While deciding the constitutionality of certain rules on appointments to tribunals, a recent judgment of the Supreme Court has reopened the doors for officers of the Indian Legal Service to be appointed to tribunals. In doing so, this bench of three judges of the Supreme Court has set aside the ruling of a bench of five judges of the Supreme Court in the case of R. Gandhi v. Union of India (2010) prohibiting ILS officers from being appointed as judicial members on tribunals. A bench of three judges cannot over-rule a bench of five judges and to do so constitutes an act of judicial indiscipline which is hardly surprising in today’s Supreme Court.
The larger story that deserves more attention is the ILS and the role that it has played in the mess that is the Indian tribunal policy.
The little-known ILS was set up under the Indian Legal Service Rules, 1957, and meant to staff the Ministry of Law and Justice. Historically this cadre has had a rather limited role to play in government, usually as ‘in-house’ counsel. For example, the ILS cadre in the Legislative Department of the Ministry would vet legislation and ensure rules are complied with before they were to be introduced in Parliament. The legislation itself is mostly drafted by different Ministries of the Central Government but the Law Ministry is required to sign off on it before being brought to Parliament. Their other work is confined to the workings of the Law Ministry.
The ‘juicy’ legal work of defending the government in court and advising the government on heavy-duty matters has always remained the remit of the Attorney General, the Solicitor General, and various Standing Counsels who are drawn from practicing advocates at the Bar. Given the nature of duties discharged by the ILS, new recruits don’t need to have experience practicing law before the courts. The ILS Service Rules are clear about that aspect. Experience in ‘in-house’ government legal roles or teaching/research experience is sufficient to become a member of the ILS. Members of the state judicial service and qualified legal practitioners can also join the ILS.
Since the mid-1980s, the ILS has been quietly plotting a power grab for itself by writing legislation in a manner that allowed its members to be appointed as judges on new tribunals that were meant to take over the functions of High Courts. This included tribunals such as the Central Administrative Tribunals, the Intellectual Property Appellate Board, the National Company Law Tribunal, the Securities Appellate Tribunal, etc. This power grab is best illustrated with what happened with the IPAB which was created under the Trade Marks Act, 1999. In this case, a Joint Secretary of the ILS cadre who represented the government before the Parliamentary Standing Committee examining the Trade Marks Bill in 1993 was the Secretary of the Law Ministry in 1999 when the bill was finally enacted into law by Parliament and then the first Vice-Chairperson of the IPAB soon after it was created despite having no significant experience in matters of intellectual property or having practiced before the courts for at least a decade before his appointment, if not longer.
In the case of many of these tribunals, practicing advocates were not included in the class of persons eligible for appointment to post of judicial members on these tribunals. This exclusion was baffling, to say the least, because the Constitution allows only lawyers with experience of practicing before the courts to be appointed as judges to the High Courts (a ten-year practice requirement) or District Courts (a seven-year practice requirement). There is simply no rational explanation for excluding these lawyers, other than the fact that the ILS cadre wanted to corner these posts for themselves. Even more damaging was the fact that the ILS was drafting legislation in a manner that allowed them to have one foot in the judiciary and the other in the executive thereby collapsing the very basis of the separation of powers theory. To illustrate with an example, an ILS service member after completing his legislative term on the Securities Appellate Tribunal was subsequently appointed as the law secretary in 2012 i.e. the top bureaucrat of the Law Ministry. If members of judicial tribunals are hankering for government jobs their independence comes under a serious question mark.
The brazenness with which the ILS has carried out this power grab received judicial attention in the R Gandhi case where the constitutionality of the NCLT was under consideration. The Supreme Court came down heavily on the bureaucracy, debarring the ILS and other bureaucrats from being appointed as judicial members on any tribunals while keeping open the door for them to be appointed as technical members provided they had specialisation in the area. The Supreme Court also ended the practice of bureaucrats maintaining a lien over their posts in the executive while being judges on tribunals. It was made very clear by the Supreme Court that they would have to resign from the executive once appointed to the judiciary.
One of the problems with the Supreme Court’s holding in the R Gandhi case, excluding the ILS from holding the post of judicial members, was that it was bereft of any concrete legal reasoning. The issue of qualifications is largely a policy issue unless there is discrimination on the basis of gender or religion or a violation of the equal protection doctrine enshrined in Article 14, in which case courts can intervene. From a reading of the court’s judgments, it does not appear that the petitioner framed the arguments against the inclusion of the ILS in the language of Article 14.
The challenge going ahead is three-fold.
The first is how exactly is the government going to interpret the court’s holding on ILS officers because the court has stated that “…members of Indian Legal Service shall be entitled to be considered for appointment as a judicial member subject to their fulfilling the other criteria which advocates are subjected to”. If this holding is interpreted to mean that ILS members need to have experience practicing before courts then it is quite clear that they will continue to be disqualified from appointments to tribunals. However, given the clout that the ILS enjoy, it is very likely they will manage a more favourable interpretation of the court’s holding.
The second challenge is to restrain the impulse of the ILS to push for the creation of more tribunals. Now that the door for their appointments to tribunals has re-opened the ILS is going to be tempted to create new tribunals or rewrite existing qualification criteria to give themselves posts on existing tribunals.
The third challenge is to ensure that the selection committees are not unduly influenced or biased by the powerful ILS lobby when it comes to choosing from a mixed pool of practicing advocates and ILS officers. Given that the Selection Committee has bureaucrats sitting on it, including secretaries from the Law Ministry there is a very high possibility of influence peddling.
The long-running litigation over tribunals has seen a number of constitutional bench judgments being delivered by the Supreme Court. The petitioner in most of these cases has been the Madras Bar Association led by the very able Senior Advocate Arvind Datar. While this litigation has achieved a lot over four rounds of litigation spanning two decades, the fact of the matter remains that the only solution to this long-standing power struggle between the Bar and the bureaucracy, is to create a political consensus to keep the bureaucracy in check. The political class honestly does not care much about the creation of tribunals. In fact, Prime Minister Narendra Modi is on record questioning the efficacy of tribunals. The push for tribunals is coming not from politicians but from the bureaucracy. Rather than seeking a solution before the courts, the Bar actively needs to consider negotiating with the Law Minister, who himself is a Senior Advocate, to find a political solution to this issue even if it means holding street protests.
T Prashant Reddy is a Bengaluru-based advocate.
The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.