SC concerned over non-judicial members heading tribunals, commissions

A bench comprising Justices Surya Kant, Dipankar Datta, and KV Viswanathan while deliberating on the issue of whether tribunals/commissions across the country, like the National Consumer Disputes Redressal Commission (NCDRC) should comprise a non-judicial member, who shall also be the presiding member, asked the Attorney General to examine the composition of various tribunals (or commissions, appellate Authorities, etc.) constituted under the Act.

The court directed Attorney General R Venkataramani to examine the composition of various tribunals, commissions, appellate authorities, etc. constituted under Articles 323A and 323B of the constitution as well as statutes, and file a compilation regarding the composition of benches thereof, especially Judicial members.

The Court also instructed the appellant's counsel to formulate issues in the meantime.

The court said though some decisions in the past given by a technical member have been well-reasoned, "invariably", the quality of writing some orders was "extremely" poor.

Justice Kant lamented the fact that the top court has to often hear appeals over decisions of various commissions/tribunals constituted only by a technical member.

Justice Kant said that the judicial members of tribunals/commissions, with their judicially trained minds, are often sitting as junior members on the benches and not authoring decisions.

In some instances, it was the chairpersons/presidents themselves who constituted the benches in a manner such that they were presided solely by non-judicial members.

Justice Kant asked the AG why it should not be made mandatory for two-member benches to comprise at least one judicial member.

“Tribunals are a very effective alternative modicum of justice delivery and their orders ultimately land up before us...we have to see what kind of quality of order they are passing"

Justice Kant further said wherever tribunal/commission benches are constituted by a single member, the same should be a judicial member.

The AG told the court that a petition challenging the Tribunal Reforms Act (which deals with appointment of Tribunal/Commission Members) is pending for consideration by a constitution bench of the Supreme Court. He further mentioned that the same issue is also pending before the Delhi High Court.

Distinguishing the statutory aspect of the matter from the practical internal management issues in Tribunals/Commissions, the AG said that whenever a statute provides for a Tribunal/Commission to be constituted in a particular manner, that provision governs the field.

However, in certain statutes, such as the one under which NCDRC is constituted, there is no explicit provision saying whether the bench should comprise a Judicial or Technical Member (or how many). It is the President who constitutes the bench.

The AG suggested that the statute may require a second look and sought time to come back with the government's response. At the same time, the AG highlighted how the issue of selection of Tribunal/Commission Members, which is being raised in various High Courts and even the Supreme Court, was giving rise to working management difficulties.

Justice Viswanathan pointed out the matters on the jurisdiction issue and said, "Look at the jurisdiction that the National Commission is exercising...ordinarily it would have been suits, now they are hearing insurance claims, builder buyer disputes...there has to be a judicial component...the law has always been it is to be predominantly a judicially...a judicially trained mind not being there, how will they grapple with the issues?"

Justice Kant asked, “It is the determination and adjudication of the rights of the people or the litigant, which is predominantly the responsibility assigned under the conventional system to the Court...we are creating an alternative to the Court and in that alternate, if there is lack of a judicially trained mind in the adjudication, in the writing of the decision...particularly when a Single Bench is presided by a Technical Member and the appeal comes to us...the question is what kind of quality assistance we get out of such order?"

The Bench said, look at a situation where a Bench of a State Commission, presided by a former Judge of a High Court, may pass a decision which is ultimately challenged before the National Commission. What will be the outcome if that appeal is heard and decided by a Technical Member of the National Commission?

Justice Kant said, "If the statutory provision is silent, then definitely it requires to be interpreted or construed in a manner that there has to be a judicial member and it should be interpreted to save the faith and trust of the people, The judge said."

The AG suggested that due to the huge pendency of cases and vacancies, there is an internal management issue and the same may be dealt with as such because there is no case of violation of the law.

The appellant's counsel, referred to Section 58 of the Consumer Protection Act, 2019, and contended that there is no question of a Single Member hearing the matter.

Sub-section (2) of this Section provides, "The jurisdiction, powers, and authority of the National Commission may be exercised by Benches thereof and a Bench may be constituted by the President with one or more members as he may deem fit:

The AG conceded and said that he understood the Court's concern for judicial presence in Benches of Tribunals/Commissions.

Justice Kant commented "Litigants have their own opinion about the extent to which there is judicial infusion in the decision-making process...moreover, judgment writing is an art, and you can't learn in months...it takes life to learn the art of writing judgments"

The matter is next listed for consideration on April 3.

(With UNI inputs)