ROJER MATHEW v. SOUTH INDIAN BANK LTD. & ORS.

[DEEPAK GUPTA, J.]

country is one where there is freedom of expression and governance A by the rule of law. There can be rule of law only when we have judges and adjudicators who can take decisions independent of any extraneous influence. If rule of law is absent, there is no accountability, there is abuse of power and corruption. When the rule of law disappears, we are ruled not by laws but by the idiosyncrasies and whims of those in power. B

14. Tribunals have come to stay. Both the Chief Justice and brother Chandrachud, J. have dealt with the issue of tribunalisation in great detail. One aspect which needs to be highlighted and also comes out from the judgments of my learned brothers is that the men who man the tribunals should command the same respect as the Judges of C Courts and they should, as far as possible, have the same qualifications and attributes. This is absolutely necessary because if the people of this country are to have faith in tribunals then it is the duty of all concerned to ensure that these tribunals function fairly and independently like Courts are expected to. With the increase in specialisation in different branches of law, it would not be possible to urge that we do not need specialised tribunals. No human being can be expected to know the entire law. As judges we are trained to work in various fields of law. At the same time, it cannot be denied that the fast-changing face of technology and ever-growing demands of the people have led to the introduction of thousands of new legislations and some of these require specialised knowledge of certain branches of law combined with technology.

15. The courts in India were successfully handling all jurisdictions. The problem was not lack of talent. The problem was not lack of knowledge4. The main problem was extremely low number of judges as compared to the population and a very high vacancy position. Tribunalisation of justice was done not because the courts were incapable of handling the matters but mainly because there were huge delays in settling matters. Now even for complex commercial matters, specialised commercial courts have been set up. However, at the same time, one cannot deny that in the fast-expanding technological world, there is a need to have expert adjudicators. Therefore, there is a need to have specialised tribunals. These tribunals being substitutes for courts must also meet the expectations of our founding fathers and be totally independent and fearless. 4 Union of India v. Madras Bar Association, (2010) 11 SCC 1 H

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A 16. Unfortunately, the working of some of the tribunals leaves much to be desired. Not all the problems arise because of the persons who run the tribunals. Many difficulties arise because of huge vacancies, few benches, financial crunch and dependence of the tribunals on the departments, which sadly administer the tribunals. Some of the tribunals are virtually subjugated to the departments as far as the administrative matters are concerned and this also affects the independence of the judiciary. Judicial independence not only means independence to take the right decisions but functional independence is equally important. Perceptions are also very important. What does the litigating public appearing before the tribunal feel? Is the tribunal functioning like a wing of the government or as an independent body? If there has to be separation of powers then these tribunals must have functional autonomy to run themselves as they best feel like.

17. In this background, I shall deal with the various issues culled out by the Chief Justice. D Issue No.1

18. I am in total agreement with the Chief Justice in as much as he has held that the decision of the Hon’ble Speaker of the House of People under Article 110 (3) of the Constitution is not beyond judicial review. I also agree with his views that keeping in view of the high E office of the Speaker, the scope of judicial review in such matters is extremely restricted. If two views are possible then there can be no manner of doubt that the view of the Speaker must prevail. Keeping in view the lack of clarity as to what constitutes a Money Bill, I agree with the Hon’ble Chief Justice that the issue as to whether Part XIV of the Finance Act, 2017, is a Money Bill or not may be referred to a F larger bench. Issue no. 2

19. As far as Issue No.2 is concerned, I am unable to agree with the conclusion of Chief Justice. There can be no doubt that Parliament is not expected to deal with all matters and it can delegate certain “non- G essential” matters to the executive. Every condition need not be laid down by the Legislature.

20. In his judgment the Chief Justice has referred to a catena of judgments dealing with limits of delegation. It is not necessary to repeat all that has been said in those judgments but reference may be H made to a few.

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[DEEPAK GUPTA, J.]

21. A 7-Judge Bench of this Court in Re Article 143, A Constitution of India and Delhi Laws Act (1912) etc.5 held that the legislature cannot be expected to legislate on all issues and has the power to delegate non-essential functions to a delegatee. At the same time, a close reading of the judgment indicates that it was clearly held that the “essential legislative functions” cannot be delegated. There can be no quarrel with the proposition that delegation of non-essential legislative functions can be done. Even to this there is a caveat. The legislature must have control and functional powers over the delegatee. One of the known methods of exercising such powers is for the delegatee to place the rules/orders passed by it in exercise of powers delegated to it before the legislature. There should always be legislative control over delegated legislation.

22. In Gwalior Rayon Mills v. Assistant Commissioner, Sales Tax6, Khanna, J. dealt with this matter in his inimitable style. Paras 24 and 25 of the judgment have been quoted in the opinion of the Chief Justice but I think Para 26 is also very relevant and it reads as follows: D

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A This makes it clear that merely because the subordinate legislation has to be placed before the legislature does not mean that there is effective control in all cases.

23. In Harishankar Bagla v. M.P. State7, the test laid down was that there should be a reasonably clear statement of policy which B should guide formulation of delegated legislation.

24. In Ramesh Birch v. Union of India8, a Bench of this Court clearly held that the legislature cannot wash their hands of their essential legislative functions. It held as follows.

C “19…A different way in which the second of the above views has been enunciated — and it is this view which has dominated since — is by saying that the legislatures cannot wash their hands of their essential legislative function. Essential legislative function consists in laying down the legislative policy with sufficient clearness and in enunciating the standards which are to be D enacted into a rule of law. This cannot be delegated. What can be delegated is only the task of subordinate legislation which is by its very nature ancillary to the statute which delegates the power to make it and which must be within the policy and framework of the guidance provided by the legislature.” E By the Finance Act, 2017 the number of tribunals were reduced to 19. It is the case of the Government that the tribunals are necessary so that technically qualified people can man the tribunal. The nature of work done by different tribunals is totally different. The essential qualifications for filling up the posts of members of administrative tribunals, company law tribunals or the National Green Tribunal would be totally different. This function, in my opinion, being an essential legislative function, could not have been delegated especially without laying down any guidelines.

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[DEEPAK GUPTA, J.]

Authorities as specified in column (2) of the Eighth Schedule. Section A 184 of the Finance Act, 2017 reads as follows :-

184. (1) The Central Government may, by notification, make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice- B Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the Eighth Schedule: Provided that the Chairperson, Vice-Chairperson, Chairman, Vice- Chairman, President, Vice-President, Presiding Officer or Member of C the Tribunal, Appellate Tribunal or other Authority shall hold office for such term as specified in the rules made by the Central Government but not exceeding five years from the date on which he enters upon his office and shall be eligible for reappointment: Provided further that no Chairperson, Vice-Chairperson, D Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member shall hold office as such after he has attained such age as specified in the rules made by the Central Government which shall not exceed,— (a) in the case of Chairperson, Chairman or President, the age of seventy years; E

(b) in the case of Vice-Chairperson, Vice-Chairman, Vice- President, Presiding Officer or any other Member, the age of sixty-seven years: (2) Neither the salary and allowances nor the other terms and F conditions of service of Chairperson, Vice-Chairperson, Chairman, Vice- Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authority may be varied to his disadvantage after his appointment.

26. An analysis of Section 184 clearly indicates that the Parliament G has delegated to the Central Government the power to make rules to provide for the qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of the Chairpersons/Members of the tribunals. The issue before us is whether by doing so Parliament has delegated “essential legislative functions” and whether Parliament has retained any control. H

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A 27. We are in the present case dealing with the appointment of Chairpersons/Members to various Tribunals. They are enjoined upon to discharge a constitutional function of delivering justice to the people. What should be the established qualifications and attributes of persons selected to man such high posts is, in my view, an essential part of legislative functions. I have no doubt, in my mind, that the Constitution B could not have provided that the qualifications of the Judges of the Supreme Court of India or of the High Courts could be fixed by the Government. If these tribunals are to replace the High Courts, why should the same principles not apply to them. In my view, laying down the qualifications of the persons eligible to hold these high posts was an essential aspect of the legislation keeping in view the importance of the tribunals, the importance of rule of law and the importance of an independent and fearless judiciary.

28. As far as providing the qualifications for appointment are concerned, as discussed above, I am of the view that these qualifications have to be provided in the legislation and could not be delegated. However, as far as the other terms and conditions such as pay and allowances are concerned, these can be delegated.

29. For the sake of argument, even if it was to be said that laying down the qualifications is not an essential function then also, in view of the law laid down by this Court, the guidelines should have been found in the legislation itself. It is paradoxical that there are no guidelines for the essential qualifications, even though there are some guidelines with regard to the terms and conditions of services of Chairpersons/ Members of the Tribunals.

F 30. I am in respectful disagreement with the Chief Justice that the objects of the parent enactments and the law laid down by this Court in R. K. Jain v. Union of India9, L. Chandra Kumar (supra), Union of India v. Madras Bar Association10, Madras Bar Association v. Union of India 11 , Madras Bar Association v. Union of India 12, Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd. 13 in essence G should be read as the guidelines. One would expect the Union 9 (1993) 4 SCC 119 10 (2010) 11 SCC 1 11 (2014) 10 SCC 1 12 (2015) 8 SCC 583 13 H (2016) 9 SCC 103

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[DEEPAK GUPTA, J.]

Government to abide by the directions of this Court. However, this expectation has been belied by this very enactment which violates every principle of law laid down by this Court and, as held in the judgments of both my brothers, the Rules framed by the delegatee are violative of the law laid down by this Court. In this background, it is apparent that both the delegator and the delegatee felt that they were not bound by these judgments. This is also apparent from the fact that the Rules framed by the delegatee have not been brought in consonance with the law by the delegator.

31. The previous enactments were repealed in so far as matters covered by Part XIV of the Finance Act are concerned. Therefore, it cannot be expected that the delegatee would again refer to the repealed enactments to seek the guidelines for fixing the terms and conditions, etc. of those to be appointed as Chairpersons/Members. If we exclude the judgments of this Court and the terms and conditions laid down in the repealed enactments then there are no guidelines whatsoever left for the delegatee to fall back on. The Finance Act provides no guidelines in this regard. It is absolutely silent with regard to the qualification, the eligibility criteria, experience etc. required for those who are to be appointed as Chairpersons/Members of the Tribunals. These powers have been delegated to the government.

32. There being no guidelines, unfettered and unguided powers have been vested in the delegatee and, therefore, in my opinion, there is excessive delegation. As such, I would hold that Section 184 of the Finance Act, 2017 insofar as it delegates the powers to lay down the qualifications of Chairperson, Vice-Chairperson, Chairman, Vice- Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities F as specified in column (2) of the Eighth Schedule, suffers from the vice of excessive delegation and is accordingly struck down. Issue Nos. 3 & 6

33. I agree with the Chief Justice and I do not want to add G anything. Issue Nos. 4, 5, 7 & 8

34. I agree with the Chief Justice both on the reasoning and conclusions on these issues. However, as already pointed out above, I am of the view that since nobody has raised a challenge to the H

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A correctness of the law laid down by 7-Judge Bench in L. Chandra Kumar (supra) that there should be one wholly independent agency for the administration of all the tribunals. There is no need to refer this issue to a Bench of 7 Judges.

35. However, I would like to add a few words because I feel B that it is important to highlight the problems being faced and the issues which need to be resolved by the body which will carry out the judicial impact assessment of the tribunals in the form of a Judicial Impact Assessment Committee. I am clearly of the view that as laid down in L. Chandra Kumar (supra), there must be a single independent nodal agency for administering all the tribunals. The 7-Judge Bench of this C Court held that all tribunals should as far as possible be under a single nodal agency. Until such a nodal agency is set up it was felt that the Ministry of Law and Justice would be the most appropriate Ministry for this purpose.

36. There are various reasons why there should be one nodal agency. Tribunals are facing many problems like lack of manpower, very few benches, vacancies lying unfilled for long period, financial dependence on the department which may be litigating before the tribunal etc. These are ills which can be avoided if Tribunals fall under one umbrella organisation. One umbrella organisation will be better equipped to understand the problems faced by all the Tribunals. This could lead to standardization of Tribunals and a uniform approach to the needs of each tribunal. A large number of tribunals, especially those cast with the duty of discharging adjudicatory functions have been constituted with a view to replace the courts and in many cases the jurisdiction earlier exercised by the High Courts has been vested in such tribunals. It is, therefore, imperative that these tribunals must be manned by persons of impeccable integrity, high intellect and having vast experience in the field in which they will exercise jurisdiction. These tribunals also must have functional autonomy. This cannot be achieved unless there is a nodal body which shall look after the administrative needs of the tribunals. For more than 2 decades the Government has not thought it fit to comply with the 7-Judge Bench judgment of this Court in L. Chandra Kumar (supra). These matters cannot be permitted to linger on indefinitely. Therefore, in my view, a direction must be given to the Government to set up a single nodal agency within H a period of 6 months from today till which time the present system may

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continue. Merely giving financial autonomy to the tribunals will not do A away with the need of having one common umbrella organisation to supervise all the tribunals.

37. Even without carrying out any judicial impact assessment it is clear, as held in Madras Bar Association, 2010 (supra) that tribunals in India have unfortunately not achieved full independence. When B tribunals are established, they depend upon the sponsoring department for funds, infrastructure and even space for functioning. Administrative members of the tribunal are, more often than not, drawn from this department. This, in my opinion, strikes at the very root of judicial independence because the biggest litigant or stakeholder itself becomes part and parcel of the adjudicating body which is supposed to be free, independent and fearless.

38. The need for carrying out judicial impact assessment of all the tribunals in India cannot be over emphasised. Experience has shown that the tribunals are not fully independent and more often than not, the number of vacancies in the tribunals are so high as to make the tribunals dysfunctional if not non-functional. The promised benches remain a mirage in the air and the litigants from remote areas of the country have to come to the State capitals or the National Capital for redressal of their grievances. E

39. Access to justice is a fundamental right14. Denial of access to justice also takes place when a litigant has to spend too much money, time and effort to approach the adjudicating authority to get justice. In India where delays plague the tribunals, a client will not hurriedly approach a tribunal even if he has a genuine grievance. Amongst the many tribunals set up, the tax tribunals have been probably the most successful. In my view, one of the reasons why the tax tribunals have been successful is that the recruitment of members of these tax tribunals is normally done at a younger age and there is scope of career progression not only within the tribunal but also from the tribunals to the High Courts. This can only happen if we recruit younger and competent people rather than retired persons. Another reason for the success of the tax tribunals is that the litigant is either the revenue or an assessee, both of whom have the wherewithal to fight cases. Similarly, in administrative tribunals it is government servants mainly who 14 Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509 H

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A are involved. Commercial tribunals also deal with the litigants who normally have sufficient finances. But now we have other tribunals like the NGT which may be approached by poor villagers.

40. The Central Administrative Tribunal (CAT) was set up in the year 1985. It can definitely be termed as one of the better functioning tribunals. However, even this tribunal has only 17 regular benches including the Principal Bench at Delhi and 4 Circuit Benches. Prior to the establishment of the CAT, a Central Government employee had a right to move the Civil Courts for grant of relief. This meant that such employee could even approach a Sub-Judge for grant of relief. That jurisdiction has been taken away. In L. Chandra Kumar (supra), while upholding the constitution of the tribunals, a 7-Judge Bench of this Court held that the orders of the tribunals would be amenable to judicial review under Article 226 of the Constitution albeit with a caveat that these matters would be decided by a Division Bench.

41. The vacancy position even in the CAT is very high. Out of D a total strength of 65 members, the CAT is short by 25 members – 12 administrative members and 13 judicial members. This is a shortage of about 38%. The Chandigarh Bench of the tribunal is supposed to have 4 members. However, presently there is only 1 judicial member and as such there is no bench available in Chandigarh. The Chandigarh Bench E has jurisdiction over the States of Punjab, Haryana, Himachal Pradesh and Union Territories of Jammu and Kashmir, Ladakh and Chandigarh. The Central Government employees in these areas have virtually been left remediless. It is easy for the members of the All India Civil Services holding high positions to approach the Principal Bench at Delhi, but one cannot even imagine the plight of a lowly placed peon or clerk who is F expected to travel long distances to New Delhi, spend huge amount of money, pay the extremely high fees of the lawyers of a metropolis like Delhi to file a case in Delhi. Such a litigant is financially boarded out of the litigation process.

42. To give another example, the NGT was to have its Principal G Bench at Delhi and 4 Zonal Benches and 4 Circuit Benches. It was expected that in the future more benches would be added. Sadly, the reverse has taken place. At the present moment, only the Principal Bench is functioning with only one Chairperson and 3 judicial members (as against the sanctioned strength of 20 judicial members), and two H expert members (as against the total sanctioned strength of 20 expert

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members). The situation is extremely grim. Day in and day out we all A talk about pollution and the environment but the harsh reality is that as against a Chairperson and 40 members, at present the Chairperson has the assistance of only 5 members. The result is that no hearings are taking place in the Zonal Benches or the Circuit Benches. We have been informed that cases are taken up by video conferencing. Video B conferencing can definitely be used as a tool to hold hearings in some cases but initial filing and hearings must as far as possible be done in open Court if the public is to have faith in the institution. Open hearings are essential to build trust and confidence in the community. Members of the public will have faith only in those tribunals and courts which are open to the public. Presently, the situation is such that if someone from Andaman and Nicobar Islands wants to raise some issue before the NGT he will have to come at least to Calcutta to file a case, whereas earlier he could have filed a case before the Circuit Bench of the Calcutta High Court at Port Blair. Here also, the hearing, if any, will be conducted through video conferencing. There is no bench of the NGT functioning in the North-East covering as many as 8 States. Similarly, there is no bench functioning in the environmentally and ecologically fragile States of Himachal Pradesh and Uttarakhand and the Union Territories of Ladakh and Jammu and Kashmir. This clearly shows that functioning of the tribunals leaves much to be desired.

43. The committee which carries out the judicial impact assessment of the functioning of the tribunals has to deal with a whole lot of issues. It is neither feasible nor proper to lay down all the issues in this judgment but I am highlighting some of them. Another important issue which must be dealt with is whether the tribunals have really helped in early disposal of the cases. The time spent for disposal may vary from case to case but we are mainly dealing with the cases which end in the High Courts or at the Supreme Court. This must be done not only on an all India basis but also on State to State basis. There are many smaller States in the country where the Civil Courts and the High Courts are not overburdened with work. In these States, the cases are decided much faster than in many other larger States. Normally, it is these smaller States which do not get permanent benches, sometimes not even Circuit Benches. It is a paradox that the States which are judicially well administered and where disposal is quick, do not get the permanent benches and the litigants suffer whereas States which are very slow in disposing of the cases get more benches. Even when H

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A Circuit Benches come to these States there is a huge time gap between two sittings. The whole purpose of providing cheaper and faster justice gets lost because the Circuit Benches come rarely and many times the constitution of the Circuit Benches changes on every visit resulting in matters being reheard every time.

B 44. Having tribunals without benches in at least the capitals of States and Union Territories amounts to denial of justice to citizens of those States and Union Territories. It also makes the justice delivery system very metropolis centric. This has many adverse effects. The bench and the bar in smaller district towns and capitals of smaller States which were handling these matters in a competent manner are deprived of handling these types of cases. This also makes access to justice expensive for the litigants. It also leads to a situation where the bench and the bar in these areas would not have any experience of handling matters relating to jurisdictions transferred to tribunals which they used to handle earlier. Therefore, the local bench and bar will never develop and the entire bulk of work will be captured by those practicing in Delhi or in those State capitals where benches of the tribunals are set up. Instead of taking justice to the common man, we are forcing the common man to spend more money, spend more time and travel long distances in his quest for justice, which is his fundamental right.

E 45. The litigants cannot wait for judicial impact assessment and action by the Government which may or may not take place. Experience has shown that the judgments right from L. Chandra Kumar (supra) to Madras Bar Association, 2010 (supra) have not been complied with by the Union in letter and spirit. Citizens of this country cannot be denied justice which is the first promise made in the Preamble. Therefore, I am of the view that in whichever State/Union Territory the bench of a particular tribunal is not established or functioning, the litigants of that State will have a right to invoke the extraordinary writ jurisdiction of the jurisdictional High Court under Article 226 of the Constitution for redressal of their grievances. They cannot be expected to go to far off distant places and spend huge amounts of money, much beyond their means to ventilate their grievances. The alternative remedy of approaching a tribunal is an illusory remedy and not an efficacious alternative remedy. The self-imposed bar or restraint of an alternative efficacious remedy would not apply. Such litigants are entitled to file petitions under Article 226 of the Constitution of India before the

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jurisdictional High Court. In L. Chandra Kumar (supra) it was clearly held that the right of judicial review is a part of the basic structure of the Constitution and this right must be interpreted in a manner that it is truly available to the litigants and should not be an illusory right.

46. One more aspect which needs to be looked into is the need to have a two-tier tribunal system like in the United Kingdom- a lower tribunal and an appellate tribunal. If there are two-tier tribunals then there would be adjudication at the appellate level by an appellate tribunal. Having one appellate forum within the hierarchy of tribunals would probably lessen the burden on the High Courts and the Supreme Court.

47. Recruitment to the lower tribunal should be done on the basis of an objective criteria like the written test conducted for the post of District Judges. The persons selected to the lower tribunals can be made eligible for promotion to the appellate tribunals. In fact, there can be common service to man more than one or more tribunals. To give an example, there can be a common service for all the tax tribunals. There can also be a common service for the State administrative tribunals, the Central Administrative Tribunal and for the judicial members of the Armed Forces Tribunal. This will obviously require setting up of separate tribunal services. If this is done, we will have tribunal services from which people will rise to man these tribunals, the appellate tribunals and also to the posts of Chairpersons of tribunals. The body carrying out the judicial impact assessment should also look into the issue as to whether it would be better to have a tribunal service rather than appointing retired judges. If members of the bar or from the administration or from the State judiciary are appointed at the lowest rung of the tribunal and they have a long tenure knowing that they will retire after 15 or 20 years, one would be able to attract better talent and a more committed workforce. A long tenure for members is also essential for maintaining judicial independence. They shall also have aspirations of reaching the higher levels, which would be an inducement for a better work culture.

48. If there are tribunal services and there is provision for appeal within the hierarchy of the tribunals and the High Courts exercise their writ jurisdiction or if in some matters appeals are provided to the High Courts in the first instance, many of the ills which plague the system may be overcome. If the aforesaid system is followed then the question of appointing retired Judges or bureaucrats will not arise. Learned H

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A amicus curiae in his note has raised an issue that tribunals should not become a haven for retired persons. In my view, there should normally be no post retiral sinecures. Though the ideal situation would be to have no appointments from retired judges or bureaucrats, this may not be possible in the near future because we have no tribunal services and most of the posts at this stage may have to be filled from amongst retired persons. At the same time, an effort has to be made to ensure that in the foreseeable future the number of retired persons being reappointed is brought down and more persons from within the tribunal services are appointed up to the highest level in the tribunal.

49. There may be some posts which require retired judges to be appointed such as Lokpal, Lokayukta, Chairpersons of the Human Rights Commission, Chairman of the Law Commission of India, etc. But this should not become a matter of routine especially when the appointments are being made by the executive. If the administration makes appointments and judges, serving or newly retired judges, are under consideration for such posts then the independence of the judiciary is likely to be compromised. The public of this country still reposes great faith in the judiciary. That faith will be eroded in case it is felt that the appointments are made for extraneous reasons. Most judges live up to the expectations of the high standards of integrity and propriety expected from them but we cannot shut our eyes to the harsh reality that there are a few black sheep. One cannot expect justice from those who, on the verge of retirement, throng the corridors of power looking for post retiral sinecures. Therefore, I am of the considered opinion that the majority of members of the selecting body must comprise of the Chief Justice of India and/or his/her nominees and the views of the Chief F Justice and/or his/her nominees must be given precedence over the views of other members.

50. If retired judges of the High Courts or the Supreme Court are good enough to man the tribunals after retirement, I do not see any reasons why the retirement age of the High Court Judges should not be increased to make it at par with the retirement age of the Judges of the Supreme Court. This would take care of the vacancies which would otherwise arise in the next 3 years. As of 01.09.2019 as against the sanctioned strength of 1079 judges there were 414 vacancies in the High Courts. Given the slow pace at which these vacancies are being filled up, the number of vacancies is bound to rise. Though we are

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discussing tribunals, even the independence and functioning of the High A Courts is threatened by this humungous vacancy position.

51. I agree with the Chief Justice that an attempt should be made to do away with filing of first appeal as a matter of right to the Supreme Court. At present, at least 2 dozen statues provide for appeals directly to the Supreme Court. The Supreme Court becomes a Court of first B appeal which is highly avoidable. If we follow the law laid down in L. Chandra Kumar (supra), the High Courts should have the jurisdiction to entertain writ petitions against the orders of the tribunals. This will reduce the burden on the Supreme Court. Even more importantly, the High Courts, when they entertain these matters, will deal with them within the limited scope of writ jurisdiction. If the jurisdiction of the High C Courts is bypassed by providing for appeals directly to the Supreme Court, soon a stage will come when we will have no High Court Judges who would have heard matters in various jurisdictions. It would be virtually impossible for them to handle such matters in the Supreme Court where the tenure of a Judge is on an average only about 4 years. D

52. The Judicial Impact Assessment Committee can also after assessment recommend that some tribunal(s) should be wound up and the jurisdiction of that tribunal(s) be given back to civil courts or to the High Courts or to some other tribunal. It can also suggest the merger of two or more tribunals. E

53. The next issue is who should carry out the judicial impact assessment. In my view, the Judicial Impact Assessment Committee should comprise of two retired judges of the Supreme Court, the senior being the Chairperson of the Committee, and one retired Chief Justice of a High Court all three to be nominated by the Chief Justice of India. F Out of the three at least two should have been the Chairperson or members of tribunals. Two members of the Executive, not below the rank of Secretary, to the Government of India, one from the Ministry of Law and Justice and one from some other branch can also be members but these members should be appointed in consultation with the Chief Justice of India. G

54. The last issue is whether there should be a Commission or a body to oversee the appointment of members of various tribunals. In my view it is necessary to have such a Commission which is itself an independent body manned by honest and competent persons. This body is required to select those persons who man the specialised tribunals in H

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A terms of the law laid down in various judgments of this Court. We need persons who not only have grassroot experience but a judicious mix of judicial members and those with grassroot experience15. We need persons who have an independent outlook, integrity, character and good reputation16. We need people who are totally free from the influence or pressure from the Government17. It is only then that the people will have faith in the adjudicating mechanism of the tribunals.

55. In my view, serving Judges of the Supreme Court or the Chief Justice of the High Courts are already overburdened and have no time to spare. It would be much better if they could spend their time and energy in filling up the vacancies in the High Courts rather than venturing into the field of tribunals.

56. I also feel that having a very large committee would not serve the purpose. A smaller committee comprising of competent people is a better solution and, in my view, such commission should comprise of 2 retired Supreme Court Judges with the senior most being the D Chairman and one retired Chief Justice of High Court to be appointed by the Chief Justice of India. There must be one member representing the executive to be nominated by the Central Government from amongst officers holding the rank of Secretary to the Government of India or equivalent. This member shall be the ex-officio convener. One expert member can be co-opted by the by full time members. This expert member must have expertise and experience in the field/jurisdiction covered by the tribunal to which appointments are to be made.

57. At the end I would like to quote what Dr. B. R. Ambedkar said while addressing the Constituent Assembly on 25.11.1949. In his words:- “Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be G a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive

15 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 16 Union of India v. Madras Bar Association, (2010) 11 SCC 1 17 H R.K. Jain v. Union of India, (1993) 4 SCC 119

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[DEEPAK GUPTA, J.]

and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.” One can only hope that keeping these thoughts in mind a system is developed which ensures selection of people having impeccable integrity, who are totally independent, have a good character and reputation, are free from influence or pressure, and have requisite experience in the jurisdictions they would deal with as Chairpersons/ Members of Tribunals. C Ankit Gyan Petitions disposed of.