Madras High Court: In a petition filed for the scrutiny of Section 85 of Trade Marks Act, 1999 dealing with the qualification and selection of the Chairman and Judicial Member of the Intellectual Property Appellate Board (IPAB) as violative of the Basic Structure of the Constitution insofar as it is related to the establishment of the IPAB, the Division Bench of S.K. Kaul, C.J. and M.M. Sundresh, J., declared Sections 85 (2) (b) and 85 (3) (a) of Trade Marks Act, 1999, which deals with qualification for a member of Indian Legal Service who held the post of Grade I of service or of higher post at least 5 years to the post of Vice-Chairman and eligibility of a member of the Indian Legal Service who has held the post of Grade I of that Service for at least 3 years for appointment to the post of a Judicial Member in IPAB, as unconstitutional for offending the principles of separation of power and independence of judiciary and being contrary to the Basic Structure of the Constitution.

The issue raised before the Court was that Section 85 of the Trade Marks Act infringes the doctrine of separation of powers and the independence of judiciary as an individual who is not a practicing lawyer is appointed as a technical member and thereafter as Vice-chairman and Chairman; similarly there is a discrepancy between the qualifications of a Registrar under Trade Marks Act and Controller under the Patent Act. The entire administration of the IPAB is controlled by Government and not left to the Chairman. As argued by noted counsel, Arvind Datar on behalf of the petitioner, the scheme governing Section 85 demonstrates executive encroachment within the judicial sphere. On the contrary the Additional Solicitor General G.Rajagopal for the respondents, sought to refute the contentions.

Perusing the contentions, the Court observed that the Supreme Court had clearly stated that Tribunals should be established with similar characteristics and standards of the Court which is to be substituted, thereby protecting Judiciary from the Executive. The Court was of the opinion that the guidelines by the Supreme Court are binding in nature. The Court further observed that the respondents overlooked the directives laid down in Union of India v. R.Gandhi, (2011) 10 SCC 1, as the selection process for the IPAB is entirely in the hands of the Executive, even though the functions of the IPAB are judicial in nature, thus contravening the Basic Structure of the Constitution. The Court therefore declared the constitution of the Appointment Committee as contrary to the basic structure of the Constitution and directed a re-constitution of the Committee by providing a predominant role in the selection process to the Judiciary.  Shamnad Basheer v. Union of India, decided on 10.03.2015

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