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QUESTION| Explain the phenomenon of tribunalisation of justice in India.
Importance - Important Constitutional Law Question
QUESTION POSTED ON | 11.10.2021
MODEL ANSWER WILL BE POSTED ON | 12.10.2021
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Parliament has inflicted damage on high courts with rampant tribunalisation.
EXAMPLE : Tribunals have replaced high courts for disputes under the Companies Act, Competition Act, SEBI Act, Electricity Act, Consumer Protection Act among others.
Any person aggrieved by an order of an appellate tribunal can directly appeal to the Supreme Court, side-stepping the high court. This raises institutional concerns for High Courts.
WHAT IS A TRIBUNAL : EXPLAINED BY LAWXPERTSMV INDIA
A tribunal is a quasi-judicial body established by an Act of Parliament or State Legislature under Article 323A or 323B to resolve disputes that are brought before it.
It is not a court of law, but enjoys some of the powers of a civil court, viz., issuing summons and allowing witnesses to give evidence.
Its decisions are legally binding on the parties, subject to appeal.
Tribunalisation of justice means over reliance on tribunals to resolve disputes that may follow the letter but not the spirit of rendering justice to the people. (UPSC 2017 QUESTION.1(d))
POSITION OF HIGH COURTS IN INDIAN CONSTITUTION :
For the framers of our Constitution, high courts, occupied a central position. They were conceived as a forum for adjudicating disputes under the Constitution, Central and State statutes before they moved to the Supreme Court; their jurisdiction was more extensive than the Supreme Court’s.
In contrast to the American model of a bifurcated federal and state judiciary, our high courts resolve all disputes.
The First Amendment to the Constitution was triggered by a Patna High Court ruling declaring a land reform law as unconstitutional. Increasingly, the jurisdiction of our 24 High Courts has been subject to relentless attack from Parliament, and, unfortunately, even the Supreme Court.
WHY TRIBUNALISATION IS NOT ALWAYS HELPFUL?
NOT INDEPENDENT AS HC : These tribunals do not enjoy the same constitutional protection as high courts. Appointment + service conditions of HC are not under the control of the executive but tribunals would owe allegiance to their parent ministries.
NOT EASILY ACCESSIBLE: Tribunals are also not as accessible as high courts. For example, there are just four benches of the Green Tribunal for the whole country. This makes justice expensive and difficult to access.
NOT REALLY AN EXPERT ADJUDICATION: When retired high court judges invariably preside over every tribunal, the justification of expert adjudication by tribunals disappears.
SC – NOT A MERE APPELLATE COURT : SC should be court of last resort deciding cases of the moment & should not be treated as a mere appellate court with all-embracing jurisdiction for disputes ranging from a custody battle to the scope of a municipal by-law.
BACKLOG OF SC WILL INCREASE: Already 58k cases pending before SC, appeal directly to SC from these tribunals, without recourse to HC, may affect the quality of the court’s jurisprudence. Because it is HC, which would act as filters, enabling the SC to confine itself to those substantial questions where there is divergence among high courts.
INCONSISTENT RATIONALE : HC are the training grounds for future SC Judges. This kind of arrangement would deprive Judges, who elevated from HC to SC, to deal with the finer nuances of disputes under specialised areas of law for the very first time. This is not ideal for a court of last resort.
DAMAGE BY SC ON HC : The jurisdiction of HC is also undermined by the SC when it directly entertains various writ petitions.
When SC exercises original jurisdiction, it deprives the citizen and the state of the right to challenge potentially erroneous orders.
When SC takes on a legislative role by framing guidelines in the larger public interest.
Neither the individual nor the state has an effective remedy to challenge these norms.
CONCLUSION : The Supreme Court is in a better position to resolve a dispute when it is confronted with two conflicting high court rulings on the same issue. In the triple talaq ruling, it benefited from prior high court decisions on the nuances of Muslim personal law. If high courts lose their prominence, India’s justice delivery system will be the principal loser.