Farm Laws Show Irreverent Attitude To Justice Delivery System By Diluting Dispute Resolution Mechanism

Professor Dame Hazel Genn, Dean of the Faculty of Law, University College of London, gave a Lecture in the Lincoln's Inn on November 19, 2012^[2], on the Privatisation of the Civil Justice System. She concluded that it was a Rule of Law issue. She argued that in England, the government was making a concerted effort to shift the focus of justice delivery from public trials and decisions to private dispute resolution mechanisms. She likens the erosion of the public justice delivery system to something like Climate change. The impact of such a shift cannot be assessed daily or even yearly, but will gradually have a telling impact on the socio, political, economic conditions of a country and the Rule of law.

In India too, we have gradually been moving away from a public justice delivery system through Courts to a quasi-justice delivery system through Tribunals. Successive governments have consciously and deliberately weakened the Court structure by creating numerous Tribunals to deal with several kinds of disputes^[3]. Over the years disputes relating to government service, private employment, taxation, intellectual property, banking, monopolies, and consumer, to name a few have moved from Courts to Tribunals. While accepting that independence of the judiciary is a basic structure of the Constitution, the Supreme Court has however, failed to appreciate the effects of this climate change^[4] and the long-standing effect it has on the justice delivery system.

It is my argument that there is a concerted effort on the part of the Governments to dilute the system of justice delivery which will ultimately lead to a serious erosion of rule of law.

Scheme of the dilution:

I had written elsewhere that the legal system was being weakened by a silent invasion of the legal profession by non-lawyers^[5]. I had argued that the entire Tribunalisation of the justice delivery system over the years and permitting non-lawyers to plead and advise clients had led to an erosion in the justice delivery system. While I argued on the maladies affecting the system on this side of the table, the argument equally applies to the actions of the Government on the other side of the justice delivery system, i.e. in the process of appointments of judicial officers to preside over these tribunals. If we take a look at the challenges launched time and again, the focus has been on this very aspect viz., the appointment process, tenure, and constitution of the benches.

From L.Chandrakumar to Roger Mathews^[6], the Supreme Court time and again had reminded the lawmakers of the need for protecting the independence of the judiciary and the judicial system. The Court had stressed the need to set up an independent umbrella organisation to oversee the recruitment of members and functioning of Tribunals. Dependence on the parent Ministry or departments by the Members of the Tribunal for their facilities and administrative needs was found to be contrary to the principle of independence of the judiciary. Administration of the Tribunals by the sponsoring or parent Ministry or Department concerned and dependence for financial, administrative or other facilities by the Tribunals on the said Department which is a litigant before the Tribunal were some of the serious problems highlighted by the Court. Directions were given to the Ministry of Finance to earmark separate and dedicated funds for the Tribunals from the Consolidated Fund of India so that the Tribunals will not be under the financial control of the parent Departments. Directions for the establishment of an independent National Tribunals Commission was issued.

The lawmakers however seem to have turned a blind eye to these reminders. As has been the case in many other instances^[7], the lawmakers probably feel that they would be in a position to get over these judgments if they enact another law or amend the existing law. The observations made by the Supreme Court while dealing with the challenge to the Tribunals, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 is illustrative of this conduct by the executive arm of the Government.

The irony of this has been that the legal fraternity, barring a few legal scholars and jurists, has by and large been a mute spectator in these machinations. Bar councils and associations have either not understood the implications of these actions, or having understood the same, chosen to remain silent on the issues. The Courts have to some extent, turned a blind eye to these machinations. By giving elbow room to the executive, the Courts have, in a sense encouraged them to come up with laws to circumvent the judgments and make inroads into the justice delivery system.

The lament of the Court in Madras Bar Association vs. UOI^[8] where the issue of the validity of the Tribunals, Appellate Tribunal and other Authorities(Qualifications, Experience and other Conditions of Service of Members) Rules,2020 came up for consideration, is a clear indication of the recalcitrant attitude of the executive. The Supreme Court observed:

"That the judicial system and this Court in particular has to live these dejavu moments, time and again (exemplified by no less than four constitutional bench judgments) in the last 8 years, speaks profound volumes about the constancy of the other branches of governance, in their insistence regarding these issues."

As an Epilogue the Court went on to write:

"Dispensation of justice by the Tribunals can be effective only when they function independent of any executive control: this renders them credible and generates public confidence. We have noticed a disturbing trend of the Government not implementing the directions issued by this Court. To ensure that the Tribunals should not function as another department under the control of the executive, repeated directions have been issued which have gone unheeded forcing the Petitioner to approach this Court time and again. It is high time that we put an end to this practice. Rules are framed which are completely contrary to the directions issued by this Court….

The functioning or non-functioning of any of these tribunals due to lack of competence or understanding has a direct adverse impact on those who expect effective and swift justice from them. The resultant fallout is invariably an increased docket load, especially by recourse to Article 226 of the Constitution of India. These aspects are highlighted once again to stress that these tribunals do not function in isolation, but are a part of the larger scheme of justice dispensation envisioned by the Constitution and have to function independently, and effectively, to live up to their mandate. The involvement of this Court, in the series of decisions, rendered by no less than six Constitution Benches, underscores the importance of this aspect. The role of both the courts as upholders of judicial independence, and the executive as the policy-making and implementing limb of governance, is to be concordat and collaborative. This Court expects that the present directions are adhered to and implemented so that future litigation is avoided."

That the Supreme Court had to remind the executive of six Constitution Bench judgments to underline the need for clear rules to establish an independent body for the recruitment of members and supervision of Tribunals, is a significant indicator of the level of independence of the Tribunals these many years.

Tribunals to Collectors: Further dilution in the Farm Laws

The new Farm laws show the same irreverent attitude to the justice delivery system by a further dilution of the dispute resolution mechanism. I do not wish to deal with the merits, demerits, and constitutionality of the Farm laws. I propose to only look at the dispute resolution mechanism provided therein.

The law speaks of a compulsory Conciliation process by the formation of a Conciliation Board consisting of representatives of parties to the agreement. There may be no quarrel with adopting such a process for ensuring that conflict resolution happens amicably and smoothly. Upon failure of such a conciliation, either party would be required to approach the Sub Divisional Magistrate, who would enquire into the matter after allowing the parties concerned a hearing and pass an order having the force of a decree of a civil court. Appeal from such an order would be to the Collector or Additional Collector as nominated by the Collector. An appeal would require to be decided within 30 days. The Civil Courts' jurisdiction will expressly stand barred.

I visualise disputes are essentially going to be contractual. Farmers on the one side and corporations that procure the farm produce on the other. The starting point of such a contractual arrangement is between two parties with unequal bargaining power. Once the order is placed on a farmer, the corporation at the time of procuring the same might seek to raise issues of quality and coerce the farmer into reducing the price. The farmer could find himself pushed into a corner. The authority adjudicating the disputes will need to appreciate the terms of the contract, see if there are any unconscionable terms, interpret communications which could even be oral or by messages on the phone or even by conduct. A substantial part of the judicial application of mind will be on whether instructions were sent and accepted at crucial times. These are nuances of the law of contract and sale of goods. A fresh recruit (in this case a Sub Divisional Magistrate) in a Collectors office cannot be expected to what judges do day in and day out. by the law, to do these.

Thus, the entire process of dispute resolution is carried out without the involvement of any judicially trained mind. The farmer may not be able to access legal help but the counter party which is likely to be a Corporate, will have the assistance of a legal team/department. The deciding authority has a very responsible role to play in these circumstances. He has to be able to play a fine balance between being a Judge and an advocate for the underdog farmer. It is anyone's guess what will be the result of such an adjudicatory process if a trained legal mind is not examining the facts to arrive at a just decision.

The oft-repeated argument against this would be that Civil courts are all slow and painstaking. No relief would be afforded to a litigant who will have to wait for years on end to get justice before a Civil court. Those who proclaim lack of trust in the Court system believe the farmer has a better chance of getting quicker justice before an administrative authority. The process before an administrative authority would be faster, cheaper, and more efficient. It is certainly a very attractive argument given the speed of the legal system in courts.

The solution is not to dilute the justice delivery system, instead the solution is to strengthen and help speed it up. Strengthening the hands of the lower courts with more funds, making available better infrastructural support, making it worthwhile for judicial officers to take up the job with better salaries and better workplaces are some suggestions. There are laws enacted that fix strict time limits^[9]for dealing with various issues. Similar time limits can be fixed for dealing with these disputes arising out of the Farm laws. If a low-level administrative officer can be expected to handle the workload, why not a judicially trained officer? He is trained to assess matters with a judicial mind. The approach to any dispute would be a judicial approach and guided by well accepted principles of law. By simply substituting the Court with an administrative officer is not going to solve the problem. An administrative officer is not a judicially trained person. He is trained in administration. Not in deciding disputes after appreciating nuances in facts.

A creeping executive is seeking to make inroads into the justice delivery system which is likely to weaken it and affect the rule of law.

Conclusion:

'Tribunalisation' and now 'Executivisation' of the justice delivery system is clearly weakening the justice system. The selection cum appointment process, tenure, and conditions of service of the members of Tribunals make it impossible for tribunals to be independent. By doing away with the judicial process and handing over the same to the executive, the Farm laws would further weaken the justice delivery system and public faith in rule of law. If this is permitted this will become a new benchmark in future laws as well. A very vigilant bar and bench are required to stave this off.

Courts cannot view these attempts with kid gloves and permit these incursions as it has these past years. It is time that Courts use the hammer to strike down these attempts and restore public confidence in the dispensation of justice. If need be, the Supreme Court should issue directions to ensure that necessary infrastructural support is made available and enough funds are allocated for the smooth functioning of the Courts, especially the lower judiciary where the bulk of the work is done for the benefit of the citizens at large.

Executive over-reach happens when there is a Judicial under-reach. The solution is not to permit the Executive over-reach, but increase the length and width of the judicial hands. Judicial work can be done only by a trained judiciary. It must not be handed over to the Executive in administration. The hallmark of a trustworthy legal system lies in having a judicial system that is independent, accountable and transparent.