It's time for Indian courts, tribunals to start getting specialist judges

The Supreme Court some days ago declared National Tax Tribunal Act, 2005 as unconstitutional on the ground that such tribunal would stand compromised if the government, which is the major litigant and appellant in tax matters, were to appoint its presiding officers. It is an entirely legitimate concern but the moot question is couldn’t the honorable court have refrained from throwing the baby with the bathwater and only struck down the specific provisions vesting the government with the power to appoint judges of the tribunal as unconstitutional?

Of course the government can make a fresh piece of legislation to constitute a National Tax Tribunal after addressing the concern expressed by the apex court. But then a perception has been engendered that the Supreme Court has struck down the National Tax Tribunal Act, 2005 for its ambition to sidestep the higher judiciary which is not the case.

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There is no reason why the proposed Judicial Appointment Commission (JAC) should not take on this additional responsibility as well – the selection of judges of all tribunals constituted under article 323 A of the Indian constitution. As it is, the law on the anvil seeks to regulate appointment of Supreme Court and High Court judges alone. All these tribunals perform judicial functions or quasi-judicial functions, and therefore there is no reason why they should not come under the realm of the proposed JAC.

Tribunals in the past have been the happy hunting ground for bureaucrats and retired bureaucrats who curry favour with the government of the day and wangle a position in these institutions of justice. To be sure, some of them have been deserving, but it is equally true that eyebrows have been raised often over those occupying these august offices. The JAC must, through its regulations, prescribe the qualifications for appointment to various tribunals.

While niche knowledge must figure at the top of mandatory qualifications – a hydrocarbon authority must have a hydrocarbon specialist at the helm as well as down the system – legal qualifications must also be insisted upon lest basic principles of natural justice are given a go by. In this regard, a leaf may be taken from income tax appellate tribunals which comprise a judicial and technical member with the idea being while one would focus on the fundamental principles of natural justice among others, the other in his capacity as a repository of tax and accounting knowledge would understand the nitty-gritty of the issues involved. They complement and supplement each other.

It is not as if the idea of specialist judges is novel. Our High Courts and the Supreme Court divide their work among the judges in such a manner that one’s forte is brought to the fore where utilization of his/her talent is concerned. But tribunals are the ultimate fact-finding authorities. In other words, an appeal to High Court and the apex court lie only on issue of law and not on facts. It is therefore desirable that the ultimate fact finding authority is armed with domain knowledge besides of course being equipped with the legal acumen.

Doctors all over the world specialize these days. In fact there are specialty and multi-specialty hospitals that having doctors who know the entire body all right so as to take a holistic view of an ailment, but who bring to the table their unique specializations. Even in the legal world, legal eagles specialize, with there being criminal lawyers, tax lawyers, etc. There is thus no reason why there shouldn’t be niche judicial systems as it were. In fact Article 323A empowering the Parliament to constitute administrative and other tribunals goes on to say that such tribunals can even oust High Courts which means there was nothing wrong in National Tax Tribunals replacing High Courts in tax matters. The apex court has been alive to this provision of the law and has thus been careful in not striking down the tax tribunal law on the ground of marginalizing High Courts, but only on the limited ground of it potentially fostering lack of objectivity.

Arbitration often is the preferred choice of business community for the precise reason that experts in shipping should be arbitrating shipping disputes and oil experts adjudicating oil disputes. But arbitration is nothing to write home about in India given the fact that the losing side ultimately knocks at the court of higher judiciary on some ground or the other. That however is another story.