Monday, 15 February 2016

De-facto and De-jure Authority

The word ‘authority’ is derived from the Latin word ‘auctoritas’ which means the right to exercise power given by the State (in the form of government, judges, police officers, etc.). Authority is the power or admitted right to command or act. Authority is the power to do something. Authority means the institutionalized exercise of legitimate power which is backed by law or constitution and common consent.

Weber defines ‘authority’ as a legitimate form of domination, that is, forms of domination which followers or subordinates consider to be legitimate.

The dictionary meaning of the word ‘authority’ is the power to determine, adjudicate, or otherwise settle issues or disputes; jurisdiction; the right to control, command, or determine.

Authority can be original or delegated. It can be de facto authority or it can be de jure authority too.
De facto is a Latin expression that means "in fact, in reality, in actual existence, force, or possession, as a matter of fact". De jure is an expression that means "of right, by right, according to law"

The ability to get one’s proposals, commands, and pronouncements accepted and thus determine other people’s behaviour is to have authority de facto, whereas to have the right to make pronouncements, issue commands of certain kinds and get others to obey them is to have authority de jure.
So, the difference between the two is mainly with the way the word ‘authority’ is used. De jure authority can be viewed as a set of rules whereby certain people are authorized to do some things but not others. De jure stresses that the extent of authority depends not on whether he can authorize others to act but on what actions are open to him/her within the rules. De facto authority exists whenever a human recognizes another as entitled to command him. To have de facto authority is to stand out as having a certain relation to other people; that one can make them do what they command, because they are "convinced" to do so. The relationship of de facto authority arises from de jure, whereby some principles of legitimacy gives a ruler the right to command.


Sunday, 14 February 2016

Industrial Property

Industrial property is part of the wider body of law known as intellectual property. Intellectual
property refers to the product emerging out of the intellectual labour of a human being. So, in simple terms intellectual property refers to the creations of the human mind. The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property in 1883 and the Berne Convention for the protection of Literary and Artistic Works in 1886.
Intellectual property is divided into two branches, namely industrial property and copyright.

Copyright
Copyright includes literary works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures and architectural designs.

Industrial property
Industrial Property includes patent for inventions, trademarks, industrial designs and geographical indications. The broad application of the term “industrial” is clearly set out in the Paris Convention for the Protection of Industrial Property as “Industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive Understanding Industrial Property industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.”

Industrial property can usefully be divided into 2 main areas:
The first area can be characterized as the protection of distinctive signs, in particular trademarks (which distinguish the goods or services of one undertaking from those of other undertakings) and geographical indications (which identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin).

The other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets.


So, industrial property includes inventions (process, products and apparatus); Industrial designs (shapes and ornamentation); and Marks and Trade-names to distinguish goods. Recently the scope of industrial property has been expanded to include 'among others, the protection of distinctive geographical indications, plant varieties, and the layout designs (topographies) of integrated circuits, as well as the repression of unfair competition, including the protection of trade secrets.'

Friday, 12 February 2016

Assignment and Transmission of Trademark

Trademarks like any asset or property can be transferred from one owner to another. Assignment or transmission of a trade mark is the process by which ownership of a registered trade mark or a trade mark application may be passed from one party to another. In other words, it is transferring of proprietary rights in the property of the proprietor.

A registered or unregistered trademark is a corporal property and it is assignable and transmissible under the law. Chapter V of the Trade Marks Act, 1999 deals with the assignment and transmission of the trade marks.

A trademark or a logo may be assigned or transferred to another business entity in any of the following manners:

1.      Complete Assignment to another company - In a complete assignment, the owner of the trademark transfers all the rights with respect to the trademark, including the transfer of the rights such as right to further transfer, earn royalties, etc., to another entity.

2.      Partial assignment of trademarks - In a partial assignment, the transfer of ownership is restricted to specific product or service only.

3.      Assignment with goodwill - Assignment with goodwill means an assignment where the owner transfers the rights and value of the trademark as associated with the product it sells.

4.      Assignment without goodwill - Assignment without goodwill means an assignment where the owner restricts the assignee to use trademark for the products he uses it for.

Assignment of a registered trademark

According to section 38 of the Trade Marks Act, 1999, a registered trade mark can be assigned with or without the goodwill of the business concerned and in respect either of all the goods or services in respect of which the trade mark is registered or of some only of those goods of services.

Assignment of an unregistered trademark


According to section 39 of the Trade Marks Act, 1999, an unregistered trade mark may be assigned or transmitted with or without the goodwill of the business concerned.

Thursday, 11 February 2016

Hon'ble Mr. Justice M. Y. EQBAL

M. Y. Eqbal is a Justice in the Supreme Court of India from 24-12-2012 to 12-2-2016.
Justice Eqbal was born on 13th February, 1951. He completed his initial education from Ranchi Zila School in the year 1967. After obtaining his bachelor degree in Science from Ranchi University, he pursued his Degree in Law and obtained degree with 1st Class Distinction (Gold Medalist) in the year 1974.

He started practice in the year 1975 in Civil Court. He was appointed as a Government Pleader in the year 1990, and was later appointed as Government Advocate in Ranchi Bench of Patna High Court in 1993.

Due to his profound knowledge of law, he was elevated to the Bench and he became Judge of Patna High Court on 9-5-1996. Later he became Judge of Jharkhand High Court on 15-11-2000. On 11-6-2010 he was elevated as Chief Justice of the Madras High Court and he served there till 21-12-2012. On 24-12-2012 he became a Judge of the Supreme Court of India.

Landmark Judgments of Justice M. Y. Eqbal

Tekan alias Tekram v. State of Madhya Pradesh (Now Chhattisgarh) [11-2-2016] - Supreme Court directed all the States and Union Territories to formulate a uniform victim compensation scheme for victims of sexual assaults

Kerala Public Service Commission & Ors. v. The State Information Commission & Anr. [4-2-2016] – Supreme Court held that Public Service Commission shall provide Information about answer sheets and Marks under the RTI Act.

Reserve Bank of India v. Jayantilal N. Mistry [16-12-2015] - Supreme Court held that there is no fiduciary relationship between RBI & Financial Institutions; and that RBI is bound to disclose information under the RTI Act

Parivartan Kendra v. Union of India and others [7-12-2015] - Supreme Court directed all the States and Union Territories to consider the inclusion of the names of Acid Attack victims under the disability list.

Bhim Singh & Anr. v. State of Uttrakhand [11-2-2015] - Supreme Court held that demand for dowry can be made at any time and not necessarily before marriage


Archana Girish Sabnis v. Bar Council of India and others [26-11-2014] - Supreme Court observed Pursuing law and practicing law are two different things. One can pursue law but for the purpose of obtaining license to practice, he or she must fulfill all the requirements and conditions prescribed by the Bar Council of India.

National Commission for Women

National Commission for Women is a statutory body set up in January 1992 under the National Commission for Women Act, 1990 (NCW Act) to review the Constitutional and legal safeguards for women; recommend remedial legislative measures, facilitate redressal of grievances and advise the Government on all policy matters affecting women. The first Chairperson of the Commission was Jayanti Patnaik (3-2-1992 to 30-1-1995). The present Chairperson of the Commission is Lalitha Kumaramangalam since 29-9-2014.

Constitution of the Commission
The Constitution of the National Commission for Women has been provided under section 3 of the NCW Act. According to it the Commission shall consist of
a.      A Chairperson, committed to the cause of women - To be nominated by the Central Government.
b.      5 Members - To be nominated by the Central Government from amongst persons of ability, integrity and standing who have had experience in law or legislation, trade unionism, management of an industry potential of women, women's voluntary organisations (including women activist), administration, economic development, health, education or social welfare;       Provided that at least 1 Member each shall be from amongst persons belonging to the Scheduled Castes and Scheduled Tribes respectively;

c.       a Member-Secretary - To be nominated by the Central Government who shall be :-
                                
i.              an expert in the field of management, organisational structure or sociological movement, or
                             
ii.            an officer who is a member of a civil service of the Union or of an all-India service or holds a 
         civil post under the Union with appropriate experience

Functions of the Commission
Some of the important functions of the NCW are:

1. To investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws.

2. To take up cases of violation of the provisions relating to women with the appropriate authorities.

3. To look into complaints and take suo moto notice of matters relating to deprivation of women's rights and non-implementation of laws and policies relating to the women.

4. To participate and advice on the planning process of socio-economic development of women.

5. To make periodical reports to the Government on any matter pertaining to women.

The Commission also publishes a monthly newsletter Rashtra Mahila both in Hindi and English.

Tuesday, 9 February 2016

Burden of proof and Onus of proof

The Court can decide a case only by considering the truth and value of the several facts alleged and proved by the parties as the facts are unknown to the Court. They must be established by evidence by the parties. Now the question that arises is which party must adduce evidence? The responsibility for adducing such evidence as will establish any fact and prove the case is called the Burden of Proof. So in simple terms, the responsibility to prove a thing is called burden of proof.

Section 101 of the Indian Evidence Act, 1872 defines burden of proof as, “whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

When a person is required to prove the existence or truthfulness of a fact, he is said to have the burden of proving that fact. In a case, many facts are alleged by the parties and they need to be proved by the party alleging the fact before the court so that the court can base its judgment on such facts. The burden of proof is the obligation on a party to establish such facts in issue or relevant facts in a case to the required degree of certainty in order to prove its case. In general, every party has to prove a fact that goes in his favor or against his opponent; this obligation is nothing but burden of proof.

Now the question that arises is that who has the onus of proof
Section 101 of the Indian Evidence Act, 1872 deals with “On whom burden of proof lies - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

Burden of Proof and Onus of Proof
There is difference between burden of proof and onus of proof. The ‘Burden of Proof’ is the burden to prove the main contention of party requesting the action of the court, while the ‘Onus of Proof’ is the burden to produce actual evidence. The Burden of Proof is constant and is always upon the claimant but the Onus of Proof shifts to the other party as and when one party successfully produces evidence supporting its case.


The Supreme Court in the case of Addagada Raghavamma & Anr. v. Addagada Chenchamma & Anr. (1963) held that there is an essential distinction between burden of proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.

Sunday, 7 February 2016

Plea Bargaining

Plea bargaining means pre trial negotiations between the prosecution and the accused during which the accused agrees to plead guilty in return for certain concessions promised by the prosecution, e.g. to recommend a lesser or specific sentence or to drop or reduce some charges.

The object of Plea Bargaining is to reduce the risk of undesirable orders for the either side. One another reason for the introducing the concept of ‘Plea Bargaining’ is the fact that most of the criminal courts are over burdened with the number of cases and hence unable to dispose off the cases on merits.

The concept of plea bargaining was widely used in the America but it was introduced in India by way of Criminal Law (Amendment) Act, 2005, when a new Chapter XXI-A was inserted which came into effect from 5-7-2006.

Plea Bargaining will not be applicable in respect of those offences for which punishment is above a period of 7 years. Moreover it also does not apply to cases where the offence committed is a socio-economic offence or where the offence is committed is committed against a woman or a child below the age of 14 years.

Though plea bargaining helps in fast disposal of the cases and also in lessening the burden of the courts, still it has some drawbacks. They are:
        i.            Involving the victim in the process of plea bargaining can result in the threatening of the victim by the accused

      ii.            It would invite coercion if police if involved in plea bargaining
    iii.            It might affect the court’s impartiality
     iv.            Also if the plead guilty application of the accused in rejected then the accused would be difficult for him to prove himself innocent.

Supreme Court in the case of Kachhia Patel Shantilal Koderlal v. State of Gujarat and Another (1980) strongly disapproved the practice of plea bargain again. It observed that practice of plea bargaining is unconstitutional, illegal and would tend to encourage corruption, collusion and pollute the pure fount of justice.


Further, the Supreme Court in State of Uttar Pradesh v. Chandrika (2000), held that it is settled law that on the basis of Plea Bargaining court cannot dispose of the criminal cases. Going by the basic principles of administration of justice merits alone should be considered for conviction and sentencing, even when the accused confesses to guilt, it is the constitutional obligation of the court to award appropriate sentence. Court held in this case that mere acceptance or admission of the guild should not be reason for giving a lesser sentence. Accused cannot bargain for reduction of sentence because he pleaded guilty.

Friday, 5 February 2016

Legal Disability under Limitation Act

Every person has to file his suit or make his application within the time prescribed under the schedule of the Limitation Act only. The 'Law of Limitation' prescribes the time-limit for different suits within, which an aggrieved person can file the suit. But there can be circumstances where due to his physical or mental disability he is unable to file the suit or make an application. In such cases the law must not be the same and special privileges and relaxation must be given to the persons undergoing legal disability.

The Limitation Act mainly helps the defendants as it bars the filing of suit or making of application after the expiry of the limitation period. But in some cases Limitation Act even comes to the rescue of the plaintiff also. For example if a person is insane or an idiot then the time will not run for him and period of limitation will be extended for such person. Suppose if a person is of 12 years of age and the period of limitation of filing a suit is 3 years then in this case he being a minor cannot file a suit. So, in this case time will not run for him and the 3 year time will be counted from the date of his attaining majority, i.e., 18 years of age.

Legal disability is the lack of capability to do an act. Some of the examples of legal disability are minority, insanity, idiocy, etc. Section 6 of the Limitation Act, 1963 excuses an insane person, minor and idiot to file suit or make an application for the execution of a decree within the time prescribed by law and enables him to file the suit or make an application after the disability has ceased, counting the period of time from the date on which the disability ceased. If the person is suffering from two disabilities the time will be counted when both the disabilities have been ceased.

However, if the disability continues up to the death of the person then as per section 6(3) of the Limitation Act, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified in the schedule.

However, Section 9 of Limitation Act says that once time has begun to run, no subsequent disability or inability to sue can stop its running. This means that if even at one point of time the person is free from any legal disability then he cannot take the advantage of section 6 and time will keeping running for him. For example, if a person has to file a suit on 1-1-2016 till 31-12-2018 and he was free from any legal disability on 1-1-2016 but he became insane on 30-4-2016 then he cannot take the benefit of section 6 as time has already begun for him neither his legal representative can be allowed extra time for filing the suit.


So, section 6 applies only to the cases of initial and not to subsequent disability. Further it does not provide for a fresh starting point of limitation rather the person under disability is only entitled to an extension of time counting from the cessation of his disability. 

Wednesday, 3 February 2016

Legal Notice under section 80 of CPC

Section 80 of the Code of Civil Procedure, 1908 (CPC) mandates giving of a notice to the
Government or the public officer prior to the filing of the suit. The object of the notice under S. 80, C.P.C. is to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position and if that course is justified to make amends or settle the claim out of court.

Section 80 of the CPC reads as: “(1) Save as otherwise provided in sub-s. (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of

(a) In the case of a suit against the Central Government except where it relates to a railway, a Secretary to the Government;

(b) In the case of a suit against the Central Government where it relates to a railway. General Manager of that Railway;

(bb) In the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;

(c) In the case of a suit against any other State Government a Secretary to that Government or the Collector of the District: and, in the case of public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the court without serving any notice as required by sub-section (1); but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the court shall, if it is satisfied, after hearing the parties that no urgent or immediate relief need be granted in the suit return the plaint for presentation to it after complying with the requirements of sub-section (1).

(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice

(a) The name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

(b) The cause of action and the relief claimed by the plaintiff had been substantially indicated.”

Notice to be given to:
         i.            In the case of a suit against the Central Government except where it relates to a railway - a Secretary to the Government
       ii.            In the case of a suit against the Central Government where it relates to a railway - General Manager of that Railway

      iii.            In the case of a suit against the Government of the State of Jammu and Kashmir - the Chief Secretary to that Government or any other officer authorised by that Government in this behalf
     iv.            In the case of a suit against any other State Government - a Secretary to that Government or the Collector of the District
       v.            In the case of public officer - deliver to that public officer or left at his office

Essential requirements of sec. 80:
         i.            the addressee should be identified and must have received the communication;
       ii.            there should be no vagueness or indefiniteness about the person giving the notice, who must also be the person filing the suit and the notice must also give the details which are specified in S. 80;
      iii.            two months’ time allowed must expire before the suit is laid.


A notice u/s. 80 must be given only after the cause of action has arisen. A notice given before the cause of action has arisen is invalid. Notice under S. 80 need not be practically a copy of the plaint. It should be such as to give substantial information to the Government as to the basis of the claim and the relief which the plaintiff seeks.

Declaratory decree under Specific Relief Act

If any person entitled to any legal character, or to any rights as to any property is denied by another
and if any suit is filed by the person so denied it is called a declaratory suit. A Declaratory decree is a binding declaration of right in equity without consequential relief. In simple terms, a declaratory decree is cone which settles the right and removes the confusion of the status of the party.
Provision regarding declaratory decree has been provided in sections 34 and 35 of the Specific Relief Act, 1963. Section 34 of Specific Relief Act reads as:

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation: A trustee of property is a "person interested to deny "a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.”

Essentials of a declaratory suit
The person filing the suit must be entitled to legal right or any right as to any property
The person against whom the suit is to be filed must actually be denying the right or is interested in denying the right of the plaintiff
Passing a declaratory decree is on the discretion of the court.

Effect of declaration
The provision for the effect of declaration has been provided under section 35 of Specific Relief Act. Section 35 reads as:

A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustees.”

That means a declaratory decree is binding only on the parties to the suit and upon the representatives of the parties to the suit. So, declaratory decree is “in personam” and not “in rem”.

So a declaratory decree is one which resolves the legal uncertainty of the rights and status of the parties. However, passing of a declaratory decree is a matter of discretion of court and it cannot be claimed a right.

Monday, 1 February 2016

Effects of Armed Conflicts

Armed violence can be described as: “the intentional use of illegitimate force (actual or threatened) with arms or explosives, against a person, group, community or state, which undermines people centred security and/or sustainable development.”

The International Criminal Tribunal for the former Yugoslavia (ICTY) proposed a general definition of international armed conflict. In the Tadic case, the Tribunal stated that "an armed conflict exists whenever there is a resort to armed force between States".

Terms such as ‘civil wars’ and ‘ethnic conflict’ quickly came into use in the 1990s as shorthand descriptors for the armed conflicts in Africa, Asia and Europe. Such terms reinforced the common view that these were mainly intra-state affairs that were triggered and fuelled by virulent ethno-nationalism. However, in most cases, these conflicts involved regional actors and trans-border activities, and were driven by a mix of factors and not simply ethnic difference.

Examples of effects of Armed Conflict:
Psychological effects
·         Psychological trauma
·         Separation of families
·         Disintegration of communities
·         Living in fear

Physical effects
·         Destroyed infrastructure
·         Lack of government services
·         Lack of social services (e.g. health care and education)
·         War remnants (e.g. landmines)

Economic effects
·         Decline in government revenue
·         Decline in exports/imports
·         Reduced employment opportunities
·         Loss of available labour pool

Social Risk Factors for Non-Conflict Armed Violence
·         Proximity to drug trade
·         Availability of weapons
·         History of violence and/or crime
·         Cultural norms enabling violence
·         Poor rule of law
·         Strong cultural or ethnic identities
·         Social, political and economic inequality
·         Heterogeneity (large minority/majority groups)
·         Ineffective social institutions
·         Discriminatory policies and practices
·         Low economic development

Community Risk Factors for Non-Conflict Armed Violence
·         Groups engaged in drug trade
·         Weapons in circulation
·         Existence of gangs
·         High homicide/crime rates
·         Limited police presence
·         Social isolation
·         Lack of economic opportunities
·         High population density
·         Lack of access to social services
·         High residential mobility

·         High unemployment