Cyber squatting as per the United States Anticybersquatting Consumer Protection Act(ACPA) is the practice of registering, trafficking in, or using a domain name with a malafide intent to profit from the goodwill of a trademark belonging to someone else. The cyber squatter then offers to sell the domain to the person or company who owns a trademark at an overinflated price. As per the Internet Cooperation for Assigned names and numbers (ICANN),‘Cyber-squatting’ is generally bad faith registration of another’s trademark in a domain name.1The term is derived from “squatting” which is the act of occupying an abandoned or unoccupied space or building that the squatter does not own, rent or otherwise have permission to use. However, Cyber squatting is comparatively different as the domain names that are being “squatted” are sometimes being legally paid for through a valid registration process by the cyber squatters.

Cyber squatters demand for prices far greater than that at which they purchased it. Many cyber squatters indulge in putting up derogatory remarks about the individual or company the domain is meant to represent in an effort to force them to buy the domain from them whereas others post paid links via Google and other paid advertising networks to the legitimate site that the user likely wanted, thus monetizing their squatting. Some cyber-squatters also use these domain names to compete with legitimate companies. These cyber-squatters intentionally take undue advantage of the first-come-first-served characteristic of the domain name registration system and through that these squatters offer to sell the domain name to the actual owner of the trademark contained within the domain name at an unreasonably disproportionate price

The earliest case of cyber squatting in India was the case of Yahoo! Inc. vs. Akash Arora& Anr. (1999)2where it was laid down that a domain name serves the same function as a trademark and is not a mere address and, therefore, it is entitled to equal protection as trademark. It was further held that a domain name is more than a mere Internet address for it also identifies the Internet site to those who reach it, much like a person’s name identifies a particular person or more relevant to trade mark disputes, a company’s name identifies a specific company. In the above case, the plaintiff was the rightful owner of the trademark ‘Yahoo!’ and its domain name ‘yahoo.com’ was extremely well known. The plaintiff filed a case against the cyber squatter (Akash Arora& Anr.) for using the domain name www.yahooindia.com. The cyber squatter was pretending to be affiliated to Yahoo and was providing similar services specific to India. The Delhi High Court granted an injunction against the cyber-squatter and held that the trade mark law applies in a cyber squatting case and a domain address is at an equal footing with a trademark.

In this era of E-commerce, domain names have become analogous to trade marks but their registration process is comparatively less rigid and not stringent enough3. Another loophole in the domain registration process is that there are several Top level domains (TLDs) and resultant innumerable combinations of TLDs that make it extremely difficult for a business entity to procure all possible domain names with its trademark. These issues lead to abusive registrations. The main objective of these kinds of practices is to take unfair advantage of someone else’s trademark. Some squatters also indulge in registering similar alternatives of a popular and legitimate domain name.

Domain names are not identified under any law and the only legislation that deals with disputes related to them are the Trademarks Act, 1999. Like all other trademark cases, the disputes related to Domain names have two reliefs i.e. the relief for infringement and passing off. The IT act has no explicit provision that deals with cyber squatting. Despite the handicap of not having a proper law for disputes of domain names, Indian courts have played an eminent role in protecting the interests of genuine parties.

In the case of Rediff Communication Ltd. vs. Cyberbooth & Anr. (1999)4, the Bombay High court held that domain names are an extremely valuable corporate asset to a company as it facilitates communication with a wide consumer base. The court stated that similarity in domain names can cause a lot of confusion in public especially for new customers. In this case, the cyber-squatter (Cyberbooth & Anr.) had registered a domain name as www.radiff.com, which was similar to plaintiff’s domain name (www.rediff.com) and the court restrained the cyber squatter from using that particular domain name.

The Delhi High Court in the case of Mr. Arun Jaitley vs. Network Solutions Pvt. Ltd. (2011)5addressed the issue of abusive online registrations of domain names in India. The plaintiff Mr. Arun Jaitley was a prominent public figure and a Member of Parliament for over a decade. The cyber squatter in this case registered the domain name ‘www.arunjaitley.com’ and when the plaintiff tried to buy the domain name from the cyber-squatter he tried to sell it at an inflated price. The court held that the squatter was guilty of this abusive registration by using the name of a prominent public figure and directed the domain name to be transferred to the plaintiff. The court also held that the squatter is liable to pay legal costs to the plaintiff.

In order to deal with domain name disputes, Uniform Dispute Resolution Policy (UDRP) was developed by ICANN. Under the UDRP, most of the domain name disputes are resolved by arbitration, agreement or by court. The main objective of UDRP is to create a system that is faster and cheaper than the legal system.

ICANN implemented the Uniform Domain Name Dispute Resolution Policy (UDRP) in 1999, which has been used to settle more than 20,000 disputes over the rights to domain names. The UDRP is designed to be efficient and cost effective. In 2010 alone around 2696 cyber squatting cases were filed with the WIPO Arbitration and Mediation Centre under this Policy involving 4370 domain names across 57 countries, according to WIPO‟s official website.6The UDRP is designed to resolve disputes which usually arise when registrant has registered a domain name identical or confusingly similar to the trademark with no rights or legitimate interests in the name and has registered and used the domain name in bad faith Conflicts between two trademark holders or between a trademark holder and a registrant with rights or legitimate interests are not the concern for UDRP. Particularly, the UDRP does not apply if the registrant has been known by the name, has used it in connection with a bona fide

offering of goods or services, or has used it for a legitimate non-commercial purpose. In the case Philip Morris Incorporated v. r9.net, the complainant (Phillip Morris, USA) was the owner of a well-known trademark, ‘Marlboro’. The respondent (r9.net) registered his domain name <marlboro.com> through ICANN. Phillip Morris Incorporated alleged that the respondent has misappropriated the famous Marlboro marks by registering the domain name. The complainant further claimed that respondent has no legitimate interest in the Marlboro marks and have registered them in bad faith with malafide intent. When the respondent did not reply to the allegations, WIPO panel found the arguments of complainant valid and transferred the domain name <marlboro.com> to Phillips Morris, USA.

The UDRP has played a prominent role in resolving the case Koninklijke Philips Electronics N.V.v. In Seo Kim (2001)7. In this case of cyber smearing the complainant (Koninklijke Philips Electronics) registered its trademark “Philips” in numerous countries. The respondent (In Seo Kim) had registered 14 domain names ending in<sucks.com>. The complainant made an allegation that the domain name registered by the respondent <philipssucks.com> is confusingly similar to its registered trademark and that the respondent is indulging in cyber smearing to disrupt its business. The WIPO panel agreed with the contentions of the complainant and transferred the domain name to it.

In the recent years cyber squatting has become a lucrative internet practice that has adverse effects on the reputation of well established commercial brands. Reverse Cyber Squatting is a growing malpractice wherein an individual attempts to secure a domain name legitimately owned by another company or a person. It is also known as domain name hijacking. This often intimidates domain name owners into transferring ownership of their domain names to trademark owners to avoid legal action, particularly when the domain names belong to smaller organizations or individuals.8Reverse domain name hijacking is most commonly enacted by successful corporations and famous individuals, in defense of their rightful trademark or to prevent defamation through libel or slander.

If a situation arises wherein a trademark holder considers that a domain name registration infringes on his own Trademark, the holder can file a complaint and initiate proceedings under UDRP. The UDRP allows complainants to file a case with a dispute resolution service provider, specifying, and the domain name in question, the respondent or holder of the domain name, the registrar with whom the domain name was registered and the grounds for the complaint etc. According to paragraph 4(a) of UDRP, a trademark owner has the right to apply to the ICANN dispute resolution service providers if three elements are met. These elements are (ICANN, 1999)9:

1. Respondents domain name is identical or confusingly similar to a trademark or service

2. mark in which the complainant has rights;

3. Respondent has no right or legitimate interest in respect of the domain name; and

4. Respondent’s domain name has been registered and is being used in bad faith.

Paragraph 4(b) of the UDRP policy stipulates certain inclusive factors for determining bad faith registration and use, which are stated below (ICANN, 1999)10:

1. Registering the domain name with the prime purpose of subsequently selling it and gaining profit.

2. Registering the domain name with the key objective of disrupting the business of the competitor.

3. Registering the domain name in order to prevent the owner of the trademark from reflecting the mark in a corresponding domain name.

4. Using the domain name to attract Internet users to one’s Web site by creating a likelihood of confusion with the complainant’s trademark.

The courts in India have already made the progress by applying a wider interpretation to the provisions under Trademark Act, 1999. However, there is not enough protection provided against cyber squatters which is clear from the wide range of offences committed by them on a daily basis. The squatters keep on inventing new methods to extort money from successful corporations and the courts have no stringent provisions to deal with in these situations except on relying on the provisions of the Trademarks Act, 1999 and the Information Technology Act, 2000 (IT Act) to solve these domain name disputes, but both these legislations have their flaws that cannot provide adequate protection to the victims.

The IT Act has provisions for most of the cyber crimes, but the act is completely silent about cyber squatting. On various instances, the Indian courts have been guided by decisions made by American Judgements. It is thus essential that legislation much like ACPA of US be drafted in India which is in conformity with the guidelines laid down under UDRP. Under the Anti-Cybersquatting piracy Act (ACPA), a plaintiff can elect statutory damages ranging from $1000 to $100,000 per domain name. The bill also establishes in rem jurisdiction which allows the trademark owner to file an action against the domain name itself in some cases.

It is evident that UDRP mechanism is not a foolproof plan as it still has limitations to effectively protect domain names. The losing party can initiate proceedings in a court of competent jurisdiction and try to take undue advantage of differences in laws across countries. So, ICANN should formulate a model domain names dispute resolution law. The countries must amend their existing laws to bring it in consonance with the proposed ICANN model domain names dispute resolution law. The losing party should be able to appeal to courts of competent jurisdiction only in exceptional cases, not all cases.

There is also a subsequent need for a separate independent adjudication body that resolves only domain name disputes especially related to cyber squatting. The constitution of such a body will help in the speedy disposal of such cases.

Therefore, in order to deal with the loopholes faced by courts in handling domain name disputes, it is the need of the hour to draft a legislation to resolve these disputes effectively in India. This legislation can help establish concrete penalties and jail terms on the cyber squatters on a consistent basis which will help in the deterrence of cyber squatting and ensure the protection of interests of the genuine parties.

[1]https://www.icann.org/resources/pages/cybersquatting-2013-05-03-en

[2]1999 IIAD Delhi 229, 78 (1999) DLT 285

[3]ISSN: 2456-6616 (Online)

[4]1999 (4) BomCR 278

[5] 181(2011) DLT 716

[6] International Journal of Information Security and Cybercrime Vol. 4 Issue 1/2015

[7]Case No. D2001-1195

[8] Warren B. Chik, Lord of Your Domain, But Master of None: The Need to Harmonize and Recalibrate the Domain Name Regime of Ownership and Control, 16 INT’L J.L. & INFO. TECH. 8, 60 (2008)

[9] https://www.icann.org/resources/pages/policy-2012-02-25-en [10] Singh, H. P. (2018). Domain Name Disputes and Their Resolution under UDRP Route: A Review. Archives of Business Research, 6(12), 147-156.

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Arbitration is a mode of alternate dispute resolution by which two parties approach one or more persons (known as arbitrators or arbitration tribunal) and agree to be bound by the arbitral decision taken by them. This decision is known as the arbitral award. The award is legally binding on both the parties and enforceable in the court of law. This form of ADR focuses on the autonomy of parties and is a voluntary process.1 This is a cost effective and systematic procedure that allows the parties to choose an arbitrator as per their demands and exercise the right to abide by a particular jurisdiction. The arbitration process maintains a high level of confidentiality with a greater likelihood of settlement.

The Arbitration Act, 1940 was introduced in India by the British. This Act provided multiple opportunities to approach the court for intervention which led to inordinate delays that made the arbitration process ineffective. Therefore it was replaced by the Arbitration and Conciliation Act of 1996 (hereinafter referred to as ‘Act’) which was established after numerous ordinances were passed by the Indian government to meet the economical reforms. The Arbitration and Conciliation Act, 1996 is structured on the UNCITRAL model. India is also a signatory member of the New York Convention. This Act deals with domestic arbitration, international arbitration, enforcement of foreign awards and conciliation provisions.

The important provisions of the Act are to be found in Parts I and II thereof. Part I contains the general provisions for domestic and international commercial arbitration whereas Part II provides for the enforcement of foreign awards. Part I of the Act is exhaustive and deals with detailed provisions on the model Law. It provides for the extent of judicial intervention, arbitrability of disputes, composition and jurisdiction of the arbitral tribunal, appointment of arbitrators, conduct of the arbitration proceedings, recourse against arbitral awards and enforcement procedure of the awards. On the contrary, Part II of the Act is deals with enforcement of foreign arbitral awards.

In the ordinary sense, arbitrability involves the issue of whether specific category of disputes can be barred from arbitration or whether it belongs exclusively to the domain of state courts. The Act clearly illustrates that there need not be a contractual relationship between the parties. Therefore, even a tort dispute could also be referred to arbitration.

In the case of Renu Sagar Power Co v General Electric Co3. Supreme Court stated as follows: ‘The question is not whether the claim lies in tort but the question is whether even though it has lain in tort it ‘arises out of’ or is ‘related to’ the contract, that is to say, whether it arises out of the terms of the contract or is consequential upon any breach thereof.’

In the case of Hindustan Petroleum Corporation v Pink City4, the respondent opposed arbitration on the ground that the action committed by the claimant (i.e. short delivery and tampering with weights and measures and seals) was essentially a criminal offence under various special statutes. It was contended that the claimants’ conduct could be investigated only by authorized officers under statute and that the offence, if any, can be tried only by a court of competent jurisdiction and not by an arbitrator. The Supreme Court negated this argument, and held that the claimant had rights under the contract which are independent of the statutory provisions and hence the contractual rights could be enforced through the arbitration process: ‘The existence of dual procedure; one under the criminal law and the other under the contractual law is a well-accepted legal phenomenon in Indian jurisprudence.5

However, the Supreme Court has held that a claim for winding up is not arbitrable and legal action in a court cannot be dismissed on the ground that the party had entered into an arbitration agreement.6

The Arbitration Amendment is an important step forward in overcoming the inordinate delays, the inefficiency in resolving disputes and the exorbitant costs that plagued the arbitration system in India. Despite making so many provisions in order to decrease the judicial interventions, the Indian courts have adopted an interventionist approach while laying down precedents. These modifications will definitely be scrutinized heavily by them.

The Arbitration and Conciliation (Amendment) Act, 2015 made significant amendments to Section 34. These modifications were aimed at minimizing the courts intervention with arbitral awards on the ground of “public policy.” Accordingly, an amendment was added as a part of “Explanation 2″ to section 34(2) as well as Section 2A.

Explanation 2 of section 34(2) states – “For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian Law shall not entail a review on the merits of the dispute.”7

This explanation (2) significantly narrowed down the scope of interpretation supplied in ONGC v Western GECO.8 Through this amendment, Courts could no longer be able to interfere with the arbitral awards passed by an arbitrator. This modification helped clarify that in no way would a Court be entailed to review the award on merits of the dispute. Similarly, section 2A also decreases the scope of interpretation of “patent illegality” as propounded in ONGC v Saw Pipes.9 Explanation 2A states – “An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiate by patent illegality appearing on the face of the award:

Provided, that an award shall not be set aside merely on the ground of an erroneous application of law or by reappreciation of evidence.10”

After the Bharat Aluminium and Co. v. Kaiser Aluminium and Co.11(“BALCO”) judgement of the Supreme Court, Indian courts had absolutely no jurisdiction to interfere in all the arbitrations that were seated outside India. This problem was taken resolved by the Amendment Act by inserting Section 2(2), which makes the provision for interim relief(s) also applicable in cases where the place of arbitration is outside India. This amendment has been heavily criticized as it is only applicable to international commercial arbitrations with a seat outside India as well as this means that this kind of protection will only be available to Indian parties that choose to arbitrate outside India.

The Amendment Act stipulates that if the court passes an interim order , the arbitral proceedings for that case must be commenced within a period of 90 (ninety) days from the date of such order or within such time as prescribed by the court. This modification was specifically made to curb the practice of misusing provisions in order to strategically obtaining exparte or ad interim orders and not proceeding with the arbitration process. This used to cause a huge amount of delay in the dispute resolution process. The Amendment act also provides for faster timelines to make the arbitration process more effective. One of the biggest advantages of arbitration is that it is comparatively less time consuming that the courts. So, in order to be able to maintain that a Proviso to Section 24 has been added to provide for the tribunal to hold oral hearings as and when required for evidence and oral arguments on an everyday basis. The proviso also illustrates that the tribunal must not grant any adjournments unless absolutely necessary and wherein sufficient cause has been made out to do so. The tribunal has also been granted the power and privilege to impose heave costs and penalties for adjournment without sufficient reasons.

In order to make sure that the arbitration process in not ardors, a provision has been made that stipulates that every arbitral award must be made within 12 months from the date the arbitrator(s) receives a written notice of appointment. The parties can mutually decide to extend this time limit but it cannot be extended for more than 6 months. If an order is not made within this deadline of 18 months, it will automatically terminate the mandate of the arbitrator(s). Unless, the court extends this period upon an application filed by the parties. However, there is no time period fixed for approaching the court seeking extension of time which may again contribute to delays. In an arbitration system that was plagued with delays and costs, this is a significant move towards betterment.

In August 2019, the Arbitration and Conciliation (Amendment) Act, 2019 was initiated after the assent of the President. As per this amendment, Section 23 has been modified to state that the statement of claim and defense must be completed within 6 months from the date of service of notice to the arbitrator(s). Section 34 of the Act is amended wherein the words’ furnishes proof that’ is replaced by “establishes on the basis of the record of the arbitral tribunal that”, to clarify that the parties must solely rely on the record before the arbitration tribunal. This Amendment Act also grants power to the Supreme Court in all cases of international commercial arbitration and the High Court in all cases of domestic arbitration to designate arbitral institutions to appoint arbitrators.

The Arbitration Amendment is a crucial step forward in overcoming the loopholes in the alternate dispute resolution mechanism of inordinate delays, excessive costs and deficiency in the resolution of disputes. The proposed modifications made through the amendments, are welcome, as the earlier arbitration system was a failure, and was unable to raise the cultivation of the culture of arbitration in India. The interpretations of these amendments in the court will decide its effectiveness. The new arbitration regime promises to herald a new era for resolution of disputes in India. It remains to be seen whether India’s aspirations to become the next arbitration hub will come true after these significant amendments.

[1] Arbitration and Conciliation Amendment Act, 2015, Section 34, Explanation(2)

[2] ONGC v Western GECO, [2015] AIR 363 (SC)

[3] Oil and Natural Gas Corporation vs. Saw Pipes 2003 (5) SCC 705

[4] Arbitration and Conciliation Amendment Act, 2015, Section 34 Explanation(2A)

[5] Aluminium and Co. v. Kaiser Aluminium and Co., (2012) 9 SCC 552

[6] Arbitrability: International & Comparative Perspectives, Loukas A. Mistelis & Stavros L. Brekoulakis eds., 2009 [2] Renu Sagar Power Co v General Electric Co, 1994 Supp (1) SCC 644

[7] Hindustan Petroleum Corporation v Pink City 2003 (6) SCC 503 [4] Ibid at 515

[8] Haryana Telecom v. Sterlite Industries, 1999 (5) SCC 688.

[9] Team@Law Time Journal, Introduction to Arbitration in India, lawtimesjournal.in, ( July 31st, 2019) http://lawtimesjournal.in/

[10] Vibhor Gupta, Arbitration: A Perspective, Mondaq.com, ( May 18th, 2020)

[11] https://www.mondaq.com/india/arbitration-dispute-resolution/935374/arbitration-a-perspective

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The son is obligated to repay the debts of his father by the property he got by birth and not which he earned or acquired himself. The debts must be prior in time and prior in fact. The burden of proof of the debt whether or not it is an Avyavaharika debt lies on the son.

The Supreme Court of India, in the case of Venkatesh Dhonddev Deshpande vs. Kusum Dattatraya Kulkarni and Ors. 1978[1]. The burden of proof would be on the children to prove that the debt was immoral, illegal and dishonest in nature and should not be held liable to repay the debt of the father. The legal representatives need not demonstrate criminal liability of the father to claim the exception.

It is pertinent to note that the pious obligation of the son to repay the debts of the father exists whether the father is dead or alive. It is not necessary that the father should be the manager or the karta of the joint family or that the family must be composed of the father and his sons and no other member. It is also necessary that the sons should be made parties to the money suit or to the execution proceedings. The son is also not liable for a debt contracted by the father after partition but us liable after the partition for a debt which was contracted by the father before the partition.

In case of a partition, it is necessary that the creditor should file a suit against the father and the son so that the decree can be executed against the son. In the case where the father and son are joint, such a decree may be executed against the father alone, and the entire joint property along with the son’s shares which may be attached and sold for the satisfaction of the decree.

Post Amendment

The Hindu Succession (Amendment) Act, 2005 (herein referred to as “the Act”) was introduced to remove discrimination and give equal rights to daughters by amending Section 6 of the Hindu Succession Act, 1956. The Act focused on ending gender discrimination in Mitakshara coparcenary by including the daughters in the system. The amendment gave daughters a right to be a coparcener by birth and the same rights and liabilities as a son.

Applicability of Doctrine of Pious Obligation

The Act abolished the Doctrine of pious obligation as per Section 6 (4) of the Act. Section 6(4) states that no court shall recognize any right to proceed against a son, grandson, or great grandson to discharge any debt.

“6(4)- After the commencement of the Hindu Succession (Amendment) Act, 2005 , no court shall recognize any right to proceed against a son, grandson or great- grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great- grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 , nothing contained in this sub- section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great- grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.- For the purposes of clause (a), the expression” son”,” grandson” or” great- grandson” shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.”

In case of a debt contracted before the commencement of this Amendment Act of 2005 the right of any creditor, to proceed against son, grandson or great grandson, shall not affect or any alienation relating to such debt or shall be enforced under the rule of pious obligation in the manner and extent it would have been enforceable as if the Act of 2005 had not been enacted. Hence, the liability to repay the debt of the deceased father before the enactment remained working and the rights of the creditors will be preserved if the debt was taken before the commencement of this amendment.

Retrospective and Prospective Effect

The discussion in terms of retrospective and prospective operation, the operation of the Act, especially Section 6, varies from case to case depending on the facts. The High Court of Bombay in Badrinarayan, Shankar Bhandari and Ors v. Omprakash Shankar Bhandari, 2014 held that[2]

“Section 3 of Act stood substituted with effect from specified date. It could not be said that Section 6 of Act related back to specified date when the Principal Act came into force. The commencing words on and from the commencement of the Hindu Succession Amendment Act, 2005 proved the Act was prospective in operation and certain clauses in the Act proved that operation of the Act was not retrospective but prospective. Hence, the Appellants failed to prove operation of the Act was retrospective in nature. Therefore, Section 6 of Act was prospective in nature.”

Applicability– It is difficult to state that Section 6 of the Act related to a specified date when Principle Act came into force and the commencing words on and from the commencement of the Act proved that the Act was prospective in operation. Such clauses in the Act proved that the operation of the Act was prospective and not retrospective.

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Although, it is an obligation of the medical practitioners to follow the code of ethics, the number of unethical practices has increased drastically and hence, it has become essential to analyze whether the act committed out of negligence and the liability that arises out of it. Health care workers can be made liable under the Consumer Protection Act, 1986, tort and criminal law. In the recent years we have witnessed an incline towards the commercialization in the medical field like never before. This has also led to an increase in the unethical acts being performed by the doctors in order to gain monetary benefits.

Medical negligence can be defined as misconduct by a medical practitioner or a doctor which results in breach of their duties and the harm caused to the patients. It is a breach of a legal duty to care. It is a medical malpractice which is improper, unskilled or negligent in the treatment of a patient by the physician, dentist, pharmacist or any other health care professional. The ingredients for negligence include:

• The offender owes a duty of care to the complainant;
• The offender breached this duty of care and
• The complainant has experienced an injury due to the offender’s breach.

India is recording a whopping 5.2 million injuries each year due to medical errors and adverse events. Of these biggest sources are mishaps from medications, hospital acquired infections and blood clots that develops in legs from being immobilized in the hospital. A landmark report by an Indian doctor from Harvard School of Public health (HSPH) has concluded that more than 43 million people are injured worldwide each year due to unsafe medical care. Approximately 3 million years of healthy life are lost in India each year due to these injuries.

Article 21 and 34 of the Constitution helps victims of medical negligence can seek remedy and ensure proper healthcare facilities are being provided to them. Article 21 guarantees right to life and personal liberty to every citizen of the country and right to health is an integral part of right to life. It is the responsibility of the State to ensure that healthcare facilities are being provided to the citizens. Article 32 provides the right to Constitutional remedies and means that the person has a right to approach the High Court or the Supreme Court to protect their fundamental rights. Hence, a suit can be filed under Article 32.

The Supreme Court in Paschim Banga Khet Mazdoor Samity and Ors. Vs.State of West Bengal and Ors. 1996discussed whether the non-availability of facilities for treatment of serious injuries sustained by ‘X’ in various Government hospitals resulted in denial of fundamental right guaranteed under Article 2. It was held by the Supreme Court that Article 21 of the Constitution imposes obligation on the State to safeguard the right to life of every person. Any failure on part of the Government hospital to provide timely medical treatment to person in need results in violation of right to life guaranteed under Article 21 will amount to breach of said right of ‘X’ as he denied of treatment in various Government hospitals even though his condition was very serious and he needed immediate medical attention. The State cannot avoid its responsibility for such denial and hence, ‘X’ entitled to award of adequate compensation.

The determination of the professional duty of a healthcare providers had been laid down by the Supreme Court of India in Dr. LaxmanBalakishna Joshi v. Dr. Trimbak Babu Godbole and Anr., 1968 –

“A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.”

According to the Minister of State for Health and Family Welfare Ashwini Kumar Choubey, in 2017, 69 cases of medical negligence were awarded punishment by the Medical Council of India (MCI). This formed 44\\% of the cases referred to MCI by the state medical councils. In 2018, 28\\% or 40 cases referred to MCI by state medical councils awarded punishments to doctors and in until June 2019, 46\\% or 28 doctors were punished by MCI for medical negligence.

Reasonable care can be defined as the extent of concern and caution and ordinary person would take under a similar circumstance. The patient needs to show that in a case of negligence, no reasonable doctor, acting in a similar circumstance would act in that manner. To assess such situations, Bolam’s test is usually applied to see whether the act committed by the doctor was reasonable given the situation.

In the case of Bolam v. Friern Hospital Management Committee (1954) it was stated that “……….where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.”

Lord McNair said : “……….I myself would prefer to put it this way : A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men in that particular art”.

The ratio of Bolam’s case is that it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical professionals exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used.

In the case of Jasbir Kaur v. State of Punjab, a newly born baby went missing and was found bleeding near the wash-basic of the bathroom. The hospital authorities argued that the child was taken away by a cat. The court held that the hospital authorities were negligent and had not taken due care and precaution. Thus, awarded the compensation amounting to Rs. 1 lakh.

A doctor may not be liable in all the cases and may also have a valid defense that he has not breached the duty of care. The error of judgement can be of two types, error of judgement where the doctor’s decision turned out to be wrong and it has been recognized that it does not amount to a breach of duty and error of judgement due to negligence where all the factors were considered before the doctor came to a decision, this would amount to breach of duty.

In the case of C.P Sreekumar (Dr.), MS (Ortho) v. S. Ramanujamthe court dealt with a medical negligence case in which the respondent was injured while going on a bicycle. He sustained severe injuries and a hairline fracture of the neck. On considering the various options available the doctor chose to perform hemiarthroplasty instead of internal fixation procedure. The surgery was performed the next day. The respondent filed a case against the doctor for not adopting the internal fixation procedure for the injury. The Supreme Court held that the appellant’s decision for choosing hemiarthroplasty for the person who is 42 years of age was not unacceptable as to make it a case of medical negligence.

In Jacob Mathew .V. State of Punjab, the Supreme Court held that in some cases doctors are bound to take make difficult choices. Sometimes situations make them go for things involving greater risk because of higher chances of success in taking that decision. And there are some cases in which there is lesser risk involved and higher chances of failure. So, the decision will depend upon the facts and circumstances of the case.

With the recent rise and spread of the coronavirus across the globe, there are instances where due to the lack in the number of healthcare workers, countries have been forced to provide treatment to a patient with Covid-19 from a doctor or a nurse who is acting outside their usual speciality and in case of an injury in such cases, the question which arises is can we still apply Bolam’s test for breach of duty? Courts will need to assess ‘Covid-19’ specialists with a different approach since the Bolam test may no longer be applicable to Covid-19 related claims.

Healthcare providers around the world are facing hardships while treating the rising number of patient affected by Covid-19. In Italy, 20\\% of responding health-care workers were infected, and some have died. As the pandemic accelerates, access to personal protective equipment (PPE) for health workers is a key concern. Medical staffs are prioritised in many countries, but PPE shortages have been described in the most affected facilities. Some of the medical staffs are waiting for equipment while already seeing patients who may be infected or are supplied with equipment that might not meet requirements. Health-care systems globally could be operating at more than maximum capacity for many months. But health-care workers, unlike ventilators or wards, cannot be urgently manufactured or run at 100\\% occupancy for long periods. It is vital that governments see workers not simply as pawns to be deployed, but as human individuals. In the global response, the safety of health-care workers must be ensured.

Merely because a medical professional chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. We must also remember the times when the medical professionals need to be protected from complainant who misuse criminal process and pressurize medical professional and hospitals to extract compensation. It is on the judiciary to differentiate such malicious cases and provide a safety net for the medical professionals.

It is also difficult to predict the certainty the outcome of cases and Judges need to rely on the testimonies of other medical professionals. At the same time, if medical professionals get penalized for every error of judgement, they may not be able to serve the society and so the Judges need to analyse every case differently. The Supreme Court has rendered various landmark judgments with regards to informed consent, prima facie evidence and the guidelines for the criminal prosecution of doctors.

Judicial decisions use the Bolam’s test or analyse the higher duty of care which is to be given to the patients by medical professionals. There is also a need to raise awareness in rural areas where the patients get exploited due to their lack of awareness and fail to seek the required remedy.

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The process of digitization in all aspects of human life, like healthcare, education, business, etc., has gradually led to the storage of all sorts of information, including sensitive data. Without a well-established cybersecurity program, any organization cannot defend and shield itself against data breach campaigns, making it an irresistible target for cybercriminals.

Cyber security is about people, processes, and technologies working together to encompass the full range of threat reduction, vulnerability reduction, deterrence, international engagement, incident response, resiliency recovery policies and activities, including computer network operations, information assurance, law enforcement, etc.

The onset of COVID-19 pandemic has led to a massive increase in remote workers worldwide and it is here to stay. In the age of remote work, cybercriminals are taking advantage of misconfigured cloud security measures and insecure home devices and networks. Remote workers are also often the target of phishing attempts by email, voice, text, and third-party applications.

With the growth in internet technology, the word is moving towards cloud computing. The cloud computing brings new challenges to the law makers. The distinct challenges may include data security, data privacy, jurisdiction and other legal issues. There pressure on the cyber legislators and stakeholders would be to provide appropriate legal framework that could benefit the industry and enable effective remedies in the event of cloud computing incidents. In 2017, a 9 Judge Bench of the Supreme Court delivered a unanimous verdict in Justice K.S. Puttaswamy vs. Union of India , affirming that the Constitution of India guarantees to each individual a fundamental right to privacy. Thereby an individual has the right to make his choices which is intrusive of allowing him to use any medium to express his views like print medium, digital platforms, social media etc. but while an individual is availing his right of making choices an equally opposite duty lies on the state to take care that such right to choose should not get affected.

The social media is beginning to have social and legal impact in the recent times raising significant legal issues and challenges. Since the law enforcement agencies, intelligence agencies target the social media sites; they are the preferred repository of all data. The inappropriate use of social media is giving rise to crimes like cyber harassments, cyber stalking, identity theft etc. The privacy in social media is going to be undermined to a great extent despite the efforts by relevant stake holders. The challenge to the cyber legislators would be to effectively regulate the misuse of social media and provide remedies to the victims of social media crimes. Social Media Litigations are also likely to increase concerning the association or nexus with the output of social media.

There is considerable growth of spam in emails and mobiles. Many countries have already become hot spots for generating spam. As the number of internet and mobile users increase the spammers make use of innovative methods to target the digital users. It is therefore necessary to have effective legislative provisions to deal with the menace of spam.

Monetization is another key factor contributing to the rise in cyber-attacks. Cybercriminals have increasingly turned to ransomware attacks, or those in which attackers gain access to and encrypt a victim’s data and demand a ransom. Cryptocurrencies and the emergence of ransomware have made it easier for someone to commit a crime and get away with it because they can get paid in untraceable ways. This trend has motivated attackers to commit cybercrimes in pursuit of monetary gain while simultaneously making it more difficult to track and identify these criminals. As a result, the need for skilled cybersecurity professionals who can implement strategies to prevent these attacks continues to rise.

About 4 out of 5 individuals who use internet believe that their personal data is used without their knowledge and/or shared with third parties without their consent. Protection of personal data is inextricably linked with privacy i.e. right of every person to enjoy his life and liberty without arbitrary interference with his private life, his family, his home or his correspondence etc. Today’s businesses derive a substantial value by analysing the ‘big data’ and often determine their business strategies based on such analysis. While there is no denying the business efficiency involved, the burning question is ‘do individuals have a control over the manner in which information pertaining to them is accessed and processed by others?’

There have been increasing concerns about data privacy in the world of cybersecurity, both in the context of consumer and company information. There are various federal, state-level, and international data privacy laws that today’s organizations need to comply with, and consumers are also becoming more concerned with how their data is being used.

Data breaches and cyberattacks expose sensitive personal information and put consumers and companies at risk. Today’s organizations need to consider things like data encryption, password protection, and network security to strengthen their data privacy. It’s also important that businesses have a team of highly skilled cybersecurity professionals working to secure their data and protect against potentially devastating data breaches.

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