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Breaking News: Madras High Court Cautions Government Against Tribunal Appointments!


In a major development today, the Madras High Court firmly ruled that all appointments to the 19 odd tribunals (under the purview of the impugned Finance Act and Rules) would be subject to the final order in the writ petition filed by the Madras Bar Association (MBA).

The bench comprised Justice Indira Banerjee (Chief Justice of the Madras High Court) and Justice Bhavani Subbarayan (for whom incidentally, this was the very first day in court: what an auspicious start!).

While this is not (strictly speaking) a “stay” against all such appointments, the government would be foolish to go ahead and make appointments, only to have them struck down by the courts. Indeed, if the mood of the court today is anything to go by, it won’t be long before this deplorable move by the government is struck down as unconstitutional!

The IP angle:

The IPAB (intellectual property appellate board) is one among the 19 odd tribunals that are caught by this rather brazen move by the government to wrest control of tribunals and compromise their independence!

A number of writers on this blog (including Prashant Reddy, Sai Vinod and me) fought to secure the independence of the IPAB through a PIL that finally resulted in a victory in 2015 (after a rather arduous 4 year battle!). The court categorically held that IPAB appointments have to be made strictly in accordance with the constitutional law tenets laid down in R. Gandhi vs Union of India. 

And this brings us to the present constitutionality challenge by the Madras Bar Association to this new attempt at thwarting the independence of the judiciary.

Constitutionality Challenge:

As Prashant Reddy noted previously (here and here), the government passed the Finance Act, 2017 and corresponding rules (Tribunal, Appellate and other Authorities (Qualifications, Experience and other conditions of Service of Members) Rules, 2017) in quick succession to wrest control of judicial tribunals.

Fortunately, this malicious move was immediately challenged as unconstitutional by the Madras Bar Association (through one of India’s leading senior counsels, Arvind Datar assisted by the wonderful Swaroop Mamudi) on various grounds including the fact that:

  1. The Finance Act, 2017 was passed rather sneakily as a “money” bill rather than a regular bill. A regime to purportedly create and administer judicial tribunals cannot, by any stretch of imagination, be labelled as a “money” bill! The reason the government did this is owing to the fact that a money bill (governed by Article 110 of the Constitution) need not procure a majority vote at the Rajya Sabha (upper house of Parliament, where the current ruling party lacks a clear majority).
  2. As per the new law, the government (Executive) has primacy over all appointments to tribunals i.e. members of the 19 odd tribunals (both judicial and technical members) would be effectively hand-picked by the government. Courts have in the past made it clear that all tribunal appointments must be made through committees in which the members of the judiciary (Supreme court and high court judges) predominate. And not the Executive! Given that tribunals are almost on par with high courts (in most cases), this would provide some modicum of independence to tribunals and guard against governmental capture.
  3. Most worryingly, the new regime gifts the government with an almost exclusive say in firing tribunal members. In short, they can simply appoint a committee of their choice to investigate any tribunal member (including those on par with high court judges) and have that member fired. Again, this is something that our courts have warned against in the past, noting that tribunals members must have some security of tenure and cannot be removed at the whim and fancy of the government. In fact, our constitutional case law makes it clear that tribunal members are to be provided with at least a 5 year tenure. The new regime ignores this completely and caps it at 3 years!

The Government Cocking A Snook?

After the Aadhar card and privacy fiasco, this must be the second largest instance where the executive has clearly cocked a snook at our courts, asking them to take a hike. Reaffirming yet again that constitutional values simply do not matter to the present government! And that they are a law unto themselves. One can only hope that our judiciary does not take this lying down.

Indeed this may well be the last nail in the coffin of trivialising justice through tribunalisation; a theme that dates back to the dark days of Indira Gandhi and has remained controversial ever since…generating reams of case law and scholarly literature, not to mention emotional outbursts! This is not to say that vesting sole control of tribunals with the judiciary (by way of that cosy cabal we call the “collegium”) is ideal; but certainly a lesser of the two evils. But on this, I’ll come back with a more comprehensive post, when time, space and emotions permit.

 

 

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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