Acts not notified are bad enough; piecemeal notification confounds even the apex judiciary.
Several laws are passed by the parliament but not notified for enforcement owing to pressure groups, change of circumstances, political reasons or plain negligence. But an equally severe problem is piecemeal notification of provisions of a legislation, leading to confusion among the people affected by the non-implementation and the courts which are called upon to interpret the law. The amendments made to the patent law in recent years are an example. The Supreme Court was confronted with this predicament in a recent case, J Mitra & Co Pvt Ltd vs Assistant Controller of Patents & Designs.
The judgment described the case as a “classic illustration of the confusion which has emerged on account of the postponement of in-part commencement of the Patents (Amendment) Act 2005”. There were amendments in 1999 and 2002, making significant changes in the patent law. But some sections were not notified, and others telescoped into the later amendments, creating a bewildering situation. This is what happens when different dates are appointed for the coming into force of different parts of the same Act, and the government does not enforce some portions.
The Supreme Court prefaces the judgment with a description of the judiciary’s dilemma. It reads: “Quite often the commencement of an Act is postponed to some specified future date or to such date as the appropriate government may, by notification in the official gazette, appoint. A provision is also made at times for appointment of different dates for coming into force of different parts of the same Act. This is what has exactly happened in this case resulting in utter confusion.”
The dispute was between two companies which manufactured medical equipment, Span Diagnostics Ltd and J Mitra & Co. The latter filed an application for grant of a patent in 2000. It was notified in 2004. Span Diagnostics opposed the grant of a patent to its rival. The row has continued till now and has not ended yet. This was mainly because, the law was amended but implemented piecemeal, confusing the patent authorities, the high courts and now the Supreme Court.
Earlier, any one who was interested could oppose the grant of patent to one party by filing an application before the Controller of Patents. This was done before the grant of the patent. If a party was aggrieved by the decision of the Controller, it could appeal to the concerned high court. In 2002, law-makers wanted to create an appellate forum to hear appeals against orders passed by the controller. Thus an amendment was passed, but kept frozen.
The legislators then felt that though there was a provision to move the high court at the “pre-grant stage”, there was no provision for appeal at the “post-grant stage”. So the Patents Act was amended again in 2005. It made drastic changes in Sections 116 and 117A. The appellate board established under the Trade Marks Act 1999 was also authorised to hear appeals in patent cases. However, these changes were not notified immediately. Several other consequential amendments were also made but their dates of enforcement varied, confounding the patent seekers and the appellate bodies. The present case was one of them.
One of the main points of confusion was the body which would hear post-grant appeals. Owing to the piecemeal implementation of the law, some thought it was the appellate body under the Trade Marks Act. Others felt it was the high court. The Supreme Court explains: “The result is that although the legislature intended to provide for only one statutory appeal to the appellate board, by reason of Section 61 of the Patents (Amendment) Act 2005 not being brought into force till April 2, 2007, a strange situation developed. Appeals filed during the interregnum, as in this case, became vulnerable and liable to be dismissed as misconceived.”
This unpleasant situation can be solved by the law-makers themselves. It has become a general practice to include a clause in every bill stating that it will come into force whenever it is notified by the government. This gives immense power to the executive to postpone the notification at its will. If this Catch-22 is avoided, Section 5 of the General Clauses Act will operate. According to it, “where any central Act is not expressed to come into operation on a particular day, it shall come into operation on the day on which it receives the assent of the President”. As it happens, there is not much delay in getting the presidential assent, but the rest is in the hands of the mandarins.