In a 3-page order dated August 22, 2012 which seems to have been uploaded on the Delhi High Court’s website only recently, the High Court has dismissed my PIL as “misconceived” on grounds of "locus standi". I thank an anonymous commentator for bringing the order to my attention.
Of the 5 Paragraphs in the order, Paras 1-3 reproduce excerpts from the PIL in toto. The operative portions of the order read as follows:
“3. We are afraid such a kind of writ petition cannot be entertained as PIL. The petitioner is trying to advance the cause of those persons who are neither indigent nor illiterate nor vulnerable groups. They are not persons who cannot approach the Court themselves. The persons concerned with such imports, who may be allegedly affected by the aforesaid provisions, are well off importers and, therefore, if there is any grievance of any such person, he can approach the Court.
4. Moreover, provisions of a particular Statute or Circular which is statutory in nature cannot be challenged in vacuum.
5. We are, therefore, of the opinion that this petition as PIL is totally misconceived and is accordingly dismissed.”
In short, according to the Court where it refers to "challenge in vacuum", since there was no immediate “lis”, meaning thereby a person who had been immediately affected by the Customs notifications, a PIL was not warranted. Further, the Court took the view that the ones who are bound to be affected by the Customs notification could approach the Court themselves, and therefore the PIL could not be entertained.
To me, this is surprising because if the Court believed that “locus standi” was an issue, then it ought not to have issued a notice on the very first date (May 23, 2012) if it wasn’t satisfied on locus/maintainability. Instead, the Court issued notice on the first date, and then dismissed the PIL on essentially technical grounds.
Subsequent to the issuance of notice on May 23, 2012, the matter was again listed on July 25, 2012 when no questions on maintainability were raised. Finally the matter was listed for arguments on August 22, 2012. On the said date, the Court primarily heard arguments on the interpretation of Section 107A(b).
After hearing me at length on the provision, at the fag end of the hearing the Court posed a question on “locus standi”. To this, I drew the attention of the Hon’ble Court to specific introductory portions of the PIL which are mandated by the Delhi High Court’s Public Interest Litigation Rules, 2010.
Under these Rules, it is imperative on the part of the Petitioner to make an averment which explains his locus, and that he has the ability to pay costs if they are imposed by the Court.
In the PIL, I had specifically taken the stance that the Customs notification has a bearing on consumers of patented products as well, since ultimately Section 107A(b) entails consumption of the imported patented products by Indian consumers. The only issue to be addressed was who could import and how. Therefore, there is a tangible public interest involved in deciding whether or not the provision envisages a “free for all” importation into India.
I also drew the High Court's attention to judgments of the Supreme Court on locus standi in PILs. Unfortunately, none of these judgments seem to have been addressed in the brief order of the Court.
That said, the only silver lining in the order is that no adverse observation has been passed with respect to the interpretation of Section 107A(b). To this extent, the law on the provision still remains unsettled and inconclusive.