The Other Story of Justice Delayed

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Tribunal trauma

OVER SUGARY CUPS of tea, bitter battles are being fought. The large black digital board in the hall with around 50 tables in court No 1 says ‘Item No 35’. The cases listed for the day are 66. It’s already around 3.30 pm, an hour to go before closing time, and litigants are trickling out, leaving the men and women in black-and-white attire to their tea and tete-a-tete.

Just outside the hall, a young man waits with a file under his arm. He is on a mission to fight corruption, which he claims has led to his suspension from the job of a teacher at the Municipal Corporation of Delhi (MCD). “The person who has indulged in corruption is dealing with my case in the department. I am going to file a case here at the Central Administration Tribunal [CAT],” he says. A little away, a lawyer is talking to a group of around ten engineering diploma holders working with the Central Public Works Department (CPWD), who are worried that the Supreme Court’s recent order banning technical degrees through correspondence courses could impact them. The CPWD employees had acquired their diplomas through distance education. The lawyer has advised them to wait and watch before filing a case.

Located on Copernicus Marg in the heart of the capital, just a stone’s throw away from the National Green Tribunal (NGT), which is in the spotlight over the Capital’s odd-even car rationing proposal, CAT was established in 1985 for adjudication of disputes relating to recruitment and service conditions of public servants. Over half a century after the first tribunal was established in India, the story of tribunals has taken a paradoxical turn. According to the Law Commission’s latest report released this October, the pendency of cases at the Tribunal stood at 44,333 as of 2016. This is just a fraction of the total 350,185 cases pending in five major tribunals, despite a high disposal rate of 94 per cent. The panel’s findings have come as a surprise to legal experts, who said tribunals were envisaged to expedite cases and prevent delayed justice. “Its purpose of reducing pendency of cases has not been fulfilled. In some tribunals, a large number of cases are pending,” says Law Commission Chairperson Balbir Singh Chauhan.

While the number of cases approaching tribunals are on the rise, triggering calls to increase posts in these quasi-judicial bodies, the Judiciary is finding it difficult to fill even the existing vacancies. The Law Commission had, in 1987, recommended increasing posts in tribunals. But the CAT has half its existing posts lying vacant. According to Chauhan, these posts need to be filled as soon as they fall vacant. “Those appointed should be legally trained so they understand legal nuances,” he says.

The Law Commission in its report ‘Assessment of Statutory Frameworks of Tribunals in India’ pointed out that the concept of tribunals was developed to overcome delays in administration of justice in regular courts, but that objective has not been achieved. The 114-page report, which begins with history of tribunals established as far back as the 18th century, quotes a 1967 ‘Frank’s Report’ that identified their advantages—they are hailed as cost effective, accessible, quick and capable of specific domain expertise—and enumerated three broad principles that should govern them: openness, fairness and impartiality.

Law and Justice Minister Ravi Shankar Prasad tries to strike a balancing note, saying that while tribunals are needed keeping in mind the diversified nature of litigation for redressal of grievances and to lighten the burden on courts, he is opposed to “over-tribunalisation”. According to him, given the diversity of economic activity, some regulatory mechanism with domain expertise is needed. “In this light tribunals are important. But these should not become [avenues for post-retirement sinecures]. It’s a professional body and should be run professionally with disposal of cases with integrity,” he says.

Prasad, a lawyer-turned-politician, also emphasises that issues of governance and policy framing should be decided by the Government while disputes should be adjudicated upon by a tribunal. “We must have some provision for appeal. There is need for authoritative settlement. Newer opportunities create newer challenges and matters arising out of corporate issues are becoming new areas of litigation,” he adds.

The highest number of pending cases— 91,000—is in the Income Tax Apellate Tribunal (ITAT), one of the oldest tribunals in the country, established in 1941. This is followed by the Excise and Service Tax Appeal Tribunal (ESAT) at 90,592, Debt Recovery Tribunal at 78,118, the Railway Claims Tribunal (RCT) at 45,604 and then the CAT, where the pendency is the least.

Laxmi Swaminathan, former vice chairperson of the CAT, recalls that around a decade ago, the number of pending cases had been brought down sharply. “In 2003, we were working on 2002 cases. We would set up double benches and single benches for simple cases. We would group together similar cases,” says Swaminathan, who is now president of the Administrative Tribunal of the Asian Development Bank (ADB).

The grievances of petitioners generally involves issues like promotions, pay fixation and increments, transfers, seniority matters, disgruntlement with bosses, seeking quashing of suspension orders and regularisation of services. Swaminathan, who was with the CAT for a decade, says while some cases were nugatory and had to be dismissed, some resulted in landmark judgments, changing the terms of service. In the early 90s, a middle-aged Parsi man working as a clerk in the Railway Ministry in Mumbai said since being a citizen of a welfare state, which gave subsidised health benefits under CGHS, it was the Government’s duty to find him a bride. Swaminathan recalls the case: “I still remember he spoke excellent English repeatedly saying ‘Your lordship’, and was very serious. I could see the lawyers trying to suppress their laughter. I kept a straight face and asked him under what rule. I finally said order was reserved.”

Swaminathan decided an important case, where a railway employee was seeking CGHS coverage for her father-in-law. As per the rules, only the parents of government employees could avail of benefits under the CGHS. The woman, working as a clerk in the Railways, approached the CAT saying that it was her father-in- law who lived with her and not her father. “In our country traditionally the woman went into the husband’s home. I passed an order that the department’s order was not right. Rules were amended after that,” Swaminathan says. In another case, a 22-year-old girl approached the Tribunal in 2002 saying the Border Security Force (BSF) had turned her down with the explanation that it was a combat service despite her having cleared all the tests, including the physical. “Her counsel argued that she was being denied the job just because she was a woman. This was discriminatory. I said she could be given a non-combat role and passed an order that she should be taken,” says Swaminathan, who was then CAT vice-chairperson. The girl got the job, but for some reason never joined. Swaminathan has also came across some complaints of sexual harassment, particularly after the Vishakha and others vs State of Rajasthan when the Supreme Court in 1997 issued its landmark judgment on sexual harassment of women in the work place.

RC Nangia, an advocate who has been working with the CAT for over ten years, says there was a time when cases were cleared in three months, but pendency has been increasing. He attributes it to false cases by departments, mala fide actions, lack of judges and short tenure of three years for judges. “The listing everyday is of 100-200 cases, but the disposal would be just about 20,” he says.

In India, there are 21,000 courts below the high courts, of which 5,000 are always without judicial appointments, according to Law Commission sources. They say the problem is also of getting suitable and qualified candidates, lack of uniformity in service terms and the short tenure of retired judges. In January, Bar Council Chairperson Manan Kumar Mishra had claimed that 40 per cent of all lawyers in the country could have fake degrees. In October, the Madras High Court gave the Bar Council a free hand to axe 1,000 ‘fake’ lawyers.

THE LAW COMMISSION’S ten recommendations include uniformity in appointment, tenure and service conditions for the chairman, vice-chairman and members appointed in tribunals. “There was wide disparity. As law secretary, I gave a report on uniform service conditions. In tribunals there should be more judicial members. It will have better credibility,” says TK Vishwanathan, former Lok Sabha secretary general. He is also of the view that instead of just retired judges, who would be there only for a short period, younger judges should be allowed to work in tribunals and go back to courts.

With appointments being made from other streams like the IAS and even the IPS in tribunals like CAT, 50 per cent of the bench is non-judicial. The Law Commission has said that tribunals should be manned by those qualified in law, with judicial training and adequate experience ‘with proven ability and integrity’, while technical members should be appointed only when expert advice is required.

A year ago, the then Chief Justice of India TS Thakur, while addressing the All India Conference of CAT, was scathing in his comments about the Government’s handling of tribunals, saying that besides high courts, there was a “manpower deficit” in tribunals, which also faced the problem of poor infrastructure. He had said the least the Government could do was ensure that tribunals ran full-strength, as cases were pending for upto seven years because of 18-20 vacancies in a total strength of 65. He also said the Centre was not ready to offer proper facilities and that “today a situation has come that no retired Supreme Court judge wants to head the Tribunal. I am pained to send my retired colleagues there”.

However, Government sources claim that it is the High Court which appoints judges to tribunals. While the debate continues, the number of cases in tribunals, neither fully judicial nor fully executive, are on the rise. According to S Sivakumar, a full-time member at the Law Commission, it is time to monitor pendency, tracking cases from the point they are filed to their disposal.

The Law Commission has recommended that a vacancy arising in a tribunal should be filled up as early as possible by initiating the process for it well in time, preferably six months or more before the post is vacated. It has also said that to ensure uniformity in the affairs of tribunals, the Central Government might want to consider bestowing the function of monitoring the working of tribunals on a single nodal agency under the aegis of the Ministry of Law and Justice.

According to the report, the main objective of establishing tribunals was set out in the Statement of Objects and Reasons of The Constitution (Forty-Second Amendment) Act, 1976: ‘ To reduce the mounting arrears in High Courts and to secure the speedy disposal of service matters, revenue matters and certain other matters of special importance in the context of the socio-economic development and progress, it is considered expedient to provide for administrative and other tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in regard to such matters under article 136 of the Constitution.’

With ‘speedy processes’ a significant part of the function of tribunals the world over, the pendency figures for cases in India have raised eyebrows, pushing legal luminaries to look for answers.