In 2011, a Writ Petition was filed before the Madras High Court by Shamnad Basheer, seeking a declaration that the establishment of the Intellectual Property Appellate Board (IPAB) under the Trade Marks Act, 1999, and the Patents Act, 1970 was violative of the basic structure of the Constitution of India. Shamnad Basheer, founder of SpicyIP and a Professor of Law holding the Intellectual Property Rights Chair at the Ministry of Human Resources and Development at the West Bengal National University of Juridical Sciences, Kolkata, contested the constitutional validity of the qualification and selection criteria for IPAB members. The writ petition was heard and disposed by the Chief Justice of Madras High Court, Sanjay Kishan Kaul, and Justice M M Sundresh.<\/p>\n
The Court was required to determine:<\/p>\n
The Petitioner contended that the qualification criteria under Section 85 allowed executive officers without judicial training to occupy quasi-judicial roles on the IPAB, thereby impinging upon the independence of the judiciary. He further argued that the process of selecting members was entirely left to the Executive, in contravention of the Supreme Court’s ruling in Union of India v. R Gandhi, President, Madras Bar Association<\/em>. No statutory prescription for the selection procedure was provided, which affronted the basic structure of the Constitution. The Supreme Court had previously held in R Gandhi<\/em> that the selection committee for a tribunal exercising judicial functions must include members of the higher judiciary. The Union of India, the Petitioner argued, had not complied with this direction in constituting the IPAB under Section 85.<\/p>\n The Respondent, the Union of India, defended the constitutional validity of the provisions, though ultimately the Madras High Court found that the selection process adopted had “totally overstepped and acted in disregard to the law laid down by the Supreme Court”.<\/p>\n The Court, reviewing a plethora of Supreme Court decisions on the constitutional validity of tribunals, held as follows in respect of the provisions of Section 85:<\/p>\n “(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.<\/p>\n (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.<\/p>\n (3) The Constitution of the Committee for the appointment of members, both for the Vice-Chairman, Judicial Member and Technical Member is declared as contrary to the basic structure of the Constitution. In consequence thereof, the 1st respondent will have to re-constitute the Committee providing a predominant role in the selection process to the judiciary.<\/p>\n (4) A person, in the post of Joint Registrar or above with the qualification of 12 years of practice at bar or 12 years experience in a State Judicial Service with a Degree in Law, along with other qualifications alone is to be considered to be appointed as a Technical member.<\/p>\n (5) Only such a Technical Member with the qualification indicated in (4) above alone can be considered for the post of Vice-Chairman.<\/p>\n (6) For the post of Chairman, apart from a sitting or a Retired High Court Judge, only a person with a qualification mentioned in (4) above and as required for a Technical Member under Section 85(4)(b) can be considered as against a Judicial Member.<\/p>\n (7) Recommendation of the Chief Justice of India to the post of Chairman should be given due consideration by the Appointment Committee of the Cabinet and the process does not involve any ‘approval’.”<\/p>\n<\/blockquote>\n The Madras High Court reviewed several significant Supreme Court decisions. The Supreme Court in S P Sampath Kumar v. Union of India<\/em> had considered challenges to the validity of the Administrative Tribunals Act, 1985. In Union of India v. R Gandhi<\/em>, the Supreme Court struck down the provisions of the Companies Act, 1956 relating to the National Company Law Tribunal and the National Company Law Appellate Tribunal as violative of the Separation of Powers doctrine. The Supreme Court in L Chandra Kumar v. Union of India<\/em> and in Indira Nehru Gandhi v. Raj Narain<\/em> had reiterated that Separation of Powers forms part of the basic structure of the Constitution. The Supreme Court’s decision in Madras Bar Association v. Union of India<\/em>, the NTT case, upheld the creation of the National Tax Tribunal but held its composition to be an anathema to the basic structure of the Constitution. These decisions of the Supreme Court were central to the Madras High Court’s reasoning on the constitutional limits of Section 85.<\/p>\n The Madras High Court’s decision in Shamnad Basheer v. Union of India<\/em> is an important contribution to the jurisprudence on the constitutional limits of tribunal appointments. The Madras High Court affirmed that quasi-judicial bodies exercising IP-related appellate functions must be constituted in a manner that preserves judicial independence. The selection of members cannot be left entirely to the Executive, and the qualifications prescribed under Section 85 must ensure that members have adequate legal training and judicial experience to discharge judicial functions. The direction to reconstitute the Search-cum-Selection Committee with a predominant role for the judiciary reflects the principle established by the Supreme Court in R Gandhi<\/em> that appointments to tribunals exercising judicial powers are not purely an executive prerogative.<\/p>\n This article is for general information and does not constitute legal advice. Readers should consult a qualified attorney before acting on any matter discussed here.<\/p>\n","protected":false},"excerpt":{"rendered":" This case brief examines the Madras High Court decision in Shamnad Basheer v. Union of India regarding the constitutionality of IPAB appointments. The judgment highlights the importance of judicial independence and proper selection criteria for tribunal members under Indian law.<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"iawp_total_views":130,"footnotes":""},"categories":[6,14,11],"tags":[7053,177,7050,1957,7051,3813,7052],"class_list":["post-21230","post","type-post","status-publish","format-standard","hentry","category-intellectual-property","category-patents","category-trademarks","tag-constitutional-law-india","tag-intellectual-property-appellate-board","tag-judicial-independence","tag-madras-high-court","tag-separation-of-powers","tag-shamnad-basheer","tag-trademarks-act"],"_links":{"self":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts\/21230","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/comments?post=21230"}],"version-history":[{"count":4,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts\/21230\/revisions"}],"predecessor-version":[{"id":149773,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/posts\/21230\/revisions\/149773"}],"wp:attachment":[{"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/media?parent=21230"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/categories?post=21230"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.bananaip.com\/intellepedia\/wp-json\/wp\/v2\/tags?post=21230"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Findings<\/h2>\n
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Relevant Paragraphs<\/h2>\n
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Key Precedents Considered<\/h2>\n
Significance<\/h2>\n
Disclaimer<\/h2>\n