For speedy justice, revive tribunals

Hearing petitions challenging the provisions in Finance Act, 2017, relating to various Tribunals, a constitution bench of the Supreme Court, headed by CJI Ranjan Gogoi, reflected on the sorry state of affairs. CJI Gogoi hinted at exploring solutions to the address the problem. Justice DY Chandrachud went a step ahead, suggesting that in the present scenario, the exclusion of the jurisdiction of the high court cannot stand. This revives the debate on the existence of tribunals on the basis of the theory of alternate institution mechanism.

The idea of the tribunals was proposed as early as 1958 by the Law Commission to overcome major lacunae in the justice delivery system, particularly the high court, in light of the legal maxim Lex dilationes semper exhorret,which means ‘The law always delays’; and the lack of required expertise by the traditional courts. Tribunals were to act as a substitute for the high courts and to exclude their jurisdiction on specified matters; the only appeal available against the decision of tribunals was to the Supreme Court.

Acting on the recommendations of the Swaran Singh Committee in 1976, the central government had inserted Article 323-A and 323-B, which form the basis of the tribunals in the country.

The Supreme Court upheld the constitutional validity of the amendment in SP Sampath Kumar vs Union of India and held that tribunals can be a substitute for the high court, provided the quality of justice was not impaired. This ruling decided on the limited question of transfer of original jurisdiction of the high courts to the tribunals, but it did not discuss in detail the power of judicial review, which is inherent to the high court and cannot be taken away without violating the basic structure doctrine.

Consequently, numerous challenges were mounted against the tribunals on the grounds of inviolability of judicial review of the high courts as a part of the basic structure. Giving a harmonious interpretation to these contentions, the Supreme Court in L Chandra Kumar vs Union of India (‘Chandra Kumar’) held that the high courts have jurisdiction to intervene against the holding of the tribunal. It has clearly laid down that the high court is a necessary ‘evil’ against tribunalisation of ordinary court functions.

The Law Commission, in its 215th report, had in 2008 recommended that the decision in ‘Chandra Kumar’ be revisited by a larger bench of the Supreme Court as it severely affected the purpose for which tribunals were established.

In Madras Bar Association vs Union of India, where the Supreme Court declared the National Tribunal Act as unconstitutional, it clearly laid down that it was permissible within the constitutional scheme to transfer jurisdiction from one judicial authority to another but the power to decide substantial questions of law inherently vests with the superior judiciary, the high courts and the Supreme Court, and cannot be transferred to tribunals, which would be violative of basic structure.

Appeals before HC

The main problem plaguing the efficiency of the tribunals is appeals/writs before the high court. The Report of the Arrears Committee (1989-90), popularly known as Mallimath Committee Report, was of the opinion that institutional changes should be carried out within the high courts, dividing them into separate divisions for different branches of law, as was being done in England. The issue of manning was sought to be addressed by appointing more judges. This suggestion, however, was turned down by the Supreme Court in ‘Chandra Kumar’ on the ground that the high court was already facing the problem of vacancies and in such a scenario it was not feasible to provide extra judges for the tribunals.

Thus, there are two problems at play: a) delay in disposal of cases due to the jurisdiction of the high courts; b) tribunals cannot be designated as high court as there are not enough judges to hear the cases. This can be adequately addressed if tribunals are designated as high courts and Article 224A of the Constitution, which provides for retired judges of the high court to sit and act as a judge of the high court, is pressed into service.

Tribunals consist of judicial members and expert members -- judicial members of most tribunals are retired judges of the high court, and expert members are mostly IAS officers or a distinguished personality of the said field. For tribunals to work as designated high courts, the expert members would have to work in advisory capacity to the retired judges. This ensures that problem of extra appeal to the high court from tribunals is done away with as the tribunals are now themselves high courts. Further, the issue of manning extra judges of the high court is addressed by invocation of Article 224A.

These measures can help revive tribunals from their redundant state. This is a step that should be given thought in the interest of speedy disposal of cases.

(The writer is a student at National Law School of India University, Bengaluru)