India: Vacant Tribunals: Crowding Litigants

'Justice delayed is justice denied' as an adage is commonly understood and will safely find no or very less opposition in any civic society. First brush with this adage was as a law student, however, it is as relevant as when visited first. Unfortunately, its relativity in Indian context never seems to fade away. Recently, as per the response to a query in Rajya Sabha¹ , as per Ministry of Law and Justice the total number of cases pending before following Courts are:

While disposal of pending cases has gathered much steam in recent times, need for additional judges in all the Courts is well known. Delay in the context of justice dispensation is undeniably painful for a litigant and such delay becomes even more agonizing when statutory commissions and tribunals established for such specific (mostly speedy) adjudication of disputes and exercise of delegated legislation is marred by delay or nonfunctioning.

Conceptually, tribunals have been established for being cost-effective, accessible, free from technicalities, expeditious, rapid and efficient being manned by experts. The concept of tribunalization was developed to overcome the crisis of delay and backlogs in the administration of justice. In this regard, Law Commission of India Report No. 272² issued back in 2017 highlights the plight of high pendency.

Failure to function for non-appointment of members/chairpersons due to lethargic approach by selection committees and central/state government despite being in the know of such vacancies well in advance, is no less than tragic for a litigant.

Recently, Supreme Court (SC) in Rojer Mathew v South Indian Bank Ltd & Ors³ pointed out the imperative need for the process of appointments to the tribunals to be seamless in order to fill vacancies arising from retirement or unforeseen causes and large-scale vacancies having the affect of rendering tribunals defunct. SC observed that 'The surest way to deny access to justice is to keep a large number of vacancies' and further held that keeping vacancies unfilled for tardy procedures or other reasons denudes the efficacy of the tribunal as a dispute resolution mechanism. Referring to its view in L. Chandra Kumar⁴ , it reiterated that there should be one wholly independent agency for the administration of all tribunals and highlighted that efficiency of tribunals is getting marred by huge backlogs. Resultantly, it went on to direct Central Government to formulate a new set of rules ensuring non-discriminatory and uniform conditions of service, including assured tenure and undertake the 'judicial impact assessment' of all the tribunals referable to the Finance Act 2017 and submit findings before competent legislative authority.

SC as recent as August 2020, twice extended the term of Mr. V.K. Jain, Member (Judicial) NCDRC due to time being taken in selection and appointment of new Member (Judicial) by the government⁵ . History seems to repeat itself too often and through a familiar script in the context of vacancies in such statutory/quasi-judicial forums. The recent forum falling prey to such lackadaisical approach is Central Electricity Regulatory Commission ('Central Commission'), which is not functioning since August 28, 2020 in terms of the order of SC ⁶

Central Commission's functioning is restricted due to non-appointment of Member (Legal) and being contra to SC's judgment dated April 12, 2018 in the matter of State of Gujarat & Ors v. Utility Users Welfare Association & Ors⁷ , wherein, interpreting provisions of the Electricity Act 2003 (Act), the Court held that there should at least one person possessing requisite legal expertise and qualification in law as member of state commissions for carrying out adjudicatory functions. Through this decision, it also directed that every vacancy arising in such commissions, post the date of judgment should be first filled with the Member (Legal). For Central Commission not being benefitted with the appointment of Member (Legal) upon a vacancy arising (and member finance having been appointed prior), functioning of Central Commission has been stopped by the SC.

Central Commission has an approximate pendency of nearly 1005 petitions/applications pending adjudication of which nearly 177 are reserved for orders, 110 are at the hearing stage and 256 are pending completion of pleadings with 456 petitions / applications pending scrutiny. Section 78 of the Electricity Act provides for constitution of the Selection Committee which is entrusted with responsibility of selecting Members of Appellate Tribunal and the Chairperson and Members of Central Commission. Section 78(5) and 85(2) provides a period of one month (in case of death, resignation or removal) and six months before superannuation or end of tenure for making a reference to the Selection Committee and the Selection Committee in-turn [through Section 78(6) and 86(3) of the Act] has been mandated a period of three months from the date of such reference to finalize the selection. Even the appointments to the Appellate body established under Section 110 of the Electricity Act 2003 has been marred by similar approach for appointments of chairperson and/or members. Despite the time frame being mandated in the Act, appointments have taken their own time, leading to over-burdening of one Bench or the serving Judicial/Technical Member. Bearing in mind the need to expeditious disposal of appeals filed before Appellate Tribunal, Section 111(5) of the Act provides for an endeavor to dispose of such appeals within 180 days from the date of receipt of such appeal. However, the intent for expeditious adjudication is bound to be defeated in absence of timely appointments.

Further, non-functioning of the Central Commission has led to added burden on the already burdened Appellate Tribunal as all urgent matters that were to be adjudicated before Central Commission are now being taken up by the Appellate Tribunal⁸. Pendency of disputes not only includes the contractual disputes between the generators and licences but also include tariff fixation for power generating and transmission companies. Since most of the claims for stakeholders are in the nature of pass through with interest in form of carrying cost (owing to delay in recovering payments not attributable to entity claiming such cost) which is ultimately passed on to the end consumer i.e. public at large.

One of the prominent purpose of tribunalization is speedy justice, however due to self-created conundrum sufferer is the one who has no or minimal say in the process. All concerned stakeholders must recognize the urgency and make necessary amends where required. Lastly, need for justice dispensation has had many words in its favor but it is not misplaced to quote Ciecro who propagated that 'justice is the crowning glory of all virtues'. And for history repeating itself, our first brush with adage 'justice delayed is justice denied' also could not find a more suitable rhetoric.

Footnotes

1. Response to unstarred question no. 1381 in Rajya Sabha by Ministry of Law and Justice

2. "Assessment of Statutory Frameworks in India" issued in 2017

3. (2020) 6 SCC 1

4. L. Chandra Kumar v. Union of India (1997) 3 SCC (L&S) 577

5. Kudrat Sandhu v. Union of India; Order dated August 26, 2020 in Misc Appl No. 919/2020 in WP (C) No. 279/2019

6 .Orders dated 28.08.2020, 25.09.2020 and 26.10.2020 passed in Contempt Petition No 429 of 2020 titled as K K Agarwal v. Sanjiv Nandna Sahai & Anr

7. (2018) 6 SCC 21

8. The Appellate Body has total 4 members (2 'Judicial' and 2 'Technical' members) including chairperson and sittings are conducted in two separate benches.

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