Scoping the constitutional challenges against the Copyright Board

Continuing from our earlier posts we now have confirmed information that the Copyright Board had been challenged by not only T-Series but also by a second set of parties who are involved in the film production business: Bharat Anand & JVM Movies Pvt. Ltd. 

The scope of both the challenges differs slightly. While T-Series has challenged only Section 11 of the Copyright Act along with Rule 3(2) of the Copyright Rules, 2013; the second petition by the film producers challenges Section 11 and Section 12, along with Rule 3 of the Copyright Rules, 2013. 

Image from here

Section 11 details the basic constitution of the Copyright Board and Section 12 details the powers and procedure of the Copyright Board. Rule 3 lays down the qualifications required to be appointed as a member or Chairperson of the Copyright Board. Rule 3(2) in particular lays down the qualification criteria for the post of members. 

The core challenge is against the appointment of active members of the Executive to the Copyright Board. The Rules allow the Central Government to appoint serving bureaucrats to the Copyright Board and like we had warned earlier on this blog such a rule is completely contrary to the holding of the Supreme Court in the NCLT case since it seriously compromises judicial independence. 

The second limb of arguments raised by both parties is that Rule 3 allows for the appointment to the Copyright Board, even those people who do not have any experience in the industry. For example Rule 3(2)(i) states that the Chairperson can be either a former judge of the High Court or a person who is qualified to be a judge of the High Court. The second component would cover any advocate who meets the qualification criteria laid down in the Constitution, which is basically 10 years of experience and also, ILS officers. Raghbir Singh qualified for appointment as Chairperson under this criteria. The main grouse of the petitioners is that such criteria allows for the appointment of even those lawyers who do not have experience in copyright matters. I don’t think this challenge will fly since there is no constitutional requirement for members of a judicial tribunal to have subject matter expertise. The only requirement is a basic law degree. 

The additional grounds of challenge, in the Bharat Anand petition against Section 12 is aimed at silly drafting errors by the Government. For example the amendments reduce the number of members on the Copyright Board to just 3 but the proviso to Section 12(2) allows for the Chairperson to refer matters to a 5 member bench. 

Although both petitions, mention in their prayers that they seek to challenge Section 11, the petitions do not seem to contain any specific challenge against Section 11 (at least to the best of my knowledge). 

It is possible to make a rather strong argument against Section 11 and that is the argument of excessive delegation since Section 11 delegates to the Central Government the power to fix salaries, tenure and qualification criteria. For Supreme Court and High Court judges, it is Parliament which specifies both criteria. This power is never delegated to the Central Government. Similarly, for the Copyright Board, it is Parliament which should specify this criteria in the legislation itself and not delegate it to the Central Government. 

The lack of judicial consultation during appointments: Another point which is not made by both petitioners and which was a crucial component of the NCLT judgment, is the lack of judicial consultation while appointing the members of the Copyright Board. As of now, the Rules only require judicial consultation while appointing the Chairperson. This would mean that the Central Government can appoint the other two members without having any consultations with the judiciary. This gives the government an opportunity to pack the tribunal with two of its members, who can reduce the Chairperson to a minority on all issues. It is absolutely critical that the petitioners include this as an specific ground of their challenge. This challenge is all the more important, if the Government begins the appointment procedure prior to the Delhi High Court deciding any of the pending challenges.