Thursday, May 28, 2015

Defending India’s IPR

It is ten years since India amended the Indian Patents Act, 1970 to bring its laws in line with the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The most important of those amendments related to the introduction of product patents for 20 years, including for pharmaceutical products. Significant safeguards were built into the legislation. These included debarring of ever greening patents, a process by which the patent holder seeks to extend the life of patents by some minor tinkering with the products. The amended legislation also expanded the scope of compulsory licensing and introduced for the first time post grant opposition to patents (Provisions relating to pre-grant opposition were retained).The legislation raised the bar for what constitutes an invention and what cannot be patented in India.

The above provisions served Indian consumers well by keeping the price of some important drugs dealing with critical illnesses such as cancer under check. The Patent office’s rulings have by and large been upheld by the highest courts. Inevitably big pharma have lobbied with their governments to force India to dilute the provisions.

The new government under pressure

The NDA government’s approach to the IPR issues has been a subject of intense discussion, especially in the context of repeated attempts by the US Trade Representative (USTR) to put India and some other countries on the mat over the alleged weaknesses in their IPR regime. The Office of the USTR is part of the executive office of the American President and apart from being the chief trade negotiator of the U.S. government has enormous clout over the conduct of trade across the world.

On April 30, the office of the USTR named India and China among 13 countries, which were placed on a priority list, requiring close scrutiny for their alleged IPR weaknesses in diverse areas including pharma, IT and publishing.

The report called upon these governments to plug what it thinks are the lacunae in their IPR regimes so as to align them with global standards. For India the USTR action has been a persistent thorn. As soon as the NDA government took office it had to face a similar report. In fact out of last year’s inclusion in the priority list, India faced a mid-term appraisal.

However, the U.S. authorities noted some improvement — a conclusion no doubt arising out of improving relations between the two countries at the highest levels.

There has been one saving grace on both occasions: India while being on the priority list was not designated a priority watch country, which might have led to penal action against India. In practical terms that means being able to stand up to influential lobbies such as seen spectacularly in pharma. The consolation prize of avoiding punitive action by the developed countries is simply not enough.

Draft of a new policy

India needs to fashion a policy that will be in tune with global standards and at the same time protect special Indian strengths. Prime Minister Narendra Modi has said as much: “India should align its IPR laws with global standards.” Commerce Minister Nirmala Sitharaman remarked earlier that “We need an integrated policy,” While nothing significant can be inferred from these statements the government has done well to release a draft IPR policy in the public domain. Taking a balanced approach, it says that existing laws — that seek to protect the rights and incentives of innovators on the one hand and public interest on the other — would remain. However it also calls for legislative changes to keep pace with economic and technological developments.

A challenging task

It is going to be an extremely challenging task to stick to that position. Of special concern have been the developments in the pharma industry where India is facing maximum pressures from extremely well funded lobbies set up by big pharma from the U.S. and other developed countries (although it must be reiterated that pharma is not the only area).

IPR challenges have to be met increasingly through political action and diplomacy. The government needs to strengthen its decision-making process and boost the skills of its negotiators. In this connection an important initiative of the NDA government has been the setting up of an IPR think tank which among other tasks, will help in the formulation of a National Intellectual Property Rights policy for the first. The draft paper is the first step. The government has called for feedbacks before it finalises a new IPR policy.

The domestic constituency of the NDA government also cannot obviously be ignored. Already there have been rumblings over the composition of the technical committee that will advise the government.

To reiterate, the main challenge is to eradicate even the faintest of suspicions that the government is acting under external pressure. India does not have an IPR policy but it has a strong legal foundation. Important precedents have been set especially in pharma-related matters. Besides, there is a well functioning Patents office with sufficient experience to grant patents and uphold consumer interests. From here a new, well balanced policy should not be too difficult. Resisting the big lobbies which have the support of the political establishments of developed countries is an entirely different matter.

(This article first appeared in The Hindu dated May 18, 2015)

India’s IPR environment is maturing

Legal systems are in place, landmark judgements have been pronounced, and next-gen policies are being evolved

The establishment of the World Trade Organisation (WTO) at the conclusion of the Uruguay Round (UR) on negotiations in 1995 signalled a quantum leap in integrating developing countries with the global economies. Developing countries undertook greater commitments lured by additional market access in agriculture, textiles and the movement of people.

In a well researched report by RIS India , the gains from the UR proposals were estimated to be between $213-$510 billion a year, with developing countries benefiting to the tune of $86-$122 billion. Empirical evidence suggests that there has been a significant deviation of these income flows to the developing world in favour of the developed world.

Works in progress
The Indian intellectual property rights system represents one of the most mature IP systems amongst developing countries, although some of the studies rank it below China, which is often accused of thefts, counterfeiting, piracy and cyber attacks on IPRs. Successive Indian governments have put in efforts to improve IP legislation since 2000. Jurisprudence has consistently evolved, institutions like the Intellectual Property Appellate Board (IPAB) have been established, and landmark judgments by the judiciary have been given in the past few years. In recent times, key efforts have been made by the PMO to revisit the IP regime and a task force has been set up to evolve a next generation IP policy for our nation.

There have been acrimonious noises made by US industry against Indian IP legislation and its interpretation by the government and judiciary. Criticism of certain provisions in the Patent Act that renders evergreening of patents ineligible for grant has generated considerable heat. Similarly, lack of IP enforcement, a non-responsive legal system, lack of awareness and compulsory licensing have all come under fire.

On the ground, it appears to be a lot of work in progress. Significant policy changes in recent years by successive governments have been responsible for the evolution of IP legislation in our country. Indian pharmaceutical companies have become globally competitive in the generics market.

Not only are Indian companies competitive, the drugs produced by these companies have pharmacologically better characteristics and quality. Some of these domestic companies are also entering into licensing agreements with global players such as Sanofi, Forest Laboratories, Bristol Myers Squibb, Merck, and Eli Lilly and AstraZeneca in the R&D space. Over 50 NCEs/NMEs from Indian companies are at different stages of development for new drugs. This marks the entrance of Indian pharma companies in drug discovery; an innovation cycle that may be fraught with difficulties but is equally rewarding of success.

On copyright

In the case of the entertainment and IT industry, the recent involvement of the HRD ministry with industry associations such as Ficci, BSA and MPA are providing copyright enforcement training to police officers and its governing officials. To deepen awareness on copyrights, the ministry is in the process of finalising the inclusion of IPR as a compulsory subject in K-12 education. These are likely to see much anticipated reduction in unlicensed software and piracy of music and films.

There have been pioneering judgments that decisively deal with digital TM violations, meta tagging and parallel imports, making our legal environment more responsive and intolerant towards IP abuse. The decision of grant of interim royalty payouts by the Delhi High Court in the Ericsson vs Micromax case is a turning point in the “no damage cover” regime prevalent in India.

In the engineering and manufacturing sectors, IP capability and process maturity appear to be the binding-glue that will allow OEMs (original equipment manufacturers) transfer critical IPRs to Indian companies without fear. These ingredients must find a place in training each skilled worker in this exercise of nation-building. It is recommended that each set of National Occupational Standards must aim to create workers who are knowledgeable, innovative, skilled and IP centric.

India’s openness to re-examine its IPR laws and policies, and establish a think-tank and an empowered group on IPR reflects serious intentions of her transforming attitude towards IPRs.


Monday, May 11, 2015

Supreme Court upholds maintenance for live-in partners

The Supreme Court said if a live-in relationship breaks down, the man is bound to pay maintenance to the woman and the children born from the relationship. 

A bench of Justices Vikramajit Sen and A M Sapre dismissed a petition by a man who claimed that since he was already married before entering into the live-in relationship, his partner could not claim the status of a wife to be legally entitled to maintenance under Hindu Marriage Act. 

The petition was filed by 'Z', who works in Bollywood, challenging an order of the Bombay high court, which had held that his live-in partner of nine years and the child were entitled to maintenance after their relationship ended. 'Z' argued that he was legally married to another woman for the last 49 years, hence his live-in partner was not entitled to maintenance as she was well aware of his marital status. 

He said his live-in partner was a 'call girl' and alleged that she had decided to live with him on her own wish since 1986. They lived together for nine years and a child was born to them in 1988. 

Justices Sen and Sapre slammed 'Z' for referring to his erstwhile live-in partner as a 'call girl' and said he was a philanderer as he was living with another woman despite being married. 

"How absurd is your argument. You yourself went for the live-in relationship but now you are branding the poor lady as call girl. You are such an idiot that you went for a relationship. You are yourself a philanderer as you got into a relationship despite being married," the bench said. 
In this case, the woman had first approached the family court in Bandra for declaration of their relationship as husband and wife. The court, however, refused her plea after 'Z' told the court that he was already married to someone else. She then approached the HC which had said she was eligible to claim maintenance for herself and her daughter. 'Z' challenged the HC order in the apex court. 

The court in its various orders has recognized the concept of live-in relationship in society. It has gone to the extent of saying that if a man and woman "lived like husband and wife" for a long period and had children, the judiciary would presume that the two were legally married. 

In April, the apex court had said continuous cohabitation of a couple would give rise to the presumption of a valid marriage and it would be for the opposite party to prove that they were not legally married. 
"It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party who seeks to deprive the relationship of legal origin," it had said.

Supreme Court upholds life term awarded to 7 for murdering student

The Supreme Court has awarded life imprisonment to seven persons for killing a student in 1996 over a row on contesting college election in Dehradun saying "common intention to kill" the victim could not be ruled out.
The Supreme Court has awarded life imprisonment to seven persons for killing a student in 1996 over a row on contesting college election in Dehradun saying "common intention to kill" the victim could not be ruled out.

A bench of justices P C Ghose and R K Agrawal upheld the punishment awarded by the Uttarakhand High Court to Dheeraj Kalra, Rishi Kumar, Som Prakash, Saurabh, Nitin, Bhagat Singh and Sanjeev Kumar for killing Alok Chandana who had refused to withdraw his candidature for the college election.
"We are of the view that in the present case, even if it is assumed that there was no common object of killing, but only of stopping the deceased and others from contesting the elections, it cannot be ruled out that the common intention to kill might have arisen on the spur of the moment. "The actions of appellants and the injuries inflicted on the body of the deceased also go to substantiate the same," the bench said.

The apex court was hearing appeals filed by the convicts against the high court verdict passed in April 2011 which had confirmed the life term given to them by the trial court. The trial court had convicted them for offences under section 302 (murder) read with section 149 (unlawful assembly) of the IPC.

While dismissing their appeals, the apex court said, "We do note that investigation suffers from certain flaws such as non-recovery of the weapon used by the accused appellants and recovery of the blood stained shirt after six days of the date of the incident."

"However, merely on the basis of these circumstances the entire case of the prosecution cannot be brushed aside when it has been proved by medical evidence corroborated by testimonies of the prosecution witnesses that the deceased died a homicidal death," the bench said.

According to police, on September 24, 1996, Vipin Singh Negi, his friend Alok and others were standing in the campus of DAV (PG) College at Dehradun when the armed accused came there and asked Vipin and Alok to withdraw their names from the college election.

When they refused, the accused assaulted them in which Vipin and Alok received serious injuries. Thereafter, they were taken to a hospital by some college students but Alok succumbed to his injuries the next day after which an FIR was lodged on Vipin's complaint. After the trial, the lower court convicted the seven accused and awarded them life term which was upheld by the high court. Thereafter, they had approached the apex court.

‘A judge must consider evidence objectively’

When Justice C.R. Kumaraswamy delivers his judgment on the appeals filed by former Tamil Nadu Chief Minister Jayalalithaa and three others against their conviction in a disproportionate assets case on Monday, it is pertinent that the verdict satisfies the high standards of judicial accountability and objectivity set for the judge personally by the Supreme Court.

On April 27, 2015, a three-judge Bench of the Supreme Court led by Justice Dipak Misra flayed the appearance of Public Prosecutor G. Bhavani Singh in appeals pending before Justice Kumaraswamy at the Karnataka High Court as “bad in law.”

But Justice Misra, writing the judgment on a petition filed by DMK leader K. Anbazhagan, did not order a fresh hearing of the appeals. Instead, the apex court sought to bank on Justice Kumaraswamy’s prowess as a High Court judge to administer justice in a corruption case.

It is this April 27 judgment that cleared the path for Justice Kumaraswamy to deliver his verdict in the appeals on May 11 — a day before the SC deadline ends.

Justice Misra, speaking through his judgment on April 27, conveyed to Justice Kumaraswamy how “the duty of the judge is to consider the evidence objectively and dispassionately.”

Justice Misra quoted two apex court verdicts on corruption by public servants — Niranjan Hemchandra Sashittal versus State of Maharashtra and Dr. Subramanian Swamy versus Union of India — to emphasise that “corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the Prevention of Corruption Act, 1988”.

Supreme Court asks own: Are we being flexible with law in granting divorce?

Under Article 142, the Supreme Court has the authority to issue any order “for doing complete justice”.
A Supreme Court bench has decided to examine whether the top court should be granting divorce on the ground of irretrievable breakdown of marriage and without the mandatory 18-month period of separation.
For many years now, the Supreme Court, exercising its power under Article 142 of the Constitution, has been granting divorce even while the Hindu Marriage Act makes it mandatory for couples to stay apart for at least 18 months before parting with mutual consent.
While the government has informed the top court that there is no proposal to incorporate irretrievable breakdown of marriage as one of the conditions for grant of divorce in the Act, a bench of Justices Ranjan Gogoi and N V Ramana has decided to examine whether judges should be overriding the legislative will.
Under Article 142, the Supreme Court has the authority to issue any order “for doing complete justice”. Using this, the court has granted divorce in several cases, dispensing with the six-month waiting period after a judicial separation of one year — that makes it 18 months under Section 13B of the Act.
Adjudicating a clutch of petitions wherein couples wanted the waiting period to be curtailed since there was irretrievable breakdown of marriage, Justices Gogoi and Ramana wondered if they should exercise such power when the Act provides otherwise. They sought the views of Attorney General Mukul Rohatgi who said the legislature was not contemplating irretrievable breakdown of marriage as a ground for divorce.
On whether the court should dispense with the waiting period, Rohatgi said there have been dissenting views of different benches of the apex court between 1996 and 2010. Some judges were of the opinion that the six-month notice period should be relaxed while others said if legislature had a specific provision, couples should be sent to family courts for getting divorce as per law, he said.
Rohatgi said it may be proper to let a constitution bench decide whether divorce can at all be granted on the ground of irretrievable breakdown of marriage and also if the waiting period could be dispensed with.
The bench, however, noted that referring the issue to a constitution bench may not provide a solution since a decision by it would take long while such cases would keep coming up in quest of speedy disposal. It observed there could be “numerous peculiar situations” in a marriage and when “it is almost impossible to understand human beings, devising a thumb rule to grant divorce in such cases is very difficult”.
The bench appointed four amicus in the case — senior advocates V Giri, Dushyant Dave, Indira Jaising and Meenakshi Arora — and sought their assistance in finding legal answers to two questions it framed.
It sought to know whether the top court should exercise its power under Article 142 at all or whether it could be done on a case-to-case basis. Further, what could be the broad parameters for exercise of such power to dissolve a marriage without referring a couple to a family court to wait for the mandatory period.

Sunday, May 10, 2015

Supreme Court issues notice on PIL seeking India to be official called Bharat

Supreme Court of India on 24 April 2015, issued notice on a Public Interest Litigation petition which seeks to change the name of the country from ‘India’ to ‘Bharat’.

Case Number Writ Petition (Civil) No. 203 of 2015
Case Title Niranjan Bhatwal v. Union of India and Others.


Article 1 of the Constitution of India provides:

1. Name and territory of the Union

(1) India, that is Bharat, shall be a Union of States…


Bhatwal’s petition inter alia seeks:

The name of the country be recognised as Bharat instead of India;
Union and State Governments be restrained from using the name of India for any government purposes and in official papers;
The non- government organisations and corporates also be directed to use ‘Bharat’ for all official and unofficial purposes.


The petition raises a question that whether the insertion of India in ‘Article 1 of the Constitution’ was just for the purpose reference, in order to repeal the Government of India Act 1935, and the Indian Independence Act 1947, wherein the country had been referred to as India, and sought to be repealed by Article 395 of the Constitution.

395. Repeals
The Indian Independence Act, 1947 , and the Government of India Act, 1935 , together with all enactment s amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949 , are hereby repealed

Petition also raises a question whether insertion of ‘India’ was merely for the purpose of making a reference for the de-jure recognition of the country by countries of other parts of the world for diplomatic purposes.
Petition asks whether Hindi language excerpts of Article 1 – clause 1 of the Constitution of India denote the same meaning, as it denotes in the English language of the Constitution in relation to establish the name of the country.

Supreme Court Vs Traditional Norms. Live-In Relationships Ruled As Marriage Under Law

Supreme Court ruled that domestic relationships where a couple lives together, outside of marriage, will be considered as marriage under the law. Such relationships, also known as live-ins have over time become increasingly popular. They allow individuals the freedom of getting to know one another without the burden of a legally binding relationship.
These easy-in easy-out relationships exclude the abhorrent mess of family drama and prolonged legal battles in case the couple decides to break up. Expectedly so, these relationships are considered a taboo in Indian social culture. It is therefore even more surprising that the Supreme Court now considers them to be marriage.
But before we pursue deciphering the legal argument, let us try to understand what constitutes a live-in relationship based on the following court judgments.
Defining 'live-in':
Indira Sarma vs VKV Sarma
The judgement of Indira Sarma vs VKV Sarma by the Supreme Court, came in as a breath of fresh air. Amidst the lack of specific legislation on the subject, the apex court made an important decision to discuss live-in relationships under the pretext of the Domestic Violence Act. The court stated, "Live-in or marriage-like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal".
It was the task of the court to determine whether this live-in relationship fell under the definition of "domestic relationship" under section 2(f) of the Protection of Women from Domestic Violence Act, 2005. Thus the court had to determine if this relationship amounted to a "relationship in the nature of marriage".
There is no legal definition for a live-in relationship. It is understood to be a domestic relationship between two people in a romantic relationship. Sexual intimacy is popularly accepted, although not mandatory.
A bench of Justice MY Eqbal and Justice Amitava Roy said continuous cohabitation of a couple would raise the presumption of valid marriage and the burden of proof would fall on the opposite party to prove that they were not legally married.
The Supreme Court since 2010 has consistently ruled in favour of couples living together as husband and wife, giving the woman the rights of a wife. These rights include protection from domestic violence, the right to inherit property, the legitimacy of her children and the maintenance of woman after split.
Live-in and domestic violence, nature of relationship:
D.Velusamy vs D.Patchaiammal
The Supreme Court in this case allowed a live-in relationship to come within the purview of the Domestic Violence Act (DV Act), 2005, subject to fulfillment of some additional criterion.
A woman under DV Act can request compensation in case of physical, mental, verbal or economic abuse. The victim has been granted several rights and protections under this legislation. The woman is allowed custody of her children and a right to claim compensation for any harm caused.
In the Velusamy case the relationship was considered as a "relationship in the nature of marriage". There are certain pre-requisites of such a relationship, for instance, the couple must be of legal marriageable age, they must present themselves in society as akin to spouses, they must have voluntarily cohabited, they must be qualified to marry, therefore be unmarried.
If these guidelines are met, then the relationship is considered to be a marriage, and a complaint can be filed under the DV Act. In the Velusamy case the guidelines were quite vague, however, there are cases where the court suggests specific guidelines for the couple. Such as 'Domestic Arrangement', in which case the relationship will only be considered in the nature of marriage if the woman is bearing the responsibility of 'running the household'. She must do the household activities of cleaning, cooking and maintenance.
So, according to the Supreme Court, a woman's role in a marriage is restricted only to household activities. Could one suggest then, that a woman who does not fulfil this role is unmarried?
Live-in and inheritance:
Grandfather's mistress vs Rest of the family
The recent SC decision was taken during a property dispute case. A family contested that their grandfather, who was living with a woman for 20 years after the death of his wife, was not married to her and therefore she was not entitled to inherit the property after his death. They contended that she was their grandfather's mistress.
Despite the woman failing to provide proof that she was legally wedded, the court ruled in her favour after the family members admitted she was living with their grandfather in the joint family. She was therefore able to inherit any property of the deceased.
Live-in and having children:
SPS Balasubramanyam vs Suruttayan
In this case, the court suggested that since the relationship extended over a long period of time, any child born out of this union will be considered legitimate. There are however, certain complexities in this matter. The Hindu Marriage Act, 1955 considers all children born even out of a wedlock to be legitimate and therefore entitled to any inheritance. Thus inheritance rights have been granted to children of live-in relationships, with respect to both ancestral and self-acquired property.
The problem here, is that in some cases courts have relayed back to the Hindu Marriage Act, and in some they have considered the time the couple has lived together. Thus raising questions of equal judgement in the courts. Recently though, most courts have considered children born out of wedlock to be legitimate.
The argument
Calling a live-in relationship a marriage, is a lot like painting a horse black and white and calling it a Zebra - It's just not true.
That being said, legitimising a live-in relationship as a marriage does have its perks. Women have the right to sue under the DV Act, children born of the union can inherit property, women have the right to maintenance and/or property if they split, etc. These are all aspects of marriage that would not exist for couples in a live-in relationship had it not been for the Supreme Court's recent ruling.
However, how fair is it for the State to intervene in one's private relationships? Yes, the ruling provides safeguards for those who enter a relationship like this. Yes, it is particularly beneficial for women and children. But even so, what of the couples that have chosen not to be married and are happily living in a consensual union?

It is definitely a problematic ruling and one that is sure to be feverishly debated on social media and traditional media alike.