In the Roger Mathew versus South Indian Bank Limited & Ors. case, the Supreme Court recently directed the government of India to set up a three-member committee to examine the creation of a regular cadre for appointment to tribunals, setting up of an autonomous oversight body for monitoring of all tribunals, amending the scheme of appeals, and establishing benches of tribunals more accessible to citizens.

There is a palpable rise in turf-battles between the government and the judiciary with regard to tribunalisation and independence of judiciary. Tribunals were originally set up to provide affordable and expeditious justice, and to reduce pendency of cases in regular courts. The experience so far is a mixed bag, mainly due to the extant scheme of appeals to higher courts from tribunals, and the independence and competence of tribunals themselves.

This assumes added significance in light of the comprehensive reform of tribunals being effected vide the Finance Bill 2017. The attempt to unify 27 tribunals into 19 for economising and reducing the number of tribunals in effect compromises on technical expertise of such tribunals and the consequential effectiveness of adjudication. The amendments have also entirely removed the involvement of the judiciary and legislature in making rules for terms of service and appointment of judges, ensuring little separation of power, thereby impairing impartiality.

It is worth noting that in light of similar concerns, an attempt to create the National Tax Tribunal was held unconstitutional, as was the first attempt to create the National Company Law Tribunal. Further, the Competition Commission of India narrowly missed meeting the same fate, only to be rescued by the government bringing in amendments. The constitution of the National Green Tribunal saw extensive litigation on similar counts. It was at the time of Emergency that the 42nd Amendment to the Constitution was passed to insert Articles 323A and 323B, providing for tribunals outside the purview of constitutional courts. However, the Supreme Court in 1997 held that tribunals could not be exempt from judicial review by High Courts, observing that the absence of the safeguards given to judicial appointments meant tribunals could only supplement and not supplant courts.

In passing its recent direction, the Supreme Court took note of the Law Commission of India’s 272nd Report recording concerns regarding the independence of tribunals, and suggested that the government’s involvement should be minimal since it is a party in a majority of litigation. The Law Commission Report went on to detail administrative reforms that would preserve principles of natural justice and independence of the judiciary. It observed that the appointments and terms of service of persons manning tribunals must be at par with the courts sought to be substituted. Further, it recommended that tribunals should be monitored under a single nodal agency set up under the Ministry of Law, and that all orders of an appellate tribunal may be challenged before a division bench of the High Court having jurisdiction over the appellate tribunal.

Considering the Law Commission’s Report, the Supreme Court approved the concept of having an effective autonomous oversight body for all tribunals, akin to the supervisory power of High Courts under Article 235 of the Constitution. Further, a regular cadre for tribunals on the lines of the pattern followed in the U.K., as drawn from serving officers in the higher judiciary may be set up, who may be eligible for appointment to the High Courts. It was noted that such appointment may facilitate High Courts with the requisite experience and competence to deal with progressively technical questions of law which will be decided by the tribunals.

It would be exciting to see such proposals put into action. The system of a national body to oversee functioning of tribunals, if completely free from executive control, may go a long way in ensuring insulation from executive interference, as supervisory control and the power to make norms would be handled by the national body. Moreover, as performance and qualification criteria would be standardised and implemented by the national body, the quality of members may be monitored and improved systematically. Technical members of regulators and tribunals, who are experts in their fields, can also be trained in the law, thus ensuring a holistic view in adjudication of disputes. A system of hiring support staff with domain expertise may also be standardised, helping regulators of highly technical sectors such as electricity, telecom, and financial services. Moreover, as appointments would no longer be the sole prerogative of the executive, independence of tribunals could be secured and possible political patronage negated.

Lessons may be taken from the U.K.’s experience, which created its Tribunals Service on similar lines in 2006. More interestingly, it was merged with Her Majesty’s Courts Service in 2010, leading to a unified structure of service for all courts. While such a unified service in India may not be possible, it may certainly be explored for lessons regarding broader judicial reform.

In the words of Sir Anthony Mason, former Chief Justice of Australia, unless we put in place provisions which preserve the independence of members of tribunals, we run the risk that interference will eventually contribute to the erosion of the concept of judicial independence as it applies to judges. The purpose of that independence, it is to be remembered, is to serve as a protection of and privilege of the people, not of the judges.

(Views expressed are personal.)

The author is a member of J. Sagar Associates’ Regulatory Disputes & Policy practice. His practice covers diverse aspects of regulatory and civil litigation and advisory, with a specific focus on the energy sector.

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