Tribunals of conflict
A model code of conduct for adjudicators is needed to help create impartial and independent tribunals, curb situations of forum shopping
or bench hunting and prevent conflicts of interest and recusals.
TRIBUNALS are an established part of the Indian judicial system. The raison d’etre for their creation is to provide for speedier adjudication of disputes as well as provision of subject matter expertise in specialist areas. Despite their acceptance as an integral part of the justice system, several matters regarding their functioning remain unaddressed. In particular, the discourse on independence of Indian tribunals appears to not have an end in sight. There has been constant back and forth between the Central government and the Supreme Court of India on factors impinging on the independence of tribunals. For example, only last year, the Tribunals
Reforms Act, 2021, was challenged in the Supreme Court on the grounds that it contains provisions similar to those previously held to be unconstitutional in the case of Madras Bar Association vs Union of India. Moreover, there are several Supreme Court judgments on factors impinging on independence to augment this jurisprudence such as on the appointment of searchcum-selection committees, the design of the tribunal, the number of technical members on a bench vis-a-vis judicial members, and the role of the technical member itself.
The discourse on independence of tribunals is now taking a new direction with regard to a controversy playing before the Supreme Court. In a special leave petition listed before him, the Chief Justice of India N.V. Ramana has criticised the hearing of a matter against GAIL India Ltd by a technical member of the Appellate Tribunal for Electricity (APTEL) who had previously served in key managerial and senior positions at GAIL, on the grounds of impropriety and conflict of interest.1 It is also pertinent to note that the majority of cases before the APTEL involve GAIL as a party and, therefore, the issue is a crucial one.
On written submissions objecting to the appearance of the technical member at APTEL by Sabarmati Gas Ltd (SGL), the technical member
separately issued an opinion examining the objections and refused to recuse himself from the matter and all matters where GAIL was a party on two grounds.2 Firstly, while at GAIL he did not supervise any of the projects that had resulted in disputes before APTEL and the cases that were pending before APTEL were managed by different directorates, the two working at arm’s length from each other. Secondly, after retirement technical members do not hold any affiliation with previous organisations and, for this reason, tribunals frequently recruit technical members from sectors that they supervise. For example, in the case of the Central Administrative Tribunal (CAT), the Armed Forces Tribunal and the Telecom Disputes and Settlement Appellate Tribunal. Moreover, many technical members are secretary-level personnel recruited from government departments that may be a member of the search-cum-selection committee that appoints such members. The objection of the appellant to the recruitment of post-retirement personnel on grounds of conflict of interest would make the working of tribunals practically impossible.
In a separate opinion,3 Justice R.K. Gauba, the judicial member at APTEL, emphasised a third ground for dismissing the objection raised by SGL. According to him, the prayer of SGL to defer the matter until a new technical member is appointed or the bench is reconstituted must be dismissed because for purpose of appeals under the Petroleum and Natural Gas Regulatory Board Act, the APTEL possesses a limited workload and the government will not appoint another member for such limited work. The said technical member, being the only qualified member to hear such disputes, could, therefore, not be recused as such recusal would lead to failure to constitute another bench and hence a miscarriage of justice. Pursuant to the common order with separate opinions, the special leave petition was filed before the Supreme Court alleging conflict of interest, regulatory capture, and violation of principles of natural justice. While the petition has not been admitted yet, a notice has been issued in the matter.4
A key challenge by the appellant is the position that principles of recusal do not apply to technical members but only to judicially trained members in courts of law. Judicial members are retired members of the higher judiciary; technical members are experts recruited from the industry or a ministry/government department for their specialist knowledge of the sector. No previous case in India has dealt with the subject of recusal by technical adjudicators. Moreover, while certain regulators such as the Securities and Exchange Board of India (SEBI) have created a ‘Code on Conflict of Interests for Members of Board’5 that deals with mandatory disclosures and conflict of interest scenarios, and specially a provision forbidding deciding of cases by board members where there is a conflict of interest, such codes of ethics do not exist to guide the behaviour of tribunal members in India.
The controversy before the Supreme Court, therefore, merits a closer look as having a tribunal member with a conflict of interest could potentially affect the impartiality and independence of the tribunal. The case is important for another reason, namely, to curb situations of forum shopping or bench hunting at tribunals. Unless model rules of conduct specify when and how conflict arises, lawyers may file objections to tribunal members for favourable orders from other members. Such instances could also lead to harassment of tribunal members. This article discusses how disputes such as these and potential cases of forum shopping can be avoided if India creates model rules of conduct for adjudicators.
WHAT IS A RECUSAL?
The term ‘recusal’ has not been legislatively defined. Scholars, however, refer it to mean the act of abstaining from participation in a legal proceeding. The act of abstinence may be exercised where there is a conflict of interest of the presiding court official or an administrative officer.6 This line of thought has also been endorsed by Justice Micheal Kirby of the Australian High Court who views the law of recusal to be applicable on both judges as well as other independent decision-makers acting under legal authority.7 These definitions are, however, controversial because they assume the law of recusal applies uniformly to both judges and adjudicators, including technical members in a tribunal.
In the Indian context, Supreme Court cases dealing with recusals have been focussed on the subject of judicial recusal vis-a-vis adjudicator recusal and thus the emerging jurisprudence attempts to insulate the judiciary from challenges of recusal by adopting a strict ‘real danger test’ that permits recusals on limited grounds.8 In case of technical members of tribunals and other adjudicators, adoption of this line of reasoning may be problematic because while judges are neutral arbiters and can hear and revise cases previously heard by them in a smaller bench, conflicts of interest arise in case of technical members’ prior association with a party in dispute. The hearing of cases in larger benches in review by judges, therefore, is not a ground for recusal. Technical members at tribunals, on the other hand, were championing cases for clients in their previous roles. Their prior association with a party in dispute may amount to a conflict of interest.
WHY HAVE MODEL RULES OF CONDUCT?
i) Lack of ethical principles guiding adjudicative conduct vis-a-vis judicial ethics:
The Restatement of Values of Judicial Life,9 as adopted by Full Court Meeting of the Supreme Court of India on May 7, 1997, sets out the code of conduct for members of the higher judiciary, namely, the Supreme Court and the High Courts. The code of conduct is based on virtues of independence, impartiality and integrity. However, there are no equivalent principles for tribunal members. The Income Tax Appellate Tribunal, recognising this lacuna,
has issued directions requiring its technical members to follow the code of ethics adopted by the higher judiciary “to maintain the highest standard of credibility” in its daily functioning.
However, such makeshift arrangements may be insufficient. It has been argued that adjudicative ethics are distinct from judicial and public service ethics.11 For example, judges might recuse themselves if they have connections to an industry and a connected case appears before them. In the case of R vs Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) (Pinochet II), a new panel of judges set aside the first judgment delivered by Lord Hoffmann because of an appearance of bias, holding that Lord Hoffmann should have recused himself. Lord Hoffmann had earlier failed to disclose his relationship with Amnesty International, one of the intervenors in the extradition case of the Chilean dictator, Augusto Pinochet. However, in case of tribunal members, who are frequently recruited from the industry, there may be some tolerance for industry connections as expert knowledge is expected. Moreover, given the short-term nature of their appointments, technical members may eventually find employment in the industry usually after the lapse of a cool off period.
Judicial members are trained lawyers with training in legal ethics, which exposes them to questions of confidentiality, conflict of interest and recusals. However, training in ethical behaviour is unavailable to technical adjudicators. Civil servant ethics are also distinct from adjudicative ethics as civil servants may owe a duty of loyalty to the parent ministry/government department, adjudicators, on the other hand, do not owe such allegiance to government departments and are required to be neutral arbiters. For example, the All India Services (Conduct) Rules, 1968, which sets out principles of ethical conduct, are applicable only to members of the Indian Administrative Service, the Indian Police Service, the Indian Service of Engineers, the Indian Forest Service, and the Indian Medical and Health Service. A code of model behaviour is thus required in order to set the contours of ethical behaviour similarly for adjudicators. ii) Recusal and forum shopping: As mentioned above, the subject of judicial recusal in India is not covered by legislation. This, however, does not mean that the lacuna in law has not been felt. Justice Madan Lokur in Advocates-on-record-association and Ors vs Union of India12 has emphasised the need for “procedural and substantive rules” on the law of recusal considering the frequency of such cases before courts. He stated: “…since it appears that such applications are gaining frequency, it is time that some procedural and substantive rules are framed in this regard. If appropriate rules are framed, then, in a given case, it would avoid embarrassment to other judges on the Bench.” Moreover, it is unclear whether principles of recusal apply only to members of the judiciary or to adjudicators as well, and, if they do, the procedure needs to be followed in such instances.
Several countries have outlined their own codes of ethical behaviour for adjudicators. The Law Society of British Columbia in Canada has issued a Code of Professional and Ethical Responsibilities for Tribunal Adjudicators that sets out responsibilities of adjudicators to colleagues, the president of the tribunal and the tribunal itself.13 It defines conflict of interest scenarios and the responsibility to recuse oneself, including in instances resulting from a “former significant professional relationship”. Similarly, the Australian Administrative Review Council has issued a Guide to Standards of Conduct for Tribunal Members14 that delineates tribunal values and principles of conduct for tribunal members, including in circumstances involving bias and decisionmaking thereof.
Lack of written conduct principles is the primary reason why principles of recusal are not properly understood by adjudicators and procedure is not clear on standards when such conflict arises. While model rules have no teeth unless backed by disciplinary action, they can act as a behavioural reference point, aid accountability and lead to increased clarity, awareness, discussion and interaction. Unless model rules on conduct are laid down for administrative tribunals, forum shopping in the guise of pleas for recusal will continue.
LACK OF OVERSIGHT BODIES
India does not have a national oversight body for its tribunals. Lack of this authority means that a single code applicable to all tribunals cannot be introduced or enforced uniformly. Instead, it is up to the discretion of individual tribunals to adopt rules of conduct befitting their members. While such a scenario can lead to multiple and diverse codes or no code at all due to already existing regulatory fatigue, it may result in more bespoke codes unique to each sector. However, despite obvious benefits, the lack of an oversight body will result in non-uniform ethical standards with no enforcement technique.
Adjudicative officers within regulatory authorities and tribunals play a crucial role in the administration of justice. It is time to devote as much attention to the workings of these bodies as to courts of law. Glorifying tribunals for their speed of rendering justice and the technical expertise they bring, without mechanisms addressing questions of their impartiality, independence and accountability would be simply treacherous. m Dr Dakshina Chandra is a Fellow at the Regulatory Governance Project, National Law School of India University, Bengaluru. She conducts research in the field of regulatory governance. The views expressed are of those of the author.
guidetostdsofconduct-revise daug20091.pdf