Vivian Fernandes of Smart Agriculture has brought to light a recent development in the ongoing litigation between Monsanto and Nuziveedu. As we reported earlier, Monsanto sued Nuziveedu for patent and trademark infringement before the Delhi High Court. A Single Judge of the high Court declined to grant an interim injunction and the matter was appealed to a Division Bench of the High Court.
As per Fernandes, during the hearings, the Additional Solicitor General Tushar Mehta “wanted to make a voluminous submission to the Delhi High Court on why the patent act which gives licensing and pricing freedom to developers of genetically-modified plant traits should be superseded by the plant varieties protection act.” In other words, the ASG was coming down on the side of Nuziveedu.
The Division Bench reportedly refused to take the written submissions by the ASG on the record and directed him to file an application which the principal parties would be at liberty to dispute. What is most striking in Fernandes’s report, is that his sources from the Ministry of Agriculture have told him that the “ASG’s opinion was not vetted by the Ministry and that the former does not have reason to intervene in a private dispute”. Who then authorised the ASG to make the submissions that he made before the High Court?
In order to understand the magnitude of this scandal it is necessary to start with the basics about the role and function of the ASG.
Additional Solicitor Generals, like Tushar Mehta, are appointed by the President on the advice of the Cabinet under Article 309 of the Constitution. More pertinently the appointments are made under the Law Officer (Conditions of Service) Rules, 1987 which draws its power from Article 309. It is the duty of these law officers to advice the government and defend it before the Supreme Court and High Courts in all kinds of legal proceedings. The Solicitor Generals appointed under Article 309, represent the cream of the government’s army of lawyers and are usually fielded by the government in high stakes litigation. As per the rules referred to above, these law officers may not advise any Ministry or Department of Government of India unless approval is received through the Ministry of Law and Justice, Department of Legal Affairs. Once such approval is received, the ASG is still required to follow orders issued by the Ministry that he is representing in court because a bureaucrat from the Ministry has to sign an affidavit attesting to the government’s submissions. Usually, the bureaucrat is an under-secretary, although the Supreme Court has recently reprimanded the government for not making the more senior bureaucrats sign any affidavits.
For Tushar Mehta to make the submissions that he did, he required permission from three Ministries. The first being the Law Ministry, as explained above. The second being the Ministry of Agriculture, which under the Allocation of Business (Government of India) Rules, 1961 is responsible for administering the Protection of Plant Varieties and Farmer’s Rights Act (PPVFRA). Any interpretation of the legislation has to be cleared by the government. Finally, the ASG also required permission from the Department of Industrial Promotion and Policy (DIPP), which functions under the Ministry of Commerce and is responsible, under the Allocation of Business Rules, for administering the Patents Act. Since the ASG had proffered an interpretation of the Patents Act, it follows that he would have to seek permission of the DIPP before making any submission before the Court.
Of the three ministries mentioned above, Fernandes cites an anonymous source to claim that the Ministry of Agriculture has not “vetted the opinion of the ASG” and that it has no intention of getting involved in a private dispute. I’m wary of relying on anonymous sources. Of the other two ministries, we don’t know yet but it is highly unlikely that the DIPP has authorised the ASG to make the submissions that he made. As explained above, any pleadings filed before Court are required to be accompanied by an affidavit of the relevant ministry. So it should not be too difficult to confirm whether the DIPP or the Ministry of Agriculture has filed an affidavit. If it turns out that even the DIPP has not filed an affidavit, it follows that the ASG had no authorisation to make the submission that he did and he should face the logical consequences of his action. However given that the Attorney General himself has been brazing his way through his own ethics scandals without so much as batting an eyelid, it is quite obvious that nobody in this government will raise a finger against ASG Tushar Mehta, more so since he is a long-time confidant of Prime Minister Modi, back from his days as Chief Minister of Gujarat.
Separate from the issue of propriety, there is also the question of whether the Central Government can seek to intervene at the stage of an appeal in litigation between two private parties. I don’t see any provision in the Code of Civil Procedure, 1908 that allows the central government to implead itself into an appeal. It remains to seen whether the government files a formal application with an affidavit of the central government seeking to implead itself into the litigation.