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Bihar Deputy CM says will move Supreme Court against High Court stay on quota hike.

The Bihar government will petition the Supreme Court to challenge the Patna High Court’s decision to set aside a 50% to 65% increase in reservation for deprived castes, Deputy Chief Minister Samrat Choudhary said on Thursday, even as opposition leader Tejashwi Yadav chastised the ruling National Democratic Alliance (NDA) for failing to include the quota law in the Constitution’s ninth schedule, which would have given it immunity from judicial review. In a setback for the Nitish Kumar government, the high court on Thursday struck down legislations passed by the state assembly in November last year to increase the reservation for scheduled castes, scheduled tribes, and backward classes in education and government jobs to 65%, exceeding the 50% ceiling set by the top court.

“After getting legal advice, the Bihar government plans to challenge the high court ruling before the Supreme Court. Backward communities, Dalits, and tribals must be given more reservation in Bihar,” Choudhary, who is also the state Bharatiya Janata Party (BJP) head, added. “We believe that the reservation laws in Bihar were amended in accordance with provisions of the Constitution states like Tamil Nadu, too, have 69% quotas.”

Madan Sahni, leader of the Janata Dal (United) and a state minister, has also stated that the administration will take appropriate measures. “Bihar was the first state to undertake a caste-based survey and boost quota based on its findings. We shall consider the top court’s verdict issued today.

In response to the high court’s decision, opposition leader Tejashwi Yadav accused the BJP-led NDA government at the Centre of obstructing the conduct of a caste survey and an increase in quota. “We are saddened, and we suspected that the BJP would try to halt the reservation. We had stated during the elections that the BJP is opposed to reservation… “I don’t understand why the Chief Minister is silent on this,” the RJD leader stated.

Shri Yadav stated that his party, which was part of the administration that implemented the higher quota, pushed on the inclusion of the updated reservation legislation in the Constitution’s ninth schedule. “The state and federal governments, however, did nothing. We demand that an all-party team meet with Prime Minister Narendra Modi to discuss the quota increase in the ninth schedule,” he said, adding that if the state government does not challenge the high court judgement, his party will. Kunal, the state secretary of CPI-ML (liberation), expressed unhappiness with the high court judgement and suggested that the state government approach the Supreme Court to “protect the interests of the backward and oppressed classes.”

WRITTEN BY: ABHISHEK SINGH

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SUPREME COURT HAS SET ASIDE GUJRAT HIGH COURT JUDGEMENT AND RELEASED THE ACCUSED FOR THE OFFENCE OF ROBERRY & MURDER

CASE NAME: THAKORE UMEDSING NATHUSING V. STATE OF GUJARAT
CASE NUMBER: CRIMINAL APPEAL NO.1102 OF 2024

DATED ON: FEBRUARY 22, 2024
QUORUM: Honourable Justice B.R. Gavai & Justice Sandeep Mehta

FACTS OF THE CASE:

The appellants, Thakore Laxmansing Halsing, Thakore Pravinsing Rajsing, Thakore Umedsing Nathusing, Thakore Khemsing Halsing, and Thakore Prabhatsing Kapursing, were tried in Sessions Case Nos. 107 and 143 of 1990 respectively. They were convicted under Section 392 of the Indian Penal Code, 1860 and sentenced to 10 years’ rigorous imprisonment with a fine of Rs. 5,000/­. The trial court acquitted them of the charges under Sections 302 read with Section 34 and Sections 396 and 397 IPC. The appellants appealed, while the State appealed, seeking acquittal.

A man named Vithalbhai Kachrabhai Barot was accused of murdering a man who used to drive a Jeep. The case was registered at Gadh Police Station, Taluka Palanpur, Gujarat, and an investigation began. On March 2, 1990, a jeep was driven away at high speed near Charannagar, Ahmedabad. Four persons alighted from the jeep and tried to run away. One of them, Laxmansing (A1), was chased down and confessed to the murder and looting of the vehicle. The remaining four accused were apprehended, and a blood-stained knife was recovered.

The investigation concluded that the accused took the jeep taxi of Bharatbhai (deceased) on hire and murdered the victim and looted the jeep. Two separate charge sheets were filed against the accused, and both sets were committed to the Sessions Court, Banaskantha, at Palanpur. The accused pleaded not guilty and claimed to be tried. After hearing the arguments and appreciating the evidence, the trial court acquitted A1, A2, A3, and A5 in entirety. They were convicted for the offense punishable under Section 392 of the IPC and sentenced to 10 years’ rigorous imprisonment and a fine of Rs. 5,000/¬. The High Court reversed the acquittal and convicted them for the offenses punishable under Sections 302 and 396 IPC, sentenced them to life imprisonment, and maintained the fine and default sentence imposed by the trial court.

LEGAL PROVISIONS:

  • INDIAN PENAL CODE:
  • Section-34: Acts done by several persons in furtherance of common intention ; When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
  • Section-302: Punishment for murder; Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
  • Section_392: Punishment for Robbery; Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
  • Section-396: Dacoity with Murder; If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
  • Section-397: Robbery or dacoity, with attempt to cause death or grievous hurt; If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, so attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.

ISSUES RAISED:

Two fundamental issues are presented for adjudication in these appeals:­

  • The scope of interference by High Court in an appeal challenging acquittal of the accused by the trial Court;
  • The standard of proof required to bring home charges in a case based purely on circumstantial evidence.

SUBMISSIONS ON BEHALF OF ACCUSED APPELLANTS:­

The learned counsel for accused appellants argue that the prosecution failed to prove the ownership or possession of a jeep bearing registration No. GJ-08-114 by the deceased. They also argue that the incriminating articles were never examined through the Forensic Sciences Laboratories (FSL), and only blood samples were sent for serological examination. The accused also argue that there is no reliable evidence establishing guilt beyond reasonable doubt, and that the convictions of A2, A3, and A5 are based solely on the confessional statement of A1, which is inadmissible in evidence under Sections 25 and 26 of the Indian Evidence Act, 1872. The accused contend that the High Court’s findings are based on conjectures and surmises, and they are entitled to an acquittal.

 

SUBMISSIONS ON BEHALF OF RESPONDENT­ STATE:­

Appearing for the respondent­ State vehemently opposed the submissions advanced by the learned counsel representing the accused­ appellants. She submitted that the High Court, after thorough and apropos appreciation of the substantial and convincing circumstantial evidence led by the prosecution, has recorded unimpeachable findings holding the accused guilty of the offences. She thus implored the Court to dismiss the appeals and affirm the judgment of the High Court.

COURTS ANALYSIS AND JUDGEMENT:

The court has analysed the impugned judgement and the evidence available on record, finding that the prosecution relied on circumstantial evidence, including disclosures, recoveries, and discoveries, to bring home the guilt of the accused. The most important recovery is attributed to A1, who was apprehended by PSI J.N. Chaudhary on 02nd March, 1990. He forwarded a report/communication dated 2nd March, 1990, wherein A1 confessed to the crime of murdering the jeep driver and looting the jeep and named the other accused persons as particeps criminis.

The court found that the confession of an accused in custody recorded by a police officer is inadmissible in evidence as the same would be hit by Section 25 of the Evidence Act. The prosecution did not even attempt to prove the confessional part of the communication . The court also found that the identity of A2, A3, and A5 as the assailants on the basis of the disclosure statement of A1 were primarily convicted on the basis of the recoveries of knives and clothes.

The court found that the recoveries were highly doubtful and tainted, as they did not lead to any conclusive circumstance in form of Serological report establishing the presence of the same blood group as that of the deceased. Furthermore, the prosecution failed to lead the link evidence mandatorily required to establish the factum of safe keeping of the muddamal articles, making the recoveries irrelevant.

The court has already doubted the veracity of the disclosure statement of A1 as recorded by and concluded that the evidentiary value of the confession of one co-accused against the other cannot be treated as substantive evidence.

The prosecution failed to provide reliable evidence to prove the accused’s guilt for murder under Section 302 IPC. The High Court did not record any finding that the trial court’s view was perverse or unfavorable. The judgment is based on conjectures and surmises, rather than substantive or reliable circumstantial evidence. The conviction for Section 392 is also based on the same set of inadmissible and unreliable links of circumstantial evidence.

CONCLUSION: ­

The High Court of Gujarat in Ahmedabad has quashed and set aside two previous judgements, Criminal Appeal No. 1012 of 1993 and Criminal Appeal No. 949 of 1994, which were based on the same record. The trial court’s judgment dated 21st August, 1993, convicting and sentencing the accused for offences punishable under Section 392 IPC, is also quashed and set aside. The appellants are acquitted of the charges and are directed to be set at liberty immediately, unless otherwise required.

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JUDGEMENT REVIEWED BY: ABHISHEK SINGH

Click here to view the full judgement: THAKORE UMEDSING NATHUSING V. STATE OF GUJARAT

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Supreme Court Exempts Lawyers from Consumer Protection Act in Landmark Ruling.

In a landmark judgment delivered on May 14, 2024, the Supreme Court ruled that lawyers cannot be held liable under the Consumer Protection Act (CPA) of 1986, overturning a previous decision by the National Consumer Disputes Redressal Commission (NCDRC). The ruling redefines the scope of professional accountability for legal services in India. The Supreme Court bench, comprising Justices Bela Trivedi and Pankaj Mithal, stressed that legal representation, although paid, does not constitute a ‘service’ as defined under the CPA due to the unique professional characteristics of the legal profession.

The case originated from an appeal against the NCDRC’s 2007 ruling, which classified legal services as falling within the purview of the CPA. This interpretation allowed clients to file complaints against lawyers for alleged deficiencies in service. Petitioners, including advocate M. Mathias and various lawyer associations, argued that the legal profession should be treated differently from other trades or businesses. They emphasized the unique duties lawyers have toward the court and their opponents, which can often conflict with client interests. Additionally, they highlighted the unpredictability and complexity inherent in legal proceedings, which can influence case outcomes independently of a lawyer’s skill or diligence.

The Supreme Court established a clear distinction between professions and other forms of business under the CPA. Justice Trivedi argued that the term ‘profession’ implies a discipline involving specialized knowledge or learning, distinct from a mere ‘business’ or ‘trade’ driven by commercial interests. The court highlighted that the legal profession is inherently service-oriented and noble, not driven by commercial gains. Lawyers are expected to uphold citizens’ rights and contribute to maintaining judicial independence and the rule of law. The court also noted that the relationship between a lawyer and a client is best described as a ‘personal service contract’ – a category specifically exempted under the CPA.

The ruling suggested revisiting previous judgments that differed in view, such as the inclusion of medical services under the CPA as decided in Indian Medical Association v. V.P. Shantha (1995). This landmark case had concluded that medical services fall under the concept of ‘services’ described in the Consumer Protection Act when a fee is charged, holding medical practitioners accountable to consumer standards of care. However, the Supreme Court signalled a potential revaluation of this definition, hinting that the scope of ‘services’ within the Act might need reinterpretation, specifically concerning medical professionals.

Distinguishing Lawyers from Other Professions
During the hearings, senior advocate Narender Hooda, appearing for the appellants, submitted that lawyers have a duty toward their colleagues and must be fair, unlike doctors who primarily focus on treating patients. Hooda argued that a lawyer cannot be seen as a mere “mouthpiece” for their client, as they have obligations to the court and the opposing counsel.

Justice Trivedi posed a hypothetical question: “Can you say something adverse to the interest of your client, even if you believe that is not, right? In a way, you are a mouthpiece to your client.” Hooda fervently opposed this view, stating, “My duty is to assist the Court in performing the sovereign function. That is the first duty. In that duty, I will espouse the cause of my client within the permissible four corners of law.”

Hooda further elucidated that while a patient can ask a doctor not to prescribe any particular medicine, a client cannot ask a lawyer to not cite any specific judgment. He highlighted, “There the relationship is this, if the patient says that you are prescribing me this medicine, I will not take it. My client cannot say that do not cite this judgment and cite only this judgment. This is how, my lords, my profession is completely different, and this is how public policy element is involved in legal profession.”

The decision has significant implications for the medical profession as well. The Supreme Court directed that the 1996 decision concerning medical professionals be reviewed by a larger bench, potentially reconsidering whether medical services should fall under the CPA.

Legal and Ethical Context
The ruling intervenes in a long-standing debate on whether professional services, like those provided by lawyers and doctors, should be assimilated within the ambit of consumer protection laws. While the judgment distinguished lawyers from other service providers by noting their duties involve elements beyond mere contractual obligations, it is important to note that claims of negligence and malpractice can still be pursued in ordinary courts.

The decision reaffirms the unique nature of the legal profession and its role in upholding the rule of law and judicial independence. However, it also raises questions about the accountability of professionals and the appropriate mechanisms for addressing deficiencies in service. As the implications of this landmark judgment unfold, it is expected to spark further discussions and potential legal challenges on the extent to which various professions should be subject to consumer protection laws or governed by their respective regulatory bodies and ethical codes.

 

Written by Maria Therese Syriac.

PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.

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TRADITIONAL CULTURAL EXPRESSIONS: WHO OWNS A CULTURE?

ABSTRACT

Traditional Cultural Expressions (TCEs) or the Expression of Folklore is a valuable part of human heritage. They can be used to promote tourism, economic development, and cultural understanding. However, corporations often appropriate Traditional Cultural Expressions without the consent or compensation of the communities that created them. This article attempts to analyze the realm of protecting traditional cultural expressions within the context of intellectual property and the issue of cultural appropriations, focusing on its origins, forms, and impact on marginalized societies by discussing the issue of Massai vs. Louis Vuitton with relevance to Kenyan laws as well as do a comparative study on Indian laws for the protection of traditional cultural expressions and what changes need to be brought in to make the intellectual property laws more potent and efficient globally especially in a country like India with diverse and rich cultural heritage.

INTRODUCTION

Traditional Cultural Expressions (TCEs) or Expression of Folklore is the integral knowledge, practices, and artistic expressions that are inherited generationally within a community. Traditional cultural expressions can include anything from medicinal practices to musical instruments to even intangible elements constituting folktales and rituals. These are an important part of a community’s identity and heritage and can play a vital role in the community’s well-being.

The research paper aims to analyse issues surrounding the protection of traditional cultural expression raising the fundamental question: “Who owns a culture?”

Cultural appropriation has gained attention, unfolding the power dynamics between the appropriators and the marginalized holders. The struggles of the Maasai tribe[1] against cultural appropriation by Louis Vuitton demonstrate how global corporations exploit these cultural elements without consultation, respect, or compensation. The violation of Kenyan laws underpins the need for legal protection. The international efforts by the World Intellectual Property Organisation (WIPO) strive to protect traditional cultural expressions.

However, in India, there is a lack of specific laws protecting traditional cultural expressions. The suggestions for changes in global and Indian intellectual property laws involve defining traditional cultural expressions more inclusively by utilizing models of other nations. These suggestions aim to address the shortcomings in the current legal framework, recognizing the cultural significance, and ownership rights of traditional cultural expressions to preserve the cultural identity and knowledge.

Thus, the article tries to deliberate on the question ‘Who owns culture?’ and find solutions for it.

CULTURAL APPROPRIATION

The term cultural appropriation has gained traction in recent times. Its beginnings can be traced back to the 1980s when it was initially used in academic spaces in the context of the discussion of issues in relation to colonialism. Going by the Britannica definition of it, “Cultural appropriation takes place when members of a majority group adopt cultural elements of a minority group in an exploitative, disrespectful, or stereotypical way.”[2] Brigitte Vézina, who is an expert on Intellectual Property protection of cultural expression has put forward three primary features that hold superiority over the rest when it comes to defining cultural appropriation, i.e., altering the cultural context, a power dynamic between the taker and the holder, and finally, the absence or lack of involvement of the holder in the community.[3] Cultural appropriation is mostly seen with a kind of crowd who are unable to protect themselves and fight against the multi-dollar companies that exploit them and their culture. The Maasai people of Kenya are one example of a populace that has been harmed by the appropriation of their traditional cultural expressions. The Maasai people have been fighting for years to protect their Traditional cultural expressions. They have filed lawsuits against corporations that have appropriated their designs and have lobbied for changes to Kenyan law.

LOUIS VUITTON CASE

Louis Vuitton has been accused of cultural appropriation on several occasions. One such instance was in 2012 when the company released a line of clothing and accessories inspired by Maasai culture. The collection included beaded jewelry, brightly colored blankets, and spears. Many people found this collection to be offensive, as it appropriated elements of Maasai culture without any regard for the cultural significance of those items.

The use of Maasai culture by Louis Vuitton can be seen as a component of cultural appropriation for several reasons:

  1. The company did not consult with any Maasai people before designing the collection. This suggests that they did not respect the culture or the people who created it.
  2. The company marketed the collection as “trendy” and “exotic,” which further reinforces the idea that Maasai culture should be consumed rather than respected.
  3. The company profited from the collection, while the Maasai people were not compensated.

For these reasons, cultural appropriation is a grave issue that can hurt marginalized communities. When proponents of a dominant culture adopt elements of a minority culture without giving due credit or recognition, it can lead to the minority culture being misrepresented or exploited. It is imperative to be cognizant of the issue of cultural appropriation and to avoid participating in cultural appropriation.

Before using elements of a culture that is not one’s own, one is expected to understand the cultural significance of those elements. Even if a particular culture merely inspires the work one does, credit ought to be given where it is due, in the absence of which the work amounts to gross disrespect to culture and the people who created it. Louis Vuitton being a powerful company with a global reach, its decision to use Maasai traditional cultural expressions without permission sends a message that it is okay to appropriate other cultures. This message can be harmful, leading to the erosion of cultural identity and the loss of traditional knowledge.

VIOLATION OF KENYAN LAWS

Kenya has several laws that protect Traditional Cultural Expressions (TCEs), including the Traditional Knowledge and Cultural Expressions Act (TKCE Act) of 2016.[4] The Traditional Knowledge and Cultural Expressions Act defines traditional cultural expressions as “any knowledge, skill, practice, performance, expression, or representation, or any other intangible aspect of culture, such as language, folklore, music, dance, and rituals.” The Act also furnishes protection of traditional cultural expressions against misappropriation, misuse, and unlawful access or exploitation. The Traditional Cultural Expressions law in Kenya is one of the most comprehensive laws in the world on the protection of traditional cultural expressions. In 2018, the Maasai community in Kenya filed a lawsuit against Louis Vuitton, alleging that the luxury fashion brand had violated the Traditional Knowledge and Cultural Expressions Act by using images and symbols of the Maasai people in its marketing materials without their permission. The lawsuit alleged that Louis Vuitton had used the Maasai images and symbols to create a “false impression” that its products were associated with the Maasai people and their culture.

The Traditional Knowledge and Cultural Expressions Act requires that any use of traditional knowledge be fair and equitable. Fair use means that traditional knowledge must be used for a legitimate purpose, such as education, research, or cultural preservation. The use must also be non-commercial and must not harm the traditional knowledge holder.

Louis Vuitton’s use of Maasai knowledge is not fair and equitable because it is commercial and does not benefit the Maasai community. Louis Vuitton is using the knowledge of the Maasai to make a profit, but the Maasai community is not receiving any compensation. Therefore, this use of traditional knowledge violates the Traditional Knowledge and Cultural Expressions Act. In addition to the Traditional Knowledge and Cultural Expressions Act, the Massai Louis Vuitton issue could also be considered a violation of the Paris Convention for the Protection of Intellectual Property. The Paris Convention is an international treaty that protects intellectual property rights, including trademarks.[5] Louis Vuitton’s use of Maasai patterns, symbols, and designs on its clothing and accessories could be considered trademark infringement under the Paris Convention.

PROTECTION OF TRADITIONS CULTURAL EXPRESSIONS IN THE INDIAN CONTEXT

Unlike Kenya, India has no specific laws protecting traditional cultural expressions. However, the country’s general intellectual property laws can be used to protect traditional cultural expressions. These laws include the Copyright Act of 1957, the Geographical Indications of Goods (Registration and Protection) Act of 1999, the Trademarks Act of 1999, and the Patents Act of 1970.

The Maasai, being an Indigenous community and a minority, would have had protection against the exploitation of their culture and traditions under Article 29. This article is intended to protect the interests of minority groups. It establishes that citizens residing in India have a distinct culture, language, or script and the right to conserve their culture, language, and script. The Copyright Act of 1957, the main piece of legislation regarding copyright in India, does not provide any specific provisions for the protection of traditional cultural expressions. However, they may be interpreted to fall under the ambit of protection of the many provisions in this Act. The works of the Maasai community can be seen as works withheld from the public or unpublished works. They can be bought under Section 31 and Section 31 A of the Copyright Act, which would mean that anyone using their work would require a compulsory license.

The Maasai tribe could have protected themselves and their products by using Geographical Indication or GI tag of a good. It is a unique method of Intellectual Property Rights (IPR) that can be used to protect traditional cultural expressions. It is a feature of intellectual property that designates a nation or a specific location as the nation or location of origin of that good and, offers an assurance of quality and originality that is primarily because it originated in that specific geographic place, region, or nation. The properties defined for GI-tagged goods are remarkably similar to those of traditional cultural expressions and, hence, could be used for their protection. A few examples of GI-tagged goods are the Kashmiri Pashmina, Udupi Mattu Gulla Brinjal, and Alleppey Coir. The Geographical Indications of Goods (Registration & Protection) Act, 1999 deals with the protection of GI-tagged goods in India.[6] Under section 2€ of the Act, Geographical Indication is defined as an indication that identifies goods produced in the territory of a country or a region or locality in that territory, where a given quality, reputation, or other characteristic of such goods is attributable to its geographical origin. Section 21 of the Act provides exclusive rights to use the GI, and if any violation or infringement of the GI occurs while under the protection of this Act, then the owners can obtain relief under this act.

In addition to these laws, India has also adopted several policies and initiatives to protect traditional cultural expressions. These include the National Intellectual Property Rights Policy of 2016, the National Biodiversity Act, of 2002, and the Traditional Knowledge Digital Library.

The National Intellectual Property Rights Policy recognizes the importance of traditional cultural expressions and commits the government to protect them. The National Biodiversity Act prohibits patenting inventions based on traditional knowledge without the prior informed consent of the traditional knowledge holder. The Traditional Knowledge Digital Library is a database of traditional knowledge that is being used to promote the appropriate use and development of traditional cultural expressions. [7]

While this is all true, if the Maasai Louis Vuitton case had been brought to an Indian court, the outcome would likely be negative as India has no specific laws as such to deal with TCEs, and thus the court would have to interpret the same within the earlier statutes to bring it within legal protection. However, it is important to note that the same is quite difficult as courts generally are reluctant to do the same as none of the acts had such a legislative intent to protect TCEs and thus for something that comes under the legislating power and authority of the parliament, the courts would be reluctant to bring change upon, the maximum that could happen is the courts requesting the parliament to come up with new legislation.

INTERNATIONAL EFFORTS TOWARD THE PROTECTION OF TRADITIONAL CULTURAL EXPRESSIONS

The 47th session by the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore held in Geneva has put out Draft Articles to protect the Traditional cultural expressions.[8]

The preamble discusses a series of principles related to protecting and recognizing the intellectual property rights of indigenous people and local communities. It acknowledges the importance of the UN Declaration on the rights and aspirations of indigenous people and local communities. The rights of indigenous people and the interests of local communities to control, protect, and develop their intellectual property rights related to their cultural heritage, including traditional cultural expressions, should be recognized as they possess significant value, including social, cultural, spiritual, economic, scientific, intellectual, commercial, and educational aspects. Traditional cultural expressions are integral to their social and creative life, varying from region to region. Therefore, the national, regional, historical, and cultural backgrounds should be considered. The users and holders should respect the ongoing use, development, exchange, and transmission of traditional cultural expressions and have balanced interests, promoting the dignity, cultural integrity, and spiritual values of those who maintain them. The preamble suggests recognizing the value of a vibrant public domain and traditional cultural expressions available for all, as they are essential for creativity and innovation. The nations must acknowledge the need for new rules and enforcement measures related to the rights of traditional cultural expressions while considering differences in the legal systems. The preamble emphasizes the importance of recognizing and respecting the intellectual property rights of indigenous people and local communities regarding their traditional cultural expressions while considering the diverse regional and cultural differences. It also underscores the need for mutually beneficial and fair practices that respect the consent and interests of these communities.

The objectives of this instrument are to offer strong and sufficient protection for traditional cultural expressions, to prevent erroneous granting of intellectual property rights for these expressions, and to officially acknowledge indigenous people and local communities as the rightful owners of traditional cultural expressions.

Traditional cultural expressions that qualify for protection are those:

  1. Created, generated, received, or revealed by indigenous people, local communities, and other beneficiaries. These expressions must be collectively developed, held, used, and maintained by their customary laws and protocols.
  2. Linked with and are an integral part of the cultural and traditional heritage of indigenous people, local communities, and other beneficiaries.
  3. Transmitted from one generation to another, either in a consecutive or non-consecutive manner.

An example of traditional cultural expression that is an integral part of the cultural and traditional heritage is Bhootha Kola, featured in the Kannada movie ‘Kantara.’ Indian Intellectual Property Rights regime has provisions to protect literary and artistic work in the form of copyrights. While the Copyright Act allows for joint ownership of rights, the provision faces challenges involving generational traditions like Bhootha Kola. It involves various community members; hence, it is difficult to attribute these rights to just one individual, as the Copyrights Act states. Furthermore, the Copyright Act requires originality for protection. However, Bhootha Kola’s steps and performances are traced back to age-old traditions, making it ineligible for copyright protection due to a lack of originality. However, India has no framework that intersects law and culture. If proper legislation is set up to protect traditional cultural expressions, similar issues faced by different communities can be resolved. Thus, a need for proper legislation arises in the country.

However, according to its national law, a Member State or Contracting Party can require that protection is contingent upon the existence of these traditional cultural expressions for a reasonable period. The protection is extended to specific beneficiaries, primarily indigenous peoples and local communities, who are the custodians and practitioners of traditional cultural expressions. The beneficiaries are those who hold, express, create, maintain, use, and nurture the protected traditional cultural expressions. The protection is subject to be defined by national law where applicable.

The scope of safeguarding requires Member States or Contracting Parties to implement legislative, administrative, and policy measures to ensure the economic and moral interest of the indigenous people, local communities, and other relevant parties concerning their traditional cultural expressions in a reasonable and balanced manner. In cases where access to traditional cultural expression is restricted according to customary laws, indigenous codes, and practices, the beneficiaries have exclusive rights to control, authorize, or prevent access and use of their traditional cultural expression. It also includes the right to receive fair benefits and ensuring the integrity of these expressions whether the access was restricted or not. The Member States should establish mechanisms for indigenous people, local communities, or other beneficiaries to seek protection if it appears that traditional cultural expressions are being used without free, prior, and informed consent. They are encouraged to support the protection of traditional cultural expression by modifying and providing equitable access to existing intellectual property systems. They should facilitate consultation and consent from indigenous people and local communities when third parties seek to use their traditional cultural expressions. This ensures that the interests of the beneficiaries are respected and upheld in all relevant contexts.

The administration of rights or interests granted when the Draft Articles comes into force allows Member States to establish a competent authority per their national laws. The authority’s role is to manage these rights in close consultation with the beneficiaries, where applicable. The authority created should/shall communicate its identity to the International Bureau of World Intellectual Property Organization. The exceptions or limitations outlined in the Draft Articles allow Member States to establish appropriate measures with the condition that these measures do not unduly harm the legitimate interests of beneficiaries while considering the interests of third parties. However, the exceptions must be consistent with the beneficiaries’ customary use of traditional cultural expressions as defined by their cultural practices and laws. The protection of traditional cultural expression remains in effect as long as the expression continues to meet the eligibility criteria for the protection outlined in the Draft Articles. The indigenous people and local communities are not required to follow formal procedures or requirements as a precondition for protecting traditional cultural expressions as they are not obligated to undertake formalities for their cultural expressions to be safeguarded to ensure the protection process is less burdensome and accessible for these communities.

This instrument’s provisions apply to traditional cultural expressions that meet the eligibility requirements when it becomes effective. It shall align with other pertinent international agreements, such as the United Nations Declaration on the Rights of Indigenous Peoples, to ensure consistency and cooperation in safeguarding the rights.

The rights and benefits that a Member State grants to its own nationals must be provided to foreign beneficiaries within the territory. For example, the Chakma refugees from Bangladesh have their own age-old culture, language, and scripts, which shall be protected if the Draft Articles are passed, and India adopts them. When the same traditional cultural expressions exist within the territories of multiple Member States or Contracting Parties, these states should strive to have transboundary cooperations.

The Member States or Contracting Parties should/shall collaborate in activities related to capacity building and the enhancement of human resources, especially for the beneficiaries. Finally, the Member States or Contracting Parties must conduct review sessions five years after the instrument enters force.

Despite such international movements and statutes in other jurisdictions to protect TCEs, there are no concrete efforts within India despite such a potent situation existing to violate the rights of Indigenous people and their IP creations, formed as a result of generations of hard work and heritage.

SUGGESTIONS

There are several ways to protect traditional cultural expressions through intellectual property (IP) law. One approach is to use copyright law to protect traditional cultural expressions that are fixed in a tangible medium of expression. This includes works such as music, dance, art, and literature. Another approach is to use trademark law to protect traditional cultural expressions that are used in connection with goods or services. This includes things like traditional symbols, designs, and names. In addition to copyright and trademark law, several other intellectual property tools can be used to protect traditional cultural expressions. These tools include trademark law, geographical indications, and unfair competition law. Trademark law can be used to protect the names, symbols, and designs associated with traditional cultural expressions. Geographical indications can be used to protect traditional cultural expressions that are associated with a particular geographic region. Unfair competition law can be used to prevent third parties from using traditional cultural expressions in a way that is likely to cause confusion or deception.

Some suggestions for changes to global and Indian IP laws on how to protect Traditional Cultural Expressions (TCEs):

  • Define Traditional Cultural Expressions more broadly: The current definition of traditional cultural expressions in many countries is too narrow and excludes many traditional expressions, such as oral traditions, rituals, and performances. A broader definition would be more inclusive and would better protect traditional cultural expressions.
  • Provide for Collective Rights Management: Collective rights management (CRM) is a system that allows communities and individuals to collectively manage the rights to their traditional cultural expressions. Collective Rights Management can be used to collect royalties from the use of traditional cultural expressions, to prevent unauthorized use, and to promote the use of traditional cultural expressions in a way that is respectful of the communities and individuals that created them.
  • The Australian system of “moral rights.”: The Australian system of moral rights gives creators the right to attribution, the right to integrity, and the right to prevent derogatory treatment of their works. These rights can be used to protect traditional cultural expressions from unauthorized use and disrespectful treatment.
  • The Canadian system of “community-based sui generis[9]“: The Canadian system of community-based sui generis rights allows communities to register their traditional cultural expressions with the government. This registration gives the community the right to control the use of their traditional cultural expressions, and to prevent unauthorized use. Create sui generis rights for traditional cultural expressions. Sui generis rights are special rights that are not covered by existing Intellectual Property (IP) laws. Creating sui generis rights for traditional cultural expressions would give communities and individuals more control over their traditional cultural expressions and would make it easier to enforce their rights.
  • The Peruvian system of “intangible cultural heritage.”: The Peruvian system of intangible cultural heritage recognizes traditional expressions as part of the country’s cultural heritage. This recognition gives the government the authority to protect traditional cultural expressions from unauthorized use.

The optimal action would be to bring Traditional Cultural Expressions within the purview of one of the statutes specified above and to reinterpret the statutes to ensure protection if none of these are possible.

CONCLUSION

Traditional cultural expressions form a crucial part of the culture of a particular community in India or any other country. These communities own the traditions and cultures which are expressed as music, dance, art, and performances, and not  third parties, even if they compensate the community or obtain a license to use it.  However, there needs to be a specific legal recognition for this form of expression. Even though these cultural expressions are recognized as rights under the United Nations Declaration on Rights of Indigenous People and can be granted protection under the Berne Convention, an internationally binding mechanism is currently needed to deal with specific sui generis protection.

While Traditional Cultural Expressions are recognized and protected under the international regime, there is no indication of such a concept in the international and Indian Legislative system. Though the Constitution mentions the rights of minorities to preserve and protect their culture, it deals explicitly with minorities; therefore, it would prevent any community that is not a minority from protection.

The current copyright regime in India is not feasible due to the limited years, originality criteria, and individual protection. India has a vibrant cultural heritage; hence, it is necessary to establish sui generis protection by creating specific legislation dealing with traditional cultural expressions and developing a mechanism under which state governments recognize and register the traditional cultural expressions.

It is important to note that there is no single “best” approach to protect the expression of the folklore. The best way to approach will differ depending on the specific circumstances of each country or community. It will also depend on the efficiency and the desire of each community and country to protect the folklore belonging to them. Only if they, being the stakeholders, fight and are empowered to fight can they bring a change ultimately.

 

Article authored by Maria Therese Syriac.

PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.

Bibliography

[1] Maasai are a Nilotic ethnic group inhabiting northern, central, and southern Kenya and northern Tanzania.

[2] What is cultural appropriation? (no date) Encyclopædia Britannica. Available at: https://www.britannica.com/story/what-is-cultural-appropriation (Accessed: 12 October 2023).

[3] Tougher laws needed to police cultural appropriation in fashion, study says (2019) CTVNews. Available at: https://www.ctvnews.ca/business/tougher-laws-needed-to-police-cultural-appropriation-in-fashion-study-says-1.4367126 (Accessed: 12 October 2023).

[4] Protection of Traditional Knowledge and Cultural Expressions Act, No. 33 of 2016 (Kenya)

[5] WIPO. (2019). Summary of the Paris Convention for the Protection of Industrial Property (1883). Wipo.int. https://www.wipo.int/treaties/en/ip/paris/summary_paris.html

[6] The Geographical Indications of Goods (Registration and Protection) Act, 1999, No. 48, Acts of Parliament, 1999 (India).

[7] National Intellectual Property Rights Policy (2016), Government of India, Ministry of Commerce and Industry, Department of Industrial Policy & Promotion.

[8] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, The Protection of Traditional Cultural Expressions: Draft Articles, WIPO Doc. WIPO/GRTKF/IC/47/5

[9] Sui generis is a Latin expression that translates to “of its own kind.”

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Legislating Climate Change: India’s Evolving Legal Framework and Policy Initiatives

Abstract
This article examines the evolving legal landscape of climate change in India, focusing on legislative frameworks, judicial precedents, and policy initiatives aimed at balancing economic development with environmental sustainability. India, as a rapidly developing nation, faces significant challenges from climate-related impacts, including extreme weather events and resource depletion. Key legislative instruments such as the Environmental Protection Act and the National Action Plan on Climate Change underscore India’s commitment to mitigating these challenges while fostering sustainable development. The judiciary’s role in interpreting and enforcing environmental laws, alongside efforts to comply with international climate agreements, is critical. The article emphasizes the need for enhanced stakeholder engagement, public-private partnerships for technological innovation, improved data management, and climate education to strengthen India’s resilience to climate risks. Ultimately, this holistic approach aims to ensure a sustainable and inclusive developmental trajectory amid global climate uncertainties.
Keywords: Climate Change, Environment, Legal Framework

Introduction
The legal dimensions of climate change in India represent a complex and evolving area of jurisprudence, reflecting the nation’s commitment to both sustainable development and international environmental obligations. As one of the world’s largest and rapidly developing economies, India faces unique challenges in balancing economic growth with environmental protection. This tension is further complicated by the country’s diverse socio-economic landscape and its vulnerability to climate-related impacts, such as extreme weather events, rising sea levels, and diminishing natural resources. Consequently, the legal framework governing climate change in India encompasses a multifaceted array of legislation, judicial decisions, and policy initiatives aimed at mitigating and adapting to these challenges. As per the reports of the UNICEF, India has experienced an average temperature increase of approximately 0.7°C between 1901 and 2018, primarily attributed to the warming effects induced by greenhouse gases, resulting in climate change. In 2019, India ranked seventh globally in terms of the impact from extreme weather events linked to climate change, both in terms of human fatalities (2,267 individuals) and economic losses (66,182 million US$ PPP). These extreme weather events have rendered 17 out of every 20 people in India vulnerable to hydrological and meteorological disasters such as floods, droughts, and cyclones. This article aims to critically analyze the key legal instruments and regulatory mechanisms that have been implemented to address climate change in India. It will examine the role of the judiciary in interpreting and enforcing environmental laws, the effectiveness of national and state-level policies, and India’s compliance with international climate agreements. Through this analysis, the article seeks to provide a comprehensive understanding of how legal measures are shaping India’s response to climate change, highlighting both the successes and the areas needing reform to enhance the country’s environmental resilience and sustainability.

Environmental Jurisprudence vis-a-vis Constitution of India, 1950
The evolution of ecological jurisprudence in India has been remarkable. The Indian Constitution is among the ninety constitutions worldwide that include specific legislation and provisions dedicated to the protection, promotion, and preservation of the natural environment. In addition to various progressive laws, the role of the Indian judiciary has been crucial. Presently, most environmental activities in India operate under Articles 32 and 226 of the Constitution of India, 1950. The judicial writing process is preferred over traditional litigation due to its simplicity, relative affordability, and direct access to the country’s highest courts. In environmental cases, the Supreme Court’s authority to issue directives under Article 32, alongside the high courts’ powers under Article 226, has gained significant importance.

Important Statutes dealing with Climate Change in India
India’s legislative landscape on environmental and climate issues is comprehensive, reflecting the nation’s commitment to sustainable development and ecological preservation. Key statutes have been enacted to address diverse aspects of environmental protection, from air and water quality to forest and wildlife conservation. These laws empower both Central and State governments to implement robust measures for mitigating pollution, conserving natural resources, and promoting energy efficiency. The following overview highlights the major legislative instruments that form the backbone of India’s environmental policy framework, each playing a critical role in addressing the multifaceted challenges posed by climate change.
The Environmental Protection Act, 1986 – It is a cornerstone of India’s legislative framework addressing climate change. This Act grants authority to both Central and State governments to achieve two primary objectives: enhancing environmental quality and preventing environmental pollution.

The Air Prevention and Control of Pollution Act, 1981 – It is pioneering legislation that empowers the State to regulate air pollutant emissions. It authorizes the State to inspect factories, evaluate control equipment, and oversee manufacturing processes to ensure compliance. Industries must adhere to the standards set forth in this Act to operate legally.

The National Green Tribunal Act, 2010 – It established the National Green Tribunal, tasked with expediting the resolution of environmental protection cases. These tribunals have jurisdiction over significant environmental issues, facilitating swift and effective legal recourse.

The Energy Conservation Act, 2001 – It provides a legal framework for promoting energy efficiency. It mandates the use of energy-efficient equipment and sets comprehensive guidelines for power development, aiming to reduce energy consumption and enhance sustainability.

The Forest Conservation Act, 1980 – It focuses on preserving India’s forests, designating them as government property. The Act requires compensatory measures for any diversion of forest land to non-forest purposes, ensuring continued forest conservation.

The Water Prevention and Control of Pollution Act, 1977 – It aims to prevent water pollution from agricultural, industrial, and domestic sources. It also regulates the cess on water consumption, promoting efficient water use and pollution control.

The Wildlife Protection Act, 2002 – It aims to safeguard India’s wildlife by establishing uniform legislation, creating a network of national parks and wildlife sanctuaries, and regulating the illegal trade of wildlife and its products.

Finally, the Biological Diversity Act, 2002 promotes the conservation and sustainable use of biodiversity. This Act supports equitable sharing of benefits arising from India’s biological resources, aligning with international biodiversity conservation goals.

National Action Plan on Climate Change, 2008
The National Action Plan on Climate Change (NAPCC), unveiled by the Indian Prime Minister on June 30, 2008, represents India’s strategic response to the profound challenges posed by climate change. This plan underscores the necessity of sustaining a high economic growth rate to improve living standards and mitigate vulnerability to climate impacts. Central to the NAPCC are eight National Missions: National Solar Mission, National Mission for Enhanced Energy Efficiency, National Mission on Sustainable Habitat, National Water Mission, National Mission for Sustaining the Himalayan Ecosystem, National Mission for a Green India, National Mission for Sustainable Agriculture, and National Mission on Strategic Knowledge for Climate Change. These missions collectively aim to promote understanding, adaptation, and mitigation of climate change, while enhancing energy efficiency and conserving natural resources.
The plan’s principles emphasize inclusive and sustainable development, ecological sustainability, efficient end-use demand management, extensive technology deployment for adaptation and mitigation, and innovative market and regulatory mechanisms. Each mission has specific objectives: for instance, the National Solar Mission seeks to establish India as a global leader in solar energy, and the National Mission for Enhanced Energy Efficiency aims to strengthen the energy efficiency market. The National Water Mission focuses on integrated water resource management to enhance water use efficiency, while the National Mission for a Green India aims at ecosystem services enhancement through increased forest cover. The comprehensive approach of NAPCC, involving various stakeholders and leveraging public-private partnerships, seeks to ensure India’s resilient and sustainable development in the face of climate change.
Landmark Cases on Climate Change in India
In 1992, in the case of M.C. Mehta vs. Union of India and Ors., the Hon’ble Supreme Court of India issued a landmark ruling addressing vehicular emissions within the country. A retired Supreme Court judge, along with three other members, was appointed to propose measures for controlling vehicle pollution on a national scale. Subsequent orders mandated the supply of lead-free petrol in India and the adoption of natural gas and other alternative fuels for vehicular use. Lead-free petrol was introduced in the four metropolitan cities beginning in April 1995. Additionally, all new cars registered from April 1995 onwards were required to be equipped with catalytic converters. Compressed Natural Gas (CNG) outlets were also established to provide CNG as a clean fuel in Delhi and other cities, complementing the implementation of Euro 2 standards.
In the case of Indian Council for Enviro-legal action etc. vs. Union of India & Ors., the Supreme Court of India was dealing with a case where in Rajasthan, at Bichhri, five small chemical factories owned by a single individual operated without effluent treatment plants. Consequently, toxic industrial effluents contaminated the groundwater, affecting 14 village wells. Following a six-year legal battle, the Supreme Court, in March 1996, issued a judgment mandating the closure of the factories. Additionally, the Court ordered the transfer of the polluter’s property to the Department of Environment and Forests, Government of India. The judgment also stipulated that the industries responsible for the environmental damage bear the costs of ecological restoration.
In the case of M.C. Mehta vs. Union of India a landmark judgment delivered by the Hon’ble Supreme Court of India established the principle of Absolute Liability. The court ruled that the fertilizer plant, being in close proximity to human dwellings, could not be permitted to operate a hazardous industry near a populated area and ordered its relocation. The principle of deep pockets was also articulated in this case. This judgment signified a period of significant legislative advancement in India. The Parliament subsequently amended the Factories Act, 1948, incorporating sections from the judgment nearly verbatim. Additionally, the Public Liability Insurance Act was enacted, and the Emission Control Abatement Scheme was implemented. The Environmental Protection Act and the Policy for the Abatement of Pollution Control were also established.

Urgency of the issue and the way forward
India’s National Action Plan on Climate Change (NAPCC) represents a commendable effort to address the multifaceted challenges posed by climate change. However, moving forward, several strategic enhancements can further strengthen this framework. Firstly, there should be an increased emphasis on integrating local communities in the decision-making process. Empowering local stakeholders ensures that adaptation and mitigation strategies are culturally appropriate and more effectively implemented.
Additionally, expanding public-private partnerships can accelerate technological innovation and dissemination. By incentivizing private sector investments in green technologies, India can harness cutting-edge solutions to reduce carbon emissions and enhance energy efficiency. The government could introduce tax breaks and subsidies for businesses that pioneer sustainable practices, thereby fostering an environment conducive to eco-friendly innovation.
Moreover, enhancing data collection and sharing mechanisms is crucial. Establishing comprehensive and accessible climate data repositories will facilitate informed policy-making and enable precise tracking of progress towards climate goals. This data-driven approach can identify areas needing urgent attention and measure the effectiveness of implemented policies.
Finally, continuous education and awareness programs are essential to cultivate a climate-conscious populace. Incorporating climate education into the national curriculum and conducting regular public awareness campaigns can drive behavioral changes necessary for long-term sustainability. By adopting these forward-thinking strategies, India can bolster its climate resilience and ensure that its development trajectory remains sustainable and inclusive.

Conclusion
In conclusion, India’s legal response to climate change reflects a dynamic interplay between legislative innovation, judicial oversight, and policy implementation. The evolution of ecological jurisprudence, underscored by landmark judgments and robust statutory frameworks, exemplifies India’s commitment to environmental stewardship amidst developmental imperatives. The National Action Plan on Climate Change (NAPCC) and pivotal legislative enactments, such as the Environmental Protection Act and related statutes, provide a comprehensive framework for mitigating environmental degradation and fostering sustainable development. However, as India navigates the complexities of climate change, enhancing stakeholder engagement, fostering technological innovation through public-private partnerships, improving data accessibility for evidence-based policymaking, and promoting widespread environmental literacy emerge as critical imperatives. By leveraging these strategic initiatives, India can bolster its resilience against climate risks while advancing a sustainable developmental agenda. This necessitates a concerted effort to balance economic growth with environmental integrity, ensuring that future generations inherit a habitable planet resilient to the challenges of a changing climate.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
Written by – Anurag Das

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