Trivialising the tribunals

Recently, the Supreme Court of India set aside an order of the National Green Tribunal wherein the said tribunal had directed the reconsideration of appointments of Members of State Pollution Control Boards. The SC reminded the tribunal that though well-intentioned, it wasn’t within the NGT’s jurisdiction to do so, and such orders, if at all, could only be passed by Constitutional Courts under the writ jurisdiction, that is, the High Courts and the Supreme Court. 

Why I am referring to this topical case is because of the utter confusion created by tribunalisation in the administration of justice, with the inception of many of these parallel bodies resulting in more chaos than actually resolving any predicament.

It was expected that with series of decisions of the SC and HCs flagging various issues related to tribunals, including independence, and also the Prime Minister calling for introspection into tribunalisation in 2015, things would move in a more methodical manner. That expectation, however, was utopian. To add to it, the rules for tribunals notified by the Department of Revenue under the Ministry of Finance in June this year embark upon a journey opposite to what had been directed by the SC and also stated by the political executive and endorsed by the Ministry of Law & Justice.

While the SC had directed the placement of all tribunals under the Law Ministry, the new rules place tribunals under parent ministries — those very entities against which the same tribunals have to pass orders!

While the SC had asked for a minimum tenure of 5 to 7 years for members of tribunals, the new rules have reduced the tenures in many tribunals to 3 years.

While the SC had directed the deletion of vague criterion for appointment such as experience in management, finance, economics, administration etc, the new rules have prescribed just that.

While the SC had directed the primacy of the judiciary in the selection process for appointments, the new rules take away that primacy and rather provide that even in the absence of representatives of the judiciary, the appointments in tribunals shall remain valid.

While the SC had ruled against the system of re-appointment to maintain independence, the new rules provide just the opposite.

While the SC had directed that the Secretary of the concerned department against whom orders are to be passed by a tribunal shall not sit in the selection committee, the new rules ignore this and endorse a system of the litigant (government) selecting its own adjudicator. 

The list is long. 

Tribunals are a legacy of the Emergency era, of the 42nd amendment, when these were carved out to take away certain jurisdiction from the independent judiciary and place it with executive controlled quasi-judicial bodies.

However, many of these have created more problems than earlier. Many are understaffed, thereby leaving litigants in a lurch. Then, direct appeals are provided to the SC from many tribunals bypassing the HCs, and that too, not as a matter of right. This, thereby, makes the system totally unaffordable and inaccessible to the common citizen and also burdens the highest court of the land with innocuous and routine matters, whereas a Constitution Bench in L Chandra Kumar’s case two decades ago had ordained that decisions of tribunals must be challenged before Division Benches of jurisdictional HCs so as to ensure access to justice. The set-up of certain tribunals is so absurd that it is beyond belief. For example, the President of the National Company Law Tribunal is a retired Chief Justice of a High Court whose decisions are examined by the National Company Law Appellate Tribunal which has a retired Audit and Accounts Service Officer as the Technical Member. 

Hence, an auditor or a bureaucrat can technically sit over and exercise appellate jurisdiction over orders passed by a retired Chief Justice or even other Judges! 

It is not understood as to why the actual judiciary is not being strengthened with more specialised courts such as the Commercial division, and why, on the contrary, time and money is being squandered on quasi-judicial bodies.

The oft-repeated excuses of ‘expertise’ and ‘reducing burden on courts’ are hollow to say the least, since, firstly, ‘expertise’ of persons who have served in the same department can result in baggage and subjectivity in the decision-making process, and secondly, statistics show that pendency of cases has in fact increased after creation of tribunals in several jurisdictions. Tribunals cannot simply become post-retirement sinecures.

The political executive, especially the Law Minister who has publicly and admirably agreed to give effect to various SC decisions on tribunals, must ensure that regular courts are strengthened and tribunals are retained only for highly technical matters, full independence therein is ensured and the system of direct appeals to the SC from tribunals of first instance is scrapped. In fact, the HCs must be revitalised in actuality being the highest Courts in a federal structure, with the SC only exercising appellate jurisdiction in rarest of rare cases involving points of law of general public importance or major Constitutional questions, as our Constitution had actually envisaged. 

The author is a lawyer at the Punjab & Haryana High Court and was founding President of the Armed Forces Tribunal Bar Association. Views expressed are personal.