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TMI Blog2015 (3) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... inted 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udied scrutiny of Section 85 of the Trade Marks Act, 1999 (47 of 1999) qua the qualification and selection of Chairman, Judicial Member and Technical Member of the Intellectual Property Appellate Board (in short, ''IPAB'') alleging a grave affront to the basic structure enshrined in the Constitution of India. 2. We have heard Mr.Aravind P.Datar, learned Senior Counsel appearing for the petitioner, Mr.G.Rajagopal, learned Additional Solicitor General assisted by Mr.A.S.Vijayaraghavan, Senior Central Government Standing Counsel for the 1st respondent and Mr.K.Rajasekaran, learned counsel appearing for the 2nd respondent and also perused the written submissions of either side. 3. As the issues that are germane to the writ petition have been substantially dealt with by the Honourable Supreme Court in the cases in point, we would like to highlight the guiding principles enunciated therein. S.P.Sampath Kumar Vs. Union of India (AIR 1987 SC 386):- 4. In this case, a challenge has been made to the vires of the Administrative Tribunals Act, 1985. The provisions, which contained the qualification and appointment of the Chairman and an Administrative Member were al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciary. If 'Impartiality' is the soul of Judiciary, 'Independence' is the life blood of Judiciary. Without independence, impartiality cannot thrive. Independence is not the freedom for Judges to do what they like. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values. It is also the discipline in life, habits and outlook that enables a Judge to be impartial. Its existence depends however not only on philosophical, ethical or moral aspects but also upon several mundane things - security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the Judiciary) and without (from the Executive). ..... 52. Independence of Judiciary has always been recognized as a part of the basic structure of the Constitution (See : Supreme Court Advocates-on-Record Association vs. Union of India - (1993 (4) SCC 441), State of Bihar vs. Bal Mukund Sah,((2000) (4) SCC 640), Kumar Padma Prasad vs. Union of India,((1992) (2) SCC 428) and All India Judges Associat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the judiciary should be separated from the executive and that the agitation was based upon the assumption that unless they were separated, the independence of the judiciary at the lower levels would be a mockery. So Article 50 of the Directive Principles of Policy states that the State shall take steps to separate the judiciary from the executive in the public services of the States. Simply stated, it means that there shall be a separate judicial service free from the executive control. (emphasis supplied) 55. In Indira Nehru Gandhi vs. Raj Narain,(1975 Supp SCC 1), this Court observed that the Indian Constitution recognizes separation of power in a broad sense without however there being any rigid separation of power as under the American Constitution or under the Australian Constitution. This Court held thus : 60. It is true that no express mention is made in our Constitution of vesting in the judiciary the judicial power as is to be found in the American Constitution. But a division of the three main functions of Government is recognised in our Constitution. Judicial power in the sense of the judicial power of the State is vested in the Judiciary. Similarly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ihar vs. Bal Mukund Shah, ((2000) 4 SCC 640) and I.R. Coelho vs. State of Tamil Nadu, ((2007) 2 SCC 1).'' 5.4. The Supreme Court then proceeds to state that 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. Coming to the role of a technical member, it was held that such a member should be a person with expertise in the field of law, rather than a mere experience in civil service. A word of ''caution'' was sounded as an extrapolation qua the control of the Tribunal by the Executive by filling up the posts of technical members with its officers. It was also observed that the prescription of qualification/eligibility criteria by the Legislature is subject to judicial scrutiny. Accordingly, the provisions which paved the way for the appointment of technical member without adequate experience in law by merely being holder of a office were held to be bad. The Supreme Court went on to hold that the function of the Tribunal, being judicial, primacy should be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be considered as 'experts' qualified to be appointed as Technical Members. Therefore Clauses (a) and (b) of sub-section (3) are not valid. (iv) The first part of clause (f) of sub-section (3) providing that any person having special knowledge or professional experience of 15 years in science, technology, economics, banking, industry could be considered to be persons with expertise in company law, for being appointed as Technical Members in Company Law Tribunal, is invalid. (v) and (vi) ..... (vii) Only Clauses (c), (d), (e), (g), (h), and later part of clause (f) in sub- section (3) of section 10FD and officers of civil services of the rank of the Secretary or Additional Secretary in Indian Company Law Service and Indian Legal Service can be considered for purposes of appointment as Technical Members of the Tribunal. (viii) Instead of a five-member Selection Committee with Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and Secretary in the Ministry of Law and Justice as members mentioned in section 10FX, the Selection Committee should broadl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been created to supplant the functions of the High Court. It has been held that the members of the Tribunals discharging judicial functions could only be selected from among those who possess expertise in law and competent to discharge judicial functions. The role of a technical member is meant to use his expertise in the relevant field and not otherwise. 6.3. The following passage deals with the understanding of the Supreme Court of the earlier judgment of Union of India Vs. Madras Bar Association, ((2010) 11 SCC 1): ''107. In Union of India v. Madras Bar Assn., ((2010) 11 SCC 1), all the conclusions/propositions narrated above were reiterated and followed, whereupon the fundamental requirements which need to be kept in mind while transferring adjudicatory functions from courts to tribunals were further crystallised. It came to be unequivocally recorded that tribunals vested with judicial power (hitherto before vested in, or exercised by courts) should possess the same independence, security and capacity, as the courts which the tribunals are mandated to substitute. The members of the tribunals discharging judicial functions could only be drawn from sources possessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain the rule of ''separation of powers'' to prevent any encroachment by the legislature or the executive.'' 6.4. The Supreme Court once again reiterated the position that the proceedings before the Tribunal are judicial in nature and accordingly it adopted the Westminster policy, which prescribes the qualification akin to that of a judicial officer who was dealing with such matters prior to the creation of a Tribunal. Thus, it was held that a Tribunal will have to be established with the similar characteristics and standards of the Court, which is sought to be substituted. The following passage would be relevant in this regard: ''113.2. We have given our thoughtful consideration to the submission advanced at the hands of the learned counsel for the petitioners insofar as the first perspective is concerned. We find substance in the submission advanced at the hands of the learned counsel for the petitioners, but not exactly in the format suggested by the learned counsel. A closer examination of the judgments relied upon lead us to the conclusion, that in every new Constitution, which makes separate provisions for the legislature, the executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused by good intention (by which the legislative power had been exercised to enact a given law). We are satisfied, that the aforesaid exposition of law is in consonance with the position expressed by this Court while dealing with the concepts of ''separation of powers'', the ''rule of law'' and ''judicial review''. In this behalf, reference may be made to the judgments in L.Chandra Kumar case, ((1997) 3 SCC 261), as also Union of India v. Madras Bar Association, ((2010) 11 SCC 1). Therein, this Court has recognised 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. In recording our conclusions on the submission advanced as the first perspective, we may only state that our conclusion is exactly the same as was drawn by us while examining the petitioners' previous submission, namely, that it is not possible for us to accept that under recognised constitutional conventions, judicial power vested in superior courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent, Madras Bar Association, ((2010) 11 SCC 1). What was sought to be avoided by the Supreme Court in the earlier decisions has come into being and the Tribunal is functioning at times with the majority of technical members. The role of ''technical member'' impinges upon the independence of the judiciary. A person without practising as a lawyer is sought to be appointed as a technical member and thereafter as Vice-Chairman and Chairman merely based on the office held by him earlier, which is totally illegal. There is a discrepancy between the qualification of a Registrar under the Trade Marks Act and a Controller under Patent Act. In view of the same, a person with lesser number of years of service is likely to be appointed without adequate qualification. The consultative procedure under Section 85(6) of the Trade Marks Act is illusory, as the consultation with the Chief Justice of India for appointment of Chairman is made subject to the approval of the appointment Committee of the Cabinet. The entire administration of the IPAB is controlled by Government and not left to the Chairman. The scheme governing Section 85 would demonstrate imposition of Executive within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es as they stood on that day a fortiori would be applicable to all other cases as well. We are also of the view that a Court of law has to strive to bring forth a statutory harmony. The process might require at times a judicial craftsmanship to alleviate the possible difficulties. Thus, we approach this case with the above premise. 9.2. At this juncture, we may point out that during the course of hearing, we made a suggestion to the learned Additional Solicitor General to inform the 1st respondent to have a re-look at the impugned provisions and take remedial measures in the light of the two decisions referred supra. During the subsequent hearing, we were informed that the 1st respondent was not willing to undertake the said exercise. Accordingly, we proceeded to decide the matter on merits. 9.3. Constitution of the Committee:- Before dealing with the qualifications for appointment as Chairman, Vice-Chairman and Members of IPAB, we would like to first deal with the constitution of the Committee meant for appointments to the Board. A Search-cum-Selection Committee has been constituted based on the guidelines of the Government as contained in the Department of Personnel and Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (xiii) of its conclusion in Union of India Vs. R.Gandhi, President, Madras Bar Association, ((2011) 10 SCC 1) with regard to the composition are binding on the 1st respondent and therefore they ought to have followed the same. The Committee as it exists today is packed with an over-dose of Executive with the lone voice of the Chairman of IPAB is restricted to that of a member. 9.5. Apropos recommendation of search cum selection committee required to be approved by the appointment Committee of the Cabinet for the post of Vice-Chairman and other members, we hold that the said methodology is also totally unconstitutional as it impinges upon the independence of the judiciary. Therefore, such an yardstick prescribed is also struck down in the light of the decisions of the Supreme Court referred supra. This exercise is done to alleviate the concern and to see that the independence of the judiciary is not destroyed by an indirect method. We also draw our support from the following passage of the judgment of the Supreme Court in the case of State of Maharashtra v. Labour Law Practitioners' Association, ((1998) 2 SCC 688). 9.6. We are quite aware of the settled position of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.'' Technical Member:- 9.10. The Supreme Court in Madras Bar Association Vs. Union of India ((2014) 10 SCC 1), 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. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution or under an Act of legislature are creatures of the Statute and in no case claim the status as Judges of the High Court or parity or as substitutes. However, the personnel appointed to hold those offices under the State are called upon to discharge judicial or quasi-judicial powers. So they must have judicial approach and also knowledge and expertise in that particular branch of constitutional, administrative and tax laws. The legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage and teeth would definitely impair the efficacy and effectiveness of the judicial adjudication. It is, therefore, necessary that those who adjudicate upon these matters should have legal expertise, judicial experience and modicum of legal training as on many an occasion different and complex questions of law which baffle the minds of even trained judges in the High Court and Supreme Court would arise for discussion and decision. 9.13. The said judgment has also been taken note of in Madras Bar Association Vs. Union of India ((2014) 10 SCC 1) as held above. Accordingly, we hold that under Section 85(4)(a), a person holding the post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ((2011) 10 SCC 1). Insofar as Section 85(3)(b) is concerned, there is neither any challenge nor do we find any unconstitutionality in it. Vice-Chairman:- 9.15. Sub-section 85(2)(b) provides for the qualification for appointment as a Vice-Chairman qua a member of Indian Legal Service, who held a post of Grade I of that service or any higher post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue on hand. Learned counsel appearing for the petitioner submitted that an attempt is being made to sit over the decision of the Chief Justice of India by subjecting it to the approval of the appointment Committee of the Cabinet. Again, at the cost of repetition, we reiterate that the principle, as we understand in the decision rendered in R.Gandhi's case, would govern this issue as well. The word ''consultation'' has got a different connotation on different fact situations. If we are to interpret the same on the touchstone of separation of powers, judicial independence and basic structure, then the only irresistible conclusion that could be arrived at is that the view of the Chief justice of India in the appointment of Chairman should be taken note of in the proper perspective. 9.19. The Supreme Court in N.Kannadasan Vs. Ajay Khose and others, ((2009) 7 SCC 1) held that meaning of ''consultation'' may differ in different situations depending on the nature of statute. It was further held that the proposal for appointment of President of State Commission must be initiated by the Chief Justice. Before us, there is no material on the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process is a sine qua non for the development of the Society, more so, in the filed 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. 9.22. 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 unconsti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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