M J Antony: Babus in black robes

Last Updated: Tue, Oct 30, 2012 20:01 hrs

The angst over the imagined collapse of Right to Information (RTI) commissions following the recent Supreme Court judgment is still persisting. The government has filed a petition to review that judgment in the case, Namit Sharma vs Union of India. The fear is that a seat for judges in the RTI commissions will erode the independence of these panels.

On the contrary, the Supreme Court thinks that judges’ presence is necessary for the sake of independence of judiciary. In a judgment delivered earlier this month, the Supreme Court has asserted once again the judges’ role in tribunals, in the case, State of Gujarat vs Gujarat Revenue Tribunal Bar Association.

Despite a series of well-reasoned judgments over the years, it seems every quasi-judicial tribunal is destined to undergo teething troubles with the same symptoms. The nagging issue in every law setting up tribunals is the weight given to retired civil servants by draftsmen in the ministries, elbowing out judges. Since tribunalisation is the current trend – there are some 60 such panels – this has become a recurring issue.

Civil servants argue that these tribunals, set up under Chapter XIV-A of the Constitution, deal with technical subjects like electricity and telecommunications and require expert knowledge not found in the judicial fraternity. The answer given by judges several times over is that deciding disputes is an adjudicatory function for which they are more competent than bureaucrats. Judges claim a pedigree of deciding highly specialised disputes involving patents (the Supreme Court has been hearing the Novartis cancer medicine case for two months), intricate financial scams and even religious doctrines.

In the RTI judgment, the Supreme Court asserted that lack of judicial expertise in the commissions may render the decision-making process “impracticable, inflexible and in given cases, contrary to law”. It cited more than a dozen leading judgments to emphasise the need for judicial talent in adjudicatory bodies.

The latest judgment in the Gujarat Revenue Tribunal reiterates this viewpoint. The Government of Gujarat, in exercise of its power under the revenue tribunal rules, appointed the secretary to the state government as the president of the Gujarat Revenue Tribunal. The appointment was challenged in the high court by the bar association on the ground that being a “judicial office”, it could not be usurped by a person who had been an administrative officer all his life. The validity of the rules was also challenged.

The high court held that the tribunal was, in the strict sense, a “court”, and that the president, who presides over such body could, therefore, be only a “judicial officer”, a district judge or a person with judicial background for whose appointment concurrence of the high court is necessary under Article 234 of the Constitution. The state government, therefore, appealed to the Supreme Court without success.

The Supreme Court went into the history of the law. In 1939, the president of the revenue tribunal was selected from the judicial cadre. An amendment in 1941 continued with the emphasis on judicial experience. It was only in 1957 that the bureaucrats nudged out the judges — the new rule provided that a secretary to the state government could chair the tribunal. No prize for guessing who introduced this quiet but substantial change without giving any reason for upsetting the hoary tradition.

Upholding the high court’s view, the Supreme Court reiterated its well-known stand. “Adjudicatory functions,” it said, “should be left to those with judicial background. It is indisputable that courts belong to the judicial hierarchy and constitute the country’s judiciary as distinct from the executive or legislative branches of the state. Judicial functions involve the decision of rights and liabilities of the parties. An enquiry and investigation into facts is a material part of judicial function. The legislature, in its wisdom has created tribunals and transferred the work which was regularly done by the civil courts to them, as it was found necessary to do so in order to provide efficacious remedy and also to reduce the burden on the civil courts and further, also to save the aggrieved person from bearing the burden of heavy court fees etc.”

Since almost every law setting up tribunals suffers constitutional birth pangs of this kind, and the law-makers look askance at the Supreme Court judgments, an amendment to Chapter XIV-A of the Constitution might be necessary to avoid future tug of wars. That is, if there is a functioning Parliament.

The story of the administrative tribunals, the Competition Commission of India and the National Tax Appellate Tribunal, are typical of the draftsmen creating unnecessary litigation up to the apex level. The government and administrators must spend their energy more on creating adequate infrastructure and working conditions for the tribunals (some of them have functioned from Ambassador cars and guest houses) instead of tweaking rules to wear a judicial hat after retirement.

More from Sify: