As reported earlier this month, a miscellaneous petition seeking a stay on the appointment of a Vice- Chairperson (VC) to the Intellectual Property Appellate Board (IPAB) was filed in pursuance of Shamnad’s challenge to the constitutional validity of the Board. The matter came up today and Justice Sanjay Kishen Kaul (Chief Justice of the Madras High Court) was of the view that Justice Basha (current chairman of the IPAB) and not the Secretary, DIPP ought to be the Chairman of the selection committee tasked with selecting the Vice Chairman to the Board. For an update on the earlier hearing see CH Unni’s piece in the Mint here. It also bears noting that IPASI (IP Association of South India) which filed a separate writ asking that infrastructure of the IPAB be ramped up asked that both the writs be clubbed and the court appears to have permitted this.
In this post I will detail out new information pertaining to the arguments attacking the legality of the selection committee. Prashant has already covered the important arguments and relevant background information in this earlier post. In Part II, I will explore the larger question of judicial independence in the context of tribunalization and also deal separately with the IPASI writ.
Warning: Lost post ahead.
On 27 January, 2011, a Public Interest Litigations (PIL) petition challenging the constitutionality of the IPAB constituted under the the Trade Marks Act, 1999 (& also the Patents Act, 1970) was admitted by a Division Bench of the Madras High Court comprising of Chief Justice M.Y. Eqbal and Justice T. S. Sivagnanam. The petition challenging the IPAB (W.P. No. 1256 of 2011) was filed by Prof. Shamnad Basheer (then the Ministry of HRD Chair Professor for IPR laws at NUJS). Three and a half years into the case, the petition has seen very little progress. In mid 2011, Justice Prabha Sridevan, at that time the Chairperson of the IPAB, was commissioned to prepare a report on the infrastructure and resources available to the IPAB. This report notes a shockingly negligent attitude towards the IPAB. Some of the more egregious findings are: lack of infrastructure in terms of office space and library resources, absence of recruitment rules, discriminatory pay to non-judicial members of the IPAB (lower pay scales in comparison to other tribunals), non implementation of 6th Pay Commission recommendations for the Chairperson and Vice-Chairperson. However, there is been very little movement in the case since then.
At the same time, we received news regarding the appointment of a ‘Search-cum-Selection Committee’ for the post of ‘Vice-Chairman and .. technical member’ which fell vacant on June 21, 2014. RTI enquiries revealed that this was by an Office Memorandum dated ‘May 2014’ . The membership is as follows:
(a) The Chairman of the Selection Committee is Amitabh Kant, Secretary, Department of Industrial Policy & Promotion (DIPP).
(b) Shockingly, Mr. Justice K. N. Basha (retired Judge, Madras High Court) who is the current Chairman of IPAB is designated only as Member of the Selection Committee.
(c) The other 2 members of the Selection Committee are P. K. Malhotra, Secretary, Department of Legal Affairs; and Dr. P. S. Ahuja, Director General, Council for Scientific and Industrial Research.
1. Appointment of Justice K. N. Basha in a subordinate position
It is evident at first glance that the committee is dominated by bureaucrats with the only judicial member holding the subordinate position of ‘member’ and not ‘chairperson.’ Supporting documents to the aforementioned office memorandum reveal that this was objected to as early as 31.12.2013 by former IPAB Chairperson Justice Prabha Sridevan (retired judge, Madras High Court) when discussion on the Selection Committee commenced. This objection was, however, dismissed in a cavalier fashion with the observation that the composition could continue unless faced with ‘legal compulsion, i.e., outcome of a court decision.’ It was also claimed that according to the ‘DOPT Office Memorandum dated 30th July 2007 Ministries / Departments have the discretion to choose the Chairman of the Committee.’ This question was then put to the consideration of the Department of Personal Training (Estt. (RR) Division) who approved this position on 26.02.2014. Thereafter on 05.03.2014 it appears to have been determined that:
“There is no court decision or court case pending on the composition of the Search-cum-Selection Committee for selection of the Technical Members and Vice Chairman in IPAB.”
Thus, the composition of the Selection-cum-Search Committee was deemed to be proper and on 01.05.2014, the Department of Personnel & Training (Estt. (RR) Division) appears to have approved the formation of the Committee.
At the same time, it was also noted that the Delhi High Court in Union of India v. Sanjeev Kumar Chaswal [LPA No.86/2013] by order dated 08.04.2013 had directed the Union of India to “keep the said report in mind while constituting a Selection Committee in future,” the said report being the observations by Justice Prabha Sridevan regarding the impropriety of appointing a judge to a position subordinate to a bureaucrat – especially on the committee for appointments to a position equivalent to that of a High Court judge. This case pertained to the appointment of Mr. Chaswal as technical member (trademark) by a similar Search-cum-Selection Committee wherein Justice Sridevan, at that time the Chairperson of the IPAB, held the subordinate position of ‘member.’ For more details on the Chaswal controversy, see here. The court in that instance did not interfere with the composition of the committee as it had already made its recommendations prior to the matter being taken up, but made clear directions for the purpose of future committees. Justice Sanjay Kishen Kaul stongly reminded the government counsel (ASG Rajagopalan) of this statement of the Delhi High Court and asked that this be followed by the government.
It also bears noting that the Madras High Court in Ammini Karnan v. IPAB applied the principles laid down in Union of India v. R Gandhi (NCLT case) and observed irregularities with appointments to the IPAB, in particular, that the definitions of judicial member, technical member and Vice-Chairman under Section 2(k) of the Trade Marks Act, 1999 would be unconstitutional. However, it noted that the matter was subjudice and hence refrained from declaring on the matter as it “is left open to be decided” in the present case.
The argument that there is no court decision requiring the reconstitution of the committee is clearly fallacious in light of the department’s own observations on the Delhi High Court’s order in the Chaswal case and the Madras High Court’s observations in Ammini Karan. This is a clear illegality in appointment as per the DIPPs own terms. However, above and beyond the DIPPs own characterization of the law, the NCLT decision clearly held that the Selection Committee for the selection and appointment of Members of a tribunal must be headed by the Chief Justice or designate, with a casting vote, along with another Judge as a Member, hence making it abundantly clear that the Selection Committee should be dominated by persons of highest judicial experience and legal training, and not bureaucrats! For this is the only way in which a tribunal could be cloaked with the requisite judicial character that it deserves.
2. ‘Approval’ of the CJI?
The 1st Respondent in its counter affidavit states that the “recommendations of Chief Justice of India are submitted for approval by the Appointments Committee of Cabinet and the Chairman is appointed.” Interestingly, this format of CJI recommending and the government merely approving or not is not really a “consultation” as mandated by the Trademarks Act, which requires that: “no appointment … shall be made except after consultation with the Chief Justice of India.”
But even here, it bears noting that a mere statutory mandate to consult with the CJI does not mean that the procedure for selection is compliant with NCLT norms. Rather, under the NCLT case, a selection panel must be constituted for this appointment, with the judiciary in the majority on the selection panel. And the same principle is to apply for appointment to the post of Vice Chairman as well.
3. Lack of advertisement and other improprieties
Appointments to positions on the Committee were neither advertised in any manner nor were any applications sought, other than for two letters dated 25.02.2014 addressed by Joint Secretary, DIPP to (a) Secretary Department of Legal Affairs, and (b) present Chairman IPAB, Mr. Justice K. N. Basha (retired Judge, Madras High Court).
In its counter affidavit, the DIPP defends its discretion to appoint members to the committee based on an Office Memorandum (OM) dated 30.07.2007 issued by the Department of Personal Training (Estt. (RR) Division). First, an OM cannot supersede a judgement of the Supreme Court, and cannot form the basis for the constitutionality of the impugned appointment process. However, even this OM also states that
“(i) Immediately after a post is created, Recruitment Rules for the same should be framed if the post is likely to continue for one year or more. Procedure of Search Committee cannot be a substitute for the normal recruitment process.
(ii) Only in situations where advertisement may not result in adequate response that a Search Committee should be appointed. Search Committee cannot be a substitute for advertisement of posts.
(iii) Members of the Search Committee should be at least one level above the post to which recruitment is being made.
(iv) Recruitment Rules for the post shall be formulated and shall be made widely known before the search.
(v) The vacancy shall be widely advertised including on the Ministry / Department website, and a minimum of 4 weeks shall be provided for candidates to respond.”
Thus, the requirement for the post to be advertised is clearly set out which was not done. The post is not temporary in nature and the requirement of recruitment rules will also apply.
On the point of seeking applications through the Department of Legal Affairs and the IPAB Chairman, there appears to be another egregious observation. The letter addressed to Secretary, Department of Legal Affairs, requests ‘a panel of names … for being considered for appointment to the post of Vice Chairman’ whereas the letter addressed to the IPAB Chairman only requests the ‘the names of eligible and willing members of the IPAB for consideration for the post of Vice-Chairman.’ Thus not only is the Justice subordinate on the committee, his contribution seems to be clearly set out as a resume collector. The ‘search’ part of his job seems to have been completely erased and the ‘selection’ part rendered nearly useless due to his clear subordination and outnumbering on the committee.
Intellectual Property Rights Bar Association Affidavit
The IPR Bar Association (an association separate and distinct from IPASI) also filed an affidavit in the case recording its agreement with the petitioner noting, in particular, that the work of an IPAB judge ‘touches the life of a common man’ and hence has huge ramifications.
The IPAB, as a body that substitutes the jurisdiction of the High Court, has very important judicial functions with very wide ramifications. As an appellate body, it has to deal with matters of public interest as well as complex questions of interpretation of law. It cannot be stacked up with “technical experts” of the governments’ choosing. Rather it must have legally trained decision makers of the highest calibre. At the end of the day, it is at the altar of the legal method that we attach legitimacy to our adjudicatory institutions – in its claims of impartiality and objective legal reasoning. The Madras High Court’s remarks that a judge cannot be subordinated to a beauracrat on the selection committee is therefore an important development after a long dry spell.
I would like to specially thank Shamnad Sir for guiding me and assisting me on this piece.