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Information Dispersion Regime and the 2019 Amendment

-Ashok Vardhan Adipudi

The Rajya Sabha on 25 July 2019 passed the Right to Information (Amendment) Bill, 2019. The Amendment essentially confers on the Central Government powers to prescribe the salary, allowances and terms and conditions of service of the Chief Information Commissioner and the Information Commissioners (CIC/ICs) at central and state levels. Introducing the Bill in the Lok Sabha, the Treasury Benches emphasised that the primary object of the Bill was to remove the parity between the posts of CIC/ICs and a Judge of the Supreme Court. The Amendment has come under the scanner, supposedly, for the State’s failure to uphold its positive obligations under the Constitution and its attempt to undermine the potency of the Right to Information Act, 2005 (the 2005 Act). The discourse so far has seen a large number of scholars writing on the alleged unconstitutionality of the Amendment and whether the independence of the body could be ensured in light of the control conferred on the Central Government.

This article attempts to address the Amendment from the standpoint of its legal sanctity in the instance of judicial scrutiny rather than its socio-political ramifications. A debate on the latter would be better realised when the boundaries of our information regime are discussed in light of extant laws.

The Amendments

The 2019 Amendment to sections 13 and 16 of the 2005 Act shifts the reference away from the Election Commission with respect to salaries, allowances, and terms and conditions of service. The said Amendment confers power on the Central Government to frame rules on the salaries, allowances, and terms and conditions of service of the CIC/ICs under section 13 the 2005 Act. Similar provisions are made for the State CIC and ICs under section 16 thereof. Section 13(5) of the 2005 Act deals with the salaries and allowances payable to the CIC/ICs. The 2005 Act before the 2019 Amendment equated the IC’s/CIC’s emoluments with that of the Chief Election Commissioner and Election Commissioners (CEC/ECs).

In this regard, it is important to distinguish between the characters of both institutions: one statutory and the other Constitutional. The nature of a statutory body, such as the Information Commission, cannot be equated to a Constitutional Body as the Election Commission, sans a constitutional Amendment. The 2005 Act only equates the salaries and the terms of service of CIC/ICs with those of CEC/ECs. The 2005 Act never attempted to raise a statutory body to the stature of a Constitutional one.

The changes proposed through the 2019 Amendment clear this position. As in the case of any other civil servant, the salaries, and terms and conditions of service of the CIC and the ICs are also brought under the purview of the Central Government, while maintaining status quo for appointments made prior to the coming into force of the 2019 Amendment. Any appointment of the CIC/ICs made henceforth will be made in accordance with the rules formulated the Central Government. Further, an appointment once made with a certain salary, and terms and conditions of service cannot be altered “to their disadvantage” as provided in the amended sections 13 and 16. Hence, governmental control over the CIC and the ICs would remain unchanged vis à vis the pre-Amendment scenario the moment an appointment is notified and the same cannot be altered in an attempt to control such officials in any manner which is intended to prevent them from discharging their duties in a manner prescribed by law.

Other Statutory Bodies

Keeping in mind the statutory nature of the Information Commission, a key question to be asked is how the emoluments of heads of other statutory bodies are decided. Bodies such as the National Human Rights Commission, National Commission for Minorities present a case in point of such decisions being taken by delegated legislation.The Central Government has the power to frame rules, under sections 8 and 4(5) of The Protection of Human Rights Act, 1993 and The National Commission for Minorities Act, 1992 respectively, with regard to the salary, allowances, and terms and conditions of service of the Chairperson and other members. In this regard, the 2019 Amendment is a unifying step to allow the service conditions of the CIC/ICs under the purview of the Central Government as is the case with similar bodies.

Alleged Unconstitutionality and the Nature of the Amendment

The current information dispersion regime under the Right to Information Act, 2005 overcomes the primary shortcoming of its predecessor – The Freedom of Information Act, 2002 – in that it recognises the right to information of a citizen subject to conditions laid down therein: the Act makes space for a non-disclosure requirement under section 3.

In legal discourse, unconstitutionality of any legislation emerges in two instances – incompetence of a legislature to enact it and infringement of Fundamental Rights (FR) enshrined in Part III of Constitution. Scholars have alleged violation of Article 19 by the 2019 Amendment in this case. When the nature of the Act, including the exemptions under section 8 remain intact post the 2019 Amendment pertaining to the salary, allowances, terms and conditions of service of the CIC/ICs, etc., a question that arises is: has the Amendment sufficiently transformed the nature of Act to vitiate its purpose? The answer would be in the negative. Given that there exist a considerable number of statutory bodies whose executives’ salary, allowances, terms and conditions of service are determined by the Central Government through rules framed under their respective Acts, this uniform trait of statutory bodies indicates that this is a modality of administration rather than a means of control for the executive to tighten its grip over these bodies. Further, in conferring such power on the Central Government, the statute ensures stability for the executives in-charge of the bodies by providing that “the salaries, allowances and other conditions of service … shall not be varied to their disadvantage after their appointment.” This essentially restricts the control of the Central Government to a pre-appointment stage. Once an appointment to such position is made, the unchanged information regime applies, thus leaving the functioning of the Commission unchanged.

With regard to the positive obligation of the State to protect the rights enshrined in Part III of the Constitution of India, it is well-established that the FR are casted in the form of negative obligations on the State not to infringe such rights. On rare occasions such as Adam B. Chaki v. Government of India (per Justice J.B. Pardiwala), the Gujarat High Court interpreted the phrase “equal protection of the laws” in Article 14 of the Constitution to mean:

“…being read as a positive obligation of the State to ensure equal protection of the laws by bringing in necessary social and economic changes, so that everyone may enjoy equal protection of the laws and nobody is denied such protection. If the State leaves the existing inequalities untouched by the laws, it fails in its duty of providing equal protection of its laws to all persons.”

Hence, according to the Court, the positive obligation of the State extends only to the extent of ensuring that there exists no inequality among individuals which hinders uniform application of laws. In general, given the pervasive character of Part III of the Constitution, Courts have interpreted FR more as safeguards provided to citizens against oppressive tactics of statecraft and less as positive obligations imposed on the State.

Therefore, as an ancillary matter, the 2019 Amendment has checks and balances enough to prevent abuse of power and prevent a substantial transformation from the pre-2019 Amendment situation. In such a scenario, there arises no question of unconstitutionality of the Amendment. Further, the primary object of the Bill is stated to be the untethering of the salary, allowances, etc., of CIC/ICs from that of their counterparts in the Election Commission. From the standpoint of financial independence of the executives of the Commission, the rubrics now stand independent of other institutions. As a principle, the intention of legislators is not called into question in a Court of law: a law is always said to have been enacted with bona fide intention. The Amendment, thus, could be said to increase legal certainty by making clear the statutory nature of the Information Commission, by keeping it concurrent with with other statutory bodies.

Conclusion

To effect a change or an overhaul in the information dispersion regime of the country, an Amendment to the definition of ‘information’, the procedural and substantive provisions dealing with the obligations of the public authorities and exemptions therefrom in the sections 2-11 of the 2005 Act would be necessary. But, an argument that right to information and right to freedom of speech and expression would not be subverted by keeping the salaries of executives of the Information Commission tethered to their constitutional body counterparts is bound to break down by every stretch of imagination because the information dispersion regime has not been changed even the slightest by the 2019 Amendment.

In order to lay an emphasis on the right to information as a Constitutional guarantee, to demarcate the boundaries of such dispersion of information through an authority vis à vis the possible restrictions of article 19(2) of the Constitution leading to certainty and accountability in the mechanism would require a multi-faceted study as to the nefarious implications of divulging information mentioned in section 8 of the 2005 Act. A debate on the change in mechanics proposed by the 2019 Amendment and its constitutionality would be quite futile to this end.

[Ashok is an Engineer turned Law Student of IIT Kharagpur]

Administration and History of “MINISTRY OF DEFENCE”

ADMINISTRATION:

The Government of India is responsible for ensuring the defence of our country. That is why the Ministry of Defence is formed by the Government soon after the Independence of our country in August, 1947. The President of India, Mr. Ram Nath Kovind is the incumbent supreme command of the armed forces of India. Cabinet is being given responsibility for national defence which is discharged through the Ministry of Defence. Defence Secretary functions as the Head of the Department of defence and is additionally responsible for coordinating the activities of four departments which are presently under the control of Ministry of Defence, whereas Defence Minister is the head of the Ministry of Defence. The incumbent Defence Secretary is Sanjay Mitra who is appointed by the appointments committee of the cabinet and the incumbent Defence Minister is Sri Rajnath Singh.

The major role of this ministry is to obtain policy directions to the government on all defence and security related matters and communicate them for implementation to the Services Headquarters, Inter Services organisations, Production Establishments and Research and Development organisations. Another role of the ministry includes effective implementation of government’s policies and execution of approved programmes within the allocated resources.

The Departments which are under the control of Ministry of Defence are:

The Department of Defence
The Department of Defence Production
The Department of Defence Research and Development
The Department of Ex-Servicemen welfare and financial division.

Department of Defence: This Department is responsible for the defence budget, establishment matters, defence policy, matters relating to Parliament defence cooperation with foreign countries and coordination of all defence related activities. This department consists of Integrated defence staff, three services and various inter-service organisations.

Department of Defence Production: This department is headed by a secretary. This department deals with the matters pertaining to defence production, indigenisation of imported stores, equipment and spaces, planning and control of departmental production units of the Ordnance Factory Board and Defence Public Sector Undertakings (DPSUs).

Department of Defence Research: This department is headed by a secretary. The functions of this department are to advise the government on scientific aspects of military equipment and logistics and formulation of research, design and development plans for equipment required by the services.

Department of Ex-servicemen welfare: This department is headed by a secretary and the functions of this department includes dealing with all resettlement, welfare and pensionary matters of ex-servicemen.

HISTORY:

The history of the Defence Ministry starts way back in the eighteenth century with the introduction of Military Department by East India Company’s Supreme Government at kolkata. This department then underwent many changes in different time periods and finally became the Ministry of Defence in twentieth century after India’s Independence. The supreme authority during the introduction of the Military department was Governor General-in-Council who was subjected to the control of the crown which was generally exercised by the Secretary of State for India. The members of the council were Military member and Commander-in-chief who took care of administrative & financial matters and operational matters respectively.

The chronology of the changes which occurred in the Military department are as given below:

MILITARY DEPARTMENT: This department was established by the East India Company’s Supreme Government at Kolkata in the year 1776. The main functions of this department were sifting and recording orders relating to the Army issued by various departments of the Government of East India company.
CHARTER ACT, 1833: Secretariat of the Government of East India company was re-organised into four departments, including a Military department, each headed by a Secretary to the Government.
INDIAN ARMY: Presidency Armies of Bengal, Bombay and Madras got unified into single Indian Army in the year 1895. Indian Army got four different commands at that point of time. They were Punjab Command (including North-West Frontier), Bengal Command, Madras Command (including Burma), Bombay Command (including Sind, Quetta and Aden).
ARMY DEPARTMENT AND MILITARY SUPPLY DEPARTMENT: Military department got abolished in March 1906 and was replaced by two separate departments, the Army department and the Military Supply department.
ABOLITION OF MILITARY DEPARTMENT: In April 1909, the Army department has taken over the functions of Military department by abolishing it.
DEFENCE DEPARTMENT: Army department was re-designated as Defence department in January 1938.
MINISTRY OF DEFENCE: Department of Defence is changed to Ministry of Defence in August 1947. Ministry of Defence was setup under a cabinet minister after Independence keeping in view of the responsibility for national defence. Each service of the ministry was placed under its own Commander-in-chief.
RENAMING OF COMMANDER-IN-CHIEF: Commander-in-chief was renamed in the year 1955 as Chief of the Army staff, Chief of the Naval staff and Chief of the Air staff.
DEPARTMENT OF DEFENCE PRODUCTION: This department was setup in the year 1962 for research, development and production of defence.
DEPARTMENT OF DEFENCE SUPPLIES: Department of Defence supplies was created in the year 1965 for planning and execution of schemes for import substitution of defence requirements.
DEPARTMENT OF DEFENCE PRODUCTION AND SUPPLIES: The Department of Defence Production and Department of Defence Supplies merged to form the Department of Defence Production and Supplies.
DEPARTMENT OF DEFENCE PRODUCTION: The Department of Defence Production and Supplies became Department of Defence Production in the year 2004.
DEPARTMENT OF DEFENCE RESEARCH AND DEVELOPMENT: This department was created in the year 1980.
DEPARTMENT OF EX-SERVICEMEN: This department was created in the year 2004.

Thus, the Ministry of Defence is the oldest ministry which has its legacy from eighteenth century East India Company’s Military Department. The Ministry of Defence is playing a crucial role in nation’s defence and also in providing policy framework to the armed forces to discharge their responsibilities in the context of the defence of the country.

THE RIGHTS OF PRIOR USER IN INDIA

~Sai Pavan Dyagala

Section 34 of The Trade Marks Act, 1999 states that “A person or a Predecessor continuously using a trade mark from a Prior date has his vested rights to that trade mark when compared to a proprietor or a registered user of a registered trade mark which is identical or in resemblance with the goods or services of the former.”

MILMET OFTHO INDUSTRIES & OTHERS vs. ALLERGAN INC. is a case law between two Pharma companies Allergan Inc. and Milmet Oftho Industries & others. The Milmet Oftho Industries and others who filed the appeal are the Indian Pharma Companies, whereas the Allergan Inc. is the Pharma Company manufacturing Pharma products in several countries. This is an appeal against the Judgement of Calcutta High Court dated 6th November, 1997. Allergan filed a suit for an Injunction based on an action for passing off in respect of mark OCUFLOX belonging to the respondents. The Allergan Inc. (Respondents) claims that they are the prior users of the mark OCUFLOX since 9th September, 1992 in respect of eye care product containing Ofloxacin and other compounds. They marketed the product in so many countries and also got registration in few countries. The application for registration of Trade Mark in few countries including India was pending at the date of filing of this case. The Appellants were selling OCUFLOX on a medicine containing CIPROFLOXACIN HCL used for both the eye and ear treatment. The claim of the appellants was that they coined the word OCUFLOX by taking the prefix OCU from OCULAR and FLOX from CIPROFLOXACIN which is the basic constituent of their product. They were granted registration by the Food and Drug Control Administration on 25th August, 1995. They have applied for registration of the mark OCUFLOX in September 1993 which is now in pending. The Supreme court headed by a two Judge bench consisting of S.N. Variava and H.K. Sema referred to two important judgements N.R. DONGRE vs. WHIRLPOOL CORP. and CADILLA HEALTH CARE LTD. vs. CADILLA PHARMACEUTICALS LTD. before disposing off this appeal filed by the Milmet Oftho Industries and others.

In N.R. DONGRE vs. WHIRLPOOL CORPORATION, the appellants got the registration mark WHIRLPOOL in respect of washing machines. The Whirlpool Corporation filed a suit for passing off action brought by the Respondents to restrain the appellants from manufacturing, selling, advertising or in any way using the trade mark WHIRLPOOL of their product. It was held that the refusal of an Injunction could cause irreparable injury to the reputation of the whirlpool corporation, whereas grant of an injunction would cause no significant injury to the appellants who could sell their washing machines merely by removing a small label bearing the name WHIRLPOOL.

In CADILLA HEALTH CARE LTD. vs. CADILLA PHARMACEUTICALS LTD., when the question of whether the mark FALCIGO and FALCITAB were deceptively similar was raised, the highest court did not interfere on the ground that the matter required evidence on merits but laid down principles on which such cases were required to be decided. Supreme Court held that in a passing off action for deciding the question of deceptive similarity the following facts had to be taken into consideration:

The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e. both words and label works.
The degree of resemble ness between the marks, phonetically similar and hence similar in idea.
The nature of the goods in respect of which they are used as trade marks.
The similarity in the nature, character and performance of the goods of the rival traders.
The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.
The mode of purchasing the goods or placing orders for the goods, and
Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.

In NEON LABORATORIES LTD. vs. MEDICAL TECHNOLOGIES LTD. & ORS., a two judge bench of the Supreme Court opined that “to claim exclusivity of user, the trademark should normally partake of a new creation, or if an existing word, it should not bear descriptive characteristics so far as the product is concerned, nor should it be of an extolment or laudation.” Court also referred to Wander Ltd. vs. Antox India P. Ltd. in which Supreme Court adumbrated that the Appellate Court ought not to “reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion”. Before granting an ad interim injunction, the Court in seisin of the litigation has to address its attention to the existence or otherwise of three aspects-

whether a prima facie case in favour of the applicant has been established;
whether the balance of convenience lies in favour of the applicant; and
whether irreparable loss or damage will visit the applicant in the event injunctory relief is declined.

S. SYED MOHIDEEN vs. P. SULOCHANA BAI is an appeal in the Supreme Court before a two Judge bench where the appeal was dismissed and the appellants are asked to pay the costs of Rs. 50,000/- to the respondents. Earlier, the factual position of this case is summed up by the High Court in the following manner:

“when the Plaintiff has earned the reputation and goodwill in the business in the name and style of ‘Iruttukadai Halwa’, the defendant cannot simply add the word ‘Tirunelveli Iruttukadai Halwa’, as the same has been used prior in point of time by the Plaintiff. Therefore, the Court is of the considered opinion that allowing the defendant to use the trade mark ‘Tirunelveli Iruttukadai Halwa’ will amount to deceiving the public, hence, no one can be permitted to encroach upon the goodwill and reputation of the other party, particularly when a specific mark, though may be a descriptive word, has acquired a subsidiary meaning and is fully admitted by the particular company and when a party who cannot be termed as a honest current user of the mark on the reputation and goodwill of the company, it will constitute an invasion of the proprietary right, hence, the same cannot be permitted any longer. In a situation like this, it is the bounden duty and obligation of the Court not only to protect the goodwill and reputation of the prior user, but also to protect the interest of the consumers.”

Thus, keeping in view the above mentioned case laws and the provision of the Trade Marks Act, it is clear that the prior user has primary rights on his goods or services which came earlier into the market when compared to the other users who started the same or similar products in the market even if they have a registered trade mark of such product. This does not deprive a person who has not applied for a trade mark due to lack of knowledge or due to any economical or other reasons. The law makers are very careful while framing this law and taken due care to not cause any loss to the prior users of any goods or services.