Delhi High Court
Vandana Shiva And Ors. vs Union Of India And Ors. on 22 April, 1994
Equivalent citations: 1995(32)DRJ447
Author: M.J. Rao
Bench: M.J. Rao
JUDGMENT M.J. Rao, C.J.
(1) The first petitioner Dr. Vandana Shiva, is a Director of Research and Foundation for Science, Technology and Natural Resource Policy, Second petitioner is Shri N.D. Jayal, Director General (Natural Heritage), Indian National Trust for Art and Cultural Heritage, the third petitioner is Prof. M.D. Nanjundaswamy, President, Karnataka Rajya Ryota Sangha and the fourth petitioner is Srilata Swaminathan, State Secretary, Rajasthan Kisan Sangathana. These four petitioner have filed this writ petition on the 7th April, 1994 seeking a writ of mandamus restraining the. Union of India from signing/ratifying the existing version of Gatt Treaty,' or to restrained the Union of India from, agreeing to sign and signing Art. 27.5.3(b) of the TRIPs Agreement. They also seek a direction for exclusion of patents on life-forms including plants, animals, human beings produced through biological or microbiological processes, whether natural or modified on grounds of public morality and public order. They seek a further direction against Union of India from violating the fundamental rights and ensuring their protection while signing the Treaty, the right to health and nutrition ensured by the existing Indian intellectual property regime and patent system which had ensured the exclusion of patents on life-forms and patents on products in the area of health and. agriculture on grounds of morality and public order and also in respect of rights of farmers including the right to seed as owners, producers, breeders and innovators etc. (2) LD. counsel for the petitioner Ms. Indira Jaising elaborated the above aspects and submitted that several High Courts have admitted similar writ petitions and the matters are pending in the said Courts. Learned counsel referred us to the Third World Network Briefing Paper on Agriculture on Dunkel's Draft of Gatt which critically analyses the. Gatt clauses on agriculture, farmers rights, food security of the country etc. (Annexure A). In particular, reference is made to para 6 of the said Annexure which deals with Article 27.5.3(b) of TRIPs (Trade Related Aspects of Intellectual Property Rights) which read as follows :
"PARTIES may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and micro-biological processes. However, parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. This provision shall be reviewed four years after the expiry into force of the Agreement establishing the Wto (the World Trading Organisation)."
(3) Learned counsel also referred to various statements in the said Annexure viz. the statement in the Annexure as to how, by allowing the patenting of micro-organisms, the Government of India would be affecting the life of the citizens through a handful multi-national Corporations. Patenting is based on traditional knowledge of the life-form and of its use. It is in no way '"creation" of anything "original". It may, however, involve some tinkering or modification to suit certain non traditional conditions, states the above said Annexure. Reference is also made to another aspect dealing with protection of Plant Varieties either by patents or by affecting sui generis system or any patent thereof and it is pointed out that though Governments are given the option to have their own sui generis system for plant protection, in international negotiations, the Union for Protection of Plant Varieties (UPOV) which is also known as Plant Breeders Rights (PBRs), is the only protection recognised. It is pointed out that this system does not recognise the plant breeding activity that the farmers carry out in his field every day, thus denying the farmer his basic and fundamental right. Reference is also made to certain aspects which show how and in what manner TRIPs will have adverse consequences on the farmers. Reference's made to papers at page 103 of the paper book dealing with Neem Treaty of India and its utility and how the Gatt affects its products. Reference is also made to Bio piracy Survey (Annexure D), prepared by Rural Advancement Foundation International, at page 118 of the paper book. Out attention is also invited to page 192 of the paper book relating to the Dunkel-Debate-Continuing Apprehensions in India.
(4) It is also pointed out by reference to Section 3 of the India Patents Act, 1970 that Patent Act lists very many items .which are not inventions within the meaning of the Act. Sub-clause (h) of Section 3 states that a method of agriculture or horticulture is not an invention and sub clause (i) of Section 3 states that any process for the medicinal, surgical, curative, prophylactic or other treatment Of human beings or any process for a similar treatment of animals or plants to render them free of disease or to increase their economic value or that of their products is not an invention. Out attention is invited to. Section 4 of the Act which deals with grant of the patent subject to certain conditions.
(5) Learned counsel contended that if Gatt Agreement is allowed to be signed by the Indian Government, the fundamental rights of citizens of this country, in relation to the aboveproducts, will be affected. Therefore, this Court should intervene and restrain the Government from signing the Treaty.
(6) Reference is made to the decision by the Supreme Court In re : The Berubaru Union and Exchange of Enclaves, . There, under the Indo-Pakistan Agreement, 1958 the Berubaru Union was divided and there was exchange of Cooch-Behar Enclaves, and the Court held that inasmuch as the agreement involved the Cession of a territory, the same could not be done under the agreement unless the Constitution was amended. The above case was cited to show that this Court could interfere in the matter. Reference is also made to a decision of the Full Bench of the Punjab High Court in Ajaib Singh Lehna Singh Vs. The State of Punjab & Another, . In the said case, action against certain abducted persons under (Recovery and Restoration) Act, 1949 was held to be violative of Article 22 of the Constitution of India. In the course of the discussion, one of the learned Judges referred to the decision of the American Supreme Court, State of Missouri Vs. Holland ((1920) 252 U.S. 416) and observed that "there is no provision in the Constitution of India which declares that all treaties to which the Government of India was a party should be vested with statutory authority. Article 51 of the Constitution declares the directive principle that the State shall foster respect for international law and treaty obligations". The learned Judge also referred to Article 253 which empowers Parliament to make any Law for the purpose of implementing the treaty obligations of India and concluded as follows:
"..........But neither of these Articles empowers Parliament to make a Law which can deprive a citizen of India of the fundamental rights conferred upon him."
(7) We have given our anxious consideration to the points raised by the Learned counsel for the petitioners.
(8) It will be noticed that Entry 14 of List I of the Seventh Schedule of the Constitution permits legislation to be made in regard to "entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries." It is, therefore, clear that the execution power of the Government of India extends to the above field. Article 51 of the Constitution, which is in Chapter Iv relating to Directive Principles states that the State shall endeavor to
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and
(d) encourage settlement of international disputes by arbitration.
(9) The point for consideration is whetheÃr, this Court, in exercise of powers under Article 226 of the Constitution of India can intervene or restrain the Union of India from entering into treaty obligations and whether this Court can go into the validity of the treaty provisions and economic policies that are at the root of this treaty, even before a law is made by legislative ?
(10) Before going into these aspects, it is necessary to note briefly what is the Gatt and what the meant by the Dunkel Draft. Gatt means the General Agreement on Trade and Tariffs. It is an international body founded in 1947 by 23 member nations including India. Instead of each country negotiating trade agreements with other countries, there is a group negotiation and a joint agreement on various aspects of international trade.' The Gatt has its headquarters at Geneva and the 124 members who signed the Gatt agreement on 15.4.1994, represent almost .93% of world trade through India's trade is supposed to be only 0.50 of this. Some Governments felt that a composite agreement would increase their share in world trade rapidly and agreed on some principles. Out of the 124 countries who signed the Gatt, 2/3 are under-developed and developing countries while 1/3 represent developed countries. The Gatt agreement was signed in the eighth round. The first round took place 47 years ago in 1947 at Havana, the second at Annency in France in 1949, the third at torquoy in Britain in 1950-51, the fourth, fifth and sixth rounds at Geneva in 1955-56, 1960-62 and 1966-67 and the seventh at Tokyo during 1973-79. The eight round took place at Uruguay during 1986-1993. It was there that the Dunkel draft on intellectual property was signed in December, 1993.
(11) Ever since the Dunkel proposals were signed and the proposals of the Gatt were being negotiated, there had been a nation-wide debate as to the advantage or disadvantages of the Gatt agreement by several advantages and critics. The treaty being entered into under the executive power of the Government, there is indeed a content of political decision in this behalf. We have already set out the points raised by the petitioners in Our statement of facts. Suffice it to say that we are now concerned basically with the scope of jurisdiction of this Court.
(12) The Gatt treaty, signed a few days ago, runs into 22,000 pages and the papers weigh 170 kilos. The final Act will run into about 500 pages. The Gatt envisages the formation of a World Trade Organisations, one of the greatest historical events of this country. It is with reference to some of the clauses of this agreement that we are concerned. The agreement is a composite one and each country perhaps thinks that there are beneficial clauses in its forum and the advantages outweigh the disadvantages, if any.
(13) The obligations and the scope of judicial review of such obligations have come up for consideration in England, America and in our country too.
(14) In England, "the courts have traditionally adopted the view that, as a general rule, neither the making of a treaty nor the performance of the obligations under the treaty, can be reviewed by the Courts. (Rustomjee Vs. R.) (1876). 2.Q.B.D. (j.H. Rayner (Mincing Lane) Ltd. Vs. Department of Trade and Industry) 1990 (2) A.C. 418 (H.L.). There.is much. to be said for not reviewing a decision to enter into a treaty. Such a decision will invoke highly political considerations unsuitable for judicial review. In addition in area ties will normally have no legal effect within the United Kingdom until legislation implementing the treaty is enacted and so will not normally give rise to justiciable issues. In Blackburn Vs. Att. General (1971 .1. W.L.R. 1037 (CA), the court declined to entertain an action for, inter-alia, a declaration that it was ultimately the power of the Crown to accede to the treaty of Rome creating the European Community. The Court pointed out that the treaty making power lay with the Crown, not the Courts, and an exercise of the power could not be challenged in the Courts. The Courts would take no notice of a treaty until it was embodied in legislation enacted byparliament". (Judicial Remedies in Public Law by Clive Lewis (1992) pp 18, 19). Exceptional cases are those where a statute has expressly or impliedly placed limitations on the making of the treaties or the performance of treaty-obligations. In Laker Airways Vs. Department of Trade (1977 Q.B. 643), the Court of Appeal held that there was an implied statutory fetter on the prerogative power of the Crown arising under a Treaty between the United Kingdom and the Usa to withdraw the designation of an airline as a suitable airline to operate a particular route. In Ex. p. Molyneaux 1986 (1) W.L.R. 331, Taylor, J., considered whether Article 6 of the Union with Ireland Act, 1800 or section 12 of the Northern Ireland Constitution Act, 1973 restricted the power of the Crown to enter into an agreement with the Irish Republic and concluded that they did not (ibid p.l9). In Blackburn Vs. Att. General, the Court of Appeal held that they did not have jurisdiction to entertain an application for a declaration that, if the United Kingdom were to accede to the Treaty of Rome creating the European Economic Community, that would constitute a partial. surrender of sovereignty which would be incompatible with the common law rule that the sovereignty of Parliament could not be fettered (ibid p. 19-20).
(15) Although in Laker's case. Lord Denning felt that treaties could be reviewed as being part of discretionary power, the House of Lords, in Reuner's case held that treaties did not raise justiciable issues which could be dealt with by the municipal courts. In Rayner's case (1990 (2) Hc 418 Lord Templeman observed (at p. 476 :
"THE Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty. Parliament may alter the laws of the United Kingdom. The Courts must enforce those Laws : Judges have no power to grant specific performance of treaty or to award damages against a sovereign state for breach of a treaty or to invent laws or misconstrue legislation in order to enforce a treaty".
(16) In the U.S.A., the position is not different. "The refusal of the Supreme Court in recent dockets to involve itself in foreign relations has likewise exemplified its desire to ignore the siren call of the political realm. For example, during the Vietnam war, the Court repeatedly declined many ardent pleas to rule on the constitutionality of the U.S. involvement. (Massachusetts Vs. Laird. 400 U.S. 886 (1970) ; Also, when President Carter acted on his own initiative to end the Mutual defense Treaty between the United States and Taiwan, this action was challenged in Courts by a number of Senators and representatives. The Courts, consistent with its traditions, refused to involve itself in this political question (Goldwater Vs. Carter 444 U.S. 886 (1979) (See Judicial Process in America, by Robert A. Carp. 2nd Ed. 1993 p.l41). In Goldwater's case, John Rehnquist J. (as he then was), with whom Chief Justice Burger, Stewart, Stevens Jj concurred, observed :
"I am of the view that the basic question presented by the petitioner in this case is "political" and, therefore, non-justiciable because it involves the authority of the President in the conduct of. our country's foreign relations and the extent to Which the Senator or Congress is authorised to negate the action of the president".
(17) It is clear that the English and American Courts are almost generally reluctant to interfere.
(18) The scope of interference with treaties case up for consideration before our Supreme Court in Maganbhai Vs. Union of India . In that case, Hidaytullah C.J., speaking for the Constitution Bench, reviewed the practice in U.K., France, U.S.A. etc. There, the petitioners sought to restrain the Government of India from ceding, without the approval of Parliament, areas with Rann of Kutch to Pakistan in accordance with Indo-Pakistan Western Boundary Award dated 19.2.1968. It was held that mere apprehension of petitioners that they would be deprived of their fundamental rights in future, was not enough. Adverting to the Contention that a constitutional amendment was necessary for cession, the Supreme Court held that it was not sitting in appeal over the Award of the Tribunal and all that the Court could determine was whether there was concrete and solid evidence. The Government could not be restrained from Implementing the award even though there was no constitutional amendment. In that context reference was made to treaties which require Legislation to be made and also to 'self executing' treaties and the legal theories based thereon (paras 25,79). Reference was also made therein to In re : Berubari Union ex which was a case of a reference under Article 143. In para 79 after referring to Article 73, the executive power of the Union, Hidayatullah C. J. observed :
"THE executive is, qua the State, competent to represent the State in all matters international and may be agreement, convention or treaties incur obligations which in international law are binding upon the State, But the obligations arising under the agreements or treaties are not by their own force binding upon Indian Nationals. The power to legislate lies with the Parliament under Entries.10 and 14 of List I of the Seventh Schedule".
The Supreme Court also stated (para 81):
"BUT making of law under that authority (Seventh Schedule) is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the Laws of the State. If the rights of the citizens or others which are justiciable are not affected, no legislative measure is needed to give effect to the agreement of treaty".
Finally it was held (para , that, If in consequence of the exercise of the executive power (under Article 73), rights of citizens or others are restricted or infringed, or Laws are modified, the exercise of power must be supported by legislation, where there is no such restriction infringement of the right or modification of the laws, the executive is competent to excise the power"
(19) The above decision makes it clear that the making of a law under the authority of the relevant entry in the seventh Schedule is necessary if the treaty is to operate and restrict the rights of the citizens or other or if it modifies the existing laws of the the State. But, if the rights of the citizens or others are not affected by the treaties, no legislative measures are needed to give effect to the treaty.
(20) The question comes up again before the Supreme Court in folly George Verghose Vs. Bank of Cochin (A.LR. 1980 Sc 470). The Supreme Court was dealing with the question whether the right to arrest and detain a person under section 51 read with Order 21 rule 37 of Civil Procedure Code was violative of Article Ii of the International Covenant on Civil and Political Rights and Ar- ticle 21 of the Constitution of India. In that case too, while not striking down the provisions of the Code, the Supreme Court observed that until the municipal law is changed to accommodate the Covenant, it is not binding on the Municipal Courts. The decision of the Kerala High Court v-in Xavier Vs. Canara Bank Ltd. (1969 Ker. L.T. 927) was approved. We are, therefore, of the view that the signing of the Gatt by the Union of India by itself doesn't furnish any cause of action to claim that the fundamental rights of the citizens are affected or that the provisions of the Indian Patent's Act are offended by the Treat)'. This flows directly from the decisions of our Supreme Court.
(21) Even otherwise, it is not for this Court to go into the wisdom of the economic policies enunciated by the Government and law is so stated by our Supreme Court in more than one case. In State ofM.P. & Ors. Vs. Nandlal faiswal & Ors. , Supreme Court observed that "We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call trial and error method and, therefore, in- validity cannot? be tested on any rigid 'a priori' considerations or on the of any strait-jacket formula. The Court must, while ad- judging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or play in the joints to the executive .......... The Court cannot strike a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical".
(22) Again, in Shn Ritaram Sugar Company Ltd. and another Vs. Union of India and Ors. 1990 (3) S.C.C. 233, Supreme Court pointed out that what was the best for the industry and in what manner the policy should be formulated and implemented, bearing in mind the object of supply and equitable distribution of the commodity at a fair price in the best interest of the general public, was matter for decision exclusively between the province of the Central Government. Such matters do not ordinarily attract the power of judicial review. It is also pointed out that even some persons are at a disadvantage or would suffer loss on account of the formulation and implementation of the Governmental policies, that was not by itself sufficient ground for interference with the Government action.
(23) In yet another case, R.K. Garg Vs. Union of India and others, , the Constitution Bench of the Supreme Court pointed out that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights".
(24) Again in Peerless General Finance and Investment Co. Ltd. and another Vs. Reserve Bank of India, , the Supreme Court observed that "Courts are not interfere with economic policy which is the function of experts. It is not the function of the Courts to srt in judgment over matters of economic policy and it must necessarily be left to the ex- pert bodies. In such matters even experts can seriously and doubtlessly differ. Courts can not be expected to decide them without even aid of experts..... ' This Court has repeatedly said that the matters of economic policies are to be left to the Government."
(25) The above said decisions of the Supreme Court dealing which non-interference with economic policies of the Government have been followed recently by Supreme Court in Union of India Vs. Hindustan Development Corporation, .
(26) It is also well remember the observations made frankfurter, J. in Morey Vs. Dond (354 Us 457) which reads as under :
"IN the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The Courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the be- wildering conflict of the experts, and the number of times the judges have been overruled by events self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability."
(27) For all these aforesaid reasons, we are unable to entertain this writ petition and the same is dismissed in liming.