[SpicyIP] When Everything is a Right, What’s Left? Analysing Rajasthan HC’s Invocation of Article 21 in a Trademark Context

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Kartik Sharma

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Sep 3, 2025, 5:29:18 AMSep 3

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IP and constitutional law are two phrases that you barely encounter together at one place. This rendezvous, however, happened recently where Article 21 of the Indian Constitution was invoked in relation to trademark applications! Apparently the right to a quick trademark examination is a fundamental right! How did we land up here? Read on below.

The trigger seems triggering enough. The Rajasthan HC decided a civil writ petition Nirmala Kabra v Registrar of Trade Marks and Anr seeking direction to the Registrar of Trademarks to adjudicate upon a trademark application pending for 15 years; this is actually a really long time to decide on a trademark application, considering that the term of a registered trademark is for ten years! A brief recount of the timeline:

The application was submitted on 25.06.2010.
Respondent no. 2 filed an opposition on 07.03.2013.
The Court notes that once the pleadings were completed on both sides, the matter was listed for recording of evidence on 25.07.2017.
Since that day, nothing has been done by the Registrar in relation to the petitioner’s application.

The Court came down heavily on the Registrar for violating the text and spirit of the Act and the Trademark Rules. Rule 50 pertains to the stage of hearing and ultimate decision. Under Rule 50(2), a party can request for an adjournment of the hearing for reasonable cause. However, the proviso to R.50(2) sets an upper cap of two adjournments to each party and the time limit for each adjournment to be thirty days. The Court found a blatant violation of Rule 50 in the instant case and directed the application to be decided within three months of the order. Moreover, a general direction was also issued to adjudicate all pending applications expeditiously as early as possible in terms of Rule 50. The Court also highlighted the need for the Registrar to devise strategies to deal with this backlog issue. It had observed at the order’s beginning that lakhs of applications stand pending with the Registrar at various stages, highlighting the systemic nature of the issue. It also rightly noted the negative consequences that accompany such delays in the disposal of applications. There is loss of evidence, sense of injustice that is caused, and an overall subversion of confidence in the efficacy of the system. Additionally, excessive delays also amount to a violation of principles of natural justice since the process has to be conducted in a timely and fair fashion. And then the Court makes an interesting remark; I am reproducing it below in its entirety to dissect.

“The right of speedy and expeditious disposal of these applications is one of the most valuable and cherished rights of the applicant guaranteed under Article 21 of the Constitution of India. It is an integral and essential part of the fundamental right to life and enshrined under Article 21.”

For the Court, the speedy disposal of a trademark application falls under the ever-expansive umbrella of Article 21 ; more specifically, the Court finds it to be an essential component of the right to life. This seemingly innocuous observation is the focus of this post. My assessment of this case, and my resultant argument is simple: there is no clear principled reason the Court has given in the decision for this observation, and it was unnecessary on the Court’s part to have gone the fundamental rights route. In fact, it comes across more as an instance of rights rhetoric on shaky grounds that risks trivializing the content of the fundamental rights provision. This post is structured along the lines of thinking out aloud, so please bear with my meanderings!

Is there IP in the Constitution?

You might as well ask: is there any direct reference to IP in the Constitution? Indirectly, yes. Article 300A, inserted through the 44th amendment, makes ‘Right to property’ a constitutional right. Earlier, this right had the status of being a fundamental right [under Articles 19(1)(f) and 31] but it was done away with (that is another long constitutional law lesson). So, the text of Article 300A reads: No person shall be deprived of his property save by authority of law. The SC in its 2011 decision in KT Plantation v Karnataka observed that the term ‘property’ also includes “intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law.” Article 300A, however, frames the question as one of deprivation. First food of thought for readers: Will delays in disposal of IP-related applications amount to deprivation of property? I find difficulty in reaching that argument, since the filing of an application is not tantamount to the grant of a right. Terming the delays a deprivation then is a far-fetched claim.

Trademark is My Life (Just Kidding):

I absolutely love IP law as a subject, and especially find trademark law very interesting. Does the fact that I value trademarks (as a subject matter) generate a legal relationship of rights in some fashion here? Joseph Raz grappled with a similar provocation in his theorization of human rights. His point was simple: traditional theories of human rights fail to demonstrate that ‘value establishes rights’. He gives a very quirky example: if something being of importance was a ground for rights, then he would have a right to the love of his children since that was the most important thing to him. This was a misconceived relationship between value and rights, according to him. I leave this point here before it spirals into complicated legal theory.

The HC has not provided any detailed justification, but the implicit premise (drawn from the Court’s discussion on the harms caused due to delays) seems that the applicant values the impending approval of his trademark and it ought to be done in a fair and timely fashion. Fair enough. But the next step in the logical chain will be: that puts it within the interpretive scope of the term ‘life’ under Article 21. That sounds like a quantum jump which the Court nowhere seems to have made, even roughly. Also, there is some interpretive ambiguity with the text of the Court’s observation itself. I can think of two possibilities: Was the Court talking about the speedy disposal of applications generally? (as in there is nothing special about trademark applications per se, but the focus is on the natural justice aspect involved in the processing of applications across areas of law; this would be a more general, administrative law-type argument) Or is the connection to Article 21 premised on the application being that of a trademark? (as in the Court is implicitly playing a constitutionalization card on IP). More food of thought for readers, since I don’t have the answer.

Article 21-Is it that Simple?

Coming to life now. Article 21 uses two deceptively simple (trademark pun intended) words: life and personal liberty. And the overall simple phraseology of the provision is self-evident. Yet, Article 21 has seen a cornucopia of rights being derived from its text over the course of past decades. One major dimension of this interpretive expansion was that of socio-economic rights (using Directive principles as a structuring tool to read Fundamental rights being one example). What is common across the landmark pronouncements expanding Article 21’s umbrella is the reference to normative values that are embedded in the text. Dignity is one such highly cited idea as the justificatory source. Pritam Baruah, however, has cautioned against its casual application, considering that the constitutional status as well as the scope of dignity is mired in ambiguity. An unchecked invocation bereft of rigour risks devaluing the very moral norm.

My point in taking the above detour to constitutional theory is this: if Courts start reading anything and everything into Article 21, including trademark applications, what then remains unique about the content of the right? I do not intend to kickstart a grand debate over the phenomenon of rights inflation (extensive literature can be found, for eg, here and here). What I do think is that the Rajasthan HC was dealing with a situation that would have been addressed appropriately without any remarks touching upon fundamental rights. Trademark Act and the 2017 Rules regulate the process of dealing with trademark applications; the Court didn’t explain what it is about the disposal of trademark applications that ties it to the notion of ‘life’ and associated normative values under Article 21. Thus, the foray into constitutional law was unnecessary.

Even if an argument on the basis of natural justice principles is made, my above assertions are a counter to that as well. Post Maneka Gandhi v Union of India, the constitutionalisation of natural justice principles happened due to a re-interpretation of the term ‘procedure established by law’, as including the notion of due process as well. Yet, in my reading of Article 21, the natural justice aspect has to be linked back to ‘deprivation of life or personal liberty’, which I believe is missing entirely from the Court’s remarks.

Before parting, I would certainly mention that constitutionalization of IP is not a new thing. Take the Charter of Fundamental Rights of the EU. Article 17 of the Charter protects Intellectual Property under the rubric of its ‘Right to Property’. Constitutionalization has been a route actively taken in EU jurisprudence to shape the dimension of IP rights, including various secondary legal instruments. And as expected, the same has been subject to its criticisms also. But since we are a different jurisdiction, no straight transplants would be feasible.

And yes again, just because you love and value something (or even someone, well there’s a life lesson!), it does not become your right.