Prashant Reddy, one of our most prolific bloggers, is back with a guest post, questioning the legality of the appointment of the 5 Technical Members made to the IPAB earlier this year.
The Legality of the Appointment of the 5 Technical Members to the IPAB
Continuing from Praharsh’s earlier post on the Supreme Court’s judgment on the legality of the Tribunal Rules, 2020, I would like to briefly comment on the legality of the appointments of the 5 Technical Members to the Intellectual Property Appellate Board (IPAB).
Earlier this year, the Government hurriedly made appointments of 5 Technical Members to the IPAB after the IDMA sued the Government before the Delhi High Court on the non-functioning of the IPAB. At the time I had written a short post explaining how those appointments may not have been entirely legal because the initial advertisement process had taken place under one set of rules and the appointment orders were issued under a different set of rules. I have been doing a little research on this point and wanted to fill in some of the blanks in my earlier post.
The advertisements for the appointments of the 5 Technical Members were published on July 25, 2018. The advertisement noted that the Government was following the eligibility and qualification criteria as laid down by the Supreme Court in its orders dated 9th February, 2018, 22nd February, 2018 and 20th March, 2018 in W.P.(C) No. 279 of 2017 which had been filed challenging the constitutionality of The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 (Tribunal Rules, 2017). These orders of the Supreme Court operated as a de facto stay of the tribunal rules under challenge, since the Supreme Court as an interim measure allowed the Selection Process to continue under the legislation that existed prior to the enactment of the Tribunal Rules, 2017 under the Finance Act, 2017 (the orders can be accessed here, here and here).
The Selection Committee Meeting
On 31st August, 2019 the Selection Committee met and shortlisted 5 of the applicants, who responded to the advertisements, for the posts of Technical Members at IPAB. As per normal procedure, the recommendations of the Selection Committee are forwarded to the Appointments Committee, Cabinet (ACC) for its approval. Only after the ACC agrees with the recommendation, can the Central Government issue formal appointment orders. While the recommendations were pending at the ACC, the Supreme Court in the Roger Mathews case dated 13th November, 2019, declared the Tribunal Rules, 2017 to be unconstitutional and struck down the rules in their entirety. Technically, this judgment would not have affected the appointment process initiated on July 25, 2018 because the entire appointment process was being conducted under the law that existed prior to the Tribunal Rules, 2017.
The Tribunal Rules, 2020
A few months later on 12th February, 2020, the Central Government notified the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 under Section 184 of the Finance Act, 2017 to replace the rules that were struck down by the Supreme Court on 13th November, 2019. These rules which were notified on 12th February, 2020 were upheld in a recent judgment of the Supreme Court, with some riders, as explained by Praharsh in his post.
The ACC Appointment
On 21st July, 2020, almost 5 months after the new Tribunal Rules came into effect and after IDMA’s lawsuit before the Delhi High Court, the ACC issued an order approving the recommendations made by Selection Committee on 31st August, 2019. This order however stated that the appointments were being made under the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 (‘Tribunal Rules, 2020’).
The Legality of the Appointments
This is where things get problematic.
First, under the Tribunal Rules, 2020, practising lawyers can be appointed to the IPAB as Technical Members only if they have 25 years of experience in copyright or trademarks, depending on the role for which they are being appointed. While the DIPP has refused, under the RTI Act, to share the CVs of the 5 persons appointed as Technical Members, it is quite obvious from reading the bios of the Technical Members on the website of the IPAB that most of them (not all) do not appear to have the 25 years of experience required under the 2020 rules. They clearly could not have been appointed under the Tribunal Rules, 2020 and this is not surprising because the Selection Committee had selected them on the basis of the qualification criteria laid in the law prior to the Tribunal Rules, 2017.
Second, presuming that the appointments were made under the law that existed prior to the 2017 rules, the entire process of advertisement, selection and appointment should have been completed prior to the notification of the new Tribunal Rules, 2020 on 12th February, 2020 because the moment the Tribunal Rules, 2020 came into effect in February, the legal framework under which the advertisement in 2018 were issued ceased to exist. In this case, the Selection Committee meetings took place before 12th February, 2020 but the legal process is not completed until the appointment orders are issued. In this case the appointment orders were issued sometime after the ACC’s meeting on 21st July, 2020. How can appointment orders be issued when the entire legal regime under which the appointments were made, ceased to exist post the notification of the new Tribunal Rules, 2020? The answer is simple – the appointments were clearly illegal. The correct course of action would have been to re-advertise the posts after the new tribunal rules came into effect on 12th February, 2020.
There is little doubt that the appointments of all 5 Technical Members will be quashed, if challenged before a High Court. It is however unlikely that anybody from the IP bar is going to challenge those appointments.