When tribunals undermine the judiciary

The debate on the constitutionality of tribunals has not been set to rest as yet, says Gopal Krishna.

While all the ministries, public sector, private sector and citizens sector are contributing to environmental destruction and pollution, a structurally weak ministry of environment & forests under a junior minister is expected to regulate, minimise and undo the damage.

This is a Herculean task and even its critics will agree that the ministry does not have the capacity, competence and resources to undertake this task. Not surprisingly, it has consistently failed. The core question is: why is it the way it is and why is it that it is unlikely to change in foreseeable future.

The MoEF is one of the weakest ministries with conflict of interest ridden institutions and almost defunct regulatory agencies like the Central Pollution Control Board. Is it an accident that the minister of environment & forests is not even a cabinet minister? Is it by default or by design?

Under the influence of commercial czars, the prime minister and several of his ministerial colleagues have repeatedly underlined that environmental regulation is an impediment to economic growth. The attempts to create political escape routes from the inbuilt design have not worked in the past and it is unlikely to work in the future.Yet another tribunal is hardly the answer. Had it been the so the accountability of those in MoEF or Cabinet Committee on Economic Affairs who did not allow National Environment Tribunal Act, 1995 and National Environmental Appellate Authority, 1997 to function must have been fixed and the guilty been brought to book. The lesson is that there is no consequence, if structurally incompatible institutions that are destined to be defunct become so. 

Delivering the 5th V M Tarkunde memorial lecture on ‘An Independent Judiciary’ Justice Ruma Pal, former Supreme Court judge asked, “Who do we include within the term ‘judiciary’? Is it limited to constitutional courts or does it also include those tribunals which decide rights and have the trappings of a court?”

For instance, all the members including the judicial members remain subject to the administrative and financial control of the executive. Will it qualify to be deemed part of judiciary? A tribunal has the “trappings of a court”, it is not a court.

The fact is that all the courts in India are specialised judicial bodies, which can get technical bodies of all ilk to help them to adjudicate on environmental disputes and issues. In response to the argument that is advanced in defence of the Tribunals, Justice Ruma Pal observed, “Delay, arrears of cases, specialised knowledge etc. have been usually cited as reasons for the creation of such tribunals” if that is a valid rational then in that case “all courts should have technical members to improve the ‘quality of decision making’.

Justice Pal reminds us that “To have technical members (meaning officers of the executive) on a tribunal is as repugnant to the independence of the judiciary... A more serious in-road into institutional judicial independence would be hard to find.” The National Green Tribunal is an act which demonstrates how ‘institutional judicial independence’ is undermined if constitutional scheme of the separation of powers is not adhered to.

It is indeed a fact that “The Supreme Court in a number of cases (like AP Pollution vs Nayudu decided on December 1, 2000) highlighted the difficulty faced by judges in adjudicating on complex environmental cases and laid emphasis on the need to set up a specialised environmental court.” The fate of 1995 tribunal and 1997 appellate authority was quite known.

Like the Supreme Court, the 17th Law Commission of India specifically refers to the Constitutional provision for ‘additional courts’ under Article 247 under the jurisdiction of high courts and not to ‘tribunals’.

The government is asking us to believe that what 24 high courts, over 600 district courts and thousands of magistrates in remote parts of the country could not do, tribunals like NGT that was notified on October 18, 2010 with its five benches can do it. Only the gullible will believe it.

It is not about NGT alone, the Companies Act, 2013 that under Section 408 and 410 has provisions for creation of National Company Law Tribunal and National Company Law Appellate Tribunal by the central government. The Companies Act sets a bad precedent by providing for corporate NGO responsibility under Section 181 and corporate political responsibility under Section 182. If companies make a donation to political parties to the tune of 7.5 percent of the annual profit, the MoEF is bound to be constrained as a consequence of quid pro quo. 

Besides how can it be forgotten that ‘tribunals’ are established under Article 323A or Article 323B of the Constitution, which were inserted in 1976 via the 42nd Constitutional Amendment, which was enacted during the Emergency. The idea of tribunals was to transfer some substantial powers of the judiciary to these tribunals. In a revenge of sort against the high courts because one of them, the Allahabad high court had declared Indira Gandhi’s election to the Lok Sabha void on grounds of electoral malpractice on June 12, 1975.

These tribunals were exempted from review by high courts. This excluded the jurisdiction of the courts in respect of the subjects dealt by tribunals. It is unfortunate that when the new government came in it failed to get Articles 323A and 323-B inserted by a totalitarian government removed from the Constitution. Its removal is an unfinished political task.

As things stand as envisaged by Indira Gandhi, the NGT and the Companies Act 2013 gives only limited rights of review to the Supreme Court under Article 136 of the Constitution.

Justice Pal has underlined how increasing tribunalisation as a serious encroachment on the judiciary’s independence. Judicial function is facing consistent mutilation through tribunalisation. Sadly, both the bar and the bench appear structurally complicit in it. The judiciary has been “timorous” in not contesting these tribunals that forces it to share its adjudicating powers with the executive. This is contrary to the constitutional scheme of the separation of powers between judiciary and the executive. Her lecture captures the current situation of emergence of collusion, complicity, connivance and incestous institutions in myriad ways.  

Environmental groups which are either misled in the way ‘ambulance chasers’ did in the aftermath of corporate genocide caused by Union Carbide Corporation or will see merit in approaching any legitimate or illegitimate institution for relief. Their structural compulsion to approach NGT does not mean that they have examined question of its legitimacy. Some verdicts of NGT are good for sure.

Trains ran on time during Emergency. Does it make it legitimate? The constitutionality of the NGT was challenged by the Madhya Pradesh Bar Association in the Supreme Court on October 16, 2012. The court is also yet to pronounce the verdict on the stay imposed by Madras high court on NGT.  

No Government agency be it MoEF or CBI ever questions a judicial institution even when they are rebuked and fined. Judicial efficiency is needed but the efficiency of tribunals does not appear to be the answer.  Ongoing tribunalisation merits rigorous attention of all sections of defenders of democracy. The debate on the constitutionality of tribunals has not been set to rest as yet.