JURISPRUDENCE

Can Normative Goals of trademark laws resolve the Google AdWords impasse?

Lalu John Philip

Introduction

Advancements in internet technology has brought into fore new forms of trademark infringements. Sometimes, in case of new practices in the internet like pop-up advertisements, meta-tagging, keyword advertising, etc. courts find it difficult to conclude whether such practices constitute trademark infringements.

In this project, the researcher looks at one new practice-Google’s ‘Adwords’ keyword advertising programme- and enquires whether the inconclusiveness of the courts with regard to this programme, can be resolved by looking at the normative goals of trademark laws.

Towards this end, the researcher has formulated the following research questions.

Research Questions

1) What are the functions of trademark laws? What are the reasons for trademark protection?

2) What has been the judicial approach towards deciding the question of whether the new practices in the cyberspace, particularly the keyword based advertising’, is trademark infringement or not?

3) Can the question of whether ‘keyword based advertising practise’ on the net is trademark infringement or not be satisfactorily answered by looking at the foundations of trademark laws?

Functions of Trademarks

Trademark is a designation used to identify and distinguish the goods of a person^[1]. Trademarks emerged originally to indicate the origin of goods[2]. Through this, trademarks also perform a number of equally important functions[3]. McCarthy identifies four functions that trademark performs that are deserving of protection in the courts-to identify one seller’s goods and distinguish them from goods sold by others; to signify that all goods bearing the trademark come from a single, albeit anonymous, source; to signify that all goods bearing the trademark are of an equal level of quality and finally, it functions as a prime instrument in advertising and selling the goods[4].

Reasons for trademark protections

Private law has a normative character and sets its own definite requirements of fairness and reasonableness[5]. In the realm of business and trade, law enforces high standards of fairness or commercial morality through the unfair competition law[6]. This legal standard of fairness is higher now than in the past.[7] Trademark infringement is but a branch of unfair competition. In giving protection to trademarks, law and society are superimposing ethical and moral norms on the competitive process.[8] Fifth Circuit emphasised the connection between commercial morality and law of unfair competition by stating that ‘we are not reluctant to conclude that what is morally reprehensible is also legally impermissible.’[9] Thus commercial morality is a touchstone for unfair competition law[10]. In short, law prevents trademark infringement because it is ‘unfair’ and is against ‘commercial morality’.

There is also an economic rationale for giving trademark protection.[11]McCarthy points out that trademark perform at least two important market functions: (1) it has a quality encouragement function-trademarks create an incentive to keep up a good reputation for a predictable quality of goods. Thus an important purpose underlying trademark law is the protection of trademark owner’s investment in the quality of the mark and the quality of goods the mark identifies; and (2) it reduces customer’s search costs.[12]

Another important reason for protection is the consumer protection policy of trademark law. ‘Today, the keystone of that portion of unfair competition law which relates to trademarks is the avoidance of a likelihood of confusion in the minds of the buying public’.[13]

But it must be remembered that though many modern scholars equate trademark law with consumer protection, trademark law was not traditionally intended to protect consumers. Instead, trademark law, like all unfair competition law, sought to protect producers from illegitimate diversions of their trade by competitors.[14]

Now that the normative foundations of trademark laws have been explained, the paper seeks to explore how the internet revolution has given rise to new forms of trademark ‘uses’ which the court find it difficult to conclude whether such use of trademark names constitutes trademark infringements.

New Challenges to Trade mark protection: Google’s AdWords Programme

In the information age, the trademark infringements have become very sophisticated, so much so that courts find it difficult to determine whether there is infringement at all in the first place. The infringement in cyber space have taken many forms-prior 2000, it was cybersquatting, then came infringement through metatags[15] and now the most controversial ‘infringement’[16] is through ‘keyword triggered advertising programme’. The important keyword advertisement programme in the internet now is ‘AdWords’ by Google[17]. It is also the most important stream of revenue for Google.[18] Essentially, the AdWords program allows advertisers to bid for words or phrases (keywords)-including competitor’s trademarks- related to their businesses that will bring up their websites under "sponsored links" when those keywords are typed into Google's search engine[19]. These sponsored links appear alongside or on top of the organically generated search results. Another related tool is Google’s ‘keyword tool’[20]through which Google itself suggests the advertisers based on the search trend in Google which keyword to bid for[21].

Though many trademark holders see it as infringing their trademarks, courts haven’t conclusively decided whether such practice amount to trademark infringements. Though Google have been sued a number of times, different and often opposite conclusions have been reached by the courts. The approach of the court has been varied and courts have attempted to settle this issue by analogising with offline advertising practices.

Now the paper proceeds to look at how the U.S courts have approached the issue of keyword advertising.

Approach of the Courts

In Geico v. Google[22], court rejected Google's motion to dismiss the petition for failure to state claim stating that petition has successfully alleged trademark use[23].The court held that Internet search engine operators' practice of selling advertising linked to search terms, with links to websites of paid advertisers appearing in users' search results as “sponsored links,” constituted commercial use of trademarked search terms, for purpose of determining whether such conduct was infringing trademarks under Lanham Act. But the court didn’t go into the question of whether there was a trademark infringement as it was a motion to dismiss petition for failure to state claim.

But the New York district court took a completely different view in the recently decided case of Rescuecom v.Google[24]. In this case, the court held that Internet search engine operator's internal use of computer services franchising company's trademark to trigger sponsored links was not a use of a trademark within the meaning of the Lanham Act, absent allegation that search engine operator placed company's trademark on any goods, containers, displays, or advertisements, or that its internal use was visible to the public. Court went on to say that even if Internet search engine operator was capitalizing on the good will of computer services franchising company's trademark by marketing it to competitors as a keyword to generate operator's own advertising revenues, competitors believed operator was authorized to sell company's trademark, or that Internet users viewing competitors' sponsored links were confused as to whether sponsored links belonged to or emanated from company, none of these facts, alone or together, established trademark use; although facts could suffice to satisfy the “in commerce” and likelihood of confusion requirements at the pleading stage, without an allegation of trademark use in the first instance, they could not sustain a cause of action for trademark infringement.

In other jurisdictions also different courts have come to different conclusion. For example, while in France the Court decided against google (Google France v. Viaticum, 2005), in Germany (Nemetschek v. Google) and in Austria (Longevity Health v. Google), the Court held that there was no trademark infringement.[25]

Thus the courts are indecisive as to whether keyword advertising infringes trademark rights or not. Now the researcher attempts to see whether resorting to the normative foundations of trademark laws discussed in the beginning of the paper can provide a satisfactory explanation to this issue.

Looking at normative foundations to resolve the issue

In all these cases, the courts instead of looking at the normative goals of trademark laws, tried to resolve the issue by trying to analogise it with offline infringement[26]. But such an approach is defective not only on the point that such analogies are incomplete and therefore incorrect, but more importantly the issues involved in the cyber space are different and therefore a solution to the issues in cyberspace cannot be resolved by analogising with offline world[27].

In order to consider whether Google’s advertisement programme of selling trademark names as keywords should be allowed to continue or not, we have to necessarily begin by looking at whether Google’s keyword advertisement programme is fair or conforms to commercial morality, since as pointed out earlier in the paper, law prevents trademark infringements because it is unfair and is against commercial morality. Google is a virtual monopoly in its field. Though there are other search engines in the web space, none of them can match Google in the volume of indexed pages or in the user base. The Google search has become a primary online activity[28] and control the access to information in the net.[29]Because of this special status enjoyed by Google, it should be bound by a higher degree of morality and fair business practice. Unfortunately, through its Adwords programme, Google is exploiting the monopoly it enjoys. A company builds up its goodwill and brand name after years of investment by way of providing quality goods/services and by investing in advertisements. But Google, by selling the trademark name of company as keyword to its competitors, is actively contributing to divert its customers to the competitors. This is unfair on the trademark holder who has spent millions of dollars in building up the trademark name. Also when a web user searches in Google with the sole purpose of reaching to the trademark holder company’s site, Google affects his last minute decision making process by recommending him the competitor’s websites.

From an economic point of view also, the Google’s advertising program cannot be justified. The keyword advertising thwarts quality encouragement function of trademarks because now to reach to customers, competitors will not invest on building brands by improving quality of goods, but will only be spending money to bid for competitor’s brand name as ‘keyword’. Economic Analysis also maintains that if all take a free ride on the successful seller’s mark and reputation, there is no incentive to distinguish one’s own goods and services[30]. Google’s keyword advertising program is allowing exactly this kind of free-riding to happen.

There are those who suggest that Google’s practice is not a ‘trademark use’ because consumers are not confused and also that trademark use should be narrowly constructed so as to exclude contexts like keyword advertising as they promote consumer choice[31]. But what is ignored in these statements is that trademark laws were not intended to protect customers. It was originally sought to protect the producers from illegitimate diversions of their trade by competitors. The Google thus infringes the trademarks by allowing diversions to its advertisers when a user uses Google to get to the website of the trademark holder[32].

Conclusion

This article has shown that normative foundations of trademark laws can successfully solve the perplexity judges find themselves in while deciding whether the keyword advertising programme as practiced by Google constitutes trademark infringement or not.

Google might be able to come out of the law suits against them successfully by showing that the requirements for infringement under Lanham Act haven’t been satisified, But if it is to be asked whether the Keyword advertising which use trademark names ought to be banned, all the normative foundations of trademark law points to one direction-that it is an unfair business practice.
Bibliography

Articles:

1. Mark P. McKenna, “The Normative Foundations of Trademark Law”, 82 Notre Dame Law Review 1839 (2007).

2. Paul Bonewitz, “Beyond Confusion: Reexamining Trademark Law's Goals in the World of Online Advertising”, 81(01) St. John's L. Rev. 899 (2007)

3. Stephanie Yu Lim, “Can Google Be Liable For Trademark Infringement? A Look At The "Trademark Use" Requirement As Applied To Google Adwords”, 14(01) UCLA Ent. L. Rev. 265 (2007).

4. Urs Gasser, “Regulating Search Engines: Taking Stock And Looking Ahead”, 8(01) Yale J. L. & Tech. 201 (2006).

5. Peter Benson, “Philosophy of Property Law”, in The Oxford Handbook of Jurisprudence, (Jules Coleman and Scott Shapiro eds, Oxford: Oxford University Press, 2002)

Books

1. Matthias W. Stecher, “Webvertising, Unfair Competition and Trademarks on the internet”, AIJA Law Library, 1999

2. J. Thomas McCarthy, “McCarthy on trademarks and unfair competition”. 4th ed. [St. Paul, MN] : West Group, c1996

3. Morcom, Roughton et al, “The Modern Law of Trademarks”, (London: Butterworth Publications, 1999)

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[1] Sec.1(1) of Trademarks Act,1999 defines ‘trademarks’ as: “any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings. A trademark law, in particular, consists of words (including personal names), designs, letters, numerals or the shape of goods or their packing.”

[2] Morcom, Roughton et al, The Modern Law of Trademarks, (London: Butterworth Publications, 1999).

[3] As Memorandum on the creation of an EEC trademark (Bulletin of the European Communities, Supplement 8/76 states -“while quality function (of trademarks) predominates the mind of the consumer and publicity function predominates in the mind of the producer, but so far as legal aspect is concerned, the decisive criterion is the function of the mark as an indication of origin…only if the proper purpose of the trademark is maintained, can it fulfill its further role as an instrument of sales promotion and consumer information.” (Emphasis the researcher’s).

[4] J.Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, ( 4th ed. St. Paul, MN : West Group, 1996). (Henceforth referred to as McCarthy)

[5] Peter Benson, “Philosophy of Property Law”, in The Oxford Handbook of Jurisprudence, (Jules Coleman and Scott Shapiro eds, Oxford: Oxford University Press, 2002) at p.753.

[6] In Dior v. Milton, 9 Misc. 2d 425, wherein the Court reasoned that : “The theoretic basis of the law of unfair competition is obscure, but the birth and growth of this branch of the law is clear. It is a persuasive example of the law’s capacity for growth in response the ethical, as well as economic needs of society. As a result of this broad background, the legal concept of unfair competition has evolved as a broad and flexible doctrine with a capacity for further growth to meet changing conditions.”

[7] McCarthy has quoted from Restatement of Torts and stated that ‘unfair competition law enforces increasingly high standards of fairness or commercial morality in trade’. Also see the quotation in the above footnote.

[8] Mccarthy §2:9

[9] Chemical Corp. of America v. Anheuser-Busch, 306 F.2d 433, cited from McCarthy at § 1:18

[10] McCarthy § 1:18

[11] As Posner points out ‘trademark law can be best explained on the hypothesis that the law is trying to promote economic efficiency’, Landes & Posner , “The Economics of Trademark Law”, 78 Trademark Rep. 267 (1988).

[12] McCarthy §2:5; Also see Paul Bonewitz, “Beyond Confusion: Reexamining Trademark Law's Goals in the World of Online Advertising”, 81(01) St. John's L. Rev. 899 (2007).

[13] McCarthy §2:8.

[14] Mark P. McKenna, “The Normative Foundations of Trademark Law”, 82 Notre Dame Law Review 1839 (2007).

[15] To understand more about how court have dealt with the issue of infringements through meta-tags refer to Brookfield Communications, Inc. v. West Coast Entertainment Corp, 174 F.3d 1036 (9th Cir. 1999).

[16] Within quotations because there is no agreement as to whether the practice is infringement or not.

[17] For more information on how Adwords work see - http://adwords.google.com (last visited on: November 17, 2007).

[18] More than 97% of the revenue of google comes through advertisement Source: Google, Inc., 2004 Income Statement (2005), available at http://investor.google.com/findata.html .

[19] For example, if you are a competitor of dell laptops (say ‘Bangalore laptops’), you will bid for and buy keywords like ‘dell’ ‘dell laptops’ etc. Thus, when a user searches for dell website in Google, either on top or along side the organic search results, your website’s address will appear as ads (with such descriptions as buy laptop at cheapest rate) which looks exactly similar to the search results.

[20] https://adwords.google.com/select/KeywordToolExternal?defaultView=2>

[21] For example if you type ‘soft drinks’ and click the get keyword ideas button, Google will suggest such keywords as ‘coca cola’, ‘pepsi soft drinks’, ‘fanta soft drinks’ etc which are all trademarks.

[22] 330 F.Supp.2d 700.

[23]To prove trademark infringement under the Lanham Act, a plaintiff must establish that: (1) it has a valid mark that is entitled to protection under the Act; and that (2) the defendant used the mark, (3) in commerce, (4) in connection with the sale or advertising of goods or services, without the plaintiff's consent.( Trademark Act of 1946, §§ 32(1)(a), (5), 43(a)(1))

[24] 456 F.Supp.2d 393; 2007 case.

[25] Rose Hagan (Senior Trademark Counsel, Google Inc.), ‘Keyword advertising and Google’s trademark policy’, State Bar of California Internet Conference oct 2005. from www.fdfdsfdsf.com last visited on: 15^th November 2007.

[26] In 1-800 Contracts v. whenU.com, 414 F.3d 400, wherein the court analogised keyword advertisement to product placements in a drug store.

[27] For example, when the issue of cybersquatting was at large, analogizing the practice with real world (argument that in real world properties are sold on a first-come first serve basis) have led to disastrous results. However, the Congress clearly saw the different issue involved in the case of cybersquatting and passed the anti-cybersquatting laws.

[28] ‘Googled’ is now a verb in the revised Oxford Dictionary.

[29] Urs Gasser, “Regulating Search Engines: Taking Stock And Looking Ahead”, 8(01) Yale J. L. & Tech. 201 (2006).

[30] McCarthy on trademarks §2:4 , See also McCarthy, “Compulsory Licensing of a Trademark: Remedy or Penalty?”, 67 Trademark Rep. 197.

[31] Stephanie Yu Lim, “Can Google Be Liable For Trademark Infringement? A Look At The "Trademark Use" Requirement As Applied To Google Adwords”, 14(01) UCLA Ent. L. Rev. 265 (2007).

[32] The argument that customers are not confused in itself is not valid because it has been proved that awareness among consumers on the distinction between organic results and sponsored links are low. See, Paul Bonewitz, Paul Bonewitz, “Beyond Confusion: Reexamining Trademark Law's Goals in the World of Online Advertising”, 81(01) St. John's L. Rev. 899 (2007).

Right to emergency care hoax mail??

Recently a particular email, which apparently had the consequence of augmenting the patriotic feelings of many Indians, has been flooding many inboxes. The content of this particular email is as follows.

"Right to Emergency Care:

Date Of Judgment: 23/02/2007.

Case No.: Appeal (civil) 919 of 2007.

The Supreme Court has ruled that all injured persons especially in thecase of road traffic accidents, assaults, etc., when brought to ahospital / medical centre, have to be offered first aid, stabilized andshifted to a higher centre / government centre if required. It is onlyafter this that the hospital can demand payment or complete policeformalities. In case you are a bystander and wish to help someone in anaccident, please go ahead and do so. Your responsibility ends as soonas you leave the person at the hospital.
The hospital bears the responsibility of informing the police, firstaid, etc.

Please do inform your family and friends about these basic rights sothat we all know what to expect and what to do in the hour of need.Please not only go ahead and forward, use it too!!!!"

While those whose degree of patriotism is determined by the frequency of such emails coming to their inbox daily (which in turn i reckon is due to their insecurity feelings) wanted to readily believe this mail, some others tried to look at this particular email objectively and sought to look at the bona fides of the email. Accordingly it’s been concluded that this email also is a hoax.
They have reached this conclusion by searching for the original judgement using the case no: given above (full judgements of all SC cases are available from SC website). Consequently they have found out that case no: Appeal (civil) 919 of 2007 deals with a completely different subject. (It is about a no-profit charitable hospital based in Ghanapur, Andhra Pradesh having claimed exemptions on imported medical equipments, based on Para 2 of Notification No. 64/88-Cus, which were granted. But since according to the classification of hospitals by the notification, it fell under Para 3, it also applied for exemption under the same, after the first exemption was granted. On rejection of the second application, they filed the case in the AP High Court, which again didn’t go in their favour and hence this case was filed in Supreme Court.)
I will add my own reason for concurring with their finding out that the mail is hoax. Such cases which go to the SC wanting to enforce the fundamental rights will be writ petitions and not Appeal(civil) cases as is the case in the given mail. So without further research, one could have safely concluded that the given mail is a hoax.

But for all those ‘patriotic’-minded people out there who felt deceived by the present mail, don’t worry….continue keeping ‘jai hind’ as your signature in your emails and blog postings..for, our own SC judgement has arrived at more or less the same conclusions 18 years ago..yes, it is true.. you can verify it on your own.. and I’ll try to explain it in layman jargon as far as possible.
Two important judgements relating to this are Paramanand Katara v. Union of India (Writ Petition (Criminal) No. 270 of 1988) and later in Paschim Mazdoor Samiti v. State of WB (Writ Petn. (Civil) No. 796 of 1992).
In Paramanand Katara, the SC has held that "Article 21 (which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law) of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasised and reiterated with gradually increasing emphasis that position. A doctor at the Government hospital positioned to meet this State obligation is, therefore, duty-bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. On this basis, we have not issued, notices to the States and Union Territories for affording them an opportunity of being heard before we accepted the statement made in the affidavit of the Union of India that there is no impediment in the law. The matter is extremely urgent and in our view, brooks no delay to remind every doctor of his total obligation and assure him of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before Him • either by himself or being carried by others. We must make it clear that regulations cannot operate as fetters in the process of discharge of the obligation and irrespective of the fact whether under instructions or rules, the victim has to be sent elsewhere or how the police shall be contacted…."
Again in Paschim Mazdoor Samiti v. State of WB (Writ Petn. (Civil) No. 796 of 1992), the SC has held that
"The Constitution envisages the establishment of a welfare state at the federal level as well as at the state level. In a welfare state the primary duty of the Government is to secure the welfare to the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of the Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various Government hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed under Article 21 was by officers of the State in hospitals run by the State the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh."

Hence it can be concluded that though the mail itself was a hoax, its contents were true indeed to an extent. Thus you have a right for emergency care in government hospitals by virtue of your fundamental right to life and against private hospitals because of professional obligation of all doctors.
So..Jai Hind.

Constitutional law-Central and state jurisdiction in the area of criminal law and administration

Constitutional Law

Central and state jurisdiction in the area of criminal law and administration

by,

Lalu John Philip, I year B.A.LLB, NLSIU.

Introduction

In a federal system, where the functions and powers are divided between the central and regional governments, it is important to determine the scope and extent of legislative powers that rests with the centre and the states. The framers of our constitution have provided specifically a detailed list of subject matter over which the central or/and state governments can legislate.¹But the problem with providing such an elaborate lists of subjects in a constitution is that, as K.C. Wheare points out, ‘it is certain that disputes will arise about whether a particular matter falls under the headings of one list or of the other, for words are wide and ambiguous, and it would be remarkable if, in drawing up two or three lists, there was not some possibility of overlapping between them’.²

Thus the purpose of this paper is to find out whether there are any such overlapping between the entries relating to criminal law and administration and also whether there are any ambiguities to the meaning of the words used in the lists. In short, the paper purports to delineate the scope and extent of the central and state jurisdiction in the area of criminal law and administration.

Relevant Entries

The jurisdiction of centre and state in matters relating to criminal law and administration is provided in entry 1 and 2 of List III. These entries run as follows.

Entry 1: ‘Criminal law, including all matters included in the Indian Penal Code at the commencement of the Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.’

And entry 2 provides that

‘Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.’

The implication of the fact that criminal law is a subject matter of concurrent list is that states are also competent to legislate with respect to matters in this list subject to the rule of repugnancy in Art.254.³

Criminal law can be defined as ‘that part of the law which deals with the definition, and punishment of crime and with the procedure for the trial of persons suspected or accused of crime: that branch or division of law which defines crimes, treats of their nature, and provides for their punishment. The term “criminal law” is sufficiently comprehensive to cover all of that branch of jurisprudence which deals in any way with crimes and punishments.’⁴

The head of legislation ‘criminal law’ in item 1 of List III is of wide significance and comprehensive in its scope. Under this head the state legislature and Parliament have competence to legislate upon all matters which relate to criminal law, so long as the laws so enacted do not affect offences against laws expressly excluded under the Entry itself.⁵

The words following the expression ‘criminal law’ enlarge the scope to any matter which can validly be considered to be criminal in nature. The exercise of power under this entry, therefore, has to be construed liberally so as to give full play to the legislative activity. The width of the entry, however, is controlled by the latter expression which takes away the power of either legislature to legislate in respect of offences against laws with respect to any of the matters specified in List I or list II.⁶

Thus when the competence of Gujarat State legislature to pass Gujarat Lokayukta Act, 1986 was challenged, the Court held that the impugned Act, in pith and substance is a law to provide for investigations or enquiries into the allegations against public functionaries falling within the domain of Criminal law including the Indian Penal Code and actionable wrongs. The Act squarely falls under entries 1 and 8 of the concurrent list, and not under entry 97 of the union list. Therefore, the court held that the state legislature was competent to enact it.⁷

In short, the stand of the court can be said as follows: ‘It is well established that the widest amplitude should be given to the language of the entries. But some of the entries in the different lists or in the same list may overlap or may appear to be in direct conflict with each other. It is then the duty of this court to reconcile the entries and bring about a harmonious construction.’⁸

The potential of conflict or overlap in this entry lies in the fact that it excludes any of the offences against laws with respect to any of the matters specified in List I or List II. It is quite possible that, central legislature may not be able to legislate on a criminal matter as it might be a matter specified in List II. Thus a legislation by union parliament to be valid under this entry must satisfy two requirements; one, it must relate to criminal law and two, the offence should not be such as has been or could be provided against laws with respect to any of the matters specified in List II.

Most often the entry in list II which has the potential to come into conflict with the entry 1 of concurrent list is that of ‘public order’. This is because public order is so closely related to (criminal) law and administration, that when the centre brings about a piece of legislation related to criminal law, question arises as to whether that legislation is a subject matter under ‘public order’ or not. If it can be proved that it is a legislation relating to ‘public order’, then the union parliament would not have the competency to pass that particular legislation.

Thus one of the two issues addressed in this paper is what is the scope of entry 1 of list II, i.e. Public order (but not including the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power) with reference to the entry 1 of list III.

Public order and criminal law

To understand what part of criminal law comes under the purview of public order, firstly it is important to understand the meaning attributed to public order by courts.

In Romesh Thappar v. The State of Madras⁹, the SC while discussing the validity of Madras Maintenance of Public Order Act, 1949, defined the meanings of public order and public safety. The court held that "public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the government which they have established. Although section 9(1-A) of the impugned Act refers to "securing the public safety" and "the maintenance of public order" as distinct purposes, it must be taken that "public safety" is used as a part of the wider concept of public order, for, if public safety were intended to signify any matter distinct from and outside the content of the expression "public order," it would not have been competent for the Madras Legislature to enact the provision so far as it relates to public safety. Quoting Stephen in his Criminal Law of England [Vol. II, p. 242], the court observed that "Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it. Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code. The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the Seventh Schedule, which refers to the "security of a State" and "maintenance of public order" as distinct subjects of legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind.

The court in this case held the impugned section of the above Act void and unconstitutional by opining that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order.

The distinction was made clearer in a very similar case¹⁰, in which the court by applying the opposite concepts, explained these two terms. Thus the court opined that while 'public disorder' is wide enough to cover a small riot or an affray and other cases where peace is disturbed by, or affects, a small group of persons, 'public unsafety' (or insecurity of the State), will usually be connected with serious internal disorders and such disturbances of public tranquillity as jeopardize the security of the State.

In Ram Manohar Lohia v. state of Bihar¹¹, SC court made another distinction-between public order and law and order. In this case, an order was passed by the District Magistrate directing detention of petitioner under Rule 30 (1) (b) [which entitled him to prevent subversion of public order] with a view to prevent him from acting in any manner prejudicial to public safety and maintenance of law and order. Court observed that ‘public order’ and ‘law and order’ are not same thing. An Order of detention to prevent acts prejudicial to ‘public order’ might be justifiable but a similar Order to prevent acts prejudicial to ‘law and order’ would not be justified by Rule. ‘It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules’.

Thus if we analyse the meanings given to public order by courts, we can see that it does not include law and order nor does it include security of the state. This becomes problematic, because then the question arises who has the jurisdiction over law and order. One possible interpretation that can be given is that after carving out public order and security of state from law and order, what remains of it will go under criminal law and administration.

Decision of the Court in Kartar Singh v. State of Punjab

The scope of the entry “public order” and its relation to entry regarding criminal law was explained in detail by the SC in the case of Kartar singh v. state of Punjab¹². In this case, the question before the five-judge bench was the constitutional validity of Terrorist and Disruptive Activities (prevention) Act of 1985 passed by the parliament.

R.M Sahai J. pointed out the issue very clearly. Terrorist or disruptive activity is criminal in content, reach and effect. The central and state legislatures both, therefore, are empowered to legislate in respect of such an activity under entry 1 of concurrent list. But the entry carves out an exception by precluding either of the legislatures from exercising the power if it is in respect of offence against laws with respect to any of the matters specified in List II or I. The controversy thus narrows down to if the legislation relating to TADA can fall in entry 1 of List II then the state legislature would have competence to make a law under this entry and create offences for violation of such law under item 64 of List II and central legislature would be precluded from making any law. That would happen if it can be said that law relating to TADA is either in fact, or in pith and substance a law relating to, ‘public order’.

None of the judges disputed the fact that terrorist activities would not come under the ambit of public order. But while majority traced the competency of parliament to entry 1 of List I (Defence of India), judge Sahai held that the central legislation could be upheld under entry 1 of List III.

The researcher believes that the approach adopted by J.Sahai is more correct because terrorism is criminal in nature and when an entry for criminal law is provided specifically in the concurrent list, it is unnecessary to give a wide interpretation to entry 1¹³ of List I.

Another advantage of tracing the competence to concurrent list is that, the states will also have the power to deal with terrorism or other similar problems (naxalism?) that may affect the states.

He reached this conclusion by distinguishing terrorism from mere public disorder. “Is the distinction between public order as visualised in Entry 1, list II and TADA of degree only or are they substantially different? ‘Terrorism constitutes a direct repudiation of liberal and human values and principles, and that terrorist ideology is…..constantly deployed in a struggle to defame and discredit democracy.’ Terrorism whether it is sponsored or revolutionary or even political by its nature cannot be considered to be public order as explained by this court. Conceptually, public order and terrorism are different not only in ideology and philosophy but also in cause or the mens rea the manner of its commission and the effect or result of such activity. Public order it is well understood and fully comprehended as a problem associated with law and order. Terrorism is a new crime far serious in nature, graver in impact, and highly dangerous in consequence. One pertains to law and order problem whereas the other may be political in nature coupled with unjustifiable use of force threatening security and integrity of the state.”

Jurisdiction in the area of criminal administration

In the second part of the project, the researcher purports to analyse the scope and extent of the jurisdiction of state and parliament in the area of criminal administration. In this project only one aspect of it, namely the jurisdiction of states and parliament in the matter of suspension, remission and commutation of sentences, is analysed.

Under Art.161, the state government has the right to remit or commute the sentence of any convict¹⁴.Also, entry 4 of list II provides that “ Prisons, reformatories, Borstal institutions and other institutions of a like nature, and persons detained therein; arrangements with other States for the use of prisons and other institutions”. But the problem to be considered is in case of a transferred prisoner, which is the appropriate government to remit or commute the sentence-is it the government who convicted the prisoner or is the government in whose prison, the prisoner after transfer is lodged? The Punjab & Haryana High Court considered this issue in detail in the case of Jhanda Singh v. State of Punjab¹⁵. The Court said that, the transferee state cannot rely on the phrase ‘any person’ in Art.161 and say that the phrase includes transferred prisoners also. If that were the case, then it would also cover even the case of a convict who after jumping the bail absconds and enters the territory of the other State. But this definitely is not the case and therefore the entry has to be reasonably construed.

But the Court said that by virtue of sec.432 and 433, the appropriate government has the power to remit and commute the sentences of any convict. And by constructing 432(7)¹⁶ which defines what ‘appropriate government’ means, the power to remit or commute the sentence of a convict lies with the state within which the offender is sentenced.

Then again, no state governments does not have extra-territorial jurisdiction. But the court said that by virtue of subsection (2) of Section 3¹⁷ of the Transfer of Prisoner’s Act, 1950¹⁸, “the writ, warrant or order of a Court by which he has been committed, if happens to be located in a State other than the State in whose prison the prisoner concerned is lodged, are afforded extra-territorial operational efficacy.”

Another question to be considered is the competence of the parliament to legislate in matter relating to suspension, remission and commutation of sentences. Does it come under criminal procedure or is it a matter that related to prison or prisoners as provided in entry 4 of list II?

Thus in Maru ram v. Union of India¹⁹, the petitioners challenged the vires of Section 433A of the Criminal Procedure Code (Procedure Code, for short) which compels “'caging' of two classes of prisoners, at least for fourteen eternal infernal years, regardless of the benign remissions and compassionate concessions sanctioned by prison law and human justice.” But Court rejected this contention saying that “Entries 1 and 2 in List III (especially Entry 2) are abundantly comprehensive to cover legislation such as is contained in Section 433A, which merely enacts a rider, as it were, to Sections 432 and 433(a). We cannot read into it a legislation on the topic of 'Prisons and Prisoners'…………. This limited prescription as a proviso to the earlier prescription relates to execution of sentence, not conditions in prison or regulation of prisoner's life.”

The term ‘criminal procedure’ in entry 2 is intended to signify all that was being treated as part of criminal procedure in the Acts of the Indian legislatures prior to the enactment of the constitution. Not only matters strictly relating to procedure but all matters which, though not matters of procedure, stood included within the Criminal Procedure Code at the start of the Constitution would be subjects of concurrent legislation.²⁰

Conclusion

In this project, the researcher addressed two issues related to the jurisdiction of centre and state in the area of criminal law and administration. One, the apparent conflict between the entry ‘public order’(entry1 of state list) and ‘criminal law’ (of concurrent list). Through case analysis, the researcher concluded that serious offences which, though may affect public order, are actually a threat to the security of the state and since they are criminal in content, the jurisdiction to make laws on them should be traced to criminal law of concurrent list so as to enable both central and state governments to legislate on them.

The second issue, broadly, was regarding the jurisdiction of states and centre to deal with ‘prisoners’. But the specific issues dealt with were 1) which state has the power to remit or commute the sentence of a transferred prisoner and 2) does the centre has the competence to provide for minimum number of years to be served by the prisoners undergoing life imprisonments. The researcher found that in the case transferred prisoners, it is the state who has convicted him has the right to remit/commute his sentence and not the state in whose prison he is lodged. And the Centre has the jurisdiction to provide the minimum term to be served by the prisoners as it is a matter relating to criminal procedure and not one that relates to ‘prison and prisoners’.

1 Art.246 read with schedule VII

2 K.C.Wheare, ‘Modern Constitutions’,( Bombay:Oxford University Press, 1984)

3 M.P Jain

4 P Ramanatha Aiyar, “The Law Lexicon”

5 (1966) 2 M.L.J. 194

6 Per R.M. Sahai J. in Kartar Singh v. State of Punjab 1994 CRI. L. J. 3139.

7 Rajendra Manubhai Patel V. State of Gujarat AIR 1992 Guj. 10

8 Harakchand Ratanchand Banthia v. Union of India, AIR 1970 SC 1453.

9 MANU/SC/0006/1950.

10 Brij Bushan v. state of Delhi AIR 1950 SC 129.

11 AIR 1966 SC 740

12 1994 CRI. L. J. 3139.

13 Defence of India and every part thereof including preparation for defence and all such acts as may be conductive in times of war to its prosecution and after its termination to effective demobilisation.

14 Art.161 provides that “The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”

15 AIR 1976 P&H 358

16 This section provides that (a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

17 “The officer in charge of the prison to which any person is removed under sub-section (1) shall receive and detain him, so far as may be, according to the exigency of any writ, warrant or order of the court by which such person has been committed, or until such person is discharged or removed in due course of law.”

18 Which has been passed by the Parliament under entry 2 and 4 of list III

19 MANU/SC/0159/1980

20 AIR 1949 Mad. 307