Evaluating whether the MFN clause can expand the definitions in the BIT

The Most Favoured Nation (MFN) clause links investment agreements by ensuring that the parties to one treaty provide no less favourable a treatment to a nation than that provided under other treaties in areas covered by the clause.[1] It has often been linked as a tool of equality; however, the general consensus is that the MFN clause obligates a nation only when a treaty clause creates such an obligation.[2]

The debate as to whether the MFN clause can expand the definitions in the BIT and consequently, the scope of application of the treaties is an evolving dialogue in Investment Arbitration.[3] We shall examine the scope of the same through several recent cases. The base issue in each case boils down to a claim being made to invoke the MFN clause in order to expand the definition as per another BIT while the opposition contends that since the definition is not exhaustive and does not specify a particular investment or investor within its folds, it should not be expanded by relying on the MFN as it does not constitute a part of the treatment. In the recent times, the latter view has been upheld by several tribunals as elaborately discussed below.

In Vanessa Ventures Ltd. v. Venezuela, the claimant which was a Canadian Mining Company, sought to expand the definition of ‘investment’ by relying on the MFN clause of the Canada-Venezuela BIT. The company had entered into a concession agreement with the government of Venezuela in order to exploit copper. The dispute boiled down to the company contesting expropriation while Venezuela stated that there existed no qualifying investment as per the BIT due to non compliance with the law of the host state. The Company then attempted to employ the MFN Clause in order to apply the more favourable definition of investment as per the Venezuela- UK BIT, which was devoid of such legality requirements. The Hon’ble court outright rejected the argument and stated that the MFN treatment and protection was applicable as per the BIT only when specified. The Court held-

“The benefit of the MFN provision in Article III of the Canada-Venezuela BIT can only be asserted in respect of investments that are within the scope of Article I(f) of the Canada-Venezuela BIT to begin with. The MFN clause cannot be used to expand the category of investments to which the Canada-Venezuela BIT applies.” [4]

A similar decision was pronounced several years later in the case of Société Générale v. Dominican Republic in which the Claimant similarly sought to expand the definition of ‘investment’ as per the France-Dominican Republic BIT while Dominican Republic had contended that the indirect shareholding of the Claimant does not amount to investment for the purposes of the BIT. The Claimant attempted to invoke the MFN clause to employ the definition under the CFTA. The tribunal refused, by stating that the definition of investment was not exhaustive and the protection is as per the specific treaty-

Each treaty defines what it considers a protected investment and who is entitled to that protection, and definitions can change from treaty to treaty. In this situation, resort to the specific text of the MFN Clause is unnecessary because it applies only to the treatment accorded to such defined investment, but not to the definition of ‘investment’ itself.”[5]

Further, in the case of Metal Tech Limited v. The Republic of Uzbekistan, there was an attempt to circumvent legality requirements by seeking an expanded definition of investment by placing reliance on the MFN clause. The claimant was an Israeli manufacturer who had entered into a joint venture with two Uzbek governments whereby the latter refused to acklowledge the former’s investment as they said it was tainted with illegality. The claimant attempted to use the definition from the Greece-Uzbekistan BIT by relying on the MFN clause but the court refused to expand the definition and held-

“…one must fall within the scope of the treaty, which is in particular circumscribed by the definition of investment and investors, to be entitled to invoke the treaty protections, of which MFN treatment forms part. Or, in fewer words, one must be under the treaty to claim through the treaty.”[6]

As recent as 2013, within the folds of this debate, a new issue arose of distinguishing gateway definitions from admission requirements. In the case of Rafat Ali Rizvi v. The Republic of Indonesia[7], the claimant attempted to rely on the UK-Indonesia BIT in order to seek more favourable treatment for the purposes of admission of investments. Here, while the Claimant agreed that the definition of investment could not be sought to be expanded through the MFN clause, they sought to distinguish it from admission requirements. However, the tribunal held that while not directly definitional, the requirements detailed were conditions of access to treaty protection and had to be satisfied as prerequisites before the protections of the BIT could be invoked such as the MFN clause.

By looking at the above cases, and the contentions that have been raised in several legal forums pertaining to invoking the MFN clause in order to expand definitions, and the holdings of several tribunals, we can establish that “a definition is not a form of treatment; it simply establishes the baseline of what is entitled to MFN treatment.”[8] However, while this is the present status of the debate, whereby protection clauses cannot be invoked such as the MFN before the prerequisites are satisfied, the discussion has yet been stilted to a few definitions only. There is a scope for change if there are further jurisdictional issues raised which are necessary in nature.

In my opinion, the position on expansion of definitions is somewhat settled in reference to the terminology of ‘investors’ and ‘investment’ whereby, they have to be specifically entailed in the basic treaty to be given the meaning and expansion otherwise is not allowed. However, the growing field of investment arbitration is raising questions which might necessitate the expansion of definitions such as for application of jurisdiction.[9] This is also in line with the principle of preventing ‘treaty shopping’ and in line with the MFN clause principle of finding a legal mandate due to specific obligations entailed in the treaty. Further, I believe that the definition in itself does not qualify as treatment, rather is a condition requisite in nature to be fulfilled before seeking benefits.

The process thus needs to be viewed in the light of a cost benefit analysis of the losses of the treaty shopping as compared to the benefits of an extension of substantive protections and should be evaluated and applied where the benefits outweigh the costs.

[1] OECD (2004), “Most-Favoured-Nation Treatment in International Investment Law”, OECD Working Papers on International Investment, 2004/02, OECD Publishing. http://dx.doi.org/10.1787/518757021651., Article 5, Draft articles on Most-Favoured-nation clauses, Yearbook of the international Law Commission, 1978, Vol. II, Part Two, p. 21.

[2] Oppenheim , International Law (Harlow: R. Jenning & A. Watts, 1992), pp. 1326-1338.

[3]  Louise Barber, “Cart Before the Horse: Can MFN Clauses Expand the Key Definitions in Investment Treaties?,” Kluwer Arbitration Blog, last modified 2014, http://kluwerarbitrationblog.com/2014/09/02/cart-before-the-horse-can-mfn-clauses-expand-the-key-definitions-in-investment-treaties/.

[4] Vanessa Ventures Ltd. v. Venezuela, (ICSID Case No ARB(AF)/04/6, Award, 16 January 2013).

[5] Société Générale v. Dominican Republic, (LCIA Case No UN 7927, Award on Preliminary Objections to Jurisdiction, 19 September 2008).

[6] Metal Tech Limited v. The Republic of Uzbekistan, (ICSID Case No. ARB/10/3, Award, 4 October 2013).

[7] Rafat Ali Rizvi v. The Republic of Indonesia, (ICSID Case No. ARB/11/13, Award on Jurisdiction, 16 July 2013).

[8] Metal Tech Limited v. The Republic of Uzbekistan, (ICSID Case No. ARB/10/3, Award, 4 October 2013).

[9] United Nations Organization , “Final Report on the Most Favoured Nation Clause,” United Nations – Office of Legal Affairs, last modified 2009, http://legal.un.org/ilc/reports/2015/english/annex.pdf.



ABOUT THE AUTHOR

img-20141117-wa0005

SANSKRITI SANGHI

Currently pursuing her undergraduate degree from the Gujarat National Law University, Gandhinagar, Sanskriti Sanghi possesses a flair for writing and a yearn to learn. Being avidly interested in Antitrust law, Intellectual Property Rights, Children’s Rights and International Relations, she seeks to engage in and discuss multiple disciplines which keep her constantly discovering. She believes in immersing and involving herself in various activities and letting the passion for each of those interests allow her to deliver her best.

An Overview of Acid Attacks in India

“They try hard not to break down as they recall and narrate the most horrific time of their lives. The gruesomeness of the attacks has not numbed their memories. They remember every detail. They flirted seriously with death but chose to live instead. They tell you they dread looking into the mirror in the same breath as they say they want to go out into the world and make a difference.” – Times of India

Acid attack is not something unbelievable in India. It has stunned the inner voice of our country over and over – with ravaged appearances, unbeaten survivors going to the bleeding edges to share their horrendous stories, and families headed to insolvency supporting recuperation costs. The acid attack is the most awful type of wrongdoing in the general public. Acid attack has its precarious ascent in recent years. 85% of casualties are women, so acid attack can overwhelminglybe delegated sexual orientation brutality. For the 15% male casualties, the essential driver of assault is property question.

The most outstanding impacts of an acid attack are the deep rooted substantial distortion. The acid attack is a type of rough assault by tossing destructive substance onto the body of someone else with the goal to deform the body. Primarily acid are tossed at the substance of casualty, blazing them, and harming skin tissue, frequently uncovering and in some cases dissolving the bones. The long outcome of such kind of attack is that it makes the individual visually impaired, and in addition lasting scarring of the face and body. The acid attack makes the life of the individual more regrettable and it additionally influences their social, financial and mental life.

Since acid attack is potentially the most noticeably awful punishment on another human – prompting to finish weakening, loss of pay and opportunity, and even social sequestration-and it can transpire, whenever. The way to this abhorrence remain very open to most and the causes inciting such malevolence can be unfathomably minor.

It was just in April 2013, in the repercussions of what is known as the Nirbhaya case, that the Indian law making body altered the assault laws of the nation and made a particular offense for endeavoured or finished acid attacks.

The new areas in the IPC – 326A and 326B – gave a base sentence of ten years, extendable to life detainment, for an acid assault, and five to seven years’ detainment for endeavoured acid attacks.

Section 100 of the IPC was changed to permit a safeguard of self-preservation for fear of grievous hurt by acid assault. The Criminal Procedure Code was likewise altered to elucidate that an assailant was subject to pay a fine and the medicinal costs of the casualty notwithstanding remuneration. A further amendment ordered all healing facilities to give medicinal guide to acid assault survivors free of cost and to promptly illuminate the police of an acid assault.

While survivors of acid attacks that have happened since February 2013 (when the amendments criminalizing such attacks came into drive) are equipped with the new stringent laws, survivors from before that keep on struggling in the courts to demonstrate their cases under the non-specific criminal arrangements of assault and grievous hurt.

The way that the MHA information shows that the quantity of occurrences have expanded from 83 in 2011 to 309 in 2014 is confirmation of the absence of viable execution of laws controlling the offer of acids.

As of late as December 2015, the Supreme Court issued a request because of an appeal to record by a NGO in the interest of two acid assault survivors who had not got sufficient remuneration. Frustrated, the court noted:

“…attacks have been rampant for the simple reason that there has been no proper implementation of the regulations or control for the supply and distribution of acid…the state has failed to check the distribution of acid falling into the wrong hands even after giving many directions by this court in this regard. Henceforth, a stringent action be taken against those erring persons supplying acid without proper authorisation and also the concerned authorities be made responsible for failure to keep a check on the distribution of the acid…”

Actualizing control, harder discipline and quick track courts committed for attempting these cases comes next. Most casualties lose the inspiration to seek after the battle after the underlying months goes as the irreversibility of their condition get to be distinctly evident to them. Sadness and misery soaks in substituting displeasure and inspiration for equity, bringing down further the rate of arraignment and conviction of attackers.

An acid attack has dependable results on the life of the victim who faces unending torment, perpetual harm and different issues for whatever remains of her life. Their living gets to be distinctly similar to a canal; they turn out to be excessively damaged and humiliated, making it impossible to leave their home and complete basic undertakings not to mention get hitched, have kids, land a position, go to class, and so forth. Regardless of the possibility that they will seek after a typical life, there is no assurance that society itself will regard them as ordinary individuals given their appearance and handicaps after an attack. They will most likely be unable to work, or have the capacity to discover an occupation, and in this manner unendingly battle to survive. In this manner, to check attacks on ladies unforgiving discipline ought to be given to individual with the goal that they feel the same as the casualty feels.

The Crime of an Acid attack is not on a little range, step by step the wrongdoing of acid attack is expanding so as opposed to making such futile law the administration ought to make proper move which genuine will help the casualty.



ABOUT THE AUTHOR

prerna-deep

PRERNA DEEP

Prerna Deep is currently a first-year student at Campus Law Centre, University of Delhi.  She has completed English Honours from Miranda House, DU. Literature gave this forever bibliophile the wings to follow her heart and Law gave her the strength to believe that she too can change the world. She considers receiving an award for her essay on ‘Women and Law in India’ from Mr Ram Jethmalani a treasure. When not writing she’s probably binge-watching sitcoms.  She believes nothing describes her best than Virginia Woolf’s words:
“I have a deeply hidden and inarticulate desire for something beyond the daily life.”

Legal education: From being a Barrister to Wakil to Lawyer

“If we desire respect for the law, we must first make the law respectable.”

– Louis D. Brandeis

Law is a very old prestigious field in the domain of education. Many freedom fighters of the country were from Legal fraternity. Mahatma Gandhi himself was a barrister who studied from South Africa. The first president of India Dr.Rajendra Prasad was himself a lawyer. PanditJawaharlal Nehru, the first prime minister of India was also a barrister. So the kings as well as the king maker were lawyers.  Legal education has seen many ups and downs. There was a time when people were passionate towards this field and many bright students optedit as a career but there were also times when it was taken as an alternative. Judiciary is an independent body. It is known for its fierce attitude and bold decisions. Every citizen has to abide by its decision no matter they are the king or the pauper.  But the question is if law is such a respectable field then: why there is scarcity of good lawyers although courtrooms are filled with lawyers? Why there is less number of judges and there is vacancy for more? Why lawyers are not respected so much and they had to struggle to excel in society? And why the charm of Law was endangered?

Before independence legal education shares a very important place in the history of India. India has produced many renowned lawyers of all time in the field of criminal law. Many renounced lawyers who belong from non-legal field opted law as a profession and excel in it. In those days they were called barristers because they pursue law from abroad from the prestigious universities such as Cambridge, Oxford, Harvard etc. They were seen with respect and honour. With the independence the charm of law slightly got lowered as now the country needed more of the Technocrats than lawyers. Pandit Jawaharlal Nehru emphasised on technocrats, as the free nation needs some repair work which was damaged by the British. There comes an era when engineering gained much more importance and it rose to its prominence. Law was looked to be an alternative choice for the people. Students who were not good in science and quite weak were forced to join law. Slowly a concept of Wakil came. People acquired their degree from any college and start to practice in court having no knowledge at all. Only in a few families law was seen as a respectable career since it was the profession of forefather and a legacy being followed in family. Law is something which needs proper guidance, discipline, clear concept and passion. If one is passionate about law then s/he is unstoppable. The courtrooms of 21st century are going through this phase of lawyers. High Courts are full wakil who don’t even know the jurisdiction as well the clear matter related with the case. Judges scold them and make fun of them. Even many renounced judges and lawyers have said that there is lack of good lawyers in the country. Ram Jetmalani, the renounced and respectable senior advocate of the country has said that hard work is the key to success in law.As a result a need was felt to bring back the lost charm of the law and National Law Universities as well as many Private universities and colleges came into being.It was Prof. N.R MadhavaMenon which changed the outlook of Legal Education and came with 5 years undergraduate course so that students after 12th can pursue this field. A specialised universities concerning with law all over the country came into being. The main idea of coming with NLUs is to give quality students to the country. Even private universities have come forward with such intention. There are private universities which are giving excellent opportunities to the students which are not available even in good NLUs. The concept of moots is evolved to improve the advocacy skills. Moreover there are other extra activities like debates, presentation etc. to build confidence in students.It can be said that the future of law is in safe hands. Earlier there were few NLUs like NLSIU Bangalore, NALSAR Hyderabad etc. but now there are almost 18 universities opened all over the India. Because of NLUs All India entrance exam is conducted known as CLAT and students are enrolled based on merit in various NLUs. Traditionally Legal education in India was conductedthrough the medium of non-specialized universities of India which granted law degree like any other graduated degree. Earlier there were only courtroom lawyers but now many doors are opened for a law student. S/He is not restricted just to courtroom but can opt for jobs in corporate or banking sector or firms.

Law has its own charm and elegance. Law is a synonym for justice and lawyers are the interpreter. A lawyer is a student forever no matter s/he become a judge or works in a corporate sector. It only needs patience and sheer hard work. A little knowledge is a dangerous thing which is true for law. As Martin Luther King, Jr has said “Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.”



ABOUT THE AUTHOR

twinkle-singh

TWINKLE SINGH

It’s always being a difficult task for me to write something about myself but to start with, I am a law student studying in Chanakya National Law University. I love to write the articles based on law and it’s legal aspect. I believe in having a colourful life rather than being black and white. Apart from law, I love drawing especially cartoon characters but I made only for myself that too when I really feel like. I am active in social media quite a lot. I love experimenting such as in the field of making deserts, I love making cakes in the free time. This is my short and sweet bio which is not sufficient to describe myself but at least it can give some idea about me.

FRAND Licensing: Bridging the gap between Competition Act and Patent Act

Telefonaktiebolaget LM Ericsson (Public) (in short “Ericsson”) is a company having around 33,000 patents, and 400 of these patents have been granted in India. Most of these are Standard Essential Patents in the field of Mobile Communications like 2G, 3G and 4G which are used in the smartphones and such other devices, which are used for communication.[1]

Ericsson versus Micromax & Others

Lately, Ericsson filed a civil suit against many companies for infringements of its patents relating to the mobile communications, some of them were Mercury Electronics (Micromax),[2] Intex Technologies (India) Limited (Intex),[3] M/s. Best IT World (India) Private Limited (Iball),[4] Lava International Ltd (Lava),[5] Xiaomi Technology (Xiaomi)[6]. These companies in their defence asserted that Ericsson violated its FRAND commitment, made by Ericsson to the European Telecommunications Standards Institute (ETSI). ETSI made the patents of the Ericsson in the field of the mobile telecommunication as the Standard patents, and thus made them essential in nature. These patents are also recognised as standards within India by the Department of the Telecommunication, which recognises the standards adopted by ETSI.[7]

Most of the companies sell smartphones in India at a very reasonable price and common people who cannot afford the luxury of the Apple’s iPhone tend to buy such smartphones. Some of these companies being Intex,[8] Iball[9], and Micromax[10]and charged back on Ericsson by filing information under the Competition Act, 2002 against it, in which the investigations are pending.

Standard Essential Patents (SEPs) and FRAND Licensing

These disputes are becoming prevalent in the today’s market due to the lack of legal recognition of the FRAND Licensing in India. FRAND Licensing stands for Fair, Reasonable and Non-Discriminatory Licensing. They are sine qua non for widespread use of the Standard Essential Patents and hence, following the standards which are set by the Standard Setting Organizations (SSO).

The Jurisprudence of FRAND Licensing came to India with the filing of the civil suit by the Ericsson against Mercury and Micromax[11]. FRAND Licensing is a type of voluntary Licensing of the Intellectual Property, by the owner. The FRAND Licensing is done on the terms which are Fair, Reasonable and Non-Discriminatory. The Royalty set by such Licensing should be proportionate to the patented product and not exorbitant, it must be a reasonable one.[12]

The owner agree upon such terms to license the rights to the other persons, as the patent owned by the owner is a Standard Essential Patent (SEP) i.e. a patent which conforms to the standards set by the SSO, and without their compliance the products could not be sold in the market, because there are no non-infringing alternatives. Hence, SEPs are essential, to make a product conforming to the industry standards, and they face no competition unless and until that patent becomes obsolete.

These standards are set by a mutual agreement and consensus between the market players to reach upon compatibility between the services or products particular market under the aegis of the SSO.[13] These standards can also be fixed by statutory SSOs.

FRAND Licensing and Patents Act, 1970

FRAND Licensing tends to promote the objective for which patents are granted status of SEPS, as it allows the dissemination of the patent to the public, and fetches the appropriate amount of royalty to the companies who own SEPs. Section 83 of the Patent Act, which lays down the general principles which must be applicable to the working of the patented inventions, in its clause (a),(c),(f), and (g), includes within them certain objectives which are incorporates in the FRAND Commitment, which are as follows:

  1. that the inventions are worked on a commercial scale and to the fullest extent that is reasonably practicable without undue delay;
  2. that the protection and enforcement of patent rights contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations;
  3. that the patent right is not abused by the owner, and he does not resort to practices which unreasonably restrain trade;
  4. that patents are granted to make the benefit of the patented invention available at reasonably affordable prices to the public;

Further Section 84 which incorporates the provisions regarding the compulsory licensing, makes it a clear ground, that if the patented invention is not available to the public at a reasonably affordable price, one may apply for the Compulsory Licensing, after ascertaining, whether the applicant has made efforts to obtain a license from the patentee on reasonable terms and conditions and such efforts have not been successful within a reasonable period. Section 84 also provides for the Proviso to the above-mentioned condition that if any anticompetitive practices adopted by the patentee and same are established, then this condition shall not be applicable. Therefore, this section provides for the intersection with Competition Law, which is inevitable.

Competition Law Aspect of the FRAND Licensing

Section 3, of the Competition Act, 2002 which prohibits anti-competitive agreement, in its clause (5) clearly recognises “Reasonable” restriction which can be put on a party by the owner when a patent is being infringed or any of the rights which are conferred under the Patent Act, 1970. If the same is read with the Section 83 and 84 Compulsory License would be granted to the prospective Licensee if he is not getting License on FRAND terms.

Section 4 on the other side restricts the abuse of the dominant position. Once a patent gets the status of SEP, it is granted a dominant position in the particular market as, it hardly faces any competition, and enjoy such position of strength until it becomes obsolete. Clause (2), sub-clause (a) clearly, states that there would be the abuse of the dominant position if the enterprise imposes unfair and discriminatory prices on the consumers of its products. In the present case of Ericsson, it clearly has the Dominant Position in the market of the SEPs pertaining to the mobile telecommunications, and it abused it by charging unfair prices.[14] Hence, it was liable to grant a license, as compulsory license would have been granted after its establishment of Ericsson’s abusive conduct in the market.

Hence, FRAND Licensing is the combined product of the two aspects of the CompetitionLaw i.e. prohibition of anti-competitive agreement and prohibition of the abuse of the Dominant Position.FRAND Licensing, is a pro-competitive commitment by the SEP holders, as it provides irrevocable licenses to the market players, and in return, they tend to get a reasonable reward for their work. The persons owning the SEPs make FRAND commitment to the SSOs to License them on FRAND terms. FRAND Licensing protects the market from being exploited by the dominant player who owns the patent. It promotes the Standards as decided by the SSOs and demotes the Patent Hold-up.

Patent Hold-up

Patent Hold-up is another name for the abuse of dominant position by the SEPs owners.[15] They hold their patent with them after they are declared as SEP, unless the licensee does not give up to their conditions which may involve unfair pricing i.e. supra-competitive pricing, or more burdensome terms (as compared to previous licensing when they were not SEPs).[16] It undermines the competition in the market, by creating entry barriers and also subverts the authority of the SSO by playing fraud upon them i.e. gaining a status of SEP and committing to FRAND Licensing and then playing harsh upon the market player dependent upon such SEPs.

Conclusion

FRAND Licensing is field where the jurisdiction of Patent Act and Competition Act, intersect. They both have to be read in addition to each other, though Delhi High Court lately has held that Competition Act, is a general Act and Patent Act is a special Act in relation to it.[17] Though, the both Acts have to be read in consonance, and if necessary Competition Act, should given preference over the Patent Act in terms of Licensing Agreements, as Competition Act, represents “Public Interest”, which has been reflected in some instances, in Patent Act. FRAND Licensing is a softer version of the Compulsory Licensing, as it has all features of it, but lacks a legal backing. It is like mediation process in the era of litigation in court, which helps parties to decide terms on Fair, Reasonable and Non-Discriminatory terms. It is better this way as the prospective Licensee does not have to resort to the Controller unnecessarily and, he can approach to the SSO. A law should be brought in by the Legislature in India, which considers such situations.

Overall, there needs to be a co-ordination between, the statutory authorities especially between, Controller of Patents and Competition Commission of India, so that they could work towards the promotion of the “Public Interest” hence, implement the main objective of the Legislations and the Constitution of India.

[1] Micromax Informatics Limited v. Telefonaktiebolaget LM Ericsson (Publ), [2013] CCI 77.

[2] Telefonaktiebolaget LM Ericsson (Publ) v. Mercury Electronics & Anr, (2014) 206 DLT 423.

[3] Telefonaktiebolaget LM Ericsson (Publ) v. Intex Technologies (India) Limited, 2015 SCC OnLine Del 8229.

[4] Telefonaktiebolaget LM Ericsson (Publ) v. M/s. Best IT World (India) Private Limited (Iball), 2015 SCC OnLine Del 11684

[5] Telefonaktiebolaget LM Ericsson (Publ) v. Lava International Ltd., 2016 SCC OnLine Del 1354

[6] Telefonaktiebolaget LM Ericsson (Publ) v. Xiaomi Technology & Ors., 2016 SCC OnLine Del 2404

[7] Micromax Informatics Limited v. Telefonaktiebolaget LM Ericsson (Publ), [2013] CCI 77.

[8] Intex Technologies (India) Limited v. Telefonaktiebolaget LM Ericsson (Publ.), [2014] CCI 10

[9] M/s Best it World (India) Private Limited (iBall) v. M/s Telefonaktiebolaget L.M Ericsson (Publ) & Anr., [2015] CCI 104

[10] Micromax Informatics Limited v. Telefonaktiebolaget LM Ericsson (Publ), [2013] CCI 77.

[11] Telefonaktiebolaget LM Ericsson (Publ) v. Mercury Electronics & Anr, (2014) 206 DLT 423.

[12] Micromax Informatics Limited v. Telefonaktiebolaget LM Ericsson (Publ), [2013] CCI 77.

[13] Telefonaktiebolaget LM Ericsson (Publ) v. Intex Technologies (India) Limited, 2015 SCC OnLine Del 8229.

[14] Micromax Informatics Limited v. Telefonaktiebolaget LM Ericsson (Publ), [2013] CCI 77.

[15] Rambus, Inc., No. 9302, at 4 (F.T.C Aug.2, 2006)

[16] Micromax Informatics Limited v. Telefonaktiebolaget LM Ericsson (Publ), [2013] CCI 77.

[17] Telefonaktiebolaget LM Ericsson (PUBL) v. Competition Commission of India and Another, 2016 SCC OnLine Del 1951



ABOUT THE AUTHOR

dhruv-chandora

DHRUV CHANDORA

Dhruv Chandora is currently pursuing 4th year of BA LLB (Hons) course at Rajiv Gandhi National University of Law, Punjab. A voracious reader and a keen learner, Dhruv is also a moot court enthusiast.

An Analysis of Restitution of Conjugal Rights

Marriage is union of endless supply of the life partners certain conjugal obligations and provides for each of them certain legitimate rights. The important ramifications of marriage are that parties will live respectively. Every companion is qualified for solace consortium of the other. So after the solemnisation of the marriage if either spouse has left the other without giving any reasonable ground, the Hindu Marriage Act 1955 gives the aggrieved party remedy in the form of Section 9 under the restitution of conjugal rights. The section 9 of the HMA reads that,

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights.What the aggrieved party needs to do is file a petition to the district court and on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, the judge may decree restitution of conjugal rights in his favour.”

Historically tracing the concept of this Law we can go back to the fact that Hindu marriage is seen as a sacrosanct. It has both contractual and sacrament aspects. The smritis, which contain a noteworthy wellspring of Hindu law, generally see marriage as a fundamental samskara or religious obligation. The order of spouse as dharampatni implies an arrangement of unalienable religious duties and obligations. The courts expect that in trade for the rights gave by the individual laws on the gatherings to the marriage; they satisfy the conjugal commitments forced on them by the arrangements of the demonstration. In this unique situation, the execution of religious functions and ceremonies are regarded required and the consecrated conjugal bond as endless and in dissolvable.

The constitutional validity of the arrangement has over and over been addressed and tested. In 1983 the Andhra Pradesh High Courtin T. Sareetha v. T. Venkatasubbaiah, A.I.R 1983 A.P. 356 held that the denounced provision was unlawful. The Delhi High Court in Harvinder Kaur v Harminder SinghAIR 1984 Del.66 however had non-accommodating perspectives. At last Supreme Court in Saroj Rani v. Sudharshan Kumar Chadha A.I.R 1984 S.C 1562gave a judgment which was in accordance with the Delhi High Court sees and maintained the protected legitimacy of the segment 9 and over-ruled the choice given in T. Sareetha v. T. Venkatasubbaiah.

The instance of T.Sareetha, was the first to scrutinize the foundational authenticity of the stipulation on the rebuilding of conjugal rights. The petitioner contended that Sec 9 was “liable to be removed from the statute as it was in violation of articles 14, 19 and 21. The petitioner implied that this remedy is contrary to the freedoms of life, liberty and dignity.”

According to Justice Chowdary, marital rights connote two formulations, first that marriage partners have right for each other and second, marital intercourse. He held that “enforcing this right would amount to transfer of the right of the individual over her body, to the state”. He posited against the continued use of the section to enforce unwilling sex over a partner, under the garb of tyranny of the law.
Lord Herschell has also recorded his strong opinion about such proviso, since it violates the sanctity of the body. In Russel v Russel(1897) AC 395he went as far to say that ‘some of the case outcomes, based on restitution, bordered on the barbaric’. The judgement highlights the way that even the choice to have a child is a personal choice that ought to be taken by the lady and not something she ought to be forced into without wanting to. This provision is genuinely an indication of the ill-conceived frontier time. It needs legitimate sponsorship and is a glaring encroachment of an individual’s directly over his/her body, in this manner disregarding an individual’s freedom under Article 21 of the Indian constitution. Justice Subba Rao insightfully mentioned this objective fact and extended the privilege to life to incorporate individual’s freedom also.

One year after the historic Sareetha judgment, the Delhi High Court in Harvinder Kaur v Harminder Singh,re-examined this issue and held to the contrary. In this case the wife challenged a decree for restitution granted to her husband by the lower court. The court, while dismissing the appeal, held that the section was constitutionally valid, stating that the dual objective of the section was ‘restoring amity in marital life through a legally enforced rapprochement’. The court went ahead to include that presenting protected law in the circle of marriage resembles a bull in a china shop, and that articles 14, 21 have no place in the security of the home. The Delhi court re-imagined the establishments of conjugal connections, far from the security of appropriate to protection. Facilitate, the court considered intercourse as an imperative component of marriage, yet not really the ‘sumnumbonum’, behind petitions of restitution. Hence, not at all like Justice Chowdhary, the Delhi high court took a more restricted perspective of the stipulation of restitution.

The Supreme Court inSaroj Rani V. S.K Chadda,illuminated its position on this arrangement. The court translated that marriage, as a socially endorsed practice and family as its basic structure, gave a couple innate rights over each other’s society. The Supreme Court communicated its inspiration to ensure these uncodified laws towards, the social capacity of keeping the separation of the marriage. The Supreme Court likewise called attention to how the segment contained adequate shields to counteract abuse of a gathering to the marriage. Promote, the court held that the rule 32 of Order 21 was not coercive, but rather just a money related instrument to instigate the re-foundation of conjugal relations and to keep the separating of the conjugal tie. Hence, Justice Mukherjee found that area 9 was not disregarding Art 14 and 21 of the constitution.

In conclusion it can be said that the proverb “You can take a horse to the water, but you can’t make him drink”, suits well on the provision for restitution of conjugal rights under the Indian personal laws. The court can pass a decree for restitution of conjugal rights and request the failing mate to live together with the distressed life partner. However, it is to be noticed that the court can’t force the defaulting mate to physically come back to the solace consortium of the announcement holder life partner.



ABOUT THE AUTHOR

prerna-deep

PRERNA DEEP

Prerna Deep is currently a first-year student at Campus Law Centre, University of Delhi.  She has completed English Honours from Miranda House, DU. Literature gave this forever bibliophile the wings to follow her heart and Law gave her the strength to believe that she too can change the world. She considers receiving an award for her essay on ‘Women and Law in India’ from Mr Ram Jethmalani a treasure. When not writing she’s probably binge-watching sitcoms.  She believes nothing describes her best than Virginia Woolf’s words:
“I have a deeply hidden and inarticulate desire for something beyond the daily life.”

The Basic Structure doctrine goes global

The doctrine of basic structure is a judge-made doctrine which seeks to limit or curtail the power of the Parliament so that the basic structure of the basic law cannot be amended in the exercise of its constituent power under the Constitution of India. This blog post shall establish the comparison between India and the practice of the Basic Structure Doctrine in other countries. The doctrine of basic structure created in India is to render certain provisions unamendable and this has been followed, post the Second World War in various countries of which Germany is a prime example.[1] The Constitutions of Greece and Portugal have provided a list of all unamendable provisions which is long and fairly exhaustive.[2] The Constitutions of several countries such as France and Italy on the other hand, have attempted to safeguard only one or two core principles such as the Republican form of Government.[3] In the context of Iran, the unamendable provisions include those which relate to the Islamic and democratic character as well as the objectives of the republic such as social and economic goals.[4]

With regards to Pakistan, initially after the Kesavananda decision in India, a debate ensued in Pakistan, which however resulted in the rejection of placing substantive limits on the amendments.[5] However, in 1997, the Pakistani Supreme Court reopened this question when deciding whether an amendment that allowed the President to dissolve the National Assembly was valid or not.[6] Although the amendment was not struck down, Chief Justice Ali Shah opined that the fundamental or basic features of the Preamble should be retained and not altered.[7] While this initially led to a basic structure doctrine in Pakistan, the very next year it was overruled impliedly by a 7 judge bench.[8] Since then, the Courts have adopted either approach in certain cases, swinging both ways and it remains to be seen whether it shall be solidified or discarded.

In a case of 2015, however, this question was squarely addressed. In the majority opinion, 8 judges held that there were implied limitations on the amending powers of the Parliament. The court held that, “This Court is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features. It is equally vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the Salient Features of the Constitution has been repealed, abrogated or substantively altered as a consequence thereof.”[9] Democracy, parliamentary form of government and the Judiciary were outlined as the basic structure. The minority judges, 4 in number stated that, “The basic structure doctrine…has…[become] a vehicle for judicial aggrandisement of power at the expense of the elected representatives of the people. On the conceptual plane, it is devoid of merit and amounts to little more than a vessel into which the Judges can pour whatever economic, political or social theory as may catch their fancy or whim at any given time.[10] 5 other judges, while agreed that there were limitations, did not endorse the doctrine as that of the basic structure of the Constitution.[11]

In the country of Thailand, the 2007 Constitution prohibits amendments which change the democratic regime of the Government with the King as the head of the state or which has the effect of changing the form of the State.[12] Though this is a typical unamendable provision, the Constitution goes further to provide judicial powers to control representative bodies.[13] There is no specific mention of the basic structure, merely unamendable provisions.

The doctrine of the basic structure has also been invoked in certain cases in Belize in order to strike down amendments to the Constitution, and in both cases while the special majority required had been attained, the Supreme Court declared as such. These are the first examples of invocation by a commonwealth Caribbean court.[14] In the case of Bowen v. Attorney General, it was held that “the law-making powers of the Belizean Parliament are not unlimited in as much as the Belizean Parliament cannot ‘legitimately’ make laws that are contrary to the ‘basic structure’ of the Constitution itself. The basic structure comprises not only the fundamental rights guaranteed by Chapter II of the Constitution, but also the principles, ideas, beliefs and desires of the people of Belize as enshrined in the Preamble of the Constitution, which include, among other things, respect for the rule of law and the right of the individual to the ownership of private property. The separation of powers, which has been previously recognized by the Judicial Committee of the Privy Council (JCPC) is also a basic feature of the structure of the Westminster type Constitutions adopted by Commonwealth Caribbean countries upon independence as per the case of Hinds v. The Queen.[15] This principle would be violated if the citizens of Belize were to be denied access to the courts for compensation for the arbitrary derivation of their property by the State.”[16]

In another case of British Caribbean Bank Ltd. v. AG Belize Claim, which was pertaining to the 8th Constitutional amendment, it was held that the National Assembly cannot make amendments which alter the basic structure of the Belize Constitution and the 8th Constitutional amendment sought to prevent the court from determining whether arbitrary deprivation of land by government was for a public purpose and encroached upon separation of powers, and amended the basic structure and to this extent, were null and void.[17]

The High Court of Australia has also held in the case of Nationwide News Pty Ltd v. Willis[18] that the law making powers of the Parliament are subject to limitations which can be inferred in and from the Constitution of Australia itself. Even in Britain, in certain cases such as Jackson v. Attorney General it was held that, “In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the House of Lords may have to consider whether this is a constitutional fundamental which even a sovereign Parliament cannot abolish.”[19]

It is important to specifically consider the position of South Africa as well, as a debate has been ensuing regarding the applicability of the doctrine in that country as well. In Premier, KwaZulu-Natal v. President of the RSA[20] and Executive Council, Western Cape Legislature v. President of the Republic of South Africa,[21] the court referred to the doctrine, hinting at the possible application in South Africa by stating that there could be implied limitations on the powers of the Parliament to amend. In UDM v President of the RSA[22] the constitutional court, however, was unwilling to consider the basic structure doctrine, stating that an amendment which is passed in accordance with the formal and procedural requirements forms part of the Constitution and cannot be challenged as an infringement of its basic structure. However, these statements are obiter as the legislation in question was not regarded as a threat to the basic structure of the Constitution.[23]

Roux, further, refers to the South African constitutional court as a “constrained court” which attempts to justify its decisions through the language of the text of the Constitution in order to protect it Constitutional independence. “This is indicative of a very formalist legal culture and a conservative approach to the separation of powers, unlike the Indian Supreme Court. The South African constitutional court will attempt to justify the application of the basic structure doctrine through the text of the Constitution – an unlikely development in light of the fact that the Constitution itself allows for the amendment of the entire Constitution. Roux suggests an alternative approach for the constitutional court in protecting the basic structure of the Constitution by arguing that the court must progressively strengthen its institutional role by shifting the borders of its traditional functions. Over time a legal culture will develop that is justified by the text of the Constitution and strong enough to withstand a challenge to the basic structure of the Constitution.”[24]

The above is the link between the basic structure doctrine as developed and espoused in India and its reflections or acceptance in several other jurisdictions in their various forms.

[1] Article 1, 20, 79, Constitution of Germany, 1949.

[2] Articles 2, 4-5, 13, 26, 110, Syntagma Constitution, The Constitution of Greece, 1975. Article 288, The Constitution of Portugal, 1976.

[3] Article 89, Constitution of France, 1958. Article 139, Constitution of Italy, 1947.

[4] Article 177(5), Qanuni Assassi Jumhuri’i Isla’mai Iran [The Constitution of the Islamic Republic of Iran], 1980.

[5] Karim, F.: Judicial Review of Public Actions: A Treatise on Judicial Review (Karachi, Pakistan Law House 2006), 1254–76.

[6] Mahmood Khan Achakzai v. Federation of Pakistan, PLD 1997 SC 426.

[7] Mahmood Khan Achakzai v. Federation of Pakistan, PLD 1997 SC 426.

[8] Wukala-Muhaz v. Federation of Pakistan, PLD 1998 SC 1263.

[9], Supreme Court of Pakistan, Decision on Several Similar Constitution Petitions, http://www.supremecourt.gov.pk/web/user_files/File/Const.P.12of2010.pdf (2010).

[10] Ibid.

[11] Majid Rizvi, South Asian Constitutional Convergence Revisited: Pakistan and the Basic Structure Doctrine, Int’l J. Const. L. Blog (Sept. 18, 2015)  http://www.iconnectblog.com/2015/09/south-asian-constitutional-convergence-revisited-pakistan-and-the-basic-structure-doctrine.

[12] Ch. 15, Somdet Phra Paramintharamaha Bhumibol Adulyadej [Interim Constitution of Thailand], 2006.

[13] Iftikhar Husain Bhat, Doctrine of Basic Structure as a Constitutional Safeguard, International Journal of Research in Humanities and Social Sciences, http://raijmr.com/wp-content/uploads/2013/04/7_27-38-Iftikhar-Hussian-Bhat.pdf (2013).

[14] Derek O’Brien, The Basic Structure Doctrine and the Courts of the Commonwealth Carribean, UK Constitutional Law Association https://ukconstitutionallaw.org/2013/05/28/derek-obrien-the-basic-structure-doctrine-and-the-courts-of-the-commonwealth-caribbean/ (2010).

[15] Hinds v. The Queen, PC 1 Dec 1975.

[16] Hinds v. The Queen, PC 1 Dec 1975.

[17] British Caribbean Bank Ltd. v. AG Belize Claim, PCA Case No. 2010-18.

[18] Nationwide News Pty Ltd v. Willis, (1992) 177 CLR 1.

[19] Jackson v. Attorney General, [2005] UKHL 56.

[20] Premier, KwaZulu-Natal v. President of the RSA, [1995] ZACC 10.

[21] Executive Council, Western Cape Legislature v. President of the Republic of South Africa, [1995] ZACC 8.

[22] UDM v President of the RSA, [2002] ZACC 21.

[23] Cecile van Schalkwyk, The Basic Structure Doctrine: A basis for application in South Africa, or a violation of Separation of Powers, http://www.litnet.co.za/the-basic-structure-doctrine-a-basis-for-application-in-south-africa-or-a-violation-of-the-separation-of-powers/ (2015).

[24] Cecile van Schalkwyk, The Basic Structure Doctrine: A basis for application in South Africa, or a violation of Separation of Powers, http://www.litnet.co.za/the-basic-structure-doctrine-a-basis-for-application-in-south-africa-or-a-violation-of-the-separation-of-powers/ (2015).



ABOUT THE AUTHOR

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SANSKRITI SANGHI

Currently pursuing her undergraduate degree from the Gujarat National Law University, Gandhinagar, Sanskriti Sanghi possesses a flair for writing and a yearn to learn. Being avidly interested in Antitrust law, Intellectual Property Rights, Children’s Rights and International Relations, she seeks to engage in and discuss multiple disciplines which keep her constantly discovering. She believes in immersing and involving herself in various activities and letting the passion for each of those interests allow her to deliver her best.