Designs, the Government and the Security of India
Chapter Twenty-Five
Syllabus topic 1.5, "Rights conferred by registration"
Pages 96 to 99 of 683
In one line
A registered design binds the Government as it binds anybody else, subject to the Government-use provisions borrowed from the Patents Act, and the Controller must withhold information and may cancel a registration where the security of India requires it.
Section 20: designs bind the Government
The provision. "A registered design shall have to all intents the like effect as against the Government as it has against any person and the provisions of Chapter XVII of the Patents Act, 1970 shall apply to registered designs as they apply to patents."
Two halves, and both matter.
First half: the right runs against the State. The Government is not above a registered design. If a Government department applies the design to an article for sale, it contravenes section 22 exactly as a private manufacturer would.
Second half: but Chapter XVII of the Patents Act applies. That Chapter is headed "Use of Inventions for Purposes of Government and Acquisition of Inventions by Central Government", and it contains the Government-use provisions. Applied to designs, and reading "design" for "invention" and "proprietor" for "patentee", it means in substance that:
- the Government, or a person authorised in writing by it, may use the design for the purposes of Government;
- such use is not an infringement;
- the proprietor is entitled to remuneration agreed with the Government or, failing agreement, settled by the High Court;
- the Government must notify the proprietor of the use as soon as practicable and give him information about the extent of the use on request; and
- the Central Government may, where it is of opinion that a design is necessary for a public purpose, acquire it by notification, whereupon it vests in the Central Government and compensation is paid.
So the shape of the provision is: the right binds the State, but the State may use it and pay for it. That is the standard compromise in Indian intellectual property statutes.
Section 46: the security of India
The provision. "Notwithstanding anything contained in this Act, the Controller shall
(a) not disclose any information relating to the registration of a design or any application relating to the registration of a design under this Act, which he considers prejudicial to the interest of the security of India; and
(b) take any action regarding the cancellation of registration of such designs registered under this Act which the Central Government may, by notification in the Official Gazette, specify in the interest of the security of India."
The Explanation defines the phrase. "For the purposes of this section, the expression 'security of India' means any action necessary for the security of India which relates to the application of any design registered under this Act to any article used for war or applied directly or indirectly for the purposes of military establishment or for the purposes of war or other emergency in international relations."
Designs, the Government and the Security of India
Broken down
"Notwithstanding anything contained in this Act." Section 46 overrides everything else, including the publication duty in section 7, the inspection rights in sections 17, 18 and 26, and the ordinary cancellation route in section 19.
Clause (a) is a duty of silence, and the test is the Controller's own opinion. He "shall not disclose" information he "considers prejudicial". It covers information about a registration and about an application, so it bites before as well as after registration.
Clause (b) is a duty to act, and the trigger is a Government notification. The Controller must take action on cancellation of designs the Central Government specifies by notification in the Official Gazette in the interest of the security of India. Note that the initiative is the Government's; the Controller executes.
The Explanation is narrower than the phrase sounds. It confines "security of India" to action relating to the application of a registered design to an article used for war, or applied directly or indirectly for the purposes of a military establishment, or for the purposes of war or other emergency in international relations. So it is not a general national-interest power.
Compare the patent equivalent. Sections 35 to 42 of the Patents Act, 1970 provide for secrecy directions on inventions relevant to defence. The design provision is much shorter, and it operates by withholding information and by cancellation rather than by a secrecy direction.
A worked example
Deccan Optics registers a design for the housing of a thermal sight in 2023.
A researcher asks the Controller under section 18 whether the registration subsists and who owns it.
What must the Controller do? Ordinarily section 18 makes it a duty to answer. But if he considers that disclosing information relating to this registration would be prejudicial to the interest of the security of India, section 46(a) overrides section 18, because it opens "notwithstanding anything contained in this Act", and he must not disclose.
Is that a lawful refusal? It depends on the Explanation. The housing is applied to an article used for a military establishment, so the subject matter is within the definition. The refusal is within the section.
In 2025 the Central Government notifies in the Official Gazette that certain registered designs applied to thermal sights are to be cancelled in the interest of the security of India.
What follows? Under section 46(b) the Controller must take action regarding the cancellation of those registrations. This is not a section 19 petition and no person interested need apply; the notification is the trigger.
Designs, the Government and the Security of India
Does Deccan Optics get anything? Section 46 says nothing about compensation. If instead the Government wishes to use the design, section 20 applies Chapter XVII of the Patents Act, 1970, and the proprietor is entitled to remuneration agreed or settled by the High Court, and to notification of the use.
What this is not
Section 20 does not give the Government a free licence. It applies Chapter XVII, which carries the remuneration and notification obligations with it.
Section 46 is not a general public interest power. The Explanation ties it to war, military establishments and emergencies in international relations.
Section 46(b) is not cancellation by the Controller of his own motion. The Central Government specifies the designs by notification; the Controller acts on it.
There is no compulsory licensing of designs. The Designs Act contains nothing like sections 84 to 92 of the Patents Act. Government use under section 20 is the closest thing, and it is not a compulsory licence to a private party. Contrast the Semiconductor Integrated Circuits Layout-Design Act, whose section 51 provides a compulsory licence by permitted use, though it has never been brought into force, worked in chapter 830.
Quick revision
- Section 20: a registered design has the like effect against the Government as against any person, and Chapter XVII of the Patents Act, 1970 applies, so Government use is permitted against remuneration, with notification to the proprietor, and the Central Government may acquire the design for a public purpose against compensation.
- Section 46(a): the Controller shall not disclose information about a registration or an application which he considers prejudicial to the security of India, notwithstanding anything else in the Act.
- Section 46(b): he shall take action regarding cancellation of designs the Central Government specifies by notification in the interest of the security of India.
- Explanation: "security of India" is confined to designs applied to an article used for war, or for the purposes of a military establishment, or for war or other emergency in international relations.
- The Designs Act has no compulsory licensing provision.
Test yourself
1. Does a registered design bind the Government? Yes. Section 20 provides that it has to all intents the like effect against the Government as against any person, subject to Chapter XVII of the Patents Act, 1970, which permits Government use against remuneration and acquisition for a public purpose against compensation.
2. What two duties does section 46 place on the Controller? Not to disclose information relating to a registration or an application which he considers prejudicial to the interest of the security of India; and to take action regarding cancellation of registrations the Central Government specifies by notification in the Official Gazette in that interest.
Designs, the Government and the Security of India
3. How is "security of India" defined? By the Explanation to section 46, as any action necessary for the security of India relating to the application of a registered design to an article used for war, or applied directly or indirectly for the purposes of a military establishment or for the purposes of war or other emergency in international relations.
4. Is there compulsory licensing under the Designs Act? No. The Act contains no equivalent of sections 84 to 92 of the Patents Act, 1970. Government use under section 20, through Chapter XVII of the Patents Act, is the nearest provision.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.