A Division Bench of the Madras High Court struck down key provisions relating to the Intellectual Property Appellate Board (IPAB) established under the Trade Marks Act, 1999, as unconstitutional. This is yet another interlude in the tussle between judiciary and the legislature on the “tribunalisation” of courts. There has been much concern over the validity, character and competence of several of the tribunals in India. The Supreme Court has, in a range of decisions, articulated the principles that a tribunal has to abide by in order to be constitutionally valid. A Vidhi Centre for Legal Policy report (2014) has identified about 29 different tribunals set up under various Central legislations, and finds several of them to be inconsistent with the parameters laid down by the Supreme Court. The Court in Chandra Kumar (1997) and NCLT (2010) suggested that the tribunals which were replacing the jurisdiction of the Courts should enjoy the same constitutional protections as them. This meant that when the jurisdiction is being transferred from a court to a tribunal, the members of this tribunal should hold a rank, status and capacity which is as close to those of the judges in a court as possible. The recent Supreme Court judgment which struck down the National Tax Tribunals (NTT) also clearly spelt out the parameters to test the constitutionality of tribunals. Yet, little effort has been made by the legislature in making the law consistent with these constitutional principles. Instead, as the honourable judges have noted, the government continues to be “furtive” and “reticent” about these precedents while the tribunals usurp judicial powers.
At stake are core principles of an independent judiciary and separation of powers, a part of the basic structure of the Constitution. The crux of the present case is with regard to the qualification and selection of Chairman, Judicial Member and Technical Member of the IPAB. For instance, Section 85(3)(a) of the Trade Marks Act allows members of the Indian Legal Service holding a post of Grade 1 for at least three years, for appointment as a Judicial Member of the IPAB. The High Court declared this unconstitutional, suggesting that an officer working with the Executive cannot act in a judicial capacity. It also, inter alia , held that the recommendations of the Chief Justice of India for the post of Chairman had to be given due consideration by the Appointments Committee of the Cabinet (ACC), which until now considered this as a mere suggestion ultimately requiring its own approval. Tribunals are designed for speedy disposal of specialised disputes. But a tribunal which is biased, incompetent and unfair, cause more harm than serve such intended purposes.
