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The Supreme Court’s disquiet over mounting vacancies in high courts and tribunals and GoI’s delay in accepting SC’s recommendations for appointments reveal a dangerous divide. Many domain-specific tribunals were set up in the initial decades of liberalisation after HCs struggled with disposal of specialised matters. But neither have the pendency woes of HCs been sorted nor have tribunals achieved their aims.
SC judges who head statutory selection committees for tribunal vacancies have decided to stop working until 100 recommendations made since 2017 are appointed. 21 names recommended for NCLT and NCLAT (company law), 10 for NCDRC (consumer disputes), 35 recommended for ITAT (income tax) and 20 for AFT (armed forces) hang fire. Other tribunals like TDSAT (telecom), DRT (debt recovery), RCT (railways), and CAT are headless or plagued by crippling vacancies. HCs, where tribunal disputes land up, are faring no better with 455 vacancies among 1,098 sanctioned posts.
GoI-SC differences delaying appointments can be traced back to the 2015 SC strikedown of the National Judicial Appointments Commission as well as court negation of GoI attempts at restructuring tribunals since 2017. The Memorandum of Procedure to guide the post-NJAC collegium in judicial appointments remains in limbo. GoI’s move to regulate service conditions for judicial members of tribunals triggered resistance from the legal community. In July, SC ruled a 2021 Ordinance provision reforming tribunals contrary to principles of separation of powers and independence of judiciary.
On another plane of reality, the pandemic and social distancing norms have dealt a severe blow to functioning of courts and tribunals. In 2019, HCs had disposed of, by a small margin, more matters than were instituted. Cut to 2020, new matters instituted fell 33% y-o-y but disposal witnessed a staggering 53% crash, swelling pendency burden by 4 lakh cases. With normalcy creeping back, vacancies won’t help courts and tribunals hit the ground running. Like infrastructure, courts and tribunals are equally key to the India story. The ease of doing business experience depends on the speed of disposal of litigation and the quality of justice. End the ego and/or procedural battles.
This piece appeared as an editorial opinion in the print edition of The Times of India.