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About Lakshay Parmar

Currently practicing in New Delhi 

Education

LLB (2015-2020)

Amity University

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Arguments between Harish…

This case involves the arrest of Republic T.V Chief Editor Arnab Goswami by the Mahrashtra Police for a case involving Abetment to suicide. An architect and his mother committed suicide in 2018 and in their suicide note it was alleged that Arnab Goswami along with two other people owed them an amount of 5.4 Crores. The case was closed in 2019 and was re-opened in 2020. The bail application in the present case was first moved in the Bombay HC wherein it was rejected and the court directed the petitioner to approach session’s court for bail. Subsequently the SC was moved in the same issue and the bail was granted after the matter was heard by a bench led by Justice D.Y. Chandrachud.

The primary argument in this case raised by Harish Salve who was appearing for Goswami was that though a suicide has taken place but how can it be termed as an abetment of suicide. For that to be established there must be a direct or indirect connection with the offence. Salve also stated that, “tomorrow if someone commits suicide in Mahrashtra and blames the Government, will the C.M be arrested for that?”

Harish Salve also said that the FIR was filed way back in 2018 and the same was investigated and a closure report was filed in April 2019.

He further said in this regard that a re-investigation can only be ordered by a court of law and without the court’s order a re-investigation is per se illegal and stated, “A Summary Report (Closure) needs to be first set aside in a judicial forum. SC judgments say Magistrates power cannot be taken away to re order a probe or set aside an A Summary report (Closure report). Truth has a nasty habit of sneaking out. They say that since police has been directed to re-investigate they are doing so. It is a dangerous precedent to say that after a magistrate has accepted a Summary, the Executive can order a re-investigation”

Salve said that the general rule of natural justice is that a person must be granted bail during the trial of his case and the individual should not be put behind bars unless he is charged with a grave offence. Here the contrary is happening, the individual is behind bars for 7 days for an offence regarding which a closure report was filed. He also said that there is some malice in the actions of the state as he referred to some previous FIR’s against Goswami and the instance when he reported the Palghar and Bandra incidents which were critical of Maharashtra Government.

Kapil Sibal was appearing for the Maharashtra Government and the main contention raised by him was that bail should not be granted by a mere reading of the FIR while the matter of quashing the same is pending before the HC.

Sibal highlighted the instance wherein journalist Sidhique Kappan was detained by U.P. Police and this court sent the case to the Allahabad HC for hearing. He also said that Kappan is still languishing in jail as no bail was granted.

Though the matter of quashing the FIR was pending before the HC, Sibal also argued that this court would set a “dangerous precedent” if it grants bail merely on the reading of the FIR.

Subsequently, the bail application was accepted by the SC and the same was granted.

Analysis of Death Penalty:…

Analysis of Death Penalty in India: An overview

Death Penalty or a Death Sentence refers to a punishment given to an offender by a court of law for committing a grievous offence. The key ingredient of Death Penalty is that it must be awarded in accordance with law by a competent court and it should not be confused with extra-judicial killings. The provision for Death Penalty is envisaged in Section-53 of the Indian Penal Code 1860. Indian laws award death penalty for various offences such as Criminal Conspiracy (Section-120B), waging or attempting to wage war against Government of India (Section-121), Dacoity with murder (Section-396) and murder (Section-302).

Many states around the world have abolished the death penalty by stating that it was unconstitutional. In India the penalty is still awarded on a ‘rarest of rare’ basis and is conducted by hanging the accused till death. There is no definition of ‘rarest of rare’ but the Supreme Court of India has said that it refers to the commission of a grievous offence that too in an extreme manner that shocks the society as a whole. In independent India, first death sentence was awarded to Nathuram Godse and Narayan Apte for assassinating Mahatma Gandhi and were hanged on 15th November, 1949.

Judicial Approach to Death Penalty in India

Talking about judicial decisions there has been a long running debate as to establish whether death penalty is unconstitutional or not. In Jagmohan Singh v State of Uttar Pradesh[1], the SC upheld the constitutional validity of death penalty and stated that it does not violate Articles-14, 19 and 21. The Apex court observed that the judge makes a choice between life imprisonment and death penalty and does so in accordance with the procedure laid down by law.

In the case of Bachan Singh v State of Punjab[2], the doctrine of ‘rarest of rare’ was born and in that regard the bench stated that it does not violate Article-19 or Article-21 of the Constitution. It was laid down that while deciding such cases, the court has to look into various factors such as the aggravating or mitigating factors, age of accused, criminal history, whether the particular act was done by coercion and mental condition of the accused. In this particular case, Justice Bhagwati who one of the judges in the bench dissented and held that death penalty is in violation of Articles-21 and 19. In that regard he stated, “Unfettered and uncharted discretion conferred on any authority, even if it be the judiciary, throws the door open for arbitrariness, for after all a judge does not cease to be a human being subject to human limitations when he puts on the judicial robe and the nature of the judicial process being what it is, it cannot be entirely free from judicial subjectivism.”

Before the case of Mithu v State of Punjab,[3] death sentence was mandatory under Section-303 IPC wherein it was awarded if a person serving life sentence commits a murder. In this case it was declared unconstitutional because the said provision was working on an assumption that any individual who is serving life sentence and still kills someone is beyond the stage of reformation which is one of the major purpose of awarding punishment. Further, Section-303 mandated death sentence to be awarded who inherently defeats the purpose of ‘rarest of rare’ doctrine.

In the case of Devender Pal Singh v State of NCT of Delhi[4], the execution of the accused who was a khalistani terrorist was being delay continuously which caused the accused to develop schizophrenia. It was developed due to the mental torture that was being imposed on the accused because of the continuous delay of execution. It boiled down to the stage wherein the prisoner begged to the jail authorities to carry out his execution. Acknowledging these facts, the SC commuted his death sentence as life imprisonment due to the long delay in the execution of death sentence.  

The 2008 Mumbai attack which shocked the entire nation was a night when almost all of India could not sleep and on the same night Ajmal Kasab was caught and placed under arrest. Kasab was sentenced to death by a trial court in Maharashtra and was upheld by Bombay High Court and the Supreme Court. Kasab’s mercy petition was also rejected by the President. Kasab was subsequently hanged on November 21st, 2012.

In a recent and a case which got a huge amount of national attention was the Nirbhaya Gang Rape case. Around April, 2013 four of the six convicts were sentenced to death by a trial court in New Delhi. This decision was upheld by the Delhi High Court on March 13, 2014 and was also further upheld by the Supreme Court three years later on May 5, 2017. After the confirmation of the Apex court, their execution was finally done on 20th March, 2020 on 5:30 A.M inside the Tihar Jail in Delhi. During the long gaps between the verdicts of the courts, their death sentences were continuously challenged by the convicts counsel. The final warrant was issued on March 5th, 2020 which stated execution would happen 15 days later i.e. March 20th.

Conclusion

Debates surrounding death penalty will continue as the arguments being made from both sides can be termed valid. On one side it defeats the purpose of punishment that is to reform an individual but on other side awarding death penalty implies that an individual is not fit to live in the society which to an extent is in terms with Article-21’s wordings. In the case of Santosh Kumar Bariyar v State of Maharashtra[5], previous death sentences rendered with regard to this case were rendered per incuriam because they were in violation of law laid down in Bachan Singh’s[6] case. The individuals were accused of kidnapping, killing and chopping the body of a man and then disposing the pieces in different places. The court held that the crime was done with the sole motive of collecting money and the accused were not professional criminals with a criminal record and hence there was hope for rehabilitation. Subsequently the sentence was commuted to life imprisonment.

As many states around the world have completely abolished death penalties, but in India its future remains uncertain whether it will be abolished or not. One argument against the death penalty that can be made is that it takes a lot of time and when it does take its time, it only worsens the situation of the accused as mentioned in the Santosh Kumar case[7]. Lawmakers and judiciary has to decide that factors such as public sentiments could be considered or not while awarding death penalty as they also play an important role as was seen in Nirbhaya’s case. It is also worth noting that a high number of death sentences are commuted into life imprisonments and as per a report by National Law University Delhi between 2000 and 2014 trial courts in India have sentenced 1810 people to death and more than half of that number was commuted to life imprisonment.



[1] A.I.R 1973, S.C 947

[2] 1980 2 SCC 684

[3] A.I.R 1983 SC 473

[4] (2002) 5 SCC 234

[5] JT 2009 (7) SC 248

[6] Supra

[7] Supra

Admissibility / Validity…

Is Docusign/Electronic signatures valid in Poland and Dubai

 

Admissibility of E-signatures in Poland: In accordance with Polish law, a written signature for a valid contract is not necessarily required. Contracts are usually valid if the legal competent parties agree orally, electronically or on paper (Art. 60 and Art. 66 of the Polish Civil Code) unless a specific form for concluding the contract is required by law.

The eIDAS ( Regulation came into force on 1st July, 2016 which relates to electronic signatures and is technology neutral defining three types of electronic signature (Standard Electronic Signature, Advanced Electronic Signature and Qualified Electronic Signature). Article 25(1) provides that an electronic signature shall not be denied legal effect and admissibility as evidence in legal proceedings solely on the grounds that it is in an electronic form or does not meet the requirements of a QES. The legal impact of a QES is equivalent to the document signature in Articles 25(2) and (3) and it is ensured that a QES recognized in one EU Member State, will be recognized in other Member States as well. Finally, Recital 49 requires national law to define criteria for electronic signatures establishing under which circumstances it might be required.

In accordance with Poland Laws, a QAS is a legal e-signature. Though, it does not mean any e-signature other than QAS will be denied admissibility, it would just need additional evidence to support it.

An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements: (a) it is uniquely linked to the signatory; (b) it is capable of identifying the signatory; (c) it is created using means that are under the signatory’s sole control; and (d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.

 

A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.

 

However, Electronic signatures might not be used in certain transactions such as:

1.      Employment contracts, termination notices for which the Civil Code specifically requires an ink signature.

2.      Real property transactions. (Notarization)

3.      Family law documents such as Wills, Marriage and Inheritance contracts.

4.      Transfer of shares or transfer of lease of an enterprise.

5.      Corporate shareholder resolutions.

6.      All decisions issued by the Government.

 

Admissibility of E-Signatures in Dubai: In the UAE, Federal law No. 1 of 2006 on electronic transactions and e-commerce ("federal e-commerce law") governs the use and admissibility of electronic signatures.

Fundamental electronic signatures are widely defined to include all forms of electronic signatures. This is commonly defined as electronically attached or logically linked data that is used as an authentication tool.

An electronic signature that meets the requirements of the Federal E-commerce Law has legal force and effect under the Federal E-commerce Law. The Federal E-commerce Law further provides that nothing in the laws of evidence (which includes Federal Law No. 10 of 1992 (“Law of Evidence in Civil and Commercial Transactions”) shall prevent the admission of an electronic message or e-signature in evidence.

Reliance on electronic signatures must be reasonable. Reasonableness is generally based on the following factors:

1.      The nature, value and importance of the transaction being supported by the electronic signature;

2.      Steps taken by the relying party to verify the identity of the signatory of the electronic signature;

3.      Evidence of prior breach or cancellation of the electronic signature;

4.      Previous transactions between the parties, which relied on electronic signatures; and

5.      Any other relevant factor.

 

However, specific categories of transactions and documents for which electronic signatures may not be used, including:

1.      Transactions and issues relating to personal law such as marriage, divorce and wills;

2.      Deeds of title to immovable property;

3.      Negotiable instruments;

4.      Transactions involving the sale, purchase, lease (for a term of more than 10 years) and other disposition of immovable property and the registration of other rights relating to immovable property;

5.      Any document legally required to be attested before a Notary Public, and

6.      Any other documents or transactions exempted by special provision of the law.

 

Conclusion: E-signatures are admissible as a legal signature except in the cases wherein it is specifically required/stated that there shall be a physical signature. 

Difference between Design…

Intellectual Property in today’s day and age has undoubtedly acquired the status of a major area in law. Basically, this property means the creation or invention of a product/service through putting in mental labour and effort by an individual or a group of individuals. Through this area of law i.e. Intellectual Property Rights, one can enjoy the exclusive rights, subject to certain time period, to create, distribute or regulate the use of the said product/service. Though IP contains various branches such as Trademarks, Copyrights etc., we will talk exclusively about Trademarks and Designs.

 A Trademark, going by the name implies a mark which depicts or represents your trade. In a market, the purpose of a TM is to distinguish your product from others and it subsequently enables the consumers to identify your product or service. A Trademark can enable its owner to prevent other from the unauthorised usage and also disallow other participants in the market to use a similar mark which can create confusion in the minds of consumers. TM under the Indian law is described under the Trademark Act, 1999[1] as, “trade mark 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 shape of goods, their packaging and combination of colours

 

A Design attributes to the appearance of a product; it enables the owner to protect the physical attributes of his product that is distinctive in nature. A design represents the imagination and intelligence of a person that turns his creativity into a product. The design of any product if it’s good has a lasting influence on consumers' minds. Further, it adds value to the market of the product when a concept is appealing. The Designs under Indian law are protected in the Designs Act, 2000[2] as, “Features of shape, any configuration, pattern, ornament or composition of lines or colours which is applied to Two dimensional or three dimensional or in both the forms using any process including manual, chemical or mechanical, separate or combined which in the finished article appeal to or judged solely by the eye”

However, there are certain conditions that are needed to be fulfilled while registering a design such as:

·         Novelty and Originality

·         Uniqueness of the Design must be there

·         New design must not be contrary to morality

In case of Hello Mineral Water PVT. LTD. v. Thermoking California Pure[3], a concept of a cylindrical-shaped water dispenser was not deemed unique on the grounds that mere shape and form was not sufficient to prove innovation.

The Intention behind Trademark and Design law: A design-specific law is intended to encourage creativity by granting licensed proprietors exclusive access and establishing a competitive advantage for a limited period of time. This also helps/motivates companies to produce new and original content that cater to their customers. At the other hand, the principle under the trademark laws is to remove the risk of customer misunderstanding with respect to the source of goods / services, and trademark rights that therefore be continuous or perpetual.

Furthermore, an essential question whether a suit that was composite which joins infringement of Designs and passing off of a trademark can be maintainable, was answered in the case of Carlsberg Breweries v. Som Distilleries and Breweries Limited[4] where the Delhi High Court has held that it is maintainable and thus it overruled the judgment in Mohan Lal v Sona Paint[5] wherein it was held that both issue cannot be combined into the same suit. The judgment in the present case was given with reasoning that to join both the issues in a suit, the cause of action must arise from the same transaction.

Trademark and Design though are a huge branch of the same tree i.e. Intellectual property but inherently are very different from each other. TM deals with the symbol, mark or logo that represents a business whereas a Design is a graphical representation of the product manufactured by a business.

 

 



[1] Section 2(zb)

[2] Section 2(d)

[3] 2000 (56) DRJ 700

[4] CS (Comm) No. 690 of 2018

[5] CS(OS) 384/2008

The Epidemic Diseases…

India is currently undergoing its epidemiological transition period. Our health care system is forced to tackle chronic non-communicable diseases while struggling to reduce the burden of communicable diseases. In India the burden and scope of infectious diseases is massive as they already contribute around 30 per cent of the disease burden currently prevailing in the nation. The epidemics of communicable diseases place a severe economic burden on individuals, families, societies and the nation at large. There is an immediate need for reviewing of the health systems which are operating in India.

 

Analysis of the health systems won't be complete without evaluating existing legal provisions. In India, the statute governing this particular area is the Epidemic Diseases Act, 1897 (hereinafter referred to as “the Act”). The Act is the only statute allowing for legal action in the case of a sub national outbreak.

 

 

Introduction of the Act and the need behind the same

 

As a response to the plague outbreak in Bombay, the Act came into force on 4 February 1897. This act confined the plague to Bombay through a series of tough steps that prohibited crowds from gathering together. The Act being one of the most concise acts, has four parts, the first section specifies the title and scope, the second section authorizes state and central government to take special steps and enforce regulations that are to be enforced by the public in order to prevent disease transmission. The third section specifies punishment for violating the laws, while the fourth section offers legal protection for individuals working under the act.

 

 

Criticism of the Act with respect to modern world

 

The Act is a 113-year-old, archaic statute. Over the years, the century-old Act has acquired quite a few shortcomings that can be traced to the shifting priorities of emergency services and public safety in the nation. The Act is silent on describing a serious infectious disease. As an act which was enacted almost a century ago, its geographical borders require an amendment. In addition to the measure of exclusion or quarantine, the act remains silent on the legal system for the provision and delivery of vaccines and medicines, and the enforcement of response acts. There is no clear reference to the ethical considerations or the values of human rights during an outbreak response.

 

The Act does not adhere to the current scientific understanding of prevention and response to outbreaks, but rather represents the medical and legal principles that existed at the time the Act was drafted. The country's political situation and the Centre-state relationships have changed. In the present situation, the Act as such is not adequate to deal with the prevention and control of communicable diseases.

Also, while the evaluating the Act, it can be further said that it is silent on the rights of the general public and only emphasizes on the powers of the government in taking the preventive steps. It does not take the interest of the public into account. People-centeredness is about taking into account the interests, beliefs, social conditions and lifestyles of people and working together to establish appropriate solutions.

 

The recent Coronavirus (COVID-19) pandemic is the best example to explain the incompleteness of the Act with respect to modern era. Though the Government has taken preventive measures to contain the disease, but it can be contended that those steps were taken reactively instead of pro-actively. Also, under the Act the operations of various public institutions like Gymnasiums, Spa’s, Cinema Halls, and night clubs have been suspended till 31st March 2020 in the National capital. Further, gathering of more than 50 people have been prohibited only except in the case of a marriage.

 

 

Conclusion

 

 We definitely need a concrete legal structure which is applicable to the current context. A strong framework for public health law develops not only the powers of Government but also forms the role of government in disease prevention and control. Therefore, it is well beyond doubt that this century-old Act requires a full revision to meet the shifting priorities of public health. Undeniably, it is difficult to rule out the role of public health experts in this regard. An integrated, extensive, actionable and specific legal framework is required for controlling outbreaks in India that should be expressed in a rights-based, public-focused and public health-oriented way.

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