SANJEEV KR. CHASWAL                    LL.M (IPR & ARB AND ADR)                               Advocate         HIGH COURT ...
The slackness on the part of the official in bringing noticewith half heart shows that your office is not interested inrec...
In    the   said       petition     main    challenging     ground     was    theprovisions related to the constitution of...
drafting of rules and acts, always keeping their self interestparamount thereby inserting, adding their roles in one way o...
other civil servants though actually or otherwise they do   not real litigation experience exposure or they know or   awar...
judicial members and the eligibility criteria is solely open tothe bureaucrats as safe post retirement sojourn.The most ce...
terms of service of a member appointed to a tribunal   cannot    be   varied   to   his   disadvantage     after   the   a...
been cut pasting the rules from other rules acts in their         work of making rules and acts for the Government of     ...
Copy to :I.    Shri Kapil Sibal      Ministe r fo r H uman Re source Deve lopme nt      hrm@nic .inII.   Smt. D. Purandesw...
Letter to copy right office for amedment of copyright rules
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Letter to copy right office for amedment of copyright rules

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letter was sent as objection for non inclusion of advocates as judicial member of copyright Board, The implementation of new Copyright rules the recommendation suggested by Sanjeev chaswal advocate has been accepted by the Ministry of HRD for inclusion of advocates as Judicoial member of the Copyright board

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Letter to copy right office for amedment of copyright rules

  1. 1. SANJEEV KR. CHASWAL LL.M (IPR & ARB AND ADR) Advocate HIGH COURT OF DELHI & SUPREME COURT OF INDIA Date 20 t h of September 2012Shri. G. R. Raghavender,Director, Registrar of CopyrightsCopyright Office, 4th Floor, Jeevan Deep BuildingParliament Street, New Delhi – 110001Re: Representation in respect of Draft Copyright Rules,Sir,Please refer to your intention to bring certain changes inCopyright Act, though you have invited and afforded anopportunity to its citizens to send their respective commentson proposed draft copyright rules till 21 s t of September 2012.Firstly, I would like to bring to your attention of an anomalyhas arisen though you have invited citizens comments to newproposed draft rules with caption of inviting comments butyou have failed to bring a important aspect that the saidcomments in reference to said draft rules to be posted or sentto whom, which official, so you have not mentioned theaddress or name of the official to who citizens will send thecomments.
  2. 2. The slackness on the part of the official in bringing noticewith half heart shows that your office is not interested inreceiving comments from its citizens or simply interested tocollecting only selective comments of their choice.In view of the pertinent anomaly raised by me, I would like torequest to your office to postpone or extend the date foraccepting comments from citizens on proposed draft copyrightrules 2012 to bring divergent view of the proposed rules.I hope my request for extending time period for invitingcomments will acceded and ample time will afforded to citizensto give comments on proposed draft copyright rules 2012.Still I would like to bring to you office ofd certain anomalywhich I have observed during reading of few initial proposedrules as mentioned in draft rules, which are stated as underfor your perusal and necessary action.COMMENTS ON DRAFT RULESThat as you have brought a proposal to bring certain changesin Copyright act through inserting new scheme procedure ofthe Copyright Board, as you have proposed in the recent draftof the Copyright Rules, 2012 is most likely to be heldunconstitutional by a Court of Law in future.As you might be aware of recent development had forced yourparent department to bring certain changes in respect ofpresent copy right Board as some southern region music bodyhas challenged the constitutionality of the Copyright Board asoriginally conceptualized under the Copyright Act, 1957.
  3. 3. In the said petition main challenging ground was theprovisions related to the constitution of the earlier copyrightboard which was in violation of the principles of judicialindependence and procedure as well as against the spirit ofthe pronounced law laid down by the Supreme Court in thecase of Mr. R. Gandhi v. Union of India. (Copy of thejudg men t is enclosed)The constitutional pronouncement was delivered by ourrespected judges having sitting in constitutional Benchcomprising of Four Hon’ble Justices : Hon’ble Mr. Justice R.V.Raveendran, Hon’ble Mr. Justice D.K. Jain, Hon’ble Mr.Justice P. Sathasivam, Hon’ble Mr. Justice J.M. Panchal J. on11 May, 2010.Where in the Hon’ble Supreme Court had struck down largeportions of the proposed NCLT as unconstitutional. Inaddition, the Supreme Court had also held that all citizenshad a fundamental right under Article 14 to have their legaldisputes heard by persons qualified in the law. Given thatproposition in the R. Gandhi judgment, one would haveexpected the Copyright Office to ensure that the rules for thenew Copyright Board were in compliance with the SC’s dicta.Sadly, that is not the case, instead, the copyright office inspite of the law laid down by the Hon’ble Supreme Court inMr. R. Gandhi v. Union of India. We are again seeing, yetanother classic example of how the Indian legal bureaucracy,who are part of legislative drafting refuses to accept the soulof the judgment and is not allowing letting go of its grip overpowerful judicial tribunals. As is always the case, the Indianlegal bureaucracy which has been playing part in legislative
  4. 4. drafting of rules and acts, always keeping their self interestparamount thereby inserting, adding their roles in one way orother in the working of tribunals as judicial members abovethe national interest. These legal bureaucracy officials havebeen deriving leverage, benefit or advantages naturally, solelyas being authority or part of legislative drafting processthereby continued to harp same old tunes of inserting theirjobs as minimum eligibility ground / criteria for the judicialmembers job in these tribunals including Copyright Tribunalthus their acts are in to continued defiance and are alsocontrary to very spirit by constitutional bench order in thecase of Mr. R. Gandhi v. Union of India .The tendencies of deriving leverage, benefit or advantagesnaturally, solely as being part of legislative drafting process,thereby inserting the eligibility conditions making suitableonly to ILS services and none else and further keeping outAdvocates in violation of the principles of judicialindependence and procedure, the tendencies of keeping theirself interest paramount then the national interest by virtue ofthe part of legislative process will retreat only until unlessthey get judicial whipping from the Supreme Court or tillsomeday the judicial precedent is not set out by SupremeCourt of keeping them out of tribunals loops and deprivingthem post retirement sojourns.My main grouse and grievance is with the present rulepertaining to the qualification criteria, the process ofappointment and terms of service of “Judicial Member”.(a) Qualifications: The draft rules welcome with open arms both present and ‘have been’ bureaucrats of the ILS and
  5. 5. other civil servants though actually or otherwise they do not real litigation experience exposure or they know or aware of the little intricacies, which are involved with copyright law or grant of copyright, still they have been included as Judicial Members and their service has been made as sole criteria as eligibility for Judicial member service, even though, they do not have requisite exposure or experience in copyright matters / law.(b) In past experience, we have seen such provisions being misused to pack tribunals with only bureaucrats, despite of being having other options being open. A part of the reason for this conclusion was the SC’s apprehension that such bureaucrats who lacked experience in the practice of law in the courtroom would lack the judicial temperament to adjudicate cases in an adversarial case.In the NCLT case, the SC had very clearly stated that onlyjudges or advocates with experience can be appointed totribunals as judicial members. The judgment very clearlybarred the appointment of former bureaucrats, includingmembers of the Indian Legal Service cadre, to anytribunals except in a narrow sliver of cases where thetribunal had the post of a technical member and even inthose cases the Supreme Court had held that the numberof technical members cannot outnumber the number ofjudicial members.The draft rules proposed by the Copyright Office, do notdistinguish between judicial members and technical members,the presumption therefore being that all these members are
  6. 6. judicial members and the eligibility criteria is solely open tothe bureaucrats as safe post retirement sojourn.The most certain indication that the drafters of these rulesintend to pack the Copyright Board with bureaucrats is thefact that these rules consciously omit to allow practicingadvocates to be appointed to this position. After all, ifadvocates can be appointed as High Court judges afterputting certain years in the court practice, what is therationale for the Rules excluding Advocates from applying tothe Copyright Board?I. Appointment method: In the NCLT case, the SC had insisted on judicial consultation for all appointments made to any tribunal. The draft Copyright Rules, 2012, however require judicial consultation only for the appointment of the Chairperson and not the remaining members. This would mean that the Central Government would control the entire appointment process for the other two members and in effect control the tribunal. Who are the people likely to be appointed to these other two positions? With such a cozy arrangement in place, rest assured that the remaining members on the Copyright Board will be retired bureaucrats with no practical judicial experience or acumen, but sole criteria will be of those who are in favor with the ruling regime.II. Terms of service: One of the main features of judicial independence is the terms and conditions of service. Although the amendment to the main statute and even the new draft rules state that
  7. 7. terms of service of a member appointed to a tribunal cannot be varied to his disadvantage after the appointment, the fact remains that the Government can exercise significant influence over a tribunal by simply not applying pay-hikes that members of the tribunals are entitled to. As evidenced by Justice Sridevan’s report on the IPAB, the Central Govt. delayed the application of the full gamut of benefits that IPAB members were entitled to under the 6th Pay Commission. The present draft rules do not lay down the specific terms and conditions and instead state that such terms and conditions will be laid down separately in another set of rules. The nature of the problem however remains the same. In an ideal world, only Parliament should have the powers to fix the terms and conditions of any member sitting on a tribunal.III. Method removal: These draft rules also allows the President to remove the Chairperson and the members from its office after an inquiry conducted by a Judge of the Supreme Court. Strangely, the procedure for removal is as laid down for bureaucrats of the Central Government i.e. Central Civil Services (Classification, Control and Appeal) Rules, 1965. An inquiry into the affairs of a judicial officer cannot be placed on par with those of an executive officer. I understand that currently most of the present tribunals have failed to lay down any detailed procedure to conduct such enquiries and this attempt in the draft rules are probably the first such attempt. These ILS officers have
  8. 8. been cut pasting the rules from other rules acts in their work of making rules and acts for the Government of India, without understanding the nuances or its fallout in case of insertion of wrong or the particular section / clauses in the acts or rules. In my view there is certainly some vigilant citizen or body would approach the Court thereby challenging the half baked rules pertaining to the Copyright Board as proposed by your office for amendment. In view of the above, I hope your office will consider my comments in light of the matter as discussed above and will also bring adequate changes concerning constitution of Copyright Board as proposed by me and further will consider, including practicing advocates with certain years of court practice as eligibility also for Judicial Members Post in Copyright board. Thanks, SD/- (Sanjeev Kumar Chaswal) AdvocateThe copy of the Supreme Court order in Mr. R. Gandhi v. Union of India id enclosed with this letterThe Copies of the comments letter are being sent to following:
  9. 9. Copy to :I. Shri Kapil Sibal Ministe r fo r H uman Re source Deve lopme nt hrm@nic .inII. Smt. D. Purandeswari , Minister of State for Human Resource Development mosedu@nic.inIII. Shri Ashok Thakur , Secretary, Department of Higher Education Secy.dhe@nic.inIV. Smt. Veena Ish , Joint Secretary (Copyrights) Veenaish.edu@nic.inV. Dr. Suresh Chand ,Special Officer (BP)& Dy. Registrar of Copyrights drsureshchand@yahoo.com.VI. Shri V.K. Saxena, Licensing Officer & Deputy Registrar (Copyright Board) 91-11-23365834.VII. Shri V.P. Srivastava, Copyright Information Officer vpsrivastav.edu@nic.inVIII. Shri R.S. Rajput, Under Secretary (IC) Rajput.edu@nic.inIX. Shri Jagdish Swarup, Special Officer (CRB)Res. Flat no: 6C, Skylark Apartments, SFS DDA Flats Site-II, Gazipur, Delhi-110096 and G-332 Preet ViharVikas Marg Delhi-100092, Office: Chamber. No. 288 lawyers Chambers Block- II, Delhi High Court,NewDelhi. OFF. 51, 2ND, Floor, Agarwal Chambers -I, Opp. Shyam Garments, Main Vikas Marg, Shakarpur,Delhi-110092 Tel.:,22240226, 22500 253, 98110-83930 email-chaswals@gmail.com,chaswals@sifymail.com chaswals@yahoo.co.in Bar Council of Delhi No.D-904/1992

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