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M J Antony: The trials of tribunals

Passing legislation is easy. The challenge is to make them work

M J Antony  |  New Delhi 

The nation has seen candle light vigils demanding tough laws with more teeth to prevent economic corruption. Watching the proceedings in the Supreme Court last week, one would recommend similar rallies to make the existing laws work. It is not just about tainted money parked in nondescript islands and mountain kingdoms or the role of the Central Bureau of Investigation since the Bofors days, but how statutes are lobotomised by mere inaction.

Parliament has created several tribunals to ease pressure on overcrowded courts. However, there is hardly any such quasi-judicial body that has not descended into legal quicksand immediately after its birth. Administrative tribunals, company law tribunals, the Competition Commission have all been enmeshed in constitutional challenges, delaying their establishment for years. Bad drafting was the original sin. The next big vice was the attempt to pack bureaucrats in judicial posts.

Even after carrying out amendments suggested by the Supreme Court to cure the blemishes in the laws, the tribulations of the tribunals do not end. Appointments of presidents and members (more often non-appointments) are entangled in multi-level politics leading to a second or third round of litigation. Starving the tribunals of basic infrastructure facilities is equally serious.

The latest example pending before the Supreme Court is the state of affairs in debt recovery tribunals (DRTs). These bodies were set up to tackle soaring non-performing assets. The figures are mind-boggling even in these days when scams have inured us to figures stretching up to 15 digits. Tongue-twister laws like the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act and the Recovery of Debts Due to Banks and Financial Institutions Act were passed to tackle wilful defaulters. But the machinery to do the job is severely handicapped by sloth and apathy.

Several bar associations have moved petitions before high courts and even gone on strike to highlight the plight of the DRTs. Instead of complying with the directions, the central government has approached the Supreme Court in one case, Union of India vs DRT Bar Association. This appeal against the orders of the Punjab and Haryana High Court was pending before the Supreme Court since last year. The apex court has been asking the government to give suggestions to make the tribunals fulfil their purpose, but so far to little avail.

The proceedings showed that there was a stalemate between the finance ministry and the Additional Solicitor General on how to clear the mess. The law officer was earlier asked to sit along with the ministry’s officials and bring back recommendations to the court. Instead, he complained that his suggestions were not acceptable to the ministry, and he would no longer represent the government in the matter. The court asked him to continue to assist it in the matter. It also appointed a senior counsel, who has experience in the tribunal, as “friend of court” to help draft directions to the government. The judges stated that if the government behaves as it does, they will pass directions which should be followed by the authorities.

One of the grim revelations during the proceedings was that officers of lending institutions are appointed as members of the tribunals. Recovery officers of banks, oil companies and even defence ministry officers have been deputed to the tribunal. The facilities in these tribunals are another story. In one tribunal, the court was told that there was no stenographer to take dictation. The judges remarked, “Perhaps there was no paper either.”

The finance ministry has a controlling hand over lending institutions and DRTs. Its officials are on the board of banks and financial institutions. It provides salaries and perks to all of them, including DRT members. It can even put members in fear of their tenure and reputation. Thus, there is a serious conflict of interest and constitutional breach is making inroads into independence of the judiciary.

In this context, some bar associations have taken drastic steps like resorting to strike. Last year, lawyers in Orissa ceased work before the tribunal demanding the posting of a permanent presiding officer in Cuttack. The tribunal was topless for 12 years, though it was in charge of Kolkota and Andaman Nicobar islands.

Earlier this year, the Karnataka High Court expressed its displeasure over the delay in appointing a presiding officer there. A presiding officer from Chennai was visiting DRT in Bangalore for two days a week, after the previous officer was suspended. The court had earlier asked the government to appoint a full-time officer. When the government lawyer said that an advertisement had been placed, the judges wryly remarked that it would take 60 days to get a reply, 100 days to scrutinise it and 200 days more to appoint the officer. Definitely, the government owes the tribunals a better deal.

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First Published: Wed, April 13 2011. 00:53 IST
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