Criticising the government for substituting judges with subject experts without legal background in tribunals under its control, the Supreme Court said that whenever it is confronted with contentious issues it knocks at the doors of the court for their resolution."Judges may not be expert but whenever problem arises they (government) come to judges either by way of (setting up) Commission or (approach) Court to decide the issues" said the apex court constitution bench of Chief Justice R.M. Lodha, Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice A.K. Sikri and Justice Rohinton Fali Nariman.The court was apparently referring to numerous instance when government has moved the top court for the resolution of contentious and delicate issues which have political and other implications.
The court said this as it reserved its verdict on a batch of petitions challenging the validity of the National Tax Tribunal Act and Article 323-A of the constitution providing for administrative tribunals, and Article 323-B providing for tribunals for all other matters including tax, foreign exchange, import and export and customs.
The government wants to do away with the "artificial knowledge" of the judges which they gain from decades of their practice of law first at the bar and later on bench, and substitute them on the tribunals with non-judicial members having "specialised knowledge" bereft of any legal grooming, the court said.The scathing observations came as senior counsel Arvind Dattar told the court that the Income Tax Appellate Tribunal and National Tax Tribunals while deciding the tax matters were also deciding the matters related to the Hindu succession law.
The court asked Dattar to provide with some of the cases where tax tribunal has decided the tax matters involving the Hindu succession law.Dattar who appeared for Madras Bar Association told the court that while Article 323-A of the constitution had sought to eliminate judicial review for the executive actions in service matters, Article 323-B "enabled the creation of parallel judiciary under the executive control."He said that at any rate Article 323-A "should be struck down" and Article 323-B must be interpreted so that the word "Tribunal" only covers tribunals that are part of the judiciary like Rent Control Tribunals, Motor Vehicles Tribunals, Labour Tribunals etc."Assailing the Centre's stand that tribunals were created because high courts were clogged with the huge pendency, Dattar said that "clogging" of the high courts could not be a ground for creating a judicial system out the constitutionally mandated judiciary with defined hierarchy.Dattar wondered whether same logic could be extended to have an "alternative institutional mechanism" for parliament as its functioning or lack of it has been criticised variously.
The Chief Justice Lodha in a mocking observation said that tribunals that were being constituted were not independent what to talk of being autonomous.Chief Justice Lodha's scathing observations came as Solicitor General Ranjit Kumar while defending the dispensation of justice by the tribunals referred to a British judgment supporting tribunals.Ranjit Kumar landed in difficulty as British judgment stressed on the "autonomy" of the tribunals and not dispensing with the "constitutional role of the High Courts - a position that is non-existent in Indian context. Earlier in the course of the hearing the court told senior counsel K.V. Vishwanathan that deciding an appeal involved a complex knowledge of law which was beyond the comprehension of a chartered accountant."How a CA who is not qualified in law, can help in the determination of substantial question of law, and to spell out what is the substantial question of law was beyond their comprehension", the court told Vishwanathan who had appeared for the Instituted of Company Secretaries of India.