Supreme Court of India

Bench: P.B. Gajendragadkar (CJ), A.K. Sarkar (J), K.N. Wanchoo(J), M. Hidayatullah (J), J.C. Shah (J), J.R. Mudholkar (J), S.M. Sikri (J), R.S. Bachawat (J), and V. Ramaswami, (J).

Relevant Articles: Articles 14, 19 (1), 32, 136, 215 and 226 of the Indian Constitution.

 Summary of Facts: China Cotton Exporters, of which Mr. Thackersey was a partner, had obtained licences for import of art silk yarn on condition that the same would be sold to handloom weavers only. In order to sell the said silk yarn in the black market with a view to realise higher profits, three bogus handloom factories were created on paper. Bhaichand G. Goda was alleged to have been the guarantor in respect of the transactions mentioned in the said suits and was a defence witness in the libel suit.  The allegations made by Mr. Goda against Mr. Thackersay in an affidavit were published in the paper ‘Blitz’ edited by Mr. R. K. Karanjia, one of the parties in the original libel suit under article “Scandal Bigger than Mundhra”.

During the course of the trial, the said Bhaichand Goda was called as a defence witness by Mr. Karanjia. In the witness-box, Mr. Goda feigned complete ignorance of the said transactions; and under protection given to him by the learned Judge who was trying the action, he repudiated every one of the allegations he had made against Mr. Thackersey’s concern. Thereupon, Mr. Karanjia applied for permission to cross-examine Mr. Goda and the said permission was granted by the learned Judge. On Friday, the 23rd October, 1964, Mr. Goda stepped into the witness-box and on that occasion he moved the learned Judge that the latter should protect him against his evidence being reported in the press. He stated that the publication in the press of his earlier evidence had caused loss to him in business; and so, he desired that the evidence which he had been recalled to give should not be published in the papers. When this request was made by Mr. Goda, arguments were addressed before the learned Judge and he orally directed that the evidence of Mr. Goda should not be published. The learned Judge then told the counsel for Mr. Karanjia that ‘Blitz’ should be told not to publish reports of Mr. Goda’s evidence.

Mr. Karanjia had urged before the learned Judge that the fundamental principle in the administration of justice was that it must be open to the public and challenged the correctness of the said order and alternatively suggested to the learned Judge that he should pass a written order forbidding publication of Mr. Goda’s evidence. The learned Judge, however, rejected Mr.Karanjia’s contentions and stated that he had already made an oral order forbidding such publication, and that no written order was necessary. He added that he expected that his oral order would be obeyed. The petitioner felt aggrieved by the said oral order passed by the High Court Justice and moved the Bombay High Court by a Writ Petition under Art. 226 of the Constitution. The said petition was, however, dismissed by a Division Bench of the said High Court on the ground that the impugned order was a judicial order of the High Court and was not amenable to a writ under Art. 226. That is the reason the petitioner moved the Supreme Court under Art. 32 for the enforcement of his fundamental rights under Art. 19(1) (a) and (g) of the Constitution.

Issues before the Court: The question which arises from the above facts is whether a judicial order passed by the High Court prohibiting the publication in newspapers of evidence given by a witness pending the hearing of the suit, is amenable to be corrected by a writ of certiorari issued by the Supreme Court under Art. 32 (2). This question has two broad facets:

a)      Does the impugned order violate the fundamental rights of the petitioners under Art. 19(1) (a), (d) and (g);

b)      If it does, is it amenable to the writ jurisdiction of the Supreme Court under Art. 32 (2)?

Arguments by the Petitioner: The petitioners urge that the fundamental rights of citizens guaranteed by Art. 19(1) are absolute, except to the extent that they are restricted by reasonable restrictions imposed by law within the limitations prescribed by clauses (2) to (6) of Art. 19. According to them, it is doubtful whether even the Indian Legislatures have the power to ban publication of faithful reports of proceedings in the Legislatures, much less can the courts have power to ban such publication. They also allege that a restriction imposed in the interests of the witness cannot be held to be justified under Art. 19 (2), and that in passing the impugned order, the learned Judge had exceeded his jurisdiction.

The petitioner also urges that the fundamental rights guaranteed to the citizens by Part III of the Constitution are very wide in their scope; and the right to move the Supreme Court by an aggrieved citizen is not limited to his right to move only against the Legislature or the Executive. Art. 32(1) is very wide in its sweep and no attempt should be made to limit or circumscribe its scope and width. The right conferred on the citizens of this country by Art. 32(1) is itself a fundamental right; and so as soon as it is shown that the impugned order has contravened his fundamental rights under Art. 19(1), the petitioner is entitled, as a matter of guaranteed constitutional right, to move the Supreme Court under Art. 32. The power to issue writs conferred on the Supreme Court of India by Art. 32(2) is a very wide power, and it includes the power to issue not only the writs therein specified, but also directions or orders in the nature of the said specified writs.

The said order by the High court cannot claim immunity from being challenged under Art. 32, because some of the fundamental rights guaranteed are clearly directed against courts. In support of this contention, he relies on the fundamental rights guaranteed by Art. 20 (1) & (2), Art. 21, and Art. 22 (1). These Articles refer to protection in respect of conviction for offences, protection of life and personal liberty, and protection against arrest and detention in certain cases, respectively. Read with Art. 32(1) and (2) together in this broad perspective and it would follow that if a judicial order contravenes the fundamental rights of the citizen under Art. 19(1), he must be held entitled to move this Court under Art. 32(1) and (2).

Arguments by the Respondent: According to the respondent, the impugned order was passed by the learned Judge in exercise of his general and inherent powers and he was justified in making such an order, because in his opinion, the excessive publicity attendant upon the publication of Mr. Goda’s evidence would have caused annoyance to the witness or the parties, and might have led to failure of justice. It urges that it is for the Judge trying the suit to consider whether in the interests of the administration of justice, such publication should be banned or not. According to the respondent, the impugned order cannot be said to affect the petitioners’ fundamental rights under Art. 19(1); and that even otherwise, it is protected under Art. 19 (2).

Respondent No. I also contends that the High Court being a superior Court of Record, is entitled to determine questions of its own jurisdiction; and orders like the impugned order passed by the High Court in exercise of its inherent jurisdiction are not amenable to the writ jurisdiction of this Court under Art. 32 (2) of the Constitution. It was contended that the scope of Art. 32(1) is not as wide as the petitioner suggests. He argues that in determining the scope and width of the fundamentals rights guaranteed by Part III of the Constitution, with a view to decide the extent of the fundamental right guaranteed by Art. 32(1), it is necessary to bear in mind the definition prescribed by Art. 12. Under Art. 12, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India. He specifically emphasises the fact that the Judicature is intended to be excluded from the said definition. Before a citizen can be permitted to move this Court under Art. 32(1) for infringement of certain fundamental rights, it must be shown that the said rights have been made enforceable by appropriate legislative authority.

In regard to Articles 20, 21 and 22, the respondent’s argument is that the protection guaranteed by the said Articles is intended to be available against the Legislature and the Executive, not against courts. That is how he seeks to take judicial orders completely out of the scope of Art. 32 (1). According to him, private rights, though fundamental in character, cannot be enforced against individual citizens under Art. 32 (1).

Majority Judgment:  Regarding the first question of law, it was held that the argument that the impugned order affects the fundamental rights of the petitioners under Art. 19(1), is based on a complete misconception about the true nature and character of judicial process and of judicial decisions. It is singularly inappropriate to assume that a judicial decision pronounced by a Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Art. 19(1). Just as an order passed by the court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court, so could the impugned order be challenged in appeal under Art. 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioners. The character of the judicial order remains the same whether it is passed in a matter directly in issue between the parties, or is passed incidentally to make the adjudication of the dispute between the parties fair and effective. On this view of the matter, it seems to us that the whole attack against the impugned order based on the assumption that it infringes the petitioners’ fundamental rights under Art. 19(1), must fail.

Obiter dicta: The administration of justice is the primary object of the work done in courts; and so, if there is a conflict between the claims of administration of justice itself and those of public trial, public trial must yield to administration of justice. If the High Court thus had inherent power to hold the trial of a case in camera, provided, of course, it was satisfied that the ends of justice required such a course to be adopted, it would not be difficult to accept the argument urged by the Respondent that the power to hold a trial in camera must include the power to hold a part of the trial in camera, or to prohibit excessive publication of a part of the proceedings at such trial. Moreover, the impugned order prevented the publication of Mr. Goda’s evidence during the course of the trial and not thereafter.

Regarding the second question of law, if a judicial order made by the High Court binds strangers, the strangers may challenge the order by taking appropriate proceedings in appeal under Art. 136. It would, however, not be open to them to invoke the jurisdiction of this Court under Art. 32. The impugned order is passed in exercise of the inherent jurisdiction of the Court and its validity is not open to be challenged by writ proceedings.  It was also held that the High Court is a superior Court of Record and under Art. 215, shall have all powers of such a Court of Record including the power to punish contempt of itself. One distinguishing characteristic of such superior courts is that they are entitled to consider questions of their jurisdiction raised before them. So far as the jurisdiction of the Supreme Court to issue writs of certiorari is concerned, it is impossible to accept the argument of the petitioners that judicial orders passed by High Courts in or in relation to proceedings pending before them, are amenable to be corrected by exercise of the said jurisdiction. The words used in Art. 32 are no doubt wide; but having regard to the considerations which has been set out in the course of this judgment, the Hon’ble Judges were satisfied that the impugned order cannot be brought within the scope of this Court’s jurisdiction to issue a writ of certiorari under Art. 32. The result is, the petitions fail and are dismissed.

Obiter dicta: It was not disputed that where the action taken against a citizen is procedurally ultra vires, the aggrieved party can move this Court under Art. 32.

Dissenting Judgment: Justice Hidayatulla held that the order of Mr. Justice Tarkunde of Bombay High Court imposing suppression of the reporting of the deposition of Goda was illegal and without jurisdiction. It was not in his power to make such an order on the ground he was moved and further because the order either purports to impose a perpetual ban or leaves the matter in doubt, thus placing those concerned with the publication of the report under a virtual sword of Damocles, the order cannot be sustained. It is not right to assume that courts possess a general or inherent power of dispensing with open and public trials. The rule about reporting of cases in court is this: what takes place in court is public and the publication of the proceedings merely enlarges the area of the court and gives to the trial that added publicity which is favoured by the rule that the trial should be open and public. It is only when the public is excluded from audience that the privilege of publication also goes because the public outside then have no right to obtain at second- hand what they cannot obtain in the court itself. Mr. Justice Tarkunde, having held a public trial, could not curtail the liberty of the press by suppressing the publication of the reports.

Regarding the second point it was laid down that as the Judge passed no recorded order; the appropriate remedy (in fact the only effective remedy) is to seek to quash the order by a writ under Art. 32 of the Constitution. Under the total scheme of the Constitution the subordination of High Courts to the Supreme Court is not only evident but is logical. Therefore the Supreme Court can issue a high prerogative writ to the High Court for enforcement of fundamental rights.

Effect of the Judgment: The majority judgment about the power of the Supreme Court to issue a writ Article 32 to the High Court or another bench of the same Court was upheld in a number of judgments in the later years such as in A.R.Antulay vs. R.S. Nayak and Anr. (1988)[1] where this judgment was relied upon by the Apex Court to hold that the judicial proceedings in this Court are not subject to the writ jurisdiction under Article 32 of the Constitution and that is so on account of the fact that Benches of this Court are not subordinate to larger Benches thereof and certiorari is not admissible thus for quashing of the Orders made on the judicial side of the court. The same was upheld by the Supreme Court again in Ajit Kumar Barat vs. Secretary, Indian Tea Association and Ors (2001)[2] and many other subsequent cases. So in that regard this particular judgment has become a landmark judgment.

The judgment on the publication of media reports of trial has led to the fact that usually publications in media regarding an ongoing trial can be held as a contempt of court if it prejudices judicial proceeding or interferes with administration of justice. In the 200th Law Commission Report (2016) on "Trial by Media: Free Speech vs. Fair Trial under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)” it was proposed that publication which are prejudicial towards the accused should be held as contempt of court even before a charge sheet is filed and right from the time an arrest is made.[3] The Hon'ble Supreme Court in the case of R.K. Anand vs. Registrar, Delhi High Court (2009)[4] upheld journalistic freedom and the freedom of speech of the media unless it is in contempt of court under the Contempt of Courts Act, 1971.  However, in Inspector Anil Kumar vs. M/S. I Sky B (2016)[5] it was held that when a conflict arises between fair trial and freedom of speech, the former prevailed because the compromise of fair trial for a particular accused will cause them permanent harm whereas the inhibition of media freedom ends with the conclusion of legal proceedings. It is unthinkable to allow destroying the essential power and duty to protect fair trial of persons accused of crimes because this is an extreme form of 'trial by media' who usurps the function of the Court without the safeguards of procedure, right to cross-­examine etc. and such publications prejudge the facts and influence the Court, witnesses and others.

Case Comment: The judgment that the Supreme Court of India does not have the jurisdiction to issue a writ of certiorari to the High Court or another bench of the same Court under Article 32, unless the judgment is ultra-vires, has become a well-established principle of Indian law. The majority decision had been right in the matter for the reason that the learned judges pass any order after much careful consideration and an aggrieved party always has the path of appeal open to it. Therefore the question of issuing a writ of certiorari does not arise except under extreme circumstances.

The Apex Court’s majority judgment that if publication in media of facts and evidence regarding an ongoing trial is prohibited then it does not breach the fundamental right of freedom of speech is actually right as has been proved by subsequent legislations and case laws. Fair trial and justice is of foremost importance and therefore anything that may prejudice or interfere with the course of justice should not be held to be a contempt of court as is also laid down in Article 19 (2). The scope for this needs to be widened in light of the current circumstances of media trial in the Sushant Singh Rajput case.

[5] CS No. 323/2013, https://indiankanoon.org/doc/158958466/

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