Guest Post: A Constitutional Approach to Intellectual Property

I am delighted to bring this pithy thought-provoking post by a very close friend of mine and a brilliant mind, Divya Subramanian. Divya is currently an LL.M. candidate at Franklin Pierce Law Center, Concord. 

In this post, Divya ventures to fit in Intellectual property Rights within the proprietarial framework of the Indian Constitution. She cautions that her thoughts are testy and do not have the benefit of rigorous substantiation through case law.

That said, I personally feel she has pointed to some wonderful areas of potential research. Hopefully, we will build on her thoughts in the near future. Without much ado, here’s Divya’s post.

A Constitutional Approach to Intellectual Property- Divya Subramanian

A resident on my street, one  day walked up to my home at 10 p.m. (knowing that would be the only sane time to catch me, and of course distracting me from my favourite show on TV!) with some   papers in her hand.  She showed herself in and asked me if I could help her out.

I took the paper in hand, and alas it was a Sale deed for a house down south (in India). I politely asked her, as to how I could help her.

She said.. ”You deal in property matters right??” And I quipped…“Aunty…Intellectual Property!!!” The conversation didn’t last long after, but did leave a few lingering thoughts...

I wouldn’t be surprised if many of you have had similar encounters. It is true, a large section of Indians are mistaken on this count, and I believe that they are not to be blamed for it. The Indian Intellectual Property space has gained prominence only over the last 5-10 years, which is not long enough for a country like ours where downloading a song is perfectly normal for most.

My short stint at a place with starkly different cultural differences (including IP related culture), namely the US, makes me wonder, is the Indian Constitutional framework the one to be looked at in order to bring  a sea-change? The constitution for sure recognizes the “right to property” but does it act as the Kelsenian grundnorm, pertinently with respect to Intellectual Property??? I believe only tangentially, and not expressly.

A part of me, strongly sees the need to recognize Intellectual Property as property under the Indian Constitution. One of the driving forces behind such a belief is the way I read Section 48 of the Patents Act, 1970. 

To me, the provision seems to be imposing an absolute duty (as envisioned by Austin) upon the Rest of the World to not interfere with the right of the patentee/licensee.  Section 48, is sure subject to the exceptions under Section 47 as also the experimental use exception. The nature of this seeming ‘absolute duty’, to me, is reminiscent of the rationale behind Directive Principles of State Policy enshrined in our constitution. 

Another attributing factor is the treatment of Right to Property over time by the Indian Constitution. Its de-recognition as a fundamental right under Art.19 and inclusion in Art 300A clearly highlights the shift in thought- from a fundamental right, to a right which could have a constitutional remedy in case of a State interference, not interference by private parties. 

The fact that the government via legislations, has reserved certain exceptions/leeway (compulsory licensing in patents for instance) to itself, is reflective of its recognition of Intellectual Property as a form of pure property. However, on the flip side, would express Constitutional inclusion of intellectual property lead to a battery of writ petitions being filed, is a question I fail to answer. 

When this comes across, I often feel the way our Constitution is worded is fine, allowing room for liberal interpretation where necessitated.  But on the other hand, to my eyes Constitutional recognition of IP would also lead to greater respect for IP rights and right holders.

While the Constitution seems to have been the driving force behind many legislative amendments, perhaps including the coparcenary movement, my stronger leaning is to the view that recognition would only aid the IP awareness and enforcement movement in our country. 

A country where this has worked rather well, is the United States, where copyrights and patents are expressly recognized under the constitution. The reason for this comparison also arises from the common historical influences, however, treatment and exposure to the same, albeit incomparable.

While Art.1 Section 8 Clause 8 of the US constitution need not be the absolute guiding light, the fact that it indeed proves effective in IP enforcement cannot be ignored. The jurisprudence behind the theories of induced and contributory infringement, fair use in the US, the balance between free speech and trademark rights, all relate back to its Constitution, thus laying a very strong basis for the extent of IP protection in the country.  

Again, on the flip side, it also seems extremely utilitarian in nature, explaining for the lack of adequate “moral rights” proposition in its copyright regime.

I do not intend to state that US practices are the very filmy “pathar ki lakeer” (Kelsenian absolute), and I hold a different viewpoint on many counts that it has adopted. However, on this point, I do feel there is something we could draw cue from...

  

Guest Post: Patenting ‘Life forms’ under the Patents Act, 1970- Patent Unconstitutionality? - II

This is a continuation from Aditya Arun Kutty's guest post.
Use of the term ‘Variety’

The use of the word ‘variety’ in s. 3(j) is further unreasonable and leads to discrimination between those who are breeders of plant variety and those breeders of animal variety. On one hand, breeders of plant variety are entitled to protection under ‘The Protection of Plant Varieties and Farmers’ Rights Act 2001 (PVRFR), and on the other, breeders of animal variety not only succumb to Section 3(j), they are left in the lurch since there is no separate legislation to protect their interests.

Furthermore, what constitutes ‘variety’ is also unclear as the dictionary meaning fails to identify what can be patented by virtue of its general nature and the Plant Varieties Act defines ‘variety’ only in the context of plant variety.

Also, the phrase ‘animal varieties’ was interpreted narrowly by the European Patent Office to limit the phrase to a variety and as not extending to animals per se. However 3(j) will not permit such an interpretation as it includes ‘animals in whole or any part thereof’.

Lack of a Clear definition

The EPO defines essentially biological process as consisting of entirely natural phenomena such as crossing or selection. Hence, EPO allows patenting of genetically modified plants or animals since genetic modification ensures that what is patented is not purely a natural phenomenon. 

Li Westerlund in his book on Biotech Patents,[i] states aspects of a biological process, which in practice, could lead to problems while deciphering its patentability quotient:

(i)                  Purely biological or essentially biological steps or a mixture of those steps, in a process.

(ii)                Purely biological/essentially biological steps but put together in a manner that levels the process at the higher technical standard.

(iii)               Biological/essentially biological steps plus a technical step in a process.[ii]

These steps clearly colour the fact that in the absence of a specific test to delineate patent-worthy inventions from the rest, the patent office to date remains ill-equipped to decide.

Article 14 strikes at arbitrariness because an action that is arbitrary must necessarily involve negation of equality. In this regard by not defining ‘seed’, ‘species’, ‘essentially biological process’ s. 3(j) leaves a tremendous scope for arbitrariness.

The only other legislative definition of a ‘seed’ would be that under the Plant Varieties Act, i.e. ‘a type of living embryo or propagule capable of regeneration and giving rise to a plant which is true to such type’. (s. 2(x))

In a case where seed is made by human interventions, (falling within this definition)its patentability would depend on the absolute discretion of the patent office.

Integration of words like patents, animals, essentially biologically process, without qualifying them with certain meaning, could well-nigh lead to denial of a patent (which inadvertently goes against the balancing objective of TRIPS under article 7) and this when provisions in foreign regimes such as the UK Patent Act specially accommodate for biotechnological inventions.

The situation in India as far as micro-organism patenting took a turn for the positive post the Dimminaco judgment of the Calcutta High Court (Process for preparation of alive vaccine for Bursitis). Subsequently, under the 2002 amendment to the Patents Act, only a micro-organism per se was unpatentable, qualifying the transgenic as patentable subject matter.

 Judicial Decisions/ Directives to seek Inspiration from

In the U.S. Animal Legal Defense Fund v. Quigg, the court held that an organism, “given a new form, quality, properties or combination not present in the original article existing in nature in accordance with the existing law”, could be patented.

Moreover, in the Harvard Oncomouse case, the first patent on a “non-naturally occurring non-human multicellular living organism”, patent was granted to a genetically engineered mouse.

In Ex Parte Allen, the patent examiner’s rejection of claims for a genetically engineered life-form was overruled. The board held that an oyster genetically engineered to be edible year round, constituted patentable subject matter. It was also opined that any multi-cellular organism may be patented by the inventor provided it:

A. it is created for the first time,

B. it is not a naturally occurring ,

C. is not a human being,

D. it is an item of manufacture or composition of matter, and

E. it meets all of the other conditions of patentability.

The EPC directive on legal protection of biological inventions 98/44/EC directly addresses patenting of life-forms. Under the directive, plants or animals may be patentable, if the technical feasibility of the invention is not technically confined to a single plant or animal variety. (This altered the EPC’s prior wording which explicitly excluded plant and animal varieties from patentability)

Article 6 of the Directive states that the human body, at the various stages of its formation (including the embryo and sequences or partial sequences of genes), is not patentable.

That said, it goes on to envisage that in case of an element of a human body, which has been removed through a technical process, can be patented even if the structure of the element is identical to that of a natural element.

In conclusion, I believe that the legislature needs to take a definitive stance prior to any litigation that may arise. Although common law will always factor equity into its analysis of legal issues, a statutory reference would serve to clarify the intention of the legislature. It would also give Courts the flexibility, precision and independence from subjective bias, to adjudicate an area of law in which the subject-matter is said to be ‘unforeseeable’.

Until and unless the law clarifies these terms, as was held in Sheo Nandan Parwan v State of Bihar- ‘the law will always frown on uncanalised and unfettered discretion conferred on any instrumentality of state.’

---

[i] Biotech Patents: Equivalency And Exclusions Under European And U. S. Patent Law, Kluwer Law International (August 2002)

[ii] Ibid.

Guest Post: Patenting "Life Forms" under Indian Patents Act, 1970- Patent Unconstitutionality?- I

We had promised to “generalize” IP by connecting it to traditional areas of the law such as Constitutional law. Keeping with that promise, we bring forth a guest post on (un)Constitutionality of Section 3(j) of the Patents Act, by Aditya Arun Kutty, a bright final year law student of Hidayatullah National Law University, Raipur.

Aditya is a self-confessed IP enthusiast, who has taken part in several IP moots and has also written on ISP liability and trademarks. In this post and the next, Aditya argues that Section 3(j) of the Patents Act may come under fire for being unconstitutional absent specific guidelines to reject applications which purportedly claim unpatentable subject-matter. Without further ado, here’s Aditya’s post:

The Restrictive Denotation of ‘Life form’ inventions under the Patents Act, 1970: Prospective Room for challenging the constitutionality of s. 3(j)?- Aditya Arun Kutty

It’s interesting to learn how biotechnology has empowered mankind to craft organisms. The introduction of new organisms into our environment has irrevocably changed the biological landscape. The patenting of living creatures has thus far proved to be a part of this conundrum; the debate has ranged from wholly disregarding such creatures as being patentable, to demarcating the line after grant, whereby it would be possible to limit such protective rights.

Patents, as affirmed, should be granted only to human inventions, not discoveries. As known, only inventions that meet the statutory requirements of being new, useful, and non-obvious, can be patented. Inventions or discoveries, such as naturally occurring organisms, laws of nature, natural or physical phenomena and abstract ideas, cannot be patented. 

The general prejudice against life-form patenting is that- existing living organisms - plants and animals as well as their genes - are no-one's invention and should therefore never be patented and put under private control.

Effectively the prohibition on patentability of plants and animals rests on three philosophical foundations[i]:

Firstly, patents on plants and animals would allow humans to hold exclusive rights on other living organisms, an arrangement that seemed (and continues to seem) immoral to many.[ii]

Secondly, it is argued that granting such patents would unjustly enrich those who were simply the first to apply for a patent on a naturally occurring organism.[iii]

Thirdly, some have invoke a Lockean philosophy of labor and just deserts in contending that live-organism patents were inappropriate because they did not require the patent holders to mix their labor with the naturally occurring item.[iv]

These reasons reflect what is known as the ‘product of nature’ theory, this was of-course explained in a more detailed manner in the Kalo case (Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127 (1948) where the court’s application of this theory led it to determine that Kalo had failed to take an inventive step when it mixed bacteria to produce an improved fertilizer.

Gradually now, a showing of human intervention is required to file for a patent in the first part of the test. This basic requirement prevents the direct appropriation of naturally occurring organisms. The applicant's use will have some bearing on the quantifiable calculations; the evolutionary biology test does not assume that a biotechnologically altered organism is inherently man-made. It goes a step further to calculate and examine the probability of the organism's natural development as part of the first prong of the proposed test.

Let’s now take a look at section 3(j) of the Indian Patents Act:

Plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals. 

Although, according to article 27 of the TRIPS, a member state may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes. Thus, with an ordre public exclusion having been carved out, the Indian legislation may very well be TRIPS compliant.

But the fact remains that if a law may be enacted by the parliament to give effect to an international treaty (Article 253), the same maybe struck down by the Supreme Court or High Courts of India as unconstitutional, if it violates any of the fundamental rights of the citizens.

Which brings us to the point that there a few plausible grounds whereby section 3(j) may not be justified or in litigation terms- may become prey to invoke the question on constitutionality.

Firstly, the usage of words ‘plants and animals in whole’, incorporates a blanket ban on the patentability of all living organisms, without even considering engineered animals.

Secondly, the silence of the Act on the patentability of the living forms coupled with the usage of wide terms such as ‘plant and animal’ leads to ambiguity as to the patentability of an organism which is a result of human intervention, leading to arbitrary powers in the hands of the Indian Patent Office to grant or deny a patent.

For instance, the Oxford dictionary meaning of the terms would suggest that the ordinary meaning of “plant” is a “living organism other than an animal, typically fixed to a substrate, able to subsist wholly on inorganic substances, and moving chiefly by growth” and “a living organism (such as a tree, grass or fern) that absorbs water and inorganic substances through its roots and makes nutrients in its leaves by photosynthesis.”

Finally, the term “animal” refers to a “living organism having sensation and voluntary motion, without rigid cell walls, and dependent on organic substances for food.” In addition, “a living organism which feeds on organic matter, has specialized sense organs and nervous system, and is able to move about and to respond rapidly to stimuli.”

It is clear from these definitions, that even if there is an organism which is a result of human intervention it can fall within the definition of ‘animals’, therefore disentitling it from patent protection. Thus, as of today, a product ‘X’ which is humanly engineered, would fall within the teeth of Section 3(j), no thanks to absence of specific guidelines and delineated definitions of terms such as ‘plants’ and ‘animals’.

[CONTINUED IN THE NEXT POST]

[i] M.T. Iwasaka Ryan, Chakrabarty to Chimeras: The growing need for evolutionary biology in Patent law 109 Yale L.J. 1505.

[ii] Tom Regan, The Case for Animal Rights, 1983; Peter Singer, Animal Liberation (2^nd edn, 1990)

[iii] O'Reilly, 56 U.S. (15 How.) 132-33

[iv] C.B. Macpherson (ed), Second Treatise of Government (Hackett Publ'g. Co. 1980) 8-30, ‘For John Locke's original discussion’

Administrative Tribunals: Their Contempt Jurisdiction

Certain aspects of administrative law have been dealt with on the blog in the past, however, I have not delved in depth into other aspects of this branch of law. I hope to take a non-linear approach (inspired by Christopher Nolan) in my attempts to make sense of the subject.

In this post, I intend to find out if Administrative Tribunals are empowered to take action against contemnors. Why is this an issue? Is the law of contempt different for administrative tribunals? The Supreme Court has had an opportunity to address this point in T.Sudhakar Prasad v. Govt. Of AP & Ors (2000).

The issue before the Apex Court in this judgment was as follows (let’s take a syllogistic approach):

A. Default Position: Only High Courts, as Superior Courts and Courts of Record, are empowered to take action in cases of contempt, even when the contempt is of Courts subordinate to it.

B. If A is true and if, according to the judgment in the celebrated decision of L.Chandrakumar v. Union of India (1997), an administrative tribunal is subordinate to a High Court and is hence amenable to the High Court’s jurisdiction under Article 226 of the Constitution...

C. then putting A and B together, would it be right to conclude that an administrative tribunal cannot take action against the contemnor, only the High Court may do so on its behalf?

If the answer to the above question were to be in the affirmative, then Section 17 of the Administrative Tribunal Act, 1985, which empowers tribunals to punish contempt, would be rendered otiose.

To resolve this issue, the Court dwelt on the contempt powers of the Supreme Court and the High Courts.

It observed that these Courts derived their powers from Articles 129 and 215 of the Constitution respectively and such powers could never be taken away from them. Even the provisions of the Contempt of Courts Act were only supplemental in nature, and not derogatory.

The Supreme Court then proceeded to interpret the relevant portions of Chandrakumar. It observed that in Chandrakumar, the SC had interpreted Articles 323A and 323B of the Constitution as ultra vires insofar as they impinged on the basic structure of the Constitution, of which the power of judicial review of the High Courts and Supreme Court was integral.

In other words, those powers of administrative tribunals which were specifically conferred under Article 323A and consequently the Administrative Tribunals Act, which did not run contrary to the Constitution’s basic structure, would remain unaffected by the dicta in Chandrakumar.

Therefore, the power to punish contempt under Section 17 of the Administrative Tribunals Act, which flowed by Article 323A(b), remained unaffected by the decision in Chandrakumar. 

The Court arrived at this this conclusion through another path as well- according to the Court, the other reason that Section 17 was explicitly included in the Administrative Tribunals Act was that, by default the power of contempt was available only to Courts of record. Since an exception was being made with respect to administrative tribunals, such exception had to be express and in no uncertain terms to ensure that this was seen as a clear and unambiguous exception to the default rule.

As to the question, whether there would lie an appeal before the High court from an order of the tribunal in an action for contempt, the Apex Court rightly held that Section 19 of the Contempt of Courts Act would come into play. This means there would be no appeal (or even a writ under Article 226) before the Court from an order of the Tribunal in a contempt action, because the tribunal is substituted for the High Court for the purposes of the Contempt of Courts Act as per Section 17 of the Administrative Tribunal Act.

Therefore, as envisaged in Section 19 of the Contempt of Courts Act, the only remedy would be a special leave petition under Article 136 of the Constitution.

The Court categorically stated that this interpretation too did not run counter to Chandrakumar.

Articles 226 and 227: How are they different?

In an earlier post, I had discussed the scope of revisionary powers of the High Court under section 115 of the CPC. I concluded the post raising the issue of a remedy against the rejection a revision application by the High Court wondering which of the two Articles (226 and 227) would suit the purpose. The relevant portion of the post reads thus:

“Can the decision of a High Court in a revision application be challenged? If yes, how? A decision or order of the High Court in a revision application is not an appealable order under Order 43 of the CPC nor can it be appealed as a decree (under Sections 96 or 100) because the order of the High Court in the revision application is not a decree. Therefore, for a remedy against the order of a Court under Section 115, one has to look beyond the CPC. This would mean the Constitution, but would it be Article 226 or 227?

Article 227 vests the Court with supervisory jurisdiction which it can exercise over subordinate Courts. Since we have already concluded that the High Court is not subordinate to itself, I am assuming Article 226 would be the right provision to invoke in such situations. Of course, I am not very sure of this conclusion, but it seems plausible.”

The question itself has a flaw because instead of seeking a remedy from the rejection of the revision application, one must look for an alternative to the revision application, which may be used despite the rejection of the revision application. To rephrase the question accurately now, one must ask if a writ under Articles 226 or 227 may lie from the order of a subordinate Court after the rejection of a revision petition under Section 115 of the CPC?

The answer is in the affirmative, but which of these is technically the correct provision to be invoked needs to looked into carefully since Courts have often used them interchangeably, and have blurred subtle yet definite distinctions between the two. A 2003 judgment of the Supreme Court compares the two Articles to explain the powers vested in a High Court under each of them.

I am still not clear in my own head, which explains all the more why one needs to think it aloud. The Court in this case has drawn from several sources, commentaries and judgments, to understand the scope of Art.226. The Court observed that a writ of certiorari is but one of the writs that may be issued under Art.226. This writ is employed to keep authorities and Courts subordinate to a High Court within their limits.

This writ may lie from the order of any authority where the authority in question has acted in a judicial or quasi-judicial manner. Further, the Court plays a supervisory role and not an appellate role, therefore it cannot embark on reviewing findings of fact unless there’s a patent error i.e. error which is grossly against the provisions of law. The Court’s primary function is to set right jurisdictional wrongs and to verify if principles of natural justice have been observed where the Court has rightly seized itself of the matter.

In contrast, Art.227 is wider in scope in that it is not bound by technicalities which limit the working of Art.226. Art.227 vests the Court with the power of superintendence which exists independent of its revisional powers under any other law (i.e. CPC). While Art.226, which is the Original jurisdiction of the High Court, may be set into motion only by a party, Art.227 gives a High Court power to call for records suo motu. It can be invoked regardless of a possible alternative to the High Court in the form of an appeal or revision.

Under Art.226, the Court may merely quash the order of the sub-ordinate Court, whereas under Art.227, the Court may direct the sub-ordinate Court as to its proper course of action or may pass an order which replaces the subordinate Court’s order. This explains why a High Court, under Art.227, exercises powers which are similar to appellate powers and hence uses it in parsimony. Only if an appeal is proved to be less efficacious than a writ under Art.227, may the Court entertain such a petition.

That said the situations where Art.227 may be validly raised are similar to the specific situations where a revision may lie before a High Court under section 115(1). This answers our question- when a revision petition is rejected by a High Court, a party may choose to file a writ under Art.226 or a petition under Art.227 depending upon the kind of relief he seeks to elicit from the Court. If he wants the Court to merely set aside the order of the subordinate Court, he may file for a writ of certiorari under Art.226, however if he wants the Court to re-appreciate the case on merits, legal not factual, and chart a course for the sub-ordinate Court, he may file a petition under Art.227. 

Scope of Revisionary Powers of a High Court

Section 115 of the Code of Civil Procedure has figured in quite a few judgments, although it is worded in a reasonably clear fashion. The provision has been explained in great detail in a judgment delivered by the Supreme Court in Khanna v. Dillon. Let’s take a look at the provision:

(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court, except where such suit or other proceeding is stayed by the High Court.

The underlined portions of sub-section 1 are instrumental in understanding the true scope and use of the provision. First, it is established that the power of revision is vested only in the High Court. Second, it states that the Court may call for records suo motu or on the application of a party. Third, it is borne out that the records of any Court sub-ordinate to the High Court may be called for. Fourth, such powers of revision may be invoked only in cases which have been decided. Fifth, it may be invoked only in cases in which no appeal lies thereto.

The import of the first three limbs is that the High Court exercises its power of supervision over subordinate Courts in invoking its revisionary powers under the Code. The import of the fourth limb is that an application for revision may be made only after a case has been decided.

As for the fifth limb, this is the one usually perceived as the most ambiguous. It states that a revision may be sought only in cases “in which no appeal lies thereto”. The word “thereto” has been used for a reason; it is to convey that only in situations where an appeal cannot be filed before the High Court, a revision may be filed.

Stated otherwise, where the High Court may be approached through an appeal, be it the first appeal or a second one under Section 100, the High Court is barred from entertaining a revision application. This is because if the High Court may be approached in either the first or second appeals, then the questions sought to be posed in a revision application may be raised validly in the appeal as well. Therefore, since such questions may be placed before the High Court in appeal, there is no need to provide a party with an additional provision in the form of a revision application.

This provision has often been wrongly interpreted by parties to mean that since an appeal may lie from a decision before a higher appellate authority which is subordinate to the High Court, a revision may not lie before the High Court. In other words, when an appeal before an appellate forum (which is subordinate to the High Court) is available to a party, it is not entitled to seek a revision.

This is patently wrong because the High Court derives its powers by virtue of it being vested with supervisory jurisdiction which it may use to set aside a decision of a sub-ordinate Court on grounds of jurisdiction. This is evidenced from the limited circumstances detailed in sub-section 1 which refer to lack of jurisdiction or transgression of powers by a Court sub-ordinate to the High Court.

The next question is, is a Single Judge of the High Court subordinate to the High Court? It has been held that a Single Judge is not sub-ordinate to the High Court and there shall not lie a revision from his decision. This is also because a letters patent appeal is already available to a party aggrieved by the decision of the Single Judge.

If an appeal normally lies before the High Court either as a first appeal or a second appeal, and the right to file such appeal has expired on grounds of limitation, can a party validly rely on section 115 to file a revision instead of the appeal? This is possible because the section speaks of situations where an appeal does not lie and this could be on account of any reason, including unavailability of the right to appeal on grounds of limitation.

Can the decision of a High Court in a revision application be challenged? If yes, how? A decision or order of the High Court in a revision application is not an appealable order under Order 43 of the CPC nor can it be appealed as a decree (under Sections 96 or 100) because the order of the High Court in the revision application is not a decree. Therefore, for a remedy against the order of a Court under Section 115, one has to look beyond the CPC. This would mean the Constitution, but would it be Article 226 or 227?

Article 227 vests the Court with supervisory jurisdiction which it can exercise over subordinate Courts. Since we have already concluded that the High Court is not subordinate to itself, I am assuming Article 226 would be the right provision to invoke in such situations. Of course, I am not very sure of this conclusion, but it seems plausible. I shall continue the discussion in another post soon with a discussion of this judgment of the Supreme Court.

Legitimate Expectation in India: Great Expectations

The doctrine of legitimate expectation appears to be an English import, but like most principles of administrative law, I would say that it is subsumed in principles of fairness and reasonableness. So we may have been applying it even before we started calling it the “doctrine of legitimate expectation” (Let’s call it DOLE for short).


But as Courts go, specific precedents are important (I personally would go more by logic and facts, than be bound fastidiously to or by precedents). One prominent case on this doctrine is the judgment of the Apex Court in Bannari Amman Sugars v. Commercial Tax Officer (JT 2004 (10) SC 500).

The facts of this case are as follows:

1. The appellants challenged the legality of a Government Order numbered 989, dated 1.9.1988 which directed the discontinuance of purchase tax exemption in case of mills which exceeded the limit of Rs.3 Crores during the period of 5 years.

2. A further government letter dated 28.12.1988 was also challenged which made the GO applicable retrospectively from 1.4.1988.

3. Writ petitions were filed by the Appellants before the High Court challenging the GO and the letter, subsequent to which they were transferred to the Tamil Nadu Special Taxation Tribunal on its constitution.

4. The Tribunal held the GO and the letter to be violative of the doctrine of promissory estoppel and legitimate expectation.

5. The High Court reversed the finding of the Tribunal. Hence, the appeal before the Supreme Court.

The primary arguments submitted by the Appellant are as follows:

1. It contended that the retrospective application of withdrawal of the purchase tax exemption was directly at loggerheads with DOLE.

2. It was the case of the Appellant that the material submitted before the Court to prove public interest in the withdrawal of the tax exemption was not disclosed or relied upon in the pleadings nor were they shared with the Appellant.

The gist of the State’s counter to these arguments is as follows:

1. The Appellant had failed to establish that the tax exemption offered by the Govt. had induced the Appellant in setting up any business or enterprise.

2. Also, the counsel for the State pointed out that the exemption was offered only to co-operative and public sector sugarcane industries in the form of an annual subsidy equal to the amount usually charged as purchase tax. Since the Appellant did not fall under either category, it was not entitled to the exemption in the first place.

3. The business of the Appellant was set up prior to the notification of the exemption and that the Appellant had subsequently requested the Government to treat the Appellant on par with the actual beneficiaries of the exemption i.e. co-operative and public sector sugar units.

4. Further, according to the State, no benefit is intended or can be expected to last in perpetuity, so merely because a benefit had been extended, its retraction by the Govt at a later point of time cannot be said to attract DOLE.

5. Besides, any such exemption can be legitimately revoked on grounds of public interest, such as loss of valuable tax revenues or dire need of such revenues to maintain the Govt’s machinery.

The long and short of the State’s counter was that a certain promise made by the Govt/ can be legitimately changed if such change is imperative in light of altered circumstances. From these arguments, the core logic behind DOLE comes out to a very large extent.

I think the doctrine of legitimate expectation, only on the face of it, is an English import. Its genesis and application in England was and is easier thanks to the absence of a written Constitution. But in the Indian context, it must be seen as a home-grown extension of the applicability of doctrine of promissory estoppel, enshrined in Section 115 of the Evidence Act, 1872, to public-private relations, better known as the realm of public law.

Although it has the effect of toning down the formal rigours of Article 299 of the Constitution, which requires execution of Government contracts by the President of India, it is, nevertheless, a principle of equity and fairness justifiably read into the Article, whereby the Executive is held accountable to any promise made by it in any form, which induces or has the effect of inducing any reasonable member of the public into undertaking a certain action or enterprise, which action or enterprise would be to the member's detriment in the absence of such an Executive promise.

Simply put, the doctrine mandates that the Executive keeps its word to the public or a particular class of the public.

This is the sum total of the logic adopted by the Supreme Court to elaborate on DOLE. The Apex Court started off by tracing the origins of DOLE from the case of Central London Property Trust Ltd. v. High Trees House Ltd. (1947). Explaining DOLE, it stated thus:

“Where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word. But that principle does not create any cause of action, which did not exist before; so that, where a promise is made which is not supported by any consideration, the promisee cannot bring an action on the basis of that promise.”

The above underlined portion appears somewhat contradictory because the promise made, and its subsequent renegation by the promisor i.e. the State, forms the basis of writs filed in such cases. If there can be no cause of action arising from the State’s denial of such a promise, then does it not become a mere privilege extended by the State at its pleasure? 


Isn't this what we often refer to as arbitrariness since Executive decisions can be anything but arbitrary, and their application or revocation cannot be subject to the vagaries of the Executive’s fickle mood. But the Court explained in the later part of the judgment that this was not so.

It went on to explain the origins of the desi avatar of DOLE; it referred to its own decision of 1968 delivered in the case of UOI v. Indo-Afghan Agencies Ltd. In this case, it was held that although Section 115 of the Evidence Act, which speaks of promissory estoppel, is not applicable in cases like these, a party could still expect the Govt to make good on its promise, even if such promise was not made in the manner required by Article 299.

In short, the Court was of the opinion that DOLE is neither in the realm of contract nor completely in the realm of estoppel, but is more in the nature of a principle of equity whose purpose is to serve the ends of justice/public interest by adhering to the spirit of the law sans its formal rigours.

Applying this to the facts of the case at hand, it said no vested right towards receiving tax exemption was created. The exemption was a mere concession which no reasonable man can expect to continue for eternity. DOLE could have been invoked had the enterprise of the Appellant been established based on the representation of the Govt.

The Court further clarified that DOLE may alone be sufficient to establish locus standi in a given case despite the absence of a substantive statutory or constitutional right. In a way, according to Court, this widened the envelope of judicial review whereby policy decisions, which were considered sacrosanct and free from judicial review, could be reviewed and even chastised, albeit to a limited extent.

Explaining the observation in the High Trees case, the Court said that DOLE did not guarantee an immediate relief or even, for that matter, a very sure ground for a claim, but only made it incumbent upon the Executive to justify its policy flip-flops.

In other words, the Court admitted that DOLE still did not permit the Judiciary to question the logic behind Executive’s policy choices, but only allowed it to haul up the latter when it displayed signs of arbitrariness in implementing such policies. Therefore, according to it, DOLE is a corollarial construction of the essential requirement of fairness embedded in Article 14.

On the basis of these reasons, the Court held that the Appellant was not entitled to claim application of DOLE in this case, but the Court did remand the case back to the High Court on technical grounds saying the HC had considered material which was only produced before the Court but was not pleaded by the State.

This judgment is a must read for all those who intend to understand administrative law better. It does have a Krishna Iyer-esque quality to it.

As regards DOLE, the doctrine may be seen as yet another tool of judicial hyper-activism by the school of Constitutional law which swears by strict interpretationism, however, so long as it does not have the effect of unduly undermining the written word of the Indian Constitution, and furthers the cause of public interest, it must be welcomed with open arms to instil a sense of responsibility and accountability in the decisions of the Executive.