Pondering Judicial Recusals


recuse |riˈkyoōz| verb [ trans. ]
challenge (a judge, prosecutor, or juror) as unqualified to perform legal duties because of a possible conflict of interest or lack of impartiality

Recuse: a word that is foremost in the minds of many in the Indian IP community and perhaps beyond….a community that is closely watching the outcome of a protracted and highly contentious patent litigation, that has been mired in one controversy after another for the last 8 years or so.

Recuse: a term that has captured our imagination after the recent firing of a lethal salvo by public health activists who questioned the impartiality of a Supreme Court judge owing to his attendance at sponsored educational conferences.

The timing of the letter containing these allegations and the manner in which it was sent directly to the government and produced in the press without any prior intimation to the judge or the Chief Justice leads to some cause for consternation. Was the letter written in good faith owing to a genuine apprehension of bias, or was it done to stall the proceedings? It must be borne in mind that any delays are advantageous to one set of IP stakeholders litigating this dispute. However, let’s leave these contentious issues to the side for a moment and focus instead on the wider policy issues surrounding the norms/rules relating to recusal.

SpicyIP first linked up to a TOI report on this issue and later posted the text of the letter calling for the recusal.

The crux of the letter is that the Hon’ble judge cannot be expected to impartially adjudicate upon the Novartis patent dispute for two reasons:

i) he attended conferences that were sponsored by an industry association (IPO), which counts Novartis as one amongst its members.
ii) he made statements during the said conference that lead to an apprehension of “bias”.

Conferences and Sponsorship:

As for the first issue relating to conferences and sponsorship, I’m afraid I have no clear answers at this stage. Rather, contrary to my calling, which requires that I profess, let me simply ask a few questions and hope that we find answers in the days to come:

1. Are there any rules relating to recusal that guide our judges at the present moment? This article by Manoj Mitta refers to “Restatement of Judicial Values” and a “Bangalore Code of Judicial Conduct” that apply to judges.

Do these codes contain anything pertaining to the attendance of conferences and events? And if there are no such prior rules on this count, could the judges’ conduct be characterised as blameworthy at all? Or are there higher moral norms that ought to have been applicable irrespective of whether or not specific rules of conduct have been framed in this regard?

2. Does one have to examine whether or not the allegedly tainted IPO conference dealt with the case at hand? Or ought the judge to recuse himself merely because he attended the conference; it does not matter whether the conference dealt with the Novartis patent dispute. Does the role of Novartis within IPO (the organisation that sponsored the conference) matter? Or is it sufficient that it was a member of the organisation. The letter alleges that Novartis is a corporate member of the IPO. Apart from this, I checked the link containing the judges’ proceedings and it turns out that Novartis also indirectly funded the event in its capacity as a member of Interpat, an association of pharma companies, comprising of leading pharma companies such as Novartis and Roche.

Should we even bother looking at the link between Novartis, the conference organisers, the conference itself and its relation to the case at hand (the Glivec patent dispute) or should the rules simply state that any sponsorship/organisation of an event, whether direct or indirect ought to be a ground for recusal?

3. And this leads to the broader question: Should any conference that is even remotely funded by an IP stakeholder be reason enough for a judge to recuse himself from a matter that concerned that particular stakeholder? In other words, ought a judge to restrain himself from attending any conference or workshop or event organised by either industry or public health groups or even lawyers or lawyer associations. What about Universities and academic institutions? Would Universities be considered neutral bodies, assuming its conferences and workshops receive no sponsorship from any IP stakeholder? How about associations that claim to be working in “public interest”? Are they neutral bodies?

4. Would it make a difference if a judges’ travel and hospitality were not funded by any specific IP stakeholder, but the judge either drew funds from his own pocket (a very very unlikely event) or was funded by the government of India i.e. tax payers money? Or would mere attendance at the event itself (irrespective of whether the judge funded himself) be reason enough to taint the judge?

What if the judge travelled on his own funds, but had lunch at the venue (the said lunch being funded by the organiser). What about a cup of tea? Would a de minimis rule operate here, as it does in many other areas of law?

5. What about norms in other countries? What do they state in this regard? The IPO judges conclave was attended by around 20-30 other judges from different parts of the world and the donors/members of IPO include major global giants such as General Electric, Microsoft, 3M, Johnson and Johnson, Caterpillar, Philips etc. Does this mean that none of these 30 judges can decide any case relating to any of these companies? The judges include some of the most reputed IP judges in the world today, including Justice Robin Jacob of the UK and Justice Rader of the US.

To what extent should India borrow from any prevalent international norms in this area? Will the fact that we face huge challenges in terms of pendency and a serious resource crunch in terms of well qualified judges mean that we cannot afford to be as strict as some of the others on this issue? Or do we aim for the highest possible moral norm and the widest possible norm relating to recusal?

6. Are recusals a mere matter of “perception” and first impressions, which could be rebutted with “facts”?

It bears noting that the Indian judges that attended these IPO judicial conclaves are Justice Dalveer Bhandari and Justice Mukundakam Sharma (both of the Supreme Court). Interestingly enough, a bench consisting of these very same judges refused to admit Roche’s special leave petition in the Roche vs Tarceva patent injunction matter.

After failing to procure an injunction from either the first instance judge or the Division bench of the Delhi High Court, Roche took the matter to the Supreme Court, arguing that it was entitled to an injunction. The Court refused to even admit the matter and sent Roche back to the trial courts! It must be noted that Roche is also a corporate member of the IPO which organised the Judges Conference. Would this fact have any bearing on our assessment of whether the judge is capable of impartially adjudicating upon patent cases involving IPO members?

7. How would norms of recusal apply if we found that the judge were to use some product or service belonging to the IP stakeholder? Eg. could a judge that drives a Tata Indica decide a trademark dispute involving Tata Indica? Or even Tata?

8. What about rules of recusal in terms of personal association? If a judge had practiced earlier in a law firm, can he adjudicate upon a matter involving a client represented by the law firm in question? How about matters handled by a law firm in which the son/daughter of a judge works? What is the extent to which the “relationship” nexus ought to extend?

If I sit as a judge and it turns out that the counsel before me is my brother in laws’ fathers’ third cousin, ought I to recuse myself? And what if a judge is known to attend social events regularly with a certain lawyer or lawyers? Would all social associations of the judge come under the scanner–who he plays golf with, has dinner with and/or watches a movie with? Ought judges to be reduced to social recluses? Ought they to sever all past relationships and friendships? More so with the members of the bar, from which many of them emanate? Since anyone that they mingle with today could potentially be associated with a law suit tomorrow?

For those interested, the notorious duck hunting incident involving Dick Cheney and Justice Scalia will provide some factual fodder for thinking through this “socialisation” issue.

9. And if at all a recusal issue is to be raised, who is to raise it? One of the parties? Or any member of the public? And if the issue is to be raised, should it be directly addressed to the judge in question? Or should it be a complaint to the Chief Justice? Or to the government? If a member of the public raises such an issue, what is the modality? Can they or should they take it to the press even before bringing it to the notice of the judge?

10. Lastly, if we find that the judge has suddenly become an “interested” party owing to his association with one of the stakeholders (via a sponsored conference, a close relative etc), would the solution always be to recuse himself? Can he continue if the parties permit him, as was done in the Reliance and Vedanta cases? Or could he merely issue a statement of interest at the end of his decision, as is common in the scientific community, where authors routinely declare any potential conflicts of interest at the end of their piece.

For those interested in some academic scholarship on these issues, see this article here which discusses the duck hunting case and several others within a US context. And we have a book on this theme as well which appears to provide a wider international perspective.

The Allegedly Damning Statements:

As for the allegedly damning statements made by the judge, I’m not so sure that I even see a problem. As I mentioned in my last post, Justice Bhandari advocated the educating of “people regarding the importance of the protection of IP rights” and stated they should “make all efforts to ensure that all countries are persuaded to enact proper laws”. For those interested, here is a link to the text of his paper and I reproduce below the statements in full:

“The Government and holders of IP Rights can jointly play an important role in educating the masses that IP Rights protection is not only an economic issue, but a health and safety issue as well. Counterfeit food products and counterfeit pharmaceuticals at times have resulted in deaths.

Majority of pharmaceutical patents holders and IPR holders are from developed countries. They have bounden duty and obligation to educate people regarding the importance of the protection of IP Rights by organizing seminars, symposia, debates on regular interval. They must make all efforts to ensure that all countries are persuaded to enact proper laws. They must also create awareness about the existing laws to the people. The Judiciary and the Executive should properly implement the laws.”

The letter calling for his recusal alleges that the above statements are “in conflict with the intent and letter of the Indian Patent Act”?

I’m not entirely sure how these statements advocating that the public be educated on IP issues and that countries enact proper laws is against the “intent and letter of the Indian Patents Act”. Unless one were of the view that IP laws itself were problematic, in which case, wouldn’t the proper forum for redressal be the Parliament, which enacted these laws in the first place? Why cast aspersions on the integrity of a judge?

Or perhaps I am missing something here?

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

7 comments.

  1. AvatarRajita Sharma, Partner, Finers Stephens Innocent, UK

    What utter shambles and what an insult to the intelligence and integrity of a judge in the highest Court of the country. It sends a very negative message. In the UK judges attend conferences, they speak at conferences organised and sponsored by law firms and corporate organisations. Judges mingle with barristers/solicitors who appear before them- they do not recuse themselves on these grounds and no one in my knowledge has applied on these grounds or doubted a judge’s integrity for these reasons. I can understand that there are tactics and strategies used in contentious and bitter disputes but this……the mind boggles!

    Reply
  2. AvatarAnonymous

    Dear Shamnad, Some very good points made here, but you must be careful about putting a post like this here. Next thing you know, these same chaps will be saying in the Press that you are a Novartis crony!!

    Reply
  3. AvatarShamnad Basheer

    Dear Anon:

    I know they will say this. I fully expect it…. But should I really care? They’ve morally intimidated everyone else around them. Shouldn’t there be someone standing upto them? Or should we all take fright and run for cover in the light of these increasing witch hunts….reminds me of the McCarthy era in the US, where anyone who stood upto McCarthy was tainted as a communist!

    But don’t get me wrong. I have great regard for some of these activists and the wonderful work they do for the benefit of poor patients. They have their hearts in the right place and god bless them. But there are others who have lost all sense of fair play and decency. They will stop at nothing to tarnish the reputation of anyone who disagrees with them.

    This rabid extremist category poses a huge threat to the freedom of speech and rule of law in this country and I do hope that they will see better reason in the days to come. Till then, I chose to not engage with them on these issues. There is simply no point.

    My last work on pharma patents will be this intervention petition before the Supreme Court, where I will argue that section 3(d) ought to be limited to derivates that demonstrate clear “therapeutic efficacy”. If only they realised that 90% of my petition actually favours them! If at all anyone should be worried about my stand on this issue, it is Novartis. The only place where I disagree with the activists is their proposition that patents can be denied on the grounds of drug pricing. That is a clearly fanciful proposition that has no basis in Indian patent law. Or for that matter, in the law of any other country!

    If you peruse my writings, you will see that I have always taken an independent issue based approach. On some issues, I fall on the side of the activists. And on others, on the side of their opponents. But that perhaps is the very essence of academic freedom, a freedom that they are desperately out to destroy. In the past, I have taken on the pharmaceutical majors for their attempts at pressuring India to adopt data exclusivity and drug patent linkage norms. And exposed them for failing to comply with patent working requirements under Form 27. And taken issue with ex parte injunctions that they routinely procure from courts. On the other side of the fence, I have taken on some of these activists who engage in ad hominem attacks to conceal the fact that they are ill equipped to argue on the merits. The Bard may perhaps have had this category of rabid activists in mind, when he exclaimed: “O judgment! thou art fled to brutish beasts. And men have lost their reason.”

    I seriously hope things change in future and reason comes back to haunt these men (and women, if I may add). Future days, when we might have less emotional rhetoric and ad hominem attacks and more of a reasoned debate. Till then, goodnight, and goodluck (a deliberate play on the name of a movie dealing with the McCarthy witch hunt days).

    Reply
  4. AvatarShamnad Basheer

    Thanks Rajitha and Adithya for your comments,

    I am trying to get a sense of laws/norms from other countries that have thought through these issues in greater detail and articulated them into codes of conduct etc. So if you come across any code of conduct from any jurisdiction, please do pass it on.

    Tks for sharing the interesting article Adithya. As you know, Andhyarujina, the author of the piece is one of the counsels in this case.

    Reply
  5. AvatarShamnad Basheer

    Tks again for all your comments.

    The only norm that I seem to have got clear in my head so far as I think through these complex issues, is that judges should be free to attend any event or conference, provided that their travel/hospitality is not funded by any IP stakeholder. They have a right to attend these events and make up their own mind. Let industry organise conferences. Let the activists also organise conferences. And let judges be free to attend any of them and benefit from each stakeholder perspective, so long as the government of India pays. What do you think?

    Reply
  6. AvatarS

    Valid points are raised in this post. I wish to mention a couple of things.

    The letter from the activists does not stand strong and there should be no reason to disqualify a judge on the given grounds. “Conflict of interest” is a different issue which should not be related to this case unless any of the parties are related to the judge or judge has some interest in the outcome.

    Secondly, I do not see any point in why the judge should be restricted on his extra-judicial activities. Judges of the apex court are learned people. It is possible that they may get invited by various national/international education organizations/universities or for conferences, confluences arranged by the stakeholders, NGOs, etc. The important things on which one should focus, are 1) who invites him, 2) what is delivered by him during that program and 3) that it is an open/paid program for interested people/students and not a personal meeting by interested parties. Who pays?? the government or else someone is not that significant.
    He is a judge and he is spending some of his valuable time for the people who have come for it. So who so ever organizes it, is bound to offer an honorarium.

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