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The Supreme Court Court refused to entertain petitions challenging the Bihar government’s decision to conduct a caste survey in the state.
A Bench of Justices B R Gavai and Vikram Nath said there was no merit in the petitions and dismissed them, but said the petitioners could approach the Patna High Court.
The petitioners sought to submit that it was a census and the state had no power to make any laws regarding it. They said the subject of a census falls in the Union list and only Parliament can legislate on it.
The court, however, was not inclined to hear the pleas, following which the petitioners sought to withdraw it. Learned counsel for the petitioner seeks permission to withdraw these writ petitions with liberty to approach the jurisdictional high court. Permission is granted.
The Bench was hearing three petitions on the issue, filed by NGO Ek Soch Ek Prayas, Hindu Sena and an individual, Akhilesh Kumar.
Kumar’s petition urged the court to quash the Bihar government notification, contending that it “accords differential treatment without intelligible differentia”, thereby violating the right to equality before the law. It is also against the basic structure of the Constitution.
The petitioners said the government is under Constitutional obligation to eradicate differences of caste and there is no provision in the Constitution to enable the exercise being carried out by the state.
The ongoing survey in Bihar lists 28 questions, including on caste, gender, religion, educational and financial status. While the Centre had turned down the demand, the survey had the support of all the parties in Bihar.
In November 2014, a three-judge bench of the Supreme Court, comprising then Justices Dipak Misra, R F Nariman and U U Lalit, had set aside an order of the Madras High Court asking the Census department to carry out a caste-wise census.
It is not within the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved.
The Madras HC had pointed to an increase in the population of SCs, STs and OBCs since the last caste census in 1931, and said the percentage of reservation fixed on the basis of the 1931 data had to be proportionately increased by conducting a fresh caste-wise census.
Editorial Page
Pride and Prejudice (Page no. 12)
(GS Paper 2, Judiciary)
The independence of the judiciary is not the private right of judges; it is the right of citizens. Ultimately, judicial legitimacy rests on public confidence in the courts. Judicial primacy in the appointment of judges is seen as a crucial mechanism to achieve judicial independence.
Judges must be independent of the executive and senior judges, and in their ideology. Today, 132 countries have decriminalised homosexuality but only 32 have legalised same-sex marriages.
The reiteration of a five-year-old recommendation of the Delhi High Court collegium (October 13, 2017) about the elevation of Saurabh Kirpal, which was approved by the Supreme Court on November 11, 2021, raises several of these questions.
The recommendation was referred back by the government on November 25, 2022. The SC Collegium reconsidered the matter and in a two-and-half-page long reiteration rejected the government’s objections about Kirpal’s sexual orientation.
The R&AW had expressed concerns about Kirpal’s partner being a Swiss national and that he is “in an intimate relationship” and is open about his sexual orientation in 2019 and 2021.
In April 2021, the Union law minister wrote to the Collegium that though “homosexuality stands decriminalised in India, nonetheless same-sex marriage remains bereft of recognition either in codified statutory law or uncodified personal law in India”. It is not clear whether Kirpal had a same-sex marriage — live-in relationships are, after all, legal. The other concern the minister expressed was about Kirpal’s impartiality in view of his “ardent involvement and passionate attachment to the cause of gay rights” and therefore, the government is unable to rule out bias and prejudice.
In response, the Collegium said the Swiss partner is no threat to national security since even R&AW has not explicitly raised the issue of national security.
The Collegium said Switzerland is a friendly country and even in past, there were several holders of constitutional offices who had a foreign national as a spouse.
As for sexual orientation, it pointed to its judgment in Navtej Singh Johar (2018) that held every individual is entitled to maintain their own dignity and individuality, based on sexual orientation.
The Collegium said Kirpal possesses “competence, integrity and intellect” and his appointment would provide “inclusion and diversity” and “his conduct and behaviour has been above board”. Rarely has there been such a strong recommendation for any candidate.
The Idea Page
Wait for justice three years on (Page no. 13)
(GS Paper 2, Polity and Governance)
It has been three years since the massive, country-wide protests against the Citizenship (Amendment) Act, 2019 (CAA). While the peaceful protests were an exercise of democracy by rights-holding citizens, there were also violent reactions in several states. In the aftermath of the violence, there has emerged a pattern of police work that seems to undermine the principles of natural justice through a process of “unmaking of the victim”.
In Uttar Pradesh since December 2019, and in Delhi since the February 2020 riots, the police have been accused of erasure of victimhood, and the transformation of victims into culprits.
UP, during the anti-CAA protests, was the state that was worst impacted by police brutality, looting and the destruction of property. Among other losses, the violence that ensued led to the deaths of at least 23 Muslim men across the state, of which, 22 died as a result of gunshot injuries.
Following the UP police’s handling of the cases in the districts of Firozabad, Meerut, Kanpur, Bijnor, Sambhal, Muzaffarnagar, Rampur and Lucknow, many of the families of the deceased have lost hope for justice.
In most of the cases, the UP police have filed final reports stating a lack of evidence, or in some instances, they have levied the charge against “four to five thousand unknown protestors”. A common thread in all the cases is the derecognition of the deceased person as having been a victim of crime.
First, the act of protest was itself criminalised. The participants were labelled as miscreants, and the sit-ins as nuisances. Thus, those who died of gunshot injuries were incriminated by virtue of their presence at the protest.
Second, many first information reports (FIRs) were not filed. In the cases of killings, the families of the victims alleged that the police refused to record their FIRs.
Complaints that assigned responsibility for the deaths to police excesses were reportedly turned down. It has been alleged that even in FIRs recorded, the narrative of the incident was marked by omissions.
Express Network
Celebrities and influencers must disclose a material interest in endorsement (Page no. 15)
(GS Paper 2, Government Policies and Interventions)
The government has made it mandatory for social media influencers to disclose their ‘material’ interest such as gifts, hotel accommodation, equity, discounts and awards while endorsing products and services.
As per the fresh guidelines, endorsements must be made in simple, clear language and terms such as “advertisement”, “sponsored”, or “paid promotion” can be used.
Violations can attract strict legal action, including ban on endorsements, said Consumer Affairs Secretary Rohit Kumar Singh.
A new set of guidelines on ‘Endorsement Know Hows — for celebrities, influencers and virtual media influencers (Avatar or computer generated character) on social media platforms’ has also been released by the department.
The guidelines are applicable to celebrities, social media influencers, as well as virtual influencers, the government said. The definition of material benefits include monetary or other compensation; free products with or without any conditions attached, including those received unsolicited; contest and sweepstakes entries; trips or hotel stays; media barters; coverage and awards; or even personal or employment relationship, as per the guidelines.
It also advised the celebrities and influencers to review and satisfy themselves that the advertiser is in a position to substantiate the claims made in the advertisement. It is also recommended that the product and service must have been actually used or experienced by the endorser.
Singh said the guidelines have been issued under the ambit of the consumer law that protects against unfair trade practices and misleading advertisements.
In case of violation, the Central Consumer Protection Authority (CCPA) can impose a penalty of up to Rs 10 lakh, which can go up to Rs 50 lakh for subsequent offences. The authority can also ban the endorser for 1-3 years.
CCPA Chief Commissioner Nidhi Khare added that “misleading advertisements in any form, format or medium is prohibited by law”.
So, individuals who have access to an audience and the power to affect their purchasing decisions, will have to disclose the material connection, as per the new norm.
Explained
What constitutes a trademark violation: Subway vs Suberb in Delhi High Court (Page no. 18)
(GS Paper 3, Intellectual Property rights)
A ‘sub’ is not only a sandwich from Subway, Delhi High Court ruled last week, and dismissed a case of trademark infringement brought by the global fast food chain against Suberb, a Delhi-based restaurant.
The term ‘sub’ is widely used for submarine sandwiches — a cylindrical bread roll slit lengthwise and filled — the court said on January 12.
Subway owns trademarks in the brand name “Subway” as a whole, as well as for its sandwiches named “Veggie Delite” and “Subway Club”. Subway also claimed trademark infringement of its menu card, outlet decor, and recipes by Suberb.
A trademark is a symbol, design, word or phrase that is identified with a business. When a trademark is registered, its owner can claim “exclusive rights” on its use.
The Trademark Act,1999, governs the regime on trademark and its registration. The Act guarantees protection for a trademark that is registered with the Controller General of Patents, Designs, and Trademarks, also known as the trademark registry. A trademark is valid for 10 years, and can be renewed by the owner indefinitely every 10 years.
Using a registered trademark without authorisation of the entity that owns the trademark is a violation or infringement of the trademark.
Using a substantially similar mark for similar goods or services could also amount to infringement. In such cases, courts have to determine whether this can cause confusion for consumers between the two.
There are several ways in which a trademark can be infringed. However, the trademark owner has to show that the trademark has a distinct character.
The law states that a mark is considered deceptively similar to another mark if it nearly resembles that other mark, confusing the consumer in the process. Such deception can be caused phonetically, structurally or visually.
The Supreme Court has said that passing off is a “species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which other has established for himself in a particular trade or business”.
In the Subway case, the HC did not look into the issue of passing off. Justice C Hari Shankar said that to establish passing off, Subway would have to demonstrate that a “person of average intelligence” would be confused between the goods and services of Subway and Suberb because of the manner in which the Suberb mark is used.
This, the court said, was not possible as Subway “commands a reputation in the market”, and that there was no person of average intelligence who wanted to purchase food from Subway but would walk into a Suberb outlet instead.
Women in command roles (Page no. 18)
(GS Paper 1, Women Empowerment)
As many as 108 women officers in the Army are set to be cleared for the rank of Colonel (selection grade) by January 22 by a special selection board, which will make them eligible to command units and troops in their respective arms and services for the first time.
A total of 244 women officers are being considered for promotion against the vacancies — from the batch of 1992 to 2006 — in arms and services including Engineers, Signals, Army Air Defence, Intelligence Corps, Army Service Corps, Army Ordnance Corps and Electrical and Mechanical Engineers.
Until Thursday evening, 80 women officers had been cleared for the rank of Colonel from Lieutenant Colonel by the Special No. 3 Selection Board whose proceedings began on January 9.
Unlike other promotion boards, this one is being held every day for a particular batch, starting with the 1992 batch, and the results are being declared on the same day.
Every officer gets three chances for promotion and thus the reviews, too, are being held within three days of the declaration of the result.
Most importantly, it grants women officers parity with their male counterparts. Earlier, with a limited period career in the force, there were no promotion avenues for women officers to become a Colonel and command a unit like male Army officers.
It is not that women officers did not reach the rank of Colonel or beyond in the past, but they were only in two branches — the Judge Advocate General (JAG) branch and the Army Education Corps — where they were granted permanent commission in 2008.
However, these were staff appointments — which are more administrative in nature — and not purely command appointments in which an officer commands troops on ground.
The Supreme Court’s order to grant permanent commission to women Army officers in February 2020 opened the doors for promotion to women officers across all streams of the Army, except pure combat arms.
With a longer career in the Army, women officers will be considered for promotions, including to the rank of Colonel and beyond.