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2015 (3) TMI 943 - HC - Indian LawsQualification and selection of Chairman, Judicial Member and Technical Member of the Intellectual Property Appellate Board - Held that - Supreme Court in Madras Bar Association Vs. Union of India (2014 (9) TMI 821 - SUPREME COURT), after taking note of the earlier decisions was pleased to hold that the role of a technical member is rather limited. Though the Legislature has got a power to appoint technical member, it has to decide its necessity first. Considering the nature of the Tribunal and the steps that are being dealt with, we do not find any error in the provisions, which require appointment of a technical member. - technical member takes part on equal terms along with a judicial member in the decision making process. The qualification is also prescribed as 12 years of practice at the bar or 12 years experience in a State Judicial Service with a Degree in Law. With the above said qualification, along with other qualifications, there cannot be any difficulty in appointing such a person as a technical member. However, the problem would possibly arise when a person sought to be appointed as a technical member merely because he works in the Legal Department of a State Government or Central Government or involved in the process of applications for registration filed under the Trade Marks Act or Geographical Indications Act or in teaching law in a recognised University or Institute. The matter can be looked at a very different angle as well. Even an experienced lawyer with specialised knowledge and expertise is treated only as a technical member under Section 85(4)(b). If that is the case, 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. In other words, when such an Officer cannot become a judge, he cannot also act in the said capacity. We only reiterate the reasoning assigned by the Supreme Court in this regard. Therefore, we have no hesitation in holding that Section 85(3)(a) is unconstitutional, particularly, in the light of the directions (i) and (ii) rendered in Union of India Vs. R.Gandhi, President, Madras Bar Association, (2007 (5) TMI 336 - SUPREME COURT OF INDIA). In the light of the interpretation given by us on the technical member as well as Section 85(3)(a) having been struck down we do not find any impediment in considering such technical members and judicial members for the post of Chairman. With the said interpretation, we further come to the conclusion that such technical members, when they become Vice-Chairman, would also become judicial members. This is because the anomaly is being removed by the earlier part of our order. No hesitation in holding that the view of the Chief Justice of India on the choice of selection to the post of Chairman should be given due weightage. Thus, we hold that the procedure adopted in seeking ''approval'' by the appointment committee of Cabinet is illegal. From the counter affidavit it is seen that the word ''consultation'' has been taken as recommendations of the Chief Justice of India. Therefore, we can infer that the recommendations are being made by the Chief Justice of India. Thus, we hold that the recommendations of the Chief Justice of India should have primacy, subject to the approval of the President. Such a recommendation is required to be considered in its perspective in the normal circumstances. The learned Senior Counsel for the petitioner submitted that lawyers with experience and knowledge ought to be included as Judicial Members. We are afraid that we cannot take the role of the Legislature. Incidentally, we may also note that even a lawyer with experience in the specialised field has been treated as only a ''Technical Member under Section 85(4)(b). The other submission made regarding the discrepancy under the patent Act as well as the Trade Marks Act qua the qualification also cannot be a ground to declare the provision as unconstitutional. Further, a Court of law will have to do the act of synchronising various enactments to avoid a possible conflict.
Issues Involved:
1. Constitutionality of Section 85 of the Trade Marks Act, 1999. 2. Qualifications and selection process for Chairman, Vice-Chairman, Judicial Member, and Technical Member of the Intellectual Property Appellate Board (IPAB). 3. Role and independence of the judiciary in the selection process. 4. Validity of the Search-cum-Selection Committee's composition. 5. Judicial review and separation of powers. Detailed Analysis: 1. Constitutionality of Section 85 of the Trade Marks Act, 1999: The petitioner challenged the constitutionality of Section 85, arguing it impinges upon the independence of the judiciary and violates the doctrine of separation of powers, thus infringing the basic structure of the Constitution. The court examined the qualifications and selection processes for various positions within the IPAB, referencing Supreme Court decisions to determine if Section 85 aligns with constitutional principles. 2. Qualifications and Selection Process for Chairman, Vice-Chairman, Judicial Member, and Technical Member of IPAB: - Technical Member: The court noted that while the legislature can appoint technical members, their role should be limited. The qualifications for a technical member must include 12 years of practice at the bar or 12 years of experience in a State Judicial Service with a Degree in Law. The court held that a person merely working in the Legal Department of a State Government or teaching law cannot be deemed qualified for the role of a technical member. - Judicial Member: The court found that Section 85(3)(a), which allows members of the Indian Legal Service with three years in Grade I to be appointed as Judicial Members, is unconstitutional. The court emphasized that judicial members must have legal training and experience, and executive officers without such experience cannot fulfill this role. - Vice-Chairman: The court declared Section 85(2)(b), which allows members of the Indian Legal Service with five years in Grade I to be appointed as Vice-Chairman, unconstitutional. The court reiterated that judicial functions should not be entrusted to government officers lacking legal training and experience. - Chairman: The court held that the qualifications for the Chairman should include either being a sitting or retired High Court Judge or meeting the qualifications required for a technical member under Section 85(4)(b). The court emphasized that the Chief Justice of India's recommendations for the Chairman should be given due weightage without requiring approval from the Appointment Committee of the Cabinet. 3. Role and Independence of the Judiciary in the Selection Process: The court stressed the importance of judicial independence and the separation of powers. It highlighted that the judiciary should have a substantial role in the selection process for IPAB members. The court referenced Supreme Court decisions that underscored the need for judicial members to have legal training and experience to ensure the effectiveness and public confidence in the tribunal. 4. Validity of the Search-cum-Selection Committee's Composition: The court found the current composition of the Search-cum-Selection Committee, which is heavily loaded in favor of the Executive, to be unconstitutional. The court directed that the committee should be reconstituted to provide a predominant role to the judiciary in the selection process. The court emphasized that the selection process should involve members of the higher judiciary to maintain the independence and integrity of the tribunal. 5. Judicial Review and Separation of Powers: The court rejected the respondents' argument that the availability of judicial review under Articles 226/227 of the Constitution negates the need for strict adherence to the principles of judicial independence and separation of powers. The court maintained that the IPAB's decisions on factual disputes are significant, and the tribunal's composition must align with constitutional principles to ensure fair and effective adjudication. Conclusion: 1. Section 85(2)(b) of the Trade Marks Act, 1999, is declared unconstitutional. 2. Section 85(3)(a) of the Trade Marks Act, 1999, is declared unconstitutional. 3. The current composition of the Search-cum-Selection Committee is declared unconstitutional, and the committee must be reconstituted to include a predominant role for the judiciary. 4. Only individuals with 12 years of practice at the bar or 12 years of experience in a State Judicial Service with a Degree in Law can be considered for appointment as Technical Members. 5. Only such qualified Technical Members can be considered for the post of Vice-Chairman. 6. For the post of Chairman, the qualifications must align with those required for a Judicial Member or a qualified Technical Member. 7. The Chief Justice of India's recommendations for the Chairman should be given due consideration without requiring approval from the Appointment Committee of the Cabinet. The writ petition was disposed of accordingly, with no order as to costs.
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