The Supreme Court Thursday said the government has embarked on creating a parallel justice dispensing machinery in tribunals, but it was difficult to man these as those fit to serve on tribunals were not interested and those keen were not suitable.
A constitution bench of Chief Justice R.M. Lodha, Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice A.K. Sikri and Justice Rohinton Fali Nariman said it was a huge problem to find a right judicial person for tribunals dealing with specific areas of laws.
Referring to the difficulty he had in finding a suitable nominee for the Securities Appellate Tribunal, Chief Justice Lodha said that in the last four days he has received four requests for the appointment of four judicial members on various tribunals.
"Many retired judges who are fit to be on the tribunals are not interested and those who are keen are not suitable," Chief Justice Lodha said as he derided the people making adverse comments on the prevailing situation without appreciating its complexities.
Pointing out that normally the retirement age in tribunals is 68, the court said that a (high court) judge who retired three years back is not interested in taking up a tribunal's responsibilities, and is interested in arbitration as it comes with a "tonic".
Referring to the request for four judges for tribunals, Chief Justice Lodha said that earlier it was apex court judges, later scaled down to the chief justices of high courts and then judges of the high courts, and now more and more administrative people are getting appointed.
He said even if a sitting judge accepts an assignment to be on the tribunal, he does not start functioning (on the tribunal) till he retires as a judge.
The court's observations came in the course of the hearing of a batch of petitions challenging the validity of the tribunals which, it was contended, were parallel to and outside the country's justice delivery system and in breach of the basic structure of the Constitution providing for separation of powers.
As Attorney General Mukul Rohatgi sought to defend the creation of tribunals, the court asked him to tell it which enactment conferred "the tribunals with exclusive power to decide a substantial question of law and if the validity of that act has been upheld".
"What are you achieving ultimately? You are making a mockery of the procedure," the court observed as Rohatgi told the court that creation of tribunals has not eclipsed the powers of the high courts under Article 226 of the Constitution.
Rohatgi said that tribunals would decide all the questions including those touching on the Constitution, except the validity of the statute under which they were created.
Further elaborating, he said that if tribunals could decide questions touching on the Constitution, then they were equally empowered to decide the substantial questions of law.
At this, the court asked: "How can a tribunal, a forum which is not a judicial court, be conferred with exclusive powers to decide the substantial question of law?"
Rohatgi said that tribunals have all the trappings of courts, are independent and have a fixed tenure. "All the tribunals are courts but not vice-versa as courts have plenary powers," he said.
At that, the court noted that a high court's order are valid in the state of its jurisdiction, and the Supreme Court orders are valid all over the country, but "you have substituted the high court by tribunals... what is the value of their order? Are they binding?"
In response, Rohatgi said the idea of creating tribunals was to unclog the high courts of the backlog of the cases, but the apex court, noting what he said was right factually, sought to know who was responsible.
Appearing for the petitioners, senior counsel Arvind Datar said that the "obnoxious objective" of setting up tribunals was to create a parallel system outside the constitutionally mandated justice delivery system starting from the apex court, followed by high court and then lower courts.
On the court's query if creation of tribunals amounted to vesting judicial powers in the government, Datar said such panels determining a substantial question of law were under the union law ministry.
