Human Rights

The National Green Tribunal has restricted access to justice

PrashantReddyAmong the many tribunals established during the last decade, the National Green Tribunal (“NGT”) is the one that is most often in the news these days. Set up in 2010 by the National Green Tribunal Act, 2010, its main purpose was to provide for the effective and expeditious disposal of cases related to the environment.

After several initial hiccups, lack of infrastructure, and constitutional challenges (which remain pending), the NGT has become rather active over the last couple of years. Many of its orders, including the one banning vehicles that are more than 15 years old, have a massive impact on society, both in terms of employment losses and pollution control.

Like most other tribunals constituted over the last decade, the NGT too is poorly designed and there is enough evidence to believe that it may be doing more harm than good. One of the many reasons for questioning the effectiveness of the NGT is the fact that its jurisdiction, both territorial and subject-matter, fails to properly ensure affordable access to justice for citizens across India.

The seat of the NGT is the first issue. According to the website of the NGT, “New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four place of sitting of the Tribunal.” This is quite pathetic given that the subject matter jurisdiction of the NGT covers environmental law across a country so vast that it is classified as a sub-continent.


The National Green Tribunal at Delhi

When the Law Commission originally studied the issue of ‘Environmental Courts’ in its 186th Report, it had recommended having one environmental court in every state and had counselled against the “Government’s proposal of a single appellate Court at Delhi, which will be beyond the reach of affected parties.” For reasons that are not clear, the government completely ignored this and focussed the resources of the newly created NGT to Delhi, with a promise to allocate resources to four more locations.

The NGT’s subject matter of jurisdiction is another issue. As of now, the NGT has both appellate powers and original powers. Its appellate powers are exercised against orders passed by statutory authorities under various environmental legislation such as the Air Act and the Water Act. In pursuance of its original powers, the NGT can award damages for death or injury to any person or property if the same has resulted from “an accident or the adverse impact of an activity or operation or process”, under any of the special environmental legislation specified in Schedule I of the NGT Act. While consolidating the appellate power in the tribunal is not per se problematic, concentrating all powers to grant damages under environmental legislation with the NGT alone is a recipe for throttling access to justice because Section 29(2) of the NGT Act, 2010 completely bars the jurisdiction of civil courts in all such matters. In its report, the Law Commission had very rightly argued against such an approach.

The plaintiff should have the option of choosing between an ordinary civil court or a specialist forums such as the environmental court, the Law Commisson had argued. “As of now, for example, if a chimney in a neighbour’s house is releasing polluted air or a small sewage channel from one house or land is creating pollution to a neighbour’s house or land, parties in villages are able to approach the nearest munsif Courts which are quite accessible to these villages. If we oust the jurisdiction of these Courts, villagers cannot be expected to go all the way to the seat of the Environment Court for each adjournment and contest the same.

Not only did the Central Government not accept the Law Commission’s first recommendation of having environmental courts in each state, it also ignored the second recommendation of allowing citizens to choose between civil courts and a specialist court. As a result we have a situation today where the jurisdiction over environmental matters, which was previously spread across the high courts and the civil courts in the country, is now concentrated with a single tribunal, one that is barely able to sit in five different cities across the entire country.

A corollary of such an arrangement is that environmental jurisprudence is now concentrated with just seven judges. This is not necessarily good news because such an arrangement vests too much judicial power in the hands of only a few judges.

The NGT is a perfect example of how the executive has botched up yet another tribunal and how the Supreme Court has done little to step in and remedy the situation.

(Prashant Reddy is a Delhi-based intellectual property lawyer.)


Sparse data shows tribunals have failed at speedy resolution of disputes

Sumathi_Chandrashekaran_LongRoadToJusticeReformTribunals are notorious for having advocates on both sides of the fence in discussions on judicial remedies in India. Defendants of India’s tribunals argue that they offer an alternative forum for addressing subject-specific disputes and allow the parties to a dispute to move away from conventional courts and their accompanying problems. The subject-specific jurisdiction of tribunals, theoretically, requires them to be staffed by experts in those subjects, who are expected to understand better, the technical aspects of such disputes. And, because no standards have been set for their functioning, tribunals have the freedom to define their administrative processes and requirements (which, the argument goes, makes them superior to conventional courts).

The opposition to tribunals usually picks on these very features. They argue that tribunal structures in India are anything but standardised. With differences in compositions, eligibility requirements for members, procedures, and reporting standards, their performance and accountability is difficult to monitor. Further, subject-specific experts may not have enough of an understanding of the law.

The legal position of tribunals in the edifice of Indian democracy also remains unresolved. In the form that many of them operate today, tribunals in India perform functions that are inherently and integrally judicial in nature. But they continue to be staffed by bureaucrats who have no judicial experience or qualifications, and offer judicial remedies after following non-judicial processes. The question that is often asked is, are tribunals a part of the executive or the judiciary? For the purpose of public administration, are they to be regarded as quasi-judicial bodies, or administrative bodies? This issue reemerges every few years, phoenix-like, as it did in the September 2014 decision of the Supreme Court, which, following a rich jurisprudential history that includes Sampath Kumar and Chandra Kumar, held the National Tax Tribunal unconstitutional.


Legality apart, there are also questions about whether tribunals have met their specific objectives, that is, avoiding the problems faced by traditional courts such as long delays, high pendency, and the lack of specialised knowledge. To answer this, we need to explore the little that we know about tribunals in India.

Poor data

Firstly, the data about tribunals is sketchy, because they operate under different ministries that have no standardised processes for gathering information about them. The annual reports of various ministries are usually the best source of information. These reports, though, do not provide information in the same format. Where tribunals are split between the Centre and states, data collection is in complete disarray, and often, entirely absent. Indeed, for many large tribunals that have been functioning for several years, there is no authoritative information available at all. This is the case with the Motor Accident Claims Tribunals, which works under various states and union territories. The Ministry of Road Transport and Highways has admitted that there is no centralised repository of cases pending for disposal in such tribunals.

Unclear classification

Secondly, the system of classification of tribunals is unclear. For instance, we know that there were 62 tribunals in India as of May 2013, according to the Ministry of Law and Justice, but we know little else. The definition of tribunals that the ministry used to arrive at this number is unclear. Is it an administrative body exercising quasi-judicial functions, like the Securities and Exchange Board of India? Is it an adjudicatory body outside the control of the administrative department, exercising judgement like a third party arbiter? Or is it an administrative tribunal formed under the Constitution of India? This problem of classification comes into sharp focus when the legislature shows an increasing but irrational proclivity to create tribunals, as it did with the National Company Law Tribunal and its appellate tribunal in 2002, the Intellectual Property Appellate Board in 2003, and soon perhaps, a tribunal for addressing disputes in the infrastructure sector. Arvind Datar, who has spearheaded a series of constitutional challenges against tribunalisation in India, has argued that tribunals have become a “tragic obsession” for us.

Failed objectives

The third issue relates to whether tribunals achieve the objective they have been established for. At two large tribunals for which data is relatively more accessible – the Central Administrative Tribunal (“CAT”) and the Debt Recovery Tribunals (“DRTs”), the number of pending cases (note that different bodies may calculate it differently) has been, generally, on an upward march over the past few years.

Sources: The 2013-14 annual report of the Ministry of Personnel, Public Grievances and Pensions, starred question no. 441, answered on April 26, 2013 by the Minister of Finance in the Lok Sabha, and unstarred question no 3445, answered on August 1, 2014 by the Minister of Finance in the Lok Sabha.

Further, if we make simplistic calculations about the workload for various benches of the CAT and the DRTs, the number of pending cases that each bench of the two tribunals has to hear is also on the rise (for the CAT, this number has been taken to be 17, and for the DRTs, 33). The workload at the CAT is already more than the workload of judges in subordinate courts, and the DRTs are also nearing that number.

Workload, that is cases pending at each bench, has been calculated on the basis of 17 benches of the CAT and 33 benches of the DRT. Sources: The 2013-14 annual report of the Ministry of Personnel, Public Grievances and Pensions, starred question no. 441, answered on April 26, 2013 by the Minister of Finance in the Lok Sabha, and unstarred question no 3445, answered on August 1, 2014 by the Minister of Finance in the Lok Sabha.

Evidently, these tribunals have failed to address the one major problem for which disputes were originally taken out of the mainstream system of judicial remedies, that is, to offer speedy disposal of disputes.

The limited data that is available shows that the tribunal “system”, if it can be called that, has not met its objectives. An increasing number of appeals to the Supreme Court against the decisions of tribunals indicate that disputing parties remain unsatisfied with their solutions. Quick-fixes, such as the creation of additional benches, as in the case of CESTAT in 2013, are not the answer. But a true assessment of the health of tribunals in India remains impossible without proper and complete information. Data collection needs to improve. The legislative mandates of tribunals and tribunal-like bodies need to be reassessed. Their functioning and their processes need to be standardised. Until then, any analysis of tribunals in India will remain in the realm of speculation.

(Sumathi Chandrashekaran is a lawyer working in the area of public policy.)

Supreme Court of India

Supreme Court correctly holds National Tax Tribunal unconstitutional but should ordinary law be tested against basic structure and constitutional convention?

GautamBhatia_SupremeCourtofIndiajpgIn a landmark judgment last week – Madras Bar Association v. Union of India – a Constitution Bench of the Supreme Court held unconstitutional, the National Tax Tribunal Act, 2005. The majority opinion runs into 230 pages and deals with a host of complicated statutory and constitutional provisions. Briefly, the National Tax Tribunal Act provided for the constitution of a National Tax Tribunal (“NTT”), which had the power to adjudicate appeals from various appellate tribunals (constituted under the Income Tax Act, the Customs Act, and the Central Excise Act), where such appeals involved a substantial question of law. Before this, such appeals were heard by the jurisdictional high courts. The idea behind the NTT was to create a single forum for the hearing of tax appeals, in order to provide the uniformity and consistency that was lacking in the law because of the conflicting decisions of the various high courts.

The petitioners challenged the NTT Act on four grounds: first, that the reasons for setting up the NTT were fallacious, since there were no problems of consistency in the present jurisprudence of the high courts; secondly, deciding upon a substantial question of law was a “core judicial appellate function”, which could not be transferred to a quasi-judicial authority that lacked the basic features of a superior court; thirdly, that the enabling constitutional provision, Article 323B, inserted into the Constitution via the 42nd Amendment, violated the basic features of the Constitution (such as the rule of law, the separation of powers, and the independence of the judiciary); and fourthly, certain specific provisions of the NTT Act undermined the independence of the judiciary, and were therefore liable to be struck down. In short, the Court accepted the second and fourth contentions, while upholding the validity of Article 323B.

Chief Justice R.M. Lodha and Justices Khehar, Chelameshwar, Sikri, and Nariman comprised the bench.
Chief Justice R.M. Lodha and Justices Khehar, Chelameshwar, Sikri, and Nariman comprised the bench.

Examining the line of Tribunals CasesSampath Kumar, Chandra Kumar and Union of India v. Madras Bar Association, the Court concluded that it was settled law that judicial review in general – and the High Courts’ power to exercise judicial superintendence over the courts and tribunals in their respective jurisdictions in particular – was part of the basic structure of the Constitution. While the Parliament was competent to enact a law transferring the jurisdiction of the High Court with respect to specific subjects to other courts or tribunals, what it could not do was to transfer the constitutionally-vested power of the High Courts elsewhere. The NTT Act – the Court found – transferred only jurisdiction, and not the High Courts’ powers of superintendence under Articles 226 and 227 of the Constitution. Accordingly, the Court held that the NTT Act did not violate the basic structure.

We may pause here to notice a controversial assumption that the Court only touches upon: that ordinary legislation is subject to a basic structure challenge. From the inception of the basic structure doctrine, it has been a contested issue whether that doctrine applies only to constitutional amendments, or to ordinary laws as well. For instance, in Union of India v. R. Gandhi, a judgment handed down by a coordinate bench just four years ago, it had been found that ordinary laws could be challenged only upon the touchstone of the Constitution, and not the basic structure. In holding otherwise, without referring to prior doctrine, the Court further muddied an already confused area of law.

Transfer of adjudicatory functions and guarantees of judicial independence

The Court then turned to the issue of transfer of adjudicatory functions. In what is perhaps the most interesting part of the judgment, it noted cases from across commonwealth jurisdictions – Canada, England, and the Privy Council – to hold that in constitutions based on the “Westminster model of governance”, there was a clear demarcation of functions between the executive and the judiciary, with the two being kept independent of each other. This independence was guaranteed through provisions regulating the appointment and security of the tenure of judges. Consequently, adjudicatory powers could be transferred from traditional courts only if the forums that they were being transferred to had analogous guarantees of independence. This was the only way in which the scheme of separation of powers could be maintained. Constitutionally, this proposition was supported by the L. Chandra Kumar judgment, and its insistence that the transfer of jurisdiction must be to a forum that embodies the salient features of the court from which the transfer is taking place.

Facebook Images-470x246Having established this, the Court then turned to the specific provisions of the NTT Act. It found that the establishment of a central tribunal (with no regional benches), the power of the central government to determine the constitution of benches and the transfer of members, the provision allowing “technical members” and “accountant members” to be appointed to the tribunal (to adjudicate substantial questions of law), the provision of a direct appeal to the Supreme Court (thus bypassing the jurisdictional High Courts) – all pointed to the fact that while the composition of the NTT was supposed to be on the same parameters as that of the judges of high courts (since, effectively, the NTT was acting as a substitute for the High Court), in practice, this was not so. Consequently, the Court held, in paragraph 90:

Sections 5, 6, 7, 8 and 13 of the NTT Act have been held by us (to the extent indicated hereinabove) to be illegal and unconstitutional on the basis of the parameters laid down by decisions of constitutional benches of this Court and on the basis of recognized constitutional conventions referable to constitutions framed on the Westminster model. In the absence of the aforesaid provisions which have been held to be unconstitutional, the remaining provisions have been rendered otiose and worthless, and as such, the provisions of the NTT Act, as a whole, are hereby set aside.”

 What is curious about this paragraph is its reliance upon constitutional conventions to strike down legislation. This is surely a first! Constitutional conventions are – as the term suggests – conventions, that is, practices that have acquired strong normative and binding force because of a long period of consistent adherence. To hold a convention to be legally enforceable is a category mistake – what distinguishes constitutional provisions from constitutional conventions is precisely their legal standing. As the reasoning above demonstrates, the Court had no need to resort to conventions: the reasoning in the Tribunals Cases was enough for it to hold that a transfer of jurisdiction must be to a forum with the relevant trappings of a court. In the alternative, if it was of a mind to invoke the Westminster constitutional model, it could simply have held that the independence of the judiciary was a structural feature of a Westminster Constitution (as, incidentally, was held in some of the cases that the Court cited from abroad, none of which relied upon conventions). Structural analysis, that is, inferring constitutional obligations not directly from the constitutional text, but by way of necessary implications from its overall scheme and structure – is an accepted form of constitutional adjudication, widely prevalent in the United States, and – although controversial, most famously in Kesavananda Bharati – used in India as well, on occasion (see, for instance, the Delhi High Court’s finding of the word “sex” in Article 15 including “sexual orientation”). In holding constitutional conventions to be legally enforceable, the Court has – with respect – created an entirely unnecessary minefield for the future.

In a brief and pithy concurring opinion, Justice Nariman decided the case on the narrow ground that the legislature was not permitted to divest superior courts of record from the core judicial function of deciding substantial questions of law. He relied upon Chandra Kumar, which had clearly held that tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts.In supplanting the scrutiny of the High Court, the Act bypassed its constitutionally guaranteed power under Article 227, as well as falling foul of Chandra Kumar.

Madras Bar Association v. Union of India is correctly decided. Its holding, that the adjudication of substantial questions of law cannot be transferred to tribunals that lack the substantive trappings of the High Court, is clearly consistent with Chandra Kumar, Article 227 of the Constitution, and the structural foundations of the Westminster Model. In simultaneously holding that ordinary laws can be subjected to a basic structure challenge, and that constitutional conventions can be used to strike down an otherwise validly enacted law, the Supreme Court has, however, ventured into uncertain territory. It remains to be seen what implications this will have for the future.

(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)