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Amit Arya, Faculty, BBA Dept., Dhanwate National College, Nagpur
Email
Id: mailtoamitarya@gmail.com
Abstract: This research-paper solely based on secondary sources of information hopes to intervene in the ongoing debate around such questions which defines the framework of Political & Social Development in the Indian Constitution and further explore our constitutional challenges in a boisterous democracy. Also this paper hopes to encourage conversation about our current constitutional challenges, and address each of the hereinafter mentioned themes, from the history and politics of judicial appointments to the search for rationality between the different benches of the Supreme Court to our tragic obsession with tribunals. The paper will also reflect upon institutional, structural concerns outside the judiciary, in particular, the Parliament.
Keywords: Indian
Constitution, Political Development, Parliament, Supreme Courts, Tribunals, Judiciary.
The Indian Constitution – An Introduction to
“the problem”
“ A set of rules approved by (majority) representatives of the States to
follow a list of “Do’s” and “Don’ts” with the aim to bring Prosperity, Equality
and Just to the people of the nation.”
Since its creation over
six decades ago, the life of India’s Constitution has involved much political tilt
and various forms of improvisation. Formally amended over a hundred times and
informally reinterpreted in countless judicial decisions, the document symbolize
the idea of common nationality and a shared political commitment while its
practices reveal shifting socio-political norms, principles, and aspiration. Constitutional
challenges in India as elsewhere are hardly inert, even if countries must ever
so often wrestle with tensions that acquire a lasting character. How do
countries negotiate new, changing socio-political landscape within the terms of
already set rules? What kinds of challenges have emerged in India in the recent
history and what sorts of new questions do they require us to explore?
One of the most evident
and acknowledged trends in Indian constitutional development over the past few
years has been ascend of the Indian judiciary. Since the 1970s, the judiciary,
and the Supreme Court in particular, has come to attain a status in Indian
political life that it lacked in the early years of the Republic. The reasons
for this are classically regarded to be the demur of other public institutions,
most notably Parliament, and the emergence of a governance void.
The story of the
Supreme Court’s rise is an intricate one, and an important element in the story
is thought to be the expansion and intensification of public interest
litigation, a procedural development that transformed both the character of litigation
facing the court and the kinds of disputes that became subject to judicial pledge.
While a vigilant analysis of the court’s principle over the past three decades
might lead to surprising results and suggest that the court is in fact far less
activist, as it were, than is commonly imagined, and that in remedial terms it
is thought to deliver more than it does, few would rebuff that hardly any areas
of Indian political life are now immune from the court’s gaze. Regardless of
the definitive decision delivered and the vast degrees of reverence that exist
– important though this is – there is little that has remained outside the
purview of the court’s jurisdiction.
Amongst the most
controversial matters on which the court has come to have a position has been
the appointment of judges. Through a sequence of decisions in the 1990s, the
court interpreted the rule determining how judges shall be appointed and believed
that no appointment could be made unless it was recommended by the collegiums
(the five senior-most judges of the court). To be in command over the
appointments procedure was ostensibly driven by a need for judicial
independence: if the legislature or administrative could control who serves on
the judiciary, how would the judiciary emerge as being staffed by judges who
were truly independent? This apprehension is legitimate and the problem of
judicial independence is a real one. But the collegiums system of appointments
has invited near widespread criticism. Some of the criticism is lawful and technical
– it is suggested that the Constitution envisages a very different appointments
process – but, for the most apart, the criticism has been that the attempt
towards independence has come at the solemn cost of accountability. The in
progress system suffers from, the argument goes, a major lack of transparency.
The appointment system
is the most politically charged structural question in front of the judiciary
today but it is barely the only one. A different alarm facing the operation of
the Supreme Court is the structure of benches. In contrast to the United States
Supreme Court which sits en
banc, the Indian Supreme Court operates in different courtrooms. The Chief
Justice’s role in determining bench composition and allocation is central, and
recent research has indicated the extraordinary power he wields. In recent
years, the figure of constitutional benches (benches who strength is five
judges or more) has decreased and several new, imperative doctrinal questions
appear before smaller benches. Moreover, there appears to be no clear, standard
model that determines bench size, and it is not apparent that the size of a
bench and the legal magnitude of an issue correspond with the same severity
that they once did. Although this change is subtle, it threatens the doctrine
of precedent and has the prospective to give rise to decisions that are per incuriam, eventually
threatening the rule of law.
A rather different
structural question is being faced by another organ: tribunals. Tribunals, with
their quasi-judicial nature, began with two kinds of promises. First, their curtailed
procedural set up promised a faster model of justice delivery. Second, they
were initiated in areas where expert knowledge was thought to matter. Staffed
with experts, tribunals hoped to meet the challenges posed by the technical
complexity of the disputes they adjudicated. But although there has been merely
no research on tribunals and whether they have been victorious in achieving
these aims, they have matured at an exponential rate. They are now not merely outstanding
organs for certain rare, unique kinds of cases; rather, they are fast becoming
forums in which fundamental legal questions are subject to resolution.
The inconsiderate development
of tribunals has given rise to two major concerns, which have received far too
little consideration in discussions on judicial restructuring. First, despite
the fact that tribunals have confirmed no evidence of performing capably, the
focus has been on creating new tribunals rather than strengthening the existing
judicial system. As is the case with civic institutions in India generally, the
remedy for deteriorating institutions has been the conception of new ones
rather than remedying flaws with existing institutions. The random growth of
tribunals has sidetracked attention from any solemn reform of the high courts.
A second key concern
regarding tribunals relates to judicial independence. Tribunals are staffed to
a substantial level by bureaucrats, although the Supreme Court has held that
judicial independence and the parting of powers doctrine demands that judges
constitute at slightest fifty per cent of the tribunal. Tribunals have become a
retirement abode for bureaucrats. Apart from the hasty expansion of tribunals,
therefore, indicating some form of rent seeking, bureaucratic staffing of
tribunals raises a vital separation of powers concern: executive infringement
upon the judiciary.
The last years has been
one in which numerous of the above institutional concerns have acquired
salience and require rethinking. But it was also a year of a number of very
prominent judicial decisions, whose legal and political impact might be felt
for years. Perhaps the most prominent of these was the 2-G decision, in which
the Supreme Court cancelled spectrum licenses that had been awarded through an purportedly
arbitrary process. The court’s decision approved enormous legitimacy to the
anti-corruption movement, and represented an example in which it took a strong
stand against the executive backed by major corrective implications. But was
the decision ground in sound administrative law doctrine or was it more oratory
than reason?
An additional milestone
decision was the protection of the constitutionality of the Right to Education
Act, a law which imposes conditions on private educational institutions and
demands that they admit a certain quota of underprivileged children. The
decision was extensively praised, and the impugned law has been regarded as a
path-breaking social justice measure (although its precise drafting and policy
requirements are thought to leave much to be desired). But, despite its alleged
payback, to what extent is the court’s decision sensitive to the temperament of
horizontal privileges under the Constitution and does it adequately acknowledge
the right to freedom of profession?
These are only some
questions that at present dominate Indian constitutional law debate and recommend
avenues of inquest that might be pursued. Others of great connotation at the instant
include the question of land acquirement and the right to property or the correlation
between constitutionalism and the economy.
Over the last 25 years,
Parliament has systematically taken away significant judicial functions of the
High Courts and the civil courts and vested them in quasi-judicial tribunals.
The stature of our High Courts has been reduced and, if this trend continues,
vitally important cases will come to be decided by tribunals that are wholly
controlled by the executive. The tribunalization of our judicial system will
lead to consequences that our country will bitterly regret. Despite the fact
that the functioning of most tribunals is in a pathetic state, the zeal to
create more tribunals has not abated. Very few have realized that the real
solution lies in strengthening the existing courts and confining tribunals to a
few specialized areas. It is equally important to ensure that specialized
tribunals are not manned by generalist civil servants or judges.
The first blow came
with the 42nd amendment to the Constitution, made during the Emergency
promulgated in June 1975. Furious at the independence of the judiciary, Indira
Gandhi was determined to drastically cut the power of this branch of
government. On the ground that there were mounting arrears in the High Courts
and there was a need to ensure speedy disposal of service and tax cases,
Articles 323A and 323B were inserted. At the same time, major amendments were
made to drastically curtail the powers of the High Courts under Articles 226 and
227.
Tribunals began with
the setting up of the Income Tax Appellate Tribunal (ITAT) in 1941, which
acquired a reputation for impartiality and fairness. Many famous lawyers
developed their argumentative skills in cases before the ITAT. It is said that
Nani Palkhivala, perhaps, argued more cases before this tribunal than any other
forum. After independence, the ITAT pattern of a two-member tribunal was
followed by the creation of sales tax tribunals in several states. These tax
tribunals were outside the mainstream judiciary; within the judiciary function
the rent control, motor vehicle and industrial tribunals. Till date, election
petitions are also heard by a High Court judge who functions as the Election
Tribunal.
The Company Law Board (CLB), created in 1988,
began functioning in May 1991. It was also patterned on the ITAT and marked a
major departure in the creation of tribunals. Till then, all tribunals outside
the judiciary dealt with disputes between the citizen and government
departments. For the first time private disputes between two shareholders or
between the shareholders and the company were shifted to a quasi-judicial body.
The functions discharged by the High Court for almost 80 years were now shifted
to four benches of the Company Law Board. Strangely, for the last two decades,
the government has been unable to recruit even nine members for this tribunal
and, over the years, cases which were heard by two members are now being heard
by a single member.
Following the
establishment of the CLB, the Debt Recovery Tribunals (DRT) was set up. The
rationale was that there were too many cases pending before the civil courts
and banks had to wait for several years to recover their money. Flush with this success, the National
Company Law Tribunal (NCLT)/ National Company Law Appellate Tribunal (NCLAT)
were created in 2002; the National Tax Tribunal (NTT) and the Intellectual
Property Appellate Board (IPAB) in 2003. In a span of two years, the
jurisdiction of the High Courts in company law, taxation and intellectual
property were simply taken away. Fortunately, the creation of NCLT/NCLAT and
NTT has been halted because of certain judgments which are discussed later.
The rewards to civil servants are so
enormous that the government has insisted on creating more and more tribunals,
even though most of them have failed to achieve the objective of speedy and
specialized disposal of cases. There was no justification for creating more
than twenty benches of the NCLT in various states with 62 members when the admitted
arrears in company cases was just 6000. Indeed, the creation of a Company Law
Board was never a part of the initial reference to Justice Eradi who headed the
committee. Most of the responses were against the creation of the NCLT. The
Reserve Bank of India was also against taking away the jurisdiction of the High
Courts.
Conclusion:
- Madhav
Khosla in his book “The Indian Constitution” rightly
criticizes the power given to a Speaker of a legislative assembly to decide on
the disqualification of a member for defection under the 10th Schedule to the
Constitution. He rightly points out that such a power should not be given to a
Speaker considering his political background and erratic ways of the Speakers
of legislative assemblies, and that such a power should have been conferred on
an independent body like the Election Commission.
- The
author appears to be benign in his interpretation of the judgement in the
controversial Supreme Courts
Advocates on Records case
(1992), which by dubious interpretation of Article 124(2) of the Constitution
appropriated the power of appointment of judges to collegiums of judges of the
Supreme Court. He believes that the criticism and that the power to appoint
judges of the Supreme Court has been taken over by the judiciary is an
exaggeration and that the decision only ingeniously made both the executive and
judiciary powerful as regards appointments. Evidently, the author has not
sufficiently realized the practical working of the collegiums system of judges
which today is regarded as lacking in any transparency and, worse, contributing
to the inferior quality of judges appointed by the system.
- The perceived reason for creating tribunals is
often attributed to the huge backlog of cases and the need for specialization.
However, the real reason is that tribunals are an excellent source of
post-retirement opportunities for several bureaucrats and High Court judges.
For instance, the National Company Law Tribunal (NCLT) required 62 members
throughout India, the majority of whom will most certainly be retired civil
servants. The term of office is deliberately restricted to five years so that
no self-respecting and competent lawyer will apply. Similarly, the National
Taxation Tribunal (NTT) contemplates strength of 50 members. Thus, creating
more tribunals generates more post-retirement opportunities for the
bureaucracy.
- The rewards to civil servants are so
enormous that the government has insisted on creating more and more tribunals,
even though most of them have failed to achieve the objective of speedy and
specialized disposal of cases. There
is no doubt that tribunals are an essential part of the justice delivery system
and have an important role to play. It is necessary to ensure that tribunals
are confined to disputes between citizens and government departments and are
not formed to decide disputes which are essentially civil or criminal in
nature. If such tribunals are to be formed, they should be part of the
judiciary itself like the rent control and motor-vehicle tribunals. Similarly,
substantial questions of law cannot be decided by tribunals as this is the
exclusive realm of the judiciary. It is equally necessary that all tribunals
must come under the Ministry of Law and have uniform conditions of service.
This was recommended in Chandra
Kumar’s case in 1977.
- Finally,
one must realize that tribunals are primarily meant to resolve disputes; in
India, their primary function is to provide employment to retired bureaucrats.
Adjudicating disputes is ancillary or incidental to this object. Taking away
disputes from courts and vesting them in tribunals has proved to be disastrous
to the Indian legal system. The fatal attraction with tribunals has weakened
the judiciary without any improvement in the disposal of case or in the quality
of justice.
Needless to
say, in turning my interest to the debates of the Constituent Assembly, it is
not my intention to either pledge to or advocate an original interpretation of
the Indian Constitution. Techniques of constitutional version provide a well-heeled
subject for debate, one that must necessarily take place elsewhere. My limited intent
is to twirl to history for the lessons it teaches us, so that any bid for
reform is duly informed by both the positives as well as the pitfalls of past
experiences.
References:
THE INDIAN CONSTITUTION by Madhav Khosla. Oxford University Press, Delhi, 2012
- Union
of India v. Delhi High Court Bar Association (2002)
4 SCC 275.- Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
- V.Balachandran v Union of India (1993) 76 Comp Cas 67 (Mad).
- S.P. Sampath Kumar v Union of India (1987) 1 SCC 124.
- L. Chandra Kumar v Union of India (1997) 3 SCC 261.
- Harry Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.
- L. Chandra Kumar v Union of India (1997) 3 SCC 261.
Arvind
P. Datar – Tribunals;http://india-seminar.com/2013/642/642_arvind_p_datar.htm
History’s
Lessons from Constitutional Reforms – Arghya Sengupta
u4upskill.blogspot.in - Amit
Arya.
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