The independence of specialist tribunals must be ensured. But this is not happening, as the functioning of the Intellectual Property Appellate Board shows

Delivering the V.M. Tarkunde Memorial lecture on “An Independent Judiciary” in November 2011, Ruma Pal, a former Judge of the Supreme Court, said: “In a Kalidas-like action of cutting the branch of the Constitutional tree on which the judiciary is sitting and what in less picturesque language one can describe as a judicial sell-out to the Executive, the Supreme Court has upheld the legislations establishing tribunals in a number of decisions subject to certain ‘adjustments’ in the law which are more in the nature of sops to the concept of judicial independence rather than an assertion of it.”

But specialist tribunals have come to stay. Speedy disposal of cases is the prime aim. However, there are questions which must be addressed relating to their independence, judges’ role in appointing its members, and the presence of non-judicial members, which dilute judicial character. Tribunals must be institutionally as strong as the courts they replace.

Impartiality, independence, fairness and reasonableness in decision-making are characteristic of the judiciary, and, equally, of these tribunals. This is possible only if members are independent persons who can act without fear or favour. Tribunals’ dependence on the sponsoring or parent department for infrastructure facilities or personnel also undermines their independence. In L. Chandra Kumar vs The Union of India & Ors (1997), the Supreme Court said an independent agency for the administration of tribunals must be set up, and it would be appropriate that the Ministry of Law oversees it. This has not been done.

On their workings

In Union of India vs. R. Gandhi (2010), the Supreme Court looked at the working of tribunals closely. It said that when the existing jurisdiction of a court is transferred to a tribunal, its members should be persons of a rank, capacity and status as nearly as possible equal to the rank, status and capacity of the court which was till then dealing with such matters. It wanted only persons with a judicial background, that is, those who have been or are Judges of the High Court, and lawyers with the prescribed experience, who are eligible for appointment as High Court Judges, to be considered for appointment as judicial members. The judgment underscored the importance of having a good, able and impartial adjudicator, and said that even an officer with a lifetime of experience in administration may not have the above qualities. A member who is drawn from the department may not satisfy the perception of impartiality.

Independence

The independence of tribunals must be guarded. The judgment in R. Gandhi contains directions to preserve the independence, and one of them is: “The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department.” This direction remains unheeded.

The Intellectual Property Appellate Board (IPAB) is an example. The High Court’s jurisdiction over IP rights was transferred to it. Therefore, IPAB members must have the rank, capacity and status as nearly equivalent to that of a High Court judge. Disputes of such moment come before the IPAB that sometimes even if a case is adjourned there is an echo outside India. Recent cases concerning drugs such as Pegasys, Nexavar, and Combigan were avidly followed abroad, and commented upon and criticised. There is no other court or tribunal in India, including, I dare say, the Supreme Court, whose proceedings have trans-border tremors. When the IPAB removed a drug patent, one side cried with despair as if Doomsday was upon us, and the other side cheered as if “Fiat Sanitas” had been pronounced. The truth is simply that the invention in question was found to be unworthy of a patent under Indian law. IP litigation has a strong public interest component, and decisions could affect the lives of millions. In every dispute, the interest of the unseen public is impacted in a seemingly adversarial litigation. This is so whether the dispute is over trademarks, patents or geographical indications — the three IP rights under the IPAB’s jurisdiction.

Today, a technical member of the IPAB who is not qualified to be a judicial member as set down by R. Gandhi, can become its Chairman. This stands judicial independence on its head. Hoffman La-Roche vs. Cipla was decided by the Delhi High Court, the Novartis judgment was decided by the Supreme Court, and the technical assistance required was provided by the Bar. The courts and the IPAB can always seek technical assistance by inviting experts to give evidence. So, more than the specialist brain it is judicial wisdom that is important. In any event, the IPAB Bench must always be headed by a judicial member, who has been or is a High Court judge, or a lawyer qualified to be appointed as one. Professor Shamnad Basheer filed a writ petition before the Madras High Court, and one of the prayers is that the R. Gandhi directions be followed. This is incontestable. The case is three years old. In Ammini Karnan vs. Intellectual Property Appellate Board, a Division Bench of the Madras High Court indicated that R. Gandhi be complied with.

Committee composition

The next grave infraction is the composition of the search-cum-selection committee to select the IPAB vice-chairman and technical members. This committee must be headed by the IPAB Chairman to preserve judicial independence. But it is headed by the Secretary IPP; the Chairman, a former High Court judge, is a member. The impropriety was brought to the Ministry’s and the Delhi High Court’s notice (Union of India v. Sanjeev Kumar Chaswal). Yet, a technical member was recently selected by a committee at a meeting where the Chairman did not take part.

The Chairman of the IPAB has filed a report before the Madras High Court highlighting the IPAB’s “congenital defects”. These include the government’s failure to conduct a ‘judicial impact assessment’ to assess resources required by the IPAB, inadequacy of staff, absence of pay parity for the staff and the insufficient infrastructure. For its circuit sittings, IPAB sometimes uses the space in the IPO whose orders are appealed before it.

The IPAB is not well-equipped to ensure swift and speedy disposal of cases. Infrastructure strength, including in terms of the number of members, has not been stepped up to match the increase in the number of cases. More important, since there is no appeal against an IPAB order, every decision can be challenged. As a result, there are writ petitions against orders, then appeals and special leave petitions. The jurisdiction earlier exercised by the High Court comes back to it in different clothes. The numbers do not change. So it is a long time before the fate of a contested trademark or patent reaches finality.

If the IPAB is not made judicially and institutionally independent and empowered, this jurisdiction may as well be restored to the High Court with special IP Benches. That will serve better the cause of justice, the intellectual property jurisprudence and the public interest.

(Prabha Sridevan, a former Judge of the Madras High Court, was Chairman of the Intellectual Property Appellate Board from May 2011 to August 2013.)

Correction

>>A sentence in “Whose tribunal is it anyway?” (Nov. 15, 2013, Op-Ed page) read: “In L. Chandra Kumar vs The Union of India & Ors (1994), the Supreme Court said an independent agency for the administration of tribunals must be set up …” It should have been L. Chandra Kumar vs The Union of India & Ors (1997) .

Keywords: Supreme CourtIPAB

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