Recently, Praharsh revived a discussion about the not-very-active state of IP academic interventions in India while sharing the news of the appointment of Prof. Arul Scaria by the Delhi High Court as an “expert” in a copyright case. Prashant raised similar questions a few years ago when Prof. Basheer was appointed, as an “academic intervenor” in the Novartis case. Swaraj, during our conversations about Indian IP thinking and IP academia, has also made similar points several times as to —why Indian IP academics don’t write amicus briefs and intervene in court proceedings involving public interest considerations as their American counterparts.
In other words, why is Indian IP scholars’ engagement with the judiciary involving IP issues limited, or perhaps, rare? Certainly, there lurks a bigger question about IP professors’ engagement with Indian IP policy in general. Here, professors like N. S. Gopalakrishnan, and Arul Scaria come to mind who have been invited to assist with certain IP issues. However, I limit this post to the involvement with the judiciary and see two types of involvement. One is proactive engagement like court interventions. Second is by being invited as an expert/advisor to comment/engage with certain important matters.
This, for sure, places us in a web of interrelated questions about the role and the status quo of IP education, professors, and legal education in India. The question is worth raising particularly given the government’s efforts to cultivate IP expertise, especially since the 2000s, with the creation of MHRD (now DPIIT) “IP Chairs.” While these questions deserve deeper exploration—perhaps through empirical research, which I/we aim to do in the future, for now, I want to share some initial thoughts on the issue in this two-part post. The first part discusses the extant legal framework around such academic involvement underscoring its historical context. Part two deduces the hypotheses from the discussion, and underscores broader research questions, hoping to receive some comments from our readers.
(Note: While I write this in the context of IP law, the key claims/ideas/questions can be expanded to other fields. Similarly, while I make the case for academics here, it can perhaps be argued that attention is warranted on the role of civil society in Indian IP thinking and policy-making, Internationally, civil society groups / NGOs and academics have played important roles in engaging with and nuancing or providing useful feedback on the development of IP norms. Moreover, this post does not delve in depth given the space constraints. However, I trust that the arguments and questions won’t lose their significance entirely if developed with the appropriate contextual nuance.)
The Legal Mechanisms for Academic Interventions
There are three ways to participate in Court proceedings, 1.) Impleader 2.) Expert, and 3.) Amicus Curiae. The general rule in a civil suit is that only those parties against whom the plaintiff makes a case are made parties to the suit. However, under Order I Rule 10 (2) of the Code of Civil Procedure, 1908 grants discretion to the Court to add a party to the case, either upon request or on its own initiative, if it believes that the party’s presence is necessary to “effectually adjudicate upon and settle all questions involved in the suit.” This is called impleadment. This needs highlighting, as this piece on Intervention Culture does, that impleadement and intervention are different concepts. While the former results in the addition of the applicant as a party to the proceedings, intervention simply enables the applicant to address the Court without formally becoming a party to the case.
This is where Order I Rule 8(a) comes to the fore, on the court’s power to allow a person or body of persons to present an opinion or participate in the proceedings. It empowers the court to allow a person or body of persons “interested in any question of law in issue in the suit, and that it is in the public interest” to present its opinion, and take such part in the proceedings. Here’s a hiccup, however. For we have got an open term here – “interested” – which may raise a question as to whether mere academic interest is sufficient or whether one has to be affected by the outcome of the decision to be called an “interested party”.
Fret not, provision’s history would help here. It appears that the provision was inserted for a very such intervention! It was recommended by the 54th Report of the Law Commission, 1973, and inspired by Article 30 of the Fundamentals of Soviet Civil Legislation. The commission reasoned that “The [Indian Civil] Code has, at present, no provision for permitting the joinder of an organisation interested in the legal issues in a suit, i.e. an organisation which, though not concerned with the narrow questions of fact arising between the parties has a view to offer on some broader issues.” The Commission also differentiated the provision from “the practice of appointing an amicus curiae, because the organisation concerned would have its own views to present, and its role would not be confined to assisting the court, though its participation may help the court in elucidation of some of the issues.” Tellingly, even after the clear listing of the provision’s purpose, the Calcutta HC interpreted the provision narrowly in In Re v. Samarjit Chakraborty. See also, this Allahabad HC case which throws light on the provision.
An example here is the DU Photocopy case saw a group of academics and students joining the suit as “impleaders” under the CPC).
Another way to participate is by being appointed as an “expert,” as given in the erstwhile Indian Evidence Act, 1872, or Section 39 of the Bhartiya Sakshya Adhiniyam. Similarly, as highlighted above, pertinent Rule 31 of the Delhi High Court IPR Division Rules, 2022 allows the court to seek “expert” assistance in IPR matters, including from individuals and institutions. Another interesting provision exists in the DHC Patent Rules empowering the court to “draw up a panel of “Advisors” to assist Judges in deciding patent suits, which explicitly includes academicians. An example here is Prof. Arul Scaria was appointed as an “expert” under Rule 31 Of the DHC IPD Rules in a copyright case by the Delhi High Court.
The third way is by being an “amicus curiae,” which is narrowly defined in the Supreme Court Rules (see Order 5 Rule 1(c) limited to cases involving “petitions or appeals from jail or unrepresented parties.” The same is presumably true for High Court rules in various states. Moreover, these rules make only Advocates, (i.e., those who are enrolled in the bar and practice in courts) eligible for this role. Interestingly, the term “academic intervenor,” or more accurately, “intervenor-cum-amicus”, as used by the Supreme Court to describe Professor Basheer in the Novartis case, isn’t a legal term as such.
In the U.S., filing amicus briefs is a more common practice than in India, and the requirements for such filings are provided in the US Supreme Court Rules 33.1, 34, and other courts’ rules. Rule 37(1) specifies that an amicus brief should bring new and relevant information to the Court’s attention that has not been raised by the parties involved. Also, the party has to seek the Court’s leave to file the brief. Importantly, as in India, the US law requires such amicus to be attorneys admitted to practice.
Final Thoughts
In sum, the idea of “amicus curiae” in India, as in the US, is institutionalized to be a role for lawyers. As I mentioned in the beginning, this leaves us with two types of engagement with court decisions by IP professors: first, through active participation by requesting to participate as per CPC, examples are the DU Photocopy and Novartis cases; or second, by being appointed as an expert by the Court, like Prof. Scaria.
This is where things get a tad tricky. For one, unlike the USA, Indian full-time academics are barred from practice in the courts so technically they cannot be amicus curiae as they cannot be advocates. The issue received attention in Anees Ahmed And Anr. vs University Of Delhi And Ors which negatively answered the question of whether a faculty member in the Faculty of Law at the University of Delhi can enroll as an advocate, appear in court, and simultaneously fulfill hir responsibilities as a full-time faculty member. Reliance was placed, among other laws, on Rule 3 Advocates (Right To Take Up Law Teaching) Rules, 1979 which gives a practicing Advocate a right to teach law not exceeding three hours a day. However, Professor Basheer, in his petition to the Bar Council, argued that this case was per incuriam and made a convincing case for allowing legal academics to practice law.
