Infrastructure of justice

The window to legislate on tribunals is a golden opportunity to rethink their administration and that of the judiciary as a whole

Everyone wants more state capability. A vital area for injecting improvements into state capability is the judiciary. When we make the judiciary better, we trigger improvements everywhere.

 

An important battle in legal system reforms concerns the tribunals. While hearing a recent matter regarding the National Company Law Tribunal (NCLT), newspapers reported that the Supreme Court (SC) of India posed a pointed question to the government: “How will tribunals function if there is no infrastructure? Every day they deal with thousands of crores of issues... They are the government’s lifeline.” Even more worrisome is the announcement by the NCLT Mumbai Bench regarding the suspension of Court VI effective October 13 due to a shortage of tribunal members!

 

We in India are too quick to create government organisations, including regulators and tribunals. But all too often, the follow through, by way of organisational design and thorough implementation, has been lacking.

 

Tribunals were originally conceived as an institutional innovation to solve two distinct problems in the Indian legal system. First, the traditional courts, particularly the high courts, were buckling under an unsustainable caseload. Second, when faced with the increasing complexity of a modernising, liberalised economy, it was felt that specialised knowledge of judges in tribunals would help.

 

Whether determining fair tariffs in the electricity sector, adjudicating anti-competitive behaviour in digital markets, or resolving complex corporate insolvencies, modern disputes demand a nuanced understanding of economics, accounting, and domain-specific mechanics. By designing tribunals that paired judicial members with technical experts, policy designers hoped to deliver faster, expert-driven adjudication.

 

The Supreme Court generally viewed this parallel judicial apparatus with apprehension. The transfer of adjudicatory powers from traditional constitutional courts to executive-appointed tribunals raises legitimate questions regarding the separation of powers and judicial independence. The higher judiciary expressed these concerns but responded pragmatically with a certain “wait and see” approach.

 

The bargain implicitly struck between the judiciary and the executive has frayed over time. The behaviour of the executive on operational issues —ranging from the timely appointment of members to the provision of resources for a functioning office — has frustrated the possibility of properly functioning tribunals. The chronic failures of many tribunals drove the SC to force the creation of an independent National Tribunals Commission (NTC) to oversee the administration of these bodies.

 

The most compelling international template for this endeavour is the United Kingdom’s Her Majesty’s Courts and Tribunals Service (HMCTS). The HMCTS is a dedicated agency jointly owned and operated by the higher judiciary and the executive government. Its mandate is unambiguous: To ensure that all administrative, logistical, and infrastructural requirements of the courts and tribunals are met seamlessly. Whether it involves setting up a newly created tribunal, expanding existing Benches to manage a surging workload, or deploying modern digital case management systems, the HMCTS serves as the institutional engine.

 

What makes the HMCTS highly effective is its managerial and commercial capabilities. It is manned not by judicial officers, but by seasoned management professionals. These professionals possess procurement capabilities of a high order, enabling them to execute a transparent, cost-effective acquisition of goods and services, which is the most important requirement of such public agencies. They handle real estate, IT infrastructure, human resources for registry staff, and all such day-to-day operations. Similar mechanisms, with a separation between the judicial and administrative functions of a court, are used by most developed countries.

 

By isolating administration from adjudication, this model optimises the deployment of a scarce and highly valuable resource: Judicial talent. A core flaw in the Indian system has been the burdening of senior judges with administrative trivia. Judicial officers are not, and should not be expected to be, experts in tender processes, civil construction, or vendor management. Expecting a tribunal chair to manage infrastructure procurement is like asking an expert neurosurgeon to perform complex brain surgery while simultaneously holding her responsible for procuring the hospital’s detergents and managing the nursing roster. It is a gross misallocation of specialised and scarce human capital.

 

If looking to the UK seems too distant, we need only look closer to home to find a spectacularly successful model of bifurcating specialised (sovereign) functions from logistical support: The Passport Seva system, executed via a public-private partnership between the Ministry of External Affairs (MEA) and a private company.

 

Before this reform, passport issuance was a notorious bureaucratic bottleneck. The MEA recognised that the process involved two distinct types of work. The first was the administrative heavy-lifting: Managing appointments, physical infrastructure, queuing, biometric data collection, and document digitisation. The second was the core sovereign function: The legal and security determination of whether an individual should be granted an Indian passport. By bringing in a private company to carry out all the non-sovereign, logistical, and support functions, the MEA revolutionised the citizen experience. The private partner manages the facilities and the technology, operating with private-sector efficiency. Meanwhile, the critical, sovereign decision to issue or renew a passport remains entirely in the hands of the government officer.

 

We are now at a remarkable moment in Indian history where Parliament is taking legislative steps to implement the NTC. We must approach this possibility on a bigger scale than is envisaged in the present Bill, which envisions the NTC essentially as a personnel and oversight body. Administration and infrastructure in the comprehensive sense discussed above — which is the core bottleneck — is not proposed to be given to the NTC according to the Bill. This subject continues to be housed in the parent ministries.

 

The proposed NTC must be designed around the identical philosophical pivot of the passport project. The NTC should operate as the MEA equivalent of the tribunal system and discharge the core sovereign functions. The Bill should create an Indian equivalent of the HMCTS to manage the non-sovereign support functions, ensuring high-quality infrastructure and dynamically expanding capacity where case pendency demands it. Given India’s Constitutional scheme and the role of the state governments, we may need more than one entity.

 

This is one of the most consequential frontiers of state-building in India.

         

The writer is an honorary senior fellow at the Isaac Centre for Public Policy, and a former civil servant