The last time I wrote for Bar & Bench on a related topic, I chose to end it with this - interest reipublicase ut sit finis litium, which literally means that it is in the interest of the State to end litigation. The highest Court of the land too, expressed a similar sentiment, when on November 27, 2020 it observed, “the government is, accordingly, directed to strictly adhere to the directions given above and not force the petitioner-Madras Bar Association, which has been relentless in its efforts to ensure judicial independence of the tribunals, to knock the doors of this Court again”.
But it was not to be. Litigation continues on the matter. An issue that should have seen closure at most after the seven-judge Bench judgment in L Chandra Kumar, continues to linger as the proverbial thorn in the flesh. But then, as a great singer once said, ‘the beauty is mine if I can stand the cut’.
The Tribunals Reforms Act was passed by the Parliament on August 9, 2021. Let us see what it brings to the table, its implications and what could have been done, but was not.
To start on a positive note, the Act, for once, applies a speed-breaker to the mindless and excessive tribunalisation brought into motion since the times of the Emergency via the 42nd Constitutional Amendment. The original idea was simple- take out jurisdiction of various subject matters from the ‘clutches’ of the independent judiciary and place them with quasi-judicial bodies under the strong control of the executive and then make their orders unchallengeable before Constitutional courts thereby making such tribunals essentially the first and last courts. Of course, vigilant litigants and organisations did not let this idea prevail, with full success in courts and on paper which blunted-out this assault, albeit with limited effect on ground.
The Tribunals Reforms Act, 2021, further abrogates multiple tribunals and boards, and confers the jurisdiction back to actual courts. The expression in the circles of litigants and lawyers practicing in these fields has mostly been that of great relief.
Contrary to popular perception, litigants would much rather approach real courts that are truly independent and have no strings attached to the government rather than quasi-judicial bodies that are tagged with the executive. Moreover, even with shortage of judges, the courts never stop functioning, unlike tribunals where litigants become remediless on account of non-availability of adjudicating Members.
Take for example the Intellectual Property Appellate Board (IPAB), a body meant to perform a salutary function in this time and age. The IPAB mostly remained non-functional during its lifetime, leaving litigants neither here nor there. Some tribunals are located at far off places while courts are available at the doorsteps of litigants and in case of the High Court, within the State.
Further, tribunals (the Income Tax Appellate Tribunal being an honorable exception) are till date (though the Supreme Court has directed otherwise) functioning under the same Ministry against which they are supposed to pass orders.
Some reservations in Mumbai were, however, expressed on the abolition of Film Certification Appellate Tribunal (FCAT) but those are mostly based on unfounded fears.
There was talk that litigation would now become expensive since film producers would have to directly approach the High Court. But in reality the contrary might be true.
The FCAT was based at Delhi and functioning under the Government- the Ministry of Information & Broadcasting. Hence, cases needed to be filed at Delhi and then challenged before the High Court in case a party was dissatisfied with the order; so in any case the matter could end up before the High Court.
But now, for instance, in case of residents of Maharashtra, the challenge can be directly made before the Bombay High Court and one unnecessary layer gets removed making justice more accessible.
The availability of ‘expertise’ in tribunals is also overstated, except in highly technical or scientific matters. ‘Experts’ who have worked in a particular field or served in a particular department for many decades would bring on the table subjectivity and over-familiarity and an indelible connection with their profession or department which goes against the grain of adjudication which requires objectivity that can only come from a certain degree of detachment.
This is not to state that non-judicial members have not contributed to tribunals. Recent track-record of certain members from tribunals such as the Central Administrative Tribunal (CAT), Income Tax Appellate Tribunal (ITAT), Armed Forces Tribunal (AFT) and National Green Tribunal (NGT) would go to show the impeccable assistance by many of them.
However, further tribunalisation in the name of ‘expertise’ thereby denuding actual courts of their jurisdiction needs a bump in the middle of that road, something that the Tribunals Reforms Act has instituted.
The famous American jurist, Judge Simon Rifkind was probably right when he stated that over reliance on experts and specialized courts “intensifies the seclusiveness of that branch” and “immunizes it against the refreshment of new ideas”. Comparing it with “primitive priestcraft” rather than a living tissue which law is, his further observations were instructive:
“Against the citadel of the expert I tilt no quixotic lance…Great judges embrace within their vision a remarkably ample context. But even lesser men, presiding in courts of wide jurisdiction, are constantly exposed to pressures that tend to expand the ambit of their ken…The very essence of the judicial function, however, is a detachment from, a dispassionateness about the activity under scrutiny. It follows that, like most experts, he can bring his special knowledge to bear on the problem but is not especially fitted to perform the judicial task of extracting a solution by subjecting the problem to the filtering process of many strata of knowledge.”
The ‘expertise’ in a particular subject is required not of the bench but of the two (or more) sides within a courtroom which are meant to assist the court in arriving at justice.
The court is free to seek opinion of experts when it so desires. I was therefore, in total agreement with Prashant Reddy T when he stated in one of his recent articles for The Economic Times that “in the common law system, the role of the expert has been limited to the witness dock. This experiment of shifting experts to the bench was poorly thought out”.
Carrying the ‘expert’ concept far would mean that someone could tomorrow opine that a Sessions Judge would not be able to appreciate medical jurisprudence unless a doctor was sitting with him or her to adjudicate, or that a judge similarly would not be able to deal with economic offences unless there was a financial expert on the Bench.
In a much better manner, specialization can also emanate through the concept of designated courts within the regular judiciary, such as the Commercial Court system or simply a more stable and aptitude-based roster in courts.
What is bad is the lost opportunity that the legislation had brought on the table, and a disjointed approach. Ostensibly, the Tribunals Reforms Bill was introduced in compliance with the Constitution Bench decisions of the Supreme Court in L Chandra Kumar and Rojer Mathew which eschewed direct appeals to the Supreme Court from tribunals.
The Statement of Objects & Reasons to the Bill states so explicitly. However, the text of the Bill carries out no such change in the existing dispensation! The Supreme Court right from the decision in RK Jain onwards, has frowned upon the system of direct appeals to the highest court, and rightly so, especially when the parties involved are common citizens litigating against the might of the State. The Bill too states this in the Statement of Objects & Reasons, but there is nothing in the text to address it.
Obviously, the system of direct appeals to the Supreme Court from certain tribunals which are the courts of first instance makes justice inaccessible and unaffordable and in the teeth of law declared by the Supreme Court.
In fact, there is no requirement at all for an appeal or a merits review from orders of most tribunals and the same can simply be challenged under the concept of judicial review before division benches of the jurisdictional High Courts as is done in the case of orders and judgments of the CAT, post-L Chandra Kumar.
Even if a merits review/appeal is considered necessary from a tribunal, the same can be made amenable to the High Court as in the case of Real Estate Appellate Tribunal.
Let us not forget that under a federal structure, the High Courts are meant to be the highest Constitutional Courts for most matters and not merely stepping stones to approach the Supreme Court by wealthy litigants. The observations of the then CJI, Justice PN Bhagwati, in Bihar Legal Support Society were apt on the subject.
Failure to address this point in the Bill itself shows that the approach in bringing about this legislative change was disjointed and chaotic wherein the ensuing piece of legislation is totally removed from its Statement of Objects and Reasons.
Further, the directions for creating a national body to oversee the functioning of the tribunals rather than placing them under those very departments against which these tribunals are supposed to pass orders, as directed in L Chandra Kumar (1997), R Gandhi (2010), Swiss Ribbons (2019) and lately again in Madras Bar Association (2020), could have been incorporated in the Bill to make it actually ‘Reforms’ oriented.
Not only that, even the then Law Minister, Arun Jaitley (2001) and the Law Commission of India in its 272nd Report (2017) had called for such a body. The absence of a national body to oversee tribunals and make them totally independent of the executive is hence not only a remarkable omission, but also in the teeth of the dicta of the Supreme Court in all the above cases and the sentiment of the political executive.
Much has been written on this but the Tribunals Reforms Act has reintroduced those very provisions of an ordinance that were struck down by the Supreme Court in Madras Bar Association decided on 14th July 2021. This includes the truncated four-year tenure and the minimum age of 50 years as eligibility of appointment.
Apart from this, what has also skipped attention is the insidious feature of Section 3(8) of the Act which provides - “No appointment shall be invalid merely by reason of any vacancy or absence of a Member in the Search-cum-Selection Committee”.
The Supreme Court had directed the primacy of the members of the judicial wing in the Search-cum-Selection committees over the executive. The Act also provides so, however by way of Section 3(8) this legislative feature can be rendered otiose, and even if there is total absence of members of the selection committee from the judicial side, the appointments can still go through.
While the focus has remained on the ordinance and then the Act, what has also escaped notice is the fact that the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) (Amendment) Rules, 2021, promulgated on June 30, 2021 again contain certain strange stipulations that are a mirror image of the earlier rules that were declared unconstitutional.
For example, in case of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), Appellate Tribunal for Electricity (APTEL) and Armed Forces Tribunal (AFT), persons with experience in economics, business, commerce, management, industry etc can become Members.
What has been ignored is that similar provisions for the Company Tribunals were declared unconstitutional in R Gandhi but have been reintroduced in the garb of Rules for other tribunals. The provisions are so vague that even a grocery store owner (experience in business or commerce) can become a Member, of say, the AFT to adjudicate service disputes and courts-martial related to the defence services.
Rather anyone under the sun can be identified for a sinecure with such ambiguous and bizarre criteria having no nexus with the functions of the said tribunal.
I have no reservation in my mind that had the political executive meticulously gone through the provisions of the Bill (now Act), it would not have taken this shape. These provisions seem to be the handiwork, not of seasoned politicians or parliamentarians, but of drafters who have drafted the Bill driven with some kind of prestige or egotism in the backdrop, as if to make a point or to tire and wear-out the ones seeking reform in the tribunal system. Will the reformists give up? I doubt.
Major Navdeep Singh is a practicing lawyer at the Punjab & Haryana High Court and Member of the International Society of Military Law and the Law of War at Brussels. He is a proponent of tribunal reform and the founder President of the Armed Forces Tribunal Bar Association at Chandigarh. He is also the author of “Military Pensions: Commentary, Case Law & Provisions” and was part of the Yale Draft (2018) at the Yale Law School- an improvement of the UN Principles on administration of justice through military tribunals.