Arbitrability of Disputes and Alternative Standard of Tests

While the importance of Arbitration as an important avenue for resolution of a dispute has consistently been emphasised by the Indian judiciary through various judicial pronouncements there still exists considerable lacunae in the interpretation offered towards the advancement of this thought process. In more than a few instances, the intervention of judiciary has proved to be an unwanted thorn in ensuring the much-needed consistency within the discourse. The necessity for coherent and logical pronouncements, commensurate to the changing needs of the time, cannot be emphasised anymore. Yet, there exist several glaring voids within this discourse that require some attention. One such important issue is the ‘arbitrability’ of disputes, which goes to the very root of the arbitral process. While it is axiomatic to state that not all disputes can be arbitrated, the question over species of subjects that falls under the genus of non-arbitrability has given rise to unforeseen quandaries restricting the scope of arbitration at times.
Typically, the question over arbitration can arise at three stages in arbitration[1]

1. On an application to stay arbitration.
2. When the opposing party questions the authority of the tribunal to entertain the subject matter of arbitration.
3. On an application challenging the award.

In the Indian context, the above-mentioned situation arises under Section 9, Section 16 and Section 34 respectively.
The piquant question though came up for consideration several times before the judiciary, it was in the landmark decision of Booz Allen and Hamilton Vs. SBI Home Finance Limited and others (2011) 5 SCC 532 that an attempt was made to rationalise the issue while analysing the true scope of the problem involved. The primary question that was considered by the bench in the case was to adjudicate the true scope and import of the term arbitrability of a subject matter. In other words, what are the subject matters that cannot be adjudicated through a private arbitration due to its inherent nature and what is the framework upon which the arbitrability of a subject matter can be tested?
Commenting on the ability of an arbitral tribunal to adjudicate certain disputes it states that ‘every civil or commercial dispute, either contractual or non-contractual and which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless it is excluded either expressly or by necessary implication.’ The express or implied exclusion stated in the decision is based on the limitation imposed due to overarching public policy considerations. Furthermore, the decision enunciates several examples of non-arbitrable disputes, which are

1. disputes relating to rights and liabilities which give rise to or arise out of criminal offences;
2. matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody;
3. guardianship matters;
4. insolvency and winding up matters;
5. testamentary matters (grant of probate, letters of administration and succession certificate); and
6. eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.

The framework upon which the list is enunciated is the nature of rights that is sought to be enforced. The primary test prescribed is whether the subject matter of reference relates to action in rem, in the case of which it would fall outside the scope of powers provided to an arbitral tribunal under the Arbitration Act. The test restricts those rights, adjudication of which shall affect the rights of third parties who are not privy to the arbitration agreement. The underlying principle for such a restriction is that such rights in rem come within the protection offered by a state as its duty towards its citizenry. The sovereign duty to enforce such rights cannot be delegated to a private adjudicatory forum, the delegation of which would go against the public policy. Hence, applying this test, only in personam rights can be referred to arbitration.
While this may sound straightforward enough as a solution to determine the arbitrability of a subject matter, the subjective nature of the test makes it a tool which can be applied rather too liberally leaving much scope for restricting the subject matters which can be arbitrated. This can prove counter-productive for the whole arbitration eco-system. An example can be had when one looks at the widely fluctuating decisions rendered by the Supreme Court over the arbitrability of issues involving fraud in an arbitration agreement, especially in international commercial arbitration. In the case of World Sport Group (Mauritius) Ltd. Vs. MSM Satellite (Singapore) Pte. Ltd. AIR 2014 SC 968 for the first time it was ruled that disputes involving fraud are not inconsistent with jurisdiction conferred on an arbitral tribunal in an international commercial arbitration. For the domestic arbitration involving claims of fraud similar inconsistency still prevails, however, with the passage of time a high standard has been developed that must be satisfied to refuse a matter to arbitration. For an arbitration agreement to be held as inapplicable the court must find that there are very serious allegations of fraud which make a virtual case of a criminal offence or where allegations of fraud are so complicated that it becomes absolutely essential that such complex issues can be decided only by a civil court.[2] This absolute standard has come to be recognised consistently in various judicial pronouncements.
As mentioned earlier, the ambiguity of this test is primarily due to its subjective nature, which provides much leeway to take away many subjects from the scope of arbitration. Going merely by this test, if, for an example, when a dispute involves enforcement of intellectual property rights at the first blush it can easily be rejected as a right in rem and hence incapable of being arbitrated. However, when one takes into consideration the nature of reliefs sought for, in most cases, it can easily be distinguished from the enforcement in rem IP rights. The observation made by Raveendran J. in the Booz Allen (Supra) case acquires significance here.
“Generally and traditionally all disputes relating to rights in personam are considered to be amenable to arbitration; and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals, being unsuited for private arbitration. This is not however a rigid or inflexible rule. Disputes relating to subordinate rights in personam arising from rights in rem have always been considered to be arbitrable.”
The problem arises when the distinguishing features of such subordinate rights which are sought to be enforced is not taken note of and a blanket assessment of test prescribed in Booz Allen is preferred, restricting the scope of arbitration clauses. It would be too broad a proposition to state that any dispute involving rights in rem due to its inherent nature are incapable of arbitration. Whenever such disputes arise it will be prudent to give a widest possible interpretation to the arbitration clause to see whether the dispute falls within its scope or not, to further the cause. A recent decision of Eros International Media Limited Vs. Telemax Links India Pvt. Ltd. and Ors. (Suit No. 331 of 2013) by Bombay High Court articulates this in the best possible manner. Drawing analogy striking between the IP rights like Trademark et al and other property rights the judgement concludes that albeit all those rights are in a sense a protection conferred to an individuals’ right over a property against the whole world, the enforcement of such rights are still done against individuals, making it an in personam right subordinate to the in rem rights conferred upon them.
The contrary parochial interpretation with a blanket assessment has been offered by a recent pronouncement of Supreme Court in the case of Shri Vimal Kishor Shah & Ors. Vs. Mr. Jayesh Dinesh Shah & Ors. (Civil Appeal No.8164 of 2016). In this case, the issue that arose for consideration was the arbitrability of an issue arising out of trust deed. While the decision follows the right path in its reasoning to exclude disputes that are exclusively to be dealt with under the mechanism provided under the Trusts Act, an opportunity to distinguish between those set of rights that can be arbitrated for being subordinate to the rights and responsibilities conferred under the Act.
In order to resolve such inconsistencies, as noted above, it is imperative that the standard of test prescribed in Booz Allen (Supra) should be modified to test the dispute involved upon the nature of reliefs sought rather than mechanically testing the subject as a whole in its widest ambit. Such moves end up restricting the scope of arbitration act as a whole. The decision of Bombay High Court discussed above is a welcome move towards ensuring the achievement of real intent behind the Arbitration and Conciliation Act.


[1] Russel on Arbitration, 23rd Edition at Page 15.
[2] A. Ayyasamy Vs. A. Paramasivam and Ors. Civil Appeal Nos. 8245-8246 of 2016

CAUVERY: A SERIATIM OF NEVER ENDING CONFLICTS

As the acrid tussle that is going on between Tamil Nadu and Karnataka, over sharing of interstate river water, is stooping down to physical violence by a few, it has raised all sorts of debates justifying either of sides. However, in most cases they are far from being well informed or based on logic. All sorts of information are being shared in social media that possess none of the signs of reliable information. More than often, they aim at stoking the emotional chord of the people to create acrimony amongst the people from both the states. Though on more than a few occasions I wanted to give a reply to them about this I was not sure about my knowledge about the whole problem myself. A basic search into the orders that came to be passed by the Water Disputes Tribunal and the Supreme Court of India where the Tribunal’s order has been challenged enlightened me a great deal. I began with the Supreme Court’s orders dated 05.09.2016 & 12.09.2016, which opened up the doors for present issue and traced myself back to the Tribunal’s order dated 05.02.2007. The sheer size of these orders and documents is mind-boggling. For giving an idea, the order of the tribunal itself is close to 1000 pages, while the depositions and other supporting documents filed by the states party to the dispute easily cross the mark of 50,000. I must confess that I haven’t even scratched the surface when I claim that I read these orders before writing the present post. I picked only those portions of the final order passed by the Tribunal that matters the most, which in itself ran into several hundred pages. I have attempted to give a summary of the dispute from its historical origin to the present day proceedings here for an easy read. I have excluded many happenings with the sole intention of making this succinct.

History

Agreements of 1892 & 1924

The entire gamut of arguments over the rights of these states over the Cauvery water hinges upon two agreements entered into between the states of Karnataka and Tamil Nadu or Mysore and the State of Madras, as they were known at that point in time. The first agreement was signed in the year 1892 (available here at Page 277) to regulate many major rivers and minor streams that are common to both the states. One of the important aspects of this agreement is that Government of Mysore must obtain the previous consent of Madras Government before constructing any “New Irrigation Reservoirs” or any “New Anicut” across the rivers and major and minor streams listed in the agreement itself. If Mysore Government wanted to build any such structures, consent for which must be taken before the construction actually begins, they must provide full information regarding the proposed work to Madras Government. This might seem to be an imbalanced bargain in favour of Madras Government. However, the catch is where the subsequent clause dictates that Madras Government shall not refuse such consent except for the protection of prescriptive rights that already stands acquired and actually exists. I found this to be a very vague way of defining the rights of the Madras Government under the agreement. Since there was no prior agreement or within 1892 agreement itself that defined any of those rights. It all came down to one’s own common sense and principles of fairness to regulate it. In pursuance to this agreement, Mysore sought the permission of Madras to construct Krishnarajasagar dam across Cauvery, over which disputes arose as to the terms under which the dam was to be constructed. An arbitrator was appointed to resolve the disputes whose decision again was appealed to the Secretary of State by Madras. After prolonged negotiations, a common ground was arrived at, which resulted in the 1924 agreement (Available here at Page 347). The major result of the agreement is that it contained the terms under which Mysore Government were to construct the Krishnarajasagar dam across the River Cauvery and to provide for the extension of irrigation in both the States utilising the flows in the River Cauvery. The agreement also contained a clause stating that at the 50 years from the date of execution of the agreement certain clauses can be reconsidered based on the experience gained and of an examination of the possibilities of further extension of irrigation within the territories of respective governments.

The real disputes arose when Karnataka unilaterally decided to build irrigation projects across the tributaries of Cauvery without the prior consent of Madras as envisaged under the agreements, which are:

1. Kabini,
2. Hemavathy,
3. Harangi, and
4. Suvamavathy

Karnataka continued with the projects though the Government of India and the Central Water Commission did not clear these projects and the Planning Commission has also not approved these projects for plan assistance, the Government of Karnataka proceeded with these projects in stages from their own funds under Non-Plan expenditure.

No agreeable formula was found even after prolonged negotiations, with the Central Government playing the arbiter. With no solution on the horizon, in 1970 Tamil Nadu sought the Central Government to refer the matter to a tribunal for final resolution, under Section 3 of the Inter-State Water Disputes Act of 1956.[1] It is to be noted that while all these happened in the foreground, Karnataka proceeded with the projects simultaneously. Even after a passage of a considerable amount of time, the Central Government failed to form a tribunal for the adjudication of the dispute. It was not until 04.05.1990[2] some positive movement was shown by Central Government, when Supreme Court in a Writ Petition filed by Tamil Nadu Cauvery Neerppasana Vilaiporulgal Vivasayigal Nala Urimai Padhugappu Sangam[3] rapped the Union for not constituting a tribunal to resolve disputes. The Court directed the Central Government to fulfill its statutory obligation and notify in the official gazette the constitution of an appropriate tribunal for the adjudication of the water dispute, further directing that the same should be done within a period of one month. The Union Government, to comply with the order, constituted the Cauvery Water Disputes Tribunal through a notification dated 2^nd June 1990.

Cauvery Water Disputes Tribunal

While the notification for the formation of a tribunal was only the beginning of a process that was more than a decade long. In the course of its existence, the tribunal was reconstituted a couple of times, once due to the resignation of a member and the other time due to the demise of a member. The process was so complicated and the documents involved were so voluminous that tribunal in its final decision itself notes that The total pages of depositions on behalf of different States and Union Territory of Pondicherry come to about 10,000 pages. So far, the documents and publication brought on record by the different party States in support of their respective claims ran into more than 50,000 pages. The sheer volume of paper work itself delayed the process considerably apart from the other extraneous factors like for one instance when the arguments in respect of several issues by different riparian States had virtually been concluded before the sad demise of Mr. Justice S.D. Agarwala. Because of the reconstitution of the Tribunal, the arguments in respect of those issues were again heard with Hon’ble Mr. Justice Sudhir Narain, as a new Member. After a decade and a half long process of depositions and other things, the arguments and replies on behalf of the States concluded on 21.04.2006. Thereafter, on 27.7.2006, the order was reserved. It is to be noted that the Tribunal passed certain interim orders for the sharing of water until the time the process of adjudication was concluded. Disputes arose over those orders as well between Tamil Nadu and Karnataka.

Interim Order

As an interim measure after the formation of the tribunal, Karnataka was directed to release 205 TMC of water into Mettur reservoir of Tamil Nadu in a water year (1^st June to 31st May) with monthly and weekly stipulations. Karnataka government in defiance of the orders promulgated an ordinance and refused to release the water as directed. Since negotiations to implement the order fell through in spite efforts by Central Government, President using his powers under Article 143 of Constitution of India referred the matter to Supreme Court of India with the following questions

1)      Whether the Ordinance and the provisions thereof are in accordance with the provisions of the Constitution;

2)  (i) Whether the Order of the Tribunal constitutes a report and a decision within the meaning of Section 5(2) of the Act; and

(ii) Whether the Order of the Tribunal is required to be published by the Central Government in order to make it effective;

3)      Whether the Water Disputes Tribunal constituted under the Act is competent to grant any interim relief to the parties to the dispute.

The Supreme Court gave its answer in the following terms[4]

•   Question No.1 The Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 passed by the Governor of Karnataka on 25th July 1991 (now the Act) is beyond the legislative competence of the State and is, therefore, ultra vires the Constitution.
•    Question No.2

(i)     The order of the Tribunal dated June 25, 1991, constitutes report and decision within the meaning of Section 5 (2) of the Inter-State Water Disputes Act, 1956.

(ii)       The said order is, therefore, required to be published by the Central Government in the Official Gazette under Section 6 of the Act in order to make it effective.

•    Question No.3 A water disputes tribunal constituted under the Act is competent to grant any interim relief to the parties to the dispute when a reference for such relief is made by Central Government.

Final Order

Answering close to 50 questions to the disputes, the final decision was given by the tribunal and notified by the Central Government in the year 2007. The decision analysed the whole problem by going through its almost 150-year-old history and technical aspects threadbare to arrive at the final solution. The decision analyses separately the claim of each state including the claims of Kerala and Pondicherry, as riparian states. Shorn of other conclusions arrived at but are irrelevant to the present post, the decision of the tribunal in its effect finally precipitates to the following points

1. Against the contention of Karnataka, the agreements of 1892 and 1924 were held to be valid. However, the agreement of 1924 provides for review of some of the clauses after the passage of 50 years i.e. 1974. Accordingly, the tribunal reviewed and re-examined various provisions of the agreement.
2. The decision of the tribunal was to supersede both the agreements of 1892 and 1924.
3. The total utilizable quantity of water of Cauvery was quantified at 740 TMC (Thousand Million Cubic feet).
4. In case the yield of Cauvery basin is less in a distress year, the allocated shares shall be proportionately reduced among the States of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry.
5. The release of water of Tamil Nadu by Karnataka was broken down to monthly intervals during a normal year and quantity of water to be released in each the specified months were provided in the decision.

The Arithmetics of Allocation

After taking into account all relevant factors like the area of land under irrigation, soil percolation rate and various other scientific factors the tribunal allocated the available water of 740 TMC in the following manner.

			States		Total
	Kerala	Karnataka	Tamil Nadu	UT of Pondicherry
1.       Area	1.93	18.85	24.71	0.43	45.92
2.       Irrigation requirement	27.90	250.62	390.85	6.35	675.72
3.       Domestic and Industrial water requirement projected for 2011	0.35	1.85	2.73	0.27	5.20
4.       Water requirement for environmental protection	-	-	-	-	10.00
5.       Inevitable escapages into sea	-	-	-	-	4.00
6.       Share in balance water	1.51	17.64	25.71	0.22	45.08
Total	29.76	270.11	419.29	6.84	740.00
Say	30.00	270.00	419.00	7.00	726+14 =740

It is significant here to note that the specific provisions were made available to other aspects such as requirements of the industries, requirement for environmental protection apart from the irrigation requirement. The calculations provided may seem to be inequitable in pure terms. In the allocation, Tamil Nadu (419 TMC) seems to have more share than Karnataka (270 TMC). Out of the 419 TMC allocated as Tamil Nadu’s share of Cauvery water, 237 TMC is generated within Tamil Nadu in its basins. Hence, Karnataka is supposed to ensure the balance 182 TMC of water flow to Tamil Nadu from its dams.

Compliance with the Order

Even after the notification of the order the dust did not settle down. The acrimony between Karnataka and Tamil Nadu continues to hang in the air. Problem arose when Karnataka refused to release water as per the tribunal’s decision whenever there was a deficiency in the rainfall due to local political compulsions. The most important part of the tribunal’s decision is where the states are directed to share the deficiency due to reduced yield in a particular year (which it calls as ‘distress year’) in proportion to their allocated share. In other words, in case the rainfall is short of projections in a distress year, the allocated shares shall be proportionately reduced amongst the States of Kerala, Karnataka, Tamil Nadu and Union Territory of Pondicherry. Karnataka refused to comply with this principle on multiple occasions, which embittered the relationship between the states further. In fact, this is despite the fact that the tribunal specifically directed for the constitution of an inter-State forum to be called “Cauvery Management Board” shall be established for the purpose of securing compliance and implementation of the final decision and directions of the Cauvery Water Disputes Tribunal. The Board was envisaged be under the control of the Government of India, Ministry of Water Resources. It is in spite of these directions that Karnataka refused to implement the orders.

Another important aspect of the decision is that, though in terms of pure numbers the directions of the tribunal are eminently implementable; it contains various caveats that in long term must be complied with by the states to work out a permanent solution. Rather than a mere solution involving numbers to share the water, the Tribunal in its decision has tried to work out a long-term sustainable framework for the states. The solutions suggested ranges form change in the cropping pattern to encouraging the farmers to use better water management practices to deal with the deficiencies that could arise in the future. Tamil Nadu, if one looks at the history and its stand all throughout these proceedings has maintained its strong stand, while however, has not taken any tangible steps in the gamut of sustainable solutions suggested by the tribunal.

Before the Supreme Court

Unsurprisingly Tamil Nadu took the matter to the Supreme Court for Karnataka’s non-compliance with the decision of the tribunal, where it is pending as of now. Time to time the matter was taken up by the court but no order of any tangible consequence was passed until 05.09.2016 when Karnataka was directed to release 15,000 Cu. Secs. of water for ten days as an interim measure, which resulted in the carnage that we witnessed in Bangalore. It is rather weird if one notices the manner in which the quantity of 15,000 Cu. Secs. was directed to be released. Karnataka as a goodwill gesture assured flows at the Inter-State Border, at the rate of not less than 10000 cusecs per day (about 0.86 TMC), as measured by the gauge station of the Central Water Commission as from 7th September, 2016 to 12th September, 2016. Tamil Nadu on the contrary demanded a total of 20,000 Cu. Secs. of water per day for the sustenance of crops and to protect interest of the farmers. Without any reasoning to back Supreme Court, adopting a middle ground, directed to release 15,000 Cu. Secs.

The violence unleashed by the mobs, when the Karnataka Government decided to comply with the order and release water, is well known. Citing this as a reason Karnataka moved an application seeking a modification of the previous order. The court rapped them for citing such an absurd reason, however, reduced the quantity from 15,000 to 12,000 Cu. Secs. and extending the period till 20.09.2016.[5]

An Amicable Solution

If one looks at the entirety of facts it is plainly visible that the solution provided by the disputes tribunal is well grounded and is based on scientific evidence. The decision is a result of decades worth deliberation and provides for a pragmatic solution for the problems. Unless the party states comes together overcoming parochial political considerations no solution whatsoever can be found. The Supreme Court too must not interfere much in the decision of the tribunal, for it is not competent to adjudicate the highly technical aspects involved. Moreover, any interference on its part is only going to muddle the waters further. A cautious approach must be taken by the court before arriving at any decision in this regard.

Furthermore, legally speaking there arises questions as to the very maintainability of the case filed by the parties. This aspect has been discussed in this article published in The Wire. Even otherwise, Union of India has filed an application and affidavit for impleadment in the case citing that Section 11 of the Inter State River Water Disputes Act, 1956 reads

“Neither Supreme Court nor any other Court shall have or exercise the jurisdiction in respect of any water dispute which may be referred to the Tribunal under the Act.”

The matter is under consideration of the Court; however, no order has been passed in this regard. It would be pragmatic for the court to maintain a hands-off approach in the dispute for the best interests of both the parties.

[1] I am deliberately leaving out many happenings that went on simultaneously to keep this short. Most them related to some proceedings before the Supreme Court over the dispute or about the background negotiations that happened in between the states.

[2] AIR 1990 SC 1316

[3] Writ Petition No.13347 of 1983 

[4]  In the matter of : CAUVERY WATER DISPUTES TRIBUNAL, Special Reference No. 1 of 1991 Decided On: 22.11.1991, reported in AIR 1992 SC 522

[5] Order dated 12.09.2016

The Dilemma of Intellectual Property Appellate Board

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.