IPAB members’ appointment provisions unconstitutional: MHC

In a recent ruling, the Madras High Court struck down provisions of Intellectual Property Appellate Board appointments under the Trademarks Act as unconstitutional citing the violation of separation of powers and independence of judiciary by the government.

The Court was hearing a writ position that challenged Section 85 of the Trademarks Act, 1999 with respect to the current composition of Intellectual Property Appellate Board as well as the eligibility criteria for the various posts.

“……..all Courts are Tribunals and any Tribunal to which any existing jurisdiction of court is transferred should also be a Judicial Tribunal. The natural corollary of it would be, its members should have their rank, capacity and status akin to that of a Court”, the Court said coming down heavily on the government tendency to fill IPAB posts from Executive.

The Court said that the selection process has been left entirely to the Executive, though the functions of the Tribunal [IPAB] are judicial. This act is a direct affront to the basic structure, which is fundamental to the Constitution of India.

The Court also noted the importance of IPAB and 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 Court summed up its ruling as below: –

(1) Section 85(2)(b) of the Trade Marks Act, which provides for a qualification qua a member of Indian Legal Service who held the post of Grade I of service or of higher post at least five years to the post of Vice-Chairman is declared unconstitutional, being an affront to the separation of powers, independence of judiciary and basic structure of the Constitution.

(2) Section 85(3)(a) of the Trade Marks Act, 1999, which provides for the eligibility of a member of the Indian Legal Service and has held the post of Grade I of that Service for at least three years for qualification for appointment to the post of a Judicial Member in IPAB, is declared as unconstitutional, being contrary to the basic structure of the Constitution.

(3) 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. In consequence thereof, the 1st respondent [Government] will have to re-constitute the Committee providing a predominant role in the selection process to the judiciary.

(4) A person, in the post of Joint Registrar or above with the qualification of 12 years of practice at bar or 12 years’ experience in a State Judicial Service with a Degree in Law, along with other qualifications alone is to be considered to be appointed as a Technical member.

(5) Only such a Technical Member with the qualification indicated in (4) above alone can be considered for the post of Vice-Chairman.

(6) For the post of Chairman, apart from a sitting or a Retired High Court Judge, only a person with a qualification mentioned in (4) above and as required for a Technical Member under Section 85(4)(b) can be considered as against a Judicial Member.

(7) 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”.

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