 "Somasekhar Sundaresan")
In June, the previous edition of this column countered the Reserve Bank of India's objection to judicial review on the ground that writ courts are an effective check and balance on regulatory actions. Since then, quasi-judicial tribunals have been in the news - for completely different reasons.
The Supreme Court has reserved judgement on a constitutional challenge to Article 323-B of the Indian Constitution, the very provision of law that enables the creation of tribunals. The outcome of this challenge will determine whether the movement of justice delivery administration from the judiciary to the executive violates the basic features of the Indian Constitution.
In celebrated and historical case law (google "Keshavananda Bharati"), it has been held by the Supreme Court that an amendment to the Constitution of India may be effected only if it does not alter the basic features of the origi-nal Constitution.
In another petition, the Supreme Court is hearing a petition challenging the creation of tribunals under the Companies Act, 2013.
The provisions in this legislation are directly in conflict with an earlier ruling of a constitutional bench of the Supreme Court laying down safeguards, based on which tribunals under the earlier version of company law were held to be constitutionally valid.
In fact, when hearing the petition for admission, the bench remarked that the petition is in the form of "execution proceedings"- enforcement of an earlier order passed by the court. This case highlights how in the teeth of earlier Supreme Court rulings on constitutional validity, civil servants and ministers in government can pilot legislation through Parliament - an indicator of how justice delivery too can be disrupted, when handled by executive government.The Chief Justice of India recently lamented over how difficult it has been to find retired judges with qualifications set out by Parliament, to man quasi-judicial tribunals. According to him, candidates who covet the office are unfit, while coveted candidates do not want office.
This raises yet another important question: if a whole lot of expectations of an effective legal framework rides on the hope of highly-empowered regulators being checked and balanced by high-quality appellate review by tribunals, would the inability to man the tribunals easily not render the objective still-born?
The amendment to enable creation of tribunals was inserted in the Constitution in 1970s. However, since the 1990s, the creation of tribunals has been taken as an accepted norm in the past two decades. Specific areas of jurisdiction in which tribunals could be set up, were spelt out.
This amendment also enabled removal of civil courts from exercising jurisdiction over determining questions that such tribunals could determine. Over time, regardless of the areas spelt out in Article 323-B, setting up of tribunals has become par for the course in reliance on the general law-making power - for example, Article 323-B does not have specific reference to company law or securities law, but the power to make law on these subjects have been used to create tribunals.
Despite playing the justice delivery role, administrative responsibility for tribunals is typically with the ministries of the government that administer the statutes under which the tribunals are created.
The tribunal's letterheads say they are part of the ministries in the government.
Even the law ministry and its department of justice does not get involved in ensuring that the tribunals are well serviced by the government the way they have to ensure that the judiciary is well serviced. Retired judges who get convinced to join tribunals are at the mercy of civil servants in the administrative ministries for policy governing their day-to-day functions.
The efficiency of a tribunal is often linked to the respect, interest and seriousness that the incumbent minister holds for the quasi-judicial functioning in her ministry.
The Supreme Court could well rule that these facts can break down the aloofness that the judiciary is required to maintain from the executive arms of the State - tribunals could well become an aspect of the "committed judiciary" Indira Gandhi desired.
Numerous tribunals have been empowered to adjudicate important questions of law and appreciate complex facts. Typically, the determination of questions of fact end with the ultimate appellate tribunal and questions of law can be carried further to the Supre-me Court. The Supreme Court has had occasion to consider the constitutional validity of tribunals in the past, but typically on specific aspects of their powers. This time, the Supreme Court would determine whether the social reality in India's justice administration through tribunals indeed breaks down the very basic structure of the Constitution.
Clearly, governmental apathy towards the formation, manning, and administration of tribunals has led to some serious existential questions being asked.
The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own somasekhar@jsalaw.com
