Module 1 - Part 2 of 6

Constitutional & Legal Framework

Master the constitutional foundations of IPR under Articles 19(1)(g) and 300A, understand legislative competence under Schedule VII, and explore the institutional framework including DPIIT and the National IPR Policy 2016.

Duration: 60-90 minutes
6 Key Topics
10 Quiz Questions
Topic 1

Article 19(1)(g) - Right to Practice Profession

The Indian Constitution provides the foundational framework within which intellectual property rights operate. Article 19(1)(g) is particularly significant as it guarantees the fundamental right to practice any profession, or to carry on any occupation, trade, or business.

Article 19(1)(g)
Protection of certain rights regarding freedom of speech, etc.
"All citizens shall have the right to practice any profession, or to carry on any occupation, trade or business."

This constitutional guarantee forms the basis for entrepreneurs, inventors, and creators to commercially exploit their intellectual property. The right to use one's IP in business activities is a manifestation of this fundamental right.

Relationship with IPR

The connection between Article 19(1)(g) and intellectual property operates in two ways:

  • Creator's Rights: IP holders derive their right to commercially exploit their creations from this constitutional guarantee
  • Reasonable Restrictions: IP laws themselves can act as reasonable restrictions under Article 19(6) on others' freedom to trade
Key Concept: Reasonable Restrictions under Article 19(6)

Article 19(6) permits the State to make laws imposing reasonable restrictions on Article 19(1)(g) rights in the interests of the general public. IP laws create such restrictions by granting exclusive rights to IP holders, thereby limiting others' freedom to use that intellectual property without authorization. Courts have consistently held that properly balanced IP legislation constitutes a reasonable restriction.

Case Law: Sahara India Real Estate Corporation Ltd. v. SEBI (2012)

The Supreme Court in this case observed that Article 19(1)(g) is not absolute and is subject to reasonable restrictions. The Court held that restrictions must satisfy the test of reasonableness and must be in the interest of the general public. This principle applies equally to IP legislation - while IP holders have rights, these rights can be limited in the public interest through provisions like compulsory licensing and fair use.

Topic 2

Article 300A - Right to Property

Article 300A, though now a constitutional right rather than a fundamental right (following the 44th Amendment), provides crucial protection for intellectual property as a form of property.

Article 300A
Persons not to be deprived of property save by authority of law
"No person shall be deprived of his property save by authority of law."

This article ensures that intellectual property, once acquired through valid legal means, cannot be taken away except through due process of law. It provides constitutional protection against arbitrary deprivation of IP rights.

Historical Context

Understanding the evolution of property rights in the Indian Constitution:

  • Original Position (1950): Right to property was a fundamental right under Article 31
  • 44th Amendment (1978): Article 31 was omitted and Article 300A was inserted, converting the right to property to a constitutional right
  • Current Status: While no longer a fundamental right enforceable under Article 32, it remains protected under Article 300A
Significance for IP: "Property" includes Intellectual Property

Indian courts have interpreted "property" under Article 300A broadly to include both tangible and intangible property. In several judgments, courts have recognized that:

  • Patents constitute property within the meaning of Article 300A
  • Trademark rights are proprietary interests protected by law
  • Copyright is a form of property that cannot be arbitrarily taken
  • Any revocation or compulsory licensing must follow due process
Case Law: Vikas Sales Corporation v. Commissioner of Commercial Taxes (1996)

The Supreme Court held that property has to be understood in a broad sense including both corporeal and incorporeal property. The Court observed that the term "property" includes intangible rights such as intellectual property rights. This interpretation ensures that IP rights receive constitutional protection against arbitrary state action.

Implications for IP Practice

  • Government cannot arbitrarily revoke patents without following the procedure established by law
  • Compulsory licensing must follow statutory procedures under the Patents Act
  • Administrative decisions affecting IP rights are subject to judicial review
  • IP rights can be enforced as property rights in civil proceedings
Topic 3

Legislative Competence - Schedule VII

The Constitution of India distributes legislative powers between the Union and State governments through three lists in the Seventh Schedule. Understanding where IP subjects fall determines which legislature can make laws on these matters.

Entry 49 - List I (Union List)

Entry 49 Union List (List I)
"Patents, inventions and designs; copyright; trade-marks and merchandise marks."

This entry grants exclusive legislative competence to Parliament for core IP subjects. States cannot legislate on these matters.

Entry 54 - List I (Union List)

Entry 54 Union List (List I)
"Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest."

Entry 55 - List I (Union List)

Entry 55 Union List (List I)
"Regulation of labour and safety in mines and oilfields."
Key Concept: Why IP is in the Union List

The placement of IP subjects in the Union List reflects several important considerations:

  • Uniformity: IP rights need nationwide uniformity - a patent valid in one state must be valid throughout India
  • International Obligations: India's treaty commitments (TRIPS, Paris Convention, Berne Convention) require uniform national implementation
  • Economic Integration: A single IP regime facilitates national economic integration and prevents forum shopping
  • Administrative Efficiency: Centralized registration and enforcement is more practical

Important Implications

Exclusive Parliamentary Domain
Only Parliament can enact, amend, or repeal IP legislation. State legislatures have no power over patents, trademarks, copyrights, or designs.
National Application
IP rights granted under central legislation automatically apply throughout India. There is no need for separate registration in different states.
Central Enforcement Agencies
The IP offices (Patent Office, Trademark Registry, Copyright Office) are central government bodies with branches across India.
Note: Geographical Indications

While Entry 49 does not explicitly mention Geographical Indications (GIs), Parliament has enacted the Geographical Indications of Goods (Registration and Protection) Act, 1999 under its residuary legislative power (Entry 97, List I) and read with Entry 49. The GI Act has been upheld as constitutionally valid.

Topic 4

Role of DPIIT, IP Offices, and Tribunals

The administration of intellectual property rights in India involves a hierarchy of institutions from policy-making bodies to registration offices and adjudicatory forums.

Department for Promotion of Industry and Internal Trade (DPIIT)

Organizational Position
DPIIT is a department under the Ministry of Commerce and Industry, Government of India. It was renamed from DIPP (Department of Industrial Policy and Promotion) in 2019.
IP Policy Functions
Formulates and implements national IP policy; coordinates with international organizations (WIPO, WTO); represents India in IP treaty negotiations; administers IP legislation.
Administrative Oversight
Supervises the Office of CGPDTM which administers patents, trademarks, designs, and geographical indications.

Controller General of Patents, Designs and Trade Marks (CGPDTM)

The CGPDTM is the apex administrative authority for patents, designs, trademarks, and GIs. Key functions include:

  • Overall superintendence and direction of IP offices
  • Advising government on IP matters
  • Ensuring uniformity in examination and registration practices
  • Hearing appeals from decisions of subordinate officers
  • Issuing practice and procedure guidelines

IP Office Structure

Indian Patent Office (IPO)
Headquartered in Kolkata with branches in Mumbai, Delhi, and Chennai. Handles patent applications, examination, grant, and post-grant proceedings.
Trade Marks Registry (TMR)
Headquartered in Mumbai with branches in Delhi, Kolkata, Chennai, and Ahmedabad. Handles trademark applications, examination, registration, and opposition proceedings.
Geographical Indications Registry
Located in Chennai under the CGPDTM. Handles GI applications and registrations.
Design Wing
Operates from the Patent Office branches. Handles design registrations under the Designs Act, 2000.
Key Concept: Copyright Administration is Different

Unlike patents, trademarks, and designs which are under DPIIT, copyright administration falls under the Ministry of Education (formerly HRD). The Copyright Office is located in New Delhi and functions under the Registrar of Copyrights. This historical division reflects the different nature of copyright (cultural/educational) versus industrial property.

Appellate and Adjudicatory Forums

Intellectual Property Appellate Board (IPAB) - Abolished
IPAB was established in 2003 to hear appeals from IP offices. It was abolished in 2021 by the Tribunals Reforms Act. Its functions were transferred to Commercial Courts and High Courts.
Commercial Courts
Established under Commercial Courts Act, 2015. Handle IP civil disputes including infringement, passing off, and appeals from IP office decisions. Have IP divisions in some jurisdictions.
High Courts
Have original jurisdiction for IP matters in specified value; hear appeals from Commercial Courts and IP offices; exercise writ jurisdiction over IP authorities.
Post-IPAB Appellate Structure (2021 onwards)
  • Patents: Appeals lie to the High Court having jurisdiction
  • Trademarks: Appeals lie to the High Court having jurisdiction
  • Copyright: Appeals from Copyright Board decisions lie to the Commercial Court/High Court
  • Geographical Indications: Appeals lie to the High Court having jurisdiction
Topic 5

National IPR Policy 2016

India's first comprehensive National Intellectual Property Rights Policy was approved by the Cabinet and released on May 12, 2016. This policy provides a vision and roadmap for IP development in India.

Vision Statement

"An India where creativity and innovation are stimulated by Intellectual Property for the benefit of all; an India where intellectual property promotes advancement in science and technology, arts and culture, traditional knowledge and biodiversity resources; an India where knowledge is the main driver of development, and knowledge owned is knowledge shared."

Mission

The Policy aims to stimulate a dynamic, vibrant and balanced IP system in India to:

  • Foster creativity and innovation and thereby, promote entrepreneurship and enhance socio-economic and cultural development
  • Focus on enhancing access to healthcare, food security and environmental protection

Seven Objectives

1. IPR Awareness
Outreach and promotion - to create public awareness about the economic, social and cultural benefits of IPRs among all sections of society.
2. Generation of IPRs
To stimulate the generation of IPRs through focused training, strengthening IP facilitation centers, and promoting R&D.
3. Legal and Legislative Framework
To have strong and effective IPR laws which balance interests of rights owners with larger public interest.
4. Administration and Management
Modernization of IP offices for efficient processing of applications, including digitization and capacity building.
5. Commercialization of IPRs
To promote commercialization of IP assets through valuation, technology transfer, and access to credit using IP as collateral.
6. Enforcement and Adjudication
Strengthening enforcement mechanisms and adjudicatory systems to combat infringement and piracy.
7. Human Capital Development
Building human resources and institutions for IP teaching, training, research, and skill building.
Key Concept: CIPAM - Implementation Body

The Cell for IPR Promotion and Management (CIPAM) was established under DPIIT to implement the National IPR Policy. CIPAM's functions include:

  • Creating IPR awareness among all stakeholders
  • Facilitating IP filing by startups and MSMEs
  • Coordinating with enforcement agencies
  • Running the IP awareness mascot "IP Nani" campaign
  • Organizing training programs and workshops

Key Initiatives Under the Policy

  • Start-up Intellectual Property Protection (SIPP): Provides startups with facilitated patent filing and fee rebates
  • Expedited Examination: Fast-track examination for startups, MSMEs, and women applicants
  • Digitization: Online filing through ipindia.gov.in portal
  • Technology and Innovation Support Centers (TISCs): Established with WIPO support
  • National IP Awards: Annual recognition of IP creators and enterprises
Implementation Progress (2016-2024)

Since the Policy's adoption:

  • Patent examination time reduced from 72 months to under 20 months
  • Trademark application disposal time reduced significantly
  • Over 50 TISCs established across India
  • IP filings by Indian residents increased substantially
  • Online filing percentage exceeded 90%
Topic 6

Constitutional Consistency with International Obligations

India's IP legislation must simultaneously conform to constitutional requirements and international treaty obligations. Understanding this balance is crucial for IP practitioners.

Constitutional Framework for Treaty Implementation

Article 51(c)
Directive Principle directing the State to foster respect for international law and treaty obligations.
Article 253
Empowers Parliament to make laws implementing any treaty, agreement or convention with any other country or any decision made at any international conference.
Entry 14, List I
Parliament has exclusive power over "Entering into treaties and agreements with foreign countries."
Key Concept: Dualist System

India follows a dualist approach to international law. Treaties signed by India do not automatically become part of domestic law. They require parliamentary legislation for implementation. Thus:

  • TRIPS obligations were implemented through amendments to the Patents Act, Copyright Act, and Trade Marks Act
  • The Geographical Indications Act, 1999 was enacted to comply with TRIPS
  • Courts cannot directly enforce treaty provisions unless incorporated into domestic legislation

Balancing Act in IP Legislation

Indian IP laws balance multiple considerations:

  • TRIPS Minimum Standards: All IP laws meet the minimum standards prescribed by TRIPS
  • TRIPS Flexibilities: India has utilized TRIPS flexibilities for public health (compulsory licensing, Section 3(d) Patents Act)
  • Constitutional Rights: Fair use provisions protect free speech; public health exceptions protect right to life
  • Development Concerns: Special provisions for educational institutions, libraries, and research
Case Law: Novartis AG v. Union of India (2013)

The Supreme Court upheld the constitutional validity of Section 3(d) of the Patents Act, which prevents "evergreening" of patents by requiring enhanced efficacy for incremental pharmaceutical innovations. The Court held:

  • Section 3(d) is TRIPS-compliant as TRIPS allows members to define patentability criteria
  • The provision reflects India's balance between patent protection and public health
  • There is no fundamental right to a patent; it is a statutory right subject to legislative conditions

This landmark judgment demonstrated how Indian IP law balances international obligations with domestic policy objectives within constitutional bounds.

Article 73 TRIPS - Security Exceptions

TRIPS itself recognizes that members may take actions necessary for the protection of essential security interests. This aligns with constitutional provisions allowing the State to restrict rights in the interest of national security and public order. Indian IP laws incorporate similar exceptions.

Test Your Knowledge

Part 2 Quiz

Answer the following 10 questions to test your understanding of the Constitutional and Legal Framework.

Question 1 of 10
Under which Article of the Constitution can Parliament legislate on intellectual property matters?
  • A) Article 19(1)(g) directly empowers Parliament
  • B) Entry 49 of List I (Union List), Schedule VII
  • C) Entry 33 of List III (Concurrent List)
  • D) Entry 26 of List II (State List)
Explanation:
Entry 49 of the Union List (List I) in Schedule VII of the Constitution gives Parliament exclusive legislative competence over "Patents, inventions and designs; copyright; trade-marks and merchandise marks." This ensures uniform IP law throughout India and enables implementation of international treaty obligations.
Question 2 of 10
Article 300A provides protection for intellectual property as:
  • A) A fundamental right enforceable under Article 32
  • B) A directive principle under Part IV
  • C) A constitutional right against deprivation except by authority of law
  • D) A statutory right with no constitutional backing
Explanation:
Article 300A states that no person shall be deprived of property save by authority of law. Following the 44th Amendment (1978), the right to property is no longer a fundamental right but remains a constitutional right. IP, being a form of property, is protected from arbitrary deprivation under this article.
Question 3 of 10
The National IPR Policy was released in which year?
  • A) 2016
  • B) 2014
  • C) 2018
  • D) 2020
Explanation:
India's first comprehensive National Intellectual Property Rights Policy was approved by the Cabinet and released on May 12, 2016. It provides a vision and roadmap for IP development with seven key objectives covering awareness, generation, legal framework, administration, commercialization, enforcement, and human capital development.
Question 4 of 10
Which body is responsible for implementing the National IPR Policy?
  • A) CGPDTM
  • B) IPAB
  • C) WIPO India Office
  • D) CIPAM under DPIIT
Explanation:
The Cell for IPR Promotion and Management (CIPAM) was established under DPIIT to implement the National IPR Policy. CIPAM handles IP awareness campaigns, facilitates IP filing by startups, coordinates with enforcement agencies, and runs programs like "IP Nani" for public education.
Question 5 of 10
The Intellectual Property Appellate Board (IPAB) was abolished in:
  • A) 2019
  • B) 2021
  • C) 2020
  • D) 2018
Explanation:
IPAB was abolished in 2021 by the Tribunals Reforms Act (Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, later replaced by an Act). Its functions were transferred to Commercial Courts and High Courts. IPAB had been established in 2003 to hear appeals from IP office decisions.
Question 6 of 10
Under Article 19(1)(g), the right to trade or business can be restricted by:
  • A) Executive orders only
  • B) Judicial decisions only
  • C) Law imposing reasonable restrictions in public interest under Article 19(6)
  • D) It cannot be restricted at all
Explanation:
Article 19(6) permits the State to make laws imposing reasonable restrictions on Article 19(1)(g) rights in the interests of the general public. IP laws create such restrictions by granting exclusive rights to IP holders, limiting others' freedom to use that IP. Courts have held that properly balanced IP legislation constitutes a reasonable restriction.
Question 7 of 10
The Copyright Office in India functions under which Ministry?
  • A) Ministry of Education (formerly HRD)
  • B) Ministry of Commerce and Industry
  • C) Ministry of Law and Justice
  • D) Ministry of Information and Broadcasting
Explanation:
Unlike patents, trademarks, and designs which are under DPIIT (Ministry of Commerce and Industry), copyright administration falls under the Ministry of Education (formerly HRD). This historical division reflects the different nature of copyright (cultural/educational) versus industrial property.
Question 8 of 10
How many objectives are outlined in the National IPR Policy 2016?
  • A) Five
  • B) Six
  • C) Eight
  • D) Seven
Explanation:
The National IPR Policy 2016 has seven objectives: (1) IPR Awareness, (2) Generation of IPRs, (3) Legal and Legislative Framework, (4) Administration and Management, (5) Commercialization of IPRs, (6) Enforcement and Adjudication, and (7) Human Capital Development.
Question 9 of 10
The headquarters of the Indian Patent Office is located at:
  • A) New Delhi
  • B) Kolkata
  • C) Mumbai
  • D) Chennai
Explanation:
The Indian Patent Office is headquartered in Kolkata with branches in Mumbai, Delhi, and Chennai. The Trade Marks Registry is headquartered in Mumbai, while the GI Registry is in Chennai. This geographical distribution was established historically and continues for administrative convenience.
Question 10 of 10
Post-IPAB abolition, appeals from Patent Office decisions lie to:
  • A) Supreme Court directly
  • B) District Court
  • C) High Court having jurisdiction
  • D) CGPDTM
Explanation:
Following the abolition of IPAB in 2021, appeals from decisions of the Patent Office (Controller of Patents) lie to the High Court having jurisdiction. The Tribunals Reforms Act transferred IPAB's jurisdiction to High Courts and Commercial Courts depending on the nature of the matter.