DPIIT Notifies Proposed Amendments to Patent Rules, 2003 – India
By Vikrant Rana, Renu Bala Rampal and Johny Solomon Raj
The Ministry of Commerce And Industry (Department for Promotion of Industry and Internal Trade) vide notification dated August 22, 2023, has proposed amendments to the Patents Rules, 2003 which shall be taken into consideration by the Central Government after the expiry of a period of thirty days i.e. after September 22, 2023.
The DPIIT has invited objections or suggestions from all persons likely to be affected and any such objections or suggestions, may be addressed to the Secretary, Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, Government of India, Vanijya Bhawan, New Delhi- 110001 or by e-mail at bikram.87@nic.in and ipr-patents@gov.in.
Some of the notable proposed amendments are as under:
STATEMENT & UNDERTAKING
- The draft Rules propose to reduce the time within which the applicant for a patent shall be required to keep the Controller informed of the details in respect of corresponding application(s) filed in any foreign jurisdiction along with its updated status from six months to two months from the date of issuance of first statement of objections.
- As per the proposed amendments, submission of publicly accessible documents in respect of corresponding foreign applications would not be required.
- The draft Rule proposes that in case there is a delay in submission of Form 3, the Controller may condone the delay upon a request made in Form 4.
DIVISIONAL APPLICATION
- The draft Rule proposes to add a new provision for filing a Divisional application based on an invention disclosed in the provisional specification.
REQUEST FOR EXAMINATION
- The timeline for filing Request for Examination is proposed to be reduced from 48 months to 31 months.
FIRST EXAMINATION REPORT
- The proposed amendment allows extension of time (3 months) for filing response to the First Examination Report (FER) after the expiry of the six months. The extension can therefore be filed before the expiry of 9 months from the date of issuance of FER – earlier the extension was required to be filed before the expiry of the six months’ deadline to respond to the FER.
GRACE PERIOD
- In case the applicant had their invention publicly displayed in an exhibition/read before Learned Society before first filing with Indian Patent Office, is the draft rules propose that an application on Form 31 can be filed to avail a grace period of 12 months from the date of such disclosure.
PRE-GRANT AND POST-GRANT OPPOSITION
- A revision in fees for filing both pre-grant and post-grant opposition has been proposed. Accordingly, the proposed fees shall be the aggregate of the actual amount paid in respect of Basic Filing Fees, Early Publication Fees and Examination Fees by the applicant against whom the opposition will be filed. This can now reduce/stop the oppositions which are just filed to delay the examination process.
- The proposed deadline to file statement and evidence is 2 months instead of 3 months, in a pre-grant opposition. Further, as per the proposed amendment, an Opposition board constituted in a post-grant opposition should submit their final report in 2 months instead of three months.
PATENT OF ADDITION
- A 50 percent discount in official fee has been proposed for filing an application for a patent made under Section 54.
RENEWAL
- A 10 percent reduction in official fee has been proposed in case at least 4 years of renewal fees is paid in advance via e-filing.
RULE 138 – EXTENSION OF TIME
- Under the draft rules, the Controller will have the power to extend any deadline for a period of up to 6 months under Rule 138, and such extension can be filed in Form 4.
COMMERCIAL WORKING STATEMENT
- It is proposed that commercial working statement i.e. Form 27 will be required to be furnished once in respect of every period of three financial years, starting from the financial year commencing immediately after the financial year in which the patent was granted. The Form 27 therefore would not required to be filed every year,which is a welcome sign.
ADDITION OF INVENTOR
- Filing Form 8 for adding name of inventor to patent certificate shall incur no fee as per the proposed amendments.
SURRENDER OF PATENTS
- Surrender of patents shall incur no fee as per the proposed amendments.
The proposed amendments and the proposed new additions as per the draft rules have been tabulated below:
| Sl. No | Particulars | Existing Rule/Sub Rule/Clause | Proposed Amendment | Proposed New Addition |
| 1 | Rule 12 – Statement and undertaking regarding foreign applications | Clause 2: The time within which the applicant for a patent shall keep the Controller informed of the details in respect of other applications filed in any country in the undertaking to be given by him under clause (b) of sub-section (1) of section 8 shall be six months from the date of such filing |
Sub Section 2: The time within which the applicant for a patent shall keep the Controller informed of the details in respect of other applications filed in any country in the undertaking to be given by him under clause (b) of sub-section (1) of section 8 shall be two months from the date of issuance of first statement of objections. |
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| Clause 3: When so required by the Controller under sub-section (2) of section 8, the applicant shall furnish information relating to objections, if any, in respect of novelty and patentability of the invention and any other particulars as the Controller may require which may include claims of application allowed within six months from the date of such communication by the Controller. |
DELETED | |||
| Clause 3: The Controller shall consider the information relating to processing of the application in a country outside India that is accessible using public databases. |
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| Clause 4: The Controller may, under sub-section (2) of section 8, for reasons to be recorded in writing, direct the applicant to furnish a fresh statement and undertaking in Form 3 within two monthsfrom the date of such communication by the Controller. |
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| Clause 5: Notwithstanding anything contained in the sub-rules (1), (2) or (3), the Controller may condone the delay in filing of Form 3 upon a request made in Form 4. |
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| Rule 13 – Specifications | Sub Rule (2A): A patent applicant may, if he so desires, file a divisional application under section 16, including in respect of an invention disclosed in the provisional specification. |
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| Rule 24B – Examination of application | Sub Rule 1, Clause (i): A request for examination under section 11B shall be made in Form 18 within forty-eight months from the date of priority of the application or from the date of filing of the application, whichever is earlier |
Sub Rule 1, Clause (i): A request for examination under section 11B shall be made in Form 18 within thirty one months from the date of priority of the application or from the date of filing of the application, whichever is earlier |
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| Sub Rule 1, Clause (ii): The period within which the request for examination under sub-section (3) of section 11B to be made shall be forty-eight months from the date of priority if applicable, or forty-eight months from the date of filing of the application |
Sub Rule 1, Clause (ii): The period within which the request for examination under sub-section (3) of section 11B to be made shall be thirty one months from the date of priority if applicable, or thirty one months from the date of filing of the application |
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| Sub Rule 1, Clause (iii): The request for examination under sub-section (4) of section 11B shall be made within forty-eight months from the date of priority or from the date of filing of the application, or within six months from the date of revocation of the secrecy direction, whichever is later |
Sub Rule 1, Clause (iii): The request for examination under sub-section (4) of section 11B shall be made within thirty one months from the date of priority or from the date of filing of the application, or within six months from the date of revocation of the secrecy direction, whichever is later |
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| Sub Rule 1, Clause (iv): The request for examination of application as filed according to the ‘Explanation’ under sub-section (3) of section 16 shall be made within forty-eight months from the date of filing of the application or from the date of priority of the first mentioned application or within six months from the date of filing of the further application, whichever is later |
Sub Rule 1, Clause (iv): The request for examination of application as filed according to the ‘Explanation’ under sub-section (3) of section 16 shall be made within thirty one months from the date of filing of the application or from the date of priority of the first mentioned application or within six months from the date of filing of the further application, whichever is later |
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| Sub Rule 1, Clause (vi): Notwithstanding anything contained in this sub-rule, in respect of an application that was filed before the Patents (Amendment) Rules, 2023 came into force, the request for examination under sub-section (1) of section 11B shall be filed within the time prescribed in the Patents (Amendment) Rules, 2006. |
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| Sub Rule 6: The time for putting an application in order for grant under section 21 as prescribed under sub-rule (5) may be further extended for a period of three months on a request in Form 4 for extension of time along with prescribed fee, made to the Controller before expiry of the period specified under sub-rule (5) |
Sub Rule 6: The time for putting an application in order for grant under section 21 as prescribed under sub-rule (5) may be further extended for a period of three months on a request in Form 4 for extension of time along with prescribed fee, made to the Controller before expiry of the period specified in this sub-rule |
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| Rule 24C – Expedited examination of applications | Sub Rule 11: The time for putting an application in order for grant under section 21, as prescribed in sub-rule (10) may be further extended for a period of three months on a request for extension made in Form 4 along with the prescribed fee, made to the Controller before the expiry of the period specified under sub-rule (10) |
Sub Rule 11: The time for putting an application in order for grant under section 21, as prescribed in sub-rule (10) may be further extended for a period of three months on a request for extension made in Form 4 along with the prescribed fee, made to the Controller before the expiry of the period specified in this sub-rule |
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| Rule 29 – Procedure in case of anticipation by prior claiming | Rule 29A: Grace period.- An application to avail the grace period under section 31 shall be filed in Form 31 |
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| Rule 55 – Opposition to the patent | Sub Rule 3: On consideration of the representation if the Controller is of the opinion that application for patent shall be refused or the complete specification requires amendment, he shall give a notice to the applicant to that effect. |
Sub Rule 3: On consideration of the representation, the Controller shall first decide the maintainability of the representation and thereafter if the Controller is of the opinion that application for patent shall be refused or the complete specification requires amendment, he shall give a notice to the applicant to that effect. |
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| Sub Rule 4: On receiving the notice under sub-rule (3), the applicant shall, if he so desires, file his statement and evidence, if any, in support of his application within three months from the date of the notice, with a copy to the opponent. |
Sub Rule 4: On receiving the notice under sub-rule (3), the applicant shall, if he so desires, file his statement and evidence, if any, in support of his application within two months from the date of the notice, with a copy to the opponent. |
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| Sub Rule 6: After considering the representation and submission made during the hearing if so requested, the Controller shall proceed to either reject the representation and granting the patent or accepting the representation and refusing the grant of patent on that application, ordinarily within three months from completion of above proceedings |
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| Sub Rule 7: The procedure specified in sub-rules (2) to (4) of rule 62, and rule 63, shall, so far as may be, apply to the procedure for hearing under this rule |
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| Sub Rule 8: An application for a patent, in which a representation for opposition has been filed and found maintainable, shall be examined in accordance with rule 24C |
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| Rule 56 – Constitution of Opposition Board and its proceeding | Sub Rule 4: The Opposition Board shall conduct the examination of the notice of opposition along with documents filed under rules 57 to 60 referred to under sub-section (3) of section 25, submit a report with reasons on each ground taken in the notice of opposition with its joint recommendation within three months from the date on which the documents were forwarded to them |
Sub Rule 4: The Opposition Board shall conduct the examination of the notice of opposition along with documents filed under rules 57 to 60 referred to under sub-section (3) of section 25, submit a report with reasons on each ground taken in the notice of opposition with its joint recommendation within two months from the date on which the documents were forwarded to them |
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| Rule 80 – Renewal fees under section 53 | Sub Rule 3: The annual renewal fees payable in respect of two or more years may be paid in advance |
Sub Rule 3: The annual renewal fees payable in respect of two or more years may be paid in advance: Provided that where the renewal fees is paid in advance via e-filing in respect of a period of at least 4 years, a ten per cent reduction in fee shall be applicable upon such a payment. |
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| Rule 110 | Sub Rule 2: The qualifying examination shall consist of the following papers and marks, namely: Paper I —Patents Act and Rules 100 Paper II—Drafting and interpretation of patent specifications and other documents 100 Viva Voce 50 |
Sub Rule 2: The qualifying examination shall consist of the following papers and marks, namely: Paper I — Patents Act, 1970, Patents Rules, 2003, Designs Act, 2000 and Designs Rules, 2001 100 Paper II—Drafting and interpretation of patent specifications, design specifications and other documents 100 Viva Voce 50 |
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| Rule 131 – Form and manner in which statements required under section 146(2) to be furnished |
Sub Rule 2: The statements referred to in sub-rule (1) shall be furnished in respect of every calendar year within three months of the end of each year |
Sub Rule 2: The statements referred to in sub-rule (1) shall be furnished once in respect of every period of three financial years, starting from the financial year commencing immediately after the financial year in which the patent was granted, and shall be furnished within six months from the expiry of each such period: Provided that the Controller may condone the delay in filing of such a statement upon a request made in Form 4. |
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| Rule 138 -. Power to extend time prescribed | Power to extend time prescribed.— (1) Except for the time prescribed in clause (i) of sub-rule (4) of rule 20, sub-rule (6) of rule 20, rule 21, sub-rules (1), (5) and (6) of rule 24B, sub-rules (10) and (11) of rule 24C, sub-rule (4) of rule 55, sub-rule (1A) of rule 80 and sub-rules (1) and (2) of rule 130, the time prescribed by these rules for doing of any act or the taking of any proceeding thereunder may be extended by the Controller for a period of one month, if he thinks it fit to do so and upon such terms as he may direct. (2) Any request for extension of time prescribed by these rules for the doing of any act or the taking of any proceeding thereunder shall be made before the expiry of such time prescribed in these rules. |
Power to extend time prescribed.- (1) The time prescribed by these Rules for the doing of any act or the taking of any proceeding thereunder may be extended by the Controller for a period of up to six months, if he thinks it fit to do so and upon such terms as he may direct. (2) Any request for extension of time under this rule shall be made in Form 4 before the expiry of the period of up to six months mentioned in sub-rule (1). |
The proposed fee change is as below:
| Sl. No | Particulars | Existing Official Fees | New Official Fees | Proposed Change |
| 1 | Section 54 – Patent of Addition | Individual/Small Entity/Startup – INR 1600
Other than Small Entity – INR 8000 |
Individual/Small Entity/Startup – INR 800
Other than Small Entity – INR 4000 |
A specification in respect of an application for a patent made under section 54 shall be eligible for reduction of 50 per cent in fee as compared to other specifications |
| 2 | Section 25(2) – On notice of opposition to grant of patent under section 25(2) |
Individual/Small Entity/Startup – INR 2400
Other than Small Entity – INR 12000 |
Aggregate of amounts actually paid in respect of entries 1, 2, 12, 27, 28, 29, as may be applicable (Fees paid as Filing Fees, Early Publication Fees and Examination Fees) |
An opponent now filing an oppsotion against an application has to be pay all fees paid by the applicant of the application such as Filing Fees, Early Publication Fees and Examination Fees as an Official fee |
| 3 | Section 25(1) – On filing representation opposing grant of patent under section 25(1) |
No Fees | Aggregate of amounts actually paid in respect of entries 1, 2, 12, 27, 28, 29, as may be applicable (Fees paid as Filing Fees, Early Publication Fees and Examination Fees) |
An opponent now filing an oppsotion against an application has to be pay all fees paid by the applicant of the application such as Filing Fees, Early Publication Fees and Examination Fees as an Official fee |
| 4 | Section 28(2) – Addition of Inventor | Individual/Small Entity/Startup – INR 800
Other than Small Entity – INR 4000 |
No Fee | |
| 5 | Section 63 – Surrender of Patent | Individual/Small Entity/Startup – INR 1000
Other than Small Entity – INR 5000 |
No Fee | |
| 6 | Section 31 and Rule 29A – Grace Period | Individual/Small Entity/Startup – INR 11200
Other than Small Entity – INR 84000 |
Newly included for Grace Period | |
| 7 | On request for extsnion of time Under Rule 138 (per month) – Form 4 | Individual/Small Entity/Startup – INR 10000
Other than Small Entity – INR 50000 |
National E-commerce Policy- India
By Rupin Chopra and Apalka Bareja
The world of electronic commerce (e-commerce) is rapidly evolving, and India is no exception to this digital transformation. As the Indian e-commerce landscape continues to expand, the need for a comprehensive regulatory framework becomes imperative. The Ministry of Commerce and Industry is gearing up to introduce the National E-commerce Policy, a groundbreaking initiative that aims to shape the future of e-commerce in the country. This policy is poised to be a game-changer, aligning with existing national initiatives like Make in India, Startup India, Skill India, and Digital India. Let’s delve into the key aspects of this upcoming policy and its potential impact on the e-commerce ecosystem.
Setting the Stage: The Growth of E-commerce in India
Electronic commerce has emerged as a potent force propelling India’s economic growth and development. Market estimates project that the Indian e-commerce industry will reach a valuation of USD$99 billion by 2024, with projections soaring to an impressive USD$300 billion by 2030[1]. Recognizing the pivotal role that e-commerce plays in India’s economic landscape, the government has undertaken the task of formulating a comprehensive regulatory framework to safeguard and enhance various facets of e-commerce operations, from consumer protection to data privacy.
The Draft National E-commerce Policy: A Glimpse into Its Genesis
In 2019[2], the Ministry of Commerce and Industry released a draft of the National E-commerce Policy, laying out a roadmap for the future of e-commerce in India. This policy draft revolved around the following broad areas, each integral to fostering a thriving e-commerce ecosystem[3]:
- Data: The policy emphasized the significance of data in the e-commerce sector and proposed measures to regulate data flow, localization, and cross-border transfers. It underlines the importance of safeguarding data as a national asset, just as any other natural resource, for the benefit of Indian citizens and businesses. Data ownership and privacy remain central to the policy’s agenda. It mandated that digital economy participants with access to Indian data must nominate local representatives responsible for the company’s affairs in India. This move aimed to enhance law and order and ensure compliance with regulations. Additionally, the policy highlighted the significance of privacy protection. It required e-commerce entities to disclose the purpose of data collection in a simple and understandable manner, empowering consumers to make informed choices about sharing their data.
- Empowering Small Firms and Start-ups: To foster the integration of small businesses and start-ups into the digital sector, the policy recommended granting them ‘infant-industry’ status. This recognition aimed at providing these entities with benefits that facilitate their onboarding into the digital economy. Access to data lies at the heart of this approach, enabling MSMEs and start-ups to leverage digital platforms and best practices effectively.
- Consumer Protection: Consumer protection took centre stage in the policy’s framework. It emphasized genuine reviews, anti-counterfeiting measures, and e-Courts for grievance redressal. The policy recognized the importance of combating fraudulent ratings and reviews while ensuring swift resolution of consumer grievances. Transparency in data collection practices is also prioritized, ensuring that consumers understand why their data is being collected.
- Stimulating the Domestic Digital Economy: The policy’s recommendations to stimulate the domestic digital economy reflected a forward-looking approach. Formulating domestic industrial standards for smart and IoT devices aligns with the goal of enhancing consumer protection and interoperability. Incorporating Artificial Intelligence (AI) into logistics through automation demonstrated the draft policy’s commitment to efficiency and digital integration. The integration of online customs clearance, along with measures to promote exports, underscores India’s vision to become a global e-commerce exporter.
- Infrastructure Development: The policy recognized the interdependence between a robust digital infrastructure and the growth of the e-commerce sector. To this end, it proposes to accord ‘infrastructure status[4]‘ to critical components such as data centers, server farms, and communication networks, ensuring seamless connectivity across the nation.
- E-commerce Marketplaces: Acknowledging the vital role of e-commerce marketplaces, the policy proposed the prohibition of Foreign Direct Investment (FDI) in inventory-based models while allowing FDI in marketplace models. This move aims to level the playing field and prevent unfair competition practices[5].
- Export Promotion through E-commerce: E-commerce offered unprecedented opportunities for export promotion. By minimizing marketing costs and transcending geographical barriers, e-commerce platforms empower domestic businesses to access global markets. However, administrative compliances and high costs have hindered the competitiveness of Indian entities in international markets. The policy’s emphasis on export promotion through e-commerce and integration with logistics plans aimed to address these challenges and bolster India’s position in the global export landscape.
At its core, the 2019 draft National E-commerce Policy sought to achieve holistic growth in the e-commerce sector while aligning with existing national policies like Make in India, Startup India, Skill India, and Digital India. By establishing a robust governance framework, the policy aimed to unlock productivity, create new-age employment opportunities, and protect sensitive personal information. This inclusive approach aimed at not only fostering economic growth but also addressed public policy imperatives.
Internationally, India’s National E-commerce Policy stood out as a pioneering effort. With its all-encompassing approach, covering dimensions such as data management, consumer protection, intellectual property, and competition, India is on the path to become a global leader in advanced e-commerce legislation. Notably, countries like China and the United States have already embraced similar policies, showcasing the international significance of India’s endeavour.
Addressing Regulatory Aspects: A Balancing Act
As with any complex policy, challenges and concerns have emerged. The draft policy, while aiming to address multifaceted issues, has been criticized for its ambiguity and lack of clarity in certain areas. Questions arise about whether the policy leans more towards being an internet policy rather than a focused e-commerce policy. Ambiguities in defining e-commerce and addressing data ownership, consumer protection, platform liabilities, and regulatory implementation need to be carefully addressed.
The upcoming National E-commerce Policy aims to strike a balance[6] between fostering innovation and protecting consumer interests. It introduces a mix of regulatory and protectionist measures to address the challenges posed by the digital economy. A pivotal concern is data governance and privacy, with the policy advocating for data localization to ensure that Indian businesses and citizens benefit from the monetization of data. The existing legislative framework, including the Information Technology Act, the Competition Act, and the Consumer Protection Act, needs to adapt to the evolving landscape of e-commerce. This involves considerations for emerging technologies, modes of delivery, data treatment, and online marketplaces.
A Vision for the Future: Recommendations
Though, the upcoming National E-Commerce Policy is yet to be made public, in our opinion, the upcoming policy will represent a significant stride forward, if it will confront certain challenges and uncertainties. The definition of e-commerce, data governance, consumer protection, intermediary responsibilities, and advertising pricing require further clarity. Regulatory alignment, stakeholder collaboration, and effective enforcement mechanisms are pivotal to the policy’s success. To refine and enhance the policy’s effectiveness, the following broad recommendations are proposed:
- Defining E-commerce: The policy should provide a unified definition of e-commerce and differentiate it from the broader digital economy, aligning with international norms.
- Data Governance: Clarify data definitions and address data ownership and localization concerns to foster international collaboration. Reevaluate data localization requirements, balancing domestic needs with international data flows.
- Consumer Protection: Introduce stringent penalties for consumer protection violations, bolstering consumer confidence in e-commerce platforms.
- Intermediary Role: Clearly outline the responsibilities of intermediaries and e-commerce platforms, ensuring a balanced ecosystem.
- Advertising Practices: Approach advertising pricing controls cautiously, considering market dynamics and fostering innovation.
Conclusion: Pioneering a Digital Future
India’s upcoming National E-commerce Policy holds the promise of transforming the nation’s digital landscape. By addressing regulatory challenges, safeguarding consumer interests, and fostering innovation, the policy aims to create an environment conducive to economic growth and global competitiveness. While challenges persist, the policy’s visionary approach, international relevance, and strategic recommendations position India as a leader in the global e-commerce arena. As the policy evolves, refining its provisions, ensuring clarity, and fostering collaboration among stakeholders will be essential. The journey ahead promises to reshape India’s digital future, asserting its role as a trailblazer in the global e-commerce landscape, while setting new standards for other nations to follow.
Shantam Sharma, Assesment Intern at S.S. Rana & Co. has assisted in the research of this Article.
[1] Available at: https://www.business-standard.com/industry/news/india-s-mass-consumers-to-lead-300-bn-e-com-opportunity-by-2030-redseer-123072600501_1.html
[2] Available at:https://www.epw.in/journal/2022/38/special-articles/national-e-commerce-policy-2019.html#:~:text=The%20draft%20national%20e%2Dcommerce,competitive%20advantage%20for%20the%20platforms.
[3] Available at: https://timesofindia.indiatimes.com/business/india-business/national-e-commerce-policy-in-final-stages-official/articleshow/102870109.cms?from=mdr
[4] Infrastructure status gives industries access to cheaper foreign currency funding through the external commercial borrowing route. Falling under infrastructure category helps the sector get credit at competitive rates and on long-term basis with enhanced limits.
[5] Available at: https://www.business-standard.com/industry/news/india-s-mass-consumers-to-lead-300-bn-e-com-opportunity-by-2030-redseer-123072600501_1.html
[6] Available at: https://timesofindia.indiatimes.com/blogs/voices/governments-balanced-regulatory-approach-to-e-commerce-spurs-economic-growth/
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COUNTRY OF ORIGIN TO BE SPECIFIED ON E-COMMERCE WEBSITES FOR PRODUCT LISTINGS
Display of Information by E-commerce Food Business Operators- FSSAI
Parental Consent to be stored in Digilockers
By Anuradha Gandhi and Rachita Thakur
Introduction
The Ministry of Electronics and Information Technology (MeitY), under the Digital India Programme, initiated a flagship programme ‘DigiLocker’ aimed at providing citizens a secure document access platform on a public record.
DigiLocker is a platform for issuance and verification of documents and certificates digitally thereby eliminating the use of physical documents. The system of DigiLocker has brought in a paradigm shift towards inculcating digital governance practices and helped citizens and organizations to accept and adopt paperless documentation. These documents are considered legally valid documents under the Information Technology Act, 2000. Further, as per Rule 9A of the Information (Preservation and Retention of Information by Intermediaries Providing DigiLocker Facilities) Rules, 2016 (hereinafter referred to as the “Rules”) the documents issued via Digital Locker are to be treated at par with original documents.
Rule 2(f) of the Rules define ‘DigiLocker’ as the Government owned and operated web and mobile based hosting of Digital Locker system. The system of DigiLocker was initiated to fulfill the purpose of providing preservation and retention of machine readable, printable, shareable, verifiable and secure State or Central department or agency or body corporate issued electronic record.[1] The services under this system is provided by “Digital Locker service provider” who is an intermediary including a body corporate or an agency of the appropriate Government, as may be notified by the Government, to provide Digital Locker , access gateways and, or, repository electronically, in accordance with the Rules.[2]
Relevance of DigiLocker can be understood from the fact that more than 15 crore people have signed up for DigiLocker and the platform has access to more than 5.6 billion digital documents.[3]
DigiLocker and Parental Consent
The Government is crafting a mechanism to authenticate the identity of parents and their children through online repository, DigiLocker. That is to say that social media intermediaries like Meta’s Facebook, Instagram and Google’s YouTube kids will be directly able to directly access and verify the documentations of teenagers’ parents stored in DigiLocker to secure parental consent.
About mapping of children with parents and children’s privacy
The Digital Personal Data Protection Act, 2023 classifies children as minors i.e. individuals under the age of 18 years. While all the social media platforms permit users over 13 years old, the implementation of the Data Protection Law means that these platforms will now have to obtain parental consent for users between the age groups of 13 years and 18 years thereby confirming the identity of both the child and parents.
Likewise, if a parents agree to share the data, they will have to enter a one-time password (OTP) to provide consent. This consent will then be recorded in the parents’ consent ledger. The method of linking is still under process.[4] The mechanism will be such that the parents would be required to declare all their children hence consequently allowing mapping of children with their parents.
Associated Risks-A pivotal concern
The mechanism to map children with parents is under development.[5] However, due to lack of clarity on the practical aspects and applicability of the law and its mandate there are a number of concerns that hover around the privacy of children.
At present, there is no legal framework to define a family for the purposes of providing parental consent to social media intermediaries. The extent to which such consent will be provided along with the process of providing access to social media platforms with the access to documents in DigiLocker. Whether every platform will have the access to store the valid identity cards of parents and children? For how long will the consent be valid and whether the platforms be required to seek confirmation from parents at regular intervals are some questions that need to be considered by the government while preparing the mechanism.
Furthermore, mandating storing of consent in DigiLocker would mandatorily imply that every parent must ensure that they have DigiLocker to provide consent to social media platforms. Another scenario that seeps in here is where the parents do not wish to give access to social media platforms with their identification documents. Will there be an alternative option be given to parents under such circumstances? Perhaps that makes it important for the government to issue safeguard guidelines to be observed by the social media platforms to assure security of data collected.
Preservation of digital documents in other countries – The growing demand and popularity of DigiLocker
India’s indigenously developed digital goods, also known as India Stack, have been popularly used for e-governance and have attracted much attention from across the world. India Stack includes apps such as UPI (Unified Payment Interface), CoWIN, Aarogya Setu and DigiLocker, among others. As per the Minister of State for Electronics and Information Technology, Rajeev Chandrasekhar, in January 2023, around seven countries will sign up for India Stack.
[6]
With absence of a system to preserve digital public documents in majority of the nations, it was reported that the countries signing agreements with India for India Stack, were mostly interested in DigiLocker at the World Government Summit held in Dubai in February, 2023.[7] Consequently, since June 2023, India has entered into MoU with Trinidad and Tobago amongst countries such as Armenia, Sierra Leone, Suriname, and Antigua & Barbuda to share India Stack with them.[8]
[1] Rule 4 of the Information Technology (Preservation and Retention of Information by Intermediaries Providing Digital Locker Facilities) Rules, 2016.
[2] Rules 2(l) of the Information Technology (Preservation and Retention of Information by Intermediaries Providing Digital Locker Facilities) Rules, 2016.
[3] Kindly refer to the link: https://blog.digilocker.gov.in/15-crore-and-counting-digilocker-leads-the-charge-in-indias-digital-revolution/#:~:text=More%20than%2015%20crore%20people,academic%20institutions%2C%20and%20other%20organizations
[4] Kindly refer to the link: https://timesofindia.indiatimes.com/business/india-business/store-parental-consent-on-digilocker-soon-new-tech-to-allow-fb-youtube-insta-to-verify-documents-of-children/articleshow/102975560.cms?from=mdr
[5] Kindly refer to the link: https://economictimes.indiatimes.com/tech/technology/soon-store-parental-consent-in-digilocker/articleshow/102954908.cms?from=mdr
[6] Kindly refer to: https://economictimes.indiatimes.com/tech/technology/seven-countries-to-sign-up-for-india-stacks-digital-public-goods-mos-it-rajeev-chandrasekhar/articleshow/97274552.cms?from=mdr
[7] Kindly refer to: https://economictimes.indiatimes.com/tech/technology/seven-countries-to-sign-up-for-india-stacks-digital-public-goods-mos-it-rajeev-chandrasekhar/articleshow/97274552.cms?from=mdr
[8] Kindly refer to: https://pib.gov.in/PressReleseDetail.aspx?PRID=1949830
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Maternity Leave not co-terminus with employment tenure: Supreme Court
By Anuradha Gandhi and Isha Sharma
Introduction:
The Maternity Benefit Act, 1961 was enacted to secure women’s right to pregnancy and maternity leave and to afford women with as much flexibility as possible to live an autonomous life, both as a mother and as a worker, if they so desire.
Recently, the Hon’ble Supreme Court passed a noteworthy ruling in the case of Dr. Kavita Yadav vs. the Secretary, Ministry of Health and Family Welfare Department & Ors, envisaging that continuation of maternity benefits is in-built in the statute itself, where the benefits would survive and continue despite the cessation of employment. This judgment highlighted the safeguarding and rights to maternity benefits that extend beyond the limitations of the employment duration.
This verdict marks a notable stride in safeguarding and advancing the well-being of women in the workforce, guaranteeing the preservation of their maternity benefits beyond the boundaries of contractual arrangements. It reaffirms the legislative purpose of extending assistance to women even post their employment tenure and establishes a forward-looking standard for forthcoming cases pertaining to maternity benefits for contractual workers.
Facts of the Case:
The appellant joined on a temporary basis as a Senior Resident (Pathology) in Janakpuri, Super Speciality Hospital Society with effect from June 12, 2014, for a term of one year extendable up to a maximum of three years. She was twice given extension of one year and 3 years period of contract was to be ended on June 11, 2017.
The appellant applied for earned leave on medical grounds as she was not able to attend duties on account of her being pregnant. On May 24, 2017 the appellant further applied for maternity leave commencing from June 01, 2017 indicating that her expected date of delivery was July 07, 2017.
The respondent stated that maternity leave could be granted only up to June 11, 2017 as per the terms and conditions of the offer of appointment since the appellant’s contract would terminate on June 11, 2017, therefore, her application for maternity leave was not admissible.
Being aggrieved, the appellant filed an original application bearing OA No. 906/2018 seeking relief from the Central Administrative Tribunal for grant of maternity leave to her. The Tribunal held that any contractual period has a certain time limit and if the conditions do not permit extension of the same period, it comes to an end at the end of the prescribed period. Since in the present case, the three years period ended on June 11, 2017, grant of maternity leave beyond that period will not be admissible. Thus, the relief sought by the appellant in the present OA was not sustainable in the eyes of law, and the same was dismissed vide order dated April 12, 2019.
Thereafter, the appellant filed an application before the Hon’ble High Court assailing the impugned order passed by the Tribunal contending that merely because her appointment was contractual for a limited period of 3 years, which were to expire on June 11, 2017, was no ground to deny maternity leave and other benefits.
The High Court took due notice of the fact that the outer limit of the petitioner’s contract was three years as stipulated in her initial appointment itself. Thus, the petitioner cannot insist that her contract should be continued beyond the said period, and she therefore, cannot avail of maternity benefit for the period after the expiry of the contractual period.
Thus, the claim of maternity leave was denied vide order dated August 19, 2019 on the ground that:
“The grant of such a relief would tantamount to extending the period of contract, which is not the purport and purpose of the Maternity Benefit Act, 1961. We, therefore, do not find any merit in the petition. Dismissed”.
Appeal before the Apex Court:
An appeal was then filed before the Hon’ble Supreme Court expressing dissatisfaction with the ruling of the High Court that had limited maternity benefits to a mere 11-day period, using the expiration of a contractual arrangement as the basis.
Reliance was placed upon Section 5 of the Maternity Benefit Act, 1961 which states that:
“Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.”
It was further contended that in accordance with the provision of Section 5(2) of the Maternity Benefit Act, 1961, once the female employee has rendered service for 180 days continuously prior to the expected date of delivery, she would be entitled to maternity benefit. Since the appellant fulfills the requirement of having worked more than 180 days during the preceding 1 year, even as a contractual employee, her right to claim maternity benefit should not be denied.
The main concern which falls for determination in this appeal was as to whether the maternity benefits, as contemplated in the 1961 Act, would apply to a lady employee appointed on contractual terms, if the period for which she claims such benefits overshoots the contractual period?
The respondent sought to defend the reasoning given in the judgment under appeal, arguing that once the term or tenure of the contract ends, there cannot be a notional extension of the same by giving the employee the benefits of the 1961 Act in full, as contemplated in Section 5(2) thereof. It was submitted that any benefits that the appellant would be entitled to ought to be within the contractual period.
It was rightly observed by the Apex Court that:
“Section 12(2)(a) of the 1961 Act contemplates entitlement to the benefits under the 1961 Act even for an employee who is dismissed or discharged at any time during her pregnancy if the woman, but for such discharge or dismissal, would have been entitled to maternity benefits or medical bonus. Thus, continuation of maternity benefits is in-built in the statute itself, where the benefits would survive and continue despite the cessation of employment. In our opinion, what this legislation envisages is entitlement to maternity benefits, which accrues on fulfillment of the conditions specified in Section 5(2) thereof, and such benefits can travel beyond the term of employment also. It is not co-terminus with the employment tenure.”
The court referred to the case of Municipal Corporation of Delhi vs Female Workers (Muster Roll), wherein a two-judge Bench extended benefits under the 1961 Act to workers engaged on a casual basis or on muster roll on daily wages.
In light of the ration and with regard to Section 27 of the 1961 Act, which gives overriding effect to the statute on any award, agreement or contract of service, the Supreme Court was of the opinion that the High Court erred in law in holding that the appellant was not entitled to maternity benefits beyond June 11, 2017.
It was reiterated by the Court that since the appellant had fulfilled the entitlement criteria specified in Section 5(2) of the Act, she would be eligible for full maternity benefits even if such benefits exceed the duration of her contract.
Accordingly, the judgment and order of the High Court was set aside and as a consequence thereof, the Tribunal’s decision shall also stand invalidated.
Conclusion:
The present appeal was, consequently, allowed and the employer was directed to extend maternity benefits as would have been available to the appellant in terms of Section 5 and 8 of the 1961 Act, after deducting thereof any sum that may already have been paid to the appellant under the same head or for such purpose vide order dated August 17, 2023.
Further, it was ordered that such benefits shall be extended to her within a period of three months from the date of communication of this judgment.
The marked decision constituted a significant ruling, suggesting that eligibility for maternity benefits, as outlined in section 5 of the 1961 Act, extends beyond the limitations of the employment duration.
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