The following co-authored piece has been published
by Live Law today:
Rebooting Tribunals and recalibrating delivery
of justice
Justice Virender Singh
and
Major Navdeep Singh
One of the lesser realised aftershocks of the
Emergency was tribunalisation as it exists today. A blow so hard that despite
multiple efforts by our High Courts and the Supreme Court, including
Constitution Benches, to wipe out the deleterious consequences, the ruinous
scars remain.
Tribunals in the present form were introduced
through the 42nd Constitutional Amendment when the concept was employed
as a tool by the executive of the day to blunt-out judicial functioning and it
was probably thought that by creating such bodies some of the subjects of
litigation could be taken out of the purview of the independent judiciary with
the said bodies functioning under and manned by the executive. Though the
Supreme Court put its judicial weight against such blatant attempts through
various landmark decisions such as RK Jain
Vs Union of India
1993 AIR 1769, L Chandra Kumar Vs Union
of India (1997) 3 SCC 26, Union of
India Vs R Gandhi (2010) 11 SCC 1, Madras
Bar Association Vs Union of India (2014) 10 SCC 1 and Rojer Mathew Vs South Indian Bank Limited 2019
SCC Online SC 1456, yet, despite such heavy dicta favouring independence of
tribunals and streamlining of their functioning, the practical situation
remains almost the same as it did without these judicial milestones.
In the latest Constitution Bench decision in Rojer
Mathew (supra), the Supreme Court set aside the Tribunal, Appellate Tribunal and other Authorities (Qualifications,
Experience and other Conditions of Service of Members) Rules, 2017 promulgated by the
Government which gave the Government unbridled power in the functioning and
control of tribunals. The Court directed the Government to institute fresh
rules in line with its decisions pertaining to independence of tribunals. New
rules were then framed earlier this year by the Central Government but these
carry out only superficial changes to the earlier rules and directly contravene
law laid down by the Supreme Court.
Let us scan a few examples.
The new rules do not correct the current
dispensation of tribunals functioning under parent administrative ministries
against which they have to pass orders. This contravenes the Seven Judge Bench
decision in L Chandra Kumar as well as the Five Judge Bench in R
Gandhi wherein it was held that tribunals must not function under the
ministries against which they have to pass orders and neither should the
Members be granted facilities by such ministries. Hence, for example, the Armed
Forces Tribunal today functions under the Ministry of Defence which is the
first party in all litigation before it and against which it has to pass all
orders. But reflecting a complete conflict of interest, the Ministry also
happens to control its infrastructure, finances and staffing. Ditto is the case
with the National Green Tribunal and other tribunals which have to pass orders
against the Government and its instrumentalities. To top it all, complaints
against Members of tribunals are also to be routed through the same Ministries.
Even if it is taken only as a perception, the visible and invisible strings in
such a scenario and the impact on the psyche of litigants can hardly be
ignored.
The new rules also provide for the Secretary
of the Ministry/Department to sit in the Selection Committee for Members of
tribunals. Therefore, the person against whom orders are to be passed, also
selects his/her adjudicators. This arrangement was deprecated and called
“mockery of the Constitution” in Madras Bar Association. In fact, the
Selection Committee has been incorporated in such a manner that it can function
even in the absence of judicial representation whereas the Supreme Court has repeatedly
called for primacy to judicial representatives in such selections.
In R Gandhi, the Constitution Bench had
called for a minimum tenure of 5 to 7 years for Members of tribunals, however
under the new rules, the tenure prescribed is 4 years with an upper age of 65
years, which also is theoretical. In case a retired High Court Judge is to be
appointed, he or she gets a maximum of 3 years in chair since the retirement
from the High Court is at 62 years. Practically, the tenure would be even
lesser since only in rare circumstances is a Judge appointed soon after
retirement. In such a situation, the non-judicial members get a longer tenure in
comparison since they join tribunals at an earlier age. Interestingly, under
these rules, the prohibition imposed on Members for further employment with the
State and Central Governments has been removed.
Again in R Gandhi, vague qualification
criterion for Members such as experience in economics, business, commerce,
finance, management etc was eschewed and struck down. Still, in the new rules,
the said criterion has strangely again been introduced for tribunals such as
the Armed Forces Tribunal and the TDSAT, the logic and legality both of which
is suspect.
For efficient delivery of justice, tribunals
cannot function as stand-alone entities in vacuum without being configured with
an efficient countrywide justice delivery system and our Constitutional Courts.
Time and again the Supreme Court has emphasized on reducing the burden on the
highest Court of the land but there seems to be no end to routine, innocuous
and sometimes frivolous litigation reaching its gates. A Constitution Bench in Bihar
Legal Service Society Vs Chief Justice of India 1987 AIR 38 had
observed that the Supreme Court was only meant for exceptional cases and in
most matters the High Court must remain the final arbiter. It was repeated
thereafter in many decisions that the highest Court of the land must only
interfere in Constitutional matters of general public importance or ones with pan
India implication, however the Court is on the contrary burdened by mundane
appeals and issues such as consumer and matrimonial disputes and direct appeals
from tribunals which should not otherwise find themselves at the entrance
invoking the majesty of the highest Court of the largest democracy. Today, the
term “Special” in “Special Leave Petition” itself has become almost otiose and
redundant. Even otherwise, access to the Supreme Court remains difficult and unaffordable
for most litigants as also observed in RK Jain, L Chandra Kumar and
recently again in Rojer Mathew.
There could be a few suggested practical solutions
to the conundrum:
(a) In line with the
original thought behind the availability of Special Leave to Appeal under Article
136, the matters reaching the Supreme Court by their very nature must be very
rare, involving points of law of general public importance or interpretation of
the Constitution, pan nation implication or where there is a major conflict on
a point of law between two or more High Courts. The Division Benches of the jurisdictional
High Court, an equally efficacious Constitutional Court, must be the final
arbiter as observed in Bihar Legal Service Society, L
Chandra Kumar and Rojer Mathew. Of course, jurisdictions
such as the exclusive and advisory jurisdiction of the Supreme Court cannot be
exercised by any other Court.
(b) Tribunals must
function only under the Ministry of Law & Justice and not under parent administrative
ministries and with the best possible facilities to Members to attract the
optimum talent, with a sufficiently long tenure and under the aegis of an overarching
body such as the National Tribunals Commission as suggested by jurists like Mr
Arvind Datar and also observed by Justice DY Chandrachud and Justice Deepak
Gupta in their separate observations in Rojer Mathew. The Income Tax
Appellate Tribunal is a shining and successful example of a Tribunal functioning
under the Ministry of Law & Justice.
(c) Excessive
tribunalisation must be avoided except in highly technical areas since
litigants are known to express more faith in the regular judiciary. Whenever
instituted, tribunals must not be laden with vague eligibility criteria such as
experience in economics, business, commerce, finance, management etc thereby
making all and sundry eligible. Rather than creating more tribunals, the High
Courts need to be strengthened. Giving stable rosters to High Court Judges can
also bring in more understanding in various specialised branches of law.
(d) Tribunals can also
be created within the regular judicial system with existing judges since there
is a view prevalent, and not without valid basis, that non-judicial ‘experts’
appointed as Members carry over to the tribunal with them a certain over-familiarity
with the subjects which can breed subjectivity. Calling specialized bodies a
cause of decadence and decay, American jurist Judge Simon Rifkind, way back in
1951, stated that it “intensifies the seclusion of that branch of law and
further immunizes it against the refreshment of new ideas, suggestions,
adjustments and compromises which constitute the very tissue of any living
system of law”. There is yet another reason for the regular Court system being
more robust, and that is that Courts never stop functioning even when facing
critical shortage of judges, while tribunals and other quasi-judicial bodies
come to a complete standstill because of non-appointment of Members or retirements.
Interestingly, in certain classes of litigation, the pendency has rather
increased after creation of tribunals.
(e) Widening of the
intra-court appellate jurisdiction of the High Courts for appeals from Single Bench
decisions to Division Benches, thereby giving finality within the same High
Court in more subject matters, must be given due thought so as to provide an
affordable and accessible remedy and to unburden the Supreme Court from
hackneyed cases. This could be more practical than deliberating upon a ‘Court
of Appeal’ sandwiched between High Courts and the Supreme Court.
The issues concerning tribunalisation and
interconnected delivery of justice are not ones which cannot be tackled. It seems
that though the political will to harmonise these issues was never lacking, due
to some reason or the other, and want of consensus amongst stakeholders including
opposition by various ministries, we remain stuck in a whirlwind of total chaos.
As back as on 2nd August 2001, the then Law Minister, late Mr Arun
Jaitley, had stated in Parliament that the Government was moving towards implementation
of the decision in L Chandra Kumar by creating a separate Central Tribunals
Division. Something that has not fructified. More recently, the current Law Minister
had also appreciably alluded to the decisions of the Supreme Court dealing with
tribunals in his opinion piece for the Indian Express on 20th April
2017. The Prime Minister had also red-flagged issues related to tribunals in a
speech rendered on 4th April 2015.
With the political executive having shown its
willingness to tackle these vexed issues, and on the strength of existing dicta
of the Supreme Court, there should be no reason why these matters should not be
resolved to the full satisfaction of all stakeholders, including the litigating
public, at the earliest. It would rather be in the fitness of things to robustly
overrule opposing voices that are not letting the vision of the political
executive, the spirit of the Constitution and the decisions of Constitutional Courts
take full effect and shape.
Justice
Virender Singh is Former Chief Justice, High Court of Jharkhand & Former
Chairperson, Armed Forces Tribunal.
Major
Navdeep Singh is a lawyer at the Punjab & Haryana High Court & Member of the International
Society of Military Law and the Law of War.
