With the avowed object of improving the efficacy of judiciary, different statutory fora gradually came into existence. They were meant to deal with specific specialised laws. They became the last court of facts leaving legitimate issues of law to be raised in the High Courts and in the Supreme Court. During the colonial era, the Income Tax Tribunal was probably the only such institution. During the Emergency, the Constitution (42nd Amendment Act, 1976) inserted Part XIV-A to the Constitution. This conceived of Administrative Tribunals and Tribunals for other matters. The jurisdictions of the High Courts were ousted and the Supreme Court was to be approached through SlPs or Appeals without any recourse to the High Courts. The Supreme Court also upheld such a situation, and the trend of expanding “tribunalisation” was set in motion. The laws relating to public employment, consumer protection, Central Excise & Customs (and later Service Tax) were also subjected to “tribunalisation”. There was a distinct feeling among the litigant public that the executive wanted a dominant position in the right to select and appoint the Chairman and other Members of such tribunals.
Subsequent experience did not demonstrate that these institutions functioned at the expected level of efficiency. In the case of l Chandra Kumar, the Supreme Court came to hold that the writ jurisdiction of the High Courts under Article 226 of the Constitution of India is part of the “basic structure” of the Constitution and was an indefeasible instrument of judicial review. Independence of judiciary and separation of powers had come to be held as part of the “basic structure” of the Constitution.
The Supreme Court indulged in participative justice and suggested to the Parliament amendments to several Acts creating these tribunals so as to ensure their integrity and independence. This commenced with the modality of selection of the members of such statutory fora. Through the intervention of the Constitutional courts, the primacy of judiciary was attempted to be maintained and enforced. This led to prescription of qualification of judicial or departmental members while ensuring the dominant position of the judiciary and members with judicial grooming. This naturally upset the Government as it was based on the doctrine of independence of judiciary. The recommendations or prescriptions were inserted into the different Acts, and the Constitutional provisions ousting the jurisdiction of the High Courts was found to be unconstitutional, and the concerned provisions were in many cases struck down or read down.
When this trend of “tribunalisation” was ushered in during the Emergency, an average citizen had a feeling that the Government wanted to enjoy the same freedom it was improperly enjoying in appointing Government lawyers, in appointing the functionaries of these judicial fora.
This trend had its impact on the decision-making process in the corridors of power at the Secretariat. Around 1993, the Supreme Court conceived of a Collegiums system to free the judiciary from any extraneous influences. This arrangement, though ensuring the independence of judiciary, did not in effect improve the quality in the selections. Interpersonal networking continued to play its role. The recent amendment to the Constitution to bring into existence the National Judicial Commission for selection, appointment and transfer of judges was partly conditioned by the object of diluting the predominant role of the judiciary in these matters. This amendment to the Constitution has recently been held to be unconstitutional as the same adversely affects independence and primacy of the judiciary and the Chief Justices. This was held to be subverting the inviolable “basic structure” of the Constitution. But at the same time, the Bench hearing the matter felt that the Collegiums system needed reforms, and suggestions in this regard are presently the matter of argument and debate before the Supreme Court. The informal “syndicates” will hopefully become less effective and have a lesser role to play in the future.
Prior to this situation, the Companies Act was amended in a manner so as to dilute the primacy of judicial participation in the selection and functioning of the statutory fora created for dealing with corporate affairs. The Madras High Court Bar Association challenged these provisions and the Supreme Court in a path-breaking judgment dealt with the requirements of judicial input and departmental input while ensuring the primacy of the persons with judicial training. Several reformatory measures were recommended and have been incorporated into the amended company law.
While this trend was taking shape, there have been instances where recommendations of Chief Justices of High Courts or of the committee headed by the Chief Justice of High Court were attempted to be subverted by the executive authorities. A former Supreme Court judge resigned from the post of the Chairman of the National Consumer Commission alleging improper treatment in the hands of the Government. Such instances were not isolated and the tensions in this regard adversely affected the judicial institutions.
Recently, a case has come before the Supreme Court. The petitioner is a retired judge of the Andhra Pradesh and Telangana High Court. This retired judge’s name had been recommended by the Chief Justice of the High Court for appointment as President of the State Consumer Dispute Redressal Commission. Under Section 16 of the Consumer Protection Act, 1986, a former High Court judge is to be appointed as President of this commission. Appointment is made by the State Government, but it has to be made in consultation with the Chief Justice of the concerned High Court. Going by the principle of primacy of judiciary, the State Government is expected to go by the recommendation of the Chief Justice of the High Court. There can, however, be rare cases where the Government could place relevant material before the concerned Chief Justice for reconsideration of the matter. The retired judge’s name was recommended in January 2015 to fill up the post of President, Telangana Consumer Dispute Redressal Commission. The commission came to be constituted on October 15, 2014 but has been effectively inoperative in the absence of the judge/members and the president. In a PIl before the Andhra and Telangana High Court in February 2015, there was an assurance by the State Government to proceed with the “recommendation” of the Chief Justice. In view of continued inaction, a contempt case was also filed. The State Government gained time from the court to do the needful, but it changed its strategy. It then indulged in a fresh communication with the High Court Chief Justice requesting for a panel of names. The Chief Justice reiterated the recommendation of the name of the same retired judge instead of forwarding any panel of names. In June 2015, the State finally disclosed its real intention. It informed the High Court in the course of the proceedings that the name recommended by the Chief Justice was “not acceptable” to the Government.
This now poses a new facet of the old problem. It should be noticed that the retired judge’s name was forwarded not once but twice by the Chief Justice. The primacy of judiciary in matters relating to selection of the heads of such quasi-judicial institutions has again come to the fore. The retired judge has now approached the Supreme Court through an appropriate petition. A Bench consisting of Justice TS Thakur (Chief Justice designate of India) and Justice V Gopala Gowda (former Chief Justice of Orissa High Court) has been pleased to issue notice in the matter. The apex court has inter alia sought for response from the Telangana Government and the Registrar General of Andhra and Telangana High Court on the crucial issue as to whether the recommendation of the Chief Justice of the High Court is binding on the State Government. It is expected that the concepts of “consultation” and “concurrence” would again come to the forefront in the deliberations in the courtroom. This, in turn, would bring the justification of judicial primacy in such matters to be revisited. The Government’s response would deserve careful scrutiny and evaluation.
Such instances also demonstrate that the executive is still not inclined to accept separation of powers as a part of “basic structure” and the consequential primacy and independence of judiciary in matters relating to its indoor management. After a few weeks, the rationale, reasoning and justification of the intractable position/stand of the State Government would be thrashed out so as to be subjected to judicial review. While the selection and appointment of High Court and Supreme Court judges are continuing to be under adjudication, the present case would settle and also, hopefully, set at rest the modalities of selection and appointment of the judges of the statutory quasi-judicial fora/tribunals.
When a citizen feels discriminated against and feels wronged, his last hope of getting justice is from an “independent” judiciary. Such isolated cases, therefore, have their own significance and lasting impact in the context of an efficient administration of the Rule of law without fear or favour. As this affects the “basic structure” of the Constitution and an effective justice delivery system, it no doubt concerns all of us!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)