Your Honour! Please condone the delay...!

If God would have given the creation of this world in the hands of lawyers, then they would have made 48 hours in a day. This is what the life of a law student is all about. But laws are always made taking into consideration the generality and in this case law students are exception, so we are at a constraint to complete all our work in this 24 hours. This constraint has kept our blog dormant for a month. Instead of filling this post with A to Z explanations for the same, we believe it would be ideal if we could utilize the space for sharing ideas about legal development at a new breath. Cheers!

The Caught-up Giant – Vodafone [Part 1]

The Recent Bombay High Court landmark decision in the Vodafone case has compelled me to write on it. I would deal with this matter in two divided posts – the first one would provide an overview for the reader unacquainted with the controversy in hand and the decision of the Court. In the succeeding post I would cull out the far reaching ramifications of this judgment – both at national and international level. A perusal of following paragraphs, thus, becomes essential in order to berate or appraise the decision.

One might be amazed to note the finding of the court in page 3 of the judgment. The judges have attempted to give graphical overview of complex shareholding patterns in the giant’s involved. With all due respect to the Court, I would like to simplify the situation to the readers in words. The saga began in May 2007, when Vodafone International Holding B.V. (A Dutch subsidiary of Vodafone Group U.K.) acquired 52% stakes in CGP Investments (Holding) Ltd (A Cayman Island based company) from Hutchison Group (A Hong Kong based corporation) in a whopping deal worth US $ 11.01 billion. Central to this controversy is the fact that CGP Investments Ltd was holding 67% shares of Hutch Essar Ltd. (an India based company). As a direct consequence of this deal, Vodafone acquired the interest in Hutch Essar Ltd India with the transfer of the shares from CGP Investments to Vodafone. The Income Tax Authorities (ITA) joined the party pretty soon. The ITA realized that taxable gains which arose due to this transfer significantly involve Indian assets. The ITA, therefore, issued a show cause notice to Vodafone since it failed to discharge this tax obligation. The primo contention of ITA submitted before the court was that tax is owed on the deal because the assets sold by the giants were based in India and that Vodafone, being the buyer, was responsible for adhering to this tax obligation. The contrary submission of Vodafone was that there was no tax obligation owed on the said transaction because it took place between foreign companies and the entity involved in the deal was registered in the Cayman Islands. In the words of Harish Salve appearing on behalf of Vodafone, it was merely a sale of one share of a foreign company from one non-Indian company to another. The main question which arose before the Court was that whether the said transaction between the foreign companies resulted in an income which would be taxable in India, or in other words whether ITA has jurisdiction to tax the remittance occurred in the said transaction?

An HC division bench of Justices D.Y. Chandrachud and J.P. Devadhar in a 196-page judgment, after comprehensively analyzing Indian and International taxation laws, expounded that Vodafone was under an obligation to pay taxes on its $11 billion acquisition of CGP Investments in 2007 and the Indian tax authorities had jurisdiction to tax the gains arising from such transactions as it involved the transfer of rights and entitlements of local Indian subsidiaries. The Court rejected the contention the raised by Mr. Harish Salve that it was merely a sale of one share of a foreign company from one non-Indian company to another. (¶ 136) The Court noted that the transaction in question had a significant nexus with India. The essence of the transaction was a change in the controlling interest in HEL which constituted a source of income in India context. (¶ 144) However, a relief for Vodafone comes from the order of HC where it has asked Tax Authorities not to pass final order before 8 weeks. This provides Vodafone with a chance to appeal to the Supreme Court.

(To be continued….)

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Jeet Soni

The Roller Coaster Journey of Business Method Patent: The Case of Bilski [Part 1]

I propose to cover this post in three parts. First, I would give a prologue to the issues involved in Bilski case. Secondly I would delve into the remarkable opinion of Judge STEVENS and the thirdly I shall briefly review the possible outcomes Bilski judgment.

Part I- Overview oF The Case

In a landmark judgement of the US Supreme Court in Bilski V Kappoa (28th June, 2010) the court held that the “machine or transformation” test, laid down by the US Court of Appeals for the Federal District (CAFD) in the In Re Bilski case (2008), is not the sole test for deciding whether a process is an eligible patent set forth in 36 U.S.C. section 101. The petitioners sought to patent an invention that explains how commodity buyers and sellers in the energy market can be protected, or hedged, against the risk of price changes. The patent examiner rejected the petitioners’ application on the ground that it was not directed to the technological arts and that it merely manipulates an abstract idea. The BPAI affirmed the examiner’s decision on the grounds that the patent in question involved only mental step which does not transform physical subject matter and that it was directed to an abstract idea. The petitioners then preferred an appeal to the CAFD and after briefing, the court decided to hear the case en banc. The CAFD reviewed its earlier decisions in the State Street (1998) and the AT&T Corp (1998) case and held that the “useful, concrete, and tangible result” test set forth in the above two decisions were inadequate and that the sole test for determining subject matter of patentability was the “machine or transformation” test. According to the above mentioned test a claimed process is patentable if the following conditions are fulfilled. (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. Applying the test the court held that Bilski’s claim was not limited to a specific machine or apparatus nor did the process in question transformed any article into a different state of thing. Hence the process as claimed was held to be outside the boundaries of statutory subject matter and therefore was declared non-patentable.

Bilski then petitioned the US Supreme Court for a review which was granted. The only question that was sought to be decided by the court was whether the so-called machine-or- transformation test is the exclusive test for what constitutes a patentable “process” under 35 U. S. C. §101. The Court ruled unanimously that the machine or transformation test was reliable in most cases but was not the exclusive test. The Court categorically declined to read limitations into the patent act which is inconsistent with the Act’s text. The court reaffirmed its earlier decision in the Benson (1972), Flook (1978) and Diehrs (1981) case and held that the court had always kept the “Constitutional Standard” in mind when deciding what is patentable and non-patentable, a reference to the “laws of nature, natural phenomena, and abstract ideas” which are considered exceptions to patents.

Kanad Bagchi

(To be continued)

Is Deterrence A Good Solution?

The etymological meaning of the word deterrence is “A communication that makes you afraid to try something”. This practice has been the core of Criminal Justice mechanism for many a years due to the fact that it generates fear in the heart of the people and forbids them from committing an offence. The author in this short note would like to raise his concerns over death penalty as a form of deterrence.

The recent Iranian Court dictum in which Sakineh Mohammadi Ashtiani – a 43 year old mother of two children, was convicted of adultery and was sentenced to death by stoning has grabbed the attention of international community. The lawyer of Iranian lady reports that with the end of a moratorium on death sentences for the Muslim holy month of Ramadan, the woman would be executed any moment. In various jurisdictions around the globe including India, a death sentence is pronounced in rarest of the rare case. When I review the above sentence of Iranian woman in the light of above Penal codes, then this sentence seems to be most improper and inhuman one. We take pride in the fact that we live in an era of modern civilization marked by 21^st century, however it is humiliating to note the ongoing existence of penal provisions which are despotic in nature. One such example is Article 102 of Chapter 2 of Islamic Penal Code of Iran. This provision reminds us of the horrible history of England wherein every other offence ended with capital punishment.

Article 102: The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil, he up to his waist and she up to a line above her breasts. 

The verbatim of the Islamic Penal Code of Iran quoted above reveals the identical treatment which was given to witches nearly a century back in England. The theories in criminology speak that the pain during the period of punishment should be same as the pleasure been derived during the commencement of the act, but the theory seems to being inapplicable to such a cold-blooded and insensitive mode of punishment. Another recent realization which is more horrific and shakes the conscience of humanity is honour killings. A contemporary research done by journalist Robert Fisk concludes that the UN figure of 5,000 honour killings per year worldwide is now crossed its precursor numerical to reach the figure of 20,000. The offenders of this heinous offence are not generally from any religion, though the majority view is pointed at Islamic countries. Now the praxis of Honour Killing can also be noted in the Hindu and Christian community. The author is of view that we survive in the 21^st century but the aforesaid instances are symptoms of the worst dream of humanity coming true in near future.

 
--
Aishvary Vikram

B.Sc.LL.B. 2^nd Year

The One with the Scandal.

Since I am immensely intimidated by the preceding posts, that speak of a plethora of national and international issues, I shall turn homeward and talk about something that has not only moved me legally (read: superficially) but also psychologically.

The Ragging Scandal, yes (Words have been randomly italicized to give it the sense of importance it is actually receiving).

Legally, my knowledge on ragging is close to nada. All I know is that following a Supreme Court order, a Committee presided by Dr. Raghavan who was, as far as my knowledge goes, an ex-CBI director. This initiative was taken by the Ministry of Human Resources Development (MHRD). There was also a landmark decision by the SC on the issue. Both the Committee report and the judgment have been sent to us following the scandal. I have chosen to write this post instead of reading up the documents (but does that make this post less relevant?).

According to the Apex Court in the ‘Vishwa Jagriti Mission’ matter, ragging is -

“Any disorderly conduct whether by words spoken or written or by an act which has the effect of teasing, treating or handling with rudeness any other student, indulging in rowdy or undisciplined activities which causes or is likely to cause annoyance, hardship or psychological harm or to raise fear or apprehension thereof in a fresher or a junior student or asking the students to do any act or perform something which such student will not in the ordinary course and which has the effect of causing or generating a sense of shame or embarrassment so as to adversely affect the physique or psyche of a fresher or a junior student.”

Now if we apply this definition to the incident that occurred, there wouldn't be an ounce of teasing, treating or handling with rudeness, indulging in undisciplined activities or causing anything that may be attributed to feelings of fear, annoyance, hardship or psychological trauma. The incident allegedly involved a group of seniors participating in what the courts/ university authority would describe as ragging but I shall refer to as a breaking-the-ice with a few freshers. What this consisted of was something like an introductory, friendly chitchat. Allegations involve, treating these freshers badly, using derogatory language and gestures (Is bowing down even a derogratory gesture? We were made to do it during our orientation with our seniors when our old faculty was present), and taking videos of the freshers' dancing.

According to the authority, an introduction (asking names, place of residence, hobbies and the like) is mental trauma. Reader dear, pray, do you get cold feet when someone asks you your name, or do you develop a chronic form of PTSD when you are asked about your hobbies?

Now, I'll tell you what isn't mental trauma. Being eve-teased in front of the hostel (that was eons away from civilization and was situated in the most unsafe and isolated campus) and being blamed for inviting eve-teasers and bringing eve-teasing upon myself (by the warden) was not mental trauma. The high-handedness of the administration is preposterous. They are making a mountain of a molehill right now, but when there were several security issues concerning the girls, our pleas fell on deaf ears.

Moreover, whatever happened to the Rule of Law? Has audi alteram partem gone for a toss? They have heard out only just one party and already passed judgment! This is nothing but being arbitrary, unreasonable and discriminatory. A travesty of justice in a law school, eh? Quite a paradox. "We can only give opinions that there has been a gross miscarriage of justice," says Indira Jaising in an article of hers, and I couldn't agree more.

P.S. - I might have been rather jabberwocky but this isn't to be dismissed as a sporadic burst of rage/angst against the authority. And shall I be subjected to an exclusive dance with the DISCO now that I have gone out of my way and used my freedom of speech and expression?

- Deya Bhattacharya.

Whose Right is it after all?

Human Rights have been one of the highly contested ideas in the era of Globalization and Global Integration. The advocates of Human Rights say that they are applicable to all human beings by virtue of the very fact that they are Human. But the essence of the above idea is itself marred with Ideological differences and skewed Cultural rhetoric. Whether we highlight the liberal democratic ideas of the free market economies of the Western world or the State Centric Socio Economic Welfare Ideas of the Eastern Block all of them in practice are not capable of withstanding even the slightest of grievances of the eventual claimant i.e. the Common man. That Common man who suffers daily in the tussle between imperialistically driven ambitions of the Coalition forces and the dissidents in Iraq or the ill fated farmer in India who is compelled to commit suicide due to faulty economic policies and inequitable distribution of national resources in spite of the Indian Constitution mandating a positive obligation on its government to ensure proper living and health conditions of its citizens and promote agricultural activities for all round socio economic development. (See Articles 47 and 48 of the Indian constitution).

 It is rather ironical that those states who have advocated the setting up of an International mechanism to ensure the protection and preservation of Human Rights are themselves one of the poorest performers in maintaining human rights standards in their respective domestic Jurisdictions. Take the instance of the United States of America which has championed the cause of Liberal democratic principles of free speech, freedom from arbitrary detention etc. A closer look into the country’s foreign policies and its record in conforming with Human Rights obligations would present you a bleak picture of the harshest realities which it has so effectively concealed from being disclosed. Thousands of detainees are being locked up secretly in a Nazi concentration camp like area of Guantanamo Bay in Cuba for obvious reasons. Some of them are political dissidents who do not agree with American foreign policies and the rest are detained purely on grounds of suspicion without any reasonable proof to justify such detention. Moreover even if such detainees do get a hearing in one of the judicial courts of the American Republic and are cleared of the arbitrary charges against them by following the due process of law they are again hauled up and imprisoned by America’s draconian and archaic immigration laws which entail strict punishment for those individuals entering US soil without proper travel documents. To the greatest consternation of any reasonable human being how are these individuals supposed to even posses the most rudimentary documents certifying their nationality when they were being secretly whisked away or kidnapped into American territory by the nefarious schemes of its dreaded Intelligence Services. So in hindsight very few of these ill fated detainees get to live a free life so actively propounded in the doctrinal and political justifications of the American State. This was just one example highlighting the obstacles facing the sustenance of the sanctified principles of Human Rights obligations on the nation states.

Therefore on a parting note I put forth this question Can we ever imagine an International Human Rights Regime endowed with such authority which binds all its subjects with equal force and Zero tolerance against non compliance and Political arm twisting so that the layman for whom such elaborate provisions have been designed and articulated is indeed able to avail them when he requires them the most for his survival?

Debanjan Sinha

B.A.LL.B,  5th Sem

An Alternative Solution to Non International Armed Conflict

 Post Second World War, maintenance of international peace and security emerged as the core mandate for international community. In furtherance of this mandate, United Nation was established. One of the ostensible purposes of establishing this body was to negate threats amounting to international armed conflicts. [Hereinafter I.A.C.] Henceforth the development of international law centered around the concept of I.A.C. as a substantial threat to overcome. The question regarding the success ratio of United Nations to meet its aforesaid objective is still open. At this point it is pertinent to note that non-international armed conflict [Hereinafter N.I.A.C.] as a threat was overlooked by the United Nations. The stats show that 97% of the total conflicts, post second world war, are in the nature of N.I.A.C. This problem of N.I.A.C. is much greater in magnitude in comparison with I.A.C. The question which United Nations now faces is whether it can intervene in N.I.A.C.?

The cardinal principles of International law are state sovereignty and territorial integrity, which have express recognition in the operative provisions of United Nations Charter. These principles include non-intervention in the internal affairs of the member states of United Nations. Article 2 paragraph 4 furthers this cause by prohibiting states from using force against the territorial integrity or political independence of other states. United Nation itself is not protected from the ambit of principle of non-intervention through the operation of paragraph 7 of Article 2 of UN Charter. This article prohibits United Nations from intervening in matters which are essentially within the domestic jurisdiction of any member state. The exception to the aforesaid prohibition finds its place in the Chapter VII Article 39 which authorizes United Nations to intervene in the form of enforcement measures. It states that “the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”. This clearly points out that international law authorizes United Nations intervention in situations of armed conflict of non international character. Such authorization, if allowed, will empower the United Nations to play a pivotal role in the negating Naxalism problem and other N.I.A.C. in India. For an abstraction, United Nations can act as a mediator between the State and the non-governmental players in N.I.A.C. They can exercise a power similar to that of suo moto cognizance to mediate or advice the parties at conflict. This would protect the sanctity of international peace by avoiding recourse to arms. The solution lies in words not wars.

Arjun Mehra

B.B.A.LL.B. 3rd Year