View: A new era of judicial reforms in India | Economic Times

The enactment of the Tribunals Reforms Act, 2021, by Parliament on Monday — shutting down multiple tribunals, including the Intellectual Property Appellate Board (IPAB) and the Film Certification Appellate Tribunal (FCAT) — marks the beginning of a new era of judicial reforms in India. For the first time since the infamous 42nd Constitutional Amendment Act that was enacted in 1976 during the Emergency, has a government demonstrated its resolve to clamp down on the senseless proliferation of tribunals.There is little in the official records to explain the rationale for inserting Articles 323A and 323B through the 42nd amendment. These provisions allowed Parliament to create new tribunals for a range of disputes, and place them outside the judicial oversight of high courts. This exclusion raised eyebrows among bar associations as successive governments, starting in 1985, began the process of creating powerful new tribunals by transferring to them powers that earlier existed with high courts.These included administrative tribunals to decide service disputes among the bureaucracy, IPAB, the National Company Law Tribunal (NCLT) and the National Tax Tribunal (NTT).Unlike the high courts, which enjoy a general reputation of judicial independence among the bar associations, the ‘independence’ of these tribunals was viewed suspiciously by lawyers. This was not just because of the appointment of retired judges and bureaucrats to them, but also because the government had overwhelming powers when it came to appointing and removing tribunal judges.During the course of extensive litigation in the 1990s, the Supreme Court managed to restore some oversight of high courts over these tribunals by invoking the ‘basic structure’ doctrine. But its record on other issues pertaining to tribunals has been less than consistent. It allowed NCLT to take over the company law jurisdiction of high courts but baulked at the idea of NTT taking over the powers of high courts to decide tax cases. The litigation over the qualification and independence of judges appointed to tribunals continues into 2021, with parts of the Tribunals Reform Ordinance, 2021, promulgated earlier this year, being struck down by the Supreme Court prior to the parliamentary vote on the Bill earlier this week.Previous governments have justified their relentless march to create new tribunals on the grounds that these would reduce backlogs, and bring in specialist judges to tackles new areas of law. Due to a lack of appointments, IPAB has been dysfunctional for a good period of its history. For more than a thousand days, IPAB lacked a chairperson. From 2016 to 2020, it did not have a technical member for patent cases, because of which it could not adjudicate a single patent case.Even on the count of specialisation, experience before multiple tribunals, including IPAB, has demonstrated that the so-called ‘technical members’ — usually drawn from the bureaucracy — have added little to the quality of jurisprudence generated by these tribunals.Traditionally, in the common law system, the role of the expert has been limited to the witness dock. This experiment of shifting experts to the bench was poorly thought-out. All adjudicatory functions require a deep and familiar understanding of legal principles. However, most ‘technical’ members lack any understanding of law because they are not required to know the law.With other tribunals, such as the erstwhile Competition Appellate Tribunal, there is enough factual evidence to demonstrate that bureaucrats with no specialist experience in economics or competition law were being appointed to the post of technical member, thereby undermining the rationale of creating specialist tribunals.The story with FCAT has been slightly different. Tasked with reviewing the decisions of the Central Board of Film Certification (CBFC), FCAT has always been subject to the oversight of high courts. The problem, however, with FCAT is that it has traditionally been staffed by one retired judge and a number of political functionaries from the ruling party. The quality of its judgments over the years — be it in the case of commercial cinema or politically charged documentaries — has been beyond abysmal.While some in the Indian cinema industry have expressed their discontent with the dissolution of FCAT as adjudication before high courts is likely to take longer, they should be rest assured that high courts are usually far more liberal than FCAT when it comes to free speech. This is evidenced by the number of times different high courts have overruled FCAT in cases involving political speech in documentaries.