And at long last, the wait is over! News just trickled in this morning from Chennai that we won our first round against a constitutionally infirm Intellectual Property Appellate Board (IPAB), India’s specialised IP tribunal.
Readers may recall that in early 2011, I’d filed a writ petition before the Madras High Court challenging the constitutionality of the IPAB. Although this was filed in my name, a large part of the work was done by the prolific Prashant Reddy and an outstanding student team (they are all qualified lawyers now) comprising Sai Vinod, Shambo Nandy and Debanshu Khettry. The matter was then strategised and argued pro-bono by a terrific team comprising one of India’s leading senior counsels, Arvind Datar (who also happens to be a wonderful writer and scholar), Vineet Subramani (one of the sharpest and most meticulous lawyers I’ve interacted with) and Ananth Padmanabhan (also an ace lawyer and insightful scholar now doing his PhD at UPenn). Thanks to their legal acumen and patience, we now have a potent order from the Madras High Court.
In a hard hitting ruling, key portions of which were read out in court this morning, a bench headed by Justice Sanjay Kishen Kaul declared critical provisions of the Trademarks Act providing for the establishment of the IPAB (Intellectual Property Appellate Board) as unconstitutional. In particular, the court held that the section providing for Indian government officers (ILS officers) to be elected as judicial members to the tribunal was invalid in law. They also held that any committee constituted to select members to this august tribunal should compulsorily be predominated by judges or those with requisite judicial qualifications. Till date, all such committees have been eminently stacked with government folks and bureaucrats (for the most part). Readers may recall that in one such stacking incident, Justice Prabha Sridevan flatly refused to play second fiddle to bureaucrats with next to no judicial competence on the selection panel. Sadly the Delhi High Court lost out on a wonderful opportunity then to set the panel constitution right. Thankfully the Madras High Court more than makes up for this lapse!
Lastly, the Madras High Court also held that a technical member cannot become a Vice Chairman or a Chairman, absent the requisite judicial qualifications. We are yet to read the full text of the order which will hopefully be uploaded later tonight on the Madras High Court website.
Stay tuned for more. And in the meantime, let’s hope that the days of the government controlling tribunals and stacking them with less than competent folks are numbered! No doubt the government will appeal, but one hopes that with the present SC bench (and the recent NTT judgment), the Supremes will weigh in more on the side of the constitution and its guarantee of judicial independence than that of the government. One may remember that a cosy government committee notoriously selected Syed Obaidur Rahaman as a technical member, despite his claim (in his CV/application) to have allegedly represented clients in trademark cases dating back to the late 1800’s: a classic case of reincarnation if ever there was one!