Allegations Against Patanjali

Initiation

The controversy began when the Indian Medical Association (IMA) filed a petition in August 2022. The petition was a response to an advertisement published by Patanjali, which disparaged allopathic medicine.

Controversial Advertisement

The contentious advertisement bore the title “MISCONCEPTIONS SPREAD BY ALLOPATHY: SAVE YOURSELF AND THE COUNTRY FROM THE MISCONCEPTIONS SPREAD BY PHARMA AND MEDICAL INDUSTRY.”

Fueling the Controversy

The situation escalated when Ramdev made statements denouncing allopathy as a “foolish and bankrupt science” and attributing COVID-19 fatalities to allopathic medicine. Furthermore, Patanjali faced allegations of disseminating false information about the Covid-19 vaccine.

Legal Arguments Against Patanjali

Violation of Laws

The IMA argued that Patanjali’s advertisements contravened the Drugs & Other Magical Remedies Act, 1954 (DOMA), and the Consumer Protection Act, 2019 (CPA).

Legal Provisions under DOMA

Section 4 of the DOMA prohibits the publication of misleading advertisements concerning drugs, with penalties including imprisonment or fines. “The Act stipulates that no person shall participate in the publication of any drug-related advertisement if the advertisement:

• Directly or indirectly creates a false impression regarding the drug’s true nature.
• Makes a false claim for the drug.
• Is otherwise false or misleading in any significant respect.”

“Section 7 of the DOMA further states that anyone who contravenes any provisions of this Act or the rules made thereunder shall, upon conviction, be punishable with imprisonment or fine, or both.”

Legal Provisions of the Consumer Protection Act

Section 89 of the CPA imposes severe penalties for false or misleading advertisements. It states that any manufacturer or service provider who causes a false or misleading advertisement detrimental to consumer interests shall be punished with imprisonment and a fine.

Role of Agreements

Despite agreements between AYUSH and regulatory bodies, Patanjali continued to violate advertising regulations, breaching the Memorandum of Understanding signed by the Ministry of AYUSH and the Advertising Standards Council of India in January 2017.

Supreme Court’s Response in the Patanjali Case

In its ruling on February 27, the Supreme Court underscored the gravity of Patanjali’s infractions. Despite previous warnings and assurances, Patanjali continued to publish misleading advertisements, compelling the Court to take decisive action. The Court barred Patanjali from advertising or branding products addressing diseases specified in the DOMA and warned against negative statements about conventional medicine. The court has scheduled the next hearing for March 19, 2024.

Conclusion

In conclusion, the case of Patanjali Ayurved serves as a significant precedent in the realm of consumer protection and advertising ethics in India. The Supreme Court’s stern admonition underscores the importance of truthful and responsible advertising, particularly in the healthcare sector. This case highlights the necessity for companies to adhere strictly to advertising regulations and laws, ensuring that consumers are not misled by false claims or deceptive information. The verdict sends a clear message to all entities that violations of such laws will not be tolerated and will be met with stringent legal consequences. The next hearing, scheduled for March 19, 2024, is eagerly awaited, as it will further shape the discourse on advertising ethics in India.

_________________________________________________________________________________________________________

This article was written and submitted by Devam Krishnan during his course of internship at B&B Associates LLP. Devam is a 4th year B.A.LL.B (Hons.) student at NUSRL, Ranchi.

The post Supreme Court’s Verdict on Patanjali Ayurved appeared first on B&B Associates LLP.

Within the broad domain of digital interfaces, users frequently become entangled in a web of manipulative design strategies called “dark patterns.” These deceptive user interface components are deliberately designed to coax people into doing actions they might not have otherwise chosen. The general phrase “dark pattern” refers to deceptive tactics intended to lead customers to make decisions they otherwise would not have made. These ultimately end up benefiting the company or platform implementing these designs. Digital platforms employ dark patterns to deprive users of complete information about their services and undermine their control over the browsing experience. This poses a threat to user experience and makes the overall browsing experience inefficient.

Dark Patterns encompass deceptive tactics such as misleading countdowns for online promotions, hidden costs buried in fine print, obscured cancellation buttons, disguising ads as credible endorsements, auto-playing videos, mandatory account creation for transactions, discreetly charging credit cards post-free trials, and employing subtle colours to conceal crucial information from users. These are employed by small start-ups and even tech giants like Amazon, Apple, Facebook etc.

The term dark patterns was coined by UX specialist Harry Brignull to refer to ways in which software can deceptively manipulate users. For instance, a company may employ subtle tactics like placing a small, “Unsubscribe” button at the bottom of an email to discourage users from cancelling subscriptions, while prominently featuring a large, bright “Buy” button for on-sale items to encourage purchases.

Not every pop-up should be assumed as a deceptive dark pattern. It’s crucial to consider that the true impact can be assessed by measuring the user’s response to a specific ad and deciding whether to proceed based on that reaction.

Regulation in India:

The increasing dependence on online shopping platforms has prompted the leading consumer protection agency, Central Consumer Protection Authority (CCPA) to develop guidelines safeguarding consumer rights in the digital marketplace.

The Consumer Protection Act, 2019 outlines unfair trade practices, which involve manipulating and exploiting consumers. The legislation establishes a mechanism for addressing these practices, ensuring the protection of consumer rights. Furthermore, the Consumer Protection Authority has the authority to investigate violations or unfair trade practices, either on its initiative or in response to a complaint. Section 18(2) of the Consumer Protection Act grants it the authority to issue guidelines to prevent unfair trade practices.

On November 30, 2023, (CCPA) released guidelines aimed at safeguarding consumer interests by preventing and regulating dark patterns. Dark patterns refer to practices or designs that manipulate or impair consumer autonomy, as outlined in the guidelines.

These guidelines apply to goods and services platforms, advertisers, and sellers in India. Individuals on any platform are forbidden from participating in deceptive or unethical practices. The CCPA would be the nodal agency to determine and clarify the ambiguities in the interpretation. In the event of any overlap between these guidelines and other applicable laws, a reasonable nexus will be considered rather than mutual derogation. This provides users with the option to report instances of dark patterns through a consumer helpline or via WhatsApp.

These are the following types of dark patterns: 

• False Urgency: forced choice due to the small ambit of options on the interface.
• Basket sneaking: adding additional items to customers’ baskets without consent.
• Confirm shaming: inducing the customers into purchasing goods or services appealing the emotions like guilt, fear or excitement.
• Subscription trap: nonavailability of an exit option to the webpage, may sometimes go on to initiate auto-debit transactions.
• Misdirection: In software installers, misdirection occurs when users are presented with a button resembling a standard “continue” button. This involves displaying a prominent “I accept these terms” button, leading users to unknowingly accept terms for a different program than the one they intend to install.
• Roach Model: A design resembling a roach motel or a trammel net offers a simple entry but complicates the exit, as seen in businesses mandating subscribers to physically mail opt-out requests. The Federal Trade Commission (FTC) in the United States declared increased efforts in 2021 to combat such deceptive practices, targeting dark patterns like the roach motel tactic that deceives consumers into subscribing and then hinders cancellation.
• Bait and switch: These patterns showcase a very cheap or free amenity, product or service, only for the viewer to proceed and later find out to be unavailable. The window later opens to other products invoking costly investments.
• Privacy Zukering: These pop-ups can propel an individual into sharing information, often private, one is not by himself, expected to expose. It gets its name from Facebook and Meta legend Mark Zuckerberg. The California Consumer Privacy Act has endorsed rules restricting this conduct by businesses.

Other types include forced action, interface interference, drip pricing, disguised advertisement, nagging, trick questions, and rogue malware.

Conclusion

The global framework has helped in calling out the use of dark patterns, particularly bait-and-switch and misdirection. Meta Platforms Inc. v. Bundeskartellamt decided that express consent is required for Meta to track users’ data. If consumers do not provide consent for data tracking, they will not be subjected to unjustified delays or inferior services. The guidelines for India can prove to be an instrumental tool for expanding cyber security and online consumer interaction. However, the ground-level efficacy is for the time and redressal to show.

This article is written and submitted by Shreshth Jindald during his course of internship at B&B Associates LLP. Shreshth is a 2nd year year B.A. L.L.B (Hons.) student at NLU, Jodhpur.

The post Dark Patterns: Unravelling Deceptive User Interfaces appeared first on B&B Associates LLP.

In a landmark move, the Competition Commission of India (CCI) recently wielded its regulatory power to address competition concerns in the online travel and hospitality sector in the case of Federation of Hotel and Restaurant Association of India (FHRAI) and Anr. vs. MakeMyTrip India Pvt. Ltd., scrutinising industry giants like MakeMyTrip-Goibibo (hereinafter, “MMT-Go”) and OYO Rooms[1]. This article delves into the profound implications of the CCI’s sanctions, assessing their value and importance in curbing future anti-competitive practices and fostering a fairer landscape for both businesses and consumers. From setting precedents to instigating a deterrence effect, the CCI’s order resonates far beyond the immediate case, promising to reshape the dynamics of the industry.

Parties and Allegations

Treebo, FabHotels and the Federation of Hotel & Restaurant Associations of India (FHRAI) were the informants in the present case. The allegations made against MMT-Go were its denial to Treebo and FabHotels to access the market on a refusal to pay exorbitant commissions and the room parity mandate that ultimately affected consumer welfare and also affected the participation of independent hotels in the relevant market.

MMT-Go was also alleged to have indulged in the practice of predatory pricing. The allegation outlines MMT-Go’s approach to competing in the market. Para 8 of the CCI order articulates the approach by saying that while competing on discounts rather than prices, MMT-Go plays the game based on its deep pockets, i.e., how much of its capital it can sacrifice to build a consumer base. This approach prima facie shows that any small players in the market, devoid of the volume of capital that MMT-Go has, wouldn’t have a fair chance of competing. Constant under-cutting prices and providing rooms less than the average room rate is anti-competitive.

There were also allegations of preferential treatment of OYO by a confidential agreement between MMT-Go and OYO. In other allegations of MMT-Go’s abuse of its dominant position, MMT-Go was alleged to have charged a rate of commission higher than any other Online Travel Agencies (“OTAs”). Upon request of hotel partners to be delisted from their platform, they were advertised as having no rooms available. This severely affected the business of those hotels. The rationale here is that a customer while visiting a trusted platform, such as MMT-Go’s, would trust the information provided on such a platform. A customer wouldn’t bother to check other platforms, and the partner hotel would suffer from false advertising.[2]

The Investigation and Approach: An Analysis

One of the salient features of the approach taken by the Director General of the Competition Commission of India in the initial inquiry was the determination of the relevant market. Concerning the visibility and the range of prices offered by Online Travel Agencies, the DG concluded that the offline market could not substitute the online market. Therefore, the relevant market for MMT-Go was classified as “the market for online intermediation services for booking of hotels in India”. MMT-Go challenged the delineation, but according to the submissions made in the counter-challenge, some interesting observations came to light.

In delineating online intermediary services from the online market as a whole (where Google, Facebook, TikTok, etc., would also provide relevant platforms), it was held that search engines and other platforms could only provide redirection to the main website and do not provide direct booking services. This observation also highlights the purpose of delineation – to determine which players would fall in the market. According to the order of the Commission, the relevant market would only consist of Online Travel Agencies.

The same was also backed by statistics that showed internet penetration in India to be around 42% in 2020 and online hotel bookings at 30%. This shows a high degree of correlation between both variables, which leads us to the conclusion that with an increase in penetration, the online booking of hotels would improve. This exclusive correlation also minimises the relation between the offline market for hotels and the online booking of hotels.

The Evolving Interpretation of “Relevant Market”

The narrow interpretation of the relevant market in the case of online distribution is one of the more recent developments in the approach taken by the Commission in delineating the relevant market. The argument that forms the premise of this decision is that, in the opinion of the Commission, there is no substitutability between the online and offline market. In their opinion, a consumer would search and book a hotel on the same platform. This is a departure from the Snapdeal case of 2014[3].

In the Snapdeal case[4], the Commission held that offline and online markets could not be delineated as distinct markets since a consumer would survey the online market for a specific product, check its prices, and then compare it with offline prices. The consumer would then choose based on his cost and benefit considerations. In this case, the online market could be substituted by the online market, and vice-versa.

In taking a narrow interpretation of the relevant market in the present case, the Commission has also reiterated the importance of context in deciding a present case. This case also remains part of the developing approach of the Commission, where the players’ business models are thoroughly analysed[5]. The immediate brunt of such a narrow interpretation of the “relevant market” would be faced by the party against whom the allegations of abuse of dominant position have been levelled. If such a corporation is not considered a dominant player in the wider market, and in the narrow relevant market, the corporation is considered to be such, it would make the process of finding a violation under section 4[6] of the Competition Act easier.

Therefore, “artificial dominance”[7] is asserted by putting the offline players in a different market altogether. Such an approach is a positive indication since it would further restrict online players from abusing their dominant position. Still, it would also lead to a lack of recourse for such players against abusing a dominant position by the offline players, even if it would have any detrimental effects on the online player. The argument for lack of resources can easily be defeated by citing alternative resolutions such as the traditional court system if not necessarily the Competition Commission of India.

The approach of the Commission is developing with every decision. It marked a decisive change from Ashish Ahuja vs. Snapdeal[8] to All India Online Vendors Association vs. Flipkart[9], where Flipkart was alleged to have been giving preferential treatment to WS Retail by selling its products at a discounted price, as the Commission moved from a narrow interpretation to a wider interpretation of “relevant market”. The current precedence gives primacy to the facts and circumstances of the case when arriving at the relevant market.

With the advent of the e-commerce industry and the ever-growing Indian economy, it becomes essential to keep a regulatory check on the anti-competitive practices by such platforms that could potentially harm the economy by eroding consumer welfare and monopolising the trade.

Measures Taken by the CCI

In a departure from Excel Corp Care Ltd. vs. CCI[10], the CCI considered the total turnover of MMT-Go in imposing a penalty to the proportion of 5%. However, this penalty has been stayed by the Delhi High Court[11] upon paying 10% of the total penalty imposed for the admission of appeal. The levy of 10% was allowed on the pretext that the remaining 90% of the corpus won’t be levied. After granting a stay, the Delhi High Court directed the appellants to seek further relief from the National Competition Law Appellate Tribunal.

In terms of non-monetary measures, the following orders were made under Section 27 of the Competition Act:

a. Order to modify MMT-Go’s agreements with hotels to remove the price and room availability parity obligations imposed on hotel partners concerning other agencies.
b. Order to modify its agreements to remove exclusivity conditions.
c. Direction to provide fair, transparent and non-discriminatory access to partner hotels and hotel chains by objectively formulating the terms and conditions and notifying the hotel partners about such modifications.
d. Direction to make transparent disclosures on its platform about properties that are not available – either because of termination of a contractual agreement or the exhaustion of the quota of rooms allotted to MMT-Go by such partner.

For the non-monetary measures, no relief was granted by the Delhi High Court to the appellants. The measures directly sought to remedy the harm done through the anti-competitive conduct by MMT-Go, although the appellant still sought a stay on these orders.

Because the Commission probed into the appellant’s business model, a relevant market delineated allowed the Commission to assess the practices by MMT-Go as anti-competitive.

Impact of the Behavioural Sanctions

As discussed, the measures aimed at curbing the practices being carried on by MMT-Go not only attracted super-normal profits for the appellant but also caused a deadweight loss in the tourism economy by harming the hotel partners by causing monetary loss.

One of the behavioural sanctions was a direction to do away with the parity clauses, which, according to the Commission, couldn’t be justified as an industry practice. Such clauses allowed the appellants to undercut their rival companies. The profits were not sacrificed, for a monetary equivalent was levied from the hotel partners in the form of a commission. The sanction ensures the provision of a level playing field for budget hotels, and sets a precedent in the use of parity clauses, that cause injustice not only to the partner hotels but to the relevant market as a whole, with some effects in the surrounding markets as well.

The removal of exclusivity conditions looks at ensuring uniformity in the multitude of opportunities provided to the partner hotels in expanding their business, increasing their visibility in the market, and participating in the platform. It also ensures a transparent approach in finalising agreements with the partner hotels, when coupled with the third behavioural sanction that provides for a non-discriminatory, fair and transparent approach in providing access to the hotels through the formulation of an objective set of terms and conditions.

Finally, the last behavioural sanction directs the platform to not indulge in dishonest practices wherein because of the false information provided on the platform led to a potential loss in business for the partner hotels.

There is no doubt that the Commission’s response was prompt, but MMT-Go’s practices dealt considerable harm to the market and its players. Perhaps these events form a strong reason for a codification in the realm of Indian Tourism Law where guidelines for conduct by hotels are mentioned among other sections.

Potential for a Tourism Law Enactment

Tourist welfare is one of the primary subject matters of a justified Tourism Enactment. With the advent of tourism in India, also providing a platform for online hotel booking intermediaries to rise, and the MMT-Go fiasco being incidental to such developments, it becomes increasingly important for an enactment that aims to lay down guidelines that prevent such conduct or provide remedies for it.

Although the Commission adjudicated in its undisputable realm, some elements of the MMT-Go case also fall under the ambit of consumer welfare, and therefore, a law must be enacted to safeguard the interests of such consumers.

In the common parlance, the tourism law is often understood to mean a law governing the conduct of tourists, but since the Consumer Protection Act[12] is also considered a tourism enactment in some regards (safeguarding the interests of tourists in terms of hotel-booking etc.), perhaps, there must be a law that governs and regulates the conduct of service providers in the tourism sector, namely hotels, travel agencies, online travel agencies etc. Making them the subject of such legislation would also warrant providing a remedial mechanism to them in case of any wrongs committed against them.

A legal framework must, therefore, legislate only on the subjects that concern such actors and must not encroach on the jurisdiction of authorities such as the Competition Commission of India. Instead, such an enactment must complement and assist such authorities’ investigation and procedure. One way this can be achieved is by categorising the actors into different slabs based on their profit-making capacity, the range of services they offer, the capital of such actors, and the nature of their management, among other factors.

As a lesson learned from the MMT-Go case, the enactment must look to implement transparent and non-discriminatory regulations for market entry that ensure fair opportunities for entry into the market without unnecessary barriers. A licensing and certification system to ensure certain standards is also warranted, to ensure fair competition based on merit, along with a clause for transparency in agreements that ensures a provision for clear and accurate information to consumers.

As far as business practices are concerned, the model tourism law must also outline a mandatory code of conduct for ethical business practices that contain rules and regulations on pricing and advertising etc.

Conclusion

The CCI’s landmark decision on MMT-Go reflects a vital moment in shaping the competitive landscape of India’s online travel and hospitality sector. The comprehensive sanctions, from addressing predatory pricing to modifying agreements, underscore the commitment to fostering fair competition and protecting consumer welfare. The delineation of a narrow relevant market highlights the evolving approach of the Commission, emphasising the need for tailored regulatory measures. The MMT-Go fiasco further underscores the potential for a dedicated Tourism Law, safeguarding the interests of both consumers and service providers while promoting transparent, non-discriminatory practices in the dynamic tourism industry.

[1] Case no. 14 of 2019.
[2] Indulia, B., Ridhi and Mishra, R. (2023) Interim measures in antitrust cases in India, SCC Blog.

[3] Ashish Ahuja v. Snapdeal, Case No. 17/2014.
[4] Ibid.
[5] Prateek, P. (2022) CCI imposes penalties on Indian Ota Makemytrip and Budget Hotel Franchise Oyo Antitrust, EU competition – India.
[6] The Competition Act, 2002, § 4, No. 12, Acts of Parliament, 2003 (India).
[7] Cbcl (2023) Revisiting the MMT-goibibo case – IS CCI geared up? CBCL.
[8] supra note 3.
[9] Case No. 20/2018.
[10] (2017) 8 SCC 47.
[11] MakeMyTrip India Pvt Ltd MMT & Anr. v. Competition Commission of India 2022/DHC/005564.
[12] Consumer Protection Act, No. 35, Acts of Parliament, 2019 (India).

This article is written and submitted by Vansh Gaint during his course of internship at B&B Associates LLP. Vansh is a 2nd year BA LLB student at Gujarat National Law University.

The post Navigating Competition: The MMT-Go Judgement and the Impending Shifts in India’s Tourism Industry appeared first on B&B Associates LLP.

Deepfake refers to an artificial intelligence-driven technology that utilizes machine learning algorithms, specifically generative adversarial networks (GANs), that produce synthetic media, which includes images, videos, and audio recordings. The Primary objective of deepfake technology is to generate synthetic media that exhibits a very high level of realism, closely resembling actual individuals, while incorporating manipulated elements within the content[1].

Deep learning is a subfield within the realm of machine learning that makes use of algorithms inspired by the complex framework and functionality of the human brain, referred to as artificial neural networks. These networks are employed to effectively process and analyse vast volumes of data. The field of deep learning has seen extensive application across various domains, including computer vision, natural language processing, speech recognition, and robotics[2].

The term Generative Adversarial Networks (GANs) are a class of deep learning architectures that employ two neural networks, namely a generator and a discriminator, to undergo training on a given dataset. The objective is to generate fresh synthetic data that closely resembles the characteristics of the original data. The generator is responsible for producing synthetic samples, while the discriminator evaluates the genuineness of both the generated samples and the real samples obtained from the training dataset. The two networks are trained using an adversarial approach, wherein the generator aims to produce samples that can deceive the discriminator, while the discriminator strives to accurately differentiate between the generated samples and the authentic ones. The aforementioned procedure persists until the generator achieves the capability to generate synthetic data that closely resembles real data[3].

Current Scenario of Deepfake in India!

Currently, in India, there is no specific law in place that criminalizes the creation or dissemination of deepfakes. However, specific provisions within current legislation can be utilized to address instances of misuse pertaining to this technology. For example, Sections 67 and 67A of the Information Technology Act, 2000 impose penalties for the circulation of sexually explicit material in an explicit manner. Section 500 of the Indian Penal Code, 1860 stipulates the legal consequences for the offense of defamation[4].

However, the legal framework is currently under development in order to address the distinct challenges presented by deepfakes. There are ongoing discussions regarding the necessity for the Indian Government to address this matter and develop a regulatory framework. There is an ongoing argument that the current laws implicitly forbid the public release of deepfakes. However, there are certain challenges within the existing framework that can potentially be resolved by implementing suggested legislative amendments[5].

The application of proficient artificial intelligence algorithms and cryptography has also been proposed as a means to identify deepfakes and facilitate necessary legal measures[6].

Deepfake technology has a significant presence in India, with notable applications in politics, the film industry, pornography, and instances of revenge defamation. The prevalence of deepfake technology has given rise to various concerning cases. For instance, there have been instances where individuals, such as Mr. Manoj Tiwari, have been depicted in deepfake videos insulting the state government of Delhi. Additionally, there have been instances where political parties, like the Aam Aadmi Party, have been portrayed speaking in English and Haryanvi dialects through deepfake manipulation. It is crucial to recognize that deepfakes have the potential to cause significant harm to both the targeted individuals and society as a whole. This harm manifests in the form of injury to the sentiments, thoughts, and perspectives of the people [7].

In addition, the case of Famous journalist Rana Ayyub highlights the insufficiency of our current legal framework in safeguarding individuals affected by revenge pornography. Regarding the matter involving Rana, it has come to light that an individual had manipulated a video of an explicit nature with the intention of falsely portraying Rana Ayyub as the central figure. The incident of this brutal assault took place shortly after she commenced her advocacy for the rape victim in Kathua. An eight-year-old girl was subjected to sexual assault over an extended period of time, resulting in her tragic death. The officials from the BJP in the Jammu area have been running a campaign fighting for the accused individuals, asserting that they have been subjected to unjust discrimination based on their religious affiliation. When Rana Ayyub expressed her concerns, she faced instances of online harassment and hate speech. To address this issue, she employed the use of Twitter as a means of combating such behaviour. A number of manipulated tweets featuring Rana were being shared on the microblogging platform, and she noticed her involvement in some of them[8].

Conclusion & Suggestion

The current cybercrime legislation in India falls short in adequately tackling the issue of deepfakes. The absence of specific regulations pertaining to the usage of AI, ML, or deepfakes in the Information Technology Act, 2000 presents challenges in effectively governing their application. In order to establish effective regulation of crimes involving deepfakes, it may be necessary to consider revising the IT Act of 2000 to incorporate specific provisions pertaining to the utilization of deepfakes and the corresponding repercussions for their misuse. There is potential to strengthen legal protections for individuals whose photos or likenesses are exploited without their consent. Additionally, it may be beneficial to increase penalties for individuals who create or distribute deepfakes with malicious intent.

It is important to bear in mind that the development and deployment of deepfakes pose a global issue, which will likely require collaborative efforts to regulate their usage and prevent infringements on privacy. One effective approach to safeguarding oneself and one’s business from the threat of deepfakes is to exercise caution and diligently verify the authenticity of online content. In the interim, governments may consider implementing the following measures:

1. Censorship technique involves preventing intermediaries and publishers from spreading inaccurate information to the general public.
2. Strategy which is of a more stringent nature, involves ensuring accountability for individuals responsible for the creation or dissemination of disinformation.

[1] https://www.scconline.com/blog/post/2023/03/17/emerging-technologies-and-law-legal-status-of-tackling-crimes-relating-to-deepfakes-in-india/ (Last Visited on 22.11.2023 at 6:20 PM).
[2] Ibid.
[3] Ibid.
[4] https://www.mondaq.com/india/new-technology/1164388/deepfakes–a-threat-to-facial-recognition-technology (Last visited on 22.11.2023 at 6:55 PM).
[5] Jha, Piyush and Jain, Simran, Detecting and Regulating Deepfakes in India: A Legal and Technological Conundrum (March 1, 2021). Available at SSRN: https://ssrn.com/abstract=4411227
[6] Ibid.
[7] https://www.thehindubusinessline.com/news/national/bjp-leader-manoj-tiwari-used-deepfake-videos-to-reach-out-to-voters-in-delhi-report/article30857871.ece (Last visited on 22.11.2023 at 6:58 PM).
[8] https://clt.nliu.ac.in/?p=887 (Last Visited on 22.11.2023 at 7:00 PM).

This article is written and submitted by Diwakar Prakash Garg during his course of internship at B&B Associates LLP. Diwakar is a 4th year BBA LLB student at UPES, School of Law, Dehradun.

The post Deepfake AI And Its Legal Implications In India appeared first on B&B Associates LLP.

Advertisements have a significant impact on consumer choice. Therefore, it is crucial that advertisements are both truthful and fair. False and misleading advertisements are not only unethical, but they also distort competition and consumer choices. These advertisements violate several basic consumer rights, such as the right to information, the right to make choices, the right to be protected against unsafe goods and services, and the right to fair trade practices. Although advertisements aim to promote products or services, they often exaggerate the product’s benefits. However, when they intentionally utter falsehoods or misrepresent facts, thus misleading the consumer, it becomes unacceptable. Big brands deceive people by using misleading trademarks as the name of the product, which eventually misleads the consumers.

Understanding “Trademark”

The word Trademark is defined under the Indian Trademark Act, 1999 under section 2 (zb) “Trademark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours. The Act also defines false trade description under section 2(i) “false trade description” means-

I. a trade description which is untrue or misleading in a material respect as regards the goods or services to which it is applied or

II. any alteration of a trade description as regards the goods or services to which it is applied, whether by way of addition, effacement or otherwise, where that alteration makes the description untrue or misleading in a material respect;

Trade descriptions that are trademarks can still be false descriptions under this Act. The Trademark Act protects registered marks from unauthorised use. The Controller General for Patents, Designs and Trademarks shall manage the registration and dispute of marks. People who are suffering from false advertising and trademark infringement may file complaints with the Intellectual Property Appellate Board (IPAB), and ask for damages such as injunctions or cease and desist orders.

The Trademarks Act of 1999 safeguards registered trademarks from unauthorized utilization. Individuals can lodge complaints with authorities to tackle misleading advertisements or trademark infringements, seeking remedies like cease-and-desist orders, damages, or injunctions. To evade legal consequences and maintain market trust, businesses must ensure the accuracy of their advertisements. The Guidelines are designed to monitor advertisers, preventing misleading or false advertising practices.

Defining Misleading Advertising

Advertisement plays a crucial role in influencing consumers’ buying decisions. However, advertisements must not mislead consumers or make false claims. For instance, an edible oil advertisement should not provide the impression that using a particular oil will make you immune to heart problems. Similarly, a water purifier advertisement claiming to provide 100% safe water should clearly state whether it filters viruses or not. If a cell phone service provider promises STD calls for 40 paise per minute, it should specify that the rate is only applicable when calling numbers serviced by the same provider. Any claims made by manufacturers, such as a refrigerator being the best or keeping food germ-free, should be backed by adequate data. Otherwise, the claims become false statements. Certain brands register trademarks such as “Fresh Juice” or “Fresh Tomato Ketchup.” However, they include a disclaimer on the back of the packaging, stating that the trademarked name does not necessarily reflect the actual characteristics of the product. Given that consumers often do not thoroughly read all the details on the packaging, they may make purchasing decisions based solely on the prominently displayed front-label information.

Global Perspectives on False Advertising

In the USA there is an act known as the Lanham Act which provides a cause of action for false advertising, which allows individuals and companies to bring legal action against false advertisers. To prove false advertising as a form of trademark infringement, the plaintiff must show that the advertising is false or misleading and that the false or misleading advertising has a material effect on the purchasing decision of consumers.

If the plaintiff prevails in a lawsuit for false advertising, they may be entitled to various remedies, such as injunctions, damages, and attorney’s fees. The plaintiff can also seek an injunction to stop the false advertising.

It’s important to note that the standard for false advertising under the Lanham Act is whether the advertising is likely to mislead a significant portion of consumers, even if the advertising is not intended to be misleading. This means that a company can be held liable for false advertising even if it did not intend to deceive consumers.

Examples of False Advertising Trademark Cases

• POM Wonderful LLC vs. Coca-Cola Co.: In this, POM accused Coca-Cola of falsely advertising its pomegranate-blueberry juice blend as being made mostly of pomegranate and blueberry juice, when it contained mostly apple and grape juice.
• Skechers USA, Inc. vs. Nike, Inc.: In this case, Skechers accused Nike of false advertising by claiming that its “Shape-ups” shoes provided health benefits, such as improved posture and weight loss, without sufficient scientific evidence.
• Dannon Company, Inc. vs. General Mills, Inc.: In this case, Dannon accused General Mills of false advertising for claiming that its Yoplait yoghurt contained “active cultures” when some of its products did not contain live and active cultures.
• The Lanham Act provides a legal framework to address false advertising, ensuring that businesses adhere to truthful practices in their marketing efforts.

Companies found guilty of false advertising may face significant legal consequences, emphasizing the importance of transparency and accuracy in product promotion.

Misleading Trademark Ads in India

In India, there has been an increase in misleading ads on trademarks in the past decade. Big brands are misleading consumers by using slogans and including misleading nutrition-related claims especially targeting children, senior citizens and people with certain health problems like diabetes or heart problems. These ads promote health cures, drugs with questionable efficacy, and health gadgets of unknown value. For instance, Vicks Vaporub is not good for inhalation or use in warm water as it contains camphor which is harmful as it can have toxic effects on our body. Ingesting camphor is especially dangerous for young children. Regular ingesting of camphor can cause seizures and death.

Another example of misleading ads is Colgate toothpaste, which claims to be recommended by the Dentist as the best toothpaste but this paste has very harmful chemicals such as Sodium Lauryl Sulfate which is used in detergent, it is used as a foaming agent in toothpaste for almost 100 years. Too much fluoride can cause fluorosis (discoloured spots on teeth). Nevertheless, fluoride intake poses potential risks of severe adverse health effects, encompassing neurological and endocrine dysfunction. A study conducted in 2012 by researchers from Harvard School of Public Health and China Medical University established a compelling association between fluoride exposure and adverse impacts on cognitive development in children. The existing body of knowledge regarding fluoride’s effects remains incomplete, underscoring the need for prudence in incorporating it into our diets.

Moreover, a 2006 study by the US National Research Council of the National Academies, found evidence that fluoride affects normal endocrine function. The endocrine is a system of glands that help control many functions within the body by releasing hormones. Such functions help determine how your heart beats, and how your bones develop and grow, to name a few. Parabens are used to preserve the shelf life of a range of cosmetics, including toothpaste.

Parabens can disrupt hormone function by mimicking the hormone estrogen. In some cases, parabens may lead to breast cancer. Some sites also claim that parabens are linked to developmental and reproductive issues, however, this has yet to be confirmed.

There are various cosmetic products which claim to make the skin lighter in colour, these kinds of ads not only are false but also make a person feel bad about themself. For instance, the famous face cream product by the name of “Fair & Lovely” was very significant in the past decade but after multiple cases of false advertisements the product changed its name to “Glow & Lovely”. There is another example of energy drinks for children which claims that by drinking their energy drinks the child’s height will grow or their energy level will increase not only this but their intellect will increase by that drink but in reality, all these claims are not true, most of the energy drinks for kids contains high sugar which is not ideal for the child growth. Most of these drinks claim to have vitamins and even amino acids which are ideal for bodybuilding but it’s not true, rather simply buying these vitamins is way cheaper. Another drawback of these drinks is that they contain caffeine which is addictive in nature.

The rise of deceptive and false advertising is causing significant concern. In the past, such misleading ads were primarily confined to print media, billboards, and pamphlets. However, with television now reaching a broader audience, including those who are illiterate, there is worry about the increased dissemination of these ads. Moreover, there’s apprehension regarding the extensive use of television networks to promote unverified health remedies and cosmetic products, impacting even the remotest parts of the country. Television’s visual impact surpasses that of newspapers, amplifying the influence of these misleading images.

The internet is also flooded with numerous misleading ads, particularly those promising miraculous health cures. This issue is not localized but rather affects the global community. For instance, in 2002, a worldwide network of consumer protection and health authorities discovered 1400 websites offering unproven health claims and miracle cures, underscoring the widespread presence of false advertising on this relatively new communication platform.

Regulating Bodies in India to Prevent Misleading Ads

Advertising Standards Council of India (ASCI)

The Advertising Standards Council of India (ASCI) was established in 1985 as a voluntary body comprising advertisers, advertising agencies, and the media. It developed an advertising code for self-regulation, centred on four fundamental principles:

1. Ensuring truthfulness and honesty in ad claims to prevent misleading representations.
2. Preventing advertisements from being offensive to public decency standards.
3. Safeguarding against promoting hazardous products unacceptable to society.
4. Ensuring fairness in competition by informing consumers and adhering to accepted business competition practices.

ASCI encourages consumers to report false, misleading, or unethical ads through its Consumer Complaints Cell (CCC). The CCC assesses complaints and presents them for decision-making. If an advertisement breaches ASCI’s code, the advertiser is urged to modify or withdraw it. ASCI members must comply with the CCC’s decision, using peer pressure to influence compliance.

Several instances highlight ASCI’s interventions in misleading advertisements. For instance, ASCI found an advertisement by Ajanta Dento White Toothpaste claiming Indian Dental Association endorsement to be false in 2002. Additionally, a Ford India advertisement showcasing “Ford Ikon NXT” specifications and offers for different models was flagged for misleading details.

ASCI has received complaints regarding various advertisements, including claims by Piramal Healthcare’s Superactiv Complete, Airtel Digital TV’s lifetime free regional pack promise, and Nuzen Herbal Pvt. Limited oil commitments for hair growth, black hair, dandruff reduction, no side effects, and no age restrictions. Additionally, United Spirits Ltd’s billboards promoting McDowell’s Platinum Whisky and Romanov Vodka, and Hindustan Unilever’s TV ad for Clinic Plus Strong and Long Shampoo have faced criticism.

Despite ASCI’s commendable efforts, there are challenges in their process. It takes four to six weeks for the Consumer Complaints Council to review an advertisement and for ASCI to communicate its decision. Advertisers are given two weeks to modify or withdraw the ad. However, ASCI does not issue corrective advertisements. Issues related to self-regulation emerge, including members violating the code or industry members not participating actively. In a specific instance in 2010-2011, while ASCI enrolled 20 new members, 14 did not renew their memberships. This highlights potential challenges within ASCI’s self-regulatory framework.

While ASCI’s efforts are laudable, there are criticisms regarding the time taken (four to six weeks) for the Consumer Complaints Council to review ads and communicate decisions. Although advertisers have two weeks to modify or withdraw ads, ASCI doesn’t issue corrective advertisements. Challenges exist in self-regulation, with instances of non-compliance from certain industry members or new members failing to renew their membership. For instance, in 2010-2011, while ASCI enrolled 20 new members, 14 did not renew their membership, indicating potential issues within the self-regulatory framework.

Central Consumer Protection Authority (CCPA)

The Consumer Protection Act, 2019 defines misleading advertisements as those that falsely describe a product or service, provide false guarantees, or may mislead consumers regarding the nature or quality of the product. To oversee consumer rights and prevent deceptive advertisements, the Central Consumer Protection Authority (CCPA) was established. The CCPA can initiate inquiries into misleading ads either on its own or upon receiving complaints.

Recently, the CCPA gained attention for instructing the discontinuation of an advertisement for a toothpaste brand that showcased endorsements from overseas dentists. It also initiated an investigation into the toothpaste’s bold claims, such as being “recommended by dentists worldwide” and touted as the “world’s no. 1 sensitivity toothpaste.” India’s Consumer Protection Act, 2019 is a key law regulating misleading advertisements and trademarks. The Central Consumer Protection Authority (CCPA) is responsible for investigating complaints and imposing penalties. For violation of provisions related to misleading advertisements under the Guidelines, the CCPA can impose a penalty of INR 10 lakhs on manufacturers, advertisers and endorsers. For subsequent violations, the CCPA may impose a penalty extending up to INR 50 lakhs. As per the CPA, the CCPA may also prohibit the endorser of a misleading advertisement from making any endorsements for up to one year, which can extend to 3 years on subsequent non-compliance.

The Central Consumer Protection Authority (CCPA), marking two years since its establishment in July 2019, issued 129 notices, with 71 aimed at misleading advertisements, 49 for unfair trade practices, and nine for violating consumer rights.

The Chief Commissioner of, Nidhi Khare, revealed that these notices aim to launch a nationwide campaign against counterfeit goods breaching Quality Control Orders (QCOs) by the Central Government. These actions also intend to educate consumers about buying products conforming to BIS Standards.
Specific safety notices were issued regarding various household goods, alerting consumers to avoid products lacking valid ISI marks that could pose safety risks. The CCPA addressed e-commerce platforms, directing them to reveal seller details and product information for consumer protection. Notably, the CCPA’s Class Action provision, a new feature introduced by the 2019 Consumer Protection Act, enables action against unfair trade practices and misleading advertisements affecting consumers collectively. The CCPA’s actions involved halting misleading ads, penalizing companies for false claims, and addressing issues with e-commerce entities, including unfair practices and consumer grievances. The authority also issued guidelines against misleading ads, outlined rules for service charges, and focused on health-related consumer concerns.

Efforts were made towards environmental sustainability, advocating the “Right to Repair” framework to reduce e-waste, aligning with global practices. Several companies withdrew misleading ads following CCPA actions, emphasizing the authority’s efforts toward consumer protection without stifling innovation or imposing excessive restrictions on businesses. The CCPA aims to update and align consumer protection laws with market changes for fair outcomes. The list of companies withdrawing misleading ads includes Siyaram Silks, Lifebuoy, Kent Ro, Asian Paints, Blue Star, Zodiac, Safal Hospitality and Maintenance Services, Berger Paints India Limited, AM Webshop India Pvt. Ltd (Spaces), Naaptol, Sure Vision India, Sensodyne, and Bhanwar Rathore Designer Studio.

There is growing apprehension about the rising prevalence of false and misleading advertisements. Previously confined to print media, pamphlets, and billboards, such ads are now prevalent on television, reaching a wider audience, including those who are illiterate. The surge in advertisements endorsing unproven health cures and beauty gadgets through television marketing networks is particularly worrying, given their reach even in remote areas. Visual impact on television screens surpasses that of newspapers, intensifying concerns, especially when certain television channels actively broadcast such misleading ads.

The misuse of mass mobile text messaging has become a common strategy for disseminating false information about weight reduction products and devices. They often promise satisfaction and a money-back guarantee, but inquiries for refunds go unanswered, raising red flags. Likewise, mass marketing campaigns through emails (viral marketing) frequently promote deceptive get-rich-quick schemes, dubious health claims, or miraculous cures. These practices pose significant concerns and demand attention and resolution.

Conclusion:

Misleading trademark advertisements pose a significant threat to consumers, brands, and the overall integrity of the market. While regulatory bodies in India are actively working to address this issue, consumers must stay informed, critically assess advertisements, and report deceptive practices. Only through collective efforts can India ensure a fair and transparent marketplace where trademarks are used ethically and responsibly.

This article is written and submitted by Riya Sood during her course of internship at B&B Associates LLP. Riya is a 3rd year LLB student at Panjab University.

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The Digital Personal Data Protection (DPDP) Act, 2023 is the first cross-sectoral law in India on personal data protection. The act was under consideration for over 5 years. This act aims to sufficiently protect personal data while striking a balance between an individual’s right to privacy and the necessity of processing it for legitimate purposes. The Act is based on the Digital Personal Data Protection bill withdrawn in November 2022. It also outlines the responsibilities of Significant Data Fiduciaries (SDFs). The Ministry of Electronics and Information Technology (MeitY) states that the Digital India Act (DIA), which will supersede the current IT Rules, will soon supplement the DPDPA. This article covers everything you need to know about the Digital Personal Data Protection (DPDP) Act, 2023 including the background of the law, potential problems with it and the variables that will affect data protection laws in India in the coming years.

Personal Data Protection Bill was introduced in December of 2019 in response to the historic ruling of the Supreme Court in Justice K.S. Puttaswamy and Anr. v. Union of India and Ors. of 2017 stating that the right to privacy is an essential component of the fundamental right to life under the Constitution of India. The proposed law established a preventive framework by placing requirements on organizations that gather personal data, such as obtaining consent, giving notice, securely storing accurate data, utilizing it only for certain reasons, erasing data, and giving customers the ability to access, delete, and transfer their data.

Additionally, it established a new organization known as “consent managers” to gather and offer consent on behalf of individuals.
The earlier IT Act 2000 fell short of addressing the complexities such as cyberstalking and SIM boxing diverting international calls to a cellular device through the internet. The device is called a SIM box, routes the connections back into the network as local calls, using hundreds of low-cost or even unpaid SIM cards, which are often obtained with forged identities. The Act was crafted two decades ago and only had 5.5 million users and now it has nearly 850 million users the act was ill-equipped to handle the current state of the internet.

A thorough, cross-sectoral framework for data protection was suggested in the 2019 Act, with some firms and entities being excluded from notice and consent obligations in specific situations. Additionally, it gave the government the authority to control non-personal data by imposing rules on commercial organizations about how and when to disclose particular data. The General Data Protection Regulation (GDPR) of the European Union served as the foundation for the 2018 bill that the Srikrishna Committee submitted. This bill recommended data protection standards. Despite its widespread scope, the bill had far-reaching consequences. A new approach to data protection regulation is taken by the DPDP Act, which was proposed in November 2022.

Key Feature Of Digital Personal Data Protection (DPDP) Act, 2023

The DPDP Act of 2023 is a less ambitious measure than the 2019 bill. It offers fewer consumer safeguards and fewer requirements for corporations. The regulatory framework is more straightforward on the one hand, but it also gives the federal government unrestrained discretionary authority in some situations.

Definitions:

Some important definitions in Section 2 of the act are:

“(a) “Appellate Tribunal” means the Telecom Disputes Settlement and Appellate Tribunal established under section 14 of the Telecom Regulatory Authority of India Act, 1997;

(g) “Consent Manager” means a person registered with the Board, who acts as a single point of contact to enable a Data Principal to give, manage, review and withdraw her consent through an accessible, transparent and interoperable platform;

(i) “Data Fiduciary” means any person who alone or in conjunction with other persons determines the purpose and means of processing of personal data;
(j) “Data Principal” means the individual to whom the personal data relates and where such individual is—

(i) a child, includes the parents or lawful guardian of such a child;
(ii) a person with a disability, including her lawful guardian, acting on her behalf;

(z) “Significant Data Fiduciary” means any Data Fiduciary or class of Data Fiduciaries as may be notified by the Central Government under section 10”

Applicability to Non-residents

The Act applies to both people and businesses that collect data of Indian citizens. Section 3 of the Act envisages the applicability and non-applicability. This is significant since it also applies to non-citizens living in India whose data is processed “in connection with any activity related to the offering of goods or services” outside of the nation. This can have repercussions for instance if a U.S. citizen residing in India purchases digital goods or services while in India from a company based outside of India.

Purposes of Data Collection and Processing

The Act permits the processing of personal data for any legitimate reason. The party handling the data may do so with the consent of the person being processed or for “legitimate uses,” as given under Section 4 of the Act defines that Data Fiduciaries may only use and process data for legitimate purposes.

In Sections 5 and 6, it is emphasized how important it is to obtain consent when processing data. Consent must be freely given, informed, unambiguous, and require clear affirmative action. The information collected must be limited to what is necessary for the intended purpose, and customers must receive a clear notification outlining all of these criteria. Additionally, they must be informed about the grievance redress procedure and the rights of the affected parties. If consent is used as the legal basis for data processing, people can revoke it at any time.

Section 7 of the Act defines several legitimate uses for personal data. These include:

a) cases where an individual has voluntarily provided their data for a specific purpose;
b) instances where a government department or agency provides any type of subsidy, benefit, service, license, certificate, or permit to an individual, provided that the individual has already agreed to receive a similar service from the government. This may pose a potential problem as it allows different government agencies to access personal data stored elsewhere.
c) Personal data may be used to ensure security or sovereignty.
d) It may be necessary to disclose personal data to meet a legal requirement to provide information to the government.
e) Personal data may be disclosed in compliance with court orders, decrees, or judgments.
f) In cases of medical emergencies, threats to life or health, epidemics, or public health, personal data may be disclosed.
g) Finally, personal data may be disclosed in situations of natural disasters or the collapse of public order.

Obligations on Data Fiduciaries

The Act defines Data Fiduciaries as entities responsible for collecting, storing, and processing digital personal data. Sections 8, 9 and 10 of the act outline the obligations that Data Fiduciaries have to follow. These include:

a) Maintaining security safeguards;
b) ensuring the completeness, accuracy, and consistency of personal data;
c) reporting data breaches to the Data Protection Board of India (DPB) in a prescribed manner;
d) erasing data upon consent withdrawal or the expiry of the specified purpose;
e) appointing a data protection officer to establish grievance redress mechanisms; and
f) obtaining the consent of the parent or guardian in the case of children or minors (those under eighteen years of age) under

Section 9. The law prohibits processing that may have a detrimental effect on children and forbids tracking, behavioural monitoring, and targeted advertising.

Although the Act contains broad obligations, it lacks detailed regulations from the bill. The substantive requirements have been reduced, and Significant Data Fiduciaries (SDFs) are designated based on data volume, sensitivity, risks, sovereignty, integrity, electoral democracy, security, and public order. SDFs must appoint a data protection officer and conduct data protection impact assessments.

Rights of Users/Consumers of Data-Related Products and Services

Chapter 3, which consists of sections 11 to 15, outlines the obligations of data fiduciaries. These obligations include maintaining the security of personal data, ensuring its accuracy and consistency, reporting any data breaches, erasing data when required, appointing a data protection officer, and obtaining consent from parents or guardians. The chapter also explains the rights of consumers. The law prohibits the processing of data that is likely to harm a child and allows the government to prescribe exemptions for specific purposes.

Moderation of Data Localization Requirements

The Act, specifically in Chapter 4 from Sections 16 to 17, grants the government the legal power to notify and regulate data flows to certain countries to promote national security. This does not impact sector-specific organizations, such as the Reserve Bank of India, which are still required to enforce localisation rules.

Exemptions From Obligations Under the Laws

Section 17 of the Act provides certain exemptions to data fiduciaries from the consent and notice requirements in certain cases. These cases include processing personal data by courts or tribunals, enforcing legal rights, and processing non-Indian residents’ data within India. Additionally, certain entities and purposes are not covered by the Act’s provisions, such as maintaining state sovereignty and public order. The government also has the power to exempt certain data fiduciaries, including startups, from certain provisions. However, a problematic provision allows the government to declare exemptions for five years without any guidance on categories or exemptions.

New Regulatory Structure for Regulating Data Privacy

The Indian government introduced a new regulatory institution called the Data Protection Board (DPB) under sections 18 to 28 of the Act. The board is responsible for preventing data breaches, conducting inquiries, and issuing penalties as defined under respectively. The government will appoint the board members and prescribe their terms and conditions. The DPB has the power to impose monetary penalties and allows data fiduciaries to provide voluntary undertakings as settlements. The government can also block public access to information under section 37 of the Act, allowing data fiduciaries to provide goods or services in India.

Highlights Of Data Privacy and Protection (DPDP) Act

India’s Data Privacy and Protection Act (DPDP Act) of 2023 is the country’s first law aimed at safeguarding personal data. The law mandates obtaining consent before processing personal data and grants consumers the right to access, correct, update, and erase their data. It also requires businesses to provide notice of data collection and processing and mandates security safeguards for children’s data. The DPB is responsible for handling complaints and issuing penalties. The Act aims to establish minimal standards of behaviour and compliance among data-collecting businesses.

However, certain provisions in the Act could potentially undermine its protections. The exceptions for consent empower the state, placing state imperatives on a different pedestal than private entities. For instance, Section 7(b) allows the government to sidestep consent requirements when a government service beneficiary has consented to receive other benefits from the state. This could allow easier access to personal data but also creates the potential for the government to aggregate databases.

Section 17(1)(c) exempts requirements for notice and consent for investigative, prosecutorial, and national security purposes, but Section 17(2)(a) provides a blanket exemption for any government agency. This creates a separate category of activity beyond data privacy requirements, which is problematic as India is not subject to many constraints as a private entity. The government’s discretionary rule-making powers could also undermine the protections provided in the law. For example, Section 17(5) could allow sunrise industries or startups some time to comply with the law, but it does not provide any guidance on how these exemptions can last.

Under Sections 9(1) to 9(3), the government has the authority to exempt businesses from processing children’s data. However, the provision lacks clear guidelines, making it prone to misuse and failing to specify grounds for exemption.

The Act has been criticized for its lack of guidance and potential violation of the Indian Constitution. The act reduces rights and obligations, such as data portability and the right to be forgotten, and it excludes criminal offences, imposing only monetary penalties directed by the DPB. Moreover, the act eliminates the role of the independent regulator, limiting its powers to ensure data breaches and issuing compliance directions The Indian government’s evolving stance on data protection law reflects its growing recognition of its importance to the economy.

The Act which was in effect for four years, has faced numerous design and implementation issues. The early bill of 2017 and 2018 were motivated by the Supreme Court’s declaration of privacy as a fundamental right and its upcoming ruling on the constitutionality of India’s biometric ID project, Aadhaar. The Supreme Court upheld Aadhaar’s use for certain purposes, resolving potential constitutional law issues. The pragmatic version of the law was drafted after deliberations, but state functions have consistently been exempted from data protection requirements. The 2019 bill allowed the central government to exempt national security agencies and other Government uses of data that do not relate to security.

Aiming Forward to See the Data Protection Law in Operation

The DPDP Act grants significant rule-making powers to the central government, including:

• The manner in which consumer notices are given,
• Consent managers function,
• Businesses have to inform consumers and the DPB about data breaches,
• Parental consent is sought for processing children’s data,
• Consumers exercise their rights against data fiduciaries,
• The appointment of DPB members,
• Data impact assessments, and the procedure for hearing appeals from the DPB.

The DPDP Act in India permits greater experimentation and innovation in the technology sector but also retains significant rule-making powers. The drafters of the law must consider whether it is a first step towards establishing an independent regulator, as the lack of prior regulatory experience in data protection may require greater political input. Decisions made by the DPB in data privacy inquiries will shape jurisprudence and guide businesses in implementing and complying with the law.

The DPDP Act will significantly impact India’s technology markets and data-related policies in the coming years. The central government will incorporate best practices in administrative law and decision-making through procedural rules. The development of data protection regulations will be influenced by the call for sovereign control over Indian data and data businesses, with concerns over sovereignty and security influencing the final law. The Indian government’s Section 37 of DPDP Act allows the central government to block access to information communicated by data fiduciaries. The changing landscape of laws regulating social media companies, IT services, and businesses will also impact data protection regulation. In 2021, the Indian government issued guidelines for social media intermediaries that required, among other measures, the tracing of originators of social media content on over-the-top (OTT) messaging platforms, which is currently being challenged in courts. The increasing adoption of localization by other regulators may render the liberal provisions of the DPDP Act unnecessary.

Conclusion

The DPDP Act is a legal framework for personal data protection that has been in place for five years. However, it may not be enough to ensure complete data privacy. The evolution of the law reflects the government’s changing stance on privacy While the current version of the law has lower charges, it is more beneficial to Indian businesses, it may not always protect privacy interests in certain situations. The effectiveness of the law will depend on the government’s ability to uphold individual privacy rights.

This article is written and submitted by Riya Sood during her course of internship at B&B Associates LLP. Riya is a 3rd year LLB student at Panjab University.

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The Indian judiciary is attributed with an aggressive and intimidating cross-examination procedure. Confrontations of a ruthless nature are evident and the hostile environment of a courtroom adds to the woes of an already disturbed and dissatisfied victim. This adage had been iterated by the Apex court in the case of Mallikarjun Kodagali (Dead) v. State of Karnataka & Ors.,wherein the court outlined the lack of a victim-centric approach concerning the Indian criminal jurisprudence.

Delhi High Court, in the case of Karan v. State of NCT of Delhi, issued a slew of directions to the District Legal Services Authority (DLSA) to bring into being the practice of submitting a Victim Impact Report (VIR) in consultation with the victim, to facilitate the court in forming the judgment while sentencing the accused. However, these directions continued to remain only on paper and did not come to life.

Victim Impact Statement (VIS) can be said to be the statement made by a victim either in oral or written form throwing light upon the quantum of loss, harm or impact he/she has suffered due to the crime which has been committed upon them after the accused has been convicted. These statements ensure that the trial procedure becomes much more sensitive because in the case of VISs, the judge can get a hang of the financial, emotional and physical hardships of the victim and it also gives relief to the victim that their grievances have been heard.

Development Of Victim Impact Statements

The very foundation of an impartial criminal justice system is based upon the access to justice that is available to the victim and the society at large. The United Nations Declaration of Basic Principles of Justice for Victims of Crime & Abuse of Power, 1995 further provides for this ideal in one of its postulates. The said postulate provided that the victim should be given ample opportunity to put forward their grievances and concerns and that a victim should not be reduced to being a forgotten man.

The idea of the Victim Impact Statement has become a part and parcel of various justice systems across the globe, it is widely regarded as a potent platform for a victim to shed light upon their sufferings, how has the crime affected them, how cumbersome they found the criminal justice procedure to be and also mention about the possible secondary victimisation which they were subjected to while the trial was taking place.

Victim Impact Statements have been incorporated in jurisdictions like Canada, Australia, the United Kingdom and all the fifty states of the United States.

Difference Between VIS And A Victim’s Statement During Trial

The prime difference between VIS and a statement taken from a victim during the trial is that VIS is recorded after the trial has come to an end and conviction has taken place. These statements do not concern themselves with the nitty-gritty of the crime like the particular details but they are about the impact which the said crime and the trial had on the victim. VIS is mandated to be taken at the stage of the sentencing of the accused to provide insight to the judge on how to form a sentence for the accused. The victim in a VIS can also provide for a punishment with which they will feel relieved like time in prison, community service, etc.

VIS is meant to stand on two limbs, the first is to apprehend the impact the crime had on the victim and how can the victim be appropriately provided with reparation. And secondly, to devise possible policies to make sure that the future victims of a crime of a similar nature do not have to suffer the same hardships.

Importance Of VIS In Criminal Justice Reform

The moral justification for including victim impact statements (VIS) is to acknowledge the harm that the victim has suffered and to give them a voice in the criminal justice process. This can help victims to feel less helpless and more empowered. VIS can also provide psychological relief to victims by allowing them to confront their offender in a safe space.’

The penological perspective argues that victim impact statements (VIS) are necessary for effective sentencing, as they provide information about the harm caused to the victim and the offender’s need for retribution, incapacitation, deterrence, and rehabilitation. VIS also help judges to understand the human cost of crime.

VIS are important because they give victims a voice in the criminal justice system and can help offenders to understand the impact of their crimes. In some cases, VIS can also lead to the reformation of offenders by assisting judges to devise appropriate measures for punishment or rehabilitation.

Conclusion

Victim Impact Statements (VIS) are a crucial tool for reforming the Indian criminal justice system. They give victims a voice and allow judges to understand the full impact of crime. VIS is also an important step towards holding offenders accountable for their actions.

The Indian judiciary should take steps to implement VIS on a nationwide scale. This could be done by amending the Code of Criminal Procedure to make VIS mandatory in all cases. The government could also provide training for judges and other criminal justice professionals on how to handle VIS sensitively and respectfully.

The implementation of VIS would be a significant step forward for victim rights in India. It would show that the criminal justice system is committed to supporting victims and ensuring that they have a say in the process.

This article is written and submitted by Devam Krishnan during his course of internship at B&B Associates LLP. Devam is a B.A. LLB 4th year student at National University of Study and Research in Law, Ranchi.

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The United Nations Charter (Art. 2.7) forbids such intervention and upholds the non-intervention or non-interference principle, which states that States should not intervene in matters to preserve the independence of weaker states against the interventions and pressures of more powerful ones. Since this idea serves as the cornerstone of international relations, it only applies to interactions between states and not to humanitarian efforts carried out by unbiased humanitarian organizations.

There are several types of intervention, including humanitarian intervention, which is the use of military force to protect human rights in another state. Another type of intervention is economic intervention, which involves using economic pressure to influence another state’s policies. Political intervention is another form of intervention, which involves interfering in another state’s political affairs.

In the past, States have employed humanitarian arguments to justify direct and armed interventions that violated other States’ sovereignty. The International Court of Justice (ICJ) clarified in 1986 in the case of Nicaragua v. United States of America, the circumstances in which humanitarian aid can constitute an interference and as such an unlawful intervention into the internal affairs of a State. Today in this contemporary world, the UN Security Council holds the monopoly on the use of armed force in the international arena.[1]

Only one “right of intervention” into a State’s internal affairs is acknowledged by international law; it is outlined and limited in Chapter VII of the UN Charter. Thus, the UN Security Council is granted this authority whenever a state’s actions pose a danger to global peace and security. The Council can adopt a number of actions in this situation, including economic or diplomatic sanctions. The Council may also decide that an international armed intervention is required to stop the activity of the State in issue. The Council is also permitted to deploy force if needed.

Therefore, it’s crucial to distinguish between “humanitarian intervention” supported by States or the UN and humanitarian actions carried out by unbiased humanitarian organisations in conflict situations.

Background and Definition of “Intervention”

Due to its ambiguity, the idea of the “right of humanitarian intervention” or the “right to intervene for humanitarian purposes” has gained a lot of support. This idea was put forth in an effort to support and legitimize the use of force permitted under the UN framework in order to defend populations that were endangered within their own nation. This allowed for armed operations to take place within the framework of the UN or with its approval, but it failed to make clear the responsibility of UN soldiers for protecting vulnerable populations or the role that humanitarian concerns play in decisions to use force.
Since ancient times, states have used noble goals to defend armed intervention in the internal affairs of other States.[2] These grounds include protecting minorities, human rights, and their own citizens. It started with the idea of a “just war,” then the notions of European nations intervening to defend Christian minorities in the Ottoman Empire in the nineteenth century (1827, 1860, when 6,000 French soldiers were dispatched to Syria to stop the massacre of Christians; Russian interventions in 1877 to defend Christian minorities in Bosnia and Herzegovina within the Ottoman Empire). More recently, India intervened in Pakistan in the 1970s to defend the Bengali people from military extortion (1971).

When carried out unilaterally by one State, modern international law does not acknowledge the validity of such action. In 1945, a system of collective security established by the United Nations Charter took the place of just wars, holy wars, and other interventions motivated by humanitarian considerations. A single State may no longer decide to launch a military intervention, with the exception of self-defense, regardless of the potential basis for such an intervention.

In a multilateral setting, only the threat that a state poses to global peace and security can support the use of collective force against that State as authorized by Chapter VII of the UN Charter. These clauses do not specifically address violations of humanitarian law.

When approving the use of international armed force in peacekeeping missions, several Security Council Resolutions cited the protection of humanitarian action — or flagrant violations of human rights—as justification. However, in reality, these interventions had military, political, and diplomatic goals. Humanitarian corridors or safe zones have tragically failed in several cases to safeguard populations.

Additionally, militarization of humanitarian aid—with the presence of international armed forces—has a detrimental effect on its objectivity and has a propensity to radicalise war tactics. NGOs have no influence or control over the ideas contained in this notion. Interventions carried out under the authority of the Security Council — or approved by it — remain dependent on the military resources that States will provide to the UN and the political decisions and consensus that change depending on external restrictions.

Most peacekeeping missions involve signing agreements with the “host State” under the auspices of the UN that establish the force’s presence.[3] Since access and protection are negotiated with the very authorities in charge of controlling the population, neither access nor protection are frequently enforced. Even when doing so is necessary to deliver relief or defend populations that are in danger, UN peacekeepers hardly ever engage in battle to carry out their duty. Their decision not to intervene—even in situations where their enforcement mandate had been enlarged to include use of force—when the communities they were meant to assist or protect were being attacked has been explained by the type of equipment they carry (light guns) and their very modest numbers.

With the approval of the State in question, Chapter VI of the UN Charter offers the possibility of conducting non-coercive international operations. On the other hand, Chapter VII allows for the option of conducting collective military operations without the approval of the State in question in situations when the integrity and safety of the international community are under danger. The UN occasionally decides to engage in a “humanitarian intervention” under Chapter VI of the UN Charter, but more usually under Chapter VII, or occasionally under a combination of the two. These decisions typically imply that:

• the UN Security Council has not expressly or clearly recognized that the massive violations of humanitarian law or the persecution of civilian populations, against which it has decided to intervene, genuinely represent a threat to international peace and security; and
• the UN does not have the material means or the military doctrine for these operations to enforce the protection of these populations through force.

Landmark cases on Intervention

The Republic of Nicaragua v. the United States of America: Background and brief facts

This case was about the military activities which were conducted directly, or with the help of the United States. In 1909, the United States of Americas’ military and marine rule deposed the President of Nicaragua and established their rule by occupying the territory of Nicaragua.

A Pro-US government was constituted which led to the formation of several treaties between the two States. These treaties gave exclusive rights and privileges of trade, transport, commerce, and access of Nicaragua to the United States. This led to a rebellion in Nicaragua between 1927 to 1934 which resulted in forcing the United States to leave Nicaragua while withdrawing the marines.

Somoza, who was the head of the Nicaraguan National Guard was instated as the head of the State by the United States. He later ended up becoming the dictator of Nicaragua.

In 1972, an earthquake occurred in Nicaragua, which led to large-scale destruction in the country. After the earthquake of 1972, the Sandinista (FSLN) Movement was seen rising. The purpose of this movement was to provide support to the affected people, regardless of their position in society. This Movement later ended up transcending to a rebellion against the Somoza governed dictatorship rule of the Country.

This threatened the control of the United States over Nicaragua. As a consequence, the United States stopped its aid to Nicaragua around April 1981, and later in September 1981, Nicaragua claimed that the United States decides to plan and undertake activities directed against the country. This was followed by armed activities being conducted against the government which was formed in Nicaragua. These activities were mainly carried on by FDN (Fuerza Democratica Nicaragüense) and ARDE (Alianza Revolucionaria Democratica). The former operated along the border of Honduras and the latter along the border of Costa Rica. Later they resorted to the formation of Contras. Contras was a rebel group formed for the purpose of suppressing the Sandinista (FSLN) Movement and continuing with the dictatorship rule. This was still covert support.

Alas, Contras lost and the involvement of the United States by way of supporting the organization led to the violation of the sovereignty of Nicaraguan, the government of Nicaraguan filed a claim before the International Court of Justice against the United States.

Issues Raised And Arguments Presented

1. Whether the International Court of Justice had the jurisdiction to try and adjudge the matter?

The US claimed that the International Court of Justice had no jurisdiction to try and adjourn the matter as the UN Charter and the Charter on the Organization of the American States are multi-lateral treaties and an essential element to try a case as such is that all members of the treaty are parties to the case. Given the absence of other members, the United States claimed that the International Court of Justice doesn’t have jurisdiction in the present matter.

The United States also claimed that the provisions invoked by Nicaragua have been reserved by them and so the International Court of Justice is not competent to pass any judgment based on them.

2. Whether the support by the United States to the Contras amount to interference with the sovereignty of Nicaragua?

Nicaragua argued that the role that the United States played by giving rise to Contras and assisting them directly to suppress the Sandinista (FSLN) Movement was a clear intervention in the internal affairs of the country and hence in violation of the Convention on the Rights and Duties of the States.
Apart from this, Nicaragua also claimed that the attacks done by the United States by way of land, air, and sea where a violation of the International Laws of Land and Seas. It was an act of aerial trespass which violated several international laws and treaties

3. Whether the United States has violated Article 2 of the UN Charter, Articles 18 and 20 of the Charter on the Organization of the American States, and Article 8 of the Convention on the rights and duties of the States?

The argument raised by Nicaragua was that the United States had recruited, trained, and equipped the recruits with arms to cause disruptions and stir up violence in Nicaragua. This was a clear violation of Article 2(4) of the U.N. Charter as the members were refrained to use force against the political independence and territorial integrity of any State. The United States government had taken unauthorized military actions against Nicaragua and since this was not an act of self-defense, it was a clear violation of Article 18 and 20 of the Charter on the Organization of the American States.

The United States also pled self-defense to surpass the accusation of violating Article 18 of the Charter on the Organization of the American States.

Rule of Law

1. Article 2 of the UN Charter

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

2. Article 18 of the Charter on the Organization of the American States

The American States bind themselves in their international relations not to have recourse to the use of force, except in the case of self-defense in accordance with existing treaties or in fulfillment thereof.

3. Article 20 of the Charter on the Organization of the American States

All international disputes that may arise between the American States shall be submitted to the peaceful procedures set forth in this Charter, before being referred to the Security Council of the United Nations.

4. Article 8 of the Convention on the Rights and Duties of the States

No state has the right to intervene in the internal or external affairs of another.

Judgment

This was a 142-page judgment, containing 291 points of the verdict. The arguments put forth by the United States regarding multilateral treaty reservations were valid. This made it difficult for the Court to depend upon the UN Charter. So, the court ended up developing a significant jurisprudence on customary international law.

The Court in passing this judgment observed that:

1. There did exist a direct relationship between members of Contras and the United States government.
2. The United States government was in fact directly involved in recruiting and supplying arms to members of Contras which lead to violence being provoked in Nicaragua
3. The United States government did commit illegal trespass by way of marines and armed forces resulting in violation of the laws of Sea and Air
4. Sufficient evidence has been found to conclude that the sovereignty of Nicaragua was hampered directly by the acts done by the United States government.
5. The claim of self-defense was rejected as it lacked merit.
   The International Court of Justice held that the United States is liable for the violation of several international treaties and customary international laws. It was ordered to withdraw support from Contras and put an end to the attacks on Nicaragua. The court also ordered reparations against the United States.

It was also observed that the independent nature of treaty law in comparison to the existence of customary laws. A controversial aspect of this judgment was the definition given of armed attack. The court held that an armed attack includes action taken by an armed force beyond the international border and sending any groups of people to carry out acts of armed force against another state.

This part of the judgment closely resembles Article 3(g) of the UNGA Resolution 3314 (XXIX) on the Definition of Aggression.

This judgment is set based on the customary international laws on matters relating to the elements which are necessary to establish customary international laws, the relationship between customary law and treaty law, and lastly, using force and non-intervention. In spite of the multilateral treaty reservations, the court ended up relying on the multilateral treaties which helped determine the customary international laws. The court goes into great detail to establish the relationship between the treaty and international laws.

Legality of Intervention

The issue of intervention in international law has been a contentious one, with many nations holding differing views on the legality of such action. Intervention can be defined as the use of force or other means by one country to influence the affairs of another sovereign nation. This article explores the legality of intervention in international law and the various arguments for and against such action.

The legality of intervention in international law is a complex issue that is often debated in political and legal circles. The principle of non-intervention is enshrined in international law and is a fundamental aspect of the principle of state sovereignty.[4] However, there are certain circumstances where intervention may be deemed legal under international law.

Self-Defense:

One of the most commonly cited justifications for intervention is self-defense. According to Article 51 of the United Nations Charter, states have the right to use force in self-defense against an armed attack. However, the use of force in self-defense must be proportional to the threat faced and must be reported to the UN Security Council.

Humanitarian Intervention:

Another justification for intervention is humanitarian intervention, where a state or group of states intervenes in another state to prevent or stop widespread human rights abuses. The legality of humanitarian intervention is contested, with some arguing that it is a violation of state sovereignty while others argue that it is justified to prevent human suffering.

Responsibility to Protect:

The Responsibility to Protect (R2P) is a principle endorsed by the United Nations that places a responsibility on states to protect their citizens from genocide, war crimes, ethnic cleansing, and crimes against humanity. The R2P also recognizes that if a state fails to protect its citizens, then the international community has a responsibility to intervene to prevent or stop such crimes. The R2P has been invoked in several instances of intervention, including in Kosovo and Libya.

Unilateral Intervention:

Unilateral intervention, where a state intervenes without the approval of the UN Security Council or the consent of the state being intervened upon, is generally considered illegal under international law. The use of force without UN approval is a violation of the UN Charter, which requires states to seek authorization from the Security Council before using force.

Conclusion

In conclusion, the meaning of intervention is the interference by one state in the affairs of another state. The legality of intervention in international law has been a subject of much debate. While some argue that intervention is illegal because it violates a state’s sovereignty, others argue that it is legal under certain circumstances. These circumstances include self-defense and humanitarian intervention. The use of economic intervention is also a subject of much debate, with some arguing that it is legal under international law and others arguing that it is a violation of a state’s sovereignty. Ultimately, the legality of intervention in international law depends on the circumstances surrounding it.

[1] Malcolm N. Shaw, The Concept of International Law, 3rd ed. (Cambridge: Cambridge University Press, 2003), 21-23.
[2] Martti Koskenniemi, “International Law and Hegemony: A Reconfiguration,” Cambridge Review of International Affairs 18, no. 1 (2005): 25-47.
[3] Anne-Marie Slaughter, “International Law and International Relations Theory: A Dual Agenda,” American Journal of International Law 87, no. 2 (1993): 205-239.
[4] Chimène Keitner, The Optimalism of International Law, 97 Va. L. Rev. 1859 (2011).

This article is written and submitted by Devam Krishnan during his course of internship at B&B Associates LLP. Devam is a B.A. LLB 4th year student at National University of Study and Research in Law, Ranchi.

The post Intervention: Meaning And Its Legality In International Law appeared first on B&B Associates LLP.

The present suit had been filed by the plaintiff after being aggrieved by the passing of committed by the defendant, the defendant had been manufacturing identical shoes resembling the range of shoes offered by the plaintiff company. The ‘RED SOLE’ mark of the plaintiff company had already procured the tag of being a well-known mark under Section 11(6) of the Trade Marks Act, 1999 by the Hon’ble Delhi High Court in the case of Christian Louboutin SAS v. Mr Pawan Kumar,[2].

To affirm the reputation and the goodwill which the plaintiff company had garnered over the years, the Court took ChatGPT’s help. The Query which was asked was, “Is Christian Louboutin known for spiked mens shoes?”

To which the AI platform replied, “Yes, Christian Louboutin is known for their iconic red-soled shoes, including spiked styles for both men and women. The brand’s Spike adorned Footwear has become quite popular and it is often associated with their unique and edgy designs.”

The court however was hesitant upon recognizing the plaintiff’s sole monopoly over the range of spiked shoes or coloured shoes, in order for the court to grant an injunction, it should be fully satisfied that the impugned products are colorable or malafide copies of the plaintiff’s products. For this purpose, counter questions were posed to ChatGPT. The query which was asked was, “Is there any brand known for manufacturing & selling shoes with spikes and studs on the outer body?”

The platform answered, “Yes, there are several brands known for manufacturing and selling shoes with spikes and studs on the outer body. One of the most well-known brands in this category is Christian Louboutin. They are particularly famous for their high and luxury shoes with red lacquered soles and often Incorporated spikes and stars in their designs. Another brand is Jeffrey Campbell which offers a range of unique and edgy footwear styles including shoes with spikes and studs. Demonia is another brand that specializes in alternative and Gothic Footwear often featuring spikes and starts as part of their design elements. Keep in mind that fashion trends and brands can change over time so it’s a good idea to search online or visit fashion retailers to find the most current options for shoes with spikes and studs.”

To clear this position, a further query was placed before the AI platform to give a list of brands that make shoes with spikes and studs on the outer body of the shoes. To which the platform replied with a name of certain brands like those of Christian Louboutin, Valentino, Alexander McQueen, Jeffrey Campbell, Ash, Sam Edelman, Steve Madden, Giuseppe Zanotti, Demonia, Iron Fist.

The court finally observed that:

“The above responses from ChatGPT as also the one relied upon by the Plaintiffs shows that the said tool cannot be the basis of adjudication of legal or factual issues in a court of law. The response of a Large Language Model (LLM) based chatbot such as ChatGPT, which is sought to be relied upon by ld. Counsel for the Plaintiff depends upon a host of factors including the nature and structure of the query put by the user, the training data etc. Further, there are possibilities of incorrect responses, fictional case laws, imaginative data etc. generated by AI chatbots. The accuracy and reliability of AI-generated data are still in the grey area. There is no doubt in the mind of the Court that, at the present stage of technological development, AI cannot substitute either human intelligence or the humane element in the adjudicatory process. At best the tool could be utilised for a preliminary understanding or preliminary research and nothing more.”

The court ruled in favour of the plaintiff company and observed that the products of the defendant company were a sole attempt to make undue gains in the garb of the reputation and goodwill of the plaintiff company. Hence, the defendant company was asked to pay compensation to the plaintiff company for the losses which had been incurred.

Conclusion

AI platforms should not be relied upon to decide issues in a legal case because they are not yet capable of making complex legal decisions in the same way that a human judge can. AI platforms are still under development and are prone to bias, which could lead to unfair decisions. Additionally, AI platforms are often trained on large datasets of data, which can be expensive to develop and maintain. As a result, they could be inaccessible to some people.
In addition to these technical challenges, there are also ethical concerns about using AI in the legal system. For example, some people worry that AI could be used to automate decisions that should be made by humans, or that it could be used to create unfair or discriminatory outcomes.

[1] Christian Louboutin Sas & Anr. V. M/S The Shoe Boutique – Shutiq, CS(COMM) 583/2023
[2] CS(COMM) 714/2016

This article is written and submitted by Devam Krishnan during his course of internship at B&B Associates LLP. Devam is a B.A. LLB 4th year student at National University of Study and Research in Law, Ranchi.

The post Responses From AI Chatbots Cannot Be Cited To Decide Issues appeared first on B&B Associates LLP.

The Apex Court of our country in a very recent judgment in the case of Supriyo v. Union of India,[1] delved into the nuances of same-sex marriage. The judgment laid down the position of law on the long-standing question of the validity of same-sex unions. The Constitution bench which had been constituted for the adjudication of the case unanimously observed that same-sex were not to form part and parcel of the Special Marriage Act, 1954, thus, not forming the part of the term ‘marriage’ within the act.

The offshoot of this position is the denial of legal recognition of queer marriages in India. Although, the Constitution bench pronounced four judgements, authored by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice PS Narasimha respectively, with Justice Hima Kohli concurring with Justice Bhat’s disposition, all of the judges in chorus observed as to not read down or repeal SMA, 1954. The court was of the opinion that reading queer marriages within the domain of the SMA, 1954 would amount to interfering in the domain of the legislature and this is very much a legislative exercise.

The petitioners in the present case had prayed before the court to interpret the terms ‘man’ and ‘woman’ under Section 4 of the SMA, 1954, to include queers within the purview, this would have qualified queer unions within the aegis of the SMA, 1954.

Court’s Reasoning

1. Interpreting Special Marriage Act, 1954 to Include Queer Marriages Has a ‘Complex Workability’

According to the judgement authored by CJI DY Chandrachud, Section 21A of the SMA, 1954, relates the legislation to the phenomena of personal and non-personal laws relating to succession making the idea increasingly intricate. Furthermore, CJI Chandrachud also laid emphasis on the fact that in the case even the petitioner had to come up with a lengthy blueprint on the effects that reading of queer marriages under SMA, 1954 would have. Furthering the discussion on this point, Justice Kaul, in his judgement, observed that the offshoots which bestow upon tying the knot are very much like a “proverbial ‘spider’s web’ of legislations and regulations” and thus, any fiddling with SMA, 1954 to include queer marriages within its domain would have had a chilling effect on many allied laws.

2. Abandoning Special Marriage Act, 1954 Would Have Transported Us Back to Independence Times

The CJI, in his judgement, observed that SMA, 1954 was enacted with the sole intention, to enable individuals from two different social standings to form the union of marriage. In this, regard if the court were to hold down SMA, 1954, it would inevitably take the country back to independence times when express restrictions in this regard had been imposed by the societal discourse. He further observed:

“Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another.”

Justice Kaul, concurring with this opinion of CJI Chandrachud, observed that the mandates of SMA, 1954 provided for “A special form of marriage” that was available to any individual in India notwithstanding their social status or their social attributes and thus laid down a mechanism of secular solemnization and registration of marriage in the country.

3. Incorporation of New Meanings in Special Marriage Act, 1954 Would Amount to Entering the Domain of the Legislature

The CJI, in his judgement, observed that incorporation of new meanings of terms under SMA, 1954 would amount to overreach into the legislature’s domain. He observed that a judicial institution like the court is not well equipped to make a decision of this magnitude because of the far-reaching impacts the same would have. The CJI held that:

“This Court would in effect be redrafting the law(s) in the garb of reading words into the provisions. It is trite law that judicial legislation is impermissible.”

Elaborating further, it was observed that the decision to make amends in SMA, 1954 is very much the task of the legislature because of the amount of data and policy statistics it possesses. CJI Chandrachud further observed that courts of law while interpreting law should be aware of their boundaries and should not cross into the domain of the legislature in the name of judicial activism. Justice Kaul in his judgement, was of the opinion that indeed SMA, 1954 was unconstitutional as it violated Article 14 of the Indian Constitution as it denied equal matrimonial rights to queer couples, he did concur with the opinion of CJI and observed due to the institutional bottlenecks and limitations, the Supreme Court was not entitled to take decisions of this magnitude and the same should be left to the disposal of the legislature.

4. Constitutionality Test of Special Marriage Act, 1954

The issue of the constitutionality of the SMA was the issue where varying opinions of judges came forward. Justice Kaul in his view observed SMA, 1954 to be violative of Sections 14 and 15 of the Indian Constitution. His opinion revolved around the contention that even if the objective behind the enactment of the SMA, 1954 was to facilitate inter-faith unions, no reasonable classification or intelligible differentia can be culled out from the policy of excluding queer marriages within its domain. He observed that this unjust exclusion of same-sex marriages under the mandates of the SMA, 1954, would be violative of our constitutional morals, especially after the judgment of this court in the case of Navtej Johar v. Union of India,[2] wherein the court forbade any discrimination made based on the sexual orientation of an individual.

Justice Bhat, addressing for himself and Justice Kohli, was of the view that SMA, 1954 cannot be held to be violative of our Constitution as, during its passage, SMA, 1954 had been passed keeping in mind the sole objective of enabling inter-faith marriages in the country. He further observed that the legislation did not specifically try to exclude non-heterosexual couples from its ambit but the same at that time was considered to be an offence under Section 377 of the IPC. Adding to this, he viewed that the original object behind the enactment of SMA, 1954 cannot be called into question just because of the fact that due to the passage of time, the said object has become somewhat static. He stated:

“The relevance of SMA has gained more ground, because of increasing awareness and increasing exercise of choice by intending spouses belonging to different faiths. It cannot be said, by any stretch of the imagination that the exclusion of non-heterosexual couples from the fold of SMA has resulted in its ceasing to have any rationale, and thus becoming discriminatory in operation. Without a finding of that kind, it would not be open to the court to invoke the doctrine of “reading down”.”

5. Gender-Neutrality of Terms Under Special Marriage Act, 1954 Would Lead to ‘Anomalous’ End Results

Justice Bhat, in the judgment authored by him, concerned himself with the outcomes that gender-neutral terms under the SMA, 1954 would have on the society at large. He contended that such an interpretation, though it sounds very liberal would unnecessarily act as an impediment for women.

He emphasized that terms like ‘wife, ‘husband, ‘man,’ and ‘woman’ in marriage laws, as well as laws concerning themselves with sexual violence and harassment, were meant to safeguard socially backward strata of the society. These terms were tailored, to ensure that the marginalized class, in most cases them being women are not denied a legal recourse. Here, reference may be made to the provisions and mandates of the Domestic Violence Act, 2005 and the various provisions under the SMA, 1954 which provides for alimony, maintenance and other ancillary matters.

Justice Bhat was of the opinion that the general outlook of these provisions along with the quantum of good they do for women, would inevitably lead to anomalous and atypical outcomes if the SMA was sought to be interpreted in a gender-neutral fashion.

Conclusion

In its recent judgment in the case of Supriyo v. Union of India, the Supreme Court of India has denied legal recognition of same-sex marriages in the country. The court’s ruling is a setback for LGBTQ+ rights in India, but it also leaves the door open for the legislature to pass legislation legalizing same-sex marriage. The court’s reasoning for denying legal recognition to same-sex marriages is based on several factors, including the complexity of interpreting the Special Marriage Act, 1954, to include queer couples, the potential for unintended consequences of such an interpretation, and the court’s belief that the issue of same-sex marriage is best left to the legislature to decide.

While the court’s ruling is disappointing, it is important to note that the court has not explicitly ruled that same-sex marriage is unconstitutional. In fact, the court has left the door open for the legislature to legalize same-sex marriage, stating that “the Parliament is the supreme law-making body in India and it is competent to enact any law within the ambit of its legislative powers.”

[1] Supriyo v. Union of India, 2023 SCC OnLine SC 1348
[2] Navtej Johar v. Union of India, (2018) 10 SCC 1

This article is written and submitted by Devam Krishnan during his course of internship at B&B Associates LLP. Devam is a B.A. LLB 4th year student at National University of Study and Research in Law, Ranchi.

The post Non-Inclusion Of Same-Sex Marriage Under SMA, 1954: Supreme Court’s Reasoning appeared first on B&B Associates LLP.