Tribunalisation of Justice – A coup de grace?
JUSTICE Ruma Pal speaking at the Tarkunde Memorial Lecture last week lambasted the executive for interfering with the independence of the Judiciary.
She particularly criticised the establishment of Tribunals. She said,
The year 1976 saw the Executive deliver what they must have perceived as the coup de grace against a stubbornly independent judiciary, by the enactment of the 42nd Constitutional Amendment which introduced Articles 323-A and 323-B. Article 323-A authorizes Parliament and Article 323-B the State Legislatures to create tribunals to which the power of adjudication of disputes on various subjects can be transferred while excluding the jurisdiction of the courts in respect of those Subjects. The power of adjudication so transferred included the power of judicial review, which allows judges of the higher courts to determine the legality of executive action, and the validity of legislation passed by the legislature. These two Articles were intended to allow and in fact did allow the Executive to take over the powers of adjudication from the courts because an independent judiciary was perceived as a thorn in the flesh of political parties in power. Both Parliament and several States have been prompt in enacting legislation setting up Tribunals manned by members of the Executive to deal with a variety of subjects normally within the jurisdiction of the High Courts.
Although the Supreme Court intrepidly asserted the independence of the judiciary to justify virtually excluding the Executive from having any real say in the appointment of judges, it was timorous in defending the same independence when it was most needed namely in answering the question whether the powers of adjudication can be shared with the Executive. Under the Constitutional scheme in keeping with the separation of powers, judicial functions are to be performed by the judiciary alone and not by the Executive. The Supreme Court declared that “ The competence of Parliament to make a law creating tribunals to deal with disputes arising under or relating to a particular statute or statutes cannot be disputed ”. If the Tribunals are manned by judicial officers one could have no quarrel with the declaration. In my view, the curtailment and transfer of judicial powers of a particular court by Parliament or a State legislature can only be to another judicial forum whether called a Tribunal or by any other name. This was the situation prior to the 42nd Amendment. There were Rent Tribunals, Labour Courts, Motor Claims Tribunals which were all manned by judges or former judges. It was for the first time post 1976 that the jurisdiction of the judiciary was sought to be curtailed by transferring the powers of court to the Executive.
In a Kalidas-like action of cutting the branch of the Constitutional tree on which the judiciary is sitting and what in less picturesque language one can describe as a judicial sell-out to the Executive, the Supreme Court has upheld the legislations establishing tribunals in a number of decisions subject to certain ‘adjustments' in the law which are more in the nature of sops to the concept of judicial independence rather than an assertion of it.
It would be too much to expect a Government Official who has represented and been and in some cases continues to be part of the Executive machinery and who has been committed to give effect to the policies framed by his/her political masters throughout his/her career (as every good Government official is expected to do), to suddenly be asked to discharge judicial functions which often requires a decision to be taken against the Government.
Why is this at all necessary? Delay, arrears of cases, specialized knowledge etc. have been usually cited as reasons for the creation of such tribunals. If the work of the judiciary is being hampered because of the litigation explosion, the Constitution envisages more judges being appointed and courts set up which can function with all the safeguards of insulation, independence and autonomy as part of the judicial system. The Constitution also allows the appointment of additional and acting judges to deal with an increase in the business or the arrears of work of the High Courts and the Supreme Court. It was not envisaged under the constitution as originally framed that the lacunae, if any, in the functioning of the judiciary at whichever level, would be filled by the Executive.
But according to a recent pronouncement of the Supreme Court “ The presence of a technical member ensures the availability of expertise and experience related to the field of adjudication for which the special Tribunal is created, thereby improving the quality of adjudication and decision making ”. By that token, all courts should have technical members to improve the ‘quality of decision making'. Traditionally if technical expertise is required, it is open to courts to seek the opinion of an expert as a witness but not as a colleague on the Bench. To have technical members (meaning officers of the Executive) on a Tribunal is as repugnant to the independence of the judiciary as, for example, having the Secretary of the Ministry of Finance sitting on a Bench of the Supreme Court or High Court to decide income-tax matters. A more serious in-road into institutional judicial independence would be hard to find.
Besides, the ‘tribunalisation' of justice has not worked in India. In 1997 the Supreme Court acknowledged “ Tribunals have been functioning inefficiently ... The situation at present is that different tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some tribunals have been created pursuant to the Central legislations and some others have been created by State legislations .”
The litigant, in whose apparent interest tribunalisation has and is taking place, has been the worst sufferer. When most of the rights are claimed by citizens against the Government, how can people have faith in a body if even one member is perceived as being part of the Government? The credibility of the judicial process “comes from the office of the judge and his or her individual and institutional reputation for independence”
With all due respect to the distinguished former Supreme Court Judge, Madam Ruma Pal, it has been the experience of litigants that Tribunals are generally perceived as a place where you can get a reasonable order. Some of the Technical Members of the Tribunals are far better than well-trained and experienced judges – and the technical members of the Tribunals are not agents of the Government – many of them have given erudite judgements against the Government, while we sometimes find judges more loyal than the Government. Ultimately what matters is the quality of the individual, who is holding the post, not whether he is technical or judicial. In fact, the quality in the High Courts and Supreme Court will improve considerably if some of the Members of the Tribunal are elevated to High Courts and the Supreme Court.