In continuation of Shamnad’s earlier petition challenging the constitutional validity of the Intellectual Property Appellate Board (IPAB), he has now filed a miscellaneous petition seeking a stay on the appointment of a Vice- Chairperson (VC) to the Board. The principal ground for this petition is that the composition of the selection committee for the appointment of the VC does not adhere to the standards laid down by the Supreme Court in Union of India v. R. Gandhi [(2010) 11 SCC 1].
As reported here, Shamnad filed a writ petition (W.P. No. 1256 of 2011) challenging the constitutional validity of the IPAB in early 2011. Initially set up under the Trademarks Act, 1999, the IPAB’s powers include the exclusive jurisdiction to hear appeals against any decision/order by the Registrar of Trademarks or the Controller General of Patents, Designs and Trademarks under the Patents Act 1970, the Trademarks Act 1999 and the Geographical Indications of Goods (Registration and Protection) Act 1999. The petition raises several issues with the IPAB, the most egregious being that it is under the executive control of the Department of Industrial Policy and Promotion (DIPP) of the Ministry of Industry and Commerce. In particular, the appointment, salaries and pensions of IPAB members are determined by the DIPP. Thus, the petition argues, the IPAB explicitly violates the separation of powers doctrine, which requires the separation of the Judiciary from the Executive as well as stipulates the fundamental right of citizens under Articles 14 and 21 of the Constitution to have their disputes adjudicated by persons who possess the requisite judicial independence and qualifications to discharge judicial functions. In fact, the Supreme Court in Union of India v. R. Gandhi has categorically stated that tribunals which replace the jurisdiction of High Courts should have the same degree of independence in all matters, including the appointment process of Chairperson and other members of the tribunal. For more detailed arguments on the unconstitutionality of the IPAB see here.
The petition was admitted on 27 January, 2011 by a Division Bench of the Madras High Court comprising of Chief Justice M.Y. Eqbal and Justice T. S. Sivagnanam. Despite a telling report by Justice Sridevan describing Central Government apathy towards the IPAB and other institutional failures, the petition has seen very little progress.
Appointment to the Selection Committee
On the point of the Selection Committee dealing with appointments to a tribunal, the Supreme Court in Union of India v. R. Gandhi suggested that the Committee should be dominated by persons with the highest judicial experience and legal training, and should have bureaucrats represented in the minority. The Court further recommended that the composition should comprise of:
(a) the Chief Justice of India or designate, as the Chairperson with a casting vote;
(b) a Senior Judge of the Supreme Court or High Court;
(c) a Secretary of the relevant Ministry; and
(d) a Secretary of Ministry of Law & Justice.
Recently, the Central Government constituted a search-cum-selection committee to appoint the Vice-Chairman of the IPAB which fell vacant on June 21, 2014. A response to an RTI request has revealed the composition of the committee dehors the law laid down by the Supreme Court. The composition is as follows:
(a) Chairman: Amitabh Kant, Secretary of Department of Industrial Policy & Promotion
- Justice K. N. Basha, retired Judge and Chairman of IPAB
- P. K. Malhotra, Secretary of Department of Legal Affairs
- Dr. P. S. Ahuja, Director-General of Council for Scientific & Industrial Research
The only person on the Selection Committee with the necessary judicial experience and legal training is Mr. Justice K. N. Basha (retired Judge, Madras High Court) and even so, he has been made subordinate to a bureaucrat. Further, the Selection Committee is comprised of a majority of bureaucrats who have no legal training and have prima facie no knowledge of the highly specialised work of the Vice Chairman. This renders the composition in stark violation of the law laid down by the Supreme Court.
The petition was heard on 6 August, 2014 where the court ordered that the respondents (the State) file their counter by next week (14th August). The court specifically inquired as to whether or not the government is willing to appoint a High Court Judge as committee chairman and directed them to file their reply on this issue by next week.
During the hearing, the Chief Justice told the ASG, Mr.G. Rajagopalan, appearing on behalf of Government of India, not to precipitate matters and the ASG agreed that the committee would not take any action in the interim.
Mr. Arvind Datar, Sr. Counsel and Mr. Vineet Subramani appeared pro bono on behalf of Prof. Shamnad Basheer.