| Some existential questions for Indian tribunals |
|
The Supreme Court has reserved judgement on a constitutional challenge to Article 323- B of the Indian Constitution, the very provision of law that enables the creation of tribunals. The outcome of this challenge will determine whether the movement of justice delivery administration from the judiciary to the executive violates the basic features of the Indian Constitution. In a celebrated and historical case law ( google " Keshavananda Bharati"), it has been held by the Supreme Court that an amendment to the Constitution of India may be effected only if it does not alter the basic features of the original Constitution. In another petition, the Supreme Court is hearing a petition challenging the creation of tribunals under the Companies Act, 2013. The provisions in this legislation are directly in conflict with an earlier ruling of a constitutional bench of the Supreme Court laying down safeguards, based on which tribunals under the earlier version of company law were held to be constitutionally valid. In fact, when hearing the petition for admission, the bench remarked that the petition is in the form of " execution proceedings"— enforcement of an earlier order passed by the court. This case highlights how in the teeth of earlier Supreme Court rulings on constitutional validity, civil servants and ministers in government can pilot legislation through Parliament — an indicator of how justice delivery too can be disrupted, when handled by executive government. The Chief Justice of India recently lamented over how difficult it has been to find retired judges with qualifications set out by Parliament, to man quasi- judicial tribunals. According to him, candidates who covet the office are unfit, while coveted candidates do not want office. This raises yet another important question: If a whole lot of expectations of an effective legal framework rides on the hope of highly- empowered regulators being checked and balanced by high- quality appellate review by tribunals, would the inability to man the tribunals easily not render the objective still- born? The amendment to enable creation of tribunals was inserted in the Constitution in 1970s. However, since the 1990s, the creation of tribunals has been taken as an accepted norm in the past two decades. Specific areas of jurisdiction in which tribunals could be set up, were spelt out. This amendment also enabled removal of civil courts from exercising jurisdiction over determining questions that such tribunals could determine. Over time, regardless of the areas spelt out in Article 323- B, setting up of tribunals has become par for the course in reliance on the general lawmaking power — for example, Article 323- B does not have specific reference to company law or securities law, but the power to make law on these subjects have been used to create tribunals. Despite playing the justice delivery role, administrative responsibility for tribunals is typically with the ministries of the government that administer the statutes under which the tribunals are created. The tribunal's letterheads say they are part of the ministries in the government. Even the law ministry and its department of justice does not get involved in ensuring that the tribunals are well serviced by the government the way they have to ensure that the judiciary is well serviced. Retired judges who get convinced to join tribunals are at the mercy of civil servants in the administrative ministries for policy governing their day- to- day functions. The efficiency of a tribunal is often linked to the respect, interest and seriousness that the incumbent minister holds for the quasi- judicial functioning in her ministry. The Supreme Court could well rule that these facts can break down the aloofness that the judiciary is required to maintain from the executive arms of the State — tribunals could well become an aspect of the " committed judiciary" Indira Gandhi desired. Numerous tribunals have been empowered to adjudicate important questions of law and appreciate complex facts. Typically, the determination of questions of fact end with the ultimate appellate tribunal and questions of law can be carried further to the Supreme Court. The Supreme Court has had occasion to consider the constitutional validity of tribunals in the past, but typically on specific aspects of their powers. This time, the Supreme Court would determine whether the social reality in India's justice administration through tribunals indeed breaks down the very basic structure of the Constitution. Clearly, governmental apathy towards the formation, manning, and administration of tribunals has led to some serious existential questions being asked. (The author is a partner of JSA, Advocates & Solicitors. The views expressed herein are his own.) somasekhar@ jsalaw. com Retired judges who join tribunals are at the mercy of civil servants in the administrative ministries for policy governing their daytoday functions WITHOUT CONTEMPT SOMASEKHAR SUNDARESAN |
| BRIEF CASE |
|
The Supreme Court has resolved an apparent conflict of views in its earlier judgments regarding the validity of gifts and stated that a gift of property would not be invalid if the possession is retained by the donor. " There is no provision in law that ownership in property cannot be gifted without transfer of possession of such property," the judgment said and added that possession of the gifted property is not essential for validity of a gift. In this case, Renikuntla Rajamma vs K Sawranamma, the donor retained the right to use the property during her lifetime. She also received rents. It was contended that since she retained the use of property the gift was invalid. Inasmuch as the gift deed failed to transfer title, possession and the right to deal with the property in absolute terms in favour of the donee the same was no gift in the eyes of law, it was contended. Rejecting the argument, the Supreme Court discussed Sections 122 and 123 of the Transfer of Property Act and stated that the retention of benefit did not affect the transfer of ownership in favour of the donee by the donor. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Bounced cheque penalty quashed In a dispute between a property dealer and his driver over a bounced cheque, the Supreme Court last week set aside the order the Karnataka High Court which imposed a fine of ₹ 8.5 lakh on the master. The property dealer issued a cheque of ₹ 5 lakh to his driver to buy the latter's land. But the driver reneged from the sale agreement. Therefore, the master issued stop payment instructions to the bank. The driver filed a criminal complaint under Section 138 of the Negotiable Instruments Act against his master. He alleged that there was no sale agreement and he had given his master a hand loan of ₹ 1.75 lakh four years earlier. Though this version of the driver was disbelieved by the trial court, the high court found substance in it and punished the master. The businessman appealed to the Supreme Court and alleged that the driver, whom he paid ₹ 2,500 as monthly salary, had cooked up a story that he had given a hand loan. The Supreme Court examined the evidence and acquitted the property dealer in its judgment, Ramadas vs Krishnand. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 54- year- old litigation closed The Supreme Court last week closed a 54- year- old litigation over a piece of land in Kolkata on which a hospital had come up. The land had been changing hands along with litigation over its ownership, and with the coming into force of the Urban Land Ceiling Act, the West Bengal government also claimed ownership and handed over the land to the hospital. However, the high court ruled that the land was not surplus land and it could not be taken over. Meanwhile the hospital had already been running. Therefore, the owner could get only compensation, utilisation charge, interest and cost of litigation for the whole period. The Supreme Court, while deciding the case, Somnath Chakraborty vs Appollo Gleneagles Hospitals Ltd, directed the latter to deposit ₹ 420 lakh in the court, so that it could be paid to the owner on showing the title deeds. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> VRS does not bar pension The Supreme Court has ruled that employees of public sector State Bank of Patiala who accepted a voluntary retirement scheme are entitled to pension if they had worked for 20 years. Similar cases from other public sector banks also have been quoted in the judgment to assert the right of the retiring staff. In this case, State Bank of Patiala vs Pritam Singh, the bank challenged several orders of the high court which had ordered payment of pension. The apex court dismissed all of them citing the pension regulations for public sector banks. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> FCI petition on arbitration rejected The Delhi High Court has dismissed a writ petition moved by Food Corporation of India, seeking a direction that it should not be charged enhanced fee demanded by Indian Council of Arbitration. The high court stated that "issues as to what amounts the Indian Council of Arbitration can charge can be decided in an appropriate proceedings, but definitely not by means of a writ petition." The court noted that there were 325 arbitration proceedings between the corporation and millers and most of these have been completed. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Board snubbed on daily wage issue The Gujarat High Court has dismissed the appeal of the state Water Supply & Sewage Board and criticised it for violating its own policy for regularising workers kept on temporary basis for five to 15 years. In 1988, the government had passed a resolution to regularise workers in service. In 1994, it decided not to take temporary workers. But the board continued to take such workers and kept them for many years on daily wages. They moved the high court. The court held that the grouping of daily wagers on the basis of cut- off date of 30.11.1994 to deny benefits of Government Resolution dated 17.10.1988 were " illegal and arbitrary." On one hand, the board issued circular that no daily wagers shall be appointed from 30.11.1994 and " still the very board appointed hundreds of daily wagers in gross violation of their own policy and after passage of more than 15 years terming the action of appointing these daily wagers as illegal cannot be accepted and needs to be rejected. The board cannot punish others for their own wrongdoings," the judgment said. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Cancer charity wins tax case The Income Tax Appellate Tribunal in Mumbai has quashed the order of the revenue authorities cancelling the registration of the Cancer Aid and Research Foundation for alleged violation of its aims and objects. The main object of the foundation was to provide monetary, medical and other assistance to poor people suffering from cancer. The authorities took action against the organisation on the ground that it had bought a BMW car costing ₹ 32 lakh for a trustee, and it offered for commercial sale land allotted to it in Ratnagiri for a cancer hospital. The tribunal rejected these and other objections. The luxury car was bought for the trust though the dealer named the trustee as owner in the invoice. The land was offered for sale because the hospital could not be completed as there were not enough donors. These objections raised by the revenue authorities were rejected and the tribunal asserted that the registration should not be cancelled. A weekly selection of key court orders |
--
Company Secretary
Chennai
93810 11200
__._,_.___
No comments:
Post a Comment