Whether Decisions of the Speaker of the Legislature Justifiable?

 

(By N. Dharmadan, Senior Advocate, High Court)

 

 

The office of Speaker is held in high esteem in British House of Commons. It has been adopted in America, Canada, Australia, India etc. The Speaker is the Presiding Officer in the Legislative body. He is an elected member of the House. He presides over the House and controls the proceedings. He is duty bound to uphold dignity, decency and decorum of House. He takes decisions in the course of debate or in respect of matters connected with the "proceedings of the House". His authority is supreme. Question is whether his decisions are justifiable or liable to be questioned in any Court.

 

Arts.105 and 194 deal with powers, privileges and immunities of the House and members of both Parliament and Legislatures. Sub-Art.(3) of both the above articles is the relevant provisions for discussion. It provides that powers, privileges and immunities of (i) the House, (ii) the members and (iii) the committees of the House, "shall be such as may be defined by law". This provision will apply in relation to persons and proceedings in the House. So far there is no such law defining and limiting powers, privileges and immunities and there is no definition of the term "proceedings" in the Constitution. So precedents alone would be the guide.

 

Sub-Art.(3) of both the Articles is modeled after powers, privilege and immunities of legislatures of the British Parliament before the enactment of the Constitution ie., 26 January 1950. The privileges of the House of Commons have been defined as:

 

"the sums of the fundamental rights of the House and of its individual Members as against the prerogative of the Crown, the authority of the ordinary courts of law and the special rights of House of Lords........  When any of these rights and immunities of the Members, individually, and of the assembly in its collective capacity, which are known by the general name of privileges, are disregarded or attacked by any individual or authority, the offence is called a breach of privilege, and is punishable under law of Parliament". (Quoted in May, Parliamentary Practices, 17th Edn. page 42 and 43).

 

The members of the House have freedom from civil arrest for forty days before and after the meeting of Parliament. They are not protected from arrest of criminal charges. But such arrest must be immediately communicated to the House. They have got full privilege and freedom of "speech, debate and proceedings". Freedom of speech as well as debate is inevitable for it is necessary for the proper functioning of the House.

 

"A proceeding in Parliament" in not defined either in the Constitution of India or its counter-part in England. It is not easy to define. This term had been defined in various statutes and interpreted in various senses. But the word "proceedings" in a general sense means an action or any step by which such an action is involved or initiated. It is not a technical expression with a definite meaning. "The term 'proceeding' is frequently used to denote a step in an action, and obviously it has that meaning in such phrases as 'proceeding in any case or matter". (Halsbury Laws of England, Vol. I page 5). "It includes everything said and done by a Member in the exercise of his functions as a member in a committee of either House as well as everything said or done in either House in transaction in the Parliamentary business". (May, Parliamentary Practices, page 62).

 

It has been finally established in Bradlaugh v. Cossett ((1884) 12 QB 271) that for all practical purposes the 'House of Common' is not subject to the control of the courts in its "administration of that part of statute law which has relation to its initial procedure". (May, Parliamentary Practices, page 60). It was further held in this case that "House of Parliament was not.a Court of justice, but the effect of its privilege to regulate its own internal concerns practically invested it with a judicial character when it had to apply to particular cases the provisions of Acts of Parliament, and if it came to a wrong conclusion, this resembled the error of a court whose decision was not subject to appeal".

 

In this connection it is pertinent to note that the power of the House to enforce its privileges and to commit for contempt is itself a privilege of the House. "The House had sole and exclusive jurisdiction to determine the existence and extent of its privilege" that to dispute those privileges by legal proceedings was a breach of privilege; and that for any court to assume to decide upon matters of privilege inconsistent with the determination of either House of Parliament was contrary to the law of Parliament". (Ibid, 159-60). So the House of Commons claims to be exclusive judge of its own privileges and its judgments are not subject to appeal. They cannot be scrutinized by any court. The decision of courts are not accepted as binding on the House in all matters of privilege, nor the decisions of the House by the Court.

 

Thus, according to Maitland, (Maitland. Constitutional History of England, page 378). "it would seem that the House has a legal power to turn into a contempt just what it pleases, and the same may be said of superior court of law". Dicay (Dicay, Alaw of Constitution, page 57) also said "Either House of Parliament has the fullest power over its own proceedings, and can, like the Court, commit for contempt any person who, in the judgment of the House, is guilty of insult or affront of the House", Sir Ivor Jennings (Sir Ivor Jennings - Law and the Constitution, page 114-115) clearly stated "Laws of England deal with three kinds of rules, legislation, the case law of the courts and the laws and custom of Parliament". With regard to the privileges of British House of Commons it has been held by the Privy Council, repeatedly, in Fenton v. Hampton, ((1858) 11 Moo. C.347), Doyle v. Falconer ((1866) 1 P.C. 329) and Supreme Court of Legislative Assembly of Victoria v. Glass ((1871) 3 P.C. 560) that "it has been well established in this country that the House of Commons has the right to be judges of themselves of what is contempt and to commit for that contempt by a warrant stating that the committing was for contempt of the House generally; without specifying what the character of contempt is".

 

From the above discussion and decisions of Privy Council it is to be presumed that as on 26.1.1950, the House of Commons had the "inherent power" to do whatever was necessary to carry on the business in the House in an orderly manner. So long as this is the position in England on the relevant date the very same power can be imported to India under Art.194(3) of the Constitution of India, since there is no separate law defining powers, privileges, immunities etc. The framers of the Constitution had drafted Art.194(3) only after adverting to the privileges existed in British House of Commons, analogous provisions in Government of India Act, 1935 and the above principle laid down by the Privy Council.

 

Dr. Ambedkar, the Chairman of the Drafting Committee, was fully aware of the then prevailing position of British House of Commons as on 26.1.1950 and he intended to confer the same power on the Indian Parliament and State legislatures. His arguments in the Constituent Assembly debate (Constitutional Assembly Debates Vol. Ill page 582) is very relevant. It is extracted below.

 

"If we were only concerned with these two things, namely freedom of speech and immunity from arrest, these matters could have been very easily mentioned in the article itself and we would have had no occasion to refer to the House of Commons. But the privileges which we speak of in relation to Parliament are much wider than the two privileges mentioned and which relate to individual members. The privileges of Parliament extend, for instance, to the rights of Parliament as against the public. Secondly, they also extend to rights as against the individual members. For instance, under the House of Commons' powers and privileges it is open to Parliament to convict any citizen for contempt of Parliament and when such privilege is exercised the jurisdiction of the court is ousted. That is an important privilege. Then again, it is open to Parliament to take action against any individual member of Parliament for anything that has been done by him which brings Parliament into disgrace. These are very grave matters - eg., to commit to prison. The right to lock up a citizen for what Parliament regards as contempt of itself is not an easy matter to define. Nor is it easy to say what are the acts and deeds of individual members which bring Parliament into disrepute".

 

Art.194(1) & (2) specifically deal with two of the privileges of the House of Common viz., freedom of speech and absolute immunity in respect of it and the right of the House to authorize publication of its proceedings. But the third one viz., the inherent power" and the view expressed by the Privy Council in the above cases explaining, "other proceedings" is silent in the constitution. However, it is stated in Art.194(3) that the powers, privileges and immunities of the House in respect of 'other matters' had been defined only with reference to the privileges of the British House of Commons as on 26.1.1950 till the legislature in India defined those privileges by law.

 

The rules made under Art.208, rule making power for regulating the procedure and conduct of business of the House, shall be subject to the provisions of the Constitution. Therefore such rules cannot contravene the provisions of fundamental rights in Part III of the Constitution. But it has been laid down by the Supreme Court ‘In re. Under Art.143 Constitution of India' (AIR 1965 SC 745) that Art.19(1)(a) does not control Art.194(1) & (2). Clause (2) of Art.194 makes the freedom under clause (1) unfettered and absolute. But there is a limitation in Art.194(3). That was made clear by Supreme Court. It was held that it is necessary to enquire whether the power, privilege and immunity claimed is existing as on 26.1.1950. If it does not exist no such privilege can be claimed. It is under these circumstances that the decisions of the Privy Council referred to above become relevant. It has been laid down that the House of Parliament has the fullest and absolute power over its own proceedings. In other words the House has "inherent power" to do whatever is necessary for carrying on the business proceedings of the House.

 

The Speaker's immunity for his actions and decision in connection with the proceedings of the House in exercise of his "inherent power" has not been specifically dealt with or examined by the Courts in India. In the light of the privileges of British House of Commons existing as on 26.1.1950 and the dictum laid down by the Privy Council Art.194(3) Speaker's privileges need a fresh look.

 

The earliest reported case in which there is some discussion about the scope of Art.194(3) is M.S.M. Sharma v. Sreekrishna Sinha (AIR 1959 SC 395). In this case the question pertaining to the validity of the resolution passed in the House of Bihar Legislature directing expulsion of a Member came up for consideration before the High Court. The Court held that the order is void since no opportunity was given to the affected party; but dismissed the case relying on Art.212(1). According the Court there was no irregularity. In appeal the Supreme Court by majority held that the later part of Art.193(3) confers on the House of Legislature all the powers, privileges and immunities of the House of Commons on the date of commencement of the Constitution. It has further held that Art.105(3) & 194(3) are Constitutional laws and therefore they are supreme as fundamental rights in Part III of the Constitution. The Court also adopted the principle of harmonious constructions and said that "the provisions of Art.19(1)(a), which are general, must yield to Art.194(1) and the later part of its clause 3, which are special.

 

The next important case dealing with issue is 'In re, under Art.143, Constitution of India'. It was a case of reference by the President formulating five questions under Art.143(1) of the Constitution, when the Full Bench of 28 Judges of Allahabad High Court passed an interim order on a petition challenging the resolution of the House to take action against two of the learned Judges of that Court, making the situation very tense on the verge of collusion between two important pillars of the State viz., the judiciary and Legislature. The Supreme Court while answering the reference stated that when there is a conflict between privilege under Art.194(3) and fundamental right such "conflict has to be resolved by harmonizing the two provisions. It would be wrong to say that the fundamental right must have precedence over the privilege simply because it is fundamental right or for any other reason".

 

It was made clear in the majority judgment that the Indian Constitution conceives the Judiciary and Legislature, as two different organs of the State having independent specified functions. So mutual respect is necessary to uphold the democratic spirit. However Art. 19(1)(a) would be subject to Art.194(3), but Art.21 well operate notwithstanding the provisions of Art.194(3). However, the Court, in para. 127, said that it did not propose to enter into a general discussion as to the applicability of all the fundamental rights vis-a-vis the privileges of the House and concluded stating that the conflict, if any, between the two important institutions should be resolved for keeping the prestige of them in public interest.

 

H.M. Seervai (H.M. Seervai - Constitutional Law of India, Vol. Ill, page 1835 & 1837) criticised this conclusion of the Supreme Court on two grounds (i) The conclusions of the Supreme Court in this case are conflicting for "such a decisions would be opposed to its own decision about resolving a conflict between two independent provisions of Constitution by applying the rule of harmonious construction" and (ii) the advisory opinion of the Supreme Court has no binding effect in its strict sense. According to Seervai the Privy Council (Alt. Gen for Ontario vs. At. Gen for Canada (1912) AC 571T 589)) has in a similar matter held that "an advisory opinion affects no rights and is no more than the opinion of law officers".

 

The Full Bench of the Kerala High Court in State of Kerala v. Sudarsan Babu (1963 KLT 764 (F.B.)) held that on limited ground, writ will lie against Speaker and that the Speaker is not immune from scrutiny by courts. There is no absolute immunity. According to the Court "to say that the act of the legislature of the State or any of its members or the Speaker would be immune from scrutiny by Courts under any circumstances is to pitch the claim too high; "petition under Art.226 would be maintainable even against the Legislature". This is a case in which High Court issued notice on a petition filed by the reporters of press, challenging the order of the Speaker denying pass to them. It seems that the Government had filed appeal against the judgment.

 

In P.V. Narasimha Rao v. State (AIR 1998 SC 2120) the question which arose for consideration was whether a Member of Parliament can claim immunity from prosecution on a charge of bribery in criminal court. The scope of Art.194(3) - 105(3), in the perspective in which it is examined above, was not at all an issue in that case. The accused in this case were alleged to have received bribe for giving vote in Parliament in a particular manner in terms of the request made to them. The Court considered only the claim of immunity under Art.105(2). The majority opinion is that "The immunity would not be available to give protection against liability for an act that precedes the making of the speech or giving of vote by a Member in Parliament................The liability for which immunity can be claimed under Art.105(2) is the liability that has arisen as a consequence of the speech that has been made or the vote that has been given in Parliament".

 

In the above cases the justifiability of the decision taken by the Speaker relating to the proceedings' of the House both inside or outside, was not an issue nor was it focused in the proper perspective for consideration in the light of the law laid down by the Privy Council.

 

An authoritative pronouncement on the scope and ambit of Art.194(3), importing the "inherent power" of the British Parliament as laid down by the Privy Council, is yet to be made by the Apex Court. Since the decision of the Speaker, outside the House on matters connected with the 'proceedings' of the House, was not under challenge so far it did not arise for specific consideration by the Apex Court.

 

The Speaker being the representative of dignity of the House would be compelled to take bona fide decisions both inside and outside the House while discharging his duties in the capacity as Speaker. They are not justifiable so long as there is no law defining the powers privileges and immunities of the House. So when once a privilege is held to exist it is for the House to judge "the occasion and its manner of exercise". The court cannot interfere with an erroneous decision of the Speaker of the House in respect of breach of privileges.

 

A smooth functioning of three institutions of the Government in the imperative need for progress in the Indian democracy. So when dealing with the questions affecting the powers, privileges and immunities under Art.194(3) the courts should adopt a creative and constructive role. A validation oriented approach should be the philosophy of the statutory construction to uphold the prestige of both the Judiciary and the Legislature. The Supreme Court has held that a mutual respect is necessary to uphold the democratic spirit. Reconciliation principle should be adopted by judges who are the "mediators between the societal tenses" and warring groups. It is to be borne in mind that Indian Constitution is a unique document. It upholds certain principles and values. One of such value is to maintain mutual respect to uphold democratic spirit when questions affecting conflicting rights of Judiciary and Legislature arise for consideration. Courts should show some judicial restraint to maintain mutual respect for avoiding collusion between the important institution of the executive, judiciary and legislature. This proposition has Presidential support.

 

Intellectual Property Rights - An Overview

 

(By Devan Ramachandran, Advocate, Ernakulam)

 

 

Preface

 

With the increased tempo of industrial development, liberalisation of Government policies including import of goods and services, and prospects of a number of projects aided by the World Bank, International Financial Institutions and friendly countries coming up during the next few years, India offers great opportunities for trade, foreign collaboration, technology transfer and equity participation.

 

In this environment, the protection of intellectual property has assumed considerable significance while negotiating collaborations and joint venture agreements for technology transfers and use of trademarks, patents and copy rights in India.

 

As was the case with China, India too showed signs of resistance to quick enforcement of internation intellectual property right (IPR) protection laws as demanded by the developed countries, particularly the U.S. China could get away on grounds that it is not a member of the World Trade Organisation (WTO), but India was required to comply. Under the terms of the WTO, India is required to implement WTO-standard IPR protection laws by 2005. India's general argument was that it does acknowledge in principle the case for strict IPR protection, but this can be done only in phases suited by its own ground reality. The reality is that absence of international IPR protection for some decades has spawned employment for millions, so an overnight clampdown on IPR violators would forment social unrest.

 

However, under pressure from its own domestic industry and the United States, India strengthened its copyright law in May 1994, placing it at par with international practice. The new law, which entered into force in May 1995, fully reflects the provisions of the Berne Convention on copyrights, to which India is a party. Based on its improved copyright protection, India's designation as a "priority foreign country" under the United States' Special-301 list was revoked and India was placed on the "priority watch list".

 

India's trademark protection is considered good by the US authorities, and has been raised to international standards with the passage of the new Trademark Act, 1999 that codifies existing court decisions on the use and protection of foreign trademarks, including service marks. Enforcement of trademark owner rights had been weak in the past, but is steadily improving as the courts and police respond to domestic concerns about the high cost of piracy to Indian rights' holders.

 

India's patent protection was earlier weak and had adverse effects on international pharmaceutical and chemical firms. But India has a different point of view. India's Patent Act prohibits product patents for any invention intended for use or capable of being used as a food, medicine, or drug or relating to substances prepared or produced by chemical processes. Consequently, many drugs invented by foreign companies are widely reproduced. However, as a signatory to the Uruguay Round of GATT, including its provisions on Trade-Related Intellectual Property Rights (TRIPS), India must introduce a comprehensive system of product patents no later than 2005.

 

Intellectual property

 

Intellectual property comprises broadly of industrial and literary properties. Trade Mark, Patent and Designs fall in the former category while Copyright falls in the latter. Copy right for literary and artistic creations, Patent for inventions, Trademark for brand identity and Design protection for aesthetic designs are the major intellectual properties. It also covers Information Technology, Confidential information, Trade secrets. Integrated circuits, and Plant varieties and Geographical Indications

 

I. Patent Laws in India

 

The full reach of the present system of patent laws in India, would become clear by the following illustration.

 

ABC is a pharmaceutical company engaged in the marketing, and research and development ("R & D") of pharmaceutical products. ABC is the owner of proprietary technology used in the development and manufacture of drug Z. This process was patented in the USA in 1994. Drug Z was launched worldwide in 1998 and was patented in the USA and the European Union in the same year. ABC proposes to carry on R&D in India on various products.

 

ABC wants to know whether it can protect its proprietary technology to manufacture drug Z in India. In addition, it wants to know whether drug Z can be patented in India. Further, ABC is concerned about protecting drugs developed by it in India.

 

Under the Indian Patents Act, 1970 ('the Act') certain inventions are not patentable (S.3 of the Act). These include inventions which are:

 

1. frivolous,

 

2. contrary to law or morality, or which cause serious prejudice to human, animal or plant life or health or to the environment,

 

3. relating to a mere discovery of scientific principal,

 

4. a method of agriculture or horticulture,

 

5. any process for the medicinal, surgical, curative or other treatment of human beings, animals or plants to render them free of disease.

 

Pursuant to signing TRIPS, the USA has been notified by the Indian Government as a convention country (See S.133 of the Act). An inventor, whose patent is registered in a convention country, seeking to register his patent in India can be denied registration under S.25 of the Act relating to the opposition of the grant of Patent. In this particular instance, if the application is not made within twelve months from the date of the first application for protection made in the convention country. (See S.25(1)(i) of the Act). In addition, the application can also be denied on the ground that the invention so far as claimed in any claim of the completed specification has been published before the priority date of the claim in any country. (S.25(1)(b) of the Act)

 

Therefore, since the US patent dates back to 1994, the Indian Patent Office will not register ABC's US patent in India - the patent application not having been made within twelve months from, the date of the US patent application.

 

As mentioned above, under the Act, only the process of manufacturing a drug is patentable. However, the actual drug is not patentable. (S.5(1)(a) read with S.2(1) of the Act). The Act was amended on 8 January 1999 in order to bring it in line with the Agreement on Trade Related Aspects of Intellectual Property Rights ("TRIPS"). With this amendment, product patent applications for pharmaceutical and agro-chemical products in respect of inventions made in India or abroad after 1 January 1995 are required to be accepted by the Indian Patent Office from 1 January 1995 under the "mail-box" mechanism and exclusive marketing rights ("EMRs" must be granted to an applicant who satisfies the prescribed conditions. (See S.24B of the Act). As a result, pharmaceutical and agro-chemical products get "pipe line" protection until the Act is amended to permit the grant of product patents in respect of pharmaceutical and agro-chemical products. Further, the inventor/applicant can distribute and sell the pharmaceutical and agro-chemical products in India for a period of five years or till the date of grant or rejection of the patent, whichever is earlier. (See S.24 A of the Act)

 

The EMR provisions in the Act apply only to those inventions in respect of which patent applications have been filed in India or abroad on or after 1 January 1995. Since Drug Z was launched worldwide in 1998 and was patented in the USA and the European Union in the same year, ABC will be able to make an application to patent Drug Z in India. In addition, it will also be able to apply for an EMR in respect of Drug Z.

 

ABC also proposes to carry on R & D in India. In this regard, the foregoing provisions apply. The, Act, after amendment, permits Indians to apply for patents abroad. Further, India has now ratified the Patent Co-operation Treaty. As a result, an inventor can file an international patent application in any country and designate other countries in which he wants the patent to be granted. The country in which the filing has taken place carries out an international inspection. The receiving patent office in India under the PCT is the Calcutta Patent Office. Therefore, ABC will be able to apply for EMRs in India in respect of inventions made in India. In addition, ABC can make PCT applications in Calcutta and obtain world-wide protection for its new inventions.

 

In the circumstances, the new patent regime will stimulate research and development in India. Companies like ABC who were hitherto hesitant do research in India will invest money into the pharmaceutical sector and bring in international best practices.

 

The problem of biopiracy

 

The patents on the anti-diabetic properties of 'karela', 'jamun', and "brinjal", the antibiotic properties of turmeric and the varieties of Basmati highlight the problem of biopiracy - the patenting of indigenous biodiversity-related knowledge in foreign countries.

 

The use of 'karela', 'jamun' and "brinjal" for control of diabetes is common knowledge and everyday practice in India. Their use in the treatment of diabetes is documented in authoritative treatises such as the "Wealth of India", the "Compendium of Indian Medicinal Plants" and the "Treatise on Indian Medicinal Plants".

 

This indigenous knowledge and use consists of "prior art". No patent should be given where prior art exists, since patents are supposed to be granted only for new inventions on the basis of novelty and non-obviousness. However, Art.102 of the U.S. Patent Law, which defines prior art, does not recognise technologies and methods in use in other countries as prior art. 'Prior art' and 'Prior use' in other countries were, therefore, systematically ignored in the U.S. laws on monopolies granted on the basis of claims to invention.

 

However, as regards turmeric, after a complex legal battle, the U.S. Patents and Trademarks Office ruled that a patent for turmeric issued to the University of Mississippi Medical Center in December 1993 was invalid because it was not a novel invention. The turmeric patent failed to satisfy the criteria of novelty as turmeric paste has been used to treat wounds and stomach infections for centuries by Indians.

 

The above mentioned patents are just some of the hundreds that the North has claimed by ignoring indigenous and existing knowledge.

 

Suits concerning Infringement of Patents

 

In India, the provisions relating to the suits concerning infringement of Patents is as provided under Chapter XVIII of the Act.

 

Penalties (Chapter 20 of the Act)

 

The various penalties provided under the Act are enumerated in Chapter 20 of the Act.

 

Publication and Information of patented inventions

 

The Controller shall issue periodically a publication of patented inventions containing such information as the Central Government may direct. (See S.145 of the Act). A person making a request to the Controller for information as respects any patent shall be entitled, subject to the payment of the prescribed fee, to have information supplied to him accordingly. (See S.153 of the Act)

 

II. Copyright Laws in India

 

The origin of copyright had a link with the invention of printing press by Gutenberg in the fifteenth century. With the easy multiplying facility made possible by the printing press, there was voluminous increase in the printing and distribution of books which, in turn, led to adoption of unfair practices such as unauthorised printing by competing printers.

 

Though piracy was born by the end of the fifteenth century, it was only in 1710 the first law on copyright in the modern sense of the term came into existence in England. The law which was known as 'Queen Anne' Statute' provided authors with the right to reprint their books for a certain number of years. The 1710 law was confined to the rights of authors of books only, and more particularly the right to reprint. It did not include other creative works such as paintings, drawings etc., which also by that time became targets of piracy, in addition to other aspects relating to books (eg. translation, dramatisation etc.). To overcome this problem a new enactment namely 'Engravers Act' came into existence in 1735. There followed a few more enactments in the subsequent periods and ultimately Copyright Act 1911 saw the light of the day.

 

Copyright

 

Copyright is a bundle of exclusive rights granted by statute to the author of the works to exploit or authorise the exploitation of the copyright work, based on international norms like Berne Convention, Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement and WIPO Copyright Treaty (WCT). The copyright works in which rights subsists are 'original' literary, dramatic, musical and artistic works, and cinematograph films and sound recording. The term copyright has been defined in S.14 of Copyright Act (the Act for short).

 

Copyright and International Relations

 

The scope of copyright is not confined merely to the arena of creativity and its economic exploitation in the country of its origin. It has emerged as a major factor in international relations. In the recent past, the trade relations between the US and China deteriorated considerably over the issue of protection of Intellectual Property Rights (IPR). The dispute took a serious turn when US trade groups wanted trade relations with China to be stopped completely. The importance of IPRs in general and copyright in particular in the relationships among the countries can be comprehended clearly from the above example.

 

Civil remedies and offences for infringement of copyright

 

The Act in Ss.51 and 52 deals with the instances of infringement of copyright. The various civil remedies for infringement are enumerated in Chapter XII of the Act. The offences are detailed in Chapter VIII of the Act.

 

Copyright Piracy in India-a perspective

 

Copyright piracy is a theft and therefore is a crime. But because of its white colour nature, many a time copyright piracy is not perceived as a crime at all, or at least not as serious as thefts are ordinarily considered. This is perhaps one of the greatest problems associated with the effective control of the piracy phenomenon, more so in a developing country like India. Our society condemns a bank robbery or even a small household theft. But when a software, on the development of which large investments were made, is copied illegally by millions, no serious note is being taken. This is because copyright piracy unlike most other thefts may not involve physical products and, therefore, in many occasions it remains intangible'. What is stolen may not be the physical product itself but the 'intellectual property', which go unnoticed or ignored in many instances.

 

The economic gain is certainly one of the motives and perhaps the most important among all. Copyright piracy after all is an economic phenomenon. The pirates can afford to sell their products at lower prices because, unlike the legitimate producers, they need not pay any levy eg., excise duty and sales tax etc. and also need not spend on advertising and other marketing infrastructure. For most of the ordinary end users also the price of the product remains the main consideration while buying.

 

The other important factor which may attract people to piracy field is the laxity in the country's copyright enforcement machinery. Copyright piracy is a cognizable offence as per the Copyright Act. But as in the case many similar laws, anti-piracy enforcement of law has remained very ineffective. In India, there is no serious threat of being caught and punished when found involved in piracy. The laxity in enforcement is the result of slackness on the part of the enforcement machinery, viz., the police on one hand and the passive attitudes on the part of rightholders on the other. The rightholders are also to be blamed for their "not so serious" attitude towards the piracy phenomenon.

 

III. Trademark laws in India

 

The Indian law of trademarks is enshrined in the Trade & Merchandise Marks Act, 1958 (hereinafter "the existing Act"). However, the existing Act is set to undergo a transformation to bring it in conformity with the TRIPS Agreement to which India is a signatory. A new statute ie., the Trade Mark Act, 1999 (hereafter, the "Act") has been enacted in India. However, the enforcement of the new Act is pending till a date is finalized by the Government of India.

 

At present, the protection of trademark is available only on physical goods or commodities traded. But under the new Act trademark registration would be extended to services also. In that event, a professional, like a lawyer or a doctor would be able to protect his specific services.

 

Selection of Trade Mark

 

The selection of the trade mark is the most important aspect of dispute prevention. The efficacy of a defense that may have to be taken in the event of a dispute would to a large and predominant extend depend on how effectively the trademark was selected. A few simple tips are enumerated below:

 

a. A trademark may be a word, letter, a device or numeral or any combination thereof. It is better if it is simple in design.

 

b. If it is a word it should be easy to speak, spell and remember.

 

c. The ideal word for a trade mark is an invented or coined word.

 

d. Words which are laudatory or which directly describes the character or quality of the goods should not be adopted.

 

e. Geographical names connected with the reputation or quality of the goods for which registration is sought shouldn't be adopted.

 

Procedure for Registration

 

After selecting a name, one has to apply for registration. However, before applying for the same, it would be sagacious to think about the following:

 

a. One may conduct a market survey to ascertain whether any identical or deceptively similar mark is used for the same goods by any other person in the market.

 

b. One should not imitate another person's trade mark or any other well known trade mark even if the goods are different.

 

c. Before applying for registration it is desirable to obtain preliminary advice regarding the distinctiveness of the mark from the Registrar.

 

d. Also a request can be made to the Trade Marks Registry to obtain an official report to ascertain whether any identical or deceptively similar trade mark exists or is pending.

 

e. Also a personal inspection or search through the records of the Trade Marks Registry may be done.

 

Benefits of registration of trade marks

 

Though registration of trademarks is not compulsory, it provides host of privileges and protection to the holder. A few are as below:

 

a. The exclusive right to use the trade mark in relation to the goods for which it is registered.

 

b. The right to take legal action against others who may infringe the registered trade mark or one resembling it in relation to similar goods.

 

c. In case the trade mark is unregistered, the onus to prove that somebody is infringing on that trade mark is on the owner of the trade mark, whereas in case of a registered trade mark, the onus is on the alleged infringer to prove that he has not infringed the registered trade mark.

 

d. Without registration, an owner of a trade mark cannot bring an action for infringement to protect the mark if it is copied by others. Suing for infringement of a trade mark is much simpler than launching a common law action for passing off to protect any unregistered trade mark.

 

Safeguards for the owner of a registered trade mark

 

a. He should use and renew the trade mark regularly and in time.

 

b. If his trade mark is copied by others, he should file a suit for infringement and passing off and also take criminal action.

 

c. He should keep a watch in respect of trade marks advertised in the Trade Marks Journal and institute opposition proceedings if identical or deceptively similar trade marks are published.

 

d. He should initiate rectification proceedings if an identical or deceptively similar trade mark is registered.

 

Convention application and international treaties

 

India has declared certain countries as convention countries, which afford to citizens of India similar privileges as granted to its own citizens. A person from a convention country, may within six months of making an application in his or her home country, apply for registration of the trademark in India. If such a trademark is accepted for registration, such foreign national will be deemed to have registered his or her trademark in India, from the same date on which he or she made application in his or her home country.

 

Protection of unregistered trade marks in India : Passing off action

 

The action against passing off is based on the principle that "a man may not sell his own goods under the pretence that they are the goods of another man." (N.R. Dongre v. Whirlpool Corporation (See (1996) 5 SCC 717). A passing off action is a direct subject matter of the law of tort or common law of right.

 

An action for infringement, which is a statutory right, is dependent on the validity of the registration of the mark. Unlike infringement, passing off is not a proprietary right in the name or the get-up, which has been misappropriated by the defendant. A passing off action is, therefore, independent of a statutory right and is established by evidence of reputation and goodwill of the business. (Harrods v. Harrodian School ((1996) RPC 697), as cited in P. Narayanan, Law of Trade Marks (Trade Marks Act, 1999) and Passing off 5th ed.) 500).

 

In a passing off action, the registration of the trade name or a similar mark is irrelevant. Here, the priority in adoption and use of trade mark is superior to priority in registration. (See Kishore Zarda Factory (P) Ltd. v. J.P. Tobacco House (AIR 1999 Delhi 172)).

 

IV. Designs Act, 2000

 

Design means only the features of shape, configuration, pattern or ornament or composition of lines or color or combination thereof applied to any article whether two dimensional or three dimensional or in both forms.

 

In India, designs are protected by two legal rights, namely registered designs and artistic copyright. Design registration gives the owner, a monopoly on his or her product, i.e., the right for a limited period to stop others from making, using or selling the product without their permission and is additional to any design right or copyright protection that may exist automatically in the design.

 

Essential requirements for the registration of 'Design' under the Designs Act, 2000:

 

(1) The design should be new or original, not previously published or used in any country before the date of application for registration. As an example: The known shape of "Kutub Minar" when applied to a cigarette, holder the same is registrable.

 

(2) The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an article. Thus, designs of industrial plans, layouts and installations are not registerable under the Act.

 

(3) The design should be applied or applicable to any article by any industrial process. Normally, designs of artistic nature like painting, sculptures and the like which are not produced in bulk by any industrial process are excluded from registration under the Act.

 

(4) The features of the design in the finished article should, appeal to and are judged, solely by the eye. This implies that the design must appear and should be visible on the finished article, for which it is meant. Thus, any design in the inside arrangement of a box, money purse or almirah may not be considered for showing such articles in the open state, as those articles are generally put in the market in the closed slate.

 

(5) Any mode or principle of construction or operation or anything which is in substance a mere mechanical device, would not be registerable design. For instance, a key having its novelty only in the shape of its corrugation or bend at the portion intended to engage with levers inside the lock associated with, cannot be registered as a design under the Act.

 

6) The design should not include any Trade Mark or property mark or artistic works as defined under the Copyright Act, 1957.

 

V. Biotechnology, Ayurveda and the Biological Diversity Bill, 2000

 

Biotechnology is the new mantra in the West. Billions of dollars are being pumped into universities engaged in biotechnology research, including research on genetics. India with its traditional systems of medicine has come into the limelight in a very big way.

 

Over the decades, there have been several instances of drugs sourced and isolated from ayurvedic herbs. In India, companies have launched many herbal remedies into the market. The Drugs & Cosmetics Act, 1940 (the "Drugs Act") and the Drugs and Cosmetics Rules, 1945 (the "Drugs Rules") prescribe the standards and quality, and regulate the import, manufacture, sale and distribution of all drugs including ayurvedic drugs in India.

 

Apart from the Drugs Act, biotechnology companies, especially foreign companies, seeking to harness India's traditional medicinal systems must keep in mind the pending Biological Diversity Bill, 2000 (the "Biological Bill"). The Biological Bill has its roots from the International Convention on Biological Diversity, which was adopted in 1993. The Biological Bill prohibits transfer of Indian genetic material outside the country without specific approval of the Government. Biological resources have been defined to include plants, animals and micro-organisms, or parts thereof, their genetic material and by-products, for actual or potential use, but do not include human genetic material.

 

In the same vein, biotechnology companies have to take into account the pending Protection of Plant Varieties and Farmers' Rights Bill, 1999 (the "Plant Bill"). The Plant Bill proposes to install an effective system of protection of rights of plant breeders and farmers in order to encourage the development of new varieties of plants. Once the Plant Bill is converted into an Act, a company proposing to use a particular plant, will have to verify whether the plant is registered by other breeders, and if registered, it will have to seek authorisation from the registered breeder of the plant (S.34 of the Bill).

 

Indian Government has recognised that Indian herbal remedies are much sought after in the West, and that there is a need to protect them. Instead of closing the doors on foreign biotechnology companies, the Government has come up with a profit sharing mechanism to ensure that Indian communities benefit from the commercialisation of Indian herbal drugs. This I believe is a laudable step in the right direction since it would be unsanguinary for us to shut our eyes to the rapid globalisation and the changes that we would face in the year 2005.

 

Christian Father's Liability to Pay for Maintenance of His Children

 

A Comment on Mathew Varghese v. Rosamma Varghese *

 

(By Dr. K.N. Chandrasekharan Pillai, Prof. & Dean, School of Legal Studies, C.U.S.A.T.)

 

 

The decision of the Kerala High Court in Mathew Varghese v. Rosamma Varghese assumes much importance for several reasons. Firstly, it overturned the Commissioner of Income Tax, Kerala v. P.M. Paily Pillai (1972 KLT 24) a Full Bench decision of yester years based on yet another old Division Bench decision in Chacko Daniel v. Daniel Joshua (1952 KLT 595). Secondly, the present Bench commanded to its aid almost all material on the subject to arrive at its decision. Thirdly, the Court has tried to exhaust all arguments that could be advanced in favour of its ruling. Fourthly, the Chief Justice rendered the decision in a lucid manner. He employs simple sentences which when read independently gives matter of fact statements. But, they are arranged in such a manner that when read together, the piece gives out deeper meaning with poetic rhythm. Fifthly, this decision updates the law on the question incorporating the changed values in the light of new developments in legal thinking throughout the world. Sixthly, though the decision is based on several grounds, the court seems to have found it necessary to make several dicta. Seventhly, the reasoning with dicta may have far reaching consequences.

 

It was yet another broken marriage of a NRI woman that gave rise to the case under comment. In April 1979, Ms. Rosamma, who was working in Germany, married Mathew Varghese. After having remained with the husband for a few days she flew back to Germany. The husband also went to Germany later. She delivered a premature son on October 13, 1980. The relationship got strained and even paternity of child became a cause of conflict between the husband and wife. She, her son and her father approached the Court for settling the issues. Among the several claims made by the wife including returning of her Streedhanam, ornaments etc., she claimed an amount of Rs.14,400/- towards the maintenance of the minor son for 36 months preceding the filing of the suit. It is this claim which became the bone of contention in the present decision.

 

Though it was inter alia alleged by the husband that the first plaintiff had illicit relations with many persons, that she had not conceived the child from him and that he was under no obligation; legal or moral, to maintain him, it was held by the Court that the documents produced showed that the husband had no complaint about the immoral life or of the legitimacy of the child. Thus the issue was decided against the husband. However, relying on Chacko Daniel, it was held that the defendant was not liable to pay the amount of Rs.14,400/- as the maintenance of the minor son because the Christian father was not liable in law to maintain his child.

 

The case came before a Single Bench by way of appeal and the Single Judge felt that the Full Bench decision in P.M. Paily Pillai was not in the correct perspective. He referred it to the Division Bench which in turn referred it to the Full Bench.

 

Adverting to the arguments for the appellant to the effect that the moral obligation has no relation to legal obligation and the various general submissions made by the amicus curiae (four in all and another) Justice Jawaharlal Gupta , Chief Justice gives the picture of man in small sentences arranged in a pattern thus:

 

"Man is highest product of his own history. He has been described as "the glory and the scandal of the universe". He reasons. But he is not always reasonable. He can be abject. Also august. He is limited in his nature, infinite in his desires. Man can behave like a beast. He can be mean and petty. He can also be like an angel. At once, grand and glorious" (Supra 1 at 12).

 

At another portion of the judgment, his characteristic style of writing is visible. At para 50 he again writes:-

 

"No doubt, we live in a world of changing values. Materialism has overtaken the man. Gold has become our God. Even matrimony has become a matter of money. Marriage is no longer a sacrament. It has become a contract. It is easily announced, denounced and renounced. It commences like the morning but perishes like a drop of dew. In some cases romance ceases with marriage. History commences. In this situation the fate of children caught in the maelstrom of material conflict" is a matter for concern. It cannot be subordinated to the outcome of the marital legal battle....." (Supra n.1 at 17).

 

In fact, in between these two paragraphs the Chief Justice by way of several references had concluded that morally and under statute law the Indian father whether a Hindu or Christian has to maintain his children (See discussions in paragraphs 30-41). In paragraph 41, Justice Gupta concludes thus:

 

"A father has to take care of his children so that God takes care of him. The command of the Holy Bible is clear and categorical. Man can neglect it only at his own peril. The fact that he is a Christian is of no consequence. It makes no difference".

 

The caste, faith or religion provide no rational basis for determining the paternal duties of any person. No scripture says that a living being shall not take care of its young ones....." (Supra n.1 at 16).

 

His Lordship dismissed the plea that in the absence of positive provision in personal law, the general principles of equity, justice and good conscience cannot be enforced by saying that equity being compilation of rules of righteousness could stand together with law. The Judge again pegs his argument on the universal human behaviour of taking care of his offspring. In fact throughout his judgment it is the moral or natural obligation which receives maximum treatment from him. This is so even when he deals with the Indian Constitution or statutes. He is harping the same knot right from the beginning to the end of his judgment. This gives an impression of the same point being repeated at several stages of reasoning. In fact, this has affected the organisation of the discourse in the judgment. His Lordship again said:-

 

"The concern for young one is universal. The duty to take care of the children has been duly recognised as an enforceable obligation in the entire civilised society. It appears that even in U.K., the position is not different. There has been a gradual change from a mere premise to actual performance. From words to action" (Ibid at 17).

 

Justice Gupta again travels through the submissions of the counsels and agrees with them that a custom permitting a father to disown his responsibility to maintain his children would be violation of Arts.21, 23-27 and 39. But even while resorting to constitution, he cabins all his arguments together buttressing his judgment. He refers to the English doctrine parens patriae and holds that it is applicable to the present case (Supra n.1 at 21). He summed up his decision:

 

"As already observed, the right to live and lead a life of dignity is a fundamental right in India. The child being non sui juris, the State and the Courts are bound to protect them. The father is a natural guardian. He is under a duty to maintain the child. The scriptures and the statutes recognize the right and the duty (Id).

 

Not satisfied with the authorities, the Chief Justice relied on international conventions. He found that the Government of India had already ratified the convention on children making it obligatory to pass legislation. It also found support in the submission with the Travancore Special Marriage and Succession Act, 1944 and the Children Act, 1972 (now defunct) also recognize child rights. Still the Court hastened to add a general statement thus:-

 

"Broadly speaking, whatever is morally wrong should not be legally right in law, which does not protect morality, cannot last for too long. It would be immoral and unfair for a father to neglect his child. He should not be permitted to do so by invoking the technicalities of law" (Supra n.1 at 29).

 

Though the Judge has made his conclusions in the final paragraphs on other grounds, it seems that the above statement also form part of the ratio of this decision and it could have far reaching consequences particularly in the fields having human rights overtones.

 

The relationship between law and morals, law and justice, constitutionalisation of issues and the interplay of human rights are very interesting areas of perennial legal discourse. Judges with integrity, intellect, imagination and innate humanism can fill in the interstices among them with new ideas and could be agents of new multidimensional development, or internecine destruction depending upon the efficiency and enthusiasm of successors. But good souls who take the initiative should be evaluated on their good intentions.

 

The judgment under comment is a landmark and should be welcomed.

______________________________________________________________________

 

*2003 (3) KLT 6 (F.B.) = I.L.R. 2003 (3) Kerala 1 (F.B.).

 

Government Employees and Their 'Right' to Strike

 

(By S. James Vincent, Advocate, High Court, Ernakulam)

 

 

In We, the People (1986, p.5), the late Mr. N.A. Palkhivala, talks about the four costly failures of the Government and the people, which in his view, are the direct causes of the poor performance of the economy. The most important of these, is the failure to maintain Law and Order. To quote him: "We have too much Government and too little administration; too many public servants and too little public service; too many controls and too little welfare; too many laws and too little justice". We had followed an economic system known as 'mixed economy', which proved to be a failure, because, quite against the expectation of the Government, the worst of the two systems, viz., Capitalism and Socialism, was the result, and the benefits did not reach the real beneficiary and were mostly swallowed by the politicians and the bureaucrats. In the 1990's the then Congress Ministry ushered in the liberal economic policy in the wake of globalisation. The present NDA Ministry has set about rebuilding India on this platform, which has evoked serious reaction and criticism from the workers, the Government employees, and Union leaders, presumably because their fringe benefits dwindled. Of late, the present Governments have had to introduce rigorous measures against over staffing, unproductive systems and wasteful expenditure. Some State Governments have also tried to do away with illogical and unjustifiable benefits like overtime wages, leave surrender salary, etc., which infuriated the Government employees and their Union leaders. The State Government in Tamil Nadu has partly succeeded in its attempt, resulting in the decision of the Supreme Court in T.K. Rangarajan v. Government of Tamil Nadu, 2003 (3) KLT 86 (SC).

 

The majority of Government servants forget that they constitute only 4% of the nation's populace, eating almost 60-80% of its resources 30-40 times its due. They work only 180 days a year for 365 days' salary. Sickness of Government servants and of their families are taken care of by the Government. They have travel facilities with family at Government expense in vacations. They have loans to purchase vehicles and buy or build houses at cheap rates of interest. Some of them are still not satisfied: they make fake claims and defraud the Treasury. They have Provident Funds and Group Insurance benefits; pension and gratuity. But if a common man goes to them for anything they collect bribes at fixed rates. The varieties of bribe and the modes of collection are myriad. They ignore the factory worker, the agricultural labourer, the self-employed man, and the handicapped and disadvantaged people. They do not go to office in time, and the attempt of the Government of Kerala to instal a punching machine in the Secretariat was resisted by the Associations. (See, Malayala Manorama, dated 20.5.2002). "Even the feeble attempts at economic and infrastructure reforms in the past ten years have completely bypassed bureaucracy. As a result, the country is slowly moving away from democracy towards a system of 'kleptocracy' with politicians, for whom democracy is nothing more than a tool to capture power and license to loot, at the centre of the orbit. Around them in the orbit are the civil servants, the police each feathering their own nest......In the event people must seriously consider dumping the present system of governance and opt for an alternative. Let bureaucrats who are maintained at a massive cost to the exchequer to guard India's democratic fabric beware before it is too late". (M.G. Devasahayam: Is India Drifting to 'Kleptocracy' ?, The Hindu dated 2.5.2002).

 

It is in this context that the Government of Kerala introduced certain economy measures, reducing the free benefits payable to the Government employees. They protested. No amount of assurance from the Chief Minister that, on improvement of the economy, the benefits shall be restored, weighed with them. The recalcitrant Union leaders called a strike, which lasted more than a month. The gravity of suffering of the people did not persuade the fatty employees to call off the strike. Only when a Division Bench of the Kerala High Court (presided over by B.N. Srikrishna C.J., as his Lordship then was) conveyed a bit of its mind at the hearing of the Writ Petitions filed by the Union leaders challenging the State ESMA, did the employees withdraw from the strike. The Government servants forget that discipline should be their birthmark, as they wield immense power. Similarly, when the Tamil Nadu Government, under a much stronger and decisive leadership, implemented similar measures in Tamil Nadu, the Unions remonstrated. They struck work. The State Government dismissed then en masse. The Unions remonstrated and filed Writ Petitions in the High Court, which were all dismissed. The Unions filed SLPs in the Supreme Court, which were dismissed by the controversial judgment, known as the Rangarajan case (2003). Consequent on this, Trade Unions and Left parties have protested. Rallies and demonstrations were held across the country. The final judgment of August 6 was in continuation of its July 24 direction which followed the Government's acceptance of a 'suggestion' from the Bench for the conditional reinstatement of the dismissed employees. The conditions were that the dismissed employees should tender unconditional apology for resorting to strike, and also an undertaking to abide by R.22 of the Tamil Nadu Government Servants' Conduct Rules, 1973 which prohibited strike by Government servants. Apparently, the order was based on the Government's contention that the strike was in violation of R.22. The Judges said that strikes "hold the State to ransom" and "cause heavy loss of man-days". At one stage, they observed that strike was the most misused weapon in the country. "Now, coming to the question of right to strike whether fundamental, statutory or equitable moral right - in our view, no such right exists with the Government Employees," the Judges said, and quoted from a number of its earlier judgments in support. The Bench recalled that in Kameshwar Prasad v. State of Bihar, (1962), a Constitution Bench had held as valid a rule that prohibited strikes on the ground that there was no fundamental right to resort to strike. It also referred to Radhey Sharma v. P.M.G., Nagpur (1965), upholding the validity of certain Sections of the Essential Services Maintenance Ordinance of 1960, which was invoked by the Union Government to deal with the postal employees' strike. The Bench noted that the Court had then observed that, "a perusal of Art.19(1)(a) (of the Constitution) shows that there is no fundamental right to strike". The Bench referred to a case arising out of a recent strike by lawyers in Ex-Capt. Harish Vppal v. Union of India, (2003) and noted: "Strike as a weapon is mostly misused, which resulted in chaos and total misadministration. Strike affects the society as a whole and particularly when two lakhs employees go on strike en masse, the entire administration comes to a grinding halt".

 

Mr. Jyoti Basu said that State Government employees had the right to strike and that "the West Bengal Government has already given the Government employees the right to strike by amending the British Act". Prakash Karat said: "The working class movement cannot accept this judicial assault on the basic rights of the workers and the citizens of the country". The Central Secretariat of the Communist Party of India described the judgment as a "judicial assault" on the democratic rights of the workers and employees who had won their rights, including the right to strike, after several years of struggle and sacrifice. The Attorney General, Soli Sorabjee said: "There can be horrendous situations in which the employees have no effective mechanism for redressal of their grievances and left with no option but to resort to strike.  Central trade union organisations have announced a series of agitations at several centers in the various States "to defend the working people's right to strike". (See S. Viswanathan: A Right Under Attack, Frontline, Vol. 20, August 16-29, 2003.) Though conscious of the fact that there have been earlier direct Constitution Bench decisions on the point from the year 1962, and though aware of the judicial discipline that 2- and 3-Judge Benches are bound by Constitution Bench decisions, even the Attorney General made indecorous criticism against the Judgment. (The Hindu, 11th & 19th August, 2003.) He even conveniently forgot that the present 2-Judge Bench decision has decided only about the right of Government employees to strike in the teeth of R. 22 of the Conduct Rules that prohibits strike, and not about the right of industrial employees to strike (which is prescribed by the Industrial Disputes Act, 1947 and the Trade Unions Act, 1926). Shah and Lakshmanan, JJ. have only followed and re-stated the law declared by the Constitution Bench of the Supreme Court in: (i) All India Bank Employees Association v. National Industrial Disputes Tribunal, AIR 1962 SC 171; (ii) Kameswar Prasad v. State of Bihar, AIR 1962 SC 1166; (iii) O.K. Gosh v. E.X. Joseph, AIR 1963 SC 812; (iv) Radhey ShyamSharmav. P.M.G.Nagpur, AIR 1965 SC 311; and (v) Ex-Cap. Harish Uppal v. Union of India, (2003) 2 SCC 45. In view of these binding decisions, it was only natural and legal that the present Bench constituting Shah and Lakshmanan, JJ. followed them and did not follow the later 3-Judge Bench decision in Gujarat Steel Tube's case (1980), or the 2-Judge Bench decision in B.R. Singh's case (1989). Almost all major critics, except Mr. M.N. Krishnamani, President of Supreme Court Bar Association (The Hindu, dated 19.8.2003), perversely and illogically lampooned the Judgment. None of the critics did mention about the binding effect of the Constitution Bench decisions of the 1960's. The Hindu in its Leader of 13.8.2003 started the crusade of castigation. It stated, "What is most disturbing about the Supreme Court's Judgment in the Tamil Nadu Government employees' case is the historical, iniquitous and democratically unsustainable position taken against the right to strike as a part of internationally recognized basic democratic rights........The Supreme Court's latest stance contrasts sadly with both the substance and spirit of earlier progressive rights-led rulings by the Apex Court, delivered by outstanding jurists of the stature of V.R. Krishna Iyer......." Dr. Rajeev Dhawan, speaking more blatantly stated: "No one argues that all strikes are legal or justified. Even the 1962-64 judgments, denying a constitutional right to strike, require examination. The lead judgments of 1961-62 say that the right to strike is not a part of the right to 'freedom of association'. .........Strikes and demonstrations are a democracy's hard-fought weapons against oppression. They cannot be wished away by a Supreme Court, which has hitherto supported their disciplined use. (The Right to Strike, The Hindu, dated 22.8.2003). The ostrich-like attempts made by the AG and Dr. Rajeev Dhawan are obviously deprecatory, as the criticism is beside the point and is not aimed at the truth. Maturity should be visible in the intellectual exercise: frustrated tirade without reason is fit only for the platform.

 

Soli Sorabjee has pointed it out correctly that the Supreme Court has no business to go into this issue" (Ibid. P. 16). Now, it is the turn of the journalist. Mr. V. Venkatesan wrote: "The Bench.......dealt with the issue of the right to strike, almost in a perfunctory manner......Despite the Bench's attempt to draw sustenance for its claim - that there is no fundamental right to strike- from the Supreme Court's earlier judgments, dating back to the 1960s, the question whether the right to strike can be construed as part of the freedom of expression has not been legally settled.....The August 6 judgment is in line with similar verdicts of the Supreme Court delivered in the recent past - all indicating a growing impatience with the exercise of the right to protest, to express dissent, and to demand the legitimate dues of workers". (Ibid P.20) But we are at a loss to understand how the industrial workers are aggrieved and why they should get agitated, as the Supreme Court has not considered in the Rangarajan case, their right to strike, which is governed by the Industrial Disputes Act, 1947 and the Trade Unions Act, 1926. The Supreme Court has only considered the right of the Government employees of Tamil Nadu to strike in the context of a Conduct Rule prohibiting such strikes. Venkatesan quotes from Harold Laski (Liberty in the Modern States, 1930) to drive home the point that "when trade unions seek for what they regard as justice, one of their most powerful sources of strength is the awakening of the slow and inert public to a sense of the position. Effectively to do this, in a real world, it must inconvenience the public; that awkward giant has no sense of its obligations until it is made uncomfortable". I feel that this might have been quoted before the Constitution Benches, which handed down the three decisions in the 1960's, and not before the 2-Judge Bench, which is bound to follow the earlier binding decisions. Very eminent Judges of caliber and compassion, such as P.B. Gajendragadkar, J., passed the decisions of the 1960s. In a democracy, when the supposedly best Judges express their opinion on the Bench, the rest are bound to follow it as part of the Rule of Law, lest anarchy is bound to follow. Harold Laski would not have weighed with even the British Courts; for, in Shah case (1983), when "the National Graphical Association had taken steps to organize mass pickets against employer Shah so as to prevent his delivery vans from leaving he obtained an injunction against NGA to restrain the mass picketing.   They disobeyed the injunction.... There was a pitched battle between the police and the demonstrators. Mr. Justice Eastham.....fined the NGA for contempt of court. At first £50,000, then £100,000 then £525,000. The NGA did not pay. So the court ordered their funds to be sequestrated to meet the fines. Although the NGA are said to have assets of £10,000,000, they could not long stand fines of that magnitude. They did talk of more mass picketing but wiser counsels prevailed. They did not attempt any more". (Lord Denning, Landmarks in the Law, 1984, p. 123) Anyway, Harold Laski was speaking about the average Englishman who would entrust a finding to the rightful owner by spending his own money, and not pocket it with the feeling that "finding is keeping". In India, we find the privileged Government employees swallowing the allowances of unemployed persons, handicapped persons and similar fringe benefits earmarked for the disadvantaged people living below the poverty line. The quotation from Laski is misplaced. The present day is such that everyone is intolerant and conscious of his own right alone. He works by the inch and wants by the yard. He is unaware of his duties and obligations. Venkatesan speaks high of the Gujarat Steel Tubes case (1980) decided by a Bench presided over by Justice V.R. Krishna Iyer, and wanted the present Bench to follow that and B.R. Singh's case (1989) both decided by 3-Judge Benches. Probably Mr. Venkatesan does not know that those 3-Judge Benches are bound to follow earlier Constitution Bench decisions, and not 3-Judge Bench decisions, if they are contrary to Constitution Bench decisions. If the 3-Judge Benches presided over by Krishna Iyer, J. (1980) and Ahmadi, J. (1989) brushed aside the binding Constitution Bench decisions, H.M. Sreevai, the most acclaimed constitutional expert, gives the answer that such decisions have no jurisprudential value and subsequent Benches are bound to ignore them as per incurium. In fact, these 2-and 3-Judge Bench decisions have made an unhealthy deviation. He says that Kameswar Prasad's case (1962) raised the question of the validity of R. 4-A (Bihar) which stated that "No Government servant shall participate in any demonstration or resort to any form of strike in connection with any mater pertaining to his condition of service". The Court held that the rule, in so far as it referred to strikes, was valid, and in so far as it referred to demonstrations, it was void. In fact, Seervai says that Kameswar Prasad was wrongly decided and is productive of public mischief and ought to be overruled. (Seervai: Constitutional Law of India, 5th ed., 1991, Vol.1, p. 816, §' 10.239).

 

Now it is the turn of the jurist. Justice Alladi Kuppuswami, being aware of and having noted all the decisions of the Supreme Court of 1960s awefully regrets: "Even if the judgment refers to the absence of statutory provision in the case of Tamil Nadu Government employees, it is respectfully submitted that no statutory provision is needed to enable employees to go on strike. If the right of an employee is denied by the employer or is interfered with, he has the right not to do work, i.e., to go on strike. If it is denied to a group of employees or all the employees, all of them can refuse to work for the employer (or go on strike) and a union representing the employees may ask them to go on strike.....In B.R. Singh's case, Justice Ahmadi observed that the right to strike is an important weapon in the armour of workers as a mode of redress. Therefore, no statutory provision is needed to confer on the employees the right to strike". In the same breath, Justice Kuppuswami says: "It is quite another matter if any statute or rule makes it illegal for the employees to go on strike unless and until the statute or rule is struck down... Even so, it is submitted that the Supreme Court is not right in saying that Government employees have no moral right to strike". (See, Right to Strike, The Hindu dated 10.9.2003). It is submitted with respect that the writer, who has been a Judge, should have been decisive. Having found that the Government employee has no right to strike, the writer has no justification to go further and speak of compassion.

 

The Conduct Rules have been framed to secure certain standards of conduct, which are essential for the proper working of the public service system. If the Government servant does not want the conduct rules to fetter his rights as a citizen qua citizen to free speech and expression or to form associations, he is free to exercise those rights. If, however, he decides to exercise those rights, such exercise may bring about the determination of his service with the State. As he has no fundamental right to remain in the service of the State, the rules do not deprive him of any fundamental right. The only question that can arise is the one under Art.311. (Seervai, Ibid, § 10.237). I feel that it is high time that Parliament took note of the antipathy on the part of the Government servants to the cause of the common man and of their corrupt nature, and to consider why the protection of Art.311 to Government servants should continue. Let us conclude with a quotation from Palkhiwala about strikes:-

 

"The question whether in a free democracy strikes can be banned is of utmost importance, because it exemplifies the distinction between a democracy which has just attained majority and a mature democracy which is rich in traditions and in standards of public behaviour. There were long periods in our country's hoary history when there were very few laws, but the people practiced the ideal of obedience to the unenforceable. In India, for generations people lived without Government. There was no Central Government, not even an effective regional Government, but life went on.... Let us now consider specifically the right to strike and the moral validity of a law banning strikes. The basic question is whether a Government, which is concerned with the interests of the working class, can pass a law preventing the exercise of the right to strike. The most significant fact is that in countries which represent the dictatorship of the proletariat, where the working classes themselves are supposed to be in power, strikes are totally and absolutely banned. In communist countries people inciting or taking part in strikes are promptly imprisoned or otherwise removed. This should make you pause and ponder. If strikes are banned in States where the workers are supposed to be saddle, surely there is some wisdom behind the view that a handful of individuals cannot, for their selfish gain, hold the whole society to ransom.....The economic situation in India is so disturbing that as a temporary measure, all strikes and lockouts, and all other modes of action savouring of physical force and coercion, either on the part of labour or on the part of management, should be totally banned by law in every industry for a period of at least two years.....In those countries where people are mature enough to practice obedience to the unenforceable, there is no need for a law to ban strikes or the use of physical force in industrial disputes" (op. cit. pp. 29-31).

 

The employees' organisations and trade unions have tried for a review of the judgment, without success. The tirade has started again. Justice Krishna Iyer says that "within socially sensitive bounds and liberal legal limits, the right to strike has a permissible home in Indian Jurisprudence". (Ban on Strikes: A Judicial Excess?, The Hindu, 2-10-2003). He has continued his judicial philosophy in his Blanket Ban on Strikes by Labour - A Judicial Excess? (2003 (3) KLT Jl. 34). He seems to argue a new case for the Tamil Nadu Government servants that they are "workers" under the JD Act and, hence, the Bangalore Water Supply case (AIR 1978 SC 548) would give them the right to strike, as a Government Departments would constitute "industry". Whether there is any legal basis for this, is a matter for study. In Kerala, the rules have been amended and the benefits under the JD Act have been excluded, pursuant to Kalyani's case (FB) (1982 KLT 417). We do not know how many States have such rules. If so, how is the ID Act applicable to the Government servants? These kinds of advice given gratis, by a great judicial mind, it is respectfully submitted, can only confuse the issue. A noted politician and Trade Union lawyer, Mr. Thamban Thomas has also entered the fray. He says that workers have a statutory right to strike. (Impact of Supreme Court Judgment-Banning Strike by Workers, 2003 (3) KLT Jl. 44) No doubt, there is; and who disputes? The only dispute is whether Government servants, bound by the Conducts Rules and other Service Rules, have the right to strike. The Supreme Court has always held that they do not have. Surprisingly, the latest news is that the Hon'ble Supreme Court is proposing to re-consider the decision and has ordered notice on the Writ Petition filed by AITUC {The Hindu, dated 8.11.2003). However, it is not clear from the report as to whether the classification required is about the right of the industrial worker to strike or it is that of the government employee to strike. My humble opinion is that they be told unambiguously what the earlier Constitution Benches have said. They should also be told that any citizen aggrieved by the destruction of public property, is at liberty to move the court and realize damages, as provided in the Prevention of Damage to Public Property Act, Central Act 3 of 1984, in case the strikers damage or destroy public property or cause any mischief. The public as of now is not fully aware of this statute and its efficacy. The Supreme Court of India has not, to the knowledge of the author, spoken about the constitutionality of the legislation. But, the US Supreme Court, in relation to a similar statute passed by the State of Mississippi, has held that the First Amendment (similar to our Art.I9) did not bar recovery from those who engaged in violence or threats of violence for losses proximately caused by their unlawful conduct. (National Association for the Advancement of Coloured People v. Claiborne Hardware Company, (1982) 458 US 886 = 73 L Ed 2d 1215).

 

A.P. Law for Outsourcing of Non-Core Activity –

A Step in the Right Direction

 

(By R. Jayarajan, Dy. Manager (Law) & Estate Officer NTPC, Kayamkulam)

 

 

Introduction

 

The legislative wisdom demonstrated by A.P. Assembly in amending certain very vital provisions of the Contract Labour (Regulation and Abolition Act 1970) is highly laudable. This is an area where politicians seldom do anything. This piece of legislation might be termed as "Draconian" by the representatives of the working class as it may appear to be a retrograde step which may result in the revival of old concept of hire and fire rule. But considering the change in the global scenario, acute unemployment and all pervading lethargy of regular employees and also the tendency of the Government to increase the retirement age to overcome economic crisis and also that the increasing tendency of the organized regular employees in the Government and Public Sector to take the common people to ransom by declaring strike, go slow, tools down, pens down and what not, all sensible persons should welcome this bold step initiated by the A.P. Government which is worth emulating by other State Governments.

 

State legislations on a subject hitherto being governed by a Central Act is bit difficult. "Labour" is a subject appearing in the Concurrent List of the 7th Schedule of the Constitution. As such both Central and State Governments can legislate. But whenever a State Legislation comes in to conflict with a Central Legislation on the same subject, the State Legislation will be rendered void to the extent the provisions are inconsistent with the Central Act. (This being the position of interpretation when the vires of the Act challenged). A.P. Government has got the assent of the President of India for the said Act and the same was published in the gazette and becomes an Act in the State of Andhra Pradesh. It is worthwhile to mention here that the Central Government has already seized off this matter long back but due to variety of reasons the legislation could not see the light of the day but from any time now the Central Government may pass the Act amending the provisions of Central Act or the Central Government now can very cleverly throw this difficult task of liberalizing the deployment of contract labour to the respective States citing the example of Andhra Pradesh. The Government of Karnataka and Maharashtra has already initiated steps in this direction.

 

Central Act

 

The single major hurdle in the Act as far as an Industry/Principal employer is concerned is the provision under S.10 which prohibits employment of persons in perennial nature of jobs. The judicial pronouncements and interpretations made the task of deployment of contract labour very difficult for the employers. For an establishment engaged in a particular manufacturing or generation process a lot of activities will be there which can be termed as incidental to the main activity which may not warrant posting of regular labour, but at the same time are off perennial nature. For any industry, the work of horticulture, housekeeping, sanitation, maintenance of plant and equipment, security, canteen etc. are of perennial nature. Deploying regular employees for these type of works will out number the number of employees required in the core activity of the employer which is not a healthy practice for the survival of the industry. Moreover our past experience has proved beyond doubt that the outsourcing of peripheral jobs will increase the quality and efficiency of the job which will create more employment though for short duration instead of a few employment for longer duration. The Central Act because of its stringent provisions augmented by the judicial pronouncements made the employer to practice a miserly approach in the deployment of labour due to the threat of regularisation thereby limiting the employment opportunity. Further employer will shy away from the responsibility of directly providing various welfare benefits to the employees for the reason that the registration of contract labour under various Act like ESI and PF will ultimately prove detrimental to the principal employer when the question of regularisation comes before a court of law.

 

Salient Features of the New Amendment

 

The Contract Labour (Regulation and Abolition) (Andhra Pradesh Amendment) Act 2003 contains 6 sections. S.1 deals with the short title, extent and commencement.

 

S.2 is the most important Section by which a clause (dd) is introduced in the S.2 of the old Act namely, the definition. The crux of the Act is this Section, the S.2 (dd) which defines a "Core Activity of an Establishment" as Core activity means any activity for which the establishment is set up and includes any activity which is essential or necessary to the core activity. Further there is an exclusion clause, sub-s.(1) to (12) which excludes almost all activity which are incidental to the core activity which has been a 'perennial headache' to the principal employer since coming into force of the Central Act. Here the non-core activity excluded as per Act with a view to outsource the work are:

 

1) Sanitation works, including sweeping, cleaning, dusting and collection and disposal of all kinds of wastes.

 

2) Watch and ward services including security services.

 

3) Canteen and Catering services.

 

4) Loading and un-loading operations.

 

5) Running of Hospitals, Educational & Training Institutions, Guest Houses, Clubs and like where they are in the nature of support services of an Establishment.

 

6) Courier Services which are in nature of support services of an Establishment.  -

 

7) Civil and other constructional works, including maintenance.

 

8) Gardening and maintenance of lawns etc.

 

9) House keeping and laundry services etc., where they are in nature of support services of an establishment.

 

10) Transport services including Ambulance services;

 

11) Any activity of intermittent in nature even if that constitutes a core activity of an Establishment and

 

12) Any other activity which is incidental to the core activity.

 

However, a word of caution is also incorporated in the section in the form of proviso which says "provided that the above activities by themselves are not" core Activities of such establishment which means any establishment exclusively set up for any of the non-core activities mentioned above is excluded from the purview of the Act as non-core activity becomes the core activity of that establishment.

 

The most important section in the new Act is S. 4 which replaces the S.10 of the Central Act. Except the title namely "prohibition of employment of contract labour" the entire section is totally recast and simplified. The sub-s.(1) in categorical terms prohibits employment of contract labour in Core Activities. But as per the section 10 of the Central Act the following legal steps are to the complied before appropriate Government prohibit contract labour.

 

1. Consultation with Central Board or State Board as the case may be.

 

2. Notification in the official Gazette to that effect.

 

Before notification, the appropriate Government shall assess the conditions of work and benefits and other relevant factors with respect to the Contract Labour to ascertain the parameters mentioned in sub-s.(2) (a) to (d) of S.(10) namely, perennial nature of job etc.

 

Under S.10 of the Central Act once a notification is issued after complying with the requirements of S.10, the prohibition comes into force. But under the new Act the prohibition of employment in contract labour in core-activity is prohibited from the day the Act comes into force.

 

Further under the new Act of Andhra Pradesh under certain circumstances, the principal employer can engage contract labour directly or through a contractor even in core activity, like:

 

a) the normal functioning of the establishment is such that the activity is ordinarily done through contractors,

 

b) the activities are such that they do not require full time workers for the major portion of the working hours in a day or for longer periods as the case may be,

 

c) any sudden increase of volume of work in the core-activity which needs to be accomplished in a specified time;

 

In other words, under the new Act there is no activity where the deployment of contract labour is prohibited.

 

Other Sections of the new Act is either ancillary or to facilitate the implementation of the Act which may not need any elaborate discussion.

 

Advantages

 

The Act did not compromise on any of the welfare provisions envisaged for the labour under the Central Act. Since the concept of core and non-core activities are clearly spelt out, future regularisation of contract labour enmasse on account of interpretations of Act/Judicial pronouncement may not come unexpectedly as has happened in the case of few public sector undertakings in view of the various verdicts of the court.

 

The employer without fear or favour can get the best work force from the market for non-core activities which ultimately helps in the efficiency and economic stability of the organisation.

 

The employer can concentrate on selection of right people in the core activities .instead of dumping the organisation with people in the non-core area. The size of the organisation will come in handy which will increase the efficiency.

 

The employer can deploy any number of people in any non-core activity which will create more employment opportunity for the labour in the unorganized sector. This will stop the practice cornering the attractive regular jobs by a handful of people.

 

Welfare provisions are kept intact and employer can directly involve in extending the facilities such as ESI, PF in non-core area also which employer often avoid due to stringent legal provisions regarding regularisation of contract labour.

 

Disadvantages

 

Though the legislation prohibits employment of contract labour in core-activities it allows employment of contract labour under certain contingencies in the core activities which the principal employer may use as a shield to deploy contract labour in core activities also instead of regular employees. Employer may use this provision to introduce retrenchment schemes to eliminate regular employees even in the core-areas and promote contract deployment instead. Having allowed deployment of contract labour in the non-core area the legislation should have fixed the responsibility of providing welfare measures squarely and directly on the principal employer.

 

The penal provisions for non-compliance of welfare provisions should have been made more stringent.

 

Unless the law is made applicable uniformly to all States, a Centrally controlled multi unit organization having units in different States may have to adopt different strategy for deploying contract labour for different units.

 

Conclusion

 

Considering the lethargy and way of working of Government Servants, Public Sector Employees and those who are in the secured employment, this regulation is a step in the right direction. This will increase the quality and output of the employee to larger extent and increase job opportunity in the area of service functions benefiting the organized unemployed youth both skilled and unskilled.