Columns: Fix the Real Problem with Tribunalisation

Bar & Bench November 2 2017

Somasekhar Sundaresan

The Law Commission has published a report titled Assessment of Statutory Frameworks of Tribunals in India. While the report is a response to five specific issues referred to the Commission by the Supreme Court last year, it promises to be a catalyst to a new debate on the legitimacy of the tribunal framework that has come to dominate justice delivery in India.

First, while repeated constitutional challenges to the creation of tribunals have met with mixed results, with the institution of tribunals largely being upheld (with tweaks to composition and manner of appointment), one fundamental issue has eluded proper consideration and debate.

Under our constitutional framework, separation of powers among the executive, the legislature and the judiciary is a vital fundamental feature of checks and balances in running the polity. However, although a large segment of justice delivery has shifted from courts to tribunals, tribunals are run by the government (executive) and not by the judiciary.

The manner of appointment of its members, performance appraisal, career path for tribunal members, remuneration, terms of service, are all outside the oversight of the judiciary. This is the foremost problem with tribunalisation.  Unless this issue is addressed, one would perpetually face a situation where the main litigant before the tribunal (the government) is the administrative overseer of the tribunal. This poses an inherent and foundational conflict of interest.

A high court judge, once appointed, can only be removed by impeachment by Parliament. That is a constitutional design to provide for judicial independence. That logic is turned on its head, with tribunal members (including retired judges appointed as presiding officers), being mere government employees without any serious procedure for their removal. The breakdown of the separation of powers is potentially the most unconstitutional feature of the functioning of tribunals.

Second, when a tribunal is created, its area of jurisdiction is taken away from the high courts. Long-term damage is being inflicted on the judiciary, which has been zealous in guarding its independence in appointment of judges. However, it has not been zealous in guarding what judges get to do after their appointment.

Legislation after legislation ousting jurisdiction of civil courts (eg. electricity tribunals or the Securities Appellate Tribunal) has been upheld. Appeals from such tribunals typically lie in the Supreme Court, and on the rare occasion, with another intermediate appeal in another appellate tribunal (eg. company law). But clearly, the jurisdiction of the high courts is taken away.

Therefore, what a high court judge gets to work on stands seriously denuded.  Matters of serious commercial, economic policy and regulatory implications get dealt with purely outside the precincts of high courts.

The counter-point would be that writ petitions challenging the constitutional validity of state action can indeed be filed in high courts. However, the rare writ petition that gets filed in a high court and the even rarer writ petition that is actually considered by a high court, would be the exception that proves the rule. The availability of the “alternate efficacious remedy” in the tribunal is the first ground that gets fought in such writ petitions, and invariably leads to the parties being sent to the tribunal.

When a high court judge moves to the Supreme Court and hears an appeal from decisions of these tribunals, she would have barely had a chance to consider these laws in her entire career. When she retires as a Supreme Court judge and potentially gets appointed as a presiding officer of one of these tribunals, she may have to start from scratch with the specialised area of law – negating the very objective of creating specialised tribunals.

In a nutshell, the grand constitutional design of inter-branch conflict among the elected political legislature, the unelected bureaucrats in government and the independent judiciary, stands demolished. The legislature is happy to let the executive pilot legislation eroding the space for real and independent justice delivery. A substantial part of the mind-share of  justice delivery has moved from the judiciary to the direct oversight and indirect control of the executive government.

Finally, it is noteworthy that such erosion of ground under the feet of the judiciary is caused not only by creating tribunals. The very creation of regulatory agencies and giving them quasi-judicial powers, again excluding jurisdiction of courts, is where the problem first gets seeded.

Purely as an example, civil courts have no jurisdiction over areas in which SEBI has jurisdiction. The ouster is at two levels in the SEBI Act, 1992 – jurisdiction of both SEBI the jurisdiction of the Securities Appellate Tribunal. The regulator has to convince no judge in taking action (indeed a perverse incentive to even take ex parte actions with debilitating consequences). No judge outside the tribunal can hear an appeal from such action. After the tribunal, the Supreme Court is directly the forum for the last appeal.

Now, the trend is so pernicious that state legislatures have started passing legislation providing for appeals to the Supreme Court as a matter of right. In other words, states seek to task the apex court with judicial work, bypassing the high courts in having jurisdiction over state-level tribunals.

All of this points to a fundamental design breakdown. At this juncture, the Law Commission’s report (which is only recommendatory in nature) does provide fodder for contemplation. The recommendations largely and rightly focus on aspects of composition of the tribunals and terms of appointment and service.  The Commission also speaks about a “single nodal agency under the aegis of the Ministry of Law and Justice” to oversee all tribunals.

However, the malaise is deeper and needs broader surgical intervention. It can only be corrected by shifting the oversight of the tribunals from the executive government to the judiciary and reclaiming the ground that constitutionally belongs to the judiciary as an arm of the state.

This was first published in the Business Standard edition dated November 2, 2017 as a column under the head Without Contempt.

The author is an advocate and independent counsel. He tweets @SomasekharS

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