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

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 2012
Shri. G. R. Raghavender,
Director, Registrar of Copyrights
Copyright Office, 4th Floor, Jeevan Deep Building
Parliament Street, New Delhi – 110001
Re: Representation in respect of Draft Copyright Rules,
Sir,
Please refer to your intention to bring certain changes in
Copyright Act, though you have invited and afforded an
opportunity to its citizens to send their respective comments
on proposed draft copyright rules till 21 s t of September 2012.
Firstly, I would like to bring to your attention of an anomaly
has arisen though you have invited citizens comments to new
proposed draft rules with caption of inviting comments but
you have failed to bring a important aspect that the said
comments in reference to said draft rules to be posted or sent
to whom, which official, so you have not mentioned the
address or name of the official to who citizens will send the
comments.

2. The slackness on the part of the official in bringing notice
with half heart shows that your office is not interested in
receiving comments from its citizens or simply interested to
collecting only selective comments of their choice.
In view of the pertinent anomaly raised by me, I would like to
request to your office to postpone or extend the date for
accepting comments from citizens on proposed draft copyright
rules 2012 to bring divergent view of the proposed rules.
I hope my request for extending time period for inviting
comments will acceded and ample time will afforded to citizens
to give comments on proposed draft copyright rules 2012.
Still I would like to bring to you office ofd certain anomaly
which I have observed during reading of few initial proposed
rules as mentioned in draft rules, which are stated as under
for your perusal and necessary action.
COMMENTS ON DRAFT RULES
That as you have brought a proposal to bring certain changes
in Copyright act through inserting new scheme procedure of
the Copyright Board, as you have proposed in the recent draft
of the Copyright Rules, 2012 is most likely to be held
unconstitutional by a Court of Law in future.
As you might be aware of recent development had forced your
parent department to bring certain changes in respect of
present copy right Board as some southern region music body
has challenged the constitutionality of the Copyright Board as
originally conceptualized under the Copyright Act, 1957.

3. In the said petition main challenging ground was the
provisions related to the constitution of the earlier copyright
board which was in violation of the principles of judicial
independence and procedure as well as against the spirit of
the pronounced law laid down by the Supreme Court in the
case of Mr. R. Gandhi v. Union of India. (Copy of the
judg men t is enclosed)
The constitutional pronouncement was delivered by our
respected judges having sitting in constitutional Bench
comprising 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. on
11 May, 2010.
Where in the Hon’ble Supreme Court had struck down large
portions of the proposed NCLT as unconstitutional. In
addition, the Supreme Court had also held that all citizens
had a fundamental right under Article 14 to have their legal
disputes heard by persons qualified in the law. Given that
proposition in the R. Gandhi judgment, one would have
expected the Copyright Office to ensure that the rules for the
new Copyright Board were in compliance with the SC’s dicta.
Sadly, that is not the case, instead, the copyright office in
spite of the law laid down by the Hon’ble Supreme Court in
Mr. R. Gandhi v. Union of India. We are again seeing, yet
another classic example of how the Indian legal bureaucracy,
who are part of legislative drafting refuses to accept the soul
of the judgment and is not allowing letting go of its grip over
powerful judicial tribunals. As is always the case, the Indian
legal bureaucracy which has been playing part in legislative

4. drafting of rules and acts, always keeping their self interest
paramount thereby inserting, adding their roles in one way or
other in the working of tribunals as judicial members above
the national interest. These legal bureaucracy officials have
been deriving leverage, benefit or advantages naturally, solely
as being authority or part of legislative drafting process
thereby continued to harp same old tunes of inserting their
jobs as minimum eligibility ground / criteria for the judicial
members job in these tribunals including Copyright Tribunal
thus their acts are in to continued defiance and are also
contrary to very spirit by constitutional bench order in the
case of Mr. R. Gandhi v. Union of India .
The tendencies of deriving leverage, benefit or advantages
naturally, solely as being part of legislative drafting process,
thereby inserting the eligibility conditions making suitable
only to ILS services and none else and further keeping out
Advocates in violation of the principles of judicial
independence and procedure, the tendencies of keeping their
self interest paramount then the national interest by virtue of
the part of legislative process will retreat only until unless
they get judicial whipping from the Supreme Court or till
someday the judicial precedent is not set out by Supreme
Court of keeping them out of tribunals loops and depriving
them post retirement sojourns.
My main grouse and grievance is with the present rule
pertaining to the qualification criteria, the process of
appointment 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. 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 only
judges or advocates with experience can be appointed to
tribunals as judicial members. The judgment very clearly
barred the appointment of former bureaucrats, including
members of the Indian Legal Service cadre, to any
tribunals except in a narrow sliver of cases where the
tribunal had the post of a technical member and even in
those cases the Supreme Court had held that the number
of technical members cannot outnumber the number of
judicial members.
The draft rules proposed by the Copyright Office, do not
distinguish between judicial members and technical members,
the presumption therefore being that all these members are

6. judicial members and the eligibility criteria is solely open to
the bureaucrats as safe post retirement sojourn.
The most certain indication that the drafters of these rules
intend to pack the Copyright Board with bureaucrats is the
fact that these rules consciously omit to allow practicing
advocates to be appointed to this position. After all, if
advocates can be appointed as High Court judges after
putting certain years in the court practice, what is the
rationale for the Rules excluding Advocates from applying to
the 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. 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. 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)
Advocate
The copy of the Supreme Court order in Mr. R. Gandhi v. Union of
India id enclosed with this letter
The Copies of the comments letter are being sent to following:

9. Copy to :
I. Shri Kapil Sibal
Ministe r fo r H uman Re source Deve lopme nt
hrm@nic .in
II. Smt. D. Purandeswari ,
Minister of State for Human Resource Development
mosedu@nic.in
III. Shri Ashok Thakur , Secretary,
Department of Higher Education
Secy.dhe@nic.in
IV. Smt. Veena Ish , Joint Secretary (Copyrights)
Veenaish.edu@nic.in
V. 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.in
VIII. Shri R.S. Rajput, Under Secretary (IC)
Rajput.edu@nic.in
IX. Shri Jagdish Swarup, Special Officer (CRB)
Res. Flat no: 6C, Skylark Apartments, SFS DDA Flats Site-II, Gazipur, Delhi-110096 and G-332 Preet Vihar
Vikas Marg Delhi-100092, Office: Chamber. No. 288 lawyers Chambers Block- II, Delhi High Court,New
Delhi. 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