Heard it through the grapevine and saw in the causelist that Retd. Justice Manmohan Singh is still holding hearings in the IPAB and passing orders. Just a couple of days ago we reported that the application for Justice Singh’s extension as the IPAB Chairperson was rejected by the Supreme Court. The Court in its judgement (pdf) expressly noted that the tenure of the incumbent Chairperson ended on 21.09.2019 and further rejected the notion that the incumbent must remain as the Chairperson by virtue of being the sole judicial member of the Board. However, despite the above decision, it is unclear as to what is the authority by which hearings are still being held by the incumbent. In this post I shall assess the key pointers from the above decision of the Supreme Court.
Background
The petitioner AIPPI filed a miscellaneous petition before the Supreme Court seeking directions that till a new Chairperson of the IPAB is appointed, the incumbent should continue to function as Chairperson. To this regard the petitioner raised three arguments
1) The incumbent Chairperson is eligible to hold the office by the virtue of Section 89A of the Trademark Act, 1999 which states that the tenure of office and maximum age of retirement would be governed by Section 184 of the Finance Act, 2017;
2) The incumbent Chairperson continued to remain in office by the decision of the Court in Rojer Mathew case;
3) If the tenure of the incumbent is not extended then the Board will be unable to function as it will be without a judicial member.
The Supreme Court rejected the application for the extension and clarified the position of the law on the tenure of the Board’s Chairperson. The Court also negated the assumption that the Chairperson is a judicial member or that only a judicial member is capable of becoming the Chairperson. For ease of reference I have drawn a flowchart (pdf) of events surrounding the case.
Extension of the incumbent Chairperson under Section 89A of the Trademark Act, 1999 and Rojer Mathew Decision
The Petitioners argued for extension of the incumbent Chairperson, who was appointed under Section 89A of the Trademark Act. They argued that Section 89A takes supremacy over Section 86 of the Trademark Act. Section 89A was inserted by the Finance Act, 2017 and points to Section 184 of the Finance Act for the term of the Chairperson. Section 184 states that the term of the Chairperson is to be fixed as per the rules framed by the Centre which cannot prescribe for a Chairperson whose age exceeds 70 years. They further argued that the incumbent Chairperson stayed in office by virtue of the Supreme Court decision in the Rojer Mathew case, which scrapped the Tribunal Rules, 2017, framed by the Centre and stated that till new rules are framed, the terms of all the sitting members and Chairpersons of various tribunals were to be protected on the basis of the relevant statute before the Finance Act, 2017. (see here for Balu and Pankhuri’s assessment of the Rojer Mathew Decision) Consequently the new Tribunal Rules 2020 were framed which were modified by the Supreme Court in Madras High Court Bar Association case by fixing the term to 70 years. (see here for our assessment of the decision)
On the other hand, the intervenor argued that Section 184 does not ipso facto prescribe or indicate any term of appointment or tenure, except to enumerate outer limits of tenure terms. Thereby arguing that the term prescribed by the Act means that the age of the Chairperson should not exceed 70 years and not that it shall last till the Chairperson reaches 70 years.
The Court agreed with the intervenors in the matter and made the following key observations with regard to the term of the appointment:-
- The tenure of the incumbent Chairperson had ended on 21.09.19 which was 43 days before the Supreme Court decision in Rojer Mathew, scrapping the 2017 Tribunal Rules.
- The Finance Act merely stipulates the potential maximum age limits and tenure limits.
- The only arrangement regarding the tenure of the Chairperson, between the 2017 Rules and the Rojer Mathew decision was made by the interim orders in the Kudrat Sandhu. The Court in these interim measures prescribed for a term of 5 years or the maximum term under the old legislation and subsequently clarified it to mean that the Chairperson shall hold the term till he attains 65 years. (combined pdf of all the relevant orders)
The Necessity of a Judicial Member
The Petitioners also contended that the tenure of the incumbent Chairperson must be extended since he is the sole judicial member in the Board and in his absence the Board will be headless and will not be able to function. The Court observed that the board cannot remain headless when there are other members in it. As per Section 84(3) a Chairperson can function as both a judicial and technical member. The Court read it to mean that a Chairperson can be a technical member as well. The Court then noted that Section 87 enables a Vice-chairperson, or as the case may be the senior-most member of the board to act as Chairperson in the event of a vacancy to that position, or in the event of the incumbent’s inability to function in the post. Recalling that “incumbent five technical members all hold legal qualifications”, the Court observed that “four of these incumbent members were practising advocates in specialized fields of intellectual property (trademarks, and copyright) and one technical member (patents) had experience in the Patent Office.” Thus, “the fact that they were appointed as technical members cannot obfuscate the fact that they are legally trained and qualified.”
The order is pretty clear on the decision and has left no scope for doubt regarding interpretation of the existing law on the tenure of the Chairperson. However, as pointed out above the IPAB is still holding hearings and might be disposing of the matters with the incumbent as the Chairperson. Considering the above state of affairs in the IPAB, another decision by the Supreme Court comes to my mind where the court held-
“It must be grasped that judicial discipline is self discipline. The responsibility is self responsibility. Judicial discipline is an inbuilt mechanism inherent in the system itself. Because of the position that we occupied and the enormous power we wield, no other authority can impose a discipline on us. All the more reasons Judges exercise self discipline of high standards. The character of a Judge is being tested by the power he wields.”
“Because of the power he wields, a Judge is being judged with more stricter than others. Integrity is the hall-mark of judicial discipline, apart from others.”
Apparently there is some GO passed after Nov 27 by the Department giving him an extension of 3 months. This was apparently done when the clarification application of AIPPI had been filed in December. Surprisingly, the Govt did not even mention the GO in Court otherwise the Court would have dealt with that as well. Anyway how can a GO override a SC Judgment whether of Nov 27 or of Feb 12?
The Hon’ble SC must step in to set this right by either declaring that its judgement of Feb 12 is not applicable to IPAB in view of the GO, or ask the Department what is going on.
AV
No extension was granted it was just recommendation to ACC for three months extension but no order of ACC issued so far, you must know by the time order of SC came so the order of SC will prevail secondly he is retired judge he must be knowing that his all term extensions done by court not by DIPIIT hence no question of approaching department for extension, foremost thing even order of 27 th November and subsequent clarification order of 27th December 2030 in APTEL member case, it was clearly said those who have been appointed before 12th Feb 2020 have to go at this stage granting an extension clearly shows back door extension, probably AG avoided intently no no to a toga isle court .
Individuals cannot b bigger than institution and rather in view AIPPI chose wrong path of asking extension of one person in place of seeking relief for all appointments so now pandora box has opened every one knows it was nexus litigation to give benefit to one individual rather doing general good as that petitioner intently omitted that he has been superannuated from PMLA as chairman. And he was holding mere additional charge in IPAB and on concealed the petitioner had obtained order in present chairman favour, the bench was lenient did not hauled up petitioner for contempt as former judge issue was involved otherwise there should have been more castigating order from SC bench.
Do not try to mislead at this juncture like APPI petitioner as they did in court. So today the IPAB being verge of closure is only due to attorneys, as already said in the write up
“It must be grasped that judicial discipline is self discipline. The responsibility is self responsibility. Judicial discipline is an inbuilt mechanism inherent in the system itself. Because of the position that we occupied and the enormous power we wield, no other authority can impose a discipline on us. All the more reasons Judges exercise self discipline of high standards. The character of a Judge is being tested by the power he wields.”
“Because of the power he wields, a Judge is being judged with more stricter than others. Integrity is the hall-mark of judicial discipline, apart from others.”