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TMI Blog2015 (3) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 traini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfluences and pressures within (from others in the Judiciary) and without (from the Executive). ..... 52. Independence of Judiciary has always been recognized as a part of the basic structure of the Constitution (See : Supreme Court Advocates-on-Record Association vs. Union of India - (1993 (4) SCC 441), State of Bihar vs. Bal Mukund Sah,((2000) (4) SCC 640), Kumar Padma Prasad vs. Union of India,((1992) (2) SCC 428) and All India Judges Association vs. Union of India,((2002) (4) SCC 247).'' 5.3. The concept of separation of powers was dealt with in extenso after taking note of the decisions rendered in Indira Nehru Gandhi Vs. Raj Narayan, (1975 Supp SCC 1) and L.Chandra Kumar Vs. Union of India, ((1997) 3 SCC 261). Accordingly, it was reiterated that doctrine of separation of powers is part of the basic structure of the Constitution. The following paragraphs are apposite: ''53. In Ram Jawaya Kapur vs. State of Punjab,(AIR 1955 SC 549 = (1955) 2 SCR 225), this Court explained the doctrine of separation of powers thus : (AIR p.556, para 12) "12. ..... The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Constitution or under the Australian Constitution. This Court held thus : "60. It is true that no express mention is made in our Constitution of vesting in the judiciary the judicial power as is to be found in the American Constitution. But a division of the three main functions of Government is recognised in our Constitution. Judicial power in the sense of the judicial power of the State is vested in the Judiciary. Similarly, the Executive and the Legislature are vested with powers in their spheres. Judicial power has lain in the hands of the Judiciary prior to the Constitution and also since the Constitution. It is not the intention that the powers of the Judiciary should be passed to or be shared by the Executive or the Legislature or that the powers of the Legislature or the Executive should pass to or be shared by the Judiciary. (SCC pp. 44-45, para 60) * * * "555. .... '[The] Constitution' has a basic structure comprising the three organs of the Republic: the Executive, the Legislature and the Judiciary. It is through each of these organs that the sovereign will of the people has to operate and manifest itself and not through only one of them. None of these thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It was also observed that the prescription of qualification/eligibility criteria by the Legislature is subject to judicial scrutiny. Accordingly, the provisions which paved the way for the appointment of technical member without adequate experience in law by merely being holder of a office were held to be bad. The Supreme Court went on to hold that the function of the Tribunal, being judicial, primacy should be given to judicial members. 5.5. The constitution of the selection Committee was also dealt with. The provision, which paved way for the five member selection Committee, was found not acceptable. Accordingly, it was duly re-constituted assigning a predominant role to the judiciary. The Supreme Court pointed out the necessary corrections to be brought forth. Some of them, which are apposite for our case, are placed below:- ''(i) Only Judges and Advocates can be considered for appointment as Judicial Members of the Tribunal. Only the High Court Judges, or Judges who have served in the rank of a District Judge for at least five years or a person who has practised as a Lawyer for ten years can be considered for appointment as a Judicial Member. Persons who have held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appointment as Technical Members of the Tribunal. (viii) Instead of a five-member Selection Committee with Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and Secretary in the Ministry of Law and Justice as members mentioned in section 10FX, the Selection Committee should broadly be on the following lines: (a) Chief Justice of India or his nominee - Chairperson (with a casting vote); (b) A senior Judge of the Supreme Court or Chief Justice of High Court - Member; (c) Secretary in the Ministry of Finance and Company Affairs - Member; and (d) Secretary in the Ministry of Law and Justice - Member. (xiii) Two-Member Benches of the Tribunal should always have a judicial member. Whenever any larger or special benches are constituted, the number of Technical Members shall not exceed the Judicial Members.'' The Supreme Court, while upholding the creation of National Company Law Tribunal as well as Appellate Tribunal, held Chapters 1B and 1C of the Act as unconstitutional. 5.6. The said judgment reveals that the principles laid down therein have got app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e further crystallised. It came to be unequivocally recorded that tribunals vested with judicial power (hitherto before vested in, or exercised by courts) should possess the same independence, security and capacity, as the courts which the tribunals are mandated to substitute. The members of the tribunals discharging judicial functions could only be drawn from sources possessed of expertise in law and competent to discharge judicial functions. Technical members can be appointed to tribunals where technical expertise is essential for disposal of matters, and not otherwise. Therefore, it was held that where the adjudicatory process transferred to tribunals did not involve any specialised skill, knowledge or expertise, a provision for appointment of technical members (in addition to, or in substitution of judicial members) would constitute a clear case of delusion and encroachment upon the independence of the judiciary and the ''rule of law''. The stature of the members, who would constitute the tribunal, would depend on the jurisdiction which was being transferred to the tribunal. In other words, if the jurisdiction of the High Court was transferred to a tribunal, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first perspective is concerned. We find substance in the submission advanced at the hands of the learned counsel for the petitioners, but not exactly in the format suggested by the learned counsel. A closer examination of the judgments relied upon lead us to the conclusion, that in every new Constitution, which makes separate provisions for the legislature, the executive and the judiciary, it is taken as acknowledged/conceded that the basic principle of ''separation of powers' would apply. And that, the three wings of governance would operate in their assigned domain/province. The power of discharging judicial functions which was exercised by members of the higher judiciary at the time when the Constitution came into force should ordinarily remain with the court, which exercised the said jurisdiction at the time of promulgation of the new Constitution. But the judicial power could be allowed to be exercised by an analogous/similar court/tribunal with a different name. However, by virtue of the constitutional convention while constituting the analogous court/tribunal it will have to be ensured that the appointment and security of tenure of Judges of that court would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been transferred. In recording our conclusions on the submission advanced as the first perspective, we may only state that our conclusion is exactly the same as was drawn by us while examining the petitioners' previous submission, namely, that it is not possible for us to accept that under recognised constitutional conventions, judicial power vested in superior courts cannot be transferred to coordinate courts/tribunals. The answer is, that such transfer is permissible. But whenever there is such transfer, all conventions/customs/practices of the court sought to be replaced have to be incorporated in the court/tribunal created. The newly created court/tribunal would have to be established in consonance with the salient characteristics and standards of the court which which is sought to be substituted.'' 6.5. The following are the conclusions of the Supreme Court on the Westminster model and the basic structure: ''136. (iii) The ''basic structure'' of the Constitution will stand violated if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure that the newly created court/tribunal conforms with the sali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Marks Act is illusory, as the consultation with the Chief Justice of India for appointment of Chairman is made subject to the approval of the appointment Committee of the Cabinet. The entire administration of the IPAB is controlled by Government and not left to the Chairman. The scheme governing Section 85 would demonstrate imposition of Executive within the judicial sphere. The learned Senior Counsel concluded his argument by sprinkling with the references which we dealt with already. Respondents:- 8.2. Learned Additional Solicitor General sought to distinguish the decisions rendered by the Supreme Court by stating that the power of judicial review over a decision rendered by the IPAB available to the High Court under Article 226/227 has not been taken away and as such the decisions of the Supreme Court do not have any application. Even on the principle of law, the earlier decisions of the Supreme Court do not have any application. Specific qualifications have been prescribed for the Registrars. They hold Law Degrees apart from other requisite qualifications. Therefore, it cannot be said that they cannot be allowed to function either as Technical members, Vice-Chairman and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing with the qualifications for appointment as Chairman, Vice-Chairman and Members of IPAB, we would like to first deal with the constitution of the Committee meant for appointments to the Board. A Search-cum-Selection Committee has been constituted based on the guidelines of the Government as contained in the Department of Personnel and Training. The Search-cum-Selection Committee constituted recently comprises - (1) Secretary - Department of Industrial Policy and Promotion - Chairman (2) Chairman, Intellectual Property Appellate Board - Member (3) Secretary - Department of Legal Affairs - Member (4) Director General, Council for Scientific and Industrial Research - Member. Based on the recommendations of the Search-cum-Selection Committee, as per qualification stipulated in Section 85(2) of Trade Marks Act, 1999 and subject to approval of Appointment Committee of Cabinet, appointments are made to the posts of Vice Chairman and Technical Members. 9.4. As the Constitution of the Committee, as referred above, is obviously loaded in favour of Executive, which is impermissible in law, as held by the Supreme Court in the judgments referred above, the then Chairman of IPAB ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to see that the independence of the judiciary is not destroyed by an indirect method. We also draw our support from the following passage of the judgment of the Supreme Court in the case of State of Maharashtra v. Labour Law Practitioners' Association, ((1998) 2 SCC 688). 9.6. We are quite aware of the settled position of law that a Court of law is required to adopt a dignified reluctance before contemplating to enter upon the field earmarked for the Legislature or Executive, as the case may be. Composition of Search-cum-Selection Committee is the function entrusted to the 1st respondent. However, in the light of the principles deduced from the judgments of the Supreme Court referred supra, we may state with conviction that such a composition should exhibit the leading role of the judiciary. Thus, we feel that the 1st respondent may consider inclusion of judges from the higher judiciary signalling its greater participation, rather than filling the Committee from the Executive. Section 2(k) of the Trade Marks Act, 1999:- 9.7. Section 2(k) of the Trade Marks Act, 1999 defines a ''judicial member'', which is as follows:- ''Judicial Member" means a Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dras Bar Association Vs. Union of India ((2014) 10 SCC 1), after taking note of the earlier decisions was pleased to hold that the role of a technical member is rather limited. Though the Legislature has got a power to appoint technical member, it has to decide its necessity first. Considering the nature of the Tribunal and the steps that are being dealt with, we do not find any error in the provisions, which require appointment of a technical member. 9.11. The qualification for the post of Senior Joint Registrar of Trade Marks and Geographical Indications is prescribed hereunder: ''(i) Degree in Law from a recognised University; (ii) Twelve years practice at a Bar or Twelve years experience in a State Judicial Service or in the Legal Department of a State Government or of the Central Government or in the processing of applications for registration filed under the Trade Marks Act or Geographical Indications Act or in teaching law in a recognised University or Institute. or Masters Degree in Law of a recognised University with ten years' experience in teaching law or in conducting research in law in a recognised University or Research Institution.'' 9.12. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and Supreme Court would arise for discussion and decision. 9.13. The said judgment has also been taken note of in Madras Bar Association Vs. Union of India ((2014) 10 SCC 1) as held above. Accordingly, we hold that under Section 85(4)(a), a person holding the post of not less than the post of Joint Registrar can be qualified for appointment as Technical Member only when he was appointed in the said post of Joint Registrar with 12 years of practice in a State Judicial Service and not otherwise. The said reasoning has been arrived at in order to create a statutory harmony between the various provisions contained in Section 85. We believe by re-defining the qualification there may not be any difficulty for such a technical member with the qualification of a practising lawyer to be considered for a post of Vice-Chairman and then Chairman, being on par with the judicial member. As suggestions have already been made by the Supreme Court in S.P.Sampath Kumar Vs. Union of India (AIR 1987 SC 386) and Union of India Vs. R.Gandhi, President, Madras Bar Association, ((2011) 10 SCC 1) about the entitlement of a practising lawyer with ten years and the parameters prescribed are also satisfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenge nor do we find any unconstitutionality in it. Vice-Chairman:- 9.15. Sub-section 85(2)(b) provides for the qualification for appointment as a Vice-Chairman qua a member of Indian Legal Service, who held a post of Grade I of that service or any higher post for at least for five years. The reasons assigned by us in the preceding paragraphs would a fortiori apply to this provision as well. Here again, a judicial function is sought to be entrusted to an Officer of a Government. Accordingly, we hold that the said provision is unconstitutional, as such member do not have legal training and experience in discharging a judicial function. 9.16. Coming to Section 85(2)(a), which deals with the qualification for appointment as Vice-Chairman for a person with prescription of at least two years in the office of judicial Member or technical member. The definition of ''judicial member'' includes ''Chairman and Vice-Chairman'' as a deeming provision by which a Chairman and Vice Chairman as the case may be, will have to be construed as judicial member for the purpose of discharging functions in the said capacity. Perhaps, this definition has been introduced t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' may differ in different situations depending on the nature of statute. It was further held that the proposal for appointment of President of State Commission must be initiated by the Chief Justice. Before us, there is no material on the procedure governing the appointment of Chairman. Therefore, we are not in a position to go into its correctness. However, we have no hesitation in holding that the view of the Chief Justice of India on the choice of selection to the post of Chairman should be given due weightage. Thus, we hold that the procedure adopted in seeking ''approval'' by the appointment committee of Cabinet is illegal. From the counter affidavit it is seen that the word ''consultation'' has been taken as recommendations of the Chief Justice of India. Therefore, we can infer that the recommendations are being made by the Chief Justice of India. Thus, we hold that the recommendations of the Chief Justice of India should have primacy, subject to the approval of the President. Such a recommendation is required to be considered in its perspective in the normal circumstances. On further submissions: 9.20. Learned Additional Solicitor Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly a ''Technical Member" under Section 85(4)(b). The other submission made regarding the discrepancy under the patent Act as well as the Trade Marks Act qua the qualification also cannot be a ground to declare the provision as unconstitutional. Further, a Court of law will have to do the act of synchronising various enactments to avoid a possible conflict. 10. Summation:- (1) Sub-section 2(b) of Section 85, which provides for a qualification qua a member of Indian Legal Service who held the post of Grade I of service or of higher post at least five years to the post of Vice-Chairman is declared unconstitutional, being an affront to the separation of powers, independence of judiciary and basic structure of the Constitution. (2) Section 85(3)(a) of the Trade Marks Act, 1999, which provides for the eligibility of a member of the Indian Legal Service and has held the post of Grade I of that Service for at least three years for qualification for appointment to the post of a Judicial Member in IPAB, is declared as unconstitutional, being contrary to the basic structure of the Constitution, (3) The Constitution of the Committee for the appointment of members, both for the Vic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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