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, inthe 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.