Reduction in amount of Individual Fee while designating India
By Abhishek Chandok and Parthvi Khandelwal
The Madrid Protocol for India entered into force on July 08, 2013 and India became the 90th member of the Madrid System. The Director General of the World Intellectual Property Organization (WIPO) in accordance with rule 35(2) (d) of the Regulations under the Madrid Protocol has now established new amounts, in Swiss francs, of the individual fee that is payable when India is designated in an international application, in a designation subsequent to an international registration and in respect of the renewal of an international registration in which India has been designated.
As from August 13, 2023, the amounts of the individual fee payable in respect of India is mentioned below:
| Items | Amount (in Swiss francs i.e. CHF) |
||
|---|---|---|---|
| Until August 12, 2023 | To be applicable as from August 13, 2023 | ||
| Application or Subsequent Designation | for each class of goods or services | 124 | 110 |
| Renewal | for each class of goods or services | 124 | 110 |
The new amount will be payable in the following scenarios:
- In case India is designated in an international application which is received by the Office of Origin on or after August 13, 2023, or
- If the subject of a subsequent designation which is received by the Office of the Contracting Party of the holder on or after August 13, 2023, or is filed directly with the International India of WIPO on or after that date; or
- If it has been designated in an international registration which is renewed on or after August 13, 2023
The Official notice issued by WIPO can be accessed by clicking
Microsoft Word – IN_Madrid_20_2023_IN_Indfees_Rule_35(2)(d)_e (wipo.int)
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Reduction in amount of Individual Fee while designating Sweden
By Abhishek Chandok and Parthvi Khandelwal
The Madrid Protocol entered into force for Sweden on December 30, 1994.
The Director General of the World Intellectual Property Organization (WIPO) in accordance with rule 35(2) (d) of the Regulations under the Madrid Protocol has now established new amounts, in Swiss Francs, of individual fee that is payable when Sweden is designated in an international application, in a designation subsequent to an international registration and in respect of the renewal of an international registration in which Sweden has been designated.
As from August 13, 2023, the amounts of the individual fee payable in respect of Sweden has been mentioned below:
| Items | Amount (in Swiss francs i.e. CHF) |
||
|---|---|---|---|
| Until August 12, 2023 | To be applicable as from August 13, 2023 | ||
| Application or Subsequent Designation | for each class of goods or services | 226 | 194 |
| for each additional class | 89 | 76 | |
| Renewal | for each class of goods or services | 226 | 194 |
| for each additional class | 89 | 76 | |
The new amount will be payable in the following scenarios:
- In case Sweden is designated in an international application which is received by the Office of Origin on or after August 13, 2023, or
- If the subject of a subsequent designation which is received by the Office of the Contracting Party of the holder on or after August 13, 2023, or is filed directly with the International Sweden of WIPO on or after that date; or
- If it has been designated in an international registration which is renewed on or after August 13, 2023
The Official notice issued by WIPO can be accessed by clicking
Microsoft Word – IN_Madrid_21_2023_SE_Indfees_Rule_35(2)(d)_e (wipo.int)
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Reduction in amount of Individual Fee while designating India
Competition Act and State-Owned Enterprises: A Paradigm Shift in India’s Economic Landscape
By Rupin Chopra and Apalka Bareja
In a landmark judgment in the case of Coal India Limited v/s Competition Commission of India[1] , the Supreme Court of India ruled that Coal India Limited (CIL) and its subsidiary Western Coalfields Limited are subject to the provisions of the Competition Act, 2002, rejecting their claim of exemption based on the Coal Mines (Nationalization) Act, 1973. This decision has significant implications for state monopolies and government entities engaged in commercial activities, raising questions about government subsidies that create an uneven playing field in the market.
This article examines the key aspects of the judgment and explores its potential effects on the coal industry and competition in India. Moreover, it delves into the broader implications of applying the Competition Act to state-owned enterprises (SOEs) and the challenges and opportunities it presents for India’s economic landscape.
Dominance of Coal India
The Coal Mines (Nationalization) Act of 1972[2] vested the Central Government with control over coal resources, leading to the creation of a state monopoly in the form of CIL. This dominant position was further strengthened through the transfer of private mine ownership to CIL, cementing its role as the primary player in coal production and distribution.
CIL’s monopoly in both coking and non-coking coal production was made evident by the Director General Report in CCI’s order in the case of M/s Maharashtra State Power Generation Company Limited and M/s Mahanadi Coalfields Limited and M/s Coal India Limited, where it was found that CIL has absolute control of approximately 70%[3] of the thermal power producers’ coal needs in India. Despite accounting for only 6.5% of global coal production, CIL’s market share of around 7% does not undermine its monopolistic position in the Indian coal market, the CCI order held and imposed a penalty of Rs. 591 crores on CIL.
The Judgment and its Rationale
The aforementioned order of CCI was challenged by CIL but the Supreme Court’s ruling is a clear statement that subjecting state monopolies to the Competition Act (“Act”) aligns with the nation’s broader economic goals. While acknowledging the historical role of the Nationalization Act in serving the common good, the court emphasizes that the new economic regime under the Act aims to promote competition, consumer welfare, and efficiency, as underlined in the Raghavan Committee report (2020)[4] , which concluded that state monopolies like CIL are not in the best interests of the nation and should not operate without competition.. The court’s decision rejects the notion that state monopolies operated through government companies or public sector undertakings should be exempt from competition law.
In the words of Hon’ble Court, “What is prohibited is, however, abuse of dominant position by an enterprise or a group. A group has been defined in the context of Section 5[5] deals with regulation of combination. The appellant (Coal India Limited) answers the description of an enterprise as defined”. Further, the Hon’ble Court held that, “We see no reason to hold that a State monopoly being run through the medium of a Government Company, even for attaining the goals in the Directive Principle will go outside the purview of the Act”.
Furthermore, the judgment clarifies that while state monopolies’ actions can be challenged through judicial review or other forums, this does not negate the applicability of the Competition Act. The Act empowers the Competition Commission of India (CCI) to take suo-motu action against entities engaging in anticompetitive practices, including state monopolies. The CCI also has the authority to consider factors such as dominance acquired through a statute or government control.
Applicability to Government Departments and Sovereign Functions
The ruling not only addresses state monopolies’ applicability under the Act but also deals with its impact on government departments. Sovereign functions remain excluded from the Act, but commercial activities conducted by government departments are explicitly covered. The Court dismisses the argument that state monopolies, established to achieve constitutional goals, should be exempt based on Article 39(b[6] ) of the Constitution. It emphasizes that the Act does not elevate state monopolies above government departments and mandates them to adhere to fairness and avoid discriminatory practices.
Effects of the Judgment
• Enhanced Competition in the Coal Industry:
By bringing CIL and its subsidiary under the Act’s purview, the judgment is expected to promote competition in the coal industry. These entities have historically held dominant positions, leading to limited competition. With the CCI now scrutinizing its conduct and taking action against anticompetitive practices, new players are likely to enter the market, fostering innovation and efficiency.
• Improved Consumer Welfare:
Competition drives businesses to offer better products and services at competitive prices. The CCI’s oversight in the coal industry could result in improved quality, greater choices, and fairer prices for consumers. This will benefit various industries relying on coal as an input, creating positive ripple effects on the overall economy.
• Transparency and Accountability:
The inclusion of state monopolies under the Act promotes greater transparency and accountability. The Act mandates adherence to fair business practices and non-discriminatory behaviour, creating a level playing field for both large and small players in the market.
• Impact on Government Policies:
The judgment underscores the need for state monopolies to align their actions with national policies and directives. Differential pricing and production decisions must be justified based on national policy objectives. This could lead to a more transparent decision-making process, with government policies subject to scrutiny for their economic impact.
• Legal and Compliance Challenges:
CIL and its subsidiary will now need to ensure compliance with the Act, potentially requiring significant changes in their business practices and internal policies. They may face legal challenges and scrutiny from the CCI, impacting their operations and reputation.
• Broad Implications for India’s Economic Landscape:
The ruling has wider implications beyond the coal industry. It opens up discussions about the differential treatment of state-owned enterprises across various sectors of the economy. Several sectors are dominated by state monopolies, and while this may sometimes benefit consumers in terms of lower prices, it can hinder service quality and burden taxpayers.
• Promote Competitive Neutrality:
The judgment upholds the principle of competitive neutrality, advocating equal treatment of public and private enterprises under the law, aligning with Organisation for Economic Co-operation and Development principles[7] , so that firms in the market compete based on merits and not take undue benefits/advantages from state.
• Re-evaluate Government’s Role in Commercial Activities:
The ruling calls for a careful examination of the government’s involvement as a player in commercial activities, encouraging alternative mechanisms to achieve welfare objectives without undermining competition.
Conclusion
The Supreme Court’s ruling to apply the Competition Act to CIL and its subsidiary marks a significant step towards promoting competition, consumer welfare, and efficiency in the coal industry. It challenges the traditional notion of state monopolies and underscores the importance of competitive markets in a modern economy. Policymakers must now carefully consider the impact of state-owned enterprises on private players and overall market dynamics, striking a balance between welfare objectives and market efficiency.
As the Competition Act’s application to state-owned enterprises sets a crucial precedent, it calls for a more inclusive and competitive economy. The Competition Commission of India must play a proactive role in regulating markets to ensure a level playing field for all participants. By doing so, India can embrace a more competitive economic landscape that benefits both consumers and businesses alike.
Shantam Sharma, Assessment Intern at S.S. Rana & Co. has assisted in the research of this Article.
[1] CIVIL APPEAL NO.2845 of 2017; Available at: https://main.sci.gov.in/supremecourt/2017/5094/5094_2017_6_1501_44710_Judgement_15-Jun-2023.pdf
[2] Available at: https://www.indiacode.nic.in/repealed-act/repealed_act_documents/A1972-36.pdf
[3] As per the Director General Report cited in the CCI Order (Case No. 03 of 2012); Available at: https://www.cci.gov.in/images/antitrustorder/en/032012-112012-and-5920121652439568.pdf
[4] Available at: https://www.ies.gov.in/pdfs/Report-Competition-CLRC.pdf
[5] Combination- The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises; Available at: https://www.cci.gov.in/images/legalframeworkact/en/the-competition-act-20021652103427.pdf
[6] (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
[7] Available at: https://www.oecd.org/competition/competitive-neutrality.htm
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Chandrayaan-3: A Journey Towards the Final Frontier
By Vikrant Rana and Vidhi Oberoi
Chandrayaan-3, India’s third lunar mission, is now well on its way1 to the moon, embarking on a 42-day odyssey filled with challenges and hopes. The spacecraft, in an elliptical orbit, will conduct various tests and calibrations before attempting a soft landing near the South Pole of the moon. While the final procedure of the soft landing garners much attention, it is the journey itself that is fraught with difficulties, akin to Ulysses’ path to Ithaca. This mission holds immense significance for India’s space program, as it represents a major step forward in lunar exploration, contributes to our understanding of the moon, and builds India’s reputation in the global space community.
Before analysing what great leap Chandrayaan-3 is for Indian Space industry, it is prudent to understand how we oversee space, an infinite void beyond earthly jurisdiction.
Roger, we have Touched-Down!
In the international context, India’s participation in moon and space exploration aligns with its status as a signatory to the Outer Space Treaty, 1967. This treaty, ratified by India, outlines the principles governing the activities of states in outer space.
The Outer Space Treaty establishes fundamental principles and guidelines for the exploration and use of outer space. The key provisions of the treaty are as follows:
- The principle of the freedom of exploration and use of outer space for all nations. According to this principle, outer space, including the moon and other celestial bodies, is considered the common heritage of all humankind, and no nation can claim sovereignty over them. Specifically, Article II2 of the Outer Space Treaty states “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” This provision ensures that no nation can assert ownership or territorial rights over outer space bodies.
- While nations cannot claim sovereignty over outer space bodies, they are still encouraged to explore and use them for peaceful purposes. The treaty emphasizes cooperation among nations and the sharing of benefits derived from outer space activities. It also requires nations to avoid harmful contamination of space bodies and to conduct activities in a manner that preserves the space environment and protects celestial bodies from harmful interference.
However, it is important to note that the Outer Space Treaty does not explicitly address issues related to private entities or commercial activities in outer space. As private space exploration and commercial ventures increase, there is a growing need for a comprehensive and updated legal framework to govern these activities. India’s involvement in lunar exploration, exemplified by Chandrayaan-3, aligns with its commitment to peaceful space activities and international cooperation. The mission’s scientific outcomes hold immense potential for understanding the formation and composition of the moon, which can provide valuable insights into the history of the solar system. Exploring the moon’s southern hemisphere, with its unique geographical variations and potential volatiles, could have a profound impact on deep space exploration and future commercial activities. The potential for the same can be adjudged by combing through the Indian space market, a nascent but promising sector.
Chandrayaan- A Rocketship to Sectoral Growth
The global space industry is rapidly growing, with an estimated worth of US$350 billion and projected to reach US$550 billion by 2025. However, India’s share in this market is currently estimated at only US$7 billion, accounting for just 2%3 of the global market. The majority of India’s space sector revenue comes from telecommunication, earth observation imagery, and satellite-aided navigation, with DTH television, broadband, and OTT services being major contributors.
Historically, the government-operated Indian Space Research Organisation (ISRO) has dominated the Indian space industry. However, recent policy reforms have opened up the sector to private companies, aiming to encourage their participation and foster a flourishing commercial presence in space. The Indian Space Policy 20234 outlines the objective of enabling, encouraging, and developing the private sector’s involvement in space activities. The policy focuses on:
- Expanding the human understanding of outer space, developing new space technologies, and facilitating greater private sector participation in activities traditionally undertaken by the Indian Space Research Organisation (ISRO).
- One of the key highlights of the policy is the creation of four entities that will facilitate private sector involvement in space activities. The Indian National Space Promotion and Authorization Centre (InSPACe) will serve as a single-window clearance and authorization agency for space launches, establishing launch pads, buying and selling satellites, and sharing technologies with non-government entities (NGEs) including private companies.
- New Space India Limited (NSIL) will be responsible for commercializing space technologies and platforms created through public expenditure and facilitating partnerships with the private and public sectors.
- The Department of Space will provide policy guidelines, coordinate international cooperation, and create mechanisms for dispute resolution in space activities.
Chandrayaan-3 represents a significant milestone in this endeavour, as it is a joint project5 between ISRO and the Indian private sector. For the first time, India has collaborated with the private sector on a major space mission, showcasing the government’s commitment to the new Space Policy. The lander, rover, and ground control systems for Chandrayaan-3 were developed by a consortium of Indian companies in collaboration with ISRO laboratories. This collaboration highlights the government’s intent to leverage the capabilities of the private sector and attract more investment in the country’s space industry.
Further, the Indian government’s support for the private space sector is evident through policy initiatives and funding allocations. The government has allocated funds to IN-SPACe and is preparing rules to facilitate foreign investment6 in space projects. With these measures, India aims to position itself as a leader in space technology and attract global partnerships. The emergence of private players in the Indian space economy is transforming the landscape. Startups such as Agnikul Cosmos and Skyroot Aerospace are making their mark by developing cost-effective solutions for satellite launches and space-based services. Agnikul Cosmos plans to conduct launches from its own launchpad at Sriharikota, catering to customers seeking to launch smaller payloads. The increasing number of satellites in orbit, projected to grow tenfold by 2030, presents significant opportunities for private companies to provide economical launch services.
Need for a Domestic Space Law
As the Indian private space economy expands, there is a pressing need for a domestic space law. The absence of specific regulations addressing private space activities raises concerns related to licensing, liability, intellectual property rights, and safety. One way to address these questions is to have a clear and comprehensive domestic space law that regulates and governs India’s space activities, both public and private. Such a law would have several benefits for India’s space sector, such as:
- It would define the roles and responsibilities of various stakeholders, such as ISRO, private companies, research institutions, and civil society.
- It would establish the legal framework and procedures for licensing, authorization, supervision, and liability of space activities.
- It would reflect India’s obligations and commitments under international treaties and conventions, such as the Outer Space Treaty, 1967 and ensure that India’s space activities are consistent with its national interests and values.
- It would enable India to tap into the immense potential of other emerging areas of space activity, such as satellite broadband, asteroid mining, space tourism, and orbital debris removal.
- It would help India to position itself as a leader and partner in the global space community, where new norms and rules are being shaped by various actors.
To achieve its goal of capturing 10% of the global space economy by 2030, India needs to leverage the potential of the private sector. This requires a shift in the administrative structure of the space sector, where ISRO can focus on national development while the Ministry of Defence oversees the military dimensions of space technologies. ISRO should shed some activities and concentrate on its core competencies within its limited budget. Unleashing the potential of the private sector and developing partnerships with entrepreneurial players in New Space will be crucial to achieving India’s space ambitions.
Conclusion
Chandrayaan-3 represents a significant milestone for India’s space program and its interplay with the emerging Indian private space economy. The mission not only aims to advance lunar exploration and display India’s capabilities but also highlights the government’s commitment to fostering a flourishing commercial presence in space. As the private sector gains prominence, the formulation of a domestic space law becomes crucial to address legal and regulatory aspects associated with private space activities. Furthermore, India’s participation in lunar exploration aligns with its commitment to peaceful space activities and international cooperation, as reflected in its status as a signatory to the Outer Space Treaty as well as the recently signed Artemis Accords.
Chandrayaan-3’s success has the potential to inspire the next generation of scientists, engineers, and position India as a leader in space technology on the global stage.
Shantam Sharma, Assessment Intern at S.S. Rana & Co. has assisted in the research of this Article.
[1] Available at: https://www.bbc.com/news/world-asia-india-66185565
[2] Available at: https://www.unoosa.org/pdf/gares/ARES_21_2222E.pdf
[3] Available at: https://static.pib.gov.in/WriteReadData/specificdocs/documents/2023/apr/doc2023410179001.pdf
[4] Available at: https://www.isro.gov.in/media_isro/pdf/IndianSpacePolicy2023.pdf
[5] Available at: https://www.zeebiz.com/india/video-gallery-chandrayaan-3-private-and-public-enterprises-that-helped-isro-with-its-moon-mission-244578
[6] Available at: https://pib.gov.in/PressReleasePage.aspx?PRID=1914226
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Ground for rejection of Patent divisional application: Section 16 Controversy
By Swaraj Raghuwanshi and Aastha Suri
In a recent case of Syngenta Limited vs Controller Of Patents And Designs[1] , an Appeal was filed before the Hon’ble Delhi High Court under Section 117(A) of the Patents Act, 1970 by Syngenta Limited against the impugned order passed by the Deputy Controller of Patents and Designs (“Deputy Controller”, hereinafter) vide order dated October 11, 2017, wherein the Deputy Controller had rejected the grant of divisional application filed by the Appellant.
The divisional application in the case was filed by the Appellant under Section 16(1) of the Indian Patents Act, 1970 in respect of the parent application number 6114/DELNP/2005 dated December 28, 2005 titled “Agrochemical concentrate comprising an adjuvant and hydrotrope” . The Deputy Controller vide the impugned order had
A brief overview of the matter
Syngenta Limited (Appellant) had filed a patent application (6114/DELNP/2005) on December 28, 2005 titled “Agrochemical concentrate comprising an adjuvant and hydrotrope”. The claim 1 of the patent application comprised an oil based adjuvant and a hydrotrope capable of solubilizing the adjuvant in the continuous phase. Three preferred combinations of hydrotrope and oil-based adjuvants were disclosed in the complete specification of the claimed invention.
Subsequently, the Appellant filed a divisional application (7059/DELNP/2011) on September 15, 2011, wherein claim 1 comprised a specified combination of the three preferred combinations contained in the complete specifications of the parent application as the adjuvant-hydrotrope combination. Thereafter, First Examination Report (FER) was issued by the Indian Patent Office (IPO) on December 27, 2015 to which the Appellant filed a response on March 14, 2016. The Appellant was granted a hearing on February 8, 2017. On October 11, 2017, the impugned order was passed by the Controller, rejecting the grant of the divisional application.
Rejection of Patent Divisional application
The Controller, in the order passed by him, rejected the grant of the divisional application on the ground that the divisional application did not meet the requirement of Section 16 of the Patents Act, as it failed to disclose more than one distinct invention in the parent application.
The Deputy Controller stated that for an application to be considered as a divisional application under Section 16, it is essential that the parent application included multiple inventions, and not just the same invention. The Deputy Controller stated that the parent application, in this case, did not contain any claims relating to multiple inventions, and no such objection regarding the same was raised in the FER. The divisional application was filed without complying with the requirements contained in the FER. As a result, the grant of the divisional application was refused by the Controller.
Appeal filed by the Appellant
The Appellant in the case raised two major points while challenging the Deputy Controller’s reasoning:
1. That the requirement of the claims of the complete specification in the parent application to relate to more than one invention applies to only when filing a divisional application after objections raised by the Controller, not when the Applicant filed it suo moto (on their own initiative).
2. That the Deputy Controller’s observation that the parent application lacked claims relating to plurality of inventions was erroneous, as the requirement of plurality of inventions also extended to situations where multiple inventions are disclosed in the complete specification of the parent application.
CGPDTM’s response in the matter:
The Office of the Controller General of Patents relied on the judgment of a Coordinate Bench of the Court in Boehringer Ingelheim International GMBH v. The Controller of Patents[2] to support the argument that a divisional application can only be filed when the parent application contains claims related to a “plurality of inventions” as defined in the claims themselves.
The Appellant argued that the findings in the Boehringer Ingelheim case may need reconsideration, as they were explicitly contrary to the statutory provision. The Appellant further referred to Article 4(G) of the Paris Convention for the Protection of Industrial Property, which provides that the applicant can submit the divisional application either when the examination reveals that the parent application contains more than one invention or on the applicant’s own initiative. Appellant further contended that Article 4(G)(2) does not mention the requirement of the parent application containing multiple inventions for suo moto filing of the divisional application and also asserted that Section 16(1) of the Patents Act aligned with Article 4(G) of the Paris Convention in this regard.
Judgement passed by The Delhi High Court
The Hon’ble Court expressed disagreement with the view expressed in the Boehringer Ingelheim case, which suggests that the requirement of the parent application containing a plurality of inventions applies to both suo moto filing and filing in response to objections raised by the Controller.
The Hon’ble Court also emphasized the significance of punctuation (comma) in statutory interpretation and stated that “comma” should have been added after the words “raised by the Controller” in Sub-Section 1 of Section 16 and words “provisional or complete specification” in Sub-Section 1 of Section 16 should have been replaced with the word “claims”.
The Hon’ble Court was of the view that in such a case, it might have been possible to hold that the requirement of the claims of the complete specification relating to a plurality of invention, was applicable both to cases where the divisional application was filed suo moto as well as where the divisional application was filed on an objection raised by the Controller.
The Hon’ble Court in view of the statutory provisions concluded that the absence of comma in Section 16(1) supported the view that the requirement of a plurality of inventions is only applicable when the divisional application is filed to remedy objection raised by the Controller.
Furthermore, the Hon’ble Court noted that the second objection raised by the Appellant appeared to align with the statutory intent. The Hon’ble Court analyzed the language used in Section 16(1) and found merit in Appellant’s submission..
The Hon’ble Court also referred to the Manual of the Patent Office Practice and Procedure and Form-2 of the Patent Rules to support the argument that provisional specifications do not need to include claims.
Consequently, the Hon’ble Court proposed referring the following questions to a Division Bench for consideration:
1. Does the requirement of a plurality of inventions being contained in the parent application apply even when the Divisional Application is filed suo moto by the applicant, without any objection raised by the Controller?
2. Assuming that the requirement of a plurality of inventions in the present invention is necessary for a Divisional Application to be maintainable, does the plurality of inventions have to be reflected in the claims in the parent application, or is it sufficient if they are reflected in the disclosures in the complete specifications accompanying the claims in the parent application?[3].
Conclusion
In the instant case, the impugned refusal order passed by the Controller may be seen as a strict interpretation of Section 16 of the Patents Act, 1970, to ensure that the divisional application is allowed only in cases where multiple inventions are disclosed in the parent application. The decision of the Hon’ble Division Bench in the case and observations made with respect to the aforesaid questions are most awaited as they are crucial and will clarify the law relating to divisional application claims in India.
[1] C.A.(COMM.IPD-PAT) 471/2022
[2] C.A. (COMM.IPD-PAT) 295/2022
[3] https://indiankanoon.org/doc/70989541/?type=print
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GST Council imposes 28% GST on online games in India
By Vidhi Oberoi and Rachita Thakur
Background
The GST Council, as per the 47th GST Council Meeting, reconsidered the report submitted by the Group of Ministers (GoM) on the issues pertaining to the taxation of casinos, horse racing, and online gaming. The issue before the GoM was whether to impose a 28% GST on the face value of bets, or gross gaming revenue, or just the platform fees. The GoM was convened by Meghalaya Chief Minister, Conrad Sangma, and had members from eight states including West Bengal, Uttar Pradesh, Goa, Tamil Nadu, Telangana, Gujarat and Maharashtra.
50th Meeting of GST Council
The 50th Meeting of GST Council was conducted on July 11, 2023, under the chairmanship of the Union Finance & Corporate Affairs Minister Smt. Nirmala Sitharaman was convened to decide whether the tax should be levied on gross gaming revenue or fees charged by the platform or on the full face value of bets put in by players of online games. Therefore, the Council made the following deliberations during the Meeting based on the GoM final report:
a. To make suitable amendments to law to include online gaming and horse racing in Schedule III as taxable actionable claims;
b. All three namely, Casinos, Horse Racing, and Online gaming to be taxed at the uniform rate of 28%.
c. Tax will be applicable on the face value of the chips purchased in the case of casinos, on the full value of bets placed with bookmaker/totalisator in the case of Horse Racing and on full value bets placed in case of the Online Gaming.
However, the effective date for 28% GST levy is yet to be notified by the government.
State Views
The decision has come in the wake of the following views of various States:
1. West Bengal and Uttar Pradesh– The States opined that 28% GST should be levied on all three activities on full face value of the bets placed;
2. Gujarat– GST should be levied on platform fees only;
3. Meghalaya– Suggestions as to leaving 28% tax on GGR or platform fees or commission charged on casinos, online gaming and horse racing. It was further suggested that a special mechanism to carve out an ‘
’ for the purpose of pooling in prize money for payout to winners would make administration of tax easier.
4. Tamil Nadu and Telangana– These states suggested that if the GST Council determines that three activities are not actionable claims of betting and gambling, then a 28% tax should be levied on GGR.
5. Maharashtra – The state while suggesting a 28 per cent rate for all three supplies, argued that there should be no differentiation in taxation based on whether the activities involve skill or chance, and the valuation rules should reflect this. It proposed that a suitable abatement be provided for determining the taxable value of supply of the actionable claim.
6. Goa – Goa differed in its views and opposed the 28% GST move thereby favouring the current rate of 18% tax on platform fees levied by the gaming operators.
Industry Views
The decision to increase the rate of GST levied on online games has come as a shocker for the $1.5 billion online gaming industry as a whole given the surge in popularity of online games. Majority of the online gaming industry experts do not favour the said decision primarily because the said move is likely to hamper investments and revenue generation potential of the sector. However, on the contrary government officials cite major concerns about the rise in addiction with rapid rise of online gaming. Thus, the move to increase tax rate is perceived as ‘de-addiction measure’.
Current Scenario
Presently, the GST regime differentiates online games on the basis of skill and chance. A game of skill is where the outcome of the game is dependent on the expertise, practice and experience of the player and not on merely on the chance. The games of chance are treated and classified and therefore are subject to higher rate of tax as compared to game of skill under Rule 31A of the Central Goods and Services Tax Rules, 2018 (CGST Rules) as gambling, betting and horse racing. There is no doubt that the decision has received reverberations from the gaming industry as the same is likely to affect the revenue generation capacity of online games however, the actual impact can only be ascertained once 28% GST is implemented.
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FIR for sexual assault can’t be quashed on grounds of Delay: Calcutta High Court
By Anuradha Gandhi and Isha Sharma
Introduction
“Delay in a case of sexual assault cannot be equated with a delay in a case involving other offenses since several factors weigh on the mind of the victim and member of her family”
It is a sad reality that victims of sexual assault often fear of their reputation, discouraging them from seeking justice. The trauma, anxiety about the family’s honour and social stigma are factors that a victim of sexual assault has to consider before taking any action against the perpetrator. Courts in India have taken judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim and delay in lodging the First Information Report in a case of this nature is a natural phenomenon.
The case of Shreekant Sharma v. State of West Bengal1 is a key judgment of the Calcutta High Court that highlighted the discouragement to file an FIR that victims of sexual assault experience, often leading them to not seek justice.
Hon’ble Justice Bibek Chaudhuri highlighted the issue while declining to quash a case registered under the Protection of Children from Sexual Offences Act (POCSO Act) by a minor girl, who alleges to be a victim of sexual assault.
Whether a delay in filing FIR be a reason for quashing the investigation?
The victim filed a case against a senior citizen who is her grand uncle for molesting her on two occasions between the ages of 15 to 16 years old. While the instances took place when she was still a minor, the victim filed an FIR against the alleged perpetrator only after having turned 18 years of age. The accused approached the High court to quash the FIR against him in this case. One of the key grounds on which the quashing was sought was the delay in filing the FIR.
The victim, on the other hand, contended that the reason for delay was that her father refused to believe her. She informed the Court that her father was one of the first few people she spoke to after the first instance but he accused her of lying and having a “dirty head who is misunderstanding things”. As a result, the victim did not dare to narrate the incident to her mother as she herself was going through marital problems.
There was a history of criminal proceedings and pending litigation between her parents and had since been separated, they were sharing the custody of the girl. Since the family was going through extensive financial hardships, her mother suggested to return to her father’s house. Upon hearing this suggestion, the victim vehemently opposed it and communicated with her mother what she had been through. After this, the FIR was filed. The victim also claimed that after the FIR had been filed, there was considerable threats from her family to show criticism towards her action of approaching authorities.
It was argued that the FIR was laced with material contradictions and suppressions as it was lodged after an inordinate delay of two years and was an outcome of concoction and afterthought and lodged with ulterior motive to humiliate the accused and lower his prestige in the estimation of people in the society.
The Court’s view
One of the key questions of law that the Court had to deal with in this case is whether a delay in filing FIR by the victim should be a cogent reason for quashing the investigation against the accused. The Court answered this in negative, pointing out that a plethora of judgements, from various High Court and the Supreme Court, have held that the delay in filing an FIR in cases of sexual assault should not be equated with other cases to quash proceedings or hold an accused not guilty.
The case of Satpal Singh vs State of Haryana2 was relied upon to reiterate that:
“13. In a rape case the prosecutrix remains worried about her future. She remains in traumatic state of mind. The family of the victim generally shows reluctance to go to the police station because of society’s attitude towards such a woman. It casts doubts and shame upon her rather than comfort and sympathise with her. Family remains concern about its honour and reputation of the prosecutrix. After only having a cool thought it is possible for the family to lodge a complaint in sexual offences. (Vide Karnel Singh Vs. State of M.P. AIR 1995 SC 2472; and State of Punjab Vs. Gurmeet Singh & Ors. AIR 1996 SC 1393)
14. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets benefit of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. (vide State of Andhra Pradesh Vs. M. Madhusudhan Rao (2008) 15 SCC 582)
15. However, no straight jacket formula can be laid down in this regard. In case of sexual offences, the criterial may be different altogether. As honour of the family is involved, its members have to decide whether to take the matter to the court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. This Court has always taken judicial notice of the fact that “ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon” [vide Satyapal Vs. State of Haryana AIR 2009 SC 2190]”
Additionally, the Court reminded the parties that in the case of State of Himachal Pradesh Vs. Prem Singh3, it was held that
“So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences.” In a tradition-bound country like India, multiple factors are considered by the victim and her family before filing an FIR but it would be quite unfair to quash an FIR basis any delay caused by such consideration.
The Calcutta High Court also relied on the decision of the Supreme Court in the case of Tulsidas Kanolkar v State of Goa4 wherein it was held that, “delay per se is not a mitigating circumstance for the accused when accusations of rape are involved.” Delay in filing an FIR cannot be taken as a ‘ritualistic formula’ for throwing away the case or for casting a doubt on the authenticity of the prosecution’s claims.
The Court also took into account the fact that the victim did try to seek help from the elders around her when she approached her father regarding the first instance of sexual assault right after it took place but was discouraged heavily. Hence, she chose to not confide in him after the second instance. Moreover, her brothers were also threatened by the family when they tried to speak up for her.
Hence, the Court is inclined to believe that there were cogent reasons that caused a delay in the filing of the FIR and technical grounds cannot be cited as a reason for quashing of the investigation in a heinous crime like sexual harassment of a girl child.
It was pointed out by the Court that a victim of sexual assault, especially as minor, has to take into account multiple things before approaching the police for filing an FIR. To begin with, the authorities often tend to not believe young victims of sexual assault. This is coupled by the fact that when a victim comes forward with an allegation of sexual assault, it tags along with the person and their families for the rest of their lives and it is given that they would have to face ostracization by the society in case the accuses is proved innocent. Most importantly, experiencing a sexual assault is an extremely traumatizing thing that often last lifelong. Hence, it is practically impossible to mathematically calculate or prescribe a time limit as to when a person would recover and would be comfortable with filing a complaint. In view of the facts and circumstances, the Court ruled that there were plethora of reasons that were sufficient to explain the cause of delay in filing the FIR.
Conclusion
Victims of sexual assault have to find immense courage within themselves to come out with what they’ve been through due to societal stigma, discouragement for filing an FIR, the fear of not being believed and anxiety about their family’s honour. The Calcutta High Court in the referred case has reiterated that the allegation in the FIR makes out a prima facie case against the accused and hence the FIR registered should not be quashed on a mere ground of technicality.
It must be acknowledged that such is the society that multiple factors play a role in the victim lodging an FIR after a considerable amount of time has passed. The said judgment marks a landmark ruling emphasizing that those who are able to come out with their story to seek justice must not be unheard on grounds of technicality such as delay in filing the FIR.
1 https://www.livelaw.in/pdf_upload/displayp-482928.pdf
2 (2010) 8 SCC 714
3 AIR 2009 SC 1010
4 (2003) 8 SCC 590
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