Op-ed: Excessive Tribunalisation- the pitfalls of parallel extra-judicial super-courts!

My opinion piece on Excessive Tribunalisation in India, published today in Moneylife, is reproduced below:

EXCESSIVE TRIBUNALISATION: THE PITFALLS OF PARALLEL EXTRA-JUDICIAL SUPER-COURTS

Navdeep Singh

Emergency it was when the concept of Tribunalisation was pushed into the national consciousness through the 42^nd Amendment. The idea was clear for the rulers of that day- tacit executive control over judicial functioning through quasi-judicial bodies piggybacking on the bogey that these shall relieve regular Courts of their burden.

Notwithstanding the repeated red-flagging by the SC, excessive Tribunalisation, with the eagerness of the executive to give it impetus, slowly and surely threatens the judicial fabric of our democracy with the creation of parallel extra-judicial Super-Courts which are now dangerously hovering over the citizenry with a life of their own without being effectively amenable to the regular judicial set-up of the Westminster model, a fright we must no longer ignore.  

The recent statement of the PM over functioning of Tribunals vis-a-vis regular Courts rightly created a lot of buzz and was reflective of the concerns of jurists, lawyers, litigants and bar associations over the functioning of Tribunals, which, in their present form, do not inspire confidence of stakeholders and end up as post-retirement sinecures or a case of ‘dangling carrots’ rather than the noble aim of rendering justice in the form of public service to the community.

To take a few examples, many Tribunals function under those very ministries against whom they have to pass orders. The Debt Recovery Tribunal and the Debt Recovery Appellate Tribunal function under the Ministry of Finance, the Armed Forces Tribunal functions under the Ministry of Defence while the Telecom Disputes Settlement and Appellate Tribunal functions under the Ministry of Communications & IT. These Ministries not only control Tribunals with invisible strings but also with tangibles such as infrastructure, finance, salaries and staff along with the rule-making power. Secretaries of the same Ministries (the opposite parties in litigation) sit in the selection, reappointment and inquiry panels of Adjudicating Members of the Tribunals. Continual directions by even Constitution Benches of the SC to place the control of Tribunals under the Ministry of Law & Justice have not yielded any positive change. Ministries refuse to part with their fiefdoms, a situation diametrically opposite not only to our Constitutional norm of separation of power but also against the concept of judicial independence recorded in Article 14 of the International Covenant on Civil and Political Rights. It therefore comes as no surprise that Courts in many nations have resisted the encroachment of judicial functions by executive-controlled bodies- in the US (Northern Pipleline case, 1982), Canada (Residential Tenancies Act case, 1981), Australia (Harry Brandy case, 1995) and even in Pakistan (Riaz-ul-Haq case, 2012).

It should concern all of us that while our fiercely independent Constitutional High Courts have steadfastly protected the rights of citizens from official tyranny, the shape of Tribunalisation is stealthily being moulded in a manner to blunt out the power of our HCs conferred by Articles 226 and 227 of the Constitution. For many Tribunals, illusory and non-vested appeals are being provided directly to the SC by circumventing HCs to ensure that the latter do not maintain a check on the functioning of such Tribunals by keeping them within the confines of law. Even provisions of direct appeals to the SC are designed in such a fashion that they are not maintainable in most cases. Some Tribunals such as the Armed Forces Tribunal have become the first and the last court for litigants and all-pervasive bodies neither amenable to HCs nor to the SC and without a vested right of judicial review since a direct appeal has been provided to the SC only in limited cases where there is the exceptional involvement of a “point of law of general public importance”. Hence contrary to what is projected, some Tribunals have left litigants remediless and justice made so inaccessible and unaffordable that affected parties are expected to rush to the highest Court of the land in Delhi even for petty and routine matters. Both law-makers and law-interpreters need to ponder over such deleterious consequences.

The PM’s cue should have ideally generated a call for strengthening of our real Courts and reducing the length and breadth of Tribunalisation except in highly technical matters involving precise expertise. Reduction of burden on Courts cannot be at the cost of independence of judicial functioning by creating an analogous quasi-judicial hierarchy functioning under the executive.

So what can be the way out? In order to restore public faith, the following steps appear worthy:

Though best avoided, if a pressing need is felt then Tribunals may only be retained as replacement of the jurisdiction of Courts of first instance in specialised subjects and fully amenable to the writ jurisdiction of High Courts on lines of the Central Administrative Tribunal.

The correct function of Tribunals should remain to supplement and filter out cases for the superior judiciary and not to replace it. Other than highly technical matters, Tribunals can at best function as fact-returning bodies of experts leaving adjudication of disputes to regular Courts.

Tribunals may not be allowed to be seen as post-retirement sinecures. An orientation capsule be introduced for non-Judicial members.

Tribunals should be placed under an independent body or commission, and till that ideal objective is achieved, under the Ministry of Law & Justice as an interim measure, on the lines of the Income Tax Appellate Tribunal, and may not be allowed to function under parent Ministries. Bureaucrats of the said Ministries should never be made a part of selection process for Members of Tribunals.

Members of Tribunals should be provided the best possible facilities but not from the Ministries against which they have to pass orders. Members should be given the security of tenure but without the system of reappointment.

Since “reduction of burden” on Courts and “quicker dispensation of justice” was ostensibly the aim of Tribunalisation, a stringent provision for time-bound redressal must be incorporated in all statutes dealing with Tribunals.

The striking down of the National Tax Tribunal last year has raised hopes that any attempt to undermine the independence of judicial functioning would not be allowed to prevail in our democracy. While stakeholders hope that the PM’s sentiments get translated into actual action, the system needs to wake up to the reality that a litigant has more faith in independent adjudicating Courts with an expedient cost-effective mechanism of judicial review with Constitutional Courts rather than being stuck in a chaotic labyrinth functioning under the thumb of the opposite party reflecting the worst kind of conflict of interest, a peril we must fervidly resist.

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