Speeding Up Civil Disposal : Insights from Yashpal Jain v. Sushila Devi  (2023 KLT OnLine 1884 (SC))

(By Anujus Pradeep, LLM Student, Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur)

e-mail : anujuspradeep99@gmail.com               Mob.: 9526837201 

“Even after 41 years the parties to the lis are still groping in the dark and litigating as to who should be brought on record as legal representative of the sole plaintiff”- this is the preface of the Judgement made by Honourable Justice S.Ravindra Bhat and Aravind Kumar in the case of Yashpal Jain v. Sushila Devi (2024 (1) KLT SN 3 (C.No.2) SC = 2023 KLT Online 1884 (SC)), wherein the case highlighted the situation of long pending civil suit and emphasised the relevancy and role of certain provisions such as Order V Rule 2 (Execution of summons), Order VII Rule 1 (Time limit regarding filing of written statements), Order X (Recording of admission and denials) along with Section 89 (Dispute settlement), Order XI (Discovery and Inspection) and Order XII (Admissions) in speeding up the disposal of civil cases in time bound manner. So what are these provisions, can it become an oil to the machinery and speed up the disposal of suits in civil nature?

Efficient Service of Summons for Timely Case Disposal

Order V of C.P.C. provides for Issue and service of summons , wherein Rule 1(1) clearly points out the time for issue of summons by the plaintiff for the defendant and time limit of filing of written statement, where it provides that after the institution of plaint the summons must be issued to defendant in to appear and from the date of service of the summons within 30 days the defendant has to file written statement if any, the time limit for submitting the same can be extended up to 90 days from the date of service of the summons. The proper service of summons is an essential element for the timely disposal in every case and in 77th Law Commission Report (Law Commission Report No.77, 1.Para.4.2.(13) Long delays take place in getting service effected upon the defendants. To obviate this delay, summons to the defendant should be issued both in the ordinary way for service through the process server and by registered cover acknowledgement due) it has been observed that “long delays are taking place in the effective service of summons on defendants” and the report also indicate various measures to be adopted by court for the effective service of summons and in Yashpal Jain (supra) also the Supreme Court have pointed out the need of proper service of summons by the court within time and in compliance with Order V , the judgment also mandates that the Taluk and District Court should ensure the summons is served in a time bound manner and it must be monitored by Principal District Judges and forward the findings to the committee constituted by the High Court for taking proper actions, after post pandemic scenario apart from existing postal service method of serving of summons service through whatsapp also has been recognised by the Bombay High Court in SBI Cards and Payment Services v. Rohidas Jadhav (2018 (2) KLT OnLine 3182 (Bom.) = 2018 SCC Online Bom.1262) and the Delhi High Court in Tata Sons Ltd. v. John Doe (2021) as a mode of service of to speed up the service of summons and these new modes have significance and impact in this era in case management. Strict adherence to Order V provides benefit of timely disposal of case.

Timely Filing of Written Statements under Order VIII Rule 1

As per the law the “the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons” or the maximum time limit to enter into defence and file written statement is 90 days where the time frame was 30 days before 2002 C.P.C. amendment (The Code of Civil Procedure (Amendment) Act, 2002, 9. Amendment of Order VIII) and it was amended with an expected result that time limit will provide defendant sufficient time to file written statement without excuse. But many judgements have observed that this provision is not mandatory but directional in nature and the court has power to extend time limit. In Salem Bar Association case (2005 (4) KLT SN 32 (C.No.43) (SC)) the Apex Court held that the time for filing written statement shall not be extended frequently, in Atom Technologies Ltd. v. YA Chunawala and Co. (2018 (2) KLT OnLine 3125 (SC) = AIR OnLine 2018 SC 1266)., the court pointed out that the time extension must be only provided for only in exceptional cases. The legislative intent in 2002 C.P.C. amendment (The Code of Civil Procedure (Amendment) Act, 2002, 9. Amendment of Order VIII) was clear that emphasised 90 days shall be to complied strictly with, but the language used is “shall” that is in many cases court has observed the provision is not mandatory in nature but only in form of direction and court will be having discretion to extend time limit, and finally in Yashpal Jain (supra) the Apex Court have made it clear that the time limit in Order VIII Rule 1 must be strictly to be complied with by the courts in order to ensure timely disposal and reduction of pendency of cases.

Facilitating Case Clarity and Efficiency through Order X

Order X confers power to court, at the first hearing to ascertain parties whether the parties are admitting or denying any allegations or facts against them and if they do so the court will record it , where this provision under Rule 1 provide an opportunity to court to curb out the issues in case, where if the parties admit any then the court may not have to deal with those admitted matters and would save a considerable time of the court and enhance the speed of the case. Rule 2 also provide further scope to court to ascertain matters in controversy by calling up parties and putting question upon them and it is a mandatory provision the party is obliged to appear and this provision help the court to elucidate real issue in controversy and vital matter in the suit so as to get more clarity relating to the suit, in A.Shanmugham v. Ariya Kshariya Raja Kala Vamsathu Madalaya (2012 (2) KLT SN 130 (C.No.126) SC = AIR 2012 SC 2010). the court has observed oral examination of parties by court enable court to narrow down controversy in a suit, so these provision do will have an impact on settling up of litigation fastly where the provision narrows down the things that have to be researched by the court and sae that time as well as make the suit clear as crystal so as it enable court to pass orders or judgements in light of those findings, so as the reason why in Yashpal Jain (supra) the Apex Court warranted the trial court to use Order X effectively.

Promoting Alternative Dispute Resolution (ADR) under Order X Rule 1A and Section 89

This is one of the vital provision in the Code that provides for alternative dispute resolution mechanism in suits of civil in nature where Section 89 provides for settlement of disputes outside of court and the Section aims to solve disputes amicably and to reduce court burdens, where it integrates judicial and non-judicial resolution mechanisms and as per the provision the court can suggest settlements and refer the case to arbitration, conciliation, judicial settlement and mediation the provision that enacted after recommendation of Malimath Committee has a greater impact in speedy redressal of suits in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co.(P) Ltd. (2007 (1) KLT 196) The court clarified arbitration awards and settlements have the same binding effects as court decrees. After Salem Bar Association case (2005 (4) KLT SN 32 (C.No.43) (SC), the Supreme Court mandated Mediation must be made compulsory and Mediation centres must be set up in district levels under the supervision of respective High Courts, as a result the mediation centres are available at every court where family and small scale disputes are settled amicably in a shorter span of time, but there exist a number of hurdles in efficiently operating this mechanism such as reluctance from bar associations, lack of motivation and awareness in parties to the suit, infrastructure limitations, lack of experts and training. So ADR must be made more viable and measures have to be taken for it such as creating awareness among parties, changing the mind-set of lawyers on ADR and the myth that ADR declines revenue and the Government has to facilitate resources to support the new changes. Order IA, IB and IC provides for procedure to be followed by parties and court relating to ADR and it mandates that court shall direct the parties to opt for mode of settlement outside the court and fix a date for it.

Efficient Discovery and Interrogatories under Order XI of C.P.C.

Section 30 of C.P.C. provides that as prescribed in Order XI enable the court in suo motu order the delivery and answering of interrogatories , discovery, inspection and production of documents or other articles that amounts to evidence and court can use this provision to narrow down the controversy and save expense and time of parties along with shortening of trial in cases where number of documents relied upon by the parties are large and it may take long time in proving the facts and documents , the court as per Order XI Rule 1 with the leave of the court the parties can ask the opposite one to deliver interrogatory and the same must be answered by party in affidavit within span of 10 days as provided under Rule 8 and if party omits to answer any the court can ask the other party to answer in affidavit or via viva voice examination. Order XI also allow parties to discover the documents which are or have been in possession of any party which is related to matter in question to the suit and the same can be asked to be produced by party by using Rule 14 if such document production don’t injure the party having such document or not relating to title or evidence to his own case and as per Rule 15 the parties can inspect the document , except production of document under Rule 14 other forms are mandatory and non-compliance with them will be having consequences as such. Order XI is not widely used in practice nor no instruction or guidance has been provided on relevancy of the order, in Kishorilal v. Ramlal (2014 (1) KLT OnLine 1103 (Bom.-Auran.) = AIR 2014 Bom.19). honourable court observed that “……..The interrogatories are for the purpose of seeking admissions on facts and also in respect of the documents which are disclosed or produced by the other side. By putting questions to the other party, these admissions are sought to destroy a case of the respondent. This helps a party to reduce length of cross-examination and to shape its case more precise and it enables the Court also to have correct grasp of the nature and scope of cross-examination of the parties………..” the discovery by interrogatory can streamline the information gathering and reduce the need for extensive cross examination in Union of India v. Ibrahim Uddin & Anr. (2012 (3) KLT SN 73 (C.No.79) SC = (2012) 8 SCC 148). the Supreme Court has observed. “Order XI CPC contains certain provisions with the object to save expense by obtaining information as to material facts and to obtain admission of any fact which he has to prove on any issue.”

Speedy Resolution through Admissions under Order XII of C.P.C.

C.P.C. does not define the expression Admission but as per Evidence Act admission is a statement made in the oral, documentary or electronic form suggesting an inference to a fact-in-issue or relevant fact and as per the Act admitted fact need not to be proved, in the case of Smt.Sudesh Madhok v. Paam Antibiotics Ltd. & Anr. (2010 (4) KLT OnLine 1036 (Del.) = 174 (2010) DLT 594). The court has observed that when the claim has been admitted by the parties the court will be having power under Rule 6 to enter a judgement and to pass decree based on it where the court further observed the intent of the Order XII is to obtain speedy judgement in case based on admissions. It is not mandatory to pass the judgements solely based on admissions, as per the provision under Rule 1,2 and 2A any party to the suit can issue a notice to the opposite party to admit documents and unless it is denied in a reasonable manner it is deemed to be admitted and court has its own discretion to call upon party to admit documents even no notice is given under above rule where it’s not mandatory to admit the same as per Rule 7 even affidavit of pleader or clerk is sufficient to admit document or facts. The intent of framers is clear from the above provision that Order XII aims at speedy disposal of suit and provides a mechanism that is admissions to add fuel to it, whereas court is also entrusted with power to bring out parties with admissions so as to avoid admitted facts while deciding rest of the matter in suit, this is an interesting provision where court is having power to draw up judgement without moving into further aspects of suit, even court can pass judgement in pleading where the party does not disclose any of material particulars or plea is vague and unsubstantiated Rajeev Tandon v. Rashmi Tandon (2019 (1) KLT OnLine 3407 (Del.) = 2019 SCC Online 7336), proper grasping of Order XII may equip parties and courts valuable technique in handling case, this can be also effectively used by legal professionals to curb minor issues and get attention of court into major issues. In Yashpal Jain (supra) Supreme Court advices the courts to use this provision effectively to reduce the delay of deciding suits.

Way forward

Honourable Justices S Ravindra Bhat and Aravind Kumar in Yashpal Jain (supra) accentuates the critical need for strict adherence to procedural provisions of C.P.C. to expedite resolution of cases based on the key provisions discussed above. The issue pertaining in the realm of civil case pendency is still a significant concern and affect the credibility of the system, the highlighted judgment emphasise the necessity for strict adherence to procedural provisions with the Civil Procedure Code to expel the delay in judicial process. The practicality of most of the above mentioned provision is still a question when coming into reality but the bar and bench coordination and effective monitoring mechanism along with proper training can bring out significant change in the mind-set of legal fraternity. As Warren E Burger said “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people. And three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value.”

Abolition of Cost Indexation — Advantage or Disadvantage?

*(By Mohan Pulickkal, Advocate, High Court of Kerala)
e-mail :mohanpulickkal@gmail.com          Mob.: 9447032937 
The Finance Bill (No.2) 2024 presented by the Finance Minister on 23rd July, 2024 has once again brought into focus the continuing woes and worries of a miniscule section of the populace - the income-tax payers - that has the singular distinction of taking upon themselves the responsibility of contributing to almost one fifth of the Nation’s total revenue. They constitute a bare 2% of the 1.4 billion citizens whereas a sizeable section of their compatriots cutting across caste and creed, some of them totally undeserving, enjoy living on freebies, subsidies and other pecuniary benefits extended by the Government.

Every person who is a consumer of goods or services is a taxpayer with the Central and State tax regimes taking different hues and names to tax every activity touching upon the life of the common man. Taxation laws know no equity or morality either in imposition of tax or its coercive recovery. This brief note, however, intends to deal only with the proposed amendments to the Income Tax Act with regard to the Long Term Capital Gains (LTCG) on real estate transactions.

The Income Tax payers look up to every approaching budget with a fair amount of expectation of at least a little ease of their tax burden, which more often than not is belied by the Finance Minister delivering the budget speech. The latest addition to their disappointment is the proposed abolition of the cost inflation index for calculating the cost of acquisition of capital assets, for the purpose of arriving at long term capital gains on sale of the assets. While doing away with the indexation benefit, purportedly to offset its impact, the rate of LTCG tax is proposed to be reduced from 20% to 12.5%. The proposal to do away with cost indexation and offset the resulting burden on the assessee by reducing the tax rate on long term capital gains has evoked mixed feelings amongst the taxpayers, from confused trepidation to calculated expectation. The Finance Ministry tries hard to explain the proposed amendment as one that will be beneficial to the assessees in the long run, “looking from the point of view of actual market dynamics rather than from mere mathematical calculations”. However, the taxpayers find it difficult to buy that explanation outright.

The effect of withdrawing the indexation benefit while calculating the cost of acquisition for the purpose of computation of long term capital gains tax varies depending on the holding period of the real estate assset as also the appreciation it generates over the period of holding. On a consideration of the tax rate dropping from 20% to 12.5% on sale of real estate to compensate the abolition of indexation benefit, it can be seen that where the property yields higher returns over the holding period, the long term capital gains tax would be lower at the proposed rate of 12.5% whereas lower returns with shorter holding periods would attract higher tax liability. This can be seen if we compare the tax effect in both the cases, i.e., higher returns and lower returns, both with and without the indexation benefit, as illustrated below:

Case No.1 - Higher Profits & Longer period of holding:

(i)   With cost indexation: A property purchased in 2001 for ` 50 lakhs, was sold in 2024 for 5 crore. The indexed cost of acquisition of the property would be
` 1,81,50,000/- (` 50,00,000 x 363/100). The LTCG in this case would be ` 3,18,50,000/- (` 5,00,00,000 -1,81,50,000). The LTCG tax at 20% would be ` 63,70,000/-.

(ii)    Without indexation: The LTCG would be ` 4,50,00,000/- (` 5,00,00,000 - ` 50,00,000) and the tax thereon at 12.5% would be ` 56,25,000/- . The assessee will stand to gain ` 7,45,000/-.

Case No.2 - Shorter Holding & Lower Profits:

(i)   With cost indexation: A property purchased in 2015 for ` 50 lakhs was sold in
2024 for ` 1crore. The indexed cost of acquisition would be ` 71,45,670/-
(` 50,00,000 x 363/254). The LTCG in this case would be ` 28,54,330/- (` 1,00,00,000 - 71,45,670) and the LTCG tax thereon at 20% would be ` 5,70,866/-.

(ii)  Without indexation: The LTCG would be `50,00,000/- (`1,00,00,000 - 50,00,000) and tax thereon at 12.5% would be ` 6,25,000/-. The assessee would stand to lose ` 54,134/-.

The results may vary from case to case depending on the returns and period of holding. However, the proposal to offset the loss that may be caused by the abolition of indexation benefit by lowering the tax rate from 20% to 12.5% would not bring solace to all the assessees alike and would destroy the uniformity of taxation thus far in existence, causing grave prejudice to the taxpayers. In the nature of the amendment proposed, the assessees ought to be given the option to choose between the two methods, which will give some relief to them.

A Bird’s Eye View of Some Landmark Judgments in the
Copyright Landscape

(By Dr. Raju Narayana Swamy, IAS)
E-mail : narayanan5@ias.nic.in       Mob. 9447010602
1.Amar Nath Sehgal v. Union of India & Anr.(2005 (1) KLT OnLine 1181 (Del.) = (2005) 117 DLT 717 = 2005 (30) PTC 253 (Del.) (Case No.CS (OS) 2074 of 1992).

The Delhi High Court through this case set a precedent by aiming towards expanding the scope and ambit of moral rights existing under Section 57 of the Copyright Act, 1957.

The facts of the case were as follows:- The plaintiff, a well-renowned sculptor, was commissioned by the Government of India to create a bronze mural sculpture for the lobby of Vigyan Bhawan. The sculpture took five years to finish and was placed on the wall of the lobby. The cause of action arose when the Government of India arbitrarily took down the sculpture in 1979 and consigned it to the store room. Though the plaintiff made representations, they were left unheard. As a last recourse, he moved the Delhi High Court. The suit was filed in 1992 and an interim injunction was issued. However the case was heard for 13 years before a single bench decision on February 21, 2005 put an end to the proceedings.

The defendant argued that on being given assignment of the mural, the defendant was at liberty to decide the fate of the mural. The defendant had obtained assignment of the mural in exchange of a consideration which had divested the plaintiff of his rights over the same. The plaintiff on the other hand argued that he had the right to preserve the mutilated work as well and sought for a decree to direct the defendant to return the mural to him as well as bear the cost of restoration of the same.

It needs to be observed in this regard that Section 57 of the Act defines two basic moral rights -- right of paternity and right of integrity. While discussing moral rights the Court made a deliberate attempt to widen the scope of these rights and included protection of cultural heritage within its ambit. The Court acknowledged the author’s work of art as a part of the national culture. While widening the scope of moral rights and author’s special rights, the Court relied upon international conventions such as the Berne convention and The convention on the Means of Prohibiting and Preventing the lllicit Import, Export and Transfer on Ownership of Cultural Property to bridge the gap between international obligations and domestic laws. To promote this consistency, the Court relied upon Vishaha & Ors. v. State of Rajasthan & Ors._[i] which observed that in the absence of domestic law, international conventions can be read into domestic laws provided that they are not inconsistent with domestic laws. The plaintiff has the right to recreate his work and therefore has the right to receive the broken down mural. As a result of this the Court passed a mandatory injunction against the defendant directing it to return the mural to the plaintiff. The court also granted damages worth INR 5 lakhs. It was also ordered that prior permission should always be taken before taking any such action.

Thus the decision recognizes moral rights as the heart of copyright law. It demons-trates that the status of moral rights is unrivalled and unavoidable. However, it needs to be mentioned that as against the remedy of INR 50 lakhs claimed by the plaintiff, the Court awarded him a remedy of only INR 5 lakhs. This begs the question of how monetary damages for moral rights are determined. In fact, there is a need to formulate a set of guidelines for computing the damages in case of infringement of moral rights. This is all the more relevant as the question essentially is ‘How can you quantify something which does not exist objectively?’

2.Raj Rewal v. Union of India & Ors. (2019 (2) KLT OnLine 3103 (Del.) = 2019 VI AD (Del.) 267).

This case decided by the Delhi High Court on May 28, 2019 examines the differences in how copyright law applies to architectural works. The dispute arose from the overlap between the landowner’s right to free use of his property and the architect’s copyright over his creation. To be specific, Mr. Raj Rewal, the appellant, was a well known Indian architect. Respondent no.2 the ITPO (Indian Trade Promotion Organization) had planned and received approval to demolish two buildings built by Mr.Rewal - the Hall of Nations and the Nehru Pavilion. The plaintiff filed a law suit against the respondents under Section 57 of the Copyright Act seeking a mandatory injunction and compensation by recreating the work of architecture in the Hall of Nations and the Nehru Pavilion at the same place or at any other equally significant location in Delhi. According to him, the demolition act violated the claimant’s exclusive rights u/S.57. He alluded to the dicta of Amar Nath Sehgal v. Union of India (2005 (1) KLT OnLine 1181 (Del.). The author’s right against distortion, mutilation or modifi-cationis safeguarded if his reputation or honour is jeopardized. It was argued that the author’s right to maintain the integrity of the work in respect of the nation’s cultural heritage, included measures to protect the work’s integrity. The plaintiff’s counsel argued that an architectural work is an artistic work and that copyright does not distinguish between the media on which the work is created. Consequently the artistic work would exist even of the medium was another’s land. Because a work of architecture is a practical design, it is not ineligible for copyright protection._[ii]  By relying on George Hensher Ltd v. Restawile Upholstery (Lanes) Ltd. (1974 AC 64) it was argued that copyright exists whether or not the work has artistic merit and quality. Moreover the architect owns the building’s design.

The respondents argued that Section 57(b) of the Copyright Act only grants rights to the work’s distortion, mutilation or modification and not to its utter destruction when the work ceases to subsist and is no longer perceptible. It was also argued that the Amar Nath Sehgal dictum does not apply in this case.

The Court came to a conclusion that the writer’s right u/S.57 to prevent distortion does not extend to preventing his work from being destroyed. The plaintiff in this instance would not be able to stop the defendant from demolishing the property because it would be a violation of the defendant’s right to govern his property and land under Article 300A.
Recognizing that the Copyright Act must be read in tandem, the Court ruled that Section 57could not consider the right to object to a building’s demolition. The case thus highlights the contrast between complete and partial annihilation of a work -- a subject that has never been addressed before in the history of Indian Copyright Law.

3.Sajeev Pillai v. Venu Kunnapalli & Anr. (2020 (1) KLT 530 = FAO No.191 of 2019).

This is a case decided by the High Court of Kerala on December 11, 2019. The appellant had prepared a script for a film based on “Mamankam’-a magnificent festival celebrated once in 12 years on the banks of the Bharatapuzha between 14th to 19th centuries. He contacted the first respondent who was interested in making a film and they signed a MoU in 2017. It was found that the appellant’s script was mutilated, distorted and modified throughout the film’s production. He challenged the order passed by the Additional District Court of Ernakulam dismissing his request for an interim injunction against the respondents from releasing, publishing and distributing the film “Mamankam” by any mode of dissemination to public and issuing pre-release publicity without providing adequate authorship credit to the plaintiff. The respondents argued that the MoU is valid until deemed invalid by a Court of law. It was also stated that the appellant sold his authorship for `3,00,000/- and so the appellant is not entitled to get credit for the film’s story, screenplay etc. Arguments were raised that as the appellant assigned the copyright for a substantial consideration, he is not permitted to claim authorship of his creation or to prevent distribution of such a high-budget film. No rights including those listed in Copyright Act belong to the petitioner.

The Court after a deep analysis of Section 57 of the Copyright Act, concluded that the author has legal right over his IP even after submission of the assignment. The screenplay was the original hard work of the appellant and he thus has legal protection mainly u/S.57(b) which consists of two components. The first part would entitle the author to restrain the opposite party from making any distortion, mutilation or modification or any other act prejudicial to his honour or reputation. The second part was that the author is entitled to claim damages in respect of any distortion.

With regard to the imminent date of release of the movie, the Court had a balanced attitude by permitting it if conditions that favoured the appellant such as no mention of screenwriter’s name on any public display of the movie were agreed to.

4. Burrow-Giles Lithographic Co. v. Sarony (Supreme Court of United States) 111 US 53 (1884).

In this case, the Court recognized that photograph is an original work of art when it is a product of intellectual invention of which the photographer is the author. It is one of the earliest cases in which the Court firmly resolved the issue of extension given by the US congress to photographs under the Copyright Act of 1865.

The brief facts of the case were as follows: Sarony was America’s most famous portrait photographer and had photographed Oscar Wilde. A retail store in New York City commissioned Burrow – Giles Lithographic Co. to print an advertisement for hats, in which it used the photo. The publishers were sued by the photographer u/S.4952 of the Copyright Act of 1865 which extended copyright protection to photographs. He claimed that the picture was entirely from his original mental conception to which he gave visible form by posing with Oscar Wilde. He selected and arranged the costume, draperies and other accessories in the said photograph. It was an original work of art, the product of his intellectual invention and therefore he is the author. As Section 4952 protected photographs, among other things, he had secured the sole privilege of reprinting, publishing, copying and vending the same.

The company on the other side argued that in the language of Article 1 of the US Constitution, the photographer was not the “author” of the “writing” and thus the statute was constitutionally inadmissible. Burrow--Giles also argued that photography was merely a mechanical process rather than an art and could not embody an author’s “idea” or artistic expression.

The Court disagreed with the company’s narrow interpretation of the word ‘writings’.
The argument that photography was a mechanical process that showed no artistic expression was rejected. The Court accepted that this may be true of ordinary photographs, but this was not the case of Sarony’s image of Oscar Wilde. The control that Sarony had exercised over the subject matter in the view of the Court showed that he was the author of an original work of art and thus written the class of things for which the Constitution intended Congress to grant him exclusive rights under the copyright laws.

The case has been used as a precedent to extend copyright protection to photographs in India.

5. Eastern Book Company & Ors. v. D.B.Modak & Anr. (2007 (4) KLT OnLine 1235 (SC) = AIR 2008 SC 809 = (2008) 1 SCC 1 (Civil Appeal No.6472 of 2004)).

This case was decided on December 12, 2007 by the Supreme Court of India. The appellants -- Eastern Book Company -- are a publishing house involved in the publication of a compilation of various Supreme Court cases. It so happened that the defendants-Spectrum Business Support Ltd and Regent Datatech Pvt Ltd – launched a software package called “The Laws” via CD-ROMs that contained the same material.

The appellants contended that the judgments were given a different form all-together by them making it very different and unique from the original draft of the Supreme Court. The project was a result of hard labour and skills of trained professionals making it eligible to be copyrighted u/S.13 of the Copyright Act. The work is neither negligible nor trivial in its scope and nature and is an outcome of creativity of the author.

The defendant argued that as publication of judgments of the Supreme Court does not lead to copyright infringement u/S.52(1)(q)(iv) of the Copyright Act, the act of the defendant could not be categorized as copyright infringement. The appellant’s work was also claimed to be a law journal (listing judgments verbatim with some inputs) as opposed to a law report (author record of the judgments in his own words) and hence would fail to seek rights for copyright. It was also stated by the defendants that some minimum level of creativity is a pre-requisite for copyright which the appellant’s content lacked.

The Court ruled in favour of the appealing party, giving them sole rights in their content and forbidding the defendants from using it. The judgment laid down the premise that derivative work should be considered more than just a copy of the original work. Inserting paragraph numbering and indicating the concurring and differing opinion of the judges in a case requires legal skills and acumen. This activity and production, according to the Court, exhibit a minimum level of inventiveness needed for the work to be subject to copyright.

6.Krishika Lulla & Ors v. Shyam Vithalrao Devkatta & Ors. (2015 (4) KLT Suppl.32 (SC) = 2016(157) AIC 56 = (2016) 2SCC 521 = (2015) 10 SCALE 718)

The case dealt with claim of copyright in film titles. The petitioner contended that according to an agreement dated September 2009, Milap Zaveri wrote the story for the film ‘Desi Boyz’ and was duly compensated. He asserted that copyright does not exist in a film’s title and that aside from that, the film’s story had no resemblance to that of the respondent (Mr.Devkatta) in terms of characters, scenes and settings. Devkatta’s counsel on the other hand contended that the title was protected by copyright as it was the soul of his story which took away everything from his story.

The Supreme Court examined Section 13 of the Copyright Act pursuant to which copyright is protected in original literary, dramatic, musical, and artistic works as well as cinematograph films and sound recordings. The Court then assessed whether the title of Devkatta’s story qualified as ‘original literary work’. Legal precedents that addressed this issue in depth were considered. For example in Hogg v. Maxwell,_[iii]   the question was whether the title of a monthly magazine called ‘Belgravia’ was copyrightable. In that instance the Court concluded that the “copyright intended by the Act must be in some terms in the shape of a volume or part of a volume which is conveyed to the public, by which the public is benefited and in exchange for which the author of the work is provided a certain protection”. The Court also cited the Oxford English Dictionary which describes literary as “concerning the writing, study or content of literature especially the land valued for its form quality”. As a result, simply using every day terms does not qualify as “literary”. In Francis Day and Hunter Ltd v. Twentieth century Fox Corporation Limited & Ors._[iv]   the Privy Council made a similar decision. When deciding whether using the title of a song as the name of a movie constitutes copyright infringement, they ruled that “a title normally does not include literary production and is not sufficiently substantial to sustain the claim to protection. Moreover the Madras High Court in R.RadhaKrishnan v. Mr.A.R.Murugadoss & Ors._[v] rejected copyright protection in the film’s title ‘Raja Rani’ ruling that the terms were used in everyday conversation.

The Supreme Court finally ruled that Mr.Devkatta lacked copyright in the term “Desi Boyz” and hence could not sue the film makers for copyright infringement. The mere use of every day words, such as these employed here, does not qualify as “literary”.

7. Star India Pvt.Ltd v. Moviestrunk.Com & Ors (2020 (1) KLT OnLine 1226 (Del.) = Cs (COMM) 408 of 2019, IA 10601 of 2019 & IA 13684 of 2019) (Delhi High Court)

The lawsuit involved the cinematographic film ‘Mission Mangal’ which was set to release on over 2500 screens across India on Aug 25, 2019. It was brought against the defendants who ran various internet streaming services for illegally streaming the plaintiff’s film, which constituted copyright infringement. According to the plaintiff, the defendants are ‘rogue websites’ written the meaning of the judgment in UTV Software Communication Ltd. & Ors. v. 1337x. to & Ors._[vi]as their principal activity involves reproduction, publication and communication of infringing material through the internet. In fact, the anonymous nature of these websites makes it impossible to identify, them effectively. Photographs of the defendant’s websites were included in the evidence provided to the Court confirming that the plaintiff’s film was made accessible for download and streaming on defendant’s websites before the official release date of the film. An affidavit of the plaintiff’s investigator Mr.Gaurav Ray and electronic records of proof showing unlawful acts being performed by the defendants were among the evidence submitted by the plaintiff. Notices were sent to the defendant websites to take down infringing content from their pages, but no responses to the same were received.

The counsel for the plaintiff referred to the judgment in Satya Infrastructure Ltd & Ors. v. Satys Infra & Estates Pvt.Ltd.._[vii] where it was ruled that in an unopposed litigation of this sort, it is not required to compel the plaintiff to present proof. The Commercial Courts Act, 2015 provides appropriate assistance in the form of a statement of truth and declaration.

The Court held that the plaintiff has succeeded in showing that the defendants were primarily engaged in committing and facilitating copyright infringement. The plaintiff’s right to exclusive exploitation and dissemination of the copyrighted content was likewise acknowledged by the Court under the Copyright Act of 1957. Defendant’s refusal to respond
to the plaintiff’s notifications or to enter attendance according to the summons demonstrates a complete disregard for the plaintiff’s IPRs. As a result, the Court issued an injunction as well as appropriate damages. The Court also directed the internet service providers that were providing service to the defendant’s websites to block access and the appropriate authority to suspend the web addresses of the defendants.

8. Music Choice India (P) Ltd. v. Phonographic Performance Ltd. (2010 (1) KLT OnLine 1157 (Bom.) = 2010 (44) PTC 171 (Bom.) = (2010) 112 (1) Bom.LR 0470) (Bombay High Court).

The case deals with the question of jurisdiction and is concerned with the issue relating to broadcasting sound recording and non-grant of license. The plaintiff-a sound recording broadcaster – sought licensing from the defendant to broadcast as the latter was a holder of copyright in sound recordings. However the defendant rejected the offer of the plaintiff that came with particular conditions. The plaintiff’s prayer to the Court sought a proclamation that the plaintiff was obligated to a license to telecast the defendant’s sound recordings in return for money to the defendant subject to the terms and conditions set forth by the Copyright Board on the plaintiff’s proposal for grant of compulsory license u/S.31(1)(b)
of the Act which was filed in 2007. The plaintiff also sought an injunction against the defendant restricting them from meddling with the telecast of sound recordings.

The defendant claimed that the complaint could not be maintained in the Civil Court because of Section 9 of the Civil Procedure Code, 1908. If the parties are not in agreement regarding the amount of compensation, in compliance with the procedure laid down under S.31(1)(b), only the Copyright Board can determine it.

The Court ordered that Civil Court will not have any jurisdictional power to grant the final remedy in the suit as it is enforceable only before the Copyright Board. It also lacks the jurisdictionary power to render injunctive relief to restrict meddling with the telecast by the plaintiff. When a copyright holder or his transferee refuses a broadcaster’s offer to broadcast any sound recording intended for public communication on conditions that the broadcaster considers rational, the Copyright Board is mandated by law to investigate and assess after receiving a complaint brought before it. The case was dismissed on account of jurisdictional conundrum.

9. Najma Heptulla v. Orient Longman Ltd. (1988 (2) KLT OnLine 1154 (Del.) = AIR 1989 Del.63 = 1989 (1) Crimes 597 = 36 (1988) DLT 31 = 1988 (15) DRJ 22) (Delhi High Court).

This case pertains to the concept of joint authorship in the backdrop of a copyrighted work. It is pertinent to mention in this context that Section 2(z) of the Copyright Act of 1957 defines “work of joint authorship” as “a work produced by the collaboration of two or more authors in which one author’s contribution is not distinguishable from the contribution of the other author or authors”.

The brief facts of the case were as follows:- The release of the book ‘India wins Freedom’ by Maulana Abdul Kalam Azad was scheduled in November 1957. But due to a stroke, Maulana Azad – the author of the book – passed away before the text could be published. Professor Humayun Kabir, a close associate of the author, later signed a contract with Orient Longman Limited for the publication of the book (except the first 30 pages which it was stated expressly in the introduction to be locked and released after 30 years) and it was determined that the royalties would be split between the Indian Council of Cultural Relations and the author’s legal heirs -- Fatima Begum (grandmother of Najma Heptulla) and Nooruddin Ahmed. In the agreement, Professor Kabir was identified as the book’s composer. It was also agreed that after the seals were broken on February 22, 1988, the publishing business would have rights to publish the entire book.

The plaintiff, Najma Heptulla, submitted a notification on February 13,1988 claiming that she was not in favour of publishing the complete book. A complaint for “rendition of accounts” was brought and an order was issued against Orient Longman Limited preventing them from publishing the complete book. It was contended by the plaintiff that the book’s publication rights belong only to Maulana’s heirs and that Professor Kabir lacked the power to make such a deal. The defendant on the other hand argued that though Maulana possessed ownership in the work, he had consented to Professor Kabir’s arrangement. Professor Kabir is thus the only author of the work and has authority to sign the contract.

The Court considered the word ‘author’ as defined by Sections 2(d) and 55(2) of the Copyright Act,1957. It is indisputable that the author of the book is Maulana, but the prologue implies that Professor Kabir is also a joint author. It was because Maulana only gave thoughts in Urdu and Professor Kabir took notes based on that which were later published as a book. The Court cited Dononghue v. Allied Newspapers Ltd._[viii] in which the racing secrets of Steve Donoghue were not copyrightable as the expression had been listed down by the journalist. In Walter v. Lane._[ix] the Court decided that when a reporter publishes about a hearing, he not only writes down what will be published, but also organises it and therefore report preparation necessitates more than mechanical ability.

As a result, Professor Kabir was considered the only author because he did all of the translating and editing. However he stated in his agreement with the defendant that he would transfer 50% of the royalties to Maulana’s legal heirs and therefore he did not consider himself the sole author. Thus both of them were joint authors. When there is joint authorship and one of them is no more, the consent of the legal representatives of the deceased is necessary. Here Fatima Begum ratified the agreement and the publication of book, according to evidence. The Court also discussed the Promissory and Equitable Estoppel Principle. In the present case, she was aware of the arrangement and receiving the royalty. As a result because the plaintiff had reaped the benefit of royalty, the rule of estoppel will apply. Furthermore the plaintiff suffered no irreversible loss or injury. Hence the injunction was denied. However the defendant was ordered to pay INR one lakh as security.

10. Delhi University Photocopy Case (The Chancellor, Master and Scholar of the University of Oxford & Ors v. Rameshwari Photocopying Services & Anr.) 2016 (4) KLT OnLine 2352 (Del.) = 233 (2016) DLT 279 = (2017) 69 PTC 123 (Civil Appeal No.25 of 1995).

This case originated when a couple of publishers lodged a complaint against a photocopying shop on the campus of Delhi University. The point of contention was that the shop compiled the resource materials from their books into one ‘course pack’. The plaintiffs claimed that this was a copyright infringement of their IP. Republishing sizable amounts of excerpts from their work and making a compendium makes them accountable under Sections 14 & 51 of the Copyright Act. It was also maintained by the plaintiffs that the defendants ought to be issued a licence under the IRRO (Indian Reprographic Rights Organisation). They asserted that the defendants ought not take defence u/S.52(1)(i) as there was no form of instruction by a teacher. It was also maintained that there was a commercial intent and that people will become more inclined to buy course packs at a lower price and out of convenience and that as a result actual publications will face deterrence in their worth.

The defence counsel took the defence of fair trade u/S.52(a) and (h). They claimed that their course packs had no major impact on the business and that this only helps the students. The defendants also contended that ‘instruction’ in Section 52 goes beyond classroom education. It was also maintained that since there is no copyright infringement, licensing under IRRO is immaterial. Arguments were put forth that 55 authors were cited, but 34 of them did not make any opposition to the suit. The number of excerpts borrowed were not in a sizable amount.

The Court was of the opinion that the claimants are in no competition with ‘course packs’. Even if these compilations were not made, the students would borrow the books from the library at no cost. Hence there is no direct threat to the IP of the plaintiffs. It is immaterial if an act holds an exclusive right to copyright, if touched upon in S.52, it will not entail copyright infringement. While discussing S.52(1)(i), it was felt that reproduction is not only constricted to a stereotypical teacher -- student discussion. The phrase ‘in course of instruction’ refers to the entire process rather than merely that carried out in the lecture. On IRRO licenses, the Court maintained that it is unnecessary as all acts of the defendants are in conformity with Section 52(1)(i) . Since the student’s action of photocopy of resource material does not amount to infringement, the act of photocopying by the university for their students also will not be considered infringement. Moreover it is immaterial if the machine is installed inside the library or outside or is done by a student or by a person employed or a contractor.

It is also worth mentioning that an appeal which surfaced before a Division Bench was later dropped and the case trial was restarted to establish if the course packs were truly adequate. The Court determined that expert testimony was needed. It was required of the photocopier to keep track of course packages copied, deliver it to pupils and then present the same in Court every six months.

A highlight of the judgment is that it ascertains that copyright law is not a natural law but a statutory law. Thus it has strayed away from the usual fair-trade test.

11. Academy of General Education, Manipal v. B.Malini Mallya (2009 (2) KLT Suppl.80 (SC) = AIR 2009 SC 1982 = (2009) 4 SCC 256) (Civil Appeal No.389/2008)

This is a landmark case wherein the Supreme Court clarified the scope of fair use. The case decided on January 23, 2009 involved a conflict between the Academy of General Education, Manipal and Ms.Malini Mallya over violation of a copyright owned by the latter. The subject of copyright was the work of Jnanapeeth awardee Dr.Shivarma Karanth and the work in question was a derivative of Yakshagana called as Yaksharanga. It qualified as an ‘original work’ because Dr.Karanth had written seven poems (known as ‘prasangas’) for performing Yaksharanga and altered the traditional dance style. After his death, the rights over Yaksharanga were given to Ms.Malini Mallya as per a will signed by Dr.Karanth prior to his death (which occurred in 1997). In 2001 the Academy of General Education performed Yaksharanga without seeking permission from Ms.Malini. The District Court of Udupi ruled favourably for Ms. Malini and passed a decree in 2003 restraining the Academy from performing the seven prasangas. The High Court on appeal agreed with the verdict of the District Court. Following this, the Academy approached the Supreme Court submitting that the dance performance fell within the purview of “fair use” because the dance form was not exploited for commercial gain as no fees was charged from the audience. It was also contended that the injunction issued is not in accordance with the requirements of the Copyright Act 1957 as the appellant is allowed to utilise the same in accordance with Section 52(1) thereof.

The Court settled the fact that sub-categories of dance forms do indeed fall under the scope of “artistic works” u/S.2(c) and are hence copyrightable. It was also made clear that not all kinds of usages of copyrighted works qualify as copyright infringement. It was held that “ in a case that involves fair use of a literary or theatrical work for private use (including research, criticism or review) the author or his legal successors cannot claim exclusive right under the Act.” So if a performance or dance is within the realm of fair use, no injunction can be issued. The Academy being an educational institution, any performance within the meaning of Section 52(1)(i) is subject to the fair use doctrine. As an amateur organisation or association, the Academy would also be immune from responsibility for any such performance before a non-paying audience.

12. ESPN Star Sports v. Global Broadcast New Ltd & Ors 2008 (3) KLT OnLine 1176 (Del.) = (2008) 38 PTC 477 (Del.) Delhi High Court (RFA (OS) No 25/2008).

This judgement differentiates between the broadcasters right and copyright and talks about the interpretation of the exception of fair dealing in the light of freedom of speech and expression – an oft claimed defense of news channels. The facts of the case were as follows:- CA(Cricket Australia) issued an exclusive license in favour of the appellant ESPN star sports for broadcasting rights of the India-Australia cricket series. The respondents are some parent companies of various news channels who ran shows on their new prime time which had short footages of the cricket match going on between the teams. The appellant alleged that the respondents commercially exploited the footage and ran them for more than the prescribed time on the pretext of broadcasting news prime time.

The appellant claimed that broadcasters right u/S.37 of the Act was distinct from copyright. The respondents on the other hand claimed that broadcasters right and copyright must be treated at par. Hence the appeal should be dismissed because of non-joinder of a necessary party (i.e.) the copyright owner (viz) CA. The respondents also argued that fair dealing cannot be pre-judged and can only be decided on a case-to-case basis. There is no law that lays down any limit on the length of footage that may be used by broadcasting organizations covering any sporting event. The respondents also pleaded that there is no basis for the plantiff’s argument that the respondent cannot utilize footage in excess of 30 seconds per bulletin and a total of 2 minutes per day.

The first Court of instance held that copyright and broadcast rights are to be considered at par and held that due to non joinder the suit is liable to be dismissed. After an appeal, the Court formed a two-judge bench and held that broadcasters right and copyright are two separate rights. Reasons given by the Court were:

(a) Inclusion of a separate definition of ‘broadcast’ in Section 2(dd) of the Act and not including it within the definition of ‘work’ (defined under Section 2(y)) that would be the subject matter of copyright protection u/S.13 of the Act.

(b) Copyright infringement being dealt with u/S.51 whereas infringement of broadcastingrights being dealt with u/S.37(3).

The Court also held that there were separate rights held by the appellant in the telecast which can be classified into two parts.

1. Live matches broadcast by the appellant as exclusive licensee of CA can be con-sidered broadcasters exclusive right.

2. Post-match and pre-match show, commentary by famous cricketers etc., must be considered as copyright owned by the broadcasters. Hence the fact that the appellant broadcasters have filed for injunction and infringement against the respondents must be considered a case of violation of their own copyright and hence the suit is not barred by Section 61 (owner of copyright to be party to proceeding) as the copyright owner is the broadcaster itself in this case.

The Court however could not pass an order of injunction because the event had already finished, but made observations favourable to the appellant and held that the defense of fair pleading cannot be attributed to the respondents.

The Court referenced the conditions laid down in Media Works NZ Limited & Anr. v. Sky Television Network Limited._[x] wherein it was observed that “fair dealing meant that the extract must be brief and should be considered in light of the length of the recording.” Based on the above judgment the Court held that since the respondents overran the show multiple times and had advertisements placed on the special shows, the main intent was commercial exploitation and it cannot be done under the garb of freedom of speech and expression of news channels.

Conclusion

      “In depths of soul, creativity blooms

      A tapestry woven with passion looms

      With words and brush, visions take flight

      Imagination’s spark, a beacon of light,

      In each creation, a glimpse of four worth,

      In each creation, a glimpse of our worth,

      Humanity’s art, an endless rebirth.”

The above lines have a deceptive similarity with Robert Frost’s poems. But his die-hard fans can recognize that it is the creation of ChatGPT based on a one-line prompt. Despite the evolution of copyright law, it must be admitted that jurisprudence is still in its nascent stage when it comes to generative AI- be it ChatGPT or Bard. In the backdrop of this technological setting, this article has attempted to outline a few landmark judgements in the field - the list being illustrative and by no means exhaustive. For instance, the seminal decision of the Apex Court in R.G.Anand v. Delux films (1978 KLT OnLine 1077 (SC)) which laid down the basic principles of idea-expression dichotomy does not figure in the dozen judgements enlisted in the article. Such is the case also of the decision rendered by the Allahabad High Court in Gopal Das v. Jagannath Prasad which considered two books written on the same theme and the judgement of the Kerala High Court in the Civic Chandran case (Civic Chandran v. Ammani Amma - 1996 (1) KLT 608) where an original drama was criticized by performing a counter drama.

Copyright law being the most versatile among all forms of IP law has been curated by the judiciary to suit the context -- whether it be social, economic or cultural. From the test of originality and remedies for violations to fair dealing provisions, jurisprudence has struck a fine balance. Transformative use has been recognized and clear commercial use unprotected while it has been stipulated that fair dealing has to be within the four corners of bona fide use, reasonableness, noncommerciality and de minimis provisions. Criticism and review have to be genuine and not merely a charade. As Courts rise up to the challenges posed by technology, the multifaceted jurisprudence on copyrights is expected to evolve amalgamating hitherto unknown terrains in a manner befitting the Cindrella of the IP family.

Foot Notes:

[i]    1997 (2) KLT SN 72 (C.No.72) (SC) : AIR 1997 SC 3011: (1997) 5 SCALE 453.

[ii]   Lucas film Ltd v. Ainswowrth (2011) UKSC 39.

[iii]  (1866-67) LR2 Ch App 307.

[iv]  AIR 1940 PC 55:1940 AC 112.

[v]   AIR 2014 Mad.25: 2013 (5) LW 429.

[vi]  2019(78) PTC 375 (Del) [CS(COMM:) 724/2017].

[vii] 2013 (54) PTC 419 (Del.) (CS(OS) 1213 (2011)).

[viii] (1937) 3 ALL ER 503.

[ix]  (1900) AC 539.

[x]   74 IPR 205.

A Most Welcome Revival

 (By K.Ramakumar, Sr. Advocate, High Court of Kerala)
 e-mail : ramakumarassociates@gmail.com    Ph.: 0484 - 2376428
The recent step by the Hon’ble High Court of Kerala in restoring back a minimum period of practice in the bar for judicial appointments at the lower level is most welcome and has to be appreciated and applauded. The practice of law is considered to belong to those learned in law and well versed in procedure. Both these are important equally for judicial officers. Without knowing the nuances of law and legal principles, one cannot be entrusted with the onerous responsibility of sitting in judgement over the rights of others. Law, as is well known is a deep ocean. No amount of swimming in the surface will help unfathom the intricacies of law. A long and deep learning alone will equip a lawyer worth the name to practice law to tender legal service or hold judicial office determining the rights of others. It is good that the Hon’ble High Court has thought fit to bring back the old system of minimum practice in the bar before joining the Judiciary. The swift shifting to judicial chambers on joining the law chambers of one’s father, uncle or father in law has been stopped.

In the past, considering the complexity of a field like law, before becoming a full-fledged lawyer, one had to undergo a period of apprenticeship, take the bar examination and earn a pass in it. This wholesome practice had unfortunately been stopped leading to totally ill-equipped entrants in the bar wholly unfamiliar even with basic subjects like the Code of Criminal Procedure or the Civil Procedure. The ubiquitous presence of the Criminal Manual or the Code of Civil Procedure in the past in all the subordinate courts had become a thing of the past. The internet is an innovation, but mobiles have no entry into law courts. It is not exaggeration but a real story that happened in one of the Magistrate’s Courts when a young lawyer filed an application for exemption from appearance of the accused under Section 151 of the Code of Civil Procedure. If I may be pardoned for making a personal reference, I was a witness to that incident and while I was curiously watching how the court officer or the court dealt with that petition, when the case was called the usual submission “accused absent applies” was made and without a whimper, the Magistrate passed orders even without looking into the petition. These are almost daily occurrences, to the grief of those who have seen better days in our trial courts. Nobody bothers about the provisions of law under which interim applications are made for relief. No questions are asked how the application is maintainable. Not even the opposite lawyer points out the deficiency in the application. So much is the neglect to salient provisions of law, the foundation of the existence of courts, dealing with the lis initially and shaping the fate of the cases before they reach the higher courts.

It may be remembered that learning law is like learning driving. Sitting by the side of an experienced driver for days together is not going to make a person learn driving. He has to drive a vehicle himself. Practice of law is like that. The expression ‘practice’ is defined in reputed dictionaries as follows:

See Black’s Law Dictionary and see under the heading ‘Practice of law’:

“The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interests of another with his consent… It is not limited to appearing in court, or advising and performing of services in the conduct of the various shapes of litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings, and in larger sense includes legal advice and counsel and preparation of legal instruments by which legal rights and obligations are established.”

Other dictionaries also define the expression ‘practice’ as, “Work of a doctor/lawyer, something done habitually/regularly.”

No one therefore becomes a qualified lawyer unless he “practices” law. If without practice a person is entrusted with the job of judging others, it will be the height of impropriety and injustice. Litigants are entitled to legal services and adjudication from duly qualified hands and not novices.

In this view of the matter, even the system of apprenticing existing in the past has to be restored. This will provide an insight into the profession by watching court proceedings, viewing senior members of the bar conducting cases and even interacting with clients in their offices as part of legal service. Practice and procedure including the Civil Rules of Practice and the Criminal Rules of Practice can be imparted to an apprentice during the one year stint. In addition to that, entry into a prestigious profession by all and sundry who do not wish to stick on can also be regulated. It will be a most welcome idea to restore back the apprenticeship and the bar examination, ignoring the likely criticism that may emanate from certain quarters.

Law remains intriguingly uncertain accompanied by the inordinate delay in all courts. Law’s delay is nothing new. It existed even during the time of Shakespeare receiving derision, flak and ridicule in literary works. The great Charles Dickens also did not spare lawyers or lawyering.

The biggest casualty today in legal profession is quality. Commitment, character and dedication, the hallmarks of a lawyer, are memories of the past. The tall claim that legal profession is noble and honourable does not appear to have takers among the ordinary, credulous and gullible uninitiated litigants. They still look up on the lawyer community with distrust and doubts. The malevolent derides it as a necessary evil in society.

Add that to the murderous assault on the English language, still thrust upon us, occurring every day. Sartorial seniors, watched by greenhorns use expressions like “They says they are in foreign” to the merriment of Judges and amusement of fellow practitioners. Remember there were great literary figures among the lawyer community, like Gandhi, Nehru, K.M.Munshi and C.Rajagopalachari, to name a few. Such tall men are totally absent in the profession now.

The British had given us a fine legal framework. While small Singapore had improved upon it and the South Africans refined it and even Pakistani lawyers did a shade better than us, we by all appearances have impoverished it. Please remember our Pakistani lawyer brothren could persuade their Supreme Court to declare the martial law illegal, while our Supreme Court, caved in.

It is time the members of the legal profession strive hard to bring back the lost glory to their once upon great profession.

Are Teachers Entitled to Beat Students?

(By Ajit Joy, Advocate, High Court of Kerala)
e-mail : ajit.joy@gmail.com       Mob.: 9400048971 

A recent judgment in Jomy v State of Kerala (2024 (4) KLT 297 = 2024 KLT OnLine 1741) approves teachers beating school children. In earlier judgments too, the Kerala High Court has affirmed this right of teachers.The short question I would debate is whether in this day and age, it is right to hold so!

The facts in the Jomy’s case above, involved an English teacher, also the Principal of the school, beating a 13 year old girl. This student of the 8th standard was beaten for scoring poor marks. A case was registered against the teacher under the Sections 82 of the JJ Act and 324 of the I.P.C.

Referring to some earlier judgments of this Court on the same question, the Court held, teachers are entitled to device simple and least onerous corrective measures in the interest of maintaining discipline. Though the term “corporal punishment” was not used, in effect, the judgment was a validation of such punishment.The Court went on to quash the final report of the police.

In K.A.Abdul Wahid v State of Kerala (2005 (2) KLT 72), the Court found nothing criminal in caning the buttocks of a10 year old student by a teacher of a Madrassa. The court held, “the beating is with bona fide intention and there is no mens rea to inflict injury.” The court further ruled that teachers have the implied authority from parents to enforce discipline and correct students. Corporal punishment inflicted for such purposes cannot be considered to be intended to injure the student.

In 2019, in the case of Rajan @ Raju v. The Sub Inspector of Police, Feroke (2019 (1) KLT 119), the court held that a teacher jabbing the shoulder of a class 2 student while teaching mathematics was no offence.The court reasoned that teachers who are loco parentis (place of a parent) are entitled as a disciplinary measure to apply a reasonable degree of force.  However, the Court clarified that this would not extend to “unreasonable or immoderate” punishments.

Justification for this stand in the 2019 judgment also comes from a quote taken from Kenny on Outlines of Criminal Law, 19th Edn. The book says, “…a hurt of a less serious kind is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a schoolmaster to whom the parent has delegated, or is deemed to have delegated, his authority.” The 19th edition of this classic was published in 1966. The very same passage is seen in the 18th edition (1962) of the book at page 15.

UK Bans Corporal Punishment in Schools

Since the 1960’s, the position has totally changed in the U.K. One cannot find such passages in English criminal law books any more. Corporal punishment of any kind is prohibited through the 1996 Education Act of U.K. There was a challenge to Section 548 of this Act by a school, which argued that it was the right of the private Christian school as part of their Christian values, for teachers to inflict corporal punishments. They submitted that the teachers were given full authority to do so by the parents. They also took the contention that S.548, interfered with their freedom of religion under the UK Human Rights Act 1998 and Article 9(1) of the European Convention for the Protection of Human Rights Act. The House of Lords dismissed the appeal in R (on the application of Williamson) v. Secretary of State for Education and Employment [2005] 2 AC 246. Lord Bingham in the Judgment said, “The statutory ban pursues a legitimate aim: children are vulnerable, and the aim of the legislation is to protect them and promote their wellbeing. Corporal punishment involves deliberately inflicting physical violence. The legislation is intended to protect children against the distress, pain and other harmful effects this infliction of physical violence may cause.”

Indian Public Policy Prohibits Beating in School

India’s public policy is categorical on this subject and no different from that of the UK. The Right to Education Act 2009, has prohibited any use of corporal punishment.
Section 17(1) prohibits any child being subjected to physical punishment or mental harassment. Section 17(1) makes a contravention liable to disciplinary action under the Service Rules applicable to such teacher. Prior to this, the National Policy on Education (NPE) 1986 and the National Policy for Children 2013, envisaged corporal punishment to be firmly excluded from the education system.

Our Constitution is foundationed on the “dignity of the individual” which is assured in the Preamble.Dignity of the person further finds categoric affirmation in Article 21 guaranteeing life and personal liberty to everyone. A child is a person and has equal rights and dignity as an adult, if not more.

Article 39(f) states, ‘The State shall ensure that children are given opportunities to develop in a healthy manner and in conditions of freedom and dignity…”. Here the child’s dignity is again emphasized.India has ratified the United Nations Convention on Child Rights (UNCRC). Article 19 of the UNCRC enjoins the protection of children from all forms of physical or mental violence.

Given the above context, beating of a child by a teacher is a violation of the child’s dignity and human rights. A negation of its fundamental rights and statutory protection.When a teacher beats or shouts in class, it pains and traumatizes not only the target student but the entire class. It is infliction of pain and negation of dignity of an entire class of future citizens, whom the National Policy for Children 2013 term, “a unique and supremely important asset of national importance.”

In the Jomy case, the Court found that Section 82 of the Juvenile Justice Act, 2015, prohibiting Corporal Punishment, would not apply to that case, as the Section covers only ‘child care institutions.’ The Court then considered but brushed away the question of the applicability of Section 76, that makes cruelty to a child punishable, accepting the argument that no such intention was there in the teacher. However, it is submitted that, the definition of the Section 76 does not require exploring an intention. A person having charge or control over a child when assaults the child causing unnecessary physical or mental suffering, should be taken as committing the offence. In addition, when considered in the context of the highly progressive general principles listed in Section 3 of the JJ Act like, “best interest of the child,” “child friendly,” and “principle of safety,” there is no room for doubt on the legislative intent or the policy of the nation on children.

The exception of Section 88 of the IPC (Section 28 of the BNS) was used by Courts to absolve teachers who used force. The reliance on Section 88 IPC, in my view, would be incorrect. Section 88 was intended for instances like performance of a surgery on a child even if it was risky and likely to cause harm. Here the parent consents to such procedure. To assume that all parents’ consent or impliedly consent to teachers exercising corporal means to maintain discipline and correct children is an incorrect. Moreover, in the present context of India’s legal framework, no such implied consent can be given by parents.

Spare the Kids from Canes, Rods, Sticks and Slaps

Spare the rod and spoil the child, is a view that many parents and teachers hold. Children, according to them will only obey and respect their teachers if they fear punishment.  However, there is nothing to evidence the salutary effects of corporal punishment. On the contrary, there are studies that point to the negative effects of such actions on children’s mental health, self-esteem and academic performance. In a vast number of schools in India children are not beaten. Their discipline cannot be said to be any better or worse than schools that inflict such punishments.

The question is, will we justify corporal punishments being administered to adults? Can any college teacher dare beat a student? Even in the armed forces and police, during drills or parade some punishments are given, but never any physical beating. Then why retain beatings when it comes to the child, the small, powerless and innocent. How can punishments that cannot be used against an adult be used against children?

Invariably all judgments supporting inflicting of punishments have said, that any excessive use of such means will attract criminal consequences. This then paves the way for a slippery slope. How does a teacher calibrate his beatings. How does an investigation officer, based on such a principle, conclude if the teachers act would come withing the JJ Act or 324 IPC. How does the court determine from case to case if the act in fact was criminal or not.

We should also remember that teachers come in different hues. They could have emotional instabilities, anger issues, frustrations, or a teacher could be a sadist. Such teachers could simply make children their target and terrorise the entire class. Allowing, teachers to use force would be catastrophic in such instances.

The subconscious forces that live with our generation, places teachers upon a pedestal. These “subconscious loyalties,” as Judge Benjamin Cardozo says, are “the forces of which judges avowedly avail to shape the form and content of their judgment”. Nonetheless, when the countries policies and laws have moved on, beatings by teachers cannot be justified or condoned.