Misc. Petition seeking stay on appointment of IPAB Vice Chairperson

Prof (Dr.) Shamnad Basheer has filed a Miscellaneous Petition before Hon’ble Madras High Court seeking a stay on appointment of Vice-Chairperson of the Intellectual Property Appellate Board.

This Petition is in continuation to the Public Interest Litigation filed by Prof. Basheer in 2011 challenging the constitutional validity of Intellectual Property Appellate Board (IPAB) in 2011 before the Madras High Court (W.P. No. 1256 of 2011).


The Hon’ble Supreme Court in Union of India v. R. Gandhi [(2010) 11 SCC 1] categorically stated that tribunals which replace the jurisdiction of High Courts should have same degree of independence in all matters, including appointment of the Chairperson and other members of the tribunal.

Specifically on the Selection Committee dealing with appointments to the tribunal, the Hon’ble Court suggested that the Committee should be dominated by persons of highest judicial experience and legal training, and that bureaucrats should be in the minority. The Hon’ble Court further recommended that the composition to comprise of:

  1. Chief Justice of India or designate, as the Chairperson with a casting vote;
  2. Senior Judge of the Supreme Court or High Court;
  3. Secretary of the relevant Ministry; and
  4. Secretary of Ministry of Law & Justice.

Despite the law as laid down above, the appointment process of the IPAB has always been controlled completely by the DIPP without significant representation from the higher judiciary. The Petition also challenges the process of appointment of Chairperson and Members of the IPAB for falling foul of the doctrine of separation of powers as laid by the Hon’ble Supreme Court.

Recent developments

Recently, the Central Government constituted a search-cum-selection committee to appoint the Vice-Chairman of the IPAB which fell vacant on June 21, 2014. A response to an RTI request has revealed the composition of the committee dehors the law laid down by the Hon’ble Supreme Court. The composition is thus under:

(a) Chairman: Amitabh Kant, Secretary of Department of Industrial Policy & Promotion

(b) Members:

  1. Justice K. N. Basha, retired Judge and Chairman of IPAB
  2. P. K. Malhotra, Secretary of Department of Legal Affairs
  3. Dr. P. S. Ahuja, Director-General of Council for Scientific & Industrial Research

As evident from the above, only person on the Selection Committee with necessary judicial experience and legal training is Mr. Justice K. N. Basha (retired Judge, Madras High Court) who is made subordinate to a bureaucrat, and further, the Selection Committee is comprised of a majority of bureaucrats who have no legal training and have absolutely no knowledge of the highly specialised work of the Vice Chairman.

The composition is starkly violative of the law laid down by the Hon’ble Supreme Court. As a result, the Miscellaneous Petition has been filed to relive the Board from the executive control and restore judicial independence of the Board.

The matter is listed before the Hon’ble Chief Justice and [•] before the Madras High Court tomorrow (i.e. August 06, 2014). Mr. Arvind Datar (Senior Advocate) and Mr. Vineet Subramani are representing the petitioner pro bono.

Order of Court today

The court ordered that the respondents file their counter by next week (14th August). The ASG Rajagopalan appeared for the government. The court asked him specifically whether or not the government is willing to appoint a high court judge as committee chairman. They are to file their reply by next week on this issue.

During the hearing, the CJ told the ASG not to precipitate matters, and the ASG agreed that the committee would not take any action in the interim.

ASG (Additional Solicitor General) is Mr.G. Rajagopalan for the Government of India.

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