TRIBUNALISATION AND ITS ISSUES.

ESSAY FODDER—the hindu

TRIBUNALISATION—A TUSSLE BW JUDICIARY AND LEGISLATURE

ADivision Bench of the Madras High Court struck down key provisions relating to the Intellectual Property Appellate Board (IPAB) established under the Trade Marks Act, 1999, as unconstitutional. This is yet another interlude in the tussle between judiciary and the legislature on the “tribunalisation” of courts. There has been much concern over the validity, character and competence of several of the tribunals in India.

The Supreme Court has, in a range of decisions, articulated the principles that a tribunal has to abide by in order to be constitutionally valid. A Vidhi Centre for Legal Policy report (2014) has identified about 29 different tribunals set up under various Central legislations, and finds several of them to be inconsistent with the parameters laid down by the Supreme Court. The Court in Chandra Kumar (1997) and NCLT (2010) suggested that the tribunals which were replacing the jurisdiction of the Courts should enjoy the same constitutional protections as them. 

This meant that when the jurisdiction is being transferred from a court to a tribunal, the members of this tribunal should hold a rank, status and capacity which is as close to those of the judges in a court as possible. 

The recent Supreme Court judgment which struck down the National Tax Tribunals (NTT) also clearly spelt out the parameters to test the constitutionality of tribunals. Yet, little effort has been made by the legislature in making the law consistent with these constitutional principles. Instead, as the honourable judges have noted, the government continues to be “furtive” and “reticent” about these precedents while the tribunals usurp judicial powers.

[SO CORE ISSUE IS, VARIOUS SC JUDGEMNETS HAVE ARTICULATED PRINCIPLES THAT A TRIBUNAL HAS TO ABIDE TO BE CONSTITUTIONALLY VALID. BUT, MANY OF THE TRIBUNALS  ARE INCOSISTENT IN FOLLOWING THESE PRINCIPLES, ALSO THE POLICY MAKERS ARE NOT DOING ENOUGH TO BRING IN THIS CONSITENCY.]

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