My quarrel with the Emergency, paradoxically, is not the atrocities let loose on the citizenry overtly, but an insidious attack on arguably the most cherished concept in a democracy – the independence of judiciary, via the concept of tribunalisation.
The 42nd Constitutional Amendment is the source of tribunalisation in India as it exists today. Of course, the reason behind tribunalisation was not reduction of burden of the real judiciary but a tacit takeover of judicial functions by the executive since these bodies were not meant to function under the judiciary but under the executive and that too under parent administrative ministries against which these were expected to pass orders.
Another apparent reason was to create post-retirement havens with the ‘dangling carrot’ syndrome, some manned by personalities with no judicial or legal background whatsoever. So today you have the Ministry of Finance controlling the Debt Recovery Tribunal and the Debt Recovery Appellate Tribunal, the Armed Forces Tribunal functioning under the Ministry of Defence and the Telecom Disputes Settlement and Appellate Tribunal under the Ministry of Communications and Information Technology, to name a few. These reflect a complete conflict of interest since the above tribunals are expected to pass orders against those very ministries on which these are dependent upon for facilities, salaries, infrastructure and many other amenities.
Consistent decisions, even of the Supreme Court’s Constitution benches, deprecating such set-up, have not resulted in any corrective measures, leading to a falling confidence level of litigants who rather undergo a more formal procedure under traditional albeit fully independent real courts than litigate before tribunals, which, at times, function under the thumb of the opposite party to the litigation against whom the case has been filed.
To further ensure that tribunals do not remain amenable to our independent constitutional courts, direct appeals have been provided to the Supreme Court (and not to high courts) in some, and that too with a very limited scope. This practically ensures that a majority of litigants are not able to effectively challenge adverse decisions of tribunals thereby making judicial remedy inaccessible and unaffordable and effectively making tribunals the first and the final bodies in specialised litigation, a situation that was neither envisaged nor warranted under our constitutional scheme.
It is also surprising that the only tribunal in the true form which existed prior to the 42nd amendment was the Income Tax Appellate Tribunal (ITAT) which was constituted in 1941 but correctly and fairly under the Ministry of Law and Justice, and not under the Ministry of Finance. However, tribunals instituted long after independence and even after Supreme Court decisions to the contrary, are being made to function under parent administrative ministries. It is no secret that many of the parliamentary Acts with respect to tribunals, were passed without any discussion whatsoever.
Prime Minister Narendra Modi recently expressed his apprehensions on tribunals vis-a-vis the regular judiciary and called for introspection on tribunalisation. If he really can put his thoughts into motion, one of the most subtly menacing moves of the dark era of Emergency would be stamped out.
(The writer is a practicing advocate in the Punjab and Haryana High Court. He was the founding president of the Armed Forces Tribunal Bar Association.)