(i) Viva voce is prima facie unconstitutional
Assuming a viva is meant to test the subject matter expertise of the candidate in question; it is rather pointless and redundant in the context of the patent agent exam. For subject matter expertise is more than adequately tested through two written papers. We have reason to believe that the viva voce conducted for the last patent agent exam held on 24th January, 2010 asked questions (centered around various provisions of the Indian Patents Act) meant to test subject matter competence. This is clearly an unnecessary and redundant exercise, since this has already been tested through a written paper.
It is pertinent to note that some studies have shown that one of the disadvantages of an oral exam is that a relaxed but technically weak student may perform better when compared to a technically superior student, who has difficulty expressing herself.
Although traditionally a viva voce refers to an “oral” examination (primarily conducted as a thesis defense of sorts for candidates’), the term has come to assume the role of a personality test within the Indian context. Indeed countless court decisions now refer to a viva voce as a gauge for the personality of a candidate.
A personality test holds relevance for events such as job interviews and the like i.e. where the prospective employer has to assess the personality of the candidate in question: whether they are self confident, likely to fit in within the overall environment of the office etc.
However, it is clearly irrelevant in the context of a patent agent exam. In India, a viva voce is used in exams such as the IAS exam to determine the personality of a potential Indian administrator. In Dr. LR Nath v Delhi University it has been held that though the assessment of personality traits is critical for recruitment to Civil Services or other positions where initiative, self confidence, resource fullness and leadership qualities are an absolute pre-requisite, it is not essential for those cases where these skills are not a necessity. Further in Union of India v N Chandrasekaran it has been held that while considering the marks to be allotted for an interview due regard must be had to the post to which the candidates are to be appointed as well as the nature of the duties they have to perform.
A patent agent exam is very different from the IAS exam. For one, unlike the IAS which is a competitive exam meant to select only the very best from those who have appeared for the exam, the patent agent exam is only a qualifying exam meant to assess some basic level of competence as would enable such attorneys to meaningfully help clients file and prosecute patents. In other words, the only test is whether or not the person possesses minimal subject matter competence. This is already tested through two written papers. The personality of the individual and in particular, the leadership qualities etc are really not necessary for the purpose of determining the suitability to function as a sufficiently competent patent agent.
It is pertinent to note that India will be having its first bar exam in December this year. A bar exam is meant to test all law graduates on their basic knowledge of the law, as would ensure some minimal competence of a degree sufficient enough to enable them to practice at the Bar. This exam has only a written component and no viva voce or interview. It is also pertinent to note that most patent qualifying exams and bar exams in the US and other jurisdictions require that candidates merely clear a written exam.
Therefore, the requirement of a viva voce as part of a patent agent qualifying exam is violative of Article 14 of the Constitution. Article 14 lays down that the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India. While in some cases a differential classification may be allowed, there should be some rational nexus between the basis of classification and the object intended to be achieved. Applying this test to the present case, there is no rational nexus between a viva voce exam and the objective of selecting people vested with some minimal competence to practice patent law.
(ii) Assuming that the viva is held to be valid in principle, the present structure is arbitrary and unconstitutional
Our main contention is that the very requirement of a viva voce exam to qualify someone as a patent agent is violative of Article 14 of the Constitution. However, even assuming that the viva is upheld in principle for some reason, our contention is that the present scheme of marks (where a viva accounts for 100 marks and amounts to 33% of the total exam marks) is unconstitutional. And that in order to be legally valid, the viva marks ought not to exceed 12% of the total number of marks.
The Supreme Court has held that not too much reliance can be placed on a viva voce test. In Ashok Kumar Yadav v State of Rajasthan the court noted that the allotment of as much as 33.3% marks for viva voce would make the selection arbitrary and the courts could interfere. If the spread of marks in the viva voce is enormously large compared to the marks in the written test, the viva tends to become a determining factor in the selection process because even if a candidate secured the highest marks in the written examination, she could be easily knocked out of the race by awarding her the lowest marks in the viva voce test and similarly, a candidate who obtained the lowest marks in the written examination could be raised to the top most position in the merit list by an inordinately high marking in the viva voce test. The court held that the percentage of marks allocated for the viva voce test by the Union Public Service Commission ought to be adopted i.e. 12.2%
Therefore it is seen that even in those cases where personality is a relevant factor to be tested, the court has recommended that the allocation of marks for viva voce ought not to exceed 12.2%.
Therefore, even assuming that the viva is upheld in principle for some reason, our contention is that the present scheme of marks (where a viva accounts for 100 marks and amounts to 33% of the total exam marks) is unconstitutional. And the viva marks ought not to exceed 12% of the total number of marks.