The “monte confurco” case (Seychelles v. France) prompt release

Jayant Mudgal, Student of Law, Amity Law School-I

Facts ((Paras 27-42 of the Judgment, Text of the judgment can be found in Digest of International Case Law, UN Oceans Affairs and Law of the Sea, pg. 197, United Nations Publications (2007).)).

Monte Confurco, was a fishing vessel, which had flag of state of Seychelles, and was registered by a Seychellian company in 2000. It had license to engage in fishing in international waters. On August 27, 2000 it left Port Loius in Mauritius, for fishing in the Southern Seas. It had a Spanish national as the ships master. While fishing, the entire issue was focused on whether or not it was inside the Exclusive Economic Zone (hereinafter referred as EEZ) of the French territory of the Kerguelen Islands or not. On November 2000, it was surrounded by French Navy, and French surveillance frigate, because it was in the French Southern and Antarctic Territories ((French and Southern Antarctic Lands, Available at http://www.taaf.fr/The-French-Southern-and-Antarctic-Lands (accessed on 25th March 2016).)). A process verbal of violation ((It is a French term, which means a written report which is signed and which states the statement of facts))was drawn up, whereby it was written that the ship did not announce its entry into the EEZ and it has not disclosed the tonnage of fishes it was carrying. The process verbal further stated that it did not obtain prior authorization for fishing in EEZ from any French authorities also. On the same day, the ship was escorted under French surveillance to Reunion, an insular region of France located in Indian Ocean. The Regional and Departmental Director of the Maritime Affairs of Reunion drew up three process verbaux of seizure, and also moved to the court of first instance at Saint Paul, for confirmation of arrest of the vessel. The Bond for release of vessel was decided as 95,400,000FF plus the judicial costs ((Valuation of the Bond is available on para. 34 of the judgment)).

On 21 November 2000, the master of the vessel was charged and placed under court supervision along with taking away of his passport. The court of first instance however set the bond at 56,400,000FF ((Valuation of the Bond is available on para 39 of the judgment))payment of which will allow release of the vessel and the Master.

The court of first instance held as follows that vessel was in EEZ of Kerguelen Islands without prior notification or authorization and without any intimation to the district head of the nearest island. The vessel was found in possession of 158 tons of toothfish. This raised a presumption that the catch was unlawfully fished from the EEZ of Kerguelen Islands ((Para. 37 of the judgment)).

The law violated was the French law applicable to EEZ, which is as follows,

  1. Article 3 of Law No.83-582 of 1983
  2. Article 2 and 4 of Law No.66-400 of June 1966
  3. Article 142 of Code of Criminal Procedure

Article 3 states that competent authority can seize the vessel or boat that was fishing in contravention of laws and regulations, and it has to prepare a process verbal also which will be handed over to the Maritime Affairs department. The competent authority within 72 hours of seizing the vessel has to submit the process verbal to court of first instance. Article 2 and 4 provide a prohibition from fishing or exploitation of marine environment without notification to French authorities and also to declare the tonnage of fish held onboard. Article 4 gives penalty of 1,000,000 francs, in case there is failure to notify the entering into EEZ or to declare the tonnage. Article 142 of Code Criminal Procedure is essentially dealing with provision of furnishing bond, and guarantee ((para 43-45 of the judgment)). These provisions were also in contention in one of the recent judgment of Grand Price case ((Belize v. France List case no.8 2001-04-20 Available at http://www.ecolex.org/elis_isis3w.php?rec_id=000099&database=cou&search_type=link&lang=eng&format_name=@EFALL&page_header=@EPHAV1 (accessed on 25 March 2016).)).

Arguments of the parties

Applicants, the state of Seychelles has applied to ITLOS under Article 292(2) of United Nations Convention on Law of Sea (UNCLOS) to ((United Nations Convention on law of sea, Text available at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (accessed on 25th March 2016).))have the release of the vessel from France. They argued as follows ((para. 47-50 of the judgment));

  1. On November 7, 2000 they were outside the French waters and were not anywhere near the EEZ of French Kerguelen Islands.
  2. In order to be outside the CCAMLR ((Convention for Conservation of Antarctic Marine Living Resources 1982, Available at http://www.antarctica.gov.au/law-and-treaty/ccamlr (accessed on 26th March 2016).))region, the shortest possible route was taken by going through the EEZ, to finally reach William Banks (located on the South east of the Kerguelen islands)
  3. The ship was unable to notify its entry since the fax machine on board was broken and that fact has also been agreed by the French surveillance team that apprehended the ship on seas.
  4. There was no trace of preparation for fishing on the decks, and further the team found empty and wet factory which had inoperative freezing tunnels. Even the 158 tonnes of toothfish found was at stored at a very low temperature.

Respondents, the state of France ((Para 51-54 of the judgment)), has argued in as follows

  1. Breakdown of fax machine is no excuse for not notifying the entry in EEZ since the vessel was equipped with radio-telephone equipment and also INMARSAT station capable of sending and receiving telephone messages.
  2. The location on November 7, 2000 was inside the EEZ waters of French jurisdiction and the vessel could not have covered so much distance in the time indicated by Applicant, and they alleged that the vessel was in EEZ water of Kerguelen islands for many days before being caught.

Question of Jurisdiction ((para 56-60 of the judgment)).

Applicant states that Respondent have failed in their duty under article 73 of UNCLOS, and the ITLOS has jurisdiction under Article 292 of UNCLOS to hear the matter. Article 73(1) states that a coastal state can exercise its sovereignty within EEZ by taking measures of boarding, inspection, arrest and judicial proceedings for the purpose of enforcement of the provisions of its laws and UNCLOS. Article 73(2) also further states that the detaining state, should have a prompt release of the vessel of its crew. Under Article 292(3) it is given that without delay the Tribunal has to deal with the matter of the release of the vessel and the crew. Applicant have stated that by putting the master of the ship, under court supervision, it is violation of his personal right, it is defacto detention and Seychelles was not given proper notification of the arrest of the vessel, as required by Article 73 (4) of the UNCLOS which requires the coastal state to notify the flag state in case of the detention the vessel of the latter. But Respondent by relying on Camouco case ((Panama v. France, Judgment of 7 February 2000, para 59, Available at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_5/Judgment.07.02.00.E.pdf(accessed on 26th March 2016).))of ITLOS stated that in proceedings under Article 292 of the UNCLOS, violations of article 73 are not permissible to be raised.

Judgment: Majority Opinion

Firstly, the ITLOS dealt with Article 73(2) of UNCLOS, which provides as follows, verbatim text has been quoted

Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.

The bond amount of 56,400,000 FF was said by the Applicant to be unreasonable, and the Respondent emphasized vehemently on how the amount was reasonable. ITLOS found that the amount was not reasonable in the light of the facts of the case. Majority part of the judgment was discussing the issue of release of the vessel and the crew, and what amounts to reasonableness of the security. It was stated by the tribunals that Article 73 is a fair balance between rights of the coastal state (detaining state) in enforcement of their laws and to ensure compliance with their laws, and on the other hand between rights of the flag state to secure the safety of their vessel and crew by, asking for a prompt release ((para 70 of the judgment)). The tribunal will see multiple factors in deciding the reasonableness of the bond, and as held in Camouco case ((Supra fn.14, para 69)), it was held that some of the non-exhaustive factors to be seen are,

  1. Gravity of the alleged offences
  2. Penalties imposed or imposable under the laws of the detaining state
  3. Value of the detained vessel and Cargo seized
  4. Amount of bond imposed by the detaining state and its form

By relying on these factors, the court stated that though because of the INMARSAT satellite phone and other communication devices, the vessel could have notified the entry, but Tribunal does not rely on the Saint Paul’s court of first instance judgment, which stated that there is a presumption that the vessel had done illegal fishing. There is no record or evidence to show that all the fishes were illegally obtained or that they were caught from the EEZ area. Though the offence concerned was with respect to conservation of natural resources, however one cannot presume that the catch, in its entirety or substantial portion of it was from the EEZ area ((para 88 of the judgment)). Even the valuation done by the Respondent of the vessel was not seen to be accurate. So the amount was reduced substantially to 18,000,000FF ((For evaluation of the security amount see para 93 of the judgment)). It was further held by ITLOS that France had failed in its duty under Article 73(2) of UNCLOS, and order immediate release of the master of the vessel and the vessel, upon bond or other financial security being deposited.

Critical Appreciation

The majority judgment has been criticized, since though it stats that Article 73(2) is for the purpose of reconciling conflicting claims, but does the judgment actually do so is a matter of analysis. Though the judgment clearly states that ITLOS does not sit in appeal against the domestic court’s jurisdiction but still the question of determining unreasonableness is based on the finding of the domestic court. There has been difference opinion by certain judges, in whose opinion the majority hasn’t been able to appreciate the situation correctly. Judge Anderson, in his dissenting opinion stated that judgment should have been in favor of France, and the facts should have been seen in light of coastal state’s duty to protect their resources, to curb illegal fishing and costly surveillance equipments ((Dissenting Opinion of Judge Anderson, Available at http://www.worldcourts.com/itlos/eng/decisions/2000.12.18_Seychelles_v_France.pdf(Accessed on 26th March 2016).)). From an environmental perspective this seems to be a good interpretation, and an incentive for all countries to comply strictly with the law of the sea, and to preserve the sanctity and respect of the jurisdictional limits of other states. One more criticism of the judgment is that the tribunal has over looked the role of bond in the enforcement process of the laws of the detaining state (i.e. France), since bond is the guarantee that the amount of fine that the court will eventually impose is recouped ((Alex G. Oude Elfernik, Donald Rothwell (ed.) Oceans Management in 21st Century: Institutional Frameworks and responses, pg. 286 Martinus Nijhoff Publishers (2004).)). The same argument of the bond amount being the maximum was taken up in Volga case by Australia ((Russian Federation v. Australia ITLOS Case No. 1, ICGJ 344 (ITLOS 2002) Available at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_11/Judgment.Volga.E.pdf (Accessed on 26th March 2016).)). It also happens that after the release of the vessel and master, the coastal state is in a disadvantaged position since the fact that the ownership of the vessel, if actually conducting the business of illegal fishing, is often concealed by layers of different complex corporate structures, therefore, it becomes very difficult for coastal state to recoup the costs, since the real ownership remains hidden ((Supra fn.20, p. 287)).

Similarly, this judgment has been criticized by Judge Mensah, as to how the ITLOS has not appreciated correctly the facts. In his dissenting opinion he quotes that majority opinion proceeded on the basis that the information before the court was not consistent with information before the tribunal ((para 86 of the judgment)). However, it is true that international tribunals have a wide discretion in assessment of evidence, but this also shouldn’t be stressed too far ((Tafsir Malik Ndaiye, Rudiger Wolfrum (ed.) Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas Mensah p.342, BRILL (2007).)).

Concluding, it can be said that this judgment is one which is criticized by academic community, and it needs to be seen that whether ITLOS will in future take a different route or not, from its current stance.

Fundamental rights and frequencies: Right to broadcast

Chintan Nirala, 4th Year, B.A., LL.B(HONS.), Faculty of Law, Allahabad University

Frequencies or Signals are an indispensable requirement for Communication, Media, Entertainment, or Technology. In other words, it is sine qua non for CMET. They may be unsuccessful in serving their purpose without the involvement of frequencies. It is the part of technology through which Entertainment, Media or Communication executes their whole process. With emerging audio-visual telecommunication and social media involving frequencies so as to broadcast, this case came before the court as to decide on the question of the right to broadcast bearing serious questions regarding the fate of future policies to be adopted in India.

Game of cricket has been a great source for entertainment in India. With growth of technology, the broadcast of matches shifted from audio to audio-visual telecommunications involving frequencies for live telecast, the question as to freedom of broadcasting became inevitable.It was already established that providing entertainment is implied in freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution along with the right to acquire information and to disseminate it, the question regarding nature of the property with respect to airwaves needed to be answered. And if there was a right then what should be the regulatory framework with regard to the exercise of such right. Court also analyzed the claim of monopoly of the Government and its agencies over the field of telecast and broadcast in India. Its decision did not only answer these questions but also decided the future course of Communication, Media, Entertainment, and Technology in India.

During 1990’s, with India going into transitional stage with the technological boom in the country The Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal (CAB) with Cricket Association of Bengal and others v Union Of India and others (([1995]2 SCC 161: AIR 1995 SC 1236. Justice Sawant wrote the principal opinion in Cricket Association. He spoke for himself and Justice Mohan. Justice B.P. Jeevan Reddy wrote a separate, but concurring opinion.))gave a landmark judgement regarding the telecasting and broadcasting vis-a-vis airwaves or frequencies.

In this particular case, Cricket Association of Bengal ((Hereinafter CAB))hosted a six nation international cricket tournament in November 1993 under the name and style of ‘Hero Cup Tournament’. CAB agreed to Doordarshan creating the host broadcaster Signal and also granting exclusive rights for India without the Satellite Television Asia Region ((Hereinafter Star TV))getting it, subject to the payment of eight hundred thousand U.S. dollars. But on the other hand, Doordarshan offered to pay the sum of one crore only. Consequently, CAB changed its stance and decided to sell the worldwide television rights to Trans World International ((Hereinafter TWI.)), a foreign television company. However, with regard to the interest of the viewers in India, CAB made TWI agreed on the proposition of making co-production with Doordarshan. Doordarshan informed CAB that the proposal was unacceptable as it was not willing to take signals from TWI, a foreign company. In the absence of any agreement between CAB and Doordarshan, the Department of Telecommunication addressed a letter to Videsh Sanchar Nigam Limited ((Hereinafter VSNL.))that up-linking facility for telecasting by TWI should not be provided. Aggrieved by the developments CAB approached Calcutta High Court, by way of writ petition, praying that direction be given to provide telecasting and broadcasting facility of all the matches by agency appointed by CAB. An interim order of injunction restraining the respondents from preventing telecast was granted. The High Court expressly opined that there was already an implied grant of permission. After expressing the said opinion, the direction to consider was a mere formality and of little significance. As a matter of fact, the Secretary was directed to grant the license in so many words thus leaving no discretion in him to examine the matter in accordance. It became an empty formality. In the other case, the organizers approached directly the Supreme Court through a writ petition. When this decision came before the Supreme Court, the matches had been played and both tournaments were over. Broadly, the Court was asked to rule upon, inter alia, whether Governmental agencies such as Doordarshan could claim a monopoly over airwaves or alternatively or, did the organizer or the producer of the event have the right to select a broadcasting agency of his own choice?

The principle issues involved that the court addressed werethe scope of Article 19 (1)(a) vis-a-vis ((Art.19(1)(a)- All citizens shall have the right to freedom of speech and expression.))broadcasting and the extent of government control over frequencies and broadcasting. The court also considered the nature of the regulatory framework body governing broadcasting.

The scope Article 19(1)(a) with regard to broadcasting can be easily comprehended with the statement of Justice P. B. Sawant which deserves to be quoted:

“The right to impart and receive information is a species of the right to freedom of speech and expression guaranteed by Article 19 (1)(a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public property, Viz., the airwaves, involved in the exercise of the right and can be controlled and regulated by the public authority. This limitation imposed by the nature of the public property involved in the use of the electronic media is in addition to the restriction imposed on the right to freedom of speech and expression under Article 19 (2) of the Constitution ((Cricket Assn. case n(1) at p.124(i)(ii).)).”

The Court held that undoubtedly, broadcasting came within the ambit of the protected freedom under Art. 19(1)(a). It was observed by the court that the airwaves or frequencies involved in the telecast and broadcast constitute public property. Their use has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights. Since, the electronic media involves the use of the airwaves, this factor creates an in-built restriction on its use as in the case of any other public property.

CAB and BCCI through their learned counsel contended that the game of cricket provides entertainment which in turn is an expression within the ambit of freedom of speech and expression guaranteed under Art.19(1)(a). Right to disseminate and receive information is a part of the right guaranteed by Art.19(1)(a). Telecasting a cricket match is a form of dissemination of information ((ibid at p.148(e).)). On the other hand, it was argued by State that this was a purely commercial matter, and therefore Art. 19(1)(g) was not attracted ((ibid at p.149.)). It is notable that the Court rejected this argument primarily on the basis of the fact that sport was a form of expression, and dissemination of information about sport was also a part of the freedom of expression; and secondly, that the character of the telecasters, i.e. the BCCI and the Cricket Association of Bengal, was that of non-profit organizations seeking to popularize the game of cricket through the best possible methods. Indeed, the Court expressly distinguished the case of a purely profit-making organization, and an organization whose primary function involved an incidental inflow of profits.

The Court framed the debate in the language of an Article 19(1)(a) freedom of speech and expression violation, which was sought to be justified by recourse to Article 19(2). While deciding it took into consideration Odyssey Communications Pvt. Ltd. Case, It was held that the right of citizens to exhibit films on Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19 (1) (a) which can be curtailed only under circumstances set out under Article 19 (2). Similarly, in S. Rangarajan v. P. Jagjivan Ram & Ors., (([1989]2 SCC 574.))it was held that the-freedom of speech under Article 19 (1) (a) means the right to express one’s opinion by words of mouth, writing, printing, picture or in any other manner. It would thus include the freedom of communication and, their right to propagate or publish opinion. The communication of ideas could be made, through any medium, newspaper, magazine or movie. But this right is subject to reasonable restriction in the larger interests of the community and the country set out in Article 19 (2). Article 19 (1) (a) includes the right to propagate one’s views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution ((See Printers (Mysore) Ltd. & Anr v. Asst. Commercial Tax Officer & Ors., [1994] 2 SCC 434;  In Life Insurance Corporation of India v. Professor Manubhai D. Shah [1992] 3 SCC 6371.)).

Several Broadcasting laws of other countries were taken into account especially of European countries. It was observed that Constitutions of most of the countries of the Western Europe cast an obligation upon their Government to promote broadcasting freedom and not merelyto refrain from interfering with it. The Constitution of Germany expressively involves right to broadcast within the ambit of freedom of speech and expression. The main attributor for this development has been Article 10 of the European Convention on Human Rights which guarantees freedom of expression to all the citizens of the member countries and refers specifically to radio and television. It says:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and import information and ideas without interference by public authority and regardless of frontiers.

Para 11 of the Declaration of the Rights of Man adopted by the National Assembly in 1789- affirmed in the preamble to the Constitution of the Fifth Republic (1958) and treated as binding on all branches of the government guarantees freedom of dissemination of thought and opinion. This provision is regarded as the child of the French Revolution and has greatly influenced the development of broadcasting freedom in that country.

In Germany, Article 5 of the Basic Law of 1949 states, “Every one shall have the right freely to express and disseminate his opinion by speech, writing, and pictures and freely to inform himself from generally accessible sources.”

Broadly speaking, Broadcasting freedom comprises four facets in itself namely,
(a) Freedom of the Broadcaster which should not be understood as merely an immunity from government intervention but must be understood as a freedom to safeguard free speech right of -all the people without being dominated either by the State or any commercial group.

(b) Listeners/Viewers Right Broadcasting freedom involves and includes the right of the viewers and listeners who retain their interest in free speech. It is on this basis that the European courts have taken the view that restraints on freedom of broadcasters are justifiable on the very ground of free speech. It has been already held that freedom of expression includes the right to receive information and ideas as well as freedom to impart them.

(c) Access to Broadcasting; and

(d) The Right to establish private Broadcasting stations ((Cricket Assn. case n(1) at p.179.)).

Speaking of clause 2 of Article 19, reasonable restrictions are placed upon freedom of speech and expression so as to conceive them in national interest as well as in the interest of the society. The first set of grounds, viz., the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are grounds referable to national interest whereas the second set of grounds, viz., decency, morality, contempt of court, defamation and incitement to offence are conceived in the interest of society.Therefore, the fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2).

Justice Sawant observed that the right to free speech includes right to educate, inform, and entertain thus including the right to be educated, informed, and entertained subject to restrictions under Article 19(2). Right to communicate through any media was clearly recognized by the Court ((ibid at p.11.)).However, there is little ambiguity related to the question that whether there is a fundamental right to broadcasting or not. At one point, it was observed that the case did not involve the right of private broadcasters ((ibid at p.17))on the other hand it was also observed that right to telecast is implicit in the right to educate, inform, and entertain, which is an extension of the freedom of speech and expression. Ultimately, it is hard to consider keeping in mind the interpretation of Article 19(1)(a) done by the court that the right to communicate does not include right to broadcast ((See Union of India v. Association for Democratic Reforms, AIR [2002] SC 2112 at p.44.)).

Justice Sawant observed that CAB and BCCI could telecast their matches using a method or agency of their choicebut subject to the underlying character and objectives. In the cases before the Court, the tournament organizers were professional sporting bodies that promote cricket. They did not intend, Justice Sawant assumed, a large profit from telecasting the matches. They would use proceeds from the telecast contracts to develop the sport. Justice Jeevan Reddy, on the other hand, was unwilling to recognize any explicit constitutional right to telecast for private entities, including the tournament organizers ((Cricket Assn. case n(1) at p.94 and p.97(3)(b).)).

While emphasizing more on the current question Justice B.P. Jeevan Reddy observed that airwaves must be used for advancing public good. No one has a right to utilize them at his choice and pleasure with sole motive of making profit. The right of free speech guaranteed by Article 19 (1) (a) does not include the right to use airwaves, which are public property. The airwaves can be used by a citizen for the purpose of broadcasting only when allowed to do so by a statute and in accordance with such statute. It is the duty of the State to see that airwaves are so utilised as to advance the free speech right of the citizens ((ibid at p. 226(b).)).They must, therefore, be utilized only for the public good. For this reason, there is no fundamental right under article 19 (1) (a) to impart information using these frequencies. But since Justice Sawant’s opinion was in consonance with Justice Mohan, the third judge in the case, it represents the Supreme Court’s majority view. Despite the ambiguity in his language, Justice Sawant recognized a fundamental right to impart information and communicate through audio and visual means of one’s choice is very significant. This must surely mean that there is a fundamental right to broadcast even if its scope depends on the underlying entity exercising it.

This was indeed a leap forward in India constitutional law. The Supreme Court already declared in Romesh Thappar and Brij Bhushan that article 19 (1) (a) includes the freedom of the press which includes the right to print, publish, and circulate news and opinions without government interference ((Romesh Thappar v. The State of Madras, AIR 1950 SC 124: (1950) SCR 594; Brij Bhushan and Anr. V. The State of Delhi, [1950] SCR 605.See also Odyssey Communications Pvt. Ltd. v.Lokvidyan Sanghatana and Ors., AIR [1988] SC 1642; Bennett Coleman & Co. and Ors. V. Union of India and Ors.,[1973] 2 SCR 757; Indian Express Newspapers(Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors., [1986] 159 ITR 856(SC).)). Thus, when broadcasting emerged as an important expressive medium, it was only fair for the Supreme Court to extend to provide broadcasting with similar cover. A denial of free speech in broadcasting would have caused an unhealthy constitutional controversy. A person would have a fundamental right to say, write, and publish something, but not to telecast or broadcast it. That position would have been unfair and unjust.

The second issue which was raised was regarding the claim of monopoly by Doordarshan over airwaves. In India there has been monopoly of broadcasting/telecasting in the Government which was backed by the Section 4(1) Indian Telegraph Act of 1985.Further, the Cinematograph Act, 1952 and the Rules made thereunder empower the Government to pre-censor films. The power of the Government to license and to pre-censor under the respective legislations has to be exercised in conformity with the provisions of Article 19(2).

In this context the Court observed:

In a democratic polity, neither any private individual, institution or Organisation nor any Government or Government Organisation can claim exclusive right over it. Our Constitution also forbids monopoly either in the print or electronic media((Cricket Assn. case n (1) at p.48)).”

It was contended by the Government in favor of monopolization  that as to prevent the concentration of the frequencies in the hands of the rich few who can information to suit their interests and thus in fact to control and manipulate public opinion in effect smothering the right to freedom of speech and expression and freedom of information of others. But at the same time the claim to monopoly made on this ground may, however, lose all its raison d’etre if either any section of the society is unreasonably denied an access to broadcasting or the Governmental agency claims exclusive right to prepare and relay programmes ((ibid)). In other words, if the Government is vested with an unbridled discretion to grant or refuse to grant the license or access to the media, the reason for creating monopoly will lose its validity. A monopoly over broadcasting, whether by Government or anybody else, is inconsistent with free speech right of the citizens.

Justice Sawant held that the Constitution forbids monopoly in either print or electronic media. Though, he was of the view that if private broadcasters acted irresponsibly it would be impossible to repair the damage ((ibid at p.13)). But, he also countered that there are several regulatory provisions to handle such a situation. The judge seemed troubled that the government enjoyed virtually unbridled discretion to grant or refuse a broadcast licence. This situation could result, he warned, in the government suppressing the free speech right, instead of protecting it. Justice Reddy opined that both frequencies and radio spectrum are public property. Government control over the broadcast media effectively means control of political party in power which is again harmful for the free speech right ((ibid at p.90)).

Justice Sawant observed that frequencies being a public property must be used in the best interest of the society and for this purpose, a central agency could either establish its own broadcasting network or it could license private users. Because of the costs involved only few can own frequencies but to overcome this problem the fairness doctrine was evolved by U.S. Federal Communications Commission likewise for Indian scenario, a similar arrangement is available in the form of Press Council. Thus, Justice Sawant, while endorsing the public nature of frequencies, clearly indicated that private citizens and entities could also utilize them. Justice Reddy however do not trusted Private Broadcasters for this purpose reason being their acts motivated by earning profits. He was in the favour of establishing a public broadcasting corporation that would use the frequencies for public good.

Justice Sawant in the summary of conclusions issued order to the Central Government. He directed to take immediate steps to establish an independent autonomous public authority to control and regulate use of airwaves or frequencies representing all sections and interests of the society at large. Justice Reddy, too, favouring Justice Sawant but prescribing wider role. He observed that only a statutory corporation could ensure fair and balance presentation of news and public issues ((ibid at p.40.)).

Summarizing, the court held that air waves or frequencies are public property and must be controlled and regulated by a public authority in the interest of public. Since, airwaves being a public property, there is an inbuilt restriction on its use as in the case of any other public property. Accordingly, while an individual has a right under Article 19(1) (a) to have an access to telecasting, this right is subject to the limitation on the account of the use of public property i.e. Article 19(2). The airwaves involved in the exercise of the right can be control and regulated by public authority even on the grounds not strictly covered under Article 19(2). The Court also directed to take immediate steps as to establish an independent autonomous public authority. The provision for the Prasar Bharti(Broadcasting Cooperation of India) seems to be taking care of this issue.

Often, this case is understood as an exception to freedom of speech and expression which can be created on grounds other than those in Article 19(2). It should be understood clearly that the Court was not adding any exceptions to those specified in Article 19(2). It was on the other hand laid down propositions as to restrictions on the use of airwaves owing to its technical nature and being a public property. Considering the importance of right to freedom of speech and expression, it should not be viewed as a door for creating new inroads to the right.

The rights and the wrongs of death and life

Arpitpushp Chaturvedi and Utkarsh Jain

The paper we have written attempts to explore the dilemma and irony surrounding the section 309 of the Indian Penal Code. The section deals with the criminalization of attempt to suicide. Our paper discusses whether section 309 of the IPC should be unconstitutional, thus, indirectly granting a right to death or whether indeed life as given to us by god should be preserved as long as it can be. We write the paper in a form a judgment based on a hypothetical fact situation, about the protagonist being a suppressed lower caste laborer who is subjected to humiliation and injuries when he protests against the local landlord and decides to immolate himself in the market but is saved and now faces charges under section 309, and a newspaper article which concludes our opinion and reflects on the judgment. The paper starts with the chief justice’s judgment as a part of the two judge’s bench of the Supreme Court of India wherein he starts with describing the fact situation briefly. He declares section 309 of the IPC to be unconstitutional when read with the articles 14 and 21 of the constitution. The second part consists of the dissenting judgment which lays down the fact that suicide is indeed a crime and section 309 is not unconstitutional as the state has a positive duty to preserve life and its dignity. The dissenting opinion also borrows from various religious and moral arguments proving that the state has a duty to protect life and anything contrary of section 309 would be unconstitutional. The third part of the paper is a newspaper article which analyses the hypothetical judgment and lays down the conclusion of the paper. The article argues that suicide cannot be de-criminalized except in the rarest of rare cases where it has been established by the medical fraternity that a human being is totally incapable of any improvement and is in a permanent vegetative state and has previously showed an intention to allow euthanasia. In all other case, we argue, that suicide is an immoral and weak act and should be punished so as to deter people from destroying the sanctity of life.

Please note that, all the names used in this hypothetical case is imaginary and have no connection with anyone in the real life.

Statement of Motivation

The value of academic literature on areas of immediate relevance like Suicide shouldn’t be underestimated. However, rarely do we find such literature making its way to the Courtroom. A probable reason is that this literature acts outside of the field of Judicial Language. It is this reason that inspired us to conceptualize a research paper in the format of a Judgment. Not only does this put across out vision of such hypothetical judgments being realized in reality, it also acts to reduce the threshold of ‘acceptance’ of such work, where it is most needed today, the Courtroom.

“It seems a monstrous procedure to inflict further suffering on even a single individual who has already found life so unbearable, his chances of happiness so slender, that he has been willing to face pain and death in order to cease living. That those for whom life is altogether bitter should be subjected to further bitterness and degradation seems perverse legislation ((Fedden, H. Romilly, Suicide, A Social and Historical Study, Peter Davies, London (1938), page 42)).”

HYPOTHETICAL CASE

Hari K v. Union of Hindusthan

In the Supreme Court of Hindusthan

Sharma C.J., Mathews J., Raza J.

September 15, 2015

For reference: S.309 IPC: Attempt to commit suicide: Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished with simple imprisonment for term which may extend to one year [ or with fine, or with both].

Sharma C.J, Mathews J.: These appeals have been brought before us in light of the judgment of the Uttara Pradesham High Court which passed an order of conviction against one Shri Hari who had attempted to commit suicide through self-incineration on the 12th of August, 2013 punishable under Section 309 of the Indian Penal Code, 1860. The relevant facts have been summarized hereunder.

The appellant, Hari aged 20 is a resident of village ‘Jhansi’ in the state of ‘Uttara Pradesham. He used to work as a daily wage laborer under one wealthy Parsi landlord. It has been established that the Parsi landlord was the reason for gross exploitation of daily wage laborers in that area for a decade or so. These laborers being poor and lower caste Hindus were also exploited by the Brahmin priests in the area.

Hari had seen both his parents flogged and subsequently killed in public in front of his eyes a few years ago. On Monday, 12th August, 2013, an inspired Hari and his friend Raj decided to protest against the usual discrimination that they were subjected to, driven on by their fellow laborer community. Instead of paying heed to their demands, an employee of the landlord, Josh along with a few high ranking Brahmins publicly humiliated and beat up both Hari and Raj while a huge crowd formed around. Raj later succumbed to injuries on his head and chest.

That evening, according to sufficient eyewitness reports, Hari went to the local ‘Subzi mandi’ (Vegetable shops) and borrowed a can of kerosene. He then proceeded to the Chowk, covered himself with the inflammable liquid and set himself on fire whilst shouting slogans against the Brahmins and the Parsi landlord. He was immediately mobbed and the fire was extinguished. He suffered second degree burns covering about 35 percent of his body. We are to decide on whether he should be charged with attempt to suicide or not.  

Judgment:

  1. It is rather shocking that this is the fifth such incident in two months that has cropped up. It is indeed of utmost seriousness that young people like Hari are burning themselves because of discrimination based on caste and creed. According to me, such cases of self incineration can be distinguished from cases of ordinary suicide ((Encyclopedia of Crime and Justice, Vol. IV, (1983 Edn), p.1521, Intentional taking of one’s life))based on the following factors:
  2. The element of altruism ((Emile Durkheim, Suicide (Routledge 2005) [hereinafter A Study in Sociology]; also look at: altruistic suicide: suicide for the benefit of others in the society.))in such self incinerations,
  3. External coercion from the society leading to a constructed ‘mens rea ((Guilty mind, Elizabeth A. Martin, ed. (2003). Oxford Dictionary of Law. Oxford: Oxford University Press.))’,
  4. The problematic nature of the process of wounding those most in need of help and
  5. The belief that imprisonment as described in s.309 is an end in itself thereby ignoring the root cause of such incinerations.
  6. Altruistic suicide occurs because of a deep integration of a person in the society ((Robert Pape, Dying to Win (Random House 2005), p.174))because of which there comes a sense of accountability and responsibility in oneself towards the society. I have observed a similar situation in this case where the society of daily wage laborers were all collectively against the Parsi and Brahmin establishment and rose together in protest. There was an element of societal coercion in this case. Now, because of this external force acting on Hari for a long period of time, his last resort to burning himself was not essentially born out of his own thought process but that of the society and his perpetrators i.e. the landlords and the Brahmins. It would be quite difficult to actually think of an inborn desire to put ones mortal frame in the hands of fire. Hence, the mens rea so essential to impute criminal culpability on a person is not proper in this case ((Actus non facit reum nisi mens sit rea: Act without guilty mind cannot be considered as criminal.)).
  7. Also essential here, is the fact that Hari was mortally wounded and instead of him getting proper medical treatment, he, according to the law of the land should be sent to the confines of prison which according to me is crossing the bounds of reasonability. Our prison system is far from equipped to mentally and physically heal Hari who has seen all his close ones die on after another at the hands of ruthless people. Today, if there is unstoppable protest in the village of ‘Jhansi’ against malpractices mentioned above, it is only because of the enlightening spark left off by Hari via his self incineration. To me, this act is noble enough to wash away the taint of criminal culpability affixed on him ((Bindal, Amit, “Non-Culpability of Attempt to commit Suicide: A critical analysis of the States policy of wounding the wounded“, Bangalore Law Journal, 2010, p.192.)). Another important point to be noted is the blurring of the line between perpetrator and victim in case of a suicide (the victim is the one who attempts to kill himself). This differentiates this case from other crimes like theft, murder and even abetment to suicide and hence cannot be called a crime in the true sense.
  8. According to me, the end achieved ((Even though the reasoning of suicide as a means on becoming one with god due to fulfillment in life is not as convincing taking into account the ground reality of the farmers of India. ))by the apex court in P. Rathinam v. Union of India ((P. Rathinam v. Union of India, 1994 (3) SCC 394.))was correct. In that judgment, it was held that section 309 of the Indian penal code was unconstitutional as it was against articles 14 (equality) and 21 (life) of the constitution. It was also held that the right to live should also include the right to not live similar to the right to not speak as inclusive under the right to free speech. This line of reasoning was further used in the case of Maruti Shripati Dubal v. State of Maharashtra, ((Maruti Shripati Dubal v. State of Maharashtra, 1987 CriLJ 743.))in which, among other things, it was opined that the language used in Section 309 was sweeping since it did not define what consisted of Suicide, hence bringing under its ambit all kinds of religious practices which involve ending of one’s life. Additionally, it was mentioned that if the purpose of such a section is to create deterrence within the minds of other individuals, then especially in cases where an individual has lost all hope in life, deterrence would never work.
  9. In addition to this reasoning, I believe that it is because of the society’s ills that this case occurred and by imprisoning a person who has already undergone torture for years at end would only serve as burying symptoms of the disease and not the disease itself ((Supra at footnote 8)). Rathinam was overruled in 1996 by the case Gian Kaur vs The State Of Punjab, ((Gian Kaur vs The State Of Punjab, 1996 AIR 946))and the main argument there was that declaring 309 unconstitutional would deem section 306 i.e. abetment to suicide as void because abetment to a fundamental right to die could not be conceived in the real world. I am, however, of the opinion that when one abets in suicide, mens rea is present in the true meaning of the word – ‘one person intentionally instigates another to kill him/herself’. There is not external pressure (to par with the present case) to such an act and therefore, abetment to ordinary suicide ((Supra note 3)). And, from the above, I have established that a self incineration cannot be construed as suicide as under s. 309 of the IPC.
  10. Concluding, I would like to add that besides all the harm that Hari suffered, the only harm done was to his perpetrators, people who ill treated him and his close ones based on differences in caste and creed, which is not acceptable by the morals of the constitution of this land. And I believe that this harm was deserved on the part of the perpetrators. Hari has benefited the society in ‘Jhansi’ and should be applauded by the law and not penalized.

I am therefore of the opinion that the defendant in this case is innocent and the conviction should be set aside.

Raza J:   The facts of the case before us have been discussed by CJ Sharma, who has set aside the conviction for Hari based on the belief that section 309 of the IPC is unconstitutional. I would beg to differ with CJ Sharma here. What happened in ‘Jhansi’ was heart rending and shameful but what is more intimidating is the fact that our judiciary has reached a point where rather than condemning the acts of the society and the failed government which led to the attempt to suicide of the victim here the court has decided to set aside the conviction. This sends a wrong message to the citizens of India. It looks as if the court has legitimized a person’s wish to die, if he or she has a reason to believe that they have been treated in discriminatory and unfair ways.  It is sad that the judiciary has, instead of making efforts to improve the situation provided such measures.  The court did not talk about improving the rights as provided under the right to life but suggested a meekly way out of it and which happens to be the right to death.

The issue now before us is that whether section 309 of the Indian Penal Code, be held unconstitutional and citizens be given the right to death as read into the right to life of the article 21 of the Indian constitution.

  1. Suicide is intentional taking of one’s life, as stated at p.1521 of Encyclopedia of Crime and Justice, Vol. IV, 1983 Edn. The Indian courts have time and again tried to read the right to death as one in the right to life enshrined under article 21 which according to me is of unsound logic. The court in P. Rathinam v. Union of India ((Supra note 10.))said “Article 21 has conferred a positive right to live which carries with it the negative right not to live.’ The reasoning it gave referred to R. C. Cooper v. Union of India, ((R. C. Cooper v. Union of India, 1970 AIR 564, 1970 SCR (3) 530.))“Mention was then made of freedom of speech and expression, as to which it was observed that the same includes freedom not to speak and to remain silent. Similarly, about the freedom of business and occupation, it was stated that it includes freedom not to do business.” How the courts have equated a right to speech and trade with life is beyond my power of imagination. The right to one’s life is an issue on altogether and it can in no way be talked into the same breath as right trade or freedom of speech etc. Article 21 talks about right to life with human dignity and it stresses upon storing the sanctity of life. Thus, right to life cannot be constructed to justify the extinguishing of life ((Supra at footnote 13. )). The court in Gian Kaur vs The State Of Punjab had held that the state also has a positive duty to protect life and not merely have a negative duty of not interfering with personal life ((Majumdar, Abhik, “The right to die: Indian experienceAustralian Journal of Asian Law, Vol. 6, No. 2, p. 157, 2004.)). Also the fundamental rights granted by state in article 12 to article 35 are available only against the state and not in private sphere ((Id.)).
  2. Self preservation is the general instinct that we human beings posses. All activities that humans indulge in are in a way or other an attempt to preserve the self ((Pillai, Dr. K.N. Chandrasekharan, “Comment on Rathinam vs. Union of India” (1995) 3 SCC (jour).)). The state legitimizing a form of destruction of this self would run counter to the basic norm and the idea of life as prevalent in the majority section of society. Suicide is often committed by people whose mental faculties have been either impaired or influenced by the recent injustice or discrimination over a long period. These people are incompetent to take decisions like such. It has been noted that about 100,000 people who commit suicide are of unsound mind and the remaining number are largely filled up by reasons of poverty, debt and illiteracy ((Nanda Prashant, IANS, Friday March 16 2007)). The impact of poverty, debt or illiteracy leaves the mind in a state where it is compelled to run away from the issue rather than confront it. A basic feature of our societies is the survival instinct ((Ashraf Md. Ali, “culpability of attempt to commit suicide- a legal labyrinth amidst ethical quandary” journal of indian law institute[vol. 49:4])). The court had said in Olga Tellis v. Bombay Municipal Corporation “the high purpose which the constitution seeks to achieve by enforcing fundamental rights is not only to benefit an individual but to secure the larger interest of the country ((Olga tellis v. Bombay Municipal Corporation AIR 1986 SC 180 at 192-93)).”
  3. It should also be pointed suicide is an act which cannot be reversed. The act inflicts such damage which has no remedy or recovery. It is impossible to express regret if it turns out to be a mistake and the loss of such a mistake is life which is valued and kept on a pedestal so high that it would be a terrible damage to have ever experienced. In Christianity the Bible says “homas Aquinas, being Catholic and believing that confession of sin must be made prior to departure from the world to the next, taught that suicide was the most fatal of all sins because the victim could not repent of it ((Deem, Rich, “What Happens to Christians Who Commit Suicide? Do They Go To Heaven or Hell?“, May 11, 2011.)).”
  4. Suicide is often construed to be a right act by many academicians and jurist using the examples of Johar, Sati, Saamadhi, prayopaveshan, atmarpan ((These are acts supported by traditional logics and practices and involve an individual to end his life knowingly himself. Not all people who commit suicide do it because they have realized their true self and are content with their achievements. These kind of people are extinct as against the other types of people who commit suicide.)). Renowned scholar B.B. Pandey argues that creating a law based on a small section consisting of thinking people who value life would be wrong for the society ((Supra at footnote 5.)). As stated by James .M.A. Weiss a very small number of people who attempt suicides are certain that they will die i.e. a substantial number of people are uncertain of their death. A very small number is certain of dying and thus is not among the people who commit suicide because of self realization. The people who are certain fall under the successful attempts where they actually die. Most of the attempts of suicide fall into the not so innocent category of self punishment ((Kannibar J.g., “should there be a right it to commit suicide” (1993) Cri LJ 14 at 390-91)).
  5. Death is inauspicious as it heralds decay and decomposition as against life which is auspicious and desirable ((Supra at 11)). Talking in the terms of religion it can be seen that no religion legitimizes the end of life by the hands of an individual. Especially given the fact that life is a property that god imparted to the people and only god holds the power of taking it away from the individual. , According to the Bible, “the only One who has the right to decide when we die is the Creator Himself. The Bible also says God has ordained the days of our lives. So, suicide specifically violates the will of God in a person’s life ((supra at 23. “Deviation from this would amount to a sin. The sacred and holy texts of various religions discuss suicide as a sin. The Bible condemning suicide has been quoted above.”)).” In Islam a verse in the Quran instructs; “And do not kill yourselves, surely God is most Merciful to you ((Qur’an, Sura 4 (An-Nisa), ayat 29)).” Another one goes as “narrated Abu Huraira: The Prophet said, “He who commits suicide by throttling shall keep on throttling himself in the Hell Fire (forever) and he who commits suicide by stabbing himself shall keep on stabbing himself in the Hell-Fire ((Sahih al-Bukhari, 2:23:446)).” Judaism and Hinduism also views suicide in a negative light ((Jewish views on suicide state that suicide is forbidden by Jewish law. Judaism has traditionally viewed suicide as a serious sin. It is not seen as an acceptable alternative even if one is being forced to commit certain cardinal sins for which one must give up one’s life rather than sin. Hinduism addresses the issue in verse 3 of chapter 40 of Yajurveda which when translated means that people with self destructive tendencies live in darkness of ignorance which they cannot escape even after death. Also there is a large debate on fast unto deaths which is a clear form of attempt to suicide. It can be said that these fasts are done to improve the conditions of life as against the present situation and to assert life meaningfully than to give up. Their main objective is in resonance with the arguments I stated above.)).
  6. Let’s move onto the criminal aspect of suicide. The arguments of a major part of opposition to criminalization of suicide are based on the fact that suicide is not a crime. Their arguments assert that 1) killing one’s self causes no harm to the society 2) individual owns his life similar to a property and he has the right to use his own property the way he likes to 3) right to die is the other side of right to life. Now I already discussed above as to why right to die cannot be the other side of right to life. I will discuss the first two basic arguments here. The harm principle holds that the only purpose for which power can be rightfully exercised over any member of a civilized community against his will, is to prevent harm to others ((John Stuart Mill (1859) on liberty, “Once a person dies he leaves a void in the life of his loved ones and often the lifestyles of these loved ones halt for a reasonable amount of time which effect the upcoming course of their life largely. If the victim happens to be a bread earner of the family it creates a huge setback to the family for losing the individual. The pain, loss and setbacks are harm that the society indirectly suffers due to the damage inflicted by the suicide. Thus suicide imposes harm on the society in these forms.”)). The theories of natural law accentuates to the notions of universality of certain patterns of permitted and prohibited behavior. Now sociologically crime is viewed as deviant behavior which violates existing norms. Suicide as established above is not the norm and is practiced by an extinct section for its true purpose of realizing self. Thus it is a deviation of the norm and should be considered to be a crime. This deviation from the norm acts as a bad example to the society. It influences society in a wrong way and decriminalizing the act of suicide would set out a false notion of right or wrong. Acquitting Hari would set out a wrong notion of justice to the other people suffering the same plight as him and would encourage them to address the problem by ending their lives instead of demanding justice and forcing the society as well as government to improve the situation ((Wright, Valerie (November 2010). “Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment“, 13 October 2012: “Research has shown that increasing the severity of a punishment does not have much effect on crime, while increasing the certainty of punishment does have a deterrent effect. “Clearly, enhancing the severity of punishment will have little impact on people who do not believe they will be apprehended for their actions.”)).
  7. Coming to the point of considering life to be one’s own property. Section 425 of the IPC talks about the crime of mischief wherein is a person is not allowed to cause harm to any property ((Explanation 2 of this very section states that mischief can also be committed to one’s own property and inflict harm upon others.)). Thus suicide can be viewed by the same logic that it imposes harm on others by destroying self. Further speaking ownership may amount to alienation but not destruction of the property ((Supra at 21 pg.16)).
  8. Having discussed the reasons as to why suicide is a crime I would also like to point out that it should be possible for the society to treat attempt to suicide as an offence but yet to distinguish cases involving genuine difficulties for mitigation of punishment. Section 309 enables the court to go for minor punishment in cases where the court feels sympathy with regard to circumstances ((Supra at 19)). It has also been seen that normally offenders are dealt with compassion by giving benefit under probation act 1958 or section 562 of Cr.PC, 1908 corresponding to section 360 of Cr.PC 1973 ((1996 AIR 946)).
  9. Hari should be convicted and serve a term of six months in prison only after he is fully recovered from the injuries that he sustained and has sufficient mental capacity so as to make the right decisions.
  10. I would also like to point out that Hari attempted suicide after the social conditions forced him to and thus the individuals who publicly humiliated Hari should be charged with abetment to suicide ((1994 (3) SCC 394: “But that cannot be mixed with this case as section 306 and section 309 are read into different areas. ”As regards person aiding and abetting suicide the law can be entirely different … as self-killing is conceptually different from abetting others to kill themselves”)).

THE DILEMMA OF DYING, INDIAN EXPRESS, Abhishek Mukherjee, 29.11.2014

The new BJP-led Government recently announced that section 309 of the Indian Penal code should be effaced from the statute. The news comes after a report by the Law Commission of India on “Humanization and Decriminalization of Attempt to Suicide”. ((Modi govt plans to decriminalize attempt to commit suicide, Times of India, (August 5, 2014), http://timesofindia.indiatimes.com/india/Modi-govt-plans-to-decriminalize-attempt-to-commit-suicide/articleshow/39689034.cms  ))The Commission’s report stated in its recommendations that section 309 of the IPC be effaced because the question here is not whether this provision is constitutional or unconstitutional rather that does the provision have any application while preventing suicide. The commission further in its report states that section 309 is inhuman on the grounds that it proves to a hindrance in prevention of such acts and especially in taking care of such persons who need medical and emotional help rather than being handed jail term by the hands of justice ((Law Commission of India, Humanization and decriminalization of attempt to suicide, Report No. 210, (October 2008) Pg. 38-39)). This topic draws our attention to very recent case decided by the Supreme Court of Hindusthan regarding Section 309 of the IPC. The court in this case had decided to acquit the famous Hari Kumar who had become a nationwide debate topic after he had tried to immolate himself in the central bazaar in Jhansi protesting against the oppressive Parsi landlords. The opinion of the three judge bench, presided by the CJH, was divided on the issue. The CJH while stating the majority opinion of the court acquitted Hari of his offences and called for decriminalization of suicide. The CJH reiterated the Law Commission’s arguments and ruled that right to life does include in it a right to die.

The dissenting opinion of the court delivered by Justice Raza provides an interesting twist to the debate by stating that de-criminalizing suicide would prove detrimental to the efforts and intention of the constitution to preserve life. The opinion is largely based on religious, fundamental and legal arguments which support the fact that life should be preserved and the right to die should not be allowed by the apex court of the nation in the interests of the same.

Sneha, a Chennai based NGO, works in the area of suicide intervention. According to the statistics stated by the NGO around 1,00,000 people commit suicide annually in our country and continuing laws which criminalize it are detrimental to the efforts of preventing it ((Sneha India, (http://www.snehaindia.org/index.php) (Retrieved: 25/11/2014).)). The WHO had informed SNEHA that, at a public level, punishing suicidal behaviors by law has many negative aspects. It has been witnessed in the case of Sri Lanka where such law was repealed four years ago and the number of suicides reduced drastically ((Report No. 210, Supra note 42 at 33)). The Ministry of Law and Justice, Government of India has been communicated of the negative aspects of such laws. The President of the International Association for Suicide Prevention, France had strongly voiced his opinion regarding the same and urged India to join the various nations who have decriminalized suicide so that fear of punishment and social stigma does not prevent such individuals from expressing their concerns and emotions.

While one side of the coin rallies for de-criminalization, the other side voices their concerns regarding the lack of concrete proof and empirical data that could prove that de-criminalization of suicide would prove to be a positive change in prevention of suicide. Also, as they argue, there are rarely any instances where such persons, who have been charged with attempt to suicide, have been sent to jail and not provided physical or mental help. The judiciary has often taken a liberal view on such offences.

However there is a new section of medical practitioners, policy makers as well as jurists who have repeatedly voiced their opinion that irrespective of the view of the law on attempt to suicide, a permission to die or euthanasia should be provided as an exception in the rarest of the rare cases where a patient is incapable of bodily functions and suffers from Severe body wasting, intractable vomiting, urinary and bowel incontinence, immobility, and total dependence or is in a permanent vegetative state. Their main arguments rely on the fact that a competent adult has a right to autonomy (to decide what will or won’t be done to his or her body). There is almost universal agreement that a competent adult has the right to self-determination, including the right to have life-sustaining treatment withheld or withdrawn ((James Fieser, EUTHANASIA, Applied Ethics: A sourcebook, ( 10/3/2010), https://www.utm.edu/staff/jfieser/class/300/6-euthanasia.htm)). A dignified and comfortable life is what our constitution and various others across the world seek to achieve. A patient suffering from such condition, where it has been established by the medical fraternity over a period of time, review and treatment that there would not be any scope for improvement or revival and where it has been clearly expressed or proved, that the patient would not be willing to continue living life in such undignified ways, should be allowed to end his life. Although there are reservations regarding the intentions of the patient and the criteria for such rarest of the rare cases but a proper framework and guidelines for the same can be established with consultation and debates.

This middle path of providing an exception to physician assisted suicides in the rarest of rare cases is the only way the right to life with dignity in all its senses.

Armed Forces Special Power Act and women safety

Maitri Tandon, Student of Law, Symbiosis Law School

ABSTARCT

This research paper concerns in itself the scenario of the northeastern and the northern states of our country, India after the inception of the Armed Forces Special Power Act. The researcher has penned down her own views on, what should be the ambit of area in which the Act should be imposing. Here, in this paper various cases are cited, issues are raised and the researchers analysis followed by a conclusion. The article demonstrates the condition of women in the states where Armed Forces Special Power Act is in power. As such this article should be of interest to a broad readership including those interested in Law, Human Rights, Women Empowerment, and Social Sciences. Views expressed in this article are of authors alone. It does not reflect the views of either publisher or the editors of the journal.

Introduction

Women, the gender that signifies courage, strength and at the same time is a figure for love, compassion and pliability has faced a lot of refinement, vehemence, bias, injustice and cold-heartedness since the inception of humankind. How ironical is it to have been worshiped and thrown ruthlessly on the roads at the same time? Experiencing both the behaviors together has helped women in empowering themselves and has made the government to consider their demands and rights first. The time of crisis has helped them the most.

Time of crisis can be empowering for women across the world, as they are pushed to brink of activism and sometimes, away from their traditional roles ((Gardem and Chalesworth, 2000, UN Security Council Resolution 1325 (2000).)). Nevertheless current research has established that conflict and militarism are more likely to create environments that repress and harm women disproportionately, compared to men ((Id.)).

This is the case particularly in ‘cold’ states of conflicts and authoritarianism. Opportunity for a change in the condition of women in these areas becomes difficult in the form of transitional political reform, rights as such women not only suffer sustained economic and social hardships and gendered violence, but also perpetual restriction on their ability to address these violation through the full exercise of their civil and political rights. Patterns of violence and repression become self-perpetuating, and the damage done to individual’s roots deep into the social fabric of the country ((Gardem and Chalesworth, 2000,UN Security Council Resolution 1325 (2000).)).

Unfortunately such is the situation in Indian ‘low intensity war’ states across North and East. These states, the seven sisters and Jammu and Kashmir are fully or partially governed by the Armed Forces Special Powers Act, 1958 (AFSPA). There have been situations when these states have suffered from draconian rule and militarization for more than 50 years in concurrence with other state and national security laws ((Jammu and Kashmir Public Safety Act 1978 and  National Security Act 1980)). Even though India is well open to the International Human Rights Treaties, author is of the opinion that, AFSPA breaches these guidelines by derogating the key human rights and also robbing the non-army personnel of the legal remedies/recourses for offences committed by the armed forces of the nation.

The Problem

  • Is the Armed Forces Special Power Act constitutional also;
  • Is it in weight with the humanity?

The Armed Forces (Special Power) Act

The unwarranted interference of the British colonies on the Indian Territory gradually led to the bloody Anglo-Manipuri conflict of 1891 with the Second World War the principle, The Naga Movement and also the failure of the new India to live up to the democratic principles treasured in its Constitution and in respecting the rights of the nationalities it had taken within its borders and several other reasons, marked the inception of the idea for this act ((Armed Forces Special Power Act: A study in National Security Tyranny)).

Eventually on 22 May 1958 after a brief discussion in the parliament that lasted merely for 3 hours The Armed Forces (Assam – Manipur) Special Power Act was passed. This act was further amended in 1990 when it broadened its ambit to Jammu and Kashmir. Armed forces (Special Power) Act gives blanket powers to the Army.

Legal Provisions Powers Bestowed over the Army

The section 1 to 3 of the Act covers the jurisdiction, the definition of ‘armed forces’ and also briefly defines  ‘disturbed’ and the power to declare area such as. While section 4 is comprehensively lays down the power given to the army: it allows any army personnel the sweeping power to arrest, without a warrant, “any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence” using any degree of force necessary, including lethal force, and to fire upon or use force “for the maintenance of public order” against persons who are contravening laws in the disturbed areas.

It prohibits “the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances.” Searches of persons and premises can be made without a warrant, while goods “reasonably suspected to be stolen” can be confiscated and structures that could be in use by insurgents, destroyed.

According to Section 5, anyone arrested by the army must be handed to police, not within a specific time period, but “with least possible delay”. Finally, Section 6 ensures that army personnel are accountable only to internal regulation and punishment, stating: “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act.

This immunity given to the army also extends to the mandate of the National Human Rights Commission (NHRC), which according to Section 19 of the Protection of Human Rights Act (PHRA), is not empowered to investigate apparent violations by the armed forces in areas governed by AFSPA ((It can only seek a report from or make recommendations to the central government, and require that it be informed of action taken on a case within three months [Armed Forces Special Power Act: A study in National Security tyranny].)).

Analysis

The constitutionality of the Armed Forces (Special Power) Act was questioned by the United Nations Human Rights Committee, when India presented its second periodic report to the UNHRC in 1991. India defended the Act by stating that this Act was a necessary measure to prevent the secession of the Northern Eastern states. The Attorney General said that a response to this agitation for secession in the North East had to be done on a “war footing”. He argued for the constitutionality of the act by quoting Article 355 of the Indian Constitution, which makes it the duty of the Central Government to protect the states from internal disturbance and that there is no duty under international law to allow secession ((Armed Forces Special Power Act: A study in National Security tyranny.)).

It may also be assumed that the Central government might argue for its constitutionality by testifying it with avery persuasive jurisprudential theory given by Sir Jeremy Bentham, the theory of utilitarianism, which states that “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand, the standard of right and wrong, on the other, the chain of causes and effects, are fastened to their throne”. This theory can also be explained in simple words, law that provides greater good of greater number is the law of man is deemed to be blameless. Therefore by applying this theory the government may say that the Armed Forces (Special Powers) Act safeguards the mass of the country by sacrificing the rights of some. Thus, is deemed to be constitutional.

But the question that again arises is that is it legitimate/constitutional to let the armed personnel perform heinous crimes under the cover of the act, for they are guarding our nation and flexibly set aside the rights of women provided by the constitution?

Indian Law

There are many cases, which challenge the constitutionality of this act pending in the court of law, but in this paper we will be specifically dealing with women rights, therefore we will point out the laws which are breached by armed personnel under the blankets of AFSPA.

Violation of Art 14 – Right of Equality before Law

The Constitution of India with its Art 14 ensures equality before the law. People living within the territory of India are to be treated equally before the law, which means that the law applies to all, irrespective of the caste, wealth, position, the clan a person, comes from. AFSPA thoroughly violates this right as people who are residing in the areas declared as disturbed have been denied this right because of Section 6 of the Act, which prevents the citizens from filing a suit against any personnel for armed forces without prior sanction of Central Government. This unequally burdens and demotivates the class of people residing in the “disturbed areas’.

Violation of Art 21 – Right to life

The constitution of India guarantees the right to life to its citizens under Article 21, “No person shall be deprived of his life or personal liberty except according to procedure established by law”, which is violated by Section 4 of the Act. The Armed Forces (Special Power) Act deprives the women of an effective penal remedy against forced sexual intercourse/rape performed by the guarding force of our nation; it violates their right to privacy and bodily integrity, aspect of the right to life and personal liberty under Article 21.

Violation of Sec. 375 of the Indian Penal Code

This Section of the Indian Penal Code defines Rape, “ a man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a women under circumstances falling under any of the six following description:-

  1. Against her will.
  2. Without her consent.
  3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
  4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.
  5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  6. With or without her consent, when she is under sixteen years of age.

Explanation– Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

  • Manipur- (a) In clause sixthly, for the word “sixteen” substitute the word “fourteen”; and

(b) In the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)]. Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702.

Rape being the heinous crime, which is colossally prevalent in our country and is even more aggressively boycotted unfortunately, tops the list of crimes committed by our soldiers. There are no provisions, which are successfully being undertaken by the government, due to non-cooperation by the Indian army. One of the examples would be when Justice Verma Commission said in unequivocal terms that security persons who rape women should be judged under the same act that applies to the civilians, which was opposed by the Army ((Walter Fernandes, AFSPA: Who Rules India?))also when the Jeena Commission appointed to inquire into the alleged rape and murder of 30 year old Manorama Devi of Imphal in Manipur suggested that the law should be repealed and the clauses that are required should be integrated with other All India laws the Government did not even publish the report.

The facts of the Manorama Devi case were, in the early hours of the morning, on July 11, 2004, 29-year-old Manorama was picked up from her house in Imphal and taken away by the Assam Rifles. Three hours later her body was found with eight bullet injuries in a field. The Assam Rifles says she wanted to relieve herself and while doing so attempted to escape. She was, therefore, shot and killed. To the public, however, it appeared incredible that a four-foot eleven inch girl, weighing 50 kgs., should escape from eight highly trained jawans in an open field with nobody around. Public unrest engulfed the whole state. Aman immolated himself. Women stripped naked outside the headquarters of the Assam Rifles inviting rape and executions. In the inquiry set up under the provisions of the Commission of Inquiry Act, Manorama’s brother testified that he saw a jawan pull up Manorama’s T-shirt and insert a kitchen knife into her underwear prior to arresting her. The former police surgeon and chief Medical Officer of the Manipur Health Service and another doctor deposed that she was killed at close rage while in a lying down position. She had bullet injuries in her vagina. Apart from the bullet wounds, there were other injuries caused by blunt object. The Central Forensic Science Laboratory reported semen stains on her petticoat. A resident of the area, who was in the field at that time, contradicted the Assam Rifles version saying that she saw jawans alight from the vehicle with a lifeless body of Manorama and placed her in the field and then she heard the sound of gunshots. Policeman deposed saying that they did not find spent cartridges in the area and there was not a drop of blood on the ground ((The Murder Of Manorama; The Human Rights Bimonthly)).

The brutality and the double face of the Army has also been seen in many cases and operations, like:

Operation Blue Bird (Oinam, Bishunpur District, Manipur)

This operation was launched by the Indian Army on the 11th of July 1987 at Oinam in Manipur, in which more than 30 naga villages were covered and included extensive and cruel violations of the Human Rights violations which included torture with extrajudicial killing in addition to sexual harassment, theft and loot.

Kunan Poshpora (Kupwara District, Jammu and Kashmir)

The Kunan Poshpora search operation was initiated by the Indian Army on 23rd February 1991 during which the Indian Army personnel raped nearly hundred women including pregnant women openly in front of the villagers and there was no clear inquiry, which was held to follow up the condition. Reportedly, a police officer was threatened many times to not to make the report public, which recorded.

Shopian Case (Shopian district, Jammu and Kashmir)

On 29th May 2009 two girls from Shopian district went missing on the way back from orchard. Their dead bodies were found the next morning. This was a case of gang rape based on the information given by the Forensic lab by the Army personnels who were camped nearby ((Available at http://www.countercurrents.org/nitesh171114.htm)).

The Armed Forces (Special Power) Act 1958 was enacted on experimental basis as a measure against “terrorist” groups in the North East for a period of six months. This experimental project which was enacted for Six months has now been enacted for over five decades and there has been no declination of the number of such groups in the North East they have just increased from two in to twenty in Manipur, Assam has not less than fifteen, Meghalaya has five of them and other States have more groups. How has the government allowed an act to stay even when the “experimental” measure has failed to achieve its major goal?

Conclusion

The main aim of writing this paper was to familiarize readers with the harsh reality regarding The Army. On the basis of the aforesaid information we arrive at the conclusion that, even though the Army is deployed for our protection and it is saving the Nation with its fullest strength. It is important for the government to keep a check or intervene in the functioning of the force where it is bestowed with unquestionable power through AFSPA.

When the country is fighting against the sexual assaults, which are prevalent in the Nation is it rational to have the force that is deployed for the protection and betterment of the country to take advantage of the immunity provided to them under the Act? No. Why is it that the culprits are exempted from the punishment?

The government should punish all the criminals in accordance to the principle of equity. No, offenders should be exempted from the punishment just because of the immunity bestowed on the institution he is working for. There is no reason why an offender should have a distinguished law. They should be dealt under the law of land and should be punished in the same way as “civil” criminals.

 

Ashoka Kumar Thakur v. Union of India

A curious case of judicial indiscipline

Gautam Mohanty, Student of Law, National Law University, Odissa

The vicissitudes of the law of reservation were duly set about and demarcated in the case of Indira Sawhney v. Union of India ((Indira Sawhney v. Union of India, AIR 1993 SC 477)). The judgment of nine judges collectively with a majority upholding the provision of reservations to the Other Backward Classes to  the  extent of  27%  in central government services, clearly illustrates the acceptance of the Apex Court; that caste is indeed an institution of Indian society. Furthermore the judgment also mentions the very discriminatory nature of the caste hierarchy, the need to overcome it and the role special provisions such as reservations can play in the task of irradicating caste as an institution of the society. Ironical is the fact that reservations have never been viewed by the Indian courts as an instrument for equalizing the status and position of castes in the Indian context. Judicial discipline demands that a judgment can only be reversed by a larger bench of judges and since no bench larger than nine in size has gone into the issue of reservation after Indra Sahwney v. Union of India ((Id.)); the necessary inference that can be drawn is that the matter of reservation has been put to rest.  But it does not appear so; the present case i.e. the case of A K Thakur vs UOI ((A. K. Thakur v. UOI, 2008(56) BLJR1292))has opened up the issue of reservation and all the peripheral questions involved with the same for consideration. The decision by a constitutional bench of the Apex Court in the above mentioned case upholding the constitutional amendment and union legislation which provided for reservations of Other Backward Classes(OBCs) in higher education is a classic one-off example of judicial indiscipline.

DISSECTING THE RATIONALE IN A.K. THAKUR

In A.K. Thakur ((Id.)), the Constitution Ninety-Third Amendment Act, 2005 and the Central Educational Institutions (Reservation in Admission) Act, 2006 were under constitutional scrutiny. The Ninety Third Amendment which happened to insert clause (5) in Article 15 of the constitution reads as follows:

“Nothing in this article or in Sub-clause (g) of Clause (1) of Article 19 shall prevent the state from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the state, other than the minority educational institutions referred to in Clause (1) of Article 30.”

An incisive analysis of the provisions so envisaged in Article 15(5) makes it abundantly clear that it empowers the state to exceed the restrictions so imposed under Articles 15 and 16 so as to allow for special provisions in both state and privately managed educational institutions irrespective of whether they receive state aid or not.

However what is to be taken into consideration at this juncture is that the Central Educational Institution Act(CEI) 2006, enacted by the Parliament under article 15(5), sought to enable greater access to higher education by way of providing 27 percent reservation for “Other Backward Classes” in government controlled educational institutions and had no effect on private education institutions ((For the definition of Central Educational Institution, see Section 2(d), CEI Act (2006).)). The rationale behind such exclusion of privately managed institutions can be found by taking into consideration the objects and reasons of the Act, whereby it has been stated that the state shall undertake all steps necessary for accomplishment of the objectives so enshrined in Article 46 ((As per Article 46, it is the mandate of the state to promote the educational and economic interests of scheduled castes, scheduled  tribes  and  other weaker sections of society.))of the Constitution ((Statement of Objects and Reasons, CEI Act (2006).)).

ASCERTAINING THE CONSTITUTIONAL VALIDITY OF ARTICLE 15(5)

The ground for challenging the constitutionality of the said Article was that it is was in clear and blatant terms a violation of the basic structure doctrine ((The basic structure doctrine, propounded by the Supreme Court in Kesavananda v. State of Kerala, (1973) 4 SCC 225, places substantive and procedural limits on the amending process provided in the Constitution)). Moreover it was argued in the present case that the use of the term “notwithstanding” in Articles 15(3), 15(4) and 15(5) could not be construed as “notwithstanding the declaration of equality principle”. Thus, it was argued that introduction of Article 15(5) into the constitutional machinery destroys the very fabric of equality which is a basic feature of the Constitution ((Supra note 3, at ¶¶ 28, 30 (Balakrishnan CJ).)).

Furthermore the constitutionality of Article 15(5) was also challenged on the ground that it was in direct conflict with Article 15(4) as both Articles exclude the remaining provisions of Article 15. Whereas Article 15(5) excludes Article 15 and Article 19(1)(g); Article 15(4) excludes Article 15 and Article 29(2). Hence, it was argued that Article 15(5) could not be read in conformity with the principles in Articles 14 and 15 and thus it was in clear violation of the principle of equality so enshrined in the Constitution ((There were other grounds of challenge as well to the validity of Article 15(5). For example, whether the exclusion of minority educational institutions from Article 15(5) violated Article 14 of Constitution? This paper has, however, concentrated only on Article 15(5).)). The Supreme Court did ultimately conclude that Article 15(5), insofar as it dealt with state maintained and aided institutions, did not violate the basic structure of the constitution.

Furthermore the bench indulged into the exercise of harmoniously construing both Articles 15(4) and 15(5) and clarified that the meaning of “nothing in this article” in Article 15(5) would encompass within itself the grounds so mentioned in Article 15(1) and exclude Article 15[4] ((Supra note 3, note 1 at ¶ 95 (Balakrishnan CJ).)). What is to be taken into due notice here is the very fact that this textual analysis done by the esteemed bench is not properly directed and lacks conviction. It is so because even though the Court held that Article 15(5) did not negate Article 15(4), there is no clear majority on the scope and ambit of the phrase “nothing in this article” in Article 15(5). Furthermore the crux of the basic structure review is about compliance with basic features of the Constitution. Surprisingly, the counsels representing both the parties and the esteemed court itself happen to misconstrue the context of the discussion and indulge into the discussion as if Article 15(5) had to be in conformity with other textual provisions of the Constitution. The analysis of the court seems to be misdirected in the present case as basic structure review does not confine itself to a particular expression in the text of the Constitution.

THE CURIOUS CASE OF JUDICIAL INDISCIPLINE

The case of A.K. Thakur ((Supra note 3))is a textbook case of judicial indiscipline; the order of reference by the two judge bench of Arijit Pasayat and Lokeshwar Singh Panta sought out to answer a whole list of questions which were previously with great assertion laid to rest in the Mandal Commission Case ((Supra note 1)). The only question that might have sufficient ground to stand this accusation is whether the Parliament by an enacted legislation is vested with the appropriate power to direct private educational institutions to give reservations to the OBCs?, the irony being this question was never answered on the ground that there was no challenge from private educational institutions.

After coming to the above mentioned conclusion the bench should have in all probability reverted the reference back instead of answering it; because there was never any doubt regarding the fact that the government could provide for reservations under the Constitution to OBCs in educational institutions owned or financially aided by it. In spite of such clear clarity the blanket order of reference was used by three of the five judges to read the Mandal Commission ((Id.))judgment tendentiously, genuflecting with due respect, but glossing it  in  a  manner  that leaves the door open for a reversal in good time ((44.43 K. Balagopal, Ideology and Adjudication: The Supreme Court and OBC Reservations EPW 16-19 (2009).)).

After the decision of the court in the Mandal Commission Case ((Supra note 1)), caste as a social category had come to be accepted by the courts as a class of a kind, eligible for reservations if it is backward. But A.K.Thakur ((Supra note 3))introduces a new revision to this criteria; the revision being caste becomes a class only after the creamy layer is removed. Thus, the elimination of the creamy layer from the benefits of reservation is no longer an issue of purported justice within the community as between the more backward and the less backward amongst it, as it was in the Mandal Commission case ((Supra note 1)), but a necessary prerequisite for the caste to at all be a class, and a fortiori a backward class ((Supra note 15)). The revision so undertaken happens to be conceptual in nature brought into effect without anyone’s notice by a majority of the five judge bench in a reference that was unnecessary in the first place.

The smuggling in of the “economic criterion” is another instance where there has been unnecessary interference by the five judge bench. Unnecessary for the very reason that the bench was not constituted for the purpose of determining as to whether or not caste could be the sole basis for determining backwardness. Ultimately what this uncalled for intervention has resulted in is a shift from the stand-point that caste can be only one of the criteria taken into account to identify backwardness to the entire caste being declared backward on the sole criteria of backwardness, though there can be other ways of identifying classes too.

What is altogether more ironical is the fact that three judges out of five judges duly approve the above mentioned opinion of the Mandal Commission case ((Supra note 1))but nevertheless proceed gamely to pose and answer the same question notwithstanding its finality and express different opinions while declaring themselves to be bound by the Mandal Commission Judgement.

Perhaps the only time courts in our country have taken into due recognition the division of the country into rich and poor and deplored it is when people have approached the forum of the apex court seeking to enforce their caste based reservations or rights. It is remarkable to note that the courts are otherwise normally indifferent to economic cleavages in society. In A.K. Thakur ((Supra note 3))the majority has given the astonishing direction that “to  strike  the  constitutional balance, it  is necessary  and  desirable  to earmark  certain percentage of  seats  out  of permissible limit  of 27% for socially and economically backward  classes”. And a concurring opinion from a judge of the same bench directs that after a brief period of ten years the criterion for reservation must indeed shift to the economically backward. Wanting in discipline or not, the effect of such a decision is that a majority of three out of the five judges can be seen indulging into the unwarranted exercise of pushing for the economic criterion in determining backwardness.

Moreover the judgment focuses on putting forth answers to questions which were never asked in the first place. It must be recalled at this juncture that the bench was supposed to be adjudging the constitutional validity of the 93rd Amendment which was introduced into the Constitutional fabric via Article 15(5) which sought out to enable the government to make a special provision by law for the advancement of backward classes and the validity of the consequential law made by the Parliament, namely, the Central Educational Institutions (Reservations in Admissions) Act, 2006. But as is clearly evident the bench digressed to a very large extent from the core issue and attempted to answer questions which were never really asked in the first instance. By putting forth answers to questions which were never asked in the first place the court has indeed indulged in the act of judicial indiscipline.

THE UNCALLED AND UNWARRANTED RELAXING CRITERIA

The “Relaxing Criteria” is the result of the uncalled and unwarranted intervention of the court into the question as to what extent the government or the educational institutions may relax the qualifying marks to enable the students belonging to the OBC category to access the benefits of reservations. And what is to be done if the seats so allocated for the very purpose of providing the benefits of reservation to OBCs go unfilled? The above mentioned questions are questions to which answers were never sought out in the first place.

The questions so answered in the judgment happen to be a matter pertaining to government policy and while the courts may be called upon to adjudicate the validity of a policy once it is formulated it is not for them to say what it should be. But the majority of the bench thought otherwise and Arijit Pasayat and C.K.  Thakker begin their opinion on this issue by asking the central government to “examine the desirability of fixing cut-off marks in respect of candidates belonging to OBC”. And then they further mandate in respect of the allotment of unfilled up seats that they shall be filled up by “candidates from general categories”. This order clearly overstep the powers so vested with the judiciary and furthermore is a direct encroachment of the power so vested with the executive or with the legislature when it comes to policy decision.

THE THREE FATAL SINS OF A.K. THAKUR

The First fatal sin is that the judgment creates a deep cleavage between various castes present in India based on an improper understanding of the text and context of the Supreme Court ruling in Indra Sawhney. The bench in Indra Sawhney did not under any form of interpretation state that caste was supposed to be the most important criteria in identifying backwardness; it merely acknowledged the fact that caste as an institution is prevalent in the society of India and it should be taken into account as one of the factors while determining backwardness.

The second fatal sin is that the bench fails to understand that the term “backward class” under Article 15(5) and Article 16(4) connote two different meanings. Under Article 15(5) majority in terms of numbers is irrelevant as a section of the society even though comprising of 80% of the total population can still be marked as backward for the purposes of Article 15(5). But the scenario is not so under Article 16(4) where apart from being backward the section of the societymust be “inadequately represented”. Being “inadequately represented” is an additional criteria which can only be found in Article 16(4) and not in Article 15(5). Furthermore what is to be taken into account is that it is only in Article 16(4) that representation of the population per se attains much significance and not under Article 15(4) and Article 15(5).

The third fatal sin is in the nature of poor constitutional advice given in the context of reconciling Article 15(5) and Article 15(4). Under Article 15(4) the state could provide for reservations for OBC’s in state-aided institutions. The sole purpose for introducing Article 15(5) into the Constitution was for providing reservations for OBC’s in private institutions. Hence with such diverse purposes it is remarkable how the bench in A.K. Thakur ((Supra note 3))insisted on reconciling both the Articles. Before Article 15(5), reservation for OBC’s in state aided institutions could be provided under Article 15(4). In case of unaided or private institutions the judgment of the Apex Court in the case of T.M.A. Pai and Inamdar ((T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors, AIR 2003 SC 355))is to be taken into due consideration where the Court observed that coercing admissions in private institutions on the basis of reservation was an unreasonable restriction under Article 19(1)(g). Instead of recognizing this simple constitutional history, the bench indulged themselves into an uncalled exercise of reconciling Article 15(5) and Article 15(4).

CONCLUSION

The blunder so made by the judiciary in the case of A.K. Thakur is a textbook classic of judicial indiscipline. The bench never took into consideration the issue of proportionality. The concept of affirmative action has been borrowed from United States where the main objective of introducing such a concept unlike India was to promote diversity. The rationale behind introduction of affirmative action in the Indian context is clearly to compensate for past discrimination and not to promote diversity unlike the United States. In such a case, the compensation must be proportional to the deprivation suffered; which is clearly not the case in the present context. Hence it is about time the matter in regards of reservation is laid to rest and strict accountability enforced in order to discourage judicial indiscipline.

Novartis AG v. Union of India and Glivec patenting

Reasons, Results and Repercussions of India’s fight against evergreening

Preena Salgia, Student of Law, NLIU, Bhopal

Glivec, an anti-cancer drug developed by the pharmaceutical giant Novartis, created a furore in the Indian drug industry when its patent application was rejected by the highest court of appeal in the country. The rejection was largely a result of Section 3(d) which was introduced in the Indian Patents Act in 2005. This section was included to combat the anti-competitive practice of ‘evergreening’ of patents, by making derivatives of known substances, not showing enhanced properties, ineligible for grant of patent. To analyse the ramifications of this decision, a brief understanding of the Indian patent regime and its evolutionary past is indispensible.

The Indian Patent Regime: A Brief Outlook

Indian IP system today affords protection to intellectual properties like patents, trademarks, copyrights, geographical indications, plant varieties, industrial designs, and designs of integrated circuits. India is a member of several international organizations and a signatory to several treaties, including the World Intellectual Property Organization (WIPO), the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, and the Patent Cooperation Treaty (PCT).

During the first half of the nineteenth century, when most countries in the world were developing their pharmaceutical industries, its presence in India, under the British Colonial rule, was virtually non-existent ((Janice Mueller, “The Tiger Awakens: The Tumultuous Transformation of India’s Patent System and the Rise of Indian Pharmaceutical Innovation”, 68 U. PITT. L. REV. 491,495)). The patent laws enacted during that time technically provided for product patents, however their provisions and policies only served British interests. The little market which existed in the country was dominated by multinational corporations selling drugs at exorbitant prices ((Id)). It was in this backdrop that the Patents Act of 1970 was enacted to protect the domestic pharmaceutical industry and give a boost to its development. Patent for products was disallowed, which enabled generic drug manufacturers to reverse engineer patented drugs and produce them in India at cheap rates.

Thus these generic manufacturers gained tremendous importance by not only fulfilling the domestic demand but also exporting such drugs to poorer nations ((Vijay Yalamanchili, “State of India’s TRIPS-compliant Patent Regime”, 26 Biotech. L. Rep., 211 (2007).)). They sustained the economy by ensuring the availability of drugs at a price which were within the purchasing power of a poor majority ((Supra note 1, page 514)).

On the Path to Becoming TRIPS Compliant

India’s entry into the WTO in 1995, marked a new era of growth and integration with the world economy. The Indian patent regime had to undergo various compliances mandated by TRIPS, like introduction of product patents, which it did by amending the Patents Act in 2005. Among these, lifting the ban on product patents in the field of pharmaceuticals and agro-chemicals is considered one of the most significant amendments. The reason being: it has far-reaching consequences which affect a large portion of the population. This is so because of the large scale unaffordability among people and the agriculture-dominated rural economy of India ((Contribution of Agriculture to India’s GDP (in 2009-2010) was 14.62% http://www.in.undp.org/content/dam/india/docs/india_factsheet_economic_n_hdi.pdf (last visited 16th June 2014).)).

Inventors generally prefer to have stronger patent protection through product rather than process patents, and the patent regimes of developed countries predominately protect end products ((When they come up with the same product innovation, under product patenting only one firm is granted the patent for the product and so it emerges as monopoly, but under process patenting both the firms can get the patent for the product if they have different processes of production. Thus process patenting leads to more competition whereas product patenting lessens product market competition. Indian Statistical Institute, Economic Research Unit, Discussion Paper Series, Tarun Kabiraj, “Product vs. Process Patenting and R&D Incentiveshttp://www.isical.ac.in/~eru/erudp/2005-11.pdf (last visited 25 May 2014).)). However, the patent system of India faces the challenge of balancing the interests of multinational corporations with that of the common public. Patents motivate companies to engage in capital-intensive and inherently risky biomedical research, because of the possibility of charging monopoly prices and reaping high profits ((Rebecca S. Eisenberg, “Patents, Product Exclusivity, and Information Dissemination: How Law Directs Biopharmaceutical Research and Development”, 72 FORDHAM L. REv. 477, 479 (2003).)).On the other hand, that very monopoly prevents generic manufacturing and affects the price and availability of the finished medicine to consumers ((Carlos M. Correa, “Public Health and Patent Legislation in Developing Countries”, 3 TUL. J. TECH. & INTELL. PROP. 1, 3 (2001).)).

The 2005 amendment benefits the multinational giants and adversely affects the domestic generic manufacturers. Therefore, while introducing these changes, the Parliament decided to add certain riders to this change. They inserted Section 3 (d) which essentially acted as a safeguard against certain drugs and agro-chemical patents. A successful patent regime must balance all interests. The provision of Section 3(d) is able to achieve that balance to a large extent by ensuring that while inventors get their product patent on pharmaceuticals, they do not exploit their rights by ‘evergreening’ their patents.

Further, every country has a right to modify the contours of this balance according to its situational needs and interests. For instance, it is more essential for developing countries like India to focus on transfer of technology rather than creating monopolies. And for that reason, their patent laws cannot be compared and considered inferior to those of developed nations. While TRIPS aims to bring uniformity in IP laws of its member countries, it gives enough flexibility to them to alter these laws as per the needs of their individual societies. Today, India’s transition from imitator to innovator is under way, but the process needs time to run its course.

This research paper aims to discuss ­­­­­the journey of Glivec in India, the reasons for refusing grant of a patent to this drug by the Patent Controller, the issues arising before various appellate courts (including the Madras High Court and the Supreme Court), and the impact of Supreme Court’s judgement on the pharmaceutical industry in India.

An Overview of Facts

About The Drug: Glivec

Glivec (Gleevec in the U.S.A.), the drug presently in question, is derived from the free-base compound Imatinib ((Official website of Gleevec, United States of America, http://www.gleevec.com/index.jsp?usertrack.filter_applied=true&NovaId=4029462109044365930 (last visited 26th May 2014).)). Jürg Zimmermann invented a number of derivatives of N-phenyl-2-pyrimidine-amine, one of which was later given the International Non-proprietary Name ‘Imatinib’ by the World Health Organisation ((Novartis AG v. Union of IndiaAIR 2013 SC 1311)). These derivatives are capable of inhibiting certain protein kinases and thus have valuable anti-tumour properties. The patent granted for this compound in the U.S. was termed as ‘Zimmerman Patent’ ((‘Pyrimidine derivatives and processes for the preparation thereof’ US 5521184 A)).

According to Novartis, ‘Gleevec’ is produced by applying two inventive steps to free-base Imatinib: producing its methanesulfonic acid addition salt – Imtinib Mesylate, and then creating that salt’s beta-crystalline form, which is orally administrable.

Significance of the drug in India

Imatinib Mesylate’s known uses include treatment for Chronic Myeloid Leukaemia [CML] ((http://www.medicines.org.uk/emc/medicine/15014/SPC/GLIVEC+Tablets/ last visited 26th May 2014))and acute lymphoblastic leukaemia in adults and children ((Consumer Medicine Information, Glivec, Imatinib, http://www.betterhealth.vic.gov.au/bhcv2/bhcmed.nsf/pages/nvcglitb/$File/nvcglitb.pdf last visited 26th May 2014)). CML is the commonest adult leukaemia in India and the annual incidence ranges from 0.8–2.2/100,000 population in males and 0.6–1.6/100,000 population in females in India ((National Cancer Registry Programme. Two year report of the population based cancer registries 1999-2000. New Delhi: Indian Council of Medical Research; 2005.)).

Considering these figures, the importance of availability of such a drug cannot be denied in the Indian market. However, the cost of the drug for the treatment of this disease comes to about Rs.1,20,000 (around $ 2,000) per month in India ((Novartis pleaded before the Supreme Court that even though their drug is heavily priced, they ran several charitable programs under which the drug was provided free of cost to needy persons. However, when the Court asked the Company why they could not close the charitable program and use the same resources to bring down the price of the drug in general (without any adverse impact on their revenue) the Company could not give a satisfactory reply)), where at the same time, the generic versions (like the one provided by CIPLA) are available in the country which cost only Rs.8,000 to Rs.10,000 [$ 140 to 170] ((Supra note 10)). The significance of these generic manufacturers gains prominence primarily due to the unfortunate fact that 68.8% population of India live on less than $ 2 a day ((World Bank’s poverty headcount ratio at $2 a day (Purchasing Power Parity), at 2005 international prices http://data.worldbank.org/indicator/SI.POV.2DAY last visited 26th May 2014)), thereby raising serious affordability concerns.

Glivec’s Journey in India

TRIPS was introduced in 1995 to narrow the gaps in the way intellectual property rights were protected around the world, and to bring them under common international rules ((http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm last visited 11th June, 2014)). Considering the magnitude of change which the agreement was set to bring to developing countries, it gave such countries the power to delay application of its provisions for a maximum of ten years ((Article 65 of TRIPS)). However for availing such an exception, the country was obligated to fulfil two requirements: establish a procedure for mailbox applications ((Means a metaphorical “mailbox” where all applications received post 1st January 1995 shall be stored. However, they shall be decided upon only once the country enforces TRIPS.))and provide exclusive marketing rights ((Chapter IVA of Patents Act, 1970 (Omitted by the Patents (Amendment) Act, 2005))to the applicant.

Novartis filed an application ((Application No.1602/MAS/1998))with the Chennai Patent Office on July 17, 1998 for grant of product patent for Imatinib Mesylate in beta crystalline form. While that application was pending, Novartis obtained Exclusive Marketing Rights (EMR) by an order dated November 10, 2003. This allowed Novartis to prohibit generic manufacturers and raise the price of Glivec almost ten-fold ((Ganapati Murdur, “Indian Patients Go to Court Over Cancer Drug”, 329 BRIT. MED. J. 419 (2004). One month’s dose of Gleevec costs $2,600, roughly ten times more than the generic versions.)). Its application was taken up for consideration in 2005 thereafter the Patent Office rejected it in 2006.

In the application Novartis claimed that the invented product i.e. the beta crystal form of Imatinib Mesylate, has:

        i.            more beneficial flow properties;

      ii.            better thermodynamic stability; and

    iii.            lower hygroscopicity; than the alpha crystal form of Imatinib Mesylate.

It further claimed that the beta crystal form showed increased bioavailability than Imatinib free-base. The aforesaid properties make the invented product “new” as it “stores better and is easier to process ((Supra note 10)),” inter alia.

By the time the Patent Office took the application for consideration, it had already received five ((The oppositions were made by M/s. Cancer Patients Aid Association, NATCO Pharma Ltd., CIPLA Ltd., Ranbaxy Laboratories Ltd., and Hetro Drugs Ltd.))pre-grant oppositions ((Under Section 25(1) of Patents Act, 1970)). Deciding on all the applications, the Assistant Controller of Patents and Design held that the invention claimed by the appellant was:

  1. anticipated by prior publication, i.e., the Zimmermann patent;
  2. obvious to a person skilled in the art in view of the disclosure provided in the Zimmermann patent specifications; and
  3. not patentable under section 3(d) of the Act.

Aggrieved by the rejection of its application, Novartis filed writ petitions before the Madras High Court. The five petitions questioning the decision of the Assistant Controller were transferred to the Intellectual Property Appellate Board (IPAB). The other two petitions, challenging the validity of Section 3(d) on the grounds that it violated Article 14 of the Constitution and was not compliant with TRIPS, were heard by a Division Bench of the Madras High Court.

Approaching the Appellate Forum: Issues at the Madras High Court

Whether Section 3(d) was Compliant with TRIPS

The Madras High Court did not evaluate the merits of this issue by citing lack of jurisdiction to determine whether Section 3[d] ((Section 3: “The following are not inventions within the meaning of this Act,- (d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant. Explanation.—For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy;”))was TRIPs compliant. It stated that the appropriate forum for determination of the same should be the Dispute Settlement Body of the WTO. The underlying reason for ruling so was that TRIPs determined the contractual relationship between countries and it should be interpreted according to normal contractual principles ((Shamnad Basheer & Prashant Reddy, ““Ducking” TRIPS in India: A Saga Involving Novartis and the Legality of Section 3(d)”, National Law School of India Review, vol. 20(2), 2008)). The court stated, “International Agreement possesses the basic nature of an ordinary contract and when courts respect the choice of jurisdiction fixed under such ordinary contract, we see no compelling reasons to deviate from such judicial approach when we consider the choice of forum arrived at in International Treaties ((Novartis AG v. Union of India (2007) 4 MLJ 1153)).”

However, it must be stated here that there exists no express or implied bar on Indian courts to declare that a provision is not in compliance with an international treaty. In Equal Opportunities Commission and Anr. v. Secretary of State for Employment ((Equal Opportunities Commission and Anr. v. Secretary of State for Employment, (1994) 1 AII ER. 910)), the House of Lords, held that an English Legislation ((Equal Protection (Consolidation) Act, 1978))is not in compliance with a specific Article of an International Treaty ((EEC Treaty and Council Directives)).

Further, had the court evaluated the merits it could have held that, since the terms “novelty,” “inventive step” and “industrial application” are not defined in TRIPS, member countries have reasonable flexibility in applying these three criteria ((UNCTAD-ICTSD, “Resource Book on TRIPS and Development”, 358 (2005).)). Under Paragraph 1, Article 27 ((Article 27, TRIPS Agreement, 1869 UNTS 299; 33 ILM 1197 (1994).))the grant of a patent to a patentable subject matter is subject to the provision of Paragraph 3 ((Ibid.))of the same article which gives the Member states the power to exclude the patentability of certain kinds of inventions specified under clauses (a) and (b). Also, under Article 1 ((Article 1, TRIPS Agreement, 1869 UNTS 299; 33 ILM 1197 (1994).)), Member States are free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice. Hence, section 3(d) is clearly in consonance with the principles laid down under the TRIPS Agreement.

As per another line of argument, Section 3(d) could be seen as an extension of the non-obviousness test ((Intervention petition by S. Basheer, before the Supreme Court in Novartis v. Union of India AIR 2013 SC 1311, http://spicyip.com/2012/11/a-successful-academic-intervention.html (last visited 2nd July, 2014).)), which would also make it TRIPs compliant.

Whether Section 3(d) was Constitutionally Valid

Novartis’ main grounds of attack to the constitutional validity of Section 3(d) were that it was vague, arbitrary and violated Article 14 of the Constitution of India ((Id)). Novartis further argued that the Patent Controller was granted uncanalised powers to determine what constituted “enhancement of efficacy”, which amounted to delegation of an essential legislative function.

The Madras High Court reiterated that in India, presumption lies in favour of the Constitutionality of an enactment ((Hamdard Dawakhana and Anr. v. Union of India and Ors., AIR 1960 SC 554)). In a plethora of judgments it has been upheld that, Article 14 of the Constitution will be violated only when differential treatment is meted out to individuals without the existence of a reasonable basis for the differentiation ((Ameeroonissa Begum v. Mehboob Begum, 1953 SCR 404 (414); Babulal Amthalal Mehta v. Collector of Customs, Calcutta, AIR 1957 SC 877; Gopi Chand v. Delhi Administration, AIR 1959 SC 609; Ashoka Smokeless Coal (P.) Ltd. v. Union of India, (2007) 2 SCC 640, 697)). In the instant matter the provision aims to create a distinction between pharmaceutical products and their derivatives which do not differ significantly in their properties. And the rational basis for doing so is to prevent ever-greening.

With regard to the argument of excessive delegation, the position of law which is well settled is that Parliament cannot delegate ‘essential legislative functions’ to administrative authorities ((In re Delhi Laws Act, AIR 1951 SC 332)). In other words, the Parliament must lay down the broad policy, after which it may delegate rule-making power to implement such a policy. Thus the question which surfaces here is when the power to determine what constituted “enhancement of efficacy” was delegated to the Patent Controller, did it amount to excessive delegation?

The policy behind an Act is the legislative intent with which it has been legislated. The legislative intent may be gathered from several sources like the combined reading of all the provisions of the statute, from the Preamble of the statute, from the Objects and Reasons, from parliamentary debates, reports of committees and commissions etc. ((Girdhari Lal & Sons v. Balbir Nath Mathur, [1986] 1 SCR 383))The legislative intent behind enactment of section 3(d) was curbing ‘ever-greening’ of patents ((See Lok Sabha Debates (March 22, 2005), available at http://164.100.47.132/LssNew/psearch/result14.aspx?dbsl=1866 (last visited 7th July 2014).)), and ensuring that patent rights were not worked to the detriment of consumers’ interest, trade, or industrial development of the country ((Statement of Objects and Reasons, Patents Act, 1970)).

It could be further argued that the amendment of 2005 was a skeletal legislation, not containing definitions or guidelines, which made it arbitrary. However, if the Parliament clearly indicates the policy and purpose of the Act in its operative part, the mere fact that the Act is skeletal in nature does not make such delegation excessive ((Jyoti Pershad v. Union Territory of Delhi, AIR 1961 SC 1602)). The amended section had in-built measures to guide the Statutory Authority in exercising its discretion by analysing the materials placed before it. The Madras High Court stated:

Further, in exercising such a discretionary power vested in the Statutory Authority, if it is found that he has exercised that discretionary power wrongly or abused it, then, such an error can always be corrected by higher forums, which is provided for in the Act itself and thereafter, by the courts of law.

In other words, a provision of law cannot be struck down on the ground that the Authority exercising the power under that provision is likely to misuse it ((Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536))or its possible abuse ((J.K. Industries Ltd. v. Chief Inspector of Factories Boilers, (1996) 6 SCC 665)).

When a law indicates the policy which inspired it, the mere fact that it does not itself make a complete and precise classification of the subject-matter, but leaves it for other authorities to apply the provisions having regard to the circumstances of each case ((Balbir Singh v. M.C.D., AIR 1985 SC 339)), guided by the policy of the Act, there is no contravention of Article 14 ((Ramkrishna Dalmia v. Tendolkar, Justice S.R., 1959 SCR 279; Jyoti Pershad v. Union territory, Delhi, AIR 1961 SC 1602 (1609);  Neimla Textile Furnishing Mills v. 2nd Punjab Tribunal, AIR 1957 SC 329)).

The judgement stated:

Having regard to the field in which the amended section is to operate; the technological and scientific research oriented advances already made and likely to be made in the coming future and which may be a continuing process for all time to come, the Legislature thought it fit to use only general expressions in the Act, leaving it for the Statutory Authority to apply its mind to the various facts that are brought to its notice and then find out whether the invented drug is within the mischief of the amended section or outside it. Therefore it would be unwise to fix any specific formula to be applied, as a matter of static measure, to find out whether the new form of a known substance resulted in the enhancement of the known efficacy or the derivatives differ significantly in properties with regard to efficacy.

Issues at Intellectual Property Appellate Board [IPAB]

The IPAB ((The Patents (Amendment) Act, 2002 inserted Chapter XIX, which conferred IPAB with the jurisdiction to hear all cases pertaining to patents subject to the provisions of the Patents Act, 1970))while holding that the requirements of novelty and non-obviousness were met, stated that Novartis’ patent application was hit by Section 3(d). It ruled that Section 3(d) merely represented a “higher standard of inventive step” particularly for pharmaceutical substances. The IPAB further stated that inclusion of such a standard was permissible under the TRIPS Agreement, as the Doha Declaration gives the WTO member states “the right to protect public health” and, in particular, to “promote access to medicines for all”.

The Final Lap: Appeal to the Supreme Court

After the amendment in 2005, the Supreme Court was faced with a novel task of interpreting some of the provisions so amended or introduced. It raised and attempted to answer the following questions:

What is the true import of section 3(d) of the Patents Act, 1970? How does it interplay with clauses (j) and (ja) of section 2(1)? Does the product for which the appellant claims patent qualify as a “new product”, and does that make the invention “not obvious” to a person skilled in the art? In case the appellant’s product satisfies the tests and thus qualifies as “invention”, can its patentability still be questioned and denied on the ground posed by section 3(d)?

Whether Section 3(d) was Interpreted and Applied Correctly

Section 3(d) which was introduced in 2005 states that, inventions that are mere “discovery” of a “new form” of a “known substance”, and which do not result in increased efficacy of that substance, are not patentable. For instance, the paracetamol has antipyretic property. Further discovery of new property of paracetamol as analgesic cannot be patented.

Section 3(d) also states that, a “new use” for a “known substance” or of the mere use of a known process, machine or apparatus, unless such known process results in a new product or employs at least one new reactant, is not patentable. For instance, new use of Aspirin for treatment of the cardio-vascular disease, which was earlier used for analgesic purpose, is not patentable. However, a new and alternative process for preparing Aspirin is patentable.

In this case, we are concerned with the first half of this definition, and whether the invented product in question attracts the application of this section. For this, a detailed understanding of the following terms is imperative:

“Mere Discovery”

The Zimmermann patent application ((Zimmermann Patent, Patent Number 5521184, (May 28, 1996).))makes express mention of beta-crystalline salt form of imatinib mesylate, and also divulges in detail, the method of preparation of imatinib mesylate. It categorically identifies methanesulfonic acid as a candidate to form a pharmaceutically acceptable salt of Imatinib. Based on such disclosures in the prior art, it was obvious to a person skilled in the art to prepare the beta-crystalline form of imatinib mesylate from free-base imatinib. Further, in Synthon B.V. vs. Smithkline Beecham Plc ((Synthon B.V. vs. Smithkline Beecham Plc, [2005] UK HL 59)), Lord Hoffman clarified that ‘‘even where a disclosure in a prior art reference is, by itself, not sufficient to produce the claimed invention, it is nonetheless anticipating if all that is required are ordinary methods of trial and error which involve no inventive step and are generally necessary in applying any discovery to produce a practical result.’’ Thus, it can be deduced that all relevant prior art taken together provided ample information for one skilled in the art to produce imatinib mesylate.

Invention’ has been defined under the Black’s Law Dictionary ((Black’s Law Dictionary, 9th edition, Pg. 901))as, “A patentable device or process created through independent effort and characterized by an extraordinary degree of skill or ingenuity; a newly discovered art or operation.” Also, Oxford Advanced Learner’s Dictionary ((Oxford Advanced Learner’s Dictionary, Oxford University Press,Pg. 818))defines ‘invention’as, “A thing or an idea that has been invented”. Further ‘invent’has been defined as, “to produce or design something that has not existed before ((Ibid.)).”

The arguments in favour of Novartis put before the Supreme Court emphasised on interpreting Section 3(d) as ex majore cautela ((Out of abundant caution)). They asserted that the opening words “mere discovery of new form of known substance” would anyway never meet the criteria of “invention” under Section 2(1)(j) and 2(1)(ja), and thus they were inserted only on cautionary basis. However, rejecting such a submission, the Court held that “the importance of the amendment made in section 3(d)…cannot be under-estimated. The amended portion…clearly sets up a second tier of qualifying standards for chemical substances/pharmaceutical products in order to leave the door open for true and genuine inventions but, at the same time, to check any attempt at repetitive patenting or extension of the patent term on spurious grounds.

“Known substance”

For deciding whether imatinib mesylate is a known substance or available to the public, it is not necessary that it has to be actually known or available to the public.  It is sufficient if the information given in a prior art document enables a skilled person in the art to prepare the same substance. Moreover, in Asahi Kogyo KK’s Application ((Asahi Kogyo KK’s Application, [1991 RPC 485]))it was observed, “The mere disclosure of a product without any directions as to how to make it, where such is not inevitable made plain from the mere disclosure of the product, does not make the product “available to the public”.  If the public do not know and are not told how to make something, then it is not available to them.  Only an “enabling disclosure” suffices to anticipate.”

The method of preparation of imatinib mesylate has been disclosed in detail in the Zimmermann Patent application,hence making it the ‘know substance’ for the purposes of section 3(d).

“Enhancement in efficacy”

To not attract the restriction as to patentability under Section 3 (d), the new form of the know substance should show an “enhancement in the efficacy” of the know substance. The definition of ‘efficacy’ determines the overall effect of section 3(d). Oxford Advanced Learner’s Dictionary ((Oxford Advanced Learner’s Dictionary, Oxford University Press,Pg. 489))defines ‘efficacy’as, “The ability of something, especially a drug or a medical treatment, to produce the results that are wanted”. Further, Dorland’s Medical Dictionary defines the expression “efficacy” as “the ability of a drug to produce the desired therapeutic effect ((Dorland’s Medical Dictionary, 32nd Edition, Pg. 536)).” Also, “therapeutic” is defined as “is healing of disease – having a good effect on the body ((Ibid.)).” Going by the meaning for the word efficacy’ and ‘therapeutic’ extracted above, what the patent applicant is expected to show is, how effective would the drug be in healing a disease or having a good effect on the body. Therapeutic efficacy refers to “the ability of a drug to produce an effect, and refers to the maximum such effect ((John P Grif & John O’Grady, “The Textbook of Pharmaceutical Medicine”, 4th edition, (2002), Pg. 283)).”

Applying the above to the present facts, the new substance, beta-crystalline form of imatinib mesylate, and the known substance, imatinib mesylate, both contain imatinib in its free base form from which both these substances derive their cancer-curing properties. To prove that there has been an enhancement in the efficacy of the know substance, the appellant would have to show that the enhancement is in relation to the property which cures or heals cancer. But such an argument will be flawed as the cancer curing ability in all the three forms is similar ((Supra note 10)).

The appellants claimed enhancement in efficacy of beta crystalline form of imatinib mesylate on the basis of physico-chemical properties like: (i) more beneficial flow properties, (ii) better thermodynamic stability, and (iii) lower hygroscopicity, as compared to its alpha crystal form. However, so far as Section 3(d) is concerned, not all advantageous or beneficial properties are relevant, but only such properties that directly relate to therapeutic efficacy. Thus, the above mentioned properties are irrelevant in judging enhancement in efficacy.

Following this, the Court considered the issue of bioavailability, and whether the presence of that alone can help determine the existence of efficacy. Considering the submissions of Prof. Basheer ((An intervenor-cum-amicus in this case)), the Court concluded that an increase in bioavailability alone may not result in increased efficacy ((Cf. Moffitt, Jane, “Appropriateness of Bioavailability and Bioequivalency as Pre-Market Clearance Considerations”, 34 Food Drug Cosm. L.J. 640 (1979) “It is not the intent of a bio-availability study to demonstrate effectiveness, but to determine the rate and extent of absorption. If a drug product is not bioavailable, it cannot be regarded as effective. However a determination that a drug product is bio-available is not in itself a determination of effectiveness.”)).This was a question of fact whose answer would vary from case to case. In the present situation, no material was put forth to establish the same, and hence the product in question failed the test of Section 3(d).

Whether the Requirement of Novelty was Satisfied

Novelty As A Pre-Requisite For Grant Of Patent In India

Section 2[l] ((Section 2(l) of the Patents Act, 1970))defines a ‘new invention’ as:

“‘new invention’ means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art.

Section 14 ((Section 14 of The Patents Act, 1970- “Consideration of the report of examiner by Controller- Where, in respect of an application for a patent, the report of the examiner received by the Controller is adverse to the applicant or requires any amendment of the application, the specification or other documents to ensure compliance with the provisions of this Act or of the rules made there under, the Controller, before proceeding to dispose of the application in accordance with the provisions hereinafter appearing, shall…”))and 15 ((Section 15 of The Patents Act, 1970- “Power of Controller to refuse or require amended applications, etc., in certain case- Where the Controller is satisfied that the application or any specification or any other document filed in pursuance thereof does not comply with the requirements of this Act or of any rules made there under, the Controller may refuse the application or may require the application, specification or the other documents, as the case may be, to be amended to his satisfaction before he proceeds with the application and refuse the application on failure to do so.”))empower the Controller to refuse an application on the ground that the invention is not new. The definition of invention under Section 2[j] ((Section 2(j) of The Patents Act, 1970- invention” means a new product or process involving an inventive step and capable of industrial application))itself mentions that invention is something new. Section 64(1)[e] ((Section 64(1)(e) of The Patents Act, 1970- “…that the invention so far as claimed in any claim of the complete specification is not new, having regard to what was publicly known or publicly used in India before the priority date of the claim or to what was published in India or elsewhere in any of the, documents referred to in section 13.”))provides a ground for revocation based on lack of novelty. Lack of novelty i.e. anticipation is also a ground available for opposing the grant of patent under Section 25(1)[d] ((Section 25(1)(d) of The Patents Act, 1970- “…that the invention so far as claimed in any claim of the complete specification was publicly known or publicly used in India before the priority date of that claim.”)).

Hence novelty is a mandatory requirement for grant of a patent in India. However, whether an alleged invention involves novelty and an inventive step is a mixed question of law and fact, depending largely on the circumstances of the case ((Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511; Polar Industries v. Jay Engineering, (1991) IPLR 150 (Cal); Unique Transmission v. ESBI Transmission, (1990) IPLR 216 (CA).)).

Evaluation Of Prior Art

For being a ‘prior art’ it is not necessary that the product must be specifically named in the previous application. The prior art must have made the invention claimed in the patent available to the public. However, the fact that the public did not know how the process worked or what was the product produced, is irrelevant. Although nobody had known that the product existed, it would still form a part of the prior state of art ((Merrell Dow v. Norton, [1994] RPC 1 at 10.)).

The information must have been made available to at least one member of the public who was free in law and equity to use it ((Genentech Inc’s Patent, [1989] RPC 147.)). It is sufficient if it is known to the persons who are engaged in the pursuit of the knowledge of the patented product or process either as men of science or men of commerce or consumers ((Monsato v Coramandal, AIR 1986 SC 712.)).

“Experiment” in the context of novelty means experiments with a view to discovering something not disclosed and does not mean ordinary methods of trial and error which involve no inventive step and generally are necessary in applying any discovery to produce a practical result ((Van der Lely N.V. v. Bamfords, [1963] RPC 61; Bugges Insecticide v. Herbon, [1972] RPC 197)). In Goodyear Tire and Rubber Company Application, it was observed that a later process claim is anticipated in the strict sense if the result of carrying out a process described in a prior document in fact inevitably results in something fairly falling within that claim even if the description itself may not be sufficient to act as anticipation alone ((The General Tire and Rubber Co. v. The Firestone Type and Rubber Co. Ltd. and Orson’s) Application, [1975] RPC 127)).

To determine whether a patentee’s claim has been anticipated by an earlier publication it is necessary to compare the earlier publication with the patentee’s claim. The earlier publication (and the claim) must, for this purpose, be interpreted as at the date of its publication, having regard to the relevant surrounding circumstances which then existed, and without regard to subsequent events. If the earlier publication, so construed, discloses the same device as the device which the patentee by his claim, so construed, asserts that he has invented, the patentee’s claim has been anticipated, but not otherwise ((Ibid)).

Anticipation Of The Alleged Invention By Zimmerman Patent

The Zimmermann patent application states the following: “Owing to the close relationship between the novel compounds in free form and in the form of their salts, including those salts that can be used as intermediates, for example in the purification of the novel compounds or for the identification thereof, hereinbefore and hereinafter any reference to the free compounds should be understood as including the corresponding salts, where appropriate and expedient ((Supra note 50)).”

The application further states (with regard to pharmacological properties): “Owing to the properties described, compounds of formula I can be used not only as tumour-inhibiting active ingredients but also as drugs against non-malignant proliferative diseases, e.g. atherosclerosis, thrombosis, psoriasis, sclerodermitis and fibrosis. They are also suitable for the further applications mentioned above for protein kinase C-modulators and can be used especially in the treatment of diseases that respond to the inhibition of PDGF-receptor kinase ((Ibid.)).”

The US Board of Appeals decision regarding the Zimmermann patent specifically held that the specifications in the Zimmerman patent teach any person ordinarily skilled in the art to use imatinib for treating tumors ((US Board of Patent Appeals, Application No. 09/463, 097, (November 23, 2003).)). Further, Imatinib Mesylate as an acid-addition compound of Imatinib free-base, directly emanates from the Zimmerman patent. Thus, converting it into a beta-crystalline from was an obvious mechanical work which could’ve been anticipated.

Whether the Said Invention Stood the Test of Non-Obviousness

What Constitutes Obviousness

The concept of non-obviousness can be found under Section 2(1)[ja] ((Section 2(1)(ja): “Inventive step” means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.))of the Patents Act in India. Further, the expression ‘obvious’ and ‘does not involve any inventive step’ appearing in Sections 25(1)(e) and 64(1)(f) bear the same meaning ((P. Narayanan, “Patents Law”, 6th Edition, Pg. 403.)). The term ‘obvious’ comes from the Latin term ob via meaning something ‘which lies in the way’. In the context of the Act it means something which is plain or open to eye or minds or perfectly evident to a person thinking on the subject ((Olin Mathieson Chemical Corporation v. Biorex Laboratories Ltd., [1970] RPC 157; General Tire & Rubber v. Firestone Tyre & Rubber, [1971] RPC 173.)). Obviousness is the antithesis of inventiveness. What is obvious cannot be inventive and what is inventive cannot be obvious ((Beecham Group Ltd.’s (Amoxycillin) Application, [1980] RPC 261)).

Broader In Scope Than Novelty

The philosophy behind this provision relating to non-obviousness is different from that behind Section 64(1)(c) (anticipation) to the extent that a person is granted a patent only for an invention, and that which is obvious is not an invention ((Windsurfing International v. Tabur Marine, [1985] RPC 59.)). The area of inquiry in obviousness is wider than that in anticipation. The court looks at the prior art as a whole having regard to everything which was known or used before the priority date. The court does not confine itself to looking at the particular prior art documents ((Ibid.)). The court also held that the person notionally skilled in the art has at least sufficient interest to address his mind to the subject and to consider the practical application of the information he is deemed to have ((Ibid.)).

Ascertaining The Of Craft Of “Person Skilled In The Art”

Before delving into the existence of non-obviousness, one needs to ascertain the level of craft or skill which this “person skilled in the art” must have. The question is therefore whether in accordance with the policy of the enactment, the patent discloses something sufficiently inventive to deserve the grant of monopoly ((Societe Technique De Pulverisation Step v. Emson Europe, [1993] RPC 513 (CA).)). The person to whom it must be obvious must have an unlimited capacity to assimilate the contents of, it may be, scores of specifications but to be incapable of a scintilla of invention ((Technigraph Printed Circuits Ltd. v. Mills & Rockley (Electronics) Ltd., [1972] RPC 346)).

Where the difference between the old mechanism and the alleged invention consists only in matters of design, it is not subject-matter for patent ((Safveans Aktic- Bolag v. Ford Motor Co., (1927) 44 RPC 49)). Ordinary workshop improvement of a well-known type of apparatus does not constitute an invention within the recognized principles of the patent law ((Curtis & Son Ltd. Heward, (1923) 40 RPC 53)). Similarly a workshop improvement of a well-known character or something made in a well-known way is not an invention ((Shaw v. Burnet, (1924) 41 RPC 432)).

In recognising the difference between that which is inventive and that which is obvious, it must be kept in mind that “the uninventive expert should not be supposed to be attempting to discover something new, that is, to be striving for inventiveness ((Beecham Group Ltd.’s (Amoxycillin) Application)).”

The conversion of imatinib mesylate into a particular salt form does not involve an ‘inventive step’ but mere basic chemistry. It is common knowledge that most chemical compounds can be crystallized into various salt forms by following a set procedure in chemistry.

Impact of the Decision on Indian Pharmaceutical Industry

First Of Its Kind

This is the first decision of its kind, as it involved interpretation of Section 3(d) for the first time. Since this provision is unparalleled throughout the world, it craves a strong jurisprudence to guide it to its goal. The Supreme Court was able to achieve this to some extent, by tracing the history of Section 3(d) and analysing the legislative intent of the Parliament behind enacting it. It also helped in Re-establishing India’s stance against ever-greening of patents. It ensured that the policies enacted in social interest, were kept intact, and did not bow down under pressure from multinational corporations.

Clearing The Air, Yet Creating Uncertainty

While Section 3(d) introduces the term “efficacy”, it does not provide any definition to assist the courts in its interpretation, nor does the Manual of Patent Practice and Procedure ((Published by the Office of Controller General of Patents, Designs & Trademarks, available at http://www.ipindia.nic.in/ipr/patent/manual/main%20link.htm (last visited 2nd July, 2014).)). This raises several questions such as: what does “efficacy” mean? Does increased bioavailability qualify as enhanced “efficacy”? What is the standard of proof required to establish “efficacy”? When must proof of efficacy be produced? ((S. Basheer raised these questions in his petition as an intervener. See Supra note 36.))The Supreme Court failed to give a satisfactory answer to these questions. It accepted Madras High Court’s interpretation of “efficacy” to mean “therapeutic efficacy”. However, some scholars believe that this approach is too restrictive, and certain practical or physical properties (such as lower hygroscopicity or enhanced heat stability) may also render the drug more efficacious.

Further, without settling the position of law, the court stated that, whether or not an increase in bioavailability leads to an enhancement of therapeutic efficacy in any given case must be specifically claimed and established by research data ((Supra note 10)).

Changes in patent law or the legal environment significantly affects the value of a patent ((Alan C. Marco, “The Value of Certainty in Intellectual Property Rights: Stock Market Reactions to Patent Litigation”, Vassar College Economics Working Paper No. 82, November 2005. http://irving.vassar.edu/VCEWP/VCEWP82.pdf (last visited 2nd July, 2014).)). Thus, more the certainty, better it is for the patent regime of a country ((J. O. Lanjouw and J. Lerner, “The Enforcement of Intellectual Property Rights: A Survey of the Empirical Literature”, NBER Working Paper No. 6296, December 1997.)). The aim of judiciary should be to enhance that certainty, which it couldn’t fulfil in this case. The meaning and applicability of this unique provision and its operative term “enhanced efficacy” still hangs in the balance.

Blocking Of Incremental Inventions

In pharmaceutical industry, innovations don’t often involve new chemical entities. If the standard of non-obviousness through Section 3(d) is set so high, it might not allow many incremental innovations which might be worthy of patenting ((Linda L. Lee, “Trials and TRIPS-ulations: Indian Patent Law and Novartis AG v. Union of India”, Berkeley Technology Law Journal, vol. 23, Issue 1, February 2014 pp. 310.)). This can also be construed by some as a violation of TRIPs ((India would be in breach of Article 27.1 if its non-obviousness standards were so rigid such that an invention would require an “inventive leap” rather than an “inventive step”. Rochelle C. Dreyfuss & Andreas F. Lowenfeld, “Two Achievements of the Uruguay Round: Putting TRIPS and Dispute Settlement Together”, 37 VA. J. INT’L L. (1997), pp. 298.)).

Decline In Investment In India

The initial practice of MNCs of exporting drugs to India has been replaced in the past few years by their direct investment in drug production in India. The low cost of production, research and relatively relaxed norms for clinical testing have attracted them to the Indian markets ((Janice Mueller, “The Tiger Awakens” Supra note 1 pp. 533)). However, the continued investment of such companies in any country depends on several other factors such as its legal framework, ease of gaining Intellectual Property rights, measures awarded for their protection etc.

In light of the above facts, a judicial pronouncement of such magnitude interpreting provisions of patent law in India is bound to have future ramifications. By discouraging ever-greening of patents and incremental innovations, pharmaceutical giants might feel discouraged in investing in Indian markets. Further, they may also shy away from introducing new variants of drugs which under Indian laws shall be immune from patent protection. Such a situation shall be detrimental for the entire drug industry in India.

Need For Incentivising Indian Pharmaceutical Companies

With the growth of indigenous R&D in the country, not only MNCs but the domestic companies would also prefer a stringent patent regime, which can ensure that their resources and efforts spent are well awarded. Moreover, they shall look for such incentives for further developments. However, the Indian socio-economic scenario has not reached the desired stage where such considerations may take precedence over the necessities of the majority.

Conclusion

Progress is as important in crowded arts as in those which are in the pioneer stage and such progress is usually made in small increments ((In re Hummer, 44 CCPA 814, 241 F2d 742, 112 USPQ 66 (1957).)).”

This is most true for pharmaceutical industry. Successive innovations coupled together may give the resultant product enhanced properties compared to the original product. Their importance must therefore not be ignored. At the same time, establishing a standard for measuring this enhancement is a task in itself. The efforts of the Supreme Court, in clarifying the position of law regarding Section 3(d) to some extent, are laudable.

With the exponentially developing technology, India is shifting its position from being an imitator to becoming an innovator. Therefore, the problem addressed in this decision is not limited to multinational companies and the adverse effects shall also reflect on pharmaceutical businesses in India. Along with this, the country is also expected to suffer a loss of infrastructure relating to the innovation process, like clinical trials, setting up of laboratories, academic research, etc.

India is a welfare state governed by a Constitution which holds the pride of place in the hearts of its citizens. It lays special emphasis on the protection and well-being of the weaker sections of society and seeks to improve their economic and social status on the basis of constitutional guarantees spelled out in its provisions ((Vikram Deo Singh Tomar .v. State of Bihar , AIR 1988 SC 1782)).”

The decision reflects Indian society’s value judgements and economic interests more than the technicalities of patent law. It is in concurrence with the constitutional obligation to promote social welfare and balance interests of stakeholders within the limited resources available with the country. It is also in consonance with Bentham’s view that law must aim at maximising the amount of pleasure enjoyed and minimising the amount of pain suffered by the society ((Jeremy Bentham, “An Introduction to the Principles of Morals and Legislations”, 1, Dover Publications (2007).)).

However, in reality a majority of the generic produce is exported to developing countries and less consideration is given to the domestic demand, since the former is more profitable. Thus, to what extent will these benefits ultimately reach the poor masses of India, is a question which begs for attention.

Case Analysis: In re Roslin Institute (Edinburgh)

Aastha Tushar Mehta & Bandhan Umesh Sheth ((Students of Law, GNLU, Gandhinagar)).

Cloning is seen as one of the marvels of scientific inventions, and a stride ahead in the field of biology.  First ever produced mammal clone was “DOLLY” the sheep which was created by Keith Henry Stockman Campbell and Ian Wilmut, by a process called somatic cell nuclear transfer, wherein the researchers took nucleus of an adult somatic mammary cell (A somatic cell is anybody cell other than gametes (egg or sperm) and enucleated oocyte (An oocyte is a female gametocyte (an egg cell prior to maturation). The basic question that came up before the court for adjudication was whether Patent and Trademark Officer (hereinafter referred as PTO) was correct in rejecting the plea of patenting the clone itself. It would be useful to clarify in the beginning itself that somatic process of cloning has been patented by the institution, so that has not come under discussion in this case.

One more point which is important before directing our attention to the key arguments is the reason why patent to the clone itself was rejected. The examiner of patent issued a non-final rejection to the plea of patenting the clone itself due to 35 U.S.C. § 101 which stipulate which inventions are patentable and it reads as follows

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title ((35 United States Code  § 101)).”

The statute uses the term “manufacture or composition of matter” which were relied by the Patent Board, and they acknowledged that the clones might fall within this category however, according to them it was ineligible for patent protection under §101 since it is naturally occurring phenomenon, resulting from nature, and so as to quote the words of the court “did not possess markedly different characteristics than any found in nature.” Nor did it comply with the statutory provisions of §102 ((Envisages concept of novelty, especially 35 U.S.C. §§ 102(a), (b).))and §103 ((Envisages concept of non-obviousness, see Gale Peterson, Understanding Biotechnology Law: Protection, Licensing, Intellectual Property Policies, CRC Press 1993, p.101))which deal with “conditions of patentability” and “non-obviousness criteria” respectively. However the main grounds for rejection remained §101 and that has been considered by the court. Court also clarified that they have jurisdiction 28 U.S.C § 1295(a) (4) (A), ((The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction: of an appeal from a decision of — (A) the Patent Trial and Appeal Board of the United States Patent and Trademark Office with respect to a patent application, derivation proceeding, reexamination, post-grant review, or inter partes review under title 35, at the instance of a party who exercised that party’s right to participate in the applicable proceeding before or appeal to the Board, except that an applicant or a party to a derivation proceeding may also have remedy by civil action pursuant to section 145 or 146 of title 35; an appeal under this subparagraph of a decision of the Board with respect to an application or derivation proceeding shall waive the right of such applicant or party to proceed under section 145 or 146 of title 35))to review Patent Board’s order.

Arguments put forward

  1. The First point which Roslin Institute contended was copies (clones) are eligible for protection because they are “the product of human ingenuity” and “not nature’s handiwork, but their own.”
  2. Roslin argues, that Clones are patentable under §101 since they fall within the term “manufacture or composition of matter”.
  3. One more commendable argument put forward by the Institute, which happens to be their main argument is that claimed clones are patentable because they are distinguishable from donor mammals used to create them, and they rely on “environmental factors” which lead to “phenotypic differences ((Phenotype refers to all the observable characteristics of an organism such as shape, size, colour and behavior that, results from the interaction of organism’s genotype with its environment)),” between the clones and their donor mammals.
  4. From the same argument, they contend that there clones are distinguishable in colour from their original donors because of mitochondrial DNA, since in cloning process the clone inherits DNA from donor oocyte instead of donor somatic cell. Therefore differences in mitochondrial DNA render the clones patentable.
  5. Finally they argue that clones are time delayed versions of their donor mammals and therefore different from original mammals.

Decision of the Court

It would seem convenient from the point of view of understanding the ratio decidendi to go as per the above given arguments and the reasoning given by the Court in its answer.

  1. As per the first argument, the court relied on the case of Funk Bros. Seed Co. v. Kalo Inoculant Co. ((333 U.S. 127 (1948).))which made crystal clear that naturally occurring organism are not patentable. In this case the court considered whether a mixture of naturally occurring strains of bacteria that helped leguminous plants extract nitrogen from the air and fix it in soil was patentable and decided that it cannot be subjected to patent protection and held as follows “The qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men. They are manifestations of laws of nature, free to all men and reserved exclusively to none. He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end ((Id at 130)).” Therefore the court stated that the method of selecting the strains could be subject to patent, the mixture itself is not patentable. In order the reject the plea of patent to clones the courts also relied on one more landmark judgment wherein the criteria relied upon in order to know whether a new discovery had been made, independent from nature, was that of ““markedly different characteristics from any found in nature and one having the potential for significant utility ((Diamond v. Chakraborty 447 U.S 303 (1980) at 310)).” Court stated in this case as follows relying on Chakraborty case as follows “Dolly herself is an exact genetic replica of another sheep and does not possess “markedly different characteristics from any [farm animals] found in nature ((Case Judgment Copy, Available at http://patentlyo.com/media/2014/05/13-1407.Opinion.5-6-2014.1.pdf)).” One more interesting thing on which court relies is the point laid down in the case of Association for Molecular Pathology v. Myriad Genetics, Inc. ((133 S. Ct. 2107 (2013).))wherein the court held that claims on two naturally occurring, isolated genes (BRCA1 and BRCA2), which can be examined to determine whether a person may develop breast cancer, were invalid under § 101., since they are products of nature, and court stated on the same basis that the institute did not alter or modify the genetic structure of the DNA, but all their innovation was the preservation of donor DNA, so that the clone was exact copy of mammal from which somatic cell was taken. Their role was not to change the DNA altogether. Therefore DOLLY being the exact genetic copy of her original donor, is not patentable.
  2. Considering the second point the court said there are three exception to §101 wherein even if the subject matter falls within one of the categories, it is rendered unpatentable, which are laws of nature, natural phenomenon and abstract ideas ((Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293 (2012); O’Reilly v. Morse, 56 U.S. (15 How.) 62, 112-20 (1854).)). Since clone itself is an exact genetic copy of original donor mammal, and has no much difference from any other farm animal, it falls within these exceptions.
  3. Addressing the question of “phenotypic differences”, court said that such differences are unclaimed. In the words of court “the word “cloned” in the pending claims connotes genetic identity, and the claims say nothing about a phenotypic difference between the claimed subject matter and the donor mammals. Moreover, Roslin acknowledges that any phenotypic differences came about or were produced “quite independently of any effort of the patentee ((Id at 8)).” Court further stated that the difference between clones and the mammals were the result of environmental factors not the result of patentee’s efforts. Institute explained how phonetically mammals and their offspring clones can never be same due to environmental factors, which shows expressly why the court held that clone itself was not patentable, as it had no specific characteristic attributed to the institute that did the cloning process, but was work of naturally occurring factors.
  4. Similarly, while discussing mitochondrial differences, the court stated that such differences were also unclaimed; Roslin’s patent application does not identify how differences in mitochondrial DNA influence or could influence the characteristics of cloned mammals. The patent application does not specifically put forward any different unique characteristics from their original donor cell; since the clones have their identity attached the nucleus of the DNA of their donor mammal cell. Therefore the court states in absence of any specification pointing out that there are marked difference between the donor cell and the receipt oocyte, the clones are not able to be given patent protection.
  5. Considering the last point of “time delayed version” court relied on the reasoning given by the Patent Board for rejection.  Board laid down the reason for not granting patent by saying “the difficulty of time-delayed characteristic is that it is true of any copy of an original”. Meaning thereby, that since clones are not very distinctly marked characteristic other than any their donor mammals, it is not subject to patent protection.

Impact of the judgment

Pilar Ossorio, a professor of law and bioethics at the University of Wisconsin Law School, called the decision a victory for people who thought cloning animals was morally wrong, and she stated “This ruling is taking away an incentive for research organizations to pursue more research into cloning, at least on the margins ((Bernard Vaughan, Dolly the sheep-type clones ineligible for patent: appeals court  (23rd October, 2014) http://uk.reuters.com/article/2014/05/08/us-ip-dollysheep-idUKKBN0DO1ON20140508)).” Personally, authors agree it will take off the commercial incentive, but the process itself is not rendered unpatentable, which still gives a scope to science researchers and academicians to endeavor such initiatives, by different processes, making the end product more useful. However it remains to be seen whether human cloning is something which would be ascertained as being allowed or prohibited on the same platform or not as that of “dolly-the-sheep” type of cloning. It remains to be seen what will be the stance taken by the Supreme Court if matter goes to appeal. There is a lot of debate as to pros and cons of such patenting of human genes and animals, since it goes against the philosophy of owning what is god-made, creation of the almighty and using it for commercial use. One side would be representing, human dignity is infringed, and human dignity in every human is internationally recognized feature, which does not allow patenting a human gene, genome, or even a cloned animal ((A.R Chapman, Patenting human genes: ethical and policy issues, In J.Bryant, L.B Velle and J.Searle (Eds.), Bioethics for Scientists (p.265-278) Hoboken: John Wiley and Sons)). Some believe it is an incentive for researchers, and science to have new dimension. Indian law has no specific clarity on this point, however it seems that patenting a cloned animal might have various problems in India, starting with Section 3(b) in Chapter II of Indian Patent Act 1970. Section 3 states what inventions which cannot be patented and clause b states as follows,

“an invention the primary or intended use or commercial exploitation of which could be contrary public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment”.

In India, animals have a different place, cows are considered holy, camels a mode of transport, farm poultry a big industry, a cloned animal might be seen to be falling under any of the above categories. In 2002 Amendment, patents on living organism were granted ((Section 4(e), 2002 Amendment Act)). In the Calcutta High Court, Dimminaco A.G v. Controller of Patents Designs and Ors ((2002 IPLR 255 Cal H.C))wherein the Patent Office did not grant patent to process of creating live-vaccine for Buristis, and Calcutta High Court granted patent, by vendibility test, any claim of patent which leads to a vendible product is certainly a new product which undergoes a process of manufacture, and therefore is subject to patent protection. Even 2005 Amendment is not very clear as to the stance of the cloning, or patenting of human genes, however Ministry of Science and Technology in the text of Ethical Policies on the Human Genome, Genetic Research and Service, human cloning shall not be permitted ((Rosario M. Isasi, Bartha Knoppers, NATIONAL REGULATORY FRAMEWORKS REGARDING HUMAN CLONING FOR REPRODUCTIVE AND THERAPEUTIC/RESEARCH PURPOSES, (14 December 2014) http://www.dnapolicy.org/pdf/cloning.pdf)). In view of the authors, a specific legislation, or a particular provision in the patent law, in view of the upcoming genetic research, and in light of deciding the whether the view of the Dolly the Sheep judgment can be beneficial to Indian scenario, is a much needed requirement.

Fatwas have no legal standing: Supreme Court

Dr. Ravishankar K. Mor, Asst. Prof., Dept. of law, Yeshwant Mahavidyalaya, Wardha

VISHWA LOCHAN MADAN Vs UNION OF INDIA & ORS. (W.P. (civil)No. 386/2005) Date of Judgement 07.07.14

OPPORTUNITY LOST

Petitioner alleges that all Fatwas  have  the  support  of  All India Muslim Personal Law Board and it is striving for the establishment  of parallel Muslim judicial system in  India.   According  to  the  petitioner, adjudication of disputes is essentially the  function  of  sovereign  State, which can never be abdicated or parted with. In order to highlight the severity of issue, petitioners presented the instances of a few fatawas which seems to be pertinently violative of rights conferred under part three of the constitution of India. Lets have a look upon then,

A  Fatwa  given  by  Dar-ul-Uloom  of Deoband in relation to Imrana’s incident.  Imrana, a  28  years  old  Muslim woman, mother of five children was allegedly  raped  by  her  father-in-law.

The question arose about her marital status and those of her  children  born in the wedlock with  rapist’s  son.   The  Fatwa  of  Dar-ul-Uloom  in  this connection reads as follows:

“If one raped his son’s wife and it is proved  through  witnesses,  or the rapist himself confesses it, Haram Musaharat will be proved.   It  means that the wife of the son will become unlawful forever to him i.e.  the  son. The woman with whom father has copulated legally or had  sexual  intercourse illegally in both ways, the son can’t keep physical relationship  with  her.

The Holy Quran says:

“Marry not the woman whom your father copulated”

The  Fatwa  has  dissolved  the  marriage  and  passed  a  decree  for perpetual injunction restraining  the  husband  and  wife  living  together, though none of them ever approached the Dar-ul-Uloom.

Another Fatwa of which our attention is drawn  rules  that  no police report can be filed against the father-in-law of Asoobi, who  had  allegedly raped her.  According to the Fatwa, father-in-law  could  have  been  blamed only if there had either been a witness to the case or the victim’s  husband had endorsed  Asoobi’s  allegation.   Yet  another  Fatwa,  which  has  been brought to our notice is in connection with Jatsonara, a 19 year old  Muslim woman, who was asked to accept the rapist father-in-law as her real  husband and divorce her husband.

In the aforesaid background, the petitioner has sought  a  declaration  that the movement/ activities being pursued by All  India  Muslim   Personal  Law Board and other similar organizations for establishment of  Muslim  Judicial System and setting up of Dar-ul-Qazas (Muslim Courts) and Shariat  Court  in India are absolutely illegal, illegitimate  and  unconstitutional.   Further declaration sought for is  that  the  judgments  and  fatwas  pronounced  by authorities have no place in the Indian Constitutional system, and the  same are unenforceable being  wholly  non-est  and  void  ab-initio.   Petitioner further seeks direction to the Union of India and the  States  concerned  to forthwith take effective steps to disband and diffuse all  Dar-ul-Qazas  and the Shariat  Courts  and  to  ensure  that  the  same  do  not  function  to adjudicate  any  matrimonial-disputes  under  the   Muslim   Personal   Law.

Thus the contentions raised in the petition can be summarized as,

  1. Shariat courts and other bodies like Dar-ul-Qazas, Dar-ul-uloom creates parallel court system and are unconstitutional, and
  2. Fatawas issued are in contravention of fundamental rights of the citizen under constitution of India.

Thus this was the opportunity for honourable Supreme Court to decide on the issue which time and again struck news paper headlines in India. Such news of strange fatwas issued by Shariat courts and somewhat similar orders by khap panchayats are not new in India.

The stand taken by Union of India was this

  • Fatwas are advisory in  nature and no Muslim is bound to  follow  those.
  • Further,  Dar-ul-Qazas  does  not administer criminal justice  and  it  really  functions  as  an  arbitrator, mediator, negotiator or conciliator in matters pertaining to family  dispute or any other dispute of civil nature between the Muslims.
  • Dar-ul-Qaza can  be  perceived  as  an  alternative  dispute resolution mechanism, which strives to settle disputes  outside  the  courts expeditiously in an amicable and inexpensive manner and, in  fact,  have  no power or authority to enforce its orders and, hence, it cannot be termed  as either in conflict with or parallel to  the  Indian  Judicial  System.
  • According to the Union of India, few bad  examples  may not justify abolition  of  system,  which  otherwise  is  found  useful  and effective.

The Union of India has not denied that Fatwas as alleged by the petitioner  were not issued but its plea is that they were not issued by any of  the  Dar-ul- Qaza but by a Dar-ul-uloom.

Similar was the submission by other respondents, All India Muslim Personal law Board, Dar-ul-Uloom, Deoband, State of UP and State of Maharashtra.

They all raise the same plea that Fatawas are advisory in nature and lack any enforceability. Though Dar-ul-Uloom,  Deoband  admits  issuing  Fatwa  in Imrana’s case as per Fiqah-e-Hanafi, which is based  on  Quaran  and  Hadith but asserts that it has no agency or powers to enforce its  Fatwas.   It  is within the discretion of the persons or the parties  who  obtain  Fatwas to abide by it or not.  However, according to them,  God  fearing Muslims being answerable to the Almighty, obey the Fatwas, others  may  defy them. At no point of time respondents denied that fatawas as alleged are against the fundamental rights.

Court while dealing with the issue of Dar-Ul-Qazi courts examine the issue on the basis of source of its authority and as no legislation empower such courts held they do not constitute parallel court system.

This is quite interesting to note here that source of such courts were looked at the legislations, “Dar-ul-Qaza  is  neither  created nor sanctioned by any law made by  the  competent  legislature. ” while such courts always claim authority under the religion and not statute, and court taking plea that there is no state enforceability to the decisions of such courts held they do not create parallel judicial administration, though it is apparent that they are dealing with the process of deciding rights and liabilities of the people and as such very much performing judicial function. So far as enforceability is concerned responded has accepted that god fearing Muslim will honour such fatwas. Was this not enough for the courts to declare such practice unconstitutional? Even a single instance of denying fundamental right of the individual must be dealt with highest constitutional authority; this is rather responsibility of the court to see no individual shall be allowed to waive his fundamental right. But court took lenient view and accepted the argument that such Muslim courts are like alternative dispute resolution mechanisms. This really call for further deliberation at highest level of judiciary through a constitutional bench.

On second issue, whether such fatawa are unconstitutional the court has not come out with clear opinion anyway rather has accepted the right of such bodies to issue fatwas in religious matters and held “A Fatwa is an opinion, only an expert is expected to give.” Rather than declaring any such fatwa illegal and unconstitutional court prefer to use the language “we  observe that no Dar-ul-Qazas or for that matter, any  body  or  institution  by  any name, shall give verdict or issue Fatwa touching  upon  the  rights,  status and obligation, of an individual unless such an  individual  has  asked  for it. In the case of incapacity of such an individual, any  person  interested in the welfare of such person may be permitted to  represent  the  cause  of concerned individual.”

In the careful reading one can say court has recognised rights of such courts to issue fatwas even if they touch the constitutional rights of the individual, if asked by the concerned person. Does it mean that one can waive his fundamental rights? .

This case was a good opportunity for honourable court to warn the fundamentalist that in the era of constitution, religious fanatics has no place, no such attempt will be tolerated, but court rather than issuing warning merely declared such fatwas having no legal enforceability and has miserably failed to contained the instances which bring shame to this country. This is clearly a case of lost opportunity.

Tracing official bias from Gullapalli to Doctrine of necessity

Palak Gupta, Student of Law, Gujarat National Law University

It is the spirit and not the form of law that keeps justice alive.  ~ Earl Warren.

Natural Justice is an important concept in administrative law. In the words of Megarry, J. ((John v. Rees, (1969) 2 All ER 274: (1970) 1 Ch D 345))it is ‘justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical.’ It is ethico- legal principle. The origin of this principle is from the case of king v. Chancellor where Justice Fortescue held that first hearing of human history happened in heaven in Garden of Eden. Even God himself gave the opportunity of hearing to Eden. Principles of Natural Justice are the law evolved along with the history of human. P.N. Bhagwati in the case of Maneka Gandhi v. UOI held that principles of Natural Justice are a universal law. It has been termed as fair play in action in case of Re K. (H)(an infant) by Lord Parker.

Principles of Natural Justice are based on two maxims Audi Alteram Partem and Nemo Judex in causasua. Courts are bound to follow these principles while giving judgment. Audi Alteram Partem means hear the other side. The principle of Nemo judex in causasua means that no person should be judge in its own cause.It means that an adjudicator should be disinterested and unbiased. Literally it means that no person should be judge in his own case. It means that justice should not only be done, but should also seem to be done. Bowen J. “ judges like Ceasar’s wife should be above suspicion”.

Bias may arise either due to pecuniary interest or personal interest. However small a pecuniary bias is, it should disqualify the judge from being a member of the tribunal. Personal bias may arise due to blood relations, marital relations, friendship or hostility. For this principal it is necessary to prove that there is a real likelihood of bias.

Official bias is the most impersonal kind of bias. The administration itself is usually a party in many departmental proceedings before bureaucratic authorities. Therefore, an authority may have official bias towards the department to which it is attached, in a dispute between the department and a private party, or may have a policy bias. His bias may be regarding pursuing the policy, which is followed by his department. So when an official acts as an adjudicator he can’t completely shed off his bias, nor can he be said to be totally impartial or neutral. The difficulty, which arises in this situation, is whether the official is to be disqualified from acting as an adjudicator because of policy bias. Exception to official bias is the Doctrine of Necessity.

English law: just a mere interest a minister has in a scheme would not disqualify her on the ground of bias. This was held in Franklin V Minister of town and country planning.

Indian Law- the principal accepted in India is that a mere official or policy may not necessarily be held to disqualify an official from acting as adjudicator. The criteria for him to be disqualified is that there is total non-application of mind on his part or he would have acted according to the directions given to him by his superior authority and has not decided the matter independently.

The present case of Gullapalli Nageshwara Rao is based on the question of inquiry. Whether the element of official bias can be seen when the minister being head of the department gave the hearing and approves the scheme?

Inquiries: Inquiry is to be held by the concerned authority before taking a decision, it may happen that one body makes the inquiry and, on its report, some other authority takes a decision. In such a case, the inquiry body has no power to decide, nor the inquiry report has any binding force by itself. But the inquiry report constitutes an important link in the chain of decision-making process.

A Question which in such case arise is whether an inquiry under a specific statute is administrative or quasi judicial in nature? Some inquiries have been held to be administrative and some quasi-judicial requiring application of the principles of natural justice.

Facts:

In India, the SC dealt with the question of official bias in this case. The facts of Gullapalli Nageshwara Rao v AP State Road Transport Corporation ((AIR 1959 SC 308,(1959) SCJ 967)), which is known as first Gullapalli case, are as follows: the petitioners were carrying on motor transport business for several years in Krishna district of Andhra Pradesh. The state transport undertaking published a scheme for nationalization of motor transport in the state from the date to be notified by the state government. It invited objections to the scheme. The petitioners, among others filed their objection to the scheme. The secretary of transport department gave a personal hearing to the objections and heard the representations made on behalf of the state transport undertaking. The entire material gathered by him was placed before the Chief Minister who approved the scheme. The approved scheme was subsequently published.

Procedural history

The petitioners assailed the constitutional validity of scheme under article 32 of the constitution before the SC on various grounds. The SC upheld the objections and quashed the order approving the scheme.

Contention by the One of the objections was that, the person who had initiated the scheme had also heard the objections. He was therefore, biased in favor of scheme, and hence could not have given fair hearing.

The court held that the hearing given by secretary clearly offended the principles of Natural Justice and, hence the proceedings involving the hearing were void. Another objection the court upheld was that since the hearings were held before one person and another gave the final decision, the rules of Natural Justice were violated. The majority held that since the ultimate decision taken after hearing both the sides was quasi judicial in nature, the functions of hearing and deciding could not be vested in two different persons.

Subsequent amendments

Under the amend act, a minister was required to decide upon a scheme. In Nageswara Rao v Andhra Pradesh ((AIR 1959 SC 1376, (1960) SCJ 53)), which is known as second Gullapalli case the competency of minister to give the hearing was challenged.

Appeal under article 226 of the constitution: Appellants moved to High Court for writs of certiorari to quash the order passed by the Government confirming the scheme and also to quash the subsequent orders made by the Regional Transport Authority canceling their stage carriage permits. HC rejected the petitions and appellant appealed.

Issues

  1. Whether a statute confers power on authority and imposes a duty on it to be a judge of its own cause or decide a dispute, which has official bias, the doctrine of bias is qualified to the extent of the statutory authorization?
  2. Whether the State Government, in the present case, acted in violation of the principles of Natural Justice?
  3. Whether the Chief Minister by his acts and speeches disqualified himself to act for the State Government in deciding the dispute?

Petitioner’s contention

  1. The chief minister who was in charge of transport department was incompetent to hear the objection as the same disability is attached to him, which was attached to the Secretary in charge of the Transport Department on the previous occasion.
  2. The Chief Minister by his acts, such as initiating the scheme, and speeches showed a clear bias in favor of the Undertaking and against the private bus operators and therefore on the basis of the principles of natural justice accepted by this Court, he was precluded from deciding the dispute between the said parties.
  3. Any kind of bias, whether financial or other, for or against any party, or any position that might impute bias, in a judicial authority, must disqualify him as a judge. But when a State Legislature or the Parliament violates the aforesaid principals, such statute, unlike one passed by the English Parliament, has to stand scrutiny in the light of the fundamental rights enshrined in the Constitution.

Respondent’s Contention (Advocate General)

In this case he tried to distinguish between “official bias” of an authority, which is inherent in a statutory duty imposed on it and “personal bias” of the said authority in favor of, or against, one of the parties.

The Chief Minister of the Government cant be disqualified from deciding the dispute merely on the fact that he had supported the policy of nationalization, or even the fact that the Government initiated the said scheme unless it was established that he was guilty of personal bias, and however there was no legal proof establishing the said fact.

Principle accepted by counsel for both the sides

If a member of a judicial body is bias, it may be financial or any other in favor of, or against, any party to a dispute, or is in such a position that there is a likelihood of bias he ought not to take part in the decision or sit on the tribunal and that any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify a judge, and any other interest if a reasonable suspicion of bias can be ascertained. These principles are applicable to quasi-judicial bodies too.

Judgment

 The judgment was delivered by Justice Subba Rao.

1. Regarding the first issue court referred two cases The King v Bath compensation and the king v Leicester Justices.

The decision in the first case was that unless the legislature clearly and expressly ordained to the contrary, the principals of Natural Justice can’t be violated. These decisions showed that in England a statutory invasion of the common law objection on the ground of bias is tolerated but invasion has to be strictly in conformity with the statutory exceptions. However in India, the law made by parliament or state legislature should be in concurrence with he fundamental rights, which are declared in part III of the constitution.

2. The question regarding that the chief minister acted in violation of natural justice, court rejected this argument mainly on two grounds:

  1. Since the appellants never raised the question regarding the competence of the Chief Minister to decide the objections on the last occasion and the court on that basis gave judgment. So now it is not open for petitioners at this stage to reopen the closed controversy or take a contrary position. It was also held that the minister was competent to give hearing even though he was the formal head of the transport department.
  2. There are no merits in this contention. It was held that there is a distinction between the position of a Secretary of the Department and the Chief Minister of the State. Under the constitution governor is to act on the advice of ministers headed by Chief Minister.

Under the constitution and the rules framed minister who is in charge of a department is primarily responsible for the disposal of the business pertaining to that department, but the entire ministry is responsible for the advice to the minister. But the position held by the Secretary of a department is different.

Though the Chief Minister made the formal orders, in effect and substance, the enquiry was conducted and personal hearing was given by one of the parties to the dispute itself. So the argument of the counsel that the Chief Minister is part of the department constituted as a statutory Undertaking under the Act cannot be accepted.

3. Whether the Chief Minister by his acts and speeches disqualified himself to act for the State Government in deciding the dispute?

It must be held that it has not been established by the appellants that the Chief Minister made the speeches indicating his closed mind on the subject of nationalization of bus transport in Krishna District. If these newspaper cuttings are excluded from evidence, the factual basis for the appellants’ argument disappears. We, therefore, hold that the Chief Minister was not disqualified to hear the objections against the scheme of nationalization.

Ratio:

In this case, the Supreme Court has clearly voted against the separation between the hearing and the decisional functions. Said the court, “if one person hears and another decides, the personal hearing becomes an empty formality ((I.P. Massey, administrative law (6th ed. 2003).)).” The Supreme Court decision emphasized on the fact that one who decides must hear.

Minority view

Sinha, CJ in his dissenting opinion, gave several reasons for his view that the function discharged by the government was administrative. First, no objective tests have been laid down for the consideration of the government, such terms as efficient, adequate, public interest, were matters of policy and opinion. Second, the idea of hearing prescribed by the statute was not to invite claims by the individual operators, but to collect information having a bearing on soundness and feasibility of the scheme. Third, the government was as much interested in the scheme as the undertaking, which was the creature and the limb of the government, and, therefore, there was no question of the government functioning as an adjudicating authority between the two rival claimants ((MP Jain & SN Jain, principles of administrative law(5th ed. 2007).)).

Criticism

It has been criticized primarily on the ground of impracticability in the modern administrative process.

A scholar pointed out that it is unrealistic to expect the CM to give the time required for a public hearing, which could adequately explore all facts and policy issues involved and permit all interested parties to appear. On the other hand, if the entire delegation to subordinate official conducting the hearing is given, the importance of the ultimate question may be highly undesirable, perhaps even unthinkable. Thus a government is faced with a dilemma whether the official with final deciding authority must himself conduct the hearing or unduly delegate a power of decision, which should be retained by the Chief Minister, or of seriously interfering with other duties of the Chief Minister.

The Gullapalli decision is not in concurrence with the governmental practice, and is also difficult to follow. The judicial view on this point remains ambiguous.

Subsequent cases in which exception was made to official bias by applying Doctrine of Necessity

In this case SC has made an exception to official bias. Here SC has made an exception by impliedly using doctrine of necessity. It has got expressed approval in subsequent cases from the courts, namely Ashok Kumar Yadav v State of Haryana (([1985] 4 SCC 417)), Tata Cellular v. UOI (([1994] 6 SCC 651)), and Election Commission of India v Dr. Subramanian Swamy (([1996] 4 SCC 104)).

In the case of Ashok Kumar Yadav v. State of Haryana, the State Public Service Commission did the decision about the selection process. This was challenged as according to Sec 3 (11) member of PSC by constitutional requirement has to mandatorily sit in the election process. The issue in this case was if the relative of member comes then is the selection process vitiated? SC held that even though bias is attracted in this case, but if the member doesn’t sit in the selection procedure then it would be unconstitutional as it will be in violation of Section 3(11) of the Act. SC by applying doctrine of necessity expressly declared that it is an exception to official bias. Reasonable suspicion of bias can be excluded if no substitution is possible.

In the case of Tata Cellular v. UOI, there was a tender for giving license for operating cellular mobile in 4 metros. The acceptance of tender made by evaluation committee has been challenged on the ground of bias. Director General of Telecommunication is the technical member of evaluation committee. His presence is required in evaluation of tender. His son who is working in one of the company has applied for license. So the committee has issued license to the son, the bias is thereby alleged. SC held that there is a remote bias. Bias in this case is not accepted. Here doctrine of necessity is applied, as no substitution is possible.

However it got a narrow view in the case of Election Commission of India v. Dr. Subramaniam Swamy. In this case it was held that mere necessity is not sufficient, but absolute necessity is required. Jayalalita was convicted in relation to land cases. Subramaniam who was a political opponent wrote a letter to Governor seeking for disqualification of Jaylalita by virtue of Article 191. Governor can act only on the basis of recommendation of Election Commission, so he referred the matter to EC. Jaylalita moved to HC, which held that EC can’t decide the matter, as there is personal bias because of friendship between EC & Subramaniam. Appeal was filed to Division Bench of HC. It held that single bench has erred in its decision. Appeal was filed to SC. SC agreed that there is chance of personal bias, but held that EC being 3 member body, constituting of CEC and 2 other members. So even if CEC is not present the other 2 members can decide the matter. But if there is division of opinion between the two members then only CEC will be called to decide the matter, only in case of absolute necessity.

Conclusion

This case is noteworthy as the Supreme Court made an exception by rejecting official bias and impliedly applied the doctrine of necessity. The doctrine of necessity got express approval in the case Askoh Kumar Yadav v State of Haryana, 1987. Further, the doctrine of absolute necessity was applied in the case Election Commission of India v.  Dr. Subramaniam Swamy, 1996.

Since Gullapalli I, the SC has continuously diluted the stance, which it has adopted in this case. For instance in Gullapalli II the court didn’t object to the procedure that the minister heard the objections in place of secretary, as he was not a part and parcel of the department, which is concerned in making the policy. According to the court, secretary is a part of department while the minister is only primarily responsible for the disposal of the business pertaining to that department. In subsequent cases the Supreme Court appears to have further relaxed its attitude on matters regarding disqualification, which arises from policy bias, and the court has shown a further liberal approach in this respect from the departmental point of view.

Professional Educational Institutions: A Profit Making Industry

Author: VS Warrier

For over a decade, there has been growing concern that opportunities for higher education to the weaker/minority sections of the society are rapidly getting eroded. The persistence of inequities is manifest in local and regional disparities of access, gender discrimination, non-affordable fee structures, confusing eligibility requirements, bewildering admission procedures, reduced government support, unabashed commercial practices, and lack of socially sensitive government policies on higher education. More opportunities are available to the urban population and those with higher economic status. Continue reading “Professional Educational Institutions: A Profit Making Industry”