M J Antony: Appointments to tribunals

OUT OF COURT

Establishment of several tribunals are stuck for various reasons. The Competition Commission has been waiting to be born and so also the Company Law Tribunal. The composition of the tribunals and the manner of appointment to them are the main hurdles and there is evident conflict between the interests of bureaucrats and the judiciary. In this context, the recent judgement of the Supreme Court in Union of India vs Kali Dass Batish, dealing with the scope of judicial review in such matters is instructive.

In this case, two high courts had taken contrary views on the question of appointments to the administrative tribunals. The department of personnel has laid down detailed guidelines about the constitution and procedure to be adopted by the selection committee. In the case of selection of a judicial member, the selection committee is required to be headed by the nominee of the Chief Justice of India, who shall be a sitting judge of the Supreme Court. The committee shall also consist of secretaries in the law ministry and the ministry of personnel.

In the case of candidates from the bar to be appointed to the judicial posts, their antecedents have to be verified by the Intelligence Bureau (IB). In these two cases, the IB reports stood in the way of their appointments, though they were initially selected. One of them was described as an advocate of average calibre. A high court judge found that his presentation of cases was not good, and asked the Advocate General to shift him to some other court. Moreover, he had tried to get a ticket for election from a party and when he did not get it, he worked against the party and got himself expelled. Later, he returned to the same party. There were doubts in the appointing authority whether he could be given the post in view of this record though the selection committee headed by the Supreme Court judge had recommended him. The whole records were sent to the Chief Justice, and ultimately the lawyer's name was dropped. Therefore, he challenged it in the Himachal Pradesh High Court. It asked the Central government to reconsider his case. There was another candidate who similarly moved the Jharkhand High Court. But his petition was dismissed. The Central government and both the candidates moved the Supreme Court, aggrieved by the decisions in their own ways.

The Supreme Court observed that appointment of judicial members of tribunals cannot be dealt with in the same manner as if executive posts are being filled up. The tribunals constituted under Article 323A of the Constitution have the powers of the high courts. Such appointments must be made in consultation with the Chief Justice of India. "The consultation with the Chief Justice is neither a routine matter nor an idle formality," the judgement underlined. A member of a tribunal exercises vast judicial powers, and such member must be ensured "absolute judicial independence, free from influences of any kind likely to interfere with the independent judicial functioning or militate against it."

Chastising the Himachal Pradesh High Court, the Supreme Court remarked that it was most irregular on the part of the high court to have sat in appeal over the issues raised in the IB report. The high court attempted to disprove the IB finding by questioning the Advocate General and asking him to file affidavits on the report. "We strongly disapprove of such action on the part of the high court," the Supreme Court said, pointing out that the minister concerned had sent the whole record for the examination of the Chief Justice. The high court practically sat in appeal over the decision of the Chief Justice.

"It is not open for anyone to contend that the Chief Justice might have given his concurrence without application of mind or without calling for the necessary inputs," the Supreme Court asserted.

The judgement thus lays down certain guidelines for future appointments to tribunals of all kinds. They cannot be treated as appointments to executive posts. The manner in which judicial posts are filled up has a different flavour. The independence of judiciary is the prime consideration. Second, the IB report on the candidate is a very valuable document which throws light on the competence and honesty of the candidate. The court pointed out that in an earlier case, it had stated that even in the appointment of a constable, it is important. Third, the consultation with the Chief Justice in the appointment is not merely an idle formality. It is a key factor in the whole affair. These prescriptions, if followed, would smoothen the appointments to the posts, scores of which are lying vacant because of contrary pulls and pressures outside the view of the public.