Unravelling the Concept of Constitutional morality in our Constitutional jurisprudence

The Semantics: The Indian Constitution is – ‘a living document’ as per the old saying and therefore, one can find a culture of Invention-ism while reading or interpreting the constitution. The term ‘constitutional morality’ is often invoked by the Supreme Court in India for striking down laws which could be termed as - manifestations of popular morality. But this term is not found in our Constitution. Nevertheless, we find mention of the word ‘morality’ in the Indian constitution at various places (Article 19, 25 and 26). Dr. B R Ambedkar used ‘Constitutional Morality’ multiple times in ‘Parliamentary debates.’

So why the need for Constitutional morality? While the concept of ‘basic structure’ tended to nullify the constitutional amendments which go against the fundamental spirit of the constitution, there was a need for an alternative jurisprudential concept that can be used to nullify ordinary legislations instead of using the ‘basic structure doctrine’, so as to avoid weakening the sanctity of the concept. This is not to say that only Constitutional amendments come under the purview of the basic structure doctrine, however, it is true that it applies mostly to such amendments!

The case of Navjet Singh Johar1 is a good example of the use of CM to decriminalize homosexuality by striking down Section 377 of the Indian Penal Code. The Supreme Court cited Bentham who opined that legislators should not be overly swayed by the society’s morality. In the words of the Supreme Court, “Hart avoided the specious generalization that the law must be severely quarantined from morality but still made it clear that laws like Section 377, which impose a majoritarian view of right and wrong upon a minority in order to protect societal cohesion, are jurisprudentially and democratically impermissible.” John Stuart Mill also made a strong argument against popular morality being codified into laws. The Supreme Court cited him saying, “as those who consider as an injury to themselves any conduct which they have a distaste for, cannot dictate the actions of others merely because such actions contradict their own beliefs or views.”

In the same case, the SC held that: “A person’s sexual orientation is intrinsic to their being. It is connected with their individuality, and identity. A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality.”

Constitutional Morality may not be just confined to striking down legislations. It may be stretched to apply upon executive actions. So, one may argue, theoretically, that if Article 21 of the Indian Constitution guarantees right to life, there exists a right with a migrant worker to go home in the current lockdown scenario and a corresponding duty of the government to not hinder it. If the government, has imposed a lockdown without providing means of food or transport for poor workers to return home, it has trumped their constitutional right. One may infer, therefore that Constitutional Morality may be an expression of ‘good governance practices’ and the government failing to adhere to it, has acted against Constitutional Morality.

While Constitutional Morality as a tool is used by the Supreme Court, and there is no denial of the fact of its existence, there is a greater divergence when it comes to what constitutes a Constitutional Morality? In the Sabarimala case2 , the majority opinion held that, the restriction imposed upon women in age group 10-50 years as flying in the face of CM while the lone dissenting opinion of Justice Indu Malhotra found that the “Constitutional morality will require that every single individual would have the right to his own faith and nobody can interfere with it, the courts cannot interfere with what is the matter of faith”. So is the case with popular morality, CM may also vary based on individual perceptions of the Judges. So what is the element of permanence? This grey area has been used by critics of CM to vehemently oppose CM as a jurisprudential concept. Specifically, originalists (who believe in literal interpretation of constitution) subscribe to this trend.

In this context, it is worthwhile to mention the criticism of Attorney General K. K. Venugopal who views CM as a “dangerous weapon”. Venugopal’s opinion may be relevant when judges have their own personal predilections and this shapes their own conceptions of CM but when objectively applied, the concept of CM may not be dangerous. What remains problematic and which also gives a room to critics to feed their version, is the lack of literature and clarity on the concept of CM. While the basic structure as a concept was empathetically discussed at length, in the Kesavanada Bharathi case, no constitutional case has so far tried to unravel the mystery and vagueness surrounding the concept of constitutional morality. A jurisprudential analysis is the need of the hour when judges will see CM not just as a tool to nullify a particular legislation or executive practice but to establish it in the vocabulary of constitutional law as a philosophical concept having a specific meaning and scope.

We will have to wait, to have a conclusive opinion regarding various facets of CM.



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Seat and Venue of Arbitration

The seat of arbitration is of utmost importance in an arbitration agreement/law. The choice of the seat of arbitration leads to a lot of significant legal consequences in an arbitration matter. ‘Place of arbitration’ per se has not been defined in the Arbitration and Conciliation Act, 1996 (“Act”). Section 20 provides that place of arbitration can either be decided by the parties or the Tribunal and notwithstanding such determination, arbitration hearings can be held at a mutually agreed place of arbitration. The question of applicability of provisions of Part I of the Arbitration and Conciliation Act, 1996 to the International Commercial Arbitrations held outside India has time and again come up before the Supreme Court and various High Courts.

In the case of Bhatia International v. Bulk Trading S.A. & Anr , 3 the parties had entered into a contract wherein the arbitration clause provided that the arbitration was to be governed by therules of the International Chamber of Commerce (“ICC”). After there was a dispute, the respondents initiated proceedings under the ICC rules along with a Section 9 application seeking an injunction against the appellants to prevent them from alienating their business assets and properties. Both the High Court and the District courts held that even though the ‘place of arbitration’ was outside India, the Indian courts will still have jurisdiction to entertain the petition. The contention of the appellants was simply that, since the proceedings took place outside of India, Part I of the Act will not apply. What should have been contented for the sake of conceptual clarity was that the expression “place” used in Section 2(2) of the Act connotes “seat” and not merely the “venue” of the arbitration. The Supreme Court upheld this but the decision was eventually overruled by a constitution bench judgment in Bharat Aluminum Company v. Kaiser Aluminum Technical Services Inc.4 This judgment was made applicable only prospectively and all agreements entered before 6th September, 2012 were governed by the Bhatia judgment which had settled the question of applicability of the provisions of Part I of the 1996 Act to International Commercial Arbitrations held outside India, by holding that the 1996 Act shall be applicable to all arbitrations, including those held outside of India.

In the Balco judgment, the Supreme Court held that a seat of arbitration is of paramount importance and as the Act is governed by the UNCITRAL Model law, the territorial principle recognized the same should apply to any arbitration agreement. It was further held that Section 2(1)(e) of the Act defining ‘court’ confers jurisdiction on two courts i.e. the court where the cause of action arises and the court where arbitration takes place. In Balco, which was a case of an international commercial arbitration with London as the chosen seat of arbitration, the Apex Court held that Part I will not apply and courts in India will have no jurisdiction to entertain a petition under Section 9 of the Act. The court further held that since the seat of arbitration is in London, all the English laws will apply to the agreement. The Supreme Court also interpreted the word “place” to mean “seat” or “venue” depending on the section in which the word was used. The Court observed that the section has to be interpreted to mean that only when the seat/place of arbitration is in India, will Part I apply, restoring the distinction between “seat” and “venue”.

In 2015, there were certain crucial amendments to the Act. Section 2 (2) came to be amended with a proviso which stated that unless agreed to the contrary, Sections 9, 27, 37 (1) (a) and 37 (3) will also apply to an International Commercial Arbitration even if the place was outside India. This led to a slight dilution of the BALCO judgment.

Post Balco, another conundrum was with respect to the seat and venue of arbitration. In UOI v. Hardy Exploration and Production (India) Inc.,5 (2018), the venue chosen by the parties for arbitration proceedings was Kuala Lampur and it wasn’t the seat of arbitration. Hence, the Apex Court held that Part I of the Act will apply to this agreement and courts in India will have jurisdiction to entertain the petition. The Supreme Court held that the “venue” of arbitration need not be the juridical seat, unless there are ‘concomitant factors’ which indicate that the parties intended for the venue to also be the seat.

Contrary to this in BGS-SGS SOMA-JV v. NHPC Ltd,6 the Supreme Court overruled the Hardy exploration judgment as it failed to uphold that a venue of arbitration is the juridical seat, in the absence of any significant contrary scenario. It allowed a foreign award to be challenged under Section 34 of the Act and hence it lead to the undoing of any progress made post Balco. The SC held that unless expressly stated otherwise or an alternative venue expressly agreed upon, the venue of the arbitration proceedings, will conclusively stand as the seat of arbitration and hence in this particular judgment it was held that New Delhi will have the jurisdiction to entertain the petition challenging the award.

Hence, it needs to be noted that the curial law in an arbitration agreement is of grave importance and to determine it, the seat of arbitration needs to be carefully decided between the parties. Although the definition of “seat” has had various interpretations in the judgements stated above, the BGS judgment did clear the haze which enveloped the ‘seat’ jurisprudence in Indian arbitration. To that extent, the judgment is indeed a step towards an arbitration-friendly regime.

3(2002)4 SCC 105

4(2012) 9 SCC 552

5Civil Appeal No. 4628 of 2018, arising out of SLP © No. 31356 of 2016)

62019 SCC Online SC 1585

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Evidence of usage of Trademarks

The registration of a trademark provides prima facie rights to its ownership, however this does not take away the rights of an unregistered proprietor of a trademark, if such unregistered trademark has prior use. The rights of the prior user and adopter of a trademark has always been given importance under the trademark jurisprudence, so much so, that a registered proprietor cannot interrupt the usage of a prior unregistered trademark which has been in use for a considerable period of time. Due to this pedestal given to the prior user of trademarks in a plethora of judgments, it becomes imperative that usage of a trademark is claimed by the applicant before the trademark registry, with proper evidence corroborating such a usage.

The evidence pertaining to the usage of a trademark is produced to showcase a continuous use of the trademark on the goods or services from a date from which such use is claimed. The evidence of usage of a trademark can be on the goods itself or in relation to the goods/ services. In the former, evidence is produced by showcasing the sale of the goods bearing such a trademark. In other words, the sale of the goods bearing such a trademark in the form of sales invoices, customer feedbacks, sales figures showcase a continuous use of the mark. In the latter, the Supreme Court of India, in Hardie Trading Vs. Addision paint and Chemicals (2003 Supp(3) SCR 686) stated, “to the use of the mark in relation to the goods shall be construed as a reference to the use of the mark upon, or in any physical or in any other relation whatsoever, to such goods.” Therefore, this use can be shown in the form of promotional materials, newspaper clippings, advertisements, etc., which are undertaken by the proprietor to build a reputation and goodwill associated with the trademark. It also showcases that there is an awareness about the proprietor amongst the consumers who associate the mark with the proprietor alone.

Although, there is no exhaustive list that constitutes evidence of use of a trademark, there is a mention of various aspects and evidences of usage that are taken into consideration by the examiner for assessing the distinctiveness of a trademark, in the Trade Marks Manual on Practice and Procedures. A reference has been made to the ECJ’s judgement in the case of Windsurfing Chiemsee (C108&109/97) [1999] ETMR 585, wherein the following aspects were taken into consideration to assess the distinctiveness of a trademark based on usage:

a) the market share held by the mark;

b) how intensive, geographically widespread and long-standing the use of the mark has been;

c) the amount of money invested by the undertaking in promoting the mark;

d) the proportion of the relevant class of persons who, because of the mark, identify goods/ services as those originating from a particular undertaking;

e) statements from Chambers of Commerce and Industry or other trade and professional associations.

The above aspects have been referred to by the Indian Trade Marks Registry in the Manual, and evidence of use by submitting such information/ documents always favours the Applicant. Further, the Trade Marks Registry has also mentioned that the turnover, advertising expenses and period of use from the evidence of usage are considered together to assess the distinctiveness of a trademark. The Registry has further laid emphasis on the fact of continuous usage of the trademark without any gaps in between, and if there are any gaps in between such a usage, then it may affect the rights of the proprietor.

It is usually advised that as much evidence of usage as possible must be produced, however, the turnover of sales, profits earned by the sales, sales figures, sales invoices, along with the evidence of advertisements and promotions of the trademark along with the costs spent on the same are important evidences of usage that a proprietor must refrain from omitting, while submitting an Affidavit for usage of a trademark.

At the same time, it is important to mention that evidence of use is to be produced before the Trade Marks Registry only by an unregistered proprietor. If the proprietor is registered, he has prima facie right over the mark and need not prove usage unless same is disputed.

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Jurisdiction for filing Trademark Infringement cases

A Court can exercise its power within a territorial/ geographical limit. For example, a District Court can exercise its power within the territorial limits of a district, a High Court can exercise its power within a state that comprises a plurality of districts and the Supreme Court can exercise its power within the whole country. This territorial limitation is referred to as the territorial jurisdiction of a Court.

There is also another hierarchy of Courts based on the value of the claim made in a case. This is called its pecuniary jurisdiction. Still further, recently, the Commercial Courts were introduced. These Courts exercise jurisdiction when the case relates to commercial matters, such as IPR matters. There are other Courts that take up specialised matters. For instance, Family Courts which exercise jurisdiction in matrimonial matters and maritime Courts that act in Maritime matters. In all these cases, the territorial jurisdiction is determined in accordance with Section 20 of the Code of Civil Procedure, 1908. Under the general law, territorial jurisdiction is determined on the basis of the following:

• The place where the defendant resides;

• The place where the defendant carries out business; or works for gain; or

• The place where at least a portion of the cause of action arises.

Therefore, ordinarily, barring the cause of action, the plaintiff is required to select a Court which is convenient to the defendant. Particularly if the Plaintiff does not reside or work for gain in the Defendant’s jurisdiction, this provision of the law, may act as a deterrent on the Plaintiff in taking legal action.

Trademarks are a form of intellectual property and a proprietor of a trademark applies the mark to his/ her goods or services, so that consumers can distinguish the proprietor’s goods or services from those of other proprietors. At the same time, different trademarks can also be used by the same owner to distinguish one of its products from another. For instance, HUL uses the mark ‘Lux’ for one type of soap and ‘Lifebuoy’ for another type of soap. An owner can protect its trademark by trademark registration under the provisions of the Trade Marks Act, 1999. Violation of a registered trademark by a third party goes by the technical term ‘infringement’ and if a trademark is registered the owner enjoys some special benefits. Convenience of jurisdiction is one such special benefit. The Trade Mark Act specifically provides that an infringement action, whatever may be the value claimed, must be filed only in a District Court. Therefore, the pecuniary jurisdiction of the Court, is not taken into consideration in a trademark matter. Another, special privilege given to the proprietor of a registered trademark is that, in the case of an infringement of his/ her trademark, Section 134 (2) of the Act, gives the registered proprietor, the right to file an infringement case, within the territorial limits of the Court, in which the trademark proprietor resides or works for gain. In the case of a company, this generally means the location of its registered office or its principal place of business. Of course, the normal territorial jurisdiction laid down under Section 20 of CPC, is also available.

In a recent case at the Delhi High Court, Hindustan Times (“HT”), a leading national news broadcasting agency, found an entity in New York infringing upon its trademark rights by using the domain name www.hindustan.com which HT had already registered as a trademark in India. The Court exercised extra-territorial jurisdiction over the defendant based in New York and granted an injunction against its use of the domain name www.hindustan.com. The defendant had filed a declaration suit in New York for declaration of non-infringement. However, the Delhi High Court stated that since the trademarks were registered in India, the New York District Court did not have jurisdiction over the matter, and also granted an anti-suit injunction against the defendant from pursuing the suit in New York.

In another case7 , HT sued a domain registrant at the Delhi High Court for violating its copyright by using its content on the infringing website without giving due credit to HT. It was difficult to identify or track the registrant of this infringing website as it was located outside India. However, the Delhi High Court passed an order of injunction directing the servers hosting the website to block its access. These cases clearly show us that intellectual property protection cannot be restricted to a particular area or geographical limit. Moreover, violation can take place at multiple locations at the same time. Thus, the burden is upon the rightful proprietors of trademarks to sue them at different locations all over the world. Section 134 relaxes this burden.

The Supreme Court of India in Indian Performing Rights Society Limited v Sanjay Dalia8 , and the Delhi High Court in Burger King Corporation v Techchand Shewakramani9 , explained that the provisions of Section 134 of the Trade Marks Act are in addition to Section 20 of the Civil Procedure Code.

As a final word of caution, Section 134 can also be used, as a weapon by a registered trademark proprietor to drag a Defendant to a location which may be inconvenient to the Defendant. However, the Courts in their wisdom, have always decided to prevent such an abuse of the law.

7HT Media Limited & Anr. v. WWW.THEWORLDNEWS.NET & ORS. CS (COMM) 321/2019

8CIVIL APPEAL NOS.10643-10644 OF 2010

9CS (COMM) 919/2016 & CC(COMM) 122/2017

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Tips For Conducting Successful Trials

" We have forgotten, in our obsession with interim applications, that trial is the single most daunting challenge before any lawyer " 10

Justice Gautam S. Patel

This is a brief commentary about handling trials successfully and doing justice to the brief on behalf of a client.

Upon being entrusted with the papers and after obtaining the client’s instructions, it is important to analyse the pros and cons of the case, study the law on the subject, research on the case laws relating to the issues arising and mentally formulate an overall strategy for the eventual success as well as the steps in detail needed to achieve it. In case of a plaint, same should be drafted by stating the facts chronologically, referring / annexing documents wherever applicable and making out a case for grant of reliefs by structuring the pleadings to suit the law on the subject. Lastly, the prayers, both final and interim, need to be drafted aptly. The Plaintiff is also entitled to file an application for interim reliefs along with the plaint. These applications are heard separately.

Before drafting a written statement, once again, a formulation of the overall strategy for success is to be chalked out. The defence of the Defendant should ideally be narrated in a chronological manner by referring to documents wherever applicable. Once the narration of the facts is completed, para-wise rebuttals of all the averments and allegations made by the Plaintiff must necessarily be made including the minute details of contentious and disputed averments which could later on arise as one of the issues to be framed in the matter.

The Hon’ble Supreme Court in the matter of Balraj Taneja (supra) & Anr. vs Sunil Madan & Anr.11 has analysed the provisions of Order 8 (Written Statement) of Code of Civil Procedure, 190812 and held that the Defendant in its Written Statement ought to specifically deal with and explain the circumstances according to which the Plaintiff would be disentitled to reliefs. It further held that mere denial would be insufficient.

Once the pleadings stage of the matter is concluded, the next stage is that of filing of documents by both sides and a statement of admission and denial of the documents. This statement of admissions and denials should contain the admission or denial of any document in relation to both its receipt as well as its contents. Thereafter, if there is any doubt about the genuineness of any document filed by the opponent, inspection of the original of same can be prayed for. Once this stage of admission and denial of documents and inspection and discovery is over, issues for determination are to be framed by the Court. Under Order 14, Rule 1 of the CPC, once the issues are framed, the trial is said to have started.

The next stage is the filing of affidavits of evidence of the Plaintiff’s witnesses. The judgment of the Hon’ble Bombay High Court in Shamrao Vishnu Kunjir v Suresh Vishnu Kunjir13 is lucid as it sets out the manner in which a proper affidavit of evidence should be drafted. The affidavit should be restricted to the pleadings already in the plaint in so far as they relate to personal or documentary knowledge of the witness. It is important to note that in case any averment is made in the affidavit which is either outside the pleadings, or is in the form of submissions or not relevant to the issues framed, the same is liable to be struck off / expunged as held by the Bombay High Court in some of its judgments in the matters of Late Shri Rajendra Singh, Chhatrasal Singh Kushwaha v Mr. Jitendra Singh Rajendra Singh Kushwaha14 and Harish Loyalka vs Dileep Nevatia & Ors.15 .

The witnesses of the Plaintiff are then to be cross-examined by the Defendant. The purpose of cross-examination is, on a whole, to impeach the credibility of the witness. The Hon’ble Supreme Court in the matter of Laxmibai (Dead) through Lrs. & Anr. vs. Bhagwantbuva & Anr. through Lrs. & Ors.16has held that if a party wishes to raise any doubt as to the correctness of the statement of a witness, said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being true. It is further held that, without the above referred procedure it is not possible to impeach the witness’s credibility. It is held that the opposing party is permitted to test the veracity of the witness and thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts with regards to the same, in the absence of questions put to him with respect to the circumstances which indicates that the version of events provided by him is not fit to be believed, and the witness himself, is unworthy of credit. Further, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box to give a full and proper explanation.

The same is essential to ensure fair play and fairness in dealing with witnesses. It is important to note that the witness must be cross-examined on all points in his affidavit as, in the absence of cross-examination on any points mentioned in his affidavit, those issues in respect of which a witness does not get cross-examined stand proven. The importance of cross-examination of the opponent’s witness can never be overstated. It is the core of any matter which can decide the fate of the matter. In this context, the quote appearing at the top of this piece which forms a part of the ratio laid down by the Bombay High Court inSulochana Dinanath Tarkar & Ors. vs. Anil Dinanath Tarkar & Ors.17 is useful. The Court held that it is not simply a matter of shooting out questions without regard to how those questions are worded or what is that is being suggested. A skilled cross-examiner is always cautious when he “puts” something to a witness, because when he does so, he takes the burden of proving what he suggests; and that suggestion must be rooted in the client’s pleadings. The High Court has gone on to hold that the cross-examination of the witness in that case was a perfect example of what a cross-examination should not be. The High Court has gone on to quote the questions and on those basis held that the questions destroy the Defendant's cause in that case beyond any hope of redemption and said cross-examination utterly destroys the case of the Defendant. In so far as the evidence of the Defendant is concerned, a similar procedure regarding filing of affidavit of evidence and the cross-examination is to be followed.

Once the evidence of both sides is completed, the Suit is thereafter to be heard finally based on the oral and documentary evidence on record. The final stage is the passing of the judgment by the learned Trial Judge. At this stage, the Judge is required to restrict his judgment only to the pleadings, the oral and documentary evidence on record and case laws on the issue at hand and his judgment has to answer all the issues before him. Lastly, the Judge has to either decree the Suit (wholly or partly) or dismiss the Suit.

Though it cannot be said that following the tips narrated above will guarantee success in each matter, it certainly can be said that it goes a long way in increasing the chances of succeeding in a matter.

10para 20 in Sulochana Dinanath Tarkar & Ors. vs. Anil Dinanath Tarkar & Ors 2019 (3) BomCR 168

11(1999) 8 SCC 396


13AIR 2005 Bom 294

142013 (6) Mh.L.J. 802

152014(4) ABR 545

16(2013) 4 SCC 97

172019 (3) BomCR 168

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Hidden Meanings in Trademarks

Being into Intellectual Property Practice or having come in touch with the WIPO while protecting one’s IP we have all come across its simplistic logo . This logo does look like a typical minimalistic corporate logo, but actually has a lot of hidden elements in it. There is a lot of “intellectual property” and “innovation” put into it. WIPO’s Official Website says, the “logo reflects the Organization’s dynamism and innovative spirit”

The colour blue links the Organization with the United Nations. Also, note that there are 7 curved lines. These represent the seven elements of IP, as set out in the WIPO Convention:

• literary, artistic and scientific works,

• performances of performing artists, phonograms, and broadcasts,

• inventions in all fields of human endeavour,

• scientific discoveries,

• industrial designs,

• trademarks, service marks, and commercial names and designations,

• protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

With globalisation comes inclusiveness. The curve in the 7 lines represents WIPO’s idea of being inclusiveness welcoming different perspectives.

Courtesy: WIPO Official Website: https://www.wipo.int/pressroom/en/articles/2010/article_0011.html

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