IPR
Topic 10 Constitutional Perspective
Topic 10 — Constitutional Perspective on Intellectual Property
Intellectual property in India lives within a constitutional framework. Five constitutional provisions, in particular, define the boundaries within which Parliament may legislate, the rights of creators are recognised, and the duty of the State to balance private monopoly against public interest is articulated. Articles 245 and 246 confer the legislative power; Entry 49 of the Union List supplies the subject; Article 19(1)(g) protects the freedom of trade against IP overreach; and Article 300A protects IP itself against State deprivation. This topic gathers all five threads in one place and traces how the Supreme Court has woven them together.
1. Articles 245 and 246 — The Power to Legislate
Article 245 — Territorial Extent
Article 245(1) provides that, subject to the provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. Article 245(2) clarifies that no law made by Parliament shall be deemed invalid on the ground that it would have extra-territorial operation. This is the foundational provision establishing Parliament's territorial competence.
Article 246 — Subject-Matter of Laws
Article 246 distributes legislative power between Parliament and State Legislatures by reference to the three Lists in the Seventh Schedule:
Article | Power | List |
|---|---|---|
Article 246(1) | Parliament — exclusive power | List I (Union List) |
Article 246(2) | Parliament and State Legislatures — concurrent | List III (Concurrent List) |
Article 246(3) | State Legislature — exclusive power (subject to (1) and (2)) | List II (State List) |
Article 246(4) | Parliament | Any matter for any part of territory not in any State |
Article 246 — the operative provision "(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List')." |
✅ Why every Indian IP statute is a Union law Entries 49 and 49A of List I read with Article 246(1) place all IP subjects exclusively within Parliament's competence. State Legislatures have no power to enact IP laws. The State of Rajasthan, for example, cannot pass its own copyright statute. This exclusive Union competence is what enables India to maintain a uniform IP regime across all twenty-eight States and eight Union Territories. |
2. Entries 49 & 49A — The Substantive Subjects
Entry | Subject Matter | Statutes Enacted |
|---|---|---|
Entry 49 | Patents, inventions and designs; copyright; trade-marks and merchandise marks | Patents Act 1970; Copyright Act 1957; Trade Marks Act 1999; Designs Act 2000 |
Entry 49A | Geographical indications | GI Act 1999 |
Entry 13 | Participation in international conferences and treaties | Basis for ratifying TRIPS, WIPO, PCT, Madrid, Paris, Berne |
Entry 14 | Entering into and implementing treaties | Backed by Article 253 |
Entry 49A was added by the GI Act 1999 itself; before that, geographical indications were dealt with under the Trade and Merchandise Marks Act 1958 as a sub-category of marks. Other modern subjects — plant varieties, layout-designs, biological diversity — are not separately enumerated; legislative competence for them is traced to Article 253 read with the relevant treaty obligation (UPOV / TRIPS Article 27.3(b) for plant varieties; TRIPS Articles 35-38 for layout-designs; CBD 1992 for biodiversity).
3. Article 253 — The Treaty-Implementation Power
Article 253 — Legislation for giving effect to international agreements "Notwithstanding anything in the foregoing provisions of this Chapter, 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." |
Article 253 is a sweeping power. The non obstante clause — "Notwithstanding anything in the foregoing provisions" — makes it operate even where the underlying subject would normally fall in the State List. The Supreme Court has affirmed this in Maganbhai Ishwarbhai Patel v. Union of India, AIR 1969 SC 783, and Berubari Union, AIR 1960 SC 845.
Almost the entire modern IP architecture in India was enacted under Article 253. The Patents (Amendment) Acts of 1999, 2002 and 2005 — which introduced product patents in pharmaceuticals, the anti-evergreening provision in Section 3(d), and the compulsory licensing regime in Sections 84-92 — were all enacted to discharge India's TRIPS obligations.
4. Article 19(1)(g) — Freedom of Trade and Profession
Article 19(1)(g) "All citizens shall have the right to practise any profession, or to carry on any occupation, trade or business." |
Article 19(1)(g) is the constitutional source of the freedom to design, manufacture, brand, advertise and distribute goods and services. It is therefore in inevitable tension with the IP system, which by definition restricts certain commercial uses. The Supreme Court has reconciled the two through the proportionality framework of Article 19(6) — restrictions on Article 19(1)(g) must be reasonable and in the interest of the general public.
✅ How IP statutes pass the Article 19(6) test Indian courts have consistently held that copyright, patents, trademarks and other IP statutes are reasonable restrictions on Article 19(1)(g) because they: (i) serve a legitimate State purpose (encouragement of creativity, protection of consumers, fulfilment of treaty obligations); (ii) are time-limited; (iii) carry their own internal balances (fair use, compulsory licensing, working requirement, exhaustion); and (iv) are subject to judicial review. |
Three Frequent Tensions
- Trademark monopoly vs. comparative advertising — Indian courts (Reckitt & Colman v. Kiwi TTK; Pepsi v. HUL) have held that honest comparative advertising is protected speech under Article 19(1)(a) and trade under Article 19(1)(g), and cannot be suppressed by trademark dilution claims unless it crosses into disparagement.
- Patent monopoly vs. generic competition — explicit balance struck through Section 84 (compulsory licensing), Section 107A (Bolar exemption), Section 3(d) (anti-evergreening). Bayer v. Natco (2014) operationalises this tension.
- Copyright monopoly vs. user freedom — Section 52 fair-dealing exceptions; the doctrine of first sale (exhaustion); the parodic-use defence (Civic Chandran v. Ammini Amma).
5. Article 300A — IP as Property
Article 300A — Right to Property "No person shall be deprived of his property save by authority of law." |
Article 300A was inserted by the Constitution (Forty-fourth Amendment) Act 1978 after Article 31 (right to property as a fundamental right) was deleted. Although the right to property is no longer a fundamental right, it remains a constitutional right enforceable through writ jurisdiction. The Supreme Court has progressively read into Article 300A almost every protection that the deleted Article 31 once offered, including the requirement that compulsory acquisition be for a public purpose and on payment of fair compensation (KT Plantation v. State of Karnataka, (2011) 9 SCC 1).
That intellectual property is "property" within Article 300A is now firmly settled. Three Supreme Court decisions deserve close study:
📖 Entertainment Network (India) Ltd. v. Super Cassettes Industries Ltd., (2008) 13 SCC 30 The Supreme Court held that copyright is "property" within Article 300A. The Copyright Board's power under Section 31 to grant compulsory licences must be exercised judicially, balancing the property right of the copyright owner against the public interest in access to creative works. The judgment is the leading constitutional authority on the property-status of IP and on the procedural safeguards that govern any State-imposed restriction. |
📖 Vikas Sales Corporation v. Commissioner of Commercial Taxes, (1996) 4 SCC 433 In a sales-tax context, the Supreme Court characterised an REP licence (a transferable export incentive) as "property" — capable of being bought and sold and carrying value. The case is often cited for the broader proposition that "property" under Article 300A is to be construed widely to include intangible economic rights. |
📖 Mineral Area Development Authority v. Steel Authority of India, (2024) — 9 Judge Bench Although primarily a mining-royalty case, the Supreme Court reaffirmed that Article 300A protects all forms of property — tangible and intangible — including statutorily created economic rights. The reasoning extends to IP by analogy. |
Putting the Five Articles Together
The five articles work in a single arc:
245-246 → ENTRY 49 / 49A → 253 → 19(1)(g) BALANCE → 300A PROTECTION |
- Articles 245-246 — create the legislative power. Parliament alone may legislate on IP.
- Entries 49 & 49A — specify the subjects on which Parliament legislates.
- Article 253 — expands the power further so that Parliament may also legislate to implement IP treaties.
- Article 19(1)(g) — sets a constitutional limit: any IP statute must be a reasonable restriction on the freedom of trade.
- Article 300A — protects the IP holder against State deprivation, completing the cycle.
🎯 EXAM POINTERS — TOPIC 10
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