Thread by @barandbench

Former SC judges, Justices (retd.) Kurian Joseph, Shiva Kirti Singh (now TDSAT Chairman) and Sr Adv Neeraj Kishan Kaul speak on “Tribunals under our Constitution: Institutionalisation or Trivialisation of Justice”

The Webinar is being hosted by the CAN Foundation in a Q&A format

CAN Foundation CEO Siddharth Gupta rendered the welcome address.

The session is being moderated by Abhikalp Singh and Aditya Khandekar.

@CANFOUNDATION2

First Question to Justice (retd.) Kurien Joseph: What are the characteristics of a ‘Tribunal’, the reasons to move towards tribunalization and its distinction from ‘courts?

#Tribunals

Tribunalisation is not a new concept, it has always been there, Justice Kurien says.

In 1940s as well, British India had #Tribunals. Post Independence, in the first Law Commission Report was on Tribunals, he notes.

Coming to difference between #tribunals and Courts, Justice (retd.) Joseph Kurien notes that tribunals have a wider jurisdiction. They can follow their own procedures.

In Courts, we follow an adversarial system. In #tribunals, they can follow an inquisitorial system as well, provided that they follow natural justice principles: Justice (retd.) Kurien Joseph.

Questions to Senior Advocate Neeraj Kishan Kaul:

Can in the involvement of the executive in appointments of #Tribunal members be perceived as an attempt by the Executive to encroach upon judicial functions?

Has tribunalisation diluted the separation of powers?

Has tribunalisation diluted the separation of powers?

If I was to given a one-line answer: Yes, says Senior Advocate Kaul

Over the decades, Govt after Govt has made a brazen attempt to do so, he says.

#Tribunals

If you read the 14th report of the Law Commission, it is said there should be tribalization, the primary reason cited being overcoming backlogs etc: Senior Adv Kaul

But even then, the LCI cautioned against executive adjudication, given the Separation of Powers, Kaul adds

R Gandhi judgment did course correction to a great extent and said how members have to be an appointment, how they should be insulated from executive interference etc, Senior Adv Kaul says.

#Tribunals

Referring to the grounds that were taken in cases such as R Gandhi to justify tribunalization, Senior Adv Kaul says that they have failed in India.

He says that TDSAT is an exception.

#Tribunals

The executive has consistently made attempts to either ignore or get around the principles laid down in these cases (such as L Chandra Kumar, R Gandhi cases), says Senior Adv Kaul.

#Tribunals

Senior Adv Kaul remarks that would have thought that this (executive encroachment) would have been put to an end with all these cases, but in this country, the executive finds a way around it

It is telling when the SC struck down the rules in Rojer Mathews case, says Kaul

Recalls that Justice RF Nariman in Madras Bar Association Judgment observed that ultimately the encroachment in this exclusive jurisdiction by the Executive is brazen... where executive completely overrules the judiciary and has its own people on the tribunal, Sr Adv Kauls says.

Senior Adv. Neeraj Kishen Kaul sums up:

#Tribunals have completely failed on all parameters that they were meant for, whether it is for clearing arrears, being user-friendly, cost-effective...

Senior Adv Kaul opines, #Tribunals have become nothing but a space for post-retirement jobs. They have completely diluted the independence of judicial independence...

Question to TDSAT Chairman Shiva Kriti Singh: Referring to recent SC-ordered extension of his term as TDSAT Chairman, what are the challenges and difficulties encountering in administering a Tribunal?

Question to TDSAT Chairman Shiva Kirti Singh: Should the Chairperson of a Tribunal along with Supreme Court be given certain emergency powers for either extending the tenure of members or issuing directions in such circumstances when the Central Government fails to act?

TDSAT Chairman Shiva Kirti Singh: These powers need not come to the tribunal members whom they affect. But since it concerns the existence of the #Tribunal itself, such emergency powers should rest with a responsible, empowered committee under the monitoring of the Supreme Court

TDSAT Chairman Shiva Kirti Singh on justification of #Tribunals:

1. Specialisation of members in a specific area
2. There are new kinds of jurisdictions that are not adversarial/court jurisdiction, but "regulatory jurisdiction"

TDSAT Chairman Shiva Kirti Singh says that while there is a need for experts, they need not necessarily on the Bench as judges.

If I had an advisory expert, I could have taken their views. How far the advice should be binding may then be left to the judges.

#Tribunals

TDSAT Chairman Shiva Kirti Singh adds that the expert's role is important, justifying the existence of specialised tribunals like TDSAT. There may be more than one expert if required. However, they need not be on the Bench.

#Tribunals

TDSAT Chairman Shiva Kirti Singh says that there should be a pool of experts. There should be a concept of an advisory post, where they join for the time being and render their advice. However, "I have never felt the need for experts as part of the judicial Bench."

#Tribunals

Singh adds,

"At times I have felt hindered", because of the mindset difference between technical expert members and judicial members

Technical members may approach a problem thinking how can policy be questioned. The mindset is different from that to a judicially trained mind

Senior Adv Kaul on problems in commute between Tribunals and Courts for lawyers: It's been a nightmare to manage cases in court and #Tribunals

Entry into some of these tribunals is a nightmare. He opines that one compound should be set up for the major tribunals

Q to Justice (retd.) Kurien Joseph: Referring to recent controversy over nomination of Delhi HC judge as PMLA Tribunal Chairman-

Should we need to completely dispense with the process of post-retirement appointment of Judges/ have some mandatory cooling-off period of 2 years?

Justice (retd.) Joseph says that while it is a controversial subject, "It is (also) a hotspot of perceived bias."

#postretirementjobs #Tribunals

Justice(retd.) Kurien remarks that there are two kinds of judges, i.e. "forward-looking judges and looking forward judges"

Looking forward judges certainly undermine the stature of the majesty of justice dispensation of justice, Justice (retd) Kurien remarks

#postretirementjobs

Justice (retd.) Kurien Joseph remarks that Article 50 of the Constitution needs to be amended now - from prescribing that "judiciary" should be separated from the executive, he remarks that is should be changed say that "steps should be taken to separate Executive from Judiciary"

Article 50 is called the "conscience of the Constitution", Justice (retd.) Kurien Joseph adds that in present, he is sorry to say that it must be rephrased to emphasise on separating the judiciary from the executive (rather than the other way round).

#postretirementjobs

Justice (retd.) Singh opines that post-retirement jobs must be dispensed with; that there must be a 2-year cooling period

Joseph J. says that having created post-retirement posts, you cannot say complete no. "But I have personally decided not to take such appointment," he adds.

Responding to a question on Malimath Committee Report observations about the impression given by Tribunals to the general public, TDSAT Chairman Singh says, "We have to be very careful that we send the correct signal and that we inspire confidence..."

#Tribunals

Question to Justice (retd.) Kurien Joseph: Has the creation of Tribunals diluted the principle of natural justice when Executive itself is a contesting party all the cases?

#Tribunals

Joseph J. responds if the case goes to the right person, there will be no doubt.

"I have seen such members in Tribunals who have shown their mettle. If "yes ministers" sit on left & right of chairman, there is no appearance of justice. It is a question of how fair justice is.."

Senior Adv Kaul responds to Q. re delay of proceedings before #Tribunals: We need to ramp up infrastructure, better quality of people manning Tribunals along with the judges, streamlining jurisdiction - then you will definitely see an improvement in timelines being adhered to.

Respond to Q. regarding #Tribunal vacancies and "lethargy of Govt, Sr.Adv Kaul remarks that whether it comes to appointment to HC/SC or tribunals - on one hand, the Govt keeps harping on speedy justice and mounting cases, then they keep waiting on making appointments.

Decade after decade it has been the same story regardless of the govt in power, Senior Adv Kaul says.

To some extent, Court has also contributed in terms of delay in recommending appointments. When this happens, you give smoke to fire to rumour mills re judicial appointments.

You must have a person ready to take over a post when a person retires, Senior Adv. Kaul says.

#Tribunal #Tribunalvaccancies

While responding to a query re exercise of contempt jurisdiction by #Tribunals such as the Central Administrative Tribunal, Justice (retd.) Kurien Joseph also remarks in the passing, "For an ordinary litigant, it is not the decree that matters, it is the execution that matters"

Taking an audience question on the difference between ADR and #Tribunals, Justice (retd.) Kurien Joseph remarks,

"I am a passionate ADR person, I have trained myself to be..."

On the difference between ADR and #Tribunals, Justice (retd.) Kurien Joseph points out that in ADR, there are 4 cemented areas - Arbitration, Mediation, Conciliation and Lok Adalat. Tribunals are all governed under different statutes and manned by Govt appointees.

On the difference between ADR and #Tribunals, Justice (retd.) Kurien Joseph adds that in ADR mechanisms there is more party autonomy, the judges presiding are also appointed based on the party's choice rather than governed by Statute or appointed by Govt.

Webinar ends after the vote of thanks.

On a parting note, Justice (retd.) Kurien Joseph expresses that he "salutes" the @CANFOUNDATION2 for its efforts in remembering their roots and giving back.

“A hotspot of perceived bias", Justice (retd.) Kurian Joseph on Post-Retirement appointment of Judges to Tribunals

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