Business
Standard: New Delhi: Wednesday, October 31, 2012.
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.
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