Supreme Court Dismisses Plea For Extending Term Of IPAB Chairperson Justice Manmohan Singh
The Supreme Court of India (SC) on 12 February 2021, dismissed a plea in the case of International Association For Protection of Intellectual Property (India Group) [Applicant(s)] v. Union of India (Respondent) wherein the applicants sought for an extension of tenure of incumbent Chairperson of the Intellectual Property Appellate Board(IPAB) Justice Manmohan Singh.
The SC bench comprising of Justices L. Nageswara Rao, Hemant Gupta, and S. Ravindra Bhat, dismissed an application filed by the applicants stating it to be meritless and rejected all the contentions of the applicants. The SC gave a detailed explanation while rejecting the arguments of the applicants and stated it to be unsustainable.
The factual background of the case is that the applicants had approached the Top Court by filing an application seeking a direction that till a new chairperson of the IPAB is appointed, the incumbent should continue to function as Chairperson. Through its order dated 31 December 2020 the SC had extended the tenure of Chairperson of IPAB.
Following concerns were raised by the Applicant before the Court-
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 Trade Marks Act (TM Act), (introduced by Section 161 of the former Act) that mentions 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 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 at present, only the incumbent Chairperson is judicial member, that if his tenure is not extended by a judicial order, the Board would be unable to function.
The applicants contended before the Apex Court that no member can function as a Chairperson, as none of the existing members are judicial members, but are technical members.
Regarding the first argument that was put forth by the applicants before the Bench, the Court observed, "If for a moment it were to be assumed that in terms of the interim arrangement directed by the majority judgment in Rojer Mathew, 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."
While rejecting the second contention of the applicants the Court noted, "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 )."
The SC further observed that "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 the Chairperson of the board to be three years."
It was further clarified by the Apex Court that "By the time this rule was held unconstitutional, the tenure of the incumbent holding office of the 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 added, "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."
"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 bench observed.
The Top Court rejected the last contention of the applicants that the technical members, in their position at the board as of now, cannot function without a chairperson. The Court gave a detailed clarification for the same while referring to the provisions of the TM Act.
It stated, "In the absence of any member, the chairperson may, if the occasion so arises, acts as a 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."