The Hindu today published a candid editorial by Justice Prabha Sridevan lamenting the lack of independence for judicial tribunals like the IPAB. This op-ed is particularly significant because Justice Sridevan used to be the Chairperson of the Intellectual Property Appellate Board (IPAB), until her retirement recently. During her eventful tenure at the IPAB, Justice Sridevan submitted at least two damning reports to the Madras High Court on the lack of resources and the lack of judicial independence at the IPAB. We have covered her reports over here and here. This particular editorial is her first public criticism of the tribunal after her retirement and the DIPP cannot afford to ignore it.
Starting off, with a quote, from Justice Ruma Pal’s famous V.M.Tarkunde Memorial lecture, Justice Sridevan makes a reference to the ‘judicial sell-out’ by the Supreme Court in cases involving the constitutionality of specialist tribunals. (Shamnad had written about Justice Pal’s speech over here). She then follows up with details on the workings of the IPAB, the independence of the IPAB and the composition of the committees making the selection of members to the IPAB.
Explaining the wide-ranging international ramifications of the IPAB’s decisions in various areas of intellectual property, especially pharmaceutical patents, Justice Sridevan highlights the strong public interest element in the adjudication of IP cases and makes out a case for having a fiercely independent IPAB which does not succumb to pressure from the Government. Here’s a gem of line from her discussion on the recent impact of the IPAB’s decisions: “When the IPAB removed a drug patent, one side cried with despair as if Doomsday was upon us, and the other side cheered as if “Fiat Sanitas” had been pronounced. The truth is simply that the invention in question was found to be unworthy of a patent under Indian law.”
Especially noteworthy, is her criticism of the search-cum-selection committee to select the judicial and technical members of the IPAB. Describing the process as “grave infraction”, she recounts the “impropriety” involved in the selection of Mr. Chaswal. We’ve covered the Chaswal case earlier and for those of you unfamiliar with the entire case can read this report prepared by Shamnad and Sai Vinod. In brief, Justice Sridevan had refused to sit as a member of the Selection Committee under the chairmanship of the Secretary DIPP on the grounds that the Supreme Court’s order in the R. Gandhi case required her to sit as the Chairperson of the Selection Committee. The then Secretary of the DIPP ignored her objection and conducted the meeting without her presence.
As noted by Justice Sridevan in her op-ed, the PIL filed by Shamnad questioning the constitutionality of the IPAB has been pending before the Madras High Court for almost three years despite a different bench of the Madras High Court pretty much noting that the IPAB is inconsistent with the Supreme Court’s precedent in the R. Gandhi case.
Shamnad is currently represented by Vineet Subramani, a top-notch lawyer in the Madras High Court and we are confident of the Madras High Court giving us a hearing on the PIL soon enough.