Transborder Geographical Indications and PISCO : Lessons to be Learnt

(By Dr. Raju Narayana Swamy, IAS)
E-mail : narayanan5@ias.nic.in      Mob. 9447010602

Geographical Indication: The Concept

Geographical Indication (GI) is a category of intellectual property rights with collective ownership.  It is a sign used on goods that have a specific geographical origin and possess qualities, reputation or characteristics that are essentially attributable to that place of origin.₁ The special characteristics, quality or reputation may be due to natural factors (raw material, soil, regional climate, temperature, moisture etc) or the method of manufacture or preparation of the product (such as traditional production methods) or other human factors (such as concentration of similar businesses in the same region). The existence of a GI registration on a product is meant to enable producers within a collective group to capture a premium for their products by also preventing members of the group from arbitrarily changing the product quality.₂

Classic examples in this regard include Kancheepuram Silk Saree, PochampallyIkat, Darjeeling Tea, Balaramapuram Handloom and Aranmula Kannadi. ₃

Different definitions of geographical indication

Unlike other categories of intellectual property rights such as patents or trademarks where there is a general definition accepted worldwide, in the case of geographical indication there is no unique definition or single terminology.  This is because of the diverse ways in which the protection of GI has evolved under national laws.  The following are the conventional definitions which can be found in literature:-

a) Definition in the TRIPS Agreement

Article 22(1) of the WTO Agreement of Trade Related Aspects of Intellectual Property Rights concluded as part of the Uruguay Round trade negotiations, defines geographical indications as “Indications which identify a good as originating in the territory of a Member,  or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”

b) Definition as per European Commission Regulation on the Protection of Geogra-phical Indications, Designations of Origin and Certificates of Specific Character for Agricultural Products and foodstuffs (Council Regulation 2081/92 of 14th July 1992)

For the purposes of this regulation, geographical indication is defined as

        “...being the name of a region, a specific place or, in exceptional cases, a  country, used to describe an agricultural product or foodstuff:

- originating in that region, specific place or country and

- which possesses a specific quality, reputation or other characteristics attributable to that geographical origin.... the geographical link must occur in at least one of the stages of production and/or processing and/or preparation of which takes place in the defined geographical area.”

c) Definition as per North America Free Trade Agreement (NAFTA)

For the purposes of this Agreement, geographical indication means “any indication that identifies a good as originating in the territory of a Party, or a region or locality in that territory, where a particular quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”

d) Definition as per the Geographical Indications of goods (Registration and Protection) Act 1999 of India Section 2(e) of the Act reads as :

“ ‘Geographical indication’, in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of  such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned taken place in such territory, region or locality as the case may be”.

Trademarks v. GIs

Both trademarks and GIs are distinctive symbols.  Moreover both differentiate some products from others.

However, trademarks differentiate products made by different producers unlike GIs which differentiate one group of products from others that do not come from the region it protects.  To put it a bit differently, while GIs differentiate goods originating from a particular place, trademarks differentiate products (goods and services) originating from a particular person or business unit such as a company.  This property of GI makes it a collective mark.

Another difference is that trademarks arise from the creative genius of man while GIs are not created -they are there in nature.

A third difference is that unlike the case of trademark, social recognition must already be there before the idea and need for their protection arise. ₄Further, it is possible to assign or license a trademark to another person, irrespective of his geographical location.  On the other hand, a GI can only be assigned or licensed to a person based in the specific geographical area signified by the GI and who can produce goods in conformity with the standards represented by the particular GI

Difference between GI and Trademark

Rights Provided by GI

A geographical indication right enables those who have  the right to use the indication to prevent its use by a third party whose product does not conform to the applicable standards. For example in the jurisdictions wherein the Darjeeling GI is protected, producers of Darjeeling tea can exclude the use of the term ‘Darjeeling ‘ for tea not grown in their tea gardens or not produced according to the standards set out in the code of practice for the GI.

In fact, GIs backed up by solid business management can bring with them

      a) more added value to the product

      b) competitive advantage

      c) a strengthened brand

      d) increased export opportunities.

The rights to GI are enforced by the application of national legislation, typically in a court of law.  The right to take action could vest with a competent authority, the public prosecutor or any interested party-a natural person or a legal entity.  The sanctions provided for in national legislation could be civil (injunctions, actions for damages etc), criminal or administrative.

International Regime of Geographical Indications

The journey of GIs from indications of source to appellations of origin and finally to geographical indications is the result of various international instruments.  The conventions, treaties and agreements relevant in this context are:-

1.    Paris Convention for the Protection of Industrial Property 1883.

2.    The Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods of 1891 and the Madrid Agreement Concerning the International Registration of Marks of 1891.

3.    The Stresa Cheese Convention of 1951.

4.    Lisbon Agreement for the Protection of Appellations of Origin and their  International Registration (1958).

5.    Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks which also provides for the International Registration of Certification Marks 1989.

6. a)  The unsuccessful WIPO Draft Treaty on the protection of geographical indications

    b)  The unsuccessful WIPO Model Law on geographical indications.

7.  The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

TRIPS and GIs

The structure of Section 3 of the TRIPS Agreement encompasses five main categories of issues- (a) definition and scope of a GI (b) minimum standards and common protection provided for GI corresponding to all kinds of products (c) additional protection for GI for wines and spirits (d) exceptions to the protection of GI and (e) negotiation and review of section 3 on GI.

Article 22 of the TRIPs Agreement provides a definition of GIs. Article 22.2 provides that WTO members “shall provide the legal means for interested parties to prevent

a.    The use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good.

b.    any use which constitutes an act of unfair competition…”.

Thus the use of a GI which does not mislead the public as to its true origin is not an infringement of the TRIPS Agreement. This is one of the key differences between the TRIPS protection given to all goods and the special protection given to wines and spirits. In fact, Articles 23 & 24 provide broader protection for GIs for wines and spirits than for other products. Special mention must be made here of the TRIPS requirement of home protection
(Art. 24.9) which categorically states that

“there shall be no obligation under this Agreement to protect GIs which are not or cease to be protected in their country of origin or which have fallen into disuse in that country”.

It is worth mentioning here that the TRIPS-mandated GI regime suffers from some inherent limitations including the extended protection for only selected GIs and difficulties of obtaining protection in foreign jurisdictions₅.

Cross Border GIs

Cross Border GI (also called trans-border GI) has been defined as “a GI which originates from an area that covers regions, territory or locality of two or more countries

where a given quality, reputation or other characteristic of the good is essentially attri-butable to its geographical origin extending over those countries₆”. Though the majority of GIs are essentially located within the territory of a state, there are also a number of GI products across the world that have originated from the territory of two or more countries. A classic instance is Basmati rice- a product originating from both India and Pakistan. There are other examples too-for instance Irish Whiskey and Ouzo. The latter, it needs to be mentioned here, comes from both Greece and Cyprus. Needless to say, the recognition and enforcement of shared GIs across borders should claim more attention due to its economic attractions in a multilateral trading system.

TRIPS and Cross-Border GIs

TRIPS does not explicitly prohibit the protection of cross-border GIs. But it remains silent as to the way out for the determination of the precise geographical origin of a GI where two or more countries have competing claims. In such a situation, member countries may depend on historical and geographical evidence, objective legal requirements and shared cultural understandings to substantiate their claims over GIs across borders₇. Further, except for a few legislative provisions in the EU to protect cross border GIs which provide for transborder GI registration for agricultural products, foodstuffs and wines (but not for spirits), international practices in this regard are quite heterogeneous. Classic examples of first EU legislations are Regulation 1151/12 of the European Parliament and of the Council of 21st November 2012 on Quality Schemes for Agricultural Products and Foodstuffs as well as Regulation 479/2008 of the European Parliament and of the Council of 29th April 2008 on the Common Organization of the Market in Wine. In the EU case several groups within different territories may lodge a joint application within the EU centralized system.

Mention must also be made here of Art.24.1 of the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore within the Framework of the ARIPO (African Regional Intellectual Property Organization) adopted by the Diplomatic Conference at Swakopmund (Namibia) which read as follows: “Eligible foreign holders of traditional knowledge and expressions of folklore shall enjoy benefits of protection to the same level as holders of traditional knowledge and expressions of folklore who are the nationals of the country of protection”. This Article can no doubt be extended to trans-border GI protection.

The manner in which WOOLMARK is protected can also be a leading light in this regard. The said mark is a certification mark collectively shared by the Wool Boards of Australia, New Zealand, South Africa and Uruguay. These respective Boards have set up a common Secretariat called the International Wool Secretariat which in turn has established a company called IWS Nominee Company Ltd which is responsible for protection of the WOOLMARK name and logo against all acts of infringement. Nevertheless, while drawing lessons from this example, one must not forget the basic and fundamental differences between a private right (certification mark) and the public element (rights of a GI).

The Geneva Act of the Lisbon Agreement on Appellations of Origin and GIs which was adopted in 2015 extends the Lisbon system of appellations of origin to GIs and such protection extends further over transborder geographical areas of origin. Article 5.4 of the Act lays down the procedure for joint application in the case of a trans-border geographical area. This paves the way for a single registration of cross-border GI. But it is only a humble beginning.

Pisco

Pisco is a grape brandy geographically and culturally embedded in the identity of Chile and Peru.  It is made exclusively using the varieties of “Pisqueras Grapes” and is an alcoholic beverage made with no additives-sugar, water or any other elements strange to the grape itself. Pisco comes from the Quechua word Pisqu that means bird.₈

The rivalry over the ownership of the product and its GI has confronted both nations since their very independence.  It is mainly grounded on political claims rather than practical reasons. The latest debates have been located  in India and Thailand. In the Indian context, Peru sought a GI tag in India for Pisco brandy while Chile opposed the move saying that they also sell the same product with the same name. The GI Registry Office in India passed an order  renaming the GI as ‘Peruvian Pisco’ in order to end the conflict among the countries and the confusion among people regarding the product.  However, Peru filed an appeal against the order before the IPAB (Intellectual Property Appellate Board) as they wanted the tag as ‘Pisco’ only.  The IPAB after hearing the case ruled that the application filed by the Embassy of Peru for GI tag for ‘Pisco’ is eligible for registration without any prefix or suffix .  The IPAB while making its decision noted that the word ‘Pisco’ is undoubtedly a denomination of origin exclusively from Peru and it cannot be compared under any circumstance with the Chilean liquor and that there cannot be any confusion or deception among the consumers.

The IPAB also mentioned that there are 22 countries where Pisco has been given sole registration to Peru. In certain countries Peru has been given registration of Pisco with a condition that even Chile can also register Pisco as a result of the Free Trade Agreements (FTAs) signed by these countries with Chile. IPAB observed that FTAs were political arrangements having no account of the historical, geographical or cultural aspects of Peru. Further IPAB agreed with Peru’s claim that Chile has renamed a region called ‘ La Union’ to ‘PiscoElqui” with malafide intention solely to establish a link between geography and Chilean liquor. IPAB also disagreed with the argument that due to Chile’s occupation of Peru, there was an extension of Pisco region geographically from Peru to Chile. Subsequent to this decision, the GI Registry gave Peru registration to the tag ‘Pisco’. The matter got worse with ‘Chilean Pisco’ getting registered as a GI in 2022. In fact, the GI application of Chilean Pisco was advertised in the GI journal in November 2022 and since there was no opposition to it within the stipulated time, it was deemed registered as a GI from the date of application (viz) 3rd June 2020 for a period of three years.

In this connection, it is worth mentioning that many regimes including USA and European Union have granted simultaneous registration to both the countries. In fact suggestions are galore that IPAB while delivering its decision should have noted the practice around the world and must have taken an approach which could have lessened the complexity of the situation. The decision of granting registration of ‘Peruvian Pisco’ was probably more logical than IPAB rejecting it.

It has to be kept in mind that in future, Peru could file an objection to the granting of  ‘Chilean Pisco’ in India especially since the IPAB has already given a decision in their favour for registering the word ‘Pisco’ without any prefix or suffix. In case such an objection comes from Peru, the questions that arise are:-

(a)   What will be India’s stand?

(b)  Will India allow only ‘Pisco from Peru’ to use the GI tag or will it grant simultaneous registration to both the countries?

Regarding Thailand, litigation over the IPRs of the grape brandy began in 2007.  In September 2019, the CFIIPIT (Court of First Instance on Intellectual Property and International Trade) ruled in favour of Chile regarding the use of the DO (Denomination of Origin) of Pisco. Since initially the Thailandese Registry of Industrial Property had recognized exclusive rights to Peru, the decision of the CFIIPIT meant that both countries could legally sell and merchandise their product within the local market, as long as the name of the country of origin was expressly mentioned with the word Pisco.  Peru appealed against the decision and on the 8th of April 2021, the Court of Appeals of Thailand ruled in favour of Chile, accepting the arguments of the Chilean local producers association, confirming the registration of the DO Pisco Chile.

Chile has offered Peru several times a joint solution for the use of the GI of Pisco.  Unfortunately historically Peru has been reluctant to accept the offer.  Heavily based on old nationalist resentments, Peru considers Pisco to be a national emblem not to be shared-or rather surrendered- to Chile.  Yet scholars have suggested that the GI should actually be shared because producers of the two countries contributed to the origin and consolidation of this product.  Put it a bit differently, the two countries have co-ownerships rights since they are co-founders.  Perhaps a joint exploitation with a homonymous indication would represent a right effort from a legal political, technical and social perspective.

Conclusion

Cross-border GI protection requires maintaining an appropriate balance between national sovereignty-based policy considerations and a non-discriminatory approach with regard to foreign right holders. It also needs amendment of the domestic legislation and a more uniform, consistent and flexible enforcement system. We have miles to go towards such a framework which can only be achieved through shared understanding between neighbouring countries, mutual consultation and consensus to enable maximum protection for GIs across borders. To put it a bit differently, we have to tide over the legal vacuum in trans-border GI protection through bilateral, plurilateral or regional arrangements, nay inter-governmental bodies or joint commissions which can only be arrived at through political initiatives accompanied by the administrative will to execute. Till then, cross-border GI protection will at best remain to be a premise on paper.  

References

1.    Raustiala, Kal & Stephen R.Munzer (2007), ‘The Global Struggle over Geographic Indications’, European Journal of International Law, Vol 18(2).

2.    Munzimger, Peter (2012), ‘Blue Jeans and Other GIs: An Overview of Protection Systems for Geographical Indications’, Journal of Intellectual Property Law and Practice, Vol.7(4).

3.    Mukherjee, Ulstav (2017), ‘A study of the Basmati Case (India US Basmati Rice Dispute): The Geographical Indications Perspective’,  Available at http://dx.doi.org/10.2139/ssrn.1143209

4.    Karim, Mohammad Ataul (2016), ‘Indian Claims over Geographical Indications of Bangladesh: Sustainability under Intellectual Property Regime’, Queen Mary Journal of Intellectual Property, Vol. 6(1).

5.    Karim, Mohammad Ataul & Mohammad Ershadul Karim (2017), ‘Protection of Handicraft as Geographical Indications under Municipal Law, TRIPS and BTAs vis-à-vis CETA: Bangladeshi Jamdani A Case Study’, Queen Mary Journal of Intellectual Property, Vol. 7(1).

6.    Josling, Tim (2005), ‘What’s in a Name? The Economics, Law and Politics of Geographical Indications for Foods and Beverages’, IIIS, Discussion Paper No.109, Trinity College, Dublin.

7.    Islam, Mohammad Towhidul (2014), ‘Protecting Jamdani with Geographical Indications’, The Daily Star, Dacca, 6th Nov.

8.    Bernard,L and P. Marchenay, 2008. From Localized Products to Geographical Indications.  Awareness and Action.  Bour-en-Bresse, CNRS Ressources des terrroirs.  Accessed on 06.02.2009 at  http://ethno-terroirs.cnrs. fr/textes/Localized_Products_to _GI.pdf

9.    Cardwell, R.T, 2005, Three essays in agricultural economics: International trade, develop-ment and commodity promotion. Unpublished Ph.Ddissetation, Development of Agricultural Economics, University of Saskatchewan

10.  Combes,J-L., and Guillaumont, P.,2002.Coomodity price volatility, vulnerability and development. Development Policy Review, 20(1), 25-39.

11.  Das, Kasturi, 2006. International Protection of India’s Geographical Indications with Special Reference to ‘Darjeeling’ Tea. The Journal of World Intellectual Property, 9(5) 459-495.

12.  Das, Kasturi, 2000. India’s Obligations Under ‘TRIPS’ and the Patents (Second) Ammend-ment Bill, 1999: A Commentary.  Indian Economic Journal, 48(3) 60-78.

13.  Evans, G.E and Blakeney, M., 2006. The Protection of Geographical Indications after Doha: Quo Vadis?. Journal of International Economic Law, 1-40.

14.  Fowler, P.N and Zalik, A.T., 2003. Globalization’s Impact on International trade and Intellectual Property Law: a U.S Government Perspective Concerning the Agreement on the Trade- Related Aspects of Intellectual property: Past, Present and Near Future.17 St.John’s J.L.Comm.401-407

(End notes)

1.  http://www.wipo.int/geo-indications/en  

2.Yogesh Pai and Tania Singla, ‘Vanity GIs’: India’s Legislation on Geographical Indications and the Missing Regulatory Framework available at https://www.cambridge.org/core/terms, https://doi.org/ 10.1017/9781316711002.015

3. A peculiar type of metal (combination of tin and copper) mirror.  The high quality of the mirror makes it different from ordinary mirrors

4. WIPO/GEO/BEI/07/4, Geographical Indications and Trademarks: Combined Efforts  for a Stronger
Product Identity: The Experience of Cuban Cigar Trademarks And Geographical Indications

5. Islam, MohammadTowhidul& Ansari, Masrur, Cross-Border GI protection: Challenges and Ramifications for Bangladesh (2017), WIPO-WTO Colloquium Papers.

6. Ibid.

7. Ibid.

8. Precolonial settlements within the territories of modern Chile and Peru spoke Quechua.

Basic Hygiene and Article 21: Supreme Court’s Mandate on
Public Toilets in Courts in Rajeeb Kalita v. Union of India
(2025 KLT OnLine 1068 (SC))

Case briefs by Ashly Harshad, Advocate, Supreme Court of India

 Sanitation and hygiene are among several facets of the right to live with dignity under Article 21. Though the Courts over decades have emphasised the importance of sanitation and waste management in public spaces, linking them to the right to life and dignity, the pressing issue of the lack of adequate toilet facilities in courts across the country has always been overlooked. In a very recent judgment, the Supreme Court directly addressed this concern, issuing crucial directions and guidelines to ensure the construction and maintenance of adequate toilet facilities in court and tribunal premises nationwide. The true impact of these directives, however, will unfold in the years to come.

Background of the case

A practicing advocate from Assam filed a PIL in the Supreme Court, seeking directions for all States and Union Territories to ensure basic toilet facilities in all courts and tribunals nationwide. The petition called for accessible and identifiable public conveniences for men, women, transgender persons, and persons with disabilities, along with proper maintenance and additional amenities as mandated under Article 21 of the Constitution. He stated that no human being can live with dignity unless there are facilities to maintain basic hygiene. The Petitioner submitted that Article 21 cannot be meaningful if clean and hygienic toilets are not provided in the Court complex/ premises, where advocates / litigants/ staff members are working in a large number.

Article 21 and Right to Hygiene, Sanitation in Courts:
Fundamental part of dispensation of justice

 Analysing the entire gamut of national and international law the Court held that the right to safe and clean drinking water and sanitation is essential for the full enjoyment of life and all human rights. Right to life encompasses within it the right to healthy and hygienic life and the right to live with dignity. Creation of adequate public toilets also protects privacy and removes the threat to ladies and transgender persons. Availability of access to public toilets is an important duty of the States/UTs under the Directive Principles and steps are to be taken to ensure that the toilets are maintained throughout the year. Therefore, it is the duty of the Government and local authorities to provide basic toilet and sanitation facilities within the Court premises and ensure that they are constructed, maintained and kept in a hygienic condition for men, women, PwD, and transgender persons.

The Court emphasised on two aspects regarding right to hygiene- one is of accessibility and other is of maintenance, of which second one is the most challenging part. It was observed that toilets/washrooms/restrooms are not merely a matter of convenience, but a basic necessity which is a facet of human rights. Access to proper sanitation is recognized as a fundamental right under Article 21 of the Constitution, which guarantees the right to life and personal liberty. Access to justice includes the creation of a pleasant and humanly atmosphere for all the stakeholders in the dispensation of justice. The Court urges High Courts to equip itself with proper washroom facilities for Judges, Advocates, litigants and staff members, just as required in other public places. Additionally, it is equally essential to ensure that these facilities are adequately provided, maintained and accessible to everyone, sans discomfort or inconvenience.

Challenges addressed by the Court

The judgment acknowledges the dismal state of sanitation in many court complexes, particularly in district and rural courts and the same includes lack of adequate toilets for the increasing number of court users; Poor maintenance and non-functional facilities in existing toilets; Insufficient funding and transparency in allocation for construction and maintenance; Limited or no access for transgender persons and persons with disabilities.

The Court also highlighted the severe inadequacies in High Courts and District courts, including the absence of sanitary napkin dispensers, tactile pavements for visually impaired individuals, and dedicated spaces for women and children.

Key Directions

The judgment goes beyond identifying the problem, and provides comprehensive directions to address the issue: Construction of Toilets: High Courts and the State Governments / UTs shall ensure the construction and availability of separate toilet facilities for males, females, PwD, and transgender persons in all Court premises and Tribunals across the Country.

Ensure Accessibility : High Courts shall oversee and ensure that these facilities are clearly identifiable and accessible to Judges, advocates, litigants, and court staff.

Formation of Committee: A committee shall be constituted in each of the High Courts under the chairmanship of a Judge nominated by the Chief Justice and members comprising the Registrar General/Registrar of the High Court, the Chief Secretary, the PWD Secretary and the Finance Secretary of the State, a representative of the Bar Association and any other officers as they deem it fit, within a period of six weeks.

Formation of a comprehensive plan: Comprehensive plan has to accommodate women, transgender persons, PwD, children and provide clear signage and indications along with functional amenities, such as, water, electricity, operational flushes, provision of hand soap, napkins, toilet paper and up to date plumbing systems. Effectuate a mandatory cleaning schedule to ensure regular maintenance of the toilets by outsourcing professional agencies on contract basis, by employing modern cleaning methods and machinery to ensure better hygiene and usability.

Allocation of Funds and Periodic Review: State Governments/UTs shall allocate sufficient funds for construction, maintenance and cleanliness of the toilet facilities within the court premises, which shall be periodically reviewed in consultation with the committee constituted by the High Courts.

Conclusion

One can access the judgment as a late but effective call to improve the infrastructure of the Courts across the country. The success of this initiative will require the collective effort of governments, judicial authorities, and society at large to ensure that every court premises becomes a space of dignity, inclusivity and respect for all.

Court : Ultimate Authority

(By Adv. P.C.Thomas Ex.M.P. and Former Minister of State for Law and Justice,Government of India)
Mob. 9447066858

This small Article is to show that as per the Constitution of India and other Statutes, COURT is the final authority with regard to disputes, controversies, and complaints of the citizens of India. Legislative and administrative bodies are not so.

We are all aware that there is no person who does not have problems, allegations, or hardships to save one’s own rights. Though there are several ways to overcome one’s difficulties, it is a fact that the final and ultimate Authority to settle a matter truefully is a Court of law. Normally everyone who has a complaint can approach the Police, the concerned Government, or Official for settlement of his issues. He may get a positive or negative result. Even if he does not get justice, to safeguard his rights, he may approach higher authorities or Ministers or others for correct relief. There may be illegitimate ways and means also to change the decisions of such authorities. It may also be by use of money power , or other human power by somebody above him. As per Constitution of India, every person has Fundamental Rights which have to be safeguarded. However the ultimate place where he can go is to the concerned Court, where he can get justice. If not he has rights to question such decisions before the concerned Courts above, including the Supreme Court to safeguard his rights. The procedure of Courts to decide an issue is not like the same as that of other authorities. Before such authorities, the opposite side is not often heard at all. But in Courts the basic principle is that the opponent should be heard, before a decision is taken on any matter or complaint. In fact notice or summons has to be issued to the opponent parties. When such notice is received, that party must appear before Court. Then that party will also be heard and opportunity will be given to him to adduce evidence, just like the complainant. The opponent will also get opportunity to cross examine the witnesses who are giving evidence against him. He can also produce documents or examine witnesses to prove his side. Thus the ultimate body, the Court can give proper decision after hearing both sides and examining which is true, and which is false. This great opportunity of the citizens of India is a basic right of each of them. The Court is an independent authority where everybody gets equal opportunity. The final decision will be in accordance with the true facts and evidence. This is a way in which justice can be given to everybody and therefore the courts in India are above the ruling parties or the persons in power or even the Ministries including cabinet and all powerful authorities. This is not the case of complaints and petitions alone. We Indians are lucky to hope that justice will finally be obtained whatever be the money power or influence which any party may have. Even laws made by Governments and Legislatures can be questioned in the appropriate Courts, which can even quash or cancel them if found to be against the Constitution of India, other laws or be unjust. I do not want to go to examples of various matters settled by Courts. But I will just refer to a major issue which came to a final settlement. It is nothing but RAMA JANMA BHUMI issue which would have otherwise been a great loss to our Nation.

Compared to our neighbouring Countries, Indian courts are regarded as the ‘Sanctum Sanctorum‘ of all rights, including the fundamental rights of citizens, upholding them in both letter and spirit. If the sanctity of the judiciary, particularly the Apex Court, is lost, it marks the end of a democratic, socialist, and secular Nation.

Justice K.Vinod Chandran, Judge, Supreme Court of India :

A Judge of Unimpeachable Integrity

 Justice Krishnan Vinod Chandran, the 18th Judge from Kerala took oath as the Judge of the Supreme Court of India on 16th January, 2025 following a collegium recommendation on 7th January, 2025 headed by Chief Justice of India Justice Sanjiv Khanna, marking a significant milestone in his distinguished legal career. Justice Chandran, with over 12 years of diversified judicial experience as a Judge of both Kerala High Court and as the Chief Justice of Patna High Court, is known for his distinctive legal approach in crafting judgments that go beyond mere factual conclusions.

Justice Chandran, born on 25th April 1963, hails from Kerala and is the son of Mr. C.Krishna Pillai and the late Mrs.Bharati. His early education took place at Rajagiri High School, Kalamassery, and he graduated in Science from U.C.College, Aluva. He initially worked at the State Bank of Travancore before pursuing law. Despite the stability and promising prospects of a banking career, his deep-rooted passion for legal studies prompted him to enrol at the Kerala Law Academy in Thiruvananthapuram.

In the words of Aristotle “At his best, man is the noblest of all animals; separated from law and justice he is the worst.”

Who could resist the noble calling of law? Justice Chandran, true to this calling, embraced the legal fraternity in 1991 and ultimately resigned from his banking job to pursue his dream. Reflecting on his decision to resign, Justice K. Vinod Chandran stated that many viewed his choice with skepticism, considering it as an act of “burning his bridges.” His true journey in the legal field began in 1991. After a short stint of practice in North Paravoor, he shifted to Ernakulam and became a junior to Senior Advocate M. Patros Matthai. This experience helped him establish his presence in the Bar as a vigorous and zealous advocate while espousing the cause of his clients.

Justice Vinod Chandran’s legal acumen is further highlighted by his appointment as Special Government Pleader (Taxes) in 2007, a position he held till 2011. In this role, he conducted cases for the government fiercely and was a tough opponent to the tax lawyers. He remarked once, on his stint as Special Government Pleader, that this unique opportunity has afforded him the visibility and exposure, which eventually led to his elevation to Kerala High Court as an additional Judge.

On 8th November , 2011, Justice Chandran was appointed as an Additional Judge of the Kerala High Court and became a permanent Judge on 24th June, 2013. After more than a decade of service at the Kerala High Court, he was appointed as the 44^th Chief Justice of the Patna High Court on 29^th March, 2023 before being elevated to the Apex Court.

Notable judgments of Kerala High Court and Patna High Court

His judicial career was marked by several ground breaking judgments that showcased his exceptional intellect and versatility. Not many areas of law escaped his insightful analysis, often earning praise from his co-judges for his farsightedness and his ability to resolve complex legal issues. While tax law remained his undisputed forte, his judicial brilliance extended to a wide range of fields, including constitutional law, land laws, criminal law, and civil law, among others, cementing his legacy as a well-rounded and visionary jurist.

Here are a few pearls that depicts his excellence in diversified fields of law:-

In a path breaking judgment of Harrisons Malayalam Limited v. State of Kerala (2018 (2) KLT 369), the key question was whether an Indian company, which merged with a foreign company, can legally own and use lands inherited through the amalgamation, especially since the foreign company would not have been allowed to hold such lands after India’s independence. While negativing the state’s challenge alleging fraud, forgery, and collusion and setting aside the eviction proceedings, Justice Chandran made certain valuable observations “The Government is for the people, of and by them, but it is not for the masses alone but exists for each individual. Courage and conviction is lacking when on mere public demand, arbitrary action is perpetrated visiting a citizen with prejudice. A Corporate entity also contributes to the mite of a nation and is constituted of citizens at its helm and at its foundational conglomeration of labour force and managerial staff. The Welfare State exists for the downtrodden and the marginalised, but cannot act like Robin Hood; which would be a negation of the democratic principles and blatant flouting of rule of law; which in the course of the instant proceedings itself, various Benches of this Court had emphasised time and again, in the judgments inter partes.”

“‘Crime doesn’t pay’ is an adage which the deviants, the desperate and some desperadoes pay little heed to.”,observed Justice Chandran in Balu v. State of Kerala, (2021 (4) KLT OnLine 1181) while affirming the conviction of a migrant labourer who murdered a housewife for a gold chain. Addressing the defence of right to silence it was laid down that a voluntary action without the element of compulsion does not militate against the right guaranteed under Article 20(3), to remain silent or rather not to be compelled to incriminate himself.

Interpreting Mental Healthcare Act, 2017 in the judgment Moidutty v. State of Kerala, (2019 (1) KLT OnLine 3160) the court dismissing the plea of a wife’s repeated requests for mental examination of the husband for the fear of property alienation and the consequence deprivation of property on his death held, “A person cannot be unduly subjected to repeated mental examination… especially when there is absolutely no behavioural trait complained of or no untoward incident of an action as against the society in which he lives in; which alone would require an evaluation or treatment in a confined atmosphere.”

In Jose v. Vadavukodu Puthencruz Grama Panchayat(2016 (3) KLT 32) Justice Chandra took note of the dismal living conditions of migrant workers housed in a building on a complaint by an adjacent owner of property and observed, “An enlightened society has to take steps to assimilate the migrant population into their adopted community; instilling in them a feeling of oneness which alone could result in working together towards regional aspirations and development; in a Country as varied and vibrant as ours. Isolating some and treating them as second class citizens can only lead to backlash by way of crimes against civil society and result in deleterious consequences of widespread public harm and injury, including spread of epidemics.”

In response to a writ petition filed by one partner in a lesbian relationship, alleging that her partner was being detained by her parents, the Court, after interacting with the couple, facilitated their reunion. The order in Adhila Nasarin v. Commissioner of Police upheld the rights of adult lesbian couples to live together, affirming their autonomy and freedom of choice.

In a host of judgments relating to UAPA and NIA related matters, Kashmir terror recruitment case, political rivalry cases, Maoist linked cases, Justice Chandran went strictly by the statute giving meticulous attention to each detail of the matters before him and analysed the evidence before delivering the judgments in all its fairness.  

As Patna High Court Chief Justice he decided on the issue of caste survey in the case Youth for Equality v. State of Bihar (2023 KLT OnLine 1651 (Pat.)). The Court upholding the validity of caste survey observed “The action of the State valid, initiated with due competence, with the legitimate aim of providing ‘Development with Justice’. The actual survey to have neither exercised nor contemplated any coercion to divulge the details and having passed the test of proportionality, it does not violate the rights of privacy of the individual especially since it is in furtherance of a ‘compelling public interest’ which in effect is the ‘legitimate State interest’.

Though based on the caste survey when the Bihar Government increased the reservation to 65% in educational institutions and Government jobs, Justice Chandran couldn’t find favour with it. In Gaurav Kumar v. State of Bihar (2024 KLT OnLine 3046 (Pat.)) the Court held that the enhancement of reservations beyond the 50% limit is bad in law based on the principles of equality emanating from the Constitution and thereby struck down the impugned legislations.

Justice Vinod Chandran’s judgment writing style exemplifies constitutional morality blending legal reasoning with fairness. His eloquent articulation of well-laid down principles of law makes each judgment an editor’s delight and a scholar’s treasure.

Always known for “doing the right thing” his integrity remained unimpeachable throughout his career. His courtroom, while demanding strict discipline, was often described by members of the bar as unpredictable, marked by sudden shifts in tone—lighthearted one moment, stern or dismissive the next. In a lighter vein, Justice himself acknowledged this critique during his reply speech upon being welcomed as the Chief Justice of the Patna High Court. Despite such perceptions, he earned widespread admiration for his dedication to justice. His impartial approach, treating senior and junior lawyers alike, cultivated a strong sense of professionalism and fairness in the pursuit of justice.

Justice Benjamin Nathan Cardozo once remarked, “The final cause of law is the welfare of society.” On behalf of KLT, we extend our heartfelt wishes to Hon’ble Justice K.Vinod Chandran, trusting that he will continue to champion this noble cause of law in his esteemed new role as a Supreme Court Judge. Best wishes for this remarkable journey !

Whether an Unauthorized Building is Entitled to Tax Exemption if it is otherwise Entitled :  Unanswered Questions

(By V.N. Haridas, Advocate High Court of Kerala)
E-mail : slclawyers@gmail.com   Mob. 9497065695

The recent Judgment of the Hon’ble High Court of Kerala with respect to the imposition of property tax raises certain questions.₁ This article is to raise the questions that may have escaped the attention of the Court while considering the Writ Petition. The facts of the case are as follows:

The petitioner is the Manager of an Aided Upper Primary School for which the Chief Town Planner granted approval of layouts to reconstruct a 3-storied building by adding one more floor with an extent of 3100.84 square metres of plinth area. The petitioner school was demanded by the Municipal Corporation to pay property tax during the period when the constructions were unauthorized constructions and not regularized. The petitioner contended that they are entitled to get an exemption from payment of taxes under S.235(b)of the Kerala Municipality Act, 1994. The Hon’ble Court, interpreting Section 242, concluded that, Rule 3 and Rule 20(3) of the Surcharge Rules, 2011 stipulate that the demand is possible  only when the owner is liable to pay the property tax and not when it is exempted under the provisions of the Act and S.242 speaks about the liability of the owner who constructed the building unlawfully to pay the sum of property tax that would have been paid, had the said building been constructed unlawfully and in the instant case there is no liability of property tax on the building in question and the fact that the petitioner is not liable to pay the property tax is evident from the fact that for the rest of the floors except one.

Where unauthorized construction was alleged and which was subsequently regularized, there is no demand to pay the property tax. The Court, accordingly holds that the petitioner is not liable to pay the property tax as it is exempted from payment of property tax under S.235 (b) of the Act. The question remains unanswered: When is a building exempted from the property tax? If a building was constructed that remains unauthorized for the reasons envisaged under S.242, whether the Municipality imposes a tax under S.242 or it will be exempted under S.235. As per the judgment, tax cannot be imposed under S.242 for the reason that the building in question is “supposed to be “exempted” under S.235 of the Act.

The fundamental issue herein is that to be entitled to an exemption under S.235, the building must be “used” for any of the purposes enumerated under S.235 of the Act now when a building can be made available for “use” as per the Municipality Act. According to R.4(2) of the Kerala Municipality Building Rules, 2019, no person shall construct, reconstruct, make additions extensions, or alterations to any building or cause the same to be done without first obtaining a building permit from the Secretary. R.4(3) further states no person shall change the occupancy of an existing building from one group to another without first obtaining a permit from the secretary.

After completing the construction in accordance with the approved plan and in compliance with the building rules, the person has to apply for an occupancy certificate. The permit shall be issued in accordance with the occupancy of the building. Accordingly, the building can be used only after obtaining an occupancy certificate and numbered the building. As per S.242(5) of the Municipality Act, the municipality shall not grant a permit or license to use the building that was constructed unlawfully. If that is so, the question of tax exemption would arise only after the lawful completion of the building. In other words, a Municipality can grant exemption to a building if it is lawful. An unauthorized building that was granted a special number shall in no way entitled to get exemption from the property tax. If that is so, the Municipality is very well empowered to collect tax under S.242 even if a portion of the building is already granted exemption. This is more acceptable in the light of S.242 (2). Under S.242 (2) the secretary shall proceed under S.406 against an unauthorized building and nothing contained in S.242 (1) shall preclude the secretary from proceeding with such actions.

It is reiterated by the settled position of law that exemption can only be granted to the buildings which are utilized for the purposes mentioned.₂  There is another explicit provision in the Municipality Act that no building can be used for any purpose without obtaining occupancy and numbered the building. If that be so, the reason that the building constructed was intended to be for an educational institution that might have obtained tax exemption shall not be a reason to escape from the imposition of tax under S.242(1) of the Act.

It is also worthwhile to note here that as per R.11 (2), the person claiming property tax exemption has to submit the return in Form-2a. One of the details to be furnished along with this specific form is the building number. Only after obtaining a valid occupancy and building number that a person can apply for tax exemption under this rule. 

Therefore, for the reason that, if a building constructed lawfully, it could have been given tax exemption shall not be reason for precluding a Municipality for proceeding against an unauthorized building including the imposition of tax under S.242(1). Unfortunately, these aspects have not been brought to the notice of the Hon’ble Court while deciding the matter which resulted in a judgment that goes against the spirit of the Act.

Foot Notes

1.Manager, Varam Upper Primary School v. Kannur Municipal Corporation (2024 (5) KLT 572).

2. Panayappilly Sree Narayana Guruswami Trust v. Corporation of Kochi (2022 (4) KLT 874).