The Universal Declaration of Human rights has been rectified by a number of countries and despite their developing nature, many countries in the South Asian continent have adopted human rights and are making genuine efforts for the same. India and Afghanistan are both such countries.

INDIA AND AFGHANISTAN: HUMAN RIGHTS ANALYSIS

India is the world’s largest democracy. With a population of over a billion, the implementation of human rights becomes a very daunting task for the country. India has a played an active role at an international level in the promotion and protection of Human rights. It is a signatory to a number of International Conventions including the Universal Declaration of Human rights, International Covenant of Civil and Political Rights, International Covenant on Economic, social and cultural rights, Convention on rights of the child, and the Convention on the elimination of all forms of discrimination against women. Furthermore, India is also a signatory member of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which is also known as the United Nations Convention against Torture (UNCAT).

(Source: https://www.globalvillagespace.com)

 Human Rights as a fundamental element are enshrined in Afghanistan’s constitution however, the same has always been a topic of conflict in the country. In chapter two of the Constitution, the bill of rights venerates the rights to life and liberty being protected constitutionally. Also since 1987, Afghanistan has been an active member of the United Nations Convention against Torture. On January 24, 1983, Afghanistan sanctioned the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant of Economic, Social, and Cultural Rights (ICESCR). ICCPR and ICESCR are two important treaties that pledge the benefit of basic human rights and freedom from discrimination of all kinds to all people irrespective of their gender, caste, or ethnicity. The Afghan Independent Human Rights Commission (AIHRC) was also set up in the year 2001, as an institution to protect human rights and to probe issues of violation of human rights and other war crimes.^[2]

(Source: http://www.rawa.org/dec999.jpg)

Despite the presence of several institutions acting as watchdogs against human rights violations in developing nations like India and Afghanistan, there is still a long way to go. In Afghanistan, people not only face several kinds of Human rights violations but are also subjected to Taliban decrees which intensify the human rights abuse and makes the state of affairs even worse for women due to discriminatory gender practices. The existing armed violations supplemented by the complex nature of the prevailing turmoil have resulted in massive suffering of human lives. Further forceful displacements based on ethnicity, refugees migration to Pakistan and Iran and their consequent drudgery, capricious arrests and detentions of civilians leading to executions, use of arms on civilians, systematic abuse of women rights based on gender to control all spheres of their existence by Taliban, inhuman treatments, severe punishments, lack of the freedom of expression, association, religion and liberty are some of the gravest concerns which are against the very spirit of humanitarian laws.^[3]

In India, numerous basic human rights violations are witnessed which include, unlawful and discretionary killings, including extrajudicial killings executed by police; torment and instances of pitiless, brutal, or debasing treatment or discipline by some police and jail authorities; subjective capture and confinement by government specialists; unforgiving and perilous jail conditions; political detainees or prisoners in specific states; limitations on opportunity of articulation and the press, including savagery, dangers of viciousness, or baseless captures or arraignments against writers, utilization of criminal criticism laws to indict web-based media discourse, control, and website hindering; excessively prohibitive principles on nongovernmental associations; limitations on political support; far and wide defilement at all levels in the public authority; absence of examination of and responsibility for savagery against ladies; violations including brutality and separation focusing on individuals from minorities.

In the Union territory of Jammu and Kashmir, the northeast and areas under the Maoists are severely impacted due to the presence of terrorists and separatist groups. The lack of any vital actions on part of the Government has further made the scenario despicable. Continued human rights abuses including killings of armed and police forces; torturing, killings and disappearances of civilians, baseless imprisonment and detention of people, denial of a fair trial, loathsome detention conditions, violation of freedom of expression and disrespect of civil liberties, and several such degrading and inhuman practices are still widespread.

Regardless of government endeavors to address such human rights abuses, an absence of responsibility and accountability for such behavior, adds to far-reaching exemption. Inquiry and investigations of individual cases have occurred, but inadequate authorization, lack of prepared officials of the police force, and an overburdened and overstretched court framework added to a very insignificant amount of actual convictions.^[4]

SUGGESTIONS FOR IMPROVEMENTS IN INDIA:

It is true that Rome was not built in a day, similarly, an overnight change of the human rights scenario including its violation and enforcement is not possible. It is a very daunting task that requires an efficient commitment and tireless efforts before even meager improvement touches the surface of society. However, this area of improvement is not completely grey. There are certain improvement measures that can be adopted by a country like India to ensure that Human rights are guaranteed to all individuals.

• India is a very diverse country vis-à-vis religion, culture, language, etc. No doubt, the country preaches the ideal of ‘unity in diversity’ but this euphoric idea is not always prevailing. Many times, Human rights violation in India takes place because of the presence of this sharp diversity. Thus, it becomes extremely important that the law enforcement agencies along with those associated with the protection of Human rights adopt a neutral approach and are sufficiently trained in the fundamental concept of human rights and the sensitivity that the subject demands.
• India has a robust human rights mechanism and a strong theoretical infrastructure, however, there exists a cardinal gap between the vigorous statutes and the actual implementation of the law. There is a lack of efficiency in the enforcement of the human rights system giving rise to human rights violation cases. What is required is the introduction of strict accountability of the human rights implementation agencies, furthermore, there is a need for some degree of autonomy to be guaranteed to these institutions so that it can be fairly presumed that these organisational setups are impartial in nature.
• An independent watch-dog unit needs to set up who will be deliberated with the task of observing any human rights violation that takes place in the country and to observe any inconsistency in the government or its related agencies while addressing human rights issues. This neutral unit should be empowered to direct and assist the government. The unit may comprise of individuals well versed in human rights laws, having sufficient experience and are sensitive when dealing with human rights issues.
• In India, most human rights violations often go unaccounted for as there is lack of awareness among the common masses. To do away with this ignorance, a substantial structural change is to be achieved by introducing human right as an academic subject from the middle school level and encouraging human rights discussion forum and clubs at school levels.
• Furthermore, human rights education can be strengthened further by employing the impactful service of the Legal Aid clinics at district levels to moderate and facilities sessions on human rights education among different class of people.
• Good and powerful Human right literature and news should be made available in different languages and should be lucid. Funds should be allocated to ensure their availability and distribution are increased and circulated in all government schools and colleges.
• One important recommendation that is evident for Human rights protection; is the efficacy of the judicial system. The human rights violation cases should be dealt with as expeditiously as possible and stern actions to be taken against human rights violators.
• Lastly, a community participation policy needs to be adopted by the government in its approach to human rights cases. There is a need to create a forum of discussion, participation, and dialogue among the common masses at micro and macro levels so that their collective voices are channelized towards strong human rights policy drafting.

For a fast-developing country like India, what is required is that a balance is stricken between the overall development and basic rights to life of its citizen (Article 21).              

[1]https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx (last visited 7:45 AM (IST), dated 18/06/2021) 

[2] https://www.refworld.org/docid/3b00f24d14.html (last visited 8:30 PM, 18/06/2021)

[3] https://www.hrw.org/reports/2001/afghan3/afgwrd1001-04.htm#:~:text=Afghanistan%20ratified%20the%20CRC%20on,on%20the%20grounds%20of%20sex. (last visited 9:00 PM, dated 18/06/2021)

[4] https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/india/ (last visited 9:45 PM, dated 18/06/2021)

Disclaimer: The opinions expressed in this article are those of the author.

The post Comparative Analysis of Enforcement of Human Rights in India and Afghanistan appeared first on Legal Desire Media and Insights.

Bader gained a lot of appreciation in the eyes of not only the legal community but the whole world due to her intellectual dissent in landmark cases. Because of her strong opinions and outspokenness, she was referred to as the ‘Notorious RBG’ after the famous Hip–hop rapper ‘Notorious Big’. 

Ruth Bader passed away on September 18, 2020 at the age of 87 in Washington D.C, US after battling Metastatic pancreatic cancer. Inspired from her life, many people describe Ginsburg as ‘what America should be’.

EARLY LIFE AND LEGAL CAREER– 

Ruth Ginsburg was born as Joan Ruth Bader in a well observant Jewish family. She was the younger of the two siblings of Nathan and Celia Bader. As a school going child, Ruth excelled in her studies and actively participated in all the extra-curricular activities. She was a good student throughout her high school year. Ruth’s mother Celia, died of cancer before her high school graduation. 

Ruth Bader started her formal college education at the Cornell University where she met her husband, Martin Ginsburg whoplayed a great role in influencing her to pursue law as a career. Vladimir Nabokov and Robert Cushman were two other people who had heavily influenced Ruth’s mind set.

Ruth joined the Harvard Law School to study law. She was an exceptionally bright student. While completing her hectic course work, Ruth also actively held the position of the editorial staff of the Harvard Law School. Despite the burdening lifestyle, Ruth did not take a back seat to provide care to her daughter and her husband who was suffering from cancer at that time. Ruth graduated in law from the Columbia Law University where she finished by topping her class in 1959. 

Despite the excellent academic history and strong understanding of the law, she was unable to find any employment which is believed to be because of the fact that she was a woman and mother. The possibility accounts due to the fact that there was an absence of a large number of female lawyers in the US. Ruth Bader embarked on her legal journey after she joined the clerkship in the Southern District court of New York (1959-61). This professional endeavor was followed by many other positions including Associate Director of Columbia Law School’s project on international procedure (1962-63), assistant professor at Rutgers school of law (1963), a judge at the U.S Courts of Appeals (District of Columbia circuit) and finally was nominated by President Bill Clinton. She received confirmation by the Senate on August 3, 1993 (96-3 votes).

FEMINEST ICON: 

Ruth Bader was and is recognized as a trailblazer of gender equality. She has heavily contributed towards the protection and promotion for gender even during the times when such ideas were not in vogue. Ruth Bader began her formal journey in thearea of gender equality in 1970 when she moderated a panel of students in a discussion on ‘Women’s liberation’. The event inspired Ruth to explore more about the issue. In 1971, Ruth wrote two law review articles on ‘gender discrimination’ issues. Her journey as an advocate of gender equality grew more prominent when Ruth joined the American Civil Liberties Union (ACLU) to deal with federal cases.  

Further in 1972, Ruth became the Co-founding member of the Women’s Right Project under the ACLU. She also authored and co-authored many law casebooks on the issues of gender discrimination. She also published various review articles on different Supreme court brief’s regarding the same issue.      While pondering on the issue of sex discrimination, Ruth was of an opinion that “‘Inherent difference’ between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women ‘for particular economic disabilities [they have] suffered,’ But such classification may not be used, as they once were, to create or perpetuate the legal, social and economic inferiority of women”    

THE CHAMPION OF LIBRAL ADJUDICATION: NOTABLE CONTRIBUTIONS

Ruth Bader’s iconic legacy has heavily influenced the ideals of justice and democracy, she is known for her significant mark on the growing wave of feminism and basic social ideals which form part of our everyday life. One of her most notable contribution in the legal field which earned her the huge respect among the masses was in the landmark case of United State v. Virginia wherein a claim was made before the court to challenge the male-only criteria for the admission to the Virginia Military Academy. Ruth in this case argued the policy of the academy was not only violative of the equal protection clause given in the 14th Amendment but was also arbitrary. The academy lacked a reasonable explanation to justify the selection based on sex. Court at one point observed that ‘There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the institute rather than enhance its capacity to serve the ‘more perfect Union’.

Ruth Bader’s approach was not only limited to the rights of women or the LGBTQ, her favorable decisions covered under their ambit even the people with disabilities. Olmstead v. L.C is one such example which serves as a big win for the people with disabilities. In this case, where two women who were suffering from mental illness were compelled to stay within the institute despite an affirmation for the medical professional for the community-based program. Ginsburg in this case observed ‘States are required to place persons with mental disabilities in community setting rather than in institution when the state’s treatment professionals have determined that community placement is appropriate…”

In the famous case of Ledbetter v. Goodyear Tire and Rubber company case, the case was an appeal before the supreme court against the decision of the federal court wherein one Lily Ledbetter had sued her employer when she found that she was being paid less than her male colleagues. In this case, Ruth expressed her dissent and argued for equal pay. Her dissent influenced the passing of the Lily Ledbetter Fair Pay Act which was signed in 2009 by then president Barack Obama.

Ruth Bader earned the title of the notorious RBG after her sharp dissent against the decision of the Supreme court in 2013 to struck down the provision where approval from the department of Justice was required by the state to make amendments to the laws relating to voting. Ginsburg wrote “the sad irony of today’s decision lies in (the court’s) utter failure to grasp why the (law) has proven effective”. After this decision, Ruth Bader earned a popular name as a cultural icon.    

Some landmark cases which changed the face of America’s socio-cultural life are also part of the Ginsburg legacy. In the case of Obergefell v. Hodges (2015), where the issues were regarding the marriage of the same sex. In this case, Ruth Bader favored the decision of the majority to quash the ban on the same sex marriage. This decision was welcomed all over the United States, labeling Ginsburg as a ‘gender right champion’. 

In another case of Whole Woman’s Health v. Hellerstedt (2016)which was regarding to the issue of abortion. The Supreme court struck down the HB 2 (Texas’ restrictive Omnibus Abortion bill) which laid down restrictions of abortion. Ruth Bader opinioned that “it is beyond rational belief that H.B.2 could genuinely protect the health of women, and certain that the law would simply make it more difficult for them to obtain abortion. She further added to her opinion that “when a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners… at great risk to their health and safety.”   

CONCLUSION: REMEMBERING RUTH GINSBURG.

Ruth Bader Ginsburg passed away on 18 September 2020 leaving the whole world in tears and mourning. Ruth Ginsburg is reminisced as a woman who always fought for what was right and did not allow any drawbacks to hinder her journey of delivering justice. Her contributions and legacy heavily impacted the people all across the globe and surged the people with the energy to carry out the fight against inequality of which she had been a stern advocate. All her life and even during her old age, Ruth Bader did not give up on the fight against any kind of discrimination.

Ruth Ginsburg will be remembered as a woman who truly lived up to her words, “I would like to be remembered as someone who used whatever talent she had to do her work to the very best of her ability”.

The post ‘NOTORIOUS RBG’: Remembering Life and Times of Ruth Bader Ginsburg appeared first on Legal Desire Media and Insights.

With the development in technology and complexities of the modern life. There has a been a significant increase in the relationship between the judiciary and the media. Both the elements play a very important role as the organs of the state and are essential for the smooth functioning of the same. Both the organs are articulated in such a manner that they act as a watchdog for each other. 

It is rightly stated by someone ‘Justice is blind’, that is, it is blind to any kind of discrimination, mala fide intentions and all kinds of corruption when it comes to delivering justice. The judiciary is the backbone of human welfare and existence, it is a champion of ideals of justice, liberty and equality. The importance of the judiciary cannot be emphasized enough because it is the judiciary that keeps a watch of the other organs of the state and holds them accountable for any violation. People who are denied their rights are not left helpless but are empowered to seek justice at the doors of courts. 

But if such an important organ is not free from the influence and clutches of the other state actors, the justice dispended is likely to be partial and the pillar on which the judicial ideals are built would appear as shallow and hoax.

Thus, Judicial independence becomes the need of the hour. Judicial independence means the capacity given to a court or the judges to decide a case and perform their duties without any impartiality and without any influence from an external party. The term is used to define the discretionary independence which is given to the judiciary to perform the functions which are given to them under the statutes. This concept of Judicial independence has received not only national but international recognition as a principle of fundamental importance. Some rudimentary traces of this concept can be identified in the Universal declaration for Human Rights under provision regarding equality before law, fair trails etc. This idea received a full-fledged endorsement in 1985 when United Nation adopted ‘The Basic Principles on the Independence of Judiciary’ which laid down important principles regarding the independence of judiciary and also highlighted the importance freedom of expression and association. The principles were designed to ensure that judicial functions are free from any influence and to ensure that fair trails were given to the parties with respect and equal opportunity. At the same time, it enables the judiciary the freedom of speech, to hold a particular belief, join associations etc. This agreement highly influenced the judiciary and many other organs such as Media.

Many International agreements find their roots and origin in the Basic principles on Independence of Judiciary 1985. One such Agreement is the Madrid Principles on the relationship between Media and Judicial Independence (1994). The Principles were signed with two-fold objective- To analyse the relationship that existed between the Media and Judicial independence as given and guaranteed in the ‘United Nation Basic principles on the independence of Judiciary, 1985’ and to formulate postulates to address the relationship that existed between the two.   

Madrid is the capital of Spain, where in January 1994, a group of legal professionals (experts) and representatives of the media from around 40 countries from all over the world met at a meeting convened by-

1-International Commission of Jurists.

2- UNICEF (Spanish Committee)

3- The Centre for Independence of Judges and Lawyers.

The participants of the meeting represented countries such as Ghana, India, Australia, Sweden, United Kingdoms, Sri Lanka, Germany, Norway etc.

THE MADRID PRINCIPLES 1994:  SALIENT FEATURES

The Madrid Principles are very important as far as relation of media and judicial independence is concerned. Each aspect of the document, from the preamble to the measures designed to be taken, are all made with a special emphasis on the importance of the positive relation that exists between the media and judiciary.

PREAMBLE –

The preamble of the document lays emphasis on the importance of the rule of law. It states that for the rule of law to prevail in the democratic society, freedom of expression especially the freedom of the media become a mandatory element. The document imposes duties and responsibilities on the both the Judiciary and Media. The judiciary is to recognize and respect the Freedom of media to expression and speech and only allow those restrictions which are reasonably permitted under the law or Convention on Civil and Political rights. There is also the duty on the media to comply to its ethics and standards, it is duty bound to respect the judicial independence and the individual rights.

PRINCIPLE-

The basic principle envisaged in the document is the ‘Freedom of expression’ which includes the freedom of the media. Article 19 of the ICCPR ,1966 lays down the meaning of freedom of expression. It stated that the freedom of expression is an existential factor of a democratic society and the Media plays a very important role in this aspect. It is the function of the media to gather information and inform the public about the same. The media has the power to question and comment, even criticize the judicial function in administering justice. They actively participate in covering cases. Such influence is likely to prevent any unjust happenings in the administration of justice. The basic principle is not subject to restrictions which are given in the International Covenant on Civil and Political rights and is immune from any special restrictions.

SCOPE-     

The principle of freedom of expression has a very vast scope. It does not exclude the preservation by law of secrecy. It is observed where the secrecy is mode for investigation in judicial process. It is mostly done to protect and benefit the person involved. Such a person is free to approach the media and communicate information regarding the case. The scope further extends to cover proceeding which are held in camera to deal with private matters and conciliation. There is no requirement of any special right to broadcast live or recorded court proceeding as that rights is already covered under the scope of the basic principle of freedom of expression. 

RESTRICTIONS-    

One important feature of the Madrid principles is the explanation which allows the extend and nature of restrictions that can be imposed on the freedom of expression especially that of the media. It says that restrictions which are allowed to be imposed must be prescribed by the law. If the restricting law allows a discretionary power, it will only be exercised by the judges and no other person holds such authority. In case of the restrictive authority of judges, Media has the right to be heard and have the right to appeal. The restrictions must be designed in a manner necessary for the democratic society and for the protection of minors etc. Necessary restriction can be imposed in criminal and civil proceedings where it is observed that if information flow is allowed it will likely cause prejudice or harm to the parties or to the decision. National security is another aspect where restriction can be implemented subject to right to contest the restriction. Restriction must follow a rational and non-discriminatory manner when they are imposed etc. 

The imposition of principles on restriction makes the document more inclusive and allows the laws which are further influenced by it to be more organized and systemic.

IMPLEMENTATION MEASURES/ STRATEGIES-

The Madrid principles’ importance lies in the fact that apart from laying down guiding principles, it also devices certain strategies which can be used to achieve the desirable relationship between the judiciary and media. All the strategies designed have a particle implication and are adopted by many countries to uphold the relation between the media and judiciary.

Certain measures such as legal resources, press council, code of ethics for media etc. should be made available at the disposal of the affected parties in an attempt to achieve the balance. 

JUDICARY AND MEDIA’S RELATIONSHIP IN INDIA

India is the largest democracy in the world and all the laws that are designed for the subcontinent are made with due respect to the ideal of justice, liberty and equality. India has been a principal advocate of independence of judiciary and of freedom of speech and expression especially the freedom of media. The relationship between the media and Judicial independence in India appears to be very strong and impactful. India is also a signatory of the Madrid principles on the relationship between the media and judicial independence 1994. The Constitution of India guarantees the freedom of Speech and Expression Art 19 (1) (a) which includes the freedom of the media and press. Indian judiciary has time and again played a crucial role in  highlighting the same.

The Indian press plays a pivotal role as the representative of the people and helps in making essential information available tothe public, which in turn influences the public opinion and helps in shaping the laws and functioning of the country. Therefore, it is important that the Press and Media is not obstructed by putting unnecessary restriction on their freedom. And the Judiciary has taken some important decisions in this regard. In the case of Saroj Iyer v. Maharastra Medical (Council) of Indian Medicine  , the court was of a view that it is the role of the journalist to inform the public about the administration of justice. Therefore, they have the right to attend the court of behalf of the public. This right is available vis-à-vis Judicial and Quasi-Judicial proceedings  This decision of the Court is an example of the practical implication of the Madrid Principle in the Indian system. It not only encourages the media to perform its function without any hindrance but also revives the faith of people in the justice system as they are able to witness its power through the information gained.

There are a number of cases in India that have highlighted the importance of the freedom of media and relationship they build with the independence of Judiciary.

CONCLUSION-   

For the smooth functioning of the State and for the welfare of its people, it becomes evident that a substantial relation is developed between the Independence of Judiciary and the freedom of speech and expression of the Media. If unnecessary influence or restrictions are imposed on the independence of Judiciary, the democratic laws and ideals would be reduced to rubble and it would appear as a mockery of the romanticized ideals of justice and equality in which the innocent people have put their faith . Similarly, Media is an important bridge that connects the people and the state. Through Media, people are informed about the how the government and judiciary are functioning and they are also held responsibility for any violations.

No doubt India is one of the ideal states which encourages and promotes the relation between freedom of media and independence of Judiciary but in reality, there is still a long way to go. It is very important to emphasize that the freedom of speech and expression are the fundamental rights and unnecessary restriction on the media while exercising this freedom will only hamper the functioning of democracy.  Stringent media policies promoting unnecessary restriction would only violate the fundamental rights which are guaranteed under the Constitution of India. To conclude, it is important state that we have to do away with such draconian laws which obstruct the functioning of media freedom, as in the words of Safwat Zarger, who writes for the forum Scroll, ‘Such a policy is detrimental to the freedom of speech and expression and has no place in democratic framework’.    

END.

The post Salient features of The Madrid Principles on the principles on the relationship between Media and Judicial Independence appeared first on Legal Desire Media and Insights.

Cinematographic y is a form of art where a picture in motion is captured and photographed using various techniques of camera handling etc. Some common examples of Cinematographic ic artwork are the everyday movies, films, short documentaries, ad films etc. Cinematographic y is a very popular form of virtualizing the art of story telling and has become a very important aspect of our everyday life. The cinema plays a very important role is portraying ideas and positively influencing the mind of people. But no doubt, the Cinematographic y craft can have some negative implications. The portraying of certain idea or kind of behavior or acts which may be not play an appropriate role in a particular culture.

England was the first country to pass a specific law vis-a-visfilms called the Cinematographic Act 1909. In India, the first attempt to regulate Cinematographic films was made in the form of Cinematographic Act 1918 after the first motion picture ‘Raja Harishchandra’ was successfully made.

India is a country known for its diverse culture therefore a law to respect the sensitivity of all cultures and to make sure that the art form of Cinematographic y was used in a positive manner, there was a need to develop a law in this regard. Further a well-defined and coherent law was needed to regulate the production and exhibition of Cinematographic films.

The Cinematographic Act 1952 was enacted on 21 march, 1952 and it was enforced on 28 July 1952. It is a very important legislation which came with two objectives –regulate the exhibition of Cinematographic films in public areas such as cinema halls etc. and to examine the material of the Cinematographic films to be exhibited before the public (censorship). 

The Film before being exhibited in public domain are to receive a certificate of exhibition under this act. The act has a pan India relevance.

The Constitution of India also provides for the regulation the Cinematographic film to be exhibited before the public. Schedule 7 entry 60 of the Union list talks about ‘Sanctioning of Cinematographic films for exhibition’ therefore, providing the Union with the power to make arrangements for the sanctioning of films whichever is certified under the statutes. Furthermore, Entry 33 of the State list endorsed the power of the state in regard to this matter. It states ‘Theaters and dramatic performances; cinemas subject to the provisions of entry 60 of List 1; sports, entertainments and amusements.’ It extends the powers of state to make laws not only for the films but also covers the area where such films or dramatic performances are to be displayed to the public.

One of the most striking features of the act is the creation of a Censor board under section 3 of the act. It states for the creation of a board consisting of chairman and members (between 12-25) who are to be appointed by the central government. The purpose of the board is check the function of sanctioning the films for the public viewing. The Act lays down the procedure of how the films are to be examined before the certification is granted. 

An application is to be made to the board in a proper prescribed format who upon reviewing and examining the film will grant the sanction in the category- ‘for unrestricted public exhibition’, ‘exhibition which is restricted to adults’, ‘exhibition to be restricted to a certain class of people’. The Board can also make all necessary modification which they deemed fit and they also have the power to refuse granting sanction to any movie for public exhibition. After the process of examination, the appropriate certificate is granted which is published in the Gazette of India and remains valid for a period of 10 years.

Apart from this function, the act also lays down important provisions regarding setting up of advisory panels at regional center, constitution of an appellate tribunal and also lays down principles and guidelines to be considered while certifying the films among other important provisions. The board is to keep in view the public interest, sovereignty and integrity of the country, morality, decency or any act which is likely to set off the commission of any offense etc. while undertaking the process of examining. 

The act also lays down a penalty under section 7 in case of the contravention of the Act. Any person who exhibits a film without a proper certification from the Central Broad of certification in any place will be liable for- 

The section 7A states that any such non certified film can be seized by any public officer. Upon entering the place where the film is or where he or she likely believes the film is kept, further he or she can search that place and take away the film.

  AMENDMENTS OF THE CINEMATOGRAPHIC ACT 1952-

With the development in the complexities and changing needs of the society, a dynamic to cater the same had to be developed. Keeping this in view, the Cinematographic law 1952 has under-grown a number of amendments from 1952 to 2010.

The following amendments took place over the span of fifty-eight years.

 With the functioning of the Cinematographic Act 1952, it was realized that the act suffered certain drawbacks with actual functioning of the act. Therefore, certain changes needed to be introduced in the form of the Cinematographic amendment act 1953.  The changes were inserted to make the penalty provisions stronger as it was witnessed that many films were displaying even those portions which are discarded under the censor board. In order to avoid such kind of tampering, more stringent laws were introduced. The revision powers of the government was also strengthened under this act.

One major change that was introduced under this amendment was an alteration in the Censorship rules 1951. The validity of the certificate of censorship was reduced to 5 years under the pretext that the value, trend, morals and beliefs of the society is inevitable to change, therefore to expect that a certificate which was granted in a particular period would hold validity in the future of changed values, trend and morals was not correct. Therefore, such continuance would be unreasonable and it began important to do away with this idea.  

In 1954, certain new directing principles were introduced regarding censorship. Another amendment bill regarding the Cinematographic act was introduced in 1956 with a view to provide additional power the government in sanctioning films which adhered to the improved standards keeping in view the interest of the nation. But this amendment was dismissed in 1957.

This amendment was done keeping in view, the needs that were felt while functioning under the 1952 act. Under this amendment, any major change was not introduced. Certain sections such as 3,4,5 and 6 were elaborated. These sections mostly dealt with the functions of the board. The most important change introduced in the amendment was principles which were made for guidance when certifying the films. These principles were in consonance with article 19(2) of the constitution. It laid down two provisions-

1-It provided certain grounds on which the board could reject or refuse to certify a film. It included grounds such as public order, relations with foreign states, morality, decency etc.

2- the second provision expressly granted the Central government the authority to sanction films for the exhibition in the public.

The dominance of the State control over the Cinematographic films and this medium of art was completely symbolized with this amendment. 1960 witnessed issuance of another set of guidelines regarding the censorship by the Ministry of Information and Broadcasting. Later, Khosla Committee was set up in 1968 to evaluate the position of censorship in India and make recommendations.

This amendment was mostly introduced to extend the applicability of the act to the then state of Jammu and Kashmir. The relevant provision under Part 1 and Part 2 of the act were proposed to be applicable on the State of Jammu and Kashmir.This amendment did not cover any aspect of censorship which had been a highlighted matter during that period.

Cinematographic (Amendment) Act, 1974 was introduced to incorporate the recommendations made by the Khosla Committee regarding censorship. Certain changes were introduced. However, this act was put aside due to official reasons. Another set of guidelines regarding censorship were introduced in 1978 which were framed in a sense that they would not go beyond the scope of article 19(2) of the Indian Constitution.

The bill was adopted with a more tolerant approach. The name of Board was replaced with ‘Central Broad of film Certification’, the members of the board were also increased from 9 to a criterion of not less than 12 and not more the 25.Some other changes which were introduced under this bill were:a new category of certificate namely ‘ UA’ was introduced where the exhibition was subject to caution for the parents and guardians of children below 12 years whether they wanted their child to watch such a film or not. The amendment also provided to set up an independent tribunal for hearing appeal and cases which arose from the decision of the Broad. The delegating power of the Board to the chairman was restricted regarding the certification of films. Further, it provided an immunity to the producer or the person allowing the exhibition of the film which has already received a valid certificate from being prosecuted under any other law for indecency or immorality etc.

The main aim behind this amendment was to make the laws stronger and the punishment for the violation tougher under Part two of the Act. With the growing popularity of the filming industry and the production of a large number of videos and films. The violation under Part 2 of the act were growing at an alarming rate. Exhibition of uncensored and non certified films, failure to removed the discarded part by the board, showing of Adult rated films to all kinds of audience (minors) and non-compliance with the provisions of the Central Board and the Cinematographic Act was in vogue. With the flow of Indian and foreign films without the approval of the board began to circulate the markets and a huge number of video galleries and parlors were coming up which charged a fee to the audience for the display of films. The introduction of cable television also increased the access of people to films. In order to curb the increasing misuse, the Cinematographic (Amendment) Act, 1984 was introduced which enhanced the punished given under section 7 of the act to imprisonment which may extend to 3 years or fine which may extend to 1 lakh or both and where the offence was of continuing nature, a fine of rupees twenty thousand per day. 

Certain new guidelines regarding scenes involving sexual offenses against women or any representation of women as indecent should be of such nature that they should not have an adverse and negative impact of the minds of viewers and they should be of the shortest span of time were added to the guideline as a resulting influence of the Indecent Representation of Women (Prevention) 1986.

In 1991, guidelines regarding promoting a health environment and producing good quality films were incorporated.   

This bill was introduced as a step to ensure good quality and healthy cinema to all the viewers. Since there has been a drastic increase in films industry as well as the increase in the telecast of television programs which are broadcasted on more frequent intervals.  It was realized that with the increase in the number of channels and such kind of programs, there was no forum for scrutinizing the content, nature or theme of these programs. The board which already existed was restricted to the certification of films which were exhibited in cinema halls etc. but the constant exposure of the viewer to such telecast programs via TV sets, another medium could have a negative impact if it was not ensured that such programs were free from any exhibition of non- accepted behavior such as violence, commission of crimes etc. Therefore, this amendment led to the creation of a Board of Television Programs Certifications under part 2A. This Board was constituted with an aim to examine the Telecast programs and issues appropriate certifications for the same. The Board is to consist of a Chairperson and six other Members appointed by the central government. The board is to have a regional offices and union territories. 

The amendment was bought with an aim to recognize the copyright of the authors vis-à-vis Cinematographic y. It was viewed that act was made for the public exhibition of the films but there had a been a loss faced by the industry due to many radical changes introduced with time. With rapid increase in the number of telecast programs and the accessibility of television, emergence of new digital platform of viewing films shows of entertainment etc. It was realized that it led to a decrease in the number of visitors to the cinema hall caused a loss the cinema industry. Further the piracy and black marketing of the pirated version of films also added to the already suffering industry. Such act also cause loss to the government. Therefore, the act was introduced to curb the growing menace. The bill incorporates section 6AA which prohibits any person from using the audiovisual recording to make or attempt to make as copy of the film or of any part thereof without written permission from the author. The punishment for the violation of section 6AA is imprisonment with may extend to three years or fine which may extend to 1 lakh or both.

CONCLUSION–

From our analysis, it is clear that the film and Cinematographicindustry is gaining excessive popularity and is growing at a rapid pace. Every day, all kind of films across various genres with diverse nature, content and themes are making it to the public eyes. Therefore, it is very important to make sure that a positive scrutiny and check on such exhibition is kept in order to make the viewing more insightful and healthier. The Cinematographic Act 1952 becomes a landmark legislation is this area. There are few areas where the law needs to adapt and change with the changing times. For example, new medium of using Cinematography for expressing ideas, relaxation on the censorship rules etc. need to be worked on. The Court in the case of K.A. Abbas v. The Union of India (1970) observed that it is important to adopt a flexible approach in censorship. It further observed that the censor should take into consideration the artistic excellence portrayed when the film makers are presenting the theme of a particular film.   

The post Overview of the Amendments in Cinematographic Act (1952 TO Draft 2019 Bill) appeared first on Legal Desire Media and Insights.

Consumer rights can generally be defined as a set of rights which provide protection to the consumer from the harm that may be associated with the goods of the producer. Thus, it can be simply stated that consumers rights are the rights of consumers. Consumer rights and laws basically regulate the relation between the consumer and the seller. A consumer is person who purchases goods or services for payment while the seller is a person who is offering to sell such goods and services for or against payment.   

Trade is one of the oldest professions of the world, some rudimentary form of market and trading system can be traced from the ancient civilizations. Earlier the market system was not complex and was mostly dominated by the sellers of the product. It was the doctrine of Caveat Emptor which is a Latin term meaning ‘let the buyer beware’. The Principle underlying this doctrine was that the buyer or purchaser (Consumer) must be careful and use his or her skill set carefully to examine the property and its nature before buying it from the seller. The buyer is entitled to plead ignorance for the same. But with the development in trade and technology, the goods sold in the markets became more complex and intricate. It became impossible for the consumer to evaluate the nature and their desired requirement from the product. The principle of Caveat Emptor exposed the innocent consumers to such vulnerabilities and there was rarely any redressal agency which they could approach for their grievances.

Consequently, a need to opt for an alternative which would protect the consumer from such unfair practice was felt. One of the important cases where the court adopted a shifting view from Caveat Emptor was the Priest and Last, wherein the claimant purchased a water bottle from the defendant (seller). Upon using the bottle several times, the bottle burst and caused an injury tothe claimant ’s wife. The defense in this case argued that claimant did not mention the purpose for which he was purchasing the bottle. In this case the court observed that the water bottle could not be sold as it was not fit for the ‘obvious and usual purpose’. Thus, a purpose of a product was to be assumed especially when the product only has one major purpose.

This decision of the common law witnessed a gradual shift from the principle that the buyer should take care to seller’s responsibility regarding the product sold. The doctrine of Caveat Emptor was replaced with the new principle of Caveat Venditor. The doctrine of Caveat Venditor puts a responsibility upon the seller to be more careful regarding their goods or services which are sold in the market. Such a paradigm shift has occurred in order to create a consumer-friendly market and to protect the innocent consumers who purchase the good or service in good faith and are not able to identify defects due to the complex nature of the products.

With the growing awareness regarding the consumer’s right and protection, many countries across the world have adopted statutory legislation for the same. The United Nation Conference on Trade and development (UNCTAD) can be considered an importance step towards the international recognition of consumer protection. The guideline laid down under UNCTAD aims to raise the issue of consumer protection at the united nations and create awareness among members state regarding the importance of consumer protection and what steps can be taken in the same regard. The globalization of trade in the 21stcentury has set up the whole world as one unit and every individual becomes a global consumer. One consumer can be affected by something that is happening on the other side of the world. Therefore, a need to articulate a well-coordinated plan among the member states so that the balance is charted between the welfare of consumer all over the world and sustainable development is achieved. And this will not possible if there are no proper laws, provisions and policies drafted for the consumer protection.

India’s exposure to the global trading market in the 1980s and the 1990s introduced the consumers to a plethora of novel goods and services, which led to the creation of new problems and with growing awareness among the masses regarding the rights of consumers, the need to introduce a statutory legislation to protect the consumers as well as set up a redressal forum was felt. Therefore, the Consumer Protection Act 1986 was introduced to safeguard the consumers from such profitable trade practices which were harmful for the consumers as well as the society as a whole. The act is a compact legislation containing 31 sections. 

The Ministry of Consumer affairs, food and public distribution of India recognizes six different types of consumer rights. The first and one of the most important right is the Right to safety. It means that a consumer has a right to be safe from goods and service which are hazardous and will affect the life and property in a negative way. It also provides that goods and services should serve the long-term interest of the consumer as well. There is also a duty upon the consumer to purchase products and services which are of a quality mark, for example, ISI, AGMARK etc.

The second right is the right to be informed. This right empowers the consumer to be informed regarding various specifications of the products such as quality, quantity, purity, standard, potency etc. Consumer is allowed to insist on getting the information regarding the product. This right is important as it helps the consumer in better judging whether the goods will serve his or her desired purpose and not be exploited by the clever marketing techniques.

The third right deals with the right to choose, which means the consumer has the right to choose from the variety of goods and services which are available at a comparative. It includes the right to be assured of quality goods and services at a fair price.

The fourth right is the right to be heard which means that the consumers have the right to put forth their interests for consideration before a proper and appropriate forum. They can also form organizations for representation before the government and other bodies.

The fifth right deals with the redressal against any unfair trade practice or exploitation. The consumer has the right to make a complaint for reasonable grievances. This right also includes the right to fair settlement of genuine and reasonable grievances.

The last right given to the consumer is the right to consumer education. This is a very important right as it allows the consumer to gain knowledge and proper skills vis-à-vis consumer rights and protection. It helps them identify unfair trade practices and exploitation and helps them become responsible consumers throughout their lives. 

COVID-19 AND THE EFFECTS ON CONSUMER RIGHTS  

Year 2020 has been a year of unfortunate events, with the Covid-19 pandemic grappling the world and the increasing uncertainties due to no significant success in the medical field for developing a vaccine to cure this novel virus. Covid-19 has impacted the whole world. All aspects: social, economic and political have witnessed a change. People are restricted to their households and their interaction with the outside world had been limited. Trade and commerce have been one of the worse affected sectors due to Covid-19, not even the e-commerce business is spared as there has been a drastic interruption in their services. 

This change is the lifestyle has definitely impacted the consumer vis-a-vis consumption of goods and services. It has led to a drastic impact on the rights of the consumers in many areas where the regular activities of the consumers are being disrupted. For example, from a drastic increase in electricity charges to sale of basic products of hygiene at a very high price has affected consumers from all walks of life. Increase in debts has also severely affected the consumers due to the lockdown.   

With the corona pandemic, it is important to note that there has been a change in consumer behavior with a rise of demand for hygiene and health care products such as masks, disinfectant, sanitizers etc. There has also been a shortage of items of basic food supplies and other consumer goods. In order to keep the businesses running and to make profit amid the times of the pandemic, the traders and businesses have adopted some unfair means such a hoarding of essential items to create a demand in the society and black marketing of the essential products at a high price. Such practices have exploited the consumers. Non-activeness of the consumer forum and redressal agencies has further added to the miseries of the consumers which violatestheir rights.

The right of the safety of majority of the consumer is put at risk at the selfish practice of the black market where a few bad elements are exploiting the situation for their gains and benefit. As people are not able to go out and inspect the product the vulnerability of the people is being exploited by some outletsclaiming to sell products capable of fighting and curing covid-19. In order to mislead the consumers, some agencies have falsely claimed association with the world health organization. There has been an increase in the sale of counterfeit goods andare offering such goods at a very high price which violates the right to basic goods and service of the consumers. The misinformation and rumors regarding the covid-19 are adding tothe violation and exploitation of the consumers as they left with no option but to panic purchase all the goods that are sold in the market. Such products have a tendency to cause harm to the life or health of the consumers. Up to March 4th ,2020, Amazon (a top e-commerce website) claimed to have detached more than one million fake and counterfeit goods claiming false covid-19 cures etc.

Apart from these goods of hygiene and essential services, consumers have also been impacted in the availability of other goods and services such a educational services, other non-essential commodities, bills for which a person qualify as a consumer.

But the covid-19 does not only have a negative impact on the consumers. An article published on First Post, titled ‘COVID-19 impact: Indian consumers exercise greater decision-making in buying, spending after pandemic outbreak’ dated May 27, 2020 states that the change in the consumption behavior along with the increase in the consumer apprehension has resulted in more consumer consciousness. The consumers are now more aware and are acquiring core decision making skill which is very important for a positive consumer protection. Even after restricted interaction between the buyer and seller, the tech savvy generation is empowered to gain information regarding products (quality, purity, specifications) before making such a purchase.  

EXSISTING CONSUMER LAWS AND ROLE OF JUDICIARY  

There are various consumer protection laws designed to protect the consumer and raise awareness regarding the same. In India, many laws deal directly and indirectly with the consumer protection. Consumer protection act 1986 is one such act which lays down provisions for the protection of consumers and set up redressal forum to address grievance. Further The drug (control) act, 1950 which regulate and controls the pricing for drugs by the government, The prevention of Food Adulteration Act 1954 which was established to control and regulate the adulteration of food as it amounts to unfair trade practice, Essential commodities Act 1955 which plays a very important role in relation to Covid-19 as it prevent the hoarding of basic and essential commodities and ensure the sale of commodities at fair prices. In an article published on Economic Times (ET) dated Mar 21, 2020 (7:26 PM IST), it was stated that the ministry of consumer affairs has directed the states to distribute hygiene product such as face masks and hands sanitizers which come under the essential commodities through ration shops at fair price in order to prevent consumer exploitation in the troubling times. The Monopolies and Restrictive Trade Practices Act 1969 is another act dealing with consumer rights and consumer laws.

The Constitution of India in which the ground-norm is also providing some form of protection to the consumer under article 14, article 21 etc.

The judiciary plays a very important role in the protection and safeguarding of consumers from its vast interpretation of the laws. We know that the Covid-19 is a situation of extraordinary nature, therefore it is the duty of Judiciary to adopt new and innovative measure to protect the citizens. The Consumer Protection Act lays down setting up of three tier consumer disputes redressal agencies. They are-

These forums form the consumer courts and work for the protection of the consumer by listening to the cases of consumers and providing speedy relief for the same. But due to the covid-19, just like obstruction to the rest of the institution, the work of the consumer court has also been affected. There hasbeen delays in hearings and people are not able to take their grievance to the courts in case of violence.

CONCLUSION-

The Covid-19 global pandemic has been a troubling time for people from all walks of life. Everything around has been deeply impacted be it the educational, political, social or the economicfacet. No doubt, trade and commerce has been adversely affected however, it does not mean that such a situation should serve as an opportunity for businesses to violate the rights of the consumers by taking up activities such as hoarding or black marketing or selling counterfeit goods or misleading people by fake claim. It is our duty as humans and citizens to not misuse such calamity for personal gains and cause harm not just to certain individuals but the society as whole. Further, the court must play an active role as the backbone in the protection of people by adopting novel and unique methods to ensure speedy trails and justice to the aggrieved consumer. It will not be wrong to conclude on a positive note by highlighting the examples of the State Consumer Dispute Redressal Commission and two district consumer forums who have decided to adopt the method of video-conferencing to hear cases in Chandigarh. Adoption of such innovative and positive ideas has become the need of the hour.       

The post Consumer Rights during Covid19 appeared first on Legal Desire Media and Insights.

The concept of the trademark in cyberspace has become very important as the use of technology is growing day by day and the whole world has become a connected global unit. In order to understand this concept, we first need to understand what do the two terms ‘trademark’ and ‘cyberspace’ mean.

With the growing complexities of trade and commerce in the world, the flow of counterfeit products in the market have become rampant. The importance of intellectual property is growing every day and its scope has extended across borders and has gained international recognition. If a bona fide buyer purchases a good or commodity believing it to be a product offered by a particular trader and later when he or she finds out that it was not up to the mark or the product does not belong to the presumed trader. This process often results in the bad reputation of that trader. Therefore, a need to create a unique mark which symbolize a particular trader as the source of the product becomes essential. It is important not only for the trader but also to protect the consumer from being fooled by counterfeit products.

In this scenario, Trademark plays a significant role. A trademark can generally be defined as any mark, symbol or a word, emblem that represents a company or any product. It can be a legally registered mark.

The Intellectual property protection in relation to trade was recognized by the world trade organization (WHO) in the form of TRIPS agreement. The Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement was created as a legal agreement between the member states of the WTO. The agreement came into effect on 1 January, 1995. The agreement is considered a landmark and complete agreement on Intellectual property rights. Article 15 of the act deals with trademarks and lays down directory details for the protection of the same. India is a signatory to the TRIPS agreement.    

The Trade marks act, 1999 is the intellectual property law in India that govern the trademark. Section 2(1) (zb) defines ‘trademark’ as a mark capable of being represented graphically and which is capable of distinguishing the good and service of one person from those of others and may include shape of goods, their packaging and combination of colors.

The Sind High court observed that Trademark in general refers to any picture, or word or marker which is fixed on and with the product of a particular trader with an aim to differentiate that particular good or product from those products and good which are of similar nature. For example, Whirlpool of the Whirlpool Corporation, USA, Red Bull of the Red Bull GmbH etc. are some popular trademarks in the market.

Cyberspace in laymen terminology refers to the space created by the use of the computer technology. In other words, it refers to the virtual space created by the connection between different computers. The Merriam Webster Dictionary defines cyber space as ‘the online world of the computer networks and especially the internet.’ Thus, the concept of Cyberspace is intangible in nature. The cyberspace is not restricted to a particular geographic territory, it lacks any barrier of physicality and extends to the whole world, connecting anyone and everyone.

Cyberspace is a shared space where interactions and communications take place through the platform of the internet. The internet technology is revolutionizing the world and the trend of carrying out trade and commerce using the cyber platform has come into vogue. Many e-commerce websites are also developing to facilitate such kind of trade and carry out successful transactions between the consumer and the traders. The use of online platforms has boosted the economies of different countries.

There is no physical interaction between the parties of the trade. The online space becomes a preferred choice of the consumers as consumers are able to surf through the available without any restriction and time barrier, they are granted the freedom to compare prices of different products and satisfy themselves completely before making the payment for any product. The cyberspace medium has made transaction and trading much simpler and easier.   

With the world entering the online era where nowadays each and every activity of our daily lives in being influenced by the internet. It becomes essential to protect the intellectual property on the internet in this cyberspace. 

The Cyberspace is not free from flaws. Cyber crime such as cyber fraud, cyber-attacks, cyber wars etc. are also taking place on a frequent note and the complexity of the crimes is of such a nature that it becomes very difficult to determine the jurisdiction and punish the offender who may be sitting in some other part of the world. 

TRADEMARKS IN CYBERSPACE:  

Traditionally the trademark law was applicable to protect those traders who had a registered trademarks, by providing them an exclusive right to carry on trade under that mark and preventing any third parties from using the same. However, with the rise of the internet and the paradigm shift from the traditional trading process to the online platform. Many new challenges have taken birth in relation to protection of trademark.

The domain name is one of the main areas where the conflict relating to the trademark in cyber space arises. Domain name can simply mean the name used by a website, it is like an address which is used by the people to access that particular website.  The domain name is very important in the identification of computers done with the use of IP address which is present in the form of some codes. But due to the complex numeric coding of the IP address; easier alternatives that can be remembered by all were developed. This alternative is a domain name, it can be a combination of words, symbols and numbers. For example: www.lawyerswork.com is an example of a domain name.

Registration of domain name is very important to establish a formal marketable existence on the internet. There is as such no trademark review of the domain names as it is burdensome work for the registrar. Therefore, there arises disputes regarding the domain name vis-à-vis trademark  under four circumstances.

The first situation is called the Cyber-squatting. It refers to the act of registering a domain name which is made for the purpose of carrying out trade and commerce. The domain name is the trade name of a particular company but is not registered by the company. Such a registration is made by a third party with a view to make profit by selling the domain name to the actual owner. Until the third party has the domain name, the owner is not able to register his trademark as domain name, thereby his right of registering become infringed. It is observed that domain name is an identification of a company. In general terms, it performs the same functions as that of the trademark of a particular company. The domain name is more than just an address to reach a particular website.   

Further if a person registers a domain name which is identical or similar to the trademark of a company to which he has no commercial connection, then an injunction against the person can be passed. There was no law made in relation to the protection of the domain name.  United States was the first country to introduce a legislation in this regard. It was called the Cybersquatting infringement act, 1999.

The second situation is the cyber parasite where the gains and profit are made by the use of the actual domain name. The method would involve using a similar or wrongly spelled domain name which is similar to that of a famous trademark. Such techniques are used to pass off products by method of deception to the innocent consumers. In the case of Rediff Communication Ltd. V. Cybertooth and Another where the defendant had registered a domain name similar to that of the plaintiff was carrying a business of similar nature. Court observed that the defendant had an intention to carry out his trade and business under the trademark or trade name of plaintiff, thereby there being an infringement of the plaintiff’s right.

The third situation is the Cyber twin. This situation arises where both of the parties to the case hold an authentic claim towards a particular domain name.

The fourth situation in relation to the domain name is the reverse cyber-squatting. This is counter process to the cyber-squatting. It involves the owners of the trademark trying to take over the domain name by trying techniques of making false allegations of cybersquatting against the rightful owner of the domain name. The domain name owner in order to avoid any legal charges, is compelled to transfer the domain name to the trademark owner.

Apart from the above-mentioned challenges, there are also some other challenges posed in the cyberspace on the trademark of a company. Hypertext links is another area where a conflict regarding a trademark may arise in the cyber space. It simply refers to transferring the user from one website location to another. These links are set between web pages. For example, on some web page; we see a hyperlink of ‘Gucci’ and upon clicking the link, we are not taken to the official web-page of the brand but to some other web page which may sell similar product but not of the brand Gucci. Such hyperlink result in the infringement of trademarks. Further, it is easy to control the hyperlink present in the cyber space. Therefore, a practical answer is yet to be devised in this aspect. 

Use of Keywords can also sometimes lead to infringement of trademark in a cyberspace. Many times, the web pages use popular trademarks as keyword and so that their web pageappears on the top during the search. The innocent buyer may be deceived by the use of trademark and this results in infringement.

INDIA:

India is not new to the concept of infringement of trademark in the cyberspace. India Trademark act, 1999 is a comprehensive legislation which deals with infringement of trademarks. As of now, the Indian legal system does not have a full dedicated statute to deal with issues relating to domain name or cybersquatting etc. but the scope of the trademarks act is very vast. The Yahoo Inc v. Akash Arora and Another is a landmark case law in India in relation to protection of trademark in the cyberspace. In this case before the Delhi high court where the defendant had taken a domain name similar to that of the plaintiff. The court recognized the scope of trademarks over the domain name and granted the protection to the plaintiff under the trademarks act.

REMEDIES:

There are many remedies which can be taken up in case of infringement of trademark in the cyberspace. The world Intellectual Property Organization (WIPO) is one organization at an international level created for the protection of the intellectual property and there is an arbitration forum made under this organization where claims can be made at an international level. Further many other legislation have been made to provide remedies.

We know that the Section 28 of the trademarks act provide the exclusive right to the owner of a trademark to use their trademark and prevent others from using it. The National Internet Exchange of India was founded in 2003 to facilitate theproper and enhanced internet services in the country. It also provides some protection for trademark infringement in the cyberspace.

CONCLUSION:

The development of the internet services has changed the face of the world and has affected all aspects of the society. The Domain names have become an important element in the cyberspace and the crimes regarding the same are on the rise in context to trademarks. Therefore, it becomes very important to frame a comprehensive legislation in this regard. Further a gentle balance between the trademark’s rights and freedom of speech over the internet needs to be established. 

The post Trademark in Cyberspace appeared first on Legal Desire Media and Insights.