Refusal by Patent Office to provide information under RTI; Salman Khurshid, Joy Basu in Shamnad Basheer’s PIL in Delhi HC

Intellectual property law expert and former MHRD Chair Professor of IP at WBNUJS, Shamnad Basheer (Petitioner) has filed a Public Interest Litigation (PIL) in the Delhi High Court seeking a declaration that the mechanism for obtaining information under the Right to Information Act (RTI Act) overrides the mechanisms under other statutes. He has also made a prayer to strike down the Constitutionality of Section 144 of the Patents Act, 1970 (Patents Act)..Senior Advocate and former Law Minister Salman Khurshid, Senior Advocate Joy Basu, Partner at Axon Partners, Abhimanyu Bhandari and Advocate Sai Vinod will be appearing pro bono for Basheer..Basheer had made requests to the Controller of Patents, who administers the Indian Patents Office (IPO), for information pertaining to the working of certain patented inventions. The requests were made to the IPOs at New Delhi, Mumbai, Kolkata and Chennai. The New Delhi IPO had declined to provide the information while the IPOs at Mumbai and Kolkata had provided the information as per the procedure laid down in the Patent Rules, 2003 (Patent Rules) and not under the RTI Act. The Chennai IPO was the only IPO which provided information under the RTI Act. The information was declined by the three IPOs under the RTI Act on the ground that an alternate mechanism existed under the Patent Rules..The petition at the outset states that right to information under the RTI Act is a fundamental right available to Indian citizens. As per the petition,.“Section 22 of the RTI Act in unambiguous terms states that the provisions of the RTI Act shall have an overriding effect over pre-existing mechanisms inconsistent with the RTI Act. The insertion of the provision suggests that the Parliament intended to cure infirmities in pre-existing mechanisms in providing easy, effective and affordable access to information. Therefore, the non-acceptance of applications under the RTI Act on grounds of pre-existing mechanisms is illegal.”.Basheer has also submitted that “the relevant provisions under the IP legislations, more particularly the Patents Act, exclude very important patent information from its ambit, impose higher fees than the RTI and do not make any carve outs for those with poor financial means.”.The Petitioner has also contended that there is no time limit for providing information under the Patents Act while, under the RTI, the information would necessarily have to be provided within a month..The Petitioner has, therefore, claimed that the pre-existing mechanisms under the Patents Act and other IP legislations are arbitrary, illegal and ultra vires Articles 14, 19(1)(a), 19(1)(g) and 21 of the Constitution inasmuch as it fails to safeguard the constitutional guarantee of right to information..Further, Basheer has also submitted that Section 144 of the Patents Act is violative of Articles 19(1)(a) and 19(1)(g) of the Constitution on the ground that it unreasonably and arbitrarily prohibits public access to information like “Examiner reports” without any “justifiable end”..On the above grounds Basheer has, inter alia, sought for a declaration,.“That the mechanism under the Right to Information Act, 2005 overrides all other mechanisms under any other statute or rule for discharge of information from public authorities to the extent of inconsistencies therein…and that Section 144 of the Patents Act, 1970 is ultra vires the Constitution of India.”.The matter was listed before the Chief Justice today but the Bench did not sit. It will now be taken up on August 6, 2014.