As promised in our new year post on the relativity of “newness” (and the impending death of the patent system), we bring to you our freshly minted SpicyIP Interview series. And who better to kick this off than the inimitable Justice Prabha Sridevan.
She hardly needs an introduction, as her legacy is stamped indelibly on many a fine Indian IP decision (which she penned both as high court judge and later, as the Chairman of the Intellectual Property Appellate Tribunal[IPAB]). Her more elaborate profile can be found in our link here (we will be creating more profiles of leading IP personas on this page as the days go by).
As someone who dons several hats (judge, public speaker, translator, writer, activist, artist etc), I’m always amazed at how much she manages to pack into a routine 24 hour day. A question that I posed to her in the interview below. So dive deep in to savour the thoughtful responses of one of the leading lights in Indian IP. As she rightly notes (in the context of the ever controversial “tribunal” business):
“I frankly think that creating tribunals is a “silent” process of diminishing the judicial turf. Judges have assisted it, I must confess sadly.”
But her wisdom is not limited to IP alone, but traverses the wide domain of law and social justice. When asked about her constant battle to secure gender justice, this is what she had to say:
“How does one teach respect for the fellow human being? Dr. Ambedkar was very doubtful if we would ever learn fraternity. If fraternity informs all our actions, then equality will manifest at once; fraternity which tells us how we should treat another, regardless of the difference in gender, caste, creed, ability or sexuality. We have a long way to go.”
Before I sign her over to you, let me thank Pankhuri, our managing editor, for helping me put this together.
Justice Prabha Sridevan Interview
1. Tell us a bit about yourself. Who exactly is Prabha Sridevan? Given all the hats she wears….judge, public intellectual, humanist, translator of tamil literature, feminist, artist etc.
That’s a tough question. “Who am I” is a philosophical puzzle. Born in an educated well-known family in Chennai, I was blessed with much that came unearned. I certainly did not chart out this path, it came my way. My life has been in part a “guided tour”, in part a sail the way the wind blew.
When I was six, I wanted to be a brick layer, fascinated by the smell of the wet cement, the roughness of the brick, the sound of the slosh as the cement was slapped on the bricks, and the sight of the bricks being laid in order. In my family, there were writers both in Tamizh and English, lawyers, a judge, women of strength, music lovers and public spirited individuals. I guess I owe something to all of them. But there are elements of that brick-laying business in what I have done with my life. Still those elements may not have taken the shape of this Prabha Sridevan of now, but for Mr Sridevan’s (my husband) death. It was sudden and he was a radiant person. It was unfair and I was unprepared. I changed from being a happy tag-along. I drew up on some unknown reserves of whatever within me. I am not sure it was a conscious process, but I know it has happened.
2. How did you come into law? What drew you to this world?
By sheer accident. My two great-grandfathers were celebrated lawyers. But I had no ambition in that direction. I married a lawyer. One evening when he returned from Court, my husband asked me: why don’t you do law? I said: Sure! I joined the law college. This is a bit of the guided tour and a bit of the wind-sail, isn’t it?
3. How did you come into the esoteric world of IP?
I’m going to sound like a parrot, if I say “by sheer accident” again. I don’t remember doing any IP case as a lawyer. As a judge, I was given the original side roster, and I heard some trademark cases, passing off mainly.
I heard an appeal in a patent case along with Justice Jaisimha Babu (I sat with him soon after my elevation, so my mentor in a manner of speaking). It was a patent for an idli grinder. I really did not think I was dealing with IP law. Then came Novartis. I was in Madurai, when Justice A.P.Shah (then Chief Justice, Madras High Court) called me and said he was forming a special Bench to hear the Novartis case.
Justice R. Balasubramaniam and I heard the challenge to the constitutionality of S. 3(d) and the appeal against the rejection of the patent application for Glivec. We had decided that he would write the judgment on constitutionality and I would write the judgment on the patentability.
But it came to pass that while we were hearing the case, the IPAB was created and all appeals stood transferred to IPAB. So we had to give only one judgment. Who would have thought that I would head that IPAB a few years on, and S. 3(d) would write itself on my mind and heart?
There is a pattern in the way events happen. Hearing Novartis was an unforgettable experience. Activists and reporters crowded the court hall and it was not even a murder case!
The questions we asked the lawyers and the responses were reported by newspapers. Quite exciting! So you may say I entered the IP world with a bang. After that all was quiet. Of course there were always the trademark suits and appeals.
I retired in 2010. Early 2011, I had a call from Mr. Jairam Ramesh, then Minister of Environment, out of the blue. He asked me if I would be interested in being a member of the National Green tribunal which was about to be set up. I said yes. This was being part of history of our environment jurisprudence. Then things took time as the Chairman had to be first appointed and then the members. But before that, the Chief Justice of India Justice Kapadia called me to ask if I would head the IPAB. He gave me a day to think over. I said yes. I did not know the length and breadth of the effect this decision was going to have on me.
It was much like what Keats felt when he came to Chapman’s Homer.. like some sky watcher when a new planet swims into his ken.. like Cortez when he saw the Pacific. I stood or should I say “sat” with wild surmise upon a peak in Darien? The entry into this IP world gave me an unequalled experience, truly the riches of an immeasurable Pacific.
4. Now that you’ve waded quite deep into the IP world, what do you make of it?
A caveat. I will not say ‘quite deep’, but yes, I’ve had a close encounter of an uncommon kind! My acquaintance is limited to lawyers in India, and IP professors like you, Prof. Basheer. I have only heard cases relating to trademarks, patents and G.I. Copyright is a huge field, and there what I do not know is as much as the ocean to paraphrase from our Tirukkural.
As I have repeated ad nauseam, one size does not fit all in IP. We need a calibrated approach for each kind of IP, which will make the soil fertile for creation and innovation, and fences to the extent necessary.
When I say fences only to a limited extent, the subtext is the openness to secure public interest. There used to be a popular serial where the character kept asking “Yeh kya ho rahaa hai?”. IP rights were created only so that there could be some reward for what has been created, innovated in public interest. The reward follows public interest. Public interest is not an also ran, while the Rewards whisks away the trophy. Yeh kya ho raha hai?
It’s not even an even field! The dice is loaded against the R. K. Laxman man, and he has the perennial puzzled expression.
I am told that the lawyers who appear against the big names and big corporations are dwindling. I hope this is not true. If it is, then the judges must take a more pro-active role to bring the high priests down the ladder, and align the issue more in tune with the Constitution. But the numerous orders granting injunction in IP cases tell me a sad story. Even in a run-of-the-mill civil case, interim injunction cannot be granted for the asking. Then how are we doing so in IP matters?
5. By most accounts, your tenure at the IPAB was a hugely impactful one. As the Chairman of this specialist tribunal, you lent much needed credibility and respectability to a body that was otherwise heavily criticised from the start. What was the experience like?
Thank you for saying so, though the fact is that some very important cases like the Nexavar compulsory license came for hearing during that time (2011-2013), which lent it a certain aura.
As a judge, I had a very faint acquaintance with the administrative functions of the judiciary. But in the IPAB, it was a battle from the beginning. Governments think that announcing that a tribunal will be set up is a fiat lux statement. It takes care of everything. Sorry, it does not!
The effectiveness of a tribunal which is meant to be in lieu of a High Court depends not only on the orders passed by the authority, but also on the degree of independence that is institutionalized and the infra-structural sufficiency.
I frankly think that creating tribunals is a “silent” process of diminishing the judicial turf. Judges have assisted it, I must confess sadly. Then again this assistance is not a whole-hearted one. The High Court’s power of review is retained. So what has the public got?
There is an extra road to cross before they reach the goal, and a winding road, too. I had to fight to strengthen the infrastructure. I did not meet with much success. I met virtually every Minister who had anything to do with IPAB. They treated me with great respect, but the result did not match the respect, because every decision had to go through a bureaucratic maze. Why can’t things be simpler?
I have said before and I say it to you now the IPAB is the most important tribunal from a global perspective. When I adjourned the Pegasys case, it was reported in some newspaper abroad. Even Supreme Court’s adjournment orders are not followed like that. Please give it the respect it deserves, I tell the State. Then you will get the jurisprudence your people deserve. The selection of the members of IPAB must be by a committee headed by the Chairman of IPAB or a judge of a superior court. The Chairman can’t and shall not sit in a committee headed by the Secretary of the Ministry. I protested and refused to sit in the selection committee. They went ahead with the selection. Is this judicial independence? The answer, my friend, is blowin’ in the wind. The IPAB has to be strengthened to the hilt or scrapped. There is no half-way house.
6. In particular, what were your most memorable moments/cases at the IPAB?
Oh many, but I will mention a few.
i) The Nexavar compulsory license case: I dictated it non-stop for 6 hours. Until I started dictating, I had not decided what I would do with ‘working’. I had given it serious thought, that was all, but it really flowed there in situ you might say. I know it displeased both sides. So I must have been right, no?
And James Love was there tweeting as I droned on. I think it was this case or maybe it was Tykerb. I stopped him, he was not pleased!
ii) The Pegasys case: This is a very important one from the locus point of view. It did not hit the public eye. Countries like ours need an expanded understanding of “person aggrieved”, to make our people’s rights real.
iii) Red Label tea case: Mainly because I had Dr. Daruwalla arguing before me. His sotto voce comments to his junior and the way he argued I enjoyed absolutely.
iv) Payyanur Pavithra Mothiram case: Because it was the first ever G.I. case and I understood how important this IP was for our absolutely creative community of craftsmen and women, and also how far the legal process was for them.
v) Enercon case: Because I learnt a whole lot about electrical devices from the arguments. But more for the fact that it was this case that gave birth to “Ms. P. Sita”.
We said “Indian law expects the non-obviousness to be tested against this person and not the person who is the touchstone in U.S. Law. She is Ms. P. Sita (Person Skilled In The Art) and not Mr. Phosita or Mr. Posita who are both ordinary by definition!”
I had promised Naina Kapur that I would mark one for gender even in IP. This was the best I could do. I am not sure if Sita has got the prominence she deserves jurisprudence wise.
vi) Finally, the Thalappakatti case: Because my friends were quite tickled that as a pure vegetarian, I decided the ultimate-in-biriyani trademark. I had numerous calls,” Did you taste it before deciding?” Oh yeah. I provide much amusement for my friends.
7. What did you think of the quality of lawyering at the IPAB?
The lawyering was good. I had the opportunity to hear the members of the Bar of different High Courts. IP lawyers are a bit of a close club in every court, I think.
Since I have retired and out of stone’s throw range, I can safely say now that I found the Calcutta lawyers the best of the lot. Not aggressive, but assertive…very thorough, knew the facts, well and the law, fair, gave the Court the respect it deserved and were willing to be officers of the Court too if it was required and not just spokesmen for the client. I think this tells you what I expect from a good lawyer.
In one of my cases, I had two expert opinions submitted by opposing parties. I felt that the IPAB should appoint a neutral third expert to assist it. The lawyer for one party refused to agree to an Indian expert. Come on, are all our scientists duds? I expressed my displeasure in my order.
This search for what is the right conclusion is undoubtedly the judge’s job, but the lawyers play a fair role too. They should. But I must mention that when I formed a special bench to decide if the IPAB had the power of review and the power to grant interim orders, many lawyers, even seniors, came of their own accord and argued the question. They were not representing anyone. They generously shared their knowledge. It was a very satisfying moment. We need more of that spirit.
8. You’ve been a strong proponent of infusing more public interest and social justice into IP. What are the key challenges here and what should India do to usher in a more balanced IP regime?
I think I have answered the question a bit in an earlier answer. So long as the common law ethos prevails and the two lawyers think they are adversaries, the imbalance will continue. It is undeniable that public interest is a winner or loser in every case. Who speaks for that? If the judge imports some inquisitorial element into the proceedings, the jurisprudence will be richer. Appoint amici, ask experts to help. No judge can be master of all the fields that IP covers; it is not wrong to ask for help in the cause of justice.
9. You were one of the few to notice that even a people centric IP regime like GI was still elitist. And did not cater to the community of craftsmen etc to whom it was directed. Tell us a bit about this and how you strove to redress this in one of your decisions.
Step one: rewrite the G.I. Act. Please see who are the actors getting G.I.s registered? Does it conform to the spirit of the law? We have a special knack of skewing good intentions out of shape. The “paavapatta” craftsmen working the Payyanur Pavitra Mothiram after fasting for a week or something (It is mandatory. The ritual is quite tough) had no clue that someone had got the G.I. registered. Then we asked the lawyer to issue a publication in local newspaper much like land acquisition notices. The craftsmen wrote to me directly, they said that they did not have the wherewithal to travel from Payyanur to Chennai. We said that “In Intellectual Property Right related matters be it G.I., Patents or Trademarks the dispute is really not inter-partes alone, there is always the issue of public interest. The Geographical Indication Registrar and this Board must protect this public interest. The history of the Payyannur Pavithra Ring, as seen from the statements of all the parties before us shows that though there may be other Rings in the market called Pavithra Ring, this particular design and the manner in which the Ring is made is special to this area. But the application has not been properly filed and there are other shortcomings in the proceedings as well. Hence while removing the name of the respondent from the register, we send it back to the Geographical Indication Registrar.” (Subhash Jewellery v. Payyannur Pavithra Ring Artisans).
We directed the registrar to follow the procedure, hear all the parties and then decide. I must tell you that in the Payyanur case, the lawyers on both sides shed the adversarial roles and genuinely assisted us. Our appreciation has been recorded in the order.
I know Professor Prabuddha Ganguli is trying to reach the benefits to the makers of Muga silk. But it is just one G.I. in a G.I. rich country.
Step two: work the G.I. Act, so that it serves the producers of the concerned G.I. goods.
10. What makes you tick? And keeps you going even at this age? You seem to have a boundless reserve of energy. And you wear so many hats and continue to be involved in so many different domains. How do you keep up?
Prof. Basheer, I am not yet 70! No, just teasing you. Long ago when I was going to head the Criminal Appeal Bench, I was nervous and I called Justice K.T. Thomas and said “Sir! I am nervous.” He had retired by then. He answered “If you sit right, Justice Prabha, the answer will come to you.”
“Sitting right”: what a many layered phrase! I try to sit right always. I am not a permanent lark; I have my lows and I have found that doing something new pulls me out quickly.
There are so many blessings in my life and that positive energy is there to share. Translation is a recent discovery. I enjoyed translating the writer Chudamani’s short stories into English (published in the book ‘Seeing in the Dark’). Now another writer has asked me if I will translate his short stories. They are so different from what I have done thus far. I have to get into the skin of the writer when translating. I am sure it will be an adventure.
Drawing is a new found activity. I have to “sit right” for that too. It is so relaxing and curiously exciting at the same time. The unexpected bonus is they were auctioned for good causes: by Banyan and later by IDIA, the organization that you founded.
Now another organization which is doing good work for children has taken three of my drawings to raise funds. Must see what happens to them.
One reason why I “keep up” so well is the friendship factor. I dedicated my first book of translation to “My Tapestry of Friends” and the best friendships for me are where I laugh. I hope I “live”, till it is time to go.
11. Can you please reflect a bit on the process of judging? And what it really means to be a judge?
A very wise person who counseled me (no, not a psychiatrist or a psychologist) when I lost my husband said: “Channelise all this grief, anger, protest into something positive.” Those words have helped me. If you ask me if I enjoyed being a lawyer or a judge, my reply is the years as a judge were more fulfilling. As a lawyer, I may shout till I am blue, but if the judge does not get it, I lose. As a judge I could write what I believed in, into my opinions. In other words, make a positive change.
The “value” of a “home-maker” got written that way (National Insurance Co. Ltd. v. Minor Deepika). It was a spur of the moment spark, not an argued ground.
Our Novartis decision that efficacy is therapeutic efficacy was also born because we understood the nuance there. That definition has become very crucial as a precedent. Stopping the “desecration” of Yaanamalai was such a moment too. We said that not one pebble can be removed till we hear the case again. That gave the women of that area time to mobilize and lie down on the streets, daring the Govt. to approach the Yaanamalai over them. The Government retreated. An Ayer Rock like phenomenon was saved. The flip side of being a judge is that while a lawyer can choose her cases, a judge cannot. So wasn’t I lucky that I got Bayer, Da Vinci Code, Nathalie case where we considered the rights of the poor and mentally disturbed, and many others?
It is not every case that is a crowd stopper, some are. It is not every case that is clear-cut. If I wanted to convince the reader of the correctness of my conclusion, I worked on the first paragraph.
“Compulsory licence is not an unmentionable word”, I began in the Bayer case.
“She did not know the whys and the wherefores for their acts, but she knew what she had seen.” in a case where the daughter was the sole eye witness to her father’s murder (Sheikh Sintha Madhar v. The State Represented by Inspector of Police).
“Little Mohanapriya, aged three, died not for any fault of hers, but because she was a hindrance to the amorous activities of the appellants” and the appellants were her mother and her lover (Palanivel v. State Inspector of Police).
“Milton’s voice was not stifled or choked for making Satan a heroic figure, no, not even for two months.” in a freedom of speech case.
I enjoy that. Sometimes the end followed naturally at the end; sometimes I arrived at the end first and then worked backwards. In a service matter concerning a police officer, I thought it was a bad case when I heard the arguments, but when I read the papers I realised that he deserved to win. And he did!
I may have gone wrong in some of these cases, but I “sat right” when I decided it. I believed I was doing the right thing and that is the only comfort, no?
12. What are some of your favourite books?
When I had to answer this question I was surprised and in a way disappointed too with myself, that the books were all English, not Tamizh and no Indian writer. I mention here only the books I have read again and again in the last 20 or 30 years. I guess that is my alibi!
The other security blanket was Pride & Prejudice. “Now despise me if you dare.”
Some of the books that have impacted me in a real sense:
- Flying with the Wings of Wax, a biographical novel of Emily Kempin, Europe’s first woman doctor of law (by Eveline Hasler)
- The Strange Alchemy of Life and Law (by Albie Sachs)
- Judicial Discretion (by Aharon Barak)
- Shakespeare: The Invention of the Human (by Harold Bloom)
- The Name Of The Rose (by Umberto Eco)
Two books I read recently and I have already re-read are: The Immortal Life of Henrietta Lacks (by Rebecca Skloot) and Just Mercy (by Bryan Stevenson). The latest favourite, coerced into re-reading by my grandson (he asks questions to check if I have really read!) is Harry Potter. Expecto patronum!
13. You’ve been a strong proponent of gender equality. How do we bring about more gender parity in our society?
A good question for which there is no answer. May be I should dig into some spells from Potter. Just now I wrote an angry and pessimistic article in Tamil for Dinamani as a reaction to my reading about the statistics of offences against women. Men think they are the injured party and cite S.498A, and I can’t believe it. How do they account for this news that there are 100 rapes a day? How does one teach respect for the fellow human being? Dr. Ambedkar was very doubtful if we would ever learn fraternity. If fraternity informs all our actions, then equality will manifest at once; fraternity which tells us how we should treat another, regardless of the difference in gender, caste, creed, ability or sexuality. We have a long way to go.
14. Any parting lessons for our readers, particularly freshly minted IP attorneys who are just starting out?
Remember the Constitution and especially the Preamble. You will do well. Sit right always. Have other interests outside law, which will hone your legal skills and make you creative. Laugh, it is really the best medicine. God bless.