To Hang or Not to Hang —That is the Question

(By Sanjana R. Nair, Advocate, High Court of Kerala)
Email : advsanjananair@gmail.com, Mob : 9605096969 

It is not easy for a person to have to chew his own words. But that’s exactly what Justice Antonin Scalia, one of the nine Justices of the US Supreme Court had to do. In Kansas v. Meyers_¹while considering the constitutional validity of the State’s death penalty statute, Justice Scalia ceremoniously asserted that there is not a single case “in which it is clear that a person was executed for a crime he did not commit.”_² After discussing several individual cases highlighting the horrifying circumstances of the murders, Justice Scalia asserted that the margin for error in executions is “reduced to an insignificant minimum.”_³

Despite all the optimism of Justice Scalia, the truth turned out to be otherwise. Not much later, the world read about the wrongful execution of the ‘wrong’ Carlos in the United States for a crime he did not commit. An extraordinary investigation by Professor James S.Liebman and a team of Columbia Law School students after an extensive and painstakingly detailed study of the criminal prosecution and execution of a person by name Carlos De Luna published a book by name “The Wrong Carlos : Anatomy of a Wrongful Execution” after they came to the conclusion that the State of Texas had in 1989 executed an innocent man. The book also identifies another Carlos, Carlos Hernandez, as the man who committed the crime for which De Luna was executed.

Speaking to an audience at the University of Florida Levin College of Law, Former Justice John Paul Stevens said that Professor James S.Liebman has “demonstrated beyonda shadow of a doubt” that Texas had indeed executed an innocent man._⁴

However, the investigation, finding and the applause that the findings garnered among jurists, judges, legal luminaries and lawyers came a little too late for poor Carlos De Luna.

Drawing a parallel to the Carlos case, in Shankar Kisanrao Khade v. State of
Maharashtra_⁵ the Honourable Supreme Court noted that a proper police investigation was not conducted in the case of Dhananjoy Chatterjee_⁶and that prima facie the “criminal test” was not satisfied in the sentencing of Chatterjee. A study conducted by
Professors Probal Chaudhuri and Debashis Sengupta of the Indian Statistical Institute, Calcutta, titled ‘ A re-analysis of the case of the murder of Hethal Parekh’_⁷  found several anomalies in the police investigation of the case. The finding that the study puts forward is that the murder could have been a case of honour killing, and Chatterjee may have been innocent.

However, this is not the first instance where doubt has been cast on the merit of the case wherein death sentence has been awarded. The Honourable Supreme Court itself acknowledged that its judgments awarding death sentence in some cases was in disregard to settled law and contrary to the law laid down by a Constitution Bench of the Supreme Court. In 2009, the Supreme Court admitted that it had wrongly sentenced 15 people to death in 15 years._⁸  In other words, 15 people were sentenced to death based on per incuriam judgements of the Court. An error rate of 25%! A rate of error so alarmingly high that it is totally unacceptable to any industry. Even a car manufacturer with such a high rate of error would have had to shut down operations immediately.

So, how are these judgements per incuriam? What was the proposition of law that was overlooked? In the 1980 judgment in Bachan Singh v. State of Punjab_⁹, the Supreme Court had along with introducing the concept of ‘rarest of rare’ as a yardstick for awarding death penalty, also emphasised on the importance of giving sufficient weight to mitigating circumstances pertaining to the criminal along with circumstances leading to the crime.

However, in later years it was noticed that in nearly 13 cases, smaller benches of the same court ignored the law laid down in the Bachan Singh case and awarded death penalties without considering the accused person’s circumstances or antecedents.

In 2012, 14 former Judges of the Supreme Court and different High Courts wrote to the President Sri. Pranab Mukherji, pointing out that since 1996, the Supreme Court had erroneously given the death penalty to 15 people and requested the President to commute the death sentences of 13 convicts from among the 15.

The other two - Ravji Rao and Surja Ram were already hanged._¹⁰

What is more alarming is that despite the fact that the judgements in these cases were per incuriam and that the Courts were not bound to follow them, this fact went unnoticed and as many as six other cases placed reliance on the per incuriam decision of Ravji._¹¹These are Shivaji v. State of Maharashtra_¹² Mohan Anna Chavan v. State of Maharashtra,_¹³  Bantu v. State of U.P.,_¹⁴ Surja Ram v. State of Rajasthan,_¹⁵ Dayanidhi Bisoi v. State of Orissa,_¹⁶ and State of U.P. v. Sattan._¹⁷ Finally in Santosh Kumar Bariyar v. State of Maharashtra_¹⁸ the Supreme Court, after pointing out the error in Ravji’s case, also noted the above 6 cases where Ravji’s case was followed and held that these decisions were wrongly decided. The Court also observed that none of the circumstances relating to the 13 convicts in these six cases have been brought on record and considered by the Supreme Court during the sentencing deliberations.

Probably because of the overwhelming shock or guilt at having pronounced per incuriam judgements in matters where death penalty was imposed, the Apex Court in, Dilip Tiwari v. State of Mahrashtra,^₁₉ Rajesh Kumar v. State_²⁰ and Mohinder Singh v. State of Punjab_²¹ emphasized the miscarriage of justice caused in the Ravji Rao case and other cases which followed the Ravji’s precedent.

Shockingly there are also instances wherein death penalty has been imposed based on a provision of law that was already struck down as unconstitutional. InAloke Nath Dutta v. State of West Bengal _²² and Santosh Kumar Bariyar v. State of Maharashtra_²³ the Apex Court has doubted the award of death sentence in Saibanna v. State of Karnataka_²⁴ Saibanna, convicted and sentenced to life imprisonment for murder, committed a second murder while on parole. Despite the fact that Section 303 IPC, which prescribed mandatory death sentence had already been struck down by the Supreme Court in Mithu v. State of Punjab_²⁵ the judgement of the trial court awarding death sentence was confirmed by the High Court and the same was upheld by the Supreme Court holding that a person who was already undergoing a life sentence, could not be sentenced to life imprisonment again, and therefore the death sentence was the only available punishment.

So, what is the objective behind awarding capital punishment? Tracing the jurisprudenceof capital punishment in India, it is clear that judicial emphasis has been on awarding death penalty in cases that shock the ‘collective conscience of the society’. This was expounded in Machhi Singh & Ors. v State of Punjab_²⁶ and ever since this doctrine has been used by the Supreme Court as a ground to impose the death penalty.

The phrase “collective conscience” has its origins in Sociology. According to French Sociologist Emile Durkheim, collective conscience is defined as “the totality of beliefs and sentiments common to average citizens of the same society which forms a determinate system which has its own life.”

According to Durkheim, an action is criminal “when it offends the strong, well-defined states of the collective consciousness”. The result of a crime is a passionate reaction that occurs in the form of punishment and it is done in order to safeguard the collective consciousness. So according to Durkheim, the very purpose of penal law, is to safeguard the collective consciousness of society.

Machhi Singhwas the first case that explicitly gave judicial recognition to the notion of “shock of collective conscience” as a ground for imposition of the death penalty. The bench of 3 Judges while imposing death sentence on three accused - Machhi Singh, Kashmir Singh and Jagir Singh observed:

“Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by ‘killing’ a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.”

Despite the elaborate discussion on the sociological aspects of the crime and threadbare analysis on the sociological principles based on which the death penalty was justified in Macchi Singh, the judgement per se appeared to be in conflict with the judgment of a Constitution Bench of the Court in Bachan Singh v. State of Punjab. Bachan Singh was decided by a Constitution Bench and was therefore binding on the bench of three Judges in Macchi Singh.

The Court in Bachan Singh had explicitly refrained from categorizing crimes. It had also pointed out the need to “give due consideration to the circumstances of the criminal.” Perhaps most significantly, it had in paragraph 127 specifically warned against the dangers of Judges taking “upon themselves the responsibility of becoming oracles or spokesmen of public opinion.”

The concept of ‘collective conscience’ and role of ‘public opinion’ into the capital sentencing framework by Machhi Singh paved the way for other similarly amorphous standards into the scheme as well. However, later in Santosh Kumar Bariyar v. State of Maharashtra_²⁷ the Supreme Court observed that public opinion was incompatible with the Bachan Singh framework, since the constitutional role of the judiciary mandates placing individual rights at a higher pedestal than majoritarian aspirations.

Another inherent problem with this approach was the difficulty to precisely define what public opinion on a given matter actually is and to what extent should the public clamour for blood be heeded to and satisfied?

In Rameshbhai Rathod v. State of Gujarat _²⁸ the Supreme Court was of the view that the expression ‘rarest of rare’ was used in Bachan Singh to read down and confine the imposition of capital punishment to extremely limited cases. Hence, the significance of this expression could not be watered down on a perceived notion of a ‘cry for justice’. In Om Prakash v. State of Haryana_²⁹ the Court observed that there was a significant tension between responding to society’s cry for justice and Bachan Singh’s sentencing framework, and held that courts are bound by precedent and not by the incoherent and fluid responses of society.

In 2018, the Supreme Court commuted death sentences in M.A.Antony v. State of Kerala_³⁰ and Chhannu Lal Verma v. State of Chhattisgarh_³¹ noting problems with imposing punishment based on collective conscience. Despite these concerns, however, the Supreme Court, in some cases, continues to impose death sentences invoking public opinion as a justification. Collective conscience found its most recent endorsement in the Supreme Court judgment in the December 2012 gang rape case of Mukesh v. State (NCT of Delhi)_³².

An analysis of the judgments show that cases subsequent to Bachan Singh did not delve into the role of public opinion while sentencing. While Bachan Singh explicitly laid down that Judges should not become oracles of public opinion while considering the question of awarding capital punishment, the increasing public clamour for the death penalty in response to heinous crimes, along with the uncertain role of mitigating factors, has resulted in an ever expanding determinative role of public opinion in capital sentencing. And though Bachan Singh, reflecting the legislative intent behind making the death penalty an exceptional punishment, mandated that death sentence can only be imposed if the alternative of life imprisonment is ‘unquestionably foreclosed’, it did not clarify how such determination was to be made. These lacunas and vagueness paved the way for later decisions deviating from the principles laid down in Bachan Singh. Whether the deviations in these later decisions were made in ‘ignorance’ of the principle already laid down or whether it was made because the Court felt compelled to fill the lacuna made in the earlier judgement or whether it was because later Benches felt that the dictum in Bachan Singh was not reflective of the prevailing societal values are all debatable questions.

For whatever reason, the fact remains that three years after Bachan Singh, Machhi Singh used the vocabulary ‘inadequacy’ in the context of life imprisonment instead of reiterating the ‘unquestionably foreclosed’ standard as laid down in Bachan Singh. This seemingly subtle shift had the very consequential impact of lowering the standard for consideration of life imprisonment from it being ‘unquestionably foreclosed’ to one of ‘inadequacy’.

Machhi Singhalso revived the “balancing” of aggravating and mitigating circumstances through a balance sheet theory. In doing so, it sought to compare aggravating circumstances pertaining to a crime with the mitigating circumstances pertaining to a criminal. Now, are these completely distinct and different elements comparable with one another and can a balance sheet really be drawn up of two distinct and different constituents of an incident are all debatable questions. Nevertheless, the fact remains that the balance sheet theory held the field post Machhi Singh.

In Rameshbhai Chandubhai Rathod v. State of Gujarat and in Santosh Kumar Bariyar v. State of Maharashtra, the Courts have cautioned against “prioritising the sentiment of
outrage of the society” while awarding capital punishment and reiterated that the significanceof the expression ‘rarest of rare’ cannot be watered down on a perceived notion of a ‘cry for justice’.

The analysis therefore leads to the irrefutable conclusion that over the years, vague notions like “society’s cry for justice” and “public abhorrence of the crime” have emerged as grounds for imposition of the death penalty. The clear requirements laid down in Bachan Singh insisting that the Courts look into the circumstances of the criminal and the possibility of reform were conveniently ignored or discarded in later cases rendering them allper incuriam vis-a-vis Bachan Singh.

We therefore find that later decisions like Sudam @ Rahul Kaniram Jadhav v. State of Maharashtra,_³³ Ajitsingh Harnamsingh Gujral v. State of Maharashtra_³⁴ handing down capital punishment to the accused after detailed description of the grotesque manner in which the crime was carried out without discussing a single mitigating circumstance! The wrong done in Sudham’s case however was luckily corrected by way of an order in the review petition filed and the death sentence was commuted to life imprisonment for the remainder of his life without right to remission_³⁵. 

So, why was this confusion? What were the factors that contributed to the Courts not having followed the settled precedence? What led to the per incuriam judgements? An analysis of the various decisions show that the standard of ‘inadequacy’ introduced in Machhi Singh altered the sentencing Court’s duty fundamentally, requiring them to answer the question of life imprisonment in light of the circumstances of the crime rendering the ‘Bachan Singh framework’ redundant, since all crimes punishable with death are likely to involve significant levels of brutality and heinousness. This situation one feels could have been avoided if Bachan Singh had elaborated on the normative and procedural components of the ‘unquestionably foreclosed’ standard. Such a discussion would definitely have gone a long way in avoiding this problem.

Therefore though the sentencing framework developed in Bachan Singh offered a transformative potential for the death penalty jurisprudence in India, the same was not sufficiently utilised by the subsequent judgments probably because of its inherent limitations on the procedural components. Unfortunately, rather than attempting to resolve the inherent limitation in Bachan Singh by developing and elaborating on the normative concerns that afflict the framework, subsequent benches of the Apex Court embarked on a journey of distorting it by offering varied interpretations, some of which go against the very grain of Bachan Singh.

More than four decades since its origin, the fact remains that the ‘Bachan Singh framework’ has been twisted partly because of its own normative and procedural deficiencies and also because the lack of a coherent doctrinal framework has allowed for the side lining of mitigating factors.

Therefore we find that despite Bachan Singh emphasising on the significance of the mitigating factors, various sentencing courts have indulged in serious fair trial rights violation of the accused by imposing death sentence without any, or meaningful, consideration of mitigating factors. The reason could be that without any normative clarity on the scope or the concept of mitigating factors, subsequent benches have not been able to appreciate their role and relevance in determining culpability and, therefore, the punishment. Apart from this, the procedural ambiguity in the different processes involved has also resulted in Bachan Singh not being followed in sum and substance. Sentencing courts have no clarity on identification, presentation, and weighing of individual aggravating and mitigating factors and on meaningful consideration of the option of life imprisonment. We also find that later judgments by the Supreme Court have also not made any attempts towards bridging these normative and procedural gaps. While some decisions have recognised the relevance of individual mitigating factors, the lack of a doctrinal basis to appreciate the collection, presentation, and consideration of mitigating factors continues to adversely affect the capital sentencing framework.

One definite conclusion that can be deduced from all this is that an extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly affects constitutional due process and equality principle. The lack of a meaningful and clear judicial discourse on capital sentencing has contributed to the arbitrary and unpredictable imposition of death sentences. With no clarity and explicit ambiguity on certain aspects of the framework regarding imposition of death sentence, the capital sentencing framework poses a serious threat to the right to fair trial of the accused. And considering the irreversible nature of the death sentence, in all fairness the correction should be done immediately and without delay. The quest should be to establish clear sentencing procedures and identifying the remedies available to the accused when the due process is violated. The question discussed in this article is not about abolition or elimination of death sentence from our judicial system. Death penalty as a form of punishment has existed in India since time immemorial and discussions on whether it should be totally abolished or not is a matter of another realm. Rather, the imminent question at this juncture is should not the guideline laid down in Bachan Singh be followed. Should not Courts take into account the circumstances of the accused, the possibility of reformation, the mitigating circumstances present etc?

In the most recent judgements of the Honourable High Court of Kerala in Narendra Kumar v. State of Kerala_³⁶ and in State of Kerala v. Muhammed Ameer-Ul Islam,_³⁷  the Court has delved in depth about the background of the accused, the circumstances he has undergone in life and the possibility of his reformation. Both these cases have taken diametrically different decisions on the question of death penalty. In Narendra Kumar’s case, the Division Bench upheld the conviction of the accused under Section 302 IPC, but modified the sentence from death penalty to life imprisonment. In Muhammed Ameer-Ul Islam’s case, the Court after serious consideration of the various relevant circumstances relating to accused came to the conclusion that the death penalty is to be confirmed.

Such detailed consideration of the circumstances of the accused as contemplated in Bachan Singh reaffirms faith that all relevant circumstances and conditions relating to the accused have been looked into before death sentence is confirmed by the High Courts.

As rightly pointed out by the Apex Court in Vodafone International Holdings BV v. Union of India,_³⁸ “certainty is integral to the rule of law”. In a case involving the imposition of the death penalty, the courts cannot continue to Judge under uncertainty. The need of the hour therefore is to set down a framework and to clarify on the normative and procedural aspects so that the Courts are clear on the mandates regarding imposition of death sentence without any scope for ambiguity and uncertainty.

Life is undoubtedly, the most precious gift of all. Taking of life through a legal process must in all fairness therefore ought not only to be very tough but must also adhere strictly to the highest standards of fair trial rights and the rule of law.

Statistics point out that at the end of 2023, 561 prisoners were living under a sentence of death, which is the highest population on death row in a single calendar year in nearly two decades as per the records published by the National Crime Records Bureau._³⁹ At one point of time, Dhananjoy Chatterjee, Ravji and Surja Ram were also men who made up the numbers on the records published by the National Crime Records Bureau and other statistical departments. Later, the legal fraternity united in denouncing the judgements based on which these men were executed as per incuriam. Despite all the posthumous recognition of the judgements as ‘wrongful’ and ‘incorrect’, the fact remains that the men were dead.

With the fate of 561 people and their families hanging in balance, the question is, ‘Can we afford to make errors?’ Can we let uncertainties and vagueness in legal principles be responsible for taking the life of men? Do not we as members of the legal system owe much more than this to mankind? 

Execution of a Decree is Really Slow Execution
of the Decree Holder

(By Adv.S.Balachandran (Kulasekharam), Thiruvananthapuram)

1) The Phrase that the “sad plight of an Indian citizen starts whenever he get a decree from the Civil Court” is absolutely correct. Order 21 of Civil Procedure Code, regarding execution is the largest order which contains 106 Rules and enough number of sub-rules. This shows that only on overcoming all this 106 Rules and sub-rules alone, a Decree Holder can enjoy the fruits of the Decree.

2) Even though ever so many amendments, including a major amendment came into Civil Procedure Code, neither any substantial amendments nor any amendments were made by any of the Legislatures in Order 21 of the Code of Civil Procedure 1908. Even now we are following the execution proceedings formulated in Civil Procedure Code about years back. Ever so many scientific and technological changes effected, nobody is dare enough to effect any substantial changes in the Act and Rules. It is very difficult to get a successful and tireless execution of a decree. Obtaining a decree from a Trial Court, First Appellate Court or Second Appellate Court is lesser tasks than getting a decree executed through a civil court during the life time of the decree holder.

3) There is an interesting story about the Indian litigation.“One day, one Tusker watched that several Buffallos are running fast. The Tusker stopped one of the Buffallo and asked, why all the Buffallos are running fast. Then that Buffallo told that there was an order to arrest all Buffallos and to produce before the court for remand. Hearing the same the Tusker run very fast than the Buffallos. Buffallo asked the Tusker, why are you running , you are a Tusker and not a Buffallo, you will not be arrested and there is no order to arrest the Tuskers. The Tusker replied that, I will also be arrested under the wrong impression that, I am also a Buffallo and will be remanded to Judicial custody. In order to prove that, I am a Tusker, in an Indian Court, it will take more than 20 years and then only I will be released after proof of the truth”.

4) After confirmation of a decree from the Hon’ble High Court and Supreme Court, the task of execution of the decree is entrusted physically upon the shoulder of an Amin. The so called Amin is the lowest cadre in the administrative side of the Judiciary. A warrant of arrest is implemented through a single process server. No uniform, weapon or vehicle is provided to the process server. It is very difficult to trace out the whereabouts of a Judgment Debtor, against whom a warrant of arrest is pending. After taking much effort, the Decree Holder finds out the whereabouts of the Judgment Debtor and the place of his physical presence. After tracing out the above whereabouts, the Decree Holder brings process server to the place where the JD is available, at that time the Judgment Debtor will escape. Again after taking much effort the whereabouts of the Judgment debtor will be found out and process server will be brought to the place. Fearing the JD the Decree Holder will usually hide from the place.

5) The poor process server will lonely approach the JD without any weapon or companions, in his ordinary dress, with a diary containing the warrant of arrest. When he approaches the JD and says that he was deputed from court to arrest him the JDs may not believe it. The ordinary JDs are at the belief that the court officer coming for arrest will wear proper uniform, prescribed by the court.

 6) Several occasions JD’s will suspect the process server, that he is not deputed from the court, he is the man of the Decree Holder and JD’s used to manhandle the process server. In several occasions when the process server attempts to arrest the JD, he will not be amenable for the arrest and he will escape. These things are happening because of the poor appearance of the process server. If the process server is in prescribed uniform and is having sufficient force to arrest a JD, definitely he will surrender and will not attempt to escape.

7) In the case of taking delivery of property in Execution of a Decree, normally warrant of arrest is used to issue to a Amin. There is no prescribed uniform to the Amin also. The execution process, then will begin as a mega series. On the date when the delivery is fixed the Advocates can see that the Decree holder, along with his relatives, friends and other persons able to physically defend the JD will arrive at the Advocate office and court, with the pseudo impression that, he can take delivery on that day itself. Advocates will laugh in their mind about the sad plight and wrong belief of the decree holder.

 8) When Amin was appointed, the team of the decree holder rush to the spot along with the Amin to take the delivery then and there. When the team of the Decree holder arrives at the place, the Amin will say that all of you shall remain outside the property and Amin alone will go inside the building. What happened thereafter is unknown to the Decree Holder. After few minutes the Amin will come back and reveals to the decree holder that the JD is obstructing the delivery so that we can go back.

 9) Thereafter the Decree holder and his team will rush to Advocate office and will curse the Judiciary, Advocates  and Amin. Usually the Decree holder ask the lawyers, is it the mode of execution, they will say that Amin is a poor man, who is unable to execute the decree, he contacted the JD inside the house of the JD, received bribe and returned back without executing the decree. They will utter that execution proceeding is mockery and is really befooling the Judiciary. For the completion of the above first stage a huge amount will have to be spent form the pocket of the Decree holder.

 10) As the second stage,Amin will report, the matter to the court and the Counsel of the Decree holder will also file petition for getting police protection. There after the court will grant police protection. After getting police protection the Decree holder and his team will  again be at the police station and will require for police protection. The JD may also be clearly watching the execution proceedings. The JDs are having much more influence than decree holder in the Police station. They will influence the police officers, not to depute police personels in time for giving protection to eviction. Under the influence of the JD the police authority will not give protection at the required time and they will protract it till evening, saying that no police constables are free.At last two police constables will be deputed along with Amin. They will reach the place in the evening; at that time usually women from the part of the judgment debtor will obstruct the delivery. The deputed police constables are male persons and they will say that they will not prevent the female JDs. Accordingly the Decree holder. Amin and his team will again return back. During the above second phase of delivery also huge amount will be spent from the pocket of Decree Holder apart from the payment of Advocate fee, clerical and court expenses.

11) There after the court will again give police protection with the aid of women police Constables. The entire proceedings under stage one and two will again be repeated and the party with women police constable will arrive at the place. At that time it will be found that the house of JD will be found locked. The Amin and party will again return saying that there is no order to break opening the lock.

12)  Again the entire proceedings will replay and another order will be obtained for break opening of the lock and will again reach at the house of the JD and then the Amin finds that there are articles of JD inside the house and there was no direction to take custody of those article and to produce it before the court. The Amin will express his inability.

13) The delivery of the property through the execution of the decree will come rarely in the life of ordinary Advocates, and they have to come across all the above difficulties. But some experienced lawyers will foresee the above difficulties and will minimize the above process. During this stage the Decree holder will become in a state of mind that, he don’t want to get the fruits of the Decree and he is frustrated. He will discuss about the difficulties faced by him, the financial loss and other unfounded incidents. They will be under much pressure and threat upon the Decree holder, not to execute the decree from political personnel’s.

14) The old phrase is that the “Amin is the Sultan of a day”. When an eviction order is obtained to the Amin in a year,he will be the luckiest person and he will find his income for a year. All the Amins in the old period were very experienced and they know how to handle the matter. He will bargain with Decree holder for eviction and to the JD for not executing the decree. He will fix the bid with the highest bid offered. The present day Amins have no proper training and experience. If an eviction is unsuccessful on the date of delivery, delivery of property will take years together and the real litigation will start from that stage. When the matter has to be again decided by the execution court, High Court and Supreme Court, including determination of claim petition, determination of identity of the property, determination of the validity of the decree etc., it will take another decade. During the above stages the financial loss and other difficulties met by the decree holder is unpredictable.

15) At the third stage, after completion of the above proceedings, the execution proceedings will again restart after final adjudication in execution stage. During the last stage again, Amin, Surveyor, Commissioner will again arrive at the place of Judgment debtor and face the above difficulties again.

 16) I have latest personal difficulty in one of my case that is O.S.380/2022 pending execution before the Munsiff Court Thiruvananthapuram. The above suit was instituted in the trial court for putting up of boundary in between the property of plaintiff and defendants 1 and 2 and for eviction of defendants 3 to 5,who had encroached into the property of the plaintiff and constructed the hut by them in the Plaint A schedule property. The properties were demarcated by appointing Advocate Commissioner and Surveyor in the trial stage, the suit was decreed in the trial court, in the first appellate court and from the Hon’ble High Court of Kerala. The above litigations have taken 20 years.

 17) After the above process, execution proceedings initiated in the year 2020, paper publication against some of the JD has again taken place in the execution stage as happened in the trial stage. The JD 3 to 5 raised several contentions in the execution stage. After deciding the entire objections, finally delivery was ordered. Almost all the proceedings mentioned above were replayed.The 3rd JD was a very powerful lady having political influence. She influenced the SHO of the Police Station not to aid the Amin for the eviction of the 3rd JD.  At the police Station the SHO deputed a male and female constable and directed them that they shall give police protection only to the Amin and not for eviction of JD 3 to 5 from the place. According to the SHO, the court has ordered to give police protection to the Amin and not for eviction. The entire team arrived at the spot, the Amin attempted to evict the 3rd JD. The police constables stood as onlookers, as suggested by the SHO, they have not given any protection for eviction and the Decree Holder was directed to remain in the public road and restrained them from entering inside the property. The Amin and party returned back as usual.

18) I filed an application before the court narrating the fact, that the police party stated that they will give protection to the Amin alone and will not give protection for eviction of 3rd JD. The court directed to examine the Decree Holder. The decree holder was examined. The court directed to examine the Amin. The Amin was also summoned and examined and he narrated the facts. Thereafter I filed an application to direct the City Police Commissioner to give sufficient police protection for eviction of the JD’s 3 to 5 from the property. The City Police Commissioner directed the very same SHO to give police protection. The decree holder, surveyor and Amin went to the police station and the very same SHO deputed 12 police constables and given secret instruction to them, to give protection to the Amin alone and not for eviction of JDs 3 to 5 from the property.

19) All the team arrived at the spot. At that time it was found that the 3rd JD, a lady is standing in front of the shed with a bottle of kerosene in her right hand and she was holding her grandchild in her left hand. The police personnels remained in the public road as earlier as silent spectators. The Amin attempted to evict the 3rd JD. She told that if she will be evicted, she will pour kerosene and will ablaze. All of them kept silent. The police party stated that they will not arrest and remove the 3rd judgment debtor and will not register case against her for obstruction of the official duty.The Surveyor told that he can install 2 survey stones alone separating the property of Decree Holder from that of the property of JDs 1 and 2 and he has done it.

20) Without eviction JDs 3 to 5, without demolishing of their shed and without putting boundary in between the property of decree holder and JDs 1 and 2, the entire team returned back. The JDs 1 and 2 have no objection in putting up boundary in between the property of the decree holder and that of the property of judgment debtors 1 and 2.

21) The Amin reported to the court that, the decree is executed and the 3rd judgment debtor is not possible to be evicted because she will commit suicide. Eventhough upto the High Court, after consideration of the entire matter, the decree was passed and directed to evict the JDs 3 to 5 from the property, the Amin acted as Supreme Court Judge and decided not to evict the JDs 3 to 5 from the property. The phrase that “Let the heaven may fall down, the verdict of a court shall be executed” is given a go by, by the Amin and the Execution Court.

 22) The decree holder became totally fed up and she told to me that she don’t want to get the delivery of the property and she had no more money to spent. Again another application was filed for initiating contempt of court proceedings against the City Police Commissioner and SHO. Notices were issued to the City Police Commissioner and to the SHO. They have not appeared at the court in person. Instead of that they deputed two police personnel and they arrived at the posting date in the court and requested time for filing objections and they went back. Thereafter several postings have elapsed. None of them turned round. The court is simply adjourning the matter without doing anything. Meanwhile the Presiding Officer was transferred and a new Presiding Officer was appointed. Before the new Officer, I submitted the entire history of the case and the new Officer was surprised.

 23) The Supreme Court says that execution proceedings have to be completed within a period of 6 months but in this case the E.P. is pending for the last more than 4 years. This is the fate of one among the execution petitions. The other execution petitions are pending before the various other courts are having much exchequer history than this E.P.

24) Somebody shall do something to minimize the procedure for the effective execution of a decree.

25) It is high time to appoint Execution Personnels with prescribed uniforms as a team for the execution of the decree, so as to minimize the period of execution. If an execution force is deputed for eviction, more than 95% of obstructions will not come. If the JD obstructs, the execution, the execution force may be given power to arrest them, to remove them from the place and to have produced them before the execution court. The execution proceedings have to continue. For that amendment of rules in the Civil Rules of Practice is highly necessary, for early completion of the execution proceedings.

26) So also the total 106 Rules in Order 21 have to be minimized by incorporating necessary amendments in Order 21 of Civil Procedure Code like the number of other Rules contained in other orders in the Civil Procedure Code. The number of civil cases are reducing year by year and nobody is dare enough to approach a civil court because they are aware that they will not get justice within two or three decades. Hence they are selecting other modes to settle their disputes.

27) For filing a suit ,the plaintiff has to pay court fee of 10% and legal benefit fee of 1% in the trial court. If plaintiff is unsuccessful in the trial court, for preferring 1st appeal, he has to pay the above percentage of court fee again. If he is unsuccessful then also,he has to again pay the above fees. In a national highway, if there are several bridges we have to pay toll once at the entry point alone. The Government is squeezing money exorbitantly from the poor litigants ,since there is nobody there to raise voice for them.

28) In corporate sectors,the financial institutions can realize their money by sending a notice to vacate the secured asset within 60 days and thereafter they can approach the Magistrate Court by remitting a small petition fee and can procure order of eviction with police protection and by way of appointing an Advocate Commissioner. They need not pay any court fee for realization of Crores of Rupees. If the unfortunate loanee wants to challenge the illegal act of the Financial Institutions, he may pay court fee and fight against the Bank by filing case at his expense before the Tribunal at Ernakulam.

29) In High Court and Supreme Court, the corporate bodies can file Writ Petitions by spending a court fee of `100/- alone and can get orders for realization of crores of Rupees, which facility is not available to the ordinary citizens.

The Legislature even went upto the extent of realization of court fee from the poor litigants who files cases under Section 138 of Negotiable Instruments Act and poor destitutes who approaches the Family Courts.

Nobody is there to protect the poor litigants and everybody is squeezing them.

NDPS Cases: Delay in Test Result and Bail

(By Ajit Joy, Advocate, High Court of Kerala)

email:ajit.joy@gmail.com

Anuraj v State of Kerala (2024 (3) KLT 619), authored by Justice C.S.Dias, on the NDPS Act 1985, is an important judgment from the rights perspective. The judgment touches on the inordinate delay in analysis of the seized substance by forensic labs upon which hinges the right of the accused to be considered for bail.The court mandates the right of the accused to have the test results as per Rules and in case of violation to move the court for an early test.  But has this judgment gone far enough? Should not the court have held such delay in test report in violation of the Rules a violation of fundamental rights and therefore an additional ground for grant of bail?

Rule that Lab Report in 14 days Mandatory

The Judgment is reassuring in stating that observance of Rule 14 of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 is mandatory. Rule 14 deals with the expeditious test of the sample of the seized material. As per the Rule, “the chemical laboratory shall submit its report to the court of Magistrate with a copy to the investigating officer within fifteen days from the date of receipt of the sample.”

Presently the Forensic Labs in the State of Kerala leave alone 15 days, take on an average 3-4 months for submission of reports according to the judgment. During this period an accused is languishing without opportunity for bail when the charge is for possession of commercial quantity. In the Anuraj case, a crime was registered for possession of 14.5 gms.of MDMA (Ecstacy). However, after the test, it turns out that the substance is Methamphetamine. 14.5 gms. of MDMA is commercial quantity,whereas, the same quantity of Methamphetamine is only intermediate quantity. The entitlement for bail is enlarged as soon as the quantity involved is less than commercial.

The judgment disturbingly points out to several such instances where cases registered for the substance MDMA has after lab tests, turned into Methamphetamine or other substances or not a narcotic at all. This underlines the crucial importance of laboratory tests.

The Court in this case repeatedly tried to elicit a response from the Kerala Government on upgrading infrastructure to comply with the mandate of Rule 14. However, the only assurance given was additional recruitment of a handful of forensic professionals in due course. Obviously, the situation on delayed test reports is therefore not bound to change anytime soon.

FIR in drug cases untrustworthy

The judgment disturbingly notes, “detecting officers form their opinions on the seized contraband based on their experience without any scientific test or chemical analysis.” While this is the stark reality, it is true that some Narcotic Units with certain city police or Excise departments and Customs have test kits. FIRs do mention that a specialized unit was called to the scene of crime where the weight was taken and test of the substance carried out. But these field tests at most can identify the broad category of the substance (opioid, coca based or synthetic) and not exactly what it is as per the Act. Again, the accuracy is very doubtful. Test could also include urine test to detect substance use, in which case the accused should be considered an addict rather than a trafficker. In most cases, the police simply depend on the accused statement on recording what the substance is.

In short, in a vast number of cases, the basis for registration of FIR and consequent remand is poor inaccurate science and conjectures. Subject to draconian provisions and the general notion of society on the drug scenario, there is mechanical conduct, resignation and often times severity within the judiciary while dealing with NDPS cases.

To improve reporting and the trustworthiness of the FIR, a few steps could be insisted upon. The quantity of the substance in NDPS offences being crucial, mention of the name and make of the weighing machine and details of its calibration to be recorded in the first information.Further, the name and make of the test kit, the expiry date of the chemicals/vials in it, the colour that turned up during the test, details of the urine test if any is also to be mentioned. Since the first information statement is mostly that of an officer in NDPS cases, such details in the statement ought to be insisted upon. A working accurate field-testing kit ought to be part of every detection. The provision of the presence of a Gazetted officer during search, is an important safeguard. An endorsement from such officer in his own words about the substance and quantity in the mahazar would add authenticity. Any attempt by an officer to name a substance in order to show a more serious offence or to be casual with the quantity should be checked by the courts from even from the stage of the production before the magistrate in the first instance. Given the propensity of the law enforcement to mark up the age of accused in NDPS cases, the statement forming the basis of the FIR should also refer to an id of the accused and the date of birth recorded in it.

Given the inadequacies at the time of detection, the importance of timely lab reports cannot be overemphasized. Timelines for such reports are now cast in black and white. Perhaps in the present case, the learned Judge did not go to the extent of stating that a delayed lab report would be a ground for bail because this issue is in the consideration of the Supreme Court. Nonetheless, it is not the judiciaries job to keep suspects incarcerated till systems improve.

Prong at Judiciary as Well

(By K.Ramakumar, Sr.Advocate, High Court of Kerala)

The recently reported Judgment of the Constitution Bench of the Supreme Court in Association for Democratic Reforms & Anr. v. Union of India & Ors. (2024 KLT OnLine 1454 (SC) = (2024) 5 SCC 1),on the validity of the Electoral Bonds, has put the right to information to a citizen on a much higher pedestal than what K.S.Puttaswamy (2017 (4) KLT 1 (SC) = (2017) 10 SCC 1) did. The Court after referring to various prominent Judgments on Article 19 of the Constitution of India has articulated its views in strident language,

“The right to vote is a constitutional and statutory right, grounded in Article 19(1)(a) of the Constitution, as the casting of a vote amounts to expression of an opinion by the voter. The citizens’ right to know stems from this very right, as meaningfully exercising choice by voting requires information. Representatives elected as a result of the votes cast in their favour, enact new, and amend existing laws, and when in power, take policy decisions. Access to information which can materially shape the citizens’ choices is necessary for them to have a say in how their lives are affected. Thus, the right to know is paramount for free and fair elections and democracy.”

“While secret ballots are integral to fostering free and fair elections, transparency – not secrecy – in funding of political parties is a prerequisite for free and fair elections. The confidentiality of the voting booth does not extend to the anonymity in contributions to political parties.”

The Court further held,

“Our discussion indicates that the first phase of the jurisprudence on the right to information in India focused on the close relationship between the right and open governance. The judgments in this phase were premised on the principle that the citizens have a duty to hold the Government of the day accountable for their actions and inactions, and they can effectively fulfil this duty only if the Government is open and not clothed in secrecy.”

Expanding the view, the Court observed as follows,

“This Court also recognized that freedom of speech and expression includes the right to acquire information which would enable people to debate on social, moral and political issues. These debates would not only foster the spirit of representative democracy but would also curb the prevalence of misinformation and monopolies on information. Thus, in the second phase, the Court went beyond viewing the purpose of freedom of speech and expression through the lens of holding the Government accountable, by recognising the inherent value in effective participation of the citizenry in democracy. This Court recognised that effective participation in democratic governance is not just a means to an end but is an end in itself. This interpretation of Article 19(1)(a) is in line with the now established position that fundamental freedoms and the Constitution as a whole seek to secure conditions for self-development at both an individual and group level.”

The Court declared the crucial aspect of expansion of the right to information,

“Which would be necessary to further participatory democracy in other forms and is not restricted to information about the functioning of the public officials.”

The Court thus concluded that the right to information is not just a means to an end, but an end in itself.

The implications of the aforesaid observations are far reaching and will cover every organ of the State including the Judiciary. In fact the question had arisen earlier in the well-known S.P.Gupta (S.P.Gupta v. Union of India - 1982 KLT OnLine 1002 (SC) = AIR 1982 SC 149) that the Government cannot withhold information regarding the appointment and extension of additional judges.

“In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate have no repercussion on public security. To cover with veil of secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.”

Could it not therefore be argued that a citizen has a right to know how persons who are selected to judge him are chosen; the parameters, criteria, eligibility, etc.? These are matters, according to the Electoral Bond case, which should be disclosed to a citizen as part of his right to know under Article 19. He has a right to know why a particular person is chosen and why a particular person is not.

“The appointment of a Judge of a High Court or the Supreme Court does not depend merely upon the professional or functional suitability of the person concerned in terms of experience or knowledge of law though this requirement is certainly important and vital and ignoring it might result in impairment of the efficiency of administration of justice, but also on several other considerations such as honesty, integrity and general pattern of behaviour which would ensure dispassionate and objective adjudication with an open mind, free and fearless approach to matters in issue, social acceptability of the person concerned to the high Judicial office in terms of current norms and ethos of the society, commitment to democracy and the rule of law, faith in the constitutional objectives indicating his approach towards the Preamble and the Directive Principles of State Policy, sympathy or absence thereof with the constitutional goals and the needs of an activist judicial system. These various considerations, apart from professional and functional suitability, have to be taken into account while appointing a Judge of a High Court or the Supreme Court and it is presumably on this account that the power of appointment is entrusted to the Executive.”

The process of secrecy has been adversely commented upon in S.P.Gupta’s case,

“This is the new democratic culture of an open society towards which every liberal democracy is moving and our country should be no exception. The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest.”

The Court had earlier expressed its propositions on the process of secrecy in State of U.P. v Raj Narain (1975 KLT OnLine 920 (SC) = (1975) 4 SCC 428).

“In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.”

How does a citizen get to know that he is getting the right type of persons falling within the parameters highlighted by the Apex Court? He will get to know of it only if he is permitted to exercise his right to know on the appointments made. He is entitled to ensure that, like those to whom he votes, eligible and proper persons alone are chosen to sit in judgment over him commanding mighty powers and the ineligible and unworthy do not reach there. This it is submitted is now part of the Fundamental Right of a citizen. It is un-understandable how one of the organs of the State, the Judiciary alone can be exempted from the exercise of such a Fundamental Right.

The Americans have a fine system of interviewing prospective nominees to the Supreme Court of United States by the Senate Committee. The Committee collects all details using the advancement in information technology from childhood till date. Candidates are subjected to severe cross examination by the representatives of the people with a view to make sure that only the fittest are appointed to the Supreme Court. The Senate represents the American people. We,the largest democracy of the world, can usefully emulate that exemplary practice to ensure that only the meritorious are included and the unmeritorious sidelined.

It is thus clear that the principles declared by the highest Court of the Country in Association for Democratic Reforms and Anr. v. Union of India and Ors. (Electoral Bond case) expanding the right to know, are squarely applicable to appointments in the Higher Judiciary including the High Court and Supreme Court.

The  IP- Fashion Imbroglio : Issues and Challenges

(By Dr.Raju Narayana Swamy, IAS)

Introduction

Fashion has been defined as “everything that is the current trend in a person’s appearance and attire, particularly in clothing, footwear and accessories”. It is more than just clothes, jewellery and shoes, but is a form of expression.To quote Ralph Lauren himself,^[1] “fashion is not necessarily about labels.  It’s not about brands.  It’s about somethingelse that comes from within you”.

IP and fashion are inextricably linked.  In fact, copyright and related rights, trademarks, patents, utility models, registered and unregistered designs, domain names, geographical indications, trade secrets, know-how etc., can all be used to protect fashion designs. In the Indian context, special mention should be made of the Copyright Act 1957, Industrial Designs Act 2000 and Trademark Act 1999.  To be more specific, sketch design and colour combination can be protected under the Copyright Act whereas article design can be protected under the Designs Act.

Legal provisions

No discussion on fashion and IP can be complete without a reference to Section 2(d)of the Designs Act and Section 15 of the Copyright Act.  The former defines designs to mean “only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined which in the finished article appeals to and is judged by the eye”.  It is noteworthy in this context that the Designs Act does not incorporate a specific definition of “fashion design”. The Act does not protect the entire garment, rather it only protects individual aspects like shape, pattern, colour etc., of the garment.  The need of the hour is a term that should facilitate the overall appearance of a particular piece of apparel rather than the current definition which protects each aspect of a garment individually.  As regards the latter, it stipulates that

(1) Copyright shall not subsist in any design which is registered under the Designs Act.  Thus designs that are capable of being registered under the Designs Act, 2000 and are registered according to the Act’s provisions are exclusively protected under the Designs Act. It needs to be mentioned here that for a design to be protected under the Designs Act, it should satisfy the conditions as laid down in Section 4 of the said Act.

(2) Copyright in any design, which is capable of being registered under the Designs Act but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or with his license, by any other person.  It also needs to be mentioned here that designs that are not eligible for registration under the Designs Act, 2000 because they are original artistic works are protected under the Copyright Act, 1957.

Special mention must be made in this regard of the case Ritika Private Limited v. Biba Apparels Private Limited in which a boutique apparel designer firm that was  the first to copyright a design which was commercially in use by the defendant sought an injunction. The Court ruled in favour of the defendant pointing out that the copyright was given under the Copyright Act of 1957 which states that if a design is reproduced more than fifty times, the designer loses his copyright on the work.  To be more specific, the Court looked into the legislative perspective and made a clear inference that the protection afforded to a work that is commercial in nature is less than that granted to a work of pure art and that they are not to be compared.

The Microfibres Case

A landmark case in the annals of fashion and IP is the Microfibres case ^[ii] wherein the Delhi High Court endeavoured to formulate the Indian legal stance on copyright protection for fashion designs.  In this case Microfibres, an American corporation involved in the business of selling and exporting upholstery materials sued the defendant contending that the Berne and Universal Copyright Conventions provided copyright protection to its artistic works in India and that the defendant’s textiles bear works that were identical or colourable imitations of the originals.  In fact, the claim of the plaintiff was that their work constituted original artistic work within the meaning of Section 2(c) of the Copyright Act, 1957 which would entitle them to enjoy copyright protection.  The defendants argued that the plaintiff’s artistic works were actually designs and fell within the scope of the Designs Act 2000.  To fortify their arguments, they pointed out that the plaintiff had registered some of the upholstery designs in UK under the local Designs Act and that the Indian Design Office had confirmed in writing that the subject works are registrable.

The Court accepted the argument that the only category in which fabric designs could potentially fit under S.2(c) of artistic creation is ‘painting’. The Court made a distinction between paintings in the meaning of M.F.Hussain’s works and fabric patterns holding that only the former may be classified as a “painting” under the concept of artistic work. The comparison to M.F.Hussain’s painting in the present case would be otiose.  In a design, the characteristics are merely ornamental and are applied to another object, as opposed to an artistic painting which has its own existence.  The goal with which such arrangements were undertaken in the present case (viz) to employ them in a commercial setting must not be overlooked.  Establishing a sixty year monopoly (as envisaged in Copyright Act) on industrial and commercial designs will render the law of designs obsolete and hamper competition, nay industrial innovation.

Given that a particular design had been manufactured more than fifty times in Microfibres, the Division Bench dismissed the appeals as frivolous and upheld the Single Judge’s decision that any copyright in the designs was abandoned upon such commercial production of the articles to which the design had been applied.

Rajesh Masrani v. Tahiliani Design(2008 (4) KLT OnLine 1142 (Del.))

This is a case which has a significant impact on the fashion industry. In this case the defendant asserted that the plaintiff cannot claim protection to their designs as the designs were not registered as per the Copyright Act, 1957. The Court noted that it is well established law that registration of the work is not mandatory.  The registration u/S.44 of the Act is not a prerequisite to pursuing remedies such as seeking an injunction to prevent infringement as well as damages.  It is merely there to provide prima facie verification of the details of the right as mentioned in Section 48. The Court also observed that the plaintiff’s work is an original artistic work entitled to protection under Section 2(c) of the Copyright Act and that as it cannot be registered under the Designs Act, the provisions of Section 15(2) of the Copyright Act do not apply.  The Court held that the plaintiff’s work is at least inventive and unique, if not novel and that the respondent had copied the work, which should not be allowed.  It was categorically held that registration is not necessary for claiming protection to designs under the Copyright Act.

Trademark protection for Fashion Design

In India, the Designs Act, 2000 under Section 2(d) while defining “design” expressly excludes the trademark. To put it a bit differently, a fashion design which is a trademark cannot be protection under the Designs Act.  But the judgment rendered by the Delhi High Court inMicolube India Ltd. v. Rakesh Kumar Trading as Saurabh Industries & Ors. ^[iii] has expanded the ambit of trademark protection for design.  The Full Bench by 2:1 majority held that the plaintiff would be  entitled  to institute an action of passing off in respect of a design used by him as a trademark provided the action contains the necessary ingredients to maintain such a proceeding.  The Court observed that: “post registration under Section 11 of the Designs Act there can be no limitation on its use as a trademark by the registrant of the design. The reason being : the use of a registered design as a trademark is not provided as a ground for its cancellation under Section 19 of the Designs Act.”

Thus a fashion design registered under the Designs Act not only gets protection under the Act but can also be protected by instituting an action for passing off provided that design was being used as a trademark post-registration.

Fashion Design & Piracy

Fashion design is the application of design and aesthetics beauty to the items of fashion.  Modern fashion design is divided into three basic categories: (1) haute couture, (2) ready-to-wear (Pret-a-Porter) and (3) mass market.  A couture garment is made to order for an individual customer from high quality, expensive fabric, seen with extreme attention to detail and finish, using time consuming techniques.  Ready- to-wear collections on the other hand are not made for individual customers, but are made in small quantities to guarantee exclusivity.  Both haute couture and ready to wear collections are presented in international catwalks. The Mass Market on the contrary caters for a wide range of customers using cheaper fabrics and simpler production techniques.

Piracy is the act of duplicating without permission.Unauthorized replication of original fashion designs is known as fashion design piracy.It can be divided into two broad categories-knock-offs and counterfeit. Knock-offs do not have the original company’s logo or mark on the product. To put it a bit differently, they are exact replicas of another designer’s style, but without IP infringement. This is in sharp contrast to counterfeiting which involves making replicas with the same brand name as original commodities. To be true to facts, there are two forms of counterfeiting in fashion industry: deceptive and non-deceptive. Deceptive counterfeiting occurs when a consumer is uninformed that he or she is purchasing a false or fraudulent object.^[v]  Non deceptive counterfeiting occurs when a customer buys a duplicate of the actual brand intentionally and with complete awareness.^[vi]  In our image-based buying society where shoppers seek the optimum mix of trend and affordability, we have the perfect environment for counterfeiting.  No wonder why counterfeiters are mostly targeting major fashion houses-Gucci, Prada and Adidas, to name few.

The Piracy Paradox

The “Piracy Paradox” was coined by Kal Raustiala and Christopher Sprigman to describe the idea that copying leads to new creations.^[vii]  Their contention is that imitation not only coexists with creativity but also encourages it. They point out the ‘angelic’ qualities of piracy and substantiate that piracy in fashion design may prove more a boon than a bane.Elucidating it further they write:-

“The absence of IPR protection for creative designs and the regime of free design appropriation speeds diffusion and induces more rapid obsolescence of fashion designs…  The fashion cycle is driven faster....by widespread design copying because copying erodes the positional qualities of fashion goods.  Designers in turn respond to this obsolescence with new designs.  In short, piracy paradoxically benefits designers by inducing more rapid turnover and additional sales”.

However the paradox is a weak argument for the endless duplication that occurs in the fashion apparel sector all over the globe.  In fact the paradox has been challenged especially by Hemphill and Suk (2009) who highlight that there are various forms of copying in the fashion industry - ranging from actual imitation to borrowing, remixing and reinterpreting.  Copying someone else’s work is unethical and theft is morally wrong in every aspect of law.  To put it a bit differently, the paradox runs counter to the notion of uniqueness, which is the driving force behind the fashion industry.  Another fundamental flow in the paradox is that it is predicated on the ‘trickle-down effect’ which assumes that fashion designs are copied from the top. This is erroneous as local enterprises which employ indigenous designers are the hardest hit by counterfeits.  Due to shortage of finances, these employees are unable to generate new designs in accordance with the Piracy Paradox.  Thus the Paradox overlooks the fact that plagiarism is a two-way street.

Claiming protection for Fashion Designs under the Indian Law: Issues and Challenges

          Claiming protection for fashion designs under the Indian law is not an easy process.  First, to claim protection under the Copyright Act, the work should qualify as an original artistic work (which is dealt with u/S.2(c)). As regards the Designs Act, it should fall under the category dealt u/S.2(d) of the Act. Apart from it, a design to get registration and consequently to get protection under the Designs Act must satisfy the following conditions as well:

1.   It must be new or original

2.   It must not have been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the date of filing for registration.

3.   It must be significantly distinguishable from known designs or combination of known designs

4.   It must not comprise or contain scandalous or obscene matter.

Under the Act, the proprietor (as explained in Section 2(j)) of a registered design gets copyright in the design which means the exclusive right to apply the design to any article in any class in which the design is registered.  Thus the Act affords protection not in a particular article but against a class of articles as enumerated in Schedule III of the Designs Rules, 2001. Goods manufactured by the fashion designers may fall under the following classes:-

(1)  Class 2: Articles of clothing and haberdashery

(2)  Class 3: Trade goods, cases, parasols and personal belongings, not elsewhere specified

(3)  Class 5: Textile piece-goods, artificial and natural sheet material.

(4)  Class 10: Clocks and watches and other measuring instruments, checking and signaling instruments

(5)  Class 11: Articles of adornment.

The overlapping between Designs Act and Copyright Act however has an adverse effect with regard to the protection of fashion designs.

It is also worth mentioning here that in the absence of registration the design law provides no protection and that the registration process is not only expensive but also time consuming. In India, the entire design registration procedure (from filling an application to receiving a certificate of registration) takes roughly 10 to 12 months.  This is troublesome because a garment’s anticipated life in a designer store is limited to one season or 3-4 months.^[viii]  In this situation, a designer is left with only one option-to apply for design registration well ahead of the anticipated date of market debut of his works. This leads to a new challenge (viz) maintaining the secrecy behind design elements. Moreover, once the registered design reaches the consumer market, the designer may discover that the design is unappreciated, rendering the entire design registration worthless.  It also needs to be mentioned here that though the Designs Act provides for recovery of damages vis-a-vis infringement of registered designs, the amount of money that can be collected is minimal (i.e.) not exceeding ` 50,000/-.  The grandeur associated with couture designs worth lakhs of rupees is mocked by this damage barrier.

 Fashion designers who have not registered their designs are unable to seek damages and injunction to prevent unauthorized copying of their designs.  Needless to say, in an era of fast-paced fashion sector development, where design houses release new collections of fashion goods on a regular basis-usually every season-fashion designers require automatic and instant protection for their designs that is not dependent on registration.^[ix]   It is here that the Indian law falters. Thus the Indian law denies designers the opportunity to test their unique interventions in the market, observe how they are received and then decide whether or not the design is worthy of registration.

The International Scenario

In comparison to the Designs Act of India, the EU’s 2002 Regulation (Council Regulation(EC) No.6/2002 of 12 December 2001 on Community Designs), the UK’s CDPA (Copyright, Designs and Patents Act) and the US’s ID3PA and IDPA (Innovative Design Protection and Piracy Prevention Act of 2011 and the Innovative Design Protection Act of 2012) establish an effective regime for the protection of the fashion design industry by providing protection against unregistered design copying. In fact, unregistered design is the real innovation of European Design Right.^[x]  The most vivid example regarding unregistered design protection is Karen Millen v. Dunnes Stores.^[xi]

(a) The EU context

           In the EU, industrial design rights are provided at both the Community level by virtue of the Community design and at the national level under individual national laws.  A community design is a unitary industrial designs right that has equal effect across the EU and regulated by the 2002 Regulation.The 2002 Regulation includes provisions relating to “registered community design protection” and “unregistered design protection”.  Although unregistered community design protection is shorter (three years) and limited in comparison to the term of the registered community design protection (twenty five years) it is more suitable to those industries which are producing large numbers of possibly short -lived designs over short periods of time, particularly fashion industry.

(b) The UK scenario

Fashion designers in the UK are protected from the evil of piracy as they may institute a suit for infringement of their design right and may get relief by way of damages, injunctions, accounts or otherwise under the CDPA without having to go through the pain of registration of design.  It is worth mentioning here that an unregistered design right is limited in nature.  It does not allow monopoly rights but the owner is protected from copying of his/her design.

(c)  France and Italy

          France has long considered fashion design to be a protectable form of expression.  It first granted protection to fashion design as an applied art under the Copyright Act of 1793 before extending protection in the Copyright Act of 1909 to patterns and other nonfunctional aspects.  It explicitly specifies fashion designs in listing protected works under Copyright Law. French copyright law grants moral and patrimonial rights to authors.  The former affirm the designer’s rights of integrity and attribution, extend to his or her heirs and do not expire. In fact, under Section L 121-9 of the French Intellectual Property Code, the designer has four main categories of moral rights: the droit de paternite, the droit au respect de l integrite de l ceuvre, the droit de divulgation, the droit de repentir ou de retrait. The latter grant the holder the exclusive rights of reproduction, distribution and financial returns from the sale of the design.

Under French Law, fashion designs receive protection upon creation as opposed to the laws of the European Community where rights attach at publication or registration.

Mention must be made here of the suit filed by Yves Saint Laurent against Ralph Lauren for infringement based upon moral and patrimonial rights, stemming from a haute couture dinner – jacket dress featured on a 1992 runway.^[xii] The Court found that the Ralph Lauren ready-to-wear version was so strikingly similar that an ordinary customer would not be able to tell the difference.  The striking similarly infringed upon the moral and patrimonial rights of Yves Saint Laurent as the right of attribution and rights of reproduction, distribution and financial returns were violated.

Like France, Italian fashion has a rich history and reputation for luxury. Copyright protection in Italy comes automatically with creation of the work. Under Italian copyright law, “works of industrial design displaying creative character and per se artistic value” are protected.^[xiii]   Ancillary to its statutory protections, Italy has established the Jury of Design, an independent body that determines whether a design is worthy of protection.^[xiv]  It is comprised of ten experts, jurists, designers, marketing experts and entrepreneurs. Though not binding, decisions of the Jury of Design are largely respected by both the parties.

(d) The US situation

           The US legislations are audacious attempts to protect fashion designs exclusively and facilitate increased design innovation and dissuading of knock offs.

Impact of technology on the fashion -- IP synergy

In New York, Intel partnered with numerous designers including Erin Fetherston,
Prabal Guning and Band of Outsiders to live broadcast their shows in virtual reality.  Similarly the London- based fast fashion retailer Topshop provided shoppers with headsets enabling them to see its catwalk show in real-time through a 3D virtual world.  Meanwhile designer Rebecca Minkoff turned to augmented reality via a partnership with shopping app Zeekit which allowed viewers to upload a picture of themselves to see what they would look like in their favourite items following the show. However one of the most interesting innovations came in mixed reality space. This time it was on creating a experience layed over the real world through holograms.This was used on a runway by the legendary Alexander Mc Queen when a hologram version of Kate Moss modeled a dramatic organza gown. Holograms have recently appeared in the fashion shows of Diesel, Guess and Ralph Lauren creating optical illusions and taking the fashion-technology relationship to the next level.

But the synergy does not stop there. In a fashion show in Milan, luxury designers Dolce and Gabbana did not trot out handbags on the arms of humans.  Instead drones did the heavy lifting, emerging from backstage.

All these raise innumerable questions on the fashion--IP law front. For instance, can holograms and drones be considered performers? Who is the author of the collective work created by artificial intelligence? These questions are to be viewed in the backdrop of the fact that traditionally the requirement of originality has been linked to the physical person of the author. To put it a bit differently, machines and AI seem to be excluded from the notion of authorship.  However this does not mean that algorithmic artworks cannot afford copyright protection as long as human choices are involved.  These questions assume all the more importance as rapid technological progress has exacerbated the inadequacy of IPRs against plagiarism. Introducing a separate sui generis protection for Al-generated works is perhaps the need of the hour.

Conclusion       

Ralph Lauren once said, “I do not design clothes.  I design dreams”.Fashion law incor-porates the legal questions inherent to the design, manufacture, distribution, marketingand promotion of all types of fashion products. Whether the subject is haute couture or ordinary clothing, this branch of law encompasses a wide variety of legal issues that accompany a fashion item throughout its lifecycle. Contract law, company law, tax law, international trade and customs law are of fundamental importance in defining the new area of law. But the most important of them all is IP law. For instance one cannot ignore the discussions related to the manipulation of photographed images made possible by programs such as Photoshop. Expressions through digital technology raise questions regarding transparency, veracity of commercial communications and consumer’s freedom of choice as new technologies could facilitate the sale of counterfeit goods. Needless to say, fashion is going through a metamorphosis. Even catwalks which have traditionally represented private sales channels for select wealthy customers have taken on a new function-entertaining the crowd rather than sale of chic clothing.  As the industry reinvents itself post the pandemic, the new frontiers thereof revamp, revitalize and rejuvenate the debate on the appropriateness of rights and remedies provided by IP law in this ever emerging field.

References

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2.Aditya Reddy & Goutham Shivshankar, Legal Protection for Fashion Design, 3 Indian J.Intell.Prop.L.85 (2010).

3.Pankaj Kumar, Fashion and Related Intellectual Property Rights Issues, llS  (Deemed to be University 84-95 (2019).

4.Hitton B; Choi C.J & Chen S. “The Ethics of counterfeiting in the Fashion Industry: Quality,
credence and profit Issues”, Journal of Business Ethics, 128,324-330(2004).

5.Cassandra Elrod, “ The Domino Effect: How Inadequate Intellectual Property Rights in the Fashion Industry Affect Global Sustainability”, Indiana Journal of Global Legal Studies (2017).

6.Alexandra Manfredi, Haute copyright Tailoring copyright protection to High-Profile Fashion Designs, 21 Cardozo J. Int’l & Comp.L.111(2012).

7. Nicole Giambarrese, “ The Look for less.  A survey of Intellectual Property Protections in the Fashion Industry”. 26 Touro L.Rev.243(2010).

8. Kimberly A.Harchuk, Fashion Design Protection:  The Eternal Plight of the “soft sculpture”, 4 Akron Intellectual property Law, 73(2010).

9.Tina Martin, “Fashion Law Needs Custom Tailored Protection for Designs”, 48 U.Balt.L.REV.453(2019).

10.Arianne Vanessa Josephine T.Jimnez, “ A Sui Genris System of Protection for  Exceptionally Original Fashion Designs”, 36 Loy.L.A.Ent, L.Rev,101(2016).

11.Emily S.Day, “Double Edged Scissors: Legal Protection for Fashion Designs”,  86 N.C.L.Rev.237, 2007-2008.

12.Hetherington S.L, “ Fashion Runaways are No Longer the public Domain:  Applying the common Law Right of Publicity to Haute Couture Fashion Design, “Hastings Comm & Ent I-J., 24,P-43(2001).

13.Antikainen,M, “ Copyright Protection and AI-Generated Works – A fight we have already lost?”, Luigi Carlo Ubertazzi (ed), AIDA: Annali italiani del diritto d’autore, della culture e dello
spettacolo XXVII  Giuffre Francis Lefebvre (2018).

14.Asmah, J, “ Stepping outside the box: Traditional Knowledge, folklore, indigenous textiles and cultural appropriation – Is there room for folklore. Protection under intellectual Property Law?” Doctoral thesis, University of Ottawa (2010).

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[i]     Ralph Lauren, Good Reads, https://www.good reads.com/quotes/538638 – fashion-is-not-necessarily-about-labels-it-is-not-about-brands.

[ii]    Microfibres Inc v. Giridhar & Co. 2006 (32) PTC 157(Del.).

[iii]   Case No.CS(OS)1446 of 2011 decided on 15.5.2013.

[iv]   Some authors add two more to this list-diffusion and bridge.

[v]    Nicole Giambarrese, The Look for Less: A survey of intellectual property protections in the Fashion Industry, 26 Tourol.Rev.243(2010).

[vi]   Philip Liu, An Open Shield:Antitrust Arguments against Extending copyright protection to Fashion Designs, 23

       INFO.&COMM.TECH.L.,159 (2014).

[vii]  Ibid.

[viii]  Kimberly A. Harchuck, Fashion Design Protection. The Eternal Plight of the soft sculpture, 4 AKRON INTELLPROP-073 (2010).

[ix]   Manaswini Raj, Flashing Badges and Design-copyright: A case comment, 22 NATL, Sch.India, Rev.199(2010).

[x]    Susanna Monseau, “ European Design Right : A Model for the Protection of All Designers from Piracy”, American Business Law. Journal, Vol 46, Issue 1, Spring 2011.

[xi]   Case C-345/13, CJEU, June 19,2014.

[xii]  Tribunal de commerce, Paris, May 18,1994, E.C.C.1994, 512(Fr).

[xiii]  Legge 22 aprile 1941, n.633 in G.U, Jul.7,1941,n.166,art 2(10) (lt.) available at http://wipo.int/wipolex/en/details.jsp?id=10311.

[xiv]       Mario Franzosi, Design Protection Italian Style, 1 J. Intellectual Property Law & Prac.599,602 (2006).