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.

Nandini Sunder v Union of India (SPO Case) : Not just Fundamental Rights to discuss, Are we forgetting Separation of Powers?

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“Our Constitution charges the various organs of the state with affirmative responsibilities of protecting the interests of, the welfare of and the security of the nation…. powers are granted to enable the accomplishment of the goals of the nation. The powers of judicial review are granted in order to ensure that such power is being used within the bounds specified in the Constitution. Consequently, it is imperative that the powers so granted to various organs of the state are not restricted impermissibly by judicial fiat such that it leads to inabilities of the organs of the government in discharging their constitutional responsibilities. Powers that have been granted, and implied by, and borne by the Constitutional text have to be perforce admitted. Nevertheless, the very essence of constitutionalism is also that no organ of the state may arrogate to itself powers beyond what is specified in the Constitution. Walking on that razors edge is the duty of the judiciary. Judicial restraint is necessary in dealing with the powers of another coordinate branch of the government; but restraint cannot imply abdication of the responsibility of walking on that edge.”[1]

Nandini Sunder is one of the finest examples of the extent to which the Supreme Court of India can spread their legs in policy matters. The Supreme Court decision in this matter not only struck down a policy of Government as unconstitutional, but observed the dimensions of such policy indicating how a law ought to be. The Supreme Court in the decision feared the criticism on the excessive spread in the matter of policy by the jurist, but justified the same with the quote from a recent decision of Supreme Court in the matter of GVK Industries and the argument that the Court has to move on "edged razors" for the Constitution.

Supreme Court struck down Section 9 of the Chhattisgarh Police Act and Section 18 of the Indian Police Act in violation of the Article 14, 21 and 355 of the Indian Constitution. Court held that the no sovereign can take this argument that insufficiency of the resources are putting the citizen of the country and justifying the violation of the Fundamental Rights. Court also said that the funding of Union to State of Chhattisgarh for the act which is unconstitutional is violative of Article 355 of the Constitution.

The Apex Court remained concerned about the after security issues of the Special police Officers while issuing the orders for disarmament and ordered for the appropriate measures by the State of Chhattisgarh on the issue of security after disarmament.


Court observed following:

1. The discipline of the Constitutionalism is accountability of power whereby the power of the people vested in any organ of state, and its agent, can only be used for promotion of constitutional values and vision.

2. The appointment of the SPOs is dehumanizing in the nature and doesn’t propagate the Constitutional values in any respect.

3. The Court also condemned the “privatization” and “political economy” of the country and took a very socialistic view in the decision throughout. The Court, however, didn’t talk about the distribution of resources among the citizen for equal opportunities. Holds privatization policy as cause of the Maoist problem together with the financial imbalances in the country.

4. Court  also observed that the unrest in democracy is the true indicator of democracy. Only unrest can suggest that the Government has to perform well as citizens want it. The repression of the unrest is undemocratic in nature.

5. Court mentioned, Corporate and multinationals as one of others who are responsible for the situation in the Chhattisgarh. In my view, these were untenable statements and Court shouldn’t decide what is not good and leave it for the legislature. Court ought to do it is not good according to Constitution or Law, and shouldn’t enter into this other domain[2]. Court well went into the problem solution mode of the governance which is not its area of concern[3]. Court also condemned the tax subsidies etc. to private party which is again not its domain of analysis. I think the citizen representatives are best to decide upon what and how much tax should one be paying and who all should be exempted. Strictly not the matter to be discussed by a Court.

Giving refute on the MNCs and Economic Policy of government, I must say Court leaped a step forward to forbidden area of policy making. This further would bring biasness in attitude of Apex Court.

Court found section 9 of Chhattisgarh Police Act and Section 18 of the Indian police Act as the violative of Article 14 and 21 of the Constitution. Court backfired on the argument from the Chhattisgarh that they are providing them the employment. Court stated that the necessary education of the SPO is till the 5^th standard and they won’t know how and when to use a weapon up to its best capacity. Court further stated that the claim of Chhattisgarh that the SPO are taught with the principles of Human Rights and Cr.PC and Evidence Act is also devoid of credibility as these subjects require a minimum of the background education. Court stated that how would a SPO know that what is self defense and when does it start (On the argument that firearms are provided for their self defense). It is intricate matters of law which requires a level of intellectual capacity that these SPO (5^th standard pass out or lower) can't posses. Court held this as violative of Article 21 of the Constitution as these unskilled SPO are put into front with less and almost no effective training that has resulted into higher ratio of casualty than the Police force.

Court, on the argument of the Chhattisgarh that the SPO are given same level of rank as that of the Police Officer, asked the question on the discrimination on the level of salary. The Salary of SPOs is less than one-third of the regular police officer. Court held that, further the regular force are more skilled in the training and knowledge of weaponry for the front than these SPOs, this is violative of Article 14 of the Constitution.

Whereas the decision is very learning, Court indeed jumped few hoops. The criticism is following, and if continues, in a long run, it might be catastrophic. We must understand that the three branches (Judiciary, Executive and Legislature) are equally powerful and they sustain together because they respect each other’s domain.

Taking separation of power on a lighter concern, yet another fine decision from one of the most dynamic Courts of the world.

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[1] G.V.K. Industries v. ITO, 2011 4SCC 36

[2] Pg 11-15

[3] Pg 18