In regards Dr. Raghbir Singh’s appointment, as the Chairperson of the Copyright Board, Shamnad had pointed out how it was highly unlikely that Dr. Singh actually fulfilled the eligibility criteria laid down in the Copyright Act. Section 11(3) of the Copyright Act, 1957 clearly states that only a person qualified to become a Judge of the High Court can become the Chairperson of the Copyright Board. The qualifications to become a Judge of the High Court are laid down in Article 217 (2) of the Indian Constitution. According to this provision of the Constitution, in order to become a Judge of the High Court a person should have either held a judicial office for a period of 10 years in India or he should have been an advocate with 10 years of practice in a High Court.
Although it is known that Dr. Raghbir Singh is a highly experienced bureaucrat, it has been difficult to unearth the nature of his legal qualifications and his years of standing at the Bar.
In regards the second issue pertaining to the constitutionality of the Copyright Board, a recent Supreme Court judgment in regards the National Company Law Tribunal, has laid down some interesting law which has wide reaching ramifications for the current membership of the Copyright Board.
I. The Constitutionality of the Copyright Board – Separation of Powers and Independence of the ‘Judicial Office’
The current composition of the Copyright Board is as follows:
1. Dr. Raghbir Singh (Chairman)
2. Joint Secretary to the Government of India, in charge of Copyrights, Ministry of Human Resources Development (Member)
3. Joint Secretary and Legislative Counsel, Ministry of Law & Justice (Member)
4. Law Secretaries to the Government of Haryana, Gujarat, Maharashtra. Kerala, Bihar and Uttaranchal (6 Members)
5. Directors of the various leading National laws in India (5 Members).
The current Panel hearing the compulsory licensing dispute does not employ any of the directors of the National Law Schools. Instead the Secretary to Union Law Ministry and the Law Secretary of the Bihar Government are hearing the dispute along with Dr. Raghbir Singh.
In a recent judgment in the case of Union of India v. R. Gandhi, President of the Madras Bar Association the Supreme Court while deciding the constitutionality of the National Company Law Tribunal (NCLT) stated in no uncertain terms that active bureaucrats could not be tasked with judicial functions since the same would go against the doctrine of separation of powers between the Executive and the Judiciary. In pertinent portion the Supreme Court held the following:
The issue is not whether judicial functions can be transferred from courts to Tribunals. The issue is whether judicial functions can be transferred to Tribunals manned by persons who are not suitable or qualified or competent to discharge such judicial powers or whose independence is suspect.We have already held that the Legislature has the competence to transfer any particular jurisdiction from courts to Tribunals provided it is understood that the Tribunals exercise judicial power and the persons who are appointed as President/Chairperson/Members are of a standard which is reasonably approximate to the standards of main stream Judicial functioning. On the other hand, if a Tribunal is packed with members who are drawn from the civil services and who continue to be employees of different Ministries or Government Departments by maintaining lien over their respective posts, it would amount to transferring judicial functions to the executive which would go against the doctrine of separation of power and independence of judiciary. (para 45)
A lifetime of experience in administration may make a member of the civil services a good and able administrator, but not a necessarily good, able and impartial adjudicator with a judicial temperament capable of rendering decisions which have to (i) inform the parties about the reasons for the decision; (ii) demonstrate fairness and correctness of the decision and absence of arbitrariness; and (iii) ensure that justice is not only done, but also seem to be done. (para 47)
We hasten to add that our intention is not to say that the persons of Joint Secretary level are not competent. Even persons of Under Secretary level may be competent to discharge the functions. There may be brilliant and competent people even working as Section Officers or Upper Division Clerks but that does not mean that they can be appointed as Members. Competence is different from experience, maturity and status required for the post. (para 48)
The current composition of the Copyright Board therefore is patently unconstitutional.
II.Rectifying the situation – Amend the Act
As per the current scheme of the Copyright Act, the Central Government may prescribe its own criteria to appoint the members of the Copyright Board. In my view it was unconstitutional for Parliament to delegate this essential function to the Central Government. Since the independence of the judiciary is a basic feature of the Constitution, all factors affecting their independence, such as appointments, removals, tenure, salary are all essential functions, which must be decided by the Parliament itself and not delegated to the Central Government. A seven judge bench of the Supreme Court in the case of In Re. Delhi Laws had upheld the delegation of powers from Parliament to the Executive but drew the line at delegating essential legislative functions. Therefore the only way to amend the situation is to amend the Act itself.
The Copyright Board being a Judicial Body should Ideally be headed by Retd. High Court Judges and as it is dealing with Commercial Tariff Settings/ Disputes should also have competent Economists and people with commercial/business understandings. Else the judgements from Copyright Board will always be lacking in Commercial Senses. Ideally should be like TRAI & IT Tribunal.
Mr. Jagdish Sagar, a former top bureaucrat at the Ministry of HRD sends in the following comment:
“No comment on the legal issues, strictly. But I have some comments of a more general character.
Firstly, the present unsatisfactory functioning of the Copyright Board cannot be laid at the door of the Chairman. The fact is that the State Law Secretaries, who are undoubtedly judicial officers, sit on the Board in a very part-time way, their work on the Board being far removed from their normal daily responsibilities, and do not necessarily understand the law of copyright. Ideally, the Board should sit full-time, so that its members (wherever they come from) acquire the relevant expertise.
Secondly, having seen both sides of this particular fence, I sincerely feel the legal profession underestimates the value of experience in the bureaucracy. The civil services are law-bound and rule-bound professions. Members of the IAS in the formative years of their usual career pattern, and members of other services like the Revenue Service, have to do a lot of quasi-judicial and even judicial work, are also exposed to the judicial system, and acquire other experience which is useful anywhere–and the selection system (though antiquated and sometimes unpredictable, and now diluted by excessive reservations) does still ensure certain minimum levels of ability. I suspect –though I admit I can’t claim objectivity myself–that there is a widespread unwillingness to recognise former bureaucrats as a resource, which stems as much from prejudice and perhaps an understandable resentment of executive authority, as from any objective thinking.”