Earlier this morning a Division Bench of the Madras High Court comprising of Chief Justice M.Y. Eqbal and Justice T. S. Sivagnanam, admitted two Public Interest Litigations (PILs) petitions challenging the constitutionality of the Intellectual Property Appellate Board (IPAB) constituted under the the Trade Marks Act, 1999 (& also the Patents Act, 1970) and the Copyright Board constituted under the Copyright Act, 1957. Both petitions are available over here and here. Image from here.
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.
Well done Reddy! A very useful utilisation of your time.
The credit for the writ petition really goes to Prashant Reddy, the author of the post. He’s been tracking the IPAB for a while and nudged us to file this. And the finely crafted writ is largely his work. So my heartiest congratulations to him!
Shamnad
Dear Congrats bringing our this petition but when is next date of hearing
Thanks Shamnad, especially for making yourself the petitioner! Hope the govt. doesn’t give you any trouble over this! 😉
Cheers,
Prashant
This is timely excellent effort.
Congratulations on the admission of the appeal… Well done…
Seems like Mr. Basheer is also adversely affected like SIMCA. Challenging the appointment of Chairman of Copyright Board after the royalty case was decided by the Copyright Board is definitely something which is in Public Interest.
@ Anon (9:10) – You’re starting to sound like the Chairman of the Copyright Board. 🙂
Dear Prashant,
Seems the question offended you. Sorry. However, SIMCA has a reason to be aggrieved by the Copyright Board order and they have filed appeals against the same….. That’s quite understandable……. But actavists like you and Mr. basheer filing identical PIL’s and one challenging the IPAB and the other Copyright Board is too much of a coincidence……
Hey Prashant great work in drafting the writ on behalf of the The South Indian Music Companies Association…..it’s quite nicely done!!!
Dear Anons (at 9.10, 11.55 and 12.49):
wonderful sleuthing i say. and reflective of what would appear to be an exceptionally high IQ. not many could have connected these two dots together….particularly since we posted both the petitions on this very blog in the very same article ! an aspect that neither the press nor any of you would have known unless we’d posted it…
and doubly wonderful of you to spot our interest in the copyright petition, given that we have been arguing against the constitutionality of the copyright board for almost two years on this blog now!
in fact, in an earlier blog post (http://spicyipindia.blogspot.com/2009/07/compulsory-licensing-by-copyright-board.html), i had noted:
“The Government of India ought to seriously review the constitutional implications of such a Board with no real copyright expertise. For it will be a criminal waste of time and resources, if it permitted the Board to continue with its proceedings only to find at the end that it suffered from serious constitutional infirmities.”
do people read older blog posts? perhaps not. homework appears to take a backseat when one is blessed with an exceptionally high sleuthing IQ 🙂
Dear Anons (at 9.10, 11.55 and 12.49)::
And pray don’t fret. Your hard earned victory against your radio station clients is unlikely to be dislodged by this constitutionality challenge. For, there is something called the doctrine of necessity. And I had noted in an earlier post that: (http://spicyipindia.blogspot.com/2010/09/issuing-radio-compulsory-licences-in.html)
“Even assuming Mr Singh’s appointment is held illegal or irregular on some ground, this will not, by itself, vitiate the proceedings of the Copyright Board. As mentioned earlier, under the de facto doctrine and the doctrine of necessity, courts are likely to uphold the validity of the proceedings, notwithstanding any irregularity in the appointment of members adjudicating the dispute/proceedings.”
Again, something you might have spotted easily, had you taken the time and effort to do your reading and homework. High level sleuthing IQ’s and ability to spin grand conspiracy theories do not always translate to legal knowledge. So why don’t you sit down one of these days and read these posts. It might help you in the quality of advise you render to your clients as well. All the very best.
And lastly, “public interest” does not mean that we always look for a position that is completely at odds with what stakeholders or parties to a dispute have taken. It often happens that we might have a position on a case that closely aligns to the position of one of the stakeholders as well…..as is the case in the copyright dispute. and in all such cases, we will certain join hands with them and leverage competencies. This is the very essence of what P-PIL stands for. the website is not yet ready, but you can see it here (http://www.p-pil.com/).
the mission statement reads:
“What distinguishes P-PIL from various other public interest outfits is the fact that key focus will be on advancing public interest by creating synergies between law schools and the legal profession and leveraging their respective talents and resources to help achieve shared public interest goals.”
In this copyright board case, as i noted earlier, we’ve been raising this constitutionality and incompetence issue for almost two years now. And were pleased that at least one of the parties decided to challenge it. Naturally, we wanted to share our research and work on this theme with them–and in fact, it is the very same counsel (Ananth Padmanabhan) who acted for SIMCA and appeared probono for us in the IPAB matter as well. So nothing sinister or hidden here. Its all open …and its all for a good cause. Now why don’t you come out in the open as well and tell us your specific interest in the dispute and which radio station you represent. Hiding behind a cowardly anonymous veil and shooting off your “grand conspiracy theory” mouth does you no good in terms of credibility.
@ Anons,
I should probably give you a little bit of background to these petitions.
Ananth and me are friends from law school, he was my senior. I was aware that he was working for Mr. Datar at the time of the NCLT case. Therefore when we were searching for a lawyer, Ananth was the natural choice as he had an exceptionally good understanding of the challenge that we wanted to pose to the IPAB and also he had an excellent working relationship with Mr. Datar.
As chance would have it Ananth was representing SIMCA in its Copyright Litigation before the Madras High Court since September and he was already contemplating a challenge against the Copyright Board.
Did we co-ordinate our strategy and draftings? Yes, we did. Considering that Ananth was the lawyer on the record for both petitions he was legally and ethically bound to ensure that the common arguments were consistent. So please don’t rob Ananth of the credit due to him.
As for the timings of the plea, we have already stated that Mr. Datar and Ananth were appearing pro bono and we had no objection if both petitions were taken up together at their convenience.
So were there coincidences? Yes! It was a coincidence that Ananth was SIMCA’s lawyer at the time when we approached him.
I hope this clarifies your grand conspiracy theories.
Cheers,
Prashant
Prof. Shamnad has literally put his job on the line as well since he is appointed by the Govt. itself. On top of that this whole thing is pro-bono involving respected personalities like Mr. Datar from the Bar. I dont know of the insights but it should be left open to the Courts of law to determine whether the case has any vested interest or not. Whoever these anon people are if they have to bark so much they rather produce some evidence in the Court of law, file some intervenus petition, etc. No point maligning under the garb of anonymity here. Its falling in deaf ears.
Would appreciate a response to query on the non mentioning of Standing Comm observations and views in the Copyright Board writ… Sure you are not going to disown your efforts in the Copyright Board writ
Dear Basher,
Please do not mind, if I raise some pertinent question here as you yourself say that you are in to teaching of IPR law and this TM law of establishing IPAB came to effect in the year 2003, it means a emeritus professor like you took almost 8 year to understand the rationale behind creation of the IPAB, though in my personal view the working of IPAB tribunal as does not much effects to you, as you are not in to litigation or a litigation lawyer except the judgments good or bad so propounded by the members of IPAB may affect you while teaching, even though assume, they give wrong orders or propound wrong law, the doors are not closed for the litigants, they may approach or challenge its decisions before SC or may come in the form of writ in respective HC .
I am not able to understand you’re rational in approaching Madras HC at this stage that too after lapse of almost 8 years as you are very much working in IP field for last ten years; it means till Mr. Justice Jagdeeshan was working as chairman of IPAB, no one, including you had any objection of his continuing as chairman or even at the time of Mr. Raghbir singh was member of IPAB, so why you have raised your voice now, I have gone through you blog you have been raising issues with regard to IPAB from time to time, some of are right and some are of intrusive nature like masala journalism.
There are about thousands of IP lawyers as well as hundreds of IP firms in whole of India including leading IP firm of Delhi, where you have brushed your IP exposure, many of IP litigation lawyers in thousands, those who are working or of have put many years in IP law more than of your age, so how these lawyers or IP firm including your old worked firm did not any difficulty in Dealing with IPAB so far or felt of challenging TM act in reference to IPAB working.
As far concerned to ILS people joining in IPAB or any other legal foras, I would like to bring to your notice there are many tribunals/ forums where this ILS service is part of the eligibility criteria and are grabbing post retirement jobs so there is nothing new in your this point and they may have a short stint of two years or you have some grudge against this ILS people.
The selection of member / chairman or for any other posts, if I take your argument as it is then SC judges will busy daily in taking interviews of selecting one or other members in tribunals or forums, which are hundreds in India and certainly going to hamper their working as judges of the SC, I feel SC being last resort for every litigant cannot ignore their prime duty laying down law and not appearing as interview committee members.
As far as the service tenure of the member or otherwise is concerned , I would like to invite your attention for the recent judgment of supreme court, where recently supreme court has held in Shanker Raju vs Union of India [SUPREME COURT OF INDIA, 04 Jan 2011] SC has reaffirmed its earlier order in respect of limiting the tenure of member for ten years,
So your view of giving opportunity to young legal professionals will create more problem as per your argument if someone joins at the age of 40 or 42 then he has to go after serving ten years then at the age of 50 or 52 where he will go as he or she has to start afresh for practice and in this competitive world it will be little difficulty in getting established as one had a judgeship once will always a remain a judge.
I am intrigued and surprise of at your challenging IPAB office under TM act at this stage that too after a lapse of eight years of its establishment has baffled me and will to others in months to come.
Dear Anon (@5.01 pm):
Apparently, courts have now ruled that standing committees are to be treated as the highest law of the land…and that their reports are to be placed on a pedestal even higher than the basic structure. Anything that the standing committee states stands converted to law immediately…and does not even need legislative implementation….unfortunately, our research on the petition we filed was so bad that we missed this critical point. And ominously failed to include it.
We really wish we had you on the team. Please do join in for our next writ. We are going to claim that Sonia Gandhi is really an alien…and not even a legal one, as Sting once sang….she ought to therefore be deported to mars, where she belongs…Given your expertise with conspiracy theories, if you help us, we will certainly win…
Dear Anon (@9.55 pm):
I absolutely don’t mind your asking this very pertinent query. Why did I take 8 years. I should have challenged this in 2003 itself. I thought and thought and thought about this and finally have to say: that I am bloody too slow….it just takes me a really long time to understand legal issues….i need someone faster on the team…would you please join? please?
Prima facie great! And I sincerely hope your petitions hold even after the strictest scrutiny.. and the IPAB which has become a creaky government vehicle be quashed trashed! It is so frustrating when you go through the IPAB decisions esp. patent matters; which easily betrays the stark low legal intellect and the forced manner in which the decisons are arrived at, after quoting cases from all around the world which has no relevance and connect to the issue. The non-cohesive language and multiple and gory ‘grammar’ murders hardly need special mention! Let these petitions end the disgrace to India’s image of an emerging IP destination. Cheers
Dear Anon (5:01)
Only the IPAB petition is ours, the Copyright Board petition was filed by SIMCA, so I really can’t comment on their behalf.
However I do have two points in response to you:
(i)The Government’s disregard for Parliamentary Standing Committee Reports has been quite obvious in past attempts at tribunalization.
When the National Tax Tribunal Bill was introduced in Parliament the Madras Bar made very strong representations to the Parliamentary Standing Committee. The final report submitted by the Committee to Parliament accepted most of these recommendations and strongly advised Parliament against the creation of such tribunals. Yet the Central Government in complete dis-regard for Parliamentary convention pushed the Bill through the Parliament.
So please don’t be under any misconception that the Central Government actually bothers to listen to Parliamentary Standing Committees.
(ii) As a rule of thumb, there is absolutely no necessity to discuss Standing Committee Reports, while drafting a petition. At the most a petitioner should disclose any important binding judicial precedents on the point.
Hope this clarifies.
Cheers,
Prashant
Dear Prof Basheer and Mr. Reddy,
I am a litigant and was drawn to this blogpost through internet search. My three connected matters are currently pending before the IPAB. Please tell me whether the case would now be pending before the order on this writ petition as per your prayer of an interin injunction restraining the Board from adjudicating any cases pending the disposal of the above writ petition.
Regards
Dear Anon (12:02 PM)
There was no requirement to ask for the interim relief since the IPAB anyway does not have enough members to hear matters after Mr. Rahaman retired. The Government is yet to appoint members to replace him and the other retirees.
Cheers,
Prashant
For years the music labels have been demanding unreasonably high royalties, sucking artists’ share of revenue and not allowing the music business to grow. The music industry has been losing money just because people have refused to adapt to new ways of doing business and generating revenue.
Only when the Copyright Board decided to fix the royalties and attempt to improve the situation, there comes a challenge to constitutionality of the Board!!
This is for getting some cheap and quick popularity … Mr. Padmanabhan is fighting for a lost cause..
Please tell us a wen this case is coming in the court n what is new update in the case
Shamnad
what other than the situs of the bodies prompted the filing of a constitutional challenge before the madras high court ?
i am sure you have given it some thought before finalizing the madras high court as the apt forum for filing this challenge ….
what were the considerations ? excellent seniors , a more understanding bench