“A hotspot of perceived bias", Justice (retd.) Kurian Joseph on Post-Retirement appointment of Judges to Tribunals

Former judge of the Supreme Court, Justice (retd.) Kurian Joseph on Saturday made pertinent remarks on the appointment of retired judges to Tribunals. .While speaking during a webinar on the theme of “Tribunals under our Constitution: Institutionalisation or Trivialisation of Justice", which was organised by the CAN Foundation, Justice (retd.) Joseph observed, .“There are two types of judges, 'forward looking judges' and ‘looking forward’ judges. (When) 'looking forward judges' come to such places (tribunals), it certainly undermines the stature and majesty of the judiciary and the justice dispensation system.”Justice (retd.) Kurian Joseph.The judge made the remark while responding to a query over pereceptions of "quid pro quo" in post-retirement appointment of judges to tribunals. Justice (retd.) Joseph observed that the issue is not only highly contentious, but also "a hotspot of perceived bias." .Earlier on in the discussion, Justice (retd.) Joseph had observed that as more tribunals began to crop up, the contemporary mindset (since around 2017) has been to reduce the number of tribunals, also because "many of the judges in service are 'looking forward.'" He opined, ."This 'looking forward' tendency should be curbed."Justice (retd.) Kurian Joseph.But at the same time, he pointed out that many enactments conceived that the post of Tribunal member be held only by a sitting or a former judge of the Supreme Court or High Court. Therefore, it cannot be that all judges refuse such appointments as someone will have to serve in these positions, he said. .The other participants for the discussion were Chairman of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) Shiva Kirti Singh and Senior Advocate Neeraj Kishan Kaul..On the question of post retirement jobs, Justice (retd.) Singh endorsed the idea of having a two year cooling period before a retired judge can be appointed to a Tribunal. He also added that it would be ideal if the judiciary itself was empowered to appoint tribunal members so as to allay apprehensions of "quid pro quo". .Never felt the need for executive members as part of judicial Bench: TDSAT Chairman SK Singh."Experts are required. But I have never felt, in my personal experience, the need of the experts as a part of the judicial bench (as Technical Members)", opined TDSAT Chairman, Shiva Kirti Singh during the discussion. .He emphasised that the aid of experts is very valuable, and that he has personally benefitted immensely from their inputs. However, Justice (retd.) Singh added while there is a need for experts, they need not necessarily sit on the Bench as judges. .Instead, he opined that there should be a pool of expert advisors, whose services can be engaged depending on the dispute. There should be a concept of an advisory post, where the experts join for the time being and render their advice, Justice (retd.) Singh suggested. .After taking the views of such advisors, the judges may then be given the discretion to decide how binding it should be or how much importance should be attached to it while deciding on disputes. .While mooting this suggestion, Justice (retd.) Singh also informed that he has at times felt hindered because the mindset of a technical member appointed by the executive is different from that of a judicially trained mind..While they may be acting in a bonafide manner, Singh spoke of how there is a tendency for such government appointees to be reluctant in interfering with government policy. .This aspect was also broached by Senior Advocate Neeraj Kishan Kaul during the webinar, who recalled Justice (retd.) Ruma Pal's observations on the same. He remarked, .“Look, you have a bureaucrat who has all his life served political masters. He is being trained in that sense. He doesn’t have the finer legal nuances. And suddenly you expect him to go and rule against the government or interpret government policies?”Senior Advocate Neeraj Kishan Kaul.All grounds cited to justify tribunalisation in India have miserably failed: Neeraj Kishan Kaul.Senior Advocate Neeraj Kishen Kaul was emphatic in his stance that as it stands, Tribunals in India have failed on every ground that has been put forth to justify their existence. .“According to me, tribunals have failed on every parameter they were made for, whether it is (clearing) arrears or (being) user-friendly or cost-effectiveness... tribunals in this country ...have been nothing but a stop for bureaucrats to have post retirement jobs in this country."Senior Advocate Neeraj Kishan Kaul .He added, "It completely dilutes the independence of judicial functions.”.In this regard, he opined that as more tribunals came to set up over time, and even as the Supreme Court stepped in at certain points to keep executive interference in check, "at every interval, whenever given the chance, the executive has in some way or the other attempted to encroach upon judicial functions.".He said that, "over the decades, Governments after Governments have made not just concerted, but brazen attempts to encroach upon the Judicial Independence.".Whereas initially the issue that arose concerned the attempt to exclude judicial review of tribunal decisions, there was later a shift to the executive encroaching into more areas of jurisdiction that lay with the judiciary. .He recalled that the R Gandhi case did some course correction when it laid down how appointments should be made, how the independence of the members should be ensure, how tribunals should be insulated from executive interference, how they should be autonomous etc. .These were minimum standards that any adjudicating authority should follow, Kaul commented. In the R Gandhi judgment, it was also recalled that Justice RV Raveendran focused more on the stance that in a welfare state tribunalisation was essential, rather than dissuading the executive from self-assigning adjudicatory powers to itself. .The reasons cited for justifying tribunalisation were that it promoted speedy justice, that it was user friendly and cost-effective. However, Kaul registered his disagreement, stating, “With great respect to Justice Raveendran in the judgment, I feel all these grounds taken to justify tribunalisation in India have (not only) failed (but) miserably failed.“.Further, he opined that despite judicial decisions like R Gandhi, “the Executive consistently has made attempts to either ignore those directions or some how get around them.”.To illustrate his point, Kaul also pointed out how the judiciary was called to step in to keep the executive in check in cases such as the Madras Bar Association cases and the Rojer Mathews case. .He went on to express that he concurred with Justice (retd.) Ruma Pal's observations against the tribunalisation of justice. .As far as clearing arrears of cases were concerned, it had been suggested by Justice (retd.) Pal that the issue would be resolved if more judicial appointments were made, he recalled. In any case, since tribunal judgments are amenable to appeal before the higher judiciary, there is little difference made to solving the issue of judicial delays, it was noted. .Further, he added, if expert advice was required, experts could be brought in to advice. .In this backdrop, he opined that the rationale and the logical for shifting adjudication to tribunals seems to have completely failed. "why bring in more executive?... Why appoint them on the Bench?" it was queried. .He added that the TDSAT is a rare exception as far as Tribunals go, for the reason that right from the beginning, it was manned by great men. ."... a lot depended on the person who manned this tribunal. That to a great extent ensured that the TDSAT was on course, unlike the case, unfortunately, in other tribunals", Kaul said.