THE TRIBUNALS REFORMS (RATINALIZATION AND CONDITIONS OF SERVICE) ORDINANCE, 2021 – PART I

[Mr. M. GOVINDARAJAN]

Tribunals

The Civil Courts being overburdened with the cases filed all over India, the Government decided to give relief to civil courts and for early remedy to a group of people or business or entity and so the Tribunals are formed.  No detailed procedure as prevailing in the Civil Courts is not in Tribunals.  The Tribunal is a quasi judicial body.  For example tribunals are established to hear labor disputes, company law matters, taxation disputes etc.  The Central Government wanted to make reforms in Tribunals and brought many changes in the establishment of tribunals, appointment of Members, qualification of members, salary and allowances etc. by making amendments to the relevant acts. 

Ordinance

The Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021 (‘Ordinance’ for short) was promulgated by the President of India on 04.04.2021.

Objective

The objectives of the ordinance are to amend the following acts-

• The Cinematograph Act, 1952;
• The Copy Rights Act,1957;
• The Customs Act, 1962;
• The Patents Act, 1970;
• The Airports Authority of India Act, 1994;
• The Trade Marks Act, 1999;
• The Geographical Indications of Goods (Registration and Protection) Act, 1999;
• The Protection of Plant Varieties and Farmers’ Rights Act, 2001;
• The Control of National Highways (Land and Traffic) Act, 2002; and
• The Finance Act, 2017.

Amendments to Cinematograph Act, 1952

The Central Government, according to Section 3 of the Cinematograph Act constituted a Board of Film Certification.  The Board shall examine the film. Section 5A provides that the Board after examining the film and grant the necessary certificate to the film. 

Section 5C provides for filing appeal by any person applying for a certificate in respect of a film who is aggrieved by any order of the Board-

• refusing to grant a certificate; or
• granting only an "A" certificate; or
• granting only a "S" certificate; or
• granting only a "UA" certificate; or
• directing the applicant to carry out any excisions or modifications, may, within thirty days from the date of such order,

prefer an appeal to the Tribunal.  Section 5D provides for the constitution of the Appellate Tribunal for filing and hearing appeals.  Section 5DD provides the qualification, terms and conditions of the Chairman and Member.  Section 6 gives the revisionary powers to the Central Government on the orders made by the Tribunal.

Section 7A gives powers to police officers to cause search in a place where a uncertified film is executed on the order made by the Central Government or Tribunal or Board.  Section 7C provides that the Central Government, the Tribunal or the Board may require any film to be exhibited before it or before any person or authority specified by it in this behalf.  Section 7D provides that no act or proceeding of the Tribunal, the Board or of any advisory panel shall be deemed to be invalid by reason only of a vacancy in, or any defect in, the constitution of the Tribunal, the Board or panel, as the case may be.  Section 7E provides that the members of the Tribunal are public servants. Section 7F provides that no suit or other legal proceeding shall lie against the Tribunal, the Board or any officer or member of  the Tribunal in respect of anything which is in good faith done or intended to be done under this Act.

The Ordinance intends to shift the powers of Tribunal under this Act to High Court.  Therefore there will be no Tribunal to hear appeals.  Only the High Court, having jurisdiction, is to hear the appeals under the Cinematograph Act.  For this purposes the Ordinance-

• omits section 2(h) which defines the term ‘tribunal’;
• omits section 5D and 5DD;
• omits the portion relating to Tribunal in section 6;
• omits section 8(2)(h), (i), (j) and (k) which give powers to the Central Government to make rules as detailed below-

• section 8(2) (h) - the allowances or fees payable to the members of the Tribunal;
• Section 8(2)(i) - the powers and duties of the Secretary to, and other employees of, the Tribunal;
• Section 8(2)(j) - the other terms and conditions of service of the Chairman and members of, and the Secretary to, and other employees of, the Tribunal;
• Section 8(2)(k) - the fees payable by the appellant to the Tribunal in respect of an appeal;

• Substitution of the word ‘High Court’ for ‘Tribunal’ appeared in Section 5C, 7A, 7C, 7D, 7E and 7F.

Amendment to Copyright Act, 1957

Section 6 of the Copyright Act provides that certain disputes were to be decided by the Copyright Board.  With effect from 26.05.2017 this power has been transferred to the Appellate Board.  Now the Ordinance transfers the said rights to the ‘Commercial Courts’ and some cases to ‘High Courts’.  For this purpose the Ordinance omits the definition of the expression ‘Appellate Board’.  The expression ‘Commercial Court’ is defined vide section 2(fa) as for the purposes of any State, means a Commercial Court constituted under section 3, or the Commercial Division of a High Court constituted under section 4, of the Commercial Courts Act, 2015.

The Ordinance omits the following sections-

• Section 11 – Appellate Board;
• Section 12 – Powers and procedure of the Appellate Board;
• Section 78 (2)(cA) and (ccB) and (f) which gives powers to the Central Government to make rules in respect of ‘Appellate Board’;

and omits the words ‘Appellate Board’ wherever occurs in Sections 74, 75 and 77.

The Ordinance substitutes the words ‘Commercial Court’ for ‘Appellate Board’ appears in-

• Section 6 – Certain disputes to be decided by the Appellate Board;
• Section 19A – Disputes with respect of assignment of copyright;
• Section 23 – Term of copyright in anonymous and pseudonymous;
• Section 31 – Compulsory licence in works withheld from public;
• Section 31A - Compulsory licence in unpublished or published;
• Section 31B - Compulsory licence for benefit of disabled.
• Section 31C - Statutory licence for cover versions;
• Section 31D -  Statutory licence for broadcasting of literary and musical works and sound recording;
• Section 32 - Licence to produce and publish translations;
• Section 32A -  Licence to reproduce and publish works for certain purposes;
• Section 33A - Tariff Scheme by copyright societies;
• Section 53A - Resale share right in original copies;
• Section 54 – Definition of the expression ‘owner of copyright’.

The Ordinance transfers the powers of the Appellate Board under section 50 (Rectification of Register by Appellate Board and section 72 to the High Court. 

Section 72(1) provides that any person aggrieved by any final decision or order of the Registrar of Copyrights may, within three months from the date of the order or decision, appeal to the Appellate Board.  Section 72(2) provides that any person aggrieved by any final decision or order of the Appellate Board, not being a decision or order made in an appeal under sub-section (1), may, within three months from the date of such decision or order, appeal to the High Court within whose jurisdiction the appellant actually and voluntarily resides or carries on business or personally works for gain.

The Ordinance substitutes a new section for the existing section 72.  The newly substituted section 72 provides that-

• Any person aggrieved by any final decision or order of the Registrar of Copyrights may, within three months from the date of the order or decision, appeal to the High Court.
• Every such appeal shall be heard by a single Judge of the High Court;
• Any such Judge may, if he so thinks fit, refer the appeal at any stage of the proceeding to a Bench of the High Court.
• Where an appeal is heard by a single Judge, a further appeal shall lie to a Bench of the High Court within three months from the date of decision or order of the single Judge.
• In calculating the period of three months provided for an appeal under this section, the time taken in granting a certified copy of the order or record of the decision appealed against shall be excluded.

Amendments to Customs Act, 1962

Chapter VB of Customs Act deals with the procedure of getting advance rulings under Customs Act (from section 28E to section 28M).  Section 28H prescribes the questions on which the advance ruling can be obtained from the Authority for Advance Ruling.  Against the decision of the Authority for Advance Ruling appeal may be filed before the Appellate Authority under Section 28KA.  Section 28L prescribes the powers of the Appellate Authority.  Section 28M prescribes procedure for the Authority and Appellate Authority.

Section 28F(1) of the Act provides that  the Authority for Advance Rulings constituted under section 245-O of the Income-tax Act, 1961 shall be the Appellate Authority for deciding appeal under this Chapter and the said Appellate Authority  shall exercise the jurisdiction, powers and authority conferred on it by or under this Act.

The Ordinance transfers the powers of Appellate Authority to High Court.  The following changes have been brought by Ordinance in this regard-

• Omits the definitions of ‘Appellate Authority’ under section 28E(ba), ‘Chairperson’ under section 28E(f) and ‘Member’ under section 28E(g);
• Omits the proviso to section 28E(1), which provides that  till the date of appointment of the Customs Authority for Advance Rulings, the existing Authority for Advance Rulings constituted under section 245-O of the Income-tax Act, 1961 (43 of 1961) shall continue to be the Authority for giving advance rulings for the purposes of this Act.
• Omits section 28F(1);
• In Section 28KA(1) wherever the expression ‘Appellate Authority occur, the word ‘High Court’ shall be substituted;
• Omits section 28KA(2) which provides that The provisions of sections 28-I and 28J shall, mutatis mutandis, apply to the appeal under this section.
• In section 28L, the words “or Appellate Authority”, wherever they occur, shall be omitted;
• in section 28M, in the marginal heading, the words “and Appellate Authority” shall be omitted;
• Omits section 28M(2) which provides that the Appellate Authority shall, subject to the provisions of this Chapter, have power to regulate its own procedure in all matters arising out of the exercise of its powers and authority under this Act.

Amendments to Patents Act, 1970

Section 117A of the Patents Act,1970 provides for filing appeal before the Appellate Board against any decision, order or direction of the Controller of Central Government under-

• Section 15 –  Power of Controller to refuse or require amended applications, etc., in certain cases
• Section 16 – Power of Controller to make orders respecting division of application.
• Section 17 –  Power of Controller to make orders respecting dating of application.
• Section 18 – Powers of Controller in cases of anticipation.
•  Section 19 – Powers of Controller in case of potential infringement
• Section 20 – Powers of Controller to make orders regarding substitution of applicants etc.
• Section 25(4) –  order of Controller to maintain or to amend or to revoke the patent.
• Section 28 – Mention of inventor as such in patent.
• Section 51 – Power of Controller to give directions to co-owners.
• Section 54 – Patent of addition.
• Section 57 – Amendment of application and specification before Controller.
• Section 60 – Applications for restoration of lapsed patents.
• Section 61-  Procedure for disposal of applications for restoration of lapsed patents.
• Section 63 – Surrender of patents.
• Section 66 – Revocation of patent in public interest.
• Section 69 (3) – Registration of assignments, transmissions, etc.
• Section 78 – Power of Controller to correct clerical errors, etc
• Section 84 (1) to (5) – Compulsory licences.
• Section 85 –  Revocation of patents by the Controller for non-working.
• Section 88 –  Powers of Controller in granting compulsory licences.
• Section 91 – Licensing of related patents.
• Section 92 – Special provision for compulsory licences on notifications by Central Government.
• Section 94 – Termination of compulsory licence.

Section 116 of the Act provides that the Appellate Board established under section 83 of the Trade Marks Act, 1999 (47 of 1999) shall be the Appellate Board for the purposes of this Act and the said Appellate Board shall exercise the jurisdiction, power and authority conferred on it by or under this Act.  The Ordinance transfers the powers of the Appellate Board to High Court.

The following are the changes that are brought out by Ordinance in this regard-

• Omits the definition of ‘Appellate Board’ under Section 2(1)(a);
• Omits section 2(1)(u)(B) which provides that "prescribed" means, in relation to proceedings before the Appellate Board, prescribed by rules made by the Appellate Board; 
• In section 52, the words “Appellate Board or”, wherever they occur, shall be omitted;
• In section 58, the words “Appellate Board or”, wherever they occur, shall be omitted;
• In section 59, the words “Appellate Board or”, wherever they occur, shall be omitted;
• In section 64(1) the words “the Appellate Board or” shall be omitted;
• In section 71, for the words “Appellate Board” and “Board”, wherever they occur, the words “High Court” shall be substituted;
• In section 76, the words “or Appellate Board” shall be omitted;
• In section 113 the words “the Appellate Board or”, wherever they occur, shall be omitted;
• Changes in the heading of Chapter XIX – Appeals to Appellate Board – changed as ‘Appeals’;
• Omission of Section 116 – provisions relating to Appellate Board;
• Omission of Section 117 -  Staff of Appellate Board;
• In section 117A, for the words “Appellate Board”, wherever they occur, the words “High Court” shall be substituted;
• Omission of Section 117B – Procedure and powers of Appellate Board;
• Omission of Section 117C – Bar of jurisdiction of Courts etc.
• Omission of section 117D – Procedure for application for rectification etc., before Appellate Board;
• In section 117E, for the words “Appellate Board”, wherever they occur, the words “High Court” shall be substituted;
• Omission of section 117F – Cost of Controller in proceedings before Appellate Board;
• Omission of Section 117 G – Transfer of pending proceedings to the Appellate Board;
• Omission of Section 117 H – Power of Appellate Board to make rules;
• In sub-section151 (1), the words “or the Appellate Board”, at both the places where they occur, shall be omitted;
• In sub-section (3), for the words “the Appellate Board or the courts, as the case may be”, the words “the courts” shall be substituted;
• Omits the following section-

• Section 159 (2) (xiia) – Power of Central Government to make rules on the salaries and allowances and other conditions of service of the officers and other employees of the Appellate Board under sub-section (2) and the manner in which the officers and other employees of the Appellate Board shall discharge their functions under sub-section (3) of section 117;
• Section 159(2) (xiib) – Power of Central Government to make rules on the form of making an appeal, manner of verification and the fees payable under subsection (3) of section 117A;
• Section 159(2) (xiic) – Power of Central Government to make rules on the form in which, and the particulars to be included in, the application to the Appellate Board under sub-section (1) of section 117D.

Amendments to Airport Authority of India Act, 1994

Section 28K of the Airport Authority of India Act, 1994 provides that any person aggrieved by an order of the eviction officer may, within fifteen days from the date of such order, prefer an appeal to the Tribunal in such form as may be prescribed.

The Ordinance transfers some of the powers to the Central Government and some of the powers of the Tribunal to High Court.  For this purpose the Ordinance makes the following amendments to the Act-

• Omits section 28A(e) – defining the term ‘Tribunal’;
• In section 28E (Disposal of property left on airport premises by unauthorized occupants) , for the word “Tribunal”, at both the places where it occurs, the words “Central Government” shall be substituted;
• Omission of Section 28I – Establishment of Tribunal;
• Omission of Section 28J – Resignation and removal of Members of the tribunal;
• Omission of Section 28JA – Qualifications, terms and conditions of service of Chairpersons;
• Change in section 28K(1) – The Ordinance transfers the powers of Tribunal in hearing appeal to High Court;
• Omission of Section 28K(2), (3), (4), (5) – Procedure in disposal of the appeal;
• Omission of Section 28L – Procedure of powers and procedure of the Tribunal;
• In section 28M (Finality of orders), the words “or the Tribunal” shall be omitted;
• In section 28N (Offences under this Chapter) , the words “or the Tribunal” shall be omitted;
• In section 33 (Protection of action taken in good faith), the words “or the Chairperson of the Tribunal” shall be omitted;
• Omission of following section which gives powers to Central Government to make rules-

• Section 41(2)(gvi) - the salaries and allowances payable to, and other terms and conditions of service of, the Chairperson of the Tribunal under sub-section (7) of section 28-I;
• Section 41(2)(gvii) - the procedure for the investigation of misbehaviour or incapacity of the Chairperson of the Tribunal under sub-section (3) of section 28J;
• Section 41(2) (gviii) - the form of appeal under sub-section (1) of section 28k;
• Section 41(2)(gix) - any other matter under clause (c) of sub-section (2) of section 28L.