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52. Independence of Judiciary has always been recognized as a part of the basic structure of the Constitution (See : Supreme Court Advocates-on-Record Association vs. Union of India - (1993 (4) SCC 441), State of Bihar vs. Bal Mukund Sah,((2000) (4) SCC 640), Kumar Padma Prasad vs. Union of India,((1992) (2) SCC 428) and All India Judges Association vs. Union of India,((2002) (4) SCC 247).'' 5.3. The concept of separation of powers was dealt with in extenso after taking note of the decisions rendered in Indira Nehru Gandhi Vs. Raj Narayan, (1975 Supp SCC 1) and L.Chandra Kumar Vs. Union of India, ((1997) 3 SCC 261). Accordingly, it was reiterated that doctrine of separation of powers is part of the basic structure of the Constitution. The following paragraphs are apposite:
6.1. The Madras Bar Association is the petitioner in this case as well. A challenge was made to the constitutional validity of the National Tax Tribunal. The challenge pertains to the formation of the Tribunal, its constitution and violation of basic structure of the Constitution qua the power of judicial review vested in the High Court. By the majority judgment, the creation of the Tribunal was held constitutionally valid, but not its composition, being anathema to the basic structure of the Constitution of India. By a separate judgment, while concurring with the result qua the composition of the Tribunal it was held that the very creation itself as unconstitutional.
''136. (iii) The ''basic structure'' of the Constitution will stand violated if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure that the newly created court/tribunal conforms with the salient characteristics and standards of the court sought to be substituted.
137. (iv) Constitutional conventions pertaining to the Constitutions styled on the Westminster model will also stand breached, if while enacting legislation, pertaining to transfer of judicial power, conventions and salient characteristics of the court sought to be replaced are not incorporated in the court/tribunal sought to be created.'' 6.6. Thus, the Supreme Court was reemphasizing the protection of judiciary from the Executive qua the basic structure of the Constitution. Even in this case, the conclusions are general in nature, being applicable to all similar Tribunals. In any case, the principle of law would a fortiori be applicable to all similar cases.
10. Summation:-
(1) Sub-section 2(b) of Section 85, which provides for a qualification qua a member of Indian Legal Service who held the post of Grade I of service or of higher post at least five years to the post of Vice-Chairman is declared unconstitutional, being an affront to the separation of powers, independence of judiciary and basic structure of the Constitution.
(2) Section 85(3)(a) of the Trade Marks Act, 1999, which provides for the eligibility of a member of the Indian Legal Service and has held the post of Grade I of that Service for at least three years for qualification for appointment to the post of a Judicial Member in IPAB, is declared as unconstitutional, being contrary to the basic structure of the Constitution, (3) The Constitution of the Committee for the appointment of members, both for the Vice-Chairman, Judicial Member and Technical Member is declared as contrary to the basic structure of the Constitution. In consequence thereof, the 1st respondent will have to re-constitute the Committee providing a predominant role in the selection process to the judiciary.