While the SC has talked of invoking contempt proceedings, the Centre should not let matters come to such a pass.
The Supreme Court’s rebuke to the Centre over pending tribunal appointments—despite search-cum-selection committees led by SC judges having recommended names for these—and the ‘cherry-picking’ evident in the Centre’s choices, is an important reminder that judicial independence must be honoured. The fact that 250-plus tribunal appointments, both for judicial members and technical members (sectoral experts), are yet to be filled at over 15 tribunals retards justice delivery. The SC, therefore, is right to sternly remind the government to fulfil its obligations in the matter. Even as the court made it clear it doesn’t want any confrontation, it had earlier noted that the government’s non-action was “emasculating tribunals”. Hearing a clutch of petitions challenging the recently enacted Tribunals Reforms Act (TRA), the Court had observed there was no respect for its judgments. This is a searing comment on the fact that the government has brought, through the TRA, the same provisions of the Finance Act 2017 that the apex court had struck down in the Madras Bar Association cases. The SC has graciously given the Centre two-weeks’ time to make the appointments and file an affidavit.
Resolving disputes is a key function of the state and the government must not drag its feet on appointments, let alone cherry-pick tribunal members. The SC has made note of the fact that, in several appointments, some names on the ‘selection’ list forwarded by the search-cum-selection committee were bypassed in favour of names on the ‘wait’-list. For one of the tribunals, the committee interviewed as many as 534 candidates for judicial-member vacancies and 400 candidates for technical-member vacancies; the government picked only a few from the ‘selection’ list and the rest from the ‘wait’ list.
Indeed, in the National Company Law Tribunal, the selection panel had recommended nine judicial-member and 10 technical members, of which the government picked just three, choosing the rest from ‘wait’ list. The government may claim it has the right to select from among the recommended. However, if it does this, what sanctity does a search-cum-select committee have?
It has been argued that tribunals have not necessarily sped up justice delivery—and come at a significant cost to the exchequer. Part of the reason could also be delays in appointing members, not just by the present dispensation at the Centre, but also earlier ones. The SC bench rightly cited the example of the debt recovery tribunals that have become nearly non-functional given appointments have been pending for long; the higher courts are clogged badly, leaving a certain class of borrowers with little recourse.
While the SC has talked of invoking contempt proceedings, the Centre should not let matters come to such a pass. It must keep in mind that an independent judiciary—and even search-cum-selection committee recommendations come under this umbrella—is vital to a democratic state’s smooth functioning. Whether tribunals are efficient is a separate debate. What the government must do is respect the democratic processes. The 42nd Amendment to the Constitution added Article 323-A for the establishment of administrative tribunals and Article 323-B for other tribunals. The process that upholds these tribunals needs to be respected.