February 2014 – Page 2 – the myLaw.net blog

The Supreme Court of India – A tip of the hat and much to look forward to in 2014

2014 promises to be a year of transformation for the Supreme Court of India. Far-reaching changes are expected on fundamental issues such as the appointment of judges and the reform of the procedure of the Court. The Gender Sensitisation and Internal Complaints Committee (“GSICC”) is also functional. How effective will it be in tackling sexual harassment at the highest court? Ten sitting judges will retire during the year. What impact will this have on lawyers and litigants?

These themes are expected to dominate discussion about the Supreme Court in 2014.

Appointment of judges

Political parties appear to be unanimous in their dissatisfaction with the current ‘collegium’ system, in which judges are appointed by senior judges of the Supreme Court. The proposed Judicial Appointments Commission (“JAC”) will take views from outside the judiciary into account. The outcome of the upcoming general elections is unlikely to affect the broad political support for the proposal.

In a welcome move, the Parliamentary Standing Committee recommended the inclusion the JAC’s composition in the Constitution through an amendment, instead of it being part of a legislation. This reduces the possibility of a parliamentary majority exercising excessive control over the composition of the judiciary. This recommendation has been accepted by the government.

Of course, the standards applied for the selection of judges will be critical in assessing whether the JAC performs better than the collegium. Currently, the only standard stipulated is the ambiguous requirement that the person recommended should be “of ability, integrity and standing in the legal profession”.

Procedural reform

The E-committee of the Supreme Court, headed by Justice Madan Lokur, has initiated a number of steps to rationalise the process of filing and documentation at the Supreme Court. Highlights disclosed at a seminar at the Indian Law Institute late in 2013 include the electronic archiving of documents related to past and current litigation, a court-linked email address for each Advocate-on-Record for official communication with the Registry, and electronic filing of pleadings (‘curing defects’ may be done electronically – goodbye, white correction fluid!). Watch this space for updates on when these changes are formally notified.

Gender Sensitisation and Internal Complaints Committee

The GSICC was created last year, and has since been chaired by Justice Ranjana Prakash Desai. Part of its mandate is to address complaints of sexual harassment within the “Supreme Court of India precincts”. An internal sub-committee of three members has also been set up, comprising Ms. Indu Malhotra (Senior Advocate), Mr. L. Nageshwar Rao (Senior Advocate), and Ms. Bharti Ali (Co-director, HAQ: Centre for Child Rights).

According to the Annual Report of the GSICC, proceedings are underway in two complaints. Plans are also being made for sensitisation and publicity exercises. The next few months will provide a clearer indication of the GSICC’s efficacy, and whether the parent regulations need strengthening.

Retiring judges and new appointments

Ten (out of a maximum capacity of thirty-one) sitting judges are due to retire in 2014, and the office the Chief Justice of India will change hands twice during the year. The date of retirement acts as a kind of deadline for judges — they must deliver any pending judgments by that date. In view of the impending multiple retirements, it is possible that there will be a greater than usual output of judicial opinions in decided cases over the course of the year. New appointments will also be followed with interest, especially if the JAC starts functioning during the year.

And a tip of the hat

Delivering judgments is the most important function of the Supreme Court. No discussion today would be complete without a tip of the hat for the January 21, 2014 judgment in Shatrughan Chauhan and Another v. Union of India and Others, where unreasonable delay in the execution of a death sentence has been held to be in violation of Article 21, and a ground for commutation of the sentence. Apart from the direct impact the judgment has had on the cases of the fifteen writ petitioners before it and on death penalty jurisprudence in particular, the general observation of the Supreme Court that “retribution has no Constitutional value” in India deserves to be applauded wholeheartedly. “Punishment is not payback” should be a value that resonates throughout the criminal justice system.

P.S. Last week, review petitions were dismissed without an oral hearing against the December 11, 2013 judgement in Suresh Kumar Koushal and Another v. NAZ Foundation and Others (analysed previously on this blog here, here, and here). Will Parliament set this right?

(Aditya Verma practices as an Advocate at the Supreme Court of India. He is an alumnus of NLSIU, Bangalore, and is on the roll of solicitors in England and Wales.)

The abuse of a dominant position acquired through a patent is a subject for competition law

Typically, patent litigation involves suits for infringement and counterclaims for patent invalidation. The conduct of parties to patent disputes however, has added another dimension — the effect of the patentee’s conduct on consumers and competition in the market.

Take for instance, the anti-trust proceedings initiated in 2012 by the European Commission against Motorola Mobility Inc. The main ground for the investigation was Motorola’s aggressive pursuit of injunctive relief against potential licensees to coerce them into paying unreasonable royalty for the use of Motorola’s Standard Essential Patents (“SEPs”) on video compression standards and standards for Wireless Local

Area Network (WLAN) technologies. SEPs, a type of patents, claim inventions that are necessary to comply with the prevailing technology standards. Given the essential nature of the subject-matter claimed by these patents, their abuse or coercive use has serious and adverse implications for consumers and other players in the industry.

In light of these developments,we need to clearly understand the respective realms of the Patents Act, 1970 (“Patents Act”) and the Competition Act, 2002 (“Competition Act”). Although the Patents Act is typically associated with patent grant, validity, and enforcement, Section 140 of the Act lists the restrictive covenants that are forbidden in patent-related contracts such as licenses. The provision, among other things, expressly proscribes any contractual provision that prevents a challenge by a licensee to the validity of a licensed patent. Similarly, Section 84 of the Patents Act provides for a compulsory licensing mechanism to ensure that a patentee fulfils his obligations under the Act, one of which is to provide access to his patented technology at reasonably affordable rates.

Although both these provisions address certain “public” concerns, the Patents Act does not have the mandate, bandwidth, or the teeth to ensure that a patentee’s conduct does not have an adverse effect on other players and consumers. Instead, it is the Competition Act that has the express mandate to deal with and deter anti-competitive conduct and to promote balance in the market.

In this regard, it would help to read Section 19(4) of the Competition Act. This particular provision spells out those factors which the Competition Commission of India (“CCI”) shall have regard to when enquiring if an enterprise enjoys a dominant position under Section 4 of the Competition Act. One of these factors is the monopoly or dominant position acquired as a result of any statute. This clearly includes a patent right, which is a statutory monopoly granted by and under the Patents Act. Simply put therefore, the CCI has the power under Section 4 of the Competition Act read with Section 19(4)(g) to look into allegations of abuse of dominance acquired as a result of a patent right. In other words, the manner of patent exploitation and enforcement, and its effect on the market are the primary preserve of the Competition Act, and not the Patents Act.

Specific and general legislation

Citing Sections 84 and 140 of the Patents Act, it could be argued that the Act — being the more “specific legislation” which governs patents and patentees compared to the Competition Act — must be treated as a self-sufficient code. This approach however, is flawed since, as stated earlier, addressing market inequities generated as a consequence of a patentee’s abuse of his rights is essentially a subject of scrutiny under the Competition Act, and not the Patents Act. This explains the reason for the presence of Section 62 of the Competition Act, which in effect states that the competition statute shall apply in addition to and not in derogation of, other legislations such as the Patents Act. Therefore, the specific-over-general rule does not apply to Competition Act insofar as the Patents Act is concerned. In fact, the Competition Act goes even a step further and provides in no uncertain terms in Section 60 that the Act shall prevail over any other law in force which is inconsistent with the Competition Act. This “overriding effect” ensures that the Competition Act’s applicability is never watered down or rendered futile because of a conflict with another provision in any other law.

At this point, it may be important to clarify the position of the Competition Act under Sections 60 and 62 to understand the status of the legislation. While on the one hand Section 60 proclaims the overriding effect of the Competition Act over anything that is inconsistent with the Act, Section 62 states that the Act shall be in addition to, and not in derogation of other laws. What this means is that so long as there is no inconsistency between the Competition Act and other legislations such as the Patents Act, both statutes shall apply simultaneously to a situation to which both Acts apply. In the event an inconsistency, the Competition Act will prevail. Therefore, in case of a non-conflicting intersection, both statutes apply, and where there exists or arises a conflict, the Competition Act shall prevail. After all, market and consumer interests have to prevail over domain-specific issues.

J. Sai Deepak, an engineer-turned-litigator, is a Senior Associate in the litigation team of Saikrishna & Associates. He is the founder of “The Demanding Mistress” blawg. All opinions expressed here are academic and personal.