Originally, this post was supposed to be one on the procurement of legal services by the Central Government and other statutory bodies. The reason for this being that the Government has recently introduced in Parliament, for the first time, a Public Procurement Bill, 2012 which will have a major impact on the manner in which the Central Government procures goods and services with public money. This would include the legal services of IP lawyers. Prior to this Bill, all Central Government bodies used to procure goods and services under the General Financial Rules, 2005 which although elaborate was not binding as they do not have the force of law.
However, unfortunately, given the replies that I have got to my RTI Applications from APEDA and Tea Board, I’m going to have to convert this post into yet another narration of how some elements of the Central Government bureaucracy are out to frustrate the very intention of the Right to Information Act, 2005.
(i) The original RTI Applications
Originally I had filed around 6 RTI Applications aimed at understanding how different government authorities were ‘procuring’ the services of IP lawyers. The targeted authorities and the scope of the RTI application are described below:
(a) The Trade Policy Division (TPD) of the Department of Commerce – For legal services procured in the WTO dispute with E.U. regarding the ‘in-transit’ pharma dispute;
(b) The Spices Board – For legal services procured towards advising and securing various Geographical Indications (G.I.) before the G.I. Registry;
(c) The Coffee Board – For legal services procured towards advising and securing various G.I.s before the G.I. Registry;
(d) The Tea Board – For legal services procured towards advising and securing the registration of ‘Darjeeling Tea’ as a G.I.;
(e) The Agriculture & Processed Food Products Export Development Authority (APEDA)- For legal services procured towards advising and securing the registration of ‘Basmati’ as a G.I.;
(f) APEDA for legal services procured towards advising and defending the ‘Basmati’ mark in various countries.
(ii) The response from the Spices Board, the Coffee Board and TPD
The TPD, the Spices Board and the Coffee Board readily disclosed the details of how they selected the lawyers in question and the public expenditure towards meeting the professional fees of the lawyers in question. With regard to the TPD, I’ve already discussed the details in an earlier post.
With regard to the Spices Board, the reply states that the law firm Anand & Anand charged a sum of around Rs. 1,37,250 for securing 5 G.I. Registrations in India. The reply can be accessed over here.
With regard to the Coffee Board, the reply states that the law firm K&S Partners charges a sum of around Rs. 33,100 for securing 2 G.I. Registrations in India. The reply can be accessed over here.
For a list of the original questions, which were almost identical for all the public authorities, please refer to the reply of the Coffee Board, which reproduces my original queries along with their answers.
(iii) The response from APEDA & the Tea Board
In their replies, APEDA (over here & here) & the Tea Board (over here) refuse to provide any details on how much public money they have spent towards meeting the professional fees of their lawyers in all three cases on the grounds that it would violate the ‘commercial confidence’ of their lawyers – K& Partners!
The entire raison d’être of the RTI Act, 2005 is to audit public expenditure of the Government! Further as pointed out above, the Coffee Board, the Spices Board and the TPD, operating under the same Ministry, have readily disclosed their expenditure on identical services. Also do not forget that APEDA’s tendering process for ‘basmati’ was mired in controversy. We had covered that controversy over here. There is thus an exceptional public interest in auditing the legal expenses incurred by APEDA in protecting ‘basmati’.
How in god’s name then can APEDA and Tea Board decline to provide such details on the grounds that it would violate the commercial confidence of a private law firm?
The mockery of the RTI Act, however lies in the fact that APEDA & Tea Board have outsourced the task of replying to RTI Applications to an external law-firm, which in this case is K&S Partners. In effect, this is what happened – I asked APEDA & the Tea Board, how much do you spend on K&S Partners and they referred the application to K&S Partners which very predictably came to the conclusion that APEDA & Tea Board could not disclose this information because to do so would violate the commercial confidential information of K&S Partners! How can APEDA & Tea Board outsource sovereign functions such as replying to RTI applications to private bodies? If APEDA & Tea Board wanted a legal opinion on the RTI Application it should have been referred to the Law Ministry. Or at the very least they should outsourced it to a law firm which did not suffer from a conflict of interest.
The reason I know they have referred it to their lawyers is because in the very last question of all the RTI applications, I asked all the public authorities, with the exception of the TPD, whether they would be referring the RTIs to their lawyers who were representing them before the G.I. Registry.
While the Coffee Board and Spices Board replied in the negative to this last question i.e. they did not refer the RTI application to external lawyers, APEDA replied in the affirmative stating that they would refer this application to their lawyers. The Tea Board in its reply stated that they did not refer the RTI to their lawyers but if you compare the ‘Basmati’ (TM issues) reply of APEDA (over here) and the ‘Darjeeling Tea’ reply of the Tea Board (over here) you will notice that the answers to questions (i), (ii) & (vi) are almost identical with the word ‘basmati’ replaced with the word ‘Darjeeling Tea’. It is beyond doubt that K&S Partners drafted both replies.
Which then raises the question – Why does the Tea Board deny referring the RTI Application to their lawyers? Did they know that it was wrong to do so and thus made a conscious effort to cover up their tracks? What if I were to inspect the entire RTI file at the Tea Board? Are they going to destroy all the file-notings and correspondence with their lawyers?
For the last 6 months, Sumathi and I have been trying to get information from APEDA and the G.I. Registry on ‘Basmati’ & ‘Darjeeling Tea’. However each and every one of our application has hit a dead end with either APEDA or the G.I. Registry finding any excuse to deny us information. Why are both these public authorities so unwilling to share any information on these G.I.s? What is it that they are hiding from public scrutiny?
Similar kind of mockery has happened in the Patiala House court. A particular IP Firm files cases in the court of a particular ADJ and invariably gets the ex parte injunction orders and also the appointment of Local Commissioners. The Jurisdiction is always created one. Wherever she is transferred, the cases of that IP firm are filed in that jurisdiction which jurisdiction again is created one. (She was in Patiala House Courts in 2010, the cases were filed in Patiala House Courts, when she was transferred to Saket Court, the cases stated to be filed in Saket Courts and now when she is in Patiala House Courts again, the cases have started filed in Patiala Hosue Courts.)
RTI applications were filed getting the information in details about the cases filed by that IP Firm in Patiala House Courts and Saket Courts. The concerned counsel appeared in the hearings which took place from time to time. There was no official information sent to the counsel, but he appeared and even filed written objections to the applications under RTI, both in Patiala House and in Saket. Now the information has been refused to be given on the similar ground as given by the APEDA and TEA BOARD.