Trimming the role of tribunals

Instead of nibbling at the powers of high courts, their constitutional role should be fully restored

The concept of tribunals was developed over the decades to overcome the crisis of delay and backlogs in courts. Various Law Commission reports have dealt with the issue since 1958. Meanwhile, the number of tribunals has increased and is estimated to be more than 30. The government recently reduced their number by eight, as in the case of the merger of Competition Appellate Tribunal with National Company Law Appellate Tribunal, Cyber Appellate Tribunal with Telecom Disputes Settlement and Appellate Tribunal and Copyright Board with Intellectual Property Appellate Board. The government is working on more mergers, aiming to reduce the number to 18.

Despite all these steps, last month’s Law Commission report (272nd) noted that “the official data in respect of the working of some of the tribunals do not depict a satisfactory picture. Though disposal rates of tribunals in comparison to filing of cases per year had been remarkable, that is, 94 per cent, the pendency remains high”. Five top tribunals are burdened with 350,000 cases. The Income Tax Appellate Tribunal has 91,538 cases, the Customs Excise and Service Tax Appellate Tribunal 90,592 and Debts Recovery Tribunal 78,118.

 Lack of infrastructure, unsatisfactory service conditions, delays engineered by lawyers and parties before the forums have been persistent problems. The Supreme Court has some petitions before it that highlight these aspects. The commission has dealt with the overarching issues and raised some seminal ones.

Since most appellate tribunals are on a par with high courts, their freedom from executive influence should be strictly safeguarded. This is a constitutional requirement. The Law Commission found that most legislation that create the framework of tribunals deprive high courts of jurisdiction and transfer it to tribunals. However, the provisions relating to the qualifications, manner of appointment, tenure do not conform to the standards laid down by the Supreme Court in its various decisions. Furthermore, no provisions for protecting their independence are found in the enactments creating tribunals. “On the contrary,” the commission says, “some provisions like vesting of administrative control make the tribunals subservient to the executive whose dispute they are deciding.” This strengthens the suspicion that the hundreds of posts available in tribunals are waiting to be filled by post-retirement civil servants.

One of the serious problems affecting the efficacy of tribunals is the large number of vacancies that are not filled for long periods, if ever. The Consumer Protection Act, for instance, prescribes a three-member bench from the district level onwards. But it is difficult to see one forum that has full quorum. Other tribunals also function with crippled strength. The commission recommends that the procedure for filling up vacancies start six months before the seats fall vacant. This has not been followed in the case of any tribunal, often leading to public interest litigations in the Supreme Court seeking appointments.

In the case of appellate tribunals where there is only one seat, often New Delhi, the problem becomes acute. The commission recommends setting up of benches in different geographical regions of the country. But when the government does not fill up even the existing vacancies and provide infrastructure facilities, it is difficult to think of creating more seats for the various tribunals. Some of them like tax tribunals have several benches, but that is more due to the enterprise of civil servants hoping to don the judicial hat than the result of a deliberate policy.

The constitutional provisions enabling the setting up of tribunals are seen by some people as a plot during the 1975 Emergency to reduce the stature of high courts. Even if it is not so, the attempt by the present government to reduce the number of tribunals is laudable. The benefits of tribunalisation are doubted by jurists. But before trimming the number of tribunals, there should be earnest efforts to strengthen the high courts. There are 400 vacancies in the 24 high courts at present and this woeful inadequacy has been chronic. The problem has become more acute with the Supreme Court collegium and the government locked in a debilitating battle over the proposed memorandum of procedure. This crisis comes at a time when high courts should be restored their full constitutional role while the tribunals of different feathers should be clipped of their procedural and adjudicatory powers.