Last night, Anushree Rauta of the IPRMENTLAW blog, made public an order of the Appointment Committee of the Cabinet (ACC) clearing the decks for the appointment of five technical members to the Intellectual Property Appellate Board (IPAB). The order is dated July 21, 2020. Of the five members, Joint Controller B.P. Singh has been appointed as Technical Member for Patents; Advocates Lakshmidevi Somanath and Vijaykumar have been selected for the posts of Technical Members for Trademarks and Advocates N. Surya Senthil and S. P. Chockalingam have been appointed as Technical Members for Copyright. After the clearance of the ACC, the selected members have to go through the process of medical tests and police verification before a warrant of appointment can be issued by the President.
I suspect these appointments may not be legal because they appear to have been made under the old tribunal rules rather than the new rules notified in January, 2020. I cannot confirm this but I will try to get more information in this regard. In the meantime, let me provide some background about the litigation regarding the tribunal rules. In 2017, with the enactment of the Finance Act, 2017 the government amended the Trade Marks Act, Patents Act and Copyright Act to fundamentally restructure the IPAB along with a whole other bunch of tribunals. The new framework for appointments to the IPAB was laid down in the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. Last year, in November, a constitutional bench of the Supreme Court struck down the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 as unconstitutional in the Roger Mathew case. Within a few months in January, 2020 the Ministry of Finance notified the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020. The qualification criteria and the composition of the selection committee in the 2020 rules are different from the 2017 rules.
The question now is whether the appointments in the DoPT order were made under the 2017 Rules or the 2020 Rules. If these appointments were made under the old rules, they will be struck down in a court of law. I suspect (but cannot confirm) that these appointments have been made under the 2017 rules because the only advertisement for technical members for the IPAB on the DIPP’s website is dated July 25, 2018. Further the first line of the DoPT’s order (image above) refers to the DIPP’s office memo dated November 25, 2019 i.e. prior to the notification of the 2020 Rules in January of this year. If my guess is correct, the 5 technical members have been appointed under the older 2017 rules which have been struck down as unconstitutional. If these appointments were made under the 2020 Rules, a new advertisement for the posts should have been published on the DIPP’s jobs website post January, 2020 to start a new recruitment cycle – which it is not. It is therefore very likely that these appointments are illegal under the law.