OUT OF COURT

Business Standard - - ISSUES AND INSIGHTS - M J ANTONY

The con­cept of tri­bunals was de­vel­oped over the decades to over­come the cri­sis of de­lay and back­logs in courts. Var­i­ous Law Com­mis­sion re­ports have dealt with the is­sue since 1958. Mean­while, the num­ber of tri­bunals has in­creased and is es­ti­mated to be more than 30. The govern­ment re­cently re­duced their num­ber by eight, as in the case of the merger of Com­pe­ti­tion Ap­pel­late Tri­bunal with Na­tional Com­pany Law Ap­pel­late Tri­bunal, Cy­ber Ap­pel­late Tri­bunal with Tele­com Dis­putes Set­tle­ment and Ap­pel­late Tri­bunal and Copy­right Board with In­tel­lec­tual Prop­erty Ap­pel­late Board. The govern­ment is work­ing on more merg­ers, aim­ing to re­duce the num­ber to 18.

De­spite all these steps, last month’s Law Com­mis­sion re­port (272nd) noted that “the of­fi­cial data in respect of the work­ing of some of the tri­bunals do not de­pict a sat­is­fac­tory pic­ture. Though dis­posal rates of tri­bunals in com­par­i­son to fil­ing of cases per year had been re­mark­able, that is, 94 per cent, the pen­dency re­mains high”. Five top tri­bunals are bur­dened with 350,000 cases. The In­come Tax Ap­pel­late Tri­bunal has 91,538 cases, the Cus­toms Ex­cise and Ser­vice Tax Ap­pel­late Tri­bunal 90,592 and Debts Re­cov­ery Tri­bunal 78,118.

Lack of in­fra­struc­ture, un­sat­is­fac­tory ser­vice con­di­tions, de­lays en­gi­neered by lawyers and par­ties be­fore the fo­rums have been per­sis­tent prob­lems. The Supreme Court has some pe­ti­tions be­fore it that high­light these as­pects. The com­mis­sion has dealt with the over­ar­ch­ing is­sues and raised some sem­i­nal ones.

Since most ap­pel­late tri­bunals are on a par with high courts, their free­dom from ex­ec­u­tive in­flu­ence should be strictly safe­guarded. This is a con­sti­tu­tional re­quire­ment. The Law Com­mis­sion found that most leg­is­la­tion that cre­ate the frame­work of tri­bunals de­prive high courts of ju­ris­dic­tion and trans­fer it to tri­bunals. How­ever, the pro­vi­sions re­lat­ing to the qual­i­fi­ca­tions, man­ner of ap­point­ment, ten­ure do not con­form to the stan­dards laid down by the Supreme Court in its var­i­ous de­ci­sions. Fur­ther­more, no pro­vi­sions for pro­tect­ing their in­de­pen­dence are found in the en­act­ments cre­at­ing tri­bunals. “On the con­trary,” the com­mis­sion says, “some pro­vi­sions like vest­ing of ad­min­is­tra­tive con­trol make the tri­bunals sub­servient to the ex­ec­u­tive whose dis­pute they are de­cid­ing.” This strength­ens the sus­pi­cion that the hun­dreds of posts avail­able in tri­bunals are wait­ing to be filled by post-re­tire­ment civil ser­vants.

One of the se­ri­ous prob­lems af­fect­ing the ef­fi­cacy of tri­bunals is the large num­ber of va­can­cies that are not filled for long pe­ri­ods, if ever. The Con­sumer Pro­tec­tion Act, for in­stance, pre­scribes a three-mem­ber bench from the district level on­wards. But it is dif­fi­cult to see one fo­rum that has full quo­rum. Other tri­bunals also func­tion with crip­pled strength. The com­mis­sion rec­om­mends that the pro­ce­dure for fill­ing up va­can­cies start six months be­fore the seats fall va­cant. This has not been fol­lowed in the case of any tri­bunal, of­ten lead­ing to pub­lic in­ter­est lit­i­ga­tions in the Supreme Court seek­ing ap­point­ments.

In the case of ap­pel­late tri­bunals where there is only one seat, of­ten New Delhi, the prob­lem be­comes acute. The com­mis­sion rec­om­mends set­ting up of benches in dif­fer­ent ge­o­graph­i­cal re­gions of the coun­try. But when the govern­ment does not fill up even the ex­ist­ing va­can­cies and pro­vide in­fra­struc­ture fa­cil­i­ties, it is dif­fi­cult to think of cre­at­ing more seats for the var­i­ous tri­bunals. Some of them like tax tri­bunals have sev­eral benches, but that is more due to the en­ter­prise of civil ser­vants hop­ing to don the ju­di­cial hat than the re­sult of a de­lib­er­ate pol­icy.

The con­sti­tu­tional pro­vi­sions en­abling the set­ting up of tri­bunals are seen by some peo­ple as a plot dur­ing the 1975 Emergency to re­duce the stature of high courts. Even if it is not so, the at­tempt by the present govern­ment to re­duce the num­ber of tri­bunals is laud­able. The ben­e­fits of tri­bunal­i­sa­tion are doubted by jurists. But be­fore trim­ming the num­ber of tri­bunals, there should be earnest ef­forts to strengthen the high courts. There are 400 va­can­cies in the 24 high courts at present and this woe­ful in­ad­e­quacy has been chronic. The prob­lem has be­come more acute with the Supreme Court col­legium and the govern­ment locked in a de­bil­i­tat­ing bat­tle over the pro­posed mem­o­ran­dum of pro­ce­dure. This cri­sis comes at a time when high courts should be re­stored their full con­sti­tu­tional role while the tri­bunals of dif­fer­ent feath­ers should be clipped of their pro­ce­dural and ad­ju­di­ca­tory pow­ers.

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