Question:
What is meant by generic drugs? Explain its importance in the light of judicial decisions in India.
What is meant by generic drugs? Explain its importance in the light of judicial decisions in India.
Updated On: Jul 13, 2026
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Generic drugs in India are medicines that are identical in chemical composition and effectiveness to brand-name drugs. They are sold under their chemical names, not brand names, and are often cheaper. This helps more people afford necessary medications.
Laws like the Drugs and Cosmetics Act of 1940 regulate how generic drugs are made, sold, and distributed in India. These laws have been updated to encourage more production and use of generic drugs, which are crucial for making healthcare more affordable and accessible to everyone.
Court decisions have also shaped how generic drugs are used in India. For example, in the Novartis case of 2013, the Supreme Court ruled that certain drugs couldn't be patented under Indian law if they weren't new or innovative enough. This decision supported the availability of cheaper generic versions of essential medicines.
Another important case involved the drug Nexavar in 2014, where the court allowed a generic version to be made by Natco Pharma at a lower cost. This highlighted how Indian law allows for compulsory licensing of drugs to ensure public access to affordable medications when needed.
India's approach to promoting generic drugs isn't just about local impact—it aligns with global efforts to make healthcare more affordable worldwide. By encouraging competition among drug manufacturers, prices are driven down, and more treatment options become available, especially for chronic illnesses.
Despite these benefits, challenges remain. Ensuring the quality and safety of generic drugs is crucial. Regulatory bodies like the CDSCO monitor this closely through strict approval processes and ongoing checks after drugs are on the market.
In summary, generic drugs have transformed India's healthcare by making essential medicines cheaper and more widely available. Court decisions have played a key role in supporting this, emphasizing public health needs over purely commercial interests. Moving forward, it's important to continue improving regulations and addressing challenges to ensure everyone has access to the medicines they need.
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This question has two parts: what a generic drug is, and why courts have protected the space for generic drugs to exist. The second part is really about patent law, since a generic drug can only be sold once a patent barrier is gone or is denied in the first place.
What makes a drug "generic":
A generic drug has the same active ingredient, strength, dosage form, and intended effect as a brand-name drug already approved for sale, but it is sold under its chemical or International Non-proprietary Name rather than a trademarked brand. Because the original manufacturer has already proven the drug safe and effective, a generic maker only needs to show bioequivalence, that it behaves the same way in the body, not repeat the original clinical trials from scratch. That is what keeps generic drugs far cheaper.
The patent law provision that decides whether a generic can exist:
Section 3(d) of the Patents Act, 1970, blocks a patent on a new form of an already known substance unless the applicant shows it works meaningfully better, not just differently, than the known substance. This section exists specifically to stop "evergreening," where a company makes a trivial tweak to an existing drug just before its patent expires to extend its monopoly and delay generics.
Novartis AG v. Union of India (2013):
Novartis sought a patent for a particular crystalline form of imatinib, sold as Glivec, a leukemia drug. The Supreme Court refused the patent under Section 3(d), holding that Novartis had not shown the new form was significantly more effective than the already-known compound. This kept the door open for Indian companies to keep selling generic imatinib at a fraction of the branded price, and became the leading case for reading Section 3(d) strictly in favour of access to medicine.
Natco Pharma v. Bayer Corporation (2012), the compulsory licence route:
Even where a patent is validly granted, Section 84 of the Patents Act lets a generic company apply for a compulsory licence if the patented drug is not reasonably affordable or available to the public. This was used for the first time in India for Nexavar, a kidney and liver cancer drug patented by Bayer. The Controller General of Patents granted Natco Pharma a licence to manufacture and sell a generic version at a much lower price, a decision the Bombay High Court and the Intellectual Property Appellate Board upheld, reading it consistently with the flexibilities the Doha Declaration on TRIPS and Public Health recognises for public health emergencies.
Evaluation:
Between them, Section 3(d) and Section 84 give India two separate tools, one to stop weak patents from being granted at all, the other to override a strong patent when the price is genuinely out of reach for patients. Government schemes like Jan Aushadhi build on the same logic by selling generics directly at government-run stores. The tension that remains is international: pharmaceutical companies and some trading partners have criticised India's use of both provisions as weakening patent protection, so the balance between rewarding innovation and keeping medicine affordable is argued over as much in trade negotiations as in court.
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Top CLAT PG Legal Studies Questions
- Our society is governed by the Constitution. The values of constitutional morality are a non-derogable entitlement. Notions of “purity and pollution”, which stigmatise individuals, can have no place in a constitutional regime. Regarding menstruation as polluting or impure, and worse still, imposing exclusionary disabilities on the basis of menstrual status, is against the dignity of women which is guaranteed by the Constitution. Practices which legitimise menstrual taboos, due to notions of “purity and pollution”, limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere. Women have a right to control their own bodies. The menstrual status of a woman is an attribute of her privacy and person. Women have a constitutional entitlement that their biological processes must be free from social and religious practices, which enforce segregation and exclusion. These practices result in humiliation and a violation of dignity. Article 17 prohibits the practice of “untouchability”, which is based on notions of purity and impurity, “in any form”. Article 17 certainly applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion and subjugation faced by women. Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values. As an expression of the anti-exclusion principle, Article 17 cannot be read to exclude women against whom social exclusion of the worst kind has been practised and legitimised on notions of purity and pollution. Article 17 cannot be read in a restricted manner. But even if Article 17 were to be read to reflect a particular form of untouchability, that Article will not exhaust the guarantee against other forms of social exclusion. The guarantee against social exclusion would emanate from other provisions of Part III, including Articles 15(2) and 21. Exclusion of women between the age group of ten and fifty, based on their menstrual status, from entering the temple in Sabarimala can have no place in a constitutional order founded on liberty and dignity.
[Extracted from Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1 (hereafter IYLA)] - An Ordinance which is promulgated by the Governor has (as clause 2 of Article 213 provides) the same force and effect as an Act of the legislature of the State assented to by the Governor. However - and this is a matter of crucial importance – clause 2 goes on to stipulate in the same vein significant constitutional conditions. These conditions have to be fulfilled before the ‘force and effect’ fiction comes into being. These conditions are prefaced by the expression “but every such Ordinance” which means that the constitutional fiction is subject to what is stipulated in sub-clauses (a) and (b). Sub-clause (a) provides that the Ordinance “shall be laid before the legislative assembly of the state” or before both the Houses in the case of a bi-cameral legislature. Is the requirement of laying an Ordinance before the state legislature mandatory? There can be no manner of doubt that it is. The expression “shall be laid” is a positive mandate which brooks no exceptions. That the word ‘shall’ in sub-clause (a) of clause 2 of Article 213 is mandatory, emerges from reading the provision in its entirety. As we have noted earlier, an Ordinance can be promulgated only when the legislature is not in session. Upon the completion of six weeks of the reassembling of the legislature, an Ordinance “shall cease to operate”.
Article 213(2)(a) postulates that an ordinance would cease to operate upon the expiry of a period of six weeks of the reassembly of the legislature. The Oxford English dictionary defines the expression “cease” as : “to stop, give over, discontinue, desist; to come to the end.” P Ramanatha Aiyar’s, The Major Law Lexicon defines the expression “cease” to mean “discontinue or put an end to”. Justice C K Thakker’s Encyclopaedic Law Lexicon defines the word “cease” as meaning: “to put an end to; to stop, to terminate or to discontinue”. The expression has been defined in similar terms in Black’s Law Dictionary.
The expression “cease to operate” in Article 213(2)(a) is attracted in two situations. The first is where a period of six weeks has expired since the reassembling of the legislature. The second situation is where a resolution has been passed by the legislature disapproving of an ordinance. Apart from these two situations that are contemplated by sub-clause (a), sub-clause (b) contemplates that an ordinance may be withdrawn at any time by the Governor. Upon its withdrawal the ordinance would cease to operate as well.
[Extracts from the judgment of majority judgment in Krishna Kumar Singh v. State of Bihar, Civil Appeal No. 5875 of 1994, decided on January 2, 2017 hereafter ‘KK Singh’] - The other material which prompted the High Court to reach the conclusion that the subsoil/minerals vest in the State is … recitals of a patta which ….. states that if minerals are found in the property covered by the patta and if the pattadar exploits those minerals, the pattadar is liable for a separate tax in addition to the tax shown in the patta and …. certain standing orders of the Collector of Malabar which provided for collection of seigniorage fee in the event of the mining operation being carried on. We are of the clear opinion that the recitals in the patta or the Collector’s standing order that the exploitation of mineral wealth in the patta land would attract additional tax, in our opinion, cannot in any way indicate the ownership of the State in the minerals. The power to tax is a necessary incident of sovereign authority (imperium) but not an incident of proprietary rights (dominium). Proprietary right is a compendium of rights consisting of various constituent, rights. If a person has only a share in the produce of some property, it can never be said that such property vests in such a person. In the instant case, the State asserted its ‘right’ to demand a share in the ‘produce of the minerals worked’ though the expression employed is right – it is in fact the Sovereign authority which is asserted. From the language of the BSO No.10 it is clear that such right to demand the share could be exercised only when the pattadar or somebody claiming through the pattadar, extracts/works the minerals – the authority of the State to collect money on the happening of an event – such a demand is more in the nature of an excise duty/a tax. The assertion of authority to collect a duty or tax is in the realm of the sovereign authority, but not a proprietary right….
The only other submission which we are required to deal with before we part with this matter is the argument of the learned counsel for the State that in view of the scheme of the Mines and Minerals (Development and Regulation) Act, 1957 (hereafter ‘MMDRA’) which prohibits under Section 4 the carrying on of any mining activity in this country except in accordance with the permit, licence or mining lease as the case may be, granted under the Act, the appellants cannot claim any proprietary right in the sub-soil…
[Extract from the judgment in Thressiamma Jacob v. Dept. of Mining & Geology, (2013) 9 SCC 725] (hereafter ‘T Jacob’) - A nationwide lockdown was declared by the Central Government from 24 March 2020 to prevent the spread of the CoVID-19 pandemic. Economic activity came to a grinding halt. The lockdown was extended on several occasions, among them for the second time on 14 April 2020. On 17 April 2020, the Labour and Employment Department of the State of Gujarat issued a notification under Section 5 of the Factories Act to exempt all factories registered under the Act “from various provisions relating to weekly hours, daily hours, intervals for rest etc. for adult workers” under Sections 51, 54, 55 and 56. The stated aim of the notification was to provide “certain relaxations for industrial and commercial activities” from 20 April 2020 till 19 July 2020.
Section 5 of the Factories Act provides that in a public emergency, the State Government can exempt any factory or class or description of factories from all or any of the provisions of the Act, except Section 67. Section 5 is extracted below: “5. Power to exempt during public emergency. — In any case of public emergency the State Government may, by notification in the Official Gazette, exempt any factory or class or description of factories from all or any of the provisions of this Act except section 67 for such period and subject to such conditions as it may think fit: Provided that no such notification shall be made for a period exceeding three months at a time. Explanation.— For the purposes of this section ‘public emergency’ means a grave emergency whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.” (emphasis supplied) The notification in its relevant part is extracted below:
“... NOW, THEREFORE, in exercise of the powers conferred by Section 5 of the Factories Act, 1948, the ‘Factories Act’ PART B Government of Gujarat hereby directs that all the factories registered under the Factories Act, 1948 shall be exempted from various provisions relating to weekly hours, daily hours, intervals for rest etc. of adult workers under section 51, section 54, and section 55 and section 56 with the following conditions from 20th April till 19th July 2020, –
(1) No adult worker shall be allowed or required to work in a factory for more than twelve hours in any day and Seventy Two hours in any week.
(2) The Periods of work of adult workers in a factory each day shall be so fixed that no period shall exceed six hours and that no worker shall work for more than six hours before he has had an interval of rest of at least half an hour.
(3) No Female workers shall be allowed or required to work in a factory between 7:00 PM to 6:00 AM.
(4) Wages shall be in a proportion of the existing wages (e.g. If wages for eight hours are 80 Rupees, then proportionate wages for twelve hours will be 120 Rupees).”
[Extract from judgment of the Supreme Court in Gujarat Mazdoor Sabha v. The State of Gujarat decided on 1 October, 2020, (hereafter ‘GMS’)] - In view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of a FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register a FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of a FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.
[Excerpted from the judgment delivered by Sathasivam, C.J.I. in Lalita Kumari v. State of Uttar Pradesh, (2014) 2 SCC 1 (hereafter ‘Lalita Kumari’)]
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Top CLAT PG Public International Law Questions
- The Russian Federation’s specific claims alleging genocide, and invoking that alleged genocide as the basis for military action against Ukraine, include:
a. On 21 February 2022, the President of the Russian Federation stated in an official address that there was a “genocide” occurring in Ukraine, “which almost 4 million people are facing.”…
b. The President of the Russian Federation then announced a “special military operation” and stated that “[t]he purpose of this operation is to protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kiev regime.”…
c. In an interview on 25 February 2022, the Russian Ambassador to the European Union was asked about President Putin’s reference to genocide as justification for Russia’s unlawful acts against Ukraine and said “[w]e can turn to the official term of genocide as coined in international law. If you read the definition it fits pretty well.”…
Therefore, the parties’ dispute over first, the existence of acts of genocide, and second, Russia’s claim to legal authority to take military action in and against Ukraine to punish and prevent such alleged genocide, is a dispute that concerns the interpretation, application or fulfilment of the [1] Convention. Accordingly, the Court should recognize its jurisdiction on a prima facie basis for purposes of indicating provisional measures.
[Excerpted from: Request for the Indication of Provisional Measures Submitted by Ukraine, February 26, 2022, in Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), International Court of Justice] - To every State whose land territory is at any place washed by the sea, international law attaches a corresponding portion of maritime territory... International law does not say to a State: “You are entitled to claim territorial waters if you want them”. No maritime State can refuse them. International law imposes upon a maritime State, certain obligations and confers upon it certain rights arising out of the sovereignty which it exercises over its maritime territory. The possession of this territory is not optional, not dependent upon the will of the State, but compulsory. In the ninth edition of Oppenheim’s International Law, the nationality of ships in the high seas has been referred to in paragraph 287, wherein it has been observed that the legal order on the high seas is based primarily on the rule of International Law which requires every vessel sailing the high seas to possess the nationality of, and to fly the flag of, one State, whereby a vessel and persons on board the vessel are subjected to the law of the State of the flag and in general subject to its exclusive jurisdiction. In paragraph 291 of the aforesaid discourse, the learned author has defined the scope of flag jurisdiction to mean that jurisdiction in the high seas is dependent upon the Maritime Flag under which vessels sail, because no State can extend its territorial jurisdiction to the high seas. Of course, the aforesaid principle is subject to the right of ‘hot pursuit’, which is an exception to the exclusiveness of the flag jurisdiction over ships on the high seas in certain special cases.
- The International Court of Justice recalls that, pursuant to Article 41 of its Statute, it has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences. However, this power will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights claimed before the Court gives its final decision. The condition of urgency is met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the Court makes a final decision on the case. The Court must therefore consider whether such a risk exists at this stage of the proceedings. The Court is not called upon, for the purposes of its decision on the Request for the indication of provisional measures, to establish the existence of breaches of obligations under the Genocide Convention, but to determine whether the circumstances require the indication of provisional measures for the protection of the right found to be plausible. Having determined that Ukraine can plausibly assert a right under the Genocide Convention and that there is a link between this right and the provisional measures requested, the Court then considers whether irreparable prejudice could be caused to this right and whether there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to this right before the Court gives its final decision.
- Conceptually, extradition is a rather complex jurisprudential zone as it has encompassed within itself various trajectories of apparently conflicting ideas. Generally, a State’s criminal jurisdiction extends over offences committed within its geographical boundaries but it is the common experience of all the countries that often a criminal committing an offence in one country flees to another country and thus seeks to avoid conviction and the consequential punishment. This poses a threat in all civilised countries to a fair adjudication of crime and sustaining the constitutional norms of rule of law. To remedy such anomalous and unjust situation, extradition has been evolved by way of international treaty obligation which ensures a mode of formal surrender of an accused by one country to another based on reciprocal arrangements. In India, extradition has not been defined under the Extradition Act, 1962. However, extradition has been defined as: ‘… the surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender.’ But extradition is different from deportation by which competent State authorities order a person to leave a country and prevent him from returning to the same territory. Extradition is also different from exclusion, by which an individual is prohibited from staying in one part of a sovereign State. Both deportation and exclusion basically are nonconsensual exercise whereas extradition is based on a consensual treaty obligation between the requesting State and the requested State.
- The Supreme Court has observed that in international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation. The move from the patronising and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in moves to place the rights of persons with disabilities within the category of universal human rights. Disabled people no longer see their physical or mental limitations as a source of shame or as something to overcome in order to inspire others. What non-disabled people do not understand is that people with disabilities also have some rights, hopes and aspirations as everyone else. They do not want to depend on others. For this they want the proper environment to grow. It is the thinking of Disability Rights Movement, USA that it is not so much the disabled individual who needs to change, but the society
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Top CLAT PG Questions
- Our society is governed by the Constitution. The values of constitutional morality are a non-derogable entitlement. Notions of “purity and pollution”, which stigmatise individuals, can have no place in a constitutional regime. Regarding menstruation as polluting or impure, and worse still, imposing exclusionary disabilities on the basis of menstrual status, is against the dignity of women which is guaranteed by the Constitution. Practices which legitimise menstrual taboos, due to notions of “purity and pollution”, limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to places of worship and, eventually, their access to the public sphere. Women have a right to control their own bodies. The menstrual status of a woman is an attribute of her privacy and person. Women have a constitutional entitlement that their biological processes must be free from social and religious practices, which enforce segregation and exclusion. These practices result in humiliation and a violation of dignity. Article 17 prohibits the practice of “untouchability”, which is based on notions of purity and impurity, “in any form”. Article 17 certainly applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion and subjugation faced by women. Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values. As an expression of the anti-exclusion principle, Article 17 cannot be read to exclude women against whom social exclusion of the worst kind has been practised and legitimised on notions of purity and pollution. Article 17 cannot be read in a restricted manner. But even if Article 17 were to be read to reflect a particular form of untouchability, that Article will not exhaust the guarantee against other forms of social exclusion. The guarantee against social exclusion would emanate from other provisions of Part III, including Articles 15(2) and 21. Exclusion of women between the age group of ten and fifty, based on their menstrual status, from entering the temple in Sabarimala can have no place in a constitutional order founded on liberty and dignity.
[Extracted from Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1 (hereafter IYLA)] - An Ordinance which is promulgated by the Governor has (as clause 2 of Article 213 provides) the same force and effect as an Act of the legislature of the State assented to by the Governor. However - and this is a matter of crucial importance – clause 2 goes on to stipulate in the same vein significant constitutional conditions. These conditions have to be fulfilled before the ‘force and effect’ fiction comes into being. These conditions are prefaced by the expression “but every such Ordinance” which means that the constitutional fiction is subject to what is stipulated in sub-clauses (a) and (b). Sub-clause (a) provides that the Ordinance “shall be laid before the legislative assembly of the state” or before both the Houses in the case of a bi-cameral legislature. Is the requirement of laying an Ordinance before the state legislature mandatory? There can be no manner of doubt that it is. The expression “shall be laid” is a positive mandate which brooks no exceptions. That the word ‘shall’ in sub-clause (a) of clause 2 of Article 213 is mandatory, emerges from reading the provision in its entirety. As we have noted earlier, an Ordinance can be promulgated only when the legislature is not in session. Upon the completion of six weeks of the reassembling of the legislature, an Ordinance “shall cease to operate”.
Article 213(2)(a) postulates that an ordinance would cease to operate upon the expiry of a period of six weeks of the reassembly of the legislature. The Oxford English dictionary defines the expression “cease” as : “to stop, give over, discontinue, desist; to come to the end.” P Ramanatha Aiyar’s, The Major Law Lexicon defines the expression “cease” to mean “discontinue or put an end to”. Justice C K Thakker’s Encyclopaedic Law Lexicon defines the word “cease” as meaning: “to put an end to; to stop, to terminate or to discontinue”. The expression has been defined in similar terms in Black’s Law Dictionary.
The expression “cease to operate” in Article 213(2)(a) is attracted in two situations. The first is where a period of six weeks has expired since the reassembling of the legislature. The second situation is where a resolution has been passed by the legislature disapproving of an ordinance. Apart from these two situations that are contemplated by sub-clause (a), sub-clause (b) contemplates that an ordinance may be withdrawn at any time by the Governor. Upon its withdrawal the ordinance would cease to operate as well.
[Extracts from the judgment of majority judgment in Krishna Kumar Singh v. State of Bihar, Civil Appeal No. 5875 of 1994, decided on January 2, 2017 hereafter ‘KK Singh’] - The other material which prompted the High Court to reach the conclusion that the subsoil/minerals vest in the State is … recitals of a patta which ….. states that if minerals are found in the property covered by the patta and if the pattadar exploits those minerals, the pattadar is liable for a separate tax in addition to the tax shown in the patta and …. certain standing orders of the Collector of Malabar which provided for collection of seigniorage fee in the event of the mining operation being carried on. We are of the clear opinion that the recitals in the patta or the Collector’s standing order that the exploitation of mineral wealth in the patta land would attract additional tax, in our opinion, cannot in any way indicate the ownership of the State in the minerals. The power to tax is a necessary incident of sovereign authority (imperium) but not an incident of proprietary rights (dominium). Proprietary right is a compendium of rights consisting of various constituent, rights. If a person has only a share in the produce of some property, it can never be said that such property vests in such a person. In the instant case, the State asserted its ‘right’ to demand a share in the ‘produce of the minerals worked’ though the expression employed is right – it is in fact the Sovereign authority which is asserted. From the language of the BSO No.10 it is clear that such right to demand the share could be exercised only when the pattadar or somebody claiming through the pattadar, extracts/works the minerals – the authority of the State to collect money on the happening of an event – such a demand is more in the nature of an excise duty/a tax. The assertion of authority to collect a duty or tax is in the realm of the sovereign authority, but not a proprietary right….
The only other submission which we are required to deal with before we part with this matter is the argument of the learned counsel for the State that in view of the scheme of the Mines and Minerals (Development and Regulation) Act, 1957 (hereafter ‘MMDRA’) which prohibits under Section 4 the carrying on of any mining activity in this country except in accordance with the permit, licence or mining lease as the case may be, granted under the Act, the appellants cannot claim any proprietary right in the sub-soil…
[Extract from the judgment in Thressiamma Jacob v. Dept. of Mining & Geology, (2013) 9 SCC 725] (hereafter ‘T Jacob’) - A nationwide lockdown was declared by the Central Government from 24 March 2020 to prevent the spread of the CoVID-19 pandemic. Economic activity came to a grinding halt. The lockdown was extended on several occasions, among them for the second time on 14 April 2020. On 17 April 2020, the Labour and Employment Department of the State of Gujarat issued a notification under Section 5 of the Factories Act to exempt all factories registered under the Act “from various provisions relating to weekly hours, daily hours, intervals for rest etc. for adult workers” under Sections 51, 54, 55 and 56. The stated aim of the notification was to provide “certain relaxations for industrial and commercial activities” from 20 April 2020 till 19 July 2020.
Section 5 of the Factories Act provides that in a public emergency, the State Government can exempt any factory or class or description of factories from all or any of the provisions of the Act, except Section 67. Section 5 is extracted below: “5. Power to exempt during public emergency. — In any case of public emergency the State Government may, by notification in the Official Gazette, exempt any factory or class or description of factories from all or any of the provisions of this Act except section 67 for such period and subject to such conditions as it may think fit: Provided that no such notification shall be made for a period exceeding three months at a time. Explanation.— For the purposes of this section ‘public emergency’ means a grave emergency whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.” (emphasis supplied) The notification in its relevant part is extracted below:
“... NOW, THEREFORE, in exercise of the powers conferred by Section 5 of the Factories Act, 1948, the ‘Factories Act’ PART B Government of Gujarat hereby directs that all the factories registered under the Factories Act, 1948 shall be exempted from various provisions relating to weekly hours, daily hours, intervals for rest etc. of adult workers under section 51, section 54, and section 55 and section 56 with the following conditions from 20th April till 19th July 2020, –
(1) No adult worker shall be allowed or required to work in a factory for more than twelve hours in any day and Seventy Two hours in any week.
(2) The Periods of work of adult workers in a factory each day shall be so fixed that no period shall exceed six hours and that no worker shall work for more than six hours before he has had an interval of rest of at least half an hour.
(3) No Female workers shall be allowed or required to work in a factory between 7:00 PM to 6:00 AM.
(4) Wages shall be in a proportion of the existing wages (e.g. If wages for eight hours are 80 Rupees, then proportionate wages for twelve hours will be 120 Rupees).”
[Extract from judgment of the Supreme Court in Gujarat Mazdoor Sabha v. The State of Gujarat decided on 1 October, 2020, (hereafter ‘GMS’)] - In view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of a FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register a FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of a FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.
[Excerpted from the judgment delivered by Sathasivam, C.J.I. in Lalita Kumari v. State of Uttar Pradesh, (2014) 2 SCC 1 (hereafter ‘Lalita Kumari’)]
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