Ready Recknor on filing Trademarks under the new 2017 Rules

Note prepared by Ms. Mahua Roy Chowdhury, Advocate. She can be contacted at mahua[at]royzz[dot]com.

TRADE MARK FILING READY RECKONER – 2017 RULES
Trademark Registration is a process that takes around 1-2 years to obtain registration in a case, without any objections or oppositions. However, the time period can be longer if an opposition has been filed by a third party.

SEARCH

Look for classification of goods and services at the WIPO website (NICE Classification). (Rule 20).
In order to avoid a third party opposition, it is pertinent to conduct a ‘public search’ in the online Trade Mark Registry at http://www.ipindia.nic.in/ by providing the trademark name and class to find out if similar marks have already been registered or filed.

WHAT CANNOT BE TRADEMARKED

Marks which do not have a distinctive character.
Marks which are descriptive. Meaning which describe the goods or service in terms of the quality, quantity, shape or geographic indication.
Marks that have become customary in the language or region.
Well Known marks. Well known marks are marks which a substantial portion of the population relates to particular goods or services and the use of the mark in relation to any other goods or services would cause confusion in the minds of the people. Ex. ‘BAJAJ’, ‘BATA’, ‘BENZ’, etc.
Marks which are deceptive, hurt religious sentiments, Gods/Godesses, surnames, obscene.

SELECTION OF TM OFFICE

There are five Trade Mark Offices (TMO) distributed in accordance with Geographical Zones in India viz. New Delhi (North), Mumbai (West), Chennai (South), Kolkata (East), Ahmedabad (States of Gujarat, Rajasthan, and Union Territory of Diu Daman, Dadra & Nagar Haveli).

Depending on the location of your office, if any, in India or your authorized agent’s office if there are no offices in India, please select the appropriate Trademark Registrar Office.

FORMS AND FEES

TM-A

For application for registration of a Trade mark other than a collective or a certificate mark. Physical filing: 5,000 (Fees for Individuals, Small Enterprise, Startup) 10,000/- (In all Other Cases)
E-filing: 4,500 (Fees for Individuals, Small Enterprise, Startup) 9,000 (In all Other Cases).
For application from any Convention Country other than a collective or a certification mark.
Physical filing:  5,000 (Fees for Individuals, Small Enterprise, Startup) 10,000 (In all Other Cases)
E-filing: 4,500 (Fees for Individuals, Small Enterprise, Startup) 9,000 (In all Other Cases)
Application for registration of trademark as series for specification of goods or services included in one or more than one classes.

Physical filing:  5,000 (Fees for Individuals, Small Enterprise, Startup) 10,000 (In all Other Cases)
E-filing: 4,500 (Fees for Individuals, Small Enterprise, Startup) 9,000 (In all Other Cases)

TM-M

On application for expedited process of an application for the registration of a trademark.
Physical filing:  Not allowed.

E-filing: 20,000 (Fees for Individuals, Small Enterprise, Startup) 40,000 (In all Other Cases)
On application for: Extension of time, or certified copy, or Amendment of trademark application, or inspection of document.
Physical filing:  1,000. E-filing: 900.

TM-O

On a notice opposition or application for rectification of register.
Physical filing:  3,000/-. E-filing: 2,000/-

TM-R

Application of Renewal of a Trademarks.
Physical filing:  10,000.
E-filing: 9,000.

REQUISITES OF TRADEMARK FILING

A trademark registration application must contain the following information:
Logo or the Trademark (in colour if the logo has been designed in any specific colour);
Name and address of the applicant;
If the applicant is a partnership firm, the names of all the partners. Also mention whether any minor is a partner;
If the applicant is a company, the country or state of incorporation;
If the mark contains or consists of non-English words, a translation of those words into English is required;
Address for service of communication;
Select Classification or Category of goods or services;
Date from which Trademark is proposed to be used or has been in use;
Description of the goods or services for which registration is required;
Power of attorney in the format as prescribed in Form 48, simply signed by the applicant (no legalization or notarization is required). Indian applicants should execute the same in a Rs.100 stamp paper.

TRADEMARK REGISTRATION PROCESS

Upon filling the application, the TMO will issue an official receipt with the filing date along with a reference number to the application.
The application is then formally examined, that is whether it is inherent registrable and if any similarity, including phonetically and visually with existing marks. Accordingly, an official examination report is issued indicating either “acceptance” or “objection”, as the case maybe.
In the event of objection on the examination report, it is necessary to file a response within a month of receipt of such objection the failure of which will result in instant abandonment but in most cases, a show cause hearing with the examiner is poste.
Pursuant to a hearing if the argument is accepted, below step3 & 4 follows.
In the event the mark is accepted as it, a letter of acceptance is issued, pursuant to which the mark is advertised in the Trade Marks Journal.

If there are no third-party oppositions are received within 4 months from the date of advertisement in the Trade Marks Journal, then the trademark registration certificate is issued.

Once the certificate is issued, the mark needs to be renewed every 10 years.
In the event of any third-party opposition, after due hearing of the applicant and consequential refusal of application, then either a review or the remedy in step 9 is available to the applicant.
Instead if the application is refused, or abandoned by the examiner with reasons, then a right to appeal to the Intellectual Property Appellate Board (IPAB) shall vest with the applicant.

SEBI Circulars cannot be challenged in SAT: Rules Supreme Court of India

By Mr. Audip Ghosh, Senior Associate Partner at ROYZZ & CO. He can be contacted at audip[at]royzz[dot]com.
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Experts CornerROYZZ & CO.
Published on April 7, 2017By Prachi

Supreme Court:

The Court has ruled that administrative circulars issued by the Securities and Exchange Board of India (SEBI) cannot be challenged before the Securities and Appellate Tribunal (SAT).
The Supreme Court passed this judgment when it was hearing an appeal filed by SEBI against a SAT order in a case relating to National Securities Depository Ltd. (NSDL).

Background

NDSL and SEBI were at odds over an administrative circular captioned ‘review of dematerialization charges’ issued in 2005, debarring the depository from levying fees/charges on rendering service to the investors who hold Demat accounts with the depository.  The grievance of the appellant (NDSL) was that it is a company and the law permits it to make profits and distribute the dividend to its shareholders. SEBI, without any justification, interfered with its functioning, NSDL had argued.

SAT in September 2006 had ruled that the term “order” in SEBI Act is extremely wide, and can be applied in all three types of orders— administrative orders, legislative orders, and quasi-judicial orders. Thus, it ruled in favour of NSDL.

Verdict

SEBI challenged SAT’s verdict in the Supreme Court and secured a reversal. The Supreme Court, in the order passed on March 7, said that only “quasi-judicial” orders and decisions are a “subject of SAT”.
“Administrative orders such as circulars issued under the SEBI Act are obviously outside the appellate jurisdiction of the tribunal,” said the SC order.

Conclusion

The clarification and restriction to the scope of SAT will clearly bring down the number of cases before the Tribunal. One cannot approach SAT cause the same will now have jurisdiction only over orders passed by SEBI in a quasi-judicial capacity. [National Securities Depository Ltd. v. SEBI, 2017 SCC OnLine SC 256, decided on 07.03.2017]

Essar Steel India v. RBI†: A case comment

By Shriniket Deshpande, Senior Associate, Royzz & Co.
Experts CornerROYZZ & CO.
Published on September 19, 2017By Saba

Introduction

Essar Group is an Indian conglomerate into manufacturing, services and retails sectors. The group has operational presence across 29 countries having 45,000 employees across the world.  The Group’s core interest lies in steel and energy sector, Essar Steel being the flagship company of this group.

Reserve Bank of India (RBI) vide their press note dated 13-6-2017 had directed banks to initiate insolvency proceedings before National Company Law Tribunal (NCLT) under Section 9 of the Insolvency and Bankruptcy Code, 2016 against 12 companies including Essar Steel India Ltd. (Essar) and accordingly proceedings were initiated by consortium of banks led by State Bank of India (SBI) which is leading the consortium.

Background

Essar challenged the aforementioned press note by filing a writ petition† before Gujarat High Court Bench at Ahmedabad, citing failure of the consortium of banks to accept the package of debt restructuring, proposed and approved by the Board of Directors of Essar. Essar further challenged authority of RBI to issue directions to NCLT, as interpretation of last line of Para 5 implied that NCLT is a subordinate authority to RBI, which is constitutionally wrong.  Para 5 of the Circular read as below:

The Reserve Bank, based on the recommendations of the IAC, will accordingly be issuing directions to banks to file for insolvency proceedings under the IBC in respect of the identified accounts. Such cases will be accorded priority by the National Company Law Tribunal (NCLT).

RBI apologised to the Court for such poor drafting and they have issued a corrigendum dated 3-7-2017 correcting this mistake by deleting last line of Para 5.

Essar accused that RBI has blindly followed a process to shortlist companies based on classification, which is in contravention of Articles 14 and 19 of the Constitution of India. It was accused that the classification on the basis of total outstanding amount being more than Rs 5000 crores and percentage of classified NPAs to be more than 60% is arbitrary and irrational.

RBI in response submitted that Essar account was a non-performing account (NPA) even prior to 31-3-2016 with total outstanding amount to the tune of Rs 31,671 crores and the RBI directives are reasonable which make classification valid under Article 14, because the press release and the directives to banks issued by RBI were for giving effect to the economic policy contained in the IBC i.e. Insolvency and Bankruptcy Code as well as the Ordinance and the order.

RBI further submitted that the  focus was on cases which have the twin criteria of being the largest and longest standing NPAs. Such classification is based on an intelligible differentia i.e. both quantum (Rs 5000 crores and 60% NPA) as well as length of outstanding (at least fifteen months i.e. from 31-3-2016).

SBI i.e. Respondent 2 in response submitted in the court that they have a statutory right to proceed against any corporate debtor with or without directions from RBI if they qualify requirements under Section 7 of the IBC. SBI denied that appointment of IRPs would hamper working of the petitioner since company is managed by executives and not their Board of Directors. SBI lead Consortium Bank denied that they had accepted any proposal from Essar and alleged that Essar has approached the court with unclean hands.

Standard Chartered Bank (SCB) i.e. Respondent 3 in response submitted that they are a company incorporated in the United Kingdom and are governed by the prudential regulatory authority of United Kingdom hence, it is not a banking company under Sections 5(c) and  (d) of the Banking Regulation Act, 1949. SCB further contented that it is not a member of JLF (Joint Lenders’ Forum) and they had statutory rights to proceed against petitioners and did not need RBI’s directions.

Verdict

The Court refused to grant any relief to Essar with respect to their prayers to quash the said proceedings filed under Section 9 of the IBC and said that NCLT may be directed to set aside all the proceedings. The Court also observed that NCLT, Respondent 4 cannot be directed to restrain from proceedings against Essar, as such writ of prohibition may be issued only in the rarest of rare cases or when inferior court exceeds its jurisdiction, or proceeds under a law which is itself ultra vires or unconstitutional. Since IBC is not unconstitutional, this prayer was also rejected by the court.

Conclusion

This High Court decision is a major relief for financial institutions who got wary of the prospects of recovery from twelve biggest loan defaulters of India. This decision also establishes statutory right of banks to initiate proceedings against loan defaulters before appropriate forum with or without guidelines from RBI.
† Essar Steel India Ltd. v. RBI, 2017 SCC OnLine Guj 995, decided on 31-07-2017.

OPINION : REDEFINING ELECTORAL POLITICS

The Supreme Court verdict dated January 2, 2017 over the misuse of religion, race, caste,  community or language for the  contestants in the election will not only improve the electoral  system of the country but also the  quality of  our political life

Sanjay Kumar Visen

The Supreme Court of India has recently in Abhiram Singh’s Case (2017) dealt with an issue and concern affecting the electoral process and its integrity. The Hon’ble Court has barred the misuse of religion, race, caste, community or language for the contestants in the elections.  It has underlined the gravity of the deeper malaise in the electoral process and has mandated to stem the rot by invoking the available legal remedies.

The Constituent Assembly had clear understanding of multi-lingual and religious identities of the people of the country which is very much reflective in the preamble of our Constitution as ‘Sovereign Democratic Republic’. Later on vide the Forty-second Amendment of Our Constitution the ‘Socialist Secular’ words and concepts were given effect to from January 3, 1977 and the Preamble now reads as ‘Sovereign Socialist Secular Democratic Republic’.

Our Constitution stands for a secular state. It has no official religion and the Constitution not only guarantees a person’s freedom of religion and conscience, but also ensures freedom for one who has no religion and it restrains the state from making any discrimination on grounds of religion. The Hon’ble Supreme Court  of India has also declared  in the year 1994 that Secularism is a basic feature of the Constitution and has maintained the same through subsequent judgments with the passage of time.

However during the last 70 years of electoral process, the Country has witnessed the widespread misuse of religion, race, caste, community and language by the candidates contesting elections. This malaise in the electoral process has eroded the credibility in the free and fair electoral system. The people at large developed apathy towards the same. The recent Constitution Bench majority judgment in Abhiram’s Case (2017) is relevant as it declares the law that seeking votes in the name of religion, caste, race, community or language by a candidate contesting the election, his agent or anyone with his consent would be a corrupt electoral practice rendering the person open to disqualification. The bare reading of the said judgment goes to uphold and fortifies that now the future law makers of the country also cannot misuse the name of religion, caste, race, community or language and are duty bound to maintain the secular and plural character of the state.

Going to the roots of this declaration by the majority judgment of Hon’ble Supreme Court it is seen that the amendment of the Section 123(3) of the Representation of the People Act,1951  deleted the word “systematic” before the word appeal. The effect of this is that even a single appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate would be deemed to be a corrupt practice for the purpose of the said Act. This amendment and now the declaration will surely curb the sectarian interests or passion, communal or linguistic affiliation of the candidate. The majority decision in this judgment interpreted the law by also relying on the words of Justice HR Khanna in the year 1974 that says, “As in life so in law things are not static. Fresh vistas and horizons may reveal themselves as a result of the impact of new ideas and developments in different fields of life. Law, if it has to satisfy human needs and to meet the problems of life, must adapt itself to cope with new situations.  Nobody is so gifted with foresight that he can divine all possible human events in advance and prescribe proper rules for each of them. There are, however certain verities which are of the essence of the rule of law and no law can afford to do away with them. At the same time it has to be recognised that there is a continuing process of the growth of law and one can retard it only at the risk of alienating law from life itself…” The majority also took note of the view reaffirmed by the Hon’ble Supreme Court in 2014 for the need to shape law as per the  changing needs of the times and  circumstances.

However, this laudable judgment leaves some areas where one can doubt about its full fledge applicability, as many parties in India seek votes in the name of religion, caste and language. Is the judgment enough to stop the corrupt practices of political parties?  The silence is also there on the question when any religious leader or a linguistic leader appeals to voters to support a candidate without the consent of the candidate in the elections. As held, it is matter of evidence for determining whether an appeal has at all been made to an elector and whether the appeal if made amounts to corrupt practice will be difficult to prove in a time bound manner and will give rise to many election petitions before the courts. This judgment has empowered the people of the country to come forward with their conviction before the Hon’ble Courts wherever candidates contesting the elections violate the provisions of law governing the electoral process of the country. It will have far reaching consequences in cleaning electoral process and restoring its original fairness and purity. No candidates would dare to indulge in misusing the religious, regional and linguistic sentiments of the people for their electoral gains. By this pronouncement, the secularism the very spirit of our Constitution and aspirations of the people of the country shall be a reality and will improve not only the electoral system of the country but also the quality of our political life.

(The writer is Advocate-On-Record, Supreme Court) 

OPINION: LAW & EMOTIONS

Ultimately, he has been released! But before that the Younger offender, the deadliest among the accused of the Nirbhaya case or call it Delhi Braveheart case had raised the issue of conviction of the Juveniles or child- offenders and their punishment to the higher degree for the serious and heinous offences. The cries of the public, media and specially the petition by the NGOs and Delhi Commission for Women reaching up to the Supreme Court against his release gave renewed impetus to me to go into question “What the Laws is and What the Law ought to be?” on the Juveniles or child-offenders at the time when offences are committed.

Understanding in common language in the jurisprudence of constitutional law, Our Constitution through article 20(1) says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is trite law that the sentence impossible on the date of commission of the offence has to determine the sentence impossible on completion of trial. Under article 20(1) of the Constitution of Bharat what is prohibited is the conviction and sentence in criminal proceedings under ex post facto law as is evident from the plain reading of the said article and upheld by the Hon’ble Supreme Court in Ravinder Singh Vs. State of Himachal Pradesh reported in AIR 2010 SC 199.

Coming to the issue on child rights, the General Assembly of the United Nations has adopted the Convention on the Right of the Child on November 20, 1989. The Government of Bharat ratified the Convention on December 11, 1992. The Convention on the Rights of the child has prescribed a set of standards to adhere to by all States parties in securing the best interests of the child. The clause (3) of Article 15 providing power to State to make special provision for women and children, clauses (e) & (f) of Article 39, Article 45 and 47 of the Constitution of Bharat in totality impose on the State a primary responsibility of ensuring that all need of children are met and that their basic human rights are fully protected. With this aim and objective and above mandate, the Juvenile Justice (Care and Protection of Children) Act, 2000 popularly known as “JJ Act” was passed on 30th December, 2000. In Kallu Vs. State of Haryana reported AIR 2012 SC3212, the Hon’ble Supreme Court held that the Juvenile Act is intended to protect the juvenile from the rigours of a trial by a Criminal Court. It prohibits sentencing of a juvenile and committing him to prison. As its preamble suggests it seeks to adopt a child-friendly approach in the adjudication and disposition of matters in the interest of children and for their ultimate rehabilitation. The “JJ Act” in the year, 2006 (w.e.f.22.08.2006) underwent massive and important amendments and in Section 2(k) it defines “juvenile” or “child” a person who has not completed eighteenth year of age. For the purpose of our discussion on the topic, the relevant definition is in Section 2(l) which says “juvenile in conflict with law” means juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. The Hon’ble Supreme Court had settled the law that in case, exact assessment of the age cannot be done, then the Court, for reason to be recorded, may, if considered necessary give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year and also the “JJ Act” gives right to an accused to raise question of juvenility at any point of time and if such an issue is raised, the Court is under an obligation to make an inquiry and deal with the question. The section 15 gives power about order that may be passed regarding juvenile and section 16 provides about order that may not be passed against juvenile by the Juvenile Justice Board. Section 15(1) says that where the Board is satisfied on inquiry that a juvenile has committed an offence, then notwithstanding anything to the contrary in any other law for the time being in force, the Board may if it so thinks fit, apart from other directions envisaged, direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well being of the juvenile for any period not exceeding three years; make an order directing the juvenile to be sent to a special home for a period of three years; provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit. The section 16(1) says that notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to life imprisonment for life, or committed to prison in default of fine or in default of furnishing security; provided that where a juvenile who has attained the age of Sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government. As per section 16(2), on receipt of report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit, provided that the period of detention so ordered shall not exceed in any case the maximum period i.e. 3 years, provided under section 15 of this Act. Under the Act, no juvenile can be charged with or tried for any offence together with a person who is not a juvenile.
Any deviation from the above settled position in law is against the legislative mandate, at present the “JJ Act”, is not permissible and the juvenile in conflict with law is entitled to be released after the expiry of maximum 3 years from the date of his detention. The Hon’ble Supreme Court, very aptly and correctly declined to block the release of the youngest offender in the December 16 Delhi Gang rape case, saying laws framed by Parliament do not permit further detention despite growing calls for harsher penalties for juvenile 
criminals.

Law being an instrument of social change and certainly, dealing with juvenile criminals, had led to passing of the Juvenile Justice (Care and Protection of Children) Bill, 2014 by both houses of the Parliament as on today, which includes amendments to allow 16-18 years old to be tried as adults and What the Law ought to be? The JJ Bill 2014 says that the juveniles aged 16-18 who commit heinous offences like rape or murder shall be punishable with 7 years or more. However, there will be no death penalty. The Juvenile Justice Board, after conducting an inquiry, will determine whether a juvenile offender will be sent for rehabilitation or tried as an adult. These amendments bring the law in Bharat at par with the US and UK, where Juvenile Justice Courts have been given the flexibility to waive their jurisdiction in favour of adult courts for heinous crimes. The Rajya Sabha (Upper House) very appropriately and timely heard the growing calls for harsher penalties for juvenile criminals and the observations of the Hon’ble Supreme Court, the editorials of the Hindustan Times and Times of India by title “Emotion cannot cloud the law” and “Take a Call” respectively 

and finally passed the Bill on December 22, 2015. Conclusively, we can say that now, after getting the Rajya Sabha nod of the JJ Bill 2014, ‘What the law ought to be?’ now become a step closer towards ‘What the law is?’ Now the law will be able to contain the juvenile crimes, the fastest segment of growing crime and the focus should be more on to take remedial measures to check this rising menace to the Society and also becoming a world phenomenon. Personally, I feel that to curb the rising Juvenile crimes or crimes against women Our Government should take steps to introduce compulsory military training from School level to graduation which will inculcate a national character by increasing self-defence and patriotism. Then our girls will be bold enough to fight out themselves till the police or government agencies reach them in distress for help.

Sanjay Kumar Visen (The writer is Advocate-On-Record, Supreme Court)

ANALYSIS : LANGUAGE & ‘MINORITY’

Intro : No absolute right to linguistic minorities to reject a regional language says Honourable Supreme Court.

The word ‘MINORITY’ has always been the bone of contention whether is the religious or linguistic one, in the past or is the same at present and the tussle between the “majority” and “minority’, now has become a worldwide phenomenon. Be it politically or constitutionally the balancing acts goes on whenever the conflict arises. In Our Country, majorly the political parties have failed by adopting appeasement policy but it is the Hon’ble Supreme Court which has always stood for the same. Here, at present we  are concerned with the rights of linguistic minorities as balanced by the Hon’ble Supreme Court by a decade old and very laudable judgment in the Year, 2004 reported in (2004) 6 SCC 264 titled as “Usha Mehta & Ors. Vs. State of Maharashtra & Ors.” 
      
Before analysing, further it is pertinent to mention that the word “MINORITY” has not been defined in our Constitution but it’s defined by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. So, in Indian as well as linguistic context, to understand the term “Linguistic Minority” as defined by the National Commission for Linguistic Minorities, Government of India is accepted here, which says that “Any group of people whose mother tongue is different from the principal language of the State.”

The issue then arose with the policy decision made by the Maharashtra State Government whereby Marathi language study was made compulsory throughout the schools in that State and as a result, the English-medium schools run by Gujarati linguistic minorities were compelled to teach four languages (Hindi, English, Marathi and mother tongue Gujarati) as against the accepted “Three-Langauge Formula”. The said policy was challenged contending that the imposition of compulsory Marathi is in violation of the fundamental right of the linguistic minority to establish an educational institution of “their choice” under Article 30(1) of the Constitution of India and that the imposition of regional language is violative of the minority right to conserve its own language, script and culture and it has no constitutional duty or obligation to learn or promote the regional language. It was further argued that the minority has a right and a “choice” to avoid the regional language if it feels that the same might conflict with their “conservation” of mother tongue and/or promotion or learning of Hindi and English by the students.

The Hon’ble Supreme Court very aptly and affirmatively answered the question- Can a State impose the teaching of its regional language upon the linguistic minorities as a matter of policy? After elaborately considering several cases concerning limit of minority rights under Article 30, in Rev. Sidhajbhai Sabhai case[ (1963) 3 SCR 837], St. Stephen’s College Case[(1992) 1SCC 558] with approval in T.M.A. Pai Foundation Case [(2002) 8 SCC 481] concluded the position regarding the minority rights under Article 30 as under:

“The right under Article 30(1) has. Therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide proper academic atmosphere, as such the provisions do not in any way interfere with the right of administration or management under Article 30(1).…In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution shoul be disfavoured or for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions, the minority institutions must be allowed to what the non-minority institutions are permitted to do.” The Hon’ble Supreme Court in the Usha Mehta Case (supra) clearly and rightly held that the State can impose reasonable regulations on the institutions covering Article 30 for protecting the larger interest of the State and the nation. The “choice” that could be exercised by the minority community or group is subject to such reasonable regulations imposed by the State.While imposing regulations, the State shall be cautious not to destroy the minority character of institutions. The Hon’ble Court also went to the extent of observing that it won’t be in the fitness of things to establish English-medium schools and asking for not teaching the regional Marathi language. It is difficult to read Articles 29 and 30 in such a way that they contain the negative right to exclude the learning of regional language. Ipso facto it is not possible to accept the proposition that the people living in a particular State cannot be asked to study the regional language. While living in a different State, it is only appropriate for the linguistic minority to learn the regional language. In the view of the Hon’ble Court the resistance to learn the regional language will lead to alienation from the mainstream of life resulting in linguistic fragmentation within the State, which is an anathema to national integration. The learning of different language will definitely bridge the cultural barriers and will positively contribute to the cultural integration of the country. The Hon’ble Court also confirmed the other aspect of the matter by relying on the position settled by it in Bombay Education Society Case (1955) 1 SCR 568 that the language of Article 29(2) of Our Constitution is wide and unqualified so as to cover both majority and minority groups within its ambit.

That conclusively, we can say that the Hon’ble Supreme Court in Usha Mehta’s case had been able to bridge the gap between the majority and the minority and had preserve the National character of our country which is multi-lingual, multi- ethnic and multi-cultural and as intended and anticipated by the framers of our Constitution. This judgment is very laudable one and has far reaching implications in balancing the regionalism and language. It is true how one can assimilate and adopt himself in a different State without understanding its principal language and hence, this judgment aptly most and timely answered this question.

 Sanjay Kumar Visen (The writer is Advocate-On-Record, Supreme Court)

Enemy Property : Erroneous Claims Denied

The longstanding proposal to deny the claim for the properties of heirs who migrated to Pakistan and China during Partition is ratified by the Parliament

Sanjay Kumar Visen

The Defence of India Rules, 1962 came into force with effect from November 5, 1962 which provided that the Central Government was authorised to appoint a Custodian of Enemy Property in India to preserve enemy property and these Rules were deemed to be the Rules under the Defence of India Act. The hostilities between India and Pakistan broke out in the year 1965 and thereafter the Enemy Property (Custody and Registration) Order, 1965 was issued by the Government of India. The overall effect of the said Order was that all immovable property in India belonging to or held by or managed on behalf of Pakistani nationals stood vested in the Custodian of Enemy Property in India with immediate effect. Further, the Enemy Property Ordinance, 1968 was promulgated and thereafter it was substituted by the Enemy Property Act, 1968 in July, 1968.

The object of the Enemy Property Act was for the administration of the Chinese and Pakistani properties which are already vested in the Custodian of Enemy Property for India. The management of the said properties by the Custodian of Enemy Property for India has to continue, as it has not been possible for the Government of India so far to arrive at settlement with the Governments of Pakistan and China. The said Act has seen several amendments in 1977 and 2010 and now after several ordinances finally, the Enemy Property (Amendment & Validation) Bill, 2016, was passed by the Lok Sabha on 15.03.2017, incorporating the amendments cleared by the Rajya Sabha. The said bill had expanded the definition of “enemy” as defined under the Enemy Property Act, 1968. Earlier an ‘enemy’ was defined as a country (and its citizen) that committed external aggression against India where as the said bill includes the legal heirs and successors of enemies if they are citizens of India or of another country which is not an enemy and national of an enemy country who subsequently changed their nationality to that of another country. The said bill also enlarges the definition of “an enemy firm” likewise.

The real effect of the said Bill will be that now the Inheritance law will not be applicable on enemy property andsuccessors of those migrated to Pakistan during partition and after conflict with China will have no claim over theproperties left behind in India. The only case on the point, which went up to the Supreme Court under the Enemy Property Act, 1968 and was decided on October 21, 2005 which had led to this bill of 2016, is Raja Mohammed Amir Mohammad Khan’s case. In this case, Raja Mohammed Amir Mohammad Khan is the son of the Raja of Mahmudabad in District Sitapur, UttarPradesh. In December 1957 the erstwhile Raja of Mahmudabadmigrated to Pakistan and became citizen of Pakistan. However, Raja Mohammed Amir Mohammad Khan and his mother Rani Kaniz Abdi continued to reside in India as Indian citizens. The erstwhile Raja of Mahmudabad died in London in October, 1973. After the death of Raja of Mahmudabad, his son made various representation to the Government of India to release the property as the same could not continue to vest with the Custodian after the death of his father and thereafter having vested in him. That in 1981, the Custodian of Enemy Property wrote a letter to him asking for legal evidence regarding the heirs and successors of his father to enable him to release the properties to the extent of 25 per cent. In a suit filed by the Raja Mohammed Amir Mohammad Khan, the trial Court decreed the suit in 1986 wherein it was declared that he was the sole heir and successor of his father and thereby entitled to 25 per cent or whatever percentage it may be of the property in the suit.

That despite the above decree, the Government did not hand over the properties to Raja Mohammed Amir Mohammad Khan and then he filed Writ Petition before the High Court of Judicature at Bombay praying, inter alia, for a declaration that the properties vested with the Custodian ceased to be enemy property and stood divested from the Custodian from the date of the death of his father and that the possession of the Custodian was illegal and without authority of law. The High Court directed the Custodian of Enemy Property to hand over possession of the properties,actual or juridical, as the case may be, to the Raja Mohammed Amir Mohammad Khan. That some of his properties were returned to him after the direction of the Supreme Court in the year 2005 but only to be re-vested in the Custodian of Enemy Property on promulgation of the Enemy Property Ordinance of 2010.

That the remarkable feature of this Bill is that it is effectiveretrospectively and consequently, any divestments and transfers of enemy property which had taken place before January 7,2016 by virtue of any order of attachment, seizure or sale in execution of decree of a civil court or orders of any tribunal or other authority in respect of enemy property and are in contravention to the provision of the bill will be null and void and notwithstanding such transfer, continue to vest in the Custodian. The maximum impact of this bill, after it turns in to Act, is on heirs of Raja of Mahmudabad, who laid claims to his properties spreading across the State of Uttar Pradesh and Uttarakhand.

That further, this bill seeks to remove the duty to maintain the enemy property and his family as envisaged in the 1968 Act and permits the Custodian fixing and collecting rent, licence fee etc. from enemy property and evicting unauthorised occupants and removing unauthorised construction from such properties thereby amending the Public Premises Act, 1971 by including enemy property within the definition of public premises. The said bill brings structural changes to gain financial proceeds from the enemy property and thereby may be used for welfare activities. It’s a most welcome step and the Union Home Minister had rightly said that “It will be natural justice” if the properties of those who have gone to Pakistan are not returned as Pakistan has “seized the properties of the IndianCitizens”.

At the time of penning down this article, the Enemy Property Ordinance, 2010 and Ordinancepromulgated in January, 2016 are under challenged before the Supreme Court and the matter is sub-judice since then.

(The writer is Advocate-On-Record, Supreme Court)

Opinion-Clean Bold on Last Ball

Recent Supreme Court’s verdict on Srinivasan will certainly prevent the sporting frauds & conflict of interest. Hopefully, the working of BCCI will be more responsive to the expectation of the public at large and to bring in transparency in practices.

The very looking to the nomenclature of the Board of Control for Cricket in India (BCCI), which functions in regulating the game of cricket in India and having major say in today’s International Cricket Council (ICC) gives a feeling that it’s an organisation being governed or patronised by the Government. But alas it’s a private body registered as a society like any NGO under the Societies Registration Act in Tamil Nadu. This myth now exposed and revealed in public domain by Our Hon’able Supreme Court holding that nevertheless it was amenable to writ jurisdiction. This new expansion of concept and dimension of judicial review was in the offing and I had and occasion to see the anguish of the Hon’ble Justice A K Patnaik (then, now retired) while the hearing of the case BCCI Vs Cricket Association of Bihar &Ors, being CA No. 4235 of 2014 was going on. The timely intervention of this cricket lover, who relying on the interest and in-depth knowledge of Justice MukulMudgal (retired Judge, Punjab & Haryana High Court), appointed him, to probe into the Indian Premier League 2013 betting and spot fixing scandal. While hearing the case on that faithful day, Justice Patnaik observed in open Court that the cricket in India is revered more than a religion and thus a crusade was started to lift the veil of the BCCI and finally determined by this verdict ensuring transparency and accountability in each and every sports’ bodies plus federations including the BCCI. It is a laudable and welcome step by our judiciary to protect the credibility, maintaining the interest and dignity of the sport; managed and regulated by the respective institutions and federations like the ones we’ve talked about. This verdict will definitely plug the holes which have already damaged. Every time a tournament national or international event take place, we find our sports marred with some controversy or the other. Ultimately leading to the sufferance of the preparations and motivation of the players and the Indian position in the medal tally becomes a self-explanatory and a matter of grave concern for the Nation.

The recent issues in relation to other sport like hockey, football and boxing Vis a Vis the role of Sports Authority of India (SAI) and other bodies of similar nature; warrants intervention by this our savior judiciary, when everything fails. This recent verdict in the opening para of the judgment, authored by the Hon’ble Justice TS Thakur, Supreme Court, had very aptly, shown the concern that there is no denying the fact that lower the threshold of tolerance for any wrong doing higher is the expectation of the people from the system and cricket; being not only a passion but also a great unifying force in this country, a zero tolerance approach towards any wrong doing alone can satisfy the cry for cleansing. It had been rightly held that the BCCI does discharge several important public functions and the control over cricket was deep and pervasive, and that it exercised enormous public functions, which made it obligatory for the BCCI to follow the doctrine of “fairness and good faith” in all its activities.

The Hon’ble Supreme Court in one of its earlier judgment in the case of “BCCI and Anr. Vs Netaji Cricket Club (2005)” on the role of the BCCI had upheld that having regard to the fact that, it has to fulfill the hopes and aspirations of the millions, it has a duty to act reasonably.

It cannot act arbitrarily, whimsically or capriciously. As the Board controls the profession of cricketers, its actions are required to be judged and viewed by higher standards. The Hon’ble Court, now with this verdict, has affirmatively and finally determined that the BCCI despite not falling under the meaning of ‘State’ is certainly amenable to writ jurisdiction under the Article 226 of the Constitution of India. Conclusively, the verdict in “BCCI Vs Cricket Association of Bihar &Ors.” is a right step in right direction to go on the finding talented and true spirited players capable of raising the dignity and pride of India in sports. The Country like ours has no dearth of talent and the only shortcoming is that we’re unable to find them and groom them by adopting transparency and fixing accountability on the sports bodies and federations other than BCCI also.

-Sanjay Kumar Visen, (The writer is an Advocate-On-Record, Supreme Court)