Heard Both Sides

 

(By T.P. Kelu Nambiar, B.A. M.L.)

 

The Judge, in black, sober robes, entered, sidestepped by the mace-bearer; and nodded, disgustingly though, as he tried to make himself comfortable in a chair designed more for effect as a seat of justice, than for comfort for the man dispensing it. There was a deep line cut down from the side of the Judge's mouth, an ineradicable part of him, formed by a conscious effort to gain gravity and authority. There was a dignified authority in the poise of his head and the angle of his physical attitude. How very different the Judge looked on the Bench; much more desiccated on the Bench than in real life.

 

"Yes", the Judge grunted, thinking big and acting fast, with a nod of sovereign to serf.

 

The Court Officer called;

 

"Item No.1, O.P. No............of.............."

 

A middle-aged senior-looking counsel, possibly a Judge in waiting, stood up, hitched his gown around him and arranged his notes on the lectern before him. And, before the counsel could open his mouth, the Judge, eyes Fixed on his notes, muttered: "Exhibit P3"; and summoned the short-hand writer; and dictated, in toned down voice, audible only by straining the ears, and cupping the pinna:

 

"Petitioner is aggrieved by Exhibit P2 order transferring him from..........to...............Against Ext. P2, he has made Ext. P3 representation to the 2nd respondent." "Next paragraph".

 

Heard both sides. The 2nd respondent is directed to consider and dispose of Ext. P3 as expeditiously as possible; at any rate, within a period of two months from the date of receipt of a copy of this judgment". The case was over and out.

 

The Judge said: "Next"; and observed a dignified reticence. The counsel pretended to be at peace with himself; and lapsed into helpless acquiescence, accepting the mercy and the charity. The Court officer called: "Item No.2 : O.P. No............of.............".

 

The above 'first information report' shows that nobody was heard. Even the pronouncement was hardly audible. Everybody reacted with a perplexed silence on the brilliant advocacy. Such things happen oftener and oftener, at times in series even. Sometimes the case has yet to be argued but the decision is almost in the bag. It all ended before it was begun. Both sides could claim victory of sorts, heads bowed and body bent, without being heard; and could be looking good for more. The legal profession seems to be injured from shoulder to foot.

 

Tailpiece: Subko Sanmathi De Bhagwan":

 

Mahatma Gandhi.

 

 

Blanket Ban on Strikes By Labour - A Judicial Excess?

 

(By Justice V.R. Krishna Iyer)

 

A serendipitous pronouncement by a Division Bench of the Supreme Court declaring is as it does, regarded by critics as a curial aberration, a broad-spectrum ban on Labour's right to strike without investigating the grave grievances of the employees, over a hundred thousand strong, which the State Government, in alleged intransigence, ignored, leading to the menacingly militant lightning strike. The Court, in its wisdom, disposed of the matter without discharging its adjudicatory function of examining the central issue under challenge viz., the vires of the bizarre, blitz. Ordinance dismissing into the streets, with Draconian severity and stunning celerity, the lakh and odd staff members, sans enquiry under Art.311, sans chance to make representations. The Court, however, was eloquent about the disruptive, illegal, iniquitous, anti-social and unconstitutional dimensions of strikes generally which the Bench felt, held the public to ransom. In an impassioned purple passage, the learned Judge observed:

 

Strike as a weapon is mostly misused which results in chaos and total maladministration. Strike affects the society as a whole and particularly when two lakhs employees go on strike enmasse, the entire administration comes to a grinding halt. In the case of strike by a teacher, entire educational system suffers; many students are prevented from appearing in their exams which ultimately affect their whole career. In case of strike by Doctors, innocent patients suffer, in case of strike by employees of transport services, entire movement of the society comes to a stand still; business is adversely affected and number of persons find it difficult to attend to their work, to move from one place to another or one city to another. On occasions, public properties are destroyed or damaged and finally this creates bitterness among public against those who are on strike.

 

This is powerful prose but is it legal hermeneutics or jural exegetics carrying judicial authority, or hardly anything more than an emphatic expression of chaos and distress caused by strikes, a view which many may share because of the indiscriminate infliction of social disruption by negligible, irresponsible and disorderly elements unaccountable to anyone and measured by the anarchy they generate. Indeed, the irrational frequency and impertinent frivolity of intimidatory strikes are self-defeating operations which sound trade unionism never sponsors. But are all strikes illegal, immoral, unjust or liable to be suppressed by State authoritarianism, employer reprisal or judicial allergy by angry negation of writ relief? My personal regard for the two Judges on the Rangarajan Bench and the institutional reverence for the Supreme Court, the hallowed home of the human rights guarantee, social justice, jurisprudential creativity and curial remediation (of which I was a humble member long ago) persuades me to critique respectfully but ratiocinatively the Rangarajan ruling which seems to hold all strikes as productive of havoc in a democratic society and bete noire and menace to public interest. To critique is not to carp but to correctively comment in good faith. Trade unions are a legitimate, lawful instrument of the working class and strikes, under necessitous circumstances, are a strategic weapon which has legal sanction under just conditions.

 

Lord Atkin, in one of his classic judgments, observed what every member of the judiciary in the Commonwealth and elsewhere will do well to remember:

 

Whether the authority and position of an individual Judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercise the ordinary right of criticizing, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way; the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken , comments of ordinary men. (Judges P-114)

 

After all, Judge Jerome Frank of the U.S. Court of Appeal sensibly explained:

 

In a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions........The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts. (Judges P-205)

 

The overwhelming majority of our Judges do a difficult job fairly well, commanding confidence of the people nevertheless, as Judge Cardozo elegantly observed, in his book The Nature of the Judicial Process, social philosophy does not pass the judges by. Unwitting infiltration of class bias may creep into their overt impartiality. Professor J.A.G. Griffith, in his book The Politics of the Judiciary, gave reasons to hold that Judges, being but human, may not be immune to class bias, never intentional but subconscious in their surrender to partiality. He quotes Winston Churchill whom I reproduce instructively:

 

The Courts hold justly a high, and I think, unequalled pre-eminence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt they deserve and command the respect and admiration of all classes of the community, but where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt biased. (Hon. Members: 'No, no', 'Withdraw' and interruption) The Secretary of Slate for the Home Department (Mr. W.S. Churchill) on the second reading of the Trade Unions (No. 2) Bill, (1911 (26) H.C. Deb. Col. 1022) (The Politics of the Judiciary P. 173).

 

Lord Justice Scrutton made a similar point:

 

The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgments as you would wish. This is one of the great difficulties at present with Labour. Labour says 'Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice?' It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.

 

Lord Justice Scrutton in an address delivered to the University of Cambridge Law Society on 18 November, 1920 (1 Cambridge Law Journal P. 8). (The Politics of the Judiciary P. 173)

 

Does it ring a bell in the bosoms of Indian brethren on the high bench? Our Constitution and Court have a vision which the Crown and Law Britannia do not possess.

 

Did not Lord Atkin in Liversidge v. Anderson hold the House of Lords: 'In this case, I have listened to arguments which might have been addressed acceptably to the court of King's Bench in the times of Charles-1'. Therefore, arguments at the Bar sometimes condition the conclusions of the Bench and public reaction and jurists' evaluation may be reflected in a reconsideration of the law laid down in a decided case. Law never stand still. It is in this liberal spirit and with a constructive purpose that I 'wash in acid' the ratio in Rangarajan and the anti-strike dicta of the Bench,

 

With due deference, I dissent from the macro-negative proposition based on broad assumption and expressed in paragraph twelve of the judgment. 'Now coming to the question of right to strike, whether Fundamental Statutory Equitable. Moral Right - in our view, no such right exists with the Government employees'. The Court's dicta as pointed out in a passage earlier in this paper, have gone beyond Government servants and condemned strikes as unjustified 'on any equitable ground'. In a mood of benignant philosophy, the court counsels Labour on its patriotic duty.

 

In the prevailing situation, apart from being conscious of rights, we have to be fully av.are of our duties, responsibilities and effective methods for discharging the same. For redressing their grievances, instead of going on strike, if employees do some more work honestly, diligently and efficiently, such gesture would not only be appreciated by the authority but also by people at large. The reason being, in a democracy even though they are Government employees, they are part and parcel of governing body and owe duty to the Society. (Para. 21)

 

This moral message, with a pulpit touch, reads like a judicial addition to Jesus' Ten Commandments. This hortative mantra is a spiritual mandate that workers of the world unite; when you have demands to gain from Government or other employer, work harder, produce more and win the Management's heart! No doubt, our country will be transformed if ministers travel less and work more, if Secretaries visit Delhi less and dispose of files more without paper-logging, if public offices slumber less and devote to duty more, if judges hear with more business - like thoroughness, bring down the appalling backlog of dockets and pronounce judgments to the point without prolonged procrastination. Indian Judges have a tough job flooded by escalating litigation and medieval methodology.

 

In this very case, having tactfully and gracefully terminated the dismissal order using the good offices of K.K. Venugopal, a creative, compassionate counsel, the dubious incursion into ambiguous Labour Law was perhaps obiter and superogatory. What did counsel, a battery of them, all eminent, do in countering the harsh criticism of strikes? The judgment is silent about their submissions on 'strike jurisprudence'. With curial cynicism, working class leaders and labour lawyers may pardonably be pejorative against his jurisprudence which may be more at home in President Reagan's country and bring solace to Super-Conservative Mrs. Thatcher and may be to multi-national corporations (MNCs) who are allergic to the presence of labour as menace creating unrest.

 

Our Judges on the high bench are aware not only that India is a socialist Republic but that several provisions of Part IV of the Constitution like Arts.41 to 43A, which are 'fundamental in the governance of the country' have welfare of workers at heart. Indeed, the learned Judges persuaded the Government to take the dismissed workers back as a measure of urgent relief. That shows the concern of the courts for employees. What is hurtful to labour jurisprudence is the castigation of all strikes as vicious. Were we colonial, perhaps the conspiracy theory of strikes might have passed unquestioned. Not so now in Gandhi country. Why, in England of today, trade Union law has nullified the view that strikes are conspiracies. There are situations where the Management is unreasonably recalcitrant and turns down just claims of workers. An observation by Lord Denning, in a dissenting judgment, is relevant. I excerpt a part:

 

Here we have to consider the right to demonstrate and the right to protest on matters of public concern. These are rights which it is in the public interest individuals should possess; and, indeed, that they should exercise without impediment so long as no wrongful act is done. It is often the only means by which grievances can be brought to the knowledge of those in authority - at any rate with such impact as to gain a remedy. Our history is full of warnings against suppression of these rights. (The politics of the Judiciary P-146)

 

Freedom of speech and freedom of association are not mere abstractions nor purposeless inanities. Collective action is implicit in these basic freedoms. In express terms, there is no freedom to strike writ into the Constitution. But collective bargaining for legitimate causes is best served by a creative combination of speech and association, of course, without breach of law and order or transgression of other people's human rights. Once this perspective, sanctioned by constitutional initiative, is correctly and curatively interpreted, industrial jurisprudence becomes a process where both managements and workers have right. When claims are justly made based on the contribution of labour to the progressive profit making capacity of the Industry an arbitrary refusal even to discuss may lead to tension which may mount to the point of peaceful, though militant expression by collective withdrawal from work, otherwise called strike. There is more to strengthen the demand than to destroy the industry or to disturb the peace of the community. Strikes are not a noxious novelty of Indian Trade Unions, but have been in every country where industrialisation has been a part of organized production. Those who are familiar with the International Labour Organisation are not jittery about strikes.

 

A profusion of citations may be avoided by a reference to B.R. Singh's case ((1989) SCC 710) where Justice Ahamedi, speaking for the Bench, observed:

 

The right to form associations or unions is a fundamental right under Art.I9(1)(c) of the Constitution. S.8 of the Trade Unions Act provides for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions and provide for their registration was recognized obviously for conferring certain rights on trade unions. The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unionists act as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively reduced if it is not permitted to demonstrate. Strike in a given situation is only a form of demonstration. There are different modes of demonstrations, eg., go-slow, sit-in, work-to rule, absenteeism, etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. This right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers. But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on it. (1989) 4 Supreme Court Cases 710 para 15)

 

The right to strike and the conditions under which it should be exercised are found in the Industrial Disputes Act. Indeed, the Bench, in B.R. Singh's case, was dealing with a strike in a Public Sector organisation and the court, on an overall view of the facts and circumstances of the case, held:

 

Keeping the interest of the institution in mind and bearing in mind the economic hardships that the labour would suffer if the impugned orders are not set aside, we think that it would be desirable to restore the peace by directing the reinstatement of the workers. (1989) 4 Supreme Court Cases 710 para. 22)

 

A Bench of seven Judges, in the Bangalore Water Supply and Sewerage Board Case, considered in great detail the meaning of the word Industry. A passage from the leading judgment therein is relevant. 'The International Labour Organization has had occasion to consider freedom of association for labour as a primary right and collective bargaining followed by strikes, if necessary, as a derivative right'. In para 62 of the ruling, the Court refers to the Corporation of Nagpur case where the Education Department of Government was brought within the conception of Industry. A plethora of case-law relied on in the leading judgment (in the Bangalore Water Supply etc. case) takes the view that even a hospital run by Government is an industry. Industry implies employers and employees demands and denials of claims, strikes and lockouts and industrial adjudication. Therefore, to exclude the idea of strike from the scope of legality is naive.

 

It is not without significance that in Gujarat Steel Tube case ((1980) 2 SCC 593) the majority of the bench held that it was a fundamental flaw to equate illegal with unjust strikes. A strike may be illegal by a technical violation, but need not be necessarily unjustified. All that I mean is that a token illegality does not make the strike a gross act of injustice. It is surprising that the dubious legality of the Ordinance, extraordinary in its character and timing, had not awakened the court's jurisdiction into considering the constitutionality of the executive legislation affecting a colossal number of public servants. Some day, some bench of the Apex Court may be conscientised into scanning the constitutional jurisprudence of Ordinance Raj.

 

In the U.S.A. where 'hire and fire' is the rule, strikes are considered economic terrorism by the mega-corporate controllerate of the U.S. economy. Industrial jurisprudence is labour-friendly in India. Our Constitution, with social justice and industrial equity writ large, shapes labour law. Our robed brethren offer a dignified place to labour as almost a partner in the productive process.

 

Criticisms apart, the judges in the Rangarajan case need a meed of praise for restoring instantly most of the employees who were sacked by an ireful Government, although it baffles me that Government employees for helping themselves back into office has had to apologize and undertake not to strike ever thereafter. This condition is an ad hoc humiliation which I presume the court never meant.

 

AN AFTERWORD

 

In the provocative context of the contra-strike pronouncement, the learned Attorney General, with alacrity and authority, repudiated the theory that the right to strike is anathematic. This historic right cannot run riot nor turn berserk but, within socially sensitive bounds and liberal legal limits, has a permissible home in Indian jurisprudence. We are not a totalitarian State nor subject to Corporate Employer authoritarianism.

 

I never mean a pejorative reflection on the high bench. The learned judges, with a sense of relief after having secured reinstatement for the bulk of employees, relaxed into a censorious frown and presented a certain point of view not integral to the relief sought or the arguments at the bar. The Court is supreme but not infallible. In a Preface of lovely brevity, Justice Kirpal has rightly stated (in a semi-centennial publication by the Supreme Court):

 

Many a time, the Court has changed its mind and adapted the law and Constitution to suit India's need. If its work has been appreciated, it has not always escaped criticism...............

 

We would like to believe that the Supreme Court has gone about its task less conscious of its supremacy and more warily with the intuition that the Court, though final, is fallible. (Supreme But Not Infallible)

 

Rangarajan is a case where the Court, though pro tern final, is perhaps fallible.

 

Cry the Beloved Land Lord

 

(By T.M. Rajasekharan, Advocate, Calicut)

 

Lease out your house or shop room and you are doomed. In Issac Ninan v. State of Kerala, the Kerala High Court struck down the S. 5 of the Kerala Buildings (L & R.C.) Act as ultra vires the Constitution of India and void: 1995 (2) KLT 848. Thus there is no scope for you to get the rent enhanced. The law makers are sleeping over this for more than eight years.

 

The tenant can keep the rent in arrears as long as he desires, since S.11(2) has virtually become useless. Even if an order of eviction is granted by the courts under S.11(2)(b) after procrastinated litigation, in the three stages, the tenant can get the order vacated by merely paying the rental arrears upto the date of notice, still leaving major chunk of the arrears unpaid. Thus held the Supreme Court in Chinnamma v. Gopalan 1995(2) KLT 755.

 

The tenant can with perfect immunity adopt all possible and imaginary tactics to delay the proceedings before Rent Controller and finally remain ex-parte. He can then file a petition under R.13(2) to get ex-parte order set aside and continue to avoid payment of rent for many years more.

 

Let us take the case of Mohemmed Moosa: 2003 (2) KLT1058. This unfortunate land-lord did not receive a single paise towards rent from the year 1986 onwards. He is not likely to get any rent in near future, by going through the judgment of the Division Bench. The revisional powers vested in the High Court under S.20 of the Act are wider than those under S.115 CPC as held by the Supreme Court in Rai Chand Jain v. Chandra Kantha Kohsla - AIR 1991 SC 744. Further, even subsequent events which have material bearing on the landlord's right to evict can also be considered by the High Court (AIR 1975 SC 1409). In the instant case, here is a tenant who has successfully avoided payment of rent for about 17 years. Surely the High Court ought to have directed the tenant to pay the admitted arrears of rent instead of allowing him to take shelter under highly technical grounds of R.13(3). With great respect I would like to state that hyper technical interpretation of R.13(3), overlooking the spirit and purpose of S.12 of the Act, should have been avoided by the High Court. In other words, 2003 (2) KLT 1058 needs urgent reconsideration.

 

Intellectual Property Rights - An Overview

 

(By Devan Ramachandran, Advocate, Ernakulam)

 

 

Preface

 

With the increased tempo of industrial development, liberalisation of Government policies including import of goods and services, and prospects of a number of projects aided by the World Bank, International Financial Institutions and friendly countries coming up during the next few years, India offers great opportunities for trade, foreign collaboration, technology transfer and equity participation.

 

In this environment, the protection of intellectual property has assumed considerable significance while negotiating collaborations and joint venture agreements for technology transfers and use of trademarks, patents and copy rights in India.

 

As was the case with China, India too showed signs of resistance to quick enforcement of internation intellectual property right (IPR) protection laws as demanded by the developed countries, particularly the U.S. China could get away on grounds that it is not a member of the World Trade Organisation (WTO), but India was required to comply. Under the terms of the WTO, India is required to implement WTO-standard IPR protection laws by 2005. India's general argument was that it does acknowledge in principle the case for strict IPR protection, but this can be done only in phases suited by its own ground reality. The reality is that absence of international IPR protection for some decades has spawned employment for millions, so an overnight clampdown on IPR violators would forment social unrest.

 

However, under pressure from its own domestic industry and the United States, India strengthened its copyright law in May 1994, placing it at par with international practice. The new law, which entered into force in May 1995, fully reflects the provisions of the Berne Convention on copyrights, to which India is a party. Based on its improved copyright protection, India's designation as a "priority foreign country" under the United States' Special-301 list was revoked and India was placed on the "priority watch list".

 

India's trademark protection is considered good by the US authorities, and has been raised to international standards with the passage of the new Trademark Act, 1999 that codifies existing court decisions on the use and protection of foreign trademarks, including service marks. Enforcement of trademark owner rights had been weak in the past, but is steadily improving as the courts and police respond to domestic concerns about the high cost of piracy to Indian rights' holders.

 

India's patent protection was earlier weak and had adverse effects on international pharmaceutical and chemical firms. But India has a different point of view. India's Patent Act prohibits product patents for any invention intended for use or capable of being used as a food, medicine, or drug or relating to substances prepared or produced by chemical processes. Consequently, many drugs invented by foreign companies are widely reproduced. However, as a signatory to the Uruguay Round of GATT, including its provisions on Trade-Related Intellectual Property Rights (TRIPS), India must introduce a comprehensive system of product patents no later than 2005.

 

Intellectual property

 

Intellectual property comprises broadly of industrial and literary properties. Trade Mark, Patent and Designs fall in the former category while Copyright falls in the latter. Copy right for literary and artistic creations, Patent for inventions, Trademark for brand identity and Design protection for aesthetic designs are the major intellectual properties. It also covers Information Technology, Confidential information, Trade secrets. Integrated circuits, and Plant varieties and Geographical Indications

 

I. Patent Laws in India

 

The full reach of the present system of patent laws in India, would become clear by the following illustration.

 

ABC is a pharmaceutical company engaged in the marketing, and research and development ("R & D") of pharmaceutical products. ABC is the owner of proprietary technology used in the development and manufacture of drug Z. This process was patented in the USA in 1994. Drug Z was launched worldwide in 1998 and was patented in the USA and the European Union in the same year. ABC proposes to carry on R&D in India on various products.

 

ABC wants to know whether it can protect its proprietary technology to manufacture drug Z in India. In addition, it wants to know whether drug Z can be patented in India. Further, ABC is concerned about protecting drugs developed by it in India.

 

Under the Indian Patents Act, 1970 ('the Act') certain inventions are not patentable (S.3 of the Act). These include inventions which are:

 

1. frivolous,

 

2. contrary to law or morality, or which cause serious prejudice to human, animal or plant life or health or to the environment,

 

3. relating to a mere discovery of scientific principal,

 

4. a method of agriculture or horticulture,

 

5. any process for the medicinal, surgical, curative or other treatment of human beings, animals or plants to render them free of disease.

 

Pursuant to signing TRIPS, the USA has been notified by the Indian Government as a convention country (See S.133 of the Act). An inventor, whose patent is registered in a convention country, seeking to register his patent in India can be denied registration under S.25 of the Act relating to the opposition of the grant of Patent. In this particular instance, if the application is not made within twelve months from the date of the first application for protection made in the convention country. (See S.25(1)(i) of the Act). In addition, the application can also be denied on the ground that the invention so far as claimed in any claim of the completed specification has been published before the priority date of the claim in any country. (S.25(1)(b) of the Act)

 

Therefore, since the US patent dates back to 1994, the Indian Patent Office will not register ABC's US patent in India - the patent application not having been made within twelve months from, the date of the US patent application.

 

As mentioned above, under the Act, only the process of manufacturing a drug is patentable. However, the actual drug is not patentable. (S.5(1)(a) read with S.2(1) of the Act). The Act was amended on 8 January 1999 in order to bring it in line with the Agreement on Trade Related Aspects of Intellectual Property Rights ("TRIPS"). With this amendment, product patent applications for pharmaceutical and agro-chemical products in respect of inventions made in India or abroad after 1 January 1995 are required to be accepted by the Indian Patent Office from 1 January 1995 under the "mail-box" mechanism and exclusive marketing rights ("EMRs" must be granted to an applicant who satisfies the prescribed conditions. (See S.24B of the Act). As a result, pharmaceutical and agro-chemical products get "pipe line" protection until the Act is amended to permit the grant of product patents in respect of pharmaceutical and agro-chemical products. Further, the inventor/applicant can distribute and sell the pharmaceutical and agro-chemical products in India for a period of five years or till the date of grant or rejection of the patent, whichever is earlier. (See S.24 A of the Act)

 

The EMR provisions in the Act apply only to those inventions in respect of which patent applications have been filed in India or abroad on or after 1 January 1995. Since Drug Z was launched worldwide in 1998 and was patented in the USA and the European Union in the same year, ABC will be able to make an application to patent Drug Z in India. In addition, it will also be able to apply for an EMR in respect of Drug Z.

 

ABC also proposes to carry on R & D in India. In this regard, the foregoing provisions apply. The, Act, after amendment, permits Indians to apply for patents abroad. Further, India has now ratified the Patent Co-operation Treaty. As a result, an inventor can file an international patent application in any country and designate other countries in which he wants the patent to be granted. The country in which the filing has taken place carries out an international inspection. The receiving patent office in India under the PCT is the Calcutta Patent Office. Therefore, ABC will be able to apply for EMRs in India in respect of inventions made in India. In addition, ABC can make PCT applications in Calcutta and obtain world-wide protection for its new inventions.

 

In the circumstances, the new patent regime will stimulate research and development in India. Companies like ABC who were hitherto hesitant do research in India will invest money into the pharmaceutical sector and bring in international best practices.

 

The problem of biopiracy

 

The patents on the anti-diabetic properties of 'karela', 'jamun', and "brinjal", the antibiotic properties of turmeric and the varieties of Basmati highlight the problem of biopiracy - the patenting of indigenous biodiversity-related knowledge in foreign countries.

 

The use of 'karela', 'jamun' and "brinjal" for control of diabetes is common knowledge and everyday practice in India. Their use in the treatment of diabetes is documented in authoritative treatises such as the "Wealth of India", the "Compendium of Indian Medicinal Plants" and the "Treatise on Indian Medicinal Plants".

 

This indigenous knowledge and use consists of "prior art". No patent should be given where prior art exists, since patents are supposed to be granted only for new inventions on the basis of novelty and non-obviousness. However, Art.102 of the U.S. Patent Law, which defines prior art, does not recognise technologies and methods in use in other countries as prior art. 'Prior art' and 'Prior use' in other countries were, therefore, systematically ignored in the U.S. laws on monopolies granted on the basis of claims to invention.

 

However, as regards turmeric, after a complex legal battle, the U.S. Patents and Trademarks Office ruled that a patent for turmeric issued to the University of Mississippi Medical Center in December 1993 was invalid because it was not a novel invention. The turmeric patent failed to satisfy the criteria of novelty as turmeric paste has been used to treat wounds and stomach infections for centuries by Indians.

 

The above mentioned patents are just some of the hundreds that the North has claimed by ignoring indigenous and existing knowledge.

 

Suits concerning Infringement of Patents

 

In India, the provisions relating to the suits concerning infringement of Patents is as provided under Chapter XVIII of the Act.

 

Penalties (Chapter 20 of the Act)

 

The various penalties provided under the Act are enumerated in Chapter 20 of the Act.

 

Publication and Information of patented inventions

 

The Controller shall issue periodically a publication of patented inventions containing such information as the Central Government may direct. (See S.145 of the Act). A person making a request to the Controller for information as respects any patent shall be entitled, subject to the payment of the prescribed fee, to have information supplied to him accordingly. (See S.153 of the Act)

 

II. Copyright Laws in India

 

The origin of copyright had a link with the invention of printing press by Gutenberg in the fifteenth century. With the easy multiplying facility made possible by the printing press, there was voluminous increase in the printing and distribution of books which, in turn, led to adoption of unfair practices such as unauthorised printing by competing printers.

 

Though piracy was born by the end of the fifteenth century, it was only in 1710 the first law on copyright in the modern sense of the term came into existence in England. The law which was known as 'Queen Anne' Statute' provided authors with the right to reprint their books for a certain number of years. The 1710 law was confined to the rights of authors of books only, and more particularly the right to reprint. It did not include other creative works such as paintings, drawings etc., which also by that time became targets of piracy, in addition to other aspects relating to books (eg. translation, dramatisation etc.). To overcome this problem a new enactment namely 'Engravers Act' came into existence in 1735. There followed a few more enactments in the subsequent periods and ultimately Copyright Act 1911 saw the light of the day.

 

Copyright

 

Copyright is a bundle of exclusive rights granted by statute to the author of the works to exploit or authorise the exploitation of the copyright work, based on international norms like Berne Convention, Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement and WIPO Copyright Treaty (WCT). The copyright works in which rights subsists are 'original' literary, dramatic, musical and artistic works, and cinematograph films and sound recording. The term copyright has been defined in S.14 of Copyright Act (the Act for short).

 

Copyright and International Relations

 

The scope of copyright is not confined merely to the arena of creativity and its economic exploitation in the country of its origin. It has emerged as a major factor in international relations. In the recent past, the trade relations between the US and China deteriorated considerably over the issue of protection of Intellectual Property Rights (IPR). The dispute took a serious turn when US trade groups wanted trade relations with China to be stopped completely. The importance of IPRs in general and copyright in particular in the relationships among the countries can be comprehended clearly from the above example.

 

Civil remedies and offences for infringement of copyright

 

The Act in Ss.51 and 52 deals with the instances of infringement of copyright. The various civil remedies for infringement are enumerated in Chapter XII of the Act. The offences are detailed in Chapter VIII of the Act.

 

Copyright Piracy in India-a perspective

 

Copyright piracy is a theft and therefore is a crime. But because of its white colour nature, many a time copyright piracy is not perceived as a crime at all, or at least not as serious as thefts are ordinarily considered. This is perhaps one of the greatest problems associated with the effective control of the piracy phenomenon, more so in a developing country like India. Our society condemns a bank robbery or even a small household theft. But when a software, on the development of which large investments were made, is copied illegally by millions, no serious note is being taken. This is because copyright piracy unlike most other thefts may not involve physical products and, therefore, in many occasions it remains intangible'. What is stolen may not be the physical product itself but the 'intellectual property', which go unnoticed or ignored in many instances.

 

The economic gain is certainly one of the motives and perhaps the most important among all. Copyright piracy after all is an economic phenomenon. The pirates can afford to sell their products at lower prices because, unlike the legitimate producers, they need not pay any levy eg., excise duty and sales tax etc. and also need not spend on advertising and other marketing infrastructure. For most of the ordinary end users also the price of the product remains the main consideration while buying.

 

The other important factor which may attract people to piracy field is the laxity in the country's copyright enforcement machinery. Copyright piracy is a cognizable offence as per the Copyright Act. But as in the case many similar laws, anti-piracy enforcement of law has remained very ineffective. In India, there is no serious threat of being caught and punished when found involved in piracy. The laxity in enforcement is the result of slackness on the part of the enforcement machinery, viz., the police on one hand and the passive attitudes on the part of rightholders on the other. The rightholders are also to be blamed for their "not so serious" attitude towards the piracy phenomenon.

 

III. Trademark laws in India

 

The Indian law of trademarks is enshrined in the Trade & Merchandise Marks Act, 1958 (hereinafter "the existing Act"). However, the existing Act is set to undergo a transformation to bring it in conformity with the TRIPS Agreement to which India is a signatory. A new statute ie., the Trade Mark Act, 1999 (hereafter, the "Act") has been enacted in India. However, the enforcement of the new Act is pending till a date is finalized by the Government of India.

 

At present, the protection of trademark is available only on physical goods or commodities traded. But under the new Act trademark registration would be extended to services also. In that event, a professional, like a lawyer or a doctor would be able to protect his specific services.

 

Selection of Trade Mark

 

The selection of the trade mark is the most important aspect of dispute prevention. The efficacy of a defense that may have to be taken in the event of a dispute would to a large and predominant extend depend on how effectively the trademark was selected. A few simple tips are enumerated below:

 

a. A trademark may be a word, letter, a device or numeral or any combination thereof. It is better if it is simple in design.

 

b. If it is a word it should be easy to speak, spell and remember.

 

c. The ideal word for a trade mark is an invented or coined word.

 

d. Words which are laudatory or which directly describes the character or quality of the goods should not be adopted.

 

e. Geographical names connected with the reputation or quality of the goods for which registration is sought shouldn't be adopted.

 

Procedure for Registration

 

After selecting a name, one has to apply for registration. However, before applying for the same, it would be sagacious to think about the following:

 

a. One may conduct a market survey to ascertain whether any identical or deceptively similar mark is used for the same goods by any other person in the market.

 

b. One should not imitate another person's trade mark or any other well known trade mark even if the goods are different.

 

c. Before applying for registration it is desirable to obtain preliminary advice regarding the distinctiveness of the mark from the Registrar.

 

d. Also a request can be made to the Trade Marks Registry to obtain an official report to ascertain whether any identical or deceptively similar trade mark exists or is pending.

 

e. Also a personal inspection or search through the records of the Trade Marks Registry may be done.

 

Benefits of registration of trade marks

 

Though registration of trademarks is not compulsory, it provides host of privileges and protection to the holder. A few are as below:

 

a. The exclusive right to use the trade mark in relation to the goods for which it is registered.

 

b. The right to take legal action against others who may infringe the registered trade mark or one resembling it in relation to similar goods.

 

c. In case the trade mark is unregistered, the onus to prove that somebody is infringing on that trade mark is on the owner of the trade mark, whereas in case of a registered trade mark, the onus is on the alleged infringer to prove that he has not infringed the registered trade mark.

 

d. Without registration, an owner of a trade mark cannot bring an action for infringement to protect the mark if it is copied by others. Suing for infringement of a trade mark is much simpler than launching a common law action for passing off to protect any unregistered trade mark.

 

Safeguards for the owner of a registered trade mark

 

a. He should use and renew the trade mark regularly and in time.

 

b. If his trade mark is copied by others, he should file a suit for infringement and passing off and also take criminal action.

 

c. He should keep a watch in respect of trade marks advertised in the Trade Marks Journal and institute opposition proceedings if identical or deceptively similar trade marks are published.

 

d. He should initiate rectification proceedings if an identical or deceptively similar trade mark is registered.

 

Convention application and international treaties

 

India has declared certain countries as convention countries, which afford to citizens of India similar privileges as granted to its own citizens. A person from a convention country, may within six months of making an application in his or her home country, apply for registration of the trademark in India. If such a trademark is accepted for registration, such foreign national will be deemed to have registered his or her trademark in India, from the same date on which he or she made application in his or her home country.

 

Protection of unregistered trade marks in India : Passing off action

 

The action against passing off is based on the principle that "a man may not sell his own goods under the pretence that they are the goods of another man." (N.R. Dongre v. Whirlpool Corporation (See (1996) 5 SCC 717). A passing off action is a direct subject matter of the law of tort or common law of right.

 

An action for infringement, which is a statutory right, is dependent on the validity of the registration of the mark. Unlike infringement, passing off is not a proprietary right in the name or the get-up, which has been misappropriated by the defendant. A passing off action is, therefore, independent of a statutory right and is established by evidence of reputation and goodwill of the business. (Harrods v. Harrodian School ((1996) RPC 697), as cited in P. Narayanan, Law of Trade Marks (Trade Marks Act, 1999) and Passing off 5th ed.) 500).

 

In a passing off action, the registration of the trade name or a similar mark is irrelevant. Here, the priority in adoption and use of trade mark is superior to priority in registration. (See Kishore Zarda Factory (P) Ltd. v. J.P. Tobacco House (AIR 1999 Delhi 172)).

 

IV. Designs Act, 2000

 

Design means only the features of shape, configuration, pattern or ornament or composition of lines or color or combination thereof applied to any article whether two dimensional or three dimensional or in both forms.

 

In India, designs are protected by two legal rights, namely registered designs and artistic copyright. Design registration gives the owner, a monopoly on his or her product, i.e., the right for a limited period to stop others from making, using or selling the product without their permission and is additional to any design right or copyright protection that may exist automatically in the design.

 

Essential requirements for the registration of 'Design' under the Designs Act, 2000:

 

(1) The design should be new or original, not previously published or used in any country before the date of application for registration. As an example: The known shape of "Kutub Minar" when applied to a cigarette, holder the same is registrable.

 

(2) The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an article. Thus, designs of industrial plans, layouts and installations are not registerable under the Act.

 

(3) The design should be applied or applicable to any article by any industrial process. Normally, designs of artistic nature like painting, sculptures and the like which are not produced in bulk by any industrial process are excluded from registration under the Act.

 

(4) The features of the design in the finished article should, appeal to and are judged, solely by the eye. This implies that the design must appear and should be visible on the finished article, for which it is meant. Thus, any design in the inside arrangement of a box, money purse or almirah may not be considered for showing such articles in the open state, as those articles are generally put in the market in the closed slate.

 

(5) Any mode or principle of construction or operation or anything which is in substance a mere mechanical device, would not be registerable design. For instance, a key having its novelty only in the shape of its corrugation or bend at the portion intended to engage with levers inside the lock associated with, cannot be registered as a design under the Act.

 

6) The design should not include any Trade Mark or property mark or artistic works as defined under the Copyright Act, 1957.

 

V. Biotechnology, Ayurveda and the Biological Diversity Bill, 2000

 

Biotechnology is the new mantra in the West. Billions of dollars are being pumped into universities engaged in biotechnology research, including research on genetics. India with its traditional systems of medicine has come into the limelight in a very big way.

 

Over the decades, there have been several instances of drugs sourced and isolated from ayurvedic herbs. In India, companies have launched many herbal remedies into the market. The Drugs & Cosmetics Act, 1940 (the "Drugs Act") and the Drugs and Cosmetics Rules, 1945 (the "Drugs Rules") prescribe the standards and quality, and regulate the import, manufacture, sale and distribution of all drugs including ayurvedic drugs in India.

 

Apart from the Drugs Act, biotechnology companies, especially foreign companies, seeking to harness India's traditional medicinal systems must keep in mind the pending Biological Diversity Bill, 2000 (the "Biological Bill"). The Biological Bill has its roots from the International Convention on Biological Diversity, which was adopted in 1993. The Biological Bill prohibits transfer of Indian genetic material outside the country without specific approval of the Government. Biological resources have been defined to include plants, animals and micro-organisms, or parts thereof, their genetic material and by-products, for actual or potential use, but do not include human genetic material.

 

In the same vein, biotechnology companies have to take into account the pending Protection of Plant Varieties and Farmers' Rights Bill, 1999 (the "Plant Bill"). The Plant Bill proposes to install an effective system of protection of rights of plant breeders and farmers in order to encourage the development of new varieties of plants. Once the Plant Bill is converted into an Act, a company proposing to use a particular plant, will have to verify whether the plant is registered by other breeders, and if registered, it will have to seek authorisation from the registered breeder of the plant (S.34 of the Bill).

 

Indian Government has recognised that Indian herbal remedies are much sought after in the West, and that there is a need to protect them. Instead of closing the doors on foreign biotechnology companies, the Government has come up with a profit sharing mechanism to ensure that Indian communities benefit from the commercialisation of Indian herbal drugs. This I believe is a laudable step in the right direction since it would be unsanguinary for us to shut our eyes to the rapid globalisation and the changes that we would face in the year 2005.

 

Powers of High Court to Grant Interim Reliefs in Contempt of Court Case

 

(By G. Krishna Kumar, Advocate, Ernakulam)

 

 

The question dealt herein is whether the High Court can issue interim orders to prevent repeated breach of its orders and to enforce them pending disposal of contempt of court case. This question gains importance as it is not well settled by judicial pronouncements.

 

Power to punish for disobedience of its order is a powerful weapon in the armory of High Court and is a solace to the helpless litigant who obtained judgment in his favour after a legal battle. This power is very essential and inevitable for maintaining impartiality, independence, and dignity of the judiciary. In the present scenario we come across many instances where the order of High Court is disobeyed especially by Govt. Officials and the litigant is forced to approach the High Court by filing contempt petition.

 

It is well settled proposition that the object of punishment is two-fold, both curative and corrective, and is meant to assist an individual complainant to enforce his remedy. Eventhough as a responsible citizen the applicant may have a desire to uphold the majesty of the Courts by subjecting the contemnor to the contempt proceedings, his substantial motive behind the filing of contempt petition is to get redressal of his grievance.

 

We have wedded to Rule of Law and obedience of Law is foundation of Rule of Law. Lord Denning held in a celebrated judgment1. "The High Court has jurisdiction to ensure obedience to the law whenever it is just and correct to do so". The purpose of the proceedings of Civil Contempt is described by eminent Jurist Oswald2. "If on the other hand, the contempt is mere disobedience to an order of the court in a civil action it is not criminal, and in such a case the punishment is only ordered for the purpose of enforcing the order in the civil action, and proceeding is by attachment or committal, or in the case of a corporation, by sequestration". Sequestration is a mode of writ issued by Courts in western countries including the Courts in U.K. to enforce its own orders. My humble view is that law without justice is nothing but a lawlessness. In a landmark decision3 the Apex Court speaking through His Lordship Justice V.R. Krishna Iyer held "The root of the grievance and the fruit of writ, are not individual but collective and while the 'adversary system' makes the judge a mere umpire, traditionally speaking the community orientation of the judicial function, so desirable in the third word remedial jurisprudence, transforms the courts power into affirmative structuring of redress so as to make it personally meaningful and socially relevant."

 

In view of the above proposition and decision cited infra the High Court can pass further direction and orders to enforce its own order apart from punishing the contemnor for violating its order4. In the backdrop of above discussions and in view of the power invested with the High Court to punish the contemnor, we have to examine the modalities adopted by the courts to achieve the goals for which the powers are invested with them. In this context, it is worthwhile to consider the scope of 'interim orders' in contempt proceedings to safeguard the rights, privileges and benefits accrued to the applicants by virtue of orders passed by the Courts in their favour.

 

Sometimes consequential orders alone will not help the party unless he gets urgent interim relief against the repeated/continuous breach of the order/direction of High Court. Naturally the question will arise whether High Court is having power to pass interim relief in contempt of court case pending final disposal.

 

High Court is not a mere spectator when its orders are flagrantly violated day in and day out. Power of High Court is not restricted only to punish for its own contempt and its powers prescribed in procedure of contempt of its own order, are not in any way regulated by Contempt of Courts Act, 1971 alone. Source of powers of the High Courts in contempt of court matter originates from Art.215 of the Constitution of India. Art.215 of the Constitution of India declares that every High Court shall be the Court of record and is vested with all the powers including power to punish for its own contempt.

 

Art.215 clearly describes the powers of High Court in contempt matters. The power invested with the High Court is 'all the powers including power to punish for its own - contempt'. As a court of record, High Court shall have all the powers of such Court. The 'inclusive power to punish for its own contempt' expands the scope of the powers of High Court, It is settled legal proposition that the term 'inclusive' expands the scope of the provision, and is not restrictive in nature.

 

Contempt of Courts Act is a Law for initiating proceedings against contemnor. Does it mean that power of High Courts are regulated and governed by the Contempt of Courts Act and High Court cannot grant interim reliefs and directions in contempt matters in favour of the helpless litigant who is suffering from legal injury on account of disobedience of the order by contemnor as there is no such provision in the Act which enables High Court to issue interim directions? Even in the absence of specific provision in the Contempt of Courts Act to grant interim reliefs, the High Court can grant interim reliefs and direction in favour of a helpless litigant by invoking its powers under Art.215.

 

It is true that there is no provision in the Contempt of Courts Act, 1971 specifically empowering the High Court to grant interim reliefs pending for contempt proceedings. Contempt of Courts Act is not a self contained enactment or an exhaustive substantive law in the field. Applicability of High Court Act and Rules is not excluded by the Legislatures in Contempt of Courts Act. As per S.23 of the Contempt of Courts Act, High Courts and Supreme Courts are invested with the power to make rules for matter relating to procedure in contempt of court cases. By invoking the power under S.23 of the Act, Kerala High Court has framed, the Contempt of Courts (High Court of Kerala) Rules, 1988. The Rules also do not exclude the application of High Court Rules.

 

R.21 of Contempt of Court (High Court of Kerala) Rules says as follows:

 

R.21. Application of the High Court Rules: In matters not specifically provided for in these rules the procedure prescribed in the rules of the High Court 1971, as amended from time to time shall mutatis mutandis apply to the procedures under these Rules.

 

In the absence of non obstante clause in Contempt of Courts Act, 1971 and Rules therein and also in view of R.21 of Contempt of Courts (High Court of Kerala), R.150 of Kerala High Court Rules are applicable to contempt proceedings and there is no embargo even as per the Contempt of Courts Act, to grant interim reliefs to a party.

 

Apart from the above, it is well settled Legal Principle that the Courts are invested with all powers and procedures for dispensing justice unless otherwise specifically prohibited by law. In a landmark decision the5 Allahabad High Court held......."The Courts are not to act upon the principle that every procedure to be taken as prohibited unless it is expressly provided by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by Law". This view was approved by the Apex Court in a recent decision6. The Division Bench of Kerala High Court in a landmark decision7 held 'All procedures and powers are open to the court unless otherwise specifically prohibited by law.' As per this Principle also the court cannot refuse interim relief by saying that there is no provision in the Contempt of Courts Act to grant interim reliefs.

 

Well known authorities in contempt jurisprudence are of the view that8 'the Court also has power to bind over a contemnor to be of good behaviour, to grant an injunction restraining the repetition of the contempt and to penalize the contemnor with an order to pay the costs of the contempt proceedings". In yet another decision 9Lord Denning held that 'In any event there are some circumstances in which immediate compliance would be essential and where injunctive reliefs is particularly appropriate to secure this end'.

 

So in my humble view, the High Courts are invested with the power to pass interim reliefs in contempt matter. Taking a contrary view will certainly lead to injustice to the affected parties and in turn to the society at large.

________________________________________________________________________

 

1. AG v. Chaudhry, (1971)3 All ER 938 at 947.

2. Oswald, Contempt of Court, 3rd Edition, P. 8.

3. State of Kerala v. T.P. Roshana, AIR 1979 SC 765.

4. Hasting Mills v. Hirasingh, 1978 Cr. L.J. 560 Cal.; K. Veeraiah v. Venkateshwarlu, 1986 Cr. L.J. 2065 Andhra; Mohammad Idris v. Rustam Jahangir Sapuji, AIR 1984 SC 1826; Thanewala v. Shri K.M. Shetty, AIR 1990 SC 464; Delhi Development Authority v. Skipper Constructions, AIR 1996 SC 2005.

5. Narsinghdas v. MangalDubey, ILR (1883) 5 All 163 (F.B).

6. New India Assurance Co. v. Sreenivasan, 2000 (2) KLT 462 SC.

7. M. G. University v. Milu Dandapani, 2000 (1) KLT 351

8. Arlidge and Eady : The Law of Contempt of Court, P. 313.

9. A.G.v.Chaudhry, (1971)3 All.ER 938.