TRIBUNALISATION or TRIVIALISATION of HIGH COURTS ?! By Advocate Divya Gurnay, LL.B, LL.M.

TRIBUNALISATION or TRIVIALISATION of HIGH COURTS ?!

By Advocate Divya Gurnay, LL.B., LL.M.

The High Courts hold a prime position and great importance in the justice delivery system of India. Contrary to what most people believe, the high courts are not subordinate to the Supreme Court, except for appellate powers. The Supreme Court itself has recognised this in its 2004 judgement of Tirupati Balaji Developers Pvt. Ltd. and Others. vs. State of Bihar and Others. High Courts have wider powers than the Supreme Court to issue prerogative writs. They also have power of superintendence over subordinate courts which the Supreme Court does not. However, the powers of high courts have been shrinking consistently because of legislative interference, by setting up quasi-judicial tribunals to take over traditional high court jurisdiction, in many areas of law.

Originally, there was no provision for tribunals in the Constitution of India. In 1976, the Indira Gandhi led government brought in the 42^nd amendment which, along with other provisions, introduced Articles 323A and 323B, to provide for setting up of Tribunals. Article 323 A provides for setting up administrative tribunals and 323B for tribunals to deal with other matters. This laid the ground for dilution of the jurisdiction of high courts.

Today, we have a plethora of tribunals that have replaced high courts, as courts of first instance. Now, litigants are forced to go to different tribunals for cases related to recruitment and service of government employees, Taxes such as GST,  Environment, Rent, Armed Forces, Company matters, SEBI, Electricity, Consumer Protection, Competition laws, Airports, Foreign Exchange, Cyber laws, Debt recovery, Motor Accidents claims, National Highways, Railway Claims etc. Many of these tribunals have appellate tribunals as well. The stated aim of creating so many tribunals was to create easier access to justice for the common person, however, the actual aim of tribunals is to reduce the writ of high courts, and increase the control of executive over judiciary. Thus, the effect of setting up of tribunals has been the opposite of stated aim of setting them up. The tribunals have failed to live up to their stated aims for many reasons, some of which I am going to elaborate on.

Lack of Independence and Constitutional Safeguards:

The sitting High Court judges enjoy certain constitutional safeguards to protect their independence, such as security of tenure and remuneration, removal only by impeachment, and over all immunity from interference by executive. The retired judges and bureaucrats posted as members of tribunals, have no such safeguards. Their tenure is at the mercy of the government that has appointed them. Since the government is itself a litigant in many of the matters that come before tribunals, their decisions may be questionable.

Justice is Further Delayed:

It was originally envisaged under the 42^nd Amendment of the Constitution in 1976 that appeals from tribunals would not go to High Courts, but to the Supreme Court. This provision was struck down as unconstitutional in 1997 by the Supreme Court in the case of L. Chandra Kumar vs. Union of India. Now tribunals and appellate tribunals have become additional steps in the hierarchy of justice, as their appeals nearly always come to High Courts.

The lowest rung are denied justice:

The economically weakest are the ones who suffer more in their quest for justice in an already convoluted justice system. The cost of litigation goes up due to hiring lawyers for multiple levels of litigation, and the litigants having to travel to different cities, to appear before tribunals and appellate tribunals, and then to the high courts. The financially weak litigants decide to forego appeal against a decision of the tribunal, as they do not have the means to appeal, even though at times, their cases have merit, and in the first go itself, they would have got justice in the High Court, which they are now reaching as the second or third forum for justice.. For example, the class D employees who go to Administrative tribunals seeking regularisation from ad-hoc status, are less likely to get a favourable order from the tribunal, though they may have had a high chance of getting it from the High Court, which is not afraid of reprimanding and summoning the highest officials and office bearers of the State, to answer for the injustice meted out to the employees of the lowest rung. It is these very litigants, who no longer reach the High Courts as they become disheartened by an unfavourable order of the Tribunal and mistakenly believe that perhaps their case has no merit at all.

Failure to Achieve Aims:

Tribunals were created with the aims of giving speedier justice to litigants, at less cost and with experts to adjudicate upon the matter at hand, so as to reduce pendency in courts. The burden of the high courts has not reduced significantly either as tribunals also have a large pendency of cases, and since the appeals from tribunals still go to the High Courts, it only delays justice. The initial idea of tribunal benches comprising of experts only, is not strictly adhered to. Judges who have never dealt with a branch of law in their judicial career, are at times made chairpersons of a tribunal which is not their area of expertise. Non-judicial members too, are picked from amongst those who are within the sphere of favour, of the incumbent appointing government.

Tribunals Already Shutting Down:

Himachal Pradesh has recently abolished its state administrative tribunal as most cases ended up going to the high court in appeal. The Odisha government too is abolishing its state administrative tribunal, as the very objective of the institution to give quick justice to employees could not be achieved. Tens of thousands of cases lie pending before such tribunals in different states. The central administrative tribunal, (CAT) is not faring too well either, as the Minister of State for Personnel, Mr. Jitendra Singh recently admitted that more than 50,000 cases are pending in in the 17 branches of CAT alone.

Law Commission Assessment:

The 272^nd report of the Law Commission in 2017 assessed the framework of tribunals in India. In reply to a reference made by the Supreme Court, the commission observed that the high pendency in these tribunals indicates the objective of setting them up has not been achieved. It acknowledged that the selection of members is not always impartial, and involvement of government in appointing them should be curbed as government is itself a litigant in most cases.

In conclusion, if justice is to be served to the common man, the judicial machinery needs to be strengthened rather than being diluted. Instead of giving away powers of High Courts to quasi-judicial tribunals, more High Courts need to be set up, and more judges need to be appointed to take effective care of the huge pendency of cases. The need of the hour is creation of specialised divisions in high courts for service law, tax, company law, environmental disputes etc., rather than setting up tribunals. To ensure the appointment of competent judges, a national level exam to select judicial officers, to occupy the benches of higher judiciary of the country, needs to be put in place. This exam must not be conducted by the Ministry of Law, but under the review and purview of the Supreme Court of India, in order to curtail the influence of executive in the appointments and working of judiciary. This is the best possible solution to replace the collegium system of appointment of judges, allegedly marred with aunty uncle syndrome. This would be a service to the nation. If high courts keep losing their strength and status to Legislature and Executive controlled Tribunals, India’s justice delivery system will be the principal loser, and common man the ultimate sufferer.

By Advocate Divya Gurnay, BA (Hons.), M.A., PG Human Rights, LL.B., LL.M.

© All copyrights reserved with author Divya Gurnay

WHOM DOES CHANDIGARH BELONG TO ? @ Advocate Divya Gurnay

A conundrum, that two States and a Union Territory, and the government of India have not been able to solve for more than half a century, lies before the Judiciary now. The million dollar question  is ‘Whether Chandigarh is the capital of Punjab or Haryana, or is it the capital of both Punjab and Haryana, or neither of them’ ?

It appears that no one has an answer, as there seems to be no law, rule or legal notification which confers the official status of capital upon Chandigarh. That is why, the two judge bench of Punjab and Haryana High Court, confronted with this question, has sought concrete answers to it from Punjab as well as Haryana via the Advocate Generals of both the states. The counsels for the states of Punjab, Haryana, and the U.T. of Chandigarh, have all been given time by the honourable court, to produce a legally admissible document to establish the status of the UT as a capital.

Here, it would be prudent to have a brief peep, in to the birth and history of Chandigarh. In 1952, Chandigarh was made the capital of post-independent, undivided Indian Punjab, via ‘The Capital of Punjab (Development and Regulations) Act 1952’.

Interestingly though, from 1st November, 1966, when the ‘Punjab Re-organisation Act 1966’ was enforced, the state of Punjab as referred to in the 1952 law, ceased to exist. The old state of Punjab was now divided into four new territories, which were, the state of Haryana, the state of Punjab, UT of Chandigarh, and UT of Himachal Pradesh.  Later in the year 1971, Himachal was conferred the status of a  state.

Chandigarh, under the 1966 act was not made a part of any state, nor was it officially designated as the capital of any of them. Punjab, although continues to claim that Chandigarh belongs to it, a claim bitterly contended by Haryana. Now after five decades, the Punjab and Haryana High Court, finds itself facing a cul-de-sac situation over the issue, and have, as a result once again raised the question,“Whom does Chandigarh belong to?”

The case which has forced the judiciary to come to ask this question pertains to an Advocate, who sought reservation in the superior judicial services examinations of Punjab as well as Haryana.  Advocate in question, a resident of Chandigarh, the city claimed to be their capital, by both Haryana and Punjab, had applied for the  judicial posts under reserved category classification. In this case, both states have refused to consider the said candidate in the reserved category, on grounds that the reservation was only meant for residents of the concerned states, and the petitioner is an outsider.

While current law states that the residents of one state cannot claim a right to reservation in another state, the outcome of the case now hinges upon one question alone, that is Chandigarh a part of Punjab or Haryana, or both, or neither of them,and if any of these contentions is correct, which one is that?” 

The petitioner’s case is ‘unique’, because Chandigarh does not have a judicial cadre of its own, and as a result, judges from Punjab and Haryana Judiciary are posted in the session courts of Chandigarh. In fact, for a law professional  who hopes to serve his home territory of Chandigarh as a Judge, the only way to do so is to join the judicial cadre of either of the two states, and then get posted to Chandigarh District Courts.

There is a similar situation in the Higher Judiciary as swell. The judges of the High Court of Punjab and Haryana have mostly lived and worked their entire lives in the UT of Chandigarh. They have residence proofs of the UT, yet, in the High Court, there is no quota for UT. There is however, a 40:60 division of quota, between the States of Haryana and Punjab.

The question that arises is, for the sake of reservation, is Chandigarh to be treated as a part of Punjab and Haryana, or both, or none, or is it that a citizen of Chandigarh is going to be put at a disadvantage, by denying him the reservation due to him. 

Who does the land of Chandigarh belong to, and to whom do its people belong. If neither State wants to claim the people of Chandigarh as their own, then on what basis do they claim the territory as their own, and on what basis they send officers of their state cadres to administer Chandigarh, whereas Chandigarh should by default have AGMUT cadre officers alone, and should ideally have its own judicial cadre as well? 

The larger question is, whether this whole tug-of-war between Punjab and Haryana is political drama, enacted again and again for pure political gains, even at the cost of residents of Chandigarh? 

It is worth considering as to  after all, what is the meaning of capital, and why is it being claimed by both Punjab and Haryana, whereas, their governments literally sit in rented accommodations, rented by the UT to them?

As per the dictionary, a capital is a city designated as legislative seat by the government, simply meaning that a capital is a city in which the Government is located, and it does not have to be an integral territorial part of the concerned state.

For example, with the reorganization of Andhra Pradesh in 2014, Hyderabad was made the common capital of both states, Andhra Pradesh as well as Telangana,  however, Hyderabad no longer remained territorially within Andhra Pradesh. The provision for a common capital was only for ten years, in which period Andhra Pradesh is expected to build and shift its capital, to the new city of Amravati. 

Thus a capital is where the lawmakers of a State meet. A capital may be within the territory of a State or not. An example of this is Mc Leod Ganj, in Himachal Pradesh, which is Indian territory, but still recognized as the capital of the Tibetan state in exile, and thus colloquially called ‘Little Lhasa’. There are other examples around the world also, which show that a territory need not belong to a state or a province in order to house its capital. In Japan, the city of Ishigaki situated in Okinawa territory of Japan is the seat of two governments, of Yaeyama and Taketomi. It is however not a part of either of these territories.

It is also worth considering, that the physical territory of Chandigarh is neither owned  by Punjab, nor Haryana. Chandigarh is not even supposed to be governed by their rules, as an administrative unit. It is administered by the Central Government, by virtue of it being the territory of the Union of India,. The Punjab Re-organisation Act of 1966 specifically states, that Chandigarh may have its own laws, and till then adopt the laws of either state, as and where it chooses. But ironically, Chandigarh is outsourcing, most of its rule books from Punjab.

It is pertinently worth mentioning again here that  Chandigarh, Himachal, Punjab and Haryana were all carved out of a larger erstwhile Punjab in 1966, , and  the citizens of Chandigarh are basically the same people who lived in this territory before 1966. Also that Punjab and Haryana both, now have no territorial rights upon Chandigarh. This can be gauged from the fact that both states are officially meant to pay a certain rent for buildings housing their secretariats, as well as other buildings,  that they are using. This is reflected in the Annual Audit of the Union Territory of Chandigarh.

Thus, it appears that it is the practice of the legislatures of both the states meeting in Chandigarh that makes it their Capital. However, in absence of any law which makes Chandigarh a Capital, the placement of the legislatures of both States in Chandigarh is a 'favor or service' extended by the UT to the states, not a claim or territorial right.

So whom does Chandigarh belong to, is a million dollar question with unpredictable future ramifications for the residents of Chandigarh, especially the young residents who seek admissions and jobs in the institutions as well as the governments of Punjab and Haryana. This is especially important for those who seek jobs in the judiciary as Chandigarh does not have its own judicial cadre. 

It is all the more important in the light of the fact that there is no ‘All India Judicial Cadre’, even though it was envisioned under Article 312 of the Constitution, and in 1955 the Honorable Supreme Court of India, had directed that an ‘All India Judicial Service’ be set up. The judiciary needs to decide, whether at least for the purpose of Judicial Services, the residents of Chandigarh, will or will not get a ‘judicious treatment’, for joining Judicial services of Punjab and Haryana.

The residents of Chandigarh are now waiting with bated breath, to get a conclusive answer to the question that,‘Whom does Chandigarh belong to, and what is the status of its people viz-a-viz state services.

By Advocate Divya Gurnay, M.A., LL.B., LL.M.
© All copyrights reserved with author Divya Gurnay.