Q. Discuss the issue of tribunalisation of justice? What can be done to strengthen the tribunal framework in India?
Ans. Tribunalisation of justice refers to over reliance on tribunals rather than conventional judicial process for justice delivery. The original constitution did not contain provisions with respect to tribunals.
However, the 42nd amendment Act, 1976 added a new part XIV A to the constitution. The Administrative tribunals are formed under the Article 323A of the Indian Constitution. However, tribunals for other matters are formed under the Article 323B of the Indian Constitution.
ISSUE OF TRIBUNALISATION OF JUSTICE
- Against the principle of separation of power: Critics argue that India’s tryst with tribunalisation has led to transfer of judicial power to regulatory bodies which is against the principle of separation of power. Example: Tribunals have replaced high courts for disputes under the Companies Act, Competition Act, SEBI Act, the Electricity Act, and Consumer Protection Act among others.
- Raises conflict of interest issues: The creeping tribunalisation has meant that the judicial power was transferred to quasi-judicial regulatory bodies which are under the executive’s control. This raises question marks over the fairness of judgments, especially when the government itself is a party to the dispute. Example: The appointment process and service conditions of high court judges are not under the control of the executive but those of tribunals are under executive control.
- They supplant normal legal framework: In the name of ensuring speedy disposal of cases tribunals supplant normal legal framework. They bypass the constitutional mandate of the High Courts and the Supreme Courts.
- Tribunals are also not as accessible as high courts. Example: there are just four benches of the Green Tribunal for the whole country. In comparison, high courts were easily accessible for environmental matters.
- The tribunals have become a source of post-retirement employment for chosen bureaucrats and judges with political connections. This again points to the negative impacts of the direct and indirect executive patronage upon tribunals.
- Disputes should be resolved by the judiciary and not by tribunals under executive control for the sake of healthy democratic traditions.
- Executive interference: There is a lot of executive interference in tribunals. In a majority of cases the government is a party to the dispute. Hence, it is reported that tribunals sometimes give biased judgments under executive influence.
- They do not have adequate machinery for effective enforcement of their orders.
- They are staffed by persons lacking sufficient expertise and professional competence in dispensation of justice.
- They suffer from lack of autonomy especially in terms of appointment and funding, hence being at the disposal of executive which leads to loss of objectivity and impartiality due to patronage and influence. They are faced with resource crunch. So, they are dependent on executive patronage.
- Appeals to the High Courts and the Supreme Court neutralize the cost and time effectiveness by causing inordinate delay in final verdict. Example: The huge pendency of cases in the Debt Recovery Tribunals (DRT) indeed has been a cause of concern. They function in a very slow manner which has raised justifiable concerns about their efficiency.
- Flexibility of procedure: They do not follow rigid procedures of courts. They go by the principle of natural justice. This procedural innovation enhances efficiency in dispensing justice due to cost and time effectiveness.
- Deburdening of judiciary: They have helped in significantly reducing the burden of the judiciary, though appeals can be made there. They have helped in reducing the pendency of the cases.
- Expert involvement: There are a lot of technical issues in which experts have domain knowledge. They increase the quality of judicial process as judges with expertise related to respective fields are appointed. The involvement of experts saves time and increases effectiveness in the delivery of crucial judgments. Example : the prompt justice offered by the National Green Tribunal (NGT) has been crucial in dispensing environmental justice. The tribunals for the telecom sector and securities market have helped strengthen the enforcement of the mandate of the regulatory bodies like the TRAI and the SEBI.
TRIBUNALS PROMOTE JUDICIAL EFFICIENCY
Despite such challenges, tribunals are an excellent instrument of speedy dispute resolution and have become agents of good governance. In the interest of better justice delivery, the institutions like tribunals cannot be dispensed with altogether. In fact, what can be done is that their traditional structures and methods of functioning can be reformed, and a spirit of professionalism should be infused in them.
STEPS TO STRENGTHEN THE TRIBUNAL FRAMEWORK
Lack of independence, absence of uniformity in administration, high case pendency and vacancies constitute the major issues plaguing the working of tribunals in India. Thus, following steps need to be taken.
- There is a need to constitute National Tribunal Commission(NTC), the composition of an NTC will need to adhere to the standards set by the judiciary in maintaining its independence.
- There is a need to bring in uniformity in the appointment system while ensuring that it is independent and transparent.
- There is a need to establish an Indian Tribunals Service which will ensure a regular system of appointment.
- In order to avoid any prolonged vacancy in any of the posts, the process of appointment should start well in advance in order to ensure that the vacancy is filled up without any avoidable delay.
- There is a need to curb the executive influence in tribunals. For instance, in the Madras Bar Association case, the Supreme Court struck down the National Tax Tribunal Act, 2005, as unconstitutional, owing to (among other things) the presence of a greater number of executive members in the selection committee.
- Tenure and Service Conditions: At present, there is no uniformity in the retirement age of the members of a Tribunal which shows that there is an imperative need to fix the uniform age of retirement of such members.
- Reappointment: Question of reappointment is one of the important aspects of having a direct bearing on the independence and fairness in the workings of the institution.
What we need is for the Centre to not approach tribunal reforms in a piecemeal manner but address it systematically and responsibly in order to have a broader and more meaningful impact on India’s justice system.