Originally the constitutional amendments, which brought in the system of tribunals through Article 323A & 323B, permitted excluding the jurisdiction of all Courts, save for the powers of the Supreme Court under Article 136 of the Constitution. This clause which barred even High Courts from reviewing the decisions of the tribunals was successfully challenged before the Supreme Court in the Chandra Kumar case, almost twenty years after it had been passed by the Parliament of India. The challenge was sustained on the grounds that it violated the ‘basic structure doctrine’ and the Court went on to hold that High Courts could continue to review decision of tribunals under Article 226 and 227 of the Constitution. While Article 226 deals with the writ jurisdiction of the High Court, Article 227 deals with the supervisory jurisdiction over the subordinate judiciary and tribunals. Therefore although both the tribunals and the High Courts derive their powers from the same Constitution, the latter are held to be superior to the former.
The crucial difference however between the IPAB and the tribunals challenged in the Chandra Kumar case is that the IPAB deals with litigation between private parties (For e.g. the Enercon dispute) while the tribunals under challenge before the SC in the Chandra Kumar deal with only administrative or quasi-judicial disputes involving the government. The significance of this lies in the fact that usually writs lie against only the State. Therefore any orders from the administrative tribunals or tax tribunals, where the government was a party to the dispute, could be reviewed under the writ jurisdiction of the High Courts. Initially judgments of ordinary civil courts, dealing only with private parties could be ‘revised’ by the High Court only within the limited boundaries of Section 115 of the Code of Civil Procedure, 1908. The Orders of Civil Courts could therefore not be reviewed under the writ jurisdiction of a Court. This position was however altered in the case of Surya Dev Rai v. Ram Chander Rai & Ors.
In this case the High Court had dismissed a petition seeking to invoke the writ jurisdiction of the court, against the order of a subordinate court, deciding private litigation, on the grounds that writs cannot be issued against private parties. The Supreme Court however disagreed and clarified that under Article 226 and 227 the High Court could exercise supervisory/writ jurisdiction over the subordinate judiciary by issuing writs of certiorari to the subordinate judiciary summoning certified copies of the record to the High Court for examination. The scope of proceedings under the writ of certiorari is much narrower than an appellate court and the writ Court cannot substitute the reasoning of the lower court with that of its own. The writ court can only examine whether the lower court was acting within its jurisdiction, subject matter or otherwise. The appropriate remedy during the proceedings of a writ of certiorari is to either quash the order of the subordinate court with orders for the matter to be re-heard or to dismiss the petition seeking the issuance of such a writ. Therefore although the Trademark Act, 1999 and Patent Act, 1970 do not provide for a statutory appeal against the orders of the IPAB it is possible for the High Courts to reviews the same since the Chandra Kumar judgment of the Supreme Court clearly makes tribunals subordinate to the High Courts.
The policy question however is whether this power should continue to vest with the High Courts? If you read the Chandra Kumar judgment you will realize that rather than being guided by a strict theoretical understanding of the law, the Supreme Court was in fact guided by a very real fear that the quality of justice being rendered by these tribunals was bordering on the farcical and hence the need for High Courts to review their decisions. As a result of this decision most of the orders of most tribunals including the IPAB are appealed to the High Court, the effect of which is to increase the pendency of cases before the High Courts apart from increasing the cost of the litigation by adding another layer of appeals.
Given that it has been 15 years since the Chandra Kumar decision and almost 8 years since the constitution of the IPAB I would say the time is ripe for a fresh judicial review of the functioning of the IPAB and whether it needs to be under the supervisory jurisdiction of the High Courts. If even after 8 years the IPAB continues to function like a mess, then it is probably time to wrap it up and send back these matters to the High Courts. If the IPAB however is functioning up to the mark it is probably best that the High Courts be relieved of their supervisory jurisdiction. In any case this is a matter which needs to be brought to be reviewed by the Supreme Court. The only case in which this can probably be raised is the on-going Enercon litigation in which the Madras High Court is reviewing the decisions of the IPAB to revoke 12 patents. It would be interesting to observe whether EIL takes the arguments that the writ petitions against the IPAB’s orders are not maintainable for the reason that the Chandra Kumar judgment is not applicable to the limited extent that it applied to tribunals which were quite different from the IPAB. A slightly far-fetched argument, but one which will drag the case up till the Supreme Court.