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TRADE MARK ACT, 1999

TRADE MARK ACT, 1999

Prior to 1940, there was no statutory law relating to trademarks in India. The law applicable to the subject was based on the common law of England before the passing of the first Registration Act in 1875. The Trade Marks Act 1940 introduced for the first time to address the issues relating to the registration and statutory protection of trademarks in India. This Act was in force until 1958 when the Trade and Merchandise Marks Act was passed. This Act was repealed and the present law is governed by the Trade Marks Act 1999. The Trade Marks Act of 1999 has made substantial changes in the law. The Present Act of 1999, apart from simplifying the law, has introduced many new provisions, which are in the interest of trademark owners as well as the consumers of goods.

The Trade Marks Act, 1999 is an act to amend and consolidate the law relating to trademarks, to provide for registration and better protection of trademarks for goods and services and for the prevention of the use of fraudulent marks. Statutory protection of a trademark is administered by the Controller General of Patents, Designs and Trademarks, a government agency which reports to the Department of Industrial Policy and Promotion (DIPP), under the Ministry of Commerce and Industry. The law also provides for the rights acquired by registration of a trademark, modes of transfer and assignment of the rights, nature of infringements, penalties for such infringement and remedies available to the owner in case of such infringement.

DEFINITION OF TRADEMARK

Section 2(1) (zb) under the 1999 Act defines the term "trademark" as follows:

 "'Trademark' means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours; and: 

  1. . in relation to Chapter XII (Offences, Penalties and Procedures) (other than Section 107), a registered trademark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as the proprietor to use the mark; and

  2. in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person and includes a certification trademark or collective mark.

" Section 2 (1)(m) defines a "mark" to include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.

 Section 2(1) (j) defines "goods" to mean anything which is the subject of trade or manufacture. 

Section 2(1)(q) defines "package" to include any case, box, container, covering, folder, receptacle, vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid, stopper and cork. 

Section 2(1)(z) defines "service" to mean service of any description which is made available to potential users and includes the provision of services in connection with the business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, the supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising

THE OBJECT OF TRADEMARK LAW 

The object of trademark law is to deal with precise nature of the rights which a person can acquire in respect of a trademark, the mode of acquisition of such rights, the method of transfer of those rights to others, the precise nature of infringement of such rights, the procedure for enforcement of those rights and the remedies available in respect thereof. This branch of Commercial Law has undergone a change from time to time in tune with changing patterns of business methods and practices. Even the very concepts of a trademark and its functions have changed. In India, the law now is governed by the Trade Marks Act 1999.

The salient features of the Trade Marks Act 1999 are presented below 

  1. The Trade Marks Act, 1999 deals with the entire law relating to trademarks and its procedures.

  2. The provisions of this Act are in conformity with the obligations imposed by the Agreement on TRIPs.

  3. Provisions for filing a single application for registration of a mark in more than one class. Class 1 to 34 related to goods and Class 35 to 45 related to services. 

  4. Section 9 of the Act specifically mentions absolute grounds for refusal of registration. 

  5. Section 12 empowers the Registrar to permit registration by more than one proprietor of trademarks in the case of concurrent use even though marks are identical or similar.

  6. Widening the definition of a trademark by recognizing the shape of goods, packaging and combination of colours as marks and trademarks.

  7. Simplifying the procedure for registration of registered users and enlarging the scope of the permitted use.

  8. Marks which are not registrable elaborated.

  9. Abolition of the necessity for disclaimer. 

  10. The Act has abolished the system of maintaining the registration of trademarks in Part A and Part B with different legal rights and provides only a single register with the simplified procedure for registration and with equal rights. Abolition of Part B registers.  

  11. Provisions for protection of well-known trademarks and test for determination of such marks. 

  12. Increasing the period of registration and renewal from 7 to 10 years. 

  13. Widening the scope of infringement of registered trademarks. 

  14. Assignment of unregistered trademarks without the goodwill of a business is permitted.

  15. Registered user provisions simplified. Registrar has been given the power to decide. 

  16. Non-registered licensing of registered trademarks is permitted.

  17. Licensing of an unregistered trademark is permitted. 

  18. Creation of Appellate Board to hear and decide appeals from the decisions of Registrar. 

  19. Publication of alphabetical Index of classification of goods and services. 

  20. Transferring the final authority relating to registration of certification trademarks to the Registrar instead of the Central Government. 

  21. Enlarging the jurisdiction of courts to bring the law on par with the Copyright Laws, amplifying the powers of the court to grant an injunction in certain cases and other related amendments to simplify and streamline the Trade Mark Law and procedure.

  22. The Act provides registration of trademarks for services also in addition to goods. 

  23. Registrations of names of chemical elements or international non-proprietary names are prohibited under Section 13. So also the names and representations of living persons or persons recently dead cannot be used for registration unless the consent is obtained from the concerned persons. 

  24. The Trade Marks Act, 1999, provides registration of collective marks by associations, certification trademarks.

  25. For speedy disposal of appeals and rectification of applications, the Act establishes Intellectual Property Appellate Board.

  26. The duration of a valid registration is for a period of 10 years from the date of its registration. It may be renewed for any number of periods (Section 25). 

  27. The provisions of this Act do not affect rights of action against any person for passing off goods or services (Section 27 (2)]. 

  28. Section 28 confers to the registered proprietor of a trademark, (i) the exclusive right to the use of the trademark and (ii) right to obtain the relief against infringement of the trademark

  29. The Trade Marks Act, 1999, provides reliefs in any suit for infringement of trademarks or for passing-off under Section 135. They are injunction and at the option of the plaintiff either damages or an account of profits. 

  30. The Act provides enhanced punishment for the offences relating to trademarks on par with the present Copyright Act, 1957, to prevent the sale of spurious goods.

  31. Section 5 of the Act establishes the Trademarks Registry. The Act also empowers the Central Government to appoint the Registrar of Trademarks (Section 3). He is in control and management of the Register of Trademarks. The registration of trademarks is under the control of the Registrar. 

  32. Section 142 protects the persons against groundless threats of legal proceedings. 

  33. The Act provides assignability and transmissibility of registered as well as unregistered trademark either with goodwill or without goodwill.

Essentials of a trademark under the 1999 Act: 

  1. it must be a "mark";

  2. it must be capable of being represented graphically;

  3. it must be capable of distinguishing the goods or services of one person from those of others;

  4. it must be used or proposed to be used in relation to goods or services; 

  5. there must be a visual representation of the mark;

  6. use of the mark in relation to goods must be upon or in physical or in any other relation whatsoever to the goods; and in relation to services, it must be used as a part of any statement about the availability, provision or performance of such service; and

  7. The objective of use of the mark should be to indicate a connection in the course of trade between the goods or services, and some persons having the right to use the mark either as proprietor or by way of the permitted use. It is not necessary to reveal the identity of the person using the mark.

Infringement of Trademark

The term infringement means the violation of someone’s rights. Therefore infringement of trademark means the violation of trademark rights. A trademark is said to be infringed when there is unauthorised use of a trademark or a substantially similar mark on goods or services of a similar nature. In such a case, the court will look at whether such use of the trademark will cause any confusion to the consumer as to the actual brand they are purchasing.

Therefore, according to the Act, a trademark is infringed if:-

  1. If the trademark is a copy of a registered trademark with a few additions or alterations.

  2.  If the infringed mark is printed or used in advertisements.

  3.  If the infringed mark is used in the course of trade

  4.  If the mark used is so similar to a registered mark that it is likely to confuse or deceive a consumer when selecting a category of product.

In case of infringement of a registered trademark, the person may file a suit for damages. For filing such a suit the following conditions must be met:

  1. The person filing the suit (plaintiff) must be the registered owner of the trademark.

  2. The person who is infringing (defendant) must be using a mark that is similar to that of the plaintiff such that it can easily be confused as one another.

  3. Such use by the defendant is not accidental in nature.

  4. The use of the mark by the defendant must be in the course or similar goods or services to that which the trademark is registered to.

Classification of Trademarks

Section 7 of the Trademark Act, 1999 requires the classification of trademark according to the international classification of goods and services. There are a total of 45 classes’ goods and services may fall under in such a classification. The international classification system used is called the Nice Classification (NCL); it was established in 1957 during the Nice Agreement.

According to the NCL, there are 45 classes under which goods and services fall. Classes 1 – 34 are for goods and the classes 35 – 45 are for services.

Opposing a Trademark Registration

The members of the public are given the opportunity to oppose the registration of a Trademark during its registration process. The person filing the opposition of registration maybe anyone, it could be a customer, competitor or any member of the public. In the process of registration of a trademark, the mark will be advertised in the Trade Mark Journal, upon this advertisement anyone can file an opposition to it during a period of three months. This period of three months may be extended by no more than one month in special cases. The filing of the opposition has to be done at the Trademark Registrar’s Office and not at the Intellectual Property Appellate Board (IPAB).

While filing an opposition, one must include the following:

  1.  Details of the trademark application against which opposition is being filed.

  2. Details of the earlier mark that the registering mark is infringing upon. It could be an already registered mark or a mark that is still undergoing its registration.

  3.  Details of the filing party.

  4. Grounds upon which such opposition is based on.

 

Recent Cases 

1. Yahoo!, Inc. v. Akash Arora & Anr

The first landmark judgment on cybersquatting. The Delhi High Court, for the first time ever in India, held that a domain name serves the same function as a trademark and is entitled to equal protection. The defendant had a domain name ‘Yahoo India!’ which was identical and phonetically similar to the plaintiff’s trademark ‘Yahoo!’ The court held that internet users would be confused and deceived into believing that both the domain names have the same source. The defendant took a defence that it had put a disclaimer on its website. However, it was observed that a mere disclaimer was not sufficient because the nature of the internet is such that use of a similar domain name cannot be rectified by a disclaimer and it does not matter that ‘yahoo’ is a dictionary word. The name possesses acquired distinctiveness and uniqueness and was largely associated with the plaintiff.

 

2. DM Entertainment v. Baby Gift House and Ors.

Daler Mehendi, the famous pop star from Punjab has a large fan base and is extremely popular amongst Punjabi pop music lovers. DM Entertainment was incorporated in 1996 to manage the artist’s escalating career. The defendant company was making a large business by selling miniature dolls of the artist and cashing on his popularity. The plaintiff company was extremely aggrieved and filed for a permanent injunction from infringing the artist’s right of publicity and false endorsement leading to passing off.

 

The plaintiff company was assigned all rights, titles and interests in the personality of the artist along with the trademark, Daler Mehendi. The plaintiff argued that the unauthorized or unlicensed use of the artist’s reputation with respect to goods or services will deceive the public into believing that the goods and services are associated with the singer and hence, would lead to passing off. The plaintiff further submitted that such use was done for commercial exploitation without adequate permission from the person or any other authorized by him and shall constitute an infringement of the person’s right to publicity.

Character merchandising is an area of law that is still unexplored in India. This was the first case that dealt with the issue of celebrity merchandising where the publicity rights of the artist were given due recognition.


3. Milmet Oftho Industries & Ors. V. Allergan Inc.

The Supreme Court granted trademark protection to a well-known foreign brand. The court restrained an Indian company from using the mark OCUFLOX. The judgment was given irrespective of the fact that the mark was neither used nor registered in India. The court held that the respondent was the first to enter the market and adopt the mark. It does not matter that the respondent has not used the mark in India if they are the first to enter the world market.

In the field of health care, it is highly important that all chance of deception and confusion should be avoided, keeping in mind that the public interest is not jeopardized.

4. The Coca Cola Company v. Bisleri International Pvt. Ltd.

The defendant, Bisleri by a master agreement, had sold and assigned the trademark MAAZA including formulation rights, know-how, intellectual property rights and goodwill for India with respect to a mango fruit drink known as MAAZA to Coca Cola.

In 2008, the defendant company filed for registration of the mark MAAZA in Turkey and started exporting fruit drink under the name MAAZA. The plaintiff, Coca Cola claimed permanent injunction and damages for infringement of trademark and passing off.

The court granted an interim injunction against the defendant (Bisleri) from using the trademark MAAZA in India as well as for export, which was an infringement of the trademark.

5. Cadila Health Care v. Cadila Pharmaceutical Ltd.

The Supreme Court held that it is insignificant whether the plaintiff and the defendant trade in the same field or in the same or similar products. The court laid down certain criteria to determine passing off of an unregistered trademark:

• The nature of the marks (word, label or composite);
• The degree of resemblance between the marks;/
• The nature of goods for which the marks are used;
• Similarities in the nature, character and performance of goods of rival traders;
• The class of purchasers who are likely to buy goods bearing the marks;
• The method of purchasing the goods or placing orders; and
• Other circumstances that may be relevant.

 LIFE UNDER LOCKDOWN AND AFTER THAT: ARE EFFORTS OF THE GOVERNMENT ENOUGH?

LIFE UNDER LOCKDOWN AND AFTER THAT: ARE EFFORTS OF THE GOVERNMENT ENOUGH?

 LIFE UNDER LOCKDOWN AND AFTER THAT: ARE EFFORTS OF THE GOVERNMENT ENOUGH? 

On 24th March 2020, the Hon’ble Prime Minister announced nationwide lockdown in order to combat the dreadful Coronavirus. Further, it was extended from each 15- 20 days till the end of the Fourth Phase of lockdown on 31st May 2020. Of the 28 States and 8 Union Territories, the worst affected are Maharashtra, Gujarat, Delhi, Tamil Nadu, Uttar Pradesh and Punjab.

During this period all the efforts were made to overcome this problem- from singing “Go Corona Go”, to clapping hands and thali peetna, to lighting diyas and lamps invoking mythological and religious beliefs to solve this problem and going Aatma Nirbhar. Alas! Nothing worked as expected. Nor did the cases decreased nor did the medical kits reached on time nor did the doctors got protection and remuneration for their services nor did the vaccines arrived and nor did the economy showed any signs of improvement. 

Under the Constitutional law Health comes under the State List in the 7th Schedule which means that it is the responsibility of the States to deal, plan and provide with resources relating to health. So why question the Central Government? Well because this issue has affected nation all over it becomes the duty of the Hon’ble Prime Minister and Central Government to provide assistance and come to their rescue. Thus major decisions and policies were laid down by the Central Government. 

One of the policy is the PM-CARES Fund- Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) where donations asked for which will be used from people to help fight this problem for combating, containment and relief efforts against the coronavirus outbreak and similar pandemic like situations in the future. As per the official data the amount collected so far as Rs. 3,100 cr. On when and how the distribution of such funds will take place, will be narrated by the Hon’ble Finance Minister. Interestingly no reason was given why this new policy when there already exists PM National Relief Fund whose objectives could be extended to deal with a current and similar situation in future and to avoid confusion among the people. Guess it was important to point show the written and recorded efforts undertaken by the government to deal with the situation.  

Another decision taken was the deferment, not waiving off, payment of loan amount on housing, car, education, personal loans for 3 months. Also came the decision of not collecting rent for three months and collect the same after 3 months. Question arises with every business affected, people losing their jobs, 20% to 50% cut in salaries, notices given by employers explaining their difficulty of not able to provide salary and everything coming to standstill from where will the money be generated to pay the previous 3 months plus the present month’s rent and loan amount along with interest? 

Another step coining of word- “Aatma Nirbhar” along with “Aatma Nirbhar Bharat Abhiyan’ which literal meaning is self-reliance and self-dependent. It is a package that will help India in reviving the economy focus on land, labour, liquidity and laws and will benefit farmers, workers, taxpayers, MSMEs and cottage industry. It means a movement from Made in India from Made by India, which would mean that global companies in India do not make the product, but from scratch to the finish it will be locally made and delivered. The question arises with economic crisis and recession creeping in, is India in a position to rely on itself and go local? 

The most affected people due to this crisis are the Migrants. The plight of the migrants is no secret to anyone. Every news channels, papers and social media are flooded with the stories of the disturbing images of the migrants. In the month of April- May when the heat is at its peak, people of different age groups and gender walked miles along with their belongings and money to reach their native home. When somehow they reach their native place, at the border they are made to sit and chemical solutions are sprayed on them. Many deaths have been reported- people dying of hunger, committing suicide as no money to feed and being in a helpless state. When the reports started flooding in it was then the government started the “Shramik Special Trains” to help workers, pilgrims, tourists, students and other persons stranded at different places in the country amid lockdown to reach their respective destinations. This help came with a monetary price in the form of the ticket which the migrants had to pay. This is because the Central government denied to pay and stated it is the responsibility of either the originating or the receiving State governments to pay for the charges. Further, the receiving States were not ready to pay nor take these people fearing the possibility of them being carriers of the virus. Thankfully the Honb’le Supreme Court came in as saviour of the migrants by stating that no money should be charged from the migrants for the ticket fare- railways or bus. 

The scenario around is not good. The help is coming late and in bits and pieces added with tons of confusion. The economy is going down, people are thrown out of their jobs, salaries are not paid, commercial and public sectors are undergoing great loss, no job security of people and daily wage labourers, rate of unemployment is increasing, no certainty about the schedule of college and competitive examinations, poor health securities of the doctors, nurses and police, opening of liquor shops when slogans are raised to ban liquor, raising of funds which makes one question where and how is the taxpayer’s money allocated and why is it insufficient to meet such crisis? With the rising number of cases and deaths around each day, the problems, anxiety and frustration levels of people are increasing. These do raise doubts and allow us to question the policies and promises laid down by the government. 

Agreed with the fact that the whole world is facing this problem which is new to everyone and no one, in particular, is to be blamed for it. But what matters is how such a situation is handled and dealt with and this shows how true is the leader in real sense. One cannot deny that the lack of foresight showed the insensitiveness towards the human by the authorities. Not only human rights but even constitutional rights went for a toss. 

When the country is facing the game of hide and seek from the dreadful coronavirus, the political parties too have engaged themselves in game of cards such as blame-game, laying of cards, drawing of cards, game of bluff, rummy, blackjack, donkey-donkey, teen patti you name it! What they fail to realize is that this is no time to play these games. It is time that they come together and work as a team to help people and safe them from a game of hide and seek. 

 

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LEGAL NEWS

LEGAL NOTES

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

There is a divergence of opinion on the question as to whether International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially different from the Municipal Law. International Law has developed in a form which is different from that of Municipal Law. The relation has been categorized traditionally been characterized from monist or dualist perspective.

 

International Law

According to the Black’s Law Dictionary

“International Law” is defined as: “The legal system governing the relationship between nations; more modernly the Law of International relations  embracing  not only nations but also such participants as  International organizations and individuals (such as those who invoke their human rights or commit war crimes)”

International law is the set of rules generally regarded and accepted as binding in relations between states and nations. It differs from national legal systems in that it only concerns nations rather than private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform.

The term "international law" can refer to three distinct legal disciplines:

  1. which jurisdiction may hear a case, and
  2. the law concerning which jurisdiction applies to the issues in the case.
  • Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.

The two traditional branches of the field are:

  • Jus gentium  : is the body of treaties, U.N. conventions, and other international agreements [law of nations] – Law is common to all nations
  • Jus inter gentes: agreements between nations

Municipal Law

According to the Black’s Law Dictionary

“Municipal Law” is defined as: “The ordinances and other laws applicable within a city, town or other local government entity”.

Basically, Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels. While, as far as the law of the state is concerned, these may be distinct categories of law, international law is largely uninterested in this distinction and treats them all as one. Similarly, international law makes no distinction between the ordinary law of the state and its constitutional law.

 

Article 27 of the Vienna Convention on the Law of Treaties provides that, where a treaty conflicts with a state's municipal law (including the state's constitution), the state is still obliged to meet its obligations under the treaty. The only exception to this rule is provided by Article 46 of the Vienna Convention, where a state's expression of consent to be bound by a treaty was a manifest violation of a "rule of its internal law of fundamental importance.”

 

Relationship between International and Municipal Law

It is important to understand how international law principles become part of domestic law, and to explain what happens if the rules conflict. The theories of monism and dualism are the two main theories that explain the relationship between international and municipal law.

 

  • Monism

In this theory, all law is part of a universal legal order and regulates the conduct of the individual State. The difference in the international sphere is that the consequences are generally attributed to the State. Since all law is part of the same legal order, international law is automatically incorporated into the domestic legal order. Some monist theorists consider that international law prevails over domestic law if they are in conflict; others, that conflicting domestic law has some operation within the domestic legal system.

 

  • Dualism

This theory holds that international law and domestic law are separate bodies of law, operating independently of each other. Under dualism, rules and principles of international law cannot operate directly in domestic law, and must be transformed or incorporated into domestic law before they can affect individual rights and obligations.

The main differences between international and domestic law are thought to be the sources of law, its subjects, and subject matter. International law derives from the collective will of States, its subjects are the States themselves, and its subject matter is the relations between States. Domestic law derives from the will of the sovereign or the State, its subjects are the individuals within the State, and its subject matter is the relations of individuals with each other and with government.

 

  • Harmonisation

Neither monism nor dualism can adequately explain the relationship between international and domestic law, and alternative theories have developed which regard international law as having a harmonisation role. If there is a conflict, domestic law is applied within the domestic legal system, leaving the State responsible at the international level for any breach of its international law obligations.

 

Position of International Law with the Constitution framework of India

The drafters of the Indian Constitution have been extremely vague in defining the status of international law in the municipal sphere. Our Constitution provides little guidance as to the relationship between international law and municipal law. This ambiguity looms large in the absence of any debate in the Constitutional Assembly on the subject and the studied silence of Constitutional pundits.

The primary issue is whether our Constitution makes a mere textual disposition of the relationship of International Law and Municipal Law. Apart from the express provisions of the Constitution, we also need to rely on actual State practice. Article 51(C)[1] (which falls within the realm of the Directive Principles that are non-justifiable in character) of the Constitution specifically mentions International Law and imposes a duty on the state to respect it. But the jurisdiction of the court to enforce them in the domestic arena has been limited by virtue of Article 37. In this backdrop, it is interesting to take note of 'The Regulating Act of 1873', which directed all Courts in India to act in accordance with "equity, justice and good conscience". On the basis of this principle, Common Law rules were transplanted into the Indian Municipal Law. It seems that India has barely deviated from its preconstitutional position in the matters of basic canons governing the principles of International law and Municipal Law.

It is a well-established principle that constitutional conventions may also breathe through legislative or constitutional enactments;[2] So, the common law rules automatically became unwritten Constitutional law of a supplementary character. It is an important principle of Constitutional interpretation that every provision of the Constitution must be given effect to. Therefore, these rules continue to be in force in the Indian legal setting by virtue of Article 225 and 37 of the Constitution of India. These provisions are based on the universally recognised principle that law once established, continues until changed by some competent legislative power. The Indian Independence Act, 1947 also incorporated the same principles under section 18(3). Therefore, such practices will be of binding nature in International Law as well as in the Municipal sphere. Hence under Article 372 of the Constitution such practices will have the force of law and India will be bound to observe the same. A composite reading of the Articles 51(c),253 and 372 suggest that India has not deviated from the common law position. Therefore, India will have the same legal practice of treating customary International Law as part of the law of the land provided that it is not inconsistent with the existing statutory provisions and the national charter.

Regarding treaties they have to be transformed into enabling legislation. In the Indian context, the ratification of a treaty doesn't ipso facto transform it into domestic law. The nonobstante clause under Article 253 of the Constitution bestows on the Parliament exclusive competence to legislate upon the treaties entered into by the Government of India.

However, Dr. P.C. Rao aptly cautions that by virtue of Article 73, "The executive power extends to all transactions which bring the Union into the relation with any foreign country or other international person". Accordingly, when there is a controlling executive; recourse cannot be had to principles of Customary International Law. Nor can such principles override the case law.

Supreme Court has held in several cases such as Vishakha vs. State of Rajasthan, Randhir vs. Union of India, Unnikrishnan vs. State of Karnataka, that domestic laws of India, including the constitution are not to be read as derogatory to International law. An effort must be made to read the domestic law as being in harmony with the international law in case of any ambiguity. At the same time, the constitution is still the supreme law of the land and in case of any directly conflict the constitution will prevail.

The above inspection of the Constitutional provisions amply clarifies the status of international law in the domestic field.

Conclusion

There are mainly two theories- monistic and dualistic which are used to study the relationship between the internal and international law. Monistic theory is based on natural law which suggests that internal law as well as international law is a part of the same law and there is no need for separation between them. But the dualistic theory which is based on positive law says that domestic law and international law are separate entities. The nation state need not obey international law unless it accepts to do so. Though both theories has its own place in international law, few countries in this world follow pure dualism or monism. The countries follow international law when it is in their favour and do not follow when it is not. This is what we can see in the international scenario.

 

[1] Article 51 of the Constitution corresponds to (I) Article 29 of the Constitution of Eire, 1937; (II) Article 28,29,30 of the USSR, 1977 and (III) Article VI Cl. (2) of the Constitution of the United States. Apart from this it has close similarity to some of the International Charters and Covenants such as (a) Article 28, 29 of the Universal Declaration of the human Rights, 1948; (II) Articles 1 and 2 of the International Covenant on Economic, Economic, Social and Cultural Rights 1966; And (III) Articles 1, 4 and 22 of the International Covenant Civil and Political Rights, 1966.

[2] Supreme Court on Record Advocate Association v. Union of India, (1993) 4 SCC 441 1993 Indlaw SC 494.

Defamation: Types and Legality

Defamation: Types and Legality

IS DEFAMATION TORT OR CRIME?

Defamation is a process of lowering the reputation of any person. It can be done either in oral or in writing in the form. When it is done in written form then it is called libel and when it is done oral form then it is termed as slander. The defamation is basically publication of false statements against the claimant without his consent with the intention to lower his reputation. It is considered as an offense because it causes damages to the claimant in the form of lowering social or political reputation. Which results in financial and economical loss to the claimant.

The basic elements of defamation are-

-The statement should be published.

- The statement should be false.

-The statement should refer to the claimant.

Categories of defamation in India-

  1. Criminal defamation
  2. Civil defamation

 

a)Criminal defamation is dealt with under section 499- 500 of Indian Penal Code (IPC) Any person who is charged for defamation under criminal law should be charged for punishment along with damages. The punishment for defamation under criminal law is imprisonment for 2 years or more with or without fine

According to IPC crime defamation will take place when any person publishes any statement with the intention to lower the reputation of the claimant and the statement published is false. The statement should refer to the claimant only during this situation the plaintiff can institute a case of defamation against the defendant.

R Naik Vs Union of India[1]

In this case section, 499 and 500 of IPC were challenged by the plaintiff for criminal defamation. The validity of section 499 and 500 became academic in this case.

 

b) Civil defamation is dealt under tort law as a general rule it only focuses on libel that is the written defamation statement and does not focus on slander that is the oral defamation statement. In order to prove that the statement libelous. The claimant has to prove that-

-The statements are false.

-The statements are written.

-The statements are defamatory.

-The statements are published.

Ram Jethlalmana vs Subramyam Swami[2]

In this case, the court held that the statement made by the defendant was irrelevant. The aim was to destroy the image of the person. The defendant made the statement with the intention to lose the reputation by linking his name with the corrupt company. The statement ruins the social and political republican of the plaintiff. The plaintiff was awarded 5 Lakhs by the defendant.

 

Conclusions

From the above two cases, we can say in India defamation is both tort and crime. In the case of tort civil laws are applied. Where punishment is not given only damages are given. And in the case of Crime criminal laws are applied and along with damages, punishment is also given. In criminal law, defamation is considered as a bailable offense.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1]R.Naik Vs Union of India 1994 AIR1558

[2]Ram Jethmalani Vs Subramyam Swami AIR 2006,Delhi 300,126 DLT 535

 

 

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