Tribunals and the increasing inroads by the Executive

Under our Constitutional scheme, as it originally stood, there was not even a mention of tribunals. Initially, the primary reason attributed to the creation of tribunals was overcoming the crisis of delays and backlogs in the administration of justice as highlighted in the 14th Report of the Law Commission of India. However, the report also cautioned against “executive-adjudication”, and discussed the supplementary role that tribunals should take and not supplanting traditional courts.

Another reason that is often attributed to the creation of tribunals is the rise of specialised socioeconomic legislations. The expertise and knowledge in specialised areas of law that was felt to be insufficiently demonstrated by judges of traditional courts. It was during the “Emergency era”, when various amendments to the Constitution vide the 42nd Amendment were brought into force. The Swaran Singh Committee recommended the exclusion of jurisdiction of all courts in relation to tribunals, except that of the Supreme Court under Article 136 and limiting the High Court’s writ jurisdiction.

Through Article 323A, the power to adjudicate service disputes was taken away from the civil courts, and vested in administrative tribunals instead. Article 323B provided for the constitution of tribunals for other matters, illustrated under Article 323B(2). The jurisdiction of all courts was excluded, including the exercise of writ jurisdiction, and only the SC’s power to grant leave to appeal was allowed. Therefore, though the official rationale for the insertion of these provisions spoke of pendency in courts and the need for speedy disposal, the real purpose was to strengthen government control at the expense of the judiciary.

When the 1985 Act was enacted in line with Articles 323A and 323B, a challenge to its constitutional validity was immediately filed. [S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124.] However, the principal arguments in this case centred around the ouster of judicial review rather than encroachment and appointment by executive. The SC held that tribunals could replace the entire jurisdiction of the High Court on matters permitted under Art. 323A and 3235B. A 7-judge bench in L. Chandrakumar vs. UOI, (1997) 3 SCC 261 came to reconsider the S.P. Sampath decision. The apex court rose to the occasion and held that power of judicial review and superintendence were part of the basic structure of the Indian Constitution therefore no tribunal can abrogate this power.

The jurisdiction of courts in several areas was starting to get whittled down and being transferred to statutorily created tribunals, under the aegis of the Executive and Legislative arms of the State. The Government (Executive) retained the power to appoint the Presiding Officers for these fora. While the Sampath Kumar and Chandra Kumar decisions concerned tribunals constituted under Article 323A, the National Company Law Tribunal (NCLT) was meant for divesting the original company law jurisdiction statutorily vesting till then with the High Courts.

The Constitution Bench in Union of India v. R. Gandhi [(2010) 11 SCC 1] generated a set of minimal standards which any tribunal had to satisfy in areas of appointment, selection, tenure, pay, service conditions, etc. It is important to note that despite the above landmark decisions, the Executive has repeatedly fallen foul of these directions and has always attempted to steal a march over the independence of the weakest and the least dangerous department of power i.e. judiciary.

A case in point is the recent decision in Madras Bar Association v Union of India, (2014) 10 SCC 1, where the Constitutional validity of the National Tax Tribunal Act 2005 was challenged. As Justice Nariman put it pithily–Chandra Kumar and R. Gandhi have allowed tribunalisation at the original stage subject to certain safeguards. The boundary has finally been crossed with the effect of ultimate encroachment on the exclusive domain of the superior courts.

Similarly, in Madras Bar Association vs. Union of India (2015) 8 SCC 583, vires of the Companies Act, 2013 which contemplated establishment of NCLT and NCLAT were challenged. Again the SC noted that there was a need for curing defects in accordance with the dictum of R. Gandhi (supra). One would have hoped that these attempts were shut out for the good and the governments would fall in line with these directions. However, as recently as the passage of Finance Act, 2017, the Government made another attempt at encroaching the domain of the judiciary in the guise of restructuring the tribunal structure in India.

The issues were recently dealt with by the Constitutional bench of the SC in the case of Roger Mathew v. South India Bank Ltd., 2019 SCC OnLine SC 1456 whereinTribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017, made under Section 184 of the Finance Act, 2017 and the parent section 184 itself was challenged. The SC unanimously struck down the Rules made under Section 184 of the Act laying down several directions.

The 272nd Law Commission Report highlighted worrying pendency figures for the CAT (44,333 cases), CESTAT (90,592 cases), ITAT (90,538 cases) and the AFT (10,222 cases). The 74th Parliamentary Standing Committee Report highlighted its concern over vacancy being a cause of the dysfunctional nature of tribunals. In fact, Justice Ruma Pal in her scathing lecture, and rightly so, on the functioning of the tribunals had once opined that Supreme Court upholding the legislations establishing tribunals in a number of decisions is an act of cutting the branch of the Constitutional tree on which the judiciary is sitting.

It would be too much to expect a government official who has represented the Executive machinery and who has been committed to give effect to the policies framed by his political masters throughout his career, to suddenly be asked to discharge judicial functions which often requires a decision to be taken against the government.

Late Justice Jayasimha Babu of the Madras High Court in Gandhi R v. Union of India,(2004(2) CTC 561) stated that “Apprehensive that the growing Tribunalisation of Justice in the country, accompanied as it is, by the executive aggrandizement of the powers will result in the gradual erosion of judicial independence in the special areas for which the Tribunals are created, and will ultimately lead to Triviliasation of Justice……” Keeping in view the past experiences and the abovementioned touchstones of judicial independence, tribunals have failed on every parameter they were made for and have been nothing but a stop for bureaucrats to have post-retirement jobs in this country.

There is a need to attract better talent on the bench from the pool of young specialised lawyers with a judicial bent of mind. There is low or no infrastructure support for these tribunals. It remains imperative that jurisdiction of Constitutional courts is not taken away under the guise of tribunalisation. Alexander Hamilton’s famous Federalist Paper No.78 gave a clarion call by stating that “there is no liberty, if the power of judging be not separated from the legislative and executive powers. … as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”

The abovementioned cry for independence gets reflected in our own Constitution in the form of Article 50. Time has come to overhaul the tribunalisation system by reminding ourselves of this important part of the Constitution so that the judicial function is not diluted by repeated inroads made by the Executive.

Senior Advocate Neeraj Kishan Kaul is a Masters in Law from Cambridge University, he practises before the Supreme Court and the Delhi High Court, he has served as a Judge of the Delhi High Court

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