The persistence of bureaucrats to create sinecures for themselves is matched only by the vigour of the rebuff they receive periodically from the judiciary. What is lost in this foggy war are the urgently needed economic reforms. The strife started some time in 1986 when administrative tribunals, consumer forums and debt recovery tribunals were set up and it continues to this day.
The Supreme Court used ever stronger words last week against executive encroachment on judicial authority while delivering its judgment in the Union of India vs R Gandhi case. It did not approve of the rules for setting up the Company Law tribunals and held half-a-dozen provisions in the Company Law Amendment Act of 2002 as unconstitutional. According to the judgment, some provisions were “tailor-made to provide sinecures” for the top cadres. Thus, the eight-year-old proposal to set up tribunals to deal with a variety of important corporate matters was shunted back to the old position, requiring changes in the law and parliamentary approval.
Just two observations of the Constitution bench in its 80-page judgment would show the enormity of the greed for power. “If a tribunal is packed with members who are drawn from civil service and who continue to be employees of different ministries or government departments by maintaining lien over their posts, it would amount to transferring judicial functions to the executive which would go against the doctrine of separation of powers and independence of the judiciary.”
Then again: “What is a matter of concern is the gradual erosion of the independence of the judiciary and the shrinking of the space occupied by the judiciary and the gradual increase in the number of persons belonging to the civil service discharging functions and exercising jurisdiction which were previously done by the high court.”
The story of the Competition Commission is similar. The law to establish it to replace the erstwhile Monopolies and Restrictive Trade Practices Commission (MRTPC) was passed in 2002, and it immediately plunged into litigation in the Supreme Court. In 2005, the court asked the government to change the structure of the panel to make it constitutional. Meanwhile, hundreds of government employees manned posts in the commission, which was not even born. It started functioning in 2009, only after fixing the constitutional fault lines.
Another law of recent origin that met with judicial snub was the Prevention of Money Laundering Act 2002. The president and members of the tribunal under this statute were proposed to be selected by a panel headed by the revenue secretary. Normally, members of adjudicatory bodies at the national level are chosen by a committee headed by the Chief Justice of India (CJI).
Striking down the offending provisions in the Pareena Swarup vs Union of India case, the court stated: “It is necessary that the court may draw a line that the executive may not cross in its misguided desire to take over, bit by bit, judicial functions and powers of the state exercised by the duly constituted courts.”
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In the appeal in the Ashish Handa vs Chief Justice of Punjab and Haryana case, the Supreme Court dealt with an attempt by the state to grab the power to appoint presidents of state consumer commissions. The court insisted upon consultation with the CJI in the appointments, and consultation meant concurrence. The judgment said: “This is necessary to maintain the independence of the judiciary and to avoid any possibility of a sitting or retired judge depending upon the executive for such appointment.”
The National Tax Tribunal is again caught in legal combat, and a new Constitution bench has to be set up to hear the validity of the procedure for appointments and qualifications of the members.
One can by now say that almost every quasi-judicial body faces still birth and the court has to play the role of an unwilling midwife. This is a tragedy because tribunals are being set up to reduce the burden on the courts. The tribunals with competent persons should start functioning as soon as possible because the average life of a case in courts is estimated to be 15 years now.
The appetite of babus for power is as high as Raisina Hill, and is sought to be justified on specious grounds. Their reason for packing themselves in the Competition Commission was that “the judiciary may be inexperienced in dealing with free-market problems. The issues before the commission require a certain level of specialised knowledge of economics, trade and the relevant law for adjudication.” After deciding all kinds of commercial disputes and developing the “common law” regime for decades, the judges had to hear this impudent argument.