The Hindu Business Line : Trial by delay for tribunals

WITH the proliferation of adjudication tribunals it has become imperative that certain guidelines be prescribed by the Central Government codifying the various provisions relating to general matters such as appointment of members and chairman, upper age limit, terms and conditions of service, selection procedure of members and chairman, tenure of office, and so on.

It is equally necessary that a system is evolved whereunder action taken report (ATR) is submitted by the various administrative departments charged with the responsibility of administering the law.

The need has arisen in the context of a burgeoning of tribunals of late for dealing with different matters. This trend has accelerated particularly in the past decade.

Notwithstanding the deficiency in the functioning of the tribunal, the fact that they serve as an alternative institutional mechanism to regular courts has gained acceptance.

The constitution of such tribunals is a welcome measure given that they render useful service to the aggrieved public by providing relatively cheap and less formal system of adjudication in the respective jurisdictions.

Specialised tribunals for adjudication of different kinds of disputes have been in vogue for quite some time.

Tribunals, it must be admitted, do supplement the regular courts in dispute settlement. In conundrums in which courts are overburdened with a backlog of cases despite a fast track mechanism, tribunals can play the role of doling out dispensation of justice expeditiously.

The functioning of the tribunals needs to be streamlined so as to get rid of cobwebs in the system of dispute settlement through adjudication machinery. On the other hand, there is a lurking fear that the tribunals are encroaching upon the area of operations of courts and accountability factor is lacking. Such an apprehension is baseless, as tribunals are as accountable as courts. Alas, the accountability factor is more in theory than in practice.

Nomenclature

It may be difficult to invoke a uniform code on the aspect of terms and conditions of service and the terms of reference, as such items will naturally depend upon the nature of dispute resolution expected from such bodies. However, there are certain areas which can be definitely codified, for instance, the names. At present, some of the tribunals are simply called "tribunals" whilst others are known as "authority/board/commission/ court/forum and the like. So is the case with designation of persons presiding over such bodies. They are described as chairman/presiding officer/president and so on. Such illusory names called designations lead to clash of status and personality conflict.

Selection procedure

Where tribunals are expected to function as quasi-judicial bodies rather than as mere settlement forums, there can be no denying the fact that the persons who head the tribunals should be from the judiciary or be thoroughly conversant with law and court procedures.

The statute contains varying provisions. For instance, the Telecom Regulatory Authority of India (TRAI) provides that the chairman shall be a person who is or has been a judge of a Supreme Court or who is or has been the Chief Justice of a High Court.

The National Company Law Tribunal (NCLT), which is yet to be constituted, is to be headed by a president who has been a judge of the High Court or is eligible to be appointed as a judge of a High Court.

The NCLT is expected to handle complex and convoluted matters hitherto handled by a full-fledged High Court.

Yet a person who has never understood or has never functioned as a judge of a High Court, thereby dispossessed of exposures of handling such complicated legal issues, can head this Tribunal merely by virtue of his academic eligibility.

Another anomaly is that TRAI and the Securities Appellate Tribunal (SAT) require a sitting or retired judge of a Supreme Court or a Chief Justice of a High Court. NCLT has a diluted provision even though the powers delegated to it are more of legal litigation.

Is this just? A person is qualified to be appointed as a presiding officer for SAT should be a sitting or retired judge of the Supreme Court or a sitting or retired Chief Justice of High Court. This is as it should be.

The Competition Act provides that the chairperson and every other person shall be one of ability, integrity and standing and who has been, or is qualified to be, a judge of a High Court, has special knowledge of, and professional experience (of not less than 15 years) in, international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which, in the opinion of the Central Government, may be useful to the commission.

It may be recalled the Supreme Court passed strictures on bureaucrats being appointed as chairpersons, resulting in the stay of the government order.

The aforesaid four bodies are all required to discharge substantial judicial functions and should, therefore, have uniform procedures in selection, terms and conditions, tenure and retirement age. This can be the beginning of a unified code.

Action taken report

Parliament or a parliamentary committee should insist on ATR on the status of the constitution of such Tribunals. Delays result in miscarriage or denial of justice. It was almost after one year SAT was constituted.

The NCLT has not yet been notified, as a result of which the functioning of the BIFR is in limbo. These are classic examples of "act in haste and repent at leisure."

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