Make Tribunals The First Court

Context: A draft law to wind up a few tribunals and move their appellate jurisdiction to the High Courts presents an opportunity to leapfrog and make tribunals the first court.

Overview of India’s Appellate Tribunal System

• Wider coverage: Since the 1990s, a proliferation of regulators on the principle of “See a market, create a regulator; See a regulator, create a tribunal” is noticed. Some have done well – E.g.
  • Securities Appellate Tribunal (SAT) jurisdiction has been extended to the financial sector over regulatory decisions in insurance and pension sectors.
  • Telecom Disputes Settlement Appellate Tribunal (TDSAT) expanded for resolution of disputes among service providers.
• Appeals lie in Supreme Court: on questions of law as a matter of statutory right.
• Recent mergers: Multiple appellate tribunals were merged into other tribunals — e.g., the Competition Appellate Tribunal was merged into the National Company Law Appellate Tribunal.

Problems in India’s Appellate Tribunal System

• Issue with mergers without transferring members: wiping out the intellectual bandwidth and institutional intellectual memory.
• Cross-jurisdiction of HCs: Which do not have experience in handling regulatory litigation.
• Poor regulatory architecture: Regulators with powers of civil court lack in being judicial in their demeanour, this is due to -
  • Inherent cognitive dissonance in design: the principle of separation of powers is subverted. E.g. one cannot expect a policeman to also be an effective magistrate).
  • It wastes the energy and time of the courts and the tribunals.

Way Forward: Convert Tribunals into Courts of First Instance (like United Kingdom’s “Upper Tribunal”)

• Transfer appellate powers to the high court: i.e. appeals from tribunals could lie in high courts on questions of law and fact.
• No statutory right to appeal from high courts to Supreme Court (always having constitutional provision of “special leave to appeal” ) need to be provided.