Supreme Court Refuses To Extend Tenure Of Incumbent IPAB Chairperson Justice Manmohan Singh

The Supreme Court dismissed a plea seeking extension of tenure of incumbent Chairperson of the Intellectual Property Appellate Board Justice Manmohan Singh.

International Association For Protection Of Intellectual Property had approached the court by filing an application seeking a direction that till a new chairperson of the Intellectual Property Appellate Board is appointed, the incumbent should continue to function as Chairperson. The Supreme Court had extended the  tenure of Chairperson up to 31.12.2020 by earlier orders.

The Association raised the following grounds: 1) incumbent chairperson continued to remain in office in view of the declaration of law by Rojer Mathew case, 2) The Finance Act, 2017 had inserted Section 89A of the TM Act, (introduced by Section 161 of the former Act) which states that the tenure of office and maximum age of retirement would be governed by the terms of the said Finance Act and, consequently, the pre-existing tenure and age limits did not apply 3) the Board cannot function without a judicial member, and that at present, only the incumbent Chairperson is a judicial member, and that if his tenure is not extended by a judicial order, the Board would be unable to function. Subsidiary to this argument is that no member can function as a Chairperson, as none of the existing members are judicial members, but are technical members.

Regarding the first contention, the bench comprising Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat observed that the same is insubstantial and cannot be countenanced. The bench observed: 

"Arguments advanced on behalf of the applicant that the incumbent chairperson continued to remain in office in view of the declaration of law by Rojer Mathew, is insubstantial and cannot be countenanced. The other reason for not accepting this contention is that if, for a moment it were to be assumed that in terms of the interim arrangement directed by the majority judgment in Rojer Mathew (in para 224 extracted above), the appointments to Tribunals/Appellate Tribunals were to be "in terms of the respective statutes before the enactment of the Finance Bill, 2017..", the amendments brought about through Sections 184, in terms of the maximum age up to which any Member or Chairperson can hold office in a Tribunal could not apply in the case of the Board.

On the second ground, the bench made the following observations while rejecting it:

Undoubtedly, the purport of Section 89A was to overbear or supersede the pre-existing age and tenure limits (the existing tenure and age limits have been indicated in Section 86 of the TM Act). However, the Finance Act merely stipulates the potential maximum age limits and tenure limits. In the case of Chairpersons, the maximum age limit prescribed was seventy years (by virtue of second proviso to Section 184 [1]). However, by virtue of the first proviso to Section 184 (1), members or chairpersons could be appointed "for such term as specified in the rules made by the Central Government but not exceeding five years from the date on which he enters upon his office". Thus, the outer limit of the tenure was five years. As noticed earlier, the Central Government had fixed the tenure of chairperson of the board to be three years. By the time this rule was held unconstitutional, the tenure of the incumbent holding office of chairperson, of the board ended, on 21.09.2019. The final judgment in Rojer Mathew, could not have per se been applied to the facts of this case. The applicant's contentions in this regard are of no avail; it is after the judgment in Madras Bar Association (supra) that the tenure has been mandated to be five years. It is to be noticed that even the 2020 Rules did not prescribe the maximum tenure; it rather confined the tenure to four years. In the facts of this case, even if that were to be applied – assuming such a course to be available, the four-year period too ended on 21.09.2020. It is important to notice that the changes brought about in the tenure and age limits were not only through the Schedule to the Finance Act, 2017, but also through its substantive provisions - Sections 156 to 182.6 These provisions introduced changes relating to tenure and age limits for members and chairpersons of 19 tribunals (including the Income Tax Appellate Tribunal; Securities Appellate Tribunal, Competition Commission of India, CESTAT, Railway Claims Tribunal, Central Administrative Tribunal, Debt Recovery Tribunal, Debt Recoveries Appellate Tribunals, the IPAB -i.e. the Board, in this case, etc.). All these provisions, much like Section 89A of the TM Act, aligned Parliamentary intention to legislate uniform tenure limits and maximum age for members and chairpersons. Therefore, Section 89A is only part of the entire legislative design. However, that has no bearing on the circumstances of the present case.

The court rejected the contention that the technical members, in their position at the board as of now, cannot function without a chairperson.. It said:

Section 84 (2) of the TM Act no doubt states that a bench of the board shall consist of a judicial and a technical member. However, it is "subject to other provisions" of the TM Act. Section 84(3) commences with a non obstante clause and stipulates, by Section 84(3)(a) that a chairperson may, "in addition to discharging the functions of the Judicial Member or Technical Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Technical Member, of any other Bench." Thus, in the absence of any member, the chairperson may, if the occasion so arises, act as technical or judicial member. Section 87 enables a vice-chairperson, or as the case may be the senior-most member of the board to act as chairperson in the event of a vacancy to that position, or in the event of the incumbent's inability to function in the post. Furthermore, significantly, Section 85 inter alia stipulates the qualifications for the post of chairperson or vice-chairperson. The relevant provisions of this section (extracted below)7 reveal that there is no bar for a technical member to be appointed as a regular chairperson, provided she or he has for "at least two years, held the office of a Vice-Chairperson". In fact, the incumbent five technical members all hold legal qualifications  (three of them holding masters in law, including one who holds a post-doctoral qualification). Four of these incumbent members were practising advocates in specialized fields of intellectual property (trademarks, and copyright) and one technical member (patents) had experience in the Patent Office. These members had practical legal experience of ten to fifteen years. The fact that they were appointed as technical members cannot obfuscate the fact that they are legally trained and qualified. 

CASE: INTERNATIONAL ASSOCIATION FOR PROTECTION OF INTELLECTUAL PROPERTY (INDIA GROUP) vs UNION OF INDIA [MISCELLANEOUS APPLICATION NO.2219/2020]
CORAM: Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat
COUNSEL:  Sr Adv P. S. Narasimha, Adv Sai Deepak J, Adv G. Nataraj,  AOR KNMP Law
CITATION: LL 2021 SC 84

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