Others Patent Trademark

The Taming of the Tribunal


taming-of-the-shrew

In a recent op-ed in the Financial Express, I reflect on the recent Supreme Court invalidation of the National Tax Tribunal (NTT). While some see this as payback by the judiciary against the government for unleashing the JAC bills on them, I argue that its a well reasoned decision and could not have gone any other way. I also posit that under the logic of this Supreme Court decision, a number of other tribunals will be axed as well, such as the IPAB, Green tribunal,  etc. For these are all tribunals which took over erstwhile judicial functions and the rigour of the NTT ruling applies most forcefully to them.

An Illegal IPAB?

In particular, I highlight the various infrastructure and competence issues with the IPAB, a tribunal against which I mounted an invalidity attack more than four years ago! Despite our best efforts, it continues to languish in the Madras High Court, a court beset with chief justices that look for the shortest exit route after taking charge. Our latest set of applications challenging the process for the appointment of Vice Chairman is documented in this blog post here.

For those interested (particularly those without the patience to click through on any of the links), I’m excerpting relevant portions from the Financial Express editorial.

 “The Supreme Court effectively ruled that in order to remain constitutionally valid, a tribunal tasked with adjudicating core questions of law ought to be on par with a high court in terms of independence (from the executive) and professional competence, i.e. staffed with members that have the requisite judicial qualifications to adjudicate. Under the rigour of this ruling, a number of tribunals are likely to be guillotined. And not without good reason, since the government has effectively trivialised justice through its flippant flowering of tribunals.

 Consider the Intellectual Property Appellate Board (IPAB). Till date, it has not had adequate space or infrastructure. During the first few years, it was forced to beg the Indian patent office for a hearing room, an agency whose very decisions it was supposed to sit in appeal over! More egregiously, the quality of members appointed to adjudicate this complex legal terrain left much to be desired—particularly stark is the case of an alleged specialist who stated in his CV that he appeared in trademark cases as far back as 1910. Clearly, a case of reincarnation if ever there was one.”

Going Forward: Policy Options?

I then conclude with outlining two broad policy options for the way forward, as excerpted below:

“How do we fix this mess? Under the logic of the NTT ruling, there are two broad policy options.
One is to redress all issues with the current set of tribunals through an umbrella legislation, free them from government influence and elevate them to a position as close as possible to the high courts. But this is a tall order. And indeed, one may ask: If a tribunal has to be on par with a high court, what is the point of having a separate tribunal at all? And this brings us to the second option: To have a specialist bench at the various high courts, staffed with those that have some prior background or expertise in the concerned subject matter (such as intellectual property or environment or tax law). Indeed, in a strange twist, the current Attorney General who batted vociferously for the NTT had, only a year or so ago, vehemently decried tribunalisation, and advocated rather forcefully that the tribunals ought to shut shop and their functions vested back in the high courts.

This second option guarantees some level of specialist expertise, but within the overall supervision and framework of the high court. As such, it appears a more workable solution than instituting a separate set of tribunals, housed independent of the high courts. It bears noting that now a Bill is pending before Parliament to regulate tribunals; unfortunately, its focus is rather limited, as it seeks to merely regulate service conditions and does nothing to redress the various constitutional flaws plaguing the current set of tribunals.”

 The Inside Story Behind the Decision

While the NTT decision is a legally sound one, following as it does, a long line of case law, it represents one of the strongest condemnation of the judiciary of the usurpation of judicial power by the executive. The reasons for this strong condemnation may have to do with an affidavit filed by the government in a related case filed by the Madras Bar Association, represented by the inimitable Arvind Datar who’s been waging a war against the flippant flowering of tribunals for more than two decades now!
I’m given to believe that, in this petition before the Supreme Court asking that the decision in L Chandra Kumar be implemented and all tribunals be brought under an independent regulatory agency, the government filed an affidavit stating that this was difficult, since the respective government departments did not wish to give up control over their tribunals. Speak about digging your own grave!
Helpful Links
For those interested, here are some helpful links:

i) I’ve highlighted some of the problems with the NTT decision in another blog that I contribute to:  Law and Other Things.

ii) Pallavi Saluja of Bar and Bench interviewed Arvind Datar in the aftermath of the NTT ruling here.

iii) Justice Prabha Sridevan (ex Chairman of the IPAB) wrote a potent piece on the dismal state of affairs at the IPAB in an editorial for the Hindu late last year. I would strongly recommend a reading.

iv) Gautam Bhatia has a very helpful summary of the NTT ruling here, where he takes issue with the decision for relying on “constitutional conventions” and for holding that even normal legislation (as opposed to constitutional amendments) can be reviewed for compliance with the basic structure doctrine.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

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