ARTICLES

IPR DRAFT NORMS FOR FOSTER INNOVATION

IPR DRAFT NORMS FOR FOSTER INNOVATION

A patent right will rest with the academic institution if a student, researcher or faculty member has used its resources and funds for developing a product, according to draft guidelines floated by the government on the implementation of IPR policy for academic institutions.

However, if an institution determines that an invention was made by an individual on his or her own time and unrelated to his or her responsibilities towards the institution and was conceived without the use of its resources, then the invention shall vest with the individual or inventor.

These guidelines are floated with an objective to foster innovation and creativity in the areas of technology, sciences, and humanities by nurturing new ideas and research in an ethical environment.

It would also help in protecting intellectual property rights generated by faculty or personnel, students and staff of the academic institution by translating their creative and innovative work into IP rights.

 

BACKGROUND:

Intellectual property refers to creations of the mind: inventions, literary and artistic works, symbols, names and images used in commerce.

IP is protected in law known as Intellectual Property Rights (IPR), which enables people to earn recognition or financial benefit from what they invent or create.

An IPR policy is the cornerstone of innovation and creativity for academia. It provides structure, predictability and a framework for talented minds to doing what they do best: create and innovate.

The model guidelines on the implementation of IPR policy in the academic institutions have been prepared by the Cell for IPR Promotion & Management (CIPAM).

The provisions of these model guidelines are based on the “Guidelines on Developing Intellectual Property Policy for Universities and R&D Organisations, WIPO, Geneva” and other existing intellectual property policies of several universities.

The IPRs recognized in India are broadly listed as Patent, Copyright, Trade Mark, Design, Semiconductor Integrated Circuit, Plant Variety, and Geographical Indication.

 

OBJECTIVES:

* To provide a framework to foster innovation and creativity in the areas of technology, sciences, and humanities by nurturing new ideas and research in an ethical environment.

* To protect intellectual property rights generated by faculty/personnel, students and staff of the academic institution by translating their creative and innovative work into IP rights.

* To lay down an efficient, fair and transparent administrative process for ownership control and assignment of IP rights and sharing of revenues generated by IP, created and owned by the academic institution. Additionally, in cases of government-funded research, the inventor(s) /organization (s) should disclose their IP filings to the government agency that has funded their research.

* To promote more collaborations between academia and industry through better clarity on IP ownership and IP licensing.

* To create a mechanism for knowledge generation and its commercial exploitation. The purpose of IP commercialization is also to augment the financial self-sustenance goals of the academic institution and its labs and to reward faculty and researchers.

* To establish an IP cell for supporting all innovation, creativity and IPR related endeavors of students, research scholars and faculty members. This IP cell will be the nodal agency to implement the mandate of the draft guidelines for IP cells.

 

WHAT IS THE NEED FOR STUDENT FOCUSED POLICIES?

The youth today is the key to creating, nurturing, building and strengthening creativity and innovation. Student-focused policies ensure that change is initiated and supported by students, especially in light of envisioning a young and healthy startup ecosystem.

R&D facilities, infrastructure and other amenities provided by the academic institutions offer a platform for students to build and sustain a creative and innovative environment.

The ultimate goal of these model guidelines is to promote student-led startups and ventures to protect and respect intellectual property.

The use of these guidelines is intended to complement the existing intellectual property laws of India.

 

OTHER MAJOR RECOMMENDATIONS:

* In the case of copyright, the ownership rights in scholarly and academic works generated utilizing resources of academic institution, including books, dissertations and lecture notes shall ordinarily be vested with the author.

* The ownership rights in lecture videos or massive open online courses, films, plays and musical works shall ordinarily be vested with the academic institution.

* Ownership rights over integrated circuits and plant varieties, and industrial designs will rest with the academic institution if a student, researcher or faculty member has used its resources and funds for developing the product.

* The academic institution is free to enter into a revenue-sharing agreement with the researcher, in cases of commercialization of innovation, and creation as per the advice of IP cell.

 

SEVENTH ECONOMIC CENSUS

SEVENTH ECONOMIC CENSUS

The ministry of statistics and program implementation (MoSPI) has decided to conduct the Economic Census every three years. The move has been initiated with the Seventh Economic Census, which is going on.

The MoSPI flagged off the exercise in 16 states / Union Territories in July and August. The remaining states / UTs will be covered in a phased manner in September. It proposes to close the entire process by December.

“We are pursuing a strategy to move all data-capturing activities on a digital mode/platform. This facilitates faster collection and capturing of information and improved quality with in-built validation checks,” said Pravin Srivastava, secretary MoSPI, and chief statistician of India (CSI).

 

ECONOMIC CENSUS

The Economic Census is a complete count of all establishments located within the geographical boundaries of India. It provides disaggregated information on various operational and structural variables of all establishments of the country.

It also provides valuable insight into geographical spread/clusters of economic activities, ownership patterns, persons engaged, etc of all economic establishments in the country.

The information collected during the Economic Census is useful for socio-economic developmental planning at state and district levels.

The Economic Census provides an updated sampling frame for follow-up enterprise surveys undertaken for detailed and comprehensive analysis of all establishments in the country.

The First Economic Census was conducted throughout the country, except Lakshadweep, during 1977 in collaboration with the states / UTs. The coverage was restricted to only non‐agricultural establishments employing at least one hired worker on a fairly regular basis. Data on items such as the description of the activity, the number of persons usually working, type of ownership, etc were collected.

The second census was carried out in 1980, followed by the third in 1990. The fourth edition took place in 1998 while the fifth was held in 2005. The sixth edition of the Economic Census was conducted in 2013.

The Seventh Economic Census is being conducted by MoSPI now.

In the current Economic Census, the MoSPI has partnered with CSC e-Governance Services India Ltd, a special purpose vehicle under the ministry of electronics and information technology, as the implementing agency. An IT-based digital platform for data capture, validation, report generation, and dissemination will be used.

One of the main aims of the Economic Census is the preparation of a National Business Register, which can be linked with existing databases at the central and state government levels.

It is also proposed to have in place a threshold turnover in monetary terms for such households/establishments for inclusion in the coverage of the census.

The Economic Census will cover all establishments, including household enterprises, engaged in production or distribution of goods/services (other than for the sole purpose of own consumption) in the non-farm agricultural and non-agricultural sectors will be counted.

 

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LEGAL NEWS

SC: Why CPI (M) Leader Tarigami was still in Delhi if his Medical Condition is now Stable
The three-judge bench of Supreme Court comprising of Chief Justice Ranjan Gogoi, Justice SA Bobde and Justice S Abdul allowed CPI (M) leader Mohammed Yousuf Tarigami to return to Kashmir. The liberty of CPI (M) leader Mohammed Yousuf Tarigami was curtailed following the security reasons. The petition was filed by Sitaram Yechury seeking issuance of Habeas Corpus for production of J & K Party State Secretary, Tarigami.
Date - Mon, 16 Sep 2019 12:10 PM


Bombay HC dismisses Petition Challenging the appoints of 3 State Minister
The division bench of Justice SC Dharmadhikari and GS Patel passed an order wherein granted relief to Maharashtra Government by dismissing the petitions challenging the appointments of Radhakrishna Vikhe-Patil, Jaydutt Kshirsagar and Avinsh Mahatekar as minister in the Maharashtra government. Vikhe-Patil, who was Leader of Opposition in the state assembly, had resigned from the Congress and as a Member of the Legislative Assembly. He was allotted the Housing portfolio in the recent cabinet reshuffle that took place on June 16. Kshirsagar, who quit the Nationalist Congress Party (NCP) and joined the Shiv Sena, was given charge of the Employment Guarantee and Horticulture Ministry. Republican Party of India (A) leader Mahatekar also took an oath as a Minister of State for Social Justice and Special Assistance.
Date - Mon, 16 Sep 2019 12:10 PM


Sikkim High Court gets New Women Acting Chief Justice
The central government on retirement of incumbent Chief Justice Vijai Kumar Best appointed Justice Meenakshi Madan Rai as new Acting Chief Justice of the Sikkin High Court. To note, Justice Rai, the first woman judge of the Sikkim High Court, has already served as the Acting Chief Justice of Sikkim High Court between July and October 2018.
Date - Mon, 16 Sep 2019 12:10 PM


SC to Examine on Illegal Detention of Children in Kashmir
Ms. Enakshi Ganguly, known child rights expert and Prof. Shanta Sinha, the first Chairperson of the National Commission of Child Rights filed Public Interest Litigation in Supreme Court against the alleged illegal detention of children in J & K in the wake of revocation of Article 370 of the Constitution of India. It has been prayed that all children who are currently detained be produced before the Juvenile Justice Committee of the High Court and brought under their care and supervision, so that they may provided with the necessary support.
Date - Mon, 16 Sep 2019 12:10 PM


J&K HC allowed 2 MPs of NCP to meet Farooq Abdullah and Omar Abdullah
Jammu and Kashmir High Court bench of Justice Sanjeev Kumar has allowed Two Members of the Parliament (Lok Sabha), belonging to National Conference Party, to meet Dr Farooq Abdullah and Mr Omar Abdullah, President and Vice President of their party, respectively. Justice Sanjeev Kumar has allowed the petition filed by MPs Justice (retd.) Hasnain Masoodi (Anantnag) and Akbar Lone (Baramulla) with stringent conditions. The Court has directed that the petitioners, after meeting shall not go to press/media regarding their meeting and deliberations with them.
Date - Mon, 16 Sep 2019 12:10 PM


Action Should Be Against 'Urban Encroachers' Of Forest Lands And Not Tribals:SC
Supreme Court Bench of Justice Arun Mishra, Justice M.R. Shah and Justice B.R. Gavai observed that tribals who are genuine forest dwellers should be protected and eviction should be ordered only against 'urban encroachers' of forest land. The bench made this observation while hearing a batch of petitions challenging the Forest Rights Act (FRA). The Court also allowed intervention applications filed by several individuals and Adivasi organizations who defend the FRA.
Date - Mon, 16 Sep 2019 12:10 PM


Sikkim HC dismissed the plea seeking live streaming of Nishan Singh Sahib Case
Sikkim High Court Single Bench of Justice Bhaskar Raj Pradhan refused to live stream the proceedings of the Nishan Sahib Case. The order was passed in a petition, filed by one Amritpal Singh Khalsa and Sri Guru Singh Sabha (a registered society), seeking action against the State authorities who were alleged to have removed the holy Guru Granth Sahib Ji and to have uprooted Nishan Sahib from the Gurudwara at Gurudongmar Lake in Sikkim by, in August 2017. Rejecting the application, Justice Bhaskar Raj Pradhan seconded the State's argument that while all the prayers had been sought against the Registry/Computer Cell of the Court, it had not been made a party to the proceedings. Case: Sri Guru Singh Sabha vs State of Sikkim | Date: 12/09/2019
Date - Mon, 16 Sep 2019 12:10 PM


OPPORTUNITY

DAILY LEGAL GK

LEGAL NOTES

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WRITS UNDER THE INDIAN CONSTITUTION

Introduction:

In common law, Writ is a formal written order issued by a body with administrative or judicial jurisdiction.

In India writs provides the citizen as well as person a right to directly approach the Court   in situations wherein their rights are infringed or are on the verge of infringement.

It should be taken into consideration that the concept of writ is alone wherein the High Courts enjoy more jurisdiction as compared to the Supreme Court.

 

Five Type of Writs:

There are five types of writs in the Indian Constitution stated in Article 32 for Supreme Court and Article 226 for High Court. They are

  1. Habeas Corpus
  2. Quo-Warranto
  3. Mandamus
  4. Prohibition
  5. Certiorari
     
  1. Habeas Corpus: (to have the body)

The first writ is of Habeas Corpus. It emanated from the 39th clause of Magna Carta, which was signed and authorized by King John in the year 1215. The term ‘Habeas Corpus’ is a Latin term which means ‘to have the body’. The main purpose of this writ was to provide security to a person who has been illegally detained. Within the terms of this writ unlawful or illegal detention shall take place if-

  • If the detention is not as per the law of the territory or if the procedures are not duly followed.
  • Laws of land are infringed while detaining a person.
  • It surpasses the authority which was entrusted by Legislature.

The Indian Constitution under Article 20, provides protection to a person in respect of conviction for offences and under Article 21 protects the personal life and liberty of a person. Whereas under Article 22, the Constitution provides protection against arrest and detention and it also lays the rights of detainee. Based on these articles the Court shall analyse the authenticity of the detention of a person.

 

Case law- Sheela Barse vs State of Maharashtra

  • Sheela Barse a journalist by profession had filed a writ petition on the pretext that she had interviewed 15 women prisoners in Bombay on 11/05/1982.
  • She stated that during the interview she found out that two prisoners were assaulted within the jail premises.
  • Based on her allegations the Court had ordered and directed Dr (Miss) A.R.Desai, Director of college of Social Work to investigate into the matter and submit a report.
  • The report submitted by Dr (Miss) A.R.Desai proved that the allegations were true.
  • Subsequently, the Court ordered for certain safety measures that had to be followed for protecting the women prisoners and also the officials responsible for the carelessness and inaccuracy were punished.

 

  1. Qua warranto: (by what authority)

The word ‘Qua warranto’ is derived from a Latin term which means ‘by what authority’. In simpler terms this writ questions the authority who lays a down a particular decision. In legal aspect this writ is issued to a person who holds a public office. The person who enjoys the position of a public officer is answerable to the Court for his/her acts. The public officer has to satisfy the Court that he/she is legally entitled to hold the office. This writ does not lay emphasis on the concept of ‘locus standi’ and any person can approach the Court under this writ. It is not a pre-condition the sufferer c an alone file this writ.

This writ can be filed under various circumstances such as:

  • test the validity of an election of a person in a university syndicate
  • test the validity of Nomination of members to a Legislative Council by Governor
  • to examine the appointment of Chief Minister, Chief Justice, Advocate and Attorney General, University Teachers etc.

Conditions for Issue of Quo Warranto

  • The offence must be substantive in nature.
  • The person under question must legally hold a public office which is established by or under Constitution.
  • There must be a contravention in constitution in appointing the person for that office.

Case law- Purushottam Lal vs State of Rajasthan 

  •  In this case this writ was filed the Rajasthan’s Chief Minister stating that he was not legally elected to the post and he was holding the post illegally.
  • Thus the office of the Chief Minister was in question with regards to its validity.
  • However, the petition was rejected in the Court on the grounds that, if the CM holds office without authority, then it is breach of constitutional provision.
  • The Court further stated that the office of the Chief Minister is created by the Constitutional Provision and based on this the member of assembly is not a purpose of office.
  • The Court was of the view that the objecting the election of the Chief Minister cannot be included in this writ and the same can be done by filing an election petition.
  • This decision clearly stated that if the person with no or improper qualification was appointed as a Chief Minister by the Governor under Article 164 of the Indian Constitution, the decision cannot be challenged.
  • Because the Governor enjoys discretionary powers under Article 361 and the appointed can be deserted by the High Court if it thinks fit.
  • In the case ‘Y.S.Raja Sekar Reddy vs Nara Chandra Babu Naidu’ a quo warranto cannot be issued for dismissing the Chief Minister of a state on the reason of non-performance of his constitutional duty.

 

  1. Mandamus- (We command)

Mandamus means ‘we command’. This writ is in the form of an order from the Supreme Court or High Court to the lower court i.e.

  • Lower or Subordinate courts
  • Tribunal.
  • Public Authority.

Under this writ the higher Judicial courts orders their subordinates to perform a public or a statutory duty.

This writ is more in the nature of a command which is issued to any Government, subordinate court or corporation or public authority in case there is any failure on their part to the work effectively and efficiently.

 

 

Limitations for Mandamus:

Supreme Court cannot issue writs to

  • President or State Governors
  • Chief Justice of High Courts
  • Against any private individual
  • Duties on voluntary interest
  • State government to appoint a commission for any enquiry in the state 
  • Delegated legislative to make further rules in statutory provisions
  • To enforce the payment of money of a person in a civil liability
  • Directing the government to make reservations (Article 16[4])

Case law- Tata Cellular vs UOI 

  • The Apex Court stated that the Judiciary cannot intervene in the Government’s freedom of contract, invitation of tenders and refusal of tenders.
  • It also held that the Courts are eligible to intervene if the conduct of the Government was induced by illegal, unreasonable or unfair activities.

 

  1. Certiorari – (To Be Certified):

The writ of Certiorari is issued by a Superior Court to its lower or inferior courts or to any other public authority. By virtue of this writ of the Superior Courts are entitled to receive the records of any proceeding for reviewing the same.

Generally, this writ is issued to revoke the order passed by the lower courts or other quasi-judicial bodies.

Conditions for Issue of Writ of Certiorari:

  • There must be a court, tribunal or an authorised person having a legal right to act judicially.
  • Such court, tribunal or officer must have acted or passed an order without jurisdiction or in excess of judicial authority.
  • The order in question was against the principle of Natural Justice.
  • The order contains an error of judgement.
  • The order is against the constitution or is in contravention with the fundamental rights.
     

 

  1. Prohibition- (to prohibit)

This writ is issued by the Superior Court to the Inferior Court with a view to disallow or forbid the orders that were passed by them. The major difference between the writ of certiorari and prohibition are as follows:

  • Certiorari – issued to quash a decision after completion of proceedings.
  • Prohibition – issued before the completion of proceedings.

 

Conclusion:

The writ jurisdiction of the Indian Legal System is a blessing to its democracy. The writs not only allow the citizen to approach the Judiciary directly, but it also gives an opportunity to the persons as well under certain circumstances. It sort of helps the victim or persons acting on behalf of the victim to avail speedy recovery. Thus, it is necessary the concept of writs should be duly and diligently followed, so that the faith of people in its legal system prevails.

 

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Evidentiary value of extra judicial confession

The needs of extra judicial confession actually creep in when the urgency of the matter exceed fair judicial process. These are made by the party elsewhere then before a magistrate or in the court. The word used by the accused in such a confession weight the higher value that such exact words would be necessary to give the court an impression of what the true confession was. It can be made before a Magistrate who is not especially empowered to record confession u/s 164 CrPC or before a private individual. However unlike other form of confession extra judicial confession u/s 26 has its own limitations. Extra judicial confession made before persons with whom the accused had no relationship could not be relied upon. In Tarseeem Kumar v. Delhi Administration, 1995 the accused was acquitted on the ground that the extra judicial confession, as claimed, was made before stock witness who was casually knowing the accused. Such a extra judicial confession lacks credibility before the court. In state of Haryana v. Ved Prakash 1994 it was alleged that the accused made extra judicial confession to a Doctor and another person, both the strangers and the same was tape-recorded as if it was anticipated and the tape-recorder kept ready. Such a statement was not a confession in nature because of denoted influence and involuntariness of the accused to state such fact whether true or not. The nature of the confession is always voluntary where accuse submit himself before the fair people in just belief. Where extra judicial confession was made to a stranger and the excat words were not recorded and corpus delicit i.e, substance or foundation of an offence was not available, it was held that the confession could not be relied upon.

In Gura Singh v. State of Rajasthan 2001 the evidentiary value attached to the extra judicial confession was explained;

            “it is settled position of law that extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of the extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Further, relying upon the judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh the has again in Maghar Singh v. State of Punjab held that the evidence in the form of extra judicial confession made by the accused to witness cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by the way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be found on the evidence alone. In Kishore Chand v. State of H.P. this court held that an unambiguous extra judicial confession possess high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat, or promise envisaged u/s 24 of Evidence Act or was brought about in suspicious circumstances to circumvent section 25 and 26. The court is required to look into surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made the time and place of making it, the circumstances in which it was made have to be scrutinized.”

Thus, in examining the weight of evidentiary value of extra judicial confession it is necessary to check whether the accused was the free man while making such a statement which can in all the probabilities go against him and can criminalise him. 

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Rights of an Arrested Person

Cr P C gives powers to the police for arresting a person with such power Cr P.C also provides rights to an arrested person. The arrest should not only be legal and justified but it should be effected strictly according to procedure established by law.  Thus no person shall be deprived of his life and personal liberty except according to procedure established by law.  Rights of an arrested person are as follows –

1. Right to know the grounds of arrest – (Section 50(1)) – The foremost requirement of lawful arrest is notification of the reason of arrest with the charges against him. According to this provision, every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or any other grounds for such arrest.

Case law :- Udaybhan Shuki vs State of UP,   High Court held that right to be notified of grounds of arrest is a precious right of the arrested person. This allows arrested person to move to court timely for bail, opportunity to clarify any mistake, to begin to prepare his defence.

Re Madhu Limaye, Court held that detention becomes unlawful if the ground given were not proper and sufficient.

2. Right to be informed of the provision for bail – (Section 50(2)) – This section provides that where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

3. Information of arrest to a person nominated by accused – (Section 50 A) This section  provides that once the arrested person is brought to the police station, the police officer must inform a relative or a friend, or any other person of the arrested person’s choice, about his arrest. He must also tell the place where the arrested person has been kept. Further he must note down the name and address of the person who was informed about the arrest.  It shall be the duty of the magistrate before whom such person is produced to verify that the provisions of this section were complied with

This section has been added by the decision of Supreme Court in Joginder Singh v. State of Punjab and DK Basu v. State of West Bengal.

 

4. Right to be produced before magistrate within 24 hours – (Section 57) – This section lays down that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s court.

In the case of Khatri (II) v. State of Bihar, SC has strongly urged upon the State and its police to ensure that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours should be met.  It is essential that the magistrates should try to enforce this requirement and when they find it disobeyed, they should come heavily upon the police.

5. Right to be examined by a medical practitioner (Section 54) – This section gives the accused a right to get himself examined by a registered medical practitioner. When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested by the arrested person so to do direct the examination of’ the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of Justice.

In case of Sheela Barse vs State of Maharashtra, SC held that even in cases were accused does not make any prayer it is duty of the magistrate to inform the arrested person about his right to get himself medically examined in case he has complaints of torture in police custody.

 

6. Right to consult Legal Practitioner – (Section 303)- It is mentioned that any person accused of offence before a Criminal Court or against whom proceedings are instituted under this Code, may have right to be defended by a pleader of his choice.

7. Right to free legal aid – (Section 304) – This section provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

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