Recently the Madras
High Court held that Indian
lawyers can be patent agents under Indian Patents Act 1970 without
passing the patent agent exam. Previously a Division bench of
Delhi High Court in Ms.
Anvita Singh v Union of India, WP (C) No.4376/2011 discussed the
role and importance e of lawyers for the society and judicial system
of India. The Delhi High court also held that prescribing minimum
marks to be obtainable in viva was unconstitutional and violative of
Article 14 of the Indian Constitution.
The point is straight forward. The patent agent
examination is not free from controversies and High Courts are
declaring its aspects unconstitutional piece by piece. The present
writ was filed under Article 226 of the Constitution of India by
patent lawyer SP.Chockalingam.
The writ was seeking an order in the nature of Writ
of Declaration, to declare the amendment introduced to Section 126 of
the Patent Act, 1970 by Section 67 (a) of the Patents (Amendment)
Act, 2005 (Act 15 of 2005) as illegal, unconstitutional, ultra vires
and void.
It was contended by the petitioner that though
science is a vast subject, having various specialisation and
branches, such as Physics, Chemistry, Computer Science,
Biotechnology, Pharmaceutical Science, Animal Husbandry, Nursing
etc., any degree holder in Science, Engineering or Technology having
passed the qualifying examination prescribed and conducted by the
respondents for the purpose is eligible to register as patent agent.
Though there was no bar for an Advocate to register and function as
patent agent, as a matter of right, prior to the amendment, in view
of the impugned amendment, the said right is not available to any
Advocate at present, as the same was taken away against the
Constitutional mandate.
It was also alleged that the Patents Act and Rules
framed thereunder empowers the respondents, in prescribing the
syllabus, conducting exam, appointing patent agents and also power to
remove patent agents. The Court can take judicial notice that after
the impugned amendment, normally such patent agents may not be
practicing advocates before High Courts or Supreme Court, as the
amended Act has taken away the rights of Advocates, to register as
patent agents as a matter of right, that was available prior to the
amendment, under Section 126 (1) (c) (i) of the Act. Therefore, in
all practical purposes, after the amendment, the patent agents have
been made amenable to the respondents, since the term advocate has
been deleted from the section. It is further contended that if a
practicing lawyer is permitted to register as patent agent, as per
the Act, prior to the amendment, being a legal practitioner, he may
directly approach the High Court and the Supreme Court, in case an
order passed by an authority under the Patents Act is against law.
Hence, prior to the amendment, the authority was made more vigil in
following Rule of law and passing proper and appropriate orders,
regarding the duties and functions of patent agents. If all the
patent agents are selected only by the respondents, as per the
procedure prescribed by the respondents, leaving Advocates, there
would be no broad outlook in the functioning of patent agents, in
respect of preparation, drafting, filing and appearing before the
first respondent and make proper and broader interpretation of law,
relating to Patents Act. Therefore, preventing advocates, who are
more qualified in preparing documents, drafting, transact business
before the Controller and permitting only the degree holders in
science, engineering or technology, who passed the Departmental
examination conducted by the respondents, by way of the impugned
amendment, that would certainly narrow down the skill of patent
agents. It was also argued by the petitioner, party-in-person that
the impugned amendment violates Articles 14, 19 (1) (g) and 21 of the
Constitution and the amendment is also not beneficial to the interest
of the common people and the country.
It is an admitted fact that the respondents and
their officers are virtually passing orders and the patent agents are
not the deciding authorities in the matter relating to Patents Act.
Hence, it is the prerogative of the parties or clients to engage
their patent agents, prior to the amendment, either an advocate
functioning as patent agent or the other category of patent agent.
However, by amending Section 126 (1) (c) (i) of the Act, deleting the
term "Advocate, within the meaning of Advocates Act, 1961",
the respondents have made it mandatory on the part of the parties or
litigants not to engage advocates as patent agents, which is beyond
the purview of the respondents and also against Section 30 of the
Advocates Act, relating to legal profession.
The petitioner submitted that the respondents, by
making the impugned amendment cannot direct any party or litigant, in
the matter relating to Patents Act, not to engage advocate, as patent
agent, as the same would not come under the purview or authority of
the respondents. It is the right and privilege of any party or
litigant to engage a professionally qualified person to defend his
case.
It was also contended that science is like an ocean.
A Science degree may be relating to physics, chemistry, zoology,
botany, statistics, Biotechnology, Bio-chemistry, veterinary science,
nursing etc. Similarly, engineering or technology is also a vast
subject. Hence, it cannot be presumed that a B.Sc., Graduate in
statistics, Zoology or Nursing shall be well versed in cases relating
to Engineering and Technology under the Patents Act. Similarly, it
cannot be decided that a degree holder in physics, chemistry,
engineering or technology could be an expert in forensic science,
biology or zoology. Merely by prescribing qualification, as degree
holder in science, engineering or technology and passing a
Departmental Examination on Patents Act and drafting, the respondents
cannot monopolise such category of persons and say that Advocates are
not competent to be patent agents and similarly the right that was
available to advocates under Section 126 (1) (c) (i) of the Act,
could not be taken away against the Constitutional safeguards, by way
of the impugned amendment. It is also brought to the notice of this
Court that advocates having basic degree in Arts or Commerce are not
even eligible to appear for the Examination conducted by the
respondents, on the ground that they are not degree holders of
Science, Engineering or Technology. Similarly, advocate, who had
already registered as patent agents, prior to the amendment are
eligible, however the other Advocates, who are yet to be registered
as patent agents are not permitted, which is also a discrimination
and anomaly in taking such a stand, there is no 'rationalia'
available to support the case of the respondents, to justify the
impugned amendment.
The Court observed that the view of eminent Jurist
and great academicians is that "law is a social science"
and a practicing lawyer is a social engineer. When such is the view
of Courts and eminent Jurists, the respondents are not entitled to
take a decision mechanically, that law is not a science and that
graduates in science, engineering or technology, after passing a
Departmental Examination in Patents Act and drafting, conducted by
the respondents, they will be better qualified persons than any
practicing advocate.
The Court held that B.L., or LL.B., awarded by any
recognised university is a degree of social science in law and a
practicing lawyer is a social engineer. It is the prerogative of the
university to decide the nomenclature of a degree, based on which,
the respondents cannot hold that law degree is not a degree in
science.
It was also contended that it is an undisputed fact
that as per Article 19 (1) (g) of the Constitution, the petitioner
being a citizen of India, has the right to practice or carry on his
occupation or his profession as Advocate, which cannot be curtailed
by the respondent, by any class legislation or unreasonable
restriction, though reasonable restriction could be imposed by state
or authority, on the exercise of the said right. The work or
professional duty of patent agent, as specified under Section 127 of
the Patents Act is only a part of the profession of any advocate,
hence, the respondents cannot justify the impugned amendment as a
reasonable restriction to Article 19 (1) (g) of the Constitution and
also not contravening Section 30 of the Advocates Act.
The Court held that it cannot be disputed that a
better qualified person for a particular task may constitute a
reasonable class than less qualified persons. In the instant case,
the respondents cannot say that degree holders in Science,
Engineering or Technology, after passing the law examination in
patent law and drafting conducted by the respondents would be more
qualified than advocates, for deleting sub-section (i) of Section 126
(1) (c) of the Act.
The Court held that it cannot be disputed that a
recognised degree, either B.L., or LL.B., which is the required
educational to be enrolled as an advocate, is certainly a better
qualification than the examination, conducted by the respondents in
Patents Act and drafting to register any one as patent agent.
Further, there is no satisfactory reason on the side
of the respondents as to why the term "Advocate, within the
meaning of Advocates Act, 1961 available under Section 126 (1) (c)
(i) of the Act was deleted by the impugned amendment in an
unjustifiable manner.
The court held that it is a well settled proposition
of law that reasonable classification cannot be construed as
violation of Article 14, since equality as contemplated under Article
14, refers to equality among equals or among equally placed persons.
However, a better qualified person cannot be rejected by any
authority on the pretext of reasonable classification. A class
legislation is different from reasonable classification. A class
legislation cannot be a defence under Article 14, though reasonable
classification is within the purview of Article 14. The term
reasonable classification itself reveals the reasonableness or
justifiable nature of the classification, otherwise, the same would
be a class legislation, which is prohibited under Article 14. In that
context, leaving advocates, better qualified persons, the respondents
cannot permit lesser qualified persons as a reasonable class, to
practice law in respect of drafting, filing and appearing before the
first respondent in the name of patent agent, as per Sections 126 and
127 of the Patents Act.
The court held that preventing advocates, better
qualified persons and retaining less qualified persons as patent
agents, on the basis of the examination conducted by the respondents
would not be justified under the pretext of reasonable
classification, hence, the impugned amendment is violative of Article
14 of the Constitution, as it is an unreasonable class-legislation.
Learned Senior Standing Counsel appearing for the
respondents drew the attention if this Court to the procedure being
followed by the Supreme Court regarding “counsel on record” as a
separate class for filing of cases in the Apex Court. The court held
that the said argument advanced by the standing counsel for the
respondents has no merit. In interpreting law, the respondents can no
way be compared with the Supreme Court, in view of Article 141 of the
Constitution, since an order or Judgment rendered by the Hon'ble
Supreme Court is the law declared by the Supreme Court and the same
is binding on all courts and authorities in the territory of India
and further, among the advocates, by a competitive examination, the
counsel on record are selected by the Supreme Court.
Therefore, the advocates on record are selected by
way of examination conducted among advocates, hence, the same would
create reasonable classification among advocates.
So far as the impugned amendment, pertaining to
Patent Act is concerned, it has deleted the advocates, a batter
qualified law knowing persons, merely by conducting some departmental
examination in Patents Act, Patent Rules and drafting. The
respondents selecting certain group of persons to register as patent
agents, deleting advocates, more qualified persons, would be
unreasonable and against the larger interest of the general public.
The court also observed that it can also take
judicial notice that if any lawyer is permitted to register as patent
agent, he may directly challenge any order passed by the respondents
or any other officers subordinate to the respondents, in case the
order is contrary to law, however, persons selected by the
respondents, on the syllabus prescribed and the examination conducted
by the respondents and also appointed by them, the respondents would
have professional control over the said patent agents and normally
they would be amenable to the authorities under the Patents Act and
that would not beneficial to the larger interest of the pubic and
that may likely to increase corruption.
The learned Judge observed “I am of the considered
view that deleting sub-clause (i) to section 126 (1) (c) of Patents
Act, by way of the impugned amendment, whereby preventing advocates
from becoming patent agents, would be against the mandate of Article
14, on the ground that the same is against equality before law and
equal protection of law, as unreasonable class-legislation”.
The Hon'ble Supreme Court in Dharam Dutt vs. Union
of India, has held that fundamental rights guaranteed under Article
19 (1) (g) of the Constitution cannot be taken away by legislation,
though the said right is subject to any reasonable restriction.
Preventing advocates, who are better qualified persons, ignoring the
ground reality that conducting law examination in Patents Act and
drafting by the respondents would not make the other group of patent
agents as better qualified persons than advocates to register
themselves as patent agents. The said amendment would create only a
monopoly of certain group of persons, who are amenable to the
authorities in the name of patent agents under the Act.
The Court also held that it is the prerogative of
the parties or litigants in the matter relating to Patents Act in
respect of engaging patent agents. Prior to the amendment, either an
advocate registered as patent agent or other category of patent
agents, registered themselves, based on the examination conducted by
the respondents as their patent agents. However, deleting the term
"Advocate" by way of the impugned amendment to Section 126
of the Act, the parties or litigants should necessarily engage their
patent agent only in the said second category and not the advocate,
since an advocate cannot register as patent agent, after the
amendment, as a matter of right.
As a matter of fact, prior to the impugned
amendment, the parties / litigants were at liberty to engage any
advocate, who had registered as patent agents, in respect of
drafting, preparing, filing and appearing before the authorities. It
is the right or privilege of the litigants or parties to engage any
patent agent, either an advocate, who has registered himself as
patent agent or the other category, by way of amendment, the
respondents cannot create a monopoly against the Advocates Act.
It cannot be disputed that in respect of legal
practice, the competent supervising machinery or authority is only
the Bar Council and as per Section 30 of Advocates Act, an advocate
is entitled to appear before any Court, including the Supreme Court,
Tribunals and other authorities, such right of an advocate cannot be
tampered with by the respondents, in the name of patent agent.
Advocates, being law graduates doing part of their work in respect of
drafting, preparing documents, filing and appearing before the
authorities, apart from arguing cases before Courts are comparatively
better qualified persons than the other category of patent agents.
Hence, by way of the impugned amendment, the respondents cannot
delete the term Advocate and make restrictions to the advocates to
register their name as patent agents. There is no acceptable reason
assigned by the respondents for deleting the word, Advocate, within
the meaning of Advocates Act, 1961" by way of the impugned
amendment. The impugned amendment is not based on any reasonable
restriction but only an unreasonable restriction, contravenes Article
19 (1) (g) of the Constitution, hence, in the
light of various decisions rendered by the Hon'ble Supreme Court, it
has to be held that the impugned amendment is violative of Article 19
(1) (g) of the Constitution. The learned Judge also observed “I am
of the considered view that the impugned amendment, curtailing the
rights of the petitioner and the other advocates is against the
mandate of Article 21 of the Constitution, in view of the
class-legislation and the unreasonable restriction made, by way of
amendment in the Patents Act”.
The other limb of argument advanced by
Mr.S.Udayakumar, learned Standing Counsel appearing for the
respondents is that India is a party to various international
treaties, hence, it necessitated the respondents to make the impugned
amendment, whereby the term advocate, within the meaning of Advocates
Act, 1961, under Section 126 (1) (c) (i) of the Act was deleted. The
aforesaid contention of the respondents was not supported by any
material and further, the said argument cannot be accepted, on the
ground that the sovereignty and the constitutional supremacy cannot
be diluted by raising a plea of International contracts with other
countries. Constitution is the supreme law of the land and
fundamental rights have utmost importance and such rights were not
conferred by Parliament or the Judiciary or even the Constitution.
As per the preamble of the Constitution, it has been made clear
that the people of India, while resolving to constitute India, a
sovereign, secular, democratic, republic, have retained certain
unalienable basic rights, which are fundamental to any citizen, in a
civilized country and the Judiciary is the custodian and watchdog of
such fundamental rights, retained by the people. Therefore, the
respondents are not entitled to enter into any treaty or contract
with any other country, violating such fundamental rights. Similarly,
India is a sovereign country not amenable to any outside authority,
hence, even by way of international treaty or conventions,
constitutional mandates cannot be taken away, as the same would be
against the sovereignty of our country. In the aforesaid
circumstances, without any materials, the respondents cannot advance
their plea that the impugned amendment was made, in view of
international treaties and convention, whereby deleted the term
advocate, within the meaning of Advocates Act, 1961, under sub-clause
(i) of section 126 (1) (c) of the Patents Act, as the same would
create monopoly to certain group of persons, selected by them.
The learned Judge held that the impugned amendment
is against Articles 14, 19 (1) (g) and 21 of the Constitution and
also against public interest, accordingly, the same is liable to be
struck down, as unconstitutional. However, the relief sought for in
the writ petition is to declare that the amendment introduced to
Section 126 of the Patents Act, 1970, by Section 67 (a) of the
Patents (Amendment) Act, 2005 (Act 15 of 2005) as illegal,
unconstitutional, ultra vires and void.
The Court declared that the impugned amendment
introduced to Section 126 of the Patents Act 1970, by Section 67 (a)
of the Patents (Amendment) Act, 2005 (Act 15 of 2005) as illegal,
unconstitutional, ultra vires, void and unenforceable.
