Before we move onto the replies, I would like to clarify that we do not have any personal axe to grind against the current Chairperson of the Copyright Board. Our only concern is that once the current round of mega-compulsory licensing hearings are concluded by the Board, the losing party will be tempted to raise these very same issues before an appeals court, leading to the setting aside of the Board’s judgment and a re-hearing of the entire dispute at a great cost to the public exchequer that will have to be funded out of our tax money. The Supreme Court has already set aside the orders of the Copyright Board once and we would like to avoid a repetition of the same.
(A) First RTI Application: The RTI Application and the reply received from the Copyright Office have both been uploaded onto our website over here. The questions and only the gist of the answers have been reproduced below:
1. As per Section 11 of the Copyright Act, 1957, read along with Article 217(2) of the Constitution of India, is it necessary for the Chairperson of the Copyright Board to have been enrolled as an ‘Advocate’ as understood by the Advocates Act, 1961?
RTI Ans. The Section 11 of the Copyright Act, 1957 and Article 217(2) of the Constitution of India are self explanatory and are matter of records.
2. As per Section 11 of the Copyright Act, 1957 read along with Article 217(2) of the Constitution of India is it necessary for the Chairperson of the Copyright Board to have been a practicing advocate for a period of atleast 10 years before a High Court?
RTI Ans. No answer provided.
3. As per Section 11 of the Copyright Act, 1957, read along with Article 217(2) of the Constitution of India is it necessary for the Chairperson of the Copyright Board to have been below the age of 62 years at the time of his/her appointment?
RTI Ans. The Copyright Act, 1957 and Rules made thereunder are silent about the age of Chairman, Copyright Board. Section 11(3) of the Act provides that ‘the Chairman of the Copyright Board shall be a person who, or has been, a Judge of a High Court or is equivalent for appointemnt as a Judge of High Court.
4. What is the procedure by which the Central Government may remove the Chairperson of the Copyright Board from his post? In which enactment can this procedure be found?
RTI Ans. Under the Copyright Rule 3(3) the Chairman or any other Member of the Copyright Board may resign his office by giving three months notice in writing to Central Government. The tenure of the present Chairman, Copyright Board Dr. Raghbir Singh will expire on 4th April, 2011. The Copyright Act and Rules are silent about the procedure for removal of Chairman from his post.
(B) Second RTI Application:
1. Is the current Chairperson of the Copyright Board enrolled as an advocate with any of the State Bar Councils?
RTI Ans. Yes
2. If the answer to the above question is ‘Yes’ then in that case please provide us with the following details of the current Chairperson’s enrolment: (a) year of enrolment (b) enrolment number (c) Bar Council with which the Chairperson is enrolled.
RTI Ans. Enrolled as advocate w.e.f. 15-4-93 (Enrolment No. D/216/1993) with the Bar Council of Delhi.
3. If the answer to question (1) is ‘Yes’ then in that case please also provide us with details as to whether the current Chairperson has been a practicing advocate in any of the High Court of the countries. The details that we require are: (a) years of practice (b) Names of High Courts or lower courts (c) years during which suspension from rolls of bar council was sought due to full time employment with Government of India or State Govt.
RTI Ans. The CPIO provided us with excess information in this regard. He gave us the Chairperson’s impressive employment history with the Central Government as a Law Officer who finally retired as Secretary (Legislative Department) on 31-3-2000 at the age of 60 years. In regards his record as an advocate the CPIO stated that “The other relevant information sought for may be collected from the concerned Bar Association”.
4. What is the birth date of the current Chairperson of the Copyright Board? Please provide the answer in the following format – day/month/year.
RTI Ans. The date of birth of Dr. Raghbir Singh, Chairman, Copyright Board is 15.3.1940.
5. Was the current Chairperson of the Copyright Board above the age of 62 years when he was appointed as the Chairperson of the Copyright Board?
RTI Ans. Yes. He was appointed on the 5th of April, 2006.
6. Has the current Chairperson ever held a ‘judicial office’ as understood in terms of Article 217(2)(a) of the Constitution of India? If the answer to this question is ‘Yes’ then in that case please provide us with details of such appointments.
RTI Ans. The answer to this answer was evasive but truthful. The CPIO stated that Dr. Singh worked as Vice Chairman of the Intelletual Property Appellate Board (IPAB) from 15th of September, 2003 to 14th March, 2005. IPAB is a National Statutory Judicial Forum to hear appeals against the decisions of Registrar Trade Marks and Controller of Patents and to hear rectification matter on original side.
7. Has the current Chairperson of the Copyright Board ever been the judge of a High Court?
RTI Ans. No.
Of the several RTI queries that I have seen I must say that CPIO Mr. Saxena was definitely one of the more candid officers, although a tad evasive at times. We will however appeal certain points.
The RTI replies clarifies two points:
(i)The current chairperson was above the age of 62 years when appointed to the post. As per Article 217(2) of the Constitution, which lays out the appointment criteria for a judge of the High Court, a High Court Judge has to retire when he is 62 years of age. The qualifying criteria for the post of Chairperson, Copyright Board, as outlined in Section 11 of the Copyright Act is a person who has been a Judge of a High Court or who is qualified to be the Judge of a High Court. The current chairperson was 66 years when he was appointed to this position and is therefore straight away disqualified from holding this position.
(ii)The current Chairperson held a judicial office for only 2 years. He was enrolled as an advocate only in 1993. During the 10 year qualifying period set down in Article 217(2) for a a High Court Judge, the current chairperson held the following posts:
(a) 1993-2000: Indian Legal Service, Ministry of Law. (21-8-91 to 20-8-96 as Joint Secretary, Legislative Council; 21-8-96 to 31-12-97 as Addl. Secretary; 1-1-98 to 31-3-2000, Secretary (Legislature). Ministry of Law, Justice & Co. Affairs, New Delhi)
(b) 1-4-2000 to 30-4-2002: Secretary, National Commission to Review in working of the Constitution New Delhi.
As is obvious from above the current Chairperson hardly had time to fulfil the criteria of practising advocate of any High Court for a period of 10 years as required by Article 217(2) of the Constitution.
(C) Problems of Constitutionality with the entire Copyright Board:
The current problem with the Copyright Board is far beyond just the current Chairperson. The problem lies with the very constitutionality of the Board itself. I’ve covered the issue earlier in this post over here. Shamnad and I had made the very same points in our submissions to the Parliamentary Standing Committee examining the Copyright Amendment Bill, 2010. The report can be accessed over here. The two main problems are as follows:
(i)As per Section 11 of the Copyright Act, the Central Government i.e. the Executive has complete control over the appointments and removal of the members of the Copyright Board. Such a structure completely compromises the judicial independence of the Copyright Board. This goes against the Separation of Powers doctrine enshrined in our Constitution.
(ii)The Board is currently staffed by members of the Executive, most of them being Law Secretaries to various State Governments. The Supreme Court in the case of Union of India v. R. Gandhi, President of Madras Bar Association made it very clear that sitting bureaucrats cannot be appointed to judicial bodies.
(D) CLAM:
Sai Vinod, an enthu third year student of NUJS, has put up for us on the CLAM website a problem statement regarding the constitutionality of the Copyright Board. Unlike our previous entries on CLAM we have not suggested any provision for the same and we request our readers to engage with us on CLAM and maybe draft a provision or two.
(E) Conclusion:
It is hoped that the people who are required to hear us, actually hear us, failing which certain ‘public spirited’ citizens maybe inclined to file a PIL or two.
