Specialised Tribunals as an Alternative to Courts

The justice delivery system in India relating to specialised areas of law such as company law, competition law, taxation, intellectual property and so on suffer from two primary drawbacks:

(i) a lack of personnel with the requisite expertise in those specialized fields to resolve complicated disputes;

(ii) an overburdened judicial system with substantial backlog resulting in inordinate delays in resolving such disputes.

One of the basic reasons for these drawbacks is the fact that specialised disputes are decided by mainstream courts such as the High Courts and other civil courts. However, there have been recent efforts to ‘tribunalise’ the justice system for specialised disputes: examples that are the subject matter of debate relate to the National Company Law Tribunal (NCLT), National Tax Tribunal (NTT) and the Competition Commission (CC). Although the enabling legislation for all of these bodies have been enacted by Parliament, they have not only been mired in controversy, but also have been the subject-matter of litigation challenging the establishment of such bodies. For these reasons, the bodies are yet to see the light of day.

In an article titled Will Tribunals Trivialise Justice Delivery? appearing in today’s Economic Times, K. G. Narendranath sets out the advantages as well as shortcomings of establishing specialised tribunals. He says:

“It’s increasingly a conflict between the judiciary and the quasi judiciary, seen by many as closer to the executive than the judiciary. The question is whether the new, powerful tribunals and commissions proposed by the government to speed and “modernise” dispensation of justice in the economic, financial and social arenas would also result in its “trivialisation”.”

Although care needs to be taken to ensure that the tribunals function in a proper manner with due regard to principles of natural justice, there are several advantages as well as checks and balances in establishing such a system:

(i) it enables expert determination on specialised disputes, as the tribunals would have as its members persons who are experts in the relevant field. Apart from this, the constitution of the tribunals can also include members from the higher judiciary so that the proceedings can be carried out like a judicial body rather than an administrative body;

(ii) it would lighten the burden of the already overburdened mainstream judicial system;

(iii) it would have a more flexible procedure (without being bound by the detailed procedures under the CPC, CrPC and Evidence Act), but with due regard to the basic principles of natural justice enshrined in the Constitution;

(iv) the decisions of the tribunals would be subject to appellate review by the higher judiciary.

However, the establishment of these tribunals to accelerate justice delivery has itself been the victim of delay in the judicial process. For example, although the proposal for establishment of NCLT was enacted in the Companies Act in 2002, a decision on its validity is still pending before a Constitution bench of the Supreme Court nearly 5 years later. The establishment of the Competition Commission too has been delayed because of challenges to its constitutional validity.

There is no doubt that there is a dire need for such specialised tribunals. What is required is a final determination from the Supreme Court on the constitutionality of such tribunals and perhaps guidelines on the manner in which they are to be operated so that they system can be put in place sooner rather than later.

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  • While the linked piece refers to more recent events, it is important to emphasise that the debate over tribunals has a fairly long history in India. Tribunals of various stripes have been around in our legal system for several decades.

    During the Emergency, Indira Gandhi’s government introduced Articles 323 A and B, which authorise the creation of several tribunals, through the
    infamous 42nd amendment. This was done primarily with a view to create parallel centres which could act as substitutes for the High Courts, many of which had shown that they would defy the authority of the Central government, including by issuing the writs of habeas which subsequently formed the basis for the more infamous ruling of the Supreme Court in ADM Jabalpur.

    Though the Janata Government reveresed many aspects of the 42nd Amendment, it did not have the numbers to overturn all aspects, and Articles 323 A and B remain. Many people from that era continue to harbour a suspicion towards tribunals, whose members do not have the security of tenure of High Court judges. This is not simply paranoia, and may well have well– founded justifications, because tribunals are subject to manipulation by the executive. Also, they tend to replicate the problems of existing court systems very soon.

    The saga of the Administrative Tribunals is interesting in this respect. Though the constitutional validity of the Act (and the Tribunals themselves) have been upheld twice by constitution benches of the Supreme Court: in the Sampath Kumar (1987) case, and the L. Chandrakumar case (1997), the system continues to be riddled with problems.

    Since we have such a long history of various forms of Tribunals in our country, it is imperative that the functioning of existing Tribunals be studied and analysed carefully, before deciding to endorse the creation of a whole new set of tribunals.

  • Forming Tribunals with the Executive exercising a heavy hand in selection of Presiding Officers is not a solution. It is also violative of the ‘separation of powers’ doctrine
    Instead revamp and increase training programs for judiciary have a specialized modules such as Revenue service in the judiciary. Increase resources for judiciary instead of giving up on judiciary and investing in increasing executive dominance in adjudicating laws passed by the latter themselves.
    Hopefully Union of India v. R. Gandhi pending before the Supreme Court will give some answers.

  • Tribunals in Karnataka draw their presiding officers from the general pool of judicial officers. The Tribunals function in exactly the same manner as the regular Courts do. The Tribunals’ procedures are almost exactly the same as that of other Civil Courts.

    Where then is the opportunity for Tribunals to show an improvement upon the regular Courts?