Guest Post: IP conferences, judges & ethics: A presumption of bias?

Prashant Reddy has for our readers a very well worded post which addresses the issue of the general perception that judges may become bias after attending industry sponsored conferences, in a very perceptive manner. His observation of this issue provides an alternate view to an earlier post on the same issue here.

Prashant is an independent IP consultant. He was an integral part of SpicyIP for many years and is a prolific writer!

IP Conferences, judges & ethics: A presumption of bias?

Prashant Reddy

Intellectual property (IP) law has been controversy’s child in India for quite some time now. One of the distinct subsets of these various controversies surrounding IP law, as experienced in the recent opposition to an ASSOCHAM conference on IP and competition law has been the attendance by judges and other quasi-judicial adjudicators of industry sponsored conferences on IP law. For the last 5 years now, non-governmental organizations, both foreign and Indian (some with foreign funding), have made it a ritual to release a jointly signed letter, a few days before the commencement of an industry sponsored conference on IP law, protesting against judges or quasi-judicial adjudicators attending such conferences. Sometime these letters do result in participants withdrawing from the conference in the last minute, while in almost all cases these NGOs have drawn dangerously ambiguous lines of public morality for judges and quasi-judicial adjudicators.

The controversies

The first of these controversies was in March and June of 2010 when a broad coalition of American, Indian and foreign funded Indian NGOs sent jointly signed letters to the Indian government and the Dean of the George Washington University (GWU) protesting against an IP conference being held in India by GWU and the Confederation of Indian Industries (CII). The American NGOs accused the GWU conference of misrepresenting “an industry-centered perspective as an independent academic exercise” since the conference was funded by multinational pharmaceutical and software companies who were interested in certain specific outcomes that suited their commercial interests. Indian NGOs raised similar objections in a much stronger language, arguing “that it is highly unethical and inappropriate that a meeting organised and/or funded by such companies includes in it interactions with the Indian judiciary and patent office officials before whom are pending appeals filed by pharmaceutical companies against patent rejections decisions.”

Since those letters of protest in 2010 there have been more such controversies on a regular basis. In September, 2011 another letter by Indian NGOs which was published in the national press on the day the Supreme Court was to continue hearing arguments in the Novartis-Glivec case demanded the recusal of Justice Dalveer Bhandari because he had attended IP conferences sponsored by the Intellectual Property Owners Association (IPOA) of which Novartis was a member.  Justice Bhandari recused himself from that matter without providing reasons, despite already having heard several hours of argument. In the year 2014, Indian NGOs protested against a delegation from the IPOA meeting judges of the Delhi High Court, Intellectual Property Appellate Board (IPAB) and government officials. The protests worked and some of the meetings were cancelled. In 2015, Indian NGOs once again publicly called on the Chairperson of the Competition Commission of India (CCI) to not attend an ASSOCHAM conference on IP and competition law because one of the sponsors of the conference was Ericsson which was being investigated by the CCI for the possible abuse of its “essential patents” in the telecom sector. As in the previous cases, the attendance of the conference by CCI Chairperson and officials was portrayed as an ethical issue which would “cast a dark shadow on the neutrality of CCI”.

The common sense argument against these tactics

Stripped of all their verbosity, each of these letters present only one issue: is there a danger of our judges and quasi-judicial adjudicators getting biased and losing their impartiality by merely attending industry sponsored conferences? The question that must of course precede any answer to the first question, is why does industry invite judges to such events? The answer to this could be widely varied: perhaps the organizers would like to have a diverse participation, perhaps organizers think judges will bring better press coverage, perhaps they want to educate judges, perhaps judges bring more legitimacy to the event and perhaps, presuming a worst case scenario, they actually do want to influence our judges by presenting one-sided arguments.

Now presuming that the worst case scenario described above is the true purpose of these conferences, should we as a society create an ethical rule prohibiting our judges from attending such conferences to prevent a situation where they are influenced by the industry. But where do we draw the line, once we get on to this slippery slope? Should we also control what our judges read in books or the internet or view on television? A judge’s mind could be “polluted” through any of these media but we obviously won’t create an ethical rule prohibiting them from accessing these media because common sense dictates that we begin our public discourse with the presumption that our judges are intelligent, trained, autonomous minds capable of distinguishing between sense and nonsense and that they will abide by a sense of judicial ethics.

Judicial ethics

The only code on judicial ethics that governs our judiciary currently is the “Restatement of Values in Judicial Life” adopted by the Full Court of the Supreme Court on May 7^th, 1997. Rule 8 of this Code states “A Judge shall not enter into a public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.” Does this prohibit judges from attending conferences? Certainly not – a judge can attend a conference and participate in it without violating this rule. So far none of the above cited NGOs have ever referred to this code of judicial ethics while opposing these conferences, presumably because the rule doesn’t prohibit judges attending conferences.

Earlier, in that very same decade, the Supreme Court while deciding a case on the service conditions of the subordinate judiciary, had tangentially touched on the expected conduct of a judge. It quoted with approval from the 14^th report of the Law Commission which had said that “a Judge has to maintain an aloofness amounting almost to self imposed isolation”. This requirement too has been included the “Restatement of Values in Judicial Life”. The code says “A Judge should practice a degree of aloofness consistent with the dignity of his office.” Is attending an industry sponsored conference consistent with the dignity of his office? Yes, absolutely – as long as no undue hospitality is being accepted by judges, and their conduct is in keeping with judicial values, they should be allowed to attend industry sponsored conferences. If the idea is that a judge should not be seen at events being hosted by potential litigants, what are we to do with the sight of judges attending government sponsored events. The government is the biggest litigant in India’s courts. At the end of the day, any code of ethics, has to be understood in a particular context and with a pinch of common sense. In my book, common sense dictates that we begin with the presumption that our judges are impartial and not the other way round because there is no evidence to suggest that judges lose their objectivity by merely attending a conference.

More discussion and less posturing  

In the polarized field of intellectual property law, there is a dearth of discussion and scholarship in India. As stakeholders in the IP debate, private enterprise has every right to fund conferences in whatever format as long as basic norms of transparency are adhered to by the industry. If such conferences create space for more discussion and debate, they should be encouraged and judges should be allowed to participate in these conferences – knowledge never hurt anybody. We can’t work on the presumption that our judges are going to believe everything they see and hear in these conferences. These are men and women who hear lawyers argue in court every day and they certainly know how to separate sense from nonsense. What we do not need are public letters by NGOs which manufacture artificial standards of judicial ethics, which don’t appeal to even basic common sense.