Justice Sridevan’s report exposes the Central Govt’s apathy towards the IPAB


C.H. Unnikrishnan of the Mint carried an interesting story, yesterday, on the state of affairs at the IPAB. As most of you may know Shamnad had filed a PIL before the Madras High Court in January of this year against the creation of the IPAB on the grounds that it is unconstitutional for violating the doctrine of separation of powers. A secondary aim of the PIL was to bring urgent attention towards the absolute lack of resources at the IPAB.

In this regard, the Division Bench of the Madras High Court, headed by the Chief Justice, had asked the Chairperson of the IPAB, Justice Prabha Sridevan, to submit a report on the infrastructure and resources which had been available to the IPAB. In response to this request from the Madras High Court, Justice Prabha Sridevan submitted a detailed 13 pages report along with 36 pages of annexures detailing the state of affairs at the IPAB. (The report can be accessed over here, a few pages are missing, we’ll try and put up a better copy soon) Some of the important points raised by Justice Sridevan in her report are:

• The government has failed to conduct a ‘judicial impact assessment’ to assess the resources required by the IPAB;
• That the IPAB is currently functioning out of an office of only 5500 sq. ft. despite requiring over 20,000 sq. ft. as per the CPWD norms;
• That the pay scales of the non-judicial staff at the IPAB are below the pay-scales fixed for the staff of other tribunals. The IPAB is therefore being discriminated against by the Government;
• That there is an urgent requirement to create several more posts at the IPAB to assist the judicial members in deciding cases;
• That the 6th Pay Commission recommendations have not been implemented with respect to the Chairperson and Vice-Chairperson of the tribunal.

The Division Bench after hearing brief submissions from Senior Advocate Arvind Datar, counsel for the petitioner and the amicus curiae Senior Advocate P.S. Raman, passed orders directing the State of Tamil Nadu and the Union of India to report on a new location with sufficient space for housing the IPAB. The matter has now been posted for September 29th, 2011.

I strongly recommend reading Justice Prabha Sridevan’s report. It is incredibly detailed and it is very clearly supports the arguments that were raised in the PIL.
(P.S. A big thank you to Advocates Ananth Padmanabhan, Vineet Subramani and Snior Advocate Mr. Arvind Datar for all the effort that went into preparing for the last hearing. We were hoping for the matter to be argued at the last hearing but the Court will now take up arguments on the constitutionality only at a later undecided date)

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008 after which he worked with an IP litigation law firm in New Delhi and as a Research Associate at the National University of Juridical Sciences (NUJS) in Kolkata. Prashant then went to study towards a LLM degree (Law, Science & Technology) at Stanford Law School in 2012. After graduating from Stanford, he worked a stint at the offices of Schiff-Hardin LLP in San Francisco. Prashant joined SpicyIP in 2007, while in the final year of law school and has since written more than 600 posts on most areas of Indian IP. Apart from his blogging on SpicyIP, Prashant has also published extensively in law reviews, national newspapers and newsmagazines. In 2011, Prashant was included in Managing IP’s list of 50 most influential people in the IP world, as a part of the SpicyIP team.

19 comments.

  1. Anonymous

    I have noticed that Justice Prabha Sridevan means business. She has used her experience as a Judge of the High Court in getting the space in High Court premises for holding the hearings. I wish the earlier Chairmen had tried for it. The report is a bold report which can be expected from the stature of Justice Prabha Sridevan.

    Reply
  2. Anonymous

    I have read the contents of Affidavit submitted by Justice Prabha Sridevan. The chairman of IPAB has forgotten to mention one point that the member technical after spending 5 years as member technical does not qualify for any pension benefits where as being chairman or being vice chairman of IPAB these both posts do carry pension benefits.

    If the member Technical Posts do not carry pension why would some sane person would like to join this low salary post as this member post of IPAB is not even equivalent to CAT member secondly the CAT members do get retirement benefits after serving in CAT.

    That though chairman had in the affidavit talked about her posts and vice chairman posts too but did not write on the conditions of other member technical posts. I think less said is better.

    Reply
  3. Anonymous

    The earlier person(6.34PM-Anonymous) has very rightly commented that this new chairman being a retired judge of the Madras High Court Should have discussed all the problems in a balanced manner and in an impartial way not by considering only for the persons holding the posts of the chairperson and vice chairperson.

    Reply
  4. Anonymous

    Dear Prashant

    I have compared the salary and other perquisites with CAT member as chairman in the IPAB affidavit had talked and compared perquisites with CAT Chairman and Vice Chairman as well as of other tribunals.

    I think probably you do not know CAT member draws Rs.80,000/ salary besides perks and pension too for the year he/she had contributed as member in CAT.

    Secondly in your own Petition you have cited the instances that member Technical has very short tenure of 5 years in comparison to CAT member, where the member has a tenure of 10 including one extension.

    Please do not think I was talking in air, go to IPAB office and sit with current member he will tell you more than what has been written.

    My writing of comments was only that you do not blow trumpet for your own self blow like a joint band.

    and remember, if you pay for peanuts you will not get almonds and earlier in you in your own petition, you have raised one major issue of appointment of member Technical Obaidur Rehman in IPAB I do think it is proper on my part to remind you on this aspect.

    Reply
  5. Anonymous

    The UPSC is right in saying that the IPAB proposal cannot be accepted, because while making the initial appointment, it appears that, UPSC has never been consulted and the appointments in IPAB cannot be left to the whims and fancies of the IPAB, as it lacks always an administratively experienced Head. IPAB should know the famous proverb: “Strike the iron while it is hot”! Though the Board was set up in Sept. 2003, why the recruitment rules were framed in 2008, after a gap of 5 long years, which shows very clearly the IPAB always lacks an administratively experienced Head. The deputation period can never extend beyond three years and very rarely one year extension is given in exceptional cases. But in IPAB, under the guise of experience, it seems that, most of the officers and staff were on deputation service beyond a period of five or six years, which is totally against the central government service rules. UPSC being one of the coordinating body in the recruitment process of staff and officers of IPAB, how can it be side tracked or omitted from active consultation? “Ignorance of Law is no excuse” is the usual maxim and is this not known to the earlier Heads of IPAB? Further in IPAB almost all the appointments are a “hotchpotch”! Even the CJI was not consulted while making the appointment of the chairman, which is the prerogative of the CJI of the Supreme Court and not that of the local chief justice! From that affidavit, it is seen that everything done or followed in IPAB is against the normal norms and rules. Why so? It is all because the Head lacks the administrative experience! Mere judicial experience will alone not be sufficient to run an organization! It was learnt that there were only four PS when there was a full strength of five senior officers! That shows one senior officer was never having a PS at all, which all shows to go to prove the lack of administrative experience by the Head of IPAB! For this all the earlier Heads have to be blamed for their inadequate administrative experience! On the whole this affidavit is trying to make out a case for the chairman and vice chairman and to have some more facility and personal gains for these two senior officers, simultaneously trying to gain or have the sympathy of all the staff of the IPAB. It will never improve and is still in the same manner as I have seen in 2003-2004.The other anonymous writer has said very clearly, “if you pay for peanuts, you will not get almonds”

    Reply
  6. Anonymous

    Dear anony
    you said it correctly! The chairman and vice chairman should do some thing constructive and prove their efficiency and worthiness.

    Reply
  7. Anonymous

    That Para 10 of the Chairman affidavit talks much about judicial assessment as an essential component financial management of legislative proposal and it devolves further of judicial assessment on other aspects. If one take this study in to right perspective than this IPAB never would never had been in chennai in first place.

    If we have implemented judicial assessment on IPAB than Mumbai would have been a first choice as TM registry head office is located in Mumbai as IPAB solely hears the matters related to the TM / Patents registry, if not than would have been a Delhi, where maximum numbers of applications are filed as would have been as other choice.

    The DIPP ministry note of 2002 too says so . Actually DIPP had mooted the proposal in the year 2002 to locate IPAB in Mumbai but due to the particular cabinet minister having affiliation to Tamilnadu and on his insistence, the IPAB was shifted and located to the place chennai, which was never mentioned in the note and the said note can be seen through your web blog http://spicyip.com/docs/Dr.Singh.pdf andhttp://spicyip.com/docs/Dr.Singh1.pdf

    see, if one takes honestly judicial assessment in to a right spirit than the selection of chennai was patently wrong as IPAB has failed to mitigate and further failed to fulfilled the aspirations of litigants till date so far.

    That non availability of certain infrastructural facilities in IPAB chennai is not because of non functioning or support of DIPP but truth is always bitter as these former High court judges, when join these tribunals they still feel that they are still vested with power under article 226 of COI and they are or their position is above the secretaries, so their ego comes in their way and that’s why that one as being former retired Judge still will not prefer go to meet secretary of ministry in his /her office for getting solving the situation, as one’s being even a former judge, still feels that why I should go to him/her (Secretary office in the ministry), whose was earlier under my writ.

    So, there is catch, as above anonymous writer has rightly pointed out these retired judges lacks administrative acumen and live in their own dreamy castles or paradise and totally forget that they are no more HC judge at present but are now a retired judges of the court and they are appointed to head of institution or tribunal on re-employment as retired judge, hence do not have power under 226 COI.

    It is a advice that actually after retirement retired judges have to keep one thing in mind that now they being head of institution on re-employment, they have to act in mature manner and to run institution in a more mature manner and have to take forward the said institution which they are heading to a new high, thereby leaving their petty egos on the other side of fence.

    This is a sole reason why IPAB is working in one room even after lapse of almost 7 years.

    Reply
  8. Prashant Reddy

    To all the Anons above:

    All of you seem to have some personal grudge against Justice Sridevan. It is terribly unfortunate that you people can’t see the obvious.

    Here is a person who is trying to change the system within a few months of taking it over and all that you people can do is point out the negative. Also, its not like the past judges appointed to these tribunals have not tried to do anything. Everybody from Justice Jagdeesan to S. Usha have written time and again to the Central Government asking for more information. The only reason that things have started moving now is because the Madras HC has rapped the DIPP on its knuckles.

    Also I can’t understand this new found love for the DIPP and their alleged excellence in administrative matters. If the DIPP was actually so smart they would never have created the IPAB in the first place.

    Last but not the least, the least you wise men can do is post comments under your own names. Let us see whether you have even one-tenth the courage that Justice Sridevan had when she submitted such a bold report slamming the Central Government.

    Best,
    Prashant

    Reply
  9. Anonymous

    After reading your reply, Now I feel I have wasted my time by responding to your post, it would have been better, I would have not responded to your post rather hearing baseless allegation from your side, you have aired prejudicially without controverting the facts, which, I have stated in my post at 3.38 PM. You had just simply sweeped my views with one stoke of broom by novicely saying of carrying of personal tirade against the present chairman due to some personal grudge against her. I am not carrying brief for any one nor am I interested in carrying broom of flattery for some one.
    It is clearly stated here that I am not against the present chairman in any manner nor I had tried to negate her work in any manner. I had simply aired my views in a balanced manner and if someone had liked it or aired his views by supporting my views, than it is not my fault as you have given me an opportunity write on your blog or post wall, so why there is a qualm or fuss. So what is my fault if I have said that besides the chairman or vice chairman there is other member also who is also working with them and current chairman being head of the institution has abundant duty to look after the interest of every body who ever works under her.
    Even while sitting on bench in the high Court, any Judge or chief Justice is equal but being chief justice, he is only a administrative head and same is the case of IPAB also, whether one person is a member technical or judicial member or chairman or Vice chairman , all are equal during sitting of the bench or while the delivering the justice, the chairman is a chairman only as a administrative head but not while delivering the justice.
    If I accept your view than unequal while sitting in court than can not give justice on the same pedestal so, please do not put words in my mouth, rather I am more perturbed and dismayed at your views the way you have aired them, rather I am more surprised that despite of you being knowing all facts rather you have behaved like a novice.
    Contd………..

    Reply
  10. Anonymous

    Cntd………..

    I have stated only what you have published in your various blog posts, as well as in the RTI applications you have attached in older posts and please let me know whether Mr. Shamnad has not stated in his writ about the appointment of a member technical and about their service conditions.
    Now I would like to take up the line by line again, what I have stated in my post to clear the controversy you have created knowingly or unknowingly.
    In first Para of my afternoon post, I have simply stated that the present chairman has tried to bring the issue of judicial assessment than it is sure the chennai would never been a choice and I stand by my views on this issue, please see the cache of RTI replies, which you have posted in your post” DIPP responds to RTI queries on IPAB”

    See the note of Deputy Secretary T.C. James note at page no 66 of RTI attachment:- http://spicyip.com/docs/Dr.Singh1.pdf and then respond to me whether I am correct or not.
    In second Para of my post, I have said It is a well known truth as due to individual ego problems, some time the issue are not resolved as the report of the present Chairman admits and says too that they have not been able to get things moving in right manner, than whose inefficiency is it, is it my responsibility or yours, it was not the responsibility of the predecessors Chairman or vice-chairman of the IPAB , wher I have stated that it is due to current chairman this has cropped up by the way, who were the persons heading the IPAB from 2003 to 2011.
    I would like to remind you that the post of “Chairman or vice-chairman” do known with post name Chairman or vice-chairman and are not known or identified with individual names, as I have closely seen and know many of instances, where it has happend, as judges do not come from Mars and are not aliens, they are also human like us, having flesh and bones like us and have same emotional tendencies, like greed and egos etc, like us, as every human has, so why there is a so much of fuss from your side. Why you have tried to rake up confusion here without any tangible cause.
    Cntd……….

    Reply
  11. Anonymous

    contd……..

    It clearly proves my contention which I have aired in my post that even current chairman has failed to get facilities from the DIPP, though she has joined very recently in IPAB. Then whose fault, is it my fault or someone’s fault, if they are not able to get along with DIPP people and I would like to remind you that ultimately the present chairman has joined recently only on the recommendation of DIPP honchos than how the love have been lost between them with in few months of joining of present chairman and why present chairman had chose to air affidavit through media and further by airing views on media, with in few months of her joining, is it not a fight of egos between chairman and DIPP.

    In third Para of my post, I have said that the judges are not good administrators, I stand by it, I know usually 60% of judges do join from bar and they are poor in maintaining their offices and most of lawyers, who become judge are seldom from administrative side as there is a famous quote ” Managers are borne not made”
    As Mr. Shamnad in his writ affidavit says at para 33 (i to vi), Para 34 to 40 and grounds A to G and repeats in his writ what I have said in this posts, which I do not need to reproduce herein, which clearly supports my view in all manner.
    Your reply to my earlier morning posts, wherein you had simply tried to brush my post by having doubt on the quality of my research and asking me to visit some page but when I brought the fact to your knowledge in my reply to your half baked reply post, you did not respond to it nor controverted it fully but came with a silly reply in evening by simply painting it with one stroke of having some personal grudge against Justice Sridevan.
    In my view, either you have not read it carefully, or the writ or you have read my comments with very close mind. In my view, rather your views you have aired in reply to my post, seems like to be of “HIS MASTERS VOICE” “HMV” and with a mixture of a little pinch of flattery. Whereas, I have simply tried to convey in my post that the chairman has brought half of the facts on the affidavit, the chairman would have brought about the service condition as well as of other perquisites being given to the technical member also on the affidavit.

    Reply
  12. Prashant Reddy

    Anon:

    1. You still lack the guts to reveal your name. So don’t try to take the moral high ground. You are just another anonymous coward pointing fingers at the rest of the world. You do not have even one-tenth the courage of an honourable judge like Justice Sridevan.

    2. You are speaking utter nonsense.

    3. The DIPP had to appoint Justice Sridevan because they got blasted by the Delhi High Court after a complaint from APPA. They didn’t do it of their free will. Also her appointment was made in consultation with the Chief Justice of India and the DIPP clearly did not have control of the entire process or trust me they would have appointed somebody very pliable.

    4. Justice Sridevan did not file her affidavit through the media. She filed her report with the Madras High Court and it is the Court which gave Shamnad’s lawyers a copy of the report. Justice Sridevan never leaked it to the media.

    5. Thanks to Justice Sridevan’s report, the Madras High Court has forced the Central Govt. to get the IPAB a new location. At the last hearing both the State Government and the Central Government have informed the Court of a new location. This would not have happened unless Justice Sridevan has slammed the Central Govt. for the lack of resources.

    Best,
    Prashant

    Reply
  13. Shamnad Basheer

    Dear Anon:

    Let me join Prashant in taking very strong exception to your attempt to malign a judge who has time and again demonstrated her courage, integrity and exceptional professionalism. I also believe that she is harsh on lawyers who are under-prepared and repeatedly taking adjournments. My friend, we ought to encourage the positive change that we see around us and not wantonly point fingers at those that are attempting to bring about this positive change. Such judges who can call a spade a spade are rare—and must be celebrated…..

    Reply
  14. Anonymous

    In your blog you have stated about the exposure by justice Sridevan about the central governments’ apathy towards the IPAB.

    I am trying to expose the apathy of the litigants towards the dictatorial orders passed by IPAB under the directions of justice Sridevan.

    Recently certain orders have been passed by IPAB imposing cost ranging from Rs10,000 to Rs25000 for granting extension for filing counter statement and other things. The classical thing is that the cost is payable to IPAB itself. Is this collection of cost to be paid to the non-judicial staff of IPAB, as according to the report of justice Sridevan the pay scales of non-judicial staff are below the pay scales fixed for the staff of other tribunals. Or is it for the judicial staff as well. In so far as the revenue (Government) is concerned, the revenue (Government) has specified the fee payable along with form no.3.

    I fail to understand from were does IPAB get power to impose cost to litigants to be paid to the IPAB or is it unwritten law to be sued at the whims and fancy and/or mood of the IPAB? Besides it is passed while sitting in chambers without the hearing to the litigant.

    Earlier there were no cost imposed by IPAB and the official fee paid with form no.3 was sufficient. It is only during the tenure of justice Sridevan that IPAB has started imposing cost. The orders imposing cost are pe remptory and further say that the counter statement/reply or so will not be taken a record if the cost is not paid.

    What do you say about the apathy of litigants?

    Reply
  15. Anonymous

    I reliably understand that there are following problems in IPAB. IPAB has not yet paid rent for this month for its rented premises. There has been no funds allocated by Govt.of India to IPAB. There is no response to IPAB’s more than 100 letters to Govt. on various issues, including space, staff, funds,etc. If this situation continues it is difficult for IPAB to carry on beyond Dec. 2011. I am not making this up. This is based on inputs given in IPAB at the highest level. The situation in IPAB is very grave. I request the IP fraternity in India, trade associations, etc. to exert pressure on the govt. Regards, Anonymous and a concerned IP Attorney

    Reply
  16. Anonymous

    Is there anyone to take up the problems in IPAB? I hope something get done in IPAB. There seems to be a lobby for shifting IPAB to Delhi. – A concerned IP Attorney

    Reply
  17. Augustine Jose

    Dear Anonymous ?

    When you are honest and candid in your view, one fails to understand as to why you are not bold enough to disclose your name/identity inspite of repeated provocations from Mr.Prashant ! Come on, muster enough courage to demonstrate that you means business.

    I suggest that the Administrator of the Blog, shoud not allow comments on “Anonymous” .

    Augustine Jose, Baroda, Gujarat.

    Reply

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