21 Mar 2011

Local Working Requirement of a Patent under the Indian Patent Act, 1970

In this post we are bringing an expert article relating to Intellectual Property Laws on the topic 'Local Working Requirement of a Patent under the Indian Patent Act, 1970' which has been authored by a close friend and patron of this blog, Pavit Singh Katoch. Pavit holds a Masters Degree in Law with specialization in Intellectual Property Law from Queen Mary (University of London) and is currently associated with M/s Vaish Associates, Delhi. The views are personal. He can be contacted at affable [dot] sonu [at] gmail [dot] com)



The intellectual property system is based on the utilitarian principle that it promotes the progress of science and useful arts. Patent is the strongest right in the intellectual property system as it gives an exclusive right to make, sell or use the subject matter of the Patent through its term of protection. Patent means open and is derived from the term “Letters Patent”(Litterae patentes in Latin), which simply means open letters. These were the official documents which granted certain privileges, rights, ranks or titles to the holder of the document. Patents were originally granted to promote transfer of technology, especially the domestic application of foreign technologies and dissemination of new technologies in the country granting patent. Local Working requirement and Compulsory licenses enable the Countries granting patent to force foreign patentees to transfer technology in these countries.

The actual growth of science and technology in a country depends upon the working of the patents rather than on the number of patents granted in such a country. This article deals with the issue of whether the importation of patented product would satisfy the local working requirement, especially in light of TRIPS, Paris Convention and (Indian) Patent Act, 1970. This article also seeks to highlight features of India’s legal requirements with regard to the local working of patents, particularly in the context of notification dated December 24, 2009, issued by the Controller General of Patents, Designs and Trademarks of India wherein it is mandatory for all the Patentees or licensees of a granted Patent to submit the information (as required under Form 27), regarding local working of the patent in India. The notification dated December 24, 2009 can be accessed here.

Definition of Local Requirement

“Local working” is also known as commercial working of patent in a country. It refers to the condition imposed on patentees or licensees that the patented product or process must be used or produced in the patent granting country. This condition has the effect of forcing foreign patentees to situate production facilities within the patent granting country.

Trade-Related Aspects of Intellectual Property Rights

Article 27 (1) of the TRIPS states that the patents shall be available and patent rights enjoyable without any discrimination as to the place of invention, the field of technology and whether products are imported or locally produced. It is argued that Article 27 (1) of the TRIPS precludes the member countries from making any laws mandating the local working of the patents. However, I am of the opinion that the Article 27 (1) cannot be interpreted to mean that working requirements can be fully satisfied by importation alone.

It is important to read Article 27 (1) of the TRIPS with Articles 2, 7, 8 and 30 of the TRIPS to understand the full purport of the TRIPS agreement. Article 7 of the TRIPS sets out the objectives of the TRIPS agreement, stating that the protection and enforcement of intellectual property rights should result in the promotion of technological innovation and technology transfer. It further states that such technology transfer and dissemination should be for the mutual advantage of producers and users in a manner beneficial to their social and economic welfare, and should create a balance of rights and obligations. It is clear that Article 7 recognises both the private interest of the Patent holder and public interest in transfer or dissemination of technology and creation of balance of rights and obligations.

Article 8 (1) of the TRIPS allow member countries to adopt measures necessary to promote the public interest in sectors of vital importance to their socio-economic and technological development. Similarly, Article 8 (2) of the TRIPS provides member countries to adopt measures that prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology. TRIPS also provides for exceptions to exclusive rights under Article 30 of the TRIPS Agreement, that allows member states to provide limited exceptions to exclusive rights conferred by patents. However, such exceptions should not unreasonably conflict with a normal exploitation of the patent and should not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.

From the above, it is clear that Article 7, 8 and 30 of the TRIPS restrict the operation of Article 27 (1) of the TRIPS. However, in order to clear any ambiguity towards the interpretation of Article 27 (1) of the TRIPS, Article 2 of the TRIPS becomes imperative as it makes Paris convention as part of TRIPS and provides for compliance of Paris Convention with respect to all member states. It is important that interpretations of articles in the Paris Convention should be used to clarify any ambiguities that exist in TRIPS articles regarding similar subject matter.

Paris Convention for the Protection of Industrial Property, 1883

The Paris Convention, signed in Paris, France, on March 20, 1883, was one of the first intellectual property treaties. Article 5(A) of the Paris Convention deals with the working of patent and grant of compulsory licenses. It provides that importation of the patented articles should not result in forfeiture of the patent. This provision is similar to Article 27 (1) of the TRIPS agreement providing for import of patented products.

Article 5(A) (2) provides that each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work. Article 8 of the TRIPS also talks about the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

However, Article 5(A) further provides that the Convention Countries have the right to make laws providing for the grant of compulsory licenses in case of non-working of a patent. It is important to note that the Paris Convention clearly stipulates that a patent cannot be revoked unless the grant of compulsory licenses was not sufficient to work the patent, whereby making the grant of compulsory license as a precondition to the revocation of patent on grounds of non-working. Article 5(A) (3) of the Paris Convention also states that no proceedings for the forfeiture or revocation of a patent may be instituted before the expiration of two years from the grant of the first compulsory license.

Article 5(A) (4) of the Paris Convention states that a compulsory license may not be applied for on the ground of failure to work or insufficient working before the expiration of a period of 4 years from the date of filing of the patent application or 3 years from the date of the grant of the patent, whichever period expires last. It further provides that such an application shall be refused if the patentee justifies his inaction by legitimate reasons.

It is fair to conclude that the legislation requiring local working of patents would not be in contravention of TRIPS in light of articles 7, 8 and 30 and explicit reference of Paris Convention under Article 2 of TRIPS. However, this should not mean that working requirement can only be satisfied by local production only; the importing of the patented subject matter would have to be allowed.

Local working of patents under the Patent Act, 1970

Indian Patent Act, 1970 is TRIPS complaint and has used the flexibilities under the TRIPS agreement with respect to provisions relating to local working requirement of the Patent. The Act imposes an obligation on the patentee and patent licensees to disclose information relating to the working of their patents in India.

The Controller General of Patents has by notification dated December 24, 2009, made it mandatory for all the Patentees or Patent licensees to submit the information regarding commercial working of the patent in India. It is pertinent to note that this requirement of submission of information about commercial working of patent under Section 146 is not new, but is only insisted now by the Controller General of patents. This information was sought by the Controller General under Section 146 of Indian Patents Act. The information was to be submitted in the Indian Patent Office by 31st of March 2010. The Controller General of Patents has also warned that any failure to comply with the order will attract punishment.

Section 146(1) of Indian Patents Act provides that the Controller has the power to call for information or periodical statement as to the extent to which the patented invention has been commercially worked in India from a patentee or patent licensees. The patentee or the patent licensees is required to furnish such information to the Controller within two months from the date of such notice or such further period as the Controller may allow.

Further, Section 146(2) of the Act and Rule 131(2) of The Patent Rules 2003 provide that every patentee and patent licensee should furnish the details of working of the patented invention in Form 27 in respect of every calendar year within three months of the end of each year. A patentee or patent licensee can file such information for a given calendar year latest by 31 March of the following year. The following information is required to be submitted under Form-27:

Ø whether the invention has been worked;

Ø if not worked, the reasons for not working the invention, and the steps being taken to work the invention;

Ø if worked, quantum and value (in rupees) of the patented product:

· manufactured in India,

· imported from other countries, giving details of the countries concerned;

Ø licenses and sub-licenses granted during the year;

Ø Whether the public requirement has been met, at a reasonable price either partly, adequately or to the fullest extent.

It is interesting to note that even if the patent is commercially not worked in India, the patentee or patent licensee needs to explain the reasons for not working and steps being taken for working of the invention. Similarly, in case of importation of patented products, the country wise details should be given from where it is being imported.

The Patent Act has also provided for punitive actions for non compliance like not filling the form-27 or providing false information. Section 122 (1) of Indian Patents Act provides a fine of rupees ten lakh (Rupees one million), if any person refuses or fails to furnish the information under Form-27. Further, Section 122(2) has stricter provisions for false information. Section 122(2) provides that if any person furnishes information or statement which is false, and which he either knows or has reason to believe to be false or does not believe to be true, he shall be punishable with imprisonment which may extend to six months, or with fine, or with both.

The information sought under Section 146 is to keep the Controller General updated about the commercial status of a patent. Non-working of a patent is one of the core grounds for seeking the grant of a compulsory license under India's patent law. The availability of such data could potentially open up opportunities for interested parties that may seek the grant of compulsory licenses on account of non-working of patents, especially in sensitive areas like public health or national emergency. It also brings transparency in the working of patents in India.

Confidentiality of the information supplied to the patent office

Section 146(3) read with Rule 131(3) provide that the Controller may publish the information received by him under Form-27. This assumes significance as the information submitted is of the sensitive nature like the quantum and value of the patented product, country of import, number of licensees, etc. and it has been argued that such information should remain confidential. However, the Act does not provide the extent to which such information may be published.

Compulsory license and Revocation:

Compulsory licensing allows a government to license to a company, government agency or other party, the right to use a patent without the titleholder’s consent. A competent authority must grant the license to a designated person or company who is expected to compensate the titleholder by paying a determined remuneration. Different countries have adopted different standards from the grant of compulsory licenses. However, one of the most important uses of compulsory licenses is as a remedy for patent-holder abuses such as “non-working,” or “artificially created high prices” or “exclusive grant back”.

Section 84 (1) of the Patent Act, 1970 allows any interested person after expiry of 3 years from grant of patent, even though if he is a license under the patent, to make an application to the Controller for grant of compulsory license on patent on grounds, including “that the patented invention is not worked in the territory of India”. If the requirements specified under Section 84(1) were not fulfilled, the Controller may grant a compulsory license to any interested person for non-working of patent in India.

However, Section 84 (6) provides that the Controller shall take into account several factors like the nature of the invention, time elapsed, the measures taken by the patentee or patent licensee to use the invention, the ability and capacity of the applicant to work the invention to the public advantage, and the efforts made by the applicant in obtaining a voluntary license on reasonable terms from the patentee, while deciding such an application for compulsory license. While granting a compulsory license reasonable royalty is also paid to the patentee having regard to nature of Invention, its utility, expenses incurred in maintaining patent grant in India and other factors. However, in cases of national emergency, extreme urgency, public non-commercial use or anti-competitive practices, these should not be applicable.

Section 84 (1) of the Patent Act, 1970 enlists the various circumstances, which constitute "failure to meet the reasonable requirements’’, of public in respect of a patent:

(a) Failure to grant license or licenses on reasonable terms ,resulting in:

i. Prejudice to an existing trade or industry or its development, or to establishment of any new trade or industry in India, or to the trade or industry of any person or class of persons trading or manufacturing in India, or

ii. Demand for the patented article not being met adequately or reasonably, or

iii. Failure to supply to or develop an export market for the patented articles made in India, or

iv. Prejudice to the establishment or development of commercial activities in India;

(b) Prejudice to the establishment or development of trade or industry in India due to restrictive conditions imposed by the patentee in articles not protected by the patent;

(c) Restrictive covenants like ‘exclusive grant back’, ‘prevention to challenges of validity’ or ‘coercive package licensing’ in a license for patented invention;

(d) Non-working of the patent in India on a commercial scale;

(e) Commercial working of the patented invention in India is hindered or prevented by import of the patented articles by patentee or patent licensee or any other person with patentee’s consent.

The grant of Compulsory license is generally for the remaining term of patent unless a shorter period looks reasonable to the Controller.

Revocation of Patent

The Controller can make an order to revoke a patent for non-working or if the reasonable requirements of the public are not still met after the grant of compulsory license. According to section 85 of the Patents Act where, in respect of a patent, a compulsory license has been granted, the Central Government or any person interested may, after the expiration of two years from the date of the order granting the first compulsory license, apply to the Controller for an order revoking the patent on the ground that the patented invention has not been worked in the territory of India or that reasonable requirements of the public with respect to the patented invention has not been satisfied or that the patented invention is not available to the public at a reasonably affordable price. It is important to note that such an application for revocation of patent should be decided by the Controller within one year.

The term “Working” or “Local working” has not been defined under the Act. However, Section 83 (a), 83 (b) and Section 85 (7) (e) refer to working of patent in India, and help in the interpretation of the term “working” in India.

Section 83 provides the general principles which are applicable to the working of patented inventions in India. This provision is akin to Article 7 and 8 of the TRIPS agreement. Section 83 (a) states that the patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay. Further, Section 83 (b) clearly states that the patents are not granted merely to enable the patentees or patent licensees to enjoy the monopoly for importation of the patented article. Section 83 (c) and Section 83 (f) also talk about promotion of technology innovation, technology transfer and prevention of abuse of patent rights to unreasonably restrain international transfer of technology. It is interesting to note that Section 83 of the Act is merely a guiding principle and is not binding. However, this provision helps in interpretation of local working requirement under the Indian Patent Act.

On the other hand, Section 85 (7) (d) states that reasonable requirement of the public are deemed to have not been met when the patented invention is not worked in the territory of India on a commercial scale to an adequate extent to as is reasonably practicable. Further, Section 85 (7) (e) states that the reasonable requirement of the public are deemed to have not been met when the working of the patented invention in the territory of India on a commercial scale is being prevented or hindered by the importation from abroad of the patented article by the patentee or patent licensees. It is important to note that this provision does not bar importation of patented article as to constitute the working of patent in India. However, when such importation results in preventing or hindering the working of the product within India, it would be deemed that reasonable requirement of public is not met, which is a separate ground for grant of compulsory license.

It is interesting to note that the as per Para 18.2.6 (4) of Draft Manual of Patent Practice and Procedure, which is scheduled to be brought into force by the Indian Patent Office, an application for grant of compulsory license on ground of non-working will be assessed by reference to the facility available in India for working of such invention. It further states that the importing of patented invention is allowed. However, mere importation without exploring the possibility of manufacturing in India will be a factor in assessing such an application for grant of compulsory license.

In light of above discussion and Para 18.2.6 (4) of Draft Manual of Patent Practice and Procedure, it is safe to conclude that the importation of patented product would satisfy the local working requirement both under the TRIPS and (Indian) Patent Act, 1970. However, the patentee or patent licensee should first ensure that if such patented invention can be manufactured in India. It is only in exceptional cases, that the working is allowed through import and it is an exception and not a rule.

Indiscretions of youth condonable: Supreme Court

Dealing with an appeal of the Government against acquittal of a person sought to be convicted for having tendered false statements while applying for the post of Head Constable (Ministerial), the Supreme Court in a recent decision [Commissioner of Police v. Sandeep Kumar] took note of the age of the accused at the time of the commission of the alleged offence to hold that the said offence having been committed at the tender age of the accused, was condonable. The Court took note of the societal compassion given to the youth to hold that indiscretions of the youth were condonable. 

The Bench of Justice MARKANDEY KATJU and Justice GYAN SUDHA MISRA, on this aspect inter alia observed as under;
We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter.
When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. 
Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives. In this connection, we may refer to the character 'Jean Valjean' in Victor Hugo's novel 'Les Miserables', in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life.
The modern approach should be to reform a person instead of branding him as a criminal all his life. 
We may also here refer to the case of Welsh students mentioned by Lord Denning in his book 'Due Process of Law'. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. Then came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed :-
“I come now to Mr. Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the judge to show – and to show to all students everywhere – that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe.  
Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land – and I speak both for England and Wales – they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down. 
But now what is to be done? The law has been vindicated by the sentences which the judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards – of the poets and the singers – more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong – very wrong – in going to the extreme they did.
But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed.” [ Vide : Morris Vs. Crown Office, (1970) 2 Q.B. 114 ]
In our opinion, we should display the same wisdom as displayed by Lord Denning.
As already observed above, youth often commit indiscretions, which are often condoned. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified.
At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.

Mindless acquisition of land to be stopped: Supreme Court

Holding that the right to property of a person was a natural and legal right, and the Land Acquisition Act permitting the acquisition of land from the citizens was to be construed strictly. Noting that the "Courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State", the Supreme Court in a recent decision [Dev Sharan v. State of U.P.] has declared that hearing has to be granted to the person whose land is being acquired unless such emergent conditions exist that the grant of hearing would cripple the public interest being addressed. 

In concluding thus, the Supreme Court made interesting observations on the concept of land acquisition and the withering of rights over land of the citizens to conclude that a strict regime was required to be implemented before the citizens could be rendered landless. In this context, the Court expressed its opinion in the following terms;
15. Admittedly, the Land Acquisition Act, a pre-Constitutional legislation of colonial vintage is a drastic law, being expropriatory in nature as it confers on the State a power which affects person’s property right. Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the State, it has to be accepted that without right to some property, other rights become illusory. This Court is considering these questions, especially, in the context of some recent trends in land acquisition. This Court is of the opinion that the concept of public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare State. 
16. The concept of public purpose cannot remain static for all time to come. The concept, even though sought to be defined under Section 3(f) of the Act, is not capable of any precise definition. The said definition, having suffered several amendments, has assumed the character of an inclusive one. It must be accepted that in construing public purpose, a broad and overall view has to be taken and the focus must be on ensuring maximum benefit to the largest number of people. Any attempt by the State to acquire land by promoting a public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people defeats the very concept of public purpose. Even though the concept of public purpose was introduced by pre-Constitutional legislation, its application must be consistent with the constitutional ethos and especially the chapter under Fundamental Rights and also the Directive Principles.
17. In construing the concept of public purpose, the mandate of Article 13 of the Constitution that any pre-constitutional law cannot in any way take away or abridge rights conferred under Part–III must be kept in mind. By judicial interpretation the contents of these Part III rights are constantly expanded. The meaning of public purpose in acquisition of land must be judged on the touchstone of this expanded view of Part-III rights. The open-ended nature of our Constitution needs a harmonious reconciliation between various competing principles and the overhanging shadows of socio-economic reality in this country.
18. Therefore, the concept of public purpose on this broad horizon must also be read into the provisions of emergency power under Section 17 with the consequential dispensation of right of hearing under Section 5A of the said Act. The Courts must examine these questions very carefully when little Indians lose their small property in the name of mindless acquisition at the instance of the State. If public purpose can be satisfied by not rendering common man homeless and by exploring other avenues of acquisition, the Courts, before sanctioning an acquisition, must in exercise of its power of judicial review, focus its attention on the concept of social and economic justice . While examining these questions of public importance, the Courts, especially the Higher Courts, cannot afford to act as mere umpires. In this context we reiterate the principle laid down by this Court in Authorised Officer, Thanjavur and another vs. S. Naganatha Ayyar and others reported in (1979) 3 SCC 466, wherein this Court held:
“……It is true that Judges are constitutional invigilators and statutory interpreters; but they are also responsive and responsible to Part IV of the Constitution being one of the trinity of the nation’s appointed instrumentalities in the transformation of the socioeconomic order. The judiciary, in its sphere, shares the revolutionary purpose of the constitutional order, and when called upon to decode social legislation must be animated by a goal-oriented approach. This is part of the dynamics of statutory interpretation in the developing countries so that courts are not converted into rescue shelters for those who seek to defeat agrarian justice by cute transactions of many manifestations now so familiar in the country and illustrated by the several cases under appeal. This caveat has become necessary because the judiciary is not a mere umpire, as some assume, but an activist catalyst in the constitutional scheme.”
19. In other words public purpose must be viewed through the prism of Constitutional values as stated above. 
20. The aforesaid principles in our jurisprudence compel this Court to construe any expropriartory legislation like the Land Acquisition Act very strictly. 
21. The judicial pronouncements on this aspect are numerous, only a few of them may be noted here.
22. In DLF Qutab Enclave Complex Educational Charitable Trust vs. State of Haryana and Ors. – (2003) 5 SCC 622, this Court construed the statute on Town Planning Law and held ”Expropriatory statute, as is well known, must be strictly construed.” (See para 41 page 635).
23. The same principle has been reiterated subsequently by a three-Judge Bench of this Court in State of Maharashtra and Anr. vs. B.E. Billimoria and Ors. – (2003) 7 SCC 336 in the context of ceiling law. (See para 22 at page 347 of the report).
24. These principles again found support in the decision of this Court in Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke and Chemicals Ltd. and Ors. – (2007) 8 SCC 705, wherein this Court construed the status of a person’s right to property after deletion of Article 19(1)(f) from Part III. By referring to various international covenants, namely, the Declaration of Human and Civic Rights, this Court held that even though right to property has ceased to be a fundamental right but it would however be given an express recognition as a legal right and also as a human right.
25. While discussing the ambit and extent of property right, this Court reiterated that expropriatory legislation must be given strict construction. (See para 53 to 57 at pages 731 to 732 of the report).

12 Mar 2011

Single post cannot be reserved: Supreme Court

Holding that when a single post was in the offering reserving it for specified backward classes would amount to hundred percent reservation and thus contrary to the intent of the constitutional framers, the Supreme Court in a recent decision [State of U.P. v. Bharat Singh] dismissed the appeal filed by the Government of Uttar Pradesh challenging the order of the Allahabad High Court. The High Court had set to naught the attempts of the State Government to provide  reservation on the post of Principals in aided and affiliated Degree and Post-Graduate institutions.

The Court inter alia declared the legal position on this issue as under;
34. That brings us to the question whether similarity of the terms and conditions of the employees serving in the aided/affiliated colleges and the effect the payment of salary due to such teachers is reimbursed by the State Government would have the effect of creating a cadre of Principals. Our answer is in the negative. The fact that the State Government offers financial aid to the affiliated colleges in terms of payment of salary of those serving such institutions does not in our opinion have any relevance to the question whether the posts of Principals in different colleges under different managements constitute a cadre. Merely because the Government supports the institutions which are in all other respects autonomous in their functioning, and are managed by individual managements cannot by any stretch of reasoning be taken as a circumstance constituting the posts in such colleges into a single cadre. So also the fact that the terms and conditions of service of such teachers serving in different colleges including Principals are similar on account of such colleges being affiliated to the same university and being governed by the same set of Statutes, Rules and Regulations also does not have anything to do with the creation or the existence of a single cadre comprising such posts. There is no gainsaying that such common features do not in any way impinge upon the autonomous character of such institutions nor does payment of salaries and the similarity of conditions of service of the employees provide a test for holding that although serving in different institutions totally independent of each other the Principals appointed in such institution form a common cadre.
40. We may before referring to the decisions of this Court on the question whether a single post can be reserved, notice the decision of this Court in Balbir Kaur’s case (supra) relied upon by Mr. Patwalia. That was also a case from the State of U.P. It related to appointment of a Principal under the U.P. Secondary Education Services Commission and Selection Boards Act, 1982. One of the questions that fell for consideration was whether the post of Principal in institutions offering secondary education was amenable to reservation having regard to the Reservation Act of 1994 referred above. This Court answered the question in the negative and gave two reasons in support of that conclusion. Firstly, the Court found that Section 10 of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 expressly excluded the post of Principal from the purview of the Reservation Act of the year 1994. Secondly and more importantly the post of Principal in an educational institution being a single post in the cadre such a post was held not amenable to reservation for any such reservation would amount to making a 100% reservation which was found impermissible under Articles 15 and 16 of the Constitution. Relying upon the decision of this Court in Dr. Chakradhar Paswan v. State of Bihar & Ors. (1988) 2 SCC 214 and Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association & Ors. (1998) 4 SCC 1, this Court held that any reservation qua a single post cadre either directly or by the device of rotation of roster was not valid. The Court also held that since the Reservation Act, 1994 did not provide for clubbing of all the educational institutions in the State of U.P. for the purpose of reservation there is no question of clubbing the post of Principals in all the educational institutions for the purpose of applying the principles of reservation under the 1994 Act. The following passage is in this regard apposite:
“it was held that there cannot be any reservation in a single post cadre and the decisions to the contrary, upholding reservation in single post cadre either directly or by device of rotation of roster were not approved. Besides, as noted above, neither the principal Act, nor the Rules made thereunder or the 1994 Act provide for clubbing of all educational institutions in the State of U.P. for the purpose of reservation and, therefore, there is no question of clubbing the post of Principals in all the educational institutions for the purpose of applying the principle of reservation under the 1994 Act.”
45. The decision of this Court in Indra Sawhney and Ors. v. Union of India and Ors., 1992 Supp.(3) SCC 217, continues to be the locus classicus on the subject of reservation. This Court in that case held that reservation under Articles 14, 15 and 16 must be applied in a manner so as to strike a balance between opportunities for the reserved classes on the one hand and other members of the community on the other. Such reservation cannot exceed 50% in order to be constitutionally valid.
46. In Chakradhan Paswan’s case (supra) this Court relying upon the decision in Arati Ray Choudhury v. Union of India 1974 (1) SCC 87, M.R. Balaji v. State of Mysore AIR 1963 SC 649 and T. Devadasan v. Union of India AIR 1964 SC 179 held that separate posts in different institutions cannot be clubbed together for the purpose of reservation and that reservations may be made only where there are more than one posts. Reservation of only a single post in the cadre would amount to 100% reservation and thereby violate Articles 14(1) and 16(4) of the Constitution. In Bhide Girls Education Society v. Education Officer, Zila Parishad, Nagpur and Ors., 1993 Supp (3) SCC 527 this Court held that a single post of Headmistress of an institution could not be reserved as the same would amount to making a 100% reservation.
47. The controversy was authoritatively set at rest by the Constitution Bench decision of this Court in Post-graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association and Ors. (1998) 4 SCC 1 case (supra) where this Court overruled the decisions of this Court in Union of India and Anr. v. Madhav s/o Gajanan Chaubal and Anr. (1997) 2 SCC 332, Union of India v. Brij Lal Thakur (1997) 4 SCC 278 and State of Bihar v. Bageshwari Prasad 1995 Supp (1) SCC 432 and observed:
“34. In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework. The decisions of this Court to this effect over the decades have been consistent.
35. Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with the device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bounds to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society.”
48. In the light of the above decision, we have no hesitation in holding that the post of principals in each one of the aided/affiliated institution being a single post in the cadre is not amenable to any reservation. Question No.(ii) is accordingly answered in the affirmative. 

Judgment-writing cannot be outsourced: Supreme Court

Dismissing the challenge to the order of the High Court  of Jharkhand, the Supreme Court in a recent decision [Ajit Kumar v. State of Jharkhand] held that that the resolution passed by the judges of the High Court terminating the services of a lower-court judge was valid. The High Court has ordered so, having relied upon the report of an Inspecting judge who had concluded that "the appellant did not use to prepare judgments on his own, rather he used to get it prepared through some body else before delivering the judgments". The High Court had directed the termination without holding any "enquiry as it was felt that it was not practicable in the interest of the institution to hold an inquiry since it may lead to the question of validity of several judgments rendered by him."

Expressing its opinion on the issue in no uncertain terms, the Supreme Court declared that the decision of High Court could not be faulted with only on the ground that no inquiry was carried out. It summed up the legal position in the following terms;
11. In the case in hand, the officer concerned was working as sub-ordinate Judge and during the course of inspection by the Inspecting Judge it was found that he did not use to prepare judgments on his own, he used to get it prepared through some body else before delivering the judgments. Undisputedly, the inspecting Judge submitted his report to the Chief Justice of the High Court. The High Court considered the said report and thereafter was of the opinion that it is not possible to hold an enquiry in the case of the appellant and that holding of such enquiry should be dispensed with in view of the fact that if an enquiry is held the same may lead to the question of validity of several judgments rendered by the appellant. The aforesaid reason recorded by the High Court was a legal and valid ground for not holding an enquiry. There was therefore also no necessity of giving him any opportunity of hearing as the scope of holding an enquiry and giving him an opportunity of hearing was specifically dispensed with.
12. Consequently, the High Court recommended the removal of the appellant from service. Subsequent to that, the Governor decided to invoke the provisions of Article 311(2) (b) of the Constitution of India as holding of enquiry may lead to question of the validity of several judgments delivered by the appellant. The procedure and the pre-conditions laid down for invoking the extra-ordinary power under Article 311(2) (b) having been complied with and properly exercised within the parameters of the provisions, the order passed by the competent authority removing the appellant from the services cannot be held to be without jurisdiction and power. 
15. It cannot be disputed that the power under the aforesaid Articles is to be exercised by the Governor in consultation with the High Court. Under the scheme of the Indian Constitution the High Court is vested with the power to take decision for appointment of the sub-ordinate judiciary under Articles 234 to 236 of the Constitution. The High Court is also vested with the power to see that the high traditions and standards of the judiciary are maintained by the selection of proper persons to run the district judiciary. If a person is found not worthy to be a member of the judicial service or it is found that he has committed a misconduct he could be removed from the service by following the procedure laid. Power could also be exercised for such dismissal or removal by following the pre-conditions as laid down under Article 311(2) (b) of the Constitution of India. Even for imposing a punishment of dismissal or removal or reduction in rank, the High Court can hold disciplinary proceedings and recommend such punishments. The Governor, alone is competent to impose such punishment upon persons coming under Articles 233 - 235 read with Article 311(2) of the Constitution of India. Similarly, such a power could be exercised by the High Court to dispense with an enquiry for a reason to be recorded in writing and such dispensation of an enquiry for valid reasons when recommended to the Governor, it is within the competence of the Governor to issue such orders in terms of the recommendation of the High Court in exercise of power under Article 311(2) (b) of the Constitution of India.

6 Mar 2011

No conviction in absense of Counsel for accused: Supreme Court

Setting aside the order of the High Court, the Supreme Court in a recent decision [Md. Sukar Ali v. State of Assam] has declared that no trial of an accused can take place in the absense of a counsel for the accused. Holding that in such circumstances it was obligatory on the part of the Court to provide an amicus curie in the form of a lawyer practising in criminal law, the Supreme Court held that such right to have a lawyer was a fundamental one and deeply rooted in the constitutional ethos of the country.

The Court, on this aspect, made inter alia the following observations;
We have also heard Mr. Fali S. Nariman, learned senior counsel, who very kindly consented to assist us as Amicus Curiae in this case in which an important constitutional and legal question is involved.
That question is whether in a criminal case if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused, or the Court should appoint an amicus curiae to defend the accused ? In the present case, it appears that Criminal Appeal 137 of 2003 was decided by the Gauhati High Court on 01.06.2010 in the absence of the counsel for the appellant accused and the conviction was upheld.
We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights.
In our opinion, a criminal case should not be decided against the accused in the absence of a counsel. We are fortified in the view we are taking by a decision of the US Supreme Court in Powell Vs. Alabama, 287 US 45 (1932), in which it was observed :-
“What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense”. 
The above decision of the US Supreme Court was cited with approval by this Court in A.S. Mohammed Rafi Vs. State of Tamil Nadu & Ors., AIR 2011 Supreme Court 308, vide para 24.
A similar view which we are taking here was also taken by this Court in Man Singh & Anr. Vs. State of Madhya Pradesh (2008) 9 SCC 542, and in Bapu Limbaji Kamble Vs. State of Maharashtra, (2005) 11 SC 412. In this connection we may also refer to Articles 21 and 22(1) of the Constitution. Articles 21 and Articles 22(1) are as under:-
“Article 21. Protection of life and personal liberty. – No person shall be deprived of his life or personal liberty except according to procedure established by law”.
Article 22(1). Protection against arrest and detention in certain cases. – (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
In Maneka Gandhi vs. Union of India AIR 1978 SC 597, it has been held by a Constitution Bench of this Court that the procedure for depriving a person of his life or liberty should be fair, reasonable and just. We are of the opinion that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, in our opinion, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution.
The right to appear through counsel has existed in England for over three centuries. In ancient Rome there were great lawyers e,g, Cicero, Scaevola, Crassus, etc. who defended the accused. In fact the higher the human race has progressed in civilization, the clearer and stronger has that right appeared, and the more firmly has it been held and asserted. Even in the Nuremberg trials the Nazi war criminals, responsible for killing millions of persons, were yet provided counsel. Therefore when we say that the accused should be provided counsel we are not bringing into existence a new principle but simply recognizing what already existed and which civilized people have long enjoyed. 
Apart from the above, we agree with the eminent jurist Seervai who has said in his “Constitutional Law of India’, Third Edition, Vol. I, Pg. 857:-
“The right to be defended by  counsel does not appear to have been stressed, and was clearly not considered in any detail in Ajaib Singh’s case (1953) SCR 254. But the right of a person accused of an offence, or against whom any proceedings were taken under the Cr.P.C. is a valuable right which was recognized by Section 340 Cr.P.C. Article 22 (1) on its language makes that right a constitutional right, and unless there are compelling reasons, Article 22 (1) ought not to be cut down by judicial construction........ It is submitted that Article 22 (1) makes the statutory right under Section 340 Cr.P.C. a Constitutional right in respect of criminal or quasi-criminal proceedings.”
We are fully in agreement with Mr. Seervai regarding his above observations. The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long period under the formula ‘Na vakeel, na daleel, na appeal’ (No lawyer, no hearing, no appeal). Many of them were lawyers by profession, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22 (1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.
In this connection, we may also refer to the ringing speech of Rt. Hon. Srinivasa Sastri, speaking in the Imperial Legislative Council, at the introduction of the Rowlatt Bill, Feb 7, 1919 (the Rowlatt Act prohibited counsels to appear for the accused in cases under the Act):-
"When Government undertakes a repressive policy, the innocent are not safe. Men like me would not be considered innocent. The innocent then is he who forswears politics, who takes no part in the public movements of the times, who retires into his house, mumbles his prayers, pays his taxes, and salaams all the government officials all round. The man who interferes in politics, the man who goes about collecting money for any public purpose, the man who addresses a public meeting, then becomes a suspect. I am always on the borderland and I, therefore, for personal reasons, if for nothing else, undertake to say that the possession, in the hands of the Executive, of powers of this drastic nature will not hurt only the wicked. It will hurt the good as well as the bad, and there will be such a lowering of public spirit, there will be such a lowering of the political tone in the country, that all your talk of responsible government will be mere mockery...
"Much better that a few rascals should walk abroad than that the honest man should be obliged for fear of the law of the land to remain shut up in his house, to refrain from the activities which it is in his nature to indulge in, to abstain from all political and public work merely because there is a dreadful law in the land." 
In Gideon vs Wainwright, 372 US 335 (1963) Mr. Justice Hugo Black of the US Supreme Court delivering the unanimous judgment of the Court observed:-
“Lawyers in criminal courts are necessities, not luxuries”
In Brewer vs William, 430 US 387 (1977) Mr Justice Stewart delivering the opinion of the US Supreme Court observed;-
“The pressures on state executive and judicial officers charged with the administration of the criminal law are great. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all. ” 
For the reasons stated above, we allow this Appeal, set aside the impugned judgment of the High Court and remand the matter to the High Court for a fresh decision after hearing Mr. Sinha, the new learned counsel for the appellant in the High Court, or any other counsel which has been engaged by the appellant, or in the absence of these, an amicus curiae being a lawyer practising on the criminal side.
The case shall be heard by a Bench of Judges other than those who passed the impugned judgment. The Order dated 24.01.2011 passed by this Court granting bail to the appellant shall continue till the appeal is decided by the High Court. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him.

See Also

Payment of bills for water consumption cannot be denied: High Court

Holding that while "availability of the water is a primary requirement in any human habitation" and that "paucity of the water cannot be countenanced" the Delhi High Court in a recent decision [Rajinder Nagar Welfare Association v. Delhi Water Board] held that in circumstances "consumption of more water by the citizens on less payment" could be tolerated. Deciding in the context of challenge to water-bills in a public interest litigation, the High Court observed that it "is the duty of the collective to see that the economic growth of a country rises when the members of the society pay their charges and taxes and any kind of evasion or any subterfuge or any sort of refusal is not acceptable". 

Thus issuing directions to the local body to install correct water bill meters, the High Court inter alia observed as under;
1. Public Interest Litigation, in its denotative contour as well as connotative sweep eschews characteristics of an adversarial litigation and encompasses affirmative facets of public good, endeavours to ameliorate the conditions of the marginalized sections of the society and bestows beneficence through interpretative dynamics on those who deserve. Quite apart from the above, it throws laser beam on issues relating to good governance and attempts to guide the citizens' behaviour in certain fields on the substructure of good governance, economic purity, sustenance of environment and such other spectrums. It, in conceptual essentiality, has an obligation to avoid 'personal interest', 'publicity interest' and 'paise interest' like the plague. Sometimes necessity arises where the court comes across a controversy where it is compelled to remind the citizens their constitutional duty and the obligation because everyone has to bear in mind the age old saying „Right, to its last particle, is duty‟. The present prefatory note has become necessary as, we are disposed to think, citizens who are consumers cannot make their sense of duty an imaginary one totally ostracizing the idea that „grandest of all laws is the law of progressive development‟ and the same is not possible without responsible positive participation of the citizens of a civilized nation. The issue before us is whether consumers of water, supplied by the Delhi Jal Board can only complain that they have not been supplied measuring meters on the basis of which they have to pay the charges or they also have the duty to have the meters and pay for their actual accurate consumption, for “accuracy is the twin brother of honesty, inaccuracy, of dishonesty”.
2. In the present public litigation, the petitioner, namely, Rajinder Nagar Welfare Association(Regd.) through its General Secretary has made colossal grievance that the Delhi Jal Board (for short, „the Board‟) has not performed its statutory duty of installing water meters and taken a decision on 29.10.2009 and hence, a writ of certiorari should be issued for quashment of the said decision and further a writ of mandamus be issued commanding the Board to install the water meter of ISI/ISO standard to the respective water consumers forthwith within the National Capital Territory of Delhi and to stock water and avoid any shortage of water meters in future and further not to take any coercive action against the consumers.
5. The question that emanates for consideration is whether the Board is under obligation to install water meter or the citizens. That apart a larger question that emanates for consideration is whether the citizens because of the non-installation of water meters while knowing fully well about the more consumption should consume the same and not pay the charges as per actual consumption. At this juncture, we think it appropriate to refer to certain citations pertaining to the fundamental concept of public interest litigation and the role of the Court.
11. The enunciation of law in the aforesaid decisions clearly demonstrates that the Court has a dynamic role and it has the power to mould the relief regard being had that litigation is not adversial in nature. It is not a litigation in the traditional sense of the term and the reliefs can be shaped keeping in view the future. It should have a liberal reception at the judicial doorstep. The social and economic justice has to become a meaningful reality and cannot be in the realm of illusion. The Court has a sacrosanct duty to protect the rights of the weaker and marginalised sections. Sometimes it is regarded as a duty under Article 226 of the Court to see that the probity and morality in the governance of the State is maintained. Any kind of personal vengeance is not to be entertained and is to be thrown at the threshold. The terms "government" and "governance' are inter-twined. In Black's Law Dictionary, sixth edition, the term "government" has been defined. We may profitably reproduce the part which is relevant for the present purpose:
“The system of polity in a state; that form of fundamental rules and principles by which a nation of state is governed, or by which individual members of a body politic are to regulate their social actions. A constitution, either written or unwritten, by which the rights and duties of citizens and public officers are prescribed and defined, as a monarchical government, a republican government, etc. The sovereign or supreme power in a state or nation. The machinery by which the sovereign power in a state expresses its will and exercises its functions; or the framework of political institutions, departments, and offices, by means of which the executive, judicial, legislative, and administrative business of the state is carried on.” 
12. A good governance also requires peoples' participation, for a citizen cannot claim his right in a routine manner without thinking about his duty. One cannot be oblivious of the fact that democratic governance in its fundamental expanse has to include performance of democratic duties by a citizen. Governance neither etymologically nor in its completest canvas would only include government. A good democratic set up can only be built with excellence where the citizens realise their duty and act giving respect to the spirit of law. It needs no special emphasis to state that the citizens have the constitutional as well as statutory obligations.
20. Availability of the water is a primary requirement in any human habitation. The need of the same cannot be marginalized. Paucity of the water cannot be countenanced. Similarly consumption of more water by the citizens on less payment is also deplorable. It is the duty of the collective to see that the economic growth of a country rises when the members of the society pay their charges and taxes and any kind of evasion or any subterfuge or any sort of refusal is not acceptable. In this context, we may refer with profit to Article 51. The Article 51A(j) deals with fundamentals which reads as follows:
“(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.”
21. The term "achievement" has to be understood in a broader and larger context including achievement in the field of understanding of the morality of economic and political growth of a nation. The collective cannot only think of its fundamental rights totally brushing aside the conception of duty. A nation constantly rises to a higher level if the citizens act with responsibility as per the existing law. If the citizens take recourse to same maladroit efforts to have something without payment, it is the betrayal of the national value. On certain occasions, it has been noticed that when the State has given one line connection or one "batti" connection, the consumers have abused the same and put the institution to loss. Every institution has a collective character and the Board is no exception. Thus, the consumers are expected to cooperate with the Board and put the meters so that the appropriate charges are collected. 
22. In view of the aforesaid, we proceed to issue the following directions: 
(a) The Board shall first endeavour to install the meters and replace the defective meters. 
(b) In case the Board is not in a position to do so, it shall notify the brands and standards available in such shops so that citizens can buy the meter.
(c) The Board shall publish the same widely in the newspapers so that the consumers are made aware of the changed scenario. 
(d) If any consumer purchases meter from the notified shop, the Board shall not compel him to purchase the meter from the Board and the meter shall be installed by the Board. It shall be the duty of the Board to send a licensed plumber. 
(e) If the meter is installed, the Board shall do 100 per cent billing as per the meter reading.
(f) The installation fee and the maintenance of the meter shall be paid in accordance with the regulations framed under Section 17(2) of the Act.

5 Mar 2011

Sympathies cannot override Rule of law: Supreme Court

Holding that sympathies for a party cannot dictate the decision of a Court and rule of law does not permit emotional considerations to be accounted for, the Supreme Court in a recent decision [Sudhir Kumar Consul v. Allahabad Bank], despite having sympathetic considerations for the party, did not change its conclusion it had arrived on the appeal.

The Supreme Court inter alia observed as under;
21) We have sympathies for the appellant but, in a society governed by Rule of law, sympathies cannot override the Rules and Regulations. We may recall the observations made by this Court while considering the issue of compassionate appointment in public service. In Life Insurance Corporation of India v. Asha Ramachhandra Ambekar and Anr. (1994) 2 SCC 718, wherein the Court observed: “The High Courts and the Administrative Tribunals cannot confer benedictionimpelled by sympathetic consideration.... Yielding to instinct will tend to ignore the cold logic of law. It should be remembered that “law is the embodiment of all wisdom”. Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be.”