The Madras HC in the case of Shamnad Basheer v. Union of India ((2015 SCC Online Mad 299))has declared Sections 85 (2) (b) and 85 (3) (a) of Trade Marks Act, 1999 unconstitutional on the ground that these provisions infringe the doctrine of separation of powers and the independence of judiciary.
Section 85 (2) (b) of the Act provides that A person shall not be qualified for appointment as vice- chairman unless he has been a member of the Indian legal service or has held a post in Grade I of that service or any higher post for at least five years. Section 85 (3) (a) of the Act provides that A person shall not be qualified for appointment as a judicial member unless he has been a member of the Indian legal service and has held the post in Grade I of that service for at least three years.
The petition was filed in the year 2011 by Mr. Shamnad Basheer for the scrutiny of Section 85 of the Trade Marks Act, 1999. Shamnad Basheer, was a Professor of Law, who holds the Intellectual Property Rights Chair at the Ministry of Human Resources and Development (HRD) at the West Bengal National University of Juridical Sciences (WBNUJS), Kolkata.
The case is decided on 10 March 2015. The court observed that while establishing a Tribunal, directions of SC should be followed which clearly states that Judiciary should be protected from Executive. Moreover, Tribunals should be established with similar characteristics and standards of the Court which is to be substituted. It is well established that the guidelines by the Supreme Court are binding in nature. The Court further observed that the directives laid down in Union of India v. R.Gandhi (( 10 SCC 1))have been overlooked, as the selection process for the Intellectual Property Appellate Board is entirely in the hands of the Executive, even though the functions of the same are judicial in nature, thus contravening the Basic Structure of the Constitution. The Court therefore declared the constitution of the Appointment Committee as contrary to the basic structure of the Constitution and directed a re-constitution of the Committee by providing a predominant role in the selection process to the Judiciary.