Opinion Freeing the other judiciary

The parliamentary debates on the Constitution (120th Amendment) Bill,2013 saw an all-out attack on the opaque and unaccountable collegium system of the Supreme Court where judges appoint judges. For a Parliament that has done almost nothing towards judicial reform in the last decade,the decision to replace the collegium with a Judicial Appointments Commission (JAC) is a welcome start. But why stop with the SC and the high courts? There is the “other judiciary”,consisting of a fleet of tribunals,which is at the other end of the spectrum of judicial independence. While the SC was busy digging itself into a moat of judicial independence,the bureaucrats in the Central government were chopping off portions of the high court’s powers to create tribunals that were then assimilated into the cosy arms of the executive. The backbone of commercial litigation,such as tax,company law and intellectual property cases,debt recovery and environmental cases,have been taken over or proposed to be taken over by tribunals from high courts.

The origins of the “other judiciary” can be traced to the 42nd Amendment to the Constitution,enacted in 1976 during the Emergency. Those amendments were widely seen to be the reaction of an executive furious with the independence of the SC and the high courts,both of whom had repeatedly tripped the executive on several of its policies. The new Articles 323A and 323B,inserted via these amendments,empowered both Parliament and state legislatures to create tribunals that could be firmly controlled by the executive. The audacity of the exercise was obvious from a mere reading of the provisions that were designed to be the very antithesis of judicial independence. For starters,the provisions were silent on the most important feature to determine judicial independence: the appointment mechanism.

Given that these constitutional amendments specifically excluded the jurisdiction of the high courts over the new tribunals,a person aggrieved with these tribunals was left only with an option to approach the SC through a Special Leave Petition under Article 136 — an infeasible and undesirable option. The move to exclude judicial review was particularly troubling because,although tribunals historically did exist in India,especially for administrative issues,they were always subject to the review of an independent judiciary.

The tribunals created under Articles 323A and 323B slipped into their role rather comfortably,usually identifying themselves as arms of the government of India on their “letterheads”. This was no surprise,given that it was the Central government that had the power to appoint retired judges and bureaucrats to the tribunals,pay their salaries,sanction their leave and implement pay commission recommendations for each tribunal. The “mai-baap” in this case was certainly the Central government. Not only did this process affect the independence of the tribunals,but also that of the judges of the high courts and SC,who would now angle for post-retirement appointments in the tribunals.

Thankfully,the SC,through three judgments,started dragging back the tribunals within the fold of the judiciary. The first blow against tribunalisation was in Sampath Kumar (1987),when the SC-ordered Central Administrative Tribunal appointments to be made in consultation with the judiciary. The second blow was struck with the decision of the Chandra Kumar case (1997),whereby the SC held that the writ of the high courts could not be excluded,thereby bringing all tribunals under the ambit of their respective high courts. The third blow was in the case of R. Gandhi (2010),whereby the SC once again reiterated the need for judicial consultation while making appointments and also forcing bureaucrats out of some positions in tribunals.

The SC’s judgment was implemented only with respect to the tribunal that was the subject of the litigation,while ignoring similar problems in all other tribunals. Other important directions of the SC pertaining to the independence of tribunals across the board have simply been ignored by the Central government. This was not surprising,given that it is the secretaries to the government of India who get the cosiest positions on these tribunals. As a result,it was but natural that a whole series of tribunals,including the Intellectual Property Appellate Board (IPAB),the National Green Tribunal (NGT),the National Tax Tribunal (NTT) and the Armed Forces Tribunal (AFT),amongst others,continue to face multiple litigations in high courts across the country. The underlying theme in all these cases centres on the excessive control of tribunals by the executive. Indeed,last month,the Punjab and Haryana High Court has issued a notice on a contempt petition to both the defence secretary and the law secretary (justice) for not implementing SC-directed measures to ensure the judicial independence of tribunals.

If the opposition and the government are really worried about accountability and maintaining the separation of powers in the Constitution,they should agree to tribunals having the same degree of independence from the executive as that enjoyed by the SC and the high courts,especially for those tribunals that took over the functions of high courts. Law Minister Kapil Sibal should understand that if it is good for the goose,it is good for the gander.

Although the ultimate aim should be to delete Articles 323A and 323B from the Constitution and reintegrate tribunals into the judicial system,a good first step would have been to ensure that appointments to tribunals were reformed by shifting the entire process from the mostly “in-house” mechanism of the Central government to the proposed mechanism under the Constitution (120th Amendment) Bill.

The writer is a lawyer who has been involved in public interest litigation against the IPAB and other tribunals