Back
HIGH COURT OF JUDICATURE AT MADRAS
SANJAY KISHAN KAUL & M.M. SUNDRESH, JJ.
Shamnad Basheer, Ministry of HRD Chair Professor in Intellectual Property Rights West Bengal National University of Juridical Sciences – Appellant
Versus
Union of India, represented by its Secretary, Department of Industrial Policy & Promotion, Ministry of Industry & Commerce, Government of India & Others – Respondent
W.P.No. 1256 of 2011
Decided on: 10-03-2015
Trade Marks Act, 1999 - Section 85 - Companies Act, 1956 – Constitution of India, 1950 – Article 323A and 323B - Post of Chairman – Jurisdiction - In this case a challenge has been made to vires of Administrative Tribunals Act, 1985 – Provisions which contained qualification and appointment of Chairman and an Administrative Member were also tested by Supreme Court - Though decision was consentaneous two judgments have been written one concurring with another giving separate reasons - Office of Chairman for all practical purposes has to be equated with office of the Chief Justice of High Court - Section 6(1)(c) was directed to be omitted which provides for eligibility of a Secretary to Government to be appointed as a Chairman - Such an appointment to post of Chairman will have to be made by a High Powered Committee with a sitting Judge of Supreme Court to be nominated by Chief Justice of India to ensure selection of proper and competent persons - A person sans legal or judicial training and experience would not only fail to inspire confidence in public mind but make Tribunal less effective and efficacious especially when jurisdiction vested in High Court was supplanted by its creation - Therefore when such a supplanting is done it should be filled up with men of legal training and experience - In fitness of things it would be appropriate that a District Judge or an advocate who is qualified to be a Judge of High Court should be regarded as eligible for being Vice-Chairman since existing provisions having been tilted in favor of members of Services – Held, Additional Solicitor General made a submission that Tribunal being a creature of a statute decisions rendered therein are not applicable to present case - A further submission has been made that as power of judicial review is intact under Articles 226 and 227 of Constitution of India situation as that was prevalent in decision rendered is not present in this case - Submissions made do not appeal to us - Determination before IPAB is a judicial one - IPAB is exercising judicial functions – Therefore principles spelt out from decisions referred supra are applicable on all fours - Merely because a discretionary power of judicial review is available under Article 226/227 of Constitution of India to test decision making process it would not mean that respondents are at liberty to have composition of Tribunal as they like violating basic structure of Constitution - High Court in its exercise of power either under Article 226 or Article 227 is not normally supposed to go into inter se factual disputes between parties as power of judicial review is required to be exercised only on decision making process - Viewing from that angle a decision of IPAB on factual dispute acquires more significance - Therefore contentions raised are hereby rejected - IPAB plays a pivotal role in resolving commercial disputes - A good adjudicatory process is a sine qua non for development of Society more so in field 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 needs of various commercial entities - It also creates a good atmosphere of business development and industrial peace - It further enhances reputation of our justice delivery system from point of view of other countries - It brings forth an investors’ confidence - Hence from context of public interest also IPAB has got an eminent role to perform - Senior Counsel for petitioner submitted that lawyers with experience and knowledge ought to be included as Judicial Members - Court are afraid that court cannot take role of Legislature - Incidentally court may also note that even a lawyer with experience in specialized field has been treated as only a Technical Member under Section 85(4)(b) - Other submission made regarding discrepancy under patent Act as well as Trade Marks Act qua qualification also cannot be a ground to declare provision as unconstitutional - Further a Court of law will have to do act of synchronizing various enactments to avoid a possible conflict - Writ petition stands disposed of
Sanjay Kishan Kaul, CJ. & M.M. Sundresh, J.
1. The petitioner has called for our studied 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 also tested by the Supreme Court. Though the decision was consentaneous, two judgments have been written one concurring with another giving separate reasons. The aggregate of it is deduced hereunder:-
The Office of the Chairman for all practical purposes has to be equated with the office of the Chief Justice of High Court. Section 6(1)(c) was directed to be omitted which provides for the eligibility of a Secretary to Government to be appointed as a Chairman. Such an appointment to the post of Chairman will have to be made by a High Powered Committee with a sitting Judge of the Supreme Court to be nominated by the Chief Justice of India to ensure selection of proper and competent persons. A person sans legal or judicial training and experience would not only fail to inspire confidence in the public mind but make the Tribunal less effective and efficacious, especially, when the jurisdiction vested in the High Court was supplanted by its creation. Therefore, when such a supplanting is done it should be filled up with men of legal training and experience. In the fitness of things, it would be appropriate that a District Judge or an advocate, who is qualified to be a Judge of the High Court, should be regarded as eligible for being Vice-Chairman since the existing provisions having been tilted in favour of the members of the Services.
5. Union of India Vs. R.Gandhi, President, Madras Bar Association, ((2010) 11 SCC 1):-
5.1. In this case, a challenge was made to the constitutional validity of Chapters IB and 1C of the Companies Act, 1956 (inserted by Companies (Second Amendment) Act, 2002 which inter alia provide for the constitution of National Company Law Tribunal and the National Company Law Appellate Tribunal. In the said decision, the Supreme Court was pleased to deal with the Westminster Model, selection of the members, including the selection of Chairman and Vice-Chairman, extent of judicial review, independence of judiciary, separation of powers and the role of both judicial and technical members. All these principles have been considered on the touchstone of basic structure, which is one of the fulcrum of the Constitution of India.
5.2. The Independence of Judiciary was dealt with by the Supreme Court in the following paragraphs:
''46. Impartiality, independence, fairness and reasonableness in decision making are the hallmarks of Judiciary. 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
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
