Report No. 123
5.7. The first and the foremost reservation stems from the fact that tribunalisation of justice simultaneously removing the shield of the High Court would adversely affect the quality of justice. The members of the teaching faculty of the university and karamcharis of the university voiced a fear that they are the victims of university authorities and in the absence of the shield of protection of High Court, their position would be very vulnerable. The genesis of the apprehension is not in the concept of tribunal but in the composition of the tribunal-an aspect which the Law Commission is going to seriously look into.
And the second limb of the apprehension is as to who would enjoy the power to appoint the personnel to man the tribunal. Avoiding any repetition, let it not be forgotten that justice at the hands of specialist tribunal has found favour with the apex court in the country. If judicial review is not taken away, then instead of the High Court, there can be any other forum or mechanism or authority in which power of judicial review can be vested by the Parliament.1 In fact, there is a body of opinion current in the country that specialist tribunals, in comparison to generalist courts, would be better suited to resolve disputes requiring specialist knowledge of the field of activity in which disputes have arisen, to resolve which tribunals can be set up.
1. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 (389).
5.8. The second limb of the apprehension was that the proposed Central Education Tribunal would be dumping ground for retired Vice-Chancellors, Judges, bureaucrats and others, and that their appointment will be attributable to political largesse. Care will be taken in this behalf to find a body in which power will be vested to select the personnel for manning the tribunal. But it would be wasting the accumulated experience of the senior citizens of the society, such as, retired Vice-Chancellors, Judges and even bureaucrats, if their services cannot be utilised in the field in which they have some expertise. In fact, Law Commission is at a loss to understand why there is such a feeling of distrust against retired Judges.
Article 128 of the Constitution confers power on the Chief Justice of India with the previous consent of the President to request any person who has held the office of a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court. If so appointed, he can deal with cases pending in the Supreme Court. If a retired Judge can be thus trusted to deal with cases in the Supreme Court itself, the Law Commission is at a loss to understand why he cannot be trusted to use his expert knowledge and rich experience by being appointed to a tribunal. In the past, there are illustrious cases of retired Judges being recalled to work in the Supreme Court and no grievance has been heard in this behalf. Article 224A makes an identical provision for utilisation of services of a High Court Judge to work in the High Court. This very reasoning should mutatis mutandis apply to retired Vice-Chancellors, men of eminence in the field of education and even bureaucrats.
5.9. The next grievance entertained was that there is not enough workload to warrant establishment of such a tribunal and, consequently, the establishment of the proposed tribunal would be an uneconomic venture. This raises a vital issue of expenditure on administration of justice. It is at present being treated as non-development expenditure. A radical re-thinking is absolutely necessary in this behalf. A society without a system of efficient administration of justice in a parliamentary democracy is inconceivable. Expenditure on justice is a social overhead in a developing country.
And diversification and decentralisation of administration of justice may necessitate specialist tribunals in certain well-defined areas where even if the workload is not sufficient, tribunal must be set up so as to relieve the congestion and burden on the generalist courts, to be precise, High Courts and Supreme Court, thereby achieving the more desired result of speedy and expeditious disposal of disputes, avoiding strife and tension in the society. Every confrontation certainly adds to disharmony and strife in the society, the genesis of which is ordinarily in an unresolved dispute. Therefore, this workload argument need not be given importance. There is an additional reason not to attach any worthwhile importance to it for this reason that full statistical material is not available in this behalf.
5.10. There is a third limb to this aspect of the matter. The proposed tribunal is likely to be invested with an expansive jurisdiction. The courts at present hardly deal with disputes between the university and the Government, the disputes arising out of the appointment or non-appointment of Vice- Chancellors and the disputes between Chancellor and Vice-Chancellor which are proposed to be brought within the purview of the tribunal. At present these disputes ordinarily do not reach the court and those affected live with them. The worry on account of non-availability of enough workload disappears forthwith.
5.11. One more grievance has been voiced. It has been emphatically stated that the moment you remove the shell of court protection and introduce a tribunal, it would not be long before it is politicalised and would lose its credibility. This apprehension is attributable to the lack of knowledge about the body in whom the power is to be vested for selecting personnel for manning the tribunal. In a one man, one vote, one value society, there is hardly an individual who has no political views. Intelligent political views is a barometer of awakening in the society. Holding political views does not make a man, a politician. The situation referring to politicisation cannot be wished away but must be protected against.
5.12. The balance-sheet of advantages and disadvantages emerging from the debate clearly tend to indicate that the balance tilts in favour of positive approach. The anticipated apprehension should not be ignored but care must be taken to see that it does not materialise. Therefore, the Law Commission must proceed to examine its own proposals now on merits.