Tag: constitutional law

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Evolution of basic structure doctrine in India

This post has been authored by Hiral Chandrakant Jadhav- Panchal

EVOLUTION OF BASIC STRUCTURE DOCTRINE
1.    A.K. Gopalan v. State of Madras (1950)

In the A.K. Gopalan v. State of Madras (1950) case, the Supreme Court interpreted the Fundamental Rights under Part III of Indian Constitution.

In this case, it held that the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action.

This means that the State can deprive the right to life and personal liberty of a person based on a law.

This is because of the expression ‘procedure established by law’ in Article 21, which is different from the expression ‘due process of law’ contained in the American Constitution.

Hence, the validity of a law that has prescribed a procedure cannot be questioned on the ground that the law is unreasonable, unfair, or unjust.

Secondly, the Supreme Court held that ‘personal liberty’ means only liberty relating to the person or body of the individual.

2.     Shankari Prasad v. Union of India (1951)

In this case, the constitutional validity of the First Amendment Act (1951), was challenged.

The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights.

The word ‘law’ in Article 13 includes only ordinary laws and not constitutional amendment acts (constituent laws).

Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.

To learn more about the Indian Constitution, enrol for Certificate in Constitutional Law. 

  1. Berubari Union Case (1960)

In this case, the issue was resolved about whether the Preamble is part of the Constitution or not.

According to the Supreme Court, in the Berubari Union case (1960), the Preamble shows the general purposes behind the several provisions in the Constitution and is thus a key to the minds of the makers of the Constitution.

Further, where the terms used in any article are ambiguous or capable of more than one meaning, some assistance at interpretation may be taken from the objectives enshrined in the Preamble.

Despite this recognition of the significance of the Preamble, the Supreme Court specifically opined that the Preamble is not a part of the Constitution.

Therefore, it is not enforceable in a court of law.

  1. Golaknath v. State of Punjab (1967)

In that case, the Supreme Court ruled that the Parliament cannot take away or abridge any of the Fundamental Rights.

The Court held that the Fundamental Rights cannot be amended for the implementation of the Directive Principles.

The Parliament reacted to the Supreme Court’s judgement in the Golaknath Case (1967) by enacting the 24th Amendment Act (1971) and the 25th Amendment Act (1971).

  • The 24th Amendment Act declared that the Parliament has the power to abridge or take away any of the Fundamental Rights by enacting Constitutional Amendment Acts.
  • The 25th Amendment Act inserted a new Article 31C which contained the following two provisions: No law which seeks to implement the socialistic Directive Principles specified in Article 39 (b) and (c) shall be void on the ground of contravention of the Fundamental Rights conferred by Article 14, Article 19, or Article 31.

No law containing a declaration for giving effect to such a policy shall be questioned in any court on the ground that it does not give effect to such a policy.

To learn more about the Indian Constitution, enrol for Certificate in Constitutional Law. 

5. Indira Nehru Gandhi v. Raj Narain case (1975)

The doctrine of basic structure of the constitution was reaffirmed and applied by the Supreme Court in the Indira Nehru Gandhi case (1975).

In this case, the Supreme Court invalidated a provision of the 39th Amendment Act (1975) which kept the election disputes involving the Prime Minister and the Speaker of Lok Sabha outside the jurisdiction of all courts.

As per the court, this provision was beyond the amending power of Parliament as it affected the basic structure of the constitution.

The Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the 42nd Amendment Act (1976).

This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.

  1. Minerva Mills v. Union of India (1980)

The Supreme Court reiterated that Parliament can amend any part of the Constitution but it cannot change the “Basic Structure” of the Constitution.

In the Minerva Mills case, the Supreme Court held that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles.

They together constitute the core of the commitment to social revolution.

The goals set out by the Directive Principles have to be achieved without the abrogation of the means provided by the Fundamental Rights.

Therefore, the present position is that Fundamental Rights enjoy supremacy over Directive Principles.

Yet, this does not mean that the Directive Principles cannot be implemented.

The Parliament can amend the Fundamental Rights for implementing the Directive Principles, so long as the amendment does not damage or destroy the basic structure of the Constitution.

7.  S. R. Bommai v. Union of India (1994)

In this case, the Supreme Court laid down that the Constitution is federal and characterised federalism as its ‘basic feature’.

It observed the fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the states does not mean that the states are mere appendages of the Centre.

The states have an independent constitutional existence. They are not satellites or agents of the Centre. Within the sphere allotted to them, the states are supreme.

The fact that during an emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal feature of the Constitution.

They are exceptions and an exception is not a rule. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle–the outcome of our own process and a recognition of the ground realities.

To learn more about the Indian Constitution, enrol for Certificate in Constitutional Law. 

  1. Keshavanda Bharti v. State of Kerala (1973)

It was the Kesavananda Bharati case that brought this doctrine into the limelight. It held that the “basic structure of the Indian Constitution could not be abrogated even by a constitutional amendment”. The judgement listed some basic structures of the constitution as:

  • Supremacy of the Constitution
  • Unity and sovereignty of India
  • Democratic and republican form of government
  • Federal character of the Constitution
  • Secular character of the Constitution
  • Separation of power
  • Individual freedom

Over time, many other features have also been added to this list of basic structural features. Some of them are:

  • Rule of law
  • Judicial review
  • Parliamentary system
  • Rule of equality
  • Harmony and balance between the Fundamental Rights and DPSP
  • Free and fair elections
  • Limited power of the parliament to amend the Constitution
  • Power of the Indian Supreme Court under Articles 32, 136, 142 and 147
  • Power of the High Court under Articles 226 and 227

Any law or amendment that violates these principles can be struck down by the SC on the grounds that they distort the basic structure of the Constitution.

9. Waman Rao Case (1981)
  • The SC again reiterated the Basic Structure doctrine.
  • It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgement, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to that date.
  • In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the 9th Schedule of the Constitution.
    • The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B to provide a “protective umbrella” to land reforms laws.
    • This was done in order to prevent them from being challenged in court.
    • Article 13(2) says that the state shall not make any law inconsistent with fundamental rights and any law made in contravention of fundamental rights shall be void.
    • Now, Article 31-B protects laws from the above scrutiny. Laws enacted under it and placed in the 9th Schedule are immune to challenge in a court, even if they go against fundamental rights.
  • The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda judgement are valid, and those passed after that date can be subject to scrutiny.

To learn more about the Indian Constitution, enrol for Certificate in Constitutional Law. 

  1. Indra Sawhney and Union of India (1992)

SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with certain conditions (like creamy layer exclusion, no reservation in promotion, total reserved quota should not exceed 50%, etc.)

  • Here, ‘Rule of Law’ was added to the list of basic features of the constitution.
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Rule Of Law in Globalising World

The concept of rule of law finds its origin in the rulings of Chief Justice Sir Edward Coke[1] wherein he emphasised the significance of the King being under the law. However, it was only later that A. V. Dicey in his book: Introduction to the study of the Law of the Constitution, 1885[2], tried developing the concept further. He identified three components of the rule of law[3]–

  1. The supremacy of law
  2. Equality before law
  • Constitution as a result of ordinary law of the land (signifying the relevance of judge-made laws in England)

These components ensured that the rule of law acted as a constraint on the arbitrary exercise of power by the sovereign over its subjects. Therefore, his primary focus was on the way in which the law was made, applied, and enforced (process-focused approach), rather than the actual content of the law (end-focussed approach). This creates a lot of confusion with respect to the applicability of the rule of law. Modern democracies are founded on this principle, however, there are contrasting convictions about what ‘law’ is/should be.

Previously, the concept of rule of law was limited in its application to the sovereign territory of the state as the interactions were primarily intranational. However, over a period of time, with the advent of technology and the movement of people, goods and services across borders, such interaction became international, leading to cross-border disputes. Through the process of globalization, “political, economic, and technological changes have had globalizing ramifications that penetrate state borders in ways that transformed the core rule of law values in the international legal order and have created a shift away from the previously prevailing state-centric system.”[4]

With respect to the applicability of rule of law at the international level, globalisation has made the world one single market where individual and state entities interact with other individuals and entities on a daily basis. Therefore, such interaction cannot be left unchecked with respect to the foundation principle of the legal system i.e. the rule of law. Hence, there is a need to transpose the principle of rule of law, internationally, in light of the globalized world. The significance of rule of law at the international level in the era of globalisation has been pointed out a number of times[5].

However, this transposition is easier said than done. There are some inherent issues in applying the principle globally. Firstly, with respect to whether such a principle, which was originally developed to be applicable to the national legal system, can be applied to the international legal system, in the absence of a central sovereign authority. Secondly, if the answer to the first issue is affirmative, does such international application require a reconceptualization of the original concept of rule of law in order to adapt it to the legal issues arising at the international level. Thirdly, should the international rule of law be limited in its application with respect to the relationship of different sovereign nation-states, or should it also be applied to the relationship of different individuals who are subjects of such nation-states?

The first roadblock towards the applicability of the principle of rule of law in the globalised world today encompasses the fact that there is no common sovereign power in the international arena. There is United Nations, however, the international law establishing such an institution, is a soft law in itself. Besides, it is left to the discretion of the nation-states to decide whether they wish to be a part of the U.N. Since there is no common sovereign, it is often contented by scholars that the rule of law cannot meaningfully exist in the international arena.[6] This further entails the difficulty in ascertaining what constitutes “law” in the international context since there is no “one” sovereign, and no “one” law regulating the conduct of individual nation-states.

Secondly, the Dicean concept of rule of law highlights a very narrow and process-focused approach. Such a framework will not satisfy the end objective of rule of law at the international level, with respect to acting as a constraint against the gross violation of the fundamental human rights of the individuals by the sovereign states. Therefore, the rule of law, when transposed to the international level, should not only be process-oriented but also end-oriented.

However, the nation-states, in light of the growing interaction in the globalized world and the common aim to attain international peace and order, have taken the necessary steps to address these roadblocks in the applicability of the principle internationally[7]. Globalization has a significant contribution to the development of both domestic and international legal frameworks governing and regulating transnational transactions and activities. This has led to the development of international institutions tasked with the implementation of international law to secure peace, order and respect for basic human rights in the international community.

In today’s world, however, the significance of the rule of law stretches far beyond its application to traditional inter-state relations. The second aspect of the rule of law at the international level is the increasing attention of the international community on the impact of the international rule of law on individuals, with respect to the need to protect the inalienable human rights of the individuals. The international humanitarian law and human rights law has ensured that the basic human rights of the “individuals” are brought at the centre stage[8], and that every nation-state is obligated to protect them. These developments have placed legal constraints on the conduct of sovereign states in the international community and prescribed international standards which ensure that substantive aspects of justice are also catered to, at the global level.

However, this individual-focused approach to rule of law at the international level is being implemented at the domestic level, by making the domestic legal system in line with the international standards. In light of this, it is important to keep a check on the discretion provided to the national legal system regarding the substantive rules as rule of law cannot be considered effective in its true essence if the laws are unjust and oppressive.

 

[1] LTJ, http://lawtimesjournal.in/rule-of-law/ (last visited Feb. 1, 2021).

[2] A V DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION (1885).

[3] Id.

[4] Ruti G. Teitel, Humanity’s Law: Rule of Law for the New Global Politics, 35 CORNELL INT’L L.J. 355, 357 (2002).

[5] The Rio +20 Conference on Sustainable Development Outcome Document, 2012; UN Millennium Development Goals etc.

[6] Charles Sampford, Reconceiving the Rule of Law for a Globalizing World, GLOBALISATION AND THE RULE OF LAW 9, 10 (2005).

[7] UDHR, ICCPR, ICESCR, Convention against Terrorism, Human Trafficking etc.

[8] United Nations Human Rights Committee, the International Criminal Tribunals (ICTY, ICTR), and the International Criminal Court (ICC) etc.

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Data Protection Regime in India

Privacy has been considered an international human right, as is enumerated under Article 12 of the Universal Declaration of Human Rights[1] and Article 17 of International Covenant on Civil and Political Rights.[2] India being a signatory to these international instruments, is under an obligation to protect privacy of the individuals. The current legal framework in India with respect to privacy and data protection is scattered in different legislations, rules and regulations, which individually deal with certain aspects of data protection.

The most important piece of legislation with respect to data protection is the Information Technology Act, 2000 (IT Act). Section 43A of the Act imposes civil liability on the body corporates if, while dealing with sensitive personal data or information, they are found to be negligent in implementing reasonable security practices and procedures and this leads to wrongful loss or gain to any person[3]. Furthermore, Section 72A imposes criminal liability on any person for disclosing personal information of an individual to a third party, without the consent of such individual[4]. These provisions are to be read with the IT (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011[5] [SPDI Rules], which defines sensitive personal data or information[6] and provides the procedures to be followed by a body corporate for collection[7], disclosure[8] and transfer[9] of information. The Rules further provides what constitutes reasonable security practices and procedures[10].

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Furthermore, the Information Technology (the Indian Computer Emergency Response Team and Manner of Performing Functions and Duties) Rules, 2013 (Cert-In Rules) impose an obligation on the service providers, intermediaries, data centers and corporate entities to mandatorily notify, in case of certain type of ‘Cyber Security Incidents’.

With respect to the protection of financial data, the Credit Information Companies (Regulation) Act, 2005 (CICRA) requires that the credit information of individuals in India has to be collected as per privacy norms enunciated in the CICRA regulation. Entities collecting the data and maintaining the same have also been made liable for any possible leak or alteration of this data.

With respect to the protection of health data, the Digital Information Security in Healthcare Act (DISHA), 2018 aims to protect the privacy of patients by protecting their medical data. It lays down the procedure for sharing of personal health records, through digital medium, between various healthcare service providers. Further, the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2020 impose an obligation on the registered medical practitioner to comply with the relevant provisions of the IT Act, data protection and privacy laws[11].

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The Indian Contract Act, 1872 also become applicable if the privacy and confidentiality clauses enumerated in the agreement are breached by either party.

The Indian Penal Code, 1860 becomes applicable in the realm of data protection regime, as when there is a theft of data, prosecution can follow for the offenses of theft[12], misappropriation of property[13] or criminal breach of trust[14] under the Code.

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The most significant development in India has been the case of Justice K S Puttaswamy v Union of India[15], wherein the nine-judge bench of the Apex Court unanimously held that the right to privacy is an intrinsic part of personal liberty under Article 21 of the Indian Constitution. This highlighted the need for a data protection legislation dealing with all the direct and incidental aspects. The latest step towards this has been the Personal Data Protection Bill of 2019 which is currently being reviewed by the Joint Parliamentary Committee. Once this Bill becomes a law, India will have a single piece of legislation exclusively dedicated to privacy and data protection.

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[1] Universal Declaration of Human Rights, 1948, art. 12.

[2] International Covenant on Civil and Political Rights, 1966, art. 17.

[3] Information Technology Act, 2000, s. 43A

[4] Information Technology Act, 2000, s. 72A.

[5] Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011

[6] Id, rule 3.

[7] Supra note 66, rule 5.

[8] Supra note 66, rule 6.

[9] Supra note 66, rule 7.

[10] Supra note 66, rule 8.

[11] Applicability of the Regulations.

[12] Indian Penal Code, 1860 , s. 378 and s. 379.

[13] Indian Penal Code, 1860, s. 403.

[14] Indian Penal Code, 1860 , s. 405, s. 408 and s. 409.

[15] Justice K S Puttaswamy v. Union of India, (2017) 10 SCC 1.

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Ritu Kumar v. Biba

Ritika Private Ltd. vs Biba Apparels Pvt Ltd. 230 (2016) DLT 109

Delhi High Court

Judges: Justice Valmiki J. Mehta

Applicable law: Section 15 of the Copyright Act, 1957

Did you know: In order for the owner of a design to enjoy protection under the Designs Act, 1911, it is necessary that the design be registered under the act.

Effect of Legal Provisions: Section 15 of the Copyright Act states that if a design is registered under the Designs Act, 1911 the copyright in such design will cease. Copyright will also cease even if the design is not registered but is capable of registration and the design has been reproduced more than 50 times.

Where it all began:

  1. Ritika owns the famous brand ‘Ritu Kumar’ and Biba Apparels also owns a famous brand called ‘Biba’. Both produced apparel and accessories using industrial designs
  2. Ritika alleged that Biba had copied the designs of Ritu Kumar and had used them to produce apparel and as such, it had infringed the copyright of Ritika.
  3. Ritika’s designs are not registered under the designs act.

Legal issue: Once the copyrighted works of the plaintiff are applied for the making of dresses, and the production of dresses exceeds 50 in number, whether protection of copyright is lost?

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Ritika’s arguments: there is originality in the garment prints and sketches created by Ritika Pvt Ltd for the dresses/garments. It is pleaded that its ensembles are so designed that each component, such as sleeves, front and back panels etc are delineated and are coordinated with unique features. As such it is entitled to copyright protection.

Biba’s arguments: Because the designs of Ritika are industrial designs, the suit for infringement of copyright is barred because of Section 15 of the Copyright Act.

Judgment in the case:

  1. The court came to the conclusion that the suit was barred by Section 15(2) of the Copyright Act, 1957 as Ritika’s copyright in the said works had ceased to exist.
  2. Ritika’s case fell squarely under Section 15(2) of the Copyright Act, 1957 i.e. the copyright in Ritika’s designs ceased to exist as it had been reproduced more than 50 times by an industrial process.

Significance

The court elucidated the position as to the operation of subsection (2) of section 15 and re-affirmed the view that the bar would apply under certain conditions even if the design is not registered.

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Significance of Cyber Forensics in the modern digital world

The influence of Information and Communication Technologies (referred to as ‘ICTs’ hereafter) on society goes far beyond establishing basic information infrastructure. It has proven to be a foundation for development in the creation, availability and use of network-based services. It has played the most significant role in transforming the world we live in.

Although ICTs have helped in the creation of a truly global marketplace, characterized by a constant flow of information through networks and websites, however, just like everything, Internet technology to has its own pros and cons. On one hand, the ICT makes our life easier and on the other hand, it provides a platform for individuals to commit crimes in cyberspace, by taking advantage of the vulnerabilities and risks associated with the Internet. This led to the development of jurisprudence with respect to ‘cybercrime’ or crime committed in cyberspace.

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With the recognition of new age crimes as ‘cybercrimes’ and their peculiar nature, as opposed to traditional crimes, there was also a need to develop a security framework as well as a legal framework to exclusively combat such crimes. This led to the development of the regime of ‘cyber security and ‘cyber laws’ in various jurisdictions.

The basis of the cyber law regime was the same as that of traditional law- for the prosecution of crimes, whether traditional or new age, the court of law required credible evidence. However, it was no secret that the form of evidence required in traditional criminal cases differs from that in the case of cybercrimes, as the latter entails procurement of evidence from the ‘cyberspace’ itself, as opposed to a physical location. Since the traditional investigation and evidence procurement tools were not adequate in the context of cybercrimes which eventually led to a lack of prosecution of cybercriminals, therefore, a new disciple of forensics[1] known as ‘cyber forensics’ emerged.

Cyber forensics is defined as “the collection and analysis of data from computer systems, networks, communication streams and storage media in a manner that is admissible in a court of law”[2]. In general terms, it was the use of knowledge of computer science to gain access to credible evidence which will be considered admissible in the court of law while prosecuting an accused in a case concerning the commission of cybercrime.

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Initially, the use of cyber forensic tools was limited to the purpose of prosecution in court where cybercrimes were committed against private individuals. However, cybercrimes were not directed only at private individuals, various public, as well as private organizations which adopted ICTs in their day-to-day operations, were increasingly becoming victims of such crimes. Therefore, these organizations realized the potential of cyber forensics in identifying the offenders and securing their networks and started using the same within their organizations. Presently, cyber forensic tools are used equally by the government, private organizations and investigating authorities.

Cyber forensics per se involves the utilisation of knowledge of computers, computer systems, computer networks and the Internet i.e. it is primarily technical in nature. It is pertinent to note that the evidence collected with the use of cyber forensics should be admissible in a court of law, otherwise such evidence is futile. Therefore, there is also a requirement for setting legal standards as to how to collect, store and process evidence in cases of cybercrime. The legal framework of the country provides for these legal standards. For example, in India, the Indian Evidence Act, 1872[3] was amended in 2000 to insert various provisions relating to the admissibility of electronic evidence. The definition of the term ‘evidence’ was amended to include within its ambit, electronic records.[4] Section 65A[5] read with section 65B[6] provides for the admissibility of electronic records.

The COVID-19 pandemic had an unprecedented impact on the technological sector. Most individuals were completely dependent on the use of technology for their day-to-day activities, employment and education, among other things. This dependence provided a breeding ground for cybercriminals to exploit the vulnerable networks. Therefore, the significance of cyber forensic tools to combat such cybercrime activities was realised during the COVID-19 pandemic, more than ever.

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[1] Forensics is the use of scientific knowledge to collect information for supporting a fact.

[2] Anjani Singh Tomar, Cyber forensics in combating cybercrimes, 3 PARIPEX 69, (2014).

[3] The Indian Evidence Act, 1872.

[4] Id., § 3.

[5] Special provisions as to evidence relating to documents may be given.

[6] Admissibility of electronic records.

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Data Protection Regime in the European Union- General Data Protection Regulation (EU-GDPR)

Originally proposed by the European Commission in 2012, the EU GDPR[1] came into effect on 25th May 2018. It is intended to harmonize privacy and data protection laws across Europe. It further aims to provide a framework to ensure that the data subjects have control over their personal data. The provisions are GDPR are applicable[2]–

  1. When a controller or a processor is established in the EU
  2. When the personal data of EU data subjects is processed

The Regulation defines terms like ‘personal data’, ‘processing’, ‘data subject’, ‘controller’, ‘consent’, ‘processor’ and ‘personal data breach’.[3] It also enumerates the basic principles on which GDPR is based. These include “lawfulness, fairness and transparency; purpose limitation; data minimization; accuracy; storage limitation; integrity and confidentiality; and accountability”[4].

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One of the grounds mentioned under the Regulation which makes the processing of personal data by the controller or the processor lawful is when the data subject has consented to such processing[5]. The declaration seeking such consent should be made in an intelligible and easily accessible form, using clear and plain language[6]. Further, the data subject has the right to withdraw his consent at any time, and such withdrawal will not affect the lawfulness of the processing prior to the withdrawal.[7] When the data subject is a child below the age of 16 years, consent for the processing of personal data can only be given or authorized by the parents.[8] However, the Regulation gives the discretion to the individual member states of the EU to decide the minimum age for which parental consent will be required, however, such age cannot be lower than 13 years.[9]

The GDPR prohibits the processing of personal data relating to a specific category (sensitive personal data)[10]. However, such data can be processed in certain conditions like when the data subject gives explicit consent or when processing is necessary to protect the vital interests of the data subject or when processing is necessary for substantial public interest etc.[11]

Chapter 4 of GDPR enumerates the rights provided to the data subject with respect to the processing of their personal data. These include the right to access the data by the data subject (to know the purpose of processing, the categories of data being processed, recipients of such data, the period for which data will be stored, right to be informed of additional safeguards if data is transferred to a third country or an international organization etc.)[12], right to rectification (of inaccurate data concerning the data subject), right to erasure (when data is no longer necessary, when consent is withdrawn when data is unlawfully processed etc.), right to restriction of processing (for a particular time period) , right to data portability (receive the data in a machine-readable format and transmit the same to another controller) and right to object.

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The member states of the Union have the right to restrict the scope of rights and obligations[13] of the data subject and the controllers/processors, under the Regulation on the ground of national security, defence, public security, and criminal offences[14], general public interest etc.[15] by means of legislative measures.

The controller is obligated to take necessary technical and organizational measures which are designed to implement the principle of GDPR while processing the personal data of the subject (data protection by design).[16] Furthermore, the technical measures should be implemented to ensure that, by default, only the personal data which is required for specific purposes, is processed[17] (data protection by default).

In case of a data breach which is likely to risk the rights of natural persons, the controller should notify the supervisory authority within 72 hours of becoming aware of such breach. The controller should also inform the data subject about such data breaches in certain specific situations[18].

Further, if the processing of data involves new technology which might result in “high risk to the rights and freedoms of natural persons, the controller should carry out an impact assessment, before processing any data”[19].

The Regulation also mandates the appointment of a Data Protection Officer by the controller and processor in certain situations.[20] The Officer has the duty to inform and advise the employees of their obligations while processing the data of data subjects, to monitor the compliance of provisions of GDPR, to cooperate with supervisory authority etc.[21]

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In case of infringement of any right of the data subject or any obligation mentioned under GDPR, the data subject has the right to lodge a complaint with the supervisory authority of a particular member state[22]. For severe violations, the fine framework can be “up to 20 million euros, or in the case of an undertaking, up to 4 % of their total global turnover of the preceding fiscal year, whichever is higher”[23]. In case of less severe violations, the Regulation sets forth fines of “up to 10 million euros, or, in the case of an undertaking, up to 2% of its entire global turnover of the preceding fiscal year, whichever is higher”[24].

Therefore, the privacy and data protection regime in the European Union is very stringent. Although it has only been two years since the GDPR came into effect, however, the recent cases of imposition of huge sums of fines on Twitter[25] and Google[26] in Europe for violating the provisions of GDPR, highlight the seriousness of privacy and data protection in Europe.

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[1] General Data Protection Regulation, Regulation (EU) (2016/679).

[2] Id, art. .

[3] Supra note 1, art. 4.

[4] Supra note 1, art. 5.

[5] Supra note 1, art. 6(1)(a).

[6] Supra note 1, art. 7(2).

[7] Supra note 1, art. 7(3).

[8] Supra note 1, art. 8(1).

[9] Id.

[10] Supra note 1, art. 9(1).

[11] Supra note 1, art. 9(2).

[12] Supra note 1, art. 15.

[13] Supra note 1, under art. 12-22, art. 34 and art 5.

[14] Prevention, Investigation, Detection or Prosecution.

[15] Supra note 1, art. 23.

[16] Supra note 1, art. 25(1).

[17] Supra note 1, art. 25(2).

[18] Supra note 1, art. 34(3).

[19] Supra note 1, art. 35.

[20] Supra note 1, art. 37.

[21] Supra note 1, art. 39.

[22] Supra note 1, art. 77.

[23] Supra note 1, art. 83(5).

[24] Supra note 1, art. 83(4).

[25] BGR, https://www.bgr.in/news/twitter-fined-547000-dollars-for-not-disclosing-data-breach-927683/ (last visited Feb. 1, 2021).

[26] REUTERS, https://www.reuters.com/article/us-google-privacy-france/french-watchdog-fines-google-amazon-for-breaching-cookies-rules-idUSKBN28K0NA (last visited Feb. 1, 2021).

Categories
Blog Intellectual Property Law

The Himalaya Drug Company vs Sumit 2006

Delhi High Court

Judges: Justice Badar Durrez Ahmed

Applicable law: Copyright Act, 1957

Did you know: ‘Meta-Data’ is like a digital footprint, which allows a person to assess what tools and code have been used to develop a particular website

Where it all began:

  1. Drug Company is engaged in the manufacture and sale of Ayurvedic Medicinal preparations and was established in the trade in the year 1930. Realizing the potential of the Internet as a medium of information, the plaintiff registered its own domain name www.thehimalayadrugco.com’ on 10.6.1998 and developed a website under the said name.
  2. The most important feature of the website is the section titled “HIMALAYAS HERBS”. This section essentially consists of a database of a wide variety of medicinal herbs, arranged in alphabetical order.
  3. Such information is not only comprehensive but is also arranged in a manner that is visually appealing and easy to grasp. It was clear that Himalaya has expended considerable time, labour, skill and money in preparing this database of Ayurvedic Herbs that find mentioned on its website. Himalaya has claimed that the preparation of the database began sometime in June 1998 and took more than a year to complete.

Legal issue: Whether Sumit has infringed the copyright of Himalaya and if so what damages is Himalaya entitled to?

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Himalaya’s arguments: Himalaya noticed that Sumit was operating a website “http://ayurveda.virtualave.net” which reproduced Himalaya’s entire herbal data verbatim. The copying was to such an extent that even the grammatical or syntactical errors that appear on Himalaya’s website have been copied onto Sumit’s website. Moreover, the meta tag of the source code of Sumit’s website includes Himalaya’s trademark “Himalaya Drug Co.”

Sumit’s arguments: Sumit did not appear despite service and the case proceeded ex-parte

Judgment in the case:

  1. The Court held that Sumit had misappropriated the effort, skill and expense that had gone into the creation of Himalaya’s website. Therefore, Sumit had copied the entire herbal database of the plaintiff and had infringed the copyright of Himalaya.
  2. The plaintiff has also been able to demonstrate that the defendants have attempted to pass off its herbal database as and for that of the plaintiff’s and have also violated the “trade dress” rights that exist in respect of the plaintiff’s herbal database. The reason being that the plaintiff’s herbal database is unique and, therefore, any similar herbal database that appears on a different website is bound to create confusion by causing a consumer to associate the website with that of the plaintiff’s.
  3. Because Sumit did not appear in this case it was impossible to assess what kind of profits he had earned from the website and accordingly difficult to calculate damages. Thus the court calculated the costs involved in preparing and putting up the website. Those costs were 7.9 Lakhs and the court granted 7.9 Lakhs as compensatory damages and an additional 7.9 Lakhs as punitive/Exemplary damages.

Significance: The judgment is noteworthy because it has used a novel way of calculating damages and has awarded both compensatory as well as punitive damages.

 

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Categories
Blog

Role of Precedent in the Development of Law and Society

Before analysing the role of precedent in the development of law and society, it is important to understand what constitutes a precedent. According to Gray, it “covers everything said or done which furnished a rule for subsequent practice”[1]. According to Keeton, it is a “judicial decision to which authority has in some measure been attached”.[2] In general words, precedent means a set pattern guiding future conduct. Judicial precedent, on the other hand, means the judgment of a Court of law which can be used as an authority for deciding a similar set of facts, by the lower courts, or the same court itself.

Where a court pronounces its decision, it contains in itself a principle. This principle creates a judicial precedent. The opinion in which the judge formulates his reasons for the decision is not the precedent, although such opinion plays an indispensable role in ascertaining the precedent, since only from the opinion can one discover what facts are regarded by the court as material. The application of the judicial precedent is governed by the different principles in different legal systems. These principles are called the ‘Doctrine of Precedent’.

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The concept of precedent originated from the doctrine of stare decisis which means to “abide by the decisions”[3]. This doctrine aims to bring certainty and conformity to the decisions of the court and to the law.

The judicial precedents are binding on the lower courts and the same court, unless-

  1. The same has been overruled by the higher court
  2. The same has been reversed by the higher court
  • The facts of the case seem to be different

Precedent plays an instrumental role in the development of law and society. It ensures equality and fairness by means of treating similar cases in a similar manner. This brings the certainty of law and upholds the confidence of the citizens in the justice delivery system. With respect to the judiciary, it acts as a guideline to decide future cases based on similar facts. It ensures that the lower courts adhere to the interpretation of the law by the superior court in line with the changing needs of the society (the Vishaka guidelines in India[4]).

Furthermore, it provides a binding nature to the principles evolved seldom by the judiciary, while discharging their functions as an interpreter of law (the binding nature of the doctrine of basic structure with respect to amending the Constitution[5]). Lastly, it saves time and increases the convenience of the court, as a question of law, once decided, is settled and the judges and the lawyers need not spend time and labour on reestablishing the same principle.

With respect to India, the Indian Constitution empowers the Apex Court to interpret the law. Such interpretation is binding on the lower courts. The judgement of the Supreme Court is a decision, for the litigants, however, for the nation, it is a declaratory law[6]. However, a judgement acts as a precedent only when it decides a question of law and not otherwise[7].

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The expression ‘all courts’ used under Article 141 infers that the Supreme Court is not bound by its own decisions, except that a smaller Bench of the Apex Court is bound by the decisions of a larger Bench and that of a Co-equal Bench.[8]

With respect to the significance of precedent, the court in Union of India v. Raghubir Singh,[9] held that-

“The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.”[10]

 

 

[1] https://www.srdlawnotes.com/2015/11/precedent-meaning-definition.html

[2] Id.

[3]http://mja.gov.in/Site/Upload/GR/Title%20NO.149(As%20Per%20Workshop%20List%20title%20no149%20pdf).pdf (last visited Feb. 1, 2021).

[4] As provided in the case of Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[5] Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., AIR 1973 SC 1461.

[6] Ganga Sugar Co.. Ltd., Etc vs State Of U.P. & Others, AIR 1980 SC 286.

[7] State of Punjab v. Surinder Kumar, 1992 (1) SLR 335(SC).

[8] Indian Oil Corporation v. Municipal Corporation, AIR 1995 S.C. 1490.

[9] Union Of India & Anr v. Raghubir Singh, AIR 1989 SC 1933.

[10] Id.