The Intellectual Property Appellate Board (IPAB), a statutory board, has been established by the central government to hear appeals from the Registrar of Patents and trademarks with the aim of providing a separate appellate authority to deal with intellectual property law disputes. This quasi-judicial body effectively replaced the High Courts in this regard by becoming the appellate authority against the decisions of the registrar. Recently the board decided a question on its own power to review. Though it has decisively ruled that the IPAB is having powers to both substantively and procedurally review, it has given rise to more questions than it tried to solve in this regard. Historically quasi-judicial bodies that are established in our country have done more harm than good. It is well accepted fact that the tribunals have been established to unclog the walloping number of cases that are still pending in the High Courts and at the same time to have a specialized body to deal with them. But the real situation is far from what it is on paper. Apart from the basic legal issues that plague tribunals in India they also suffer from infrastructural inadequacies with many (read most) tribunals working in rented premises and its members with varying pay scales and without an exception IPAB too suffers from these issues.
The Final Authority
The IPAB has been established as an authority to deal with IP cases in the stead of High court and as a final authority, with all the IP cases that were pending before the High Courts being sent to the IPAB by a notification of the central government. The IPAB is a unique tribunal in the sense that there is no appeal from its decisions to any other judicial body in this country. It is the final authority in deciding the cases on intellectual property rights. Prior to the establishment of this board all the appeals against the order of the registrar of the Trade Marks and the rectification petition against the Trademarks lied with five high courts (Madras, Bombay, Calcutta, Delhi and Gujarat High Court), as they were the only high courts that were vested with the jurisdiction by law. By its establishment this body it became the last court of appeal for both law and facts replacing the High Courts. If a person is aggrieved by an order of the board the only remedy that he will be left with is to approach the High Court by virtue its writ jurisdiction under Article 226 of the Constitution of India. By its very nature, a writ petition will not be treated like an appeal and it is a discretionary upon the court to entertain the application. Hence the board in effect becomes the final authority being violative of both principles of natural justice and constitution.
Tribunals and Separation of Powers
The Supreme Court of India, in the case of Union of India Vs R. Gandhi in the context of the establishment of Company Law Tribunal under the companies act spelt out the norms on the appointments and functions of the tribunals that are set to replace the High Courts. The court said that the basic premise upon which the tribunals are established is to provide justice speedily and efficiently by reducing the burden of the High Courts, in order to achieve this these tribunals should be independent of the influences of executive and that they should deliver justice in a fair and impartial manner. The court clearly stated that “The fundamental right to equality before law and equal protection of laws guaranteed by Article 14 of the Constitution clearly includes a right to have the person's rights, adjudicated by a forum which exercises judicial power in an impartial and independent manner, consistent with the recognized principles of adjudication.”
In the light of this appointment of members of the IPAB comes under severe criticism. Basically the IPAB consists of both judicial and technical members. The technical members are appointed on the premise that their expertise is required to adjudicate on technical aspects. The court, in the above case, stated that technical members should be appointed only when there is an absolute requirement is to do so. If indiscriminate appointment of technical members is made, it will adversely affect the independence of the judiciary since these tribunals are effectively a part of the judiciary itself. With the IPAB being a body that replaces the High Court in all aspects, its jurisdiction will require it to decide upon important questions on law which in turn will require deep knowledge of law by its members. But the qualification criteria for a person to become the president or vice-president of the board does not stipulate any kind of minimum prior judicial experience which leaves a void for someone who does not possess adequate knowledge and cannot appreciate the intricacies of law or even a ‘law degree’ to occupy that position. Moreover, the situation is aggravated by the fact that the salaries of the members of the board is determined by the Ministry of Human resources unlike the judiciary, where it is paid from the consolidated fund of India. This is in gross violation of Article 14 of the Constitution which guarantees a person to be adjudicated by an impartial and independent forum.
Way out of the labyrinth
The IPAB by the very nature of the cases that it deals with is assuming importance in a global stage that it has to keep in mind at least two international agreements (TRIPS & Doha declaration) in mind while deciding the cases, as said by the board itself in the case of M/s, Aachi Masala Foods (P) Ltd. Vs S.D.Murali and The Registrar of Trademarks, where the board decided the question on its own power to review. Moreover, it wields the power to determine the course of economic development of our country through its rulings over inventions and innovations altogether. But the present situation of the board is unwelcoming and against the interest the nation. Unless reforms are made to restructure the whole board along with reconsideration on the eligibility and appointment of members is done the permanent damage to the IP ecosystem of the country cannot be stopped.
