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Insights into Editorial: Green and raw: On ‘tribunalisation’ of justice

 

 

Introduction:

The establishment of tribunals as adjudicatory bodies in specific fields is based on the idea that specialisation and expertise are required to decide complex cases of a technical nature.

The ‘tribunalisation’ of justice is driven by the recognition that it would be cost-effective, accessible and give scope for utilising expertise in the respective fields.

Central to this scheme is the principle that the ‘experts’ appointed to these tribunals should bring in special knowledge and experience.

 

Context:

Recently the appointment of former IAS officer, Girija Vaidyanathan, as Expert Member in the Southern Bench of the NGT, was challenged in the Madras High Court.

Even though the court initially granted an interim stay on her appointment, it ruled that she was not ineligible, going by the criteria in the NGT Act.

She was found to have fulfilled the eligibility requirements by virtue of her administrative experience of nearly five years in “dealing with environmental matters”.

 

About Tribunals:

  1. Tribunal is a quasi-judicial institution that is set up to deal with problems such as resolving administrative or tax-related disputes.
  2. They are constituted with the objective of delivering speedy, inexpensive and decentralised adjudication of disputes in various matters.
  3. They are created to avoid the regular courts’ route for dispensation of disputes.
  4. They run in parallel to the courts and generally are less formal, less expensive and less time consuming.
  5. They are not originally a part of the Constitution.
  6. The 42nd Amendment Act introduced these provisions in accordance with the recommendations of the Swaran Singh Committee.
  7. The Amendment introduced Part XIV-A to the Constitution, which deals with ‘Tribunals’ and contains two articles:
    1. Article 323A deals with Administrative Tribunals. These are quasi-judicial institutions that resolve disputes related to the recruitment and service conditions of persons engaged in public service.
    2. Article 323B deals with tribunals for other subjects such as Taxation, Industrial and labour, Foreign exchange, import and export, Land reforms, Food, Ceiling on urban property, Elections to Parliament and state legislatures, Rent and tenancy rights.

 

NGT mandates as a criteria:

  1. The NGT Act spells out two kinds of criteria — one based on qualifications and practical experience, and another on administrative experience in the field — and a candidate has to fulfil only one of them.
  2. For the first, a masters’ or a doctorate in science, engineering or technology, with 15 years’ experience in the relevant field, including five in environment and forests in a national level institution, is needed.
  3. The fields include pollution control, hazardous substance management and forest conservation.
  4. On the other hand, the administrative experience criterion is shorn of detail, and merely stipulates 15 years’ experience, of which five should have been in “dealing with environmental matters” in either the Centre or the State or any reputed institution.
  5. Even though Ms. Vaidyanathan’s stint as Secretary, Environment and Forests, Tamil Nadu, and Chairperson of the State Pollution Control Board together amounted to only 28 months, the court accepted the contention that her tenure as Health Secretary should also be considered.
  6. The court also observed wryly that it is an entirely different matter whether administrative experience in the second criterion should be regarded as equivalent to “the real expertise” indicated in the clause on qualifications.

 

Problems in functioning of Tribunals

  1. Tribunals operate under the thumb of parent administrative ministries against whom many of them are meant to pass orders, therefore remaining at their mercy with visible and invisible strings for facilities, infrastructure and also rule-making.
  2. The secretary of the said Ministry sits on the panel for selecting and reappointing the adjudicating members and also has a role to play in disciplinary committees.
  3. For instance, the defence secretary is a part of the committee for selection and re-appointment of members of the Armed Forces Tribunal, and the said secretary is that very officer against whom all tribunal orders are to be passed.
  4. Under the garb of providing cheaper and informal adjudication, appeals have been provided, on very limited grounds, directly to the Supreme Court from some tribunals making access to justice a far call with some litigants accepting injustice rather than challenging orders simply because they cannot afford prohibitive costs of litigation in the apex court.
  5. Persons who at times have served as part of the same ministries are appointed as members and who carry with them their own personal experiences and over-familiarity making justice subjective as compared to judges who bear no such baggage and are trained to be objective.
  6. A majority of non-judicial members are not legally qualified and hence are not even eligible to appear before such tribunals while they are allowed to exercise judicial functions while sitting on the bench.
  7. Some tribunals are not even vested with powers of civil contempt thereby leaving them toothless qua enforcement.

 

Conclusion:

Considering the ineffectiveness of tribunals in the past there is a need to look for alternative dispute redressal mechanism, something which goes beyond formal structure – yet is guided by the rule bound and predicted path.

The court rightly declined to interfere with the appointment, as the equivalence found in the rules falls under the domain of Parliament.

At a time when the need, relevance and composition of tribunals are under judicial scrutiny, and the Centre itself has abolished some of them, it would be salutary if the government spelt out with clarity, as the court has suggested, the extent to which a bureaucrat’s involvement in environmental matters could be regarded as equivalent to expertise.

It should also show greater urgency in implementing earlier Supreme Court directions to constitute a National Tribunals Commission to supervise the appointment and functioning of tribunals.

Community-based approach herein can help resolve water related disputes effectively, amicably and sustainably.