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Tribunalisation In India: Where We Are Lacking?

Kashyap Joshi
15 Sep 2020 6:17 AM GMT
Tribunalisation In India: Where We Are Lacking?
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Tribunal is a judicial body, created by a legislation to adjudicate a class or classes of disputes. Though, it is a judicial entity for the purpose of administration of law, strict rules of Evidence Act or procedure such as Code of Civil Procedure Code would not apply, except the principles contained. The term 'Tribunal' is derived from the word 'Tribunes', which means 'Magistrates of the Classical Roman Republic'.

In India, we have Tribunals for Industrial Disputes, Railway Claims, Motor Accident Claims, Water Disputes, Armed Forces, Income-Tax Appellate Tribunals and National Green Tribunal, Company Law Tribunals etc.

Originally, the Tribunals were not part of the Constitution, however, it was incorporated in the Indian Constitution by 42ndAmendment Act, 1976. Article 323-A deals with Administrative Tribunals and Article 323-B deals with tribunals for other matters, opening the new vistas of Administrative Laws.

The aim and objects of establishing such Tribunals are speedy justice, minimalist summery procedure, use of experts as members, inexpensive adjudication and effective remedy with finality on the issue. However, after years of experience, the avowed objects are still a distant dream.

How Tribunals failed to meet Expectations:

On 13-11-2019, the Constitution Bench of the Supreme Court has considered the Tribunalisation and its effect in India while deciding a case of Rojer Mathew v. South Indian Bank Ltd.

The salient features culled out from the judgement qua Tribunalisation are as under:

  • Lack of judicial dominance in the appointment process of Members and Presiding Officers of Tribunals is in direct contravention of doctrine of separation of powers and is an encroachment on the judicial domain.
  • Executive is a litigating party in most of the litigations and hence, cannot be allowed to be a dominant participant in judicial appointments.
  • There is need for conducting judicial impact assessment of all tribunals referable to Finance Act, 2017
  • Tribunals dealing with similar areas of law must be amalgamated to ensure efficient utilization of resources and to facilitate greater access to justice.
  • A 'tribunal' can be understood as a body tasked with discharging quasi-judicial functions with primary objective of providing a special forum for special type of disputes and for faster and more efficacious adjudication of issues.

Apart from above points, the overall picture of working of many of the Tribunals is grim. The apparent reasons are: only the 'form' is changed and not the 'substance'.

Besides, in most of the Tribunals, appointments of retired District or High Court Judges do not yield any desired result, as they have hardly any motivation to conduct the cases. Exceptions are there, but most of the Presiding Officers feel that it is just an extension of their service, post retirement or on the verge of it; in a different format. For many, the Tribunals are post retirement rehabilitation centers, neither they are inspiring nor they take any initiatives to work in an efficient and professional manner.

Justice Deepak Gupta – a former SC Judge, in above-referred case, has also mentioned this: "Access to justice is fundamental right. Denial of access to justice also takes place when a litigant has to spend too much money, time and effort to approach the adjudicating authority to get justice. In India where delays plague the tribunals, a client will not hurriedly approach a tribunal even if he has a genuine grievance. Amongst the many tribunals set up, the tax tribunals have been probably the most successful.

In my view, one of the reasons why the tax tribunals have been successful is that the recruitment of members of these tax tribunals is normally done at a younger age and there is scope of the career progression not only within the tribunal but also from the tribunals to the High Courts. This can only happen if we recruit younger and competent people rather that retired persons…"

To illustrate this further, a close look at the functioning of District Consumer Forum would be helpful. Mainly, retired District Judges are appointed in District Consumer Disputes Redressal Forum as President, they usually not sit for the whole day, rarely conduct contested matters, and barely touch heavy cases with thick files. Result is, backlog of cases is mounting, though; this is not applicable to all. When a retired (not tired) Officer comes with prodigious capacity for work in Tribunals, the entire functioning of the Tribunals can be seen changing dramatically but this happens as an exception, not a rule.

Besides, tribunals do not have inbuilt machinery for accurate self-appraisal or case analysis. There is no soul-searching exercise to understand the strength and weakness of respective Tribunals. The studies in this domain are mainly on the general aspects of Tribunals as a whole and not individually and area wise.

Challenges before the Tribunals

To expedite the course of justice with the help of Tribunals, and full-fledged, professionally managed Tribunals are required. There is no scientific data driven study about the docket management and the impact of the system. The vacancies are now filled up with persons who are close to the executive, which undermines the basic feature of independence of judiciary.

In aforesaid case, the Apex Court has further reiterated: "… tribunals in India have unfortunately not achieved full independence. When tribunals are established, they depend upon the sponsoring department for funds, infrastructure and even space for functioning. Administrative Members, of the tribunal are, more often than not, drawn from this department. This, … strikes at the very root of the judicial independence because the biggest litigant or stakeholder itself becomes part and parcel of the adjudicating body which is supposed to be free, independent and fearless."

Tribunals are here to stay. In the coming years, we may see classification of more disputes and much more Tribunals. Though, the judicial members, in Central Government established Tribunals have been appointed in consultation with the Supreme Court or the High Court (for States), but nomination of other non-judicial members is done by the Executive e.g. the ordinary procedure of appointment of tribunal chairman and members is through a high power selection committee according to the notification issued by it e.g. Rule-7 says for Central Administrative Tribunal that there shall be a consultation with the Chief Justice of India, but Rule-8 says for selection of a Member of State Administrative Tribunal, there shall be consultation with the Governor i.e. the executive.

Therefore, in Rojer Methew, the Supreme Court decided the constitutional validity of Finance Act and struck down a rule framed by the Centre to regulate the appointment of tribunal members. (Which negated judicial independence) However, recently, the Central government has come up with New Tribunal Rules, 2020, which gives executive power to appoint tribunal members and goes against the independence of judiciary. It also circumvent the aforesaid SC judgment. These New Tribunal Rules has been challenged in Bombay High Court, which is pending

Earlier, the High Courts were empowered to adjudicate the disputes pertaining to companies; now these essential judicial functions are conducted by the Company Law Tribunals/NCLT (National Company Law Tribunals). In the Case of Madras Bas Association v. Union of India, 2015 SCC Online SC 1094, the SC held based on its view taken in 2010 that: "… Tribunals should normally have only judicial members as indiscriminate appointment of technical members in all Tribunals will dilute and adversely affect the independence of Judiciary…"

Moreover, despite all the Tribunals e.g. Debt Recovery Tribunal, Industrial Tribunal, Income-Tax Appellate Tribunal, RERA Tribunal, Educational Tribunal or even NCLT, which is virtually parallel to HC, but do not have power of civil contempt, which is most essential in these days, when interim or the final orders of the tribunals have been taken for granted either by the executive or by any other person. Though, they are having power of execution (being a deemed civil court), but no powers of civil contempt, when there is a willful disobedience of judgement, direction, order or any other process of court or willful breach or any undertaking given to a court.

Lastly, for effective working of the Tribunals, we need efficient judicial members with full independence and vitality to work in a focused manner.

Views are personal only.

(Author is an Advocate practicing in the High Court of Gujarat)


Drishtiias.com

(2020) 6 SCC

Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509

Appointment rules for all tribunals challeged in HC, Times of India (April 10,2020) https://timesofindia,indiatimes.com/city/nagpur/appointment-rules-for-all-tribunals-challenged-in-hc/articleshow/75073568.cms.

Union of India v. R. Gandhi, President, Madras Bar Association, (2010) 11 SCC 1 (Constitutional validity of NCLT: in light of Madras Bar Association Case By Ananya |)


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