Delhi High court grants interim injunction; restrains Glenmark from selling generic version of anti-diabetic drug Januvia (Sitagliptin)

On April 2013, Glenmark launched the generic version of Merck’s popular antidiabetic drug Januvia (Sitagliptin) and Janumet (combination of sitagliptin and Metformin). Subsequently Merck filed a suit against Glenmark seeking interim relief. The Delhi HC (Justice Rajiv Sahai Endlaw) denied interim relief to Merck. After denial of interim relief, Merck was also briefly engaged in mediation with Glenmark over the Januvia patent. Readers may recall that we had blogged about it here here and here. Aggrieved by the denial of interim relief Merck also filed an appeal, seeking injunction.The Delhi High court division bench granted the interim injunction. This post aims to analyze the interim injunction order. IN209816 (product patent claiming Sitagliptin) is the subject of the present suit.(Long post warning*)

Merck’s arguments:

Merck contended that Sitagliptin Phosphate Monohydrate cannot be prepared without manufacturing the active ingredient, the Sitagliptin molecule. Merck also alleged that Glenmark willfully infringed the suit patent.

Glenmark’s arguments

Glenmark alleges that the patent is invalid under Section 64(1) of the Indian patents act:

The patent is lacks inventive step over prior art, patent. Glenmark further alleged that the suit patent is a “cut and paste job” from these two patents, specifically European Patent 1406622 and WO2001034594 A1.

The complete specification of the patent does not sufficiently and fairly describe the invention and the method by which it is to be performed, since the patent does not describe the preparation of the Sitagliptin free base or Sitagliptin phosphate monohydrate, but only its hydrochloride salt

Strangely enough, Glenmark also contended that the suit patent is not useful and lacksindustrial applicability because Sitagliptin free base is itself unstable. Glenmark also stated that the Sitagliptin phosphate monohydrate was the molecule used in the clinical trial, and not Sitagliptin Free Base.

The claim goes much beyond the limited disclosures in the specification, and thus the claim is over-broad or an impermissible Markush claim that creates a false monopoly.

Glenmark alleges that Merck did not comply with its obligation under Section 8 of the act to disclose patent applications made for the “same or substantially the same invention”. It was alleged that Merck did not disclose 5948/DELNP/2005 (for Sitagliptin Phosphate Monohydrate), 1130/DELNP/2006 (Sitagliptin Phosphate Anhydrate), 2710/DELNP/2008 (Sitagliptin plus Metformin) or subsequent international applications for these compounds either.

I wonder; where does one draw the line for Section 8 disclosure? What amounts to “disclosure of same or substantially same inventions” is a grey area! In my opinion 5948/DELNP/2005, 2710/DELNP/2008,1130/DELNP/2006 and their foreign equivalents are subject matters of separate patents and are not divisionals and do not claim priority from the original product patent IN209816.If section 8 requires one to disclose all related applications in the relevant arena – this is a separate patent landscape project in itself.

Curiously, Glenmark also argues that Sitagliptin phosphate monohydrate is qualitatively different from the Sitagliptin free base – it has enhanced pharmaceutical qualities (the reverse Section 3(d) argument so to speak!).This, according to Glenmark, means that the manufacture of Sitagliptin phosphate monohydrate does not violate a patent for the Sitagliptin free base simpliciter.

Courts observations:

In an exceedingly well reasoned judgement the Division bench (Justice Ravindra Bhat and Justice Najwi Wazir) of the Delhi High court made the following observations:

Regarding prior art the court notes that irrespective of whether the two patents are similar or not, EP 1406622 was published on after the priority date for the suit patent, and therefore does not qualify as prior art.

Regarding sufficiency of disclosure in the complete specification, the court observed that the patent sufficiently discloses the Sitagliptin free base, which in itself is clear, precise. The question whether the suit patent sufficiently discloses Sitagliptin phosphate monohydrate was left open.

Regarding industrial applicability, the court rightly observed that while the patent claims disclose the Sitagliptin free base, the description relating to the issue of industrial applicability recognizes that the Sitagliptin free base will be attached to some carrier (salt form). That carrier, however, is NOT the crux of the invention but only an inert component that does not add value to the therapeutic or medical value, which is the true core of the invention. It would be a far cry to hold that Sitagliptin is useless for any known purpose. The Court also noted that Sitagliptin was not known before, and its introduction allows for the inhibition of the DPP IV enzyme in such a manner as previously unknown, whether through one inert carrier or another.

Regarding Markush claims, , for the limited issue in these interim hearings the Court notes that the Markush formula and all combinations “share a common use or property” and “ share common structure factors relevant to determine the validity of a Markush patent, as per the Draft Guidelines of Indian patent office. The court opined that whilst it may be appealing at first blush to limit a pharmaceutical patent only to the exact and precise compounds and chemical structures disclosed, that may render genuine medical inventions to naught.

Regarding Section 8 (foreign filing disclosures) the court observed that Merck in the modified Form 3, disclosed foreign filings for patent related to combinations of Sitagliptin and metformin. The Court further stated that Section 8 only mandates the disclosure of patent applications outside India and not within. This is clear from the wording of Section 8 itself.

Conclusion:

The court also frowned upon Glenmark’s at risk launch and observed that the fact that Glenmark did not utilize the opposition mechanisms weighed in favour of grant of interim injunction.

The court carefully and meticulously evaluated the three factors involved in grant of interim injunctions.

Prima facie case: The court succinctly captured the crux of the case and noted that Merck had established a strong prima facie case on the merits of the suit claim. It is established that Glenmark uses Sitagliptin free base as the active component in its chemical formulation. The court was totally unimpressed with the unsubstantiated argument advanced by Glenmark that their generic version uses Sitagliptin Phosphate monohydrate, which is manufactured directly without using the Sitagliptin free base. The court further stated that the fact that Merck unsuccessfully pursued a separate patent for Sitagliptin Phosphate is irrelevant .Thus; prima facie infringement of Merck’s patent is established, in the opinion of this Court.

Irreparable injury: Whether the claimant would suffer irreparable injury in the absence of interim injunction?- It may be argued that no injunction should be granted since all damages from loss of sales can be compensated monetarily ultimately. For this argument – the court countered that, prices may not recover after the patentee ultimately prevails, even if it is able to survive the financial setback (or “hit”) during the interim, which may take some time. The victory for the patentee therefore should not be pyrrhic but real.

Balance of convenience: The court must look at the public interest in granting an injunction, as access to drugs, is an important factor especially in case of a condition as prevalent as diabetes. Here, the price difference between the commercial products sold by Glenmark and MSD is not so startling as to compel the court to infer that allowing Glenmark to sell the drug, at lower prices would result in increased access. The court observed In the Hoffman la Roche case the price differential was about 300% and therefore in that case, held that balance of convenience did not lie in favour of grant of injunction as the possibility of several thousand being denied access to the generic drug was real.

Delhi High Court Order:

http://lobis.nic.in/dhc/SRB/judgement/20-03-2015/SRB20032015FAOOS1902013.pdf  

http://spicyip.com/2015/03/delhi-high-court-grants-interim-injunction-restrains-glenmark-from-selling-generic-version-of-anti-diabetic-drug-januvia-sitagliptin.html

Administrative Trademark Decisions May Preclude Infringement Litigation

The U.S. Supreme Court ruled on March 24, 2015, that Trial Trademark and Appeal Board (“TTAB”) decisions “can be weighty enough” to preclude a district court from litigating the likelihood of confusion between trademarks in a subsequent infringement suit. The decision in B&B Hardware, Inc. v Hargis Industries, Inc. may not settle the nearly 20-year dispute between the owners of the SEALTIGHT and SEALTITE marks; however, the ruling is likely to increase the importance of TTAB proceedings. In certain circumstances, federal district courts may be bound by TTAB determinations that trademarks are confusingly similar under the doctrine of issue preclusion. Issue preclusion prevents the same issues from being litigated more than once, saving time and resources. 

As the Court explained, “[t]he full story [of the parties’ dispute] could fill a long, unhappy book.”  By 2003, the year B&B filed its opposition with the TTAB to stop Hargis from obtaining a federal trademark registration for a SEALTITE mark, the parties had been litigating trademark infringement claims for eight years.  B&B, the owner of a federal registration for SEALTIGHT for metal fasteners used in the aerospace industry, asserted that Hargis’ SEALTITE mark for fasteners used in building construction created a likelihood of confusion.

B&B won the TTAB opposition proceeding, and Hargis was denied federal registration of the SEALTITE mark. The TTAB determined that the SEALTITE mark was likely to cause confusion with the prior-registered SEALTIGHT mark. The TTAB made the determination based on a multi-factor likelihood of confusion analysis that examines the similarity of the marks, the goods, the customers and the trade channels, among other considerations.  

In this case, the TTAB only decided the narrow issue of the right to own a federal trademark registration. In contrast to a federal court, the TTAB cannot order a party to stop using a mark.  Following its loss at the TTAB, Hargis continued use of its SEALTITE mark. In subsequent infringement proceedings, B&B argued that the TTAB’s finding of a likelihood of confusion between the parties’ marks should stand, and that Hargis should not be able to re-litigate the issue. Both the district court and the Eighth Circuit rejected B&B’s argument and found that issue preclusion did not apply.

The Supreme Court reversed the Eighth Circuit and held that “[s]o long as the other ordinary elements of issue preclusion are met, when the usages adjudicated by the TTAB are materially the same as those before the district court, issue preclusion should apply.” The Court gave several reasons for this decision, including its observation that “the same likelihood-of-confusion standard applies to both registration and infringement.”

The case is now remanded to the lower court to determine if issue preclusion should apply on these specific facts, and thus the fight over the SEALTIGHT and SEALTITEmarks is likely to continue. The Court also explained that “for a great many registration decisions [from the TTAB] issue preclusion obviously will not apply because the ordinary elements will not be met.”

For example, the Court recognized the ordinary elements will not be met when the owner of a mark uses its mark in ways that are materially different from the trademark uses disclosed in a trademark application for registration. The TTAB decision will not have a preclusive effect “if the TTAB does not consider the marketplace usage of the parties’ marks[.]”

The impact of B&B Hardware on brand owners may be minimal. TTAB proceedings are routinely suspended for federal litigation involving the same parties and the same marks; however, parties that participate in a  TTAB case will need to carefully evaluate the potential for issue preclusion in a subsequent action. Indeed, as the Court explained, “[w]hen registration is opposed, there is a good reason to think that both sides will take the matter seriously.”

For trademark owners that disagree with a TTAB decision, they can pursue a de novo review of the TTAB decision before either the Federal Circuit or a U.S. District Court. Otherwise, there is a possibility that issue preclusion may impact subsequent infringement litigation involving the same marks.

http://www.natlawreview.com/article/administrative-trademark-decisions-may-preclude-infringement-litigation

Trademark and Copyright Law

Because of the value of even the simplest phrase, celebrities today are utilizing copyright and trademark law to protect their intellectual rights in instances rarely before noticed. It is Copyright and Trademark Law which requires their lawyers to send cease and desist letters to unsuspecting entrepreneurs. A balance needs to be restored so celebrities can proceed against large scale pirates even if they don’t aggressively seek to protect their intellectual property rights in every case.

Recently Publicized Trademark and Copyright Actions by Attorneys for Celebrities

Individuals and small businesses have recently been surprised to receive cease and desist letters from entertainers like Taylor Swift and Katy Perry for everything from TaylorSwift song lyrics on a coffee cup to a 3D print of the left shark in Katy Perry’s Super Bowl performance. So what’s up with that?

It’s been said that entertainers are now blurring the lines between copyright, trademark and patent law simply to make more money or to prevent others from making money off of them. However, there actually is precedent for making claims that a musician’s lyrics are protected under trademark law and that other images created by a performer and likewise associated with that entertainer are protected under copyright law.

Trademark Law

The cease and desist letter sent by Taylor Swift’s attorneys to prevent her lyrics from being printed on coffee cups sold to the public is an example of how entertainers today are seeking to protect their work from being infringed by others under trademark law.

It would be difficult today for any lyricist or musician to claim that they discovered, invented or created the grouping of any few words in a song title or the song’s lyrics for the very first time and that no one ever before them had come along to do so. Although at some point, someone must have said each phrase in any language for the very first time, it’s doubtful they ever became so well known for having used the phrase that others would immediately associate the phrase with that person.

Today, while the lyrics of a songwriter would be a valid work that could be copyrighted so as to entitle the musician to bring suit for copyright infringement against anyone using them in a copyrightable work themselves, with the exception of the fair use doctrine (which is an entire subject on its own) for slight uses, the average person on the street would not expect that the lyrics could be trademarked so as to prevent the use of even a one-line lyric on a coffee cup. But they can. They can be trademarked as well as copyrighted. So what is going on here?

The theory behind an assertion that lyrics or a slogan, or a phrase can be trademarked is that the lyrics have become so distinctly associated with the entertainer themself or their song in the case of lyrics, that they have acquired secondary meaning, thus allowing the performer the right to protect the phrase in any type of commerce, such as on coffee cups or other goods.

Is it really worth it to trademark a phrase that you’re associated with? Consider the trademarked phrase, “Let’s Get Ready to Rumble.” It’s been reported that this one simple phrase has generated $400 million to it’s owner, Michael Buffer.

Is such a legal assertion going to hold water for the local street performer or even an emerging artist on a singing competition on television. In nearly every instance, the answer would be no. But for someone of Taylor Swift’s stature, or Katy Perry’s or the Beatles? Yes.

But why should it be necessary for such artists who are most assuredly making more money than we can imagine need to prevent a small entrepreneur from making a small amount of money from coffee cups with a songwriter’s lyrics on them? Because trademark law in the U.S. requires them to do just that if they want to protect their works.

Trademark law require a quick response from the owner of a work in which they assert ownership to prevent the unauthorized use of their work. This is normally achieved by use of a “cease and desist” letter to the alleged infringer of their work. It’s not a lawsuit, but it’s a none-too-polite way of warning the alleged infringer that if they don’t stop using the person’s work in commerce, a lawsuit will follow, which can be far more expensive to defend in most cases, with the risk of a judgement for damages, than stopping what it is they’re doing that has brought the ire of the work’s owner, in this case the lyricist or performer.

The typical cease and desist letter, whether it’s used to stop an alleged trademark infringement or an alleged copyright infringement, warns the alleged infringer that their continued use or sale of the alleged infringing products may subject them to a judgement for actual damages, statutory damages, and punitive damages as well as immediate and permanent injunctive relief if they are found to have infringed the owner’s copyright or trademark. What such a letter also fails to mention, is that the attorney fees and costs in defending such a lawsuit may be so expensive as to even force them into bankruptcy.

Even if the claim that’s made by the attorneys for the artist in a cease and desist letter is bogus, specious at best, in most cases it simply isn’t worth it for the individual or a small business to wage the fight against a deep-pocketed performer just to win a small victory that obtains only the right to sell an item rather than the damages the performer could win for the infringement of their work.

Copyright Law

The cease and desist letter sent by Katy Perry’s lawyers to the owner of an online store selling 3D printed replicas of the left shark in Katy Perry’s Super Bowl performance was based on an assertion by her lawyers that the sale of 3D print of the shark costume were infringing Katy Perry’s rights under U.S. copyright law.

Perhaps to the surprise of Katy Perry’s lawyers, in this case, they received a response from an NYU law professor representing the owner of the online store.

The law professor tweeted that he felt the left shark was not copyrightable because it qualified as a “useful article” which is not protected the same way as an artistic work. The law professor also sent a letter in response to Katy Perry’s lawyers, questioning whether the singer’s lawyers had over-asserted the strength of their client’s rights.

In his letter, the professor wondered what Katy Perry could possibly have to gain from their declared war on the left shark internet meme. He asked why the lawyers for Katy Perry could feel that the costume of a shark is copyrightable in view of the fact, he stated, that the U.S. Copyright Office has made it clear that costumes are not. It should be noted however, that another law professor has also weighed in on the subject stating that an animal costume can be copyrighted, so long as it is not generic.

Regardless, the law professor representing the online store owner made it clear that his client just wanted to go back to his business and would be grateful if Katy Perry’s lawyers would just back off. As the law professor said, going ahead with a dubious copyright claim would not benefit Katy Perry. He also questioned whether the NFL rather than Katy Perry had ownership of any copyright interest in the costume.

But indeed, if Katy Perry did design the costume or had a designer transfer their copyright interest to her, and if she felt she might use it in future shows and possibly even sell replicas herself at concerts, even if the NFL had control over the content of the Super Bowl halftime show, this is what copyright law also requires of anyone owning a copyright - a quick assertion of their rights upon learning of any infringement of them.

To a performer in today’s spotlight across all mediums of the universe which can be very bright indeed, the performer’s intellectual property is their most valuable asset. In 1985, Michael Jackson bought the publishing rights to most of the Beatles songs for a mere $47.5 million. Today this amount looks ridiculously small, and in fact it was even then. The purchase of the Beatles catalogue meant that Jackson was free to license any song previously owned by the former music publishing arm of The Beatles to any brand he chose.

Jackson was later able to sell his rights to Sony for $95 million and still acquire half ownership in Sony/ATV Publishing as well, a company which today is worth billions. (ATV had previously purchased the Beatles catalogue from Northern Songs, the Beatles publishing arm.) Due to a notoriously terrible contract John Lennon and Paul McCartney signed at the start of their career, Northern Songs owned the publishing rights to over 250 Beatles songs, including all of their hits at height of Beatlemania.

The online store owner attempting to sell Katy Perry’s shark costume perhaps summed up the perspective of the small entrepreneur who receives cease and desist letters today with a few choice words. He said it appeared to be easier to deal with world leaders like Kim Jong Un or Chris Christie and that he would go back to making pieces about them and other world leaders (although we’re not sure Chris Christie would qualify as such). His final thought on the subject was more astute - “All this lawyer crap is very stressful.”

Dealing with lawyers preventing a small business person from making a little money can indeed be very stressful. But this is what trademark and copyright law requires of the attorney who has been tasked with protecting every possible intellectual property asset of their client. The lawyer may not like putting the strong arm on a business person just trying to make a living, but for the business person who now has to give up a line of products he or she may have invested some money in producing, and who may have done so without thinking of the consequences when they should have known better, there is considerably more stress felt upon receipt of a lawyer’s cease and desist letter.

While the seller of the coffee cups with Taylor Swift lyrics printed on them and the maker of the 3D prints of the left shark in Katy Perry’s Super Bowl performance may not have anticipated they were infringing anyone’s copyright or trademark interest, neither should Taylor Swift nor Katy Perry be criticized when trademark law and copyright law requires them to have their lawyers do exactly what they did, namely to aggressively protect their clients’ intellectual property rights.     

Is it necessary for a lyricist or songwriter to prevent their lyrics from being sold on any type of item? Under trademark law as it exists today, probably so, if the lyrics are so distinctly associated with the songwriter and performer that they have acquired secondary meaning under the law.

Is it necessary for a performer to prevent others from selling the same costume they create or have someone else create for them to use in a performance? Under copyright law, probably so as well, if the artist wants to retain the exclusive right to use the costume in future performances thus acquiring an even stronger acquired secondary meaning that will allow that artist to copyright the costume and later sell it themselves as a Halloween costume.

If Jimmy Buffet had a Parrothead costume, which for all we know he may have, and he used it in his performances, no one would question his right to have it copyrighted. The name, Parrothead, is already trademarked by Jimmy Buffet and his company, Margaritaville Enterprises, for various products.

Today, however, the brand of a performing artist, sports figure or model is so much bigger than just their music, their achievements on the field or their photos, it’s everything else that allows them to market themselves across all the different platforms available to them today. And that is why too a celebrity must also be careful not to appear to be petty at the expense of the little person.

Unfortunately for the celebrity, in today’s world when their every action and those of their attorneys are publicized, even when they do exactly what is required of them by trademark and copyright law, their actions can appear to be unjustified.

While it may be important to protect one’s intellectual property, because of he importance of their brand’s image, a celebrity would not be wise to sic their lawyers on an autistic little girl’s lemonade stand selling hand drawings of their celebrity client to help pay for her mother’s cancer treatment. And let’s be clear, we know of no such instance having occurred to date and we doubt any celebrity would ever knowingly have their attorneys take such an action.

We should also make it clear that copyright and trademark laws are essential and are crucial to protecting the rights of the creative artist who develops a screenplay or produces a film, writes music or a book or creates a line of clothing or jewelry or anything else due to their talent as artists and creative people against those who would sell pirated copies of their films, produce knock offs of women’s handbags or designs of clothing, or of an artist’s paintings. Our firm, just like any other firm who practices copyright and trademark law will proceed against such a copyright or trademark infringer without a second thought.

But there must obviously be some balance between protecting one’s intellectual property while allowing the little person to sell a product that has only a tangential relationship with a celebrity. What is thus needed is a change in the law that allows both parties to coexist peaceably and which does not, by their coexistence, cause the celebrity to forfeit their intellectual property rights if they choose to allow the little girl at her lemonade stand to sell her drawings without receiving a letter from an attorney.

Perhaps when the copyright and trademark laws are rewritten, that balance and peace between the celebrity and the little guy or girl will be restored while still allowing the creative artist’s lawyers to proceed with all the resources at their disposal against pirates who would seek to profit in large scale off the back of the creative artist.

http://www.hg.org/article.asp?id=34586

Qualcomm faces dispute in China over its local trademark

Qualcomm could face another regulatory headache in China, this time over a trademark dispute with a Chinese company that is asking the local government to intervene and fine the U.S. company US$100 billion for alleged infringement.

Last month, the chip company agreed to pay Chinese authorities a US$975 million fine for alleged monopolistic business practices relating to its patent licensing business.

Both Shanghai-based Genitop and Qualcomm have been battling over the trademark "Gaotong", which the two companies use as their Chinese brand names.

Genitop claims that it owned the trademark first in China and its products are continually mistaken for Qualcomm's. "People believe we are the fake Qualcomm, or that we maliciously try to depend on the Qualcomm name," Genitop said in a statement. In Chinese, Gaotong means "high communication".

Genitop develops telecommunications gear and chips, and first registered for the Gaotong trademark back in 1992, the year it was founded, it said Tuesday.

Qualcomm has allegedly "bullied" Genitop by refusing to respect the trademark laws, and has instead tried to buy from the Chinese company the trademark rights to Gaotong for 2 million yuan (US$326,000).

Genitop has already filed a trademark infringement lawsuit against Qualcomm in Shanghai, demanding 100 million yuan in compensation. But it will also ask China's State Administration for Industry and Commerce to penalize the U.S. chip vendor for 15-years of trademark infringement.

Qualcomm did not respond to a request for comment.

It's not the first time a U.S. technology company has faced a trademark dispute in China. Back in 2012, Apple agreed to pay a company US$60 million for ownership of the iPad trademark, following a prolonged legal dispute. This came after the Chinese company wanted a $400 million settlement.

http://www.cio.in/news/qualcomm-faces-dispute-in-china-over-its-local-trademark

Some facts about National Green Tribunal (NGT)

The NGT is a specialized forum for effective and speedy disposal of cases pertaining to environment protection and conservation of forests.

BACKGROUND

Most conservationists would have heard of the National Green Tribunal (NGT), and some may have already filed applications before it. This short primer explains how, when and where to approach the NGT, and looks at the fundamental difference between courts and tribunals, and the structure and jurisdiction of the NGT.

The NGT was established on October 18, 2010 under the National Green Tribunal Act 2010, passed by the Central Government. The stated objective of the Central Government was to provide a specialized forum for effective and speedy disposal of cases pertaining to environment protection, conservation of forests and for seeking compensation for damages caused to people or property due to violation of environmental laws or conditions specified while granting permissions.

STRUCTURE

Following the enactment of the said law, the Principal Bench of the NGT has been established in the National Capital – New Delhi, with regional benches in Pune (Western Zone Bench), Bhopal (Central Zone Bench), Chennai (Southern Bench) and Kolkata (Eastern Bench). Each Bench has a specified geographical jurisdiction covering several States in a region. There is also a mechanism for circuit benches. For example, the Southern Zone bench, which is based in Chennai, can decide to have sittings in other places like Bangalore or Hyderabad. Click here for a copy of the notification specifying jurisdiction of each bench. Provided below is a link to all NGT zonal benches, addresses & contact details.

The Chairperson of the NGT is a retired Judge of the Supreme Court, Head Quartered in Delhi. Other Judicial members are retired Judges of High Courts. Each bench of the NGT will comprise of at least one Judicial Member and one Expert Member. Expert members should have a professional qualification and a minimum of 15 years experience in the field of environment/forest conservation and related subjects.

POWERS

The NGT has the power to hear all civil cases relating to environmental issues and questions that are linked to the implementation of laws listed in Schedule I of the NGT Act. These include the following:

The Water (Prevention and Control of Pollution) Act, 1974;

The Water (Prevention and Control of Pollution) Cess Act, 1977;

The Forest (Conservation) Act, 1980;

The Air (Prevention and Control of Pollution) Act, 1981;

The Environment (Protection) Act, 1986;

The Public Liability Insurance Act, 1991;

The Biological Diversity Act, 2002.

This means that any violations pertaining only to these laws, or any order / decision taken by the Government under these laws can be challenged before the NGT. Importantly, the NGT has not been vested with powers to hear any matter relating to the Wildlife (Protection) Act, 1972, the Indian Forest Act, 1927 and various laws enacted by States relating to forests, tree preservation etc. Therefore, specific and substantial issues related to these laws cannot be raised before the NGT. You will have to approach the State High Court or the Supreme Court through a Writ Petition (PIL) or file an Original Suit before an appropriate Civil Judge of the taluk where the project that you intend to challenge is located.

PROCEDURE FOR FILING AN APPLICATION OR APPEAL

The NGT follows a very simple procedure to file an application seeking compensation for environmental damage or an appeal against an order or decision of the Government. The official language of the NGT is English. Click here for the prescribed template for filing an Application/Appeal before the NGT.

For every application / appeal where no claim for compensation is involved, a fee of Rs. 1000/- is to be paid. In case where compensation is being claimed, the fee will be one percent of the amount of compensation subject to a minimum of Rs. 1000/-.

A claim for Compensation can be made for:

Relief/compensation to the victims of pollution and other environmental damage including accidents involving hazardous substances;

Restitution of property damaged;

Restitution of the environment for such areas as determined by the NGT.

No application for grant of any compensation or relief or restitution of property or environment shall be entertained unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose.

PRINCIPLES OF JUSTICE ADOPTED BY NGT

The NGT is not bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice. Further, NGT is also not bound by the rules of evidence as enshrined in the Indian Evidence Act, 1872. Thus, it will be relatively easier (as opposed to approaching a court) for conservation groups to present facts and issues before the NGT, including pointing out technical flaws in a project, or proposing alternatives that could minimize environmental damage but which have not been considered.

While passing Orders/decisions/awards, the NGT will apply the principles of sustainable development, the precautionary principle and the polluter pays principles.

However, it must be noted that if the NGT holds that a claim is false, it can impose costs including lost benefits due to any interim injunction.

REVIEW AND APPEAL

Under Rule 22 of the NGT Rules, there is a provision for seeking a Review of a decision or Order of the NGT. If this fails, an NGT Order can be challenged before the Supreme Court within ninety days.

FREQUENTLY ASKED QUESTIONS (FAQS)

1. What is the difference between a Court and a Tribunal?

The Supreme Court has answered this question by holding that “Every Court may be a tribunal but every tribunal necessarily may not be a court”. A High court for instance, where a PIL would be filed, may have wide ranging powers covering all enacted laws (including the power of contempt) but the NGT has only been vested with powers under the seven laws related to the Environment.

2. We are trying to protect a National Park/Sanctuary from various pressures including a dam proposal and widening of a highway. Should we approach the NGT?

No. As explained above, the NGT is not empowered to hear matters pertaining to issues coming under the ambit of the Wildlife (Protection) Act, 1972, which is applicable in case of National Parks, Sanctuaries and Tiger Reserves. It would be appropriate to approach either the High Court in your State or the Supreme Court. Please consult a competent lawyer for advice.

3. Can I personally argue a matter before the NGT or do I need a lawyer?

Yes. You can argue the matter yourself provided you are well acquainted with the facts and are reasonably knowledgeable about the law and procedures. The language of the NGT is English, and some guidelines related to dress apply. However, it would be best if a lawyer represents you since (s)he will be better equipped to argue and handle all procedural aspects.

4. What is the penalty for non-compliance of an NGT Order?

If a project proponent or any authority does not comply with the directions contained in an NGT order, the penalty can be imprisonment for three years or fine extending to 10 crores or both. Continued failure will attract a fine of twenty five thousand rupees per day.

5. Is there a bar on civil courts to hear /take up cases under the seven specified laws in Schedule I of the NGT Act?

Yes. With the enactment of the NGT Act, Civil courts cannot hear matters related to Environmental issues under the seven laws which the NGT is empowered to deal with.

http://www.conservationindia.org/resources/ngt

Media as Arbiter of Law Harmful

The Constitution of India very clearly divides powers between the executive, the legislature and the judiciary. Executive power vests in the president and in officers appointed by him through whom he will exercise his powers. This applies mutatis mutandis (making the small changes that are necessary for each individual case) to the states also, except that here it is in the governor that executive power vests. It is the duty of the executive, within the laws framed by the legislature, to administer the country. The legislature itself enacts laws keeping in mind the provisions of the Constitution and directive principles given therein. The judiciary interprets laws and adjudicates all disputes. The role of each of these organs of the state is independent, though there is a coming together at the margin of the executive and the legislature and, to the extent that effect has to be given to the judgments of courts, at the margin of all three organs.

Adjudication is entirely within the domain of the judiciary, which is why so much emphasis is laid in the Constitution on the independence of the judiciary. Under the umbrella of the Supreme Court we have the high courts in which all the judges are given constitutional protection against removal except through a process of impeachment. The entire subordinate judiciary, from the district and sessions judge right down to the civil judge at the lowest level and judicial magistrate, is under the control of the high court and totally immunised from any interference by the executive. Under Article 227, superintendence of courts and tribunals located within the territorial jurisdiction of a high court is vested in the high court, which is empowered to lay down the rules and procedures to be followed by subordinate courts.

The independence of the judiciary and its sole authority to adjudicate and pronounce judgment are laboured because in the ultimate analysis it is only a court that can judge and deliver a decree or a judgment. In criminal matters the police can investigate, the media can report, but only the court can judge.

There is a presumption of innocence till guilt is proved beyond reasonable doubt, which is not only a basic principle of Anglo-Saxon jurisprudence but is also a part of our legal system. That is why under Article 20 of the Constitution no person may be convicted of an offence except for violation of a law. Under Article 21, a person cannot be deprived of life or personal liberty except according to procedure established by law. Under Article 20(3), a person cannot be compelled to be a witness against himself in any criminal proceedings. Under Section 101 of the Indian Evidence Act, the burden of proof lies on the person who alleges a fact or accuses a person of having committed a crime. That is the refrain of Chapter VII of the Indian Evidence Act. Under Indian law, the accused has to prove nothing, certainly not his innocence. All he has to do is to rebut the admissibility, relevance and credibility of the evidence led against him and if any doubt remains, then it is the accused who will get the benefit of doubt.

The police investigates, determines whether prima facie an offence can be brought home to an accused and then proceeds under CrPC (Code of Criminal Procedure) Chapter XII to prosecute the offender in a competent court. The freedom of speech and expression guaranteed by Article 19 does not supersede the constitutional competence of courts to pronounce judgment, nor does it permit the media to report matters in a way that would suggest that a certain person is in fact either the perpetrator of an offence or is the victim of the actions of a particular offender. Unfortunately, the Indian media, in particular some TV channels, are only too eager to act as accusers, inquisitors and judges and pronounce judgment freely on cases that lie within the domain of the judiciary. One recent example is that of the death of D K Ravi, an IAS officer of the Karnataka cadre of the 2009 batch who was found hanging from a ceiling fan in his house. Bangalore Police took notice of this and reported the matter to the nearest executive magistrate under Section 174 of the CrPC. The media jumped on this, claimed Ravi was an honest officer who as district magistrate of Kolar took action against illegal sand mining and subsequently, as joint commissioner, commercial taxes, launched a probe against land developers for tax evasion. The media concluded, without any investigation, that Ravi is an honest officer who has annoyed vested interests and these persons murdered him, and that he had not committed suicide. The Karnataka Police have been upbraided by the media, whose reports have triggered a popular agitation, for not registering an offence under Section 302 of the IPC and instead having recourse to Section 174. Unfortunately, the agitators and the mediapersons do not seem to have read Section 174 of the CrPC, which requires the police, on receiving information about a suspicious death, an alleged suicide, an accidental death, etc., to immediately report the matter to the nearest executive magistrate, who is then required to conduct an inquest. The magistrate can record evidence, send the body for post-mortem and subsequently to direct the course of action which, if the death appears to be a homicide, could take the form of recording of a FIR and subsequent investigation. The Karnataka Police had no option except to follow this course and I think the police have acted appropriately in D K Ravi’s case.

Before being judgmental our press must learn not to suddenly make a person a hero and someone else to be a villain. Do the media know enough about D K Ravi to decide here is an honest young officer who has been virtually tortured mentally by vested interests? Did he make any complaint in this behalf to his own superiors? One story emerging is that perhaps Ravi wanted a relationship with someone that was not reciprocated and, therefore, he could have been perturbed. All this will come out in the course of investigation and, therefore, any prejudgment in this behalf would be totally premature. Unfortunately, a media that is becoming increasingly immature in its hunt for sensationalism recognises none of the rules of prudence because it is so much easier to typecast people as heroes and villains in the unending saga, which it loves to create.

http://www.newindianexpress.com/columns/Media-as-Arbiter-of-Law-Harmful/2015/03/27/article2731556.ece

Supreme Court Judgment for Women Make Up Artists Really Deserve Applause?

The Supreme Court judgment, giving equal rights to woman in the Cine Costume and Makeup Artistes and Hair Dressers Association vis-à-vis their male counterparts comes as a welcome change and an eye opener.

It is welcomed because it enforces the "Rule of Law", the essential liberal spirit of our Constitution, and its sacrosanct fundamental rights. Far more, it is an eye-opener because we have been living in a liberal democracy for almost 70 years, yet we see a widespread existence of many regressive practices. Greater is the concern that there are still many vital segments of employment where such discriminatory practices still prevail and yet there is no substantive redress. For, we are yet to have many more brave ladies like Charu Khanna who endeavored to present such prevalent injustices right up to the Supreme Court.

That such regressive practice of denying women the right to practice as make up artists has managed to find its way into the 21st century itself is appalling. While Justice Dipak Mishra's strong verdict squashing the clause that allows such a practice is welcome, yet it is a harsh reminder that women in this country, in a city as urban as Mumbai, still have to fight a plethora of prejudiced systems to secure their fundamental rights under Article 14, 19(1)(g) and 21 of the Constitution. One could imagine then what would be the situation in small towns and rural areas, where the laws remain the same with a more conservative societal surroundings.

The contentious clause in the bye-laws of the Cine Costume Make-up Artists and Hair Dressers Association stated that membership of the Association would comprise make up men, costume men, and hair dressers who were admitted as members by the Association. Literally, this clause indicated that only men were eligible for the posts of costume and make up artists. But legally, such clauses have to be read in conjunction with the provisions of section 13(1) of the General Clauses Act, 1897, which states that "words importing the masculine gender shall be taken to include females".

However, one thing which the Supreme Court ought to have addressed, but it did not, was the coercive actions of the Association in slapping fines on women who practised their lawful profession of make up artistes. Our country is governed by the principles of "Rule of Law". Any such coercive action can take place only if the duly broadcasted law provides for so. Thus, the acts of imposing fines on hapless woman were nothing short of extortion, which is a cognizable offence. It was required that the relevant officials faced a police FIR and a criminal prosecution. In fact, in certain cases, related to junior artistes, association members have been prosecuted for collecting such illegal fines.

An analysis of the film industry leads us to the conclusion that it has preferred to stick to convention rather than questioning the malpractices that the Association has promoted.

Powerful men, who are a judge in their own cause, have dominated the Association. They have evidently perceived the talents and capabilities of women as a threat to their livelihood. Instead of fostering an environment for healthy competition, they have been resorting to unconstitutional and discriminatory methods to keep women out of reckoning.

With India having ratified the Covenant on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979, such abhorrent practices cannot find a place in our liberal democratic system. The Supreme Court's verdict has only confirmed this and secured the rights of these women make up artists. In order to uphold equality of the sexes, it is crucial for women to break the glass ceiling in their respective professions since there is sparse representation of women in the higher posts of any organisation. Indeed, the fight put up by the women make up artists is commendable and an inspiring precedent. The fruits of their struggles are going to be reaped by generations of women after them. They redeem what the wise men have said; it is better late than never.

http://idiva.com/opinion-work-life/equality-for-women-in-the-make-up-association-is-a-good-change/35784

Supreme Court ruling blow to aspiring college teachers

After a recent judgment of the Supreme Court, candidates having got their PhD degrees prior to 2009 have been left with little chance of becoming a lecturer (assistant professor) in any college or university of the country.

The apex court has upheld the UGC regulations which provide for National Eligibility Test (NET) or State-Level Eligibility Test (SLET) or PhD as per UGC guidelines, 2009, as the essential qualification for lectureship.

The judgment delivered by Justice T S Thakur and Justice Rohinton Fali Nariman of the Supreme Court (in P Suseela vs UGC case) on March 16 has come as rude shock to thousands of scholars of Bihar who had been aspiring for lectureship with the PhD degrees obtained before 2009. They had been seeking exemption from NET on the basis of their doctoral degree.

The Bihar Public Service Commission (BPSC) had advertised 3,364 vacancies of assistant professors (lecturers) in September last year after a gap of over 17 years strictly as per UGC guidelines. But, following the intervention of Patna high court, even candidates having PhD degree sans UGC guidelines, 2009, were allowed to submit their applications. But now the apex court's judgment debars those who have done PhD without fulfilling the conditions of 2009 regulations.

The UGC regulations of 2010 related to appointment of assistant professors or equivalent positions in universities and colleges and other measures for the maintenance of standards in higher education has been upheld by the apex court. As per it, NET/SLET/SET shall remain the minimum eligibility condition for recruitment of assistant professors. Candidates, who had been awarded a PhD degree in accordance with the UGC regulations of 2009, shall be exempted from this minimum eligibility condition. Furthermore, NET/SLET/SET shall not be required for such Master's Degree programmes in disciplines for which such accredited test is not conducted. The SC also rejected the UGC committee's formula for granting exemptions to PhD degree holders who fulfil six out of 11 conditions (which formed the basis of Allahabad high court judgment of April 6, 2012). In this regard, the court observed all lecturers in universities/colleges/institutions governed by the UGC Act should have a certain minimum standard of excellence before they are appointed as such.

http://timesofindia.indiatimes.com/city/patna/Supreme-Court-ruling-blow-to-aspiring-college-teachers/articleshow/46656115.cms

RIP Section 66A, Supreme Court Terms It Unconstitutional. Long Live Free Speech

Slowly, but gradually, a scenario was developing in India where online citizens were becoming afraid of sharing their opinions and views. People were being arrested due to Facebook posts and blogs, simply because their world view was different from the politician’s or police’s worldview.

In a landmark decision made by Supreme Court today, Section 66A of Information Technology Act, which was used to arrest people for sharing content online, has been scraped and termed as “unconstitutional” by the apex body.

Several victims of this draconian law had been subjected to torture and arrests in the last few years, and they had petitioned their case in the Supreme Court, challenging it’s operative. The first PIL was filed by Shreya Singhal, after two young girls were arrested by Mumbai police in 2012 for posting critical comments on Shiv Sena supremo Bal Thackeray’s death. After that several NGOs, individuals and writers had joined the movement.

A bench of justices J. Chelameswar and R.F. Nariman from Supreme Court had reserved their judgment on February 26^th and announced it today morning.

Countering terms such as “offensive content”, the bench said, “what is grossly offensive to you, may not be grossly offensive to me and it is a vague term.. Highly trained judicial minds (judges of the UK courts) came to different conclusions by using the same test applied to judge as to what is grossly offensive and what is offensive,”

The bench observed that Section 66A directly conflicts with the Right to Freedom of Speech and Expression, which is one of the most important pillars of our democracy and constitution. They said that people have a right to know, and no law should be used to stop that.

As Section 66A is violating Article 19(1)(a), not saved by Article 19(2), hence its unconstitutional and has been removed henceforth.

As per the ruling, any online content can be blocked or action can be taken against the creator of that content, in three cases: The content can create communal disturbance, social disorder or affect India’s relationship with other countries.

What Section 66A Said

As per Section 66A of Information Technology Act, “Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine.”

Here are some cases where police abused this law to arrest people:

Aseem Trivedi, Cartoonist, who was arrested in 2012 for mocking Parliament and politicians using cartoons

Palghar girls from Mumbai were arrested in 2012 for posting their critical views on the deal of Bal Thackeray

Professors from West Bengal were arrested for sharing cartoons mocking Mamta Banerjee, CM of West Bengal

Air India employees were arrested in 2013 for sharing jokes on Indian politicians

A Pondicherry businessman was arrested for sharing jokes on the son of P. Chidambaram

CPI (M) worker from Kerala was arrested for posting online jokes on PM Modi

A ship building professional from Goa was arrested for sharing some jokes on Indian politicians

Class 11^th student from UP was recently arrested for sharing his comments on hate speech delivered by UP Minister Azam Khan. Instead of arresting Azam Khan for spreading hatred, police arrested this 11^th class student for his views.

We congratulate the Supreme Court for restoring our faith in the Indian democracy and to support Free Speech.

http://trak.in/tags/business/2015/03/24/section-66a-scrapped-supreme-court/