Bar & Bench: Mumbai: Thursday, 31 July 2014.
Intellectual
property law expert and former MHRD Chair Professor of IP at WBNUJS, Shamnad
Basheer (Petitioner) has filed a Public Interest Litigation (PIL) in the Delhi
High Court seeking a declaration that the mechanism for obtaining information
under the Right to Information Act (RTI Act) overrides the mechanisms under
other statutes. He has also made a prayer to strike down the Constitutionality
of Section 144 of the Patents Act, 1970 (Patents Act).
Senior
Advocate and former Law Minister Salman Khurshid, Senior Advocate Joy Basu,
Partner at Axon Partners, Abhimanyu Bhandari and Advocate Sai Vinod will be
appearing pro bono for Basheer.
Basheer had
made requests to the Controller of Patents, who administers the Indian Patents
Office (IPO), for information pertaining to working of certain patented
inventions. The requests were made to IPOs in New Delhi, Mumbai, Kolkata and
Chennai. The New Delhi IPO had declined to provide the information while the
IPOs at Mumbai and Kolkata had provided the information as per the procedure
laid down in the Patent Rules, 2003 (Patent Rules) and not under the RTI Act.
The Chennai IPO was the only IPO which provided information under the RTI Act.
The information was declined by the three IPOs under the RTI Act on the ground
that an alternate mechanism existed under the Patent Rules.
The petition
at the outset states that right to information under RTI Act is a fundamental
right available to Indian citizens. As per the petition,
“Section 22
of the RTI Act in unambiguous terms states that the provisions of the RTI Act
shall have an overriding effect over pre-existing mechanisms inconsistent with
the RTI Act. The insertion of the provision suggests that the Parliament
intended to cure infirmities in pre-existing mechanisms in providing easy,
effective and affordable access to information. Therefore, the non-acceptance
of applications under the RTI Act on grounds of pre-existing mechanisms is
illegal.”
Basheer has
also submitted that “the relevant provisions under the IP legislations, more
particularly the Patents Act, exclude very important patent information from
its ambit, impose higher fees than the RTI and do not make any carve outs for
those with poor financial means.”
The
Petitioner has also contended that there is no time limit for providing
information under the Patents Act while, under the RTI, the information would
necessarily have to be provided within a month.
The
Petitioner has, therefore, claimed that the pre-existing mechanisms under the
Patents Act and other IP legislations are arbitrary, illegal and ultra vires
Articles 14, 19(1)(a), 19(1)(g) and 21 of the Constitution inasmuch as it fails
to safeguard the constitutional guarantee of right to information.
Further,
Basheer has also submitted that Section 144 of the Patents Act is violative of
Articles 19(1)(a) and 19(1)(g) of the Constitution on the ground that it
unreasonably and arbitrarily prohibits public access to information like
“Examiner reports” without any “justifiable end”.
On the above
grounds Basheer has, inter alia, sought for a declaration,
“That the
mechanism under the Right to Information Act, 2005 overrides all other
mechanisms under any other statute or rule for discharge of information from
public authorities to the extent of inconsistencies therein…
and that
Section 144 of the Patents Act, 1970 is ultra vires the Constitution of India.”
The matter
was listed before the Chief Justice today but the Bench did not sit. It will
now be taken up on August 6, 2014.
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