M J Antony: Stuck-in-the-mud tribunals

OUT OF COURT

The Budgets have consistently neglected the judiciary.

Though the number of tribunals and regulatory bodies has been increasing, some of them have not taken off and the status of several of them is still to be clarified by the Supreme Court. Last week, the court was hearing the challenge to the setting up of the national company law tribunal. Yet another case before the court is the challenge to the constitutional validity of the national tax tribunals law. These laws have been contested in several high courts and therefore, the petitions have been transferred to the Supreme Court.

These tribunals are meant to substitute the regular courts, and in some cases even the high courts, so that the aggrieved persons can move these specialised panels to get quick relief. But their composition and powers have become points of discord. The judges hearing the national company law tribunal case repeatedly asked the government whether these bodies could really cure the ills the regular courts suffered from. The appointments of the tribunals are not made on time, leaving them powerless to pass valid orders. There is not enough staff and infrastructure in several cases. Above all, there is a tussle over the primacy of the judicial member over the administrative and specialist members.

The government's argument is that the world has become more complicated and the judges do not have adequate knowledge of international corporate transactions and therefore the job should be left to specialists in the respective fields. However, the judges wondered whether it would not be more appropriate to improve the existing system which has already won the confidence of the people rather than going in for new ones with little financial and infrastructure support.

In the case of the proposed national tax tribunal, there are challenges to the provisions regarding who would represent the aggrieved party and the composition of the selection committee for making appointments. At present, 'any person duly authorised' is competent to appear before the tribunal. During the last hearing, the government had to field several arguments against this provision from the legal profession. Ultimately, it agreed to amend the law to ensure that only lawyers, chartered accountants and the party in person would be permitted to appear before the tribunal. Another objection to the tax tribunal is the imbalance in the selection committee which consists of the Chief Justice of India and the secretaries in the law and finance ministries. It is possible for the two bureaucrats to take a different view to that of the Chief Justice. However, the government rejects this fear stating that the judge's primacy is in-built in the provision. There is a similar fear about the power of transfer of a member from one bench to the other. It can be done by the central government in consultation with the chairperson. This brings back the old dispute over whether consultation means concurrence. This has great implication on the members' independence as the functions performed by the tribunal are very sensitive. The government has given an assurance that these aspects would be looked into in the next amendment.

The Competition Commission has been on the anvil for several years now. It was supposed to replace the Monopolies and Restrictive Trade Practices Commission (MRTPC). However, the law setting up the Competition Commission was challenged in the Supreme Court and it had pointed out some serious constitutional flaws in the enactment. The government has been tinkering with the law for quite some time and the commission has not come into being.

With the primacy of the bureaucrats in the commission knocked off by the court, it would appear that the draftsmen have lost interest in reviving the concept which was so vigorously championed by them earlier. There is a large section in the legal profession who think that instead of going in for a new commission, the existing MRTPC could be revamped. This is exactly what the Supreme Court judges asked the government last week in the case of the company law tribunal "" why not strengthen the existing institutions before launching half-baked experiments? Another serious aspect of tribunalisation is the state governments' reluctance to finance it. It is reported that some state governments are closing down administrative tribunals and even a few local tax tribunals. The governments cannot digest that they not only have to spend precious revenue on the upkeep of these tribunals, but have to suffer adverse judgements from them too.

The reluctance of the governments to give proper facilities to consumer forums is another matter which is pending before the Supreme Court. Last week, the central government strongly argued that the state governments should not stint on giving financial support to these grassroots forums. But when it comes to apex panels, the Union government has shown the same disinclination to provide funds. This is reflected in the Budgets of the Union and the states every year. The coming Budget season may not be any different.