As recently reported by Bar & Bench, the Madras Bar Association has filed a petition before the Madras High Court challenging the constitutionality of Sections 156 to 189 of the Finance Act, 2017 as also the Tribunal, Appellate and other Authorities (Qualifications, Experience and other conditions of Service of Members) Rules, 2017 that I had written about over here. A bench of the Madras High Court headed by Chief Justice Indira Banerjee has issued notice to the government asking it to reply to the petition by the MBA.
As per the Bar & Bench report, the MBA’s petition raises a range of very interesting issues, most of which we have already discussed on SpicyIP. The challenge against the provisions of the Finance Act, 2017 is based on its classification as a money bill, especially when the parent legislations being amended by the Finance Act, were passed as ordinary bills and not money bills. This is going to be an interesting question of law which when decided will have an impact on other legislation that this government has introduced as money bills in Parliament.
The challenge against the rules notified under Section 184 of the Finance Act is grounded in the separation of powers doctrine which requires the judiciary to be independent of the central government. However as I explained in an earlier post, these rules give the government suffocating control over both appointment and removal of judges from 19 tribunals, including the Intellectual Property Appellate Board (IPAB). Given the past precedents of the Supreme Court on this issue there is little doubt that these rules are going to be struck down as unconstitutional by the Madras High Court.
On a separate note, it is indeed inspiring to see the Madras Bar Association and Senior Advocate Arvind Datar, in particular, to once again fight the government on this issue of tribunalisation of justice. The MBA has previously challenged the constitutionality of the National Company Law Tribunal (NCLT) and the National Tax Tribunal (NTT). Both cases were argued by Mr. Datar. While the first case was a partial victory for the MBA before the Supreme Court, the second case was a more comprehensive victory. Mr. Datar also argued, pro-bono in the case of Shamnad Basheer v. Union of India where the Madras High Court struck down certain provisions of the Trade Marks Act and also read down other provisions to ensure the independence of the Intellectual Property Appellate Board (IPAB).
Unfortunately, the IP Bar in India lacks an Arvind Datar. For the most part, Indian IP lawyers like to complain and whine about the state of affairs while doing nothing to challenge the status quo. The only exception is perhaps the couple of instances in which APPA under Mrs. Pratibha Singh (now a Justice of the Delhi High Court), sued the government over non-appointments to the IPAB. Apart from those instances, I have not seen too many instances where Indian IP lawyers look beyond their wallets to contribute in preserving constitutional values.
Also in the Nitto Denko matter represented by Anand & Anand, the Del HC directed the Indian patent office to file an affidavit thereby indicating the state of affairs in the patents office regarding issuance of FER and also to disclose the year wise pendency of patent matters. Also the Del HC had also asked for the appointment of a 3 member committee to look into whether or not all FER backlogs could be cleared within 3 year.