The usage of Drones in India is catching up with that in other nations and gaining considerable momentum. India does not have a specific Act on Drones. However, Aircraft Act 1934 is the basic Act governing all the matters relating to civil aviation. Aircraft Act 1934 was amended recently in the year 2000 which is known as The Aircraft Amendment Act 2020. The Central Government therefore in exercise of the powers conferred by n 5, sub-section (2) of section 10 and sections 10A, 10B and 12A of the Aircraft Act, 1934 (22 of 1934), has made the ‘Drone Rules 2021’.
Section 2 of the Drone Rules 2021 defines:
‘Drone’ as an unmanned aircraft system.
‘Unmanned Aircraft system’ means an aircraft that can operate autonomously or can be operated remotely without a pilot on board.
The unmanned aircraft shall be categorised into the following three categories namely:
The classification of Drones is based on the maximum all-up weight including payload. They are classified as follows:
No person is allowed under the law to use and operate Drones without any valid license or certification from the Director General of Civil Aviation.
The Director General of civil Aviation under the Ministry of Civil Aviation or any entity authorised by the Director General may issue a certificate for operating Drones known as ‘Type Certificate’.
Any person willing to obtain a type certificate shall make an application on the form D-1 on the digital sky platform along with payment of prescribed fee and supporting documents. Also, the Drone shall be physically handed over to the Quality council of India which is the authorised testing entity of the Drones.
The Director General of civil aviation on satisfying itself with the report of the Testing Agency and other eligibility conditions shall issue a type certificate to the applicant.
There is no need to obtain a Type Certificate for the following types of Drones:
The Drones can be Imported to India and the process of Import shall be regulated by The Director General of civil Aviation under the Ministry of Civil Aviation or any entity authorised by the Director General.
The Registration of a Drone shall be done on the digital sky platform of Director General of Civil Aviation website. A unique identification number is allotted to each Drone on successful Registration.
The following steps are to be followed for obtaining certificate of Manufacture and Airworthiness (CMA)
The Airspace of India is divided into 3 zones for the purpose of operation of Drones. They are:
The Airspace map for Drone operations is so designed as to be programmatically accessible through a machine-readable Application Programming Interface and interactive so that unmanned aircraft system pilots shall be able to plot their proposed flight plan and easily identify the zone within which it falls so as to assess whether or not they need to make an application for prior approval. The Central Government from time to time update the changes related to status of an area within different zones of the airspace map on digital sky platform.
It is not required to take any permission to operate Drones in a Green Zone with an all-up weight up to 500kgs. However, the operation of drones in Red or Yellow zones requires the permission of operation from the nearest Air Traffic Controller authorities like the Indian Air Force, Airports Authority of India, Indian Navy, Hindustan Aeronautics Limited as the case may and Central Government or any entity authorized by the Central Government.
A Drone shall not be operated by any person other than a holder of a valid remote pilot licence enlisted on the digital sky platform.
An individual shall be eligible to obtain a remote pilot licence, if he–– (a) is not less than eighteen years of age and not more than sixty-five years of age; (b) has passed the class tenth examination or its equivalent from a recognised Board; and (c) has successfully completed such training as may be specified by the Director General, from any authorised remote pilot training organisation.
No remote pilot license shall be required for –– (a) operating a nano unmanned aircraft system; and (b) operating a micro unmanned aircraft system for non-commercial purposes.
With the introduction of the Drone Rules 2021, the Central Government’s initiative to promote Drone Industry is visible, however, it needs more liberalisation of policy to compete with international manufacturers and operators.
The Indian Space programme started in the year 1962 with setting up of Indian National Committee on space research (INCOSPAR) by the Father of the Indian space programme i.e., Dr. Vikram Sarabhai. Subsequently with the increasing space activities globally as a result of Cold War India became signatory to the under mentioned International treaties:
Further, the space activities in India have been governed by the Department of space which is headed by the Prime Minister of India.
India does not have any specific act on space, though it has got one of the biggest space organizations in the world i.e ISRO. The reason for not having a specific act till now is as follows:
However, with the increasing potential of the space programme, the willingness of the private sector to invest in India’s outer space, and with increasing missions to the moon and Mars, there has been a radical change in the Indian Space programme. The Space Activities Bill 2017 was introduced by the Indian Government to make a change in terms of the space policies of India. The draft bill has completed public and legal consultation and it has now been sent for further approvals.
ISRO was previously the Indian National Committee for Space Research (INCOSPAR). Indian Space Research Organisation (ISRO) is the space agency of India. The organization is involved in science, engineering, and technology to harvest the benefits of outer space for India and mankind. ISRO is a major constituent of the Department of Space (DOS), Government of India. The department executes the Indian Space Programme Primarily through various under-mentioned Centres or units within ISRO.
IN-SPACe (Indian National Space Promotion and Authorisation Centre) is a single-window nodal agency established to boost the commercialization of Indian space activities.
ANTRIX
As the commercial and marketing arm of ISRO, Antrix is engaged in providing Space products and services to international customers worldwide.
NSIL (New Space India Limited)
NSIL is the commercial arm of the Indian Space Research Organisation (ISRO) with the primary responsibility of enabling Indian industries to take up high-technology space-related activities and is also responsible for the promotion and commercial exploitation of the products and services emanating from the Indian space program.
In the absence of any specific act on Space Indian space program is guided by the Rules made by the Department of Space along with related legislation and regulations of the Government of India. In addition, policies such as Remote Sensing Data Policy, SATCOM policy, Mapping policy, etc provide the relevant policy guidelines.
Authored by Venkatesh ANS, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat
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FinTech is the combination of the terms ‘Technology’ and ‘Finance’. FinTech pertains to facilitation of Traditional Financial Services through advanced Technology methods. There is no single definition of the term ‘Fin Tech’. However, The Financial Stability Board (FSB) under the aegis of Bureau of Indian Standards defines FinTech as “Technology-enabled innovation in financial services that could result in new business models, applications, processes or products with an associated material effect on the provision of the financial services”. FinTech has now become essential to various sectors like Education, Retail, Insurance, Agriculture, Investment etc. Also, new technologies of Cryptocurrency and Bitcoin have made the Financial Technology Industry more important in the Economic Ecosystem. Some of the services offered by modern day Fintech Industry are:
The regulation of the FinTech Industry in India is largely disjoined due to the varied nature of goods and services provided by the Industry. Some of the examples of Regulatory Bodies in India are:
For Example: The FinTech Business related to Insuretechs, risk-free underwriting, on-the-spot purchasing related to various Insurance products are regulated by the Insurance Regulatory and Development Authority of India (IRDAI).
The legislations on FinTech in India encompass various laws that directly or indirectly impact the FinTech industry. The Insurance Act 1938 regulates the insurance sector in India and may impact FinTech companies offering insurance-related services. The Banking Regulation Act 1949 governs the functioning and regulation of banks in India, including those involved in FinTech activities. The Foreign Exchange Management Act (FEMA) 1999 controls foreign exchange transactions, which are relevant to FinTech companies engaged in cross-border activities. The Information Technology Act 2000 addresses legal issues related to electronic transactions and digital signatures, impacting the operations of FinTech companies. The Prevention of Money Laundering Act 2002 aims to prevent money laundering and terrorist financing, which affects FinTech firms handling financial transactions. The Competition Act 2002 ensures fair competition in the market and may have implications for FinTech companies. The Government Securities Act 2006 regulates government securities, which are relevant to FinTech firms dealing with securities. The Payment and Settlement Systems Act 2007 governs payment systems and includes provisions relevant to FinTech payment service providers. The Companies Act 2013 covers the incorporation, functioning, and governance of companies, including those operating in the FinTech sector. The Consumer Protection Act 2019 safeguards consumer rights, providing protection to users of FinTech services. It’s important to note that this list is not exhaustive, and there may be other legislations that impact the FinTech industry in India.
India has got various Tribunals as mentioned below to adjudicate on various matters related to FinTech and also to interpret various acts, rules and regulations on the subject.
Various Enforcement and Investigating Agencies are established under various acts to fight against various economic and FinTech crimes in India. Some of the premier Agencies are listed below:
FinTech Crimes are criminal activities that are carried out by Individuals or organizations to provide economic benefits through illegal methods. Although the FinTech industry always aims to disrupt current practices and do it fast, disruption can also create new opportunities for Fraud. The Regulators have noticed financial crimes related to the following:
For example, abusive activities have recently been identified as part of the video identification process and fraudsters were able to manipulate online job applications via the eBay platform so that the victims found themselves unknowingly in the middle of a bank account opening process. Thus, the applicants helped the fraudsters stay unrecognized and to misuse a newly opened bank account for money laundering activities.
It is to be noted that there exists no single window Legal redressal system to address FinTech Crimes in India. The nature and scope of Legal Redressal depends upon the Act/Regulation to it. The Financial sector is required to follow both generic norms related to the Information Technology Act 2000 as well as sesector-specificcts Every Legislation made on the subject does contain various provisions regarding Redressal of complaints and damages against FinTech crimes. Some of the examples of provisions contained to form such a Legal Redressal System against FinTech crimes are explained below:
Section 43A of the IT Act penalises body corporates who collect, process or store ‘sensitive personal data’, for being ‘negligent in implementation and maintaining reasonable security practices and procedures and thereby causing wrongful loss or wrongful gain to any person. The compensation payable under this section can be extended to five crore rupees.
The Act requires banking firms, financial institutions, and intermediaries to confirm the identification of clients, preserve records, and provide information to the Financial Intelligence Unit – India in a defined format (FIU-IND).
The Act attempts to regulate the activities of credit information companies and those notified as specified users of credit information.
The Foreign Exchange Management Act of 1999 (“FEMA”) and the rules and regulations issued thereunder control transactions involving foreign currency.
The Diversified nature of FinTech Transactions spreading over various industries and sometimes multi-industrial transactions make it difficult for the regulatory bodies to address and provide redressal systems to the rapidly growing FinTech crimes. Though there exists many Redressal mechanisms spread across various Acts, Regulations, and Rules it is felt that the current Redressal Systems are not adequate to curtail the rapidly growing FinTech crimes.
In order to enhance FinTech security, several recommendations have been proposed. One of the key areas of focus is the reformation of the Know Your Customer (KYC) process, taking into account the recent Supreme Court judgment on Aadhaar. This would ensure a more robust and secure customer identification process.
Another suggestion is the establishment of dedicated innovation teams within Public Sector Financial Services Companies. These teams would be responsible for fostering innovation and implementing secure FinTech solutions.
The use of Public Sector Blockchain for trade finance is also recommended, as it offers enhanced security and transparency in financial transactions. This technology can revolutionize the trade finance industry by reducing fraud and improving efficiency.
Re-engineering legal processes to adapt to the digital world is crucial for ensuring the security of FinTech transactions. This involves updating laws and regulations to address emerging challenges and protect the interests of users.
Promoting competitive neutrality in regulation is another recommendation. This means ensuring a level playing field for both traditional financial institutions and FinTech companies, preventing any undue advantage or disadvantage.
Regulation Technology (RegTech) is a key aspect of enhancing FinTech security. It involves leveraging technology to streamline regulatory compliance processes and improve oversight.
Greater coordination between various departments, regulatory bodies, and FinTech companies is vital. Collaboration and information-sharing can help identify and address security risks more effectively.
The sharing of valuable information on FinTech crimes among companies and regulatory bodies is also crucial. This can enable a proactive approach to combating financial crimes and enhancing security measures.
Implementing a Single Window System to address grievances related to FinTech crimes is recommended. This centralized system would provide a convenient and efficient platform for users to report and resolve any security-related issues.
To address data protection concerns in the financial sector, the formation of a Taskforce on data protection is suggested. This taskforce would focus on developing robust data protection frameworks and regulations.
Lastly, establishing Centers of Excellence in FinTech can foster research, innovation, and collaboration in the field. These centers would serve as hubs for knowledge-sharing and skill development, further strengthening FinTech security. By implementing these recommendations, the security of FinTech systems and transactions can be significantly enhanced, providing a safe and trustworthy environment for users and stakeholders.
Authored by Venkatesh ANS, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat
]]>Laws that are particular to a person and their religion are personal laws. It can be based on legislation or customary laws. Hindu personal laws are one of the most ancient laws that are prevalent in today’s era. On the other hand, the Muslim Personal Law 1937 Act in India passed in 1937. This Act deals with marriage, succession, and inheritance issues in Islam, but after the demarcation of Pakistan and India, both countries make their own personal laws. Pakistan makes its personal laws according to his religion and custom, while India practises the common civil code irrespective of its religion. Later, India makes drastic amendments to Hindu personal law and also extends its application to the followers of other religions too. The deep comparative analysis of personal laws among these is discussed below.
At first, through the Charter of 1753, the British gave both Hindus and Muslims freedom to practise their personal laws. It was clearly mentioned that there would be no interference from the British unless the two parties in a dispute willingly submitted to the jurisdiction of the court. In 1772, the Governor General of India, Warren Hastings, laid down that the laws of the Quran would be applied to Muslims and those of the Shastras to Hindus. After independence, Pakistan made the West Pakistan Muslim Personal Law (Shariah) Act, 1962, which deals with all questions regarding succession, marriage, property, divorce, dowry, guardianship, legitimacy, and many more, applicable only where the parties are Muslims. Under Hindu law, marriage is considered a sacrament. The Hindu Marriage Act of 1955 introduced the concepts of separation and divorce. Marriage was considered a sacrament. Further, in 1976, the Marriage Law Amendment Act expanded the grounds for divorce in Hindu marriage, extended the meaning of desertion, and gave minor girls the right to refuse their marriage. In 1956, the Hindu Succession Act was passed; the Hindu Minority and Guardianship Act and the Hindu Adoptions and Maintenance Act were enacted to cover other areas.[1]
Hindus personal laws are mainly found in: The “Shruti” contains all four Vedas, such as the Rig Veda, the Sama Veda, the Yajurva Veda, and the Athrva Veda. The “Smritis” are of three types: codes of Mnau, Yajnavalkya, and Narada personal laws and customs as recognised by statutory law by Hindus. These are applicable to legal issues related to matters of inheritance, succession, marriage, adoption, co-parenting, the partition of family property, the obligations of sons to pay their father’s debts, guardianship, maintenance, and religious and charitable donations.
These personal laws and customs are applied to all matters related to inheritance, wills, succession, dowry, legacies, divorce gifts, wakfs, guardianship, and preemption.
The Christian Marriage Act was enacted in 1972 in order to deal with different matters related to marriage. The Indian Divorce Act, enacted in 1869, contains matters related to divorce. Under the guidelines of this act, the husband can appeal for divorce on the grounds of adultery by the wife. Similarly, the wife has the right to appeal for divorce if her husband converted to another religion, married another woman, or was found guilty.
In Pakistan, a recent amendment regarding personal laws of minorities has been passed in 2020, namely “The Protection of the Rights of Religious Minorities Act, 2020.” In this act, the protection of minorities from forced conversion to religion, changes in their education curriculum, places of worship, and many other important rights are to be ensured. In India, the personal law amendment bill introduced in August 2018 regarding the amendments in personal laws related to the divorce act of 1869, the dissolution of Muslim marriage act of 1939, the special marriage act of 1954, the Hindu marriage act of 1955, and the Hindu adoptions and maintenance act of 1956, in which leprosy is no longer valid for separation, divorce, and maintenance.
In Pakistan, a recent amendment regarding personal laws of minorities has been passed in 2020, namely “The Protection of the Rights of Religious Minorities Act, 2020.” In this act, the protection of minorities from forced conversion to religion, changes in their education curriculum, places of worship, and many other important rights are to be ensured. In India, the personal law amendment bill introduced in August 2018 regarding the amendments in personal laws related to the divorce act of 1869, the dissolution of Muslim marriage act of 1939, the special marriage act of 1954, the Hindu marriage act of 1955, and the Hindu adoptions and maintenance act of 1956, in which leprosy is no longer valid for separation, divorce, and maintenance.
In Pakistan, a recent amendment regarding personal laws of minorities has been passed in 2020, namely “The Protection of the Rights of Religious Minorities Act, 2020.” In this act, the protection of minorities from forced conversion to religion, changes in their education curriculum, places of worship, and many other important rights are to be ensured. In India, the personal law amendment bill introduced in August 2018 regarding the amendments in personal laws related to the divorce act of 1869, the dissolution of Muslim marriage act of 1939, the special marriage act of 1954, the Hindu marriage act of 1955, and the Hindu adoptions and maintenance act of 1956, in which leprosy is no longer valid for separation, divorce, and maintenance,
|
Hindu laws |
Muslim laws |
|
Under the Hindu law, the practice of polygamy is abolished |
In Muslim law, the practice of polygamy is present under the law |
|
Adoption is there under the Hindu law |
Adoption is not there under the Muslim law |
|
Under the Hindu law, there is concept of separate and ancestral property |
under the Muslim law, there is joint and single property |
|
Hindu law is governed by the Hindu succession act, 1956 |
Muslim law is governed by Muslim shariat act, 1937[2] |
In conclusion, personal laws play an important role in differentiating people according to their religious and customary rights. Every country and its people have their own personal laws. The most important personal laws in Hinduism are the Hindu Marriage Act of 1955 and the Hindu Adoptions and Maintenance Act of 1956, and in Muslimism, the Muslim Personal Law is the most important personal law.
[1] https://www.ipf.org.in/encyc/2020/11/13/2_02_27_53_History-of-Personal-Laws-in-India-Papers_1.pdf
[2] https://blog.ipleaders.in/comparative-analysis-personal-laws-reference-india-pakistan-bangladesh/
Authored by Yasir Gill, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
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The rule of law simply means supremacy of law, equity before law, and predominance of the legal spirit. Every successful country is only based on its administration of the rule of law. The country, with its absence or inadequate rule of law, bears the economic and other crises. As Pakistan is the worst country in the South Asian region in terms of implementation of the rule of law, according to the World Justice Project’s (WJP) rule of law index, Pakistan ranked 129 out of 140 in 2021 surveys, and in the recent index, it fell further to 137, which is much comparatively low compared to its neighbour India, which ranked 77 out of 140.[1]
According to Professor A.V. Dicey The rule of law is the absolute supremacy or superiority of the regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness.
The rule of law has been derived from the French phrase “le principe de legalite,” i.e., government based on the principles of law. No one is above the law.
Incompetent people in power are the big challenge to keeping the rule of law administered properly. Since independence until now, Pakistan has faced leadership crises, proper reforms in laws, and their implementation. Lack of legal education and public legal awareness among the citizens becomes the major challenge to the rule of law in India and Pakistan. Due to a lack of these elements, Pakistan ranks 137 out of 140 countries. On the other hand, India faced challenges in protecting the rights of minorities and raising public awareness regarding their fundamental rights provided by the constitution.
Pakistan does not meet most of the requirements of the rule of law; things may be improving, but at a very slow pace. Pakistan does not meet the following requirements:
The law must be accessible and, as far as possible, understandable, clear, and predictable. Unfortunately, this rule of law requirement is not met in Pakistan. The laws in Pakistan lack clarity. They are still couched in the colonial English system, and their sentence structure is hard to grasp even for a lawyer.
Another requirement of the rule of law is that there should be an independent judiciary. When people talk about an independent judiciary, they often refer to the higher judiciary, i.e. the High Courts and the Supreme Court. However, our analysis will also include the lower judiciary. I believe, and statistics and social experiments also tell us, that there is no independent judiciary in Pakistan. Montesquieu says that any punishment that does not arise from absolute necessity is tyrannical. Unfortunately, our courts have become instruments of tyranny instead of guardians of the rights of the weak against the powerful.
Another aspect of the rule of law is that means must be provided for resolution without undue cost or delay. All case reduction principles, i.e., case management, cost award, ADR, etc., exist only on paper and not in practice, so I will end this paragraph with a common expression prevalent among litigants in our culture, which is: “God save us from two things: courts and hospitals.”
Yes, the rule of law is quite better in India than Pakistan. According to the 2021 World Justice Project Index report, Pakistan ranks 129 out of 140 countries in rule of law, while India ranks 79. In the recent WJP report, Pakistan performs badly in protecting the rule of law and ranks 137, while India makes progress and stands at 77. Recent events such as the illegal detention of Senator Azam Sawati, MNA Shahbaz Gill, and other senior journalists became the main reason for the downfall of Pakistan’s rule of law worldwide. Another reason is the following:
The rule of law is the foundation on which the United Nations is built. It is the basis of peace and stability on the international stage. All states in the General Assembly have an obligation to comply with the Charter of the United Nations and the wider body of international law. All member states are expected to be subject to these laws, apply them in their international relations, and be equal before them. The work to ensure this basic principle is the essence of our work to promote the rule of law at the international level.
The United Nations also promotes the rule of law in member states by supporting the development of norms, social practices, and institutions that ensure the independence of the main administrative institutions. This strengthens the decision-making processes to which political leaders are subject by limiting the arbitrary exercise of political power. This is particularly important in post-conflict situations to consolidate and build on a political settlement.
It is also important to consider how the rule of law reaches far beyond laws and courts. By enforcing the rule of law, which is equally applicable to all without discrimination, the rule of law provides political and economic opportunities for all members of society. It empowers people by giving them the right to access public services, thereby holding state entities accountable for providing those services. The rule of law also strengthens mechanisms that promote and protect universal human rights. As such, strengthening the rule of law creates both opportunity and justice and ultimately helps create better conditions for broader state and UN accountability.
As a result of our detailed analysis, we concluded that no country can progress through ignorance of the rule of law. The rule of law provides equal opportunities for all members of society. The rule of law has great importance at the international level. The United Nations (UN) is only successful in keeping the rule of law. But Pakistan is performing badly in abiding by the rule of law. The challenges that Pakistan is facing, i.e., incompetent people in power, lack of proper reforms in the law, slow and prolonged trials, lack of legal awareness among the public, and absence of transparency in justice, become the main reasons for the absence of the rule of law. On the other hand, India and other neighbours perform well in ensuring transparency in the rule of law, which is why they are good at international ranking.
https://storyofpakistan.com/rule-of-law/
https://www.britannica.com/topic/rule-of-law/Challenges-to-the-rule-of-law
https://www.ijlmh.com/paper/rule-of-law-a-comparative-analysis-of-india-and-pakistan/#
[1] https://worldjusticeproject.org/rule-of-law-index/country/2022/Pakistan/Order%20and%20Security/
[2] https://blog.ipleaders.in/rule-of-law-2/#Rule_of_law_in_India
[3] https://byjus.com/free-ias-prep/rule-of-law-upsc-notes/
[4] https://worldjusticeproject.org/our-work/wjp-rule-law-index/special-reports/rule-law-pakistan
Authored by Yasir Gill, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
]]>Public opinion on LGBT politics is complex. In June 2013, the Pew Research Center reported that of the 39 countries surveyed, Pakistan was one of the least accepting of homosexuality, with 87% of respondents saying “society should not accept homosexuality.” It is a criminal act and is punishable under Article 377 CR.PC.
Punishment: from two years to life imprisonment, a fine, or both. Hudood regulations, which theoretically allow the death penalty but have not been enforced since 1985, have never been used to prosecute homosexual acts.
In 2018, Pakistan passed a bill to protect the rights of transgender people, which was largely opposed by the public because of the misconception that transgender people have LGBTQ rights. There is a difference between them because a transgender person is transgender by birth, while LGBTQ people of the same gender change their gender according to their desire and also get married, which is forbidden in Islam and violates the laws of the land.
In this bill, transgender people are given many rights, which are listed below:
References
https://en.wikipedia.org/wiki/LGBT_rights_in_Pakistan#Public_opinion
https://na.gov.pk/uploads/documents/1526547582_234.pdf
Authored by Yasir Gill, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
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In the past, performers’ rights were not recognized under copyright law, which meant that actors’ performances in cinematograph films and singers’ performances in sound recordings were not protected by law. Therefore, the use of dramatic works or sound recordings did not require the performer’s consent. However, in India, the Copyright Act of 1957 began recognizing performance rights in 1994, which was later adopted worldwide by the Treaty of Rome in 1961. The recognition of performers’ rights under copyright law ensures that performers have the exclusive right to authorize or prohibit the recording, reproduction, or broadcast of their performances. In India, the laws governing performer rights are contained in various sections of the Copyright Act of 1957, including Sections 38, 39, and 39A. These sections outline the rights of performers and provide for the protection of their performances, including the right to remuneration for the use of their performances.
When the copyright was first implemented under British rule, performer’s rights were not recognized. Even after independence, the Copyright Act of 1957 did not acknowledge performers’ rights. However, in the case of Fortune Films v. Dev Anand in 1979, the Bombay High Court ruled that performers’ rights do not fall under copyright as they were not recognized under the Act. Subsequently, it was realized that performers’ rights needed to be incorporated into copyright law. In 1994, the Copyright Amendment Act was enacted, and Sections 38, 39, and 39A were introduced to recognize performers’ rights. The Indian Copyright Act defines the term “performer” in Section 2(qq), which includes actors, dancers, musicians, singers, acrobats, conjurers, snake charmers, jugglers, those giving lectures, and anyone else who performs. However, sports are considered competitive, and the results are unpredictable, and since athletes are required to play by the rules and cannot be creative, they cannot be considered performers within the context of sports. The Indian Copyright Act recognizes the range of performers in addition to the TRIPS and Rome Convention baseline requirements. This provides performers with the exclusive right to reproduce, issue copies, perform, communicate, and make adaptations of their performances.
In the past, the contributions made by those who assisted intellectual property creators in making their work known to the public were not recognized. The worth of a song created by a lyricist or an author’s play is often dependent on performers to bring the work to life. However, performers were not always acknowledged for their contributions. The recognition of performer rights began in 1961 with the adoption of the Rome Convention, which provided them with certain rights. Performers now have the right to prevent others from recording or fixing their live performances without their permission. They also have the right to stop their performance from being commercially exploited for any other purpose without their prior approval.
It is worth noting that the term “broadcasting organization” has been added to the list of individuals whose rights may need to be recognized under the performer rights laws. This inclusion recognizes the significant contributions made by broadcasting organizations to the dissemination of works by performers. The Indian Copyright Act of 1957, as amended in 1994, recognizes performer rights, which are covered by Sections 38, 39, and 39A. The Act defines a performer as an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, lecturer, or anyone who performs. However, the Act does not extend performer rights to athletes, as sports are competitive and require players to follow rules rather than be creative performers.
According to the act, the performer does have the sole authority to do the following: –
The Copyright Act’s Sections 63 – 70, as well as Section 55, provide remedies for performers whose rights have been infringed upon. In case of a performer’s rights are violated, the law allows for the defendant’s property to be searched through a court order. This court order is known as an “Anton Pillar order.” An Anton Pillar order is typically granted to enable the claimant and their legal representative to search the defendant’s property for any relevant information that can support the claim that the performer’s rights have been infringed.
Performers have various other options available to them if their rights are violated, including criminal and civil remedies in addition to an Anton Pillar order. Criminal sanctions may include the collection of a fine from the offender and imprisonment of up to three years. Civil sanctions may involve obtaining a temporary or permanent injunction.
It is important to note that the Anton Pillar order is a serious legal tool and should not be sought lightly. Courts take a cautious approach in granting Anton Pillar orders, as they are intrusive and may result in substantial damage to the defendant’s reputation and business. A court may require the claimant to provide a compelling justification for the Anton Pillar order and may impose strict conditions to safeguard the defendant’s interests. Performers who have had their rights infringed upon may seek legal assistance to explore their options and determine the most effective course of action.
It can be inferred that copyright is a form of intellectual property rights protection provided by the law, which grants exclusive rights to the authors of original works. In addition to authors, performers, such as artists, dancers, acrobats, snake charmers, and others, are also granted exclusive rights under copyright law. These exclusive rights are granted to motivate performers to create more original content without the fear of infringement. The inclusion of performers’ rights in copyright law is a positive development, as it recognizes and protects their valuable contributions.
Although performers have long been recognized as an essential part of copyright work, they have not always received the necessary level of acknowledgement or protection. The inclusion of performers’ rights under the copyright act has significantly improved their financial situation and provides them with legal protection for their rights.
It is important to note that performers’ rights may vary depending on the jurisdiction and the type of performance. For example, some jurisdictions may recognize moral rights for performers, such as the right to be credited for their performance or the right to object to modifications of their performance. It is important for performers to understand their legal rights and seek legal assistance if necessary. Overall, performers’ rights are an essential part of copyright law, and their inclusion reflects the importance of their contributions to the creative industry.
Authored by Dhruv Kaushik, Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
]]>Trademark licensing is a common practice worldwide, as it provides benefits to both the licensor and the licensee. The licensor can benefit from the mark’s increasing reach and popularity, and can earn income through royalties. On the other hand, the licensee can use the mark for commercial purposes. However, it is essential to carefully review the license agreement as the mark’s reputation can be negatively impacted if proper checks are not conducted. Therefore, it is important to include quality control provisions in the licensing agreement to ensure that the products or services provided under the mark meet the required standards. Failure to maintain quality control may result in the termination of the license agreement by the licensor.
When a trademark owner licenses their trademark to a third party, they grant them the right to use it in the course of business in exchange for a fee based on the sales of products or services using the trademark. The most common form of trademark licensing is “classical trademark licensing,” which allows the licensee to manufacture and sell products using the trademark. Other forms of licensing, such as merchandising and franchising, are also available. In essence, trademark licensing permits a third party to use the registered trademark without transferring ownership to them. Instead, the trademark owner receives a royalty on the sales of products or services that are licensed under the brand.
Although the terms ‘License’ or ‘Licensing’ are not defined under the Trademarks Act of 1999, the Act regulates trademark licensing through Sections 48 to 55. The term ‘registered user’ is similar to the term ‘license.’ According to Section 48(1), the licensing agreement does not need to be registered.
Only the registered trademark owner has the authority to award a trademark license. The trademark owners can offer a license to any person or third party that wants to use a trademark. Trademarks, both registered and unregistered, can be transferred in India by way of license or assignment. In India, there are two types of licenses for registered trademarks: a simple license agreement for permissive usage and a Registered User license agreement that is filed only with the Registrar of Trademarks. According to the statute, the licensee has various rights under this license.
A trademark license is an agreement that permits a third party to use a Registered Trademark legally. International corporations, especially those in the IT industry, commonly offer TM licenses in other countries to exploit their trademarks. For instance, a brand owner can provide a license to another individual to use the trademark in the course of their business for both services and goods. When a registered trademark license is granted, the trademark itself is not sold. The license simply grants the authority to use the trademark, and the trademark remains the sole property of the owner. The rights provided are time-limited and may include the right to use the trademark, distribute goods, and other related activities. An exclusive or non-exclusive TM license may be obtained. According to Section 48 of the Trade Marks Act, a person who is not the registered owner of a trademark may register as a registered user. Therefore, the rules of this act may allow the use of a registered trademark, but only if both parties meet the essential circumstances.
Financial Gain:- Because the Trademark is widely exploited for profit and royalties is paid to the owner, both parties can benefit financially. The Licensor, who previously couldn’t profit from their Trademark owing to a lack of exposure or resources, can now take advantage of the Licensee’s resources by granting them the licence and making more money. The Licensee is also entitled to a portion of the profits.
Increase the popularity of a Trademark:- The Trademark automatically gets popular as it reaches a large number of clients. This results in higher income from increased sales, as well as more Trademark Licensing.
Assist with Business Expansion:- As the owner’s business grows, so does his or her reach into other countries. The Licensee can also use their distribution abilities to expand the business rather than limiting it to a single area.
Trademark Recognition:- A trademark becomes well-known as a brand in previously unknown countries. The Licensee is free to advertise the product using their own resources.
A licensee is regarded as a “registered user” within Section 49 of the TM Act of 1999. Within six months of the date of the agreement, the joint application must be filed with the Registrar using Form TM-U. For each mark, the government charges Rs 4500. This is how it works:-
Trademark licensing is a powerful tool in preventing trademark infringement, benefiting both the licensee and the licensor in their commercial development. Moreover, it helps to enhance the brand image since the licensee is required to maintain strict control over the quality and standards of the products and services sold or offered under the mark. To avoid misunderstandings and confusion, it is essential that the parties explicitly state their intentions, which necessitates a well-drafted and structured agreement. Additionally, it is important to consider local tax concerns with regard to royalty payments.
It should also be noted that trademark licensing agreements should contain certain provisions that govern the relationship between the licensee and the licensor. These provisions may include a description of the licensed trademark, the scope of the license, the duration of the agreement, the payment of royalties, quality control measures, and dispute resolution mechanisms. It is important to consult with a qualified attorney to ensure that the license agreement is legally binding and enforceable.
Authored by Dhruv Kaushik Legal Intern, LawDiktat
Edited by Sahid, Team Member, LawDiktat.
]]>Interstate arrest refers to the situation where officers from one state arrest a suspect or criminal in another state without the proper legal authority to do so. In the United States, the Fourth Amendment of the Constitution prohibits unreasonable searches and seizures, including arrests, by law enforcement officers. As such, police officers may only arrest or investigate a suspect within their own state’s borders, absent certain limited circumstances such as the pursuit of a fleeing felon.
For example, if a criminal commits a crime in Delhi and is located in Delhi, only the Delhi Police officials have the authority to arrest the criminal, not police from other states. In order for a state’s police force to arrest a suspect in another state, they must work with the police department of that state to coordinate the arrest or obtain a warrant from a court in the state where the suspect is located.
It is important for law enforcement officers to adhere to the proper legal procedures when making an arrest, including following jurisdictional limitations. Failure to do so could result in the suppression of evidence or other legal consequences.
The term “arrest” is defined by Farlex legal dictionary as “the taking or keeping of a person in possession by legal authority, particularly in response to a criminal complaint.”
However, when a person is detained by police from one state for a crime committed in another state, it is referred to as an “interstate arrest by police.” This type of investigation or arrest is generally considered unconstitutional unless authorized by law.
Under Indian law, the police have the power to arrest or examine an accused who is within their state’s borders. This authority is granted to police officers, magistrates, or any other person authorized by law, including private individuals.
According to section 41 of the Criminal Procedure Code of 1973, a police officer may arrest a person both with and without a warrant. Additionally, if a person who committed a non-cognizable offence refuses to reveal their name and address of residence, they can be arrested. Judges, whether executive or judiciary, may also arrest a person if a crime occurs in their sight within their local jurisdiction.
It is important to note that the power of arrest must be exercised lawfully, and any arrest made outside of the legal framework can be challenged by the accused in court. The arrestee has the right to be informed of the grounds of arrest, the right to legal representation, and the right to be produced before a magistrate within 24 hours of arrest.
The police must obtain prior authorization or approval from higher or superior officials to leave their state or UT to conduct an investigation. This approval should be documented in writing or via phone communication. When making an arrest, the police officer must rely on factual evidence and provide written documentation of the reasons for the detention, demonstrating that it is necessary for the investigation. In situations where there is a risk of the accused escaping or implicating evidence disappearing, the police officer should seek authorization from the jurisdictional Judge to issue an arrest or court order. The reasons for travelling to another state without an arrest or court order should be documented.
If the potential arrestee is a woman, a female officer must be included in the team. All officers in the team should be in uniform and wear identification with their precise, clear and readily visible designations. The police should also make an effort to obtain independent witnesses from the local community.
Before being transported out of the state, the detained person should be given the opportunity to speak with their lawyer. The police should stop at a nearby police station on their way back to make a diary entry describing the details of the people and items confiscated during the investigation. Upon returning to their home state, the police team should also document their return.
After presenting the arrested person before the magistrate within 24 hours, the police should attempt to obtain a travel remand, unless exigencies of the situation require otherwise.
The officer before whom an arrested person is produced should consider the facts of the case and not automatically grant a transit remand. It is imperative that the officer ensures that the investigation diary contains relevant material to support the request for a transit remand. A judicial decision is usually taken when the charge is presented for remand, and the judge must ensure that the requirements of Criminal Procedure Code Section 41(l)(b) are met.
Furthermore, Article 22(1) of the Indian Constitution outlines another mandatory procedural requirement for the Magistrate to follow when deciding a travel remand application. The Magistrate must ensure that the detained person has the right to legal representation and is assisted by a competent guardian of their choosing. The Magistrate must also inquire of the person brought before the court whether they are aware of the circumstances surrounding their arrest and whether they require legal representation.
In order to make an interstate arrest, it is required that the police inform the police of the other state of the situation. It should be noted that strict adherence to predetermined laws and regulations is required when making such an arrest. It is possible to initiate an interstate investigation and arrest the accused individual, but it must be done in accordance with the law.
Police personnel and magistrates are expected to follow the guidelines set forth in the case of Sandeep Kumar v. The State (Govt. of NCT of Delhi), AIR 2019. This case established a reasonable basis for one state’s police agency to arrest a suspect in another union area, provided that the arrest is made in accordance with the law.
It is important to note that the laws and regulations governing interstate arrests may differ from state to state, and it is crucial to understand and comply with the laws of the state in which the arrest is being made. Failure to do so may result in the arrest being deemed illegal, and the individual arrested may be released without charges.
o Meera Emmanuel, Cannot condone “lawlessness by police”: Delhi HC Orders execution of guidelines on inter-state investigation and arrest, Bar and Bench – Indian Legal news, https://www.barandbench.com/news/litigation/cannot-condone-lawlessness-by-police-delhi-hc-orders-execution-of-guidelines-on-inter-state-investigation-and-arrest-read-guidelines
o Revisit inter-state arrest procedure: HC Return to frontpage (2018), https://www.thehindu.com/news/cities/Delhi/revisit-inter-state-arrest-procedure-hc/article24796023.ece
o Anonymous User, Is inter-state arrest possible in India Legistify (2019), https://www.legistify.com/qna/answer/is-inter-state-arrest-possible-in-india/
o Radhika Roy, Explainer: Inter-state arrest, Transit Remand & right to legal representation Live Law (2021), https://www.livelaw.in/know-the-law/inter-state-arrest-transit-remand-right-to-legal-representation-170188?infinitescroll=1
o Prabhash K Dutta, Disha Ravi Case: Did Delhi police violate inter-state arrest guidelines? India Today (2021), https://www.indiatoday.in/news-analysis/story/disha-ravi-arrest-delhi-police-inter-state-police-action-guidelines-1769700-2021-02-16
o What is inter-state arrest and its Guidelines, Writing Law (2022), https://www.writinglaw.com/inter-state-arrest-and-guidelines/
o Explainer: Inter-state police arrest procedures, cooperation: India News – Times of India, the Times of India, https://timesofindia.indiatimes.com/india/explainer-inter-state-police-arrest-procedures-cooperation/articleshow/91378510.cms
Authored by Dhruv Kaushik, Legal Intern, LawDiktat.
Edited by Sahid, Team Member, LawDiktat.
]]>Before filling the examination form you have to enroll yourself as an advocate in the State Bar Association, after that you will get a temporary license for practicing in any district court. It is valid for two years only. Within these two years, you have to clear the Bar Exam otherwise you have to start all the processes again for e.g. take a temporary license from State Bar Association and then apply for AIBE again and so on.
For AIBE XVII 2023, here are some of the tips and information to keep in mind. These will give you confidence while sitting in the exam hall and solving the question paper. Please note that due to limited time, it is best to systematically manage your time and plan your preparation accordingly and focus to comfortably pass the exam, for this purpose it is not a good step to prepare for 100 percent of the paper rather prepare according to the weightage of each subject i.e. prepare the major subjects and just have a brief look on the rest subjects. Because when you will clear the exam, the result does not mention the top ranked or anything like that. It will not even show the marks obtained. It will only show pass or fail.
Note that exact marks are no longer declared by the Bar Council, and scoring 40 per cent is sufficient to pass the exam. If you prepare well and systematically for this, you will definitely crack it in one go comfortably. Here are some pointers to assist candidates in successfully passing the exam by solidifying their last-minute preparation for the AIBE 2023 exam.
As AIBE is no longer an open-book exam now, you can only take Bare Acts with you in the exam hall. And you have very limited preparation time, so we suggest you go with the major subjects which have much more weightage than the other subjects. The major subjects are:
Constitutional Law 10
Criminal Procedure Code 10
Civil Procedure Code 10
Indian Penal Code 08
Evidence Act 08
Family Law 08
Law of Contract, Specific Relief, Property Laws, Negotiable Instruments Act. 08
These are the major subjects with high weightage. Don’t try to memorize, just try to figure out where to find answers. Now you have prepared yourself for 62 per cent of the question paper. But remember to not miss any question unanswered. Answer all the questions as there is no negative marking. So try to attempt all the questions but first go with the questions that you are pretty confident about.
One of the best methods to build confidence in yourself is solving as many mock tests or quizzes as you can. Mock tests have the potential of building the exam spirit of an individual. It will provide you with a familiarity with the exam pattern and also gives an idea of the type of questions that might be asked in the exam. It will give you a rough idea of the exam level.
Dig out all the possible sample papers and previous year’s question papers of AIBE. Regular practice from the model papers will help you in increasing your speed and accuracy. Also, they provide an understanding of the marks allotted to each section and question. You can improve your final performance through the previous year question papers and sample papers of AIBE.
Candidates preparing for the AIBE 2023 exam must not touch any new topic just a few days before the exams. Studying any new topic just a couple of days before the exam can confuse the candidates and might create a loss of confidence and more doubts. Hence, it is advisable not to pick any new topic.
You should start your last-minute exam preparation with the AIBE topics that will count for the most marks. Constitutional Law, Criminal Procedure Code, Civil Procedure Code, Indian Penal Code, Evidence Act, Family Law, Law of Contract, Specific Relief, Property Laws, Negotiable Instruments Act are the crucial subjects for the AIBE.
Do not revise thoroughly as it will take much more time. The entire curriculum will require a lot of time and work to review. Hence, in the last-minute always revise briefly the notes that you have made while studying or preparing for the exam. This is because if you go for a thorough revision first, it will take a lot of time to revise everything and secondly, you might start to worry or feel insecure and self-conscious if there is something left that you can’t remember. So, better to avoid this.
It is also very important that before going to the exam that you must take proper sleep and rest. Because it will increase your focus and your mind will feel fresh that will automatically boost your concentration for the exam day. And you can attempt the questions more accurately and efficiently.
Last but not the least; recheck the syllabus and exam pattern to make sure no topics or subjects are missing. Additionally, you need to quit being anxious before the exam. Start feeling relaxed, calm and more confident.
Keep all these things in mind and revise accordingly. It will help you a lot. Also, one more tip is to use the technique of elimination of wrong answers to solve the MCQs, if you are unable to locate the answer through bare acts. Because once you are able to eliminate the incorrect options, the chances of marking the correct answers increase.
Written by Adv Komal , Practising Advocate, District Court, Hisar
Edited by Sahid
In this article, we take a look at how to systematically prepare for the AIBE 2023 exam and pass it in one sitting. For clearing any exam, it is not important how many hours you study; instead, whether you are studying consistently every day or not is what really matters. Consistency is the key to success. Time management is also essential for the same.
The AIBE is conducted by the Bar Council of India to test the legal knowledge, aptitude, reasoning power, conceptual clarity, and decision-making skills of a candidate.
According to the AIBE Exam Pattern 2022, the All India Bar Examination question paper consists of 100 questions, and each question carries one mark. There is no negative marking in the exam.
You can attempt the exam in any 25 languages, such as Hindi, English, Gujarati, Konkani, Nepali, Urdu, Dogri, Telugu, Tamil, Punjabi, Kashmiri, Oriya, Bodo, Assamese, Kannada, Odia, Malayalam, Sanskrit, Santhali, Bengali, Marathi, Kannada, Manipuri, Sindhi, and Maithili.
You will have 3 hours and 30 minutes to answer the questions. The AIBE Syllabus 2022 includes the following topics:
| Topic/Subject | No. of Questions |
| Constitutional Law | 10 |
| Criminal Procedure Code (CrPC) | 10 |
| Civil Procedure Code (CPC) | 10 |
| Indian Penal Code (IPC) | 8 |
| Evidence Act | 8 |
| Family Law | 8 |
| Administrative Law | 3 |
| Company Law | 2 |
| Cyber Law | 2 |
| Law of Tort, including Motor Vehicle and Consumer Protection Law | 5 |
| Land Acquisition Act | 2 |
| Law of Contract, Specific Relief, Property Laws, Negotiable
Instrument Act |
8 |
| Alternative Dispute Redressal, including Arbitration Act | 4 |
| Public Interest Litigation | 4 |
| Professional Ethics & Cases of Professional Misconduct under BCI rules | 4 |
| Environmental Law | 2 |
| Labour & Industrial Laws | 4 |
| Law related to Taxation | 4 |
| Intellectual Property Laws | 2 |
| Books Name | Publication/Author |
| Criminal Manual | Universal’s |
| Other Bare Acts | Universal Law Publishing Co Pvt Ltd. |
| Constitution of India | Durga DasBasu |
| Company Law and Practice | AK Majumdar/Dr GK Kapoor |
| Civil Procedure with Limitation Act | CK Takwani |
| Public International Litigation | VK Ahuja |
| Human Rights | H.O Agarwal |
| Guide to All India Bar Examination | Universal’s |
| Intellectual Property Law | Private Publication |
| Civil Practice and Procedure Manual | Sarkar’s |
| Sure Success AIBE & JCJ | DV Rao |
| AIBE Solved Papers (2011-2021) | Lovedeep Bangia |
| AIBE- Previous year solved papers | Thakral Law Publications |
| Fundamental Rights | Uday Raj Raj |
Considering the fact that you are new to AIBE preparation, below are some points which you have to keep in mind while selecting a book for your preparation.
Written by Adv Komal , Practising Advocate, District Court, Hisar
Edited by Sahid