[This article is authored by Kritagya Agarwal]

The Mohenjo-Daro and Harappa Civilizations, which are known to have existed around 3500-2500 B.C., furnish evidence of the use of Trademarks. The artisans and craftsmen in those times used to stamp their work that was later used in trade. Clearly, Intellectual Property Rights have consciously and/or unconsciously been deep-rooted in human society. Over time, societies have evolved this concept and now it is recognized worldwide. The rights provided to people for the creations of their minds are called Intellectual Property Rights. [1] 
A right provided to a person is like a stop line on a traffic signal, it ought to be crossed. The infringement of a right leads to disputes among parties. And, as history has it, litigation is considered to be the best way to resolve disputes. On the flip side, however, are some glaring questions on the viability of litigation as a means of dispute resolution. To exemplify, isn’t litigation expensive and time taking? Don’t judges issue ex-parte orders? Judgments are considered public records, aren’t they? All of the aforementioned questions make us wonder, what is the best possible alternative to litigation? After all, Abraham Lincoln rightly stated, “The nominal winner is often a real loser in fees, expense, and waste of time.”
Alternative Dispute Resolution (“ADR”) has attained widespread recognition in developed and developing countries across the globe. ADR includes Mediation, Arbitration, Negotiation, Conciliation, Lok Adalats (in India), and other ways of resolving conflicts with the help of a specially trained, neutral third party without the need for a formal trial or hearing. The fact that ADR is pocket-friendly and speedy is making it famous among the public as well as litigators. Parties are also attracted to the method due to the confidentiality of information it offers that can be sensitive to the working of their organizations. ADR is a win-win strategy as it is not focused on declaring winners and losers but to solve the problem at hand. [2]
In India, several legislations have been passed governing different aspects of IP but barely any of them consist of provisions for Alternate Dispute Resolution. ADR in India took a leap after the enactment of the Arbitration and Conciliation Act of 1996. The Act, however, lacked to shower light upon Intellectual Property Rights. The burden for the same was transferred on the shoulders of the Indian Judiciary. 
Over the past two-and-a-half decades, India has experienced a significant rise in the registration of IPs. In the year 1998-99 around 13,000 IPRs were granted in India, whereas in the year 2017-18 this figure was around 3, 44,000. [3] But this growth collaborated with infringement of IPRs in India. In 2017, India was the origin for 55 percent of the total value of global counterfeit pharmaceutical seizures, the rate of unlicensed software use stands at around 58 percent, stakeholders have identified specific incidents of camcording that originate in Indian cinemas, and Indian products bear the mark of forged accreditation certificates. [4] There was a consequential increase in the rate of IP disputes in India.

Judiciary on IP Disputes and ADR
The basic notion among people to resolve any dispute is through litigation. Specifically speaking of IP disputes, the Berne Convention 1886, the Paris Convention 1883, the Rome Convention 1961,  all these and many more statutes governing IPR state that the primary step for the enforcement of provisions of IPR is civil remedies. In this whirlpool, the emergence of ADR was tough. The Indian Courts came to the rescue of ADR across cases of overtime. Although these cases promoted ADR in commercial disputes, they created a lot of confusion about its usage in the resolution of IP disputes.
In the landmark judgment of Booz Allen [5], the Supreme Court laid down the test for determining the arbitrability of any dispute. Under this test, the court opined that if a dispute is related to a right in personam, then such dispute can be sorted through arbitration. Whereas if a dispute involves a right in rem, it can only be adjudicated by courts. Furthermore, the court recognized some examples of non-arbitrable disputes such as disputes involving criminal offenses, guardianship, insolvency, matrimonial disputes, testamentary disputes, and eviction or tenancy. 
The judgment of Ayyasamy [6], shook the very idea of whether IP disputes could be referred to arbitration because the Apex court clearly mentioned that disputes relating to ‘patents, trademarks, and copyright’ are non-arbitrable. This obiter dictum by the court gave rise to sheer confusion as it was imprudent to blindly ignore the clarifications specified in Booz Allen. In Lifestyle Equities [7], the Madras High Court clarified this confusion produced by the two judgments of the Supreme Court and said that this specification by the Apex Court was merely a scholarly opinion and was not the court’s ratio. Further, in this judgment, the court held that a patent right dispute may be arbitrable as far as it lies under the ambit of right in personam but the validity of the patent is not arbitrable because such a dispute lies under the scope of the right in rem.
In the milestone judgment of Eros International [8], Bombay HC held that a plaintiff is entitled to bring an action for infringement of IPR in right in rem but the infringement of the right is done by a certain party and the actions are in personam. Considering the ratio in Booz Allen and Eros International, IP disputes fall in the category of right in personam and thereby are arbitrable.

IP related Statutes under ADR
Legislations in India have successfully enforced several laws for the smooth running of the ADR mechanism. Similarly, laws related to IP have progressed in the effect of the same. Arbitration & Conciliation Act, 1996 is the biggest step towards the success of arbitration in India. Accordingly, the Code of Civil Procedure is amended to simplify the use of ADR in the Indian dispute resolution system. Section 89 and Rule 1A, 1B, and 1C of Order X of First Schedule were implemented by the CPC Amendment Act of 1999. These are related to ADR and talk about the different types of ADR methods. In addition, the Legal Service Authority Act of 1997 provides for ADR through Lok Adalats. 
IP statutes in India have recognized the need for ADR and accordingly, provisions are enforced. The Patent Act of 1970 under Section 103 specifically lays down the use of arbitration for the resolution of Patent disputes. Patent disputes involve a lot of technical knowledge that needs to be analyzed and understood. In India, patent disputes are stretched for long terms and become very expensive. ADR is an effective method to resolve disputes related to patents. Various judgments in this regard have made it easier for parties to engage in dispute resolution through ADR.
An extensively prominent method for infringement of Trademarks in the modern world is of Cybersquatting. Cybersquatting is the unauthorized use and registration of Internet Domain names that are identical to trademarks, service marks, company names, or personal names. Cybersquatting registrants obtain and use the domain name with the bad faith and with the intent to profit from the goodwill of the actual trademark owner. [9] To prevent this type of trademark infringement, the Uniform Domain Name Dispute Resolution Policy of 1999 was enforced; this policy pertains to the use of arbitration in such types of disputes. Indian Domain Name Dispute Resolution Policy is responsible for adjudicating these disputes for Indian domain names.

Is litigation the best way to resolve a dispute that can be solved through ADR? Varied opinions can exist on such a question. IP disputes can often attract lack of arbitrability when the dispute lies in the ambit of right in rem, like those disputes which are to establish validity or invalidity of IPR. Although IP dispute resolution can never be completely dependent upon ADR, or arbitration which is more prominent in India, yet it should opt-in cases where there is a choice. The plethora of advantages of ADR over litigation will always be its driving factor. ADR can be positively regarded as an amicable mechanism for IP dispute resolution.

[1] TRIPS Agreement, 1994.
[2] Dr. Vikas Vashishth, Law and practice of intellectual practice in India, First Edition (2002).
[3] Annual Reports 2002-03 & 2017-18, Office of the Controller General of Patents, Designs & Trademarks.
[4] 2018 Special Report 301, Office of the United States Trade Representative.
[5] Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532.
[6] A. Ayyasamy v. A. Paramasivam & Ors., AIR 2016 SC 4675
[7] Lifestyle Equities CV v. Qdseatoman Designs Pvt. Ltd.
[8] Eros International Media Limited vs Telemax Links India Pvt Limited, 2016 (6) ARBLR 121 (BOM)
[9] What is the definition of Cybersquatting?, Winston & Strawn LLP, Available here

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[This article is authored by Shambhavi Shekhar]

Press Note 3, 2020, (“PN3”) issued by the Ministry of Commerce and Industry, through the Department for Promotion of Industry and Internal Trade (“DPIIT”) on April 17, 2020, has opened doors for a lot of discussions and deliberations. Aimed primarily at reviewing the existing Foreign Direct Investment (“FDI”) Policy of 2017 and to safeguard the economic interests of Indian companies against exploitative and opportunist motives in the wake of a pandemic, PN 3, imposes restrictions on the receipt of FDI from countries sharing land borders with India (“restricted countries”) or when any investment is made in India and the “beneficial owner” of such an investment is either situated in or has the citizenship of those countries, by allowing investments only through the Government approval route. Further, in situations of transfer of ownership of present or future FDI resulting in beneficial ownership which falls in the aforementioned restrictions, then such a change would also call for obtaining government approval. Thus, there is no embargo, but only stricter regulation with respect to both, primary and secondary investments. Consequently, to give effect to PN 3, the Department of Economic Affairs, vide a notification dated April 22, 2020, substituted the existing proviso under Rule 6(a) of the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 by way of Foreign Exchange Management (Non-debt Instruments) Amendment Rules, 2020 (“NDI Rules”). Interestingly, neither the PN3 nor the amended NDI Rules define beneficial ownership, thereby opening floodgates of speculation around its interpretation, until a subsequent clarification is issued. This article aims at drawing references under existing statutes in respect of the term.

Beneficial Ownership - A Comparative Interpretation
The generic meaning of the term “beneficial” can be found in the Black’s Law Dictionary [1] as “tending to the benefit of a person; yielding a profit, advantage, or benefit; enjoying or entitled to a benefit or profit. This term is applied both to estates (as a "beneficial interest") and to persons (as "the beneficial owner")”. Further, it also defines a ‘general and beneficial owner’ [2] to mean “the person whose interest is primarily one of possession and enjoyment in contemplation of ultimate absolute ownership”.
A closer look at the Foreign Exchange Laws of India finds that, albeit used but the term has not been given a particular definition even under the Foreign Exchange Management Act, 1999 (“FEMA”) or any of the regulations made thereunder. The FDI Policy, however, contains that while calculating indirect foreign investment, if any declaration has been made either under S. 89 of the Companies Act, 2013 or even under the old Companies Act of 1956 (S. 187 C), to the effect that any ‘beneficial interest’ is held by an entity which is not an Indian resident, in that scenario, even if the investment is made by Indian citizen who is also a resident, it would be considered as a foreign investment. The same has also been reiterated in the NDI Rules. Further, if more than fifty percent of the capital of a company s owned ‘beneficially’ either by resident Indian citizens or Indian companies, it would be said to have been owned by resident Indian citizens. Thus, even the FDI policy is silent as to the exact meaning of the term. In the context of the recent amendment, it may have a profound impact on investments received by India. In cases where the FDI is received from a country to which the restrictions of PN3 do not apply but the investing entity itself has investments from any of the restricted countries, government approval may still be required. However, no threshold has been provided, in order to categorize an investment as one which may or may not give rise to beneficial ownership and further lead to an opportunistic takeover or acquisition. This may trigger the imposed restrictions even if a relatively insignificant shareholding is exercised by any of the restricted countries in an investing entity. Entities, therefore, need to be vigilant and take necessary approvals. The term envisages different meanings and interpretations under different Indian enactments.
The Companies Act, 2013, vide S.89, requires that a declaration be made, in respect of any beneficial interest in the shares (no holding threshold provide). [3] This means if any person holds certain shares on behalf of the real owner or as a trust, all particulars of the beneficiary has to be disclosed. Per Contra, the person who now acquires the beneficial interest in the shares also needs to disclose the particulars of the person in whose name his shares were registered. S. 90 deals with the investigative part of beneficial ownership. However, it lays down the criteria for the determination of ‘significant beneficial ownership’ (“SBO”). An individual is a significant beneficial owner when he alone or with others (even a person resident outside India) who either holds the beneficial interest of at least 25% of the shares or has the right to exercise significant influence over the company. For the purposes of both these sections, i.e. 89 and 90, ‘beneficial interest’ includes the right of a person either in his individual capacity or with others, first, to exercise all or any of the rights which are attached to the shares held by him or second, to participate in dividend or other distributions associated with such shares, as enshrined u/S. 89(10). This has to be read along with the Companies (Significant Beneficial Owners) Rules, 2018 (“2018 Rules”) which lays down categories and their holding requirement in order to be classified as SBOs. For a company that is a member, SBO is the natural person holding at least 10% in the company’s share capital or exercises significant control.  This was substituted by the Companies (Significant Beneficial Owners) Amendment Rules, 2019 (“2019 Rules”) which laid down that an individual would be an SBO if he alone or along with others, either, holds at least 10% of the shares, or holds at least 10% of the voting rights or possesses the right to receive at least 10% of the dividends/other distributions (direct or indirect holdings) or exercises significant influence over the company. As per Rule 2, significant influence means the power to participate in key policy decisions of the company pertaining to finances and operations. However, the mere exercise of control without any other of the aforementioned rights shall not make an individual an SBO. The whole rationale behind the introduction of these rules was to identify the actual owners who hold a beneficial interest in the company and the same to be reported. However, on one hand, S. 90 envisages a minimum holding of 25% whereas the SBO Rules provide for at least 10%. In absence of any clarification, the exact threshold of beneficial ownership cannot be determined and investors might need to take the government approval even if a minute shareholding exists by the restricted countries. 
Sectoral regulators, Securities, and Exchange Board of India (“SEBI”) have ‘Know Your Customer’ (“KYC”) requirements. Pursuant to the SBO Rules, on December 07, 2018, it issued a circular mandating all listed entities to disclose SBO related details. Prior to that, on April 10, 2018, it issued another circular regarding the KYC requirement for Foreign Portfolio Investors (“FPI”). It stated that the identification of beneficial owners would be based on the Prevention of Money Laundering (Maintenance of Records) Rules, 2005, i.e, on ownership basis. For identifying beneficial owners in companies, the threshold is 25% ownership while for partnership firms or associations of persons, the threshold is 15% ownership or entitlement. This threshold can be reduced to 10% for FPIs from “high-risk jurisdiction”. Identifying the actual control flow has been stressed upon by the Securities Appellate Tribunal as well. In the case of Sahara Asset Management Company v. Securities and Exchange Board of India, [4] it stated that “in the securities market, SEBI Act empowers SEBI to take actions in the interest of protecting the interests of the investors and hence lifting the corporate veil to the extent to identify who controls a regulated entity cannot be faulted”. 
The Prevention of Money Laundering Act, 2002 (“PMLA”) defines ‘beneficial owner u/S. 2(fa)’. It refers to an individual who has the final ownership or control of any of the clients of the entity who is reporting u/PMLA or individuals on whose behalf any transaction is carried out or who has the ultimate control over a juridical person. [5] Here, reporting entity includes banks and financial institutions, persons carrying on games of chance (See-casinos), and other persons engaged in other professions and activities as notified by the Central Government. The threshold for identification of beneficial owner is 25% ownership of either shares or capital and even profits in the company, as provided under Rule 9(3) the Prevention of Money-Laundering (Maintenance of Records) Rules, 2005. This is known as the ‘controlling ownership interest’. Control means the right to partake in policy decisions, appoint majority directors, and even control management of the company. The threshold in case of a partnership firm and an association of persons is 15% ownership in capital and profits whereas, for a trust, it is 15% or more interest in the trust. 

The absence of a concrete definition and threshold under PN3 has sparked a lot of speculations in the minds of industry stakeholders, investors, and investees alike. The aim of reviewing the FDI Policy was to safeguard the economic interests of Indian companies in the wake of the pandemic and avoid takeovers and acquisitions carried out with opportunist motives. It came as a clarion call when the People’s Bank of China raised its stake in HDFC. Amidst varying speculations and keeping in mind the object of the review, it can be said that if at all parallels are to be drawn with existing definitions, the SBO Rules can be said to be comparatively better aimed towards achieving the object, subject to any new clarification which may be issued by the Government of India. However, apart from this clarification, a few loopholes need to be plugged too such as investments from Special Administrative Regions of China (SAR) such as Hong Kong, where entities have a strong Chinese presence. Also, pursuant to this review, the NDI Rules have been amended but only with respect to FDI. Other investment modes still need to be considered. Further, how will these changes reflect in the light of the Bilateral Investment Treaty between India and China, is still a speculative topic.  In light of these, a clarification is much awaited; especially as regards beneficial ownership so that a clear threshold is put in place, failing which, investment by any entity having any percentage of beneficial ownership from the restricted countries would require prior approval.

[1] Black’s Law Dictionary, Available here. 
[2] Black’s Law Dictionary, Available here.
[3] S. 89, Companies Act, 2013.
[4] 2017 SCC OnLine SAT 173.
[5] S. 2(fa), The Prevention of Money Laundering Act, 2002.
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[ This article is authored by Rishabh Shukla]

Foreign investors and host States started to conclude 'State contracts' towards the start of the 20th century to regulate specific operations. Those contracts served notably to establish the jurisdiction of arbitration tribunals. The disputes they had to decide often related to public interest considerations, but the number of disputes was still scarce as they concerned a very limited number of contractual operations.

Situational Change
The situation changed towards the end of the 1980s, as a result of two landmark decisions: SPP v. Egypt [1] and AAPL v. Sri Lanka [2]. In these decisions, the Tribunals found that the consent of the host State to arbitration could be established based on the domestic law of Egypt, in the first case, and on the international Investment agreement between the United Kingdom and Sri Lanka [3], in the second case.
It is important to realize the consequences of these decisions which are now largely accepted in practice. They have meant that the conclusion of a contract between the investor and the host State is no longer a prerequisite to the initiation of arbitration proceedings. As for the AAPL v. Sri Lanka [4] the decision, this entails that all the private persons to whom international investment agreements are applicable can rely on their dispute settlement provisions within which the consent of the host State to arbitrate is contained, provided that the jurisdictional conditions [5]  are satisfied.
Besides, this also means that those private persons can challenge the legality of any state measure which is allegedly in breach of these agreements. And, those measures are often tinged with public interest considerations.
And so, the number of private persons and the type of measures which are now 'in the sphere' of investor-state arbitration has increased significantly in the aftermath of the AAPL v. Sri Lanka [6] revolution.

The Effect
The effect of this revolution has been multiplied by the growing treaty practice in the field of international investment law. The first international investment agreement was concluded in 1959 between Germany and Pakistan [7]; today 2671 such agreements are in force.
This means that under the great majority of those 2671 agreements, the private persons to whom they are applicable can directly initiate proceedings, following the conditions that these agreements set out, to challenge the legality of any state measure that they consider breaches of those agreements.
All of this contributes to explain why the number of investor-state disputes has drastically increased, for instance from one dispute registered by the ICSID in 1972 to 48 in 2016, with a total of 597 disputes registered since the creation of the Centre. [8] All in all, the past few decades have given rise to an important change as regards public interest considerations.
Of course, it has always been the case that the measures which are challenged in investor-state disputes are tinged with these public interest considerations.
On the other hand, the change which has taken place is a quantitative one - the number of measures challenged and, as a result, the number of disputes settled by arbitration tribunals has multiplied.
However, it should not be inferred from this that States can no longer regulate freely under international investment law. First of all, this is because the findings of arbitration tribunals cannot be equated with the claims of foreign investors. 
Second of all, the way that most arbitration tribunals have notably applied the fair and equitable treatment and indirect expropriation provisions have not annihilated the right of States to regulate.
Nonetheless, of course, the possibility given to foreign investors to initiate proceedings can be seen as a 'Sword of Damocles' which has a 'chilling effect' on host States, causing them to refrain from regulating to avoid such costly challenges.
In this respect, host State authorities must acquire a better knowledge of arbitration practice: this would help them to realize that often the measures that they contemplate, conform with international investment agreements. That being said, the fact that arbitration tribunals are so often called to rule over the legality of state measures tinged with public interest considerations raises for many an issue of legitimacy.
Initially, investor-state arbitration was very similar to commercial arbitration. In addition to the traditional features of arbitration explained, something they also had in common was the confidentiality of the proceedings.
This confidentiality is applied to both the process and its output. The process, meaning the written and the oral phases, was kept confidential notably in the sense that no document or memorial was made available to the public; in the same vein, the hearings took place beyond closed doors.
The output of the proceedings, meaning the final award, was not released. Such a degree of confidentiality is not criticized in commercial arbitration; in fact, it is seen as normal that disputes relating to commercial transactions between private persons be kept secret.
In international investment law, however, such a level of confidentiality has been debated and criticized because one party to the dispute is a State acting as a sovereign and because the measure at stake is tinged with public interest considerations. Many have viewed this level of confidentiality as unacceptable, in particular when the number of investor-state disputes and the awareness of local populations of these disputes has increased.
This contributes to explain why the rules of arbitration have been revised since the 2000s [9] to make arbitration proceedings more transparent. This is well illustrated by the 2006 revision of the  ICSID Rules of procedure for arbitration proceedings. [10]

Features of Transparency
Particular features of this evolution are the briefing of amicus curiae, the opening of hearings, and the publication of awards.

(a) Amicus Curiae
As for amicus curiae, arbitration tribunals can now, after consultation of the parties, allow a person or an entity to file a written submission with the tribunal regarding a matter within the scope of the dispute.
Rule 37 of the ICSID Rules of procedure for arbitration proceedings [11] provides a non-exhaustive list of the elements that tribunals shall take into account in deciding to grant or not this authorization, including the extent to which the non-disputing party has a significant interest in the proceeding, the extent to which they would address a matter within the scope of the dispute, and the extent to which they would assist the tribunal in the determination of a factual or legal issue by bringing a perspective, a piece of particular knowledge or insight that is different from that of the disputing parties. As a result of this evolution, non-governmental organizations and international organizations have since been active in filing such amicus curiae. 
For instance, the World Health Organisation did so in the case of Philip Morris v. Uruguay [12] in which Philip Morris challenged the legality of a plain packaging regulation adopted by Uruguay.

(b) Open Hearings
Concerning the hearings themselves, the tribunal can, after consultation with the Secretary-General, allow any person not involved in the proceedings to attend or observe all or part of the hearings, provided neither party objects to this.
In such a case, the tribunal shall establish procedures for the protection of proprietary or privileged information.
For instance, in BSG v. Guinea [13], the hearings on jurisdiction and merits were open to the public via webcast from the 22nd of May 2017 to the 2nd of June 2017.
Finally, as for the awards, the Rules of procedure for arbitration proceedings provide that the ICSID shall not publish them without the consent of the disputing parties.
However, even if the parties oppose the publication, the ICSID shall promptly publish excerpts of the legal reasoning of arbitration tribunals.
This evolution, initiated in the 1984 amendment of the Rules [14], introduces an element of transparency in that it helps us to understand how these tribunals decide whether state measures conform with the relevant international investment agreements. It is also crucial for the formation of what is called 'jurisprudences constantes'.
In addition to the 2006 revision of the ICSID Rules of procedure for arbitration proceedings [15], we can also refer to the 2013 Rules on transparency in treaty-based investor-state arbitration published by the United Nations Commission on International Trade Law. [16] This instrument contains a set of rules that provide transparency and accessibility to the public in investor-state arbitration.

[1] Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt (ICSID Case No ARB/84/3) Award (20 May 1992).
[2] Asian Agricultural Products LTD (AAPL) v. Republic of Sri Lanka (ICSID Case No ARB/87/3) Final Award (27 June 1990).
[3] Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Democratic Socialist Republic of Sri Lanka (adopted 13 February 1980; entered into force 18 December 1980).
[4] Ibid.
[5] Rationae Personae, Rationae Voluntatis, Rationae Materiae.
[6] Supra note 2.
[7] Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments (adopted 25 November 1959; 28 April 1962).
[8] ICSID Website List of BITs, available here
[9] ICSID Rules of Procedure for Arbitration Proceedings (2006).
[10] Ibid.
[11] Rule 37, ICSID Rules for Procedure of Arbitration Proceedings.
[12] Philip Morris Brands SARL, Philip Morris Products S.A., and Abal Hermanos S.A. v. Oriental Republic of Uruguay (ICSID Case No ARB/10/7).
[13] BSG Resources Limited, BSG Resources (Guinea) Limited, and BSG Resources (Guinea) SARL v. Republic of Guinea (ICSID Case No ARB/14/22) Public Hearing (16 May 2017).
[14] ICSID 1984 Amendments
[15] Supra note 8.
[16] UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (1 April 2014)
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[This article is authored by Arijit Sanyal]

Folklore is an all-encompassing term for a domain of diverse cultural knowledge and practices which includes folk arts, music, dance, poetry, plays, etc in an abstract form and jewelry, tapestries, shawls, needlework and carvings showing a tangible side. [1] Presence of such a wide variety of subjects under the umbrella term, “Folklore” makes it difficult to have a precise and globally-endorsed definition as what might be folklore for a particular civilization might fail to qualify as one for others. It has absorbed social change and has morphed from time to time. Owing to this fluid nature, it has not been granted IP protection over the years, but with technological advancement, the economic interests of the folklorists have come under a threat, especially from the outgroups, which have capitalized on the lack of protection and have exploited the cultural practices of various civilizations without any recompense.
Folklore, a creative social process consists of a multitude of things such as dramatic expressions, music, literature, dance, and tapestry which though not always in a tangible form, falls within the meaning of literary and artistic work under the Berne Convention. Folklore does not have a uniform mode of expression and might not be fixed all the time, as for instance the tapestry of Ladakhi people, folk tales of the Himalayan Tribes, the Murals of Naga and Kashmiri tribes, accessories of Kalash tribe, Tribal dance drama of the Santhals, etc. The globalized world today has made exploitation of folklore easier without making any recompense to the concerned community. Not only is their culture marketed heavily to obtain pecuniary benefits, but it is also adapted in a restructured way that undermines the identity of a civilization. [2] IP protection in the form of Copyright, Related rights, or local legislations not only obviate such chances of adulteration and diminution by preventing unauthorized adaptions and reproductions but will also guarantee economic rights to the concerned community.

What can be protected under the IP ecosystem
In any case, if Folklore is to be given recognition and protection under the international Copyright laws, it must fulfill certain benchmarks, that are, it should be original, it should be independently-created, the nationality of the author should be clear and it should allow fixation in a tangible medium. [3] The presence of these conditions precedent for granting Copyright protection negates the chances of Folklore getting protection, for instance regarding authorship, there is no single author to whom the work might get credited, as the work belongs to the community,  and has absorbed social change over the years and the present version cannot be said to be original for the sake of protection and finally not all folkloric expressions such as drama, dance, tales, etc can be fixed in a tangible form. Another major hurdle before folkloric expressions is the duration for protection and if it were even possible to identify a single author, it would be protected for their lifetime and a limited period thereafter before falling into the public domain. [4]
However, there have been other developments which though would not extend copyright protection to folkloric expressions but will ensure sui generis protection, which will be extended from nation to nation basis. Such an idea emanates from the Model Provisions for the protection of Folklore. [5] The model provisions acknowledge the importance folklore holds for a developing country and provides for the protection and points out towards a major drawback of the Paris Act. [6] This came into being after both copyright laws and neighboring rights [7] failed to provide adequate protection to folklore and has laid down provisions for sui generis protection of Folklore is and when a country adopts the model laws.
The Model Provisions enumerate provisions for seeking authorization whenever the purported act falls outside their customary domain [3], however, the same does not extend to educational purposes and other related works falling under fair practices. The provisions also lay down a detailed scheme for penalties, civil remedies, and seizures. The problem which makes its authority questionable and futile to a greater extent is that the model provision is not binding and leaves the implementation and execution part at the discretion of nations who may choose to proceed with the same. 

Folklore and the Indian Perspective
India, being a developing country and having rich folklore must take steps to protect the diverse cultural heritage spread across the provinces in order to prevent adulteration of the same and to ensure that the concerned groups are not alienated from their economic rights having a nexus with such folkloric works. India, in furtherance of protecting cultural heritage, must learn from her eastern neighbor China which has cracked down hard on the digitization of folklore and protected the interests of indigenous people.
Folkloric expressions in the form of Buddhist murals, Kashmiri Shawls, Pottery from Sikkim and Arunachal Pradesh, generate a lot of revenue for the local workers. However, the lack of protection for their works has led to the availability of pirated works in the form of pottery, carpets, etc. Not only does it infringe the rights of the indigenous people who own the cultural expression but it hampers their economic interests as the counterfeit accessories and objects are available for a lesser price. It is thus imperative for the government to work closely to monitor the situation of the tribes whose cultural expressions are marketed and grant them the necessary protection. This should be seen by the concerned authorities not just as a way of protecting the interests of a group of people, but a way to boost the economy by the same. This step would strengthen India’s foundation in the globalized economy and aid the ailing economy by providing employment to people and as a source of income for the government by marketing the same globally in accordance with the prospective legislation.

[1] Michael Jon Andersen, Claiming the Glass Slipper: The Protection of Folklore as Traditional Knowledge, Case Western Reserve Journal of Law, Technology & the Internet, Volume 1 (2), 2010.
[2] Article 2, Berne Convention for the Protection of Literary and Artistic Work, 1876. The said article expressly states that literary and artistic works include dramatic works, sermons, songs, books, compositions, lithography irrespective of the form of its expression. Article 3, Berne Convention for the Protection of Literary and Artistic Work, 1876.
[3] Paul Kuruk, Protecting Folklore under Modern Intellectual Property Regimes: A Reprisal of the Tensions between Individuals and Communal Rights in Africa and the United States.
[4] Available here.
[5] Article 15(4) of the amendment provides for the designation of authority, by communicating to the Director-General of WIPO, for the protection of works of an unknown author, which may consist of folkloric expression.
[6] Report by Working Group of Model Provisions for National Laws on The Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions.
[7] Section 3, Model Provisions for National Laws on The Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, 1985.
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[This article is authored by Ashi Jain]

"Abortion: the expulsion of a fetus from the uterus before it has reached the stage of viability"

Medically, abortion means the removal of the fertilized ovum within the first three months of pregnancy. It is also known as an induced miscarriage or induced termination.
Throughout history, abortion has stirred up several controversies and debates all over the world. The entire debate revolving around abortion is pro-life versus pro-choice. It can be said that abortion is the combination of one’s personal beliefs or choices and the government’s ethical limit. Under various statutes [1], an unborn child is recognized as a legal person by fiction and acquires interest only after birth. Bombay HC echoes primacy of women’s rights declaring that according to international law, a person is vested with human rights only at birth; an unborn fetus is not an entity with human rights. [2]

Abortion Laws in India
The attitude of the Indian Government has changed over the centuries regarding abortion. In 1960, when numerous countries across the world reposed their abortion laws, significant pressure was built upon the Indian Government to take necessary steps regarding the same in the country. Thereafter, a committee was formed, headed by Shantilal Shah to give suggestions on legalizing abortion in India.  The Medical Termination of Pregnancy Act, 1971 was thus enacted in India. The MTP Act allowed abortion before or up to 20 weeks of gestation, only when there is a risk to the life of the pregnant woman or in the cases of grave injury, either physical or mental and when there is a high chance of physical or mental abnormalities if the child were born.
This Act states that it is compulsory to get the approval for abortion and opinion which is formed in good faith, of two medical practitioners if the pregnancy exceeds 12 weeks. The validity of this Act was upheld by the Apex Court in Nand Kishore Sharma v. UOI[3]
Though the act has been a remarkable achievement for women’s health when it was enacted back in those times, it does not legalize abortion from a “women’s rights” perspective rather it aims necessarily at protecting the medical providers under the Indian Penal Code (Section 312-316).

Women or the State
The main thrust stated by the US Supreme Court in the landmark case Roe v. Wade [4] was: women have the absolute right to make decisions about their bodies and their reproductive system based on privacy rights.
The Right to Privacy may be stated as “The right to be left alone, or to be free of government scrutiny into one’s private beliefs and behavior.”
On August 24th, 2017 a nine-judge bench of the Supreme Court of India in the case namely Justice K S Puttaswamy v. Union of India [5], with one accord, asserted that privacy is a fundamental right under the Constitution of India. The bench acknowledged Privacy as an inviolable and inalienable right. The judgment specifically identified that the right of women to make reproductive choices is a part of personal liberty enlisted under Article 21 of the Constitution of India. [6]
The bench also reiterated the judgment by a three-judge bench in the case of Suchita Srivastava v. Chandigarh Administration (2009), [7] where it was held that reproductive rights duly include a woman’s right to carry a pregnancy to its full term, to give birth, and to raise children; and that these rights form part of a woman’s right to privacy, dignity, and bodily integrity mentioned in Article 21 of the Constitution.
It is difficult to find the balance between the right to privacy of a woman and the state's interest regarding the protection of life, but that doesn't give the state any right to impose rules and bills which are baseless and a threat to the dignity of women as well as in violation of their rights. The state is in no power to command a woman whether to keep a pregnancy or not. Pregnancy is not always planned. There are numerous reasons for seeking abortion varying from pregnancy due to crimes like Rape, Marital Rape, or financial instability, emotional trauma, career-related issues, or problems in the marriage too. No woman ever wants to give birth to a child and not be able to provide with the best of resources. Women seeking abortion or the decision to keep the child should be of their own and not dependent on some medical provider’s opinion or be regulated by the state’s law.

Legalization of Abortion
Worldwide, an estimated 1 in 4 pregnancies end in an abortion every year. But while the need for abortion is common, access to safe and legal abortion is far from being provided to those who need them. Access to safe and legal abortion is one of the most debated topics globally, and the debate is clouded by misinformation about the true ramifications of restricting access to this basic healthcare service.
Ending a pregnancy as thought otherwise, is a very common decision which is taken by millions of people every year. People very often require and even access abortion services in spite of it being illegal in their countries. According to the Guttmacher Institute, a US-based reproductive health non-profit, The abortion rate is 37 per 1,000 women in countries that prohibit it altogether or allow it only to save a woman’s life, and 34 per 1,000 in countries that allow abortion without restrictions, a difference that is not statistically significant. [8]
When an abortion is performed under sanitary conditions by a trained health-care provider, it is one of the safest medical procedures available to us. But at the same time when the governments restrict abortions and make it difficult to avail, people are left with no choice but to resort to surreptitious and unsafe abortions.  All these attempts to ban or restrict abortions do not reduce the number of abortions, but instead, only force people to seek out unsafe abortions in secrecy.
Unsafe abortion as defined by the World Health Organization (WHO) is, “a procedure for terminating an unintended pregnancy carried out either by persons lacking the necessary skills or in an environment that does not conform to minimal medical standards or both.” [9]
Where on one hand legalized abortions are performed by trained medical-providers, unsafe abortions, on the other hand, are performed by unskilled people and have fatal consequences. So much that according to WHO, unsafe abortions are the third leading cause of maternal deaths worldwide.
The legalization of abortion is necessary as the power to delay and limit bearing children is fundamentally right for women empowerment. A well-timed pregnancy may prove to give a healthier life to a child in comparison to the untimely pregnancies.

Abortion Laws Worldwide
The laws governing abortion vary widely from country to country. Countries like Chile, El Salvador, and Nicaragua ban the procedure of abortion entirely whereas some countries in Canada, the United States, and other places do not restrict the same.
Recently, the passing and signing of the state's controversial - a near-total abortion ban bill by the Alabama Senate and Gov. Kay Ivey stirred a wave of protests all across the world. People raised their voices against the bill on the grounds of its constitutionality, violation of the right to life, and the say of women. The United Nations also declared that abortion is a right to life issue. It states that "Every human being has the inherent right to life and that this right shall be protected by law”. [10] The bill not only opposes the right to life but also violates the Right to Health And Healthcare and Women's Reproductive Right which includes the right to legal and safe abortion.

Humanity stands above law. It is time for us to respect and accept the choices and decisions of women. We must realize that it is not our right to interfere with the freedom of a women's choice. To have an abortion or not is the choice of personal interest and the government should not interfere in it. By restricting abortions all at once, the government is not only ceasing safe abortions but is, in turn, promoting illegal abortions in society.
In a nutshell, abortion must be made legal as women have the absolute right of making decisions about their reproductive systems and, also because they possess the power to exercise that particular right regardless of any government policy.

[1] Transfer of Property Act, 1882, Section 13.
[2] High Court on its Own Motion v. State of Maharashtra, 2016 SCC Online Bom 8426.
[3] Nand Kishore Sharma v. Union of India, AIR 200 Raj 166.
[4] Roe v. Wade (1973): 410 US 113.
[5] Justice K S Puttaswamy v. Union of India (2017) 10 SCC 1.
[6] Reproductive and Sexual Rights of Women in India, available here
[7] Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1.
[8] Induced Abortion Worldwide, available here
[9] Preventing Unsafe Abortion, available here
[10] Right to Life, available here
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[This article is authored by Prakhar Srivastava]

“When we lose the right to be different, we lose the privilege to be free”
- Charles Evan Hughes, Former Chief Justice, US Supreme Court

The judicial system followed by Singapore is the “common law” system, which essentially means that law declared by a higher court in Singapore shall be binding upon the other courts subordinate to it. Like many other common law countries, this characteristic feature is a result of the British Rule in Singapore. Among various other things that the British left in Singapore was also the Penal Code. 
For the better part of the 19th century, the criminal law that was applicable to the Straits Settlement, i.e., a group of British territories located in Southeast and East Asia (comprising Singapore, Penang, and Malacca) was that of the United Kingdom. There were, however, doubts as to the applicability of Indian laws in the territory. In 1871, the Straits Settlement Penal Code was enacted, which was practically a re-enactment of the Indian Penal Code, 1860. With this re-enactment also came the draconian criminalization of sodomy and homosexuality. 
At its inception, Section 377 of the Singapore Penal Code criminalized “carnal intercourse against the order of nature” irrespective of the sex of the persons involved therein. As historically interpreted in India, “carnal intercourse against the order of nature” means any act of sodomy, bestiality, and even oral sex (Courts had interpreted that oral sex as penetrative sex on the reasoning that the mouth is like an orifice into which the penis of another would be inserted). 
In the year 1938, an amendment was introduced to the Penal Code, and Section 377A was introduced which specifically prohibited and criminalized sex between homosexual males.
Section 377A of the Penal Code of Singapore, 1871 provides,
“377A. Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.”
By virtue of Section 377A, as a bare perusal of the aforesaid will show, any “male”, irrespective of whether in private or in public, if, engages in any sexual activity with another “male” which the law reads as “gross indecency” or “abets” the same, shall be punished with an imprisonment of up to 2 years. The law does not distinguish between an adult male and a minor, nor does it even define the term “gross indecency”, clearly leaving it to the whim and caprice of the police to decide. 
As such, whereas Section 377 prohibited “carnal intercourse against the order of nature” for both heterosexuals and homosexuals, Section 377A specifically curtailed any homosexual activity between males. In accordance thereof, whereas heterosexuals always had the freedom to express their sexuality barring carnal intercourse, the homosexual activity of any nature was barred. 
In 2007, Section 377 of the Penal Code was repealed by legislative action, which in turn would mean that heterosexuals now had full freedom to express their sexuality, due to Section 377A; homosexual males had no such freedom. Section 377A was especially enacted against homosexual male activity and as such, repeal of Section 377 had no effect on their status. At the time, Singapore Prime Minister Lee Hsein Loong reportedly said, 
“Singapore is basically a conservative society," the prime minister, Lee Hsien Loong, told MPs before the vote. "The family is the basic building block of this society. And by a family in Singapore, we mean one man, one woman, marrying, having children, and bringing up children within that framework of a stable family unit.”
He added, 
“The more gay activists push this agenda, the stronger will be the push-back from conservative forces," Mr. Lee said. "The result will be counterproductive because it's going to lead to less space for the gay community in Singapore.”
As such, the executive intent of the then government became apparent. 
In continuation of this ongoing struggle, an appeal against Section 377A reached the Court of Appeal, namely Lim Meng Suang and another v. Attorney General [(2015) 1 SLR 26] [1], primarily assailing the law on the premise of violation of rights to life & liberty or equality & equal protection guaranteed under Article 9 and 12 of the Constitution of Singapore respectively. The appeal was, however, dismissed. 
Most recently, in 2018, the section was challenged once again before the Singapore High Court (“SGHC”). Three petitions filed by Ong Ming Johnson, Chong Chee Hong, and Tang Seng Kee, namely Ong Ming Johnson and others v. Attorney General [(2020) SGHC 63] [2] challenged the constitutional validity of the section on grounds as shall be discussed in this blog from time to time. However, the SGHC, in its decision dated March 30, 2020, dismissed the challenge. 
Being a common law country, the SGHC’s decision is currently the law with regard to homosexuality in Singapore. 
Analysis of the judgment from the Indian frame
The fresh challenge was filed after the Supreme Court of India, in a landmark decision in Navtej Singh Johar and Others v. Union of India [AIR 2018 SC 4321] [3] had decriminalized homosexuality by declaring Section 377 of the Indian Penal Code as unconstitutional to the extent that it criminalized consensual homosexual activity. The SGHC has categorically rejected the position adopted by the Indian Supreme Court in Navtej. 
With the High Court of Singapore mentioning in its judgment that it does not accept the Indian Supreme Court’s decision in Navtej and other Indian judgments, it is opportune to discuss how the SGHC’s judgment differed from the Indian judgments. I shall then establish why the Indian position is the correct one, keeping in view international legal developments. 

(a) Expression
The SGHC has effectively disagreed with the broadening of the contours of the term “Expression” under Article 14 of its Constitution and held that such expansion as has been done in Navtej is also bad in law. The SGHC held that the term, “expression” only means verbal communication of ideas, beliefs, and opinions. The court further stated that if “Sexual expression” were to be considered a part of “Expression”, it would lead to absurd outcomes, such as justification of necrophilia, incest, pedophilia, and bestiality. 

(b) The Traditional Notion of Judicial Review
The SGHC has stuck to the traditional understanding of “Judicial Review” by opposing the Indian position elucidated in Anuj Garg and Others v. Hotel Association of India and Others, [(2008) 3 SCC 1] [4]. It held that judicial review must only deal with purely legal aspects, and no other aspects should be taken into account. Per contra, in Anuj Garg, the Indian Supreme Court held that “legislation should not be only assessed on its proposed aims but rather on the implications and the effects”. 

(c) Perception of society toward male homosexual conduct   
In its reasoning, the SGHC has also stated that there is no change in the outlook of the Singaporean society towards male homosexual conduct since the Parliament’s decision to retain the provision in 2007, thereby upholding the provision. 
The aforesaid reasoning, inter alia, was advanced by the SGHC to uphold the contentious Section 377A of the Penal Code. This reasoning, it is submitted, is hyperbolic, paradoxical, and one that is sourced from pure prejudice against male homosexuals in Singapore.   
Firstly, the SGHC’s view that judicial review should be confined to the assessment of only legal aspects is paradoxical in its own right. Whereas the court once states that only legal arguments decide judicial review of legislation, later, it goes on to consider the societal approach towards male homosexuals to uphold the draconian provision. The SGHC, accordingly, has not remained consistent in its own opinions by considering the outlook of society. It accordingly becomes apparent that the court is willing to consider “other” aspects, confined however to its own liking. 
Secondly, the court’s opinion that sexual expression is not covered under Article 14 of the Constitution of Singapore is also flawed. It is submitted that not just homosexuality, but any form of sexuality is, in fact, a manifestation of a person’s inner sexual desires. As per the court, freedom of expression flows from the freedom of speech, and as such, any expression must necessarily point to some form of verbal communication. Even if this narrow position was to be conceded to, a person “expresses” their attraction to such another as they may find suitable by way of speech, gestures, and actions themselves. To stop a person from expressing their inclination toward another or to engage with them owing to fear of the law is hindering their right to express their feelings, and hence their right to speech as well. Sexual expression does not merely mean having intercourse, but also to be able to live with the person one would want to, express one’s choices freely and without the fear of the law.   
Thirdly, the judgment has opened a Pandora’s Box by preferring public morality to constitutional morality.  Some obvious questions entail this reasoning. One, how did the High Court arrive at the conclusion that the societal approach is against homosexual males at a time when the number of protests is only growing against the archaic law with more and more participation? Two, can constitutional decisions be made basis public opinion, for the same is as transient as dreams and shadows? Notably, the Parliament had repealed Section 377 only in the year 2007. Does it then mean that up until 2007, public opinion was against sodomy or such other “carnal intercourse” against “the order of nature” for heterosexuals too? What is to say if that opinion has changed at all? Three, should public opinion be allowed to decide what two individuals do in their own private space, with consent? Would it not amount to a “police state” if everything two individuals did was subject to public scrutiny? Four, is dynamic public opinion superior to a static Constitution and the principles it embodies? 
In light of the above observations and thoughts, it prima facie appears that the decision of the SGHC was one of exemplary bias against the homosexual community and decided with a prejudiced mind, not judicial. The argument that the SGHC was bound by the Supreme Court’s decision in Lim Meng Suang and another v. Attorney General (supra) is also erroneous as the challenge to the statute in the review was founded on a wholly different premise in Ong Ming Johnson. Any judicial decision should be free from the personal bias of the Judge. The instant decision was an opportunity missed; only adding to the collective trauma faced by the LGBTQ+ community of Singapore, and by extension, the rest of the world.     

[1] Lim Meng Suang and another v. Attorney General [(2015) 1 SLR 26]
[2] Ong Ming Johnson and others v. Attorney General [(2020) SGHC 63] 
[3] Navtej Singh Johar and Others v. Union of India [AIR 2018 SC 4321]
[4] Anuj Garg and Others v. Hotel Association of India and Others, [(2008) 3 SCC 1]
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