Fixing the tribunal mess

Written by Shamnad Basheer | Updated: Oct 10 2014, 10:01am hrs
A careful reading of the Supreme Court judgment striking down the National Tax Tribunal (NTT) Act suggests that the decision is legally sound and follows a long line of case law condemning the usurpation of judicial power by the executive, though in far stronger terms.

The Supreme Court effectively ruled that in order to remain constitutionally valid, a tribunal tasked with adjudicating core questions of law ought to be on par with a high court in terms of independence (from the executive) and professional competence, i.e. staffed with members that have the requisite judicial qualifications to adjudicate. Under the rigour of this ruling, a number of tribunals are likely to be guillotined. And not without good reason, since the government has effectively trivialised justice through its flippant flowering of tribunals.

Consider the Intellectual Property Appellate Board (IPAB). Till date, it has not had adequate space or infrastructure. During the first few years, it was forced to beg the Indian patent office for a hearing room, an agency whose very decisions it was supposed to sit in appeal over! More egregiously, the quality of members appointed to adjudicate this complex legal terrain left much to be desiredparticularly stark is the case of an alleged specialist who stated in his CV that he appeared in trademark cases as far back as 1910. Clearly, a case of reincarnation if ever there was one.

A writ petition that I filed four years ago challenging the constitutionality of this troubled tribunal continues to languish at the Madras High court. The delay has effectively meant that the government continues to transgress one constitutional norm after another with impunity. The latest being an attempt to appoint a vice-chairman through a selection committee controlled largely by the executive, sans any advertisement for the post. In fact, a number of statutory provisions on eligibility appear to be deliberately framed to ease the entry of government officials or those with close links to the government into the tribunal.

The IPAB is not alone in this predicament. A recent writ filed by the Madras Bar Association (the very same petitioners who had agitated the NTT issue as well) highlights some of the most glaring infirmities in tribunals ranging from the National Green Tribunal to the Rent Control Tribunal.

How do we fix this mess Under the logic of the NTT ruling, there are two broad policy options.

One is to redress all issues with the current set of tribunals through an umbrella legislation, free them from government influence and elevate them to a position as close as possible to the high courts. But this is a tall order. And indeed, one may ask: If a tribunal has to be on par with a high court, what is the point of having a separate tribunal at all And this brings us to the second option: To have a specialist bench at the various high courts, staffed with those that have some prior background or expertise in the concerned subject matter (such as intellectual property or environment or tax law). Indeed, in a strange twist, the current Attorney General who batted vociferously for the NTT had, only a year or so ago, vehemently decried tribunalisation, and advocated rather forcefully that the tribunals ought to shut shop and their functions vested back in the high courts.

This second option guarantees some level of specialist expertise, but within the overall supervision and framework of the high court. As such, it appears a more workable solution than instituting a separate set of tribunals, housed independent of the high courts. It bears noting that now a Bill is pending before Parliament to regulate tribunals; unfortunately, its focus is rather limited, as it seeks to merely regulate service conditions and does nothing to redress the various constitutional flaws plaguing the current set of tribunals.

One may argue that not all tribunals need conform to the exacting standards laid down by the court. After all, the NTT was a rather special tribunal tasked with deciding only substantial questions of law. As such, it constituted an usurpation that was, in the words of Justice Nariman, the ultimate encroachment on the exclusive domain of the superior Courts of Record in India.

Unlike the NTT, most other tribunals are tasked with deciding factual issues as well, and some even decide cases at the first instance. For those tribunals, might one have a slightly different yardstick than the strict standard imposed by the NTT A literal reading of the majority judgment may not permit this distinction, as it appears to apply to all tribunals that effectively substituted for the high courts. This is one area that the court might need to revisit in the future. For the exigencies of a modern state and regulatory apparatus demand a more flexible framework, where a wider subset of people and agencies are tasked with justice dispensation, particularly in technical and specialised areas. As the courts themselves admit, the separation of powers doctrine under the Constitution is a rather fluid one and not strictly cast in stone. As such, we should have more freedom to experiment with our justice dispensation framework. Let us hope that this decision is a starting point for that dialogue. And not the trigger for yet another turf war.

The author is the founder of P-PIL (Promoting Public Interest Lawyering) and SpicyIP