A bill to abolish IP Appellate Tribunal. Is it a case of one step forward, two steps backward!

A move that took many (if not most) IP practitioners and stakeholders by surprise, a Bill titled “The Tribunal Reforms (Rationalisation and Conditions of Service) Act, 2021” was introduced on 11th February, 2021 in the Lok Sabha (lower house of the Indian Parliament). The Bill proposes to abolish “certain tribunals and authorities and to provide a mechanism for filing appeal directly to the commercial court or the High Court, as the case may be”. The apparent reason for such an exercise is that “analysis of data of the last three years has shown that tribunals in several sectors have not necessarily led to faster justice delivery and they are also at a considerable expense to the exchequer”. The Bill further states in its objects that the Tribunals that are proposed to be abolished in this phase are of the kind which handle cases in which public at large is not a litigant or those that neither take away any significant workload from High Courts – which otherwise would have, in any case, adjudicated upon such cases -nor provide speedy disposal. An additional argument in favour of removal of the Tribunals is that many cases do not achieve finality at this level and are litigated further upto the High Courts and Supreme Court, and especially those with significant implications. Therefore, these Tribunals only add to another additional layer of litigation. Rather, having separate Tribunal/s require administrative action in terms of filling up of posts and such other matters, and any delay in such action/s further leads to accumulation of backlog of cases. Hence, reducing the number of Tribunals shall not only be beneficial for the public at large, it will also reduce the burden on public exchequer – while at the same time, also address the issue of shortage of supporting staff of Tribunals and related infrastructure.

Arguably, there are both pros and cons to this approach. It may, in the long run, meet the avowed objective of rationalisation. However, for now and in the near foreseeable future, it is a questionable proposition whether this move would cut down the delays or instead add to the overall pendency of  4 crore (40 million) cases  at the Supreme Court, High Courts and District Courts https://www.bloombergquint.com/law-and-policy/indias-pending-court-cases-on-the-rise-in-charts.

The fact remains that there is long pendency of cases at the Courts and lack of timely appointment of Judges at the High Court is plaguing the system. A recent report by Vidhi Centre for legal policy, that can be accessed here, reveals some of the most appalling statistics vis-à-vis physical infrastructure of the Courts such as lack of navigation tools, unhygienic washroom conditions, complete absence of facilities enabling barrier-free access for persons with disabilities and poor security facilities for courtrooms.

And finally, the Government saying that that creation of the Intellectual Property Appellate Board (IPAB) or Tribunal since the time of its set up in September of 2003, it has not been able to speed up the process of justice delivery system, is clearly not the case here. A post on #SpicyIP suggests that “in its 17 years of existence, the IPAB has not had a Chairperson for a cumulative total of 1,130 days. For example, there was lag of 256 days between the retirement of Justice Jagadeesan and appointment of Justice M.H.S. Ansari in 2006. Similarly, there was a gap of 262 days between the retirement of Z.S. Negi and the appointment of Justice Prabha Sridevan in 2011. There was then a delay of 597 days between the retirement of Justice K.N. Basha and the appointment of Justice Manmohan Singh in 2018”.

Hence, if this Bill is passed, which is likely to be the case, the IP holders will have to brace for further delays while the files are transferred from IPAB to commercial courts and be prepared to work out their way in the resultant confusion that is likely to ensue. Also, because of the delays which are likely to occur, there may be many Patent terms which might expire before the Appeals from the order of the Controller are heard by the Courts. Hence, I do hope that this rationalization will be accompanied by a well thought plan to ensure continuity and maintaining efficiency.

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