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Freeing the other judiciary

Sep 27 2013, 00:06 IST
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SummaryIf government and opposition are worried about accountability and the separation of powers, they should give tribunals the independence enjoyed by the Supreme Court and the high courts.

If government and opposition are worried about accountability and the separation of powers, they should give tribunals the independence enjoyed by the Supreme Court and the high courts.

Prashant Reddy Thikkavarapu

The parliamentary debates on the Constitution (120th Amendment) Bill, 2013 saw an all-out attack on the opaque and unaccountable collegium system of the Supreme Court where judges appoint judges. For a Parliament that has done almost nothing towards judicial reform in the last decade, the decision to replace the collegium with a Judicial Appointments Commission (JAC) is a welcome start. But why stop with the SC and the high courts? There is the “other judiciary”, consisting of a fleet of tribunals, which is at the other end of the spectrum of judicial independence. While the SC was busy digging itself into a moat of judicial independence, the bureaucrats in the Central government were chopping off portions of the high court’s powers to create tribunals that were then assimilated into the cosy arms of the executive. The backbone of commercial litigation, such as tax, company law and intellectual property cases, debt recovery and environmental cases, have been taken over or proposed to be taken over by tribunals from high courts.

The origins of the “other judiciary” can be traced to the 42nd Amendment to the Constitution, enacted in 1976 during the Emergency. Those amendments were widely seen to be the reaction of an executive furious with the independence of the SC and the high courts, both of whom had repeatedly tripped the executive on several of its policies. The new Articles 323A and 323B, inserted via these amendments, empowered both Parliament and state legislatures to create tribunals that could be firmly controlled by the executive. The audacity of the exercise was obvious from a mere reading of the provisions that were designed to be the very antithesis of judicial independence. For starters, the provisions were silent on the most important feature to determine judicial independence: the appointment mechanism.

Given that these constitutional amendments specifically excluded the jurisdiction of the high courts over the new tribunals, a person aggrieved with these tribunals was left only with an option to approach the SC through a Special Leave Petition under Article 136 — an infeasible and undesirable option. The move to exclude judicial review was particularly troubling because, although tribunals historically did exist in India, especially for administrative issues, they were always subject to

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