Prior to critiquing the order, it would be beneficial to familiarize ourselves with the manner of functioning of certain organizations that are affiliated with Domain Name registration.
Quick Overview of the .IN Domain Name Resolution Policy
Every Domain Name that ends with “.in” (E.g. www.Amazon.in) needs to be registered with the “.INRegistry”. The .INRegistry is an organization that, for our purposes, can be considered to be a part of the “National Internet Exchange of India” (An organization lovingly referred to as NIXI).
Now, the .INRegistry came up with a mechanism to resolve Domain Name disputes.
Said mechanism has been detailed through two documents:
The INDRP envisages arbitration, in accordance with the Arbitration & Conciliation Act 1996 (A&C Act), as the fundamental mechanism for dispute resolution involving Domain Name clashes.
Now that we have a basic understanding of the mechanics, we can delve into J. Muralidhar’s order.
Relevant Facts Overview
Mr. Khatri successfully registered “www.Googlee.in” with the .INRegistry.
Google, a few years later, came across the said website and filed a complaint with the .INRegistry on grounds laid down in Rule 4 of the INDRP (We will look into the grounds at a later stage).
As required by the INDRP, the .INRegistry appointed an arbitrator to settle the dispute.
Arbitrator decided against Mr. Khatri.
So, the key question in front of J. Muralidhar was:
Should the Arbitral Award be set aside?
Mr. Khatri put forth two arguments for setting aside the arbitrator’s decision:
- That there existed no arbitration agreement between the two parties.
- That the arbitral proceedings violated principles of natural justice.
Let us look at each of these contentions.
For valid arbitral proceedings to take place, it is necessary for both parties to enter into an arbitration agreement (Defined under S. 7 of the A&C Act). But in the current case, no such agreement was entered into.
J. Muralidhar, summarily brushed the contention aside by reasoning that the current complaint was under the dispute resolution mechanism envisaged by the INDRP. Additionally, registration at the .INRegistry was akin to an implicit acceptance of the INDRP prescribed resolution method.
Moving on, it is J. Muralidhar’s handling of the second contention that is far more controversial.
Mr. Khatri contended that explicit rules laid down in the INDRP ROP were violated by the arbitrator. He alleged that Rule 4(c) and 13 of the INDRP ROP were violated. From reading the order, I get a feeling that Mr. Khatri, apart from alleging violation of explicit rules, also alleged violation of the more abstract principles of natural justice.
Before delving deeper, let us quickly review the law on the matter.
We need to understand that possible rebuttals to claims of violation of explicit provisions are distinct from violation of natural justice principles. Principles of Natural Justice serve to protect wronged parties over and above the protection afforded by the prescribe rules or a statute. Generally, as long as no glaring prejudice is shown and overall fairness is maintained, courts do not tend to set aside decisions on grounds of natural justice violation.
But where explicit rules are established, courts cannot, or at least should not, justify violation of explicit rules on account of maintenance of overall fairness. Otherwise, the rules become almost redundant. Consequently, as long as a rule has been violated, the decision should be invalidated.
Coming back to the order at hand, J. Muralidhar failed to see this distinction.
Neither do I believe that the prescribed rules were violated, nor do I believe that Principles of Natural Justice were actually violated. So, I do agree with the order’s final effect, but what I do not find acceptable is the judge’s imprecise handling of the matter.
He could have first shown how there was no violation of the explicit rules and then, consequently, have set aside the Natural Justice violation issue.
He conflated the both in such a manner that the legal analyst gets the sense that the violation of explicit prescribed rules, of the INDRP ROP, were justified on account of the general fairness with which the arbitrator conducted the proceedings (notices were duly sent, decision was duly uploaded, etc.).
But to be fair, J. Muralidhar has Supreme Court precedent backing him.
He refers to The Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee. Even in this case, violations of prescribed mining regulations were justified on account of the overall fairness with which the decision maker dealt with the situation. This is a clear conflation of violation of explicit rules and violation of natural justice principles.
Anyway, given that J. Muralidhar has SC precedent backing him, I cannot entirely criticize him as he hasn’t (technically) applied the law incorrectly. But to be clear, I find the law itself to be problematic.
But the judge wasn’t done dealing with the second contention yet.
Let us look at how J. Muralidhar determines whether natural justice principles (in J. Muralidhar’s conflated sense of it) were violated:
“19. The question then is how seriously was Mr Khatri prejudiced? The incidental question is whether Mr Khatri has a solid defence on merits, which if put forth would have altered the decision?”
I feel the best way of arguing against this line of reasoning is by asking a rhetorical question:
How can the fact of prejudice be determined by the merits of a party’s substantive arguments?
Whatever happened to Justice Hewart’s long standing principle:
“Not only must Justice be done, it must also be seen to be done.”?
The fact of prejudice should have been determined by delving into question of due notice, arbitrator’s treatment of parties, possible vested interests of the arbitrator, et cetera.
But J. Muralidhar chose to go into the merits of Mr. Khatri’s arguments.
I wouldn’t have been so perturbed, if he had gone into the merits independently. I find it incredibly problematic because he has attempted to justify (alleged) prejudice by pointing at the weakness in the plaintiff’s substantive arguments. He drew a direct link between the two.
After drawing the controversial link, the judge goes on to analyze the substantive arguments.
Google based its complaint on 4 (ii) and (iii).
Rule 4 of the INDRP.
“Types of Disputes
Any Person who considers that a registered domain name conflicts with his legitimate rights or interests may file a
Complaint to the .IN Registry on the following premises:
(i) the Registrant’s domain name is identical or confusingly similar to a name, trademark or service mark in which the Complainant has rights;
(ii) the Registrant has no rights or legitimate interests in respect of the domain name; and
(iii) the Registrant’s domain name has been registered or is being used in bad faith.
The judge analyzed both the sub-provisions and ruled as follows:
He showed that Mr. Khatri could neither provide reasons (“legitimate interest”) for using www.Googlee.in nor did he register the Domain Name in good faith, given that his website was incredibly similar to Google’s website even in design (colour schematic, font, etc.).
Hence, the Judge held Mr. Khatri had no viable defence on substantive grounds.
Interested readers can refer to Prof. Basheer’s take on the provision here.
All in all, I agree with the end, but the treatment of the matter leaves a lot to be desired.
Violation of Natural Justice Principles was conflated with violation of prescribed rules.
Next, I pointed towards the infirmity in rebutting alleged prejudice by indicating towards the lack of merit in the alleging party’s substantive claims. The factors for determining the existence of prejudice are distinct from factors concerning substantive arguments.
Finally, we reviewed the substantive arguments.
Cover image from here.