Sunday, June 5, 2011

“Duly Authorized under the Law”- Another look

“Duly Authorized under the law”- this phrase in Section 107A(b) of the Patents Act, 1970 has been the topic of quite a few of my posts on this blog and elsewhere. I was unable to find another legislation which uses this exact phrase, but I did find something in the mother of all Indian laws- the Constitution- which uses a phrase that captures the spirit of “duly authorized under the law”, namely Article 265 of the Constitution.

Article 265 reads thus:

No tax shall be levied or collected except by authority of law

Thanks to Mihir Naniwadekar, whose mind I deeply respect, I bought one of the most venerated commentaries on the law of income tax written by the Late Shri Jamshedji Kanga and Late Shri Nani Palkhivala. In this commentary, in a short exposition on Article 265, it is stated that the import of the Article is that “not only the levy but also the collection of a tax must be under the authority of some law”.

“Law” apparently, has been interpreted to mean law enacted by a competent legislature, and cannot include an executive order, or a rule without express statutory authority, or a custom. This seems to have been the position taken by the Indian Supreme Court in Ghulam Hussain v. State of Maharashtra, Krishi Utpadan v. Shree Mahalaxmi and State of Kerala v. Joseph.

I am yet to give these judgments a proper reading, but if the authors of the commentary, whose legal acumen and sagacity needs no introduction, are to be assumed as being true to the legislative intent, I think the interpretation of “except by authority of law” may apply to “duly authorized under the law” too.

If this be so, it would be extremely far-fetched to suggest that Section 107A(b) speaks of a "soft" principle such as international exhaustion...

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