Legalising Tribunals: A Judicial Sell Out?


In a watershed development, the Government of India announced that it is now considering an umbrella legislation for all tribunals. Those of you tracking this space will appreciate that tribunalisation has been one of the most contentious issues in India, with  fresh constitutional challenges filed against tribunals almost every year. 

Essentially a creature of Mrs Gandhi’s anxiety to rein in the power of a fiercely independent judiciary, tribunals were set up as allegedly speedy and specialised alternatives to regular courts. As expected, they were staffed for the most part with executive stooges, raising serious issues about their impartiality and independence. As tellingly noted by Justice Ruma Pal (a former judge of the Supreme Court) in her Tarkunde memorial lecture :

“It has been said of Britain by a British judge that “the reputation of the judiciary for independence and impartiality is a national asset of such richness that one government after another tries to plunder it.” The same could be said of the Indian judiciary.
…The year 1976 saw the Executive deliver what they must have perceived as the coup de grace against a stubbornly independent judiciary by the enactment of the 42nd Constitutional amendment which introduced Articles 323A and 323B, authorising legislatures to create tribunals for adjudicating disputes..”

Controversial Appointments/Other Tribulations:

Appointments to many of these tribunals have been highly controversial. In a case highlighted by us on this blog, an appointment to the IPAB (Intellectual Property Appellate Tribunal) was made on the basis of an application by a candidate who attempted to demonstrate his trademark expertise by claiming to have represented clients in a legal dispute dating back to 1880’s, almost eight decades before he was born! Perhaps the first time that a job applicant expressly relied on the concept of reincarnation to bolster his application!

Most worryingly perhaps, a survey of our tribunals reveals that the government has meted out what can only be described as shabby treatment, denying tribunals access to adequate resources and personnel, as befitting a high level judicial body. When I visited the IPAB in Chennai around a year ago, I was aghast to see a large part of the IPAB’s floor space littered with files, since there was no other space for them. It turns out that this piling up had even caused an employee of the IPAB to trip, fall and break his hand!  Little wonder then that many judges often refuse offers to head up these tribunals! 
Most importantly perhaps, the twin advantages upon which tribunals had been initially been premised (namely, “speedy” and “specialised” justice) do not appear to have played out in a large number of cases. 

IPAB Challenge:

It is for these reasons that we challenged the constitutionality of one such tribual, the intellectual property appellate tribunal (IPAB) almost two years ago in a public interest litigstion (PIL) before the Madras High Court. Unfortunately, this challenge has not made any significant progress so far, and the court has not even begun to apply its mind to the serious constitutional issues at stake. 

What makes this delay even more tragic is the fact that this is not a new issue before the court; rather courts have been confronted with constitutionality challenges for the last two decades or so. And in the famous NCLT case, the Supreme Court laid down very clear norms governing the constitutionality of tribunals. Amongst other things, the apex court noted that only those with serious judicial mettle ought to be appointed to tribunals and that such appointments must be largely free of executive influence. All that the Madras HIgh Court has to do is to apply these norms to the facts at hand and voila.. it will be self evident (to even a six year old) that the IPAB is not on firm constitutional footing. 

Further, this case is one of those exceptional ones where the Chairman of the IPAB herself went on record calling for a thorough restructuring of the IPAB to bring it in line with the Supreme Court’s ruling in the NCLT case.

New PIL by Datar/Reddy Contribution:

Arvind Datar, the crusader behind the NCLT case, filed another PIL earlier this year before the Supreme Court highlighting a select set of tribunals and their abysmal record/performance as also the various constitutional infirmities plaguing them. And it is this new PIL that has triggered this welcome reaction from the government to seriously consider an umbrella legislation to place tribunals on a more efficient and constitutionally sound footing (under the overall superintendence of the law ministry). 

“The government is working on bringing all Central tribunals including the Intellectual Property Appellate Board and the Telecom Disputes Settlement and Appellate Tribunal under the law ministry.

An inter-ministerial group (IMG) is meeting on Friday on the issue to discuss the modalities of the framework. The move comes after the Supreme Court issued a notice to the Centre, based on a PIL filed by the Madras Bar Association, asking it to bring all tribunals under the law ministry.
“All the departments which have tribunals will put forward their view point on how to bring all tribunals under one umbrella. There are around 20 tribunals and they need to be brought under one ministry as per the apex court’s direction,” an official told said.
The idea of bringing all tribunals is essentially to better regulate the appointment, removal or administration of these bodies. Also, funding of such bodies will also be looked after by the law ministry.
The PIL had argued that tribunals functioning under different ministries had affected their functioning and in some cases had also resulted in appointment of members not qualified to practice.”

I have to mention that a large part of the credit for all of this goes to Prashant Reddy  who took the lead in drafting and filing the IPAB petition. He then worked tirelessly to gather  data on various other tribunals to demonstrate their pitfalls; it was this data and several of his arguments that constituted the writ that Mr Datar finally filed in the Supreme Court (SC) on behalf of the Madras Bar Association. I am glad that his efforts appear to be finally paying off!

Tribunals vs High Court “Special” Benches:
However, the debate is far from over. As our polls demonstrated, many prefer specialised HIgh Court benches to specialised tribunals. Leading senior counsel, Mukul Rohatgi went on record in a lively TV debate some weeks ago vociferously demanding that, rather than wasting precious time and resources on tribunals, we’d be better off if we simply instituted specialised benches (an IP bench, a competition bench etc) at the various High Courts. 

This line of thought finds resonance in Justice Pal’s speech as well, where she labels the NCLT approach as a classic judicial sell out! In her words:

“Although the Supreme Court intrepidly asserted the independence of the judiciary to justify virtually excluding the Executive from having any real say in the appointment of judges, it was timorous in defending the same independence when it was most needed, namely in answering the question of whether the powers of adjudication can be shared with the Executive. Under the Constitutional scheme, in keeing with the separation of powers, judicial functions are to be performed by the judiciary alone and not by the Executive. 

….In a Kalidas-like action of cutting the branch of the Constitutional tree on which the Judiciary is sitting and what in less picturesque language one can only describe as a judicial sell out to the Executive, the Supreme Court has upheld legislations establishing tribunals in a number of decisions subject to certain “adjustments” in the law which are more in the nature of sops to the concept of judicial independence rather than an assertion of it.”

Shamnad Basheer

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

One comment.

  1. AvatarAnonymous

    The article omits the mention of the judgment Sampath Kumar vs Union of India delivered in 1986. It is up to the legal experts to decide whether the judgment is on the strong foundation or on the foundation of impulses. I am a victim of the judgment. I am happy to say a few legal luminaries have acknowledged my letters. High Courts are Constitutional Bodies and they have been in country since the British time. It is apt to quote the words of Thomas Carlyle
    ” We will not estimate the sun by the quality of gas light it saves us.”

    Rama Krishna
    [email protected]

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