Wednesday, October 15, 2014

The Taming of the Tribunal

In a recent op-ed in the Financial Express, I reflect on the recent Supreme Court invalidation of the National Tax Tribunal (NTT). While some see this as payback by the judiciary against the government for unleashing the JAC bills on them, I argue that its a well reasoned decision and could not have gone any other way. I also posit that under the logic of this Supreme Court decision, a number of other tribunals will be axed as well, such as the IPAB, Green tribunal,  etc. For these are all tribunals which took over erstwhile judicial functions and the rigour of the NTT ruling applies most forcefully to them.

Issues with the IPAB (Intellectual Property Appellate Board)
In particular, I highlight the various infrastructure and competence issues with the IPAB, a tribunal against which I mounted an invalidity attack more than four years ago! Despite our best efforts, it continues to languish in the Madras High Court,  a court beset with chief justices that look for the shortest exit route after taking charge. Our latest set of applications challenging the process for the appointment of Vice Chairman is documented in this blog post here. 

For those interested (particularly those without the patience to click through on any of the links), I'm excerpting relevant portions from the Financial Express editorial. 

"The Supreme Court effectively ruled that in order to remain constitutionally valid, a tribunal tasked with adjudicating core questions of law ought to be on par with a high court in terms of independence (from the executive) and professional competence, i.e. staffed with members that have the requisite judicial qualifications to adjudicate. Under the rigour of this ruling, a number of tribunals are likely to be guillotined. And not without good reason, since the government has effectively trivialised justice through its flippant flowering of tribunals.

Consider the Intellectual Property Appellate Board (IPAB). Till date, it has not had adequate space or infrastructure. During the first few years, it was forced to beg the Indian patent office for a hearing room, an agency whose very decisions it was supposed to sit in appeal over! More egregiously, the quality of members appointed to adjudicate this complex legal terrain left much to be desired—particularly stark is the case of an alleged specialist who stated in his CV that he appeared in trademark cases as far back as 1910. Clearly, a case of reincarnation if ever there was one."

Going Forward: Policy Options?

I then conclude with outlining two broad policy options for the way forward, as excerpted below:

"How do we fix this mess? Under the logic of the NTT ruling, there are two broad policy options.

One is to redress all issues with the current set of tribunals through an umbrella legislation, free them from government influence and elevate them to a position as close as possible to the high courts. But this is a tall order. And indeed, one may ask: If a tribunal has to be on par with a high court, what is the point of having a separate tribunal at all? And this brings us to the second option: To have a specialist bench at the various high courts, staffed with those that have some prior background or expertise in the concerned subject matter (such as intellectual property or environment or tax law). Indeed, in a strange twist, the current Attorney General who batted vociferously for the NTT had, only a year or so ago, vehemently decried tribunalisation, and advocated rather forcefully that the tribunals ought to shut shop and their functions vested back in the high courts.

This second option guarantees some level of specialist expertise, but within the overall supervision and framework of the high court. As such, it appears a more workable solution than instituting a separate set of tribunals, housed independent of the high courts. It bears noting that now a Bill is pending before Parliament to regulate tribunals; unfortunately, its focus is rather limited, as it seeks to merely regulate service conditions and does nothing to redress the various constitutional flaws plaguing the current set of tribunals."

Reasons behind the Decision:

While the NTT decision is a legally sound one, following as it does, a long line of case law, it represents one of the strongest condemnation of the judiciary of the usurpation of judicial power by the executive. The reasons for this strong condemnation may have to do with an affidavit filed by the government in a related case filed by the Madras Bar Association, represented by the inimitable Arvind Datar who's been waging a war against the flippant flowering of tribunals for more than two decades now! 

I'm given to believe that, in this petition before the Supreme Court asking that the decision in L Chandra Kumar be implemented and all tribunals be brought under an independent regulatory agency, the government filed an affidavit stating that this was difficult, since the respective government departments did not wish to give up control over their tribunals. Speak about digging your own grave! 

Problems with the Decision

1. While the NTT decision is a legally sound one, it is, as with most other things in life, wanting on some counts. For one, it meanders a fair bit, citing case law and propositions endlessly without following a more coherent structure. It runs into a good 270 pages ensuring that only the most committed would wade through it in its entirety! Counsels' arguments complete with their case law citations (and long passages) are rehashed in almost 100 pages of the decision. The very same cases that counsels cite are then again reproduced in the judges' own analysis section. More problematically, long passages from ancient case law are reproduced for what are now fairly obvious legal propositions. Illustratively, a well established proposition (such as the fact that "judicial review" is now part of the basic structure) which could have been disposed in a paragraph or two is cited several times and long passages from earlier case law (Minerva mills etc) are reproduced running into almost a good 10 pages or so. A shorter and more crisper decision succinctly laying down the law would have been a delight to read. And dare I say that this might have promoted better access to law, given that shorter and crisper decisions have a great propensity of being read by the masses. 

2. Given that the NTT is a rare tribunal (tasked only with adjudicating substantial questions of law), the question arises as to whether or not the SC ruling applies to all other tribunals (even those that are tasked with factual determinations). I excerpt from the editorial:

"One may argue that not all tribunals need conform to the exacting standards laid down by the court. After all, the NTT was a rather special tribunal tasked with deciding only substantial questions of law. As such, it constituted an usurpation that was, in the words of Justice Nariman, “the ultimate encroachment on the exclusive domain of the superior Courts of Record in India.”

Unlike the NTT, most other tribunals are tasked with deciding factual issues as well, and some even decide cases at the first instance. For those tribunals, might one have a slightly different yardstick than the strict standard imposed by the NTT? A literal reading of the majority judgment may not permit this distinction, as it appears to apply to all tribunals that effectively substituted for the high courts. This is one area that the court might need to revisit in the future. For the exigencies of a modern state and regulatory apparatus demand a more flexible framework, where a wider subset of people and agencies are tasked with justice dispensation, particularly in technical and specialised areas. As the courts themselves admit, the separation of powers doctrine under the Constitution is a rather fluid one and not strictly cast in stone. As such, we should have more freedom to experiment with our justice dispensation framework. Let us hope that this decision is a starting point for that dialogue. And not the trigger for yet another turf war."

3. The NTT judges reiterate at several instances that erstwhile high court jurisdiction can be transferred to tribunals, only if the tribunal is brought on par with the high court . Under this logic, could one run an argument that tribunals such as the IPAB could never have "technical members" participating in decision making and writing judgments? If at all there is to be a technical expert on the tribunal, the said person must merely be an assistant being called on from time to time to assist judges in understanding the technical aspects thrown up by the case at hand? To this extent, the NTT ruling appears to be at odds with the earlier R Gandhi case (involving the constitutionality of the Company Law Tribunal), which suggested that disputes that involved technical aspects (such as telecom and IP) could have technical (decision making) members. 

4. I personally think Justice Nariman's judgment, taken by many to be one that concurs with the majority opinion, is effectively a dissent, on at least one court. His judgment appears to suggest that when it comes to substantial questions of law and appellate jurisdiction, our constitutional scheme does not permit any other court (other than the SC/HC) to adjudicate. Does this mean that no matter how robust the tribunal (in terms of its equivalence to the high court), it would still fall foul of the Constitutional scheme? The majority decision appears to suggest that so long as the tribunal is on par with a high court, all is well. But Justice Nariman's judgment appears a bit stronger on this count and does not appear to leave even that possibility open. I could be wrong here, and look forward to hearing from others on this list who have a more nuanced understanding of these issues. 

5. Lastly, I'm very keen on learning from those in the know as to what the exact distinction between "judicial" and "quasi judicial" is? And the difference between a "question of law" and a "substantial question of law". Is it not possible to convert almost any question of law to a substantial question of law; for almost every question of law can be said to have a bearing of some aspect of a right or duty that is called into question in the dispute. Further, within technical domains such as IP, is it not fairly easy for a crafty lawyer to convert most questions of fact into questions of law. And then to convert such "questions of law" to "substantial questions of law."?

ps: For those interested, here are some helpful links:
i) Pallavi Saluja of Bar and Bench interviewed Arvind Datar in the aftermath of the NTT ruling here. ii) Justice Prabha Sridevan (ex Chairman of the IPAB) wrote a potent piece on the dismal state of affairs at the IPAB in an editorial for the Hindu late last year
iii) Gautam Bhatia has a very helpful summary of the NTT ruling here, where he takes issue with the decision for relying on "constitutional conventions" and for holding that even normal legislation (as opposed to constitutional amendments) can be reviewed for compliance with the basic structure doctrine. 
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