The Tribunalisation of Justice

By Sanjay Raman Sinha

“Justice delayed is democracy denied”

—John F Kennedy, US president

The phrase justice delayed is justice denied has become so clichéd that its seriousness and import are often missed. However, the victim of delayed justice often suffers for a long time over this delay. Speedy trial and quick justice are a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution. Anyone denied this right is entitled to approach the apex court under Article 32 for its enforcement.

The wheels of justice move too slowly for the comfort of the common man. Systemic shortcomings have come to plague the judicial law dispensation process. Almost a decade ago, the government recognised this and established FTCs for speedy resolution of sensitive cases, especially those relating to women and children. There was also an effort to tribunalise justice by setting up a parallel judicial system which would deal with sensitive and expertise-specific cases and ease the burden on mainstream courts while providing fast justice.

However, it hasn’t quite worked out as expected as we are now seeing policy confusion and mismatch. In an effort to rationalise the plethora of tribunals, the government is trying to shutdown, merge and rationalise them. It has also shed its responsibility for FTCs and handed the reins to states, who aren’t too keen to manage it.

The trials of tribunals are no less. Recently, a bill was passed in the monsoon session which reduced tribunals from 36 to 15. The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021, passed in August 2021, abolished eight appellate tribunals which, as the government put it, were acting as an “unwanted additional layer of judicial intervention”. 

Mukul Shrawat, former judge of National Company Law Tribunal (NCLT) said: “I have worked 16 years in the Income Tax Tribunal and four years in NCLT. When the government calls tribunals as “unwanted additional layer of judicial intervention”, it is worrisome. The IT Tribunal is called the mother of all tribunals. Its first president, Justice Md Munir, after migrating to Pakistan after Partition went on to become the chief justice of the Pakistan Supreme Court. Such is the calibre of people manning the tribunals. The tribunals give judiciary quality experts and litigants get independent bodies to hear their cases. Technical cases like insolvency gets heard in tribunals like the NCLT. To have less judges and abolish tribunals is an alarming trend.”

The Tribunal scenario is indeed grim. The Supreme Court and centre are constantly in a showdown over the appointment of judges to tribunals. More than 100 names recommended for tribunals by statutory selection committees in the last two years have not yet been okayed by the government.

However, the judiciary is not letting the matter go easily and is putting up a spirited fight. Recently, the chief justice of India read out in open court details of over 200 vacancies in key tribunals, making them redundant in their slow death. The Supreme Court asked the centre to come clean on whether it intends to “close” tribunals across the country by not filling up vacancies that have been pending for years. The Court said over 15 tribunals did not even have presiding officers. Recommendations of names by the selection committees led by sitting Supreme Court judges to fill up the vacancies have been largely ignored by the government.

Justice Rajesh Tandon, former chairman of the Uttarakhand Law Commission and a former chief of Cyber Appellate Law Tribunal said: “Cyber law is an important field and it impinges on almost every aspect of our life. It presents a complex web of cases. Cyber Appellate Tribunals (CyAT) were established to cater to such cases. Now it has been clubbed with the Telecom Authority, which is not able to deal with such cases.”

CyAT powers now reside with the Telecom Disputes Settlement Authority of India. As noted in a 2016 report by the Comptroller and Auditor General of India, as well as a 2015 parliamentary standing committee report, the post of CyAT chairperson remained vacant since 2011, as a consequence of which none of the pending appeals could be heard or disposed of.

PK Malhotra, former law secretary, said: “There should be no delay in filing vacancies. Statutory Commissions recommend judges’ nomination to tribunals. The Commissions are headed by a Supreme Court judge who is nominated by the CJI. If such a committee recommends judges and it is not heeded, then it is serious matter. Tribunalisation of justice has got judicial approval many times over. It got the approval of the Supreme Court in Sampath Kumar case (1987), L Chandrakumar case, NCLT case and Madras High Court judgments. The Supreme Court justifies tribunalisation of justice. When the policy to rationalise the number of tribunals is being worked out and tribunals are being merged, a serious problem is emerging. Tribunals with more workload are being merged with tribunals with lesser number of cases. A tribunal essentially means an expert body. When it is merged, the expertise is finished. With delay in filling up posts, pendency increases and ad hocism shows up. The need is to make a separate Administrative Tribunal Service and bring all tribunals under one ministry.”

Meanwhile, FTCs, a comparatively recent phenomenon, are also running into trouble. FTCs were first recommended by the Eleventh Finance Commission in 2000 to “substantially reduce the pendency of cases in district and subordinate courts over the next five years”. However, in 2011, the central government stopped funding these courts.

But when the brutal Nirbhaya gangrape took place on December 16, 2012, it changed everything. The death of the 23-year-old paramedical student forced the government to reconsider its decision. This case gave a new direction to FTCs. The centre set up the “Nirbhaya Fund”, amended the Juvenile Justice Act and established fast-track women’s courts. The government decided to extend the time limit of these courts till March 2015. All these courts were primarily designed to deal with cases like sexual harassment and rape. Later on, central funding for them stopped and states were left to fend for themselves.

In 2013, the criminal law was amended, and in 2018, the quantum of punishment increased. But witness protection and safety compensation were not given by law. As a result, prosecution also weakened. Till now, the centre has taken the initiative, but now it is the states’ responsibility to set things in order in district and FTCs. 

Majid Memon, a veteran criminal lawyer and former member of the Parliamentary Consultative Committee for Law and Justice, has seen and sized up the state of affairs over time. Speaking from experience, he said: “The way things stand, the criminal justice system is in the dock. It has been said that a country’s civilisation can best be gauged by the effectiveness of its criminal justice system. Our criminal justice system is not very successful at many levels. Our Constitution promises fast and inexpensive justice. I have been a member of the Parliamentary Consultative Committee for Law and Justice and often tendered my suggestions. Our efforts were aimed at improving the functioning of FTCs. But look what is happening today. A total of 1,734 FTCs were approved in 2000 after the 11th Finance Commission report, but only 1,192 were functional till 2011. However, in June 2019, a report by the Ministry of Law and Justice stated that the country has only 581 FTCs which are working. I feel sad. Pendency still is a serious problem. Cases are not being heard. In custody cases, the accused are not getting bail for 10 to 15 years. It is shameful. The touchstone of any criminal justice system is the prison. When we visited jails as members of the Standing Committee, we were appalled. Ninety prisoners were just accused persons.”

Justice Shrawat looks back at history to place the problem in context. “The 11th Finance Commission sanctioned Rs 502.90 crore, which was released by the centre for setting up 1,734 additional courts in different states for a period of five years. The 14th finance commission stated that centre wants to set up 1,800 FTCs at a cost of Rs 4,144 crore to conduct trials of cases of women, children and the elderly. It also directed states to organise additional funds, but no cognizance was taken of this.Clearly, the problem lies with the government’s approach.”

PK Malhotra said: “From 2000 onwards, efforts have been made to fast-track sensitive cases and resolve them quickly, but due to a lack of will and planning at the policy level, it didn’t work. In 2011, the centre stopped funding TRCs. But now, it has approved the continuation of more than 1,000 Fast Track Special Courts (FTSCs) as a centrally sponsored scheme for two years (from April 2021-March 2023). But I fear the situation is not materially going to change much. The basic policy approach has to change. FTCs need specialised judges, but we continue to rely on a general pool of judges. Due to vacancy of judges, high pendency persists. There is no special operating procedure for FTCs; the same judicial process is followed and delays and adjournments rule the roost.” Justice Tandon said: “We should look closely at Article 247 for answers. It gives parliament the authority to establish new or additional courts for the administration of justice.”

On May 6, 2002, in Brij Mohan Lal vs Union Of India & Ors, the Supreme Court said about the establishment and functioning of courts described as FTCs: “…an independent and efficient judicial system is one of the basic structures of our Constitution. It necessitates sufficient number of judges”.

Justice Tandon said: “Hence to lessen the load on courts and make justice accessible, FTCs are constitutionally justified. However, attendant needs such as judges’ appointments also require fulfilment. So the states should discharge their constitutional duty. Retired district judges should be made ad hoc judges, and should be employed in FTCs.”

Majid Memon added: “The downside of law dispensation process cannot be overlooked. In fact, it is like a millstone. It weighs down the justice process.

Lawyers’ habit of taking adjournments and lack of due process in FTCs is the reason for delay in cases. If dates and adjournments are asked for, the judges should put their foot down. In serious cases, adjournment shouldn’t be given. The trial should proceed on a day to day basis.”

Also Read: Hybrid Hearings

In Delhi, FTCs usually deal with sexual harassment cases that deal with Section 376. But in almost all cases, 99 percent are acquitted due to the cases being fabricated. Dissatisfied women file these cases due to broken relationships. Out of 10 cases that an FTC hears every day, only two are of rape. So, is there a process to filter out these fake cases?

Majid Memon says from experience: “Actually, criminal laws have many loopholes. I have suggested changes. Witnesses are poor. If cases go on for 20 years, how will they sustain themselves? They can be lured. Private lawyers are well paid, while government counsels are on a paltry salary. Conviction rate is poor. The whole system boosts the morale of the wrong-doer and crime flourishes.”

Clearly, the effort to fast-track the judicial process is in a major policy tangle. As the cries for justice grows sharper, the need for a new policy framework and governmental and judicial initiative are keenly felt and desired.