M J Antony: The judicial tipping point

SC quashes a rule that encroaches on the power of the judiciary

Politicians and bureaucrats cry foul when the judiciary crosses constitutional borders in pursuit of the corrupt and dishonest among them. But when Parliament and the executive nibble at the powers of the judiciary, the latter has to suffer in silence or defend itself alone.

The 1970s saw the most formidable siege and assault on the judiciary by Parliament, which passed a series of constitutional amendments to dilute judicial powers. The judiciary came out unscathed, thanks more to luck than pluck. The intrusion of the executive into judicial territory is more subtle. It burrows into this domain. Bureaucrats create quasi-judicial posts for themselves and even elbow out those with a judicial background.

 

Two such instances unfolded in the Supreme Court in recent weeks. In one case, Amrik Singh vs Union of India, the Supreme Court asserted the role of the courts in adjudicating disputes. The issue involved was the constitutional validity of Section 347D of Delhi Municipal Corporation Act, 1957. There are similar provisions in the New Delhi Municipal Council Act, 1994. According to this rule, a citizen can appeal against the orders of the zonal engineer to a tribunal presided over by an additional sessions judge. However, if he is still dissatisfied with the judge’s decision, the next appeal lies to the Administrator of the national capital territory — the Lt Governor. This, said the petitioner, was a violation of the doctrines of the judicial review and independence of the judiciary enshrined in the Constitution.

It is obvious that the proceedings before the appellate tribunal are judicial in nature. It is presided over by a judge. According to several procedural laws, the tribunal is treated as a civil court. But the Delhi law gave primacy to the Administrator, as appeals against the decision of the judge must go to him.

The Supreme Court has denounced such violations of the rule of law in earlier judgments. In its 1987 decision in the case, P Sambamurthy vs State of Andhra Pradesh, the court declared a constitutional amendment ultra vires in similar circumstances. Article 371D provided for an administrative tribunal for the state. But its decision was made subject to the approval of the state government. This, said the Constitution bench of the court, was “shocking and clearly subversive of the principles of justice.”

The reason is that invariably the state government would be a party in every service dispute brought before the administrative tribunal. The government was conferred the ultimate power to uphold or reject the claims of public servants who approach the tribunal.

The Supreme Court said: “Now if the exercise of the power of judicial review can be set at naught by the state government by overriding the decision given against it, it would sound the death knell of the rule of law. The rule of law would cease to have any meaning, because then it would be open to the state government to defy the law and yet to get away with it.”

There are several other judgments that uphold the independence of the judiciary in similar circumstances. The establishment of administrative tribunals, company law tribunal and the Competition Commission was delayed for years because of the issue of the separation of powers under the Constitution. The laws had to be amended to bring them in line with the principle of independence of the judiciary.

Relying on judgments in those disputes, the court stated in the present case (Amrik Singh) that because judicial review has been considered an intrinsic part of constitutionalism, any statutory provision that provides for administrative review of a decision taken by a judicial or a quasi-judicial body is unconstitutional.

Striking down the Delhi rules, the court stated that appeals against the judge’s orders will hereafter go to the district courts, and not to the Lt Governor. Surprisingly, the rule has been in the statute book since 1957 and it took a journalist to move the Supreme Court to point out its unconstitutionality in a public interest litigation.

Another case pending before the court shows how judicial forums, even after they are established, can be rendered unworkable by the authorities, who hold the purse to finance these institutions (Union of India vs Debt Recovery Bar Association). Debt recovery tribunals are deprived of basic infrastructure (paper and stationery, let alone a decent building) to function. Appointments are either not made or are not on time, unless the babu gets his share in the judicial pie. Though these tribunals deal with non-performing assets, a serious problem bedevilling the economy, they are made dysfunctional by the authorities. More and more tribunals are being set up but most of them suffer from such intense deprivation.