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The Tribunal Warrior

Published on Sat, Mar 14,2015 | 16:35, Updated at Mon, Mar 16 at 17:56Source : CNBC-TV18 |   Watch Video :

Over the last decade, Supreme Court Senior Counsel Arvind Datar has been fighting a winning battle against India’s tribunals – their composition and hence, ability to pass judicial orders. In 2010, his arguments on behalf of petitioner Madras Bar Association and against Company Law Tribunals prompted the Supreme Court to lay down guidelines for the functioning of tribunals – this is the famous R. Gandhi case. In 2014, he argued on behalf of the Madras Bar Association against the National Tax Tribunal and won. The Supreme Court declared the National Tax Tribunal Act unconstitutional. The Madras Bar Association and Arvind Datar have also challenged the validity of the National Company Law Tribunal & Appellate Tribunal as under the Companies Act, 2013 – and that petition has now been referred to the Supreme Court’s constitution bench. This week, ‘tribunal warrior’, Arvind Datar had another victory. The Madras High Court has struck down as unconstitutional several provisions determining the selection and qualification of members on the Intellectual Property Appellate Board – IPAB. To discuss the highlights of this decision and the fate of all tribunals in India – CNBC-TV18's Menaka Doshi speaks to the man himself – Arvind Datar!


Madras Bar Association challenges creation of NCLT & NCLAT
SC lays down guidelines for functioning of all tribunals

Counsel For Petitioner


Madras Bar Association challenges National Tax Tribunal Act
SC declares National Tax Tribunal Act unconstitutional

Counsel For Petitioner


Madras Bar Association challenges NCLT & NCLAT (Companies Act, 2013)
SC refers matter to Constitution Bench

Counsel For Petitioner


Shamnad Basheer challenges Trademarks Act provisions on IPAB
Madras HC finds provisions unconstitutional

Counsel For Petitioner

Doshi: Let me start by asking you to layout in your own words your case against the Intellectual Property Appellate Board (IPAB) what was foul at the Intellectual Property Appellate Board?

Datar: This public interest litigation was filed by Shamnad Basheer, who was then at the National University of Juridical Sciences in Calcutta. We moved the writ petition basically because of the appalling conditions in which the tribunal was functioning. They did not have proper premises. They did not have proper service conditions and most important of all the entire selection process was absolutely appalling. There was no proper selection committee there were no guidelines as to who could be members and so on.

So, we challenged the relevant provisions which dealt with the composition of the tribunal. It consists of a technical member and a judicial member and without going into legal details, what basically happened was they could appoint members of the bureaucracy, the Indian Legal Service as members who could ultimately become Chairman. We had a situation where they could be virtually no person with judicial experience manning the tribunal and mind you this is a tribunal which deals with extremely important cases dealing with patent law, trademark law and so on. Such a tribunal did not have a mandate that it must have judicially trained persons. We challenged those provisions and the Madras High Court has now struck down the qualification requirements of the technical member, the judicial member and also the vice chairman.

Basically all the cases being dealt by the High Court and patent law, trademark law have been shifted to the tribunal, most of the cases. We argued that the tribunal must have a judicial flavour, must have a judicial composition. They are going to decide very important cases on interpretation, patent law and trademark law. You can not have retired civil servants dealing with these cases.

IPAB 2.0!

Madras HC
-    Search cum Selection Committee loaded in favour of Executive
-    Govt will have to re-constitute the Committee
-    Committee recommendations don't need Cabinet approval

IPAB 2.0!

Madras HC
-    Trade Marks Act Section 85(4)(a) read down
-    Prescribes new minimum criteria for selection as Technical member

IPAB 2.0!

Madras HC
Indian Legal Service member =  not sufficient criteria for Judicial Member selection
Trade Marks Act Section 85(3)(a) declared unconstitutional

IPAB 2.0!

Madras HC
Indian Legal Service member =  not sufficient criteria for Vice Chairman selection
Trade Marks Act Section 85(2)(b) declared unconstitutional

Doshi: Just to reiterate what the Madras High Court has said in its discussion, this is for our viewers, it said with regards to the Search cum Selection Committee that it was loaded in favour of the Executive and hence, the government will have to re-constitute the committee providing a predominant role in the selection process to the judiciary.

With regards to the appointment and qualification of the technical members, it has prescribed new minimum criteria for that position. With regards to the appointment and qualification of a judicial member you made a reference to a member of the Indian Legal Service being appointed as judicial members it has struck down that provision or section of the law as unconstitutional and being contrary to the basic structure of the constitution.

With regards to the appointment of the Vice Chairman, again that provision of the Trademarks Act, has been declared unconstitutional being an affront to the separation of powers independence of judiciary and basic structure of the constitution.

I want to ask you what this will mean for the functioning of the IPAB hereon. Do you expect that these changes that the Madras High Court has asked for will take place immediately or do you expect that this will get appealed in the Supreme Court and somehow get clubbed with the other cases that pertain to tribunals?

Datar: Theoretically, the Union of India can file an appeal to the Supreme Court and it may get tagged along with the cases of the National Company Tribunal and the Arm Forces Tribunal. However, I feel that there would ill advised because what the Madras High Court has done is it has merely followed the principles laid down in the Madras Bar Association case both in the context of the National Company Law Tribunal and the National Taxation Tribunal. So, they have laid down guidelines as to how the selection committee must be formed, how the members must have a judicial training and judicial qualifications and so on. 

Since the Madras High Court has followed the two Constitution bench decisions, I think it would be better if they amend section 85 of the Trademarks Act to bring it in alignment with the Supreme Court principles if that can be done it will be easier and better for everybody.

Doshi: If the Madras High Court’s decisions or directions are not complied by the government, do you expect that the decisions made by the IPAB, the orders it passes themselves will come under scrutiny because the constitution of the IPAB as it currently is has been held unconstitutional in several ways by the Madras High Court.

Datar: The point is the present members of the IPAB, the present Chairman, the IPAB can go on they can decide cases in the present form this act has been struck down. So, in future the selections can not be made under these sections but you can be rest assured that whatever cases are now pending and are now being decided by the existing IPAB will be valid decision. They will be no infirmity in those judgments in those orders.

Doshi: You have been fighting against the way tribunals are constituted and hence their ability to pass judicial orders for over a decade now and even though the Supreme Court laid down clear guidelines in the R Gandhi case we have had even new tribunals like the National Company Law Tribunal not necessarily abiding by those guidelines at least that has been your argument. That case is now been referred to a Constitution bench. What do you foresee as the outcome, the impact on how tribunals run across the country?

IPAB 2.0!

SC: Chandra Kumar Case, 1997
'It is desirable that all such Tribunals should be, as far as possible, under a single nodal ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law'

Datar: It is not just ten years. As early as 1997, the Supreme Court in the Chandra Kumar Case said that all tribunals must come under the Law Ministry. Now tribunals are going to replace the high courts in many cases like it is a company tribunal or the taxation tribunal. What was been done by the High Court is now going to be done by the tribunal.

At the very least such a tribunal must have some independence, it should not be under the Finance Ministry. So, we have been fighting for the point that look this is the judgment delivered in 1997 now it is almost 18 years have passed. The first thing is tribunals must come under an independent Ministry and they should not be seen as departments of the parent Ministry.

You will shocked to note that in the Supreme Court, the Union of India has filed an affidavit saying that tribunals will not be put under the Law Ministry because tribunals are meant to serve the individual needs of the ministries. So, as long as this mindset continues our battle is going to go on. We have suggested to the Supreme Court, that you must follow the English pattern where the tribunals is a separate tribunal system which comes under the Lord Chancellor, comes under the Ministry of Law and they function independently.

We have told the Supreme Court that the Madras Bar Association is not against tribunals. Tribunals do have a place but let them be independent, let them be manned by proper qualified people. The second grouse we have is that tribunals are structured in such away that they form post retirement employment opportunities for selected civil servants and some retired high court judges. But, that is not the way tribunal should function. That is the second battle we have.

So to answer your question how it goes on, I think that the sooner or later the government decides that tribunals are part of the justice delivery mechanism, they should function like courts they should be independent the better for all of us and the tribunal system will really grow. Now before the parliamentary committee recently we again gave evidence and we suggested that have a tribunal service like the Indian Administrative Service have an ‘Indian Tribunal Service’ where members of the Bar, Chartered Accountants are recruited into the Tribunals at the young age, not at the age of 65 and they work till retirement like the Income Tax Tribunal. They join at 45 and you retire at 60-62 that is how the tribunal should be and that is our case.

We said that from the judicial members you must promote some of them to the High Court, so the judicial members have an incentive to do well and then becomes members of the High Courts.

Doshi: As you have pointed out yourself, in the 1997 decision of Chandra Kumar or even in the R Gandhi case of the last decade many of these issues have been dealt by the Supreme Court and yet you find, at least in your arguments you have pointed out that the government has not applied those guidelines set out in the creation of new tribunals. Therefore, I am asking you what do you hope or expect the constitution bench will do or take into cognizance when it decides on the NCLT case and if the IPAB case gets attached to that as well?

IPAB 2.0!

SC: R Gandhi Case, 2010
Technical Members: Only rank of Secretary or Additional Secretary
Selection Committee: CJI should have casting vote

Companies Act, 2013
Technical Members: Rank of Joint Secretary and above
Selection Committee: judicial members in minority

Datar: It is really perplexing because the R Gandhi case was decided in 2010. Now, there was no stay they could have started the National Company Tribunal by appointing Chartered Accountants and the tribunal could have functioned but there were this insistence that certain category civil servants must also find a place. They had some vested interest there.

Now, the shocking thing is that despite the mandatory direction of the Supreme Court, the 2013 Act repeated the same provisions which had been struck down, which to mind is absolutely shocking. You repeat the same provisions which are held to be unconstitutional so we had no choice but to again go to the Supreme Court and the Supreme Court expresses displeasure and is again referred it to a Constitutional bench. So we are back to square one now if the earlier judgment is correct it will again be struck down. Now I do not know why they are waiting for another decision of the Supreme Court, they can might as well amend the Companies Act, 2013 and implement the directions of the Supreme Court. The tribunal can start functioning immediately. Now look at the position, you have got the Companies Act, 2013 and several sections can not be implemented because the tribunal is non functional. 

Doshi: What is the progress or the timeline that we can expect in terms of a decision from the Supreme Court because this will determine the fate of tribunals across the country?

Datar: The National Company Tribunal has been referred to constitutional benchmark keeping in mind the urgency because the Companies Act 2013 is partly dysfunctional because you still have the High Court deciding so many cases and the tribunals are not functioning at all. So, maybe after the summer recess this case may come up before the Constitution bench and if the IPAB is filed, it is very likely they may tag this along also with the National Company Law Tribunal batch and then both will have to be fought. But, until then no new selections can be made so suppose a members retire tomorrow in the IPAB that vacancy can not be filled up.

Doshi: We will be watching closing to see what the constitutional bench says because that will determine the fate of tribunals across the country.


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