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
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.
· 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.
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.
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.