Rules for appointing IPAB judicial and technical members found unconstitutional

In January 2011 the Madras High Court admitted a public interest litigation filed by Professor Basheer (Basheer v Union of India, WP 1256 of 2011) challenging:

• the constitutionality of the qualification criteria for persons appointed to the Intellectual Property Appellate Board (IPAB) – in particular, in regard to the appointment of bureaucrats with no judicial or litigation experience as judicial members; and
• the manner of appointment of these members to the IPAB – particularly in regard to the composition of the selection committee as the committee had a majority of members of the executive, with the judiciary having only nominal representation.

The litigation essentially relied on the judgment of the Constitutional Bench of the Supreme Court in Gandhi v Union of India ((2010) 11 SCC 1), in which the Supreme Court struck down some of the provisions pertaining to the appointment of members of the National Company Law Tribunal (NCLT). Since the IPAB was structured on similar lines to the NCLT, it appeared likely that the Madras High Court would strike down several of the offending provisions of the Trademarks Act 1999.

Decision
The Madras High Court's vide order of March 10 2015 held as follows with respect to the challenged provisions of the Trademarks Act:

• The court struck down Sections 85(2)(b) and 85(3)(a) of the act, which allowed for members of the Indian Legal Service (ILS) to be appointed directly as vice chair and the judicial member of the IPAB, respectively, on the grounds that they were unconstitutional. The High Court held that, based on the Supreme Court’s ruling in NCLT, a judicial function cannot be entrusted to bureaucrats who lack judicial experience.
• The court read down Section 85(4)(a) of the act, which allows a joint registrar with 10 years' experience to be appointed as a technical member. The High Court relied on the Supreme Court precedent stated above which held that even technical members should have some judicial experience. Therefore, the High Court held that only joint registrars with a law degree and 12 years' experience in the State Judicial Service could be appointed as technical members. Similarly, the court read down Section 85(2)(a) of the act, which allows a technical member to be promoted to vice chair who can act as both a judicial member and a technical member, to hold that only technical members with 12 years' judicial experience can be appointed to the position of vice chair.
• Finally, the court read down Section 85(1) of the act, which provides that a judge of the High Court or a vice chair with two years' experience can be appointed as chair, to conclude that in the case of technical members, only those members with 12 years' experience and who have served as vice chair could be considered for the position of chair.

In addition, the High Court also held that the selection committee will have to be reconstituted to give primacy to the judiciary and, for the appointment of the chair, the recommendation of the chief justice of India should be given due consideration by the Cabinet appointment committee.   

The petitioner also challenged Section 116 of the Patents Act 1970, which sets out the qualifications for the technical member (patents). However, the High Court did not rule on this issue.

Comment
As an institution, the IPAB has not been declared unconstitutional. It can continue to function as a judicial institution; but since bureaucrats without judicial experience have been virtually barred from appointment to the tribunal, it will be difficult for the government to find persons to sit on the IPAB without amending the existing legislation.