Tuesday, July 03, 2007

Specialised Tribunals as an Alternative to Courts

The justice delivery system in India relating to specialised areas of law such as company law, competition law, taxation, intellectual property and so on suffer from two primary drawbacks:

(i) a lack of personnel with the requisite expertise in those specialized fields to resolve complicated disputes;

(ii) an overburdened judicial system with substantial backlog resulting in inordinate delays in resolving such disputes.

One of the basic reasons for these drawbacks is the fact that specialised disputes are decided by mainstream courts such as the High Courts and other civil courts. However, there have been recent efforts to ‘tribunalise’ the justice system for specialised disputes: examples that are the subject matter of debate relate to the National Company Law Tribunal (NCLT), National Tax Tribunal (NTT) and the Competition Commission (CC). Although the enabling legislation for all of these bodies have been enacted by Parliament, they have not only been mired in controversy, but also have been the subject-matter of litigation challenging the establishment of such bodies. For these reasons, the bodies are yet to see the light of day.

In an article titled Will Tribunals Trivialise Justice Delivery? appearing in today’s Economic Times, K. G. Narendranath sets out the advantages as well as shortcomings of establishing specialised tribunals. He says:

“It’s increasingly a conflict between the judiciary and the quasi judiciary, seen by many as closer to the executive than the judiciary. The question is whether the new, powerful tribunals and commissions proposed by the government to speed and “modernise” dispensation of justice in the economic, financial and social arenas would also result in its “trivialisation”.”

Although care needs to be taken to ensure that the tribunals function in a proper manner with due regard to principles of natural justice, there are several advantages as well as checks and balances in establishing such a system:

(i) it enables expert determination on specialised disputes, as the tribunals would have as its members persons who are experts in the relevant field. Apart from this, the constitution of the tribunals can also include members from the higher judiciary so that the proceedings can be carried out like a judicial body rather than an administrative body;

(ii) it would lighten the burden of the already overburdened mainstream judicial system;

(iii) it would have a more flexible procedure (without being bound by the detailed procedures under the CPC, CrPC and Evidence Act), but with due regard to the basic principles of natural justice enshrined in the Constitution;

(iv) the decisions of the tribunals would be subject to appellate review by the higher judiciary.

However, the establishment of these tribunals to accelerate justice delivery has itself been the victim of delay in the judicial process. For example, although the proposal for establishment of NCLT was enacted in the Companies Act in 2002, a decision on its validity is still pending before a Constitution bench of the Supreme Court nearly 5 years later. The establishment of the Competition Commission too has been delayed because of challenges to its constitutional validity.

There is no doubt that there is a dire need for such specialised tribunals. What is required is a final determination from the Supreme Court on the constitutionality of such tribunals and perhaps guidelines on the manner in which they are to be operated so that they system can be put in place sooner rather than later.
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