Safeguarding the autonomy of tribunals

On August 2, 2001, former regulation minister, Arun Jaitley, acknowledged earlier than Parliament that the federal government was contemplating establishing a central tribunals division throughout the ministry of regulation and justice, an impartial supervisory physique to carry uniformity for all tribunals. This was within the wake of the seven-judge Constitution Bench determination of the Supreme Court (SC) within the L Chandra Kumar vs Union of India case.

It is 2020, however neither the imaginative and prescient of the then regulation minister, nor the dicta of the Constitution Bench have been realised. On the opposite, the present state of tribunals within the nation, and the burgeoning workload of SC, level in direction of an reverse method of what was anticipated.

While quashing a algorithm promulgated in 2017 by the federal government administering the functioning of tribunals, SC on November 13, 2019, in Rojer Mathew vs South Indian Bank, had directed that recent guidelines be issued consistent with numerous previous selections on tribunalisation. New guidelines had been then revealed in February 2020, however sadly, these perform solely beauty adjustments and contravene the regulation laid down by SC on this topic.

Some of those provisions are jarring. The new guidelines don’t take away the management of father or mother administrative ministries over tribunals, that’s, these ministries towards which the tribunals must go orders. This majorly impacts sure tribunals such because the Armed Forces Tribunal whereby it capabilities below the identical ministry which is the primary reverse social gathering in litigation and which additionally wields rule-making powers and controls funds, infrastructure and manpower.

Needless to state, SC within the circumstances of L Chandra Kumar (1997), R Gandhi (2010), Madras Bar Association (2014) and Swiss Ribbons (2019) has dominated that tribunals can’t be made to perform below the ministries towards which they’re to go orders they usually have to be positioned below the regulation ministry as a substitute. Shockingly, even complaints towards members of tribunals might be made to the identical father or mother ministries as per these guidelines. It’s value recalling that when the Income Tax Appellate Tribunal was created in 1941, it was put below the finance division, however moved to the legislative division a yr later to make sure its independence. This association continues until date, and is probably the first purpose that it is without doubt one of the best-performing tribunals.

The new guidelines additionally make sure that the secretary of the ministry towards which the tribunal is to go orders sits on the committee for choosing adjudicating members of the identical tribunal, a system which was termed as “mockery of the Constitution” by SC in Madras Bar Association. The choice committee below the brand new guidelines may even perform in absence of any constituent, that means thereby {that a} committee fully (or majorly) comprising officers of the manager can choose members of tribunals. The new guidelines present for a retirement age of 65 years even for former judges who retire at 62 from the excessive courts (HCs), which provides them at greatest a three-year tenure. This is towards the minimal 5 to seven years tenure mandated by SC within the R Gandhi case to make sure continuity.

The new guidelines once more comprise ambiguous clauses stating that any individual with expertise in economics, commerce, administration, trade and administration might be appointed as a member of sure tribunals and that even members with non-judicial/authorized background can develop into chairpersons, whereas each these points had been held impermissible within the R Gandhi case. Even the bar on employment with the federal government after retiring from tribunals has been eliminated, thereby gravely affecting the independence of members.

Unless steps are taken in compliance with the regulation laid down by SC for tribunals, neither their independence nor their capacity to scale back the burden on the common judiciary might be assured. Tribunals should not be seen as an extension of the manager.

Further, with the intention to de-clutter SC of pointless burden and make justice reasonably priced and accessible, it must be ensured that the excessive courts, being equally efficient constitutional courts, virtually develop into the final and closing court docket in most litigation. The selections of HCs should not be used as mere stepping stones in direction of SC for (particularly wealthy) litigants. If required, the intra-court appellate jurisdiction from a single bench to a division bench inside HC might be widened, catering to extra topic issues. SC have to be allowed to focus solely on constitutional factors of regulation of normal public significance, Centre-state/inter-state disputes or the place there’s a main battle between selections of two or extra excessive courts. “Special Leave to Appeal” could also be prolonged solely to essentially “special” circumstances.

These measures is not going to solely present consistency and stability but in addition promote judicial self-discipline. As additionally held by SC, the system should not burden the best court docket of the land with deciding on routine and innocuous issues, for instance, whether or not a shopper must be paid 10% or 12% curiosity, or whether or not a upkeep of ~30,000 or ~32, 000 is sufficient for an estranged partner.

SC have to be left with solely high quality work per its eminence and majesty.

Justice Virender Singh is former chief justice, High Court of Jharkhand, and former chairperson, Armed Forces Tribunal. Major (retired) Navdeep Singh is a lawyer on the Punjab & Haryana High Court

The views expressed are private