From here.
After more than a year of speculation, retired Delhi High Court judge, Justice Manmohan Singh has been appointed as the Chairperson of the IPAB, presumably under the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. These rules which have been notified under the Finance Act, 2017 are under constitutional challenge before the Supreme Court for impinging on the independence of the judiciary. Even more strangely, the notification mentions that Justice Manmohan Singh is holding the Chairperson post as an “additional charge”. It appears that he continues to hold on to the post of the Chairperson of the Appellate Tribunal for Forfeited Property.
I am not sure whether this arrangement is legal or whether the Chief Justice of India was informed about this arrangement when he was consulted on Justice Manmohan Singh’s appointment as the Chairperson. I fail to understand why the CJI would have agreed to an arrangement that defeats the entire purpose of having specialized tribunals. After being headless for as long as it has been, the IPAB has a significant backlog. How exactly is Justice Manmohan Singh going to juggle his workload on both tribunals?
It is no secret that I am not exactly a fan of Justice Manmohan Singh. I say this not because of his perceived bias towards IP owners (as is often pointed out in the comments sections of this blog) but because I think there have been serious legal infirmities in several of his IP judgments – many of which have been set aside on appeal. I am sure there are others who share this assessment because they have told me so in private conversations but will not state it publicly. The one advantage though of Justice Singh’s appointment is his relatively high disposal rate – as a judge of the High Court he did hear and dispose cases unlike some of his predecessors on the IPAB.
Another problem that we will likely see in the coming months, are requests for Justice Manmohan Singh to recuse himself from all those connected cases where he was the presiding judge in the Delhi High Court. For example, in the case of the Ericsson patents that have been challenged before the IPAB, there are corresponding patent infringement lawsuits before the Delhi High Court where Justice Manmohan Singh delivered judgments. Litigants are going to be in a tricky position because if he rejects a request for recusal, they will have to approach the High Court requesting for an order forcing him to recuse himself and even presuming that the High Court forces such a recusal (there are precedents on this issue), there is nobody else in the IPAB to hear the case because the only other member is Chaswal who is technical member for trademarks and the required quorum is two members on the bench.
It is also likely that the IPAB will shift its main seat of operations to Delhi since Justice Manmohan Singh also has to hear appeals before the other tribunals and also because he is a resident of Delhi. In the galaxy of tribunals created over the last couple of decades most are headquartered in Delhi. The only reason IPAB was headquartered in Chennai was because the Minister of Commerce at the time was Murosali Maran was from Tamil Nadu. The lawyers are Chennai are usually quite territorial but they seem to have lost their sting over the last few years. Associations of IP lawyers in Chennai are unlikely to protest the shifting of IPAB to New Delhi as long as the premises in Delhi has a toilet – the lack of which was one of their pressing concern at the time we had raised issues of grave constitutional importance before the Madras High Court.
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8 comments.
Sorry to say, but Mr Prashant always writes articles in a very rude manner and shows no respect to Hon’ble senior judges. It is completely against our culture and values.
Critiquing a judge for the various infirmities in his judgment(s) is no sign of disrespect dear sir. On the contrary, it stems from the highest regard for constitutional processes and holding all organs of the state accountable, more so the judiciary which is supposed to a sentinel of sorts for the common man.
Is our culture / values equal to keeping mouth shut on patently wrong / questionable decisions?
Is our culture to let a person hold two offices when the mantra is one person- one office?
You and I are both commenting here behind veils of anonymity … Prashant has the courage to put his critique with cogent reasoning … he does not make random statements.
So, unless you can find fault in his critique, do NOT bring the culture flag here … we have enough jingoism going around.
Freq. Anon.
All Tribunals being concentrated in Delhi has a serious impact on access to justice. That much is obvious. What many people (including judges we have argued before) don’t seem to know is that it is also contrary to the judgment of the Constitution Bench of the Supreme Court in Chandrakumar, which said that if a Tribunal was replacing the Court (like the IPAB), it must have a bench in at least each place where the Court it replaced used to sit.
How dare you question the placing of IP Tribunal in Delhi?
Every IP lawyer in Delhi believes he is God’s gift to mankind … don’t believe me, read the Sanjay Dalia judgement (towards the very end). The Delhi IP Bar had the audacity to vehemently argue below nonsense to the Hon’ble Supreme Court .. to the extent that the SC had to note it in Order:
’45. It was also submitted that as the bulk of litigation of such a nature is filed at Delhi and lawyers available at Delhi are having expertise in the matter, as such it would be convenient to the parties to contest the suit at Delhi. Such aspects are irrelevant for deciding the territorial jurisdiction. It is not the convenience of the lawyers or their expertise which makes out the territorial jurisdiction. Thus, the submission is unhesitatingly rejected.’
Freq. Anon.
I remember reading that paragraph, going to my office and setting up a little God corner with the IP lawyers of Delhi’s photographs and two lamps and flowers.
& to note nothing of the fact that the Judges of Delhi High Court are VERY reluctant to throw suits out on jurisdiction and issue ex-parte injunction for the asking … well Shamnad, I and you can sit and talk for hours on this!
I would also come and pay my respect to the shrine in your office.
Freq. Anon.
Criticism of a judgment passed by a judge and criticism of a judge himself are two different things. In so far as legislative intent behind Trade Mark Law in India is concerned its endeavor should be to conform with the standards of various international organizations should run concurrently. One, on the other hand, who hails the of late judgment on trans boarder reputation is expected to blur the differences referred herein above. We must be mindful of the fact that India is a developing country. Being critic is one thing but being only critic is the other. Being the other one requires revisiting the IPR jurisprudence. Broadly speaking what IPR jurisprudence is perceived by the current chairman and retired judge of Delhi High Court is what legislative intent reflects. IPR jurisprudence is entirely different from other civil jurisprudence.