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TMI Blog2022 (4) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... the Executive. The matter was examined by the Division Bench of this court in the case of Shamnad Basheer v. Union of India and others [ 2015 (3) TMI 943 - MADRAS HIGH COURT] and considering the issue that the proceedings before the Tribunal would be judicial in nature, the necessity for appointment of a member from the judiciary or the bar was realized. It was for the reason that prior to constitution of the Tribunal, the adjudication of the issue was by the courts. Therefore, with the constitution of the tribunals, they would be discharging the work earlier discharged by the courts and adopting the Westminister policy which prescribes the qualification akin to that of the judicial officer who has been dealing with such matters prior to the constitution of the tribunal. The necessity and importance of a judicial member and, that too, a person who served as a Judge or a member of the Bar was felt and, accordingly, the Division Bench of this Court held certain provisions of the Trademarks Act, 1999 and the Patents Act, 1970 to be unconstitutional. It is true that the extent of judicial review that can be exercised in a given case is quite limited. Though a constitutional cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial Member should be manned only by a person who served as a Judge or a member of the Bar and not by a member of Indian Legal Service. In view of the above, the provision of Section 32(2)(a) of the Act of 1988 is hit by the said judgment and, thus, challenge to it has been made. 5. Referring to a judgment of the Division Bench on the same issue in Shamnad Basheer v. Union of India and others, 2015 2 LW 941 , the prayer is reiterated because therein a similar challenge was made to Section 85 of the Trademarks Act, 1999, besides Section 116 of the Patents Act, 1970. Section 85 of the Trademarks Act was containing a similar provision for appointment of the Judicial Member as stipulated under Section 32(2)(a) of the Act of 1988. The provisions therein, i.e., Sections 85(2)(b) and 85(3)(a) of the Trademarks Act, 1999, were declared to be unconstitutional as those provisions made a member of the Indian Legal Service eligible for appointment for the post of Chairperson or Judicial Member of the Intellectual Property Appellate Board. 6. A further reference of another judgment of the Division Bench of this court in the case of Revenue Bar Association v. Union of India , 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and has held the post of Additional Secretary or equivalent post in that Service; (b) in the case of an Administrative Member, has been a Member of the Indian Revenue Service and has held the post of Chief Commissioner of Income tax or equivalent post in that Service. (3) No sitting Judge of a High Court shall be appointed under this section except after consultation with the Chief Justice of the High Court. (4) The Chairperson or a Member holding a post as such in any other Tribunal, established under any law for the time being in force, in addition to his being the Chairperson or a Member of that Tribunal, may be appointed as the Chairperson or a Member, as the case may be, of the Appellate Tribunal under this Act. [emphasis supplied] 12. Section 32(2)(a) of the Act of 1988, quoted above, postulates the qualifications for appointment of a Judicial Member and, as per the said provision, a Member of the Indian Legal Service who held the post of the Additional Secretary or equivalent post in that service is eligible for appointment as a Judicial Member in the Appellate Tribunal. In view of the provision aforesaid, other than the member of the Indian Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature, but when the qualification for the post of Judicial Member is to be provided, it should be keeping in mind the independence of the judicial system and, accordingly, the Apex Court while delivering the judgment in the case of Union of India v. R.Gandhi, President, Madras Bar Association , supra, held that only Judges and advocates can be considered for appointment as Judicial Member of the Tribunal. Paragraph 120 of the said judgment is quoted hereunder for ready reference: 120. We may tabulate the corrections required to set right the defects in Parts I-B and I-C of the Act: (i) Only Judges and advocates can be considered for appointment as judicial members of the Tribunal. Only High Court Judges, or Judges who have served in the rank of a District Judge for at least five years or a person who has practised as a lawyer for ten years can be considered for appointment as a judicial member. Persons who have held a Group A or equivalent post under the Central or State Government with experience in the Indian Company Law Service (Legal Branch) and the Indian Legal Service (Grade I) cannot be considered for appointment as judicial members as provided in sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Ministries or Department concerned .... [emphasis supplied] 17. The Apex Court while upholding the creation of the National Company Law Tribunal as well as the Appellate Tribunal held Chapters 1B and 1C of the Companies Act as unconstitutional. The principle laid down in the case of Union of India v. R.Gandhi, President, Madras Bar Association , supra, has application to all the Tribunals and was not rendered on the fact situation alone. It is for that reason a specific direction was given that administrative support for all the Tribunals should be from the Ministry of Law and Justice. The principal issue decided qua the basic structure of constitution ensures the separation of powers and independence of the Judiciary from the clutches of the Executive. 18. The matter was examined by the Division Bench of this court in the case of Shamnad Basheer v. Union of India and others , supra, and considering the issue that the proceedings before the Tribunal would be judicial in nature, the necessity for appointment of a member from the judiciary or the bar was realized. It was for the reason that prior to constitution of the Tribunal, the adjudication of the issue w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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