India: Few Provisions On Constitution Of IPAB Held Unconstitutional..!!

Last Updated: 16 March 2015
Article by Zoya Nafis

Certain provisions of the Trademarks Act, 1999 ("the Act") in regard to the qualification of members of Intellectual Property Board of India (IPAB) were held unconstitutional by the Madras High Court ("the Court") on March 10, 2015. The petition was filed by Mr. Shamnad Basheer pleading that Section 85 of the Trademarks Act violates the very basic structure of the Indian Constitution and must be held unconstitutional.

The IPAB is the body for resolving IP issues in India. It exercises jurisdiction over Trademarks, Patents and geographical indication. The provisions of the Trademarks Act provide for the establishment and composition of the IPAB. Section 85 of the Act stipulates the Qualifications for appointment as Chairman, Vice-Chairman, or other Members. It inter alia provides,

(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.

(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.

(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.

(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 trade mark law.

(5) Subject to the provisions of sub-section (6), the Chairman, Vice-Chairman and every other Member shall be appointed by the President of India.

(6) No appointment of a person as the Chairman shall be made except after consultation with the Chief Justice of India.

Mere plain reading of Section 85 suggest that a person with no relevant experience of practising law could be appointed as Technical Member and thereafter as Vice Chairman and Chairman, simply on the basis of the office held by him earlier. Further the provision talking about the consultation with the Chief Justice for the appointment of the Chairman of IPAB is a silent clause as the consultation of the CJI is only sought once the selection committee approves for such consultation. These provisions override the whole doctrine of separation of powers and independence of judiciary infringing the very basic structure of the Indian Constitution.

Supreme Court has set a very firm precedent in regard to tribunals and other judicial bodies that any tribunal or any board to which any jurisdiction of a Court is transferred is considered as a Judicial Tribunal and therefore the selection of its members should have their rank, capacity and status similar to that of the Court.

The Madras High Court relied on various judgments passed by the Supreme Court while deciding this petition. In the case of S.P. Sampath Kumar v Union of India [AIR 1987 SC 386], the Supreme Court held that "a person sans legal or judicial training and experience would not only fail to inspire confidence in the public mind and make the Tribunal less effective and efficacious, when the jurisdiction vested in the High Court was supplanted by its creation. Therefore, when such a supplanting is done it should be filled up with men of legal training and experience.

In another important case of, Union of India v. Madras Bar Association, [(2010) 11 SCC 1] the Supreme Courtrecognised that transfer of jurisdiction is permissible but in effecting such transfer, the court to which the power of adjudication is transferred must be endured with salient characteristics, which were possessed by the court from which the adjudicatory power has been transferred.

Abiding by the basic structure of Indian Constitution, the Madras High Court decided the petition and held the following:

  • Provisions of section 85 which provide for a member of Indian Legal Service to be qualified as a judicial member were held to be unconstitutional as it violates the doctrine of separation of powers, independence of judiciary and basic structure of the Constitution.
  • More importantly, in regard to the qualification of a Technical Member the Court held that a person to be qualified as the Technical Member must be 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. The Technical member should be a person with expertise in the field of law, rather than a mere experience in civil service. Only such a Technical Member with the qualification alone can be considered for the post of Vice-Chairman. And also for the post of Chairman, apart from a sitting or a Retired High Court Judge, only a person with a qualification as required for a Technical Member under Section 85(4)(b) can be considered as against a Judicial Member.
  • The Court directed that the Committee for the appointment of members, both for the Vice-Chairman, Judicial Member and Technical Member must have judicial members in majority.
  • The Court also made it a point that the recommendation of the Chief Justice of India to the post of Chairman must be given due consideration by the Appointment Committee of the Cabinet and the process does not involve any ''approval''.

This decision comes as a reminder that the doctrine of separation of power and independence of judiciary forms the very basic structure of the Indian Constitution and the same cannot be hampered. Further, the judiciary must proactively work to keep the basic structure of our Constitution intact.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Zoya Nafis
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