Constitutionality of Section 126 of The Patent Act

Recently, Madras High Court decided on a matter concerning Section 67 (a) of the Patent Amendment Act, 2005. It held the 2005 amendment unconstitutional and unenforceable in law. The decision restores the deleted clause of section 126 back to the place and section 126 may now be read as:

Qualifications for registration as patent agents.—(1) A person shall be qualified to have his
name entered in the register of patent agents if he fulfills the following conditions, namely:— (a) he is a citizen of India; (b) he has completed the age of 21 years; (c) he has obtained a degree in science, engineering or technology from any university established under law for the time being in force in the territory of India or possesses such other equivalent qualifications as the Central Government may specify in this behalf, and, in addition,— (i) is an advocate within the meaning of The Advocate Act 1961 (25 of 1961; or (ii) has passed the qualifying examination prescribed for the purpose; or (iii) has, for a total period of not less than ten years, functioned either as an examiner or discharged the functions of the Controller under section 73 or both, but ceased to hold any such capacity at the time of making the application for registration; (d) he has paid such fee as may be prescribed.

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Reading through the decision was mazy and lead me to turn the pages multiple times to realize a probable miss-out. Anyway, I thought of writing down where Court might have missed pieces. Needless to say, it is also an opportunity to verify my understanding with all my readers. Your comments and suggestions are welcome.

First: the underlined and bold part of the section 126 quoted above:

The judgment reiterates, that the prior to the impugned amendment (that is amendment of 2005), any advocate could register themselves as the patent agent. This statement is factually wrong. ( and this statement actually create a doubt on the reasoning of the judgment and the obiter. I was actually lost thinking why would judge discuss law as social science? The amendment to the requirement of science degree was not even challenged in the writ petition!!) 

Even prior to 2005 amendment, the law as it stood was to make only those advocates eligible to be registered who held a degree in science/technology/engineering. Any Advocate was not eligible to be registered as Patent Agent. I am not sure if the whole judgement is based on this mistaken fact ! Well this anomaly typically is pretty much distraction while reading the judgment. (and while writing this blog as well !!). 

Coming to the constitutionality of section 126 of the Act. The judge struck down the 2005 amendment on the basis of Article 14, 19 and 21. I majorly agree on the conclusion of judgment, however, my reasoning may not be in congruence with the judgment and I independently have tried to see the constitutionality of the amendment and section 126.

Article 14 wrt 2005 Amendment:

 Article 14, being one of the Fundamental Rights, mandates equal treatment of persons before law. However, the state may choose unequal treatment if the state may justify the cause. Briefly speaking the Article 14 may legally be violated if it passes the two step test i.e.:

      a.   the enactment creates an intelligible diffrentia among the persons  

      b.      And that the intelligible differentia has a rational nexus with the object that the statue seeks to achieve through the legislation.[1]

The intelligible diffrentia must clearly indicate the group of people created and those who are clearly left out. The object of the enactment is gathered from the mischief the enactment has sought to remedy and is a two way step:

     1.      Determine the mischief that existed at the time of enactment.

      2.      How legislation has remedified that mischief with respect to the enactment.

Having said this, let us see the intelligible differentia in Section 126 and the object of the enactment.

Intelligible differentia: The Science graduates who have passed the Patent Agent Examination. Sounds Good!

Object of the Enactment: The object and reason section of the Patent Amendment Act, 2005 is silent in this particular context. The object of the statue can be gathered from section 127 which states rights (and hence duties) of the Patent Agent. Section 127 is enacted as:

127. Rights of patent agents. Subject to the provisions contained in this Act and in any rules made thereunder, every patent agent whose name is entered in the register shall be entitled-

(a) to practise before the Controller; and

(b) to prepare all documents, transact all business and discharge such other functions as may be prescribed in connection with any proceeding before the Controller under this Act.

Please note that section 127 doesn't mention any other object!! (No mention of understanding the invention, or clarifying the invention or technology or engineering or any other similar requirements).

Rational Nexus between the Differentia and Object: The intelligible differentia must have a rational nexus with the object of the enactment. This is where the 2005 amendment gets a blow. What is nexus between the drafting/pleading and transacting the documents in front of controller and being a science graduate? The answer is that a drafter or a prosecutor may be able to understand the subject matter more clearly and thoroughly. The next question is how an Advocate, (who by the way, is science graduate and trained to and certified by BCI to argue cases and represent the clients in District Court, High Court and Supreme Court in matters concerning the Patents and other laws!!) is not creating a better nexus with the object of the enactment? 

The unanswered question is more of question of fact. Are the science grads after passing a Patent Agent Examination are better versed to practice in front of Controllers than Advocates who are both lawyers and science graduates, and are certified by BCI after due diligence? What does Patent Agent Examination test? Knowledge in law or knowledge in technology or both? If the Patent Agent examination is designed so as to cover the aspects mentioned in section 127 of the Act, are aspects of section 127 alien to Advocates? Is the subject matter covered in Patent Agent Examination is not covered in Law Universities? What is more important, a specialized knowledge of the Patent Act or understanding of law in general, or both?

Well my opinion: The object gathered from Section 127 is not achieved by the Section 126, or at least there exist one class which is in equal or better position to create the intelligible differentia, and is left out. Eliminating a better qualified class to achieve the object of the statue is unreasonable classification. For example, P Rajendran v State of Madras, the Apex Court has denied the Constitutionality of the enactment when the intelligible differentia environed a lesser qualified person to achieve the object than more qualified person through the statue. Case is similar here. Again, legislature must reflect the nexus in the Act. Courts are not going to take the argument that it is Constitutional because some international treaty is in force. International treaties are not binding on any Indian Court

The point is simple and straight: Either the law is arbitrary, or the legislature hasn’t drafted the Act diligently to make the section 126, section 127, and object of the Act robust enough to withstand the test of Article 14.

I am not against the fact that the Patent Agents should have legal and technical skills in a well blend mixture; I am just cognizant of the fact that my law is not permitting this criteria as fundamental rights violation are not justified with the present shape of the enactment. Either law changes to bring a rational nexus or the enactment goes!! 

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The 2005 amendment did violated Article 14 at least on rational nexus. There are some other parameters which might find force in unconstitutionality of Section 126 at its present form. I will give it a go right now for my next post.

[1] The test was clearly expressed by Das J in State of WB v  Anwar Ali Sarkar, AIR 1952 SC 75. The test has been repeated in different cases and is a strong established precedence in the Apex Court.

Ram Jethmalani and Others vs Union of India (The Tax haven Case)

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One of the other cases exulting the Constitutionalism and refuting the inaction of the government on the matter of crime as violation of constitutional values and constitutionalism. The petition was forwarded by some eminent professional like Mr. Ram Jethmalani, Mr. Gopal Sharman, Jaybala Vaida, Mr. KPS Gill, Prof. BB Dutta, and Mr. Subhash Kashyap. The petition came to the Court on the basis of news flooded in newspapers and tabloid about the inaction of the Government to bring back the tainted money deposited in the foreign Banks and Tax Havens.

Petitioner contended that the money deposited in the foreign banks can be used for unlawful purposes. The petitioner also alleged that the money deposited is owned by some of the prominent and influential people of India as the efforts made to bring back the same is intervened at different times which is only possible by high level intervention. The petitioner giving the example of reversal of RBI decision on providing license to UBS group for retail banking license in 2008 further tried to convince the Court of the involvement of influential persons from corporate and political arena.

Petitioner also questioned the inaction on the part of government in reveling the documents related to Hasan Ali when it itself has claimed a tax amount of Rs. 70000 Crores pending from his side. The similar case is for Tapuria where no action is taken despite the fact that the Government has claimed thousands Crores of Rupees not paid as tax.

From the petitoner's side, it was requested to constitute Special Investigation Team (SIT) headed by one or two judges of Supreme Court to look into the matter which was opposed by the Government of India.

The Bench of Justice Sudershan Reddy J and Surender Singh Nijjar J expresses dismay over the attitude of Government of India and virtually smashed the arguments placed by her. The Government pleaded that these are the matters of international diplomacy and takes its due course and thus are in complex in nature. In the particular issue of the account in the German Banks and Liechtenstein, the petitioner alleged that the countries offered to provide the name of the account holder but the Government chose to assume that they could have asked. Government on the matter contended that the under the DTAA they are proscribed to reveal the name of the persons holding the account and further that it would be against their right of privacy under Article 21 of the Constitution.

The Court interpreting the DTAA between India and Germany declined the argument placed by the Government. Further the Article 26 of the agreement specifically put exception to the disclosure to any Court Proceedings. Court stated that though India is not the party to Vienna Convention of Law of Treaties, it has adopted the general principles of the rule interpretation in practice. Referring to the Article 31 of the Convention, the Court stated that the treaty is to be interpreted to maximum welfare and in good faith. Court further stated that the Article 26 of the DTAA puts secrecy clause for the purpose of the agreement i.e. in the matter related to the DTAA, however, the purpose for which the present matter is concerned doesn’t even remotely touch the implications of secrecy clause.

Court cautioned the drafting of the treaties as it is mostly done by the diplomats than lawyers. The Court said that the treaties is to be interpreted keeping this notion in view that these are interpreted by the diplomats. It is important to take note that the treaties are to be given general meaning “as to the lawyer to to the layman alike”. However since these are drafted by the diplomats, it I to be taken care that none of the words remain redundant in the constitutional perspective.

Praising the contribution of Germany in modern Constitutionalism, especially for the concept of Basic Structure Doctrine of the Constitution of India which is borrowed from the German Constitution, the court said that the Germany would be aware of the fact that such clause, if used in the way Union of India is asserting would lead to setting aside the constitutional imperatives.

Court further stated that in the cases where state has most of the information put in boxes, the state can’t take advantage of adversarial system of common law. In the cases of Fundamental Rights, the state must put all the relevant information before the Court despite adversarial system doesn’t put a burden on it to do so.

The apex Court drew the relation between the Article 32(1) and Article 19(1) (a) and said that the withholding the information from the Court is restraining the right of expression of the petitioner.

Right to Privacy:

In the matter of assertion of the Union of India that the disclosing the name of the account holder would violate the right to privacy, Court accepted the assertion. Court, recognizing that the right to privacy is an important part of the Article 21 can only be taken out by law. Since being the account holder of the said bank is not an illegal act, the concern individuals have their right intact and can’t be violated. Court further held that it wouldn’t make any exception in this regard as the bits may be read to create further exception in future which is not good for democracy.

The decision is insightful and dealt with the constitutional values and principles. This decision can be placed on the same side as Nandini Sunder in regard to the emphasis on the Constitutional Principles and values. However, both the decision criticized the private investment and suggested policy remake which is beyond understanding of separation of powers.

The precedence set in these decisions is not concern of immediate future, but as the Supreme Court itself noted, these kind of exceptions, in regard to any fundamental concept could “bit by bit could eviscerate” the main value.

"Again reserving my opinion in the matter of observation in regard to the policy and indirect suggestions to legislature by Supreme Court of India when law is already in place by legislature, the decision is worth reading".