Being a Sports Lawyer in India

As young budding lawyers, generally when asked about sports law, we have no clue about it. What is sports law? Is there any special Act dedicated to this field of law? If not, then which Acts are usually referred? Most of us would be as perplexed and confused as a non-law student would be.

Sports law in simple words is an umbrella term describing the legal issues related to sports. With regards to this specific area of law, a lot of questions may arise; the First, among those would be, is recognising and playing a sport for a reasonably long time enough to qualify as a sports lawyer? The answer to that is a NO! To become a sports lawyer, one should have keen interest in the administration and management of sporting activity. Moreover, it is required to substantiate such knowledge and to have great proficiency in law applicable to commercial activities. One should have expertise in law related to Contract, Media, Competition, Drafting and Negotiation. The study of the legislations controlling sporting activities and its structure of management in India would prepare one to take up sports law as a career in India.

Sports law is not a lawyer friendly term for many practitioners in India as it creates confusion in the minds of most of them. Confusions as to, what is the ambit of sports law? What would one do being a sports lawyer? Is there any work in this field that requires the attention of lawyers? The reason to all these questions and many more lies in the confusion caused between the functions of an administrator and a lawyer. In this field of law, there seems to be an intrinsic overlap of functions between these two service providers. Therefore,to establish as a sports lawyer in India is extremely tough. It might be astonishing to many that in a country like India with 1.2-billion population (approx.) the one and only name or face of the country successfully practicing sports law is Mr. Nandan Kamath. It also cannot be disregarded by the fact that the amount of support and participation GoSports Foundation gains exhibits that there is a keen interest among the young legal enthusiast to pursue a career in the legal side of sports. Few other Sports firms/companies where the legal front seems to be an important focus are: GameChange, GameChanger[1], which has its offices in Delhi and Bangalore in India; LAWNK in Bangaloreand TMT Law Practice[2] (Chennai, Bangalore, Delhi) which has Sports and Entertainment litigation listed as its area of practice. But, due to lack of substantial avenues and necessary spread of awareness amongst law students and young lawyers Sports Lawyering hasn’t emerged as a career option.

Another interesting thing to note is that the new generation Law schools have Law companies/firms coming down to their doorsteps to offer jobs to the graduating batch of students. The day for such on-campus-recruitment is colloquially called “Day Zero”. Of course not all potential recruiters make it on that one day; but the point being, that Sports Law firms don’t somehow feature in these list of firms visiting the law schools.

However in Europe or Australia, Sports lawyering is a big thing. People understand the importance of legal nuances in sports and provide for all the facilities possible to explore this area.

In India, when a sports lawyer tries to make his/hermark in this field, he is required to immensely engage in the field of administration. Apart from taking care of any future legal dispute, he is expected to carry out the work of agents, wherein he does managerial work of maintaining the player’s portfolio, advertisement, sponsorship, etc. As a consequence of this conflict of lack of definite identity in the kingdom of law, it becomes complicated for legal practitioners to establish themselves as a sports lawyer. What some of the existing sports administrators in fields like Tennis Officiating usually do before joining the professional turf is fetch themselves a Diploma Post Graduation Degree in Sports Management. There are a few institutes that offer these courses; and  Indian Institute of Social Welfare and Business Management which has been offering this course since 2010-2011 is one such institute operating in Kolkata. But, it isn’t quite clear if sports lawyer enthusiasts should get such a Diploma degree or not if they are to make more sense out of their work in managing legal disputes relating to Sports or would a legal degree in Law suffice.

The ambiguity of their role and the overlap of functions create an uncertainty among the clients of their existence. Therefore, the first and the foremost challenge of a sport lawyer in India, is to justify their existence, not just their existence in the field per say but also the existence of the field itself.

Going back to law schools; majority of the law students discover their area of interest while they study law. In addition, they work towards enhancing their knowledge in the field of their interest throughout law school period. In this exercise, law schools aid the students substantially by providing elective choice of subject, having conferences and having various research centers working on different fields of law. However, it is witnessed that in terms of sports law there is a gap, which stays unfilled. Most of the law students who graduate from law school do so without gaining even the basic idea of what a sports lawyer does. Unexpectedly, the foundational knowledge of the legislation governing sports law in India is unheard of by many. Such a lacuna suppresses the interest of the few who might be interest in taking up Sports Law as profession. Two main reasons due to which interested law students get discouraged to pursue this field of law; firstly, the lack of adequate teaching mechanism and secondly, lack of exposure between the students and the existing lawyers in the field of sports law.

 Problems or the negative side of sporting activity is well witnessed in IPL fiasco, the CWG catastrophe and the weight-lifting shame etc. -. Many questions have been raised by the critiques but unfortunately most of these questions have remained unanswered; since no one looks into the reasons for the same. A questions lead to more questions and the blame game goes on. The root of the matter stays unaddressed – Indian sports lacks good governance and a dynamic regulatory framework. Enlightenment of such matters is of utmost importance and to become a sports lawyer especially in a country like India.

Being a Sports lawyer in India is much different from being one  in Australia. Unlike India, in Australia there is national Act i.e. Australian Sports Commission Act, 1989. It was enacted to establish the Australian Sports Commission (“ASC”). It is a statutory authority of the Australian Government that is governed by the board of Commissioners appointed by the Minister for Sports.  It is responsible for distributing funds and providing strategic guidance for sporting activity in Australia. The “ASC’s roles and responsibility are prescribed in the Australian Sports Commission Act, 1989. It is also involved in the implementation of major policy decision principally through three divisions, the Australian Institute of Sports, Community Sport and Sport Performance and Development. For the efficiency of the implementation of these policy decisions it works closely with a range of sporting organisations, state and local governments, schools and community organisations. This ensures that sports in the country is run well and is accessible to all. Therefore, there is recognition of this field more than in India and that makes it much simpler for one to establish themselves in this field of law there, than here.Hence, there is an imminent need that we strive to create awareness along with educational facilities to understand Sports Advocacy better.

[1] http://gamechangerindia.com/Corporate/team/

[2] http://www.tmtlaw.co.in/index.html

Picture Credits: http://www.sportsnetworker.com/2013/10/28/law-jobs-in-sports-11-career-paths/

A Case Analysis: Of the Maneka Gandhi Case

BRIEF FACTS OF THE CASE –

On the 4th of July, 1977, Smt. Maneka Gandhi received a letter from the Regional Passport Office, Delhi, asking her to submit her passport (No. K-869668) within seven days from the day on which she had received such letter, i.e. before 11th July 1977. The letter stated that it had been the decision of the Government of India to impound her passport under Section 10(3)(c)of the Passport Act 1967. The grounds for such an impounding, as told to her, was “public interest.”

 Smt. Maneka Gandhi immediately sent a letter to the Regional Passport Officer, inquiring about the grounds on which her passport had been impounded. She also requested him to provide a copy of the ‘Statement of Reasons’ for making of such an order. The reply sent by the Ministry of External Affairs was that it was the decision of the Government of India to impound the passport in the interest of the general public. Also, there were orders to not issue her a copy of the Statement of Reasons. Smt. Maneka Gandhi thus filed a petition with regards to the matter.

 

JUDGEMENT OF THE CASE –

It was held that Section 10(3)(c) of the Passport Act confers vague and undefined power on the passport authorities, it is violative of Article 14 of the Constitution since it doesn’t provide for an opportunity for the aggrieved party to be heard. It was also held violative of Article 21 since it does not affirm to the word “procedure” as mentioned in the clause, and the present procedure performed was the worst possible one. The Court, however, refrained from passing any formal answer on the matter, and ruled that the passport would remain with the authorities till they deem fit.

RATIO DECIDENDI OF THE CASE –

Ratio Decidendi is commonly defined as the reasons for the judgement. It basically refers to the material part of the judgement without which the judge would have been unable to reach to the present conclusion of the case.

Before stating the ratio of the case and the reasons for the same, let’s first look at Section 10(3)(c) of the Passports Act  1967 – “if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public;”

Following is the ratio of the case, with an analysis of the same –

  1. Section 10(3)(c) of the Passport Act is violative of Article 14 of the Indian Constitution –

Article 14 of the Constitution talks about equality before law. This provision is absolutely against arbitrariness or vagueness of any sort as far as the actions of the executive are concerned. Section 10(3)(c) of the Passports Act confers unlimited powers on the passport authorities. Since it is vague in its wordings, the application of such a provision has not been very clearly defined in the Act. Thus, this leaves a lot of scope for the executive to interpret it in whichever way they want, and hence get away with a lot of actions under the guise of varied interpretation.

The provision also leads to arbitrariness in the actions of the executive. The arbitrariness comes from the fact that it is completely in the hands of the passport authorities to decide whether or not, and how to proceed in a particular case. The words ‘deems it necessary’ give the passport authorities complete freedom to act in whichever manner they want, and in whichever cases they want. Thus there is no uniformity or reasonableness in the actions of the passport authorities, and their actions could differ from case to case.

E.P Royappa v. State of Tamil Nadu & Another,[1974] 2 SCR 348, was the judgement applied by the Supreme Court to further justify their views. It was held in this case that Article 14 is one of the pillars of the Indian Constitution and hence cannot be bound by a narrow and inflexible interpretation. Article 14 should thus be given the widest interpretation possible, which also includes reasonableness and arbitrariness of certain provisions of the legislations.

Based on these observations the Court held Section 10(3)(c) of The Passport Act violative of Article 14 of the Constitution.

 

  1. Violation of the Principle of Natural Justice: The Audi AlteramPartem Rule –

The audialterampartem rule is one of the three principles of natural justice, and forms an important part in defining the constitutionality and fairness of any procedure. The literal translation of audialterampartem is “hear the other side”. In a layman’s language it basically means that both the sides should be given the opportunity to present their case before a decision is formulated for the case. In the present case, Maneka Gandhi was denied reasons for the impounding of her passport, which is unfair since every person has the right to know the grounds on which any executive action is being taken against him/her. Also, she was never given a chance to present her own case before the authorities.

The principle of audialterampartem requires that before the final order for the impounding of her passport was passed, Smt. Maneka Gandhi should have been given a chance to approach the authorities and to bring to light her part of the story so that the order for impounding of the passport would have been just. There is always the possibility of arriving at a one sided conclusion when only one party has been heard and the other is denied that opportunity. Thus to keep the orders completely objective and free from bias, it is absolutely imperative that both parties to a situation must be given a chance to put forward their side of the story.

In the present case, during the Court proceedings itself, the passport authorities ultimately ceded to the fact that they had been wrong in not providing Smt. Maneka Gandhi a chance to present her case. Thus, they ultimately agreed to withhold the order and give her a chance to present her case before the concerned authorities. But what is important to note is that the authorities had been held wrong in the first place, and only to mitigate the blame had they accepted to let her present her case. The final change of events prevented them from being held liable. Otherwise, they were definitely in the wrong and even the Court had held that their action had been arbitrary and contrary to the principles of natural justice.

  1. Section 10(3)(c) not Violative of Article 19(1)(A) and Article 19(1)(g) of the Constitution –

Article 19(1)(a) of the Constitution talks about the freedom of speech and expression guaranteed to all citizens of the country. Article 19(1)(g), on the other hand, talks about freedom to carry out any trade and profession. Smt. Maneka Gandhi had alleged that the order to impound her passport also violates these two rights of hers. She alleged that the freedom of speech and expression also includes in its ambit the right to travel abroad to express oneself among the people of other nations. Thus according to her, the freedom of speech and expression also included the right to go abroad to mingle with people, to carry out an exchange of ideas, to be able to converse with the people of other nations, and thus to be able to freely speak and express oneself outside India as well. Now since she had been denied the right to travel out of India due to the impounding of her passport, she alleged that her right to freedom of speech and expression had been violated. The same way, she said that since she was a journalist, it was part of her profession to travel to different parts of the world, to cover news issues. Thus by denying her the opportunity to travel abroad, the passport authorities had violated her right of trade and profession.

It was held by the Court that even though the above mentioned contentions were correct and that such an order would in fact amount to violations of Article 19(1)(a) and 19(1)(g), there was nothing to prove that Ms. Gandhi was scheduled to travel on an official tour at the time the impugned order was passed and her passport was impounded. Neither was there anything to prove that she had some earnest need to travel abroad towards realization of her right of expression under article 19(1), for eg. Public speaking, dancing, literature, art, etc.Thus this argument was rejected and the order was not held to be violative of Articles 19(1)(a) and 19(1)(g).

However, the Court did go on to clarify that if at any point of time in the future she was denied her passport from the government when sheneeded or wanted to travel abroad to exercise either of the two rights under 19(1)(a) and 19(1)(g) and the government denied such rights it would be considered to be an infringement of these two fundamental rights.

 

  1. The order is violative of Article 21 of the Indian Constitution.

In the case of Satwant Singh Sawhney v D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors, the Supreme Court held by a majority judgement that the expression 'personal liberty' in Article 21 takes in the right of locomotion and travel abroad, and under Article 21 no person can be deprived of his right to go abroad except according to the procedure established by law. This decision was accepted by the Parliament and the infirmity pointed out by it was set right by the enactment of the Passports Act, 1967.

Keeping in mind this right, Smt. Maneka Gandhi alleged that her right to travel abroad had been violated by the passport authorities. Also, the clause talking about ‘procedure established by law’ was contended in that the procedure adopted in this case was arbitrary and unfair. Maneka Gandhi contested that the procedure in this particular case was violative of the audialterampartemrule; it was arbitrary in that she was denied the statement of reasons for the impounding of her passport; and it was also violative of her fundamental rights because she was being denied the right to travel abroad under Article 21, without being given valid reasons for the same.

As far as the procedural discrepancy was concerned, the attorney for the government accepted the fact that the actions had been arbitrary and hence she was given the chance to put forward her contentions. Thus that anomaly was taken care of. As far as the question of her fundamental rights was concerned, it was held that true her fundamental right had been violated, but it was in the interest of the general public. The Court has adopted a liberal interpretation of Article 21 in the case, and expanded its ambit by leaps and bounds. However, the Court has refrained from outrightly commenting on this issue in this particular case.

 

OBITER DICTA OF THE CASE –

  1. Freedom of Speech and Expression {Article 19(1)(a)} is not bound only to the national territories of India –

This was a landmark opinion of the Court and one that was highly celebrated by the entire country. The Court in the course of this case opined that the right to freedom of speech and expression, as guaranteed to all the citizens of the country, was limitless in that it had given to the citizens a vast number of rights irrespective of whether they were in India or abroad. The Court held that if the Constitution makers had intended this right to be bound by the territories of the country, then they would have expressly mentioned so as they have done for various other rights, such as the right to settle down freely, or the right to assemble freely. However, since no such words had been added at the end of this provision, the Court felt that it was its duty to give it the widest interpretation possible.

Also, supporting this view was the fact that the Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations on 10th December, 1948 and most of the fundamental rights which we find included in Part III were recognised and adopted by the United Nations as the inalienable rights of man in the Universal Declaration of Human Rights. This further supported the view of the Court in that even though Indian Courts may not have jurisdiction outside the territory of India, but these rights as guaranteed by the Indian Constitution would still be maintained since they were now fortified by the Universal Declaration of Human Rights which was adopted by almost all the countries around the globe.

Giving this kind of an opinion was a landmark judgement and even though it may not have the value of a precedent (since it is an obiter),Courts all over the country have adopted this view of the Supreme Court, and used it in their judgements.

  1. Article 21 is not to be read in isolation; all violations and procedural requirement under Article 21 are to be tested forArticle 14 and Article 19 also.

The Supreme Court in the present case had adopted the widest possible interpretation of the right to life and personal liberty, guaranteed under Article 21 of the Constitution.  Bhagwati, J. observed:

The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19.”

Also, with respect to the relationship between Article 19 and Article 21, the Court held that Article 21 is controlled by Article 19, i.e., it must satisfy the requirement of Article 19. The Court observed:“The law must therefore now be settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of personal liberty, and there is consequently no infringement of the fundamental right conferred by Article 21 such a law in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenges of that Article.”Thus a law “depriving a person of ‘personal liberty’ has not only to stand the test” of Article 21, but it must stand the test of Article 19 and Article 14 of the Constitution as well.

CONCLUSION

The case is considered a landmark case in that it gave a new and highly varied interpretation to the meaning of ‘life and personal liberty’ under Article 21 of the Constitution. Also, it expanded the horizons of freedom of speech and expression to the effect that the right is no longer restricted by the territorial boundaries of the country. In fact, it extends to almost the entire world. Thus the case saw a high degree of judicial activism, and ushered in a new era of expanding horizons of fundamental rights in general, and Article 21 in particular.

 

Picture Credits: http://www.detectiveupdate.com/advocate/a-new-begining-of-the-right-to-life-and-liberty-maneka-gandhi-case/attachment/second_life_passport-774657/

Judiciary- Status & Standing

The Indian judiciary has been performing the sacrosanct function of delivering justice to people. The impartial and unbiased attitude of the judiciary makes it dependable. It is needless to mention that the judiciary has served the country with fortitude and determination. However, it is an undeniable fact that even the best men fall prey to corrupt practices. Under such circumstances ascertaining the accountability of government organs become significant.There has been a little vagueness as to whether these corridors of power fall under the domain of state or not.

The status of judiciary under Article 12 of the Indian Constitution is not clear, which leads to various interpretations of the word ‘judiciary’. It is important to know that if judiciary falls within the purview of Article 12 of the constitution, the fundamental rights can be enforced against it and if it does not, the fundamental rights cannot be enforced against it. The foremost benefit of bringing the judiciary under Article 12 will be to make the judges accountable for the violation of fundamental rights which they generally do in many cases by giving contrasting decisions based on same facts in different cases.

The following text will talk about the different judicial decisions, which throw light on the situations when the judiciary can come under the ambit of Article 12 and when it cannot. Another part of this article will deal with the interpretations of the judiciary on whether the definition of “state” includes judiciary in itself or not? The next part of the Article will scrutinize the exact language of Article 12 of the Constitution. And lastly the conclusion will argue to bring the judiciary under the purview of Article 12 for the greater good.

 

Court’s interpretation through various cases:

There has been lots of discussion in the following cases on whether it was just the non judicial functions of a judiciary that would fall within the scope of Article 12 or whether the exercise of judicial function could also feature in this discussion: from the PremGarg v. Excise Commissioner[1],BudhanChoudhary v. State of Bihar[2],A.R. Antulay v.R.S.Nayak[3],N.S.Mirajkar v. State of Maharashtra[4] to Rupa Ashok Hurra v. Ashok Hurra[5]” the conclusions arrived at by the court has been contrasting.

The most recent case on this matter was in 2002 in the case of, “Rupa Ashok Hurra v. Ashok Hurra[6]”. It was pointed out by Justice Syed Shah Mohamed Quadri that Article 32 can only be invoked for the enforcement of fundamental rights and it should be maintained that no judicial order by any superior court in any situation should violate any fundamental right. As it has been seen, the superior courts do not fall within the purview or under the ambit of the Article 12 of the Constitution as “state or other authorities”.

Semantic of Article 12:

 

It is important to scrutinize the language of Article 12[7] in order to conclude whether the judiciary is State or not under Article 12 of the Constitution.

It is conceived from the plain reading of the Article 12 that under the constitution, judiciary has not gone beyond the scope/ambitof Article 12. As it is an established fact that the “judiciary” is one of the organs of a State so it proves that it should also be subjected to the same constitutional obligations, duties and limitations like other organs.

If one reads Article 12, the term “includes” and not “comprises” has been used. There is a lot of difference between the meanings of these two terms. There are number of good reasons for mentioning just the “Parliament” and the “Legislature” and not the third organ of the State i.e. the Judiciary. It is important to note that according to Article 12[8], the Judiciary is an essential organ of the State. It has the power to make rules under certain circumstances.

Jurists like H.M.Seervai, V.N.Shukla on the question of whether judiciary is State or not, consider judiciary to be State. Articles 145 and 146 of the Constitution of India support their view as follows:

(i) The Supreme Court is empowered to make rules for regulating the practice and procedure of the Courts.

(ii) The Supreme Court is empowered to make appointments of its staffs and servants; decide its service conditions.

According to the text given in DD Basu’s, “Commentary on the Constitution of India”, “the fundamental rights were incorporated into our constitution to limit the power of executive as well as legislative authorities”.[9] It means that the main motive of the fundamental rights was to limit the misuse of power given to the two organs of the State. It cannot be ascertained that there will not be any misuse of power in judiciary. The judiciary is also one of the organs of the State hence it should also be treated like the other two organs by including it under the ambit of “State”.

Another viewpoint stipulatedby Justice Seervai, which can be read as, “It totally depends on the distinction between the judicial and non-judicial functions of courts[10]”. When the court exercises its non-judicial functions, the courts will fall under the ambit of the definition of state under article 12; whereas when courts exercises it judicial obligation there are no occasions where it attracts violation & infringement of fundamental rights, hence the question of bringing the courts within definition of state would not arise.

It can be understood with the following example. If in the exercise of its rule making powers, it makes some rules that contravene with the Fundamental Rights of the citizens, the remedy is available under Articles 32 & 226. But when the judiciary is exercising its judicial function, i.e., it has to decide whether a person’s fundamental right is violated by the legislature or the executive, it cannot be called a “State” under Article 12.

It can be argued that as guardians and sentinels of the Constitution, the courts must always be as much duty bound to defend and give effect to the directive principles as to the fundamental rights irrespective of their inclusion within the definition of ‘the state’.[11]

Sometimes the judiciary while interpreting might end up giving decisions that are per incuriam (which translates as ‘through lack of care’), which in turn might infringe the fundamental rights. If a party is aggrieved by the decision, the correct remedy is appeal/ review jurisdictions. The remedy is not in alleging that the court itself has violated a Fundamental Right by giving a wrong decision. So the courts cannot be subjected to writ jurisdiction.

Judicial analysis:

 

To give a wider dimension to Fundamental Rights, the judiciary has interpreted ‘State’ in different contexts at different times. The principle of “Ejusdem generis” was evolved in “University of Madras v. Santa Bai[12]”, the Madras High Court evolved the principle of ejusdem generis i.e. of the like nature. It means that those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions.

But in “UjjamBai v. Union of India[13]”, Supreme Court rejected the principle of ejusdem generis. It observed that there is no common genus between the authorities mentioned in Article 12.

Next was the case of “Ajay Hasia v/s Khalid Mujib[14]”, where the court observed that the test to know whether a juristic person is state is not how it has been brought but why it has been brought?

Contrasting judgments by judiciary proving the infringement of fundamental rights:

 

It started with the verdict in the case, “Smt. Triveniben v State of Gujarat[15]”, where the accused contended that there was a long wait in order to execute the punishment of death sentence. Hence there was violation of Article 21. The court stated that “It has been universally recognized that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture. He may be provided with amenities of ordinary inmates in the prison as stated in Sunil Batra v. Delhi Administration[16], but nobody could succeed in giving him peace of mind. So it is not violative of article 21 of the constitution.”

The contrasting decision came up in the case “Harbans Singh v. State of U.P.[17]”, where the court issued a stay on the death sentence of the accused. The court decided that it has “very wide powers conferred on it for due and proper administration of justice.” The overarching idea was that of inherent power and jurisdiction of the court to deal with “extraordinary” situations in the “larger interest of justice”.

In the other similar case, “Attorney General v.Lachma Devi[18]”, the Supreme Court under Article 32 of the Constitution passed an order against the judgment and to justify it, the Supreme Court gave the reasoning that it was contravening Article 21.

Conclusion:

To sum up the above discussion, it can be said that time and again, the judiciary has always justified its position of falling under the ambit of article 12 and contrary to it in many instances judiciary has successfully justified itself to be departed from article 12 . This should notallow the judiciary to change its position according to its convenience. It should be made clear to the general public whether they can enforce their fundamental rights against the judiciary.

It is very important for the fulfillment of basic human rights to know the position of the judiciary under Article 12. There are many good reasons to include the judiciary as State under Article 12. One of the important advantages is that the judges will be made accountable for their decisions against the violation of fundamental rights.

Another reason can be that it will limit the power of the judiciary to make any rules and pass any orders without any restriction as they do not fall within the ambit of Article 12. It will also help in reducing the violation of fundamental rights by the contrasting decisions in the same type of the cases.

Therefore, it will be in the interest of the greater good that the judiciary should be brought under the ambit of Article 12 of the Constitution.

[1] AIR 1963 S.C. 996

[2] AIR 1955 SC 191

[3] 1988 AIR 1531

[4] AIR 1967 SC 1

[5] (2002) 4 SCC 388

[6] (2002) 4 SCC 388

[7]Art-12: Definition In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India

 

[9]DD Basu, “Commentary on the Constitution of India”, pg. 200, Vol A/A1, Kolkata

[10]Cf. H. M Seervai: Constitutional Law of India, 225 ff (3rdediton, 1983)

[11]Mahendra P Singh, VN Shukla Constitution of India, pg.34 (11th ed.), Lucknow

[12] AIR 1954 Mad 67

[13] AIR 1962 SC 1621

[14] AIR 1979 SC 1628

[15] 1989 1 SCC 678

[16][1978] 4 SCC 491

[17] (1982) 2 S.C.C 101

[18] AIR 1986 SC 467

Picture Credits: blog.scconline.com

Working of the TRIPS

This blog aims to provide a preliminary insight into the working procedure of TRIPS Agreement. It follows the common route that is followed when countries try to approach the WTO Dispute Settlement Body to resolve issues relating to trade laws or infringing intellectual property rights.

The TRIPS Agreement establishes minimum substantive standards for the establishment of rights to IP. However, it is addressing a subject matter of very broad scope with rules that are deliberately designed to provide Members with substantial flexibility in their implementation. Predicting the specific issues that will be raised in dispute settlement would be rather difficult in light of the broad scope of potential subject matter.

The TRIPS Agreement Part III on Enforcement of IPRs take the approach of obligating Members to establish administrative and judicial mechanisms through which private IPRs holders can seek effective protection of their interests. It is implicit in all international agreements that their parties will undertake to implement them in good faith.There are two basic types of claims regarding the enforcement provisions of the TRIPS Agreement that are foreseeable. The first are claims that Members have failed to adopt laws and establish administrative mechanisms that satisfy the basic requirements of Part III of the Agreement. The second are claims that while Members may have adopted the relevant laws and mechanisms, they are failing to operate them in a manner that is “effective”.

The TRIPS Agreement incorporates the general consultation and dispute settlement mechanism of Articles XXII and XIIII of the GATT 1994, and the DSU, and from that standpoint the same procedural considerations apply in the TRIPS context as in the GATT and GATS contexts. There are familiar procedures for initiation of consultations, consultations, request for the establishment of a panel, third party participation, establishment of a panel, establishment of terms of reference, submission of pleadings and evidence, proceedings before the panels, possibilities for expert consultation, and so forth.[1]

A procedure for settling disputes existed under the old GATT, but it had no fixed timetables, rulings were easier to block, and many cases dragged on for a long time inconclusively. The Uruguay Round agreement introduced a more structured process with more clearly defined stages in the procedure. It sets out in considerable detail the procedures and the timetable to be followed in resolving disputes. If a case runs its full course to a first ruling, it should not normally take more than about one year — 15 months if the case is appealed. The agreed time limits are flexible, and if the case is considered urgent (e.g. if perishable goods are involved), it is accelerated as much as possible.

The Uruguay Round agreement also made it impossible for the country losing a case to block the adoption of the ruling. Under the previous GATT procedure, rulings could only be adopted by consensus, meaning that a single objection could block the ruling. Now, rulings are automatically adopted unless there is a consensus to reject a ruling — any country wanting to block a ruling has to persuade all other WTO members (including its adversary in the case) to share its view.

Although much of the procedure does resemble a court or tribunal, the preferred solution is for the countries concerned to discuss their problems and settle the dispute by themselves. The first stage is therefore consultations between the governments concerned, and even when the case has progressed to other stages, consultation and mediation are still always possible.

Settling disputes is the responsibility of the Dispute Settlement Body (the General Council in another guise), which consists of all WTO members. The Dispute Settlement Body has the sole authority to establish “panels” of experts to consider the case, and to accept or reject the panels’ findings or the results of an appeal. It monitors the implementation of the rulings and recommendations, and has the power to authorize retaliation when a country does not comply with a ruling.

First stage: consultation (up to 60 days)

Before taking any other actions the countries in dispute have to talk to each other to see if they can settle their differences by themselves. If that fails, they can also ask the WTO director-general to mediate or try to help in any other way.

Second stage: the panel (up to 45 days for a panel to be appointed, plus 6 months for the panel to conclude).

 If consultations fail, the complaining country can ask for a panel to be appointed. The country “in the dock” can block the creation of a panel once, but when the Dispute Settlement Body meets for a second time, the appointment can no longer be blocked (unless there is a consensus against appointing the panel).

Officially, the panel is helping the Dispute Settlement Body make rulings or recommendations. But because the panel’s report can only be rejected by consensus in the Dispute Settlement Body, its conclusions are difficult to overturn. The panel’s findings have to be based on the agreements cited.

The panel’s final report should normally be given to the parties to the dispute within six months. In cases of urgency, including those concerning perishable goods, the deadline is shortened to three months.

The agreement describes in some detail how the panels are to work. The main stages are:

 Before the first hearing: each side to the dispute presents its case in writing to the panel.

First hearing: the case for the complaining country and defence: the complaining country (or countries), the responding country, and those that have announced they have an interest in the dispute, make their case at the panel’s first hearing.

Rebuttals: the countries involved submit written rebuttals and present oral arguments at the panel’s second meeting.

Experts: if one side raises scientific or other technical matters, the panel may consult experts or appoint an expert review group to prepare an advisory report.

First draft: the panel submits the descriptive (factual and argument) sections of its report to the two sides, giving them two weeks to comment. This report does not include findings and conclusions.

Interim report: The panel then submits an interim report, including its findings and conclusions, to the two sides, giving them one week to ask for a review.

Review: The period of review must not exceed two weeks. During that time, the panel may hold additional meetings with the two sides.

Final report: A final report is submitted to the two sides and three weeks later, it is circulated to all WTO members. If the panel decides that the disputed trade measure does break a WTO agreement or an obligation, it recommends that the measure be made to conform to the WTO rules. The panel may suggest how this could be done.

The report becomes a ruling: The report becomes the Dispute Settlement Body’s ruling or recommendation within 60 days unless a consensus rejects it. Both sides can appeal the report (and in some cases both sides do).

Panels

Panels are like tribunals. But unlike in a normal tribunal, the panelists are usually chosen in consultation with the countries in dispute. Only if the two sides cannot agree does the WTO director-general appoint them.

Panels consist of three (possibly five) experts from different countries who examine the evidence and decide who is right and who is wrong. The panel’s report is passed to the Dispute Settlement Body, which can only reject the report by consensus.

Panelists for each case may be chosen from an indicative list of well-qualified candidates nominated by WTO Members, although others may be considered as well, including those who have formerly served as panelist.  Panelists serve in their individual capacities. They cannot receive instructions from any government. The indicative list is maintained by the Secretariat and periodically revised according to any modifications or additions submitted by Members.

Appeals

Either side can appeal a panel’s ruling. Sometimes both sides do so. Appeals have to be based on points of law such as legal interpretation — they cannot reexamine existing evidence or examine new issues.

Each appeal is heard by three members of a permanent seven-member Appellate Body set up by the Dispute Settlement Body and broadly representing the range of WTO membership. Members of the Appellate Body have four-year terms. They have to be individuals with recognized standing in the field of law and international trade, not affiliated to any government.

The appeal can uphold, modify or reverse the panel’s legal findings and conclusions. Normally appeals should not last more than 60 days, with an absolute maximum of 90 days.

The Dispute Settlement Body has to accept or reject the appeals report within 30 days — and rejection is only possible by consensus.[2]

Case in Point:

India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50 (“India – Patents (US)”) was the first WTO dispute under the TRIPS Agreement that resulted in a decision by a panel, and subsequently by the Appellate Body. The complaining party was the United States, which alleged that India had failed to adequately implement TRIPS Agreement requirements under Articles 70:8 and 70:9 to establish a so-called “mailbox” to receive and preserve patent applications and to adopt legislation authorizing the grant of exclusive marketing rights (EMRs)[3]

[1] http://unctad.org/en/docs/edmmisc232add18_en.pdf

[2] https://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm

[3]http://unctad.org/en/docs/edmmisc232add18_en.pdf page 43

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