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 42nd 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 42nd 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 272nd 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.
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author Divya Gurnay
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