The Repeal and Savings Clause Incorporated in Section 170 of the Bharatiya Sakshya Adhiniayam

(By A.S.Madhu sudanan, Advocate, Thalassery)
E-mail :asmadhusudanan@gmail.com      Mob. 9846240366

The Bharatiya Sakshya Adhiniyam, 2023 unlike the Indian Evidence Act, 1872 contains a repeal and savings clause which reads as follows: -

“170. Repeal and savings -- (1) The Indian Evidence Act, 1872 is hereby repealed.

(2) Notwithstanding such repeal, if, immediately, before the date on which this Adhiniyam comes into force, there  is any application, trial, inquiry, investigation, proceedings or appeal pending, then, such application, trial, inquiry, investigation, proceedings or appeal shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement, as if this Adhiniyam had not come into force.”

The said repeal and savings provision present in the Bharatiya Sakshya Adhiniyam would require judicial interpretation and explanation by the Apex Court or the High Courts.

The sub-section (1) of the said Section repeals the application of the Indian Evidence Act, 1872. The sub-section (2) of the said Section however provides that in pending appli-cations, appeals, trial, inquiry, investigation or other proceedings the Indian Evidence Act, 1872 would continue to apply and in fresh proceedings the Bharatiya Sakshya Adhiniyam, 2023 would apply.

The confusion arises when a trial is culminated and Judgment is pronounced by employing principles of evidence as laid down in The Indian Evidence Act and thereafter the aggrieved party or the State proceeds in appeal or files revision after 01.07.2024. As per Section 531 of the Bharatiya Nagrik Suraksha Sanhita the said appeal or revision has to be filed under The Bharatiya Nagarik Suraksha Sanhita, 2023 and not under the Code of Criminal Procedure, 1973 (Abdul Khader v. State of Kerala (2024 (4) KLT 516).

The confusion arises whether such an appeal or revision filed after 01.07.2024 is to be treated as fresh proceedings or as pending proceedings.If sub-section (2) of the Section 170 of the Bharatiya Sakshya Adhiniyam is literally understood since the appeal or revision is filed after coming into force of the Adhiniyam, the Indian Evidence Act would not apply to the said proceedings and the evidence in such an appeal or revision has to be appreciated as per the provisions mandated in the Bharatiya Sakshya Adhiniyam.

Even though the Bharatiya Sakshya Adhiniyam is a carbon copy of the Indian Evidence Act in most respects, there are substantial changes as for as procedure mandated for admissibility of electronic evidence is concerned. The scope of electronic evidence is considerably widened and the electronic record is more or less treated on par with other documents. Hence in a case involving admissibility of electronic or digital records it may cause difficulty when the trial was conducted under the Indian Evidence Act and in the ensuing appeal or revision, the evidence has to be appreciated under the Bharatiya Sakshya Adhiniyam, as the principles for appreciation of evidence of electronic record laid down under the Indian Evidence Act, 1872 is slightly different from the corresponding provisions in the Bharatiya Sakshya Adhiniyam and what may be strictly not admissible without certificate under Section 65B of the Indian Evidence Act may become admissible without any proof (like data stored in cloud storage) under the Bharatiya Sakshya Adhiniyam.

Similarly the scope of the admissibility of the confession of a co-accused under Section 30 of the Indian Evidence Act is slightly different due to the introduction of the Explanation II of the corresponding provision under Section 24 of the Bharatiya Sakshya Adhiniyam. More particularly the Section 133 of the Indian Evidence Act provides thata conviction is legal even if it proceeds upon the uncorroborated testimony of the accomplice.However the corresponding provision under Section 138 of the Bharatiya Sakshya Adhiniyam mandates that if a conviction is to proceed upon the testimony of the accomplice it must definitely be corroborated. In a hypothetical situation where in a trial conducted under the Indian Evidence Act, judgment of conviction is pronounced by believing the uncorroborated testimony of the accomplice and the same is appealed after the coming into force of the Bharatiya Sakshya Adhiniyam. The entire appreciation of evidence would change and the conviction would become illegal merely because there is no corroboration.

This would cause application of two different standards in appreciation of evidence during trial and the subsequent appeal or revision proceedings.   

Hence the said anomaly arising due to Section 170(2) of the Bharatiya Sakshya Adhiniyam requires interpretation by our Courts vide judicial precedents. The said Section would have to be interpreted in such a manner, that in a case where trial was conducted by employing the provisions of the Indian Evidence Act in which appeal or revision is filed after 01.07.2024,then such appeal or revision must be deemed to be a continuation of the earlier trial proceedings and hence deemed to have been pending at the time when the Bharatiya Sakshya Adhiniyam came into force,which would pave the way for application of principles of evidence laid down under the Indian Evidence Act and remove the same from the purview of The Bharatiya Sakshya Adhiniyam.

‘Once Admitted, Always Admitted’ – Stamp Act Theory Explored in
G.M.Shahul Hameed v. Jayanthi R.Hegde

–2024 KLT OnLine 1808 (SC) = AIR 2024 SC 3339

(By Saji Koduvath, Advocate, Kottayam)
E-mail : Sajikoduvath@gmail.com    Mob. 9400230025

Introduction

The following two forceful propositions stood paradoxical and incongruent to each other-

• 1. Section 33 of the Stamp Act (both Indian Stamp Act and State Stamp Act) casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge, under Section 35 of the Indian Stamp Act (Section 34 of the State Act), not to admit a document that is not duly stamped (even if no objection raised to   mark it).

• 2. The court should not excludean insufficiently stamped (or unstamped) deed once marked without objection under Section 36 of the Indian Stamp Act (Section 35 of the State Act).

• Note: This incongruity is pointed out by this author in the article “Unstamped Documents – Should the Court Sit Silent if Marking Unopposed and Question it Afterwards?” (Published in 2023 (2) KLT Page 17, Journal Section).

The Law Applied in India – Once Admitted, Always Stand Admitted

RVE Venkatachala Gounder v. Arulmigu(R.C. Lahoti & Ashok Bhan, JJ.), (2004 (1) KLT OnLine 1227 (SC) = AIR 2003 SC 4548 = (2003) 8 SCC 752), is the well-established decisive leading decision in the following propositions of law.

• Objection as to the irregularity of modeadopted for proving the document should be taken when the evidence is tendered;

• Once the document has been marked as an exhibit, the objection cannot be allowed to be raised at any subsequent stage.

• Failure to raise a prompt and timely objection amounts to waiver of that right.

• The objection enables the court to apply its mind and pronounce its decision on the question of admissibility.

• Itis a rule of fair play for it would have enabled the party tendering the evidence to cure the defect by giving formal proof of a document.

Law on Unstamped or Insufficiently Stamped Instrument

The law applied in India, hitherto, invoking Section 35 of the (State) Act was the same that was laid down in RVE Venkatachala Gounder v. Arulmigu (supra). It was the following –

• Once an unstamped or insufficiently stamped instrument has been admitted in evidence, (even if mechanically or inadvertently), its admissibility cannot be contested at any stage of the proceedings.

Section 35 of the State Act (Section 36 of the Indian Stamp Act) reads as under:

• “35. Admission of instrument where not to be questioned– Where an instrument has been admitted in evidence, such admission shall not, except as provided in
Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.”

In Javer Chand v. Pukhraj Surana (1961 KLT OnLine 1291 (SC) = AIR 1961 SC 1655 = 1962-2 SCR 333), it was observed as under:

• “4….Where aquestion as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. … Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the (Indian) Stamp Act comes into operation. Once a document has been admittedin evidence, as aforesaid,it is not open either to the trial court itself or to a court of appeal or revisionto go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.”

In Ram Rattan v. Bajrang Lal (1978 KLT OnLine 1032 (SC) = (1978) 3 SCC 236), it was held as under:

• “6. When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial Judge to apply his mind to the objection raised and to decide the objections in accordance with law. …. If after applying mind to the rival contentions the trial court admits a document in evidence, Section 36 of the (Indian) Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admittedwithout the court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 (see Javer Chand v. Pukhraj Surana (1961 KLT OnLine 1291 (SC) = AIR 1961 SC 1655).
The endorsement made by the learned trial Judge that ‘Objected, allowed subject to objection’, clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted.”

• Note: In Ram Rattan v. Bajrang Lal (supra) ‘objection’ as regards inadmissibility had been raised “as it was not duly stamped”; and this decision was read by our Courts so as to find it relevant only in cases where there was ‘objection’ by the ‘other side’.

• See: Shyamal Kumar Roy v. Sushil Kumar Agarwal (S.B.Sinha & Dalveer Bhandari, JJ.), (2006 (4) KLT OnLine 1148 (SC) = AIR 2007 SC 637 = (2006) 11 SCC 331)
(It was held after referring Ram Rattan v. Bajrang Lal: “If no objection had been made by Appellant herein in regard to the admissibility of the said document, he, at a later stage, cannot be permitted to turn round and contend that the said document is inadmissible in evidence. Appellant having consented to the document being marked as an exhibit has lost his right to reopen the question. …. The question of judicial determination of the matter would arise provided an objection is taken when document is tendered in evidence and before it is marked as an exhibit in the case).

Unless “Judicial Determination”, Section 35 is Not Attracted

This long-stood concept, as regards unstamped or insufficiently stamped instrument, is relooked in the recent decision in G.M.Shahul Hameed v. Jayanthi R. Hegde (Dipankar Datta, Pankaj Mithal, JJ.), (2024 KLT OnLine 1808 (SC) = AIR 2024 SC 3339).

It is held that sheer technicalities should not triumph over the legislative intent and the fiscal interests of the State. It is held as under:

• “10. Despite the GPA having been admitted in evidence and marked as an exhibit without objection from the side of the appellant, we propose to hold for the reasons to follow that the Trial Court did have the authority to revisit and recall the process of admission and marking of the instrument, not in the sense of exercising a power of review under Section 114 read with Order XLVII, C.P.C. but in exercise of its inherent power saved by Section 151 thereof, and that the other remedy made available by the 1957 Act was not required to be pursued by the appellant to fasten the respondent with the liability to pay the deficit duty and penalty.”

• “12. Read in isolation, a literal interpretation of Section 35 of the 1957 Act seems to make the position in law clear that once an instrument has been admitted in evidence, then its admissibility cannot be contested at any stage of the proceedings on the ground of it not being duly stamped. A fortiori, it would follow that any objection pertaining to the instrument’s insufficient stamping must be raised prior to its admission.

• 13. However, Section 35 of the 1957 Act is not the only relevant section. It is preceded by Sections 33 and 34 and all such sections are part of Chapter IV, titled “Instruments Not Duly Stamped”. Certain obligations are cast by Section 33 on persons/officials named therein. Should the presiding officer of the court find the instrument to be chargeable with duty but it is either not stamped or is insufficiently stamped, he is bound by Section 33 to impound the same. Section 34 places a fetter on the court’s authority to admit an instrument which, though chargeable with duty, is not duly stamped. The statutory mandate is that no such instrument shall be admitted in evidence unless it is duly stamped.

• 14. The presiding officer of a court being authorised in law to receive an instrument in evidence, is bound to give effect to the mandate of Sections 33 and 34 and retains the authority to impound an instrument even in the absence of any objection from any party to the proceedings. Such an absence of any objection would not clothe the presiding officer of the court with power to mechanically admit a document that is tendered for admission in evidence. The same limitation would apply even in case of an objection regarding admissibility of an instrument, owing to its insufficient stamping, being raised before a court of law. Irrespective of whether objection is raised or not, the question of admissibility has to be decided according to law. The presiding officer of a court when confronted with the question of admitting an instrument chargeable with duty but which is either not stamped or is insufficiently stamped ought to judicially determine it. Application of judicial mind is a sine qua non having regard to the express language of Sections 33 and 34 and interpretation of pari materia provisions in the Indian Stamp Act, 1899 (1899 Act, hereafter) by this Court. However, once a decision on the objection is rendered – be it right or wrong – Section 35 would kick in to bar any question being raised as to admissibility of the instrument on the ground that it is not duly stamped at any stage of the proceedings and the party aggrieved by alleged improper admission has to work out its remedy as provided by Section 58 of the 1957 Act.”

• “18. On the face of such an order, it does not leave any scope for doubt that on the date the GPA was admitted in evidence and marked as an exhibit, the Trial Court did not deliberate on its admissibility, much less applied its judicial mind, resulting in an absence of judicial determination. In the absence of a ‘decision’ on the question of admissibility or, in other words, the Trial Court not having ‘decided’ whether the GPA was sufficiently stamped, Section 35 of the 1957 Act cannot be called in aid by the respondent. For Section 35 to come into operation, the instrument must have been “admitted in evidence” upon a judicial determination. The words“judicial determination” have to be read into Section 35. Once there is such a determination, whether the determination is right or wrong cannot be examined except in the manner ordained by Section 35. However, in a case of “no judicial determination”, Section 35 is not attracted.”

• “21. We may not turn a blind eye to the fact that the revenue would stand the risk of suffering huge loss if the courts fail to discharge the duty placed on it per provisions like Section 33 of the 1957 Act. Such provision has been inserted in the statute with a definite purpose. The legislature has reposed responsibility on the courts and trusted them to ensure that requisite stamp duty, along with penalty, is duly paid if an unstamped or insufficiently stamped instrument is placed before it for admission in support of the case of a party. It is incumbent upon the courts to uphold the sanctity of the legal framework governing stamp duty, as the same are crucial for the authenticity and enforceability of instruments. Allowing an instrument with insufficient stamp duty to pass unchallenged, merely due to technicalities, would undermine the legislative intent and the fiscal interests of the State. The courts ought to ensure that compliance with all substantive and procedural requirements of a statute akin to the 1957 Act are adhered to by the interested parties. This duty of the court is paramount, and any deviation would set a detrimental precedent, eroding the integrity of the legal system. Thus, the court must vigilantly prevent any circumvention of these legal obligations, ensuring due compliance and strict adherence for upholding the rule of law.”

Conclusion

Following are the outcome of the decision, G.M.Shahul Hameed v. Jayanthi R. Hegde, (2024 KLT OnLine 1808 (SC) = AIR 2024 SC 3339).

•. To attract the bar to question the marking of the document under Section 35 (State Act), the instrument must have been “admitted in evidence” upon a ‘judicial determination‘, “irrespective of whether objection is raised or not”.

•. The words “judicial determination” have to be read into Section 35.

•. If “no judicial determination” (or if the document is mechanically or inadvertently marked), Section 35 is not attracted.

•. In proper cases (such as the senior counsel was not present when the document was marked) the Trial Courts have the authority to revisit and recall the process of admission in exercise of its inherent power saved by Section 151 C.P.C.

•. Once there is such a judicial determination, whether it is right or wrong, it cannot be examined except as provided in Section 35.

Prior to G.M.Shahul Hameed v. Jayanthi R.Hegde (supra) the determinative point considered in various court decisions (as regards the ‘bar to question the marking of the document’) was “objection” from the ‘opposite party’. But, now, for the first time, by virtue of this decision what is taken as decisive is ‘judicial determination’ (alone), “irrespective of whetherobjection is raised or not”.

The Need for Application of Mischief/Golden Rule of
Interpretation in Sexual Harassment Cases

(By Sridhar Rajagopalan, Chief Legal Officer & Head,
Corporate Affairs, Automotive Robotics India (Pvt.) Ltd., Chennai)
E-mail : sri_raja62@yahoo.com      Mob. 9940049221

“Making innumerable statutes, men merely confuse what God achieved in ten”  – Humbert Wolfe –  British Poet

Curtain-raiser: The objective of this article is to ascertain the significant role of mischief/golden rule of interpretation in construing the statutes pertaining to sexual harassment with a view to make the relevant laws serve the purpose for which they were enacted.In other words, this article underlies the necessity of application of one of these rules to serve justice.

It would be germane to reproduce the paragraph from the Case Analysis and Statutory Interpretations: Cases and Materials (R C Beckman - National University of Singapore, 1992, Page 370) which reads as under:

“The Judge must set to work on the construction task of finding the tone of Parliament, and he must do this  not only from the language of the statute but also from a consideration of the social conditions which give rise to it , and of the mischief which it was passed to remedy and then he must supplement the written word so as to give force and life to the intention of the legislature. That was clearly laid down by the resolution of the Judges in Heyden’s case (1584) 76 ER 637”.

With this prelude, let us move forward.

In X v. State of Kerala & Anr. (2024 KLT OnLIne 2165) Crl.M.C. No.7541 of 2023 (Neutral Citation: 2024:Ker:62605),the Kerala High Court quashed an FIR registered against two women under Section 354A of the IPC while observing that the provision for sexual harassment would not apply when the alleged acts are done by a woman against another woman on the ground that to attract the offence under Section 354A of IPC, the alleged perpetrator under Section 354A(1), (2) and (3), should be  “a man”.

The court has observed as follows:

“So, the legislature diligently used the term ‘a man’ instead of ‘any person’ in the statutory provision and the legislative intent is to exclude woman/women from the purview of Section 354A of IPC. It must be held that Section 354A of IPC would not apply when the overt acts dealt therein was done by a woman against another woman/women. If so, the allegation of prosecution that the petitioners herein committed offence punishable under Section 354A of IPC is, prima facie, not sustainable and the proceeding for said offence is liable to the quashed.”

While the reasoning as stated above is strictly in accordance with the phraseology employed in Section 354A read with Section 10 of the IPC, this order gives us an opportunity to study the nuances of the implications of the judgement and to ascertain the  way forward.

The IPC was a comprehensive Criminal Code that continued to be in force until it was replaced by the new law namely Bharatiya Nyaya Sanhita of 2023, which came into effect on 1 July 2024.

Against this backdrop, the Sexual Harassment of Women at Workplaces (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as “PoSH law”) was brought into force from 9th December 2013 which is an exclusive Code to protect women from sexual harassment at workplaces. It is pertinent to note that this is not a gender-neutral law.

In 2020, the Calcutta High Court had an opportunity deal with a case in Dr. Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College and Others (W.P.A 9141 of 2020 -- decided on 27.11.2020), in which the Court has made a watershed move on the question whether POSH law would cover  same sex sexual harassment though the said law has clear cut annotations to the perpetrator and the impacted woman. In other words, the Court has given a clear-cut answer to the mind-boggling question whether the harasser can be a person of the same gender?The crux of the decision of the Court reads as under:

“Thedefinition of “sexual harassment” in Section 2(n) cannot be a static concept but has to be interpreted against the backdrop of the social perspective.As sexual harassment pertains to the dignity of a person which relates to her/his gender and sexuality, it does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act and held that a person of any gender may feel sexually harassed as contemplated in Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act and thus under Section 3(2) is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se and thus included the recognition of sexual harassment between persons of the same gender”.  

To be precise, the Calcutta High Court has clearly held that the complaints which are related to same-gender sexual harassment are maintainable under the POSH law.It is pertinent to note that, despite PoSH law being a gender biased law, the Calcutta High Court has taken an encyclopedic view to protect the rights of the women from sexual harassment.

Lord Denning in The Discipline of Law at Page No. 12 observed as under: Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision.  This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that or have been guilty of some or other ambiguity.

It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsmen. He must set to work on the constructive task of finding the intention of Parliament. It is clear that when one has to look to the intention of the Legislature, one has to look to the circumstances under which the law was enacted. The Preamble of the law, the mischief which was intended to be remedied by the enactment of the statute and in this context, Lord Denning, in the same book at Page No. 10, observed as under:

“At one time the Judges used to limit themselves to the bare reading of the Statute itself-to go simply by the words, giving them their grammatical meaning and that was all. That view was prevalent in the 19th century and still has some supporters today. But it is wrong in principle. The Statute comes to them as men of affairs--who have their own feeling for the meaning of the words and know the reason why the Act was passed--just as if it had been fully set out in a preamble. So, it has been held very rightly that you can enquire into the mischief which gave rise to the Statute--to see what was the evil which it was sought to remedy.” (U.P. Bhoodan Yagna Samiti v. Braj Kishore & Ors. (1988 (2) KLT OnLine 1126 (SC) = (1988) 4 SCC 274).

In 1959, the Street Offences Act was enacted in the United Kingdom to prohibit prostitutes from soliciting on the roads to the passing public. Taking advantage of the phraseology employed in Section 1(1) of the said Act, the prostitutes started soliciting from their balconies and windows.The said prostitutes were proceeded against under this Section as their actions destroyed the very intention of the legislation.

InSmith v. Hughes, Lord Parker C.J., observed as follows:

“She, being a common prostitute, did solicit in a street for the purpose of prostitution, contrary to Section 1(1) of the Street Offences Act, 1959. It was found that the defendant was a common prostitute, that she had solicited, and that the solicitation was in a street. The defendants in this case were not themselves physically in the street but were in a house adjoining the street, on a balcony and she attracted the attention of men in the street by tapping and calling down to them. At other part, the defendants were in ground-floor windows, either closed or half open. The sole question here is whether in those circumstances each defendant was soliciting in a street or public place. The words of Section 1(1) of the Act of 1959 are in this form: ‘It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.

The purpose of this Act was to make the streets safer for individuals to go down without being harassed or approached by common prostitutes. The objective of the law is achieved by applying “mischief rule of interpretation’ by Lord Parker C.J.

In Conway v. Rimmer (1968) AC 910, it was noted that Judges have the authority to employ the mischief rule during statutory interpretation to discern Parliament’s intent. This rule prompts the court to inquire into the specific problem or “mischief” that the previous law failed to address, which Parliament aimed to rectify through the enactment under review.

In Haydon’s case (vide supra), for the first time, the court stated Judges are supposed to construe statutes by seeking the true intent of the makers of the Act, which is presumed to be intent for the public good.

Lord Coke described the process through which the court must interpret legislation:

For the true interpretation of all statutes in general, four things are to be discerned and considered:

●   What was the common law before the making of the Act?

●   What was the mischief and defect for which the common law did not provide.

●   What remedy the Parliament hath resolved and appointed to cure the disease
of the commonwealth, and,

●   The true reason for the remedy.

In the case of Bengal Immunity Company v. State of Bihar (1955 KLT OnLine  1007 = AIR 1955 SC 661), the mischief rule was applied to the construction of Article 286 of the Constitution of India and the court held that it was to cure the mischief of multiple taxation and to preserve the free flow of the inter-state trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the Constitution makers adopted Article 286 in the Constitution.

Thumbnail sketch:

1) After the advent of the Vishaka Guidelines from the Supreme Court in 1997, since the Central Government had felt the need of exclusive penal provisions in the Indian Penal Code to prevent and prohibit sexual harassment,by virtue of Criminal Law (Amendment) Act, 2013 which was brought into force from 3rd February 2013, several new offences have been recognized and incorporated into the Indian Penal Code which inter alia, included attempt to disrobe a woman (Section 354B), and sexual harassment (Section 354A) etc.

2) After this, the PoSH law was brought into force on 9th December 2013.

3) Neither of these laws has a specific provision to deal with same sex sexual harassment.

4) Against this backdrop, the order of the Calcutta High Court in the matter of Dr. Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College and Others, is a silver lining.This landmark judgement recognized the same sex sexual harassment.

5) In the absence of a specific law/provision which prohibits same sex sexual harassment, is it not the correct approach to apply the mischief rule of interpretation?

If there is a vacuum, Judges have the liberty to set right the provision/law to attain the objective. Whether it is the then Indian Penal Code or the PoSH law or the new Bhartiya Nyaya Sanhita, 2023 , the objective is to protect the women from sexual harassment by the harasser. As clearly held by the Supreme Court of United States in Oncale v. Sundowner Offshore Services Inc 523 U.S.75 (1998), sexual harassment by someone of the same gender can be just as illegal as harassment by a member of the opposite sex.

Epilogue:

Keeping in view the current position, it is the appropriate time for the Central Govern-ment to consider the possibility of amending the relevant provisions pertaining to sexual harassment in Bharatiya Nyaya Sanhita, 2023 to make those provisions gender neutral with a view to protect women from the same sex sexual harassment as well.

Bonafidely Boneless

(By Sreejith Cherote, Advocate, High Court of Kerala)

E-mail : sreejithcherote@gmail.com                                  Mob. 9349110721

“Nn¡³ _ncnbmWnbn Nn¡³ ഉണ്ടെന്ന്IcpXn ssSKÀ _man ssSKÀ ഉണ്ടാhWsa¶nÔ. This seems to be a bonehead dialogue from an offbeat movie, but when compared to the decision in Berkheimer v. REKM L.L.C.[1], of Supreme Court for the State of Ohia, United States of America, this dialogue assumes relevance for being misjudged as a jabberwocky. It’s quite inquisitive to see, that legal reasoning may, at times, appear quite illogical to the legal vouge and rebellious to common sense. Even in the background of universal legal and statutory mandate that labeling should confirm with the content, a “U” turn has been taken by a Supreme Court in a “so-called” civilized country, in its legal reasoning that, label declaration cannot at all times vouch verbatim to the contents. Though it all happened in thousands of kilometres away in a different legal plane, it is significant for its legal principal on a tortious liability, which has a universal application. Considering the fact that law of tort has mainly evolved in India through the principles of law enunciated from judicial pronouncements, most of them delivered abroad as in the case of Donohue v. Stevenson[2].

Michael Berkheimer went to a restaurant in, Southwest Ohio, United States and ordered boneless chicken wings. The menu of the restaurant did not have a disclaimer stating that boneless chicken wings may contain bones. While eating the third piece of boneless wings, a bone with a size of 5 cm went into his wind pipe and damaged it. Later, he developed severe fever and had to be hospitalized, from where it was diagnosed that the bone had injured his esophagus and caused infection. He had to undergo several surgeries and numerous days of hospitalization to remove the bone and to arrest the infection which has reached up to his vital organs.

He sued the restaurant for negligence, after multiple rounds of litigation, at lower level, the matter came up before the Ohio Supreme Court, which in a divided decision of majority 4 to 3, gave a ruling that “boneless chicken can have bones”. Court further held that bones are natural to meat, so consumer should expect them, and boneless wings are a cooking style and no reasonable consumer would think that boneless chicken wings might not have bones in them, especially when bones are part of the chicken and no one can be held liable when boneless wings have bones. A strange analogy has been drawn by the court to explain the logic to the effect that, while eating “chicken fingers”, nobody expects and thinks that they are actually eating fingers” (much like the movie dialogue referred above).

Court had applied the ALLEN TEST[3] (Allen v. Grafton) in determining whether there is any negligence on the part of the restaurant. The crucial point to be considered in Allen test are twofold “foreign-natural[4]” and “reasonable expectation[5]” tests to arrive at a conclusion whether there is negligence or breach in the duty to take care. The question is whether the foreign body found in the food item was alien to the food, whether the harmful substance was foreign to the food or natural and whether the customer could have reasonably guard against it. Court found that bone was natural and large in comparison to the piece of chicken and any reasonable consumer should have been able to find it. The court further observed that “A diner reading “boneless wings” on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating “chicken fingers” would know that he had not been served fingers. The food item’s label on the menu described a cooking style; it was not a guarantee[6]”.

The case has led widespread criticism regarding the reasoning adopted by the court and a U.S. Senator[7] has described the Judgment as insane and had later introduced a legislation to overcome the effect of this decision[8].

It seems in the judgment; legal reasoning had prevailed over common sense in the conclusion drawn by the majority of the Judges. It is a legal requirement and common understanding that the labeling of the product should confirm with the contents. If there is a trade name for the product reflecting its identity as a particular thing, it’s the requirement of law that, the contents should show justice to the declaration. If there is a negative announcement on the product that something is singularly absent in it and when it is marketed highlighting the absence of something and a customer purchases the same believing the same, court seems not justified in introducing a reasoning at a hyper technical level and concluding that the label of a product should be judged with reference to the nature of the product and not as per its the commercial labelling.

The inference drawn by the court does not seem to be sound logic. Commercial labelling in itself is a class of requirement, a criterion in which certain standards has to be has been set. The very purpose of labelling is to bring accountability imbibing the concept of “duty to care” and fixing accountability and liability by prescribing uniform standards, including labelling, violation of the same attracts penal consequence to commend obedience. If the above logic is applied how can one complaint about the presence of sugar in “sugar free” sweetener or the presence of Gluten in “Gluten free” food supplements.

Now if we are to judge each product based on its nature, devoid of the prevailing practice in the commercial labelling of FMCG[9] product, it will open a unfair leverage for the manufacturers/sellers opening a plethora of defenses against, any actionable claims regarding their negligence or failure in duty to care. In India there are specific positive legislations, like Food Safety Act, package commodities rules etc., to insist that the label declaration should match the content. Here it is the requirement of law that the label must not contain information about the food that could be deemed false, misleading, deceptive, or otherwise create an erroneous impression regarding the product and also the requirement that name of the item should be mentioned along with the trade name, description, list of ingredients, in descending order of their composition by weight or volume. Seen from the Indian legal perspective, in view of the statutory mandate here, regarding product quality there seems no confusion in fixing liability generally, but there are certain grey areas of personal torts where we still rely on the ratio of foreign judgments and the ratio in Berkheimer v. REKM L.L.C. is sure to create an anomaly.

In the opinion of the author, when a food product is specifically marketed in a specific name with reference to the absence or presence of an ingredient, it is the duty of the manufacture to assure to the customers that the specified product doesn’t contain such an ingredient and if any injury is caused to a customer due to the presence or absence of that particular ingredient, there is failure of duty to care by the manufacturer. At all necessary times courts are proactive and act extensively intellectual, stretching logic to the possible extent to undo an injustice, but in certain cases same upbeat is exhibited for wrong reason and by erroneous conclusions, contradicting our expectation which is as shocking as choking on a bulky bone from a boneless meat.

Foot Note:

1.  Berkheimer v. REKM L.L.C., Slip Opinion No. 2024-Ohio-2787

2.  Donoghue v. Stevenson (1932) AC 562“snail in the ginger bottle case” streamlined the law of negligence

3.  Allen v. Grafton, 170 Ohio St. 249, 251 (1960) court propounded reasonable-expectation test referred to as the “foreign natural test” test which looks to whether the injurious substance found in the food was foreign to or natural to the food.

4.  “Foreign natural test” wherein court examines, whether the injurious substance is foreign to the particular item, for arriving at conclusion regarding negligence of a party Allen v. Grafton, 170 Ohio St. 249, 251 (1960).

5.  Reasonable Expectation Test” if the substance is within a consumer’s reasonable expectation of what might be present in the food—the supplier could not be said to have violated its duty of care. Allen v. Grafton, 170 Ohio St. 249, 251 (1960).

6.  Para 23-page 10 Berkheimer v. REKM L.L.C., Slip Opinion No. 2024-Ohio-2787.

7.  US Senator Bill DeMora (D-Columbus).

8.  Ohio Capital Journal July 29 ,2024.

9.  FMCG-Fast moving consumer goods.

Injunctive Relief And Standard Essential Patents :

A Critical Comparative Analysis

(By Achyuth B. Nandan, LL.M. Student, Rajiv Gandhi School Intellectual Property Law, IIT Kharagpur)

E-mail : achyuthbnandan@gmail.com               Mob. 9072653887

INTRODUCTION

Standard essential patents refer to those patents that claim an invention which is used as a technical standard. The standard-setting organizations (SSOs) determine whether a patent is essential for achieving standard technology, with mutual consensus among the industry players which will benefit the target customers. To neutralize the uneven bargaining power of the patent holders and the buyers, licenses to procure and use SEP are subject to Fair, Reasonable and Non-Discriminatory (FRAND) terms. It is to be noted that this is a voluntary contractual obligation which the SEP holder abide to and not a statutory undertaking.  It is often observed in Standard Essential Patent (SEP) jurisprudence that the SEP holders tend to seek injunctive relief against the potential licensees. They try to establish skepticism against other manufactures before the court, questioning their merit and willingness in abiding to the FRAND licensing terms. The rationale is to prevent the misuse of the SEP by the infringer. However, in reality, this often led to problems like abuse of dominant position by the SEP holder and Patent holdup. This is a complex terrain and the courts have to meticulously apply its judicial mind as it involves striking a balance between incentivization for innovation and fair competition. India has been pro-active in granting injunction that too ex parte many of the times for patent infringement claims. The United States of America and European Union has aligning approach with regard to granting of injunctive relief to the SEP holders.

BACKGROUND

There is a differential bargaining power involved in the SEP licenses. The SEP holders at times try to abuse its dominant position to avoid the FRAND commitments by filing frivolous injunction petitions.[i] Licensees in such situations are forced to pay higher royalties leading to ‘Patent Hold up’, which in turn leads to an anti-competitive environment. The courts therefore, have reduced granting of injunctive relief keeping in mind the negative implications. As a general rule injunction can be granted against the licensees only if there is non-payment of FRAND royalty.  Injunction relief cannot be blatantly barred as the infringers can refuse to pay the royalties with no harm. Ultimately, all the implementers in the market must have access to standard patented technology.

INDIAN POSITION

The relationship between Intellectual Property Rights and Competition law are often construed as contradictory, this adds more tension to the SEP jurisprudence in the Indian context. For instance, in the cases Vringo v. Xu Dejun[ii] and Micromax v. Ericsson[iii], the Delhi High Court overlooked the anti-competitive effects and granted ex parte injunction giving weightage to Intellectual Property Rights. In both the cases the activities of the SEP holders were prima facie contrary to FRAND terms. It is pertinent to note that as per Section 3(5) of the Competition Act, 2002, elucidates the protection of Intellectual Property Rights subject to reasonable conditions. Whereas Section 4(2) of the Act provides that imposition of discriminatory and unfair conditions in sale or buying of goods or services constituted abuse of dominant position.  Licensees have approached CCI to acknowledge the issue of ‘abuse of dominance’ and in 2013 CCI observed that Ericssons conduct primarily constitutes abuse of power in the market based on the patent holdup scenario. Later on, a Writ Petition was filed by Ericsson claiming that the CCI lacks jurisdiction to inquire into unsuccessful negotiations relating to Section 26 of the Competition Act 2002[iv], but no adjudication has been made in the High Court in this matter.

The conduct of the parties in SEP litigations proves to be vital, as the balance of convenience is ascertained mostly by the conduct of the SEP holder and the infringer as it’s an equitable remedy. In Ericsson v. Intex[v], the Delhi High Court granted injunctive relief in favour of Ericsson, as it observed that the court is obliged to grant injunction against misuse of patent if the SEP holderhas approached the court without undue delay, provided it’s a valid patent. Intex was observed to be an “unwilling licensee” in this case as royalty is not paid and FRAND agreement was not concluded and this can potentially harm other licensees which are market giants paying royalties. The litigative nature of the SEP holder to gain permanent injunction is viewed as an abuse of dominant position.  In a 2022 decision made in Nokia v Oppo[vi] the Delhi HC, highlighted the peculiar nature of SEPs observing that third party usage of the patents will not as such enable the patent holder to seek injunctive relief similar to normal patents. Public interest was considered as an inseparable element in SEP access and usage.  SEP holder cannot be treated as bona fide licensor if the core intention is to receive exorbitant royalty deviating from FRAND terms. Indian courts even though known for granting injunction proactively, have mostly tried to balance the rights of patent holders and implementers.

INTERNATIONAL POSITION

A. EUROPEAN UNION

The EU is reluctant in granting injunctive relief, as it considers it as primarily incompatible with FRAND ideals.  Courts in Europe have acknowledged the importance of injunctions in safeguarding IP rights, but they give weightage to anti-trust law framework in this regard. This is primarily because SEP holder have ‘voluntarily’ concluded FRAND license. A landmark decision in this realm was made in Huawei v. ZTE[vii] the court focused on balancing IP rights of the SEP holder without amounting to abuse of dominant position[viii] (Article 102 TFEU). The court held that it categorically amounts to abuse of dominant position when the patent holder seeks injunctive relief, while the licensee is willing to abide the FRAND licensing terms. Injunctive relief is granted only when the infringers conduct is dilatory/unwilling per se or injunction relief doesn’t amount to abuse of dominant position. It is coherent to note that licensee’s challenging the validity of patent doesn’t make them “unwilling licensees”, permitting such challenge will not detrimentally affect the patent holders rather it will help them to secure their right and pursue credible injunction remedies. On the other hand, the licensee can raise the anti-competitive conduct of the SEP holder as valid defence.

B. UNITED STATES

The early judicial decisions in the US indicate that injunctive relief is an inappropriate remedy for SEP infringement as its contrary with the FRAND licensing terms. US courts have always taken a pro-competitive approach. They rarely allow injunction pertaining to SEP’s.  The U.S. Supreme Court had laid down the four factors while granting equitable injunction in the case eBay Inc. v. Merc Exchange.[ix]  In Apple v. Motorola[x], the court observed that its arduous for the patentee to prove irreparable harm. It was held that if an infringer unduly delays licensing negotiations or blatantly refuses FRAND royalty, then injunctive relief would be granted.  Paramount importance is given to ‘public interest’ in the US SEP jural realm and it prevents SEP from being overvalued. The US Federal Trade Commission plays a pro-active role in taking corrective steps to curb anti-competitive conducts of the SEP holders and supervise the compliance of FRAND licence.

In Ericsson v. D-Link[xi]the court observed that over valuation of SEP leading to patent holdup shall be proved with cogent evidence and facts and not based on probabilities. It is pertinent to note that challenging the validity or essentiality of the patent does not amount to refusal to comply with FRAND terms. Also, in Microsoft v. Motorola[xii], it was observed that seeking injunctive relief cannot be construed as indicative of mala fide either.

CONCLUSION

The judicial trends and insights from most of the jurisdictions manifest the basic hypothesis that seeking injunctive relief in SEP adjudication is mostly not entertained when the alleged infringer is a willing licensee under the FRAND terms. Granting an injunction in such situations shall amount to violation of competition laws. Countries like Germany, Japan and China have also acknowledged the competing interests and issue of abuse of dominant position in FRAND negotiations under SEP framework and has limited granting injunctions while keeping a check on fair royalty rates. India being a developing country focused on materialising technology transfer and capacity building should take a more nuanced and meticulous approach in granting injunctions. Limiting the jurisdiction of CCI is also not a healthy trend.  The EU and US approach is more of a fair stance taking into consideration the patentees right and licensee’s willingness to abide by the FRAND terms. India should also consider the basic leniency towards the licensors in FRAND negotiations and focus on fair and equitable access to standard technology.  Conduct of the parties and public interest plays a pivotal role in SEP jurisprudence relating to injunctive relief.  Enforcing IP rights by the patent holder should not lead to anti-competitive scenario. Injunctive relief should be granted meagrely. If the licensee delays the negotiations or does not pay FRAND royalties then injunction may be granted. Hence, India should adopt a more pro-competitive approach while safeguarding the IP rights of the patent holder.

Foot Note:

i. Justice RRK Trivedi, Law of Injunctions, 1 Institutes Journal 21 (1996).

ii. Vringo Infrastructure Inc. & Anr. v. Indiamart Intermesh Ltd. & Ors., CS(OS) No.2168/2013, Delhi High Court (Aug. 5, 2014)

iii. Micromax Informatics Ltd. v. Telefonaktiebolaget LM Ericsson, RFA(OS)(COMM) 6/2016, Delhi High Court (Dec. 4, 2017).

iv. The Competition Act, 2002, No.12, Acts of Parliament, 2003 (India)

v. Telefonaktiebolaget LM Ericsson v. Intex Technologies (India) Ltd., 2015 (3) KLT OnLine 1154 (Del.) = CS (OS)

No.1045/2014, Delhi High Court (Mar.13, 2015).

vi. Nokia Technologies Oy v. Guangdong Oppo Mobile, CS(COMM) 299/2022, Delhi High Court (Nov.17, 2022).

vii. Huawei Technologies Co. Ltd. v. ZTE Corp., Case C-170/13, ECLI:EU:C:2015:477, 2015 E.C.R. 477 (July 16, 2015)

viii. Consolidated Version of the Treaty on the Functioning of the European Union Art.102, May 9, 2008, 2008 O.J. (C 115) 89.

ix. eBay Inc. v. Merc Exchange, L.L.C., 547 U.S. 388 (2006)

x. Apple Inc. v. Motorola, Inc., Nos. 2012–1548, 2012–1549 (Fed. Cir. Apr. 25, 2014).

xi. Ericsson, Inc. v. D-Link Systems, Inc., Nos. 2013–1625, 2013–1631, 2013–1632, 2013–1633 (Fed. Cir. Dec. 4, 2014)

xii. Microsoft Corp. v. Motorola, Inc., No. C10-1823JLR, 2013 U.S. Dist. LEXIS 54507 (W.D.Wash. Apr. 25, 2013).