The Trouble with Tribunals : Prashant Reddy (From 'OPEN')

This blog has been in the forefront of the fight for judicial independence.

Issues relating to ever increasing tacit control of the executive over judicial functioning and independence by way of tribunalisation have been raised and also addressed to an extent, time and again on the blog. This, this and this post may be perused for past references on the subject on the blog.

While the fight continues to ensure independence of various Tribunals in India, here is an in-depth opinion by Prashant Reddy of the Stanford Law School, who traces the history and genesis of executive control over judicial functioning through tribunalisation in our democracy. The Oped was published in ‘The Open Magazine’ and can be viewed through the original link by clicking here.

The Trouble with Tribunals

(Published in ‘OPEN’)

Prashant Reddy

Ever since the National Green Tribunal (NGT) was first notified in October 2010 to begin operations under the National Green Tribunal Act, 2010, it has been in the news for all the wrong reasons, be it judges quitting for lack of resources or the tribunal being challenged for lack of judicial independence from the Government. This particular tribunal makes an excellent case study of tribunals in general because it mirrors the issues faced by virtually every such entity created in the last three decades, ever since the 42nd Amendment to India’s Constitution enabled their creation.

Let’s start with why the NGT was set up. The earliest call for environmental courts came from the Supreme Court (SC) in the case of AP Pollution vs Nayudu decided on 1 December 2000. In this judgment, the SC had requested the Law Commission of India to study the possibility of setting up special ‘environmental courts’ to tackle complex environmental disputes. It is important to note that the SC and the subsequent report of the 17th Law Commission took care to use the term ‘courts’ and not ‘tribunals’. This is an important difference in the context of the Indian Constitution.

In its report, the Law Commission had called for establishing environmental courts under Article 247 of the Constitution, which permits Parliament to create additional courts. ‘Tribunals’, on the other hand, are established under Article 323A or Article 323B of the Constitution. Now, Articles 323A and 323B were inserted in 1976 via the 42nd Constitutional Amendment, which was enacted during the Emergency imposed on the country by Indira Gandhi’s Parliament. At the time, then Prime Minister Indira Gandhi was furious with India’s ‘independent’ Judiciary, which had not only called the bluff on her election but had also been bold enough to strike down her policies for being illegal and unconstitutional. The idea of tribunals was to transfer some substantial powers of the Judiciary to these tribunals, which did not have the same safeguards for judicial independence that High Courts and Civil Courts did. To shield the rulings of these tribunals from review by High Courts, Indira Gandhi’s amendments also expressly kept them out of the latter’s jurisdiction. The SC was given only limited rights of review under its discretionary powers mentioned in Article 136.

‘Additional courts’ would have come under the jurisdiction of High Courts in most matters; being so placed has major implications for judicial independence since it is the High Court that has the final say in the appointment and removal of all judges in subordinate courts, apart from substantial control over their administrative and financial matters. Tribunals, though, as originally conceived by the Centre, would be dependent on the Government for everything, especially appointments, thus compromising their ‘independence’.

Nevertheless, by the time the Law Commission Report on ‘environmental courts’ ran its course through the Government and Parliament, the idea transformed into one of ‘environmental tribunals’. Thankfully, by 2010, the idea of tribunals had faced such extensive litigation at the apex court (for over two decades), that Indira Gandhi’s original proposition had been watered down considerably. Through a long series of hard-fought battles between the Government and Advocate Bar Associations from across the country, the SC made it clear to the Government that appointments to tribunals could be made only in consultation with the Judiciary; more importantly, it made it clear that High Courts would have the power of judicial review over orders passed by tribunals. By 2010, with the SC judgment in the case of R Gandhi vs Union of India, the distinction between tribunals and courts had worn thin. The Centre, however, appeared to be in denial, and, instead of ensuring conformity with SC judgments, persisted with its old ways, trying to exert control over key tribunals.

When the NGT Act of 2010 was finally enacted by Parliament in October that year and notified as a law, it was promptly challenged in December 2010 in a PIL at the Madras High Court by Naveen Kumar, a law student at School of Excellence in Law, on the grounds that the tribunal lacked judicial independence from the Government. Three months after the PIL was filed, the Madras High Court stayed all appointments to the tribunal on exactly these grounds.

The appointment rules as drafted by the Central Government under the NGT Act allowed for bureaucrats to be appointed to tribunals while holding their original positions in the Government. It was obvious that such an arrangement is contrary to the idea of judicial independence, since a bureaucrat who has to go back to his government job after his term on a tribunal will think twice before passing orders against the ruling dispensation at the Centre. In its judgment in the R Gandhi case in 2010, the SC came down on this practice and held that a bureaucrat could hold a ‘lien’ over his government job for only six months, after which he would have to permanently choose one of the two jobs. This judgment was handed down by the SC on 11 May 2010, and yet the NGT rules challenged by Kumar in his PIL that were notified in November ignored this vital conclusion in the Court’s judgment.

In fact, the rotation of bureaucrats between the Judiciary and the Government is a practice that continues at the highest level of Indian governance. Late last year, a sitting member of the Securities Appellate Tribunal who was of the Indian Legal Service (ILS) and originally a bureaucrat at the Ministry of Law & Justice was appointed legislative secretary of that ministry: India’s top bureaucrat responsible for vetting government legislation before any is introduced in Parliament. One would’ve expected the Government to exercise better due diligence in making such an appointment.

When the Centre appealed to the SC against the ‘stay’ issued by the Madras High Court on the NGT’s operation, the SC lifted the stay and allowed the tribunal to operate pending disposal of the appeal. However, on 16 October 2012, the constitutionality of the NGT was challenged once again by the Madhya Pradesh Bar Association on almost the same grounds as Kumar’s initial challenge. That challenge is pending.

Even more interesting are the events that took place after the SC lifted the stay. At the time, the Government had informed the Court that it had enough members to operationalise six benches of the tribunal. The next six months would prove that while the Government had appointed judges to man the tribunal, it failed to provide it any resources. As a result, in an unprecedented event, at least three judges on the NGT quit their posts, citing frustration on account of lack of resources to perform their jobs.

At first, the NGT was operating from a guest house. Its members were not even given official housing and had to live in government guest houses. Further, the tribunal’s budgetary allocation was reportedly slashed—despite the fact that it did not have much money to begin with.

Lack of resources for tribunals is an old story. For the last two decades, each of them has been provided administrative support and funding by its ‘parent’ ministry. For example, the Ministry of Finance has at least three tribunals that are administered by different departments of the Ministry. The SAT is administered by the Capital Markets Division, the Debt Recovery Tribunal by the Department of Financial Services, and the Prevention of Money Laundering Tribunal by the Department of Revenue.

This story has been the same across ministries. As a result, there was almost no uniformity of resources and service conditions across tribunals. A dangerous aspect of this arrangement was that it gave the Government undue influence over the operation of tribunals since it could cut off resources to a tribunal headed by a judge about to rule against the Government. Once again, the SC foresaw this problem of overdependence on the ‘parent ministry’ and has on two separate occasions—in the Chandra Kumar case and the R Gandhi case—made it clear that tribunals should not be administered by parent ministries and ordered the Law Ministry to take over their functioning in a bid to ensure some uniformity and independence of these tribunals.

Individual ministries have appeared to resist the idea. In an affidavit filed recently at the Punjab & Haryana High Court in response to a challenge to the Ministry of Defence’s control over the Armed Forces Tribunal, the Law Ministry informed the Court that it had floated a proposal for the creation of a Central Tribunal Division in 1997 after the Chandra Kumar judgment, but it could make no progress because individual ministries were reluctant to give up control over tribunals. The proposal was revived last year thanks to a PIL filed at the SC by the Madras Bar Association asking for specific directions to implement the apex court’s judgments in Chandra Kumar (1997) and R Gandhi (2010).

The central government has consistently been ignoring the SC. This just shows that behind the bluster of headline-grabbing judgments, the SC’s word counts for little with the Centre. It is also important to draw a distinction between the attitudes of the bureaucracy and the political class towards the creation of new tribunals. There have been several Parliamentary Standing Committees where Parliamentarians have been reluctant to allow tribunalisation of justice. For example, the Standing Committee that examined the National Tax Tribunals Bill, 2004, was extremely doubtful about a proposal to create special tax tribunals, preferring instead to fill vacancies in the High Court.

The Government has however been able to steamroll such opposition because the bureaucracy has favoured tribunalisation, since it stands to gain.

As things stand, most senior bureaucrats are guaranteed a post-retirement job at tribunals, which have a later retirement age than government jobs and which pay higher as well. In fact, the highest paid government job (in terms of salary) in the Republic of India is not that of the President or Prime Minister, but of Chairperson of the Competition Commission of India, who gets a good Rs 375,000 per month (other members are paid Rs 312,500). The idea of jacking up CCI salaries was to attract private sector talent, but the Commission remains a plum posting for retired bureaucrats, especially secretaries of the Ministry of Finance and of Corporate Affairs.

The last and most serious problem with tribunalisation is its impact on access to justice. A case in point is the NGT. Originally, the Law Commission’s report on environmental courts had—sanely—suggested one such court in every state to ensure easy access to all citizens, since green litigation was widespread across the country. In reality, even this suggestion had its shortcomings; prior to the NGT’s creation, most civil courts and all High Courts had jurisdiction over environmental matters depending on the nature of the dispute. As of today, India’s 28 states have among them 24 High Courts (some states share these), apart from over 600 District Courts and thousands of magistrates. Under the Air Act, Water Act and other environmental laws, State Pollution Control Boards could make an application to magistrates, requesting injunctions against entities flouting pollution norms. Similarly, if a community wanted to sue an industry for damages in a case of environmental pollution, they could do so at any civil court, several of which exist in a district. Lastly, in the case of environmental PILs, any person could petition the High Court for relief. With the creation of the NGT, this access to justice has been throttled because it has only five benches—mainly in cities and under the NGT Act—and no other courts can entertain any environmental litigation. For a country the size of India, just five benches serve little purpose. At the very least, India needs district level forums, especially since access to justice is already such a big problem for the underprivileged.

All of this brings us to the question of why India has an NGT in the first place. There is constant talk about environmental litigation being a sort of rocket science and hence the need for expert adjudicators. This is untrue. As originally conceived by the Law Commission, environmental courts were to be manned only by judges qualified in law with a panel of experts meant to assist the court. The Centre’s final version installed these expert members directly on the bench along with a judge qualified in law. Such an arrangement reveals a poor understanding of the fundamental nature of law and litigation. A judge is not meant to get into fact-finding and rule on principles of science. Instead, in an adversarial system such as the one in India, a judge is only meant to assess the facts and arguments presented by both parties and apply the law to them. Therefore, to decide an environmental dispute, a judge does not need a degree in environmental sciences; instead, he needs to understand the principles of statutory interpretation, the Constitution, the text of the statute and the ideals of justice.

To argue otherwise gives rise to the pedestrian notion that only a doctor can decide a case of medical negligence or that only a coroner can judge a murder case. The idea of justice is tied intrinsically to the interpretation of law, and to deliver justice a judge needs be qualified in law not science. At the end of the day, an environmental court has to decide compensation, interpret regulations and legislation. If it stumbles on a question of fact, the Evidence Act provides for the appointment of expert witnesses to assist the court. There is no need for specialist tribunals such as the NGT.

If it can be successfully argued that there is no need for specialists on tribunals, the Government’s entire case for such tribunals simply collapses, and perhaps we can then start working on the actual problem—the lack of planning and resources for India’s Judiciary.