Tag: Indian Law

INTRODUCTION

Intellectual Property (IP) is a kind of invention by a living being in form of literature, artistic, designs, symbols, names, and images in trading.

Intellectual Property Rights (IPR) are granted to the owner of Intellectual Property. These rights protect the property’s misuse by someone other than the owner. Having intellectual property has become common in the modern world. Protection of Intellectual property enhances the publication and its distribution. It helps in boosting economic growth.

To distinguish IP from other forms of property is its intangibility. IP can be owned and owners have the right to protect the property. When you are given rights to protect the property you are also given duties to be fulfilled. As we all know there are various kinds of IP that leads to different kinds of rights and duties in society so that all IPs can exist together. Any IP once sold by its first owner to the other then the first owner’s claim to the property is completed. With new technologies around the world, the new items are making it up to the IP. Facilitating fair trading and competition in the market.

Bajaj Auto Ltd v TVS Motor Company Limited¹ this case has been pending before the court for 2 years leading to losses to parties due to which Supreme Court ordered that cases must be resolved within four months of filling any such related suit.

Yahoo Inc. v. Akash Arora² this case was about the IPR on the internet, in the instant, the domain name of the defendant’s website was identical to that of the plaintiff due to which people can easily get confused. The general public may believe that both the name must have some sort of connection. The court observing the importance of domain name ordered the defendant to stop the usage of an identical name as it is essential for the company’s advantage.

SUI GENERIS

The term ‘Sui Generiss’ is derived from Latin meaning its own kind and in layman’s terms unique. In legal it means a control-free legal classification. Provides a set of laws to protect Intellectual Property Rights, allowing the provider of the invention must be protected and compensated for the contribution made to society. It can also be a law that provides protection to copyright, patents, trademarks, geographical indications etc.

The policy laid down by the Indian government in 2016 aimed at making citizens aware of intellectual property. To promote modernization, acceleration of commercialization, expansion of institutions specialized in IP and development of human skills.

Intellectual property can be classified as—

COPYRIGHT:- The property in tangible form in terms of literature, artistic, poems, novels, songs, and computer codes. The copyright gives one authority over the work and the owner is capable of deriving economic benefits like commercializing the use of work and receiving respect for his/her work. Copyrights are based on the creativity and originality of work. In India, the copyright is governed under Copyright Act,1957.

PATENT:- It is an exclusive right that is granted to the owner of the invention. Invention means a new way of making use of something, the machine-made for some purpose. In India, the patent is governed under Indian Patent Act,1970 providing the owner of the patent to make use, sell, controlling the patented subject. It must be registered for getting the sanction of license. A patent can be given up by the owner of the patent by surrendering.

TRADE MARK:- It helps us in the differentiation of one product from other products that have the same class. It helps one product stands out from other products. Giving protection to any symbol, phrase, design, or icon helps in the recognition of the product. It is protected under the Trademark Act, 1999 objective of protecting trademarks from misuse of trademark, expanding the usage of trademarks and reputation of a firm’s trademarks.

GEOGRAPHICAL INDICATION:- Name and sign of product based on its geographical location. The indication leads to the defining quality and process for the manufacturing of the product. Geographical indications are governed under the Geographical Indication of Goods Act,1999  in India. It aims at providing protection to the protection considering the interest of the owner. The product that is based on geographical location may be a natural hood, agricultural good or ingredients used in a product taken from that geographical location.

INDUSTRIAL DESIGN:- It aims at protecting visual design created with dimensional or two-dimensional figures or shapes, coloured, lined, textured, and material used.

PLANT VARIETY:- There must be a diversity of plants distinct in nature, offering material used for selling, and providing material for imports and exports.

TRADE SECRETS

Trade Secret is a kind of intellectual property that includes the process of working, formulas to programs, the pattern of work or confidential information that is financially valuable, only a limited number of people are familiar and viable steps must be taken to keep the concerned information a secret. Some examples of trade secrets include Coca-Cola Drink, KFC, McDonald’s etc.

The law based on intellectual property rights forbids others to disclose a trade secret to anyone who is not part of a firm or project or not allowed to know. Trade secrets can be technical in nature including formulas, codes for programming, commercially including advertising, and processes of making.

ORIGIN

The year 1977 saw the rise of Trade Secret in India when the government orders Coke to surrender the formula for Coke due to which Coke pulled out of the Indian market and re-enter the Indian market when the central government changed. India was part of the General Agreement on Tariffs and Trade (GATT) in 1984 as the concept of intellectual property was based on immediate disclosure, publication, and registering the innovation whereas trade secrets are meant to be kept secrets as the term suggests, therefore, India refused to include trade secrets.

In 1991 the liberalisation policy was introduced aiming at private and foreign investment. India was part of the Uruguay Round that leads to the introduction of intellectual property rules into multilateral trade and the treaty was called as Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994. Consequently, India became a member of the World Trade Organization (WTO) in the year 1995. As per the agreement, it makes it an obligation towards members of the organisation to protect ‘Trade Secret’. Later, India enacted laws to comply with the terms of the agreement.

With the passage of time, the issue became important and the need for the new law was felt, therefore, the Indian government introduced the National Innovation Bill 2008 aimed at providing a boost to innovations done either privately or publically and codification of set of laws for maintaining trade secrets. Soon, the bill disappeared in thin air. India ignored the subject till 2016 when ministerial-level meetings were held between the U.S.A. and India leading to the mention of the term ‘Trade Secrets’ in the National Intellectual Property Policy.

PROTECTION

The one who owned trade secrets must be responsible for keeping them confidential by both technical and legal measures. The owner must know the importance of trade secrets, and access to such codes, formulas, and data must be protected by stronger security.

Trade Secrets became more prone to the risk of getting misappropriated when a former trustable employee leave and was suspected of using economically valuable information for its own benefit. For the protection of the trade secrets of a company, there must be stronger laws that include the agreement of secrecy and for breach of confidence etc.

The agreement of secrecy was not considered to hold back the practice of trade³. There is always an agreement of confidentiality between employer and employee⁴.

In the instant case of John Richard Brady v Chemical Process Equipment Pvt. Ltd.⁵ the usage of the same information that is provided by the plaintiff to the defendant under the clause of confidentiality was used for the defendant’s benefit hence the confidentiality clause was breached leads to the liability of the defendant.

When secrets are shared among competitors then the competition would be unfair hence, a company that is unable to meet the satisfaction of consumers leads to a lack of promotion of new innovations. Secrets can be kept for a longer time without a bar of certain years will be applicable immediately or at the stated time.

INTERNATIONAL TREATIES

Paris Convention on Protection of Industrial Property,1883: The first treaty in favour of Intellectual Property Rights having 30 articles revised in 1967 aiming at equal treatment to IP of other member nations same to that of its own citizens, the owner may seek protection from more than one country and all countries must have some common rules regarding IPR.

Berne Convention for Protection of Literary and Artistic Work,1886: The original should be given protection instantly from the time stated an equal treatment must be given to all such works. The protection must be given to work in other member countries as well.

Universal Copyright Convention,1952: The treaty aims at national equal treatment for all IP minimum safeguards.

World Intellectual Property Organization,1967: With the objective of providing people with state cooperation towards international applications for intellectual property, technical assistance for issuance of the certification of  IP.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),1994 recognises the international intellectual property dispute resolution and protection mechanism.

WIPO Copyright Treaty,1996 promotes the protection of computer programs, and data stored.

CONCLUSION

Even after so many laws to protect Intellectual Property the owner still suffers the loss by bearing the high legal cost of certification and other losses. Laws are just imposed so one might know the consequence of their action but someone will follow the laws that aren’t necessary so the owners of intellectual property still face many problems. Sometimes, people may use your work as their own without your knowledge and consent, but by the time you cane to know the value of the product diminishes.

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CITATIONS

1 2009 (12) SC 103

2 1999 (19) PTC (Del)

3 1967 AIR 1098

4 130 (2006) PTC 609 Del

5 AIR 1987 Delhi 372

This article is written by Simran Gulia of Maharaja Agrasen Institute of Management Studies.                                                                           

INTRODUCTION

India is one of the largest populous countries in the whole world with a lot of diversity within the population. Being a democratic nation, the elections are the most important part of the system. It can be told that the elections lie within the heart of democracy. Only through the elections, do people participate in public affairs and express their will in the democracy. Only through the elections, it has been possible in India to change the power from one party to another in a peaceful manner. The authority of the government gets clothed with legitimacy. However, holding free and fair elections is a sine qua non in a democratic nation.

Even after 70 years of the attainment of independence, India still suffers from global issues like poverty, illiteracy and inequality, etc. In addition to these, the Indian population group themselves as per the caste, religion, region and also gender. It would be a stupendous task to conduct periodic elections by encouraging a large-scale population to participate.

Time and again, Indian have reposed faith in the elections as the most potent means of non-violent and peaceful protest against all acts of omissions and commissions of Government. It can be said that the imposition of the elections has been more successful than many other liberal democracies in the world.

However, several anomalies in the election system’s operation have become apparent. The necessity to address such troubling circumstances has sparked a discussion in the nation over election changes. The Election Commission, which is endowed with the real authority of supervision, direction, and control of elections in the nation under the Constitution, has from time to time made tangible proposals/suggestions based on objective issues experienced during election administration. Politicians have expressed their desire for change via the platforms of parties and Parliament, including the different committees established for that reason. Governments have also taken corrective action in response to suggestions from different bodies. The reform process, as well as the discourse around it, has been nearly continuous.”

Election Commission of India

The Part XV of the Indian Constitution mentions the Elections and specifies Article 324 regarding the Election Commission i.e., The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).^[i]

The Election Commission comes under the Ministry of Law and Justice. The commission consists of a Chief Election Commissioner and two election commissioners. Elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils, and the President and Vice President of the nation are conducted by this organization. The Election Commission is governed by Article 324 of the Constitution and the Representation of the People Act, which was adopted later. Under the Constitution, the commission has the authority to act appropriately when existing laws are inadequate to cope with a particular circumstance in the conducting of an election. The Election Commission, like the country’s higher courts, the Union Public Service Commission, and the Comptroller and Auditor General of India, is a constitutional entity that functions with both autonomy and independence. It is a constitutional body that exists indefinitely.

Challenges in Electoral Politics of India

Due to the obvious massive amount of money that must be spent and a large amount of muscle power necessary to win elections, the elections are not being held under ideal circumstances at the moment. The following are the key flaws with the Indian election system:

• Money Power:

Candidates in each seat must spend millions of rupees on campaigning, publicity, and other expenses. The majority of contenders spend significantly more than the permitted amount. The elections weren’t costly till 1952 when compared to the present days. Politicians used to think that it was unethical to work for a reward. But now the scenario has changed. In India, the implementation of planned and mixed economies with a high level of control, regulation, licenses, permits, and quotas gave significant chances for political corruption and resulted in an immoral relationship between electoral politics and the country’s corporate sector. Despite the liberalized economy caused to the country’s political system, this seems to be continuing today with much more devastating repercussions of an overflow of illicit money into the corridors of political parties. Elections in India are so far away from the average person that only individuals with a lot of money may run for office as a candidate since voting is no longer a reliable indicator of public opinion. It’s being purchased.

At present, candidates participating in MP elections spend Rs. 15 to 25 lakhs and candidates participating in the MLA elections is Rs. 5 to 10 lakhs. Any amount spent more than that is being considered corrupt practices as per the Supreme Court of India. It has elucidated as follows:

The object of the provision limiting the expenditure is twofold. In the first place, it should be open to any individual or any political party, howsoever small, to be able to contest an election on a footing of equality with any other individual or political party, howsoever rich and well-financed it may be, and no individual or political party should be able to secure an advantage over others by virtue of its superior financial strength.

In the case of L.R. Shivaramagowde v. P.M. Chandrasekhar^[ii] the supreme court stated, “If the account of election costs provided by the candidate is determined to be erroneous or misleading, the Commission has the authority to disqualify the candidate under Section 10A of the Representation of the People Act, 1951″.^[iii]

• Muscle Power:

Muscle strength is mostly responsible for violence, pre-election intimidation, post-election victimization, riggings, and booth capturing. These are common in many regions of India, and the sickness is progressively spreading throughout the nation. Criminals are able to win elections for their patrons by resorting to violence.

• Misuse of the Machinery of Government:

When a government is in power during an election, it is often noted that the official apparatus is used to help the electoral chances of its party’s candidates. Misuse of official machinery takes many forms, including the publication of ads at the expense of the government and the public exchequer publicizing their accomplishments, payments from ministerial discretionary funds, and the use of government cars for canvassing. The abuse of official machinery in this manner offers the governing party an unfair advantage during elections, resulting in the misuse of public monies to help candidates of a certain party advance.”

• Criminalisation of Politics:

Criminals join politics and guarantee that money and brute power win them elections, preventing the prosecution of their charges. Political parties are also content as long as they have candidates who can win elections. In exchange for cash, political parties cast criminals in elections and provide them with political patronage and security.

• Independent candidates that aren’t serious:

Serious candidates run non-serious candidates in elections to cut down on the number of votes that would otherwise go to competitor candidates.

• Casteism:

Certain caste groups have been known to offer considerable support to political parties. As a result, political parties make concessions to various caste groupings, while caste organizations strive to push parties to provide tickets for their members’ elections. Caste-based voting is common in the nation, and it is a significant blemish on democracy and equality. This causes schisms in the nation.

• Communalism:

The Indian political culture of pluralism, parliamentarians, secularism, and federalism is in danger of communal division. In the linked article, you may learn more about communalism.

• In politics, there is a lack of moral values:

In India, political corruption has turned politics into a business. People join politics in order to make money and maintain their wealth and influence. Few politicians join politics with the intention of improving the lives of their constituents. In India’s political arena, Gandhi’s virtues of service and sacrifice are absent.

Electoral Reforms in India

To overcome the challenges in the electoral system, electoral reforms are brought in by the suggestions of the Law Commission and National Election Watch. The following are a few reforms mentioned below:

The electoral reforms can be divided as follows:

Reforms made Pre-2000:

1. Reduction of voting age:

In the 61^st Amendment of the Constitution, the voting age has been decreased in India from 21 years to 18 years (Article 326).^[iv]

2. EVM introduction:

Electronic Voting Machines have been introduced in 1982. Its usage has been first present in Pakur village, Kerala. The amendments have been made to the Representation of People Act 1951 which has made provisions to the EVMs to Sections 61A.^[v] They were initially used in Madhya Pradesh elections in 1998, followed by assembly elections in Delhi and Rajasthan. Its arena was eventually dispersed around the country. EVMs are now at the forefront of elections, and they are unavoidable.

3. Disqualification on conviction for violating National Honours Act, 1971:

If convicted of breaking the National Honours Act of 1971^[vi], the individual would be barred from standing elections to Parliament and state legislatures for a period of six years.

4. Contesting from more than two constituencies is prohibited:

A candidate may only run in two constituencies at a time.

5. A contending candidate’s death:

The election had already been postponed due to the death of a contending candidate. No election will be annulled in the future due to the death of a contending candidate. If, on the other hand, the dead candidate was nominated by a recognized national or state party, the party concerned will be given the opportunity to nominate another candidate within seven days of the Election Commission issuing a notification to that effect to the party concerned.

6. The Arms Act of 1959^[vii] makes it illegal for anybody carrying a weapon to approach a voting place. Anyone detected in possession of weapons near the voting booth might face a penalty of up to two years in prison.

7. The employees of organisations get paid holiday during the poll days and it is punishable by a fine in case of violation.

8. Sale of Liquor:

A 48-hour ban on liquor will be imposed near the polling areas. No intoxicants will be allowed for sale till the conclusion of the poll.

9. Bye-elections’ time limit:

Bye-elections shall henceforth be conducted within six months after the occurrence of a vacancy in either House of Parliament or State Legislature. 

10. Election Commission Delegation:

For the duration of their employment, all workers involved in the preparation, revision, and correction of electoral rolls for elections will be regarded on deputation to the Election Commission and will be overseen by the Election Commission.

11. The Increase in proposers and security deposit:

The number of voters necessary to sign as proposers in nomination papers for elections to the Rajya Sabha and State Legislative Councils has been increased to 10% of the electors in the constituency or ten such electors, whichever is fewer, primarily to discourage frivolous candidates. To deter non-serious applicants, the security deposit has been increased.

12. The campaigning time has been shortened.

Post- 2000’s Electoral Reforms:

• Postal Ballot:

Service voters, special voters, spouses of service voters and special voters, voters under preventive detention, voters accountable for election duty, and Notified voters were among the six categories added to the postal ballot in 2013. The Electronically Transmitted Postal Ballot facility was provided to qualified foreign voters in 2020, in order to increase the number of voters, which had decreased during the year.

• Election spending cap:

Currently, there is no cap on how much a political party may spend on an election or a candidate. However, the Commission has set a spending limit for individual candidates. It costs between Rs. 50 and Rs. 70 lakhs to fight a Lok Sabha seat (depending on the state they are from), and between Rs. 20 and Rs. 28 lakhs to win an assembly election.

• Voter education:

 The government has made initiatives to improve voter education by designating January 25th as ‘National Voters Day.’

• Restriction of Exit Poles:

Exit polls were banned in 2010 when Section 126(A) of the Representation of Peoples Act, 1951 was introduced.^[viii]The Election Commission issued a declaration banning the broadcast of exit polls before the 2019 Lok Sabha elections. They said that exit polls may only be televised after the election’s final phase. This action was done to ensure that voters were not deceived.

• Every applicant is required to disclose their criminal history and assets. The candidates must reveal their criminal history thrice before an election, once in a national daily newspaper and again in two different regional language newspapers, and lying in the affidavit now carries a penalty of six months in jail, a fine, or both.

Conclusion

India’s Parliamentary system has been a successful standing example for emerging democracies. The elections are considered the heart of democracy. The people have vested their faith in the elections, as they get to choose their own representatives. However, there are many factors affecting the outcomes of the elections. There are many negative impacts on the voting population which decide upon whom they vote for, as aforementioned. Many reforms have been passed to make the electoral system a better version and to run in a free and fair manner. However, there are still a few flaws in our electoral system like candidates with criminal backgrounds being able to participate as representatives. There isn’t any provision that prevents them from participating in elections.

According to the Association of Democratic Reforms, “29% elected members of 17th Lok Sabha to have criminal cases of rape, murder, attempt to murder and crime against women. Since 2009, 109 per cent has increased in the number of MPs with serious criminal cases. In the 2014 Lok Sabha elections, 185 winners declared criminal cases against themselves. The political parties have become a shelter home for criminals. Now, criminal representatives of the legislative are involved in rule making process. This is a serious issue before electoral reforms. There is no legislative action to prevent criminal politicians from rule making process. Booth capturing, violence, pre-election intimidation, and victimisation are mainly the product of muscle power. However, the Apex Court has issued an order in 2003 that candidates must file an additional affidavit stating (i) information relating to all pending cases in which cognizance has been taken by a Court, (ii) assets and liabilities, and (iii) educational qualifications.”

There is an urgent need to make stricter laws like the Anti-defection law for preparing India to have free and fair elections and prohibit the candidates who perform malpractices to win the elections. The EVMs must also be taken care of, as there are many situations in which the machines have malfunctioned and benefitted the winning party.

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CITATIONS

[i] The Constitution of India 1950, art. 324.

[ii] L.R. Shivaramagowde v. P.M. Chandrasekhar, 1998 Supp (3) SCR 241.

[iii] The Representation of People Act 1951, s. 10 A.

[iv] The Constitution of India 1950, art. 326.

[v] The Representation of People Act 1951, s. 61 A.

[vi] National Honours Act 1971.

[vii] The Arms Act 1959.

[viii] The Representation of People Act 1951, s. 126 A.

This article is written by K. Mihira Chakravarthy of Damodaram Sanjivayya National Law University.