NGTs' terrain must be respected

Time may have come for our Supreme Court to seriously examine whether the twin objectives behind the creation of Tribunals in our judicial polity have been met or not. And particularly, as and when the Sterilite imbroglio, shall find/wind its way there, as it is destined to, yet again.

We are a young democracy. The top court went live in 1950. We are not only 1.3 billion strong now, but a litigious nation too. Huge pendency of dockets before ‘courts’ and the procedural quagmire that infests the civil jurisdiction led to inordinate delays. ‘A surgical remedy was direly needed’ said Chief Justice J C Shah (of Shah Commission fame). And the second objective was to provide the ‘needed and necessary dosage of domain knowledge and expertise to decision makers- as Law Commission of India pontificated in one of its many long line of reports, to decide disputes imbued not with legal niceties alone. We therefore introduced the element of ‘Tribunalisation’ of Judiciary, as some saw this phenomenon. 

Tomes have been written on the pros and cons of Tribunals- a Thirishanku of sorts- alluding to Sage Vishwamitra’s challenging creation to Gods’ abode. It was strongly felt that our courts were ‘flooded with litigation and the snail paced procedural wrangles took more than a lifetime’ as Nani Palhivala eloquently put it. Equally, well versed the Judges may be in law, but the kind of causes that were taken to courts required ‘knowledge, mastery and control over domains alien to law’. Legal acumen meant little to handle subjects of varied hue. ‘Even the best were found wanting’ as Fali Nariman said. 

In India, the function of dispensing justice is entrusted to regularly established courts, on the pattern of Common law system. History of tribunals in India dates back to the year 1941-42 when the first Tribunal was established in the form of Income-Tax Appellate Tribunal. The Tribunals were, however, set up to reduce the workload of courts, to expedite decisions and to provide a forum which would be manned by lawyers and experts in the areas falling under the jurisdiction of the Tribunal.

The Constitution (42nd Amendment) Act of 1976 brought about a massive change in the adjudication of disputes in the country. It provided for the insertion of Articles 323-A and 323-B in the Constitution of India, whereby the goal of establishment of Administrative Tribunals by the Parliament as well as the State Legislatures, to adjudicate the matters specified in the sub-clauses is made possible. It was considered expedient to provide for administrative and other tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in regard to such matters under Art.136 of the Constitution.

 In 1969, Justice J.C. Shah Committee, popularly known as The High Courts’ Arrears Committee, was set up by the Union Government which pointed out that there was an urgent need to set up independent Tribunals to exclusively deal with service matters.

In the UK, it was no different .Sir Andrew Leggatt Committee, in its 2001  Report said- “…there were perceived deficiencies in the Court system, such as delay, expense, technicality and formality, lack of expertise and conservative social and political views. Hence, a new ‘independent, coherent, professional, cost-effective, user-friendly’ and structurally reformed Tribunal system was proposed with the intention to strengthen independence, unified administration and harmonised procedures”                                  

Persuaded by Reports of Law Commission and Committee relating to Judicial Arrears, we embarked on ‘Tribunalisation with a vengeance’. Pendency in courts dramatically fell down, but only for a while before the litigious nation got its act together. 

Yet, we can be certain of the fault-lines on two counts. One, the statutory authorities have miserably failed to keep the Tribunals fully complemented with personnel and logistics support in a timely manner, deliberately or otherwise.

For instance, the Principal Bench of National Green Tribunal, (NGT), New Delhi, had to hear the Sterilite challenge, for the Chennai Bench is non-functional. The second and more substantive structural issue we have failed to resolve is the power of judicial review vested with the High Courts over the Tribunals and need ‘to practice self-imposed discipline on the crucible of comity of courts’ by repeated and avoidable interferences.

 In its 272nd Report of the Law Commission, Oct, 2017, while answering the reference made by the Supreme Court in Gujarat Urja Vikas Nigam case (2016), it was pointed out that pendency of cases before the Tribunals did not inspire confidence and was a matter of concern. However, it made strong recommendations relating to appointment of personnel who were ‘competent and genuine experts in their domains’ and very attractive service conditions to lure talents. It did not however agree for ‘excluding the judicial review of High Courts’, which remains a ticklish issue.                             

The Supreme Court is not blameless on both counts. They have cracked the whip many a time on ‘timely appointment’ only to make ‘noise’, but never to hurt the Executive where it mattered. Second, on the role of HCs sitting in judgment over orders of such Tribunals, which they are not statutorily provided, it is the top court that has ‘judicially legislated’ so, to be precise.

Take the landmark case of L Chandrakumar- a seven-judges’ bench verdict from SC relating to Central and State Administrative Service matters. The Central Administrative and State Administrative Tribunals were envisioned with appeal remedies only and directly to Supreme Court. And no intermediary appellate provision to H.C. Yet, the apex court in its wisdom chose to ‘invent’ a hierarchical ladder in HC, which was not there. The SC ‘insulated itself from a flood of appeals’.

India continues to pay the price for the Supreme Court’s self inflicted wounds on the judicial firmament. We cannot talk of Tribunals as ‘specialised forums’ to handle tricky domain issues with required expertise, lacking in law lords and continue to vest plenary powers to HCs under Art.226 or Superintendence over the Tribunals under Art.227. Logic is simple. We cannot have the cake and eat it too. 

The Result: We have the spectacle of NGT New Delhi manned by a retired Judge of the Supreme Court and comprising ‘environmental, scientific domain knowledge experts’ pronouncing a verdict on December 15, 2018 - allowing Sterilite’s petition seeking resumption of operations, with an appeal to Supreme Court alone contemplated under Sec.22 of NGT Act, 2010. Yet the Madurai Bench of the Madras High Court intervenes to stay that order.

The sentiments expressed in Kartar Singh (SC-1994): “Though the High Courts have very wide powers under Art.226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles… while exercising discretion the court must not be oblivious of the sensitivity of the legislation and the social objective inherent in it” do not appear to be working all the time.

The very purpose for which the ‘Tribunals were let loose’, as Upendra Baxi was once quoted, may be floundering. If pendency knows no abatement and the Parliamentary mandate for creating these Tribunals are honoured more in breach, can the Supreme Court continue to wink and wince?