The din that arose when some light was thrown into the selection of judges by the Supreme Court collegiums is yet to subside. But it stifled the voice of the five-judge Constitution bench that was hearing last week another aspect of the uneasy relationship between the executive and the judiciary. Like selection of judges behind the thick curtains of the collegiums, we are allowed to see only shadowy figures making cloak-and-dagger movements in the case of tribunals.
In both cases, the debates are tiresome reruns. In the first case, the issue is cherry-picking of appellate judges. In the other one, it is the selection of chairman and members of tribunals. These quasi-judicial bodies have been mushrooming in the past decade, forming a parallel judicial system. A conservative estimate puts their total at 40. Some of them are extensions of the government department, with little independence.
The birth of all major tribunals, and now the National Tax Tribunal, was stalled by litigation as soon as they were created by Acts of Parliament. The main bone of contention is the composition of the tribunals. Civil servants are accused of nibbling at judicial power while drafting laws. It is alleged by the legal profession that the mandarins are creating post-retirement sinecures. Their minds are not attuned to adjudication.
On the contrary, the draftsmen contend that judges are not well-versed in specialised subjects that are increasingly brought before courts. Experts are needed to understand the technical complexities of 4G spectrum, energy exploration, offshore frauds or costing. Therefore, the tribunals must give primacy to specialists, and those who have dealt with such issues while in government office.
The bar associations, which generally take up such issues on behalf of the judiciary, respond to these arguments pointing out that courts routinely decide issues of intricate nature. For decades, they have dealt with disputes over air waves, intellectual property, environmental issues, accounting frauds, and even religious squabbles involving scriptures and rights of idols and bishops. In case of difficulty, it is the practice of the court to seek assistance of experts. Repeated efforts of the executive to bring old legal concoction in new bottles is only to ensure jobs for the boys, it is argued.
It was while hearing the latest row involving the National Taxation Tribunal that the judges of the Constitution bench became vocal. Unlike the rest of those in power, they have neither the press nor the platform. While others can shout against the judiciary in the cacophonous talk shows, judges have to make "observations" in measured tones. There are few listeners, as the tiresome arguments might have already emptied the visitors' gallery in the court.
When the Attorney General submitted that the courts have failed to deliver speedy justice and, therefore, tribunals are necessary to take the burden off their back, the bench pointed out that the government was not appointing judges and some high courts are functioning with less than half the sanctioned strength. Courts also suffer from lack of basic infrastructure, which should be provided by the government instead of creating non-functional tribunals. According to one judge, it is nothing short of an "assault on the constitutional scheme." On the question of expertise, the judges remarked that a degree in costing or accountancy would not automatically bestow a person with a judicial mind, which comes with years of experience.
During the hearing, the Chief Justice revealed that he was getting many requests for judicial appointments in tribunals but "those who are fit to be on the tribunals are not interested and those who are keen are not suitable." That must be an understatement considering the cat-fight stories circulating about job-grabbing.
The court has earlier examined tribunal legislations in various cases since 1994 and upheld them with some changes. However, the executive has ignored such court directives in the next law. Parliament has also not amended the constitutional provisions to end the recurring squabbles. There are several observers, like Supreme Court ex-judge, Ruma Pal, who has described earlier judgments validating the structure of tribunals as a "sell-out by the judiciary".
Apart from the legality, there is a growing number of jurists who view tribunalisation as a failed experiment. Tribunals have become as slow and expensive as regular courts with lawyers lugging in the Civil Procedure Code and case law. Tribunals have elbowed out high court jurisdiction, introducing another tier of courts and violating the constitutional scheme. The trend has spread to all sectors, covering some 24 ministries and departments till last year.
Many of the tribunals exist only on paper and yet others are topless. There is hardly any that functions with full coram. The pensioner-members walk in late and break for lunch and a siesta. As a result, it is estimated that Rs 4 lakh-crore revenue is locked in fruitless litigation. Though the government is used to ignoring huge numbers, the harassment suffered by individuals cannot be measured in digits. Those who are crushed in the tribunal whirlpool can expect a definitive judgment from the constitution bench within two months.