The Hindu Editorial Analysis
19 April 2021

1) The ECI cannot be a super government

There is still some confusion about the extent and nature of the powers that are available to the Election Commission

GS 2: Constitutional Bodies


Context:

  • A recent decision of the ECI to stop the Government of Kerala from continuing to supply kits containing rice, pulses, cooking oil, etc is a case in point.
  • The State government has been distributing such free kits for nearly a year to meet the situation arising out of the pandemic, which has helped many a household.
  • The decision to stop the kit distribution was reportedly on a complaint from the Leader of the Opposition in the Assembly.
  • The question is whether the ECI could have taken such a decision either under the model code or Article 324.

Election Commission of India

  • An autonomous constitutional authority responsible for administering Union and State election processes in India.
  • The body administers elections to the Lok Sabha, Rajya Sabha, and State Legislative Assemblies in India, and the offices of the President and Vice President in the country.
  • It superintends, directs and controls the conduct of elections.
  • It is the constitutional duty of the ECI to ensure that the elections held are free and fair.

Background

  • Article 324 to 329 of Part XV of the Indian constitution deals with elections, and establishes a commission for these matters.
  • The Supreme Court held in Mohinder Singh Gill vs Chief Election Commissioner (AIR 1978 SC 851) that Article 324 contains plenary powers to ensure free and fair elections and these are vested in the ECI which can take all necessary steps to achieve this constitutional object.

The Model Code

  • The model code of conduct issued by the ECI is a set of guidelines meant for political parties, candidates and governments to adhere to during an election.
  • Its origin can be traced to a code of conduct for political parties prepared by the Kerala government in 1960 for the Assembly elections.
  • It was adopted and refined and enlarged by the ECI in later years, and was enforced strictly from 1991 onwards.
  • Besides the code, the ECI issues from time to time directions, instructions and clarifications on a host of issues which crop up in the course of an election.
  • The model code is observed by all stakeholders for fear of action by the ECI.
  • However, there exists a considerable amount of confusion about the extent and nature of the powers which are available to the ECI in enforcing the code as well as its other decisions in relation to an election.
  • Since it is a code of conduct framed on the basis of a consensus among political parties, it has not been given any legal backing.
  • Although a committee of Parliament recommended that the code should be made a part of the Representation of the People Act 1951, the ECI did not agree to it on the ground that once it becomes a part of law, all matters connected with the enforcement of the code will be taken to court, which would delay elections.

 

Unresolved question

  • The enforceability of the code remains unresolved.
  • Paragraph 16A of the Election Symbols (Reservation and Allotment) Order, 1968 says that the commission may suspend or withdraw recognition of a recognized political party if it refuses to observe the model code of conduct.
    • But it is doubtful whether this provision is legally sustainable.
    • The reason is that withdrawal of the recognition of a party recognized under these orders seriously effects the functioning of political parties. When the code is legally not enforceable, how can the ECI resort to a punitive action such as withdrawal of recognition?

Transfer of officials

  • One issue relates to the abrupt transfer of senior officials working under State governments by an order of the commission.
    • It may be that the observers of the ECI report to it about the conduct of certain officials of the States where elections are to be held.
    • The ECI apparently acts on such reports and orders the transfer on the assumption that the presence of those officials will adversely affect the free and fair election in that State.
    • Transfer of an official is within the exclusive jurisdiction of the government.
    • It is actually not clear whether the ECI can transfer a State government official in exercise of the general powers under Article 324 or under the model code.
  • Further, Article 324 does not confer untrammelled powers on the ECI to do anything in connection with the elections.
    • If transfer of officials is a power which the ECI can exercise without the concurrence of the State governments, the whole State administration could come to a grinding halt.
    • The ECI may transfer even the Chief Secretary or the head of the police force in the State abruptly.
  • In Mohinder Singh Gill’s case (supra), the Court had made it abundantly clear that the ECI can draw power from Article 324 only when no law exists which governs a particular matter.
    • It means that the ECI is bound to act in accordance with the law in force.
    • Transfer of officials, etc is governed by rules made under Article 309 of the Constitution which cannot be bypassed by the ECI under the purported exercise of power conferred by Article 324.

Administrative moves

  • Another issue relates to the ECI’s intervention in the administrative decisions of a State government or even the union government.
  • According to the model code, Ministers cannot announce any financial grants in any form, make any promise of construction of roads, provision of drinking water facilities, etc or make any ad hoc appointments in the government, departments or public undertakings.
  • These are the core guidelines relating to the government. But in reality, no government is allowed by the ECI to take any action, administrative or otherwise, if the ECI believes that such actions or decisions will affect free and fair elections.
  • The Supreme Court had in S. Subramaniam Balaji vs Govt. of T. Nadu & Ors (2013) held that the distribution of colour TVs, computers, cycles, goats, cows, etc, done or promised by the government is in the nature of welfare measures and is in accordance with the directive principles of state policy, and therefore it is permissible during an election.
  • Further, Section 123 (2)(b) of the Representation of the People Act, 1951 says that declaration of a public policy or the exercise of a legal right will not be regarded as interfering with the free exercise of the electoral right.

Insightful words

  • There is no doubt that the ECI, through the conduct of free and fair elections in an extremely complex country, has restored the purity of the legislative bodies.
  • However, no constitutional body is vested with unguided and absolute powers.
  • Neither citizens nor the ECI is permitted to assume that the ECI has unlimited and arbitrary powers.

2) An obituary for the IP Appellate Board

Its tenure was a missed opportunity to develop the home-grown jurisprudence on patent law

GS 3: Intellectual Property Rights


Context:

  • On April 4, the President of India signed the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, shutting down the IPAB by amending the Copyright Act, 1957, the Patents Act, 1970 the Trade Marks Act, 1999, Geographical Indication of Goods Act, 2000, and the Protection of Plant Varieties and Farmers’ Rights Act, 2001.
  • The demise of the Intellectual Property Appellate Board (IPAB), India’s specialist tribunal for determining disputes relating to intellectual property (IP) rights, is symbolic of its tenuous life.

Background:

  • It was constituted on September 15, 2003 by the Indian Government to hear and resolve the appeals against the decisions of the registrar under the Indian Trademarks Act, 1999 and the Geographical Indications of Goods (Registration and Protection) Act, 1999.
  • Most of the significant amendments to the Patents Act since 1970 came through, not by way of an Act passed by Parliament, but through an ordinance.

Troubled life

  • Ever since its creation, the IPAB has been treated like an unwanted child.
  • Historically, appeals from the Intellectual Property Office (IPO), rectification and revocation applications were heard by the various High Courts.
  • However, the Patents (Amendment) Act of 2002 divested these powers from the High Courts and extended it to the IPAB.
  • Though the patents side of the IPAB existed in theory since 2002, the Central government notified its functioning only in April 2007 after a rebuke from the Madras High Court.
  • Even though the IPAB has not been performing its adjudicatory function on the patent side regularly due to administrative reasons, it certainly has been the subject matter of judicial review before the various High Courts.
    • These cases include a challenge to the constitutionality of the IPAB, petitions seeking filling up of vacancies before the High Court in Delhi and Chennai, and even a petition to the Supreme Court for extension of the term of the chairperson.
  • After remaining headless for almost two years, in January 2018, the IPAB was given a head.
    • The then chairperson of the Appellate Tribunal for Forfeited Property was given additional charge.
    • However, there was a substantial delay in the start of hearing of patent cases due to a technical reason.
    • The appointment of the technical member for patents, with whom the chairperson sits while deciding cases on patents, who brings the much-needed technical expertise that patent cases usually demand, was delayed.
  • The appointment of the technical member finally came last year after the government was sued by the Indian Drug Manufacturers’ Association.
  • IPAB’s end was foreseen by the leaders who ran it.
    • Not only was the IPAB understaffed, with its administrative staff often being on deputation, it was also underpowered, at times quite literally.
    • The tribunal had to bear the brunt of the summer power cuts in Chennai.
    • Imagine the highest authority on protecting technology and innovation working through the scorching Chennai summer during power cuts without any viable backup.
  • The IPAB’s jurisdiction of cases was split between trademarks, patents, copyright, and geographical indication, where the predominant business pertained to trademarks.
  • Not only did the IPAB juggle its time with the different forms of IP, but it also had sittings in five different cities, with just one chairperson who had to fly between them at times.
  • The chairperson had to summon parties and papers to all these cities, which came at a substantial cost to the public.
  • In any case, the disposal rate for patents at the IPAB did not justify its continuance.
  • Patent disputes owing to their technological complexity were the IPAB’s predominant time-consuming business after trademarks.
  • Nearly 70% of the patent cases filed were either pending at some stage or yet to be taken up for hearing.
  • After the IPAB was set up, not more than 15 cases were transferred from all the High Courts to the IPAB.
  • Going by this disposal rate, it would have taken another decade to dispose of the pending applications, leave alone the new ones.
  • The irony was that tribunals were established with the primary aim of speedy disposal of cases by specialized experts.
  • Every patent granted by the Patent Office is a potential subject matter in appeal before the IPAB.

 

Missed opportunity

  • Be it the retraction of product patents for pharmaceuticals and chemicals between 1970 and 2005, the anti-evergreening provisions or the robust compulsory licensing regime, it has offered the world a host of TRIPS-compliant flexibilities in its statute.
  • But when it came to developing jurisprudence around these provisions – case laws from the highest courts on how these provisions will be worked – it has failed.
  • Barring a few bright spots, there has been a reluctance to extend the flexibilities in the Patents Act through judicial interpretation that expands the law.
  • The tenure of the IPAB will be remembered as a missed opportunity to develop the home-grown jurisprudence on patent law that is much lacking in India.