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Central Government Promulgates the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021

18

MAY

2021

The Central Government promulgated the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. The Tribunal Reforms (Rationalisation and Conditions of Service) Bill, 2021 was introduced in the Parliament earlier this year but could not be taken up for consideration and passing. Exercising the power under Article 123(1) of the Constitution of India, the President promulgates this Ordinance.

Through this Ordinance, the Central Government brings some of the substantial changes in the existing framework of appellate bodies and transfer their functioning to other judicial authorities.

In the Cinematographic Act 1952, the ordinance transfers the appellate function of the Tribunals to the High Court amending Section 5C of the Act. Omitting the word “Tribunal” under sections 7A and 7C, it has been substituted with “High Court”. Section 2(h) which defines the Tribunal has been omitted. Moreover, clauses (h), (i), (j), and (k) of sub-section 2 of section 8 which defines the power to make rules have also been omitted.

In the Copyright Act 1957, section 2(aa) which defines the Appellate Board has been omitted. Clause (fa) will be re-lettered as clause (faa) where the Ordinance inserts “Commercial Court” defining it as, ‘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;’. Therefore, this Ordinance transfers the power of the Appellate Board to that of the Commercial Court or the Commercial Division of the High Court. Section 6 which speaks of the disputes to be decided by the “Appellate Board” will be substituted by “Commercial Court”. It omits Section 11 and 12 of the Act where the reference of the Appellate Board is given. The Ordinance substitutes the word Appellate Board with that of “Commercial Court” in sections 19A, 23, 31, 31A, 31B, 31C, 31D, 32, 32A, and 33A. Whereas, for the rectification of the Registrar under section 50, the “Appellate Board will be substituted by “High Court”. For the appeal against the order of the Registrar, the Ordinance provides a direct appeal to the High Court, where such appeal will be heard by a single Judge, where a further appeal will lie to a Bench.

In the Patent Act 1970, the Ordinance omits section 2(1)(a) and (u)(B) where the reference of “Appellate Board” is given. Omitting the word “Appellate Board or” from section 52 of the Act substantiates the point of transferring the power from Appellate Board to High Court. Wherever the words “Appellate Board” or “Board” are appearing, it is either omitted or is substituted by the “High Court” like in Section 58, 59, 64, 71, 76, 113, 117A, 117E, 151. Section 116, 117, 117B, 117C, 117D, 117F, 117G, and 117H will be omitted. All these sections relate to the Appeals to the Appellate Board.

In the Trademark Act 1999, section 2(1) (a), (d), (f), (k), (n), (ze) and (zf) shall be omitted. All these clauses deal with the functioning of the Appellate Board. The clause (s) which speaks about the rules made in the Patent Act will also include rules made by the High Court in relation to the proceeding before the High Court. In sections 10, 26, 46, 47, 55, 57, 71, 91, 94, 97, 98, 113, 124, 125, 130, 141, 144, 157, the Ordinance replaces the word “Tribunal” with that of “Registrar or the High Court, as the case may be,” and for the “Appellate Board”, replaces with “High Court”. Similar to that of Patent, this Ordinance omits all the sections under the Chapter heading of “Appeals”, except section 91, 94, 97, 98.

For the Geographical Indication of Goods Act 1999, the Ordinance transfers the power of the Appellate Board to High Court and replaces the word “Tribunal with that of “Registrar or the High Court, as the case may be,”. Such replacement has been done in sections 19, 23, 27, 31, 34, 35, 48, 57, 58, 72, 75. Few sections such as 2(1)(a) and (p), 32, 33, 48 are omitted where the reference to the Appellate Board has been mentioned.

The Ordinance brings similar changes to the Protection of Plant Varieties and Farmers’ Right Act, 2001. Section 2(d), (n), (o), (y), (z), where the reference to the members and chairperson of the Tribunal has been mentioned, has been omitted. At places such as section 56, 44, 57, the word “Tribunal” has been replaced with the word “High Court”. Few sections such as 54, 55, 58, 59, where the reference to the Tribunals, its composition, and the procedure is mentioned, have been omitted.

The ordinance also brings changes to the Control of National Highways (Land and Traffic) Act, 2002, The Customs Act, 1962, and the Airport Authority of India Act, 1994. In all these act the Ordinance has transferred the power of the Appellate Board to various Judicial Bodies. For the National Highways (Land and Traffic) Act, 2002, the Ordinance transfers the power to the Civil Court. In the Customs Act 1962, the Appellate Authority has been replaced with the “High Court”. For the Airport Authority of India Act, 1994, the “Tribunal” is replaced with “Central Government”.

This Ordinance also brings some of the changes in the Finance Act 2017. Providing substantial changes to section 184 which gives the power to the Central Government to make rules to provide for the qualifications, appointment, salaries and allowances, resignation, removal, and the other conditions of service of the Chairperson and Members of the Tribunal as specified in the Eighth Schedule. It added that an appointment will be made on the recommendation of Search-cum-Selection Committee which will consist of the Chief Justice of India or a Judge appointed by CJI, along with two secretaries appointed by the Government and one secretary of that department under which the Tribunal is set up. The Committee will also have one member who will be a retired Judge of the Supreme Court or the Chief Justice of the High Court, in case the Tribunal is Industrial Tribunal under Industrial Dispute Act 1947, Tribunals and Appellate Tribunals constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The Chairperson of the Tribunal shall hold the office for 4 years or till he attains 70 years of age and other members will hold for 4 years or till he attains 67 years of age. Those Tribunals whose power has been transferred were omitted from the purview of the Finance Act 2017.

Author: Saransh Chaturvedi (an advocate) currently pursuing LLM from Rajiv Gandhi School of Intellectual Property Law (IIT Kharagpur). In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com, Khurana And Khurana – Advocates and IP Attorney

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