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Guest Post: State of Tribunals in India



We have for our readers a guest post by our regular guest blogger, Mr. Sai Vinod Nayani on the state of tribunals in India. This is a very relevant post keeping in mind the pending PIL against the IPAB. 

State of Tribunals in India

By

Sai Vinod Nayani

The 42ndAmendment which inserted Part XIV-A to the Indian Constitution provided nothing more than substituting courts for specialized tribunals in certain matters. The result, tribunals become another wing of the Executive. The courts left with no choice, deciphered vague norms on judicial propriety for tribunals from the doctrine of separation of powers. Although, initial pronouncements date back to 1950s, the Government is yet to formulate any uniform policy on tribunals. In the past three years alone, four tribunals have been held unconstitutional and few others are queued up before courts across the country facing similar charges.

Recent Developments

·     The Calcutta High Court, in July this year, faulted the composition of the West Bengal Land Reforms & Tenancy Tribunal for having ‘two state government representative and one judge’ on the bench.

·          
      Section 5(5) of the National Tax Tribunal Act, 2005 permitted the Central Government to transfer members of the National Tax Tribunal from one bench to another upon ‘consultation’ with the Chairperson. The Central Government agreed to interpret ‘consultation’ to mean ‘concurrence’ with the opinion of the Chairperson. It also clarified that the opinion of the Chief Justice of India (CJI) cannot be overpowered by the Secretaries of Ministry of Law & Justice and Finance Ministry on matters of appointment. The proposed changes, however, are yet to see the light of the day.
·        
     On May 11, 2011, the Constitutional Bench of the Supreme Court declared the provisions of the Company Law Tribunal under the Companies Act, 1957 as unconstitutional. The Court laid down minimum requirements on various matters pertaining to administration of tribunals including qualifications of members, appointments and removals and provision of support staff.


·         The Central Government made rules designating the Revenue Secretary to head the Selection Committee for appointments under the Prevention of Money Laundering Act, 2002. To this, the Supreme Court in Pareena Swarup v. Union of India directed the Central Government to replace the Chairperson of the Selection Committee with a judge nominated by the CJI. Further, the appointment and removal of members of the tribunal has to be made only upon consultation with the CJI.

Pending Litigation

Apart from the constitutional challenges to IPABand the Copyright Board (latest update on the matter can be found here), the other tribunals under challenge include:

National Green Tribunal: The Supreme Court lifted the initial stay imposed by the Madras High Court on appointment of members of the specialized tribunal dealing with environmental matters. Couple of week ago, the Supreme Court expressed its anguish on step motherly treatment meted out to the green tribunal and directed the Centre to provide adequate office space and proper accommodation to its members.
·     
       Appellate Tribunal for Electricity: The two-judge bench of the Supreme Court admitted a petition challenging the constitutionality of the Tribunal constituted under the Electricity Act, 2003. The impugned provisions are identical to the one in PMLA which were earlier struck down.


Is Tribunalization a ‘Judicial Sell-out to the Executive’?

The common thread among these matters is the serious indifference for independence of judiciary in relation to the administration of tribunals and a compromise on the requirement of judicial mind expected from an adjudicatory body. This being so, Justice Ruma Pal recent address on ‘An Independent Judiciary’ at the Justice Tarkunde Memorial Lecture last month points out where the Legislature skewed up while setting up tribunals. Putting the blame squarely on the judiciary for its ‘timorous’ approach in validating tribunals manned by the members of the Executive, she calls this a ‘judicial sell-out to the Executive’. The efforts of the Supreme Court in ensuring ‘independence’ of these bodies, in her opinion are ‘not enough’ and are at best, ‘adjustmentsin the law which are more in the nature of sops to the concept of judicial independence rather than an assertion of it.’

Further, Justice Pal opines that the institutional reputation for ‘impartiality’ and ‘non-partisanship’ is seriously tarnished if tribunals continue to be subjected to administrative and financial control of the Executive. Besides legalistic reasons, Justice Pal doubts if former Government Officials (in some cases serving employees) can effectively discharge ‘judicial functions’ which often require authorizing harsh actions against the Government and its policies which he/she would have previously adhered to.

What is so ‘special’ about these tribunals?

The Constitution provides for constitution of additional courts and Articles 128 and 224(1) allows for expansion of the existing strength of the higher judiciary. If litigation explosion is a concern, Justice Pal questions why Legislature did not take recourse to these constitutional measures which have an inbuilt advantage of judicial ‘independence’. Furthermore, Justice Pal views the presence of technical members as meaningless for ‘improving the quality of adjudication’, because the courts are free to seek expert opinion when necessary. She adds, “To have technical members (meaning officers of the Executive) on a Tribunal is as repugnant to the independence of the judiciary as, for example, having the Secretary of the Ministry of Finance sitting on a Bench of the Supreme Court or High Court to decide income-tax matters”. Moreover, contrary to its objective, tribunal increase the burden on the courts as their decisions amenable to the jurisdiction of High Courts and the Supreme Court. Viewed from this perspective, it appears that the Executive intends to circumscribe the role of the judiciary.

Stock-Taking

Judges of the High Judiciary draw salaries directly from the Consolidated Fund and the amount is not voted on the floor of the House. The salaries and allowances of IPAB members, on the other hand, are ‘prescribed’ by the Government. There are many such instances where the tribunals are denigrated to a governmental department although they replace the authority of the High Courts. Recently Justice Sridevan in her report to the Madras High Court demonstrated the deep roots of Executive control over the IPAB and agreed with the petitioner on lack of judicial independence. Unfortunately, this is the case with many other tribunals which often take directions from their promotional agencies and sometimes even operating directly from their offices.

It is not disputed that ‘technical’ assistance makes for better adjudication. But, as Justice Pal pointed out, judges can always take recourse to amicus curiae. Justice P. K. Balasubramanyan in a petition challenging the appointment of members to the Competition Commission of India suggested ‘creation of two separate bodies, one with expertise that is advisory and regulatory and the other adjudicatory’. This brilliant suggestion, in fact, has a dual effect of institutionalizing technical assistance in adjudication and at the same time ensuring judicial independence. Just like the National Litigation Policy 2010, the situation calls for an immediate reassessment of tribunalisation in India and the Government should refocus on formulating a policy rather than prolonging litigation.

Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

3 comments.

  1. AvatarG Vijayaraghavan

    It is not that the Ho’ble Judges of High Court and Supreme Court draw their salary from the Consolidated Fund directly. Their salary is charged to the Consolidated Fund and not voted. Just because it is not voted does not mean that their salary is not fixed. In fact, the salaries of judges was fixed in the Constitution which led to rigidity in their salary. This resulted in the salaries of Judges remaining unchanged till 1988. Only after a constitutional amendement made in 1988, a prvision was made whereby the salaries of Judges could be increased by a statutory amendement of the Act. The tribunalisation is a necessity in this age when the judiciary is not able to do anything about pendency of cases. In fact all the tribunals are headed only by serving/retired judges and I don’t think those Hon’ble Judges will bend to the executive.

    Reply
  2. AvatarUnknown

    Hey Vijayaraghavan,

    Thanks for pointing it out.

    1. Altering the salaries of IPAB member does not even require a statuory amendment. Becuase, the Act delagates the authtority to the Government.

    Also, government dare alter salaries without consluting the judiciary. Read this for instance http://www.indianexpress.com/news/judges-salary-set-to-go-up-threefold/360507/

    2. The judiciary is not able to clear pending matters because it does not have enough man power. My point is that this a flawed justification for creating tribunals.

    3. There are two other non-judicial members who have equal powers in taking decisions. So, the opinion of the serving/retired judge can be overpowered. Besides, how do former judges become members of Rajya Sabha (because of their sepcial knowledge or practical experience literature/science/art or social service?!)

    Best,
    Sai

    Reply
  3. AvatarIPvocal

    Dear Prashant

    this article is half baked in needs little more finesse, the tribunal culture started way back in 1980 when cat came up and time to time ministry under government has bringing new tribunals having different set ups of judicial / technical members having different parameters with no parity at all her is one example
    In CAT any member whether judicial or administrative draws all perks and salary equivalent to a HC judge but in case of like IPAB though same like CAT all legal matters are being transferred from respective HC’s to IPAB but still member salary is not equivalent to HC Judge.

    As I personally feel these all appointments are basically after retirements abodes solely available serving or served government servants, who had worked with the governments in tandem and later Governments awrd them with post retirement benefits.

    Why till date the central government has not able to bring one service conditions ion all the tribunals if you look at the cyber Tribunal there only reired judge and other reired legal officers who had worked up to the level of minimum additional secretary law are eligible.

    How many judges or a class legal officer presently in all high courts have dealt with cyber law, as far as I know there are few restricted courts where Cyber law related case come up and one can count these cases in few numbers that may be somewhere 20 to 50 cases in all high courts and particularly this particular law has been made in year 2000 and still when the matter of appointment comes, government tilts only towards retired judges or other bureaucrats whey these tribunal appointments are restricted to only these two class of people and why these appointments are not open to lawyers etc…..

    We need to ponder on this issue more and bring out more factual discrepancies in all the tribunals.

    Reply

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