Report No. 272

A. Uniformity in the Appointment System

5.3. An independent judiciary is a sine-qua-non for the survival of healthy democracy. It is only when the judiciary is free from any pressure, either from the executive or legislature, the rule of law will prevail. Independent judiciary germinates from the doctrine of 'separation of powers' which is the very essence of a healthy democracy and forms an inseparable part of basic structure of the Constitution.74 Independence of judiciary constitutes the foundation on which rests the edifice of democratic polity.

The judiciary is insulated from other wings of the Government so that "judges may act free from any pressure from any one as to how to decide any particular matter".75 Independent, impartial and fearless judiciary is our Constitutional creed.76 Independence of judiciary means "freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values." Thus, there must be a security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the Judiciary) and without (the Executive).77

It has different dimensions, which includes freedom from other power centres, economic and political, and freedom from prejudices acquired and nourished by the class to which the judges belong. It is for the independence of judiciary that it was sought to be kept apart and separate from the executive. Once the judiciary is manned by people of unimpeachable integrity, who can discharge their responsibility without fear or favour, the objective of independent judiciary will stand achieved.78

74 Registrar (Admn.) High Court of Orissa v. Kanta Satapathy, AIR 1999 SC 3265; and State of Bihar v. Bal Mukand Sah (2000) 4 SCC 640.

75 S.P. Gupta v. Union of India AIR 1982 SC 149.

76 Union of India v. Pratibha Banerjee, AIR 1996 SC 603; See also, Union of India v. Sankal Chand Himatial Sheth, AIR 1077 SC 2328; and High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil, AIR 1997 SC 2631.

77 Union of India v. R. Gandhi, President Madras Bar Association, (2010) 11 SC 1899; See also, Valente v. Queen, (1985) 2 SCR 673 (Canada).

78 Supreme Court Advocates on Record Association v. Union of India, AIR 2016 SC 117.

5.4. In S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 the court held that the Tribunals are not an end in themselves but a means to an end; even if the laudable objectives of speedy justice, uniformity of approach, predictability of decisions and specialist justice are to be achieved, the framework of the Tribunals intended to be set up, to attain them must retain the basic judicial character so as to inspire public confidence.

5.5. As the Tribunals are vested with the judicial powers which had been hitherto vested in or exercised by Courts, the Tribunals should possess the same independence, security and capacity which are possessed by the judges. However, if the Tribunals are intended to serve an area which requires specialised knowledge or expertise, the appointment of Technical members in addition to judicial members must always be welcomed, as they can provide an input which may not be available with the judicial members.

When any jurisdiction is shifted from Courts to Tribunals on the ground of pendency and delayed Court proceedings and the jurisdiction so transferred does not involve any technical aspects requiring the assistance of experts, the Tribunals should normally have only the judicial members. But when the exercise of jurisdiction involves inquiry and decisions into technical or special aspects, the presence of Technical members would be useful and necessary. The indiscriminate appointment of technical members in all the Tribunals will have weakening and adverse effect on its working.80

80 Madras Bar Association v. Union of India, AIR 2015 SC 1571.

5.6. The Court in the case of L Chandra Kumar (Supra) observed that the numerous Tribunals with lack of uniformity in the matter of qualifications, appointments, tenure and service conditions is causing the major concern in effective working of the present Tribunal system, and therefore, it is desirable that all the Tribunals should be kept under a single nodal agency that will monitor the working of the Tribunals and will ensure the uniformity in the appointment system.

5.7. Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, in its 17th Report on Administrative Tribunals (Amendment) Bill, 2006, referred to the decision given in L. Chandra Kumar (Supra), and observed:

'until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law.'

Therefore, it is appropriate that in order to ensure uniformity in all the affairs of the Tribunals, the Central Government may consider bestowing the function of monitoring the working of the Tribunal to a single nodal agency, preferably under the Ministry of Law and Justice.