Golden Rule of Interpretation is Misapplied in Several Decisions in India

(By Saji Koduvath, Advocate, Kottayam)   Mob. 9400230025

Abstract

Introduction

Rules of Interpretation of Statutes and Documents (Mohan v. Kanagavalli(2015 (2) KLTSN 67 (C.No. 78) Mad. = 2014-6 MLJ 582) are as follows:

1. ‘Plain meaning rule’ or Literal rule –words are taken in its plain meaning.

2. Golden rule– when the words require modification to avoid absurdity.

3. Mischief rule –gives effect to the intention of the legislature/author looking at the mischiefs which intended to redress.

THE GOLDEN RULE – Grey v. Pearson, 1857

The ‘Golden Rule of Interpretation’ was laid down by the House of Lords in Grey v. Pearson, (1857) 6 HLC 61) (Shilpa Mittal v State of NCT of Delhi, 2020 (1) KLT 335 (SC)
= 2020 (1) KLT OnLine 1112 (SC) = AIR 2020 SC 405 = 2020(2) SCC 787; Vasant Ganpat Padave v. Anant Mahadev Sawant, 2019 (4) KLT OnLine 3145 (SC) = (2019) 19 SCC 577).

The rule, propounded for the first time by Lord Wensleydale (Grey v. Pearson), declared as under:

•  “I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther. This is laid down by Mr Justice Burton, in a very excellent opinion, which is to be found in Warburton v. Loveland(Warburton v. Loveland, (1831) 2 Dow &Cl480 = 6 ER 806) (see ante, p.76. n.)

This celebrated passage has since come to represent what has been described as the ‘golden rule‘ of interpretation of statutes (Ms.Eera v. State (Govt. of NCT of Delhi), 2017 (3) KLT 560 (SC) = (2017) 15 SCC 133).

This Golden Rule of interpretation (in Grey v. Pearson) is quoted/referred in the following decisions:

•  Shilpa Mittal v. State of NCT of Delhi(2020 (1) KLT 335 (SC) = 2020 (1) KLT OnLine 1112 (SC) = (2020) 2 SCC 787).

• Vasant Ganpat Padave v. Anant Mahadev Sawant(2019 (4) KLT OnLine 3145 (SC) = (2019) 19 SCC 577).

• Nova Ads v. Metropolitan Transport Corpn.(2015 (1) KLT Suppl. 90 (SC) = (2015) 13 SCC 257).

• Nandinisatpathy v. P. L. Dani(1978 KLT OnLine 1017 (SC) = AIR 1978 SC 1025 = (1978) 2 SCC 424).

• Corporation of the City of Victoria v. Bishop of Vancouver Island, (AIR 1921 PC 240).

It is beyond doubt that this ‘golden rule’ is not a simple declaration of the ‘literal rule of interpretation’. It is invoked (and marked in jurisprudence as a characteristic rule) when a deviation from the literal rule is necessitated, or a modification is warranted to the ‘ordinary sense’ of the words.

•  In other words, this rule is applied when ‘literal rule’ fails for the words used by the author of a document or legislature could not be given their natural meaning for, its lack of clarity, or it renders another meaning also. In such cases the apt meaning is given by interpretation, modifying the meaning of the absurd term, or choosing one meaning from more than one meaning.

Thus the golden rule of interpretation aims (minimum) modification of the ‘ordinary sense’ of the words used in a statute or a document so as to avoid the ‘absurdity and inconsistency’ convey by those words and to give effect to the meaning of the words (actually) intended in those statutes or documents.

Golden Rule of Interpretation – Courts add or subtract words

Our Apex Court, in Rakesh Kumar Paul v. State of Assam(2017 (4) KLT 284 (SC) = (2017) 15 SCC 67), held as under:

•  “67. While interpreting any statutory provision, it has always been accepted as a Golden Rule of Interpretation that the words used by the legislature should be given their natural meaning. Normally, the courts should be hesitant to add words or subtract words from the statutory provision. An effort should always be made to read the legislative provision in such a way that there is no wastage of words and any construction which makes some words of the statute redundant should be avoided. No doubt, if the natural meaning of the words leads to an interpretation which is contrary to the objects of the Act or makes the provision unworkable or highly unreasonable and arbitrary, then the courts either add words or subtract words or read down the statute, but this should only be done when there is an ambiguity in the language used.” Quoted in: V. Senthil Balaji v. The State represented by Deputy Director (2023)

Golden Rule of Interpretation – Examples

Lee v. Knapp(1967) 2 QB 442.

•  In this case, it was required to interpret the world ‘stop’. Under the relevant Act, a driver causing an accident had to ‘stop’ after the accident.But, the driver in this case stopped the vehicle for a moment after causing the accident and then moved away. Applying the Golden Rule the Court held that requirement of the section had not been followed for the driver did not ‘stop for a reasonable period of time’and made an attempt to look for the interested persons to make necessary inquiries for him about the accident.

U. P. BhoodanYagna Samiti v. Brij Kishore(1988 (2) KLT OnLine 1126 (SC) = AIR 1988 SC 2239).

•  In this case Section 14 of the U. P BhoodanYagna Act, 1953 had to be interpreted. This Section provided land for “landless person”. It was interpreted as the “landless agricultural labourers”though the Section did not specify that such landless persons should be agricultural labourers or whose source of livelihood should be agriculture; and source of livelihood of those persons should not be trade and business.

‘Golden Rule’ is applied as a “Deviation From” Literal Rule

The “golden rule of interpretation” as established in Grey v. Pearson(1857 (6) HLC 61), is adhered to by the Courts in India in numerous rulings.

In Authorised Officer v. S.Nagamatha Ayyar(AIR 1979 SC 1487 = 1979 (3) SCC 466), our Apex Court quoted from the Article of Prof. R.B.Stevens of the Yale University (Modern Law Review, Vol. 28, 1965, p. 525) which explains ‘Golden Rule of interpretation’. It reads as under:

•  “Whenever the Judges purport to depart fromthe literalor ordinary meaning, and apply the mischief rule or the golden rule, there is a danger that in place of those irrelevant criteria, the canons of construction, they have more obviously substituted their own (perhaps more harmful) impressions, views, prejudices or predispositions. Such conflicts between what Parliament intended and what the Judges assumed Parliament to have intended have long been appreciated.”

In A.R. Antulay v. R.S. Nayak(1988 (1) KLT OnLine 1012 (SC) = AIR 1988 SC 1531 = 1988 (2) SCC 602), it is held as under:

•  “It is only, where the literal meaning is not clear that one resorts to the golden rule of interpretation or the mischief rule of interpretation.”

In Hindustan Lever v. Ashok Vishnu Kate(AIR 1996 SC 285); 1995-6 SCC 326, our Apex Court expressly approved the observation in the decision of the Full Bench of Industrial Court of Maharashtra which said as under:

•  “I have no doubt in my mind in observing that here the language is not plain.It does not admit of but one meaning. Therefore, one would be justified in adverting tothe Mischief Rule also the Golden Rule while interpreting the words appearing in Item 1 of Schedule IV.”

Craies on Statute Law, Pages 86-88, says as under:

•  “The fourth rule known as the golden rule is a variation of the primary rule of literal or grammatical construction. Adherence to the grammatical or literal meaning of words of a statute may lead to interpretation which is manifestly absurd, at variance wither repugnant to the legislative intent. In such cases the language of the statute may be varied or modified. In other words, a construction based on literal or grammatical meaning of words, which by reason by its absurdity, or repugnance to the legislative intent, reduces the legislation to futility, should be avoided. In such cases the bolder construction based the view that the legislature would legislate only for the purpose of bringing about an effective result should be accepted” (The Federal Bank Ltd. v. K. Meenakshi Kanikan(ILR 1992 (2) Ker.295).

In Cross Statutory Interpretation by Dr. John Bell and Sir George Engle (II Edition), it is stated as under:

•  “.. The mischief rule came to be largely, though not entirely, superseded by the ‘literal’ or, as it came to be called in America, the‘plain meaning’ rule. … This had been recognised by Parker CB in the middle of 18th Century; but his words may be thought to have contained the germs of a third rulewhich, in order that it may be distinguished from the mischief and literal rules, is commonly called the ‘golden rule‘. It allows for a departure from the literal rulewhen the application of the statutory words in the ordinary sense would be repugnant to or inconsistent with some other provision in the statute or even when it would lead to what the Court considers to be an absurdity. The usual consequence of applying the golden rule is that words which are in the statute are ignored or words which are not there are read in.”(Quoted in: Baburao Vishvanath Mathpati v. State of Maharashtra, (AIR 1996 Bom.227)

Rupert Gross in ‘Statutory Interpretation’ said as under:

•  “… this had been recognised by Parker, C. B. in the middle of the 18th century; but his words may be thought to have contained the germs of a third rule which, in order that it may be distinguished from the mischief and literal rules, is commonly called the “golden” rule. It allows for a departure from the literal rule when the application of the statutory words in the ordinary sense would be repugnant to or inconsistent with some other provision in the statute or even when it would lead to what the Court considered to be an absurdity. The usual consequence of applying the golden rule is that words which are in the statute are ignored or words which are not there are read in…. . ” (Quoted in: Bansidhar v. Duryodhan, AIR 1985 Ori. 84)

Maxwell in his treatise 12th edition at page 43 observed as under:

•  “The so-called golden rule is really a modificationof the literal rule. It was stated in this way by Parke B :

•  “it is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical constriction, unless that is at variance with the intention of the Legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may bevaried or modified, so as to avoid such inconvenience, but no further”. (Quoted in: Municipal Corporation of Delhi v. J. B. Bottling Company Private Limited, (ILR 1978 1 Del. 129)

‘Golden Rule’is Misconceived as “Literal Rule of Interpretation”

As shown above, ‘Golden Rule of Interpretation’ is a “departure from” or “modification of” the literal rule.

This rule is destined to be employed, opening the tool-box of interpretation, in the following circumstances:

•  (i) the ordinary sense of the words in a document requires modification to avoid absurdity or inconsistency,

•  (ii) the application of ‘literal rule of interpretation’ is inappropriate or unsuitable.

However, the concept of “literal interpretation” (giving effect to the plain meaning of the language), has been (mistakenly) referred to in some court decisions as the “Golden Rule of Interpretation”.

The Golden Rule of Interpretation is referred to in the following decisions

•  NBCC (India) Ltd. v. State of West Bengal, 10 Jan 2025, (2025 INSC 54) = 2025 KLT OnLine 1076 (SC).

•  M/s. Patil Automation Private Ltd. v. Rakheja Engineers Private Ltd.(2022 (5) KLT 102 (SC) = AIR 2022 SC 3848 = (2022) 10 SCC 1).

•  National Highways Authority of India v. Pan Dari Nathan Govindarajulu (2021 (1) KLT OnLine 1178 (SC) = AIR 2021 SC 560).

•  Jaishri Laxmanrao Patil v. Chief Minister(2021 (3) KLT 465 (SC) = (2021) 8 SCC 1).

•  State of Andhra Pradesh v. Linde (India) Ltd. (2020 (3) KLT OnLine 1131 (SC) = (2020) 16 SCC 335);

•  Grid Corpn. of Orissa Ltd. v. Eastern Metals & Ferro Alloys(2010 (3) KLT Suppl. 146 (SC) = (2011) 11 SCC 334).

•  Karnataka State Financial Corpn. v. N. Narasimahaiah(2008 (2) KLT SN 10 (C.No. 11) SC = (2008) 5 SCC 176).

•  Dental Council of India v. Hari Prakash(2001 (2) KLT OnLine 1031 (SC) = (2001) 8 SCC 61).

•  Harbhajan Singh v. Press Council of India(2002 (2) KLT SN 84 (C.No. 98) SC = 2002) 3 SCC 722).

Bifurcation of the ‘Golden Rule‘

Dr.Arijit Pasayat, J., in Union of India v. Dharamendra Textile Processors, (2008 (1) KLT OnLine 1107 (SC) = AIR 2008 SC 668 = (2008) 13 SCC 369) (and in several other decisions rendered by his lordship), bifurcated the ‘Golden Rule‘ in Grey v. Pearsoninto two parts and observed as under:

•  “22. The latter part of this “Golden Rule” must, however, be applied with much caution. “If”, remarked Jervis, C.J., “the precise words used are plain and unambiguous, in our judgment, we are bound to construe them in their ordinary sense, even though it do lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied, where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely, because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning”. (See Abley v. Dale, ER p.525).

It appears that the bifurcation is not proper for two reasons:

•  1. The ‘first part’ definitely refers to ‘literal interpretation’; it is not the ‘Golden Rule’. Fundamentals of this rule lie in the latter part. The ‘first part’ is only an introductory one.

•  2. The bifurcation stands against the ‘Golden Rule‘. The Golden Rule is a departure from (or modification of) the ‘literal interpretation’ as laid down in Supreme Court of India itself (Authorised Officer v. S. Nagamatha Ayyar, (AIR 1979 SC 1487), Hindustan Lever v. Ashok Vishnu Kate (1995 (2) KLT OnLine 1036 (SC) = AIR 1996 SC 285 = (1995) 6 SCC 326) and A. R. Antulay v. R. S. Nayak, (1988 (1) KLT OnLine 1012 (SC) = AIR 1988 SC 1531 = (1988) 2 SCC 602), and the treatises stated above (Craies on Statute Law; Cross Statutory Interpretation by Dr. John Bell and Sir George Engle; Rupert Gross in ‘Statutory Interpretation’ and Maxwell).

Advantages of Golden Rule

•  This rule simply puts the words in the statute or deed work. It is intended to operate in between ‘literal interpretation’ and ‘mischief-rule interpretation’.

•  Applying the Golden Rule, one can deviate from the meaning of words given previously, if it is susceptible to more than one meaning.

•  It gives effect to the words used by the legislature or author, in its ordinary meaning; but, picking up the most sensible and apt meaning to the words used in the statute or deed – susceptible to more than one meaning.

•  Drafting errors in statutes and documents can be corrected without much effort.

Disadvantages of Golden Rule

•  It has no clear framework or guidelines.

•  It is susceptible for change according to the interpreter or court.

Golden Rule of Interpretation Covers Wills, Statutes and Instruments

• Ms.EeraThrough Dr.Manjula v. State (Govt.of NCT of Delhi), (2017 (3) KLT 560 (SC) = AIR 2017 SC 3457).

• After quoting Grey v. Pearson, (1857 (6) HLC 61), it is observed in Ms. EeraThrough Dr.Manjula v. State (Govt. of NCT of Delhi), (2017 (3) KLT 560 (SC) = AIR 2017 SC 3457), as under:

• “This celebrated passage has since come to represent what has been described as the ‘Golden Rule’ of interpretation of statutes. The construction of a clause in a will was before the House of Lords and not the construction of a statute. Nevertheless, the “Golden Rule” was held to cover the construction of wills, statutes and all other written instruments.”

Confidentiality – The Linchpin of the PoSH Law

(By Sridhar Rajagopalan, Chief Legal Officer, Automotive Robotics India Pvt. Limited, Chennai)
E-mail : Sri_raja62@yahoo.com                    Mob. 9940049221

The most important duty fastened on the employer under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as PoSH Law) is to ensure and maintain confidentiality in sexual harassment matters at workplaces.

In this regard, Section 16 of the said law reads as under:

“ Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 2005),
the contents of the complaint made under Section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:

Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses”.

The phraseology employed in the above provision was constructed in such a way to provide emphasis on the importance of safeguarding the parties involved including the witnesses in terms of their privacy and safety both material and psychological keeping in view the sensitivities.

Further Section 17 reads as follows:

Penalty for publication or making known contents of complaint and inquiry proceedings.

“Where any person entrusted with the duty to handle or deal with the complaint, inquiry or any recommendations or action to be taken under the provisions of this Act, contravenes the provisions of section 16, he shall be liable for penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be prescribed”.

Rule 12:“Penalty for contravention of provisions of Section 16.- Subject to the provisions of Section 17, if any person contravenes the provisions of Section 16, the employer shall recover a sum of five thousand rupees as penalty from such person”.

What is prohibited under Section 16 and 17 of the Act is publication of the material information as indicated in the section and its knowledge being brought in the public domain by the press or media while the proceedings are held under the Act of 2013.

In the event of flouting the “confidentiality” by violating Section 16 of the PoSH Law, the aggrieved women will be reluctant to “speak up” as they are scared of the social stigma and the possible character assassination not only at the workplace but also in the society.

The Hon’ble Supreme Court has passed an order in the matter of XXXX v. Kancherla Durga Prasad & Ors. (W.P.(C) 3918/2021 which has directed its Registry that, personal information of a Petitioner and a Respondent in a sexual harassment case should be masked on the internet so that their details are not thrown up by search engines”

In a significant development in this segment of jurisprudence, the Bombay High Court has provided the Confidentiality Guidelines under the PoSH Law in P v. A & Ors. - Suit No: 142 of 2021 which read as follows:

1.   The names of the parties should not be mentioned in the orders and judgments. The orders and judgments are to read ‘A v. B’, or ‘P v. D’;

2.   In the body of the orders and the judgments, the parties are to be addressed as plaintiffs and defendants and not by their name;

3.   The orders and judgments should not mention any personally identifiable information, such as emails, mobile or telephone numbers and addresses.

4.   Similarly, witnesses’ names and addresses are not to be mentioned in the orders and judgments

5.   The orders and judgments passed on merits should not be uploaded on the internet but should be delivered in private; and

6.   no order should be pronounced in open court, only in judges’ chambers or in camera.

7.   Any form of recording of any part of the proceedings is strictly forbidden” and

8.   any attempt to record or transcribe any part of the proceedings will be treated as a contempt of court.”

In Thomas Antony v. State of Kerala (2025 KLT OnLine 1536 = O.P. (KAT) No.80 of 2025), the High Court of Kerala while delivering the judgment on 18th March 2025, has made the following observation:

   “During the course of hearing this petition, we noticed that at present there is no mechanism to anonymize the complainant, who alleges that she faced sexual harassment or other atrocities as envisaged by the POSH Act, in the various proceedings related to the enquiry. When the right to privacy is recognized as one of the important facets of the fundamental rights of a person, a complainant who raises such a grievance is also entitled to ensure that her whereabouts are anonymized from the public domain. That said, this should be done in such a manner not prejudicial to the rights of the employee against whom the complaint is made, while he defends the enquiry. For this purpose, we direct the first respondent to formulate necessary guidelines within a period off our months. We note that the Bombay High Court has issued certain guidelines in P v. A & Ors. (Suit No.142 of 2021 dated 24.09.2021.Though the said guidelines were framed mainly to ensure the privacy of the victim under the POSH Act during the court proceedings, if the government finds it appropriate to follow any part of the said guidelines with necessary variations, it can do so, irrespective of the fact that the Bombay High Court has later clarified that the said guidelines are not meant for general application”.

Gingerly steps:

a) The Corporate PoSh Policy designed in consonance with the PoSH Law should have a specific recital to lay emphasis on the importance of maintaining confidentiality, explaining the need for the same and also the repercussions of non-compliance by anchoring on Sections 16, 17 and Rule 12 of the PoSH Rules, 2013.

b) In addition to the General awareness programs to the employees of the organizations to sensitize them on the Posh Law, a well-designed esoteric training needs to be given to the IC members, the Department Heads and the Supervisors on the need to ensure and maintain confidentiality under this law. That is to say, they need to be trained not to discuss the sexual harassment complaint matters in public by using names of the parties, details of the complaint etc. They should be made to be hypersensitive in these matters to protect the reputation of the organization and the individuals’ image.

c) It would be advisable for the Internal Committee and the Management to be extra cautious and deal with the enquiry and the subsequent matters with abundant caution on the complaints under the PoSH Law to ensure protection of the privacy of the parties involved and as such proceedings are to be conducted in a secluded place away from the public view, right from the initial stages of the inquiry. 

d) Confidential information pertaining PoSH Law and the enquiry need to be stored with access control measures.

Comments on Altruism and Community Service as A Punishment
under  Section 4(f) of the Bharatiya Nyaya Sanhita, 2023

(By Sajeer H.,Law Officer, Local Self Government Department, Principal Directorate, Thiruvananthapuram)

E-mail : advsajeer@gmail.com     Mob.: 9447584730

Community service is one form of punishment outlined in the Bhatariya Nyaya Sanhita, 2023, among six specific offences. Although the term “community service” is not defined within the legislation, the lawmakers intentionally left its definition ambiguous to avoid being constrained by a narrow interpretation. Many jurists and legal practitioners have questions regarding the procedures for assigning community service as a punishment. Specifically, they are uncertain about how the accused will be monitored during this process and who will certify that they have successfully completed their community service and feel remorse for their past actions.

The Bharatiya Nyaya Sanhita specifies six offences that empower a Magistrate to assign community service to those found guilty. These offences are outlined in Sections 202, 209, 226, the proviso to sub-section (2) of Section 303, Sections 355, and 356 of the Sanhita.

Section 202 states that, if a public servant, who is legally bound not to engage in trade, does so, they shall be punished with imprisonment for a term which may extend to one year, or fine, or both, or with community service.

Section 209 indicates that anyone who fails to appear at the specified place and time, as required by a proclamation published under sub-section (1) of Section 84 of the Bharatiya Nagarik Suraksha Sanhita, shall be punished with imprisonment for a term which may extend to three years, or fine, or both, or with community service.

According to Section 226, anyone who attempts to commit suicide with the intent to compel or restrain a public servant from performing their official duty shall be punished with simple imprisonment a term which may extend to one year, or fine, or both, or with community service.

The proviso to sub-section (2) of Section 303 states that in cases of theft where the value of the stolen property is less than five thousand rupees and the individual is a first-time offender, they shall be punished with community service upon returning or restoring the stolen property. Additionally, if the value of the property is below five thousand rupees, the offence is bailable, compoundable, and non-cognizable.

Section 355 also mentions community service. It states that if an individual, in a state of intoxication, appears in any public place or in a place where they are trespassing, and conducts themselves in a manner that causes annoyance to any person, they may be punished with simple imprisonment a term which may extend to 24 hours, or a fine of up to one thousand rupees, or both, or with community service.

Section 356(2) of the Sanhita states that anyone who defames another person shall be punished with simple imprisonment for a term that may extend to two years, or with a fine, or with both, or by performing community service.

Upon reviewing these provisions, it can be observed that the punishment of community service is not meant to stand alone; rather, it is to be combined with a sentence, except in the case of the proviso to sub-section (2) of Section 303 of the Sanhita. It is important to note that community service is rooted in altruism and is intended for social service purposes. It should not be regarded merely as a punishment.

The significance of community service was brought to light by the Pakwasa Committee in 1949, which recommended that inmates in jails be engaged in roadwork and suggested providing small remuneration for their labour.

In the case of Babu Singh v. State of U.P. reported in (1978 KLT OnLine 1051 (SC) = AIR 1978 SC 527), the Supreme Court encouraged the adoption of alternatives to imprisonment, such as community service. It also advocated for practices like meditation and study sessions to help rehabilitate offenders. Furthermore, the Malimath Committee recommended integrating community service into sentencing.

Community service offers a unique opportunity to address the ego of an accused individual, especially when facing trials for offences that provide them with psychological satisfaction or amusement. By engaging in community service, the accused can be reintegrated into mainstream society and accepted by the community. The ideals of love, compassion, mercy, and service can be revived through this concept.

In Venkateswaran v. State, reported in (2025 KLT OnLine 1138 SC), the Supreme Court directed the petitioner, while applying for bai, to undertake coaching at colleges and government higher secondary schools. In Saji v. State of Kerala reported in (2023 (6) KLT 567), the Honourable High Court ordered an accused, convicted under Sections 279 and 304A of the I.P.C., to perform community service at the District Hospital of Pathanamthitta for four days each month starting from January 2024.

The idea of community service as a form of punishment is an innovative proposal by Parliament, although it was not extensively explained. In simple terms, community services can be categorized into two types: direct services and indirect services.

Direct services involve individuals actively engaging in helping others. This includes preparing and serving food to the poor and needy without payment, tutoring children without accepting remuneration, assisting patients in hospitals, representing clients without fees, offering aid to those in distress, and cleaning public places such as schools, bus stands, and railway stations, among other similar tasks.

Indirect services, on the other hand, involve supporting efforts to help those in need from behind the scenes. This could include building free hospitals, establishing shelters for the underprivileged, providing financial assistance for weddings, raising funds for national welfare, supporting students financially, and engaging in charitable work.

The Bharatiya Nyaya Sanhita, while not specifying the actual methods of community service, implies that direct community service actions were intended by the legislature.

There are several possible methods of community service that we can propose. These are questions to be raised by both the bench and the bar.

1. Serving in Geriatric Wards:

This is a valuable form of community service. Individuals who are sentenced for offences could be directed to assist in geriatrics wards for at least four to five days each month. This service would be beneficial for those who require attention and care. The superintendent of the hospital should be instructed to monitor these individuals’ service and report their performance and character to the court.

2. Cleaning Public Places:

Accused individuals may be assigned to clean public areas, such as hospitals, schools, and public restrooms, as well as to remove graffiti from walls. Proper directives should be given to the heads of these institutions to oversee the service and report on the accused’s work.

3. Serving Food to the Needy:

The accused should be directed to prepare and serve food free of charge to underprivileged individuals four to five days each month.

4. Providing Education on the Dangers of Drugs:

The accused could conduct educational classes for school and college students on the harmful effects of drug use and lead campaigns aimed at drug eradication.

Benefits of Community Service:

Community service can alleviate the burden on the justice system and reduce rates of recidivism. Engaging with those in need may instil a sense of repentance in offenders, encouraging them to reform and adopt better character.

Additionally, agencies benefit from the labour provided by offenders. Creative activities can enhance societal welfare without requiring monetary support or additional manpower from the government.

Community service can also increase public support. Although offenders may be compelled to perform these services, their continued engagement can foster positive changes within the community.

Moreover, it saves public funds that would otherwise be spent on incarceration. Imprisoning individuals offers no advantage to the public, whereas allowing them to serve society can lead to significant benefits and contribute to uplifting the community.

Finally, community service can contribute to a safer and more secure environment for all residents.

Risks of Community Services

Community services present several challenges. Firstly, the issue of monitoring is a primary concern. Offenders are required to report to the head of the office for certain types of community service. It is the responsibility of the head of the department (HOD) to closely monitor the activities of these individuals.

Secondly, the process of issuing a certificate upon completion of community service can lead to confusion and frustration. If the head of the department or the supervisor has not submitted a report confirming the completion of the service, the offender may be left waiting for a positive evaluation. This delay can result in public teasing, and people around the offender may refuse to associate with them.

Additionally, if offenders are reintegrated into society without adequate monitoring, there is a risk they may re-offend. For habitual offenders, community service alone may not be effective in changing their behaviour unless they are willing to make a conscious effort to do so.

Conclusion

Community service is generally viewed as a more acceptable alternative to incarceration, which often involves the misuse of public funds. Currently, community service is limited to six minor offences as outlined in the BNS. Expanding this list to include additional offences—such as those defined in sections 79 (acts intended to insult the modesty of women), 82(2) (remarrying during the lifetime of a spouse), 85 (subjecting a woman to cruelty), 270 (public nuisance), and 296 (obscene acts and songs)—could enhance the benefits of the Act for society as a whole.

The Competition Law IPR Interface : The Ericsson Case and its Aftermath

(By Dr.Raju Narayana Swamy, IAS)

E-mail : narayanan5@ias.nic.in   Mob.: 9447010602

Introduction

IP and competition laws share the same economic rationale. Both are founded with the purpose of promoting innovation and achieving economic development, technological advancement and consumer welfare. IPR is an intangible right protecting commercially valuable products of the human intellect. It gives its owner the right to exclude others from access to or the use of protected subject matter for a limited period of time. This includes copyrights, patents, trademarks, industrial designs and trade secrets. Competition law on the other hand involves formulating a set of policies which promote competition in the market. These are aimed at preventing unfair trade practices. Well designed and effective competition laws promote the creation of an enabling business environment which improves static and dynamic efficiencies and leads to efficient resource allocation.

The relation between IPR and competition law has been described as an unhappy marriage. The former may be seen to promote monopolies while the latter is designed to oppose them. To put it more succinctly, IPRs by designating boundaries within which competitors may exercise legal exclusivity over their innovation appear to be against the principles of static market access and level playing fields sought by competition rules. In fact, the tension between competition policy and IPR dates back to the days when the statute of Monopolies 1624 was enacted in England. It prohibited monopolies, but permitted ‘patent monopolies’. But as Martin Khor puts it, a trade off may exist between achieving static efficiency through competition and long term efficacy through growth and innovation. 

Broadly their interface can be seen from two main perspectives:

i.  the impact of IPRs in shaping the discipline of competition law.

ii. the application of competition law on the post-grant use of IPRs.

    In fact IPR- related competition issues include

(a) Exclusionary terms in the licensing of IPRs- specifically the inclusion in licensing contracts of restrictive clauses such as territorial restraints, exclusive dealing arrangements, tying or grant back requirements.

(b) Use of IPRs to reinforce or extend the abuse of dominant position in the market unlawfully.

(c) IPRs as an element of mergers.

(d) Refusal to deal.

There are generally two approaches that have been adopted to prevent IPR abuse: compulsory licensing and parallel imports. The former is an involuntary contract between a willing buyer and an unwilling seller imposed and enforced by the state. The latter refers to goods brought into a country without the authorization of the patent, trademark or copyright holders after those goods were placed legitimately into the market elsewhere.

The International Scenario

Internationally the interface between IPR and competition law is governed by the TRIPS Agreement. Members are allowed to take appropriate measures consistent with the TRIPS to prevent abuse of IPRs by right holders.  Article 31 of TRIPS provides for the grant of compulsory licenses under a variety of situations which include:-

(a) Anticompetitive practices by the patentees or their assignees.

(b) National emergencies.

(c) The interest of public health.

(d) Nil or inadequate exploitation of the patent in another country.

(e) Overall national interest.

Article 40 of TRIPS deals with anticompetitive practices in contractual licenses. In addition Article 30 permits Members to create limited exceptions to patent rights. In fact, critics consider Article 30 to be the relevant provision enabling Members to address abusive practices in acquiring and exploiting IPRs.

The Indian Position

The Indian Competition Act incorporates an exception for IPRs under Section 3(5) based on the rationale that IPRs deserve to be cocooned since a failure to do so would disturb the all – important incentive for innovation. The said provision reads as follows:-

“Nothing contained in this section shall restrict-

(i) the right of any person to restrain any infringement of or to impose reasonable conditions as may be necessary for protecting any of his rights which have been or may be conferred upon him under

(a) the Copyright Act, 1957 (14 of 1957).

(b) the Patents Act, 1970 (39 of 1970).

(c) the Trade and Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act, 1999 (47 of 1999).

(d) the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999).

(e) the Designs Act, 2000 (16 of 2000).

(f) the Semi-conductor Integrated Circuits Layout – Design Act, 2000 (37 of 2000)

(ii)  the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provision of services for such export.”

Thus under Section 3 (anti-competitive agreements), IPRs have been protected to the extent that they are reasonable. Unreasonable conditions contained in an agreement will not be protected. On the other hand when an enterprise enjoys a dominant position and is thus covered by Section 4 (abuse of dominant position), it enjoys no immunity for its IPRs. This has been confirmed by the CCI in the Automobiles decision rendered on 25 August 2014. However, experts feel that the language used by the CCI in the said decision - which suggests that the existence of IPR is completely irrelevant to the analysis under Section 4 -is questionable.

It is worth mentioning here that under Section 27 of the Competition Act, the CCI  has the authority to penalize IPR holders who abuse their dominant position.   A fact to be noted is that there is no clause in Section 4 on the ground of public interest or IPR abuse as a reason for interference. Action can taken only when there is ‘appreciable adverse effect on competition’.

A critique of IPR exemption under Section 3(5)

Pharma industry experts often lament that “owing to the blanket exemption under Section 3(5), the square peg of any anti-competitive practice tethered to the use of IPRs must now be brought through the round hole of  “abuse of dominant position” under Section 4”. While one can sympathize with the emotion, this is perhaps a very narrow and cynical view. True, Section 3 remains puzzling in as much as it goes against the MRTP commission precedent under the old Act which held that the Commission (and by extension the Competition Commission of today) had complete and unfettered jurisdiction to entertain a complaint regarding IPRs. However it needs to be mentioned that Section 3(5) does not give protection to unregistered IPRs such as unregistered trademarks. Even with respect to registered IPRs, the language of Section 3(5) suggests that it contains an exception (viz) the right to impose reasonable conditions. The expression “reasonable conditions” has not been defined or explained in the Act and has to be decided by the CCI on a case to case basis. For instance in the Multiplex Association case   the movie producers argued that the decision  to  not release any movies was reasonable to protect their copyright in the movies and thus valid under Section 3(5). The CCI held that IP laws do not have any absolute overriding effect on competition law and found cartel – like activity in the Indian film industry. The rights guarantees under Section 14 of the Copyright Act do not allow IP holders to act arbitrary and inconsistent with the provisions of competition law. It was held that the Act exempts the provision with respect to anti – competitive agreement in only limited circumstances (ie.) to protect the rights conferred by the relevant IP statutes.

In Shamsher Kataria v. Honda/Volkswagen/Fiat India and others for instance the CCI decided on whether the OEM’s (Original Equipment Manufacturer) claim over IPR exemption passes the reasonability test engrained in Section 3(5)(i) of the Act. It was observed that the concept of protection of an IPR under Section 3(5)(i) is qualified by the word ‘necessary’. So the question that one should ask is: Can the IPR holder protect his IPR even if such restriction was not present? Applying that test, CCI did not find merit in the OEM’s contention. It was noted that what the OESs (Original Equipment Suppliers), sell to the open market are spare parts which are finished products (bumpers, bonnet / hoods, car gears, fog lights etc). The IP required by the OESs to manufacture a spare part will be protected contractually pursuant to the agreement between the OEM and the OES and allowing OESs to sell the finished products in the open market may not affect that agreement as such.

It needs to be mentioned here that the CCI in their advocacy measures has provided an illustrative/indicative list of practices that may be unreasonable under Section 3(5).These include:-

(a) Patent pooling.

(b) Forcing licensees to acquire particular goods (unpatented materials) solely from the patentee.

(c) Payment of royalty beyond patent expiry.

(d) Subjecting a license to the condition that the validity of IPR in question cannot be challenged.

(e) Limiting the maximum amount of use the licensee may make of the patented invention.

The CCI has also clarified that the IPR must have been conferred on the holder prior to the exception being availed. Interestingly the Patents Act, 1970 explicitly prohibits certain licensing arrangements under Section 140. These include (among others) coercive package licensing and mandating exclusive grant back. It needs to be mentioned here that the Patents Act declares these conditions void and in principle not within the scope of patent rights. In such cases, the exemption under Section 3(5) of the Competition Act will not come to the rescue of the licensing parties.

Worth mentioning here is the issues of ‘trade secret’. The Director General’s Report points out that since ‘trade secret’ does not find a mention in Section 3(5), it ought not be protected. Notably the aforesaid section protects rights conferred by specific statutes and trade secret protection in India is not governed by any specific statute. Thus prima facie it appears to be excluded from protection. Nonetheless an argument can be made that even outside the scope of the said section the existence of trade secrets could be a relevant factor in assessing appreciable adverse effect on competition especially since the Apex Court has recognised reasonable protection against exploitation of trade secret. 

India’s IPR related competition litigation

It was the Aamir Khan Production v. The Director General that opened a plethora of cases dealing with IP and competition issues in India. In the said case the Bombay High Court held that the CCI has the jurisdiction to deal with competition cases involving IPR. In Kingfisher v. Competition Commission of India also it was held that all the issues that rose before the Copyright Board could also be considered before the CCI.

In yet another case, the CCI took a diminutive stand on DTH (Direct To Home) operators in India. The said operators were exonerated based on the argument that there is no such concept as ‘collective dominance’ in the Competition Act of India. It is very much doubtful whether the CCI decision is at par with similar in comparable jurisdictions. To be true to facts, the Indian jurisprudence on the subject can be classified under the following major heads:-

Abuse of dominant position

The law firm Singhania & Partners LLP filed a complaint with the CCI against Microsoft India, alleging anti-competitive practices and abuse of dominance in the Indian market with regard to their software - Windows Operating System and Windows Office. The COMPAT (Competition Appellate Tribunal) upheld the CCI ruling that Microsoft did not abuse its dominant position regarding its software license in an order dated 9th October 2012. In fact the said case was decided in favour of Microsoft despite the fact that Microsoft was facing adverse rulings in other jurisdiction like US and EU.

The Delhi High Court in  the Hawkins case   dealt with an allegation by the plaintiff that the defendant company was using the plaintiff`s trade mark “Hawkins” on their products which were pressure cooker gaskets. The Court held that a well-known mark cannot create a market monopoly due to its reputation. If it does create a monopoly it cannot use this economic strength to control the ancillary markets, then it would be considered as an abuse of dominant position.

(b) Refusal to grant IP license

Refusals when limited to decisions of a single entity would have to be examined under Section 4.  But where the refusals involve multiple entities (ie) group boycott the examination may proceed under both Sections 3 & 4 of the Act. The IMS Health Case   however put three conditions to be satisfied for declaring a refusal as an abuse of dominant position. They are:

1. That the refusal to license is preventing the emergence of a new product for which there is a potential consumer demand.

2. That it is unjustified and

3. That such refusal excludes competition in the secondary market.

Complications abound in this area because of lack of guidelines from CCI and due to the fact that this subject matter is addressed in some IP legislations. To quote an example, under Section 84 of the Indian Patents Act 1970, the Controller of Patents has the power to grant compulsory license after expiry of 3 years from grant of patent in case the patented invention does not meet the ‘ reasonable requirements of the public ‘ or ‘is not available to the public at a reasonably affordable price’ or ‘is not worked in the territory of India’. It is worth mentioning in this context that in 2012, the Controller of Patents granted a compulsory license to Bayer’s patent covering a cancer drug to a generic Indian drug manufacturer on all three grounds.

The Copyright Act, 1957 contains similar provisions through of a narrower scope. Compulsory license may be issued pursuant to Section 31(1)(b) of the said Act. It is worth mentioning here that this provision extends only to certain types of a copyrighted works and not all. In Music Broadcast Pvt. Ltd v. Phonographic Performance Ltd. (a 2010 decision), the Copyright Board issued compulsory license to musical works in favour of the FM radio industry on a revenue sharing model (ie) 2% of the net advertisement earnings of each FM radio station would be set aside to pay the music providers.

Other IP legislations however do not carry such explicit provisions.

(c) Excessive pricing and predatory pricing

Predatory pricing is a strategy – that entails a temporary price below the cost of production in order to injure competition and thereby reap higher profits in the long run. It was considered by the MRTP Act as a restrictive trade practice. However, overpricing of any patented product per se is not violative of any competition provisions.  But keeping the pricing of patented and branded generics outside the scope of price control is a major concern particularly in developing countries in the area of life saving drugs.

(d) Implications of merger control

Technology transfer agreements and other acquisition of IPRs may require the approval of CCI. Such transactions must be reviewed to check whether sanction is needed from a merger control perspective under Sections 5 and 6 of the Act.

(e) The Novartis Case and evergreening

The Novartis case raised the issue of extended patent application with the evergreening effects and excessive pricing of proprietary medicine. It was an eye-opener for developing countries like India.

Mention also needs to be made here of trade dress as a barrier to competition. In a country like India, colour plays a significant role in patient retention and consumer loyalty. For example, the use of a purple coloured inhaler is a sure way of keeping an asthmatic patient handcuffed to a brand for life if the colour of the inhaler is protected as a trademark even after the patent on the drug empires and other cheaper and perhaps even more effective alternatives are available albeit in different coloured inhalers. To put it a bit differently, the use of a colour, shape or trademark extends a patent monopoly for every patient who either has no choice once the doctor prescribes a drug or device or suffers from such a medical condition that a change would be extremely disruptive of his treatment regimen, causing him to reject the choice of cheaper alternatives.

The Judgment of the Division Bench of the Delhi High Court

It is worth mentioning in this context that a Division Bench of the Delhi High Court vide its judgment dated 13th July 2023 in Telefonaktiebolaget LM Ericsson (PUBL) v. Competition Commission of India over turned an earlier decision (delivered on 30th  March 2016) by a single judge bench who had maintained the CCI’s jurisdiction in patent-related disputes. Ericsson which was being investigated by the CCI for possible abuses of dominance in patent licensing had challenged the Commission’s jurisdiction through a Letters Patent Appeal (LPA) from the order of the single bench. They contended that patent matters are exclusively the responsibility of the Controller of Patents. The single judge, it needs to be mentioned here, was emphatic in culling out that there were differences between the remedies available under Section 84 of the Patents Act 1970 (provisions pertaining to compulsory licensing) and those described in Section 27 of the Competition Act. The remedies are not mutually exclusive, individuals have the option to seek redress under both if desired.

In its judgment dated 13th July 2023, the High Court observed that the Competition Act and Patents Act are specialized statutes in competition and patents. A special reference was made to an amendment carried out in 2003 to the Patents Act. The High Court found that when the legislature introduced Chapter XVI of the Patents Act in 2003 - a year after the Competition Act was passed – it was evident what the legislature intended. The goal was to turn the Patents Act into a unique piece of law. The Court concluded that the Patents Act supersedes the Competition Act with respect to the exercise of patentee rights as it viewed the Patents Act as a special legislation and applied the legal precept lex posterior derogate priori. By accepting Ericsson’s appeals, the Court invalidated the CCI’s jurisdiction over such matters.

Legal experts however are of the view that the logic that the Patents Act came later is flawed. To be true to facts, the Gazette of India notification for inclusion of Chapter XVI of the Patents Act was made through the publishing of the Patents (Amendment) Act, 2002. It received the assent of the President on 25 June 2002 and was published in the Gazette on the same day. On the other hand the Competition Act received the assent of the President on 13 January 2003 and was published in the Gazette of India the next day. Thus it is crystal clear that the Competition Act was the later statute. Moreover, according to Section 60 of the Competition Act, its provisions supersede and have the upper hand over any conflicting provisions found in other laws that were in existence. This Section was brought into effect after Chapter XVI of the Patents Act was enacted. Thus a plain reading of the head note of Section 60 tells us that the competition law will have an overriding effect on Chapter XVI of the Patents Act.

In fact, the powers of the Controller are personal in nature as opposed to being in rem like those of CCI. Thus CCI may have superior capabilities in monitoring patent cartels compared to the Controller. The Competition Act does not contradict the broader objective of the Patents Act. If a hierarchy is established among the legislations, the significant differences in the content of their substantive provisions may be disregarded and collaborative anti -competitive agreements involving patents may go unregulated.

Conclusion

Competition law can play a proactive role in arresting the abuse of monopoly rights granted by IPR. Through IP rights are necessary for furthering efficiency and development in a market, their potential to lead to anti-competitive outcomes cannot be ruled out. This is all the more relevant now that Courts have settled the principle that the interest of the consumer and competition in the market are of supreme importance and cannot be sacrificed. Needless to say, one cannot operate like a cartel in the name of ‘collective bargaining’ which is what happened in the FICCI Multiplex case. India can use compulsory licensing provisions in case of excessive pricing of any products including copyrighted and patented software. Tying arrangements should be dealt with using competition provisions. Specific guidelines need to be promulgated by the CCI in cases involving both IP and Competition.  Only then can the conflicts in the overlapping zones of competition law and IPR be resolved and their interaction be brought to a level that is neither conflicting nor aimed at one replacing the other. This confluence can draw attention to the intricate connection between fostering market competition and safeguarding IPR. For this Utopia to come true what is needed is deeds not words and the political will accompanied by the administrative acumen to execute.

 References

1. K.D.Raju, “The Inevitable Connection Between Intellectual Property and Competition Law: Emerging Jurisprudence and Lessons for India”, Journal of Intellectual Property Rights, Vol.18, March 2013.

2. Regibeau Pierre and Rocket Katharine, “The relationship between intellectual property law and competition law: An economic approach” www.essex.ac.uk/ /discussion-papers/papers...dp 581.pdf.

3. Buckleg Meg, “Licensing Intellectual Property: Competition and definitions of abuse of a dominant position in the United States and the European Union, “ Brooklyn Journal of International, 29 (2004)(2)797.

4. Kingfisher v. Competition Commission of India, Writ Petition No.1785 of 2009.

5. Manju Bharadwaj v. Zee Telefilms Ltd. (1996) 20 CLA 229.

6. Dr. Vallal Peruman v. Godfrey Phillips (India) Ltd. (1995) 16 CLA 201.

7. Hartej Singh Kochher and Anuttama Ghose, “Traversing Jurisdictional Boundaries: Unravelling Delhi High Court’s Verdict on Competency of Competition Commission of India in Patent Affairs”, Journal of Intellectual Property Rights, Vol 29, November 2024.

8. Schwartz H.M. “Wealth and secular stagnation: The role of industrial organization and intellectual property rights,” The Russell Sage Foundation Journal of the Social Sciences, 2 (6) 2016.

9. Mehta P.S., “Interface between competition policy and Intellectual Property Rights: Select Case Studies from India”, Corridors of Knowledge for Peace an Development, 2020.

10. CCI v. Bharati Airtel, Civil Appeal No.11843 of 2018 (2019 (1) KLT OnLine 3077 (SC)).

[i] Kaha Zorina, Federal anti-trust agencies and public policy towards anti-trust and intellectual property, Cornell Journal of Law and Public Policy, 9 (1999)133

[ii] Martin Khor, Intellectual property, competition and development www.twnside.org.sg/ title2/par/mk002.doc

[iii] Pursuant to the general considerations in paragraph 1 of the TRIPS preamble read with Art 8 (2) of the TRIPS Agreement

[iv] FICCI - Multiplex Association of India vs United Producers Distributors Forum and others (Case No. 1 of 2009 decided on 25.05.2011)

[v] Case No.3 of 2011

[vi] Niranjan Shankar v. Century Spinning & Manufacturing Co. (1967) 2 SCR 378.

[vii] 2010 (112) Bom. LR 3778

[viii] Writ Petition No.1785 of 2009

[ix] Hawkins Cookers Ltd v. Murugan Enterprises (2008) 36 PTC 290 (Del.)

[x]  Case C – 418/01, IMS Health [2004] ECR I – 5039.

[xi] Dr.B.Jayakrishnan, Asthma Inhalers And Colour Coding: Universal Data, 60 (578) Br J Gen Pract 690-691(Sep.1,2010) available athttp://www.ncbi.nlm.nih.gov/pmc/articles/PMC 2930244/.

[xii] Case No.LPA 247/2016 (Del.).

[xiii] W.P.(C) Nos. 464/2014 & 1006/2014. 

PIG Menace - An Issue Created Out of A Non-Issue

(By K.M. Sudhees Babu, Advocate, Adoor)
E-mail : kmsudheesbabu@gmail.com     Mob.: 9495835962

In India pigs (Sus scrofa) are considered as a serious and significant problem in many human settlements as they cause huge damage to crops and agricultural lands. Predominantly in our State they cause a major threat to the life and property of common man. In fact among the States, wild animal - human conflict is at its peak in Kerala. Agricultural activities have come to a halt in almost all areas. The prices of vegetables and other agricultural products are skyrocketing in our State. Our Legislature unanimousy passed a resolution requesting the Centre to declare wild boars (Sus scrofa) as vermin. But nothing happened till date except an escalation in the menace caused by such pigs. So we are concerned about an effective remedy.

If we analyse the present situation in the light of the Wild Life Protection Act 1972 we will certainly come to the ineluctable conclusion that the present sorry state of affairs is the result of the inept handling of affairs by the concerned authorities.

Here damage is caused by two categories of pigs belonging to the species Sus scrofa which is specified as Item No.19. wild pig (Sus scrofa) in Schedule III of the Wild Life Protection Act, 1972 . One category is those which invade human areas from their habitat, ie; from the forest, for food and then returning to their habitat. The other is the pig community of the same species that have settled permanently in human settlements abandoning for ever their habitat. About ninety percent of the present day problem is created by such pigs. It is crucial to examine whether such pigs, can be counted as wild animals.

Before the amendment of the definition “wild animals in the Wild Life Act in 2003 it was -(36)” wild animal” means any animal found wild in nature and includes any animal specified in Schedule I, Schedule II, Schedule IV or Schedule V, wherever found. So all animals found in the wild and all animals specified in the Schedules, irrespective of the place where they were found, were wild animals. As far as the first part of the then definition is concerned habitat alone was the criteria to decide whether an animal is wild or not. The deciding factor for the second part was the inclusion of the name of the animal in any Schedule. Hence all scheduled animals settled in a cultivating land, in any part of a building, in a well or in any human creation were wild animals then Habitat was irrelevant. It really was an absurd definition as it deprives a person of his right to property guaranteed by Article 300A of the Constitution of India. Besides it offends Article 21 of the Constitution which is a fundamental right to Protect Life and Personal Liberty.

After all this definition was amended in the year 2003 to -“ wild animal” means any animal specified in schedules I to IV and found wild in nature . Now unless any animal is not specified in any Schedule from I to IV and not found wild in nature it is not a wild animal. Hence one doubt that can be raised is whether the words “found in nature is related to habit of such animals. But if we analyse the earlier definition of  wild animal as it existed prior to 2003 and other aspects it can be seen that such a proposition is unfounded.

The meaning of the word wild in Oxford dictionary is – (of an animal or plant) in its original natural state, not domesticated or cultivated . Another one is -living or growing in the natural environment , not domesticated or cultivated . Nature means the phenomenon or the physical world collectively including plants, animals, landscapes and other features and products of earth as opposed to humans and human creations. Everything including cultivation, building , well etc. in human settlements are human creations. So wild animals or wild life cannot exist in its natural state or natural environment in human areas where everything is human creation.

The words “wherever found‟ used in the definition of “wild animal‟ prior to 2003 is important. “Wherever ‟ is a word that can be used in relation to place alone. So it can be clearly ascertained that as far as the Wild Life Act is concerned found wild in nature denotes place alone and not behaviour.

If the definitions of “wild life‟ ad “habitat‟ are read with “wild animal‟ we can see that wild animals are only those animals specified in the Schedules and living in their habitat permanently, (37) “wild life‟ – wild life includes any animal , aquatic or land vegetation which
forms part or any habitat, (15) “habitat‟ includes land, water or vegetation which is the natural home of any wild animal. If we combine the definitions of wild life and habitat we can say- wild life includes any animal, aquatic or land vegetation which forms part of the natural home of any wild animal. In fact habitat is an inseparable element of wild life. Wild animal is part of wild life. Here the natural home of the pigs (Sus scrofa) is forest alone. When we say wild boars it means only those species living in the wild, that is in the forest and nowhere else.

But it cannot be said that natural environment is confined to forest alone for all animals. From the meaning of the word nature it is clear that everything which are not human creations form part of natural environment. It is further evident from Article 51 A(g) of the Constitution of India .

51A. Fundamental duties. It shall be the duty of every citizen of India- (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

Two points are evident from this Article. One natural environment is not confined to forest alone . Two wild life is confined only to natural environment . But here in the case of wild boars natural environment or habitat is confined to forest alone.

In the further proviso to Section 11(1)(a) of the Wild Life Act, which deals with hunting of wild animals what stated is that- Provided further that no such captured animal shall be kept in captivity unless the Chief Wild Life Warden is satisfied that such animal cannot be rehabilitated in the wild and the reasons for the same are recorded in writing. Here from the words “rehabilitated in the wild” it is clear that wild denotes place and that too habitat.

As per the Wild Life Act captive animals are treated as wild animals. Under the Act the definition of captive animal is (5) “ captive animal” means any animal, specified in Schedule I, Schedule II, Schedule III or Schedule IV which is captured or kept or bred in captivity. From the definition of “wild animal” that existed before the amendment in 2003 it is clear that a captive animal is a wild animal. But the definition of captive animal‟ was not amended and it remains as in 1972. In the previous definition of wild animal the words “wherever found‟ were sufficient to treat captive animals as wild animals without any doubt. Such words are lacking in the present definition of wild animal and that is what led to a confusion.

But it can be seen that there is no intention on the part of the legislature to change the meaning of the term captive animal. Even after the amendment in 2003 captive animals are considered as part of wild animals and the law applicable to the captive animals are the laws made under the Wild Life Act. Under Section 64(2)(f) of the Wild Life Act the State Government is empowered to make Rules for the “regulation of the possession, transfer and the sale of captive animals, meat, animal articles, trophies and uncured trophies‟. It is under this section that the Kerala Captive Elephant (Management and Maintenance) Rules were made by the State of Kerala. It is to be noted that captive elephants are tamed domesticated animals. But they are treated as per the provisions of the Wild Life Protection laws. Hunting a captive animal is just like the hunting of other wild animals. They are under the strict supervision and control of the wild life authorities. There is no other provision than the, wild life protection laws for the management and maintenance of captive animals.
If wild in nature in the definition is related to behaviour, captive animals cannot be treated as wild animals.  In fact their habitat or natural home is natural environment (here forest) and captivity is a human creation.

If wild is considered as habit a Scheduled animal even when it is permanently residing in the forest cannot be considered as a wild animal if it is not showing any wild habit. After all it is impossible to differentiate all Scheduled animals on the basis of their behavioural pattern.

Article 300 A of the Constitution of India is also relevant at this point. It is as follows. RIGHT TO PROPERTY. 300 A. Persons not to be deprived of property save  by authority of law. No person shall be deprived of his property save by authority of law.

The right to property is now considered to be not only a Constitutional or a statutory right, but also a human right. Though it is not a basic feature of the Constitution or a fundamental right, human rights are considered to be in the realm of individual rights, such as the right to health, the right to livelihood, the right to shelter, employment etc. (AIR 2013 SC 565).

The property of a person is for his exclusive possession and enjoyment. It is for his residence. It is to earn a livelihood by doing any lawful act in his property including agricultural operations. He cannot be made to abandon his property as an abode for pigs that have settled on his property making the enjoyment of his property practically impossible. Wild life authorities or any authority cannot illegally deprive a person from enjoying his property terming some animals falsely as wild animals. Here common men are destined to keep their property as a farm for such animals. If the authorities want to do so they should acquire such properties providing sufficient compensation. That is the law of our land.

Considering a private property as part of natural environment and as the habitat of a wild animals and treating an animal permanently residing there as wild animal and thus depriving the owner of the property an opportunity to enjoy his property to earn a livelihood is opposed to the Fundamental Right of a person guaranteed under Article 21 of the Constitution of India.

Article 21 Protection of life and personal liberty – No person shall be deprived of his life and personal liberty except according to procedure established by law.

The word in Article 21 means a life of dignity and not just an animal life (AIR 2011 SC 2636). To lead a dignified life one has to earn a livelihood. As far as farmers and farm labourers are concerned their only means to sustain life is the income from cultivation. So when his cultivating land is treated as a habitat of wild animals illegally and he is prevented from driving away such animals from his property considering them as wild animals when they are not, livelihood is offended by the State. Offending livelihood is opposed to
Article 21 of the Constitution of India (AIR 2016 SC 839).

In fact forest and wild life and Forest Act and Wild Life Act are inseparably
intertwined. The intention of the Forest Act is to protect forest land, timber, trees and other forest produce. The intention of the Wild Life Act is to protect the life only in the wild here forest alone. It is to be noted that before the enactment of the Wild Life Act in 1972 preservation of wild elephants was part of the Kerala Forest Act, 1961 (Chapter VII.
Section 48 to 51). In the case of wild boars its habitat is forest alone. So in the case of wild boars wild cannot have an application over and above the forest. Wild life authorities have no power on any life outside the natural environment. It is realising this fact and hence to avoid unnecessary absurdity in the earlier definition of “wild animal” that the term was amended in 2003 to give it a sensible and realistic meaning and thus to exclude Scheduled animals that have abandoned their habitat on their own from the list of wild animals. But our men are still living in an era prior to 2003 and following the definition as it existed prior to 2003 and illegally and unauthorisedly harassing and torturing common man. Where is the provision in the Wild Life Act or any other law that prohibits a person from hunting an animal specified in the Schedules, which has abandoned its habitat and is permanently residing in a person‟s private property, whether it be a pig or snake or other animal? If such an animal is treated cruelly is it not the Police to take action under the relevant provisions of the Prevention of Cruelty to Animals Act?

As per our Constitution it is the duty of the Panchayats and Municipalities to destruct stray dogs and pigs. In fact it is the duty of the State to protect the life and property of any person in the territory of India.

The local bodies can effectively prevent the menace caused by pigs which cannot be treated as wild boars without the assistance or order of the wild life authorities. When such pigs are not wild animals wild life authorities cannot make any rule regarding their destruction and burial of their body. A killed wild animal and its meat and other articles etc are the properties of the Government under section 39(1) of the Wild Life Act. But not in the case of an animal which is not a wild animal. So local bodies have got every right to destruct such pigs in any lawful manner and dispose their bodies in a manner beneficial to the local bodies. Now certain conditions are imposed by the wild life authorities for the killing and disposal of the body of such dead pigs which are highly inconvenient. Now local bodies are spending more than rupees one thousand for the destruction of each pig. Besides it is a difficult task to find a licenced shooter to kill them.

It is a fact that the meat of such pigs is a much preferred delicious food which is in high demand and costlier. There is no provision interdicting the local bodies from inviting open tenders for killing, owning, possessing and selling the meat of such pigs in open market. If the local bodies do so it will be an additional source of income to the local bodies and they can effectively control the pig menace within a short period.

As far as the other category of pigs are concerned they are wild boars as they haven‟t abandoned their habitat. They wade in to human settlements in search of food and then return to their habitat, which is the forest. They destroy crops and cultivation in areas adjacent to the forest and cause threat to human life. Such areas can be specified and hunting can be allowed in such areas by the Chief Wild Life  Warden or by the authorised officer under Section 11(1) (b) of the Wild Life Act. Section 11(1)(b)is as follows “ The Chief Wild Life Warden or the authorised officer may if he is satisfied that any wild animal specified in Schedule II, Schedule III or Schedule IV has become dangerous to human life or property (including standing crops or any land) or is so disabled or diseased or to be beyond recovery , by order in writing and stating the reasons therefore, permit any person to hunt such animal or group of animals in a specified area or cause such animal or group of animals in that specified area to be hunted . Before amendment in 2003, after permit any person to hunt –“such animal or cause such animal to be hunted” alone was stated. But it is after the amendment that the words or cause such animal or group of animals in a specified area and or group of animals in that specified area” were inserted. If we verify the animals specified in Schedule II to IV we can see that among those wild animals it is mainly wild boars that are living in groups and has become dangerous to human life and property. So it can be inferred that the words “ group of animals” were introduced mainly with the object of protecting human life and property from wild boars.

In the case of those wild boars it is wise for the Government to specify areas for specified period to hunt such wild boars and can invite open tenders to hunt, own possess and sell the meat of such pigs in open market . The Government should direct the Chief Wild Life Warden or the authorised officer to do so and thus the government can collect a lot of money.

When such easy ways are available our Legislature has unanimously passed a resolution on 14th January 2024 requesting the Centre to declare “wild boars” as “vermin” under Section 62 of the Wild Life Act.

But it is doubtful whether wild boar can be declared as vermin after the amendment of the Wild Life Act in 2003. The definition of vermin is –(34) vermin means any wild animal specified in Schedule V. So a wild animal retaining the status of a wild animal even after inclusion in Schedule V alone can be declared as vermin. But after the amendment of the definition of wild animal in 2003 its meaning has changed .Now animals specified in Schedules 1 to IV alone are wild animals. So when an animal is removed from Schedules 1 to IV it ceases to be a wild animal. At present Schedule V has no place in the Wild Life

Act as it is not a schedule of wild animal. So Section 62 has lost its significance after the amendment in 2003.

Another provision to alter entries in the Act is Section 61. As per Section 61 Centre alone has the power to alter entries in the Schedules (S.61(1)(3)). But before omitting
sub-sections (2)(3) in 1991 States also were having the same powers as that of the Centre. Before the 1991 amendment the Centre as well as the States were empowered only to add entries to a schedule. But after 1991 amendment the Centre is empowered to add or to delete any entry to or from any schedule. States have no such power.

Here one very important thing to be noted is that when Wild Life Protection Act was made by the Centre in 1972 forest and wild life were in the State List. So the Wild Life Act was scripted by the Centre on the recommendation of different States as per Article 252 of the Constitution of India. Article 252: Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State. (1). If it appears to the Legislature of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the legislature of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or where there are two Houses , by each of the House of the legislature of that State.

(2). Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of the State.

So if such an act is passed no State Legislature has any power to amend or repeal that Act . So also the Parliament too cannot amend or repeal such an Act without a resolution by the States.

The law made by Parliament pursuant to the power surrendered to it under Art. 252 prevails over a State law and the provisions of the State law to the extend they conflict with central law are void.

A law made by Parliament under Art.252 cannot be amended or repealed even by Parliament except after following again the procedure prescribed by Article 252 (1)
AIR 1978 A.P. (106 (114) F.B).

That is why specific provisions were made in the Wild Life Act in 1972 under Sections 61 and 62 to give some powers to the Centre and States.

But in 1977 forest and wild life were removed from the State List (II) and included in the Concurrent List (III) . So the Parliament as well as the State Legislatures have power to make laws on those matters after 1977 as per Art 246 (2). Centre has brought many amendments to the Wild Life Act in 1982, 1986, 1991, 1993, 2003, 2004 etc on their own. The States also have got power to amend the Act under Article 246(2) subject to Art.254. It is a Constitutional power and it cannot be restrained by a plenary law. So Sections 61 and 62 lost significance after the inclusion of forest and wild life in the Concurrent List and the States also can amend any Schedule or provision without any enabling provision in the parent Act.

Another most important thing to be noted in this occasion is that , it is not wise safe or sensible to declare wild boars as vermin or to remove them from the Schedules of wild animals as it will lead to the uncontrolled killing of wild boars even from their habitat. Then the entire community of wild boars will be wiped out from our country within a short time. Our country is having a population of about 143 crores of people, most of them consuming non-vegetarian food . So it is sure that the entire wild pig community will be finished in no time.

If it so happens it will lead to so many unforseen, serious and disastrous consequences, In fact wild boars are food for carnivora like wolfs, leopards tigers etc. So if food is scarce in the forest the carnivora will frequent human areas in large numbers want only to hunt domestic animals and even human beings escalating the human- wild animal conflict to unpredictable peaks. Hence it is highly necessary to give much attention to maintain an ecological balance when wild boars and other herbivora are allowed to be hunted.

But the present method of hunting wild boars by the Government machinery employed through local bodies will not effectively prevent pig menace. Tens of thousands of pigs are causing damage to properties and cause threat to human life in our State. Killing some pigs here and there will not yield any result at all. Moreover the birth rate is very high among pigs. So our present slow process is not adequate to control pig menace. In fact pig menace be averted only by effective methods involving the public.

After all we should realise the fact that pig is not considered as a precious animal anywhere in the world. It is not at all a race facing extinction. Its number is very high in the world. So its number should be reduced considerably to protect human life and cultivation.

The two feasible and possible ways to control pig menace are –

(1). The State should make wild life authorities and public aware of the fact that those Scheduled animals that have abandoned their wild habitat and residing in human settlements permanently on their own are not wild animals and wild life authorities have no power to take action against any person who does anything to protect his life and property from such animals, In such circumstance if anybody treats any animal with cruelty it is the Police to take action as per the provisions of the Prevention of Cruelty to Animals Act.

(2). Areas lying adjacent to forest which are being invaded by wild boars frequently shall be specified by notification and restricted hunting of wild boars shall be allowed in such areas under Section 11(1) (b) of the Wild Life Act. Here also hunting rights can be auctioned and there is no bar in inviting open tenders to kill, own possess and sell the meat of such animals.

After all it is the duty of the State to Protect the Life and property of the common man.