Omissions about the Commission

Despite the chairman having pointed out to the secretary, Company Affairs, that the Commission has only two court rooms and is without the necessary staff for the proper functioning of the present four members, the Law ministryhas gone ahead with its plan to foist two non-judicial members who simply have no place to hold a court under the MRTP Act.

However, even as Jethmalani tackles this silent subversion of the statutory Commission, he must recognise that he is up against a general attack by the politico-administrative machinery on Commissions and Tribunals. There is a five point systematic pattern that has emerged from the attack on the Central Excise and Customs Tribunal, the Income Tax Appellate Tribunal, the Company Law Board and the Central Administrative Tribunal CAT.

First, the benches in the Tribunals, Commissions and Boards are not headed by judicial members. Second, the judicial head of the institution, set up under a statute or an executive order, has no say in the appointment of other members, the administrative staff and the physical infrastructure essential to their functioning.

The selection, whether of the heads or members, is done by a committee presided over by a Supreme Court judge who acts as thenominee of the Chief Justice of India. But since the nominee has no investigative machinery, his inputs are what the politico-administrative combine of the Law ministry or the Finance ministry has fed him. This makes the nominee only a means to get the approval of the Supreme Court on what has been basically done by the concerned Union ministry.

Hence the Chief Justice of India has had to withdraw the names of the judges forwarded by the apex court to the Union government for heading the Company Law Board and CEGAT. The silence and the lack of transparency saves the apex court from embarrassment but only acts as an incentive to those whose aim is to control these public posts for private ends. That this happens mostly in corporate and revenue institutions only points to the need for a sunshine law in such matters.

Third, there is no bar against the political administrative ministry concerned directly talking to or giving sanctions for trips, committee memberships or other rewards to members so as tomarginalise the judicial head. Fourth, in answering Parliamentary questions concerning the institution, the concerned ministry answers them instead of the institutional head. Lastly, attempts are made to rob the institution of its jurisdiction either by silently recommending repeal of certain provisions of an Act or by seeking a quot;reportquot; from the head on certain complaints or, what is even worse, by writing letters to the head in pending matters.

Accordingly on July 14, 1998, Justice Divecha was asked by the secretary, Company Affairs, to send him a reply to a Parliamentary question about the absence of the judicial background of the members of the Commission and the consequent quality of the orders passed. On July 15, 1998, the judge replied that most of the members do not have any judicial background and proposed specific amendments to the MRTPC Act. However, on July 20, 1998, the department did not place before Parliament the judge8217;s reply but its own answer that said nothing.

On November 18, 1998, thejudge pointed out to the secretary his impropriety in writing a letter to him about a litigant, Netajee Surendra Mohan Nayyar, and granting him an appointment in a pending matter. On July 27, 1998, the secretary sent to the judge a complaint of a litigant against the Commission in a pending matter concerning Jaina Properties and asked him to send a quot;reportquot; about it.

From then, that is from January 6, 1999, onwards began the tussle between the judge and the. The judge explained to the secretary that it is not proper that a member be appointed head of a group by the Commerce ministry and be sent abroad without the knowledge of the Commission. Then there was that matter of two new members, Parthasarthy and R.K. Anand, being appointed when there were no court rooms for them and the entire Commission has only two stenos who are due for repatriation to their parent department.

It is time the Commission be given suitable accommodation. Justice Divecha has been pleading constantly for injecting a judicialelement in appointments to the Commission and has been rewarded for his pains by the skilful torpedoing of his duly sanctioned trip to Germany to discuss competition law. Now there is great hope that Jethmalani, who as the minister of urban development had ensured the chairman8217;s judicial dignity by making a house available to him, will now ensure that the Commission retains its credibility.