Prashant Reddy T: Tribunals stuffed with bureaucrats

Last Updated: Fri, Dec 07, 2012 21:01 hrs

pAccording to media reports the Cabinet has cleared the name of P K Malhotra for the post of legislative secretary in the Ministry of Law and Justice Government of India Malhotra is currently a member of the Securities Appellate Tribunal SAT which hears appeals against the orders of the market regulator Securities and Exchange Board of India Sebi Malhotra reportedly belongs to the cadre of the Indian Legal Service ILS which was created in 1957 to staff the law ministry and is staffed mainly with lawyers His profile on the SAT website identifies him as belonging to the ILS cadreppIt is an open secret that ILS has over the years tried to convert itself into a emde facto emIndian judicial service The Indian Administrative Service and other cadres got onto the &ldquopost-retirement tribunal appointment&rdquo game only much later For ILS this has been relatively easy task to accomplish considering that it is in the control of the law ministry which must vet all legislations before they are introduced to Parliament In almost every tribunal created since the eighties when the Central Administrative Tribunal CAT was created under the Administrative Tribunals Act 1986 ILS has been drafting laws in a manner that allows for their members to hold powerful adjudicatory positions in new tribunalsppAcross the country Bar associations judges retired judges and individual lawyers have been highly critical of this practice of stuffing tribunals with bureaucrats since the consensus is that the practice seriously compromises the judicial independence of these tribunals In fact judicial independence has become such a burning issue that as of today the Central government is attempting to defend the constitutionality of all of the following tribunals before either a high court or the Supreme Court the Intellectual Property Appellate Board IPAB the National Tax Tribunal the National Green Tribunal the Competition Commission of India the Competition Appellate Tribunal the Copyright Board SAT CAT Telecom Disputes Settlement and Appellate Tribunal and the Armed Forces TribunalppGiven that the Central government is already having such a difficult time defending the constitutionality of these tribunals before the Supreme Court and the high courts why would it go ahead and appoint a serving member of what is supposed to be an independent tribunal as a member of the executive ie the secretary of the legislative department Such an appointment flies in the face of propriety and only lends credence to the argument that the Central government has too much control over members of the tribunal system and that it is impinging on the independence of the judiciary Could Malhotra sitting as a member of SAT exert his mind independent of the government&rsquos pressure knowing fully well that at the end of his term on SAT he would have to go back to the Government of India as an ILS officer It is impossible to determine what Malhotra was thinking and it is mostly irrelevant since the question is one of perception Justice must not only be done but be seen to be done A litigant before SAT should have the assurance that Malhotra was an independent judicial officerppQuestions of propriety aside there is also the question of legality In 2010 while deciding the constitutionality of the National Company Law Tribunal a Constitution bench of the Supreme Court had very clearly barred the practice of bureaucrats holding a lien over their bureaucratic position during the course of their appointment to an independent judicial tribunal In pertinent part the Supreme Court held &ldquoif any member of the tribunal is permitted to retain his lien over his post with the parent cadre or ministry or department in the civil service for his entire period of service as member of the tribunal he would continue to think act and function as a member of the civil services A litigant may legitimately think that such a member will not be independent and impartial&rdquo para 51pp&ldquoWhat we are referring to is the perception of the litigants and the public about the independence or conduct of the members of the tribunal Independence impartiality and fairness are qualities which have to be nurtured and developed and cannot be acquired overnight The independence of members discharging judicial functions in a Tribunal cannot be diluted&rdquo para 51ppDespite the above conclusion the Supreme Court in conclusion still allowed a lien of only one year In pertinent part the court held &ldquoany person appointed as members should be prepared to totally disassociate himself from the executive The lien cannot therefore exceed a period of one year&rdquo para 56ppThis judgment of the Supreme Court was delivered on May 11 2010 and according to the Constitution a judgment of the Supreme Court is the law of land &mdash more so when the judgment has been delivered by a Constitution bench According to the SAT website Malhotra was appointed to the tribunal on the July 20 2010 Going by the Supreme Court dicta Malhotra could have held lien over his position for only one year which meant that if he wanted to return to the law ministry he should have done so by the July 20 2011 How is Malhotra returning to the law ministry in 2012 Why was he not made to resign from ILS on the July 20 2011 Service conditions for other tribunals like IPAB as laid out in Rule 14 of IPAB Salaries & Allowances and Condition of Service Rules 2003 require bureaucrats to resign from their parent cadre as a pre-condition for appointment to IPAB Why is the Central government not enforcing Supreme Court judgments when it comes to the appointment of senior bureaucrats to important tribunalsppThe law minister would do well to refer the matter of Malhotra&rsquos appointment to the Attorney General for an independent opinion It is quite clear that the bureaucrats in the law ministry suffer from a conflict of interest in vetting such a decisionhr pp alignrightemThe writer is at Stanford Law School and can be contacted atem a hrefmailtotpreddystanfordedutpreddystanfordedua  p

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