Vital Provisions of Intellectual Property Appellate Board (IPAB) held Unconstitutional by Madras High Court
IPAB exercises jurisdiction over Trademarks, Patents and geographical indications.
The IPAB was conferred by the Trademarks Act 1999 with the jurisdiction to hear all appeals from the order or decision of the Registrar and all cases pertaining to rectification of register and all such cases which were then pending before any High Court stood transferred to the IPAB.
The Geographical Indications of Goods (Registration and Protection) Act 1999 was enacted to provide for the registration and better protection of geographical indications relating to goods. The IPAB is an appellate authority under this Act also.
The Patents (Amendment) Act 2002 was enacted to bring our patent regime in line with the TRIPS agreement. The IPAB was conferred by this Act with the jurisdiction to hear all cases against any order or decision of the controller and all cases pertaining to revocation of patent other than on a counterclaim in a suit for infringement and rectification of registers and all such cases which were pending before the High Courts stood transferred to the IPAB.
The High Court observed,
The IPAB plays a pivotal role in resolving the commercial disputes. A good adjudicatory process is a sine qua non for the development of the Society, more so, in the field of Commerce. With India being a rapidly developing Industrial nation, spreading its commercial activities, it is in national interest to have an adjudicatory forum satisfying the needs of various commercial entities. It also creates a good atmosphere of business development and industrial peace. It further enhances the reputation of our justice delivery system from the point of view of other countries. It brings forth an investor's confidence. Hence, from the context of public interest also, the IPAB has got an eminent role to perform .
The High Court was delivering a judgement in a writ petition filed by a Professor in a Law University seeking a declaration that certain provisions of the Trade Marks Act, 1999 insofar as it establishes the Intellectual Property Appellate Board (IPAB) and vests important judicial functions on this Board, are ultra vires of the Constitution.
Section 85 of the Trade Marks Act, 1999 dealing with the appointment of Chairman and Members of the IPAB, reads as:
Chairman:
(1) A person shall not be qualified for appointment as the Chairman unless he--
(a) is, or has been, a Judge of a High Court; or
(b) has, for at least two years, held the office of a Vice-Chairman.
Vice-Chairman:
(2) A person shall not be qualified for appointment as the Vice-Chairman , unless he--
(a) has, for at least two years, held the office of a Judicial Member or a Technical Member; or
(b) has been a member of the Indian Legal Service and has held a post in Grade I of that Service or any higher post for at least five years.
Judicial Member:
(3) A person shall not be qualified for appointment as a Judicial Member , unless he--
(a) has been a member of the Indian Legal Service and has held the post in Grade I of that Service for at least three years; or
(b) has, for at least ten years, held a civil judicial office.
Technical Member:
(4) A person shall not be qualified for appointment as a Technical Member , unless he-
(a) has, for at least ten years, exercised functions of a tribunal under this Act or under the Trade and Merchandise Marks Act, 1958 (43 of 1958), or both, and has held a post not lower than the post of a Joint Registrar for at least five years; or
(b) has, for at least ten years, been an advocate of a proven specialised experience in trademark law.
As per the above scheme, a Technical Member can become Vice-Chairman and a vice-chairman can become Chairman. So, technically, a Technical Member can become the Chairman.
An officer of the Indian Legal Service can become a Judicial Member (with absolutely no experience in a court of law), a vice-chairman and then Chairman.
This is what the High Court found impermissible. The High Court observed, "merely because someone holds the post in a Government Department he cannot be bestowed with the eligibility of being appointed as a Judicial Member sans experience. Also such a person cannot be treated on par with a Judicial Officer. We do not understand as to how an Officer working with the Executive would satisfy the requirement of legal training and experience…. we have no hesitation in holding that Section 85(3)(a) is unconstitutional."
Even the very process of selection did not find favour with the High Court. The Search-cum-Selection Committee constituted -
(1) | Secretary, Department of Industrial Policy and Promotion | Chairman |
|---|---|---|
(2) | Chairman, Intellectual Property Appellate Board | Member |
(3) | Secretary, Department of Legal Affairs | Member |
(4) | Director General, Council for Scientific and Industrial Research | Member |
Based on the recommendations of the Search-cum-Selection Committee, and subject to approval of Appointment Committee of Cabinet, appointments are made to the posts of Vice Chairman and Technical Members.
The High Court observed, the Constitution of the Committee, as referred above, is obviously loaded in favour of Executive, which is impermissible in law; the selection process has been left entirely to the Executive, though the functions of the Tribunal are judicial. This act is a direct affront to the basic structure, which is fundamental to the Constitution of India. The Committee as it exists today is packed with an over-dose of Executive with the lone voice of the Chairman of IPAB is restricted to that of a member. Apropos recommendation of search cum selection committee required to be approved by the appointment Committee of the Cabinet for the post of Vice-Chairman and other members, we hold that the said methodology is also totally unconstitutional as it impinges upon the independence of the judiciary.
The High Court held:
1. The appointment of officers of Indian Legal Service as Judicial Members or Vice-Chairman is unconstitutional.
2. The Constitution of the Committee for the appointment of members, both for the Vice-Chairman, Judicial Member and Technical Member is declared as contrary to the basic structure of the Constitution.
3. Recommendation of the Chief Justice of India to the post of Chairman should be given due consideration by the Appointment Committee of the Cabinet and the process does not involve any ''approval''.
Does it mean the IPAB is closed down?
We bring you the High Court Order today.