Sunday, February 06, 2011

Constitutionally Defective Tribunalisation of Justice

Aggrieved by what we saw as the establishment of a constitutionally defective IP tribunal (IPAB), we challenged it through a writ petition before the Madras High Court. On the very same day, a writ was filed by advocate Ananth Padmanabhan on behalf of SIMCA challenging the constitutionality of the copyright board.

As some of you may recall, the Supreme Court took indiscriminate tribunalisation to task when it upheld the challenge to the constitutional validity of the National Company Law Tribunal (NCLT). Abhinav had blogged some of his preliminary thoughts on this case here.

We were fortunate enough to have the same team (senior counsel, Arvind Datar and upcoming IP litigator, Anand Padmanabhan) that won the NCLT case to argue this IPAB case pro-bono for us.

Prashant Reddy has a detailed explanation of the writ that we filed here. It also finds mention here and here.

Despite clear guidelines by the Supreme Court in NCLT to ensure that tribunals are manned by independent and competent adjudicators (not those under the control of the executive), the government continues to flout these norms. A case in point is the Electricity Appellate Tribunal, the constitutionality of which was challenged by Saptak Sanyal, an ex-student of NUJS who is now clerking at the Supreme Court. This case is being heard by the Supreme Court at the moment.

Similarly, I believe the constitutional validity of the Green tribunal (discussed by Namita) was recently challenged by a law student from the Ambedkar School of Excellence in Law, Chennai. What next? The Cyber Appellate Tribunal?

3 comments:

Ashish Virmani said...

Nice job done.

Not going into the merits, i just wonder:

1. Whether it would truly be possible to achieve a completely independent tribunal system?

2. Since the higher courts in the country tend to take a longer time in hearing and deciding a matter finally, what could be a possible solution?

Any thoughts?

Nick Robinson said...

Interesting case - good work in drawing the courts attention to this. I particularly liked Prashant Reddy's analysis of the conflict of interest of the ILS officers. I noticed that the CJI yesterday called on the PM to introduce an Indian regulatory service (http://www.sify.com/finance/introduce-indian-regulatory-service-pm-told-news-default-lcgpkbeghjh.html). I wonder if it would make sense to create a special high profile cadre selected by the executive and judiciary to staff these boards. On an unrelated note, I think there certainly has to be a rethink about retirement ages in both the executive and judiciary - there seem to be dozens of institutions that have now been created specifically with post-retirement offices in mind for high ranking members of each the executive and judiciary.

Shamnad Basheer said...

Thanks for your comments, Ashish and Nick:

Through this writ, we expect that, at the very least, the government would be forced to make changes to the constitution of the IPAB and have more competent and independent people manning it.

However, on a broader policy note, we hope that such litigations will force us to rethink tribunalisation from a macro perspective and perhaps even have an umbrella legislation to set down basic norms in this regard....perhaps something like the UK's "Tribunals, Courts and Enforcement Act 2007."

We have to think through creative ways of setting up a cadre of good people who can man these tribunals. Perhaps these could be from the IJS (indian judicial service) , something that Minister Moily has been mooting for a while now. These could even be from the IAS, as this service is blessed with babus who have come in through a rigorous screening mechanism (a mechanism that is slated to improve in the coming years, with the exam being focussed more on aptitude and less on knowledge) and are relatively quick on the uptake--in fact, in the Ramkumar patent saga, I was pleasantly surprised to see the high quality and sophisticated patent order issued by a customs official. An order that was better than regular judges who were hearing related aspects of the same dispute. If these officials can be provided intensive legal training after being selected for tribunals, they are likely to perform well. Over a period of time, it is likely that they will develop expertise and we can hope to see a more robust administration of justice.

However, once they enter the tribunal network, they must be prohibited from rejoining regular government service and/or with any other department controlled and manned primarily by the executive. This would ensure their independence. Given the number of law degree holders that are entering the civil services, I'm guessing there might be takers willing to enter the tribunal network and focus on the law. But one may need to rethink the perks etc to make this a sufficiently attractive option.