Order in the house

The tribunalisation of justice started long ago and has now reached gigantic proportions. We have a tribunal for virtually everything, except writ petitions against government entities and a few sundry matters. Major corporate issues are handled by the company law board; service cases by central and state administrative tribunals, with interesting acronyms like CAT and SAT (and in my home state Rajasthan, RAT!); income tax by ITAT; telecom disputes by Trai and TDSAT; excise and customs cases by Cestat; unfair and restrictive trade practices by the almost wound-up MRTP; and consumer complaints and claims by an army of district, state and central tribunals. There are also electricity regulatory commissions in most states and an Appellate Electricity Tribunal (ATE) at Delhi; the little known, but powerful Mining Tribunal at Shastri Bhawan; the almost wound-up BIFR and AAIFR for sick industries and so on.

Believe me, this is a list of only a few of the ‘large jurisdiction and high stakes’ tribunals. A comprehensive list, especially if it were to include those at the state level, would include hundreds, maybe thousands more. Still waiting in the wings are the oft-discussed National Tax Appeals Court and several other regulatory bodies, like those for hydrocarbons and so on.

Lawyers and judges frequently criticise the creation of such bodies. But the criticism becomes muted when judges realise that they are unable to deliver justice expeditiously through the normal court system and lawyers realise that they are usually able to appear and practise at such diverse fora (usually for a higher fee than in normal courts).

Tribunals have undoubtedly eased the burden on courts. But they need several fundamental reforms to make them efficacious justice delivery vehicles. Naturally, the panacea will differ, depending on the nature and structure of the tribunal and its governing statute, rules and regulations. But a few general points are in order.

First, my oft-repeated suggestion for a centrally located ‘Tribunal Bhawan’, or more than one contiguous one, to house all the tribunals. The building should have all modern amenities and conveniences. Each tribunal can occupy a full or half a floor. The economies of scale and efficiency in having a common canteen, common bar room and common technical services would be enormous. Both lawyers and litigants would be able to minimise movement across the length and breadth of Delhi.

Second, we cannot create disempowered or crippled bodies. The staff and infrastructural support to make any institution efficient must be in place before any appointment is notified. We have many examples of institutions beginning to functioning many months, sometimes over a year, after notification, because of lack of facilities. Even after commencement, in the absence of adequate support systems, they are likely to exhibit the same characteristics that they were designed to obviate — slow disposal, build-up of arrears, insufficient working space and a sense of ennui.

Third, we have to consciously avoid the creation of sinecures. Appointments of chairmen or members — whether judicial or lay — must be based on ability, merit and expertise. There has to be a zeal to create, nurture and entrench a new institution, not merely to enjoy a post-retirement sinecure. We have to do away with our fanatic fixation with having only retired judicial personnel to chair or man such bodies. Even in the non-judicial sphere, the fixation with retired civil servants must cease. Where non-judicial persons are to be appointed, technocrats, academicians or professionals, who are not necessarily retired or serving bureaucrats, must be seriously considered, indeed sometimes preferred.

Fourth, the tribunal’s statutory size must be fixed after a scientific and statistical survey of the subject it is designed to deal with. The ATE, to take one of several examples, is the all-India tribunal dealing with the vital infrastructural sector of electricity. It has a chairperson and three members. These four cannot form more than two benches for disposal. If the electricity sector is to grow at a fraction of the growth experienced by the telecom sector, the ATE is likely to be buried under an avalanche of work arising from the innumerable state regulatory commissions dotting India. Barring four or five states, almost each has such a commission (the North-eastern states have a common one). Even if one ATE member retires, a whole bench is disabled.

Fifth, most tribunals exhibit an inconsistency that is illogical. In the judicial organ, members of a common organisation do not have different retirement ages. Each Supreme Court judge, like its chief justice, retires at 65. The same applies for each high court judge vis-a-vis the high court chief justice (although the retirement age here is 62). Similarly, a common superannuation age applies to civil servants. Tribunals, however, make an invidious distinction between its head and the other members. In the ATE, as in several other tribunals, the retirement age for the chairperson is 70, while that for colleagues exercising identical judicial powers is 65. On the same body, with the same powers, this is an illogical age distinction.

Last, many tribunals — the ATE again provides a paradigm — have no staff of their own. They are frequently staffed entirely by people borrowed from government and/or other undertakings, usually on deputation, who are entitled to go back to their own department at any time. They have no special qualifications and no special experience of judicial or technical work of the kind they are expected to do in the tribunal. Hence, no spirit de corps, no commitment for, or stake in, the institution can be created.

Judgment delivery, pronouncement and preparation, as also the management of paperwork in a quasi-judicial tribunal, is a complex and confidential exercise and errors can have costly and irreversible consequences.

Abhishek Singhvi is Senior Advocate, Supreme Court of India, and Congress MP

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