The problem with 'tribunalisation'

Shift the oversight of tribunals from the government to the judiciary and reclaim the ground that constitutionally belongs to the latter

The Law Commission has published a report titled “Assessment of Statutory Frameworks of Tribunals in India”. While the report is a response to five specific issues referred to the Commission by the Supreme Court last year, it promises to be a catalyst to a new debate on the legitimacy of the tribunal framework that has come to dominate justice delivery in India.

First, while repeated constitutional challenges to the creation of tribunals have met with mixed results, with the institution of tribunals largely being upheld (with tweaks to composition and manner of appointment), one fundamental issue has eluded proper consideration and debate. Under our constitutional framework, separation of powers among the executive (elected government), legislature (Parliament and state legislatures) and the judiciary is a vital fundamental feature of checks and balances in running the polity. However, although a large segment of the justice delivery has shifted from courts to tribunals, the latter are run by the government (executive) and not the judiciary.

The manner of appointment of its members, performance appraisal, career path for tribunal members, remuneration, terms of service are all outside the oversight of the judiciary. This is the foremost problem with tribunalisation. Unless this issue is addressed, one would perpetually be faced with the main litigant before the tribunal being its administrative overseer, presenting an inherent and foundational conflict of interest. A high court judge, once appointed, can only be removed by Parliament through impeachment. That is a constitutional design to provide for judicial independence. That logic is turned on its head when members of the tribunal, including presiding officers who are invariably retired judges, are mere government employees without any serious procedure for their removal. The breakdown of the separation of powers is potentially the most unconstitutional feature of the functioning of tribunals.

Illustration by Binay Sinha

Second, with so many areas of jurisdiction being taken away from the high courts and moved to tribunals, a seriously unmindful long-term damage is being inflicted on the judiciary. The judiciary has been zealous in guarding its independence on appointment of judges but has not been so in guarding what judges get to do after appointment.  Legislation after legislation that confers a tribunal jurisdiction over a body of law contains provisions to oust jurisdiction of civil courts (for example, electricity tribunals or the Securities Appellate Tribunal). Appeals from such tribunals typically lie in the Supreme Court — on the rare occasion with another intermediate appeal in another appellate tribunal (for example, company law) — but clearly taking out the jurisdiction of high courts.  

Therefore, what a high court judge gets to work on stands seriously denuded. Apart from civil disputes between parties, matters of serious commercial policy and regulatory implications get dealt with outside the precincts of high courts. The counterpoint would be that writ petitions challenging the constitutional validity of state or regulatory action can indeed be filed in high courts. However, the rare writ petition that gets filed in a high court, and the even rarer one that is actually considered by a high court in an area of law covered by a tribunal’s jurisdiction, would be the exception that proves the rule. The availability of the alternative efficacious remedy in the tribunal is the first ground that gets fought in such writ petitions, and that alone can take weeks, if not months, on end.

When a high court judge moves up to the Supreme Court and hears an appeal from decisions of these tribunals, she would have barely had a chance to consider these laws in her entire career as a high court judge. When she retires as a Supreme Court judge and potentially gets appointed as a presiding officer of one of these tribunals, she may have to start from scratch with a specialised area of law, negating the very objective of creating specialised tribunals.  

In a nutshell, the grand constitutional scheme of conflict by design between the elected political legislature, the unelected bureaucrats in government and the judiciary stands demolished. The legislature is happy to let the executive pilot legislation, eroding the space for real and independent justice delivery by bringing a substantial part of the mindshare of the judiciary under the direct oversight and indirect control of the executive government, ousting the jurisdiction of courts.

Finally, such an act of pulling of the rug from under the feet of the judiciary is not caused only by creating tribunals. The very creation of regulatory agencies and giving them quasi-judicial powers, again excluding jurisdiction of courts, is where the problem gets seeded. For example, civil courts have no jurisdiction over areas in which the Securities and Exchange Board of India (Sebi) has jurisdiction. The ouster is at two levels in the Sebi Act, 1992: Jurisdiction of the Sebi and that of the Securities Appellate Tribunal oust the jurisdiction of civil courts. The regulator has to convince no judge in taking action (indeed, a perverse incentive to even take ex parte actions with debilitating consequences) and no judge outside a tribunal can hear an appeal from such an action. After the tribunal, the Supreme Court is directly the forum for the last appeal.

Now, the trend is so pernicious that state legislatures have started passing legislation providing for appeals to the Supreme Court as a matter of right — in other words, states seek to task the apex court with judicial work, bypassing the high courts in having jurisdiction over state-level tribunals.

All of this points to a fundamental design breakdown. At this juncture, the Law Commission’s report (which is in the nature of recommendations) does provide fodder for contemplation. The recommendations largely and rightly focus on the important aspect of composition of the tribunals and who can man them. The Commission also speaks about a “single nodal agency under the aegis of the Ministry of Law and Justice” to oversee all tribunals.  

However, the malaise is deeper and needs broader surgical intervention. It can only be corrected by shifting the oversight of tribunals from the executive government to the judiciary and reclaiming the ground that constitutionally belongs to the judiciary as an arm of the state.

Click here to read the report

The author is an advocate and independent counsel; Twitter: @SomasekharS