Tribunalisation – IAS4Sure

Context:

High courts:

For the framers of our Constitution, high courts, occupied a central position
They were conceived as a forum for adjudicating disputes under the Constitution, Central and State statutes before they moved to the Supreme Court
HC’s jurisdiction was more extensive than the SC’s
Parliament has inflicted damage on high courts with rampant tribunalisation
Tribunals have replaced high courts for disputes under the Companies Act, Competition Act, SEBI Act, Electricity Act, Consumer Protection Act among others
Any person aggrieved by an order of an appellate tribunal can directly appeal to the SC, side-stepping the high court
Three main issues related to rampant Tribunalisation

First:

These tribunals do not enjoy the same constitutional protection as high courts
The appointment process and service conditions of high court judges are not under the control of the executive
The enormous institutional investment to protect the independence of high courts is dispensed with when it comes to tribunals
Many tribunals still owe allegiance to their parent ministries
Tribunals are also not as accessible as high courts
For example, there are just four benches of the Green Tribunal for the whole country
In comparison, high courts were easily accessible for environmental matters

Second:

Conferring a direct right of appeal to the Supreme Court from tribunals has changed the Supreme Court from being a constitutional court to a mere appellate court
It has become a final clearing house for every appeal under every statute
The Supreme Court should be a court of last resort deciding cases of the moment, and not a final forum with an all-embracing jurisdiction over disputes ranging from a custody battle to the scope of a municipal by-law
If high courts were to exercise appellate jurisdiction over orders of tribunals, they would act as filters
Enabling the Supreme Court to confine itself to those substantial questions where there is divergence among high courts

Third:

The high courts are the training grounds for future SC judges
When high court judges deal with several cases under a particular area of law, they carry with them the benefit of their experience and insights to the SC
When high courts are side-stepped in favour of tribunals, Supreme Court judges hearing appeals from tribunals would have to deal with the finer nuances of disputes under specialised areas of law for the very first time
This is not ideal for a court of last resort

Original jurisdiction of the SC

The jurisdiction of high courts is also undermined by the SC when it directly entertains various writ petitions
When the Supreme Court exercises original jurisdiction, it deprives the citizen and the state of the right to challenge potentially erroneous orders
A classic instance is the Supreme Court’s ruling in the 2G case
To overcome this ruling, the President had to invoke the advisory jurisdiction of the SC
The ordinary citizen enjoys no such privilege
This difficulty becomes even more acute when the SC takes on a legislative role by framing guidelines in the larger public interest
Neither the individual nor the state has an effective remedy to challenge these norms

The way forward

It has been asserted that when the Supreme Court decides an issue, it avoids conflicting judgments of the high court
This is untrue. The SC is in a better position to resolve a dispute when it is confronted with two conflicting high court rulings on the same issue
If high courts lose their prominence, India’s justice delivery system will be the principal loser

Source: