Supreme Court troubled by tribunalisation

By: | Published: August 11, 2016 6:49 AM

Recent SC judgements highlight that the apex court has been reduced to an appellate court and has lost its original character as a constitutional one

Expressing concern over huge pendency of appeals against orders by various tribunals in the country, the Supreme Court has requested the Law Commission to examine whether tribunalisation was obstructing effective working of the apex court.

“Routine appeals to the highest court may result in obstruction of the constitutional role assigned to the highest court. This may affect the balance required to be maintained by the highest court of giving priority to cases of national importance, for which larger benches may be required to be constituted,” it said.

While referring the matter to the Law Commission to conduct the study with the involvement of all the stakeholders and submit a report within a year, the apex court held that the rationale behind constituting tribunals as substitute to civil courts and high courts ought to be revisited, especially when the government has made a provision that appeal from the decisions of such tribunals shall lie before the Supreme Court.

A bench of Justices Anil R Dave and Adarsh K Goel wants the panel to look into the issue whether statutory appeals directly to it from orders of tribunals on issues not involving national or public interest affect access to justice to litigants in remote areas of the country? Besides, whether it is desirable to exclude jurisdiction of all courts in absence of equally effective alternative mechanism for access to justice at grass root level?

“While there may be no lack of legislative competence with Parliament to make provision for direct appeal to the Supreme Court from orders of tribunals, legislative competence is not the only parameter of constitutionality… routine direct appeals to the highest court in commercial litigation affecting individual parties, without there being any issue of national importance, may call for reconsideration at appropriate levels,” the top court said, adding that some tribunals were based only in Delhi and thus access to justice is difficult for those living in other parts of the country.

The concern was raised by the SC while deciding an appeal by Gujarat Urja Vikas Nigam Ltd (GUVN) against a decision of the Appellate Tribunal for Electricity regarding pro-rata allocation of electricity by Essar Power to GUVN and its sister concern Essar Steel Ltd.

The tribunal had set aside the order of the Gujarat Electricity Regulatory Commission, which had ruled in favour of the Gujarat firm. However, the apex court upheld the Commision’s interpretation of the PPA that Essar Power was obliged to declare electricity availability in ratio of 300:215 MW to GUVN, which had sought compensation for wrongful allocation of electricity by Essar Power to its sister concern. Essar Power had denied any obligation for proportionate declaration of available generation capacity.

The setting up of various tribunals (alternative institutional mechanism for dispute resolution) to help the courts to cope up with the volume of work has been the subject matter of debate between various legal luminaries.

Former Solicitor General of India TR Andhyarujina has many a times reminded the SC to restore its character and stature. The jurisdiction of the SC should, by and large, be limited to matters of constitutional importance and matters involving substantial questions of law of general importance. “The SC of India, like apex courts in other jurisdictions, was not to be a final court to decide ordinary disputes between parties. The highest court has its unique assigned role.

But after 1990, the Supreme Court is losing its original character and becoming a general court of appeal by entertaining and deciding cases which do not involve important constitutional issues or issues of law of national importance. The adverse effect of this trend is that matters of constitutional importance are not getting the due priority and are pending for several years,” he had stated.

He further stated that “The Supreme Court of India must cease to be a mere court of appeal to litigants and a daily mentor of the government, if it is to preserve its pristine character, dignity and stature comparable to the SC in other jurisdictions.”
Even a study of the top court’s judgements by SC advocate KV Dhananjay and his team found that just 7.23% of its rulings last year dealt substantially with Constitutional matters. Of the 884 judgements delivered in 2014, just 64 judgements fitted the description of dealing with a Constitutional question, the study stated.

Even senior advocate KK Venugopal has pointed out that the SC “has gradually converted itself into a mere court of appeal which has sought to correct every error which it finds in the judgements of the HCs of the country as well as the vast number of tribunals. The court has strayed from its original character as a constitutional court and the apex court of the country. Failure to hear and dispose of cases within reasonable time erode confidence of the litigants in the apex court.”

However, SC lawyer Abhinav Mukherjee felt that unless and until infrastructure and quality of appointments to the tribunals improve, the SC’s mandate to function as pure constitutional court will not have the desired effect. According to SC lawyer Anip Sachthey, the apex court should restrict itself to the pure question of law and the tribunals should be the last word on facts.

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