Thursday, May 26, 2011


Indian evidence act contains a set of rules and allied issues governing admissibly of any evidence in the Indian courts of law originally passed by the British parliament. The Indian evidence act contains eleven chapters and 167 sections and came to force 1st September 1872, during the time in which India was a part of British Empire. It was framed by sir James Fitz James Stephen .Now in this 21st century law of evidence had become one of the most important laws administered by the Indian civil and criminal courts. It is playing an imperative role to determine the question of relevance or irrelevance of evidence that explicitly supports judgments.
The word, evidence is derived from the Latin word evidence or evidere, which means “ to show clearly; to make clear to the sight; to discover clearly; to make plainly certain; to ascertain; to prove”.
 The main principle which underlie the law of evidence are-
 (1) Evidence must be confined to the matter in issue;
 (2) Hearsay evidence must not be admitted; and
(3) Best evidence must be given in all cases.
The evidence was classified into different types in the Indian evidence act……
      (a) Best and oral evidence,
      (b) Circumstantial evidence,
      (c ) Direct evidence,
      (d) Hearsay evidence,
      (e) Corroborative evidence,
      (f) Documentary evidence,
      (g) Primary and secondary evidence,
      (h) Real evidence
Oral evidence
Oral evidence perceived something by that sense by which it is capable of perception, should make the statement about it and no one else. It is explained under section 60 of the Indian evidence act. Oral evidence must, in all cases, whatever, be direct; that is to say; If it refers to a fact which could be seen, it must be the evidence of a witness who says he heard it;  If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;  If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinion or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds - Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.

Real evidence
It is also explained under section 60 of the Indian evidence act
“Provided also that, If oral evidence refers to the existence or condition of any material things other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection.” For e.g. weapons, scar of wounds or other injury like loss of leg or hand.”
Circumstantial evidence:
  Circumstantial evidence means the evidence of circumstances and is sometimes referred to presumptive evidence:
A is charged with the murder of B. At the trial a witness C , on behalf of the prosecution, gives evidence that he saw A running away from the  murder place, with blood stained knife in his hand, evidence given by C will be called circumstantial evidence.

Hearsay evidence:
     The reasons why hearsay evidence is not received as relevant evidence are: (a) the person giving such evidence does not feel any responsibility. If he is concerned he has line of escape by saying” I do not know, but so and so told me.” (b) Truth is diluted and diminished with each repetition: and , (c ) if permitted, gives ample scope for playing fraud by saying,” someone told me that..” It would be attaching importance to a false rumor flying from one foul lip to another.
Corroborative evidence:
       Sec 156 and 157 says: When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or place at which such relevant fact occurred, if the court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies. A sees B hit by a car and run over. The car does not stop but A notes the number He lodges a complaint to police. Police arrests driver and put him for trial rash and negligent driving  A is the principle witness, when he gives oral evidence but at the end, the complaint given by him to the police, shown to him regarding accident and if he says yes, it is marked as exhibit, it is corroborative evidence.

Documentary evidence:
Documentary evidence is defined in the Act as:  All documents produced for the inspection of the court. The purpose of producing document, is to rely upon the truth of the statement contained therein. This involves, When the document produced in the court, the examination of  three questions: (i) is the document genuine, (ii) what are its contents, and (iii) are the statement  in the document true?
      Documents are divided into two categories, public and private.
Sec 74-  The following document are public documents..
   (1) Document forming the acts or records of the acts-
  1. Of the sovereign authority
  2. Of  official bodies and tribunal, and
  3.  Of public officers, legislative, judicial and executive, of any part of India or of the commonwealth, or of a foreign country;
  (2) Public record kept in any State of private document.
         The kind of documents that are mentioned in sec 74(2) are documents made between private parties, but a record of them is kept in the registration office under the registration act, for example wills and sale deeds.
  Sec. 75 says –” all other documents are private.”
Sec 76. Certified copies of Public Documents - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees there for together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
       Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents or parts of the public documents of which they purport to be copies.
    Primary and secondary Evidence:
     There is an original document; a photograph is taken and a manuscript is made from the photograph, and compare either  with the original or  photograph. The original is primary evidence. The photograph and copy  is secondary evidence coming under Sec 63(2). That  requires that the first copy should have been made by a mechanical process ensuring the accuracy of the copy.
     Section 65 specifies in what cases secondary evidence will be received. Example- when a original is shown or appear to be in possession or power- of  the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in sec 66, such person does not produce it. When the original document is lost or destroyed then secondary evidence of the contents of the document is admissible.
Admissibility of electronic records:
     (sec 65 A and B) Any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (computer output) shall be deemed to be also a document. Provided the computer output was produced by the computer during the period over which the computer was used regular or process information.
Direct evidence:
Direct evidence is referred to sometimes as original. A is charged with the murder of B by stabbing him. C,D.E,F,G and H are witnesses. At the trial a witness C says he saw A stab B. D says he heard B cry out that A was stabbing him. E says that A saw running with blood stained knife. F says he saw A washing blood stained clothes. G, who is doctor says that the knife found in A’s possession might be caused the wound. H says he heard from C’s evidence is direct evidence 
Coming to conclusion the Indian evidence act This Act is not applicable for domestic tribunals (such as Industrial Tribunal, Administrative Tribunal etc.) and non-judicial proceedings (such as Departmental inquiries, affidavits presented to a Court etc., proceedings under defense discipline acts)tribunals do not follow law of law of evidence because they believe in natural justice.
Indian Evidence Act applies to both Civil and Criminal proceedings. However, some sections are applicable only to Civil, some only to Criminal and some to both. The Act has put more burden of proof on the prosecution to provide the guilt of the accused. The degree of proof required is stricter in criminal proceeding than in a civil proceeding. In a criminal proceeding, the accused must be proved beyond all reasonable doubts.
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Wednesday, May 25, 2011

Summary on Passport Act, 1920

Passport (Entry into India) Act, 1920 (No. 34 of 1920)

The Passport (Entry into India) Act was enacted in 1920.The main aim of the act was to take power to require the passports of persons entering in India and is extended up to the whole India. The entry prescribed in this act means entry through all the means either sea water or air. [1]This act under the power of central government makes strict provision to prohibit the entry of person to India from foreign countries without a passport.
The passport act 1920 also grant punishments of offenses under any rule or order made by this act is again convicted of an offense under this act shall be punishable with double penalty provided for the later offense. The Passport(Entry into India)Act,1920 also granted the power to police officers not below the rank of sub-inspector, and any officer of the customs department to arrest any person without warrant who has contravened any rule or order made under section 3 of Passport(Entry into India)Act,1920.[2]
The Central Government may, by general or special order, direct the removal of any person from India, who in contravention of any rule made under Section 3 prohibiting entry into India without passport, has entered there in, and thereupon any officer of the Government shall have all reasonable powers necessary to enforce such direction.

Vishnu Devaraj. J
3rd Semester Student
National University of Advanced Legal Studies
Kaloor, Kochi - 682 017

[1] 2. Definitions. In this Act unless there is anything repugnant in the subject or context, -
"Entry" means entry by water, land or air
"Passport" means a passport for the time being in force issued or renewed by the prescribed authority and satisfying the conditions prescribed relating to the class of passports to which it belongs; and
"Prescribed" means prescribed by rules made under this Act.
[2] 4.Power of arrest: (1)Any officer of police, not below the rank of a sub-inspector and any officer of the Customs Department empowered by a general or special order of the "[Central Government][7] in this behalf may arrest without warrant any person who has contravened or against whom a reasonable suspicion exists that he has contravened any rule or order made under section 3.
(2)Every officer making an arrest under this section, shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case or to the officer in-charge of the nearest police station and the provisions of section 61 of the Code of Criminal Procedure, 1898 (5 of 1898) shall, so far as may be, apply in the case of any such arrest.

Saturday, May 21, 2011

Armed Forces Special Powers Act

             Armed Forces Special Powers Act was drafted in the year 1958 and as the title refers provides special powers to the armed forces of the Indian union in areas where the central government may notify as disturbed. Presently the act applies to the north-eastern states of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura. At the wake of rising insurgencies in the state of Jammu and Kashmir during the 1980s the act was extended and applied in the state full fledged. The history of the original idea behind this act dates back to the colonial period when the British wanted an effective tool to control acts against the British Raj specially the quit India movement. The same model has been applied in this act to control insurgencies and therefore avoid secession of any state from these disturbed areas. Though the human rights violations are the only highlighted issues regarding the act, there has not been much mention on the flip side to the growing cry for the withdrawal of the act such as exposure of the army officials to any acts committed by them being termed as violation of human rights and a legal suit can be initiated and no army unit will work in a condition where there is no legal protection for its personnel and the worst case scenario being a state of anarchy prevailing in these states where the army refuses to fight. So a balance of convenience for both the people in these areas and also the army personnel should be maintained through a less repressive act. Getting into the details of the act, it provides for any army personnel posted in a disturbed area to:

“1."Fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law" against "assembly of five or more persons" or possession of deadly weapons.

2. To arrest without a warrant and with the use of "necessary" force anyone who has committed certain offenses or is suspected of having done so

3. To enter and search any premise in order to make such arrests.

4. No legal consequences will be met by these officers who act under the law.

5. For an area to be declared disturbed there must be a deterioration of law and order situation in the area and the governor has the power to request the help of the central government to assist the state in maintaining it. Now the power to determine a disturbed area is also vested with the central government”

As a result of increasing pressure by the United Nations and protests carried out by local activists the Prime Minister has acknowledged that there are some ‘legitimate grievances’ against the act and assured that it will be surely dealt by the government. Upon this a five member committee headed by former justice Jeevan Reddy was constituted with a mandate of making recommendations to amend the provisions of the act to meet the government’s obligation of preserving human rights or repeal the act and bring in a new act with the above mentioned feature which it acknowledged the present act lacked. The committee did come up with the recommendation to repeal the act but without mentioning any substantial benefits for the people. The government till now have not acted on the recommendations and it was also made clear that it had no intention on replacing or diluting the act since an army unit cannot work under circumstances where its prone to legal action. It is also to be noted that the committee recognized that the act has been viewed as a symbol of repression by the union government. In numerous proceedings the courts have said that just because a statute has been abused by the officials under the act and it does not mean that the act should be repealed based only on that and the same applies to AFSPA. But the central government is slowly moving towards  handing over the security issues of these states to locally raised forces. But it is uncertain how repressive will be their own security forces against them when it comes to eradicating cancerous insurgencies in the region.

Article by

Geejo Francis 
3rd year student, LLB
School of Law,
Christ University,

Tuesday, May 10, 2011

Plant Varieties Rights; A study in the light of TRIPS and UPOV

Plant Varieties Right is a special kind of Intellectual Property Right. It indicates the right of breeder of a new variety plant from third party infringement. It is synonyms to Plant Breeder’s Right. It includes protection for plant components (e.g. specific genes or chromosomes), plant products (e.g. fruit, oils, pharmaceuticals), reproductive materials (e.g. seeds or cuttings), etc. The right excludes third parties from reproducing, consuming, selling, exporting, etc of the protected variety.
International Laws on Plant Varieties Right
Conventions of UPOV and TRIPS are the important sources of laws which are dealing plant varieties rights. In which, WTO’s TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement is accepted world wide. Article 27 to 34 of TRIPS Agreement is dealing with protection of plants. Article 27.3 (b) prescribes the member states of WTO to make laws for protection of plant varieties. Laws can be made either through patents or through an effective sui generis[i] law or through combination of these two.[ii]
TRIPS Art 27.3(b) “……However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof……”
The Article 27 is a controversial one because this same Article commanding on the member nations to keep away from patency rights on plant varieties. The provisions are as follows:
TRIPS Article 27.2 “Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre[iii] public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment,…”
TRIPS Art 27.3 “Members may also exclude from patentability:
            (b)    plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes…..”
Discussions and reviews are still going on TRIPS Article 27. The Famous Doha Round Talks commenced on November 1, 2001, includes the issue review of Article 27 of TRIPS Agreement. Recently UK Prime Minister David Cameroon recommended that “the Doha round talks should finish by the end of this year (2011)” .[iv]

World Governments depends on TRIPS and UPOV for making laws in respect of protection of plant varieties. Even though, UPOV (International Union for the Protection of New Varieties of Plants) was an early attempt[v], till now it has 69 member nations only[vi].

Plant Varieties Rights in different countries

1)      United States

United States is a member of UPOV and is also bound by TRIPS Agreement. It does not follow a sui generis system. Plant Variety rights in United States are carried on by Plant Variety Protection Act, 1970.It grants Plant Variety Protection Certificates. Unlike other nations, they provide patency for any living organism that is the product of human intervention (such as by some breeding process or laboratory –based alteration).[vii] They give grace period for patency of living organisms and after the period the right over product shall give for public. In case of farmers, they give limited exemptions. Farmers can protect seeds for replanting but not allowed to sell to a third party.

2)      Australia

According to Australia, they accepted both TRIPS and UPOV mechanisms for patenting of plants. Plant Breeder’s Right Act (1994) is the Act which deals with this. They give short period of protection. There is no need of patency right for the use of variety for non commercial purposes. Plant Breeder’s Right Act is administered by Plant Breeder’s Right Office under the IP Australia.[viii]

3)      European Union

The European Union has laws for Plant Varieties Rights at both national and Union level. People can acquire rights from any nation in the Union. CPVR (Community protection of Plant Varieties) enables people to get rights. But it is not possible to acquire rights from both national level and under CPVR[ix]. If both rights are granted to same variety then CPVR suspend national right for the said duration.

4)      India

Under Art 27.3of TRIPS, as it prescribes for patents or sui generis system or combination of these two, India followed sui generis system. Many developing nations follow sui generis system which helps to makes laws according to their concept. China and Thailand are follows UPOV. Sui generis protection is weaker than patent protection, in that right holders can only prevent third parties from commercially exploiting the protected material.[x] India’s plant varieties rights are governed by Indian Protection of Plant Varieties and Farmer’s Right Act, 2001. Section 14 and 15(1) of the Act classifies plants into four main classes. They are new varieties, extant varieties, essentially derived varieties and farmer’s varieties. Section 15 strictly prescribes certain conditions for registering a new variety. They are novelty, distinctiveness, uniform and stability.
Indian Protection of Plant Varieties and Farmer’s Right Act, Section 15(1) “A new variety shall be registered under this Act if it conforms to the criteria of novelty, distinctiveness, uniformity and stability.”


There are laws for protection of  Plant Varieties Rights in every nations but it need to be more democratic. For that purpose, laws shall be changed to balance between International Obligations, traditional knowledges and farmer’s right. We shall expect the International talks on this subject shall conclude with good recommendations for it.

Prepared by Jino M Kurian, final year student B.A.,LL.B,Kerala Law Academy Law College,Thiruvanathapuram.

[i] TRIPS does not define Sui generis but UPOV defines it. Sui generis generally means that it enables member countries to make their own laws for protect plant varieties.
[ii] Jayashree Watal, Indian Council For Research On International Economic Relations, Intellectual Property Rights  In Indian Agriculture.
[iii]The word  ‘Ordre’(Danish)  means order
[v] In 1961 by the Paris Convention
[vi]Status as on April 4,2011
[vii]Diamond v Chakarbarty (1980) 447 US 303)
[viii]Can IP protects Plants, article published in Bios, Cambia.
[ix]Can IP protects Plants, article published in Bios, Cambia.
[x] Jayashree Watal, Intellectual Property Rights in Indian Agriculture, page no.6