19th April 2021 – Editorials/Opinions Analyses

Contents

1. An obituary for the IP Appellate Board
2. ECI cannot be a super government

An obituary for the IP Appellate Board

Context:

• The government has issued an ordinance which does away with certain appellate tribunals and transfers their functions to other existing judicial bodies.
• The Intellectual Property Appellate Board (IPAB), India’s specialist tribunal for determining disputes relating to intellectual property (IP) rights, is one of the tribunals abolished by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021.
• Recently, the government also introduced a bill in the Lok Sabha to abolish some tribunals where the public at large is not litigant. However, since the bill could not get parliamentary nod, an ordinance was issued.

Relevance:

GS-II: Polity and Governance (Constitutional Provisions, Quasi-Judicial Bodies, Government Policies and Interventions)

Mains Questions:

Where does India stand on protection of Intellectual Property? The abolition of Intellectual Property Appellate Board (IPAB) signals a missed opportunity to develop the home-grown jurisprudence on patent laws. Discuss. (15 Marks)

Dimensions of the Article:

1. What are Intellectual property rights (IPR)?
2. India and IPR
3. National IPR Policy
4. About the IPAB
5. Troubled life of the IPAB
6. Trade-Related Aspects of the Intellectual Property Rights (TRIPS)
7. Conclusion: Missed opportunity

What are Intellectual property rights (IPR)?

• Intellectual property rights (IPR) are the rights given to persons over the creations of their minds: inventions, literary and artistic works, and symbols, names and images used in commerce. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
• These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.
• The importance of intellectual property was first recognized in the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Both treaties are administered by the World Intellectual Property Organization (WIPO).

Intellectual property rights are customarily divided into two main areas:

1. Copyright and rights related to copyright:
   • The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of 50 years after the death of the author.
2. Industrial property:
   • Industrial property can be divided into two main areas:
     1. Protection of distinctive signs: In particular trademarks and geographical indications.
        • Trademarks distinguish the goods or services of one undertaking from those of other undertakings.
        • Geographical Indications (GIs) identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin.
        • The protection of such distinctive signs aims to stimulate and ensure fair competition and to protect consumers, by enabling them to make informed choices between various goods and services.
        • The protection may last indefinitely, provided the sign in question continues to be distinctive.
     2. Industrial designs and trade secrets: Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets.

India and IPR

• India is a member of the World Trade Organisation and committed to the Agreement on Trade Related Aspects of Intellectual Property (TRIPS Agreement).
• India is also a member of World Intellectual Property Organization, a body responsible for the promotion of the protection of intellectual property rights throughout the world.
• India is also a member of the following important WIPO-administered International Treaties and Conventions relating to IPRs.

National IPR Policy

• The National Intellectual Property Rights (IPR) Policy 2016 was adopted in May 2016 as a vision document to guide future development of IPRs in the country.
• Its clarion call is “Creative India; Innovative India”.
• It encompasses and brings to a single platform all IPRs, taking into account all inter-linkages and thus aims to create and exploit synergies between all forms of intellectual property (IP), concerned statutes and agencies.
• It sets in place an institutional mechanism for implementation, monitoring and review. It aims to incorporate and adapt global best practices to the Indian scenario.
• Department of Industrial Policy & Promotion (DIPP), Ministry of Commerce, Government of India, has been appointed as the nodal department to coordinate, guide and oversee the implementation and future development of IPRs in India.

About the IPAB

• The Trade Marks Act, 1999(Act), provides for the establishment of an Appellate Board to be known as the Intellectual Property Appellate Board (IPAB).
• IPAB was constituted by a Gazette notification of the Ministry of Commerce and Industry to hear appeals against the decisions of the Registrar under the Trade Marks Act, 1999 and the Geographical Indications of Goods (Registration and Protection) Act, 1999. (Its jurisdiction was later extended to hear patent cases after the Patents (Amendment) Act of 2002.)

Significance of the IPAB

• The functioning of the IPAB is critical for the innovation ecosystem.
• Every patent granted by the Patent Office is a potential subject matter in appeal before the IPAB.
• An unjustified patent grant at the Patent Office, by error or oversight, can only be corrected in appeal.
• While we know the number of cases filed and disposed, we will never know the number of unjustified patents that went unquestioned for lack of an effective appellate mechanism.

Troubled life of the IPAB

• Ever since the Intellectual Property Appellate Board (IPAB) was established under the Trade Marks Act of 1999, it looked like an incomplete quick-fix for the problems in the innovation system.
• Historically, appeals from the Intellectual Property Office (IPO), rectification and revocation applications were heard by the various High Courts. However, the Patents (Amendment) Act of 2002 divested these powers from the High Courts and extended it to the IPAB.
• Since its inception, the IPAB has been involved in controversies and has been the subject matter of judicial review before the various High Courts.
• After remaining headless for almost two years, in 2018, the IPAB was given a chairperson and yet, there was a substantial delay in the start of hearing of patent cases due to a technical reason.
• One of the former chairpersons had publicly raised concerns regarding the judicial and institutional independence of the IPAB, and called for closing it.
• Not only was the IPAB understaffed, with its administrative staff often being on deputation, it was also underpowered, at times quite literally.
• The IPAB’s jurisdiction of cases was split between trademarks, patents, copyright, and geographical indication, where the predominant business pertained to trademarks. Thus, the workload of the IPAB was typically split between trademarks and patents with the former consuming much of the time.
• Not only did the IPAB juggle its time with the different forms of IP, but it also had sittings in five different cities, with just one chairperson who had to fly between them at times.

Trade-Related Aspects of the Intellectual Property Rights (TRIPS)

• The Trade-Related Aspects of the Intellectual Property Rights (TRIPS) is an international agreement on intellectual property rights.
• It lays down minimum standards for protection and enforcement of intellectual property rights in member countries which are required to promote effective and adequate protection of intellectual property rights with a view to reducing distortions and impediments to international trade.
• The obligations under the TRIPS Agreement relate to provision of minimum standard of protection within the member countries legal systems and practices.

The Agreement covers most forms of intellectual property including

1. patents,
2. copyright,
3. trademarks,
4. geographical indications,
5. industrial designs,
6. trade secrets, &
7. exclusionary rights over new plant varieties.

It came into force in 1995 & is binding on all members of the World Trade Organization (WTO).

The basic obligation in the area of patents is that, the invention in all branches of technology whether products or processes shall be patentable if they meet the three tests of being new involving an inventive step and being capable of industrial application.

Conclusion: Missed opportunity

The tenure of the IPAB will be remembered as a missed opportunity to develop the home-grown jurisprudence on patent law that is much lacking in India.

India stands as a shining example for what it has done legislatively in patent law offering the world a host of ‘TRIPS-compliant’ flexibilities in its statute- Example:

1. the retraction of product patents for pharmaceuticals and chemicals between 1970 and 2005, the anti-evergreening provisions; or
2. the robust compulsory licensing regime.

However, when it comes to developing a jurisprudence around these provisions it has failed. – Barring a few bright spots, there has been a reluctance to extend the flexibilities in the Patents Act through judicial interpretation that expands the law.

-Source: The Hindu

ECI cannot be a super government

Context:

Elections bring the Election Commission of India (ECI) into sharp focus as this constitutional body superintends, directs and controls the conduct of elections.

Relevance:

GS-II: Polity and Governance (Constitutional Provisions, Constitutional Bodies)

Mains Questions:

Is the Election Commission of India (ECI) free enough to play fair? To what extent does the Model Code of Conduct empower the ECI to enable fair elections? (15 marks)

Dimensions of the Article:

1. About Election Commission of India
2. Structure of the Election Commission
3. Recent Supreme Court Judgement on ECI
4. Model Code of Conduct
5. Transfer of officials
6. Where the Model code and Article 324 lacks?
7. Administrative moves of Governments before the Elections

About Election Commission of India

• The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India.
• The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country.
• Part XV of the Indian constitution deals with elections, and establishes a commission for these matters.
• The Election Commission was established in accordance with the Constitution on 25th January 1950.
• Article 324 to 329 of the constitution deals with powers, function, tenure, eligibility, etc., of the commission and the member.

Structure of the Election Commission

• Originally the commission had only one election commissioner but after the Election Commissioner Amendment Act 1989, it has been made a multi-member body.
• The commission consists of one Chief Election Commissioner and two Election Commissioners.
• The secretariat of the commission is located in New Delhi.
• At the state level election commission is helped by Chief Electoral Officer who is an IAS rank Officer.
• The President appoints Chief Election Commissioner and Election Commissioners.
• They have a fixed tenure of six years, or up to the age of 65 years, whichever is earlier.
• They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
• The Chief Election Commissioner can be removed from office only through a process of removal similar to that of a Supreme Court judge for by Parliament.

Recent Supreme Court Judgement on ECI

• The Supreme Court said that entrusting additional charge of State Election Commissioner to a government official resulted in mockery of the Constitution, and ordered the Goa government to appoint an independent election commissioner.
• The Bench held that people holding public office could not be appointed Election Commissioners and directed States to comply with the constitutional scheme of independent and fair functioning of election commissions. It said the independence of the panels could not be compromised.

Supreme Court on the Powers of the ECI

• The Supreme Court held in Mohinder Singh Gill vs Chief Election Commissioner (AIR 1978 SC 851) that Article 324 contains plenary powers to ensure free and fair elections and these are vested in the ECI which can take all necessary steps to achieve this constitutional object.
• All subsequent decisions of the Supreme Court reaffirmed the decision in the Mohinder Singh Gill case and thus the ECI was fortified by these court decisions in taking tough measures.

Model Code of Conduct

• The Model Code of Conduct (MCC) issued by the ECI is a set of guidelines meant for political parties, candidates and governments to adhere to during an election. This code is based on consensus among political parties.
• There is absolutely no doubt that elections need to be properly and effectively regulated. The Constitution has clothed the ECI with enough powers to do that. Thus, the code has been issued in exercise of its powers under Article 324.
• Besides the code, the ECI issues from time-to-time directions, instructions and clarifications on a host of issues which crop up in the course of an election.
• The model code is observed by all stakeholders for fear of action by the ECI.
• However, there exists a considerable amount of confusion about the extent and nature of the powers which are available to the ECI in enforcing the code as well as its other decisions in relation to an election.

Evolution of the MCC

• The origins of the MCC lie in the Assembly elections of Kerala in 1960, when the State administration prepared a ‘Code of Conduct’ for political actors.
• Subsequently, in the Lok Sabha elections in 1962, the ECI circulated the code to all recognised political parties and State governments and it was wholeheartedly followed.
• It was in 1991 after repeated flouting of the election norms and continued corruption, the EC decided to enforce the MCC more strictly.

Is the model code of conduct legal in nature?

• Since it is a code of conduct framed on the basis of a consensus among political parties, it has not been given any legal backing.
• Certain provisions of the MCC may be enforced through invoking corresponding provisions in other statutes such as the Indian Penal Code 1860, Code of Criminal Procedure 1973, and Representation of the People Act 1951.
• Although a committee of Parliament recommended that the code should be made a part of the Representation of the People Act 1951, the ECI did not agree to it on the ground that once it becomes a part of law, all matters connected with the enforcement of the code will be taken to court, which would delay elections.
• The position taken by the ECI is sound from a practical point of view. But then the question about the enforceability of the code remains unresolved.
• The main issue is that, when the code is legally not enforceable, how can the ECI resort to a punitive action such as withdrawal of recognition?

Transfer of officials

• One issue relates to the abrupt transfer of senior officials working under State governments by an order of the commission.
• The ECI apparently acts on such reports and orders the transfer on the assumption that the presence of those officials will adversely affect the free and fair election in that State. Transfer of an official is within the exclusive jurisdiction of the government.
• It is actually not clear whether the ECI can transfer a State government official in exercise of the general powers under Article 324 or under the model code.

Where the Model code and Article 324 lacks?

• The code does not say what the ECI can do; it contains only guidelines for the candidates, political parties and the governments.
• Further, Article 324 does not confer untrammelled powers on the ECI to do anything in connection with the elections.
• If transfer of officials is a power which the ECI can exercise without the concurrence of the State governments, the whole State administration could come to a grinding halt.
• The ECI may transfer even the Chief Secretary or the head of the police force in the State abruptly.
• In Mohinder Singh Gill’s case (supra), the Court had made it abundantly clear that the ECI can draw power from Article 324 only when no law exists which governs a particular matter. It means that the ECI is bound to act in accordance with the law in force.
• Transfer of officials, etc is governed by rules made under Article 309 of the Constitution which cannot be bypassed by the ECI under the purported exercise of power conferred by Article 324.
• Further, to assume that a police officer or a civil servant will be able to swing the election in favour of the ruling party is extremely unrealistic and naive. It reflects in a way the ECI’s lack of confidence in the efficacy of politicians’ campaigns.

Administrative moves of Governments before the Elections

• Another issue relates to the ECI’s intervention in the administrative decisions of a State government or even the union government.
• According to the model code, Ministers cannot announce any financial grants in any form, make any promise of construction of roads, provision of drinking water facilities, etc or make any ad hoc appointments in the government. departments or public undertakings.
• These are the core guidelines relating to the government. But in reality, no government is allowed by the ECI to take any action, administrative or otherwise, if the ECI believes that such actions or decisions will affect free and fair elections.
• The Supreme Court had in S. Subramaniam Balaji vs Govt. of T. Nadu & Ors (2013) held that the distribution of colour TVs, computers, cycles, goats, cows, etc, done or promised by the government is in the nature of welfare measures and is in accordance with the directive principles of state policy, and therefore it is permissible during an election.
• Representation of the People Act, 1951 says that declaration of a public policy or the exercise of a legal right will not be regarded as interfering with the free exercise of the electoral right.

-Source: The Hindu