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The ToI and the legal news website Law et. al. have both reported on a public interest litigation filed by the Madras Bar Association before the Supreme Court challenging the constitutionality and administration of several tribunals.
The Supreme Court has issued notice to the Union of India on the petition. Given the scope of the relief prayed for in the petition, the case has the potential to both streamline and revolutionize the increasingly powerful and unwieldy tribunal system in India. At stake is the very idea of judicial independence in India. Over the last few years judicial independence in this country has been slowly but steadily encroached upon by the Executive, especially the powerful civil service bureaucracy based in Delhi. What started off with the creation of administrative tribunals, eventually resulted in a whole range of functions being transferred from the High Courts to tribunals which were gradually becoming retirement havens for the civil service bureaucrats in powerful Ministries of the Central Government.
A copy of the writ petition (WP) which is available with us and which can be downloaded from hereraises two issues which are discussed below in order of importance:
(i) The first issue pertains to the constitutionality of the qualification criteria for members of the following tribunals: Competition Commission of India (CCI), Competition Appellate Tribunal (COMPACT), Telecom Disputes Settlement & Appellate Tribunal (TDSAT), Central Information Commission (CIC), Securities Appellate Tribunal (SAT) and lastly the Central Administrative Tribunal (CAT);
(ii) The second issue pertains to the independent and efficient administration of all judicial tribunals in India and in specific it seeks enforcement of the orders of the Supreme Court in its earlier precedents ranging from the Chandra Kumar case to the more recent R.Gandhi case where the Supreme Court struck down portions of the National Company Law Tribunal;
Both issues are discussed in greater detail below:
(i) The constitutionality of the qualification criteria for the members of the above tribunals: One of the prevalent trends in almost all of the latest tribunals be it the CCI, COMPACT, TDSAT, CIC, SAT or CAT is that almost all of them are staffed to the hilt with bureaucrats. Originally, when CAT was formed to resolve service related disputes within the Central Government, the Administrative Tribunals Act, 1985 brought in for the very first time (I think!) the post of an ‘administrative member’ (also sometimes referred to as the ‘technical member’) on a two member bench which would also be staffed by a ‘judicial member’ (who necessarily had legal qualification or experience as a lawyer or a judge). The ‘administrative member’ was not required to be a person with legal qualifications or experience. Instead the administrative member was defined in terms of civil servants with experience as bureaucrats at the Secretary level. The purported idea was to bring in people with subject-matter expertise. The hidden motive however was to provide post-retirement havens for bureaucrats.
In the landmark case of L. Chandra Kumar v. Union of India, a bench of seven judges of the Supreme Court was urged to hold the practice of appointment of administrative members as unconstitutional since they had no understanding or experience of the law. Unfortunately, the Supreme Court declined. I’ve extracted the relevant portion of the Supreme Court’s judgment below:
“96. We are also required to address the issue of the competence of those who man the Tribunals and the question of who is to exercise administrative supervision over them. It has been urged that only those who have had judicial experience should be appointed to such Tribunals. In the case of Administrative Tribunals, it has been pointed out that the administrative members who have been appointed have little or no experience in adjudicating such disputes; the Malimath Committee has noted that at times, IPS Officers have been appointed to these Tribunals. It is stated that in the short tenures that these Administrative Members are on the Tribunal, they are unable to attain enough experience in adjudication and in cases where they do acquire the ability, it is invariably on the eve of the expiry of their tenures. For these reasons, it has been urged that the appointment of Administrative Members to Administrative Tribunals be stopped. We find it difficult to accept such a contention. It must be remembered that the setting-up of these Tribunals is founded on the premise that specialist bodies comprising both trained administrators and those with judicial experience would, by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of judicial members and those with grass-roots experience would best serve this purpose. To hold that the Tribunal should consist only of judicial members would attack the primary basis of the theory pursuant to which they have been constituted.”
With the above ruling, the Supreme Court opened the doors for the creation of more such tribunals staffed by bureaucrats, with or without judicial members. For instance TDSAT is required to be headed by a retired Supreme Court or High Court judge but the other two members can be ‘technical members’. Same is the case with SAT & COMPACT. In the case of other tribunals like the CCI & CIC there is no requirement for any judicial members and the Government may appoint any member who fits the qualification criteria laid down in the parent legislation.
The WP filed by the Madras Bar Association describes in painful details the qualifications and previous employment history of all the ‘technical members’ appointed to these tribunals. It is no surprise that 95% of these appointments consist of ex-bureaucrats who do not even have a law degree. In the case of TDSAT, there was a retired Army General on the list! Most interesting is the fact that it is usually the powerful bureaucrats who are appointed to such tribunals, the most prevalent examples being ex-Secretaries of the Ministry of Finance or Corporate Affairs or DoPT; also the Chairpersons of either the Central Board of Direct Taxes (CBDT) or the Central Board of Excise and Customs (CBEC) and also Deputy Comptroller and Auditor Generals (CAG). Further the list of qualification and job experience of these bureaucrats dispels any notion of ‘specialist tribunals’ that the Supreme Court seemed to have harboured in the Chandra Kumar case. For instance, of the two members of the Competition Appellate Tribunal, one was an ex-Secretary of the Department of Personnel & Training (IAS), while the other was an ex-Deputy CAG from the Indian Audit & Accounting Service (IA&AS). How exactly do either of these members have any expertise in Competition Law? In the Central Information Commission, some of the Commissioners are apparently hiring ‘legal consultants’ to help them out with the law.
The Madras Bar Association’s simple yet elegant argument against such qualification criteria, has been to point out the fact that most of the persons currently sitting as members of these tribunals are in fact not even qualified to practice before these tribunals under the Advocates Act, 1961. The petition argues that the ‘equal protection’ doctrine of Article 14, which does allow for reasonable classification, requires a nexus between such classification and the aim of the legislation. In the case of legislations, which create a particular qualification criteria for persons who can be appointed to the tribunals, the qualification criteria in question has to bear some kind of rational nexus to the purpose of the tribunal which is to adjudicate competing arguments between practitioners qualified to appear before the tribunal. In such a case, it is obvious that the member of the tribunal should at the very least be as qualified as the practitioner who is appearing before him. In most cases only lawyers are qualified to practice law and hence only they can be appointed to tribunals. There are some exceptions, for instance, if Chartered Accountants (C.A.) can appear before the ITAT, they can obviously be allowed to sit as members of ITAT.Therefore unlike the Supreme Court’s rather wobbly criteria in L. Chandra Kumar, the Madras Bar Association has provided the Supreme Court with a rock-solid argument to expel all the bureaucrats from tribunals which should rightfully be staffed only by lawyers.
(ii) The administration and efficiency of tribunals in this country: This limb of the writ petition relies in large part on past precedents of the Supreme Court along with reports of the Law Commission and other similar bodies. I’ve briefly listed out the arguments as follows:
(a) Bringing all tribunals under one Ministry: From the judgment of Chandra Kumar to the more recent R. Gandhi judgment, the Supreme Court has time and again directed the Ministry of Law & Justice to bring the administration of all tribunals under its umbrella. Presently most tribunals are provided administrative support by the ‘parent’ ministry which greatly impedes their independence. For instance, the Securities Appellate Tribunal is provided administrative support by the Ministry of Finance. Despite these directions being given to the Ministry of Law and Justice back in 1997, we are yet to see any action on this front. The WP lists out the entire range of tribunals along with their ‘parent’ ministries. As a result of no streamlined mechanisms to take care of these tribunals, they are terribly administered, especially when it comes to appointment. More often than not, the Central Government makes appointments only when a person files a writ petition before a High Court. This has been the experience in the case of the CLB, IPAB, CIC and countless other tribunals.
(b) Judicial Impact Assessment: One of the key points made by Justice Sridevan in her report to the Madras High Court on the functioning of the IPAB, was that the Central Government had not carried out any ‘judicial impact assessment’ to assess the resources that would be required by the IPAB after it was created. She points out that the Supreme Court in the Salem Bar Association case had urged the central government to carry out such studies while enacting new legislations which had the effect of creating new workload for existing courts or even new tribunals themselves. The Madras Bar Association points out to an absolutely brilliant report submitted by the ‘Taskforce on Judicial Impact Assessment’ (Vol. 1 & Vol. 2). This Committee was set up by the Law Ministry on the directions of the Supreme Court in the Salem Bar Association case and was staffed by the likes of Dr. Madhav Menon & Dr. Mohan Gopal. Unfortunately, the report was never implemented. Such studies are of paramount importance since some tribunals like the Debt Recovery Tribunals (DRT) are simply collapsing under the weight of their backlog. The DRT has a staggering backlog of 37,616 cases involving a sum total of Rs. 11,3081.43 crores (Rs. 11,3081,43,00,000). It is a wonder that the banking system has not collapsed. Other tribunals hardly have the infrastructure to operate. Some like the IPAB have no space, others like TDSAT function from Hotel Samrat, while the CCI operates from the premises of a private building. Sovereign functions of the state must be discharged from buildings owned by the sovereign.
(c) Uniformity in retirement ages and service conditions: The writ petition details the arbitrary and random retirement age and service conditions of different tribunals. There is absolutely no logic in the manner in which Parliament has been setting the retirement ages, term of office and other service conditions for most tribunals. Even the Law Commission in the report no. 232 makes strong recommendations on streamlining the retirement ages of different tribunals. The petition by the Madras Bar goes much further and specifically asks for implementation of the SC’s direction in the R. Gandhi case on the point of term of office. The biggest problem with most tribunals is that they prescribe a term of either 5 or 7 years with little possibility of re-appointment and a retirement age of either 62 or 65 years. As a result of such short terms, most lawyers are reluctant to even apply for the positions at these tribunals as a result of which bureaucrats usually rule the roost.
(d) Administrative Staff: One of the other critical problems being faced by tribunals is the lack of a dedicated administrative staff. More often than not these officers are on deputation from the Central Government for a period of say 3 to 5 years. This prevents them from developing an expertise in case management and judicial administration and also it gives the Central Government excessive power in controlling the kind of officers it sends for deputation to tribunals.
Conclusion: The Madras Bar Association has had a rich history in protecting judicial independence of courts and tribunals in India. In particular, its distinguished members such as Senior Advocate Mr. Arvind P. Datar have been at the forefront of this crusade against the assault on the judicial independence of the tribunal system. This is the third such petition filed by the Madras Bar Association in the last decade. The first was the challenge to the National Company Law Tribunal, which was successful to a large extent in the R. Gandhi case, the second was a challenge to the National Tax Tribunal, which to the best of my knowledge has been pending before the Supreme Court for the last 5 years and the third is the present petition. Apart from these challenges the IPAB has been challenged before the Madras High Court, while the National Green Tribunal (NGT) has been challenged before the Supreme Court. If the Supreme Court has any sense of priority, it will consolidate all these cases and hear them with the same speed with which it heard the Vodafone Tax dispute and the Reliance gas dispute.
Well done Prashant. I think this is the longest blog so far. But I enjoyed every bit of it reading. What I thought is that why it is only Madras bar. Other Bars could also have joined. I do not know whether there was any talk with any other Bars by Madras bar. Joining by other Bars would have been as Shamnad has said in his blog of today under the heading New Leadership at SpicyIP “”If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.”
I think the appointment of V. Ravi as technical Member of IPAB is a blunder. He has never had decided cases while being in IPO for so many years. What is the opinion of other readers? Similalry Usha also had rarely attended cases independently.
To carry out assessment of act or regulation is a nomenclature name is RIA (Regulation Impact assessment) but it is not called judicial Impact assessment as it will create more sort of confusion as Judicial Impact assessment is sort of legal audit where one does audit of courts decision in relation to judicial order or judgement comes under the audit scrutiny in reference to interpretation of legislation by the courts.
That usually many countries at present rather around 50 countries of OHIM Block has already adapted Regulation Impact assessment (RIA) to bring transparency to ensure, assure high quality regulation for its citizens, though I am not disputing their efforts in any manner but i am responding to your blog post solely on one concern in relation to proper use of the term so the Hon’ble judges can be given material on this subject. As I have treasure on this subject if the petitioner or Madras Bar needs my services on this subject I am ready to offer my services for this august petition. You can write on my email [email protected]
As I am luckiest person that presently i am already in midst of completing my dissertation for Institute for constitutional parliamentary studies on “Implementation of Regulation Impact assessment Boon or Bane”
So here I am bringing little write up for our readers which is stated as under:
RIA helps governments makes better regulatory decisions based on information and empirical analysis about the potential consequences of government action. Around 50 countries have adopted forms of RIA to make new regulations.
The aim of RIA is to ensure that better policy options are chosen by establishing a systematic and consistent framework for assessing the potential impacts of overnment action.
The RIA process, when embed¬ded in the policy process, trains decision-makers to ask and answer targeted questions, at the begin¬ning of the policy cycle, about the need for and goals of regulation, and the possible consequences of government action.
The many methods used in RIA—including benefit-cost, cost-effectiveness, and least-cost tests, and partial tests such as administrative burden and small-business tests—are simply means of giving order to complex qualitative and quantitative information about the potential effects of regulatory measures. RIA is not, however, about analytical precision. Even simple analysis based on qualitative information and stakeholder consultation can help identify better and worse options.
The decision on which methods to use depends on the policy issues being assessed. For example, decisions that are highly constrained by resource limitations might use cost-effectiveness analysis, while decisions in which there are many options, trade-offs in economic and social impacts, and unclear constraints will use benefit cost analysis.
Hi Anon,
Thanks for your comment – your dissertation sounds very interesting and I would like to read it once you have completed it.
One the terminology to be used, the phrase ‘Judicial Impact Assessment’ has been used by the Supreme Court in the Salem Bar Association case. So regardless of how the phrase is used elsewhere in the world, in India it will be used in the manner in which the Supreme Court has used it.
Cheers,
Prashant
this petition was long required and Madras Bar Association is doing a commendable job. in my view most of the high court bar associations of the country should intervene and put the views of its members before the court. it will be interesting to see the outcome.
A good article. My simple question is Registries of how many High Courts have developed expetise in case management systems. It is wrong to argue that the adminstrative members will dilute the independence of the Judiciary. The Judgement of the Hon’ble Supreme Court in Shri Chandra Kumar’s case still holds good. The present attempt to malign all administrative members is wrong. Invariably, all the cases decided in those Tribunals go before the High Courts on appeal and where is the question of compromising the independene of the Judiciary.
I wish to congratulate you for your stipendous efforts.
Towards the same cause I have filed CWP No 12445 of 2011 challenging the vires of sections 5(2) & 6(3)(a) for exercise of appellate jurisdiction u/s 15 of the Armed Forces Tribunal Act, 2007 being ultra vires of Articles 14, 21 and 233 of the Constitution of India. S.5(2)composition of Armed Forces Tribunal fails to keep in view that Administrative Member without basic legal qualifications appointed u/s 6(3)(a) is neither competent nor suitable for exercise of appellate criminal jurisdiction u/s 15 of the Armed Forces Tribunal Act, 2007.The powers u/s 15 of the AFT Act are similar to that of an appellate court u/s 386 and 389 etc of the Cri.P.C,1973 and is in breach of basic constitutional scheme of separation of powers and independence of the judicial functions. You may consider including AFT. R.T.P.S.Tulsi, Advocate
Dear Mr. Tulsi,
Thank you for your comment – could you give me your email ID – I would like to discuss this matter with you in more detail.
Prashant
reference my proposal to include Armed Forces Tribunal in your subject writ petition. You may recall that you were kind enough to appear in the PIL filed under my name SLP No.9986 of 2008.
My email id is :[email protected]
It will be my pleasure to discuss the matter on my cell No.09888081944 or as mutually convenient time and place.
Hi Mr. Tulsi,
I think there has been some confusion. I just checked the SC records and Mr. Prashant Bhushan appeared in your SLP No. 9986 – I am not Prashant Bhushan, I am Prashant Reddy.
Regardless, I would still like to discuss the Armed Forces Tribunal with you. I will send you an email on that topic at a later date.
Prashant
Dear Prashant,
A judgement on similar lines related to the functioning of the Armed Forces Tribunal has been rendered by the Punjab & Haryana High Court in a PIL filed by me.
I would like to discuss more with you on the subject. My email address is navdeepsingh (dot) india (at) gmail (dot) com
You may also want to peruse these reports which appeared in the press on the subject:-
http://www.hindustantimes.com/Punjab/Chandigarh/To-ensure-independence-bring-AFT-under-justice-ministry-HC/SP-Article1-987078.aspx
and
http://www.tribuneindia.com/2013/20130109/nation.htm#1
Thanks
Msj Navdeep Singh
Advocate, Punjab & Haryana High Court
Dear Major Singh,
Congratulations on your victory!
I read about the case in the Times of India and have brought the matter to Mr. Datar’s notice. Can you please send me a copy of the order. My address is preddy85[@]gmail.com
Warm Regards,
Prashant