Patent tribunal’s admission places question mark against tribunals5 min read . Updated: 27 Sep 2011, 12:32 AM IST
Patent tribunal’s admission places question mark against tribunals
Patent tribunal’s admission places question mark against tribunals
Mumbai: An admission by the chairperson of the Intellectual Property Appellate Board (Ipab) that the body isn’t fully independent of its parent ministry because of the infrastructural and financial backing the latter provides has raised a question about the independence of similar tribunals.
The admission by justice Prabha Sridevan was made in a report placed last week before the Madras high court, which is hearing a case on the workings of Ipab. The appeals body, which rules on intellectual property (IP)-related issues, is vested with the powers and jurisdiction of a high court.
Mint has reviewed the report, which the court asked to be prepared. The ministry of commerce and industry is currently responsible for recruiting Ipab members, paying their salaries, and providing infrastructure to the body.
Sridevan suggested in her report that this be changed.
Also See | Judicial Questions, a timeline (PDF)
“The ministry of law and justice must be made responsible for providing all facilities that are required by Ipab as prayed for by the writ petitioner and also already declared by the Supreme Court..."
The case in the Madras high court was filed by Promoting Public Interest Lawyering (P-PIL), an activist body. Law ministry officials were not immediately available for comment.
The case filed by P-PIL questioned the independence of Ipab on the grounds that it was in violation of the constitutional “separation of powers" doctrine. It said this and the absolute lack of infrastructure at the board were hindering its functioning. The court, while hearing the PIL, had asked Sridevan to submit a report on the infrastructure and resources that had been available to Ipab.
Sridevan’s report paints a poor picture of the quality of infrastructure at Ipab. “The object of setting up of tribunals is speedy disposal. It is impossible to achieve that if Ipab has to face a battle for survival every day," it said. Sridevan also cited issues with the selection of members of Ipab.
The secretary of the department of industrial policy and promotion (DIPP), which is part of the ministry of commerce and industry, heads the selection committee of Ipab that selects the persons for appointment to the post of vice-chairman, and technical members. Sridevan said in her report that until recently, the chairman wasn’t even a member of this committee although “it appears that recently the chairman, Ipab, has been made a member of the committee".
“In conclusion, I respectfully submit that Ipab has to be in conformity with the law declared by the hon’ble Supreme Court...and I pray that directions may be issued to ensure that the independence and dignity of Ipab, its chairman, vice-chairman and members are protected," she wrote.
DIPP joint secretary D.V. Prasad, who is responsible for IP affairs, could not be reached immediately for comments as he is travelling abroad. Calls to the office of DIPP secretary R.P. Singh were not returned.
Ananth Padmanabhan, the lawyer representing the public interest petitioners in the high court, said, “It was an important revelation from the sitting chairperson of Ipab that this judicial tribunal did not have the independence to discharge its functions as alarmed in the PIL, and I hope the judge will take cognizance of the same."
There have been several instances in the past where courts have raised concerns about the functioning of other tribunals set up by ministries.
“Justice Sridevan’s report is a stellar example of why the common man continues to respect and trust the judiciary more than the executive. It is very well-researched, hard-hitting and courageously calls a ‘spade’ a spade. The government has made a mockery of Ipab and paid scant attention to the resources of Ipab or the quality of adjudicators that it appoints. It’s a wake-up call to make amends and ensure that the administration of justice in a technical field such as IP is taken seriously," said Shamnad Basheer, who founded P-PIL, the petitioner.
JUDICIAL QUESTIONS TIMELINE
•The Supreme Court had in an earlier case stated that whenever jurisdiction of high courts is transferred to a tribunal, as it was in the Intellectual Property Appellate Board’s case, the tribunal is a judicial one. The apex court also stressed on the importance of appointing the right people to such tribunals. The court said the independence of such tribunals shouldn’t be diluted and declared that only the ministry of law would provide administrative support for them. Several courts have also, over the years, questioned the constitutionality of some tribunals. A sampling:
The Calcutta high court holds the composition of the Land Reforms and Tenancy Tribunal established under the West Bengal Land Reforms and Tenancy Act, 1997, as unconstitutional. The three-member tribunal has “two state government representatives and one judge".
• The constitutional bench of the Supreme Court found defects in the provisions concerning the Company Law Tribunal under the Companies Act, 1957. To ensure its compliance with constitutional doctrine, including separation of powers, the court suggested a few amendments in order to uphold the vires of the tribunal.
• The constitutional bench of the Supreme Court observed that the National Tax Tribunal established under the National Tax Tribunal Act, 2005, was ultra vire of the constitution where (a) it allows “any person" to appear before the tribunal; (b) the government can transfer a member to another bench of the tribunal upon consultation with the chairperson, and (c) selection committee comprises the chief justice of India, secretaries of the ministry of law and justice and the ministry of finance.
• The constitutionality of the National Green Tribunal (specialized tribunal dealing with environmental issues) established under the National Green Tribunal Act, 2010, is presently under challenge before the Madras high court. The initial stay imposed by the high court on rules of appointment of its members was recently lifted by the Supreme Court.
• The Supreme Court has stated that the appointment of members and chairperson of the Appellate Tribunal established under the Prevention of Money Laundering Act is unconstitutional. According to the rules governing appointment of members, a selection was to be conducted by a selection committee headed by the revenue secretary.
Graphic by Ahmed Raza Khan/Mint