The jurisdiction of a court in cases such as Novartis is definitely a crucial issue with the possibility o f triggering some overwhelming consequences. With regard to the TRIPS
245 Equal Opportunity Commission & Another v Secretary o f State for Employment (1994) 1 ALL ER, 910.
246 Judgment of the High Court of Judicature at Madras in Novartis AG v Union o f India (2006) 25. 247 Ibid. 26.
Agreement 1994, this question has not been raised for the first time in the Novartis case. However, the Novartis court responded to this issue in a unique way by declining its jurisdiction altogether instead of differentiating between the questions of the court’s jurisdiction and the petitioner’s standing. Indeed it refused to deal with the question of standing by surrendering its own jurisdiction without actually looking into trends set out elsewhere in matters pertaining to similar issues.
Most of the courts in other jurisdictions, which were confronted with matters pertaining to the validity of national laws in view of the obligations of the TRIPS Agreement 1994, had clearly assumed their jurisdictions and then disposed of the matters on the basis of respective legal systems and individual merits. Interestingly, none of these courts refused to deal with the matters merely on the ground that such matters could only be
raised before the dispute settlement body envisaged under the TRIPS Agreement 1994.
Under the rubric of the doctrine of direct effect, these courts sometimes refused to afford any relief to the challenging parties, but in very clear terms there was no attitude of avoidance as we can observe in the Novartis judgment.
The most recent example is the judgment of the European Court of Justice (ECJ) in
Merck Genericos - Produtos Farmaceuticos Lda v. Merck & Co. Inc., Merck Sharp & Dohme LdcC48 where on a question referred by a Portuguese court concerning Article 33
of the TRIPS Agreement 2004, the Court declared that ‘national courts may
independently decide whether to apply the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) directly in the field of patents’.249 In this case,
~4S Merck Genericos - Produtos Farmaceuticos Ld“v. Merck & Co. Inc., Merck Sharp & Dohme Lcf'Case C 431/05 , http://curlcx.europa.eu/LexUriScrv/LcxUriServ.do?uri=CELEX:62005J0431 :EN:11TML. ~49 ECJ Assessed the Direct Applicability of TRIPS in the Field of Pharmaceutical Patents: National Courts May Decide on the Direct Effect,
based upon its earlier decisions, the ECJ did not decline its jurisdiction despite the fact that the European Community had not yet exercised its powers in the field of patents or that their exercise was not to date sufficient to lead to the conclusion that the sphere would currently fall within the scope of Community law. This is absolutely in
consonance with the ECJ’s earlier decisions in Parfüms Christian Dior SA v. TUK
Consultancy BV and Assco Gerüste GmbH and Rob van Dijk v. Wilhelm Layher GmbH & Co. KG and Layher BV.250
In this regard it is also useful to look into the treaty-making provisions of the Indian Constitution which do not put any such bar on Indian courts which the Novartis Court had assumed. Article 51 and Article 253 of the Indian Constitution refers to international law and treaties. Article 51 elaborates one of the directive principles of the state’s underlying responsibility to promote world peace and friendly international relations, and ‘to foster respect for international law and treaty obligations’. Article 253 states that the ‘Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.’ Traditionally, Article 253 has been interpreted as barring the direct effect of treaties in India. Nonetheless, Indian courts always resorted to Article 51 to illuminate Indian laws and the Constitution, especially in terms of enforcing social and economic rights.251 For Indian courts, it was not possible to develop a great deal of
m#LifcScicnceArticle 1.
250 Judgment of the Court of 14 December 2000. - Parfüms Christian Dior SA v TUK Consultancy BV
and Assco Gerüste GmbH and Rob van Dijk v Wilhelm Layher GmbH & Co. KG and Layher BV, Joined cases C-300/98 and C-392/98.
hnp://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:61998J0300:EN:HTML.
2M M. Shah Alam , ‘Enforcement of International Human Rights Law By Domestic Courts: A Theoretical and Practical Study’ (2006) LIII Netherlands International Law Review 399-438, 428.
human rights jurisprudence without assuming jurisdiction in cases which they decided on the basis of principles and guidelines enumerated in international treaties. In this way, Indian courts, unlike the Novartis court, had always distinguished between the question of their jurisdiction and the possibility of direct effect.
The Madras High Court reliance on WTO’s dispute settlement system is also questionable as Indian courts traditionally do not recognise any forum established under a treaty which has not been internalised in the form of domestic legislation. In India the WTO Understanding on Rules and Procedures Governing the Settlement o f Disputes
has not been domesticated and any reference to a forum created under this agreement does not fit in the earlier jurisprudence of the Indian courts on this point.
The reliance of the Novartis court on the argument of the contractual nature of treaty obligations and the WTO dispute settlement procedure is also problematic. The Dispute Settlement Understanding (DSU) of the WTO is the only appropriate forum for dispute settlement inter se states and by no way was it designed to preclude the national courts from ruling on the content of WTO law. The Novartis court was right in determining that it could not strike down a provision of domestic law on the basis of contravention with the treaty obligations but it was fully competent to determine the scope and contents of domestic law on the basis of its inherent jurisdiction.