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Protecting Identity and privacy of children under the Juvenile Justice(Care and Protection of Children Act, 2015)- Rehabilitative and reformative approach

The Juvenile Justice(Care and Protection of Children) Act, 2015^[1] is a comprehensive law to provide measures for protecting and sheltering abandoned, surrendered and orphaned children, protecting children who are victims of crime and investigating and prosecuting children who are involved in offences.

The protections granted by the JJ Act, 2015 is derived from the United Nations Convention on the Rights of the Child to which India is a signatory. Articles 16^[2] and 40^[3] of the Convention enshrined the principles of privacy and confidentiality in all proceedings relating to children while the convention strongly focusses on rehabilitation of the children in the mainstream without any stigma.

The Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted by India to conform with the obligations of India as a signatory to the United Nations Convention on the Rights of the Child which is also apparent from the preamble^[4] of the legislation.

In the JJ Act, 2000, Section 21^[5] provided for prohibition in publishing or revealing the name, address, school or other particulars & picture of juveniles in conflict with law (JCIL) or child in need of care and protection under act.

Section 19^[6] of the JJ Act, 2000, provided for removal for disqualification attached to conviction, the intent being clear, any juvenile in conflict with law- whether convicted or not, should be permitted to be settled in the society; when the law does not treat the juvenile offender as a grown up adult; the other disqualifications which come in the way of rehabilitating the offender should be taken away by legislative action.

The scope and limitation of Section 19 of the JJ Act, 2000 can be understood from the pronouncements by various courts and tribunals specifically in matters relating to public employment.

The Bombay High Court in Kailas Sambhaji Lohakre Vs State of Maharashtra ^[7] had the opportunity to interpret and apply Section 19 of the Act. The Petitioner applied for joining the Indian Army and was successful. Upon verification of the character and antecedents, it was informed that the Petitioner was found guilty of the offences punishable under sections 324, 323, 504, 506 read with section 34 of the Indian Penal Code, 1860. The Army proceed to cancel his appointment on the ground of prior conviction.

The High Court in Kailas Sambhaji Lohakre(supra) while setting aside the order of removal held:

9. The Juvenile Justice (Care and Protection of Children) Act, 2015, (‘the Act of 2015’ for short) came into force on 1st January, 2016. Since the offences alleged against the petitioner were committed on 22-7-2010 and he has been dealt with by the Juvenile Justice Board on 15th January, 2011, he would be governed by the Act of 2002, which was in force at the relevant time. Even under the Act of 2015, there is an analogous provision in section 24 pertaining removal of disqualification attached to conviction of an offence of “a juvenile in conflict with law”, who is referred to as “a child in conflict with law” as per the Act of 2015.

10. As mentioned in the statement of objects and reasons of the Act of 2000, one of the objects is to rehabilitate the juvenile/child in conflict with law. The provisions of sub-section (1) of section 19 would provide the juvenile in conflict with law found guilty of an offence an opportunity to amend and regulate his delinquency. Removal of disqualification attached to a conviction of a juvenile in conflict with law would have the effect of opening the doors for him of a descent and disciplined civilized life. The order holding him guilty of an offence would not disqualify him from getting any job to which otherwise he would be legitimately entitled.

11. Sub-section (i) of section 19 of the Act of 2000 starts with a non-obstante clause i.e. “notwithstanding anything in any other law”. In the directive No. 33(d) it is mentioned that the candidate must submit an affidavit giving his personal details including the fact that he has not been ever convicted for any offence under law. The said clause cannot be used for disqualifying the petitioner for his enrolment in the Army on the ground that he was held guilty by the Juvenile Justice Board. Such disqualification has been specifically removed by the provisions of sub-section (1) of section 19 of the Act of 2000 and the non-obstante clause used therein would override directive No. 33(d) issued by respondent Nos. 3 and 4.,-Respondent No. 4, therefore, was not justified in cancelling the candidature of the petitioner for his enrolment in the Army on the ground that he was held guilty by the Juvenile Justice Board, Nanded. The letter dated 31st March, 2016, issued by respondent No. 4 cancelling candidature of the petitioner, in the above circumstances, is liable to be quashed and set aside. Respondent No. 4 will have to be directed to reconsider the candidature of the petitioner for enrolment into the Army on his own merits without being influenced by his conviction by the Juvenile Justice Board.

As seen from the above provision, it is for the Juvenile Justice Board to make an order directing that the relevant records of the conviction of the juvenile in conflict with law should be removed after expiry of the period of appeal. In the present case, besides the petitioner there are other accused persons involved in the offences alleged to have been committed on 22nd July, 2010. It is not known whether the trial against the co-accused of the petitioner has been conducted or not. The original record produced before the Juvenile Justice Board would be required to be produced before the Regular Criminal Court for conducting the trial against his co-accused. Therefore, it is necessary for the learned Principal Magistrate, Juvenile Justice Board, Nanded, to consider the question of removal of the concerned record of conviction of the petitioner and pass necessary orders keeping in mind the provisions of sub-section (2) of section 19 of the Act of 2000.

Similar reasoning has been followed by the CAT(Central Administrative Tribunal) in matters relating to recruitment to public employment in Satya Narayan Meena v. Union of India^[8], Recruit Constable (Driver) Mukesh Kumar v. GNCT of Delhi^[9] etc.

The Juvenile Justice Act, 2000 came to repealed and replaced by the Juvenile Justice Act, 2015 which retained the principles of Section 19 in Section 24 under the 2015 law while the Section 20 of the old act was replaced with Section 74 of the 2015 act.

What would be important to highlight here that a very vital additional was made to Section 74 which was acutely necessary; this was proviso to Section 74(1)^[10] which mandated that the character certificate issued by the police would not include the past records of child in conflict with law. This would certainly assist in matters relating to further employment especially related to public employment with the Central & State Governments as well in armed forces and central police forces and police and other armed forces and would also obviate unnecessary litigation relating to non-disclosure of past juvenile criminal records by the candidates which would otherwise show up in the certificate issued by the local police.^[11]

The provisions relating to non-disclosure of identity and removal/destruction of records provides with the necessary protection and confers privacy to the child in conflict with law and encourages rehabilitation of the child in conflict with law by permitting joining of the mainstream of the society. Such ameliorating provisions are indeed a welcome step in reformative, rehabilitative and protective statute such as the Juvenile Justice(Care and Protection of Children) Act, 2015.

Repeals and replaces The Juvenile Justice (Care and Protection of Children) Act, 2000 w.e.f 15-01-2016 ↑
Article 16

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks.

https://www.ohchr.org/en/professionalinterest/pages/crc.aspx ↑

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Article 40

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:

(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

(i) To be presumed innocent until proven guilty according to law;

(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;

(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;

(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;

(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;

(vii) To have his or her privacy fully respected at all stages of the proceedings.

3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;

(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.

Article 41

Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:

(a) The law of a State party; or

(b) International law in force for that State.

https://www.ohchr.org/en/professionalinterest/pages/crc.aspx ↑

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An Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation ¹[and for matters connected therewith or incidental thereto.]

Whereas the Constitution has, in several provisions, including clause (3) of article 15, clauses (e) and (f) of article 39, articles 45 and 47, impose on the State a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected;

And Whereas, the General Assembly of the United Nations has adopted the Convention on the Rights of the Child on the 20th November, 1989;

And Whereas, the Convention on the Rights of the Child has prescribed a set of standards to be adhered to by all State parties in securing the best interests of the child;

And Whereas, the Convention on the Rights of the Child emphasises social reintegration of child victims, to the extent possible, without resorting to judicial proceedings;

And Whereas, the Government of India has ratified the Convention on the 11th December, 1992.

And Whereas, it is expedient to re-enact the existing law relating to juveniles bearing in mind the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and all other relevant international instruments.

Be it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:– ↑

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21. Prohibition of publication of name, etc., of juvenile in conflict with law or child in need of care and protection involved in any proceeding under the Act

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(1) No report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with law or a child in need of care and protection under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published:

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Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile or the child.

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(2) Any person who contravenes the provisions of sub-section (1), shall be liable to a penalty which may extend to twenty-five thousand rupees. ↑

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19 . Removal of disqualification attaching to conviction.-

(1)Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.

(2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be. ↑
2016 SCC OnLine Bom 7355 : (2016) 6 Mah LJ 956 : (2017) 1 Bom CR 159 : (2017) 170 AIC 283 ↑

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2007 SCC OnLine CAT 1502 ↑
2011 SCC OnLine CAT 1729 ↑
Provided that for reasons to be recorded in writing, the Board or Committee, as the case may be, holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child. ↑
Provisions do not apply to matters where matters are referred to Children’s Court for trial of the child as an adult. ↑

Class action complaints under the Consumer Protection Law in India

Class action complaints under the Consumer Protection Law in India

Class action claims are a unique and vital part of the civil dispute resolution ecosystem. A class action proceeding is initiated when a group of litigants bring a suit or other proceedings before a court/tribunal/forums on behalf of a larger group of persons.^[1]

Class action cases contemplate commonality of facts and reliefs sought in the proceedings where all the members of the class have a common grievance and some of the persons in the said group initiate proceedings before courts in their representative capacity for other members of the class. Class action proceedings provide the courts/forums with an opportunity to adjudicate claims of similarly placed persons; a class action proceeding is advantageous as prevents initiation and adjudication of multiple proceedings in courts but also allows the adjudicating court to asses and award claims for all members of the class which in turn aids in reducing litigation, avoiding multiplicity and expediting the whole process.

While the Code of Civil Procedure, 1908 contemplates class proceedings under Order I Rule 8, CPC, the provision is infrequently invoked. Another recent enactment i.e. Companies Act, 2013 introduced Section 245 which provided the right to initiate class action proceedings before the National Company Law Tribunal to shareholders and depositors against the Company, its directors, auditors(auditing firms) and experts, advisors, consultants and other persons.

It would not be out of place to mention that class action proceedings can also be maintained in the form of Public Interest Litigation/social action litigation under Articles 32 and 226 for enforcement of fundamental rights enshrined in the Constitution of India before the Supreme Court and High Courts in India, it would be however important to highlight a crucial distinction between a PIL and ordinary class action proceeding i.e. lack of locus standi in PILs. In a PIL the Petitioner is not an aggrieved party and does not form part of the class it represents; however in a class action proceedings, the parties are required to possess necessary locus to maintain proceedings arising out of the same cause of action.

The remedy to initiate class action cases was also incorporated in the Consumer Protection Act, 1986 through the Consumer Protection (Amendment) Act, 1993 which inserted specific provisions for initiating proceedings before the consumer forums by expanding the definition of ‘complainant’^[2]^[3] under the 1986 act and inserted Section 2(1)(b)(iv) which stated “one or more consumers, where there are numerous consumers having the same interest;”

The amendment also provided for adoption of the provisions of Order I Rule 8 of the Code of Civil Procedure, 1908 in proceedings under the Consumer Protection Act, 1986 through introduction of Section 13(6)^[4] ^[5]to the act thereby mandating the procedure provided in the Civil Procedure Code to be followed in cases of class action consumer claims.

With the introduction of the provisions for initiating class action proceedings, the law in respect of the practice and procedure in cases of class complaints also developed and evolved with time.

What is also important to highlight here is that that class complaints have primarily been initiated in the Real Estate^[6] sector (specially relating to residential real estate disputes), which invariably brought the litigation before the National Consumer Dispute Redressal Commission^[7] as the pecuniary limit of the National Commission was for reliefs valued at more than Rs. 1 Crore( Rupees Ten Million)^[8].

Therefore the National Commission and the Supreme Court of India^[9] had the occasion to examine, adjudicate and frame the law relating to class action complaints under the Consumer Protection Act, 1986.

One of the leading cases relating to interpretation of the law with respect of class action proceedings under Section 13 was adjudicated in Ambrish Kumar Shukla & Ors. V. Ferrous Infrastructure Pvt. Ltd^[10] ^[11]. The full bench of the National Consumer Disputes Resolution Commission examined the scope, import and limitations of the Consumer Protection Act, 1986 in relation to class action complaints. The issues relating to class action complaints were referred to the larger bench in this matter and the Commission held that:

Issue No. (i)

As held by the Hon’ble Supreme Court in Tamil Nadu Housing Board (supra), the interest of the persons on whose behalf the claim is brought must be common or they must have a common grievance which they seek to get addressed. The defect or deficiency in the goods purchased, or the services hired or availed of by them should be the same for all the consumers on whose behalf or for whose benefit the complaint is filed. Therefore, the oneness of the interest is akin to a common grievance against the same person. If, for instance, a number of flats or plots in a project are sold by a builder / developer to a number of persons, he fails to deliver possession of the said flats/plots within the time frame promised by him, and a complaint is filed by one or more such persons, either seeking delivery of possession of flats / plots purchased by them and other purchasers in the said project, or refund of the money paid by them and the other purchasers to the developer / builder is sought, the grievance of such persons being common i.e. the failure of the builder / developer to deliver timely possession of the flats/plots sold to them, they would have same interest in the subject matter of the complaint and sufficient community of interest to justify the adoption of the procedure prescribed in Order 1 Rule 8 of the Code of Civil Procedure, provided that the complaint is filed on behalf of or for the benefit of all the persons having a common grievance against the same developer / builder, and identical relief is sought for all such consumers.

The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them therefore will not be maintainable. If for instance, 100 flat buyers / plot buyers in a project have a common grievance against the Builder / Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have been the Legislative intent. The term ‘persons so interested’ and ‘persons having the same interest’ used in Section 12(1)(c) mean, the persons having a common grievance against the same service provider. The use of the words “all consumers so interested’ and “on behalf of or for the benefit of all consumers so interested”, in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking a common relief and consequently having a community of interest against the same service provider.

Sub rule (2) of Rule 8 of Order I of the Code of Civil Procedure mandates the Court to give notice of the institution of the suit /complaint to all the persons “so interested”, meaning thereby to the persons having the same interest, i.e. a common grievance, on whose behalf or for whose benefit the complaint is instituted. Notice can be either by way of personal service or where personal service is not reasonably practicable, by way of a public advertisement. The aforesaid provision clearly envisages institution of a suit / complaint on behalf or for the benefit of not only those who approach the Court/Forum but also on behalf of or for the benefit of the persons other than the plaintiffs / complainants, but having the same grievance. Had the Legislative intent been to permit such a complaint only on behalf of the persons deciding to approach the Court/ Forum, there could be no occasion for requiring the service of notice in the aforesaid manner, since there can be no question of serving any notice on those who are already before the Court/Forum.

Sub Rule (5) of Rule 8 of Order I enables the Court to substitute the name of any person having same interest in the suit as plaintiff where it finds that the person suing the suit is not proceeding with due diligence in the suit. The aforesaid power given to the Court also indicates that a suit in terms of order 1 Rule 8 of the Code of Civil Procedure commonly termed as a class suit is intended on behalf or for the benefit of all the persons having a common grievance against the same party and seeking the same relief not on behalf of or for the benefit of only some of them.

12. Issue No. (ii) and (iii)

Section 21 of the Consumer Protection Act, to the extent it is relevant provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs.1.00 crore. Therefore, what has to be seen, for the purpose of determining the pecuniary jurisdiction, is the value of the goods or services and the amount of the compensation claimed in the complaint. If the aggregate of (i) the value of the goods or services and (ii) the compensation claimed in the complaint exceeds Rs.1.00 crore, this Commission would have pecuniary jurisdiction to entertain the complaint. Similarly, if the aggregate of the value of (i) the goods or services and (ii) compensation, if any, claimed in the complaint exceeds Rs.20.00 lacs but does not exceed Rs.1.00 Crore, the State Commission would have the pecuniary jurisdiction to entertain the complaint. Since a complaint under Section 12(1)(c) of the Consumer Protection Act can be filed only where there are numerous consumers having the same interest and it has to be filed on behalf of or for the benefit of all the consumers so interested i.e. all of the numerous consumers having the same interest, it is the aggregate of the value of the goods purchased or services hired or availed of, by all those numerous consumers and the total compensation, if any, claimed for all those numerous consumers, which would determine the pecuniary jurisdiction of this Commission. If the aggregate of the value of the goods purchased or the services hired or availed of by all the consumers having the same interest and the total compensation, if any, claimed for all of them comes to more than Rs.1.00 crore, the pecuniary jurisdiction would rest with this Commission alone. The value of the goods purchased or the services hired or availed of and the quantum of compensation, if any, claimed in respect of the one individual consumer therefore, would be absolutely irrelevant for the purpose of determining the pecuniary jurisdiction in such a complaint. In fact, this issue is no more res Integra in view of the decision of a Four-Members Bench of this Commission in Public Health Engineering Department Vs. Upbhokta Sanrakshan Samiti I (1992) CPJ 182 (NC). In the above referred case, a complaint was preferred, seeking to recover compensation for alleged negligence on the part of the petitioner which had resulted in a large number of persons getting infected by Jaundice. The names of 46 such persons were mentioned in the complaint but it was alleged that there were thousands of other sufferers who were similarly placed and that complaint was filed on behalf of all of them. The complainant had sought compensation of Rs.20,000/- for every student victim, Rs.10,000/- for every general victim and Rs.1,00,000/- for the legal representatives of those who had died due to Jaundice. The District Forum held that it had no pecuniary jurisdiction to adjudicate upon the complaint. The State Commission took the view that the District Forum has to go by the value as specified for each consumer. Rejecting the view taken by the State Commission, this Commission inter-alia held as under:

“5. In our opinion this proposition is clearly wrong since under the terms of Section 11 of the Act the pecuniary jurisdiction of the District Forum would depend upon the quantum of compensation claimed in the petition. The view expressed by the State Commission is not based on a correct understanding or interpretation of Section 11. On the plain words used in Section 11 of the Act, the aggregate quantum of compensation claimed in the petition will determine the question of jurisdiction and when the complaint is filed in a representative capacity on behalf of several persons, as in the present case, the total amount of compensation claimed by the representative body on behalf of all the persons whom it represents will govern the valuation of the complaint petition for purposes of jurisdiction”.

6. The quantum of compensation claimed in the petition being far in excess of Rs.1.00 lac the District Forum was perfectly right in holding that it had no jurisdiction to adjudicate upon the complaint. The reversal of the said order by the State Commission was contrary to law”.

Therefore, irrespective of the value of the goods purchased or the service hired and availed of by an individual purchaser / allottee and the compensation claimed in respect of an individual purchaser / allottee, this Commission would have the pecuniary jurisdiction to entertain the complaint if the aggregate of the value of the goods purchased or the services hired or availed of by the numerous consumers on whose behalf or for whose benefit the complaint is filed and the total compensation claimed for all of them exceeds Rs.1.00 crore.

Issue No. (iv)

13. As noted earlier, what is required for the applicability of Section 12(1)(c) of the Consumer Protection Act read with Order I Rule 8 of the Code of Civil Procedure is the sameness of the interest i.e. a common grievance of numerous persons which is sought to get redressed through a representative action. Therefore, so long as the grievance of the consumers is common and identical relief is claimed for all of them, the cost, size, area of the flat / plot and the date of booking / allotment / purchase, would be wholly immaterial. For instance, if a builder / developer has sold 100 flats in a project out of which 25 are three-bed room flats, 25 are two-bed room flats and 50 are one-bed room flats and he has failed to deliver timely possession of those flats, all the allottees irrespective of size of their respective flats / plots, the date of their respective purchase and the cost agreed to be paid by them have a common grievance i.e. the failure of the builder/ developer to deliver possession of the flat / plot sold to them and a complaint filed for the benefit of or on behalf of all such consumers and claiming same relief for all of them, would be maintainable under Section 12(1)(c) of the Consumer Protection Act. The relief claimed will be the same / identical if for instance, in a case of failure of the builder to deliver timely possession, refund, or possession or in the alternative refund with or without compensation is claimed for all of them. Different reliefs for one or more of the consumers on whose behalf or for whose benefit the complaint is filed cannot be claimed in such a complaint.

(emphasis supplied)

The Supreme Court of India thereafter also had the occasion to examine the correctness and applicability of Ambrish Kumar Shukla(supra) in context of the class action/class complaint proceedings while considering the case of Anjum Hussain and Ors. Vs. Intellicity Business Park Pvt. Ltd. and Ors.^[12]. In Anjum Hussain (supra) the NCDRC had dismissed a class complaint on the ground that although the allottees had common grievance of delay on construction of a commercial project, however it was not shown as to how many of the allottees had booked the shops/commercial units solely for the purpose of earning their livelihood by way of self-employment.

The NCDRC thus effectively negatived the option of class action/class complaint purely on the ground that some of the allottees may not be covered by the ambit of Consumer Protection Act, 1986^[13] and would not be entitled to reliefs as claimed in the class complaint. This distinction between allottees of commercial offices in the case was erroneous in as much as mere allotment to “non-consumer” would not defeat or extinguish the right of “consumers” under the act to initiate class action complaints against the builder.

The Supreme Court quoting with approval the law laid down by the full bench of the NCDRC in Ambrish Kumar Shukla(supra) held that the essential test for the consumer forum while entertaining a class complaint is to consider the test of oneness of the interest is akin to a common grievance against the same person; once the test is satisfied in a class complaint, the matter ought to be adjudicated on merits and proceeded to revive the class complaint and remanded for adjudication on merits.

The Supreme Court as recently in February, 2020^[14] had the occasion to examine the locus of an association to file a class action/class complaint. The question before the court was whether an association which was formed by virtue of any law or rule wherein the membership was mandatory and not voluntary could maintain a class complaint.

The court after examining the definition of complainant/consumer under the Consumer Protection Act, 1986 and also the scope of provisions relating to representative complaints concluded and held that since the definition of ‘complainant’ is restrictive and not exhaustive or inclusive, hence associations which are not ‘voluntary’ in nature cannot maintain a complaint under the Consumer Protection Act, 1986.

It would however be proper to clarify that Sobha Hibiscus Condominium(supra) does not take away the right of an involuntary association or any association which is formed by mandate of any law or rule or regulation from otherwise maintaining a consumer complaint as a definition of person, consumer and complainant expressly includes ‘every other association of persons’^[15].

Lastly, for the sake of completeness, it would be important to highlight that the Consumer Protection Act, 1986 stood repealed and replaced with the Consumer Protection Act, 2019^[16] which has retained the provisions for initiating class action complaints under the 2019 law. ^[17]

https://www.investopedia.com/terms/c/classaction.asp ↑
Section 2(1)(b) of the Consumer protection act, 1986: ↑
https://www.indiacode.nic.in/handle/123456789/1868?sam_handle=123456789/1362 ↑

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Section 13(6) Where the complainant is a consumer referred to in sub-clause (iv) of clause (b) of sub-section (1) of section 2, the provisions of rule 8 of Order I of the First Schedule to the Code of Civil Procedure, 1908 shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon. ↑

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https://www.indiacode.nic.in/handle/123456789/1868?sam_handle=123456789/1362 ↑

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https://curarelegal.com/real-estate/ ↑

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www.ncdrc.nic.in ↑

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Section 21 of the Consumer Protection Act, 1986: https://www.indiacode.nic.in/handle/123456789/1868?sam_handle=123456789/1362 ↑

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www.sci.gov.in ↑

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http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FCC%2F97%2F2016&dtofhearing=2016-10-07 ↑

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2016 SCC OnLine NCDRC 1117 ↑

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MANU/SC/0750/2019: (2019) 6 SCC 519 ↑
Section 2(1)(d) of the Consumer Protection Act, 1986 defines consumer and excludes purchasers of goods and receipt of services for “commercial purpose” the explanation of the sub clause excludes goods purchased or services availed for earning livelihood for purposes of self-employment. ↑
Sobha Hibiscus Condominium vs. Managing Director, Sobha Developers Ltd. and Ors. (14.02.2020 - SC) : MANU/SC/0178/2020 ↑
Section 2(1)(m) of the Consumer Protection Act, 1986 ↑
Notified in official gazette of the Government of India w.e.f 09-08-2019, the law has not come in force yet as no commencement date has been notified. ↑
Section 38, 49 and 59 of The Consumer Protection Act, 2019 referring to procedure before the District Consumer Forum, State Commission and National Commission respectively. ↑

Delhi High Court lays down the test to ascertain incidence of stamp duty on Release Deed/Relinquishment deed under Indian Stamp Act, 1899

[The firm's dispute resolution team has represented the petitioner in the matter, views expressed are personal of the author.]

The Indian Stamp Act in Delhi provides for fixed stamp duty on instruments of transfer which release/relinquish the share of the transferor in favour of another existing owner; the issues relating to imposition of fixed stamp duty under Article 55 and not conveyance under Article 23 of the Indian Stamp Act, 1899 (Delhi)(conveyance/gift/sale deed attracts ad valorem rates on the market value of the property and current rates of stamp duty can be accessed here.

In its recent judgment, ^[1]the Hon’ble High Court of Delhi had the occasion to interpret and apply the test to determine when an instrument can be considered as a release/relinquishment deed.

To understand the distinction between the classification of instruments for the purposes of imposing stamp duty, lets us first acquaint ourselves with the facts of the case.

The Petitioner and her son were the owners of the immovable property on the basis of the conveyance deed executed by the Delhi Development Authority (hereinafter called “DDA”) in favour of the Petitioner and her son. The son had executed a relinquishment deed/release deed releasing his one half share of the property in favour of the Petitioner and appeared before the Sub-Registrar, Delhi for registration of the instrument.

Upon presentation, the sub-registrar invoked the provisions of Section 33 of the Indian Stamp Act, 1899 and impounded the instrument/deed and referred the it to the Collector of Stamps(SDM, Delhi) under Section 38 of the Indian Stamp Act, 1899 for assessment of stamp duty on the ground that the relinquishment deed executed by co-owner son in favour of the Petitioner was a gift deed and hence the instrument was insufficiently stamped.

This order of sub-registrar was impugned before the Hon’ble High Court in a petition under Article 226 of the Constitution of India. The Hon’ble Court held inter alia the instrument is a deed of release/relinquishment and not conveyance/gift deed.

The Court referred and exhaustively analysed the precedents on the issue by various High Courts and concluded that renouncing claim in favour of another co-sharer in respect of the same property/land would constitute a release deed and not a gift deed.

The Court relied on the judgment of the full Bench of the Hon’ble High Court of Andhra Pradesh in “The Board of Revenue, Hyderabad v. Validity Ram Krishnaiah”^[2], the full bench fruitfully referred to the observations of the Hon’ble Supreme Court wherein it was observed that a release deed could only feed title, but could not transfer title and that renouncement must be in favour of a person who had already title to an estate, the effect of which was only to enlarge the right.

The court also had the benefit of the precedents of the Hon’ble Delhi High Court^[3] wherein the Hon’ble Court held that it is not necessary that in order to qualify as a Relinquishment Deed the document must purport to relinquish the share of the relinquisher in favour of all the remaining co-owners of the property. Even if the relinquishment is in favour of one of the co-owners it would qualify as a Relinquishment Deed.

In a recent judgment^[4], the Hon’ble High Court of Delhi observed that the releasee should also have a legal right in the property and the release deed would operate to enlarge that right. The Court further held that the share cannot be released in favour of one who has no rights in the property as a co-owner.

After careful perusal of all the judgments, the Hon’ble Court devised a test to determine when an instrument can be considered as a release/relinquishment deed. The constituents of the test are as follows:

1.True intent: The nomenclature used to describe the document or the language which the parties may choose to employ in framing the document, is not a decisive factor. What is decisive is the actual character of the transaction intended by the executant intention;

2.Determination of the nature of the document is not a pure question of law;

3.No effect on transaction: Where a co-owner renounced his right in a property in favour of the other co-owner, mere use of word like “consideration” and “transfer” would not affect the true character of the transaction;

4.Intention of release deed: Intention of Release Deed is the relinquishment of the right of the co-owner;

5.Co-Ownership: It need not be only through inheritance, but can also be through purchase;

6.Relinquishment of right: Where the relinquishment of the right by the co-owner is only in favour of one of the co-owners and not against all, the document would be one of Gift/Conveyance and not of “release”.

The Court applied the test laid down in the Judgement and held that the instrument in favour of the Petitioner was relinquishment/release deed and not gift/conveyance deed and further directed that the instrument be registered forthwith.

The judgement settles the vexed issue where relinquishment/release deed are impounded under the Indian Stamp Act, 1899 and referred for assessment of deficient stamp duty.

Tripta Kaushik versus Sub Registrar VI-A Delhi & Anr. W.P.(C) 9193/2019: MANU/DE/1090/2020 ↑
MANU/AP/0082/1973 ↑
Srichand Badlani v. Govt. of NCT of Delhi and Ors., MANU/DE/4731/2013 ↑
Hari Kapoor v. South Delhi Municipal Corporation, MANU/DE/3800/2019 ↑

Law governing winding up of Mutual Funds in India

The recent news^[1] about winding up of mutual fund schemes by Franklin Templeton Mutual Fund during the present situation^[2] led to nervousness amongst regular investors of mutual fund. While no doubt the Mutual Fund companies promptly issued press releases assuring the liquidity and standing of their schemes, it left the investors grappling with questions about the repercussions especially when the mutual funds are wound down and its outcome especially on their investments.

Consequently, this has also led to the questions being raised as to the legislative and regulatory framework which govern mutual funds and whether necessary measures for investor protection has been incorporated in the framework. The questions as to the powers and responsibilities of the Asset Management Companies, the Trustee Company as well as the Trust are also being raised.

In this context, it is pertinent to briefly highlight the regulatory framework which governs Mutual Funds. The SEBI (Mutual Funds) Regulations, 1996^[3] (“Mutual Fund Regulations, 1996”) which was formulated by the Securities and Exchange Board of India constituted under the Securities and Exchange Board of India Act, 1992, the statutory regulator which governs the securities and capital markets in India is the regulatory scheme which govern complete life cycle of Mutual Funds.

The Mutual Fund market is segregated into various segments and sectors and is ordinarily classified depending on the nature and composition of the Mutual Fund and the scheme floated by the Mutual Fund Company in terms of Mutual Fund Regulations.

There is however one classification which is relevant to the issue in hand i.e. open ended schemes and close ended schemes. Close ended schemes are self-explanatory i.e. Mutual Fund scheme which have a sunset clause and the scheme stipulates an end date after which the Mutual Fund would be wound up without any further regulatory or investor action.

On the other hand an open ended Mutual Fund scheme, the Mutual Fund remains operational as long as Mutual Fund scheme is not wound up in terms of the Mutual Funds regulations. Being an ‘open-ended’ scheme there is no end date and the Mutual Fund remains operational unless the Mutual Fund is wound up by initiating steps under Chapter V of the regulations.

The winding up of an open ended Mutual Fund can be initiated under regulation 39 (2) of the Mutual Fund Regulations by either the decision of the Trustees or by the order of SEBI or by 75% of the unit holders passing a resolution for winding up of the scheme.

Regulation 41 prescribes the procedure which the Trustee is required to follow for winding up a Mutual Fund scheme. The Trustee is required to call for a meeting of the unit holders; a simple majority of the unitholders who are present and voting can authorize either the Trustee or any other person to wind up the scheme.

The regulation further empowers the trustee or other person to dispose-off the assets of the scheme and distribute the proceeds to the unitholders in proportion to the interest of the unitholders in the assets of the scheme.

The distribution of the proceeds of the scheme would be conducted after discharge of dues and liabilities of the scheme and also towards the expenses incurred in winding up the scheme.

After completion of the process, the trustee or other person empowered to wind up the scheme would report the outcome of the winding up process to SEBI as well as to the unitholders and only after the approval of the SEBI, the scheme would cease to exist.

The overall negative market and investor sentiment was compounded by the news of Franklin Templeton Mutual Fund winding up six of its “open-ended” debt funds, it is incumbent upon to the unitholders and SEBI to exercise its powers and maintain necessary oversight on the winding up process in the interest of unitholders and mutual fund industry as a whole.

https://www.ft.com/content/334b1fda-ab39-4970-8cdf-f2229b92d923 ↑
Spread of Novel Coronavirus(officially named as SARS-CoV-2) and disease COVID-19 as well as the lockdown as imposed by the Government of India under the Disaster Management Act, 2005 which was extended upto 17-05-2020 as per orders of the Ministry of Home Affairs with limited relaxations. ↑
https://www.sebi.gov.in/legal/regulations/mar-2020/securities-and-exchange-board-of-india-mutual-funds-regulations-1996-last-amended-on-march-06-2020-_41350.html ↑

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Indian Patent Law-Analysis of Working, Revocation and Compulsory Licence regime.

The Indian Patent Law regime is governed by the Patents Act, 1970 which had replaced the pre-independence patent law. Since patents are not conferred with common-law protections as in the case of Trademarks i.e. passing off of the marks of another prior user; therefore the rights and privileges on an invention and to the inventor flow only from the legislation. The Patents Act, 1970 in effect codifies the law in respect of registration, management, revocation and expiration of the patent.

Grant of patent on an invention confers a monopoly to the inventor/owner to exploit the patent for its gain, albeit for a limited time frame i.e. 20 years(date of filing/PCT filing). The idea of granting limited monopolistic protection was to assure innovators that the efforts(and investment) for inventing would be duly compensated and also by ensuring that inventions are brought out and be open to public at large. In turn the community would benefit from the innovation which otherwise would have not come in public domain since the inventor would have been fearful of exploitation of its innovation without any recourse. The law was formulated to ensure that the innovator had the fruits of its innovation.

Working of Patents

The law while recognizing the need to grant protection to the inventions by innovators also anticipated that merely granting recognition and protection to innovations would not be sufficient to ensure that the fruits of the innovation is sufficiently accessible by the public. Like every other owner of a property, the rights of a patentee includes the right to work the patent, licence and assign etc in order to ensure that the objectives of the statuary protection are fulfilled in letter and spirit.

The need for providing such safeguards was addressed by introducing provisions of Chapter XVI i.e. “Working of Patents, Compulsory Licences and Revocation” in the Patents Act, 1970.

Section 83 of the Patents Act, 1970 delineated the general expectations from the holder of patent rights to exploit the patent. The provision in no less express terms mandates that the holder of the patent is required to fully commercially exploit the patent and not to enjoy a monopoly. Interestingly Section 83(g) mandated that the patent was granted to ensure that the patented invention was available to be public at reasonably affordable prices.

Section 83 reads as:

83. General principles applicable to working of patented inventions.—Without prejudice to the other provisions contained in this Act, in exercising the powers conferred by this Chapter, regard shall be had to the following general considerations, namely;-

a)that patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay;

b)that they are not granted merely to enable patentees to enjoy a monopoly for the importation of the patented article;

c) that the protection and enforcement of patent rights contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations;

d) that patents granted do not impede protection of public health and nutrition and should act as instrument to promote public interest specially in sectors of vital importance for socio-economic and technological development of India;

e)that patents granted do not in any way prohibit Central Government in taking measures to protect public health;

f)that the patent right is not abused by the patentee or person deriving title or interest on patent from the patentee, and the patentee or a person deriving title or interest on patent from the patentee does not resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology; and

g)that patents are granted to make the benefit of the patented invention available at reasonably affordable prices to the public.

While Section 83 of the Patents Act, 1970 stipulates conditions on the patentee to exploit the patent, to see through that the objective is achieved, the law provides for a transparent system of checks and balances by stipulating that every holder of a patent has to provide an annual statement detailing the “extent to which the patented invention has been worked on a commercial scale in India.” under Section 146(2).

The provision of filing an annual statement, permits the public at large and especially interested parties to ascertain that the patented inventions have been worked as stipulated in the law. Being a public office, the filing becomes part of public record and can be accessed to ascertain the extent of working of the patented invention.

This aspect of regular reporting of the working of the patent is a precursor to any proceedings under Chapter XVI, this is premised on the logic that the Patentee has the complete details of the actual working of the patented invention and the data by the patentee can be laid as a foundation to test whether the conditions as stipulated under Section 83 has been fulfilled.

Compulsory Licence

Section 84 of the Patent Act, 1970 stipulates the conditions for grant of compulsory licence. Some of the salient features of the provision are:

A.The application for Compulsory licence can only be applied after completion of three years of grant of licence.

B.The application can be filed on the following grounds:

(a) that the reasonable requirements of the public with respect to the patented invention have not been satisfied, or

(b) that the patented invention is not available to the public at a reasonably affordable price, or

C.The controller of the patents has to consider the following factors for grant of compulsory licence:

(i)the nature of the invention, the time which has elapsed since the sealing of the patent and the measures already taken by the patentee or any licensee to make full use of the invention;

(ii)the ability of the applicant to work the invention to the public advantage;

(iii)the capacity of the applicant to undertake the risk in providing capital and working the invention, if the application were granted;

(iv)as to whether the applicant has made efforts to obtain a licence from the patentee on reasonable terms and conditions and such efforts have not been successful within a reasonable period as the Controller may deem fit:

D.The conditions as to reasonable requirements of the public shall be deemed not to have been satisfied if:

a)if, by reason of the refusal of the patentee to grant a licence or licences on reasonable terms,—

(i)an existing trade or industry or the development thereof or the establishment of any new trade or industry in India or the trade or industry of any person or class of persons trading or manufacturing in India is prejudiced; or

(ii)the demand for the patented article has not been met to an adequate extent or on reasonable terms; or

a.a market for export of the patented article manufactured in India is not being supplied or developed; or

b.the establishment or development of commercial activities in India is prejudiced; or

b)if, by reason of conditions imposed by the patentee upon the grant of licences under the patent or upon the purchase, hire or use of the patented article or process, the manufacture, use or sale of materials not protected by the patent, or the establishment or development of any trade or industry in India, is prejudiced; or

c)if the patentee imposes a condition upon the grant of licences under the patent to provide exclusive grant back, prevention to challenges to the validity of patent or coercive package licensing; or

d)if the patented invention is not being worked in the territory of India on a commercial scale to an adequate extent or is not being so worked to the fullest extent that is reasonably practicable; or

e) if the working of the patented invention in the territory of India on a commercial scale is being prevented or hindered by the importation from abroad of the patented article by—

(i) the patentee or persons claiming under him or

(ii) persons directly or indirectly purchasing from him; or

(iii) other persons against whom the patentee is not taking or has not taken proceedings for infringement.

The conditions as stipulated in Section 83 is further elaborated by this provision and lays down a clear and unambiguous test which the controller is required to apply. The principles as enunciated in Section 84 are required to be applied in the facts of each application for grant of compulsory licence which not only mandates to consider the working of the patented invention but also obligates the Controller to consider the capacity of the Applicant to effectively work the patented invention and also tests the bona fide of the applicant as it stipulates that the applicant is required to make effort to obtain a voluntary licence from the patentee.

Revocation of Patents

Chapter XII deals with Surrender and Revocation of patents which is distinct from revocation in this chapter as proceedings for revocation int his chapter assumes the patentability of the invention and is applicable only to a valid and subsisting patent(with other conditions as discussed herein after).

The powers of revocation under this chapter is based on the following conditions:

A.The application for revocation can be filed after completion of 2 years from the date of grant of Compulsory licence; and

B.The patented invention has not been worked in the territory of India; or

C.reasonable requirements of the public with respect to the patented invention has not been satisfied; or

D.or that the patented invention is not available to the public at a reasonably affordable price.

The chapter further in sections 86-90 and 92-93 provide for procedure and powers of the controller in proceedings related to compulsory licence and revocation.

Compulsory licences by Central Government:

Section 92 of the Patents Act, 1970 provides for a distinct and limited power to the Central Government to grant compulsory licence any time after the grant of patent, if:

(i)in circumstances of national emergency or

(ii)in circumstances of extreme urgency or

(iii)in case of public non-commercial use

The Central Government may issue a notification under this provision which will empower the controller to issue compulsory licences after following the proceedings as stipulated in the chapter. However in case of public health crises, relating to Acquired Immuno Deficiency Syndrome, Human Immuno Deficiency Virus, tuberculosis, malaria or other epidemics, the controller is empowered to issue licences without following the procedure under Section 87.

This aspect becomes relevant when we consider the current public health crisis and the rapid spread of COVID-19, the Central Government and the controller are not bound by the fetters of procedure and can summarily issue compulsory licence as and when situation demands for issuance of such licence.

Before concluding, I would like to discuss the first case of grant of compulsory licence in India. The brief facts of the case which led to grant of licence as recorded in order of IPAB in Bayer Corporation vs. Union of India & Ors in OA/35/2012/PT/MUM and subsequently by the Bombay High Court in Writ Petition No. 1323 of 2013 are:

(i)Bayer Corporation, the holder of patent of drug named “Sorafenib Tosylate” having brand name Nexavar. The drug was stated to be a palliative drug for patients suffering from Renal Cell carcinoma and Hepato-Cellular Carcinoma.

(ii)Natco Pharma limited filed an application for grant of Compulsory Licence on the grounds that i) it could not obtain voluntary licence despite efforts ii) the Applicant could offer the drug at a price of less than Rs.10,000/- per month of therapy as against the price of Rs.2,80,428/- per month by Bayer Corporation iii) Natco stated that Bayer had not with regard to the patented drug met the reasonable requirement of public nor was it reasonably priced nor was it worked in the territory of India.

While both Natco and Bayer raised multifarious pleas before the Controller, IPAB and High Court, I would like to focus on some of the aspects which in my opinion are the tests as laid out in chapter.

I.Efforts to obtain Voluntary Licence:

The Applicant of CL, Natco relied upon its communication with Bayer to establish its claim that the Natco had made enough efforts to obtain Voluntary Licence. To the contrary Bayer contended that the letter by Natco was merely notice or threat and not any effort to obtain voluntary licence. The IPAB considered the contents of the letter and held that Bayer did not convey that there was room for negotiation which would have established foundation for effort to negotiate the terms for voluntary licence.

The Bombay High Court (“High Court”) also examined the records of the communications between the parties, the Court observed and concluded:

“We have examined the correspondence between the Natco and the petitioner. It is on the basis of examination of evidence i.e. exchange of letters between the parties in the context of Section 84(6) of the Act that both the authorities concluded that effort was made by Natco to obtain for voluntary licence. This concurrent finding of fact was based on appreciation of evidence before the authorities. We also find that the petitioner's response dated 27 December 2010 to Natco's request for a Voluntary licence very clearly records its refusal to grant voluntary licence to the applicant. The so called window in the petitioner's response for Natco to approach is illusory as it is open only if the Natco had anything to add to the application already made.

Therefore, we find no reason to interfere with the findings of the authorities under the Act. We hold that the second condition precedent for consideration of application for compulsory licence namely an effort to obtain a voluntary licence has been satisfied by Natco. Therefore the consideration of the application by Natco for grant of Compulsory Licence to the Controller cannot be faulted nor the impugned order can be faulted on the above ground.”

II.Reasonable requirement of the public is not satisfied:

The first of the three test as stipulated in this chapter, the IPAB and High Court examined whether the requirement of the public is being satisfied or not.

The IPAB examined the sale records as derived from the records filed with Form 27 and concluded that the date of working of the Patentee and its Licencee can only be utilised to ascertain that the reasonable requirement of the public is being satisfied. There is another aspect which was examined and rejected by IPAB was the infringement by Cipla which Bayer had relied upon to claim that the patent was being worked upon to take care of requirement of the public.

This submission was also rejected by the High Court on the ground that the requirement of the public cannot be ascertained on the basis of any mathematical basis. The Court observed that the controller and the IPAB has considered the claims of the rival parties and had concluded on the basis of the material on record. The High Court also noted that there were approximately 8842 patients and the drugs were supplied only to 200 patients. The High Court held that the reasonable requirement would not be satisfied even of the numbers provided by the infringer i.e. Cipla is taken into consideration.

III.Non-availability at a reasonably affordable price:

The second test with respect to reasonably affordable price, the IPAB considered two fold submission 1. Bayer was providing drugs under Patient assistance program and Health insurance schemes and that the drugs were available for Rs. 2,80,000/- per month.

The IPAB held that the patient assistance programme would not be considered for ascertaining the access to the drugs by the patients. It further held that reduction of prices by the patentee would not frustrate the application for grant of compulsory licence.

IV.Patented invention is not worked in territory of India:

On the question of working, while both the IPAB and High Court referred and relied on the submissions of Natco that working in India would not only mean manufacturing in India and import of patented invention can also be considered working for the purposes of Patent Act, 1970. The courts kept this aspect open on the ground as the claims made in every case would vary from facts of such claim. It however laid down that working in India would mean working in Commercial Scale and not token working of the patented drug.

In an appeal against the order of the Bombay High Court, the Supreme Court had refused to grant leave.

While online search would reveal that there are other cases where the applications are either pending adjudication or have been withdrawn. In my opinion, the compulsory licence regime is at a nascent stage and would evolve with time. While every matter would turn on its facts, laying down a general body of case law would permit the Adjudicatory forums/Courts, industry, consumers and practitioners of Patent Law would have the benefit of such case law to formulate a guiding light to deal with every application and would permit the patentee to ensure that its intellectual property are worked and managed in accordance with Indian Laws.

Views are personal.

Curare Legal conducts Webinar with Amity University

Curare Legal was proud to be invited by Amity Institute of Forensic Science to deliver a talk on “Brief analysis of proceedings before Criminal Courts in India – Forensic expert’s perspective”.

Curare Legal was represented by Mr. Setu Niket, who is qualified lawyer, legal commentator, public speaker and practitioner of Criminal, Civil and Constitutional law.

Mr. Niket has been retained by law firms as “Of counsel” to appear and represent its clients in matters before Constitutional Courts.

In the webinar, various aspects of Indian Evidence Act were discussed . The seminar began with introduction to the criminal justice system in India and thereafter, the participants were apprised about various stages of a criminal proceeding.

The discussion thereafter focussed on various aspects of Indian Evidence Act, including expert opinion, primary and secondary evidence, method and manner of proving documents, stages of recording evidence and Judge’s power during recording of evidence.

Thereafter, the various stages of conducting evidence, Examination in chief, Cross examination and Re-Examination were explained. The critical aspects of Cross Examination especially focussing on how the scientific experts can effectively participate in the process and the common aspects which are required for the scientific expert to be prepared to face cross examination were highlighted.

The role of the presiding officer in criminal trials and powers conferred on the presiding officer during the course of recording evidence under Indian Evidence Act, 1872 was also elaborated.

The talk ended with Q&A session with the participants.

The webinar can be accessed here.

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