TRIBUNAL REFORMS (RATIONALISATION AND CONDITIONS OF SERVICE) ORDINANCE, 2021
The President of India, exercising the authority conferred on him by Article 123(1) of the Indian Constitution, promulgated the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021. In as many as nine legislations, the Centre has replaced Appellate Authorities with High Courts. The Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021 was used to accomplish this. Out of the nine, five pertain specifically to amendments in the Intellectual Property legislation, i.e., Amendment to Copyright Act, 1957 in Chapter III; Amendment to Patents Act, 1970 in Chapter V; Amendment to the Trade Marks Act, 1999 in Chapter VII; Amendment to the Geographical Indications of Goods (Registration and Protection) Act, 1999 in Chapter VIII and Amendments to the Protection of Plant Varieties and Farmers’ Rights Act, 2001 in Chapter IX of the said Ordinance.
Amendments to the Copyright Act, 1957
The ordinance scrapped the Copyright Act’s Appellate Board, which heard appeals against the Registrar of Copyrights’ orders, and replaced it with Commercial Courts. Section 2(aa) of the Copyright Act of 1957, which specifies the Appellate Board, has been removed. Clause (fa) will be re-phrased as clause (faa) in the Ordinance which is stated as follows in the ordinance:
“Commercial Court, for the purposes of any State, means a Commercial Court constituted under section 3, or the Commercial Division of a High Court constituted under section 4 of the Commercial Courts Act, 2015.”
As a result, the Appellate Board’s authority is transferred to the Commercial Court or the Commercial Division of the High Court under this Ordinance. The “Appellate Board” will be replaced by the “Commercial Court” in Section 6, which applies to cases to be resolved by the “Appellate Board.”
It violates Sections 11 and 12 of the Act, which comprises the Appellate Board’s referral. Sections 19A, 23, 31, 31A, 31B, 31C, 31D, 32, 32A, and 33A of the Ordinance replace the words “Appellate Board” with “Commercial Court.” The “Appellate Board” will be replaced by the “High Court” for the rectification of the Registrar under section 50.
The Ordinance allows for a direct appeal to the High Court against the Registrar’s order, which will be considered by a single Judge, in which a further appeal will be heard by a Bench.
Amendments to the Patents Act, 1970
Even with respect to the Patents Act, 1970, the ordinance has done away with the Appellate Board which was provided for under the said Act. The Appellate Board was given the authority to hear appeals from the Controller General of Patents, Designs, and Trade Marks or the Central government’s rulings, directives, or directions. However, this power has now been vested with the High Court with the enforcement of this Ordinance.
The Ordinance erases sections 2(1)(a) and (u)(B) of the Patent Act 1970, where the term “Appellate Board” is used. The claim of shifting power from the Appellate Board to the High Court is substantiated by omitting the term “Appellate Board or” from section 52 of the Act. The words “Appellate Board” or “Board” are either omitted or replaced by the words “High Court” in Sections 58, 59, 64, 71, 76, 113, 117A, 117E, and 151. Sections 116, 117, 117B, 117C, 117D, 117F, 117G, and 117H will be removed from the bill. Each of these sections is about Appellate Board appeals.
Amendments to the Trade Marks Act, 1999
So far as the Trade Marks Act, 1999 is concerned, the Intellectual Property Appellate Board (IPAB), which was previously responsible for hearing the trade mark case appeals have now been terminated. Instead, the High Court has been given the powers of IPAB. Consequently, the High Court shall now attend to the appeals against the decision of the Registrar of Trade Marks instead of them going to the IPAB for the appeal.
Sections 2(1)(a), (d), (f), (k), (n), (ze), and (zf) of the Trademark Act 1999 shall be excluded. All of these provisions have to do with how the Appellate Board functions. The provision (s) relating to Patent Act rules would also apply to rules made by the High Court concerning proceedings before the High Court. The Ordinance replaces the words “Tribunal” with “Registrar or the High Court, as the case may be” in sections 10, 26, 46, 47, 55, 57, 71, 91, 94, 97, 98, 113, 124, 125, 130, 141, 144, 157, and “Appellate Council” with “High Court.” Except for sections 91, 94, 97, and 98, this Ordinance, like the Patent, excludes all sections under the heading of “Appeals.”
Amendments to the Protection of Plant Varieties and Farmers’ Right Act, 2001
The changes brought to the Protection of Plant Varieties and Farmers’ Right Act, 2001 are that the Plant Varieties Protection Appellate Tribunal, which was constituted under Section 54 of the Act, was scrapped by the Ordinance. It was granted the authority to hear appeals from the Registrar of Plant Varieties Registry and Protection of Plant Varieties and Farmers’ Rights Authority. The concerned High Court now has this jurisdiction.
Sections 2(d), (n), (o), (y), and (z), which apply to the members and chairperson of the Tribunal, have been removed. The word “Tribunal” has been replaced with the words “High Court” in sections 56, 44, and 57. A few sections, such as 54, 55, 58, and 59, where the Tribunals, their structure, and procedures are listed, have been skipped out.
Amendments to the Geographical Indications of Goods (Registration and Protection) Act, 1999:
A similar amendment has been brought in the Geographical Indications of Goods (Registration and Protection) Act, 1999, wherein the Appellate Board under the Act has been replaced with the High Court. The Appellate Board’s jurisdiction is transferred to the High Court, and the term “Tribunal” is replaced with “Registrar or the High Court, as the case may be.”
Sections 19, 23, 27, 31, 34, 35, 48, 57, 58, 72, 75 have all been replaced in this way. A few sections, such as 2(1)(a) and (p), 32, 33, and 48, are missing where the Appellate Board is listed.
Commencement of the Tribunal Reforms Bill 2021
The Government of India initiated the process of rationalizing all existing tribunals in 2015. The Government abolished or merged seven tribunals with existing tribunals under the Finance Act of 2017, based on similarities or styles of work done by them, reducing the number of tribunals in India from 26 to 19. In the first phase, the reason was to close tribunals that were no longer required and combine tribunals with similar functions.
The Government had introduced a Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021, to eliminate five more tribunals, including the Intellectual Property Appellate Board (IPAB), and further streamline the current tribunals. The bill creates a process for filing appeals directly with the Commercial Court or the High Court, depending on the situation.
It is worth noting that the Hon’ble Supreme Court has previously condemned the practice of ‘tribunalization’ of justice in India, as well as the filing of direct appeals from tribunals to the Supreme Court.
S.P Sampath Kumar v. Union of India, L. Chandra Kumar v. Union of India, Roger Mathew v. South Indian Bank Limited, Madras Bar Association v. Union of India, and others are some of the notable cases on this issue.
In SP Sampath Kumar Case, the constitutional validity of the Administrative Tribunals Act of 1985 was challenged on the grounds of the Supreme Court’s exclusion of judicial review power under Article 32 and the High Courts’ exclusion of judicial review power under Articles 226 and 227. The Court made no distinction between judicial review and the right to determine again on the merits. The Court assumed that the judicial review authority had been taken away. The Constitution included judicial review as a basic feature. The right of judicial review cannot be stripped away under the constitution. To get around the problem, the Court cited Justice Bhagawati’s observation in Minerva Mills v. Union of India, which stated that judicial review could be eliminated if an appropriate alternative institutional mechanism was offered. The Act was later revised, and the Supreme Court’s authority under Article 32 was restored.
Tribunals are not equivalent to High Courts, according to the Supreme Court’s ruling in L. Chandrakumar Case. It went on to hold that the tribunal’s judgments should be appealable to a bench of two judges in the High Courts, where the tribunal is located. In L. Chandrakumar Case, the idea that tribunals could serve as a replacement for a High Court was overruled. The Supreme Court reversed the decision in S. P. Sampath Kumar, which held that a tribunal could act as a replacement for the High Court. The Supreme Court acknowledged the need for tribunals separate from Courts in L. Chandrakumar but reiterated that no tribunal could truly replace a High Court. L. Chandrakumar’s actions have resulted in certain negative outcomes.
On March 18, 2006, a bill was introduced in the Rajya Sabha to abolish administrative tribunals dealing with service-related matters, as they had been subject to the jurisdiction of High Courts. The bill sought to amend the Administrative Tribunals Act of 1985, which established administrative tribunals.
The aim of this bill is to comply with the Supreme Court’s decision in the case of L. Chandra Kumar. It is no longer necessary to maintain the power to punish for contempt with tribunals as they are now subject to the jurisdiction of High Courts.
Statement and Objects of the Bill
According to Bill’s declaration of objects and reasons, the tribunals that are expected to be abolished are those that manage cases in which the general public is not a litigant or those that neither take away any substantial workload from High Courts nor provide fast resolution.
Many cases, particularly those with major ramifications, do not reach a conclusion at the tribunal level and are appealed to the High Courts and Supreme Court. As a consequence, these tribunals actually add another layer of litigation to the mix.
The IPAB was formed on September 15, 2003, to hear appeals against Registrar decisions made under the Trade Marks Act of 1999 and the Geographical Indications of Goods (Registration and Protection) Act of 1999, among other things.
The IPAB’s authority was later increased in 2007 under the provisions of the Patents Act of 1970, and in 2017 under the provisions of the Copy Right Act of 1957. It’s worth noting that before the formation of this Board, appeals in IPR cases were vested in the High Court.
As a result, the plan to abolish IPAB would effectively restore the status quo, with all cases now pending with IPAB being moved to the commercial courts or the High Courts.
Intent Behind Abolishing Intellectual Property Appellate Board
It is unclear if this is a step toward the creation of special courts within the commercial courts or the high courts, such as a Patents Court, or whether it will result in the demise of the specialized appellate authority for IPR matters such as patents and trademarks.
IPAB was founded with the aim of bringing together the best experts in the field of IPRs as technical members to assist in the adjudication of technical and complicated scientific matters, especially patent appeal cases while working alongside experienced High Court judges.
It cannot be denied that IPAB has released several seminal and ground-breaking decisions over the last decade or so, which have aided multiple litigants while also speeding up the process of justice delivery.
Some of the IPAB’s decisions have assisted the Patent and Trademark Offices in streamlining their work processes. Having said that, it cannot be denied that the Government has had difficulty filling the positions of Chairman and technical members of IPAB for several years in order to ensure that the organization’s goals are met.
The IPAB was inactive for over two and a half years due to vacancies until the Supreme Court of India intervened and extended the term of the superannuated Chairman on January 1, 2020.
If the effort to abolish IPAB was geared toward the establishment of special IP courts within the High Court’s commercial court structure, it would be a positive step toward improving India’s IP security and compliance system, and it aligns with the government’s 2016 National IPR Policy. However, if the Government’s U-turn appears unrelated to those policy goals, it would be a step backward because it will take time for the commercial courts to decide on specialized appeals, revocations, and rectifications under patent, trademark, and copyright law. If a monopoly on a bad patent or trademark is detrimental, then refusing a successful patent or trademark is also harmful to the market, industry, innovation, and the general public.
This article can be cited as:
Ayushi Suman, TRIBUNAL REFORMS (RATIONALISATION AND CONDITIONS OF SERVICE) ORDINANCE, 2021, Metacept- Communicating the Law, accessible at https://metacept.com/tribunal-reforms-(rationalisation-and-conditions-of-service)-ordinance,-2021/.
 Article 123(1), The Constitution of India, 1950.
 S.P Sampath Kumar v. Union of India, (1987) 1 SCC 124.
 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
 Roger Mathew v. South Indian Bank Limited, (2020) 1 SCC 124.
 Madras Bar Association v. Union of India, (2020) SCC Online SC 962.
 Sampath Kumar Case (Supra).
 Article 32, The Constitution of India, 1950.
 Article 226, The Constitution of India, 1950.
 Article 227, The Constitution of India, 1950.
 Minerva Mills v. Union of India, AIR 1980 SC 1789.
 Supra Note 3.
 Supra Note 3.
 Supra Note 2.
 Supra Note 3.