Constitutionally Defective Tribunalisation of Justice

Aggrieved by what we saw as the establishment of a constitutionally defective IP tribunal (IPAB), we challenged it through a writ petition before the Madras High Court. On the very same day, a writ was filed by advocate Ananth Padmanabhan on behalf of SIMCA challenging the constitutionality of the copyright board.

As some of you may recall, the Supreme Court took indiscriminate tribunalisation to task when it upheld the challenge to the constitutional validity of the National Company Law Tribunal (NCLT). Abhinav had blogged some of his preliminary thoughts on this case here.

We were fortunate enough to have the same team (senior counsel, Arvind Datar and upcoming IP litigator, Anand Padmanabhan) that won the NCLT case to argue this IPAB case pro-bono for us.

Prashant Reddy has a detailed explanation of the writ that we filed here. It also finds mention here and here.

Despite clear guidelines by the Supreme Court in NCLT to ensure that tribunals are manned by independent and competent adjudicators (not those under the control of the executive), the government continues to flout these norms. A case in point is the Electricity Appellate Tribunal, the constitutionality of which was challenged by Saptak Sanyal, an ex-student of NUJS who is now clerking at the Supreme Court. This case is being heard by the Supreme Court at the moment.

Similarly, I believe the constitutional validity of the Green tribunal (discussed by Namita) was recently challenged by a law student from the Ambedkar School of Excellence in Law, Chennai. What next? The Cyber Appellate Tribunal?

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Ashish Virmani
Ashish Virmani
11 years ago

Nice job done.

Not going into the merits, i just wonder:

1. Whether it would truly be possible to achieve a completely independent tribunal system?

2. Since the higher courts in the country tend to take a longer time in hearing and deciding a matter finally, what could be a possible solution?

Any thoughts?

Nick Robinson
Nick Robinson
11 years ago

Interesting case – good work in drawing the courts attention to this. I particularly liked Prashant Reddy's analysis of the conflict of interest of the ILS officers. I noticed that the CJI yesterday called on the PM to introduce an Indian regulatory service ( I wonder if it would make sense to create a special high profile cadre selected by the executive and judiciary to staff these boards. On an unrelated note, I think there certainly has to be a rethink about retirement ages in both the executive and judiciary – there seem to be dozens of institutions that have now been created specifically with post-retirement offices in mind for high ranking members of each the executive and judiciary.