Yet another special forum devised by the executive takes a knock from the Supreme Court.
The propensity of bureaucrats to encroach upon judicial powers is matched only by that of the judiciary to prevent it. This drama has been going on in the Supreme Court for over a decade. It started with the administrative tribunals in L Chandra Kumar vs Union of India (1997) case. The more prominent and recent cases involved the Competition Commission of India, the National Company Law Tribunal and its appellate forum. Last week, the Supreme Court asserted the primacy of judiciary in the case of tribunals to be set up under the Prevention of Money Laundering Act 2002. Thus, another tribunal is stuck in litigative quicksand.
The challenge in this public interest petition, Pareena Swarup vs Union of India, had a familiar ring. It questioned the constitutional validity of the provisions dealing with the composition and powers of the adjudicating authorities, the qualifications for appointment of the chairperson and members of the appellate tribunal and the procedures for their resignation and removal.
The law was passed to prevent money laundering and punish those who indulged in it. In 2007, the government passed rules for the appointment and conditions of service of the members of the appellate tribunal. The members and the chairperson are to be selected by a committee headed by the Revenue Secretary. This was one glaring intrusion in the judicial territory. Normally the selection is done after consulting the Chief Justice.
There were several other improprieties. The 2007 rules did not explicitly specify the qualifications of the members from the field of finance and accountancy. The tenure of the panel was not secure. The chairman could be a person who is “qualified to be a judge of a high court” but need not be one who is or has been a judge of the Supreme Court or the high court. The legal member of the tribunal, similarly, could be one who is qualified to be a district judge, but need not be one who is or has been a district judge. These and several other defects violated the independence of the judiciary. A bench headed by the Chief Justice himself stated that these fears were well founded.
The remarks of the court in this context are worth quoting: “It is necessary that the court may draw a line which the executive may not cross in their misguided desire to take over bit by bit judicial functions and powers of the state exercised by the duly constituted courts. While creating a new avenue of judicial forums, it is the duty of the government to see that they are not in breach of the basic constitutional scheme of separation of powers and independence of the judicial function.”
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More strong words from the apex court: “The Constitution guarantees free and independent judiciary and the constitutional scheme of separation of powers can be easily and seriously undermined if the legislature were to divest the regular courts of their jurisdiction in all matters, entrust the same to the newly-created tribunals which are not entitled to protection similar to the constitutional protection afforded to the regular courts. Independence and impartiality are to be secured not only for the courts but also for tribunals and their members, though they do not belong to the judicial service. The safeguards that ensure independence and impartiality are not for promoting personal prestige of the functionary but for preserving and protecting the rights of the citizens. A judiciary free from the control of the executive and the legislature is essential if there is a right to have claims decided by judges who are free from potential domination by other branches of the government.”
In the end, the court, with the assistance of senior counsel and law officers, chalked out some amendments to the rules and the government accepted them. Now it is for the government to change the rules of the game.
The experience of the past tells us that once the court intervenes and clips the wings of the bureaucrats, they lose interest in setting up the tribunals. In some states, administrative tribunals are starved of funds and are dysfunctional. The Competition Commission idea has also lost its steam once the court stepped in and shed the unconstitutional imbalance of power between the babus and the judges. The tax tribunals proposed by an amendment to the Companies Act in 2002 is also in the doldrums, as a Constitution bench has to examine the validity of some provisions offending the independence of the judiciary.
The common argument of the executive in these cases is that the world economy has become more complicated and the judges do not have adequate grasp of international corporate transactions; the questions should be left to experts in the field. The judges maintain that they have been dealing with varied cases for centuries and the existing institutions are capable of handling them well if only they are given enough funds and facilities. But the executive holds the purse strings. That is why the infrastructure of courts and tribunals is pathetic, the judges are low-paid and arrears are mounting.