Should High Courts continue to exercise writ jurisdiction over the IPAB?

As discussed in an earlier post, one of the peculiarities of the Indian tribunal system is that although it was setup to reduce the workload of cases pending at the High Courts, almost every order of these tribunals is appealed to High Court since the Supreme Court has held in the Chandra Kumar case that the writ jurisdiction of the High Courts is a part of the ‘basic structure’ of the constitution and hence cannot be barred by the Parliament. Image from here.

Originally the constitutional amendments, which brought in the system of tribunals through Article 323A & 323B, permitted excluding the jurisdiction of all Courts, save for the powers of the Supreme Court under Article 136 of the Constitution. This clause which barred even High Courts from reviewing the decisions of the tribunals was successfully challenged before the Supreme Court in the Chandra Kumar case, almost twenty years after it had been passed by the Parliament of India. The challenge was sustained on the grounds that it violated the ‘basic structure doctrine’ and the Court went on to hold that High Courts could continue to review decision of tribunals under Article 226 and 227 of the Constitution. While Article 226 deals with the writ jurisdiction of the High Court, Article 227 deals with the supervisory jurisdiction over the subordinate judiciary and tribunals. Therefore although both the tribunals and the High Courts derive their powers from the same Constitution, the latter are held to be superior to the former.

The crucial difference however between the IPAB and the tribunals challenged in the Chandra Kumar case is that the IPAB deals with litigation between private parties (For e.g. the Enercon dispute) while the tribunals under challenge before the SC in the Chandra Kumar deal with only administrative or quasi-judicial disputes involving the government. The significance of this lies in the fact that usually writs lie against only the State. Therefore any orders from the administrative tribunals or tax tribunals, where the government was a party to the dispute, could be reviewed under the writ jurisdiction of the High Courts. Initially judgments of ordinary civil courts, dealing only with private parties could be ‘revised’ by the High Court only within the limited boundaries of Section 115 of the Code of Civil Procedure, 1908. The Orders of Civil Courts could therefore not be reviewed under the writ jurisdiction of a Court. This position was however altered in the case of Surya Dev Rai v. Ram Chander Rai & Ors.

In this case the High Court had dismissed a petition seeking to invoke the writ jurisdiction of the court, against the order of a subordinate court, deciding private litigation, on the grounds that writs cannot be issued against private parties. The Supreme Court however disagreed and clarified that under Article 226 and 227 the High Court could exercise supervisory/writ jurisdiction over the subordinate judiciary by issuing writs of certiorari to the subordinate judiciary summoning certified copies of the record to the High Court for examination. The scope of proceedings under the writ of certiorari is much narrower than an appellate court and the writ Court cannot substitute the reasoning of the lower court with that of its own. The writ court can only examine whether the lower court was acting within its jurisdiction, subject matter or otherwise. The appropriate remedy during the proceedings of a writ of certiorari is to either quash the order of the subordinate court with orders for the matter to be re-heard or to dismiss the petition seeking the issuance of such a writ. Therefore although the Trademark Act, 1999 and Patent Act, 1970 do not provide for a statutory appeal against the orders of the IPAB it is possible for the High Courts to reviews the same since the Chandra Kumar judgment of the Supreme Court clearly makes tribunals subordinate to the High Courts.

The policy question however is whether this power should continue to vest with the High Courts? If you read the Chandra Kumar judgment you will realize that rather than being guided by a strict theoretical understanding of the law, the Supreme Court was in fact guided by a very real fear that the quality of justice being rendered by these tribunals was bordering on the farcical and hence the need for High Courts to review their decisions. As a result of this decision most of the orders of most tribunals including the IPAB are appealed to the High Court, the effect of which is to increase the pendency of cases before the High Courts apart from increasing the cost of the litigation by adding another layer of appeals.

Given that it has been 15 years since the Chandra Kumar decision and almost 8 years since the constitution of the IPAB I would say the time is ripe for a fresh judicial review of the functioning of the IPAB and whether it needs to be under the supervisory jurisdiction of the High Courts. If even after 8 years the IPAB continues to function like a mess, then it is probably time to wrap it up and send back these matters to the High Courts. If the IPAB however is functioning up to the mark it is probably best that the High Courts be relieved of their supervisory jurisdiction. In any case this is a matter which needs to be brought to be reviewed by the Supreme Court. The only case in which this can probably be raised is the on-going Enercon litigation in which the Madras High Court is reviewing the decisions of the IPAB to revoke 12 patents. It would be interesting to observe whether EIL takes the arguments that the writ petitions against the IPAB’s orders are not maintainable for the reason that the Chandra Kumar judgment is not applicable to the limited extent that it applied to tribunals which were quite different from the IPAB. A slightly far-fetched argument, but one which will drag the case up till the Supreme Court.

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP). He has recently been appointed as an Assistant Professor at NALSAR, Hyderabad, starting September 1, 2017.


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    In our system that whenever new legislation or enactment is passed, either by Parliament or Legislative Assemblies, it is generally found that, the legislation usually being tested in courts of law, either for its validity as a whole or certain provisions of the act if the legislation is offending any provision of Constitution, any public policy or established legal principles. Therefore, no exception was shown to the ‘Administrative Tribunals Act, 1985, enacted in terms of Article 323 –A of the Constitution of India. Consequent upon the establishment of service Tribunals in the country ‘under the Administrative Tribunals Act, 1985, a string of litigation had erupted before the High Courts of several States and also in Supreme Court, questioning the validity of certain provisions of the Act and also ultra-vires of Articles 323-A and 323B and 323-B.

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    After independence firstly our Apex Court had constituted a Five Judge Constitution Bench, headed by the then Hon’ble Chief Justice, Justice P.N. Bhagwati, examined the constitutional validity of Article 323-A and its provision in S.P. Sampath Kumar Vs. Union of India and others, the said Bench while upholding the validity of Article 323-A, held that the Service Tribunals created under Article 323-A are substitutes to the High Courts and the exclusion of the jurisdiction of High Courts is legal. Thereafter, a seven Judge Constitution Bench of the Supreme Court in ‘L. Chandra Kumar case’ while dealing with power of judicial review vested in High Courts and Supreme Court under Articles 226,227 and 32 respectively vis-a-vis Articles 323-A and 323-B not only deviated from the earlier discussion of the Supreme Court in ‘S.P. Sampath Kumar’s case’, but also held that, the Tribunals are supplementary in their role and the power of ‘Judicial Review’ vested in High Courts and Supreme Court under Articles 226, 227 and 32 is an inviolable basic structure of the Constitution and struck down clause 2(d) of Article 323-A and clause 3(d) of Article 323-B of the Constitution of India to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 as unconstitutional and also Section 28 of the ‘Administrative Tribunals Act, 1985′ which excludes the jurisdiction of High Courts.

  3. IPvocal

    The Supreme Court in the above case had further held that: “The Tribunals created under Article 323-A and 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a ‘Division Bench’ of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunal will, nevertheless, continue to act like Courts of ‘first instance’ in respect of the areas of law for which they have been constituted. It will not, therefore, be open or litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.” In the same case, when an argument was advanced for the superintendence over the Tribunals by the concerned High Courts, the Supreme Court categorically held as follows: “To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall.

    The tribunals which were established prior to the 1976 Amendment did not exclude the power of judicial review under Arts.226 and 32 of the Constitution of India. Also appeals from the decisions of these tribunals generally lay with the High Courts on substantial questions of law. But it was this very appeal procedure and the unfettered right to go under Arts. 226 and 32 that led to the continued clogging of the higher judiciary with back-log of cases and defeated the very purpose of establishing the Tribunal system in India. It was the need to remedy the above that led to the 1976 Amendment. However, the exclusion of the jurisdiction of the higher judiciary under Arts.226 and 32 raised constitutional questions related to judicial review and separation of powers. The case law on the matter will be briefly examined before going into the functioning and efficacy of tribunals in India.

    It was held that the power of judicial review over legislative and administrative action is expressly vested with the High Courts and the Supreme Court under Articles 226 and 32 respectively. The contention that the constitutional safeguards which ensure the independence of the higher judiciary[22] is not available to the lower judiciary and bodies such as Tribunals was upheld and the Apex Court consequently held that the lower judiciary would not be able to serve as effective substitutes to the higher judiciary in matters of constitutional interpretation and judicial review.

    Hence the power of judicial review is vested in the higher judiciary and the power of High Courts and the Supreme Court to test the constitutional validity of legislative and administrative action cannot ordinarily be ousted. However it was held that these tribunals and the lower judiciary could exercise the role of judicial review as supplement to the superior judiciary. The court applied the provisions of Article 32(3) to uphold the same.

    It was also held that the power of the High Courts to exercise judicial superintendence over the
    decisions of the lower judiciary within its jurisdiction( under Articles 226 and 227) are part of basic structure. In its supplemental role to the higher judiciary it was held that these tribunals and the lower judiciary had the power to test the vires of legislative and administrative action, subject to their decisions being appealable to a Division Bench of the respective High Court.

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    However there are many legal scholars who still argue that the constitutional bar is against the conferment of judicial power on agencies outside the judiciary and if arrangements within the judiciary are made to limit the scope of Articles 32 and 226 are constitutionally valid. However in its form before the judgment in Chandra Kumar, tribunals are a structure parallel to the established judiciary and hence outside the judicial set up. Unlike French Constitutional practice,
    which allows for such adual system, it is clear that our Constitution does not provide for this practice.

    In India, the constitution has clearly created a judiciary which would be independent and which is immune to the pressures and pulls from the legislature and the executive. However tribunal system in India does not provide for such independence. They are clearly extra judicial authorities, which can be influenced immensely by the executive and hence cannot carry out their functions independently. This can be visualised as the infringement on the way the constitution envisaged the courts to act as a check on the other two branches.

    In India, there is no express provision, which provides for judicial review. However judicial review has found a place in the basic structure doctrine.. It was firmly declared in Kesavanda Bharati v. State of Kerala[32] that the constitution contained some basic values or features, which form, constitute the basic constitutional framework. These basic features are unalterable. Though the constitution itself does not provide a list of these basic features, the essence of such a list can be culled out from the preamble itself. Later,in Minerva Mills v. Union of India[33],it was expressly declared by the Supreme Court that judicial review was part of basic structure. In this case it was laid down that it is necessary for each branch of government to confine itself to the constitutionally sanctioned limits. To decide whether there is any such transgression, the Constitution has to be interpreted and considering the expertise of the Judges, the Judiciary is the right body to do so. The power of judicial review is said to emanate from Arts. 32 and 226.

    However, we are of the view, that this may not be the best way of solving the problem. We do not think that our Constitutional scheme requires that all adjudicating bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot in any manner, be of assistance to them”. Therefore, in view of the law laid down by the Supreme Court in ‘Chandra Kumar’s case’(emphasis furnished supra) this Tribunal is now functioning as a ‘Court of first instance’ like any other Tribunal in the country established under Article 323-A of the Constitution of India. It is also to be noted that the ‘Judicial Review’ propounded by the Supreme court in ‘Chandra Kumar’s case cannot be treated/equated with an ‘Appeal’ in as much as the constitutional exercise by way of ‘Judicial Review’ displayed by the High Courts originated from the ‘Basic Structure Theory’ read with Articles 226 and 227 of the Constitution of India.


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