Sucheta Dalal :Judiciary Dislikes It
Sucheta Dalal

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Judiciary Dislikes It  

May 19, 2010

In a landmark judgement, the Supreme Court has asked the government to amend the laws to restrict the role of bureaucrats in tribunals


This happy scenario of IAS officers planting themselves into every conceivable aspect of public and private administration is only likely to face a block when it comes to exercising quasi-judicial functions. In a landmark judgement in May 2010, a five-judge constitutional bench of the Supreme Court of India said that the government would have to amend the laws before instituting the National Company Law Tribunal and the Appellate Tribunal. Equally importantly, the Bench (comprising Chief Justice KG Balakrishnan and Justices RV Raveendran, DK Jain, P Sathasivam and JM Panchal) also slammed the practice of filling such tribunals with bureaucrats. Justice Raveendran, who wrote the judgment for the Bench, said that bureaucrats could, at best, be technical members of tribunals and all appointments to the post of presiding officers had to be made in consultation with a committee headed by the Chief Justice of India or his nominee and comprising a judge of the Supreme Court or the High Court, as well as secretaries in the ministries of company affairs and law & justice.


The Supreme Court also said that the technical members should not exceed judicial members and the tenure of the members should be increased from three years to five or seven years. The judgement says that “a term of three years with a retirement age of 65 is perceived as tailor-made for persons who have retired or shortly to retire and encourages these tribunals to be treated as post-retirement havens.” Elsewhere, the learned judges expressed worry at the shrinking of space occupied by the judiciary and the dilution of qualifications required to discharge judicial functions.


The judgement says, “The speed with which the qualification for appointment as Members (of these tribunals) is being diluted is, to say the least, a matter of great concern for the independence of the judiciary.” This is just the beginning. We learn that the judiciary is extremely concerned about persons with no legal background taking on quasi-judicial functions, not only on tribunals, but even on independent regulatory bodies. One example was the manner in which the SEBI board, in a meeting chaired by Mohandas Pai (a director of Infosys), reversed an order of the Mohan Gopal-
V Leeladhar Bench with regard to the National Securities Depository Limited (NSDL). Concerned members of the judiciary worry that, unless checked, this trend will vitiate the justice delivery mechanism. —
Sucheta Dalal

-- Sucheta Dalal