We’re pleased to bring to you a guest post by Justice (Retd.) Prabha Sridevan on the recent Bill moved by the Government in the Parliament proposing to shut down IPAB and the way forward. Justice Sridevan needs no introduction – she served as a judge of the Madras High Court from 2000 to 2010 and as the Chairperson of the IPAB from 2011 to 2013 and her stint as both resulted in a number of significant IP developments, which we have covered here, here, here and here. A more elaborate profile and Prof. Basheer’s interview of her published on the blog in 2018 can be viewed here and here. She has previously also written guest posts for us, which can be viewed here and here.
Govt’s Proposal to Shut Down IPAB and the Way Forward
Justice (Retd.) Prabha Sridevan
The news that IPAB would be scrapped filled me with joy.
We are told that tribunals are needed for the expert insight that technical matters require, that may elude the regular judges however high the court may be. We are also told that because of the ease of procedure and speedy disposal. Tribunals lightens the traffic jam in courts and so they are necessary. All I can say is ho-hum.
Please read Monsanto Company v. Coramandal Indag Products (P) Ltd. judgment penned by Justice Chinnappa Reddy way back in 1986. Crisp, comprehensive and aligned to the Constitution, it is. It is not convolutedly drafted like some claims are. It is simple. The great judge is a “regular” judge and not a technical one but knew how the law lay. More recently on a 1st of April in the year 2013, the Novartis judgment was written by a “regular” judge, Justice Aftab Alam. He did not balk at eliciting expert guidance when he needed it. Humility is the hall-mark of greatness. Prof. Shamnad Basheer told me that at the start the Bench said that since the subject was unfamiliar explanations were needed, but that within a week Justice Aftab Alam was on top of the problem, asking probing questions. So you do not need to be a chemistry expert, or a molecular biology expert, you need application, the idea of justice and law and the focus to decide IP questions (stress on “idea of justice and law”).
When the Madras High Court was hearing the first Novartis case, the IPAB was formed and cases stood transferred to it from High Court. Presumption was IPAB was on the same tier as High Court and appeals against its orders went to the Supreme Court. Presumption wrong, press “delete”. Against an order of IPAB, a writ petition lay to the High Court. With the patent life expectancy being what it is, a writ petition to the High Court and then a special leave to the Supreme Court, could make the decision on the validity of the patent purely academic. Then again, the circuit-structure of the IPAB staggered the hearings, so the pendency too staggered. I am informed that it takes years for a revocation petition / appeal against a rejection to reach finality. The delay in filling up vacancies is well-known. SpicyIP calculated that “in its 17 years of existence, the IPAB has not had a Chairperson for a cumulative total of 1,130 days!” So “speedy disposal” vanishes like those toilet rolls did in supermarkets when the C-virus happened.
The two ostensible reasons for tribunalisation cannot therefore be sustained.
The purse is with the Government, the appointment is with the Government. I have filed a detailed report drawing from my experience as Chairperson of IPAB before the Madras High Court highlighting the problems in this area. It is not a happy report. I have also written ‘Whose tribunal is it anyway‘ in Hindu. The independence of tribunals is a big question mark. Pay parity for the staff, regularisation of their service were some of the issues IPAB had to grapple with, while deciding the Tykerb patent, Bayer v. Natco and other cases. Not a cakewalk at all, believe me.
High Courts decide constitutional rights that are enshrined in the Constitution. If the jurisdictional space of the High Courts is eaten up by tribunals, then what is left? It sorely reminds me of the monkey and the litigious cats of Aesop’s fables.
I have written a guest post about the same subject right here last year. So why should I write again? I am worried. The new normal requires a constitutional vision regarding access to health and life (see the discussion here). We are dealing with the right to life, please! Random doling out of interim and other orders makes me petrified today more than before. Moreover the IPAB cannot mould the relief as a constitutional court can. The presence of public interest in every IP case, requires a jurisdictional space that is not constrained. I have elsewhere said that “A sui generis mechanism to handle the modus operandi of IPR disputes would make the most sense.” A High Court can employ innovative tools as in a PIL, and essentially most IP disputes contain public interest, especially those involving pharmaceutical patents. Tribunals will be over-stepping their limits if they try such a line.
So what next? An IP bench in the High Courts. The Government can save all the money that is spent on the infrastructure inadequate though it is, and the salary paid to the Chairman, members and staff. We have had tax benches in every court and they are given different case numbers (in Madras High Court, it is T.C). So an IP bench will not be a novelty. IP cases can have separate numbers and go on a separate track. The composition of the IP Bench must not be changed too often. There could be a panel of expert advisors for every area of expertise applicable (patents, G.I., plant varieties etc.) from whom the Court can get the expert insight to help them decide the dispute. There could be party experts and Court appointed experts to rule out bias. Time lines can be fixed to ensure quick disposal.
These amendments scrapping the IPAB are most welcome.
P.S. I heard that even after the Supreme Court refused to extend the Chairman’s term, hearings were held at the IPAB. I hope it is inaccurate information.
I have. Read your article but after reading it certainly it raise certain tangible questions in my mind why you did not initiate this proposal of closure of IPAB in your tenure itself, rather you had an very good opportunity with you at that time to initiate proposal of closure of IPAB but you did not why because you were fighting a proxy litigation with then DIPP, how awkward it was or the general litigants that one organ of the government is fighting with government in court for availability of infrastructure, so probably you were having post of chairman so did not propose the closure but after stepping from it, the move of closure started appearing and you have been leading it.
As far as appointments is concerned, the appointments are processed in its own way by the government, it is surprising that the Minister of Finance did not have time to see; it is own underneath dirty carpet means, its own administered tribunal PMLA, where the appointments of 3 members and of chairman is pending since September 2019, so may I ask you, why the present minister has not initiated a bill in Lok sabha for closure of that PMLA tribunal too, in way that is was the fit case to close down PMLA tribunal, as that tribunal is having important cases of politicians, businessmen who have plundered money and ED and other agencies have filed cases.
The recent judgement has also reiterated creation of National tribunal commission if the government is so interested in streamlining the tribunals why they have not implemented it since last two years, why they are withholding till date, it shows that they are not interested but they are interested in closing the tribunals which not relevant for the present dispensation and their cronies. So in piecemeal they are closing it if they are not finding their confidante to hold the posts of chairmanships and of members.
In view of the above even the operation of PMLA tribunal is not required at all, our criminal justice system is more robust at district level and high court level as basic tenets of Cr.PC and IPC as well as finance statutory laws known to everyone due to Availability of enormous cases but you or either of your contemporaries have raised closing that tribunal reason who ever retired judge joins he yield more power as chairman PMLA then IPAB chairmanship.
But in the case of IPAB sine it’s inception it has not been able to come out of a regional tab always people from particularly from south region had adorn the posts if from other region then together malign person reputation as such no one wants to join IPAB, if you compare IPAB with other tribunals based in Delhi all are at better in every sense infrastructure, staff and members as well as chairman but in case of IPAB no one wants to come and stay in corner of India, actually this is a main issue which slowly killed this tribunal and this tribunal could not grow even after being for 17 years of its existence rather in my view the government should have shifted it HQ to Delhi in place of closing it altogether bring it to Delhi and see how it flourishes in no time.
These tribunals were solely created as a post retirement heaven for retired judges to accommodate and compensate them and advocates were used as members a just pawn to implement a grand plan of compensatory appointments. So when article 220 of constitution of India has clearly envisaged barring of post retirement jobs for High Court Judges as they hold constitutional power during their judgeship tenure but the congress government amended it against the very essence of the constitutional debates conducted by then framers of constitutional and under obligation of certain retired lobbies to award jobs had inserted that they can hold post and practice other then their mother court.
The post retirement appointments of judges has a basic flaw and is cause of friction between executive n judges, as retired judge always as chairman feels that he still wield a baton of article 226 of COI whereas the executive had a impression that appointed chairman is class A officer of the government of India they treat retired judges as part of their employees, naturally the government will think in that way n have right so because there appointment letter say so that they will get remuneration n frills equivalent to class A officer of GOI and that is a point where former judges are not able to come out of past appointments which they were holding but some of them accept that they are no more holding constitutional post so they are managed with new environment. So it is a fact that once one retired judge becomes a chairman so he becomes a employee of the government but he cannot equate his present post as a constitutional post which he had previously that is a friction point between retired judges n government and this friction sometime halts progression of tribunal infrastructure n its growth.
In my opinion it is totally unfair n unwarranted and against the very principle, spirit of debates carried out by the framers of constitution, the amendment move was a appeasement gift for retired judges, every one knows that to become Chief Justice Of any high court, the names are selected through a unified list of all appointed judges at various high courts, so the amendments made in article 220 of the constitution of India is contrary’s and purposely inserted for reasons explained above, the dilution of article 220 of COI is clearly shows the behind veil of reasons for carrying amendments and after that or may be on same time Article 323 a n b were inserted for creation of tribunals to mainly compensate and accommodate the retired judges. The amendments 323 was later upheld by Supreme Court but with a rider. In my view even that constitutional bench judgements requires a detailed analysis n relook as the constitutional bench has left many legal lacunae n contradictions that has in it.
As you have submitted just a two year back your report on IPR draft policy and it was accepted by much fanfare but 99 % of draft policy report is still not implemented, which in my opinion your draft policy has a high ideal contents but has a low content on its implementation and suggestion to how to carry out implementation of policy in time bound manner and most of the suggestion are difficult to implement seeing the current scenario, this move of closure and your penned article itself is in same direction and probably your report is a cause for its closure.
But how many lower judges or high court judges are expert in this IPR field as or have dealt cases as a advocates before adorning judgeships, mostly are in negligible numbers so they have to learn through phase of time and no one can claim that he has a knowledge or expertise of all gamut of laws. Even High court judges appointed on particular expertise or subject wise but they are appointed on view of having that the particular advocate has a fair knowledge and understanding of laws but foremost consideration or requirement of being considered for judgeship is integrity and honesty that is necessity they learn laws through exposure of being judge.
But now the present 2021 scenario is different to what in the year 2003, the filing of trademark applications n of TM registration awareness of its relevance has gone manifold. If you see IPAB record the half of the cases are of petition filed for challenging rejection of trademark applications under section 9, 11 and 12 of TM Act, it is going to be disturbing to see a judge holding constitutional post will hear the matter of tm applications rejected by the examiner in way demeaning the constitutional post and the same time holding Registrar n high court judge on same pedestal making a way for forum shopping.
The TM act should have been scrapped way back during draft stage of 1999 TM Act, I m feel how can a quasi judicial authority can have a same jurisdiction n power equivalent to constitutional judge post holder. As such now there are filings are takin up in large numbers n will increase more n will pile up up more in high courts without proper relief as such this move of closure is a going two steps back then forward and is wrong move and high pendency of pending cases will start appearing soon, as in my view high courts are not in a stage where they can handle enormous filings, which are being carried now by IPAB as there were less litigation solely due to vacancies but if the timely appointments were carried out by the government then scenario was certainly would have been different then present, in my view filings could have reached minimum at least 10 thousand filings in each branch of laws per year.
Other basic fault is in this tabled draft is as how a copyright rejection n rectification applications will go to commercial court as commercial court is in original side jurisdiction how can a original side jurisdiction will assume the power of deciding rectification and rejection of copyright application by examiner that too solely in copyright matters and not in TM matters as both laws are at same pedestal
So though you have supported the move of closure in my view it is a regressive step and it will leave to more chaos then good I hope good sense will prevail on the functionaries of the government in stalling this regressive move which will not deliver as envisaged now by few.
I have read your article but after reading it certainly it raise certain tangible questions in my mind why you did not initiate this proposal of closure of IPAB in your tenure itself, rather you had an very good opportunity with you at that time to initiate proposal of closure of IPAB but you did not why because you were fighting a proxy litigation with then DIPP, how awkward it was or the general litigants that one organ of the government is fighting with government in court for availability of infrastructure, so probably you were having post of chairman, so did not propose the closure but after stepping from it, the move of closure started appearing and as per your policy, the government has only one point out of you many submitted to it.
As far as appointments is concerned, the appointments are processed by the government in its own way and speed, it is surprising that the Minister of Finance did not have time to see; it is own underneath dirty carpet means, its own administered tribunal PMLA, where the appointments of 3 members and chairman is yet to be appointed and is pending since September 2019, so, may I have liberty ask you, why the present finance minister has not initiated a bill draft in Lok Sabha for closure of that PMLA tribunal too, even PMLA tribunal is also a fit case to close down, as PMLA tribunal is also hearing important cases of politicians, businessmen, who have plundered money and ED and other agencies have pusuing cases against them.
In view of the above even the operation of PMLA tribunal is not required at all, our criminal justice system is more robust at district level and high court level as basic tenets of Cr.PC and IPC as well as finance statutory laws known to everyone due to Availability of enormous cases but you or either of your contemporaries have raised closing that tribunal reasons, who ever retired judge joins, he yield more powers as chairman of PMLA then IPAB chairmanship.
But in the case of IPAB since its inception, the IPAB has not been able to come out of a regional tag, as everyone feels that IPAB is being a some regional tribunal as majority od the time, the staff or members including chairman were always from south region as such it was always felt that only people particularly from south region had adorn the posts, if from other region joined then all were malign, as such no one was found to be interested to join IPAB, if you compare IPAB with other tribunals based in Delhi than all tribunals are at better footing in terms of infrastructure, staff and members including chairman but in case of IPAB no one wants to come and stay in corner of India, actually this is a main issue, which slowly killed this tribunal and this tribunal could not grow even after being for 17 years of its existence actually in my view the government should have shifted it HQ to Delhi in place of closing it altogether thus bringing IPAB tribunal to Delhi would have solved all problems.
Even full bench of apex court has again reiterated in its recent judgment for implementation of constitutional bench judgment with regard to creation of National Tribunal Commission, if the government is so serious in streamlining the tribunals, why they have not implemented the directions since last two years, why they are withholding directions till date, non implementation of the directions shows that they are not interested but they are interested in closing the tribunals slowly in piecemeal that are not relevant for the present dispensation and their cronies. So in piecemeal they are closing it on only one condition, if they are not finding their confidante to hold the posts of chairmanships and of members in those tribunals.
Origination of these tribunals and were solely and purposely created as a post retirement heaven for retired judges, the government wanted to accommodate and compensate them in some way, so the advocates were also roped in to make them as members, the advocate as such used as a just pawn to implement a grand plan of mainly compensatory appointments for judges. It is really surprising that when article 220 of constitution of India has clearly envisaged barring of post retirement jobs for High Court Judges as they hold constitutional post during their judgeship tenure. So the constitution fame work barred post retirement work but the congress government amended it against the very essence and tenets of the constitutional debates conducted by then framers of constitution and under some pressures from certain lobbies amended article 220 of constitution and cleared the way and inserted that they can hold post and practice other than their appointed high court.
The post retirement appointments of judges has a basic flaw for post retirement appointment, hence cause of friction between executive n judges, as retired judge always appointed as chairman felt that being retired judge, he still wield a baton of article 226 of COI, whereas the executive had a impression that appointed chairman is class ‘A’ officer of the government of India, The government always think that retired judges, as part of their employee structure, even their appointment letter say so that they will get remuneration n frills equivalent to class A officer of GOI and that is a point where former judges are not able to come out of past constitutional post but some of retired judges accept that they are no more holding constitutional post, so they are able to managed with new environment with pinch of salt. So it is a fact that once one retired judge becomes a chairman, so he becomes a employee of the government but he cannot equate his present post as a constitutional post that he had previously held. Mainly this is a friction point between retired judges n government and this friction sometime has led to halting of tribunal progression in terms of infrastructure, delay in appointments of chairman, members and staff thus creation of overall impediment in its growth.
So in my opinion, the appointment of judges after retirement is totally unfair n unwarranted and against the very principle, spirit of debates carried out by the framers of constitution, the amendment move was a just appeasement gift for retired judges, as everyone knows that to become Chief Justice Of any High court, the supreme Court collegiums selects the names of judges on seniority through a unified list of all appointed judges to various High Courts, the unified list showing seniority is a guiding principle for appointment of Chief justice of High Courts, so the amendments made in article 220 of the constitution of India allowing post retirement jobs to judges is contrary to the initial constitution scheme and it was purposely inserted for the reasons as explained above. The dilution of article 220 of COI is clearly may be reason for carrying insertion of the Article 323, Article 323 A and B for creation of tribunals to mainly compensate and accommodate the retired judges. The amendments by inserting of Article 323 of COI were later upheld by the constitutional Bench of Supreme Court but with a rider. In my opinion even that constitutional bench judgments requires a revisit with detailed analysis n further require a relook as the constitutional bench has left many legal lacunae n contradictions that has in it.
Just a two year back, you have submitted a Draft IPR policy report and it was accepted by much the government with much fanfare and [publicity but 99 % of draft policy report is still not implemented that is lying under dust, which in my opinion your draft IPR policy report has a high pitch on ideal contents but has a low content of policy, that is still struggling for its implementation. The department has not been able to devise a plan as how to carry out implementation of draft IPR policy in time bound manner and most of the suggestions are difficult to implement and even are not yet implemented, seeing the present scenario as well as the contents of the report on adjudication in Draft IPR policy report, the move of closure of IPAB is initiated as only sole step by the Finance ministry by tabling bill in Lok Sabha, that suggestion of closure of IPAB is based on your report and now your penned article itself takes us to same direction and it is now understood that your report is a cause for IPAB closure.
But as you have pitched for commercial courts and in reality how many lower judges or high court judges are expert in this IPR field as or have dealt cases as a advocates before adorning judgeships that are negligible in numbers and I am sure majority of them may not have been knowing IPR laws nor dealt those who know IPR laws are dealt cases may be in negligible numbers, as your reports suggest creation of commercial courts and commercial courts have been established in few places, so majority of judges have to learn through phase of time and no one can claim that he has a knowledge or expertise of all gamut of laws. Even High court judges are not appointed having expertise in particular laws or subject but they are appointed on premise of having a fair knowledge and understanding of laws but foremost consideration or requirement of being considered for judgeship is integrity and honesty that is necessity they learn laws through exposure of being judge. But the government do not follow in case of advocates rather they need to have specialization for tribunals but in case of judicial members they do not follow it even that particular judicial members have not even dealt with.
But now the present 2021 scenario is different to what in the year 2003, the filing of trademark applications n of TM registration awareness has gone manifold. If you see IPAB record the half of the petitions were filed of challenging rejection of trademark applications under section 9, 11 and 12 of TM Act by the examiner of the TM registry, it is going to be disturbing trend to see a high Court judge holding constitutional post will hear the matter of tm applications rejected by the quasi judicial examiner without application of judicial mind, in way it will be demeaning the constitutional post and the same time under TM act holding of quasi judicial authority of Registrar n high court judge on same pedestal making a way for forum shopping in a way one side the HC judge will hear directly rectification petition and other hand same judge will hear appeal of the registrar rectification order..
The TM act should have been scrapped way back during draft stage of 1999 TM Act, I am of opinion how can a quasi judicial authority can have a same jurisdiction n power equivalent to constitutional judge post holder. As such now there are filings are taken up in large numbers n will increase more load of cases n will pile up more cases in high courts working thus delay will creep in without proper relief, as such this move of closure is a going two steps back then one step forward, thus is wrong move and it will increase high pendency of pending cases, no sooner delay will start appearing soon, as in my view high courts are not in a stage where they can handle enormous filings, which are being carried now by IPAB as there were less litigation solely due to vacancies but if the timely appointments were carried out by the government then scenario was certainly would have been different then present, in my view filings could have reached minimum at least 10 thousand filings in each branch of laws per year.
Other basic fault is in this tabled draft, the Copyright matters in to commercial Courts as how a copyright rejection n rectification applications will go to commercial courts as commercial court is in original side jurisdiction how can a original side jurisdiction will assume the power of appellate jurisdiction for deciding order of rejection or acceptance in rectification application by examiner that too solely in copyright matters and not in TM matters as both laws are at same pedestal so the copyright appellate powers are also to distributed to High Court not in commercial courts.
Though you have supported the move of closure by saying step forward but in my view it is a regressive step and it will leave to more chaos then good I hope good sense will prevail on the functionaries of the government in stalling this regressive move which will not deliver as envisaged now by few.
Whether the major problem of grant / refuse by patent officials without appropriate justification would ever be questioned?
So judges should do the research also.
After hearing a scientific problem briefly, a person with no scientific knowledge would have 1000 solutions, which will not be scientifically feasible.
Scrap all the tribunals in the country dealing with all particular or special subjects and then have a special bench in the HC. This is reminding us of the state-owned Industries that govt is looking for closure.
Why have we formed Tribunals and left them all these years with all overhead expenses burden to the concerned departments of the Govt? It is a one-line answer that specialized subjects may be dealt with through an independent Tribunal. One technical member and the other a legal member as required in every such Tribunal. This is a very good system and this mechanism should works like a charm if all such flaws are eliminated, rather than one easy way for closure. Reduce the burden of courts is very much need of the hour. There is some connection that exists between the earlier move for shifting the IPAB to Delhi and the decision now for closure. Either move all the Tribunals to Delhi for the convenience and benefit of some _______or close, the easiest way. There must be a strong lobby behind this move.
Why too many nonconvincing reasons and stories for the closure of IPAB? finish it on the point.
Anyway, the IPAB decisions are challenged at a higher forum by the parties. This being the scenario; applicants can now save all their time spent at IPAB otherwise, and seek justice at High courts or at Apex Court.