Supreme Court Raises Concerns At Tribunal Benches Being Presided By Non-Judicial Members, Seeks AG's Response

In a crucial development, the Supreme Court today (February 21) took up for consideration the issue as to whether Tribunals/Commissions across the country, like the National Consumer Disputes Redressal Commission (NCDRC) shall comprise of a Judicial Member, who shall also be the Presiding Member.

Yesterday, the Bench of Justices Surya Kant, Dipankar Datta and KV Viswanathan had called on Attorney General R Venkataramani to appear and assist in the matter. Today, the bench asked the AG to examine the composition of various Tribunals (or Commissions, Appellate Authorities, etc.) constituted under Articles 323A and 323B of the Constitution as well as statutes, and file a compilation regarding the composition of Benches thereof (especially Judicial members). The Court also instructed the appellant's counsel to formulate issues in the meantime.

The matter is next listed for consideration on April 3, 2024.

Today, at the outset, Justice Kant lamented the fact that the top Court has to often sit in appeal over decisions of various Commissions/Tribunals constituted only by a Technical Member. He said that though some decisions in the past have been well-reasoned, "invariably", the quality of writing in the others was "extremely" poor.

He further expressed displeasure at the fact that Judicial Members of Tribunals/Commissions, with their judicially trained minds, are often sitting as Junior Member on the Benches and not authoring decisions. In some instances, it was added, the Chairpersons/Presidents themselves constitute the Benches in a manner such that they are presided solely by Non-Judicial Members.

Questioning the AG as to why it should not be made mandatory for two-member Benches to be comprised by atleast one Judicial Member, Kant J said,

"Tribunals are a very effective alternative modicum of justice delivery and their orders ultimately land up before us...we have to really see that what kind of quality of order they are passing"

Speaking for the Bench, the Judge further suggested that wherever Tribunal/Commission Benches are constituted by a Single Member, the same should be a Judicial Member.

In response, the AG drew the attention of the Court to the fact that a challenge to the Tribunal Reforms Act (which deals with appointment of Tribunal/Commission Members) is pending for consideration by a Constitution Bench of the Court. He further mentioned that the issue raised is also before the Delhi High Court.

Distinguishing the statutory aspect of the matter from the practical internal management issues in Tribunals/Commissions, the AG said that whenever a statute provides for a Tribunal/Commission to be constituted in a particular manner, that provision governs the field. However, in certain statutes, such as the one under which NCDRC is constituted, there is no explicit provision saying whether the Bench should comprise a Judicial or Technical Member (or how many). It is the President who constitutes the Bench.

On the strength of this submission, he suggested that the statute may require a second look and sought time to come back with the government's response.

At the same time, the AG highlighted how the issue of selection of Tribunal/Commission Members, which is being raised in various High Courts and even the Supreme Court, was giving rise to working management difficulties.

During the hearing, Justice Viswanathan reflected on the jurisdictional aspect of the matter and said to the AG, "look at the jurisdiction that the National Commission is exercising...ordinarily it would have been suits, now they are hearing insurance claims, builder buyer disputes...there has to be a judicial component...the law has always been it is to be predominantly a judicially...a judicially trained mind not being there, how will they grapple with the issues?"

"It is the determination and adjudication of the rights of the people or the litigant, which is predominantly the responsibility assigned under the conventional system to the Court...we are creating an alternative to the Court and in that alternate, if there is lack of a judicially trained mind in the adjudication, in the writing of the decision...particularly when a Single Bench is presided by a Technical Member and the appeal comes to us...the question is what kind of quality assistance we get out of such order?", added Kant, J.

Going deeper into the issue, the Bench envisaged a situation where a Bench of a State Commission, presided by a former Judge of a High Court, may pass a decision which is ultimately challenged before the National Commission. It drove the concern that such appeal may be heard and decided by a Technical Member of the National Commission.

The AG conceded that if a statute postulates or gives rise to a situation where an original case before the National Commission may be heard by a Single Member Bench, that too Non-Judicial, the statute may be wrong. However, he clarified that the statute constituting NCDRC does not give rise to such an incongruous situation; it simply does not differentiate between a Judicial and Non-Judicial Member.

Justice Kant was quick to point, "if the statutory provision is silent, then definitely it requires to be interpreted or construed in a manner that [...] there has to be a judicial member and it should be interpreted to save the faith and trust of the [people]."

The AG pressed that due to huge pendency of cases and vacancies, there is an internal management issue and the same may be dealt with as such because there is no case of violation of the law. He urged that instead of the Court reading down, the statute itself could be amended, which would be a straight answer. Subsequently, the internal management issues can be dealt with.

The appellant's counsel, on the other hand, referred to Section 58 of the Consumer Protection Act, 2019 and contended that there is no question of a Single Member hearing the matter. Sub-section (2) of this Section provides,

"The jurisdiction, powers and authority of the National Commission may be exercised by Benches thereof and a Bench may be constituted by the President with one or more members as he may deem fit:

Provided that the senior-most member of the Bench shall preside over the Bench."

Taking note of the same, Kant, J said that the statute permits even Single Member Benches and it may have to be seen if this suffers from any arbitrariness. Referring to the proviso of Section 58(2), the judge noted that the seniority of Members is subject to executive action, inasmuch as despite the selection of Judicial & Non-Judicial Members being made cumulatively, the executive can choose to notify appointment of Non-Judicial Members in advance (which would give them seniority for life).

Recalling Rojer Matthew v. South Indian Bank Ltd. (where a Constitution Bench quashed the 2017 Tribunal Rules but referred one issue to a larger Bench), the Court asked counsels for the parties to find and place before it the reference order.

In context of the AG's submission that challenge to Tribunal Reforms Act is pending before the Court, it was stated that the issues under consideration in that case related to manner of appointment, tenure, etc. However, once a Tribunal is established, how it shall function internally and how judicial independence in day-to-day functioning is to be ensured are different aspects.

The AG conceded and said that he understood the Court's concern for judicial presence in Benches of Tribunals/Commissions.

Before listing the matter, Justice Kant commented "Litigants have their own opinion about the extent to which there is judicial infusion in the decision-making process...moreover, judgment writing is an art, you can't learn in months...it takes life to learn the art of writing judgments".

Case Title: THE NEW INDIA ASSURANCE CO. LTD. Versus M/S ACZET PRIVATE LIMITED, C.A. No. 3743/2023

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