TC-24 Petitioner

T24
8TH IMS UNISON UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2021

________________________________________________________________
BEFORE
THE HON’BLE SUPREME COURT OF INDIANA
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIANA

________________________________________________________________
IN THE MATTER OF
CHALLENGING THE VALIDITY OF SEC. 100 (1A) OF THE INDIANA

PATENTS ACT, 1970 & THE VIOLATION OF FUNDAMENTAL RIGHTS.
________________________________________________________________
S.L.P No. _____ of 2021
DIZER CO ……………………………………………………(PETITIONER)
VERSUS
UNION OF INDIANA & ORS…………….…………….…(RESPONDENT)
___________________________________________________________________________
BEFORE THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF

THE HON’BLE SUPREME COURT OF INDIANA
___________________________________________________________________________
MEMORANDUM ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS
1 INDEX OF ABBREVIATIONS 3-4
2 INDEX OF AUTHORITIES 5-7
3 STATEMENT OF JURISDICTION 8
4 STATEMENT OF FACTS 9
5 ISSUES RAISED 10
6 SUMMARY OF ARGUMENTS 11
7 BODY OF ARGUMENTS 12-34
I. Whether the Special Leave Petition filed by the petitioner is maintainable or not? 12-15
[I.] Substantial Question of Law.
[II.] Grave Injustice.
II. Whether the Amendment dated 16.04.2021 is valid in terms of the TRIPS Agreement 16-22
or not?
[I.] Violative of Several Articles of the TRIPS Agreement.
A. Violative of the Clauses of Article 31.
B. Violates Article 28.
C. Violates Article 30.
[II.] Excessively Broad and Expansive power ultra vires the Agreement.
A. Broad interpretation of “public welfare”.
B. Proviso overrides the objective of patent protection.
1
III. Whether the letter dated 25.04.2021 is violative of the provisions of Part III of the 23-30
Constitution of Indiana?
[I.] Violation of Article 14.
Arbitrary State Action.
The Test of “Object and Effect”.
[II.] Violation of Article 21.
Breach of Right to Privacy.
Test of Privacy.
Test of Proportionality.
IV. Whether the Amendment violates Article 300A of the Constitution of Indiana? 31-34
[I.] Abuse of the Doctrine of Eminent Domain.
8 PRAYER 35
2
LIST OF ABBREVIATIONS
1. AIR All India Reporter
2. Art. Article
3. C.J. Chief Justice
4. Co. Company
5. Hon’ble Honorable
6. INR Indianan National Rupee
7. J. Justice
8. Ltd. Limited
9. Mr. Mister
10. MoHFW Ministry of Health and Family Welfare
11. P. Private
12. PIL Public Interest Litigation
13. r/w Read with
3
14. SC Supreme Court
15. SCC Supreme Court Cases
16. SCR Supreme Court Reporter
17. Sec. Section
18. TRIPS Agreement on Trade Related aspects of

Intellectual Property Rights
19. u/a Under Article
20. u/s Under Section
21. UoI Union of Indiana
22. US United States
23. v. Versus
24. WHO World Health Organization
4
INDEX OF AUTHORITIES
CONSTITUTION
• CONSTITUTION OF INDIA, 1950.
INTERNATIONAL AGREEMENT
• AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY

RIGHTS, 1995.
STATUTES
• THE GENERAL CLAUSES ACT, 1897 (ACT NO.10 OF 1897).

• THE PATENTS ACT, 1970 (ACT NO. 39 OF 1970).
BOOKS
• ARVIND P. DATAR & SOLI J. SORABJEE, NANI PALKHIVALA: THE COURTROOM

GENIUS, (LexisNexis 2012).
• M.P. JAIN, INDIAN CONSTITUTIONAL LAW (LexisNexis 8th ed. 2018)
• NARENDER KUMAR, CONSTITUTIONAL LAW OF INDIA (Allahabad Law Agency
2018).
ARTICLES & JOURNALS
• A.K. Ganguli, Right to Property: Its Evolution and Constitutional Development in India, 48
JILI 489 (2006).
• A.K. Sikri, Proportionality as a Tool for Advancing Rule of Law, 3 SCC J-1 (2019).
• Hashmat Ali Khan, The Land Acquisition Policy in India with Special Reference to Property
Rights: An Analysis, 23 ALJ 303 (2015-16).
• Raddivari Revathi, Evolution of Privacy Jurisprudence - A Critique, 60 JILI 189 (2018).
• Solil Paul, Was ‘Due Process’ Due? — A Critical Study of the Projection of ‘Reasonableness’
in Article 21 Since Maneka Gandhi, 1 SCC J-1 (1983).
• T.K. Tope, Forty-fourth Amendment and the Right to Property, 4 SCC J-27 (1979).
5
• Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 YLJ 8 (2015).
LEGAL DATABASES
• www.scconline.com
• www.manupatra.com
CASES REFERRED
FOREIGN CASES:
1. Berman v. Parker, 348 US 26 (1954).
2. Entick v. Carrington, 19 Howell State Trials 1029 (1765).
SUPREME COURT CASES:
3. A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

4. Achyut v State of West Bengal, AIR 1963 SC 1039.
5. Ambika Prasad Mishra v. State of Uttar Pradesh, (1980) 3 SCC 719.
6. Bachan Singh v. State of Punjab, (1982) 3 SCC 24.
7. Bhim Singhji v. Union of India, (1981) 1 SCC 166.
8. Chandra Bansi Singh v. State of Bihar, (1984) 4 SCC 316.
9. Chiranjit Lal Chowdhuri v. Union of India, (1950) SCR 869.
10. Chunilal Mehta & Sons Ltd. v. Century Spg. Co. Ltd, AIR 1962 SC 1314.
11. Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42.
12. Dhakeswari Cotton Mills Ltd. v. CIT, AIR 1955 SC 65.
13. E. P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
14. J.K. Industries Ltd. v. Chief Inspector of Factories and Boilers, (1996) 6 SCC 665.
15. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 641.
16. K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1.
17. Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225.
18. M. Nagaraj v. Union of India, (2006) 8 SCC 212.
19. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
20. MG Badappanavar v. State of Karnataka, (2001) 2 SCC 666.
21. Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.
6
22. Mohd. Sukur Ali v. State of Assam, (2011) 4 SCC 729.

23. Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666.
24.Nazir Mohamed v. J. Kamala, 2020 SCC OnLine SC 676.
25. Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673.
26. Pankaj Bhargava v. Mohinder Nath, (1991) 1 SCC 556.
27. Pritam Singh v. The State, AIR 1950 SC 169.
28. R.C. Cooper v. Union of India, (1970) 1 SCC 248.
29. S. Sundaram Pillai v. V.R. Pattabiraman, AIR 1985 SC 582.
30. Shayara Bano v. Union of India, (2017) 9 SCC 1.
31. Shin-Etsu Chemical Co. Ltd. v. Vindhya Telelinks Ltd., (2009) 14 SCC 16.
32. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jannat, (2005) 8 SCC 534.
33. State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
34. State of West Bengal v. Vishnunarayan and Associates (P) Ltd., (2002) 4 SCC 134.
35. State Trading Corporation of India, Ltd. v. Chief Trading Officer, (1964) 4 SCR 99.
36. The Commissioner of Income Tax v. The Indo-Mercantile Bank Ltd., AIR 1959 SC 713.
37. Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798.
HIGH COURT CASES:
38. Bayer Corporation v. Union of India, 162 (2009) DLT 371.
7
STATEMENT OF JURISDICTION
It is humbly submitted before the hon’ble Supreme Court of Indiana that the Petitioner has approached
this Court u/a 136(1) of the Constitution of Indiana and the hon’ble Court has the authority to
adjudicate the present matter.
136. Special leave to appeal by the Supreme Court. — (1) Notwithstanding anything in this
Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any
judgment, decree, determination, sentence or order in any cause or matter passed or made
by any court or tribunal in the territory of Indiana.
8
STATEMENT OF FACTS
1. Indiana is a welfare state, that got its independence in 1947 and thus, lays special emphasis on
fundamental rights and the Directive Principles of State Policy.
2. In late 2019, Movid-19 had started spreading throughout the world, which the WHO declared to
be a “pandemic”. Indiana was hit by the first wave of Movid-19 in the first quarter of 2020 which
had devastating effects. And, by the end of May 2020, Indiana had scrupulously controlled the
first wave. Further, Indiana had stated its vaccination program within the age group of 45-60 with
the help of the Movishield vaccine made by the Verum Institute. In the meantime, Dizer, a
pharmaceutical company based in the Joint States of Camaria had applied for patenting Movaxin
in Indiana which was granted the patent at a price of INR 1000.
3. In March 2021, the second wave of Movid-19 had hit Indiana, exacerbating the death count and
the medical infrastructure in Indiana was on the verge of collapse. The government thus, expanded
the vaccination programme to all citizens above 18 years but the number of Movishield vaccine
had been limited which led to the government facing backlash. Thus, a PIL had been filed before
this hon’ble Court to increase the availability of vaccines whereby the Court vide order dated
11.04.2021 directed the Health Commissioner to take effective measures in enhancing vaccine
capacity. Thus, on 16.04.2021 the UoI made an amendment to Sec. 100 of the Patents Act.
Thereafter, the Health Commissioner on 25.04.2021 issued a letter to Dizer informing them that
the UoI had decided to use and license Movaxin to the local vaccine manufacturers and, the
license to manufacture Movaxin had been granted to the Verum Institute; and the royalty rate set
at INR 450 per unit of production.
4. Thus, aggrieved by the letter, Dizer preferred a representation before the MoHFW against the use
of Movaxin without the permission of Dizer and at a less or no profit margin. Further, instead of
licensing and sharing the know-how, Dizer proposed an alternative requesting the UoI to grant
subsidy and in lieu of which, Dizer shall produce 10x the ordinary vaccine capacity at INR 450.
However, the MoHFW didn’t accept the proposal stating that the letter was justified under the
force of law and that Dizer had no force in law whatsoever.
5. Aggrieved by the letter and the amendment, Dizer preferred a writ petition before the hon’ble
High Court of Delphi wherein the Court vide order dated 10.05.2021 partially dismissed the
petition stating that UoI was justified in its act, however, directed the UoI to reconsider the
royalty. Thus, the Petitioner approached this hon’ble Court by way of a petition u/a 136.
9
ISSUES RAISED
[I.]
Whether the Special Leave Petition filed by the petitioner is maintainable or not?
[II.]
Whether the Amendment dated 16.04.2021 is valid in terms of the TRIPS Agreement or not?
[III.]
Whether the letter dated 25.04.2021 is violative of the provisions of Part III of the Constitution of
Indiana?
[IV.]
Whether the Amendment violates Article 300A of the Constitution of Indiana?
10
SUMMARY OF ARGUMENTS
[I.]
It is humbly submitted before this hon’ble Court that the Special Leave Petition is maintainable. The
present matter fulfils the required constituents to approach before this hon’ble Court. Further, the
Petitioner have not been granted the certificate of fitness u/a 134-A which makes it exigent for the
Petitioner to approach before this hon’ble Court.
[II.]
It is humbly submitted before this hon’ble Court that the Amendment dated 16.04.2021 patently
violates the provisions of the TRIPS agreement under several articles of the agreement. The
amendment blatantly neglects the requirements under the TRIPS agreement which constitutes the
amendment to be declared null and void.
[III.]
Indiana?
It is humbly submitted before this hon’ble Court that the letter issued by the Health Commissioner
on 25.04.2021 directing the use and licensing of Movaxin to the local vaccine manufacturers and
further sharing its know-how, patently violates the Petitioner’s right to equality and the right to life
and personal liberty and thus, must be revoked.
[IV.]
It is humbly submitted before this hon’ble Court that the amendment manifestly violates the right to
property u/a 300A. The amendment overpowers the government to deprive any patent holder of his
“private right” under the broad powers of Sec. 100 (1A) of the Patents Act and thus, must be rendered
null and void.
11
ARGUMENTS ADVANCED
[I.]
1. It is humbly submitted before this hon’ble Court that the Petitioner has approached the Supreme
Court u/a 136 of the Constitution of Indiana. Art. 136 is a residuary power1 of this hon’ble Court
and is an overriding power2 because of its non-obstante clause. The power of this Court u/a 136 is
discretionary and has been held to be exercised only in special circumstances3. This hon’ble Court
in Chandra Bansi Singh v. State of Bihar4 has described this discretionary power of the Court in the
following words:
“The Supreme Court is not only a Court of law but a Court of equity as well.”
2. Thus, in the instant case the Petitioner has approached this hon’ble Court due to several reasons
which makes this case fit for the Supreme Court to be maintainable u/a 136 of the Constitution.
3. It has been well-settled that the powers of the Supreme Court to exercise its discretion cannot be
comprehensively defined. However, this Court in Dhakeswari Cotton Mills Ltd. v. CIT5 has held
that although an exhaustive list cannot be laid down to understand the discretionary power vested
with the Supreme Court but, when there are special and exceptional circumstances the jurisdiction
of this Court could be invoked. Further, whenever there is an injustice done to a party; there is
miscarriage of justice or when a question of general public importance arises or that a decision
shocks the conscience of the Court, the Supreme Court has the power to exercise the wide
discretionary power u/a 1366.
No Certificate of Appeal granted:

4. It is humbly submitted before this hon’ble Court that the law of the land requires that in order to
appeal before this hon’ble Court, the grant of certificate of fitness u/a 134A is a pre-requisite.
However, this hon’ble Court in Achyut v State of West Bengal7 has held that the apex Court has the
power to hear appeals in cases which fall outside the scope of Art. 132-134 and in cases where the
1
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 232 (LexisNexis 2018).
2
Narpat Singh v. Jaipur Development Authority, (2002) 4 SCC 666.
3
Pritam Singh v. The State, AIR 1950 SC 169.
4
(1984) 4 SCC 316.
5
AIR 1955 SC 65.
6
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 238 (LexisNexis 2018)
7
AIR 1963 SC 1039
12
High Court has refused to grant the certificate of fitness. Therefore, relying on the fact that in the
instant case the hon’ble High Court of Delphi did not issue the certificate of appeal for the Petitioner
to approach this hon’ble Court and thus, the Petitioner only has the alternative to approach this
hon’ble Court u/a 136 of the Constitution.
No alternative available:
5. It is humbly submitted before that the general rule of approaching this hon’ble Court is by way of
exhausting the lower remedies that are available to the Petitioner. However, a division bench of this
hon’ble Court in Shin-Etsu Chemical Co. Ltd. v. Vindhya Telelinks Ltd.8 has held that the existence
of an alternate remedy does not by itself take away the jurisdiction of the Supreme Court u/a 136.
6. Thus, although the Petitioner has the alternative to approach this hon’ble Court by way of a petition
u/a 32, the same would not suffice the gravity of the case.
Not fit for a petition u/a 32:

7. It is submitted that the present matter does not fit for a petition u/a 32 of the Constitution because
of the limited powers of this hon’ble Court to invoke its jurisdiction. A petition u/a 32 could only
be invoked to enforce the rights conferred under part-III9. However, in the instant case, the matter
falls beyond the power of this hon’ble Court u/a 32 which the Petitioner shall establish in the
subsequent submissions.
8. Thus, it becomes necessary for the Petitioner to refer the matter before this hon’ble Court by way
of a Special Leave Petition u/a 136 of the Constitution.
[I.] Substantial Question of Law:

9. It is humbly submitted before this hon’ble Court that the present matter involves a substantial
question of law and thus, it becomes necessary for the Petitioner to refer the matter before this
hon’ble Court u/a 136.
10. A substantial question of law means that the matter at hand is debatable; there exist contrary
decisions of the High Court or that there exists no precedent that binds on the following issue10 and
that it is to be scrutinized based on the facts and circumstances of each case11. A Constitution bench
8
(2009) 14 SCC 16.
9
INDIA CONST. art. 32.
10
Nazir Mohamed v. J. Kamala, 2020 SCC OnLine SC 676.
11
Pankaj Bhargava v. Mohinder Nath, (1991) 1 SCC 556.
13
of this hon’ble Court in Chunilal Mehta & Sons Ltd. v. Century Spg. Co. Ltd.12 has held that the
proper test to determine whether a matter involved a substantial question of law was to check
whether it pertains to general public importance or that it substantially affects the rights of the
parties. Thus, in the instant case, it is submitted that the issue qualifies the latter requirement.
11. It is submitted that the Union of Indiana introduced a new Sec. 100 (1A) under the Patents Act13
when this hon’ble Court in Johan v. Union of Indiana14 vide its order dated 11.04.2021 directed the
Health Commissioner of Indiana to take immediate measures to enhance the vaccine manufacturing
capacity in the country. In lieu of the order of this hon’ble Court, the Health Commissioner issued
a letter to the Petitioner (Dizer) whereby it stated that the government of Indiana had decided to use
and license Movaxin to the local vaccine manufacturers and that the license to manufacture Movaxin
had been granted to the Verum Institute; subject to payment of INR 450 per dose as royalty.
However, under the garb of the amendment, the letter also stated that the government had decided
to share the know-how of the process to the other local vaccine manufacturers. Aggrieved by this
decision of the Health Commissioner, the Petitioner had proposed an alternative to scrupulously
assist the government in achieving its objective. The Petitioner proposed to produce 10 times more
vaccines than the ordinary production capacity at the same rate (INR 450). However, the same was
neglected stating that the representation made by the Petitioner did not have the force of law.
12. Thus, by unreasonably neglecting the Petitioner’s proposal and thereby, arbitrarily, under the garb
of the amendment, sharing the know-how of the vaccine process, the health commissioner patently
violated the Petitioner’s right to equality and the right to privacy.
[II.] Grave Injustice:

It is humbly submitted before this hon’ble Court that in Pritam Singh v. The State15 this hon’ble Court
held that the discretionary power of this Court should only be exercised where the cases involve a
substantial or grave injustice. Even though the principles laid down in a catena of judgements by this
Court suggest that grave injustice typically constitutes such legal or procedural omission or neglect
that it becomes imperative for the apex Court to look into the matter within its jurisdiction. However,
to say that only a difference of opinion on a certain issue or the overlooking of certain technical or
12
AIR 1962 SC 1314.
13
(Act No.39 of 1970)
14
PIL. No. 2011/2021. See, Moot Proposition at 18.
15
AIR 1950 SC 169.
14
legal procedures constitutes grave injustice, would be undermining the actual scope of the
interpretation of the term.
The gravity of the injustice is notable in the present case as the loss of royalty that the Petitioner
rightly deserves can be the factor that determines the course and success of the future endeavors and
to an extent, the survival of the company (Petitioner) in the market. According to the petitioner, a
grave injustice could consist of several things, potent loss of profit due to patent infringement being
one of such causes. The inventions and uniquely devised processes of the company are a large and
potent source for the income for the company, which if jeopardized, may pose a grave threat to its
existence.
Hence, merely because there was no prima facie technical error in the order of the High Court, or no
difference of opinion has been established, it cannot be construed that there has been no grave
injustice to the petitioner, and that they have valid cause and locus standi to approach this Court.
15
[II.]
1. It is humbly submitted before this Hon’ble Court that the Amendment dated 16.04.21 is not valid
in terms of the TRIPS agreement and violates several provisions of the agreement. The multilateral
agreement of 1995 lays down the provisions for the protection of the intellectual property rights of
member nations and prevents the abnormal abuse of the rights and aims to set certain boundaries
and the scope of such exploitation. It determines the standards for the same, with respect to certain
conditions pertinent to emergencies which may arise and form a strata of member nations on the
basis of their developmental stage. Section 5 of the agreement is concerned with patents and the
procedure of providing the rights involved therein. The member nations are required to dispense the
provisions therein without any prejudice or discrimination to fellow member nations and are obliged
to adhere strictly to the standards mentioned.
2. It is humbly submitted that the Petitioner, a pharmaceutical company named Dizer based in the Joint
States of Camaria, was granted a patent for its newly developed vaccine – Movaxin - for the
treatment of the deadly disease Movid-19 in order to sell in the State of Indiana, and was initially
priced at INR 1000 after the grant of the patent. Thereafter, the government of Indiana amended
Sec. 100 of the Patents Act, 1970 (hereinafter, the Act) which bestowed upon the government power
to completely take over any patent granted under the Act, without the permission of the owner.
Moreover, the two provisos of the amendment further state that the government may share the know-
how of the patent with third parties authorized by it, if the same is to be used for public welfare.
3. It is humbly submitted to his court, that the amendment indirectly violates several Articles of the
TRIPS agreement, and is in complete dissonance with the standards indicated therein.
[I.] Violative of Several Articles of the TRIPS Agreement.

4. It is respectfully submitted to this Court that the amendment dated 16.04.21 with respect to Sec. 100
of the Act of Chapter XVII is concerned with the use and acquisition of certain patents by the
government. The amendment starts with a non-obstante clause in lieu of the whole Act, meaning
that it practically can override the provisions contrary to its effect, and states that the Central
government or any party authorized by it shall have the right to use and license a patent granted
under the Act. In the present case, the right to use and license has specifically been conferred to the
Verum Institute for the manufacturing of vaccines, as stated by the Health Commissioner in the
letter sent to the Petitioner on 25.04.21. It is humbly submitted that the present amendment and
16
conferment of the license to third party manufacturers is a sheer contradiction of the rights of the
Petitioner vis-à-vis the TRIPS agreement.
(A) Violative of the Clauses of Article 31:

5. It is respectfully submitted that the amendment violates clauses (h), (i) and (j) of Article 31 insofar
as the remuneration that the Petitioner is rightfully entitled to, is concerned. Clause (h) reads as
follows:
“[T]he right holder shall be paid adequate remuneration in the circumstances of each case,
taking into account the economic value of the authorization;”
6. The above text indicates clearly and expressly that the patent owner shall be paid adequate fee or
profit, which is also mandated by the amendment so promulgated by the respondent. In the present
case, even though the initial price was INR 1000 per dose, after the amendment and subsequent
notification which was a consequence of the amendment, the price became a mere INR 450 per dose
which is lesser than half the initial price. This measure of the Respondent has not only led the
business into huge losses but also has hampered the future opportunities that the Petitioner could
rely upon to make up for the loss incurred. The counsel would like to draw the Court’s attention to
a very important observation made in the case of Bayer Corporation v. Union of India16 where the
hon’ble High Court adjudged that:
“[I]f after a patentee, rewarded for his toil-in the form of protection against infringement-
were to be informed that someone, not holding a patent, would be reaping the fruits of his
efforts and investment, such a result would be destructive of the objectives underlying the
Patents Act.”,
7. The above observation rightfully upholds the rights of Petitioner citing the factor of profit that the
patent owner is entitled to, and obstructs the basic underlying fundamentals of the patent law. The
fact that the Petitioner is to be paid less than half of the original price per dose at the cost of the
methodology of the vaccine invented by them, is utter disregard to the interests of the petitioner and
also might act as a deterrent for similar companies to get their products patented in Indiana.
Furthermore, Dizer proposed an alternative to the current scheme of vaccination of government that
warranted 10 times the original production, but the government paid no heed to the proposal and
went ahead with its decision to lend the entire know-how of the vaccine making process to Verum
16
162 (2009) DLT 371.
17
Institute and other manufacturers, with little to no return to the patent owner. This amounts to an
express neglect of the obligation highlighted under Article 31(h).
8. It is further submitted that the amendment is subject to judicial review under the international
standards laid down by the agreement under Article 31(i) and (j), as cited below:
“(i) the legal validity of any decision relating to the authorization of such use shall be subject
to judicial review or other independent review by a distinct higher authority in that Member;
(j) any decision relating to the remuneration provided in respect of such use shall be subject
to judicial review or other independent review by a distinct higher authority in that
Member;”
9. The above-mentioned clauses are two-fold in nature in the context of the extant case. Firstly, clause
(h) outlines the subjection of any such measure or decision taken in order to authorize such use of
the patent under Article 31 to judicial review before the such concerned body having authority,
which the hon’ble Supreme Court of Indiana rightly holds. Hence, the current dispute regarding the
invasion of the Petitioner’s rights is also covered by the agreement and the Petitioner has every right
to invoke this clause to pray before this Court for appropriate remedies.
10. Secondly, clause (j) provides that any decision relating to the remuneration decided for the use and
license of such patent to be given to the patent owner, shall also be subject to judicial review by the
same distinct authority if the owner is satisfied that the remuneration to be paid is not adequate or
is unfair and does not involve complete application of mind. The owner has a right to approach this
Court to judicially review the available and current fee per dose been paid to Dizer for not being in
conformity with the interests of the company and is completely apathetic and indifferent towards
the monetary investment that has gone into the making of the vaccine. The amendment made does
not keep in mind the interests of the patent owners that might have huge monetary backing for their
research and development of drugs and to have it used by third parties without being sufficiently
paid or subsidized by the government would result in a gross miscarriage of justice and harm the
incentives of the owner to further supply the same to Indiana. It is hence submitted that, the
amendment and the decision of the Respondent to price the vaccine at INR 450 per dose is subject
to judicial review under the said Article.
18
(B) Violates Article 28:

11. It is humbly submitted that the amendment violates Article 28 of the agreement as it potentially
denies the patent owner, the Petitioner in this case, their rights to their methodology and to receive
the profits made thereby. The second clause of Article 28.1 goes as follows:
“(b) where the subject matter of a patent is a process, to prevent third parties not having the
owner’s consent from the act of using the process, and from the acts of: using, offering for
sale, selling, or importing for these purposes at least the product obtained directly by that
process.”
12. It can be clearly inferred from the text above that the rights that the patent owner can be granted are
not to be taken away without their consent, whereas, the Petitioner in the present case was merely
notified, and not asked for their consent and no attempt was made at reaching an agreeable
conclusion even though the Petitioner had proposed an alternative to sharing the know-how of their
product. Simply on the basis of the amendment and the letter sent to the management of Dizer, the
government and other third-party manufacturers acquired directly the entire know-how of Movaxin,
which as a result has resulted in the loss to the Petitioner. It is humbly submitted that the
unreasonable use without well-found grounds or proper reason, arising from the amendment, prima
facie violates not only the Petitioner’s rights under Article 28 but also is a substantial question to
the entire foundation of the patent law existing in the international arena.
(C) Violates Article 30:

13. It is further submitted that the amendment violates the exceptions provided u/a 30 of the agreement
as it has a few essentials that need to be paid due attention, which the enactment in question
unreservedly overlooks and pays no consideration to. The provision is as follows:
“Members may provide limited exceptions to the exclusive rights conferred by a patent,
provided that such exceptions do not unreasonably conflict with a normal exploitation of the
patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking
account of the legitimate interests of third parties.”
14. It is humbly submitted that the above text consists of the following terms:
(i) “unreasonably conflict with normal exploitation” and,
(ii) “do not unreasonably prejudice the legitimate interests of the patent owner”.
19
15. The terms have been defined aptly in the Panel Report of WTO dispute of Canada and the European
Communities in Canada17 as:
“[T]he normal practice of exploitation by patent owners, as with owners of any other
intellectual property right, is to exclude all forms of competition that could detract
significantly from the economic returns anticipated from a patent's grant of market
exclusivity. Protection of all normal exploitation practices is a key element of the policy
reflected in all patent laws. . . the policy of those laws cannot be achieved unless patent
owners are permitted to take effective advantage of that inducement once it has been
defined.”
16. The above report highlights the definition of the term “normal exploitation” as expected exploitation
of the patent by its owner to reap economic benefits; in essence the economic value that patent
confers on its owner for its rightful use and sale, by the owner and no other party. This constitutes
the bedrock of the patent law and is indicative of the fact that an effort by any other party to use,
license, sell or indulge in other such activity which rears economic benefit from the product or
process of which the direct result is the product, without the prior consent of the original patent
owner, amounts to an infringement of the patent owner’s rights.
17. Another term to be noted in the above text is “limited exceptions”, which has been reiterated in the
same report and defined at length as:
“[T]he Panel agreed with the EC interpretation that 'limited' is to be measured by the extent
to which the exclusive rights of the patent owner have been curtailed. In the absence of other
indications, the Panel concluded that it would be justified in reading the text literally,
focusing on the extent to which legal rights have been curtailed, rather than the size or extent
of the economic impact.”18
18. The above-mentioned interpretation applies to the current case and defines rightly the term “limited
exceptions”. The amendment does not conform with Art. 30 by reason of being unreasonably wide,
to be appropriately categorized under ‘limited’ exceptions. As stated above, the legal rights of the
Petitioner have been infringed insofar as the company hasn’t been promised a reasonable amount
of profit, as well as directly acquiring the entire know-how to the advantage of the Respondent and
third parties authorized by it. The added factor here is that the infringement is not temporary or
17
UNCTADhttps://unctad.org/ippcaselaw/sites/default/files/ippcaselaw/202012/WTO%20Canada%20pharmaceuticals
.pdf (last visited Oct. 14, 2021).
18
Ibid.
20
short-lived, but from the Petitioner’s view of their business, it can prospectively harm other ventures
and endeavors. Since there is no formal contractual license agreement between the Respondent and
the Petitioner, Article 28.2 is also violated to this extent, for if it were to occur that the Movid-19
disease was to perpetually exist and it would become difficult to determine a particular treatment or
cure for the same, the Petitioner would not have the incentive of financial backing or support or the
market exclusivity or monopoly needed to further carry on their research and develop new vaccines
if the current situation would not be improved; however, the amendment would allow the use and
license of the Petitioner’s patent for an indefinite duration without any formal agreement, which
would mean a perpetual and unfettered violation of the Petitioner’s right.
[II.] Excessively Broad and Expansive Power ultra vires the Agreement:
19. It is humbly submitted that the amendment so promulgated is excessively broad and provides room
not for wide interpretation but misinterpretation. The language of the amendment does not
appropriately define the term “public welfare” and neglects the possibility that public welfare may
be invoked for a plethora of other reasons which may entail none of the conditions mentioned in the
provisions, and undoubtedly be ultra vires the agreement.
(A) Broad interpretation of “public welfare”:

20. It is humbly submitted that the amendment is too broad for interpretation within the limits of the
TRIPS agreement and cannot be read with the provisions of the same. The first proviso provides for
the use of the know-how of the patent on grounds of “public welfare” which may warrant for all the
miscellaneous situations and purposes on the basis of which the patent may be used by third parties
authorized by the government. This measure of discretionary power is arbitrary and unreasonable
as there are no limits to the use of the patent by either the government or third parties, which can
potentially amount to abnormal exploitation of the patent which further goes beyond the confines
of the exceptions mentioned in Article 30 and 31(b). Article 31(b) specifies only 3 extraordinary
situations wherein the patent may be used ‘without the prior permission of the owner’:
(i) national emergency,
(ii) circumstances of extreme urgency and,
(iii) public non-commercial use.
21. It is humbly submitted that these conditions can come under ‘public welfare’ along with a variety
of other situations which are not accounted for in the agreement. This constitutes a direct
21
contravention of the object of the agreement as it allows the implementation of its provisions as per
the requirements of each Member nation as long as the object of the agreement stays intact. In the
current case legislation in question goes beyond the purview of the said provisions and is clearly
ultra vires the agreement.
(B) Proviso overrides the objective of patent protection:

22. It is humbly submitted that the provisos of the amendment override the object of the Indianan
Patents Act and act as standalone provisions to be applied in the discretion of the government. Thus,
in the context of understanding the nature of a proviso, it is pertinent to refer the observation of
Fazal Ali J. (on behalf of himself and Varadarajan J.) in S. Sundaram Pillai v. V.R. Pattabiraman19.
His lordship explained that the true nature, scope and ambit of a proviso is:
(i) to act as an exception to something within the main enactment or,
(ii) to qualify something which is within the purview of the enactment.
23. Further in J.K. Industries Ltd. v. Chief Inspector of Factories and Boilers20 the Court held that a
proviso is normally used to remove special cases from the general enactment and provide for them
specially. Thereafter, in The Commissioner of Income Tax v. the Indo-Mercantile Bank Ltd.21 this
Court held that a proviso should be interpreted narrowly unlike a right which warrants liberal
interpretation and that a proviso must be interpreted keeping in mind the scope of the main
enactment to which it forms a proviso.
24. Hence from the above judgements, it is clear and safe to conclude that the purpose of a proviso is
not to negate the existence of the whole Act but only to provide for exceptional and chosen
circumstances where the provision is not to apply, or to be applied with slight modifications. A
proviso is interpreted so as to narrow down the application of the law to certain particular situation
and not to broaden its purview beyond the main enactment. A proviso cannot be said to invalidate
the whole object of the amendment and be made as a provision that can be used of its own accord,
independently, without any regard to the other existing provisions in the Act. The two provisos in
the impugned amendment, blatantly disregard the interests and rights of the petitioner, the rightful
owners of the patent.
19
AIR 1985 SC 582.
20
(1996) 6 SCC 665.
21
AIR 1959 SC 713.
22
[III.]
Indiana?
1. It is humbly submitted before this hon’ble Court that the letter issued by the Health Commissioner
on 25.04.2021 is violative of part-III of the Constitution. The letter violates Art. 14 and 21 of the
Constitution of Indiana thereby, depriving the Petitioner of its concomitant right to equality and the
right to life and personal liberty.
2. The object behind enacting part-III was primarily to grant protection to the subjects of the State
against the actions of the State. These fundamental rights are available to “citizens” as well as
“persons”, depending upon the text of the particular right. However, a pertinent question that arose
before a constitution bench of this hon’ble Court was whether a company could be granted the
protection of fundamental rights? Thus, in Chiranjit Lal Chowdhuri v. Union of India22 after a
comprehensive analysis it was held that the fundamental rights were not merely available to natural
persons but were also available to juristic persons. Further, a nine-judge bench of this hon’ble Court
in State Trading Corporation of India, Ltd. v. Chief Trading Officer23 reaffirmed the observations
held in Chiranjit’s case stating that the Constitution did not lay down the meaning of “person” and
thus, u/a 367, it was pertinent for the Court to refer to Sec. 3(42) of the General Clauses Act24 which
states that “person” includes any Company or association or body of individuals whether
incorporated or not. Thus, in the present matter, the Petitioner has the right to challenge the
impugned letter vis-à-vis fundamental rights.
3. It is submitted that the hon’ble Supreme Court in Kesavananda Bharti v. State of Kerala25 has held
that any law and action of the State that is violative of the provisions of part-III is subject to judicial
review and can be declared void. This Court has also held that Directive Principles of State Policy
(DPSP) could be granted primacy26 over fundamental rights in certain situations. However, on this
point of primacy to the DPSPs, this Court in State of Madras v. Champakam Dorairajan27 has held
that when there is a conflict between a fundamental right and a DPSP, the former shall prevail. Thus,
22
(1950) SCR 869.
23
(1964) 4 SCR 99.
24
(Act No. 10 of 1897).
25
(1973) 4 SCC 225.
26
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jannat, (2005) 8 SCC 534.
27
AIR 1951 SC 226
23
the impugned letter can be challenged on the grounds of being inconsistent28 with part-III of the
Constitution.
[I.] Violation of Article 14:

4. Article 14 of the Constitution talks about the right to equality. The following Art. grants two types
of equality: (a) “equality before law” and, (b) “equal protection of law”. It has been well settled by
this Court that equality cannot be confined to a ‘narrow, pedantic and lexicographic’ interpretation
and is not merely a doctrinaire approach to ‘reasonable classification’ but also inclusive of ‘non-
arbitrariness’29.
5. In the present case the impugned letter deprives the Petitioner of “equality before law” which lays
down that “like should be treated alike”30. The Petitioner contends that the impugned letter falls foul
of the equality clause and thus, violates the Petitioner’s right to equality. It has been held by this
hon’ble Court that equality is a basic feature of the Constitution31 and any treatment of equals as
unequal is a sheer violation of the basic structure32.
6. It is submitted that a Patent forms the ‘private right’ of a person and thus, the primary objective of
patenting is to protect it from unauthorized and arbitrary use. Further, the action of granting patent
is to safeguard it from being easily available to the public and to protect its sui generis character.
However, the impugned letter, arbitrarily, deprives the Petitioner of its right to equality by
emasculating the sanctity of its protection.
Arbitrary State Action:

7. The hon’ble Supreme Court in E.P. Royappa v. State of Tamil Nadu33 introduced a new facet of
right to equality. The Court while adjudicating the matter, held that Art. 14 acts as the bulwark
against any arbitrary or discriminatory state action34. Further, this Court in Maneka Gandhi v. Union
of India35 relying on the decision of this hon’ble Court in Royappa’s case, applied the doctrine of
arbitrariness to determine the action of the passport’s authority and also affirmed that the test of
“direct and inevitable effect” laid down in R.C. Cooper v. Union of India36 is the right criterion to
28
INDIA CONST. art. 13 cl. 2
29
E. P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
30
MP JAIN, INDIAN CONSTITUTIONAL LAW 907 (LexisNexis 2018).
31
M Nagaraj v. Union of India, (2006) 8 SCC 212.
32
MG Badappanavar v. State of Karnataka, (2001) 2 SCC 666.
33
(1974) 4 SCC 3.
34
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 907 (LexisNexis 2018).
35
(1978) 1 SCC 248.
36
(1970) 1 SCC 248.
24
determine the validity of the action of the executive vis-à-vis violation of fundamental rights. Thus,
in the instant case, the test of “direct and inevitable effect” is the true criterion to be applied to
determine the validity of the letter issued by the health commissioner.
The test of “Object and Effect”:

8. In R.C. Cooper v. Union of India37, the Petitioner contended that the nationalization of banks led to
an abridgment of the right of the Petitioner, inter alia, the right to receive dividends and contended
that the impugned action of the Government to achieve a particular objective, abridging the
fundamental right of the Petitioner, had to be rationally scrutinized. Thus, Mr. Palkhivala proposed
the test of “object and effect” to determine such an impugned action. The test lays down that the
‘object’ of a law may be to achieve a particular fundamental right but in doing so, the ‘effect’ may
be the contravention of another fundamental right.38 This was affirmed by this Court in the Maneka
Gandhi case as the test of “direct and inevitable effect” and held that:
“It is possible that in a given case the pith and substance of the State action may deal with
a particular fundamental right but its direct and inevitable effect may be on another
fundamental right and in that case, the State action would have to meet the challenge of the
latter fundamental right39.”
(i) Object:
9. It is submitted before this hon’ble Court that the ‘object’ behind the action of the health
commissioner to protect the “right to health40” of the citizens of the country maybe of utmost
importance but such an action must be rationally balanced with the fundamental rights of the
Petitioner. The ulterior motive behind issuing such a letter to make unauthorized use of Movaxin
was to enhance the vaccine manufacturing capacity in the country and to act as a panacea to the
exponential rate of casualties. Such an action to ‘unauthorizedly’ use Movaxin would have been
clearly justified in the current situation u/a 31(b) of the TRIPS agreement r/w the principles of the
Doha Declaration keeping in mind that the present situation constitutes a circumstance of “extreme
urgency”. Thus, the object behind issuing such a letter may be bona-fide but it certainly does not
surpass the stage of its “effect”.
37
Ibid.
38
ARVIND P. DATAR & SOLI J. SORABJEE, NANI PALKHIVALA: THE COURTROOM GENIUS 72 (LexisNexis
2012).
39
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 para 70.
40
See, Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42
25
(ii) Effect:
10. It is submitted that in order to achieve the objective of one fundamental right, the other cannot be
breached. The letter issued by the health commissioner licensing the Verum Institute to
unauthorizedly use Movaxin is ipso facto questionable when Dizer, in the alternative, had proposed
to enhance the vaccine production by 10 times the same rate; which was denied. It may be presumed
that the Government by denying a much effective proposal to protect the “right to health” of the
public has in the contrary put the right to health of the public at stake. The very objective behind
issuing the letter was to undertake “immediate measures to enhance the availability of the vaccines”
as this hon’ble Court had directed in Johan v. Union of Indiana vide PIL no. 2011/202041. However,
while upholding the right to health of the public, the concomitant right to privacy of the Petitioner
cannot be breached. Thus, it would be important to determine whether there is any violation of the
right to privacy and, if there is a violation of the right to privacy, the action of the health
commissioner would lack effective application of mind and is to be construed as an arbitrary
exercise of power42.
[II.] Violation of Article 21:

11. It is humbly submitted before this hon’ble Court that Art. 21 of the Constitution covers a wide
variety of rights43 available to “persons”. The Judiciary has from time-to-time broadened the scope
of this Art. and has been held to be the “heart and soul”44 of the fundamental right.
12. A reference to the Constituent Assembly Debates infers that the Constitutional forefathers had to
take a tough call in deciding between “due process of law” and “procedure established by law”.
However, after a critical analysis of the two clauses the latter was incorporated to be best suitable
for the Indianan Constitution regarding the necessity to enact certain welfare legislations 45. It has
been well settled that the Court has the power to judicially review an executive action. Further, this
hon’ble Court in Maneka Gandhi v. Union of India has held that the expression “procedure
established by law” must be just, fair and reasonable46 and not arbitrary, fanciful or oppressive47.
41
See, Moot Proposition at 18.
42
Onkar Lal Bajaj v. Union of India, (2003) 2 SCC 673.
43
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
44
Mohd. Sukur Ali v. State of Assam, (2011) 4 SCC 729.
45
Constituent Assembly Debates, Vol. 7 (13th December 1948).
46
Solil Paul, Was ‘Due Process’ Due? — A Critical Study of the Projection of ‘Reasonableness’ in Article 21 Since
Maneka Gandhi, 1 SCC J-1, J-3 (1983).
47
(1978) 1 SCC 248.
26
Reiterating the same, this Court in Bachan Singh v. State of Punjab48 relying on Maneka Gandhi’s
case clarified that:
“If this Article is expanded in accordance with the interpretative principle indicated in
Maneka Gandhi, it will read as follows: No person shall be deprived of his life or personal
liberty except according to fair, just and reasonable procedure established by valid law.”
Breach of Right to Privacy:

13. The hon’ble Supreme Court in Justice K.S. Puttaswamy v. Union of India49 has held that the right
to privacy is an inherent fundamental right u/a 21 and any unlawful intrusion of privacy is subject
to judicial review. However, the observation of Lord Camden in Entick v. Carrington50 (1765) is of
utmost relevance in the present matter. His Lordship held that:
“[E]very invasion of private property, be it even so minute, is a violation of privacy.”
14. Thus, preserving the right to privacy is of utmost importance and it is implicit in it that intellectual
property right is the “private right” of its holder. However, the letter issued by the health
commissioner to procure the know-how of Movaxin and further, distribute the same to the Verum
Institute as well as to the local vaccine manufacturers is manifestly violative of privacy. Thus, in
order to determine a violation of privacy, the Court in the Puttaswamy case laid down the test of
“legality, necessity and proportionality51”.
15. In an article written by A.K. Sikri J. titled “Proportionality as a Tool for Advancing Rule of Law”,
his lordship explaining the Puttaswamy judgment stated that: whenever an action of the State on the
ground that it violates the right to privacy, the action of the State is to be tested on the following
parameters:
(a) the action must be sanctioned by law;
(b) the proposed action must be necessary in a democratic society for a legitimate aim; and
(c) the extent of such interference must be proportionate to the need for such interference52.
Test of Privacy:
48
(1982) 3 SCC 24.
49
(2017) 10 SCC 641.
50
19 Howell State Trials 1029 (1765).
51
Raddivari Revathi, Evolution of Privacy Jurisprudence - A Critique, 60 JILI 189, 189 (2018).
52
(2019) 3 SCC J-1 at J-14
27
(i) Legality:
16. An action of the State to invade a person’s privacy must be backed by ‘law’ and must be intra vires
the legislation. Thus, for the encroachment of privacy, the existence of a ‘law’ is sine qua non. Thus,
under the garb of the amendment, it cannot be said that the action lacks the authority of law.
Therefore, the action taken by the health commissioner justifies the first stage under the garb of the
amendment.
(ii) Necessity:
17. Chandrachud J. in the Puttaswamy judgment propounding the test of privacy, in the context of
“necessity” held that:
“[T]he requirement of a need, in terms of a legitimate state aim, ensures that the nature and
content of the law which imposes the restriction falls within the zone of “reasonableness”
mandated by Article 14”.
18. Thus, it becomes imperative to understand the term “reasonable”. This Court in Union of India v.
Shiv Shanker Kesari53 held that the expression “reasonable” signifies “in accordance with reason”
and is a question of fact that needs to be analyzed on the circumstances of a given case. Further,
relying on the words of Bhagwati J. in Maneka Gandhi’s case, it must be construed that the
expression “reasonableness” means to be “just, fair and reasonable”. Thus, the action of the health
commissioner to procure the know-how of the vaccine rather than agreeing to the proposal of Dizer
falls foul of the requirement of a “fair” action.
19. Therefore, although the action undertaken by the health commissioner is in consonance of protecting
public health (legitimate state aim), it cannot be considered to be “just” when the objective of the
action i.e., to enhance vaccine production, could have been aptly achieved without procuring the
know-how of the vaccine.
(iii) Proportionality:
20. The doctrine of proportionality has been defined as a set of rules determining the necessary and
sufficient conditions for limiting a constitutionally protected right by a law to be constitutionally
permissible54. Thus, in Modern Dental College and Research Centre v. State of Madhya Pradesh55
this hon’ble Court relying on the words of Aharon Barak J. (former C.J, Supreme Court of Israel)
53
(2007) 7 SCC 798.
54
3 SCC J-1, J-15 (2019).
55
(2016) 7 SCC 353.
28
held that there are four stages to consider an action to be proportional: (a) legitimacy stage, (b)
suitability stage, (c) necessity stage and (d) balancing stage. Thus, when a state action is too
invasive, the Courts can determine as to whether the action is disproportionate56. And so, it becomes
pertinent to analyze the present matter vis-à-vis the proportionality test.
Test of Proportionality:
(a) Legitimacy stage:

21. In this stage, the action taken must be for a proper purpose or object. Therefore, in the instant matter
the letter issued by the health commissioner, backed by the authority of law, is in the interest of
protecting the public health.
(b) Suitability stage:
22. In this stage, the measure undertaken to impose a restriction on the exercise of a fundamental right
must be rationally connected to the purpose. The measure undertaken to achieve the object must be
suitable. Thus, licensing Verum Institute to manufacture Movaxin by sharing the know-how of the
process was for the purpose of enhancing the vaccine production.
(c) Necessity stage:
23. This stage defines that the measure undertaken to achieve the objective must be the “least restrictive
measure”57 or that “there must not be any less restrictive but equally effective alternative” 58. Thus,
per se the action of the health commissioner to deny an effective alternative, ipso facto, renders the
action to be against the necessity stage.
(d) Balancing stage:
24. The final stage states that there must be a proper balance between the measure undertaken to achieve
that purpose and the importance of restricting the constitutional right. Thus, in the instant case the
measure of procuring the know-how of the process and further licensing it to the Verum Institute as
well as to the local vaccine manufacturers in order to enhance the vaccine production does not
reasonably balance the two when the same could have been achieved in a more harmonious manner.
25. Thus, the impugned letter does not satisfy the test of “privacy and proportionality” to be considered
as a valid action. Further, the impugned letter violates the right to equality of the Petitioner by failing
56
A.K. Sikri, Proportionality as a Tool for Advancing Rule of Law, 3 SCC J-1, J-4 (2019).
57
Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 YLJ 8 (2015).
58
A.K. Sikri, Proportionality as a Tool for Advancing Rule of Law, 3 SCC J-1, J-19 (2019).
29
to satisfy the test of “object and effect” whereby, the effect of the impugned letter blatantly violates
the right to privacy of the Petitioner and thus, must be declared void.
30
[IV.]
1. It is humbly submitted before this hon’ble Court that the amendment patently violates the right to
property u/a 300A of the Constitution. Art. 300A is a reproduction of the repealed Art. 31(1) and
therefore, the judgments of the Supreme Court are guiding sources for the interpretation of this
Article59.
2. According to Salmond, intellectual property is an incorporeal property60, and thus considers it to be
a right in re propria thereby meaning that, it contains ownership right and cannot be easily
accessible in the interest of public. A constitution bench of this hon’ble Court in K.T. Plantation (P)
Ltd. v. State of Karnataka61 has held that the expression “property” u/a 300A is not merely confined
to land alone but also includes within it, intangibles like intellectual property and embraces every
possible interest recognized by law. Thus, a deprivation of intellectual property can be challenged
as a violation of the right to property. But can a law be declared void on the ground of it being
inconsistent with a constitutional right? Thus, this Court in Ambika Prasad Mishra v. State of Uttar
Pradesh62 held that a deprivation of property amounts to the violation of the right guaranteed under
Article 21 of the Constitution of India by observing that:
“Proprietary personality was integral to personal liberty and a mayhem inflicted on
property was an amputation of his personal liberty.”63
3. Therefore, a deprivation of property constitutes a violation of personal liberty and thus, the
impugned law can be declared void. Further, this Court in the K.T. Plantation case has held that
the expression ‘law’ in Art. 300A must be a valid law64.
4. The Patents Act, u/s 102 provides the Central government the authority to ‘acquire’ any invention
or patent for public purposes and such a deprivation of property is considered to be justified under
the doctrine of “eminent domain”. However, the expression “deprivation” does not simply mean
acquisition but also includes any action that takes away or abridges the right of the aggrieved. Sec.
102 only talks about “acquisition” whereas, Sec. 100 (1A) overpowers Sec. 102 (due to its non-
obstante clause) and thereby, by granting a broad discretionary and arbitrary power to the
59
T.K. Tope, Forty-fourth Amendment and the Right to Property, 4 SCC J-27, J-28 (1979).
60
A.K. Ganguli, Right to Property: Its Evolution and Constitutional Development in India, 48, JILI 489, 490 (2006).
61
(2011) 9 SCC 1.
62
(1980) 3 SCC 719.
63
Id at 12.
64
(2011) 9 SCC 1 at 191.
31
Government to unauthorizedly use the patent for purposes of “public welfare” and further
constituting a deprivation of property, manifestly violates article 14 and 21 of the Constitution.
[I.] Abuse of the Doctrine of Eminent Domain:

5. The doctrine of eminent domain states that “private property” is merely an acquired right of the
holder and that the Sovereign has the power to abridge such a right for “public purposes” subject to
the payment of “compensation”65.
6. The opening text and the first proviso to the amendment ipse dixit shows the colorable nature of the
amendment to be under the eminent domain of the State:
“1A- Notwithstanding anything contained in this Act, the Central Government or any official
authorized in writing by it shall have the right to use or license the use of any such patent
that has been granted under this Act, subject to the payment of reasonable fee or profit.
Provided that, the government may also share the know-how, if the patented product is to
be used for public welfare.”
7. Thus, it is pertinent to believe that the amendment directly or indirectly relates to a deprivation of
property under the doctrine of eminent domain. However, this hon’ble Court has laid down the
criteria to determine whether a law depriving a person of property is reasonable or not.
8. Thus, this Court in State of West Bengal v. Vishnunarayan and Associates (P) Ltd.66 held that a
person can be deprived of his property only through a legislative action and not merely by an
executive order and such a law has to satisfy the twin test of “public purpose” and “compensation”.
(i) Public Purpose:

9. Indiana being a “welfare state” has to fulfil the obligations mentioned under part-IV of the
Constitution and that, Arts. 39-51 are all obligations in the interest of “public welfare”. However,
the expression “public purpose” means that the law depriving any person of property is in the
interest of the general public and the purpose of such a law is directly and vitally to subserve the
public interest67.
10. The two expressions closely inter-link each other. Thus, it becomes pertinent to refer the
observations of this Court in K.T. Plantation Pvt. Ltd. vs. State of Karnataka68, whereby the Court
65
Hashmat Ali Khan, The Land Acquisition Policy in India with Special Reference to Property Rights: An Analysis, 23
ALJ 303, 303 (2015-16_.
66
(2002) 4 SCC 134.
67
Bhim Singhji v. Union of India, (1981) 1 SCC 166.
68
(2011) 9 SCC 1.
32
observed that the concept of “public purpose” has been given fairly expansive meaning which has
to be justified upon the purpose and object of the statute and the policy of the legislation. Thus, it
can be construed that the primary objectives behind the enactment of the Patent Act was to:
(i) formulate a comprehensive patent regime in Indiana that conforms to the obligations
under the TRIPS agreement.
(ii) keeping in mind that a patent is a private right of the owner, providing sufficient
protection to the holder, and,
(iii) formulating a harmonious balance between protecting the right of the patent holder as
well as utilizing such a patent for the welfare of the country.
11. Thus, in the light of the Patents Act, it must be presumed that although the eminent domain of the
government is to undertake certain acts which deprive the owner of the right to property, such a
deprivation by way of ‘using’ the patent of the owner under the garb of “public welfare” only
furthers the power of the government to justify its act to be for a “public purpose” and only favors
the interest of public and would blatantly marginalize the fact that intellectual property is a “private
right” of the owner.
(ii) Compensation:
12. The expression “subject to the payment of reasonable fee or profit” forms the precondition to
deprive an owner of his/her patent. Such an expression forms the second criteria i.e., of the payment
of “compensation” in lieu of action taken for “public purpose”.
13. The expression “reasonable” means “to be backed by reason” and such a reason must be based on
the facts and circumstance of each case69. The amendment does not specify as to what would
constitutes “reasonable fee or profit” and thus, in every circumstance the royalty may vary according
to the facts and circumstances of each case as well as on the discretion of the government and not
on the “economic value” of the patent. It is also possible to presume that under the garb of “public
welfare”, the owner may be deprived of his/her property without the payment of even “just royalty”
due to the vague and unbridled interpretation of the expression “reasonable fee or profit”.
14. Therefore, it becomes necessary to refer the judgment of this hon’ble Court in Shayara Bano v.
Union of India70 whereby this Court held that “manifest arbitrariness” is something that is done by
69
Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798.
70
(2017) 9 SCC 1.
33
the legislature capriciously, irrationally or when something is done which is excessive and
disproportionate.
15. Thus, the amendment by providing blatantly excessive power and discretion to the Government
under the garb of “public welfare” is contended to be manifestly arbitrary and constituting an
indomitable deprivation of the right to property.
34
PRAYER
Wherefore in light of the issue raised, arguments advanced and authorities cited, the Counsels for
the Petitioner humbly pray that the Hon’ble Supreme Court be pleased to adjudge and hold that:
1. The Special Leave Petition is allowed.

2. Declare the Amendment dated 16.04.2021ultra vires the TRIPS Agreement.
3. Declare the Amendment dated 16.04.2021 ultra vires of part-III of the Constitution.
4. Direct the Health Commissioner of Indiana to revoke the letter issued to Dizer
dated 25.04.2021.
5. Direct the Ministry of Health and Family Welfare to accept the alternative
proposed by Dizer.
And / Or
Pass any other order or relief that may deem fit in the interest of Justice, Equity and Good
Conscience. All of which is most humbly and respectfully submitted.
And this act of kindness, the counsel for the Petitioner shall duty bound forever pray.
SD/-
(Counsels on behalf of the Petitioner)
35

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T24

8TH IMS UNISON UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2021

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIANA

CHALLENGING THE VALIDITY OF SEC. 100 (1A) OF THE INDIANA

S.L.P No. _____ of 2021

UNION OF INDIANA & ORS…………….…………….…(RESPONDENT)

BEFORE THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF

MEMORANDUM ON BEHALF OF THE PETITIONER

1 INDEX OF ABBREVIATIONS 3-4

2 INDEX OF AUTHORITIES 5-7

7 BODY OF ARGUMENTS 12-34

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMORANDUM ON BEHALF OF THE PETITIONER

1. AIR All India Reporter

3. C.J. Chief Justice

6. INR Indianan National Rupee

10. MoHFW Ministry of Health and Family Welfare

12. PIL Public Interest Litigation

13. r/w Read with

MEMORANDUM ON BEHALF OF THE PETITIONER

14. SC Supreme Court

15. SCC Supreme Court Cases

16. SCR Supreme Court Reporter

17. Sec. Section

18. TRIPS Agreement on Trade Related aspects of

19. u/a Under Article

20. u/s Under Section

21. UoI Union of Indiana

22. US United States

24. WHO World Health Organization

MEMORANDUM ON BEHALF OF THE PETITIONER

• CONSTITUTION OF INDIA, 1950.

• AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY

• THE GENERAL CLAUSES ACT, 1897 (ACT NO.10 OF 1897).

• ARVIND P. DATAR & SOLI J. SORABJEE, NANI PALKHIVALA: THE COURTROOM

ARTICLES & JOURNALS

MEMORANDUM ON BEHALF OF THE PETITIONER

• Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 YLJ 8 (2015).

SUPREME COURT CASES:

3. A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

MEMORANDUM ON BEHALF OF THE PETITIONER

22. Mohd. Sukur Ali v. State of Assam, (2011) 4 SCC 729.

HIGH COURT CASES:

38. Bayer Corporation v. Union of India, 162 (2009) DLT 371.

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMORANDUM ON BEHALF OF THE PETITIONER

Whether the Amendment violates Article 300A of the Constitution of Indiana?

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMORANDUM ON BEHALF OF THE PETITIONER

No Certificate of Appeal granted:

MEMORANDUM ON BEHALF OF THE PETITIONER

Not fit for a petition u/a 32:

[I.] Substantial Question of Law:

MEMORANDUM ON BEHALF OF THE PETITIONER

[II.] Grave Injustice:

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMORANDUM ON BEHALF OF THE PETITIONER

[I.] Violative of Several Articles of the TRIPS Agreement.

MEMORANDUM ON BEHALF OF THE PETITIONER

(A) Violative of the Clauses of Article 31:

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMORANDUM ON BEHALF OF THE PETITIONER

(B) Violates Article 28: