Saturday, October 13, 2012

Delhi High Court: PIL on Section 107A(b) Dismissed as “Misconceived”

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.


  1. You are able to get 'breaking news' information on obscure cases from all corners of India but are unable to track your own cases - this judgement is more than a year old - why the delay in reporting it on this blog?

  2. Dear Anon,
    Thanks for provocative comment ;-) Let me help you get your facts straight- First, the PIL was filed only this year, so the order cannot be "more than a year old". Second, the order is dated August 22, 2012, so again it is not more than a year old. I do hope you took the pains to strain your eyesight to go through the contents of the order :-)

    Also, I have been checking the case status on the Delhi High Court's website on a regular basis to see if the order was uploaded, and since there was no order until the last time I checked, a certified copy of the order was applied for. Further, the then Acting Chief Hon'ble Justice Sikri who passed the order was in a phase of transition and he has been transferred to the Punjab and Haryana High Court. Therefore, I attributed the delay in uploading of the order on the High Court's website to his transition.

    So let's address the unstated suggestion in your comment. I have not shied away from reporting the order :-) I let in your comment and put up a post on the order shortly thereafter providing the link to the order for readers to read. I have let in this comment of yours too ;-) Now, I am hoping your comments were your own, and you are not someone else's mouthpiece :-)

    Look forward to your response :-)

    Best Regards,

  3. What may be the implications if someone files PIL regarding the promotion and other benefits of govt.servants.The nature of work of said govt. Servants is at large for public and also helps in the growth of country

    1. Dear Anon@9.10 PM,
      From the looks of it, PIL seems to be an option for the hopeless i.e. if the affected parties are not in a position to voice their grievance, a PIL may be filed on their behalf by others. However, if the parties do have the werewithal to safeguard their interests, it would help to file a writ petition, instead of a PIL. This way technicality will not come in the way of deciding the issue of actual merits. Please let me know if this answers your query.

      Best Regards,