Article contributed by Heema Shirvaikar, Intern at BananaIP Counsels, 3rd-year Law Student at Symbiosis, Pune.
Facts and brief history of case:
In 2011, a Writ Petition was filed before the Madras High Court by Mr. Shamnad Basheer, seeking a Writ of Declaration, to declare the establishment of the Intellectual Property Appellate Board (IPAB) under the Trade Marks Act, 1999, and the Patents Act, 1970 as violative of the basic structure of the Constitution of India.
Shamnad Basheer, founder of SpicyIP, an Intellectual Property law blog, was a Professor of Law, who holds the Intellectual Property Rights Chair at the Ministry of Human Resources and Development (HRD) at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata.
The writ petition was heard and disposed on March 10, 2015 by the Chief Justice of Madras High Court, Sanjay Kishan Kaul, and Justice M M Sundresh.
Contention of Petitioner:
The contention of the Petitioner was that the qualification criteria for members, Vice-Chairman and Chairman of the Board, laid down under Section 85 of the Trade Marks Act, 1999 impinge on the independence of the judiciary and thus violate the doctrine of Separation of Powers. Secondly, it was argued by the Petitioner that the lack of any statutory prescription for selection of members, Vice Chairman and Chairman of the IPAB, affronts the basic structure of the Constitution of India. The procedure adopted for selection is contrary to the decision of the Supreme Court in Union of India v. R Gandhi.
Analysis of Court’s Decision:
The Court, with regard to selection, observed that the process of selection of members of the Tribunal was indeed left entirely up to the Executive, though the functions carried out by the Tribunal were Judicial in nature. It observed that the Union of India had “totally overstepped and acted in disregard to the law laid down by the Supreme Court in Union of India v. R Gandhi, President, Madras Bar Association”. It held that the directions issued by the Supreme Court in R Gandhi were binding on the Union of India and they should have followed the same.
It held that the committee for making appointments to the Board (the Search-cum-Selection Committee) should include judges from the Higher Judiciary rather than be filled with those from the Executive.
The first contention regarding the qualification of the board members, the Chairman and Vice-Chairman was then discussed in detail by the Court.
Regarding the appointment of a Technical Member, it was held by the Court that under Section 85, a person holding the post of not less than that of Joint Registrar, can qualify for appointment as Technical Member, only when he is appointed in said post of Joint Registrar with 12 years of practice in a State Judicial Service, not otherwise. Thus the Court held that Section 85 will have to be read to make eligible only those who held the aforementioned qualification.
For the appointment of a Judicial Member, the Court held that however high one may be in holding an Executive post, the role of a Judicial Member, may not be exercised by a person holding said Executive post without any experience of being in the Judiciary.
For the post of a Vice-Chairman, Section 85 provides that a member of the Indian Legal Service, holding a post of Grade I or higher of that service, for at least for 5 years, is qualified to be appointed. Again, it was observed by the Court that the provision sought to entrust a Judicial function to an Officer of the Government, which was unconstitutional since such members do not have the legal training and experience to discharge a judicial function.
A contention was made, by extension, by the Petitioner regarding qualification for the post of Chairman, that a Vice-Chairman, without being a Judicial Member and without having sufficient legal training and experience as a lawyer, would become a Chairman, as per the provisions of Section 85. It was held by the Court that, to resolve this anomaly, the qualification of a Vice-Chairman to the post of Chairman will have to be read with the qualification of a Vice-Chairman, Judicial Member and Technical Member, as decided by the Court.
The Court, in arriving at this decision, reviewed and looked into a plethora of cases dealt with by the Supreme Court on this issue. The Court looked into S P Sampath Kumar v. Union of India which challenged the validity of the Administrative Tribunals Act, 1985.
It also discussed Union of India v. R Gandhi, popularly known as the NCLT case, where the Supreme Court struck down the provisions in the Companies Act, 1956 pertaining to the constitution of the National Company Law Tribunal and the National Company Law Appellate Tribunal, on the ground that they violated the ‘Separation of Powers’ doctrine which requires the Judiciary to be independent of the Executive.
It also looked into L Chandra Kumar v. Union of India, and Indira Nehru Gandhi v. Raj Narain, among others, where the Supreme Court reiterated that the Separation of Powers forms part of the basic structure of the Constitution of India.
The Court analysed in detail, the decision of the Supreme Court in Madras Bar Association v. Union of India, known as the NTT case, where a challenge was made to the constitutional validity of the National Tax Tribunal. Though the Supreme Court, upheld the creation of the Tribunal as constitutionally valid, its composition was held to be an anathema to the basic structure of the Constitution.
In summation, the following was held by the Court:
“(1) Sub-section 2(b) of Section 85, which provides for a qualification qua a member of Indian Legal Service who held the post of Grade I of service or of higher post at least five years to the post of Vice-Chairman is declared unconstitutional, being an affront to the separation of powers, independence of judiciary and basic structure of the Constitution.
(2) Section 85(3)(a) of the Trade Marks Act, 1999, which provides for the eligibility of a member of the Indian Legal Service and has held the post of Grade I of that Service for at least three years for qualification for appointment to the post of a Judicial Member in IPAB, is declared as unconstitutional, being contrary to the basic structure of the Constitution.
(3) The Constitution of the Committee for the appointment of members, both for the Vice-Chairman, Judicial Member and Technical Member is declared as contrary to the basic structure of the Constitution. In consequence thereof, the 1st respondent will have to re-constitute the Committee providing a predominant role in the selection process to the judiciary.
(4) A person, in the post of Joint Registrar or above with the qualification of 12 years of practice at bar or 12 years experience in a State Judicial Service with a Degree in Law, along with other qualifications alone is to be considered to be appointed as a Technical member.
(5) Only such a Technical Member with the qualification indicated in (4) above alone can be considered for the post of Vice-Chairman.
(6) For the post of Chairman, apart from a sitting or a Retired High Court Judge, only a person with a qualification mentioned in (4) above and as required for a Technical Member under Section 85(4)(b) can be considered as against a Judicial Member.
(7) Recommendation of the Chief Justice of India to the post of Chairman should be given due consideration by the Appointment Committee of the Cabinet and the process does not involve any “approval””.
– Heema Shirvaikar, Intern at BananaIP Counsels, 3rd-year Law Student at Symbiosis, Pune
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