While the first petition, challenging the IPAB was filed by Prof. Shamnad Basheer in his capacity as the Ministry of HRD Chair Professor for IPR laws at NUJS, the second petition was filed by the South Indian Music Companies Association (SIMCA). As reported earlier on this blog SIMCA was adversely affected by the Copyright Board’s orders in the mega-compulsory licensing disputes.
Both petitions were argued by Senior Advocate Mr. Arvind P. Datar, briefed by Advocate Mr. Ananth Padmanabhan. At the time of admission the Division Bench was reluctant to entertain the petitions on the grounds that they could not interfere with appointments made by the Supreme Court. Mr. Datar replied by pointing out that none of the appointments were made in consultation with the Supreme Court and that this was precisely the problem! The Division Bench subsequently admitted the PILs and issued notice to the Central Government which was represented by the Additional Solicitor General Mr. Ravindran. The Central Government has been given three weeks in which to file their reply.
I would also like to mention that both Mr. Datar and Mr. Padmanabhan are both appearing pro bono in the IPAB petition since they are on principle opposed to the tribunalization of the Indian judiciary. The NUJS team which put together the case against IPAB consists of Prof. Basheer, three undergrad students – Shambo Nandy, Sai Vinod Nayani and Debanshu Khettry and me. The matter was initially slated for a hearing on last Friday and several newspapers such as the Mint, the Hindu Business Line and the ET carried stories on the same. However the matter could not be taken up on that day and came up for hearing only today. I would also like to thank Advocates Mamidipudi Swaroop and Suchin, juniors to Mr. Datar for all their efforts last week when we had to wait the entire day in the Madras High Court for the matter to come up.
Let me also take this opportunity to clarify that this litigation has been filed in ‘public interest’ and is self-funded only by Prof. Basheer.
A few details on both the IPAB and Copyright Board petitions are as follows:
A. The NCLT case as the basis of both the petitions: The basis of both the petitions is a judgment of a Constitutional Bench of the Supreme Court in the case Union of India v. R. Gandhi, which struck down key provisions pertaining to the creation of the National Company Law Tribunal (NCLT). The Supreme Court had struck down those provisions on the grounds that they violated the ‘Separation of Powers’ doctrine which requires the judiciary to be independent of the Executive and also the fundamental right of citizens to have their disputes adjudicated by person who possess the requisite judicial independence and qualifications to discharge judicial functions. It bears noting that Mr. Arvind Datar was the lawyer who successfully argued the NCLT case before the Supreme Court. Ananth was also a part of the team which briefed Mr. Datar for the Supreme Court hearings.
B. The Case against the IPAB: The case against the IPAB is as follows:
(i) The History of the IPAB: The IPAB was initially setup under the Trade Marks Act, 1999. Under the old Act of 1958 rectifications petitions against trademarks and appeals against the Registrar of Trademarks were heard directly by the High Courts of Madras, Calcutta, New Delhi, Bombay and Gujarat. With the creation of the IPAB all these functions were transferred to a specialist tribunal called the IPAB. In 2002 and 2005 the Patents Act too was amended to transfer revocation petitions and appeals against the Patent Office, from the High Courts to the IPAB. It is doubtful whether the Central Government actually investigated the viability and suitability of the IPAB, especially since there has been a concerted move by the Central Government bureaucracy to whittle down the powers of the High Courts by transferring crucial powers to tribunals, which would then by staffed by these very same bureaucrats once they retired. Starting from 1999 the Central Government attempted to transfer three crucial functions of High Courts by creating new tribunals such as the National Company Law Tribunal, the National Tax Tribunal and the Intellectual Property Appellate Board. The distinguishing factor behind all these tribunals is the fact that unlike the existing tribunals these tribunals did not provide for statutory appeals to the High Court. The normal argument given by the Central Government to support this drive towards tribunalization is that there is heavy pendency at the level of the High Courts and that specialist adjudicators are required for certain disputes. None of these claims are ever backed by empirical data. What is most interesting however is the role of Indian Legal Service (ILS) cadre in the process of tribunalization. ILS officers are meant to serve as Legal Officers in the Ministry of Law and Justice and are usually lateral hires. These officers are usually involved only in policy matters and do not represent the Central Government in any litigation. Despite these officers not having any practical judicial experience both the IPAB and the NCLT were created in such a manner that these officers could be appointed as judicial members to both tribunals. The reason that this was possible is because ILS officers are in control of the Legislative Department of the Ministry of Law and Justice and it is these officers who prepare the final version of any legislation which is tabled before Parliament. To put it simply, the ILS officers have been drafting legislations in such a manner to provide themselves with post-retirement havens. In the case of the IPAB, the Secretary of the Legislative Department, Ministry of Law and Justice in the year 1999, when the Trade Marks Act was drafted was the first Vice-Chairperson of the IPAB when it was notified in the year 2003. The Constitution of India and the Supreme Court have however allowed for only lawyers with judicial experience to become judges of either the High Court or tribunals. The IPAB however is fashioned in such a manner that person which no judicial or litigation experience can become judicial members of the IPAB.
(ii) The IPAB violates the Separation of Powers Doctrine: The IPAB is under the executive control of the Department of Industrial Policy and Promotion (DIPP), Ministry of Industry and Commerce. The petition demonstrates this by pointing out to firstly how the DIPP in its Annual Report lists the IPAB as one of its subordinate or allied organizations and secondly how the DIPP is handling all RTI queries pertaining to the IPAB despite the IPAB being a statutory authority in itself. Additionally the appointment procedure is controlled completely by the DIPP and the Judiciary is not even consulted during the appointment process. This procedure is completely unlike the appointment of Supreme Court or High Court judges. The Supreme Court in the NCLT judgment has clearly stated that while Parliament is at liberty to transfer functions from the High Courts to tribunals it is under a compulsion to ensure that these tribunals have the same degree of independence as the High Courts especially in matters of appointment, removal and administration. Also the salaries and pensions of the IPAB members is controlled completely by the DIPP unlike for High Court judges whose salaries are controlled by Parliament.
(iii) The Qualifications of the Judicial members of the IPAB: As per the Trade Marks Act the IPAB benches are required to be staffed by atleast one judicial member and one technical member. While the qualification criteria for a judicial member allows for the appointment of Indian Legal Service officers, it does not create any provision for lawyers with litigation experience to be appointed as judicial members. Similarly the Act allows for ILS officers to be appointed as Vice-Chairpersons directly but does not allow for the appointment of lawyers who maybe qualified to be appointed as High Court judges. There has been no law in this country which has not allowed for lawyers to be allowed as judicial members or judges since they are the most qualified to hold these posts. The Supreme Court in the NCLT judgment has clearly stated that ILS officers cannot hold the position of judicial members since they have no judicial experience. The role of a judge requires certain qualities which can be learnt only through practical experience and persons without that experience cannot be allowed to adjudicate disputes.
(iv) The qualification and role of the Technical Members: Technical members are appointed to tribunals with the hope that their specialization in the subject allows for a more efficient adjudication of disputes. The Trademarks Act and the Patents Act allow for Registrars of Trademarks, Controllers of Patents and lawyers with 10 years experiences to be appointed as Technical Members to the IPAB. The problem however lies in the actual functioning since the Technical Members, who do not have degrees in law, are penning judgments purely on questions of law. For example almost all of the 21 patent decisions by the IPAB have been penned by S. Chandrashekharan, Technical Member and almost all 21 are purely on questions of law. There are more grounds which we have discussed in the petition.
(v) The qualification and role of the Vice-Chairperson: The qualifications of the Vice-Chairperson are such that any ILS officer of Grade I or a judicial or technical member with two years of experience can be appointed as Vice-Chairperson. A Vice-Chairperson as per the Act can then sit as both Judicial Member or Technical Member on a Bench. So, S. Usha who was appointed as Technical Member for Trade Marks became a Vice-Chairperson after two years. Once she became a Vice-Chairperson she sat as the Judicial Member along with S. Chandrashekharan, Technical Member and knocked down 12 patents belonging to Dr. Alloy Wobbens!
(vi) Irregular appointments: While researching for the petition, a well-wisher, forwarded to us an RTI query pertaining to the appointment of Mr. Syed Obaidur Rehaman as technical member of the IPAB. It appears that on his application form for the position of Technical Member, Mr. Rahaman has claimed to have appeared in English cases dating back to the 19th Century. Moreover we could not find his name even in the Indian cases in which he has claimed to have appeared. If our investigation is correct then Mr. Rahaman was not qualified to have been appointed as Technical Member. Mr. Rahaman is slated to retire early next month. The ToI has carried a story on this over here.
(vii) Inefficient administration: While the IPAB was probably setup to speed up pendency, the actual disposal rates published by the DIPP shows the complete inefficiency of the system. Of the 2245 trademark cases transferred to the IPAB, only 901 cases were decided in this period. Of the 155 patent cases transferred to the IPAB only 21 cases were decided by the IPAB. Additionally the IPAB last year had only 103 sittings, as per our research. A normal High Court sits for atleast 220 days a year. Furthermore the IPAB does not have any permanent facilities for its circuit hearings. The Hindu carried this report last year on a complaint by the IPAB to the DIPP that the Controller General of Patents and Trademarks had informed the IPAB that they could no longer conduct sittings in the Patent Office in Mumbai. The irony lies in the fact that the IPAB is hearing appeals against the Patents and Trade Marks Offices. Even in Delhi and Kolkata the IPAB conducts its sittings within the Patent Office premises. It is only in Chennai that they have an independent building. Furthermore the IPAB is currently staffed with only two members, down from seven earlier. Given the fact that Mr. Rahaman is retiring soon, there will be only one member Ms. Usha and the IPAB will therefore be rendered non-functional until another member is appointed.
C. The case against the Copyright Board: The state of affairs at the Copyright Board is as bad as the IPAB. Although created in 1957 the Copyright Board has achieved significance only in the recent past with the Rs. 100 crores compulsory licensing dispute. The Board is currently headed by a former ILS Officer, slated to retire shortly. The other members of the Board are Law Secretaries to various State Governments and the Directors of various National Law Schools. None of these members have prior judicial experience and this has reflected in its judgments and functioning. Earlier the Supreme Court itself had reprimanded the Copyright Board for its arbitrary conduct in the compulsory licensing matter and this probably highlights the importance of appointing persons with judicial experience. The state of affairs at the Copyright Board, in terms of infrastructure, was so miserable that the Delhi High Court had taken suo-moto cognizance of the same and ordered the Ministry of HRD to provide basic facilities to the Chairperson. As per the statute the Registrar of Copyrights is in a position to control the Copyright Board and the petition by SIMCA takes strong exception to this Executive interference in the ‘judicial independence’ of the Copyright Board, requesting the High Court to ensure adequate separation between the Registrar and the Copyright Board especially since the latter is deciding appeals against the former. As this post is getting a little too long, I would like to cut it short by pointing our readers to an earlier post of mine last year where we had made out a case for challenging the Copyright Board on the basis of the NCLT judgment.
D. Conclusion: While we have all spent a lot of time arguing the merits of substantive law, we have forgotten about the nuts and bolts of procedural implementation. Any law is only as good as the judges administering them. Hopefully both these petitions will change the way in which Intellectual Property disputes are administered in this country.