The Appointments Committee of the Cabinet (ACC) issued an order on Monday, with the Supreme Court pointing a gun at its head, appointing Justice Manmohan Singh to the Intellectual Property Appellate Board (IPAB) until September 21, 2020 despite Justice Manmohan Singh having hit the statutory retirement age on September 21, 2019.
The ‘gun’ in question was a highly irregular order passed by the Supreme Court on December 20, 2019 in a petition filed by AIPPI (Association Internationale pour la Protection de la Propriété Intellectuelle which in English translates into the International Association for the Protection of Intellectual Property) asking for the appointment of Justice Manmohan Singh to the IPAB until the government finalized new appointments to the IPAB. This is not the first time lawyers from Delhi, have tried to get an extension or reappointment of Justice Manmohan Singh to the IPAB. In July, last year, we had blogged about another case, where the Delhi High Court was being asked to consider giving Justice Manmohan Singh an extension beyond his retirement date until his replacement was appointed. The Delhi High Court did not pass any such order.
I fail to understand this enthusiasm for Justice Manmohan Singh because several of his landmark orders have been overturned. From a strictly academic standpoint, his orders lack the intellectual rigour that we see from other judges at High Courts. But returning to the facts of this case, there was absolutely no legal precedent to the remedy sought by the AIPPI before the Supreme Court. Statutory retirement ages cannot be bypassed by a court of law. These days however, the Supreme Court is no longer constrained by the law or by the need to provide reasons. Its order giving Justice Manmohan Singh an extension is bereft of any legal reasoning – it only reasons that the IPAB cannot be headless and hence an extension would be provided. When the government did not issue the appointment order for two months, Justice Pratibha Singh of the Delhi High Court pulled up the government, after which the appointment order was issued by the ACC on March 2.
The ethical quandary now for the AIPPI is whether its members, which consists of a significant number of IP lawyers in Delhi, can appear before Justice Manmohan Singh, given that he owes his next six months on the bench to the efforts of the AIPPI. Just to be clear, in the past, IP associations like APPA have sued the government for the lack of judges on the IPAB but they never asked for the appointment of a specific judge, they always prayed for the appointments to be made without naming any names. This petition by the AIPPI is the first time where lawyers specified their preference for a specific judge. The test for recusals is not necessarily examples of actual bias by a judge towards a lawyer but also the perception of likely bias. This is because justice must be seen to be done. I think that standard would be met in this case where an association of lawyers specifically asked for the appointment of a judge and the judge is appointed as a result of their efforts. I trust the ethical compass of the AIPPI will kick in before any redlines are crossed.
But nevertheless I would like to hear the views of our readers on this issue. And it goes without saying that AIPPI has an open invitation to respond to this post on SpicyIP.
Don’t think it’s such a big issue. It’s simply for continuation of the Judge last holding office of Chairman until the appointment of the new Chairman. so it’s not preference for any particular judge. Appointing a new judge is not within the jurisdiction of the court on judicial side and certainly not minus the executive. Thus the only option is for asking of continuation of the last incumbent until a new Chairman is appointed.
… thus it is an interim arrangement until the Govt acts. In fact I believe that the issue of lethargy in appointment was also raised.
Bravo Congratulations and many thanks for bringing this article, as no advocates practising in Delhi have guts to raise the issue of his appointment, if you read the petition in minute detail of AIPPI, the petitioner representing AIPPI has concealed and suppressing of material facts from Hon’ble Chief Justice bench on 18th of December 2019 and by stating wrong facts and further concealed material facts before the apex court:
1. Mr. Justice (Retd.) Manmohan Singh was appointed as Chairperson IPAB on ADDITIONAL CHARGE, which was never mentioned in the said writ petition.
2. The writ petition concealed the material fact regarding Mr. Justice Manmohan Singh assumed charge of the office of Chairman of the PMLA Tribunal in the forenoon on 22nd September, 2016 and he had tenure up to 21st September 2019 and he has completed his tenure on 21,09,2019.
3. The Para No 5 to para 19 of the petition, it clearly proves that the petitioner representing the petition had concealed material facts from the apex court and has obtained favourable order from the apex court
4. The present Writ Petition is based on appointment letter dated 20th July, 2017 for the post of Chairperson of Intellectual Property Appellate Board (IPAB) for the period of three years with effect from the date of assumption of charge to the post which was never implemented.
5. The original appointment letter dated 20th July, 2017, was issued and the same was never implemented. But as per order of the 21st December 2017 the Mr. Justice (Retd.) Manmohan Singh was appointed Chairperson IPAB on ADDITIONAL CHARGE not as full time chairman as that he was holding PMLA chairmanship this fact was concealed in the petition.
6. As Justice (Retd.) Manmohan Singh was already on service as Chairman of PMLA and vide his letter dated 20.07.2017 he had given his conditional consent to accept the post of Chairman IPAB as an “ADDITIONAL CHARGE” which shall be in addition to his current assignment as Chairman of Appellate Tribunal established under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act 1976. This fact was concealed by the petitioner in his petition.
7. The petitioner has concealed that facts connected to the matter of (Kudrat Singh Sandhu Vs UOI) dated 9.02.2018 and 20.03 2018 in WP. No. 279 of 2017 the Hon’ble Supreme Court of India in its interim orders passed on 09.02.2018, 22.07.2018 and 20.03.2018 by Hon’ble Supreme Court In W.P (C) 279/2017 stayed the Section 184 of the Finance Act, 2017 as his appointment to IPAB as chairman under 2017 never implemented as per above interim stay order issued by the Apex court.
8. The vacancy of patent member exists since the year February 2016 but that time no advocate raised hue n cry and did not file the petition in any of the courts high Court or Supreme court seeking relief of the appointment of the patent member but this all started by some selective advocates close to the particular person / functionary have started moving applications, writs before high Courts under on behalf of parties to obtain order in favour of the particular person functionary of the tribunal. surprisingly this petition does not mention any details of the order s obtained before single judge in favour of the particular functionary.
9. As petitioner representing AIPPI (India Group) has concealed the material facts with reference to W.P.(C) 11346/2019, as the petitioner representing AIPPI appeared
behalf of the Novarties Pharma claiming the due to non operation of the IPAB tribunal approached High court of Delhi to for relief for the petitioner. The list of the orders in the W.P.(C) 11346/2019 and this fact was never mentioned in the petition nor brought to the notice of the hon’ble bench of the apex court for earlier claiming similar relief from the high Court.
10. Though for concealing material facts y the advocates or petitioner the Hon’ble Apex Court benches has been passing the orders from time to time and has settled the legal doctrine on many occasions that including in the case of Shashikant Ganpat Jogal Rabin Majumder v. The State of Maharashtra & Ors, the Supreme Court Bench expressed disconcert on Advocate’s act of suppressing material fact in the case while obtaining an order from the Court. The Apex Court in the case has warned that such unbecoming conduct of an advocate who appears before this Court, will be sternly dealt.
As you have rightly said and I fully agree with your view that of ethical quandary now for the AIPPI is whether its members, which consists of a significant number of IP lawyers in Delhi, can appear before Justice Manmohan Singh, given that he owes his next six months on the bench to the efforts of the AIPPI. So how can petitioner representing or his associates can appear before the IPAB tribunal.
I agree with the detailed and dexterous reply and the interesting questions raised by Mr. Vidyut Aggarwal
Has the tenure of Justice Manmohan Singh been extended post December 31st 2020?