Tribunals were added in the Constitution by Constitution (Forty-second Amendment) Act, 1976 as Part XIV-A, which has only two articles viz. 323-A and 323-B.
Inter-State Water Dispute Tribunals
Article 262 of the Constitution lays down that the Parliament may by law provide for the adjudication of any dispute with respect to any inter-State river (ISR). Accordingly, the Parliament enacted the Inter-State River Water Dispute Act, 1956, which provides for the reference of such a dispute to an inter-state tribunal. The said Act bars the Supreme Court or any other Court from exercising jurisdiction in respect of any water dispute, which may be referred to a Tribunal under it. The main reasons for keeping river disputes out of the purview of the courts’ jurisdiction are:
- Ensuring the speedy disposal of ISR water disputes – Given that the jurisdiction of the SC is barred, the Act envisages the decision of tribunal as being final and binding. The idea was to avoid protracted court proceedings on account of the States litigating amongst themselves.
- Since resolution of ISR disputes hinges upon heaps of technical and scientific data, the resolution of such disputes by specialized tribunals would allow for better appreciation such data.
- Unlike courts which are required to strictly adhere to procedure and legalese, the proceedings before a tribunal are relatively more informal, thus enabling deliberative and discretionary decision-making for ‘mutually negotiated settlements‘. In this light, it can be argued that the rationale behind excluding the jurisdiction of courts was fairly well intentioned.
The problem lies elsewhere and have been well documented by many commissions including the Sarkaria Commission. These include:
- Inordinate delay in settling such disputes;
- Inadequate provisions for the enforcement of the Tribunal’s award;
- Non-compliant States
- They are too procedural and do not emphasis on negotiations and consensus.
- They are more focused on legal issues and not technical
- At the core of the entanglement is the constitutional anomaly, or the exception to Supreme Court’s jurisdiction whereby the inter-state water disputes tribunal neither falls under the Supreme Court’s nor any other court’s jurisdiction. This constitutional exception is why water tribunals cannot be bundled with other tribunals & made into one permanent tribunal as proposed by the National Water Policy 2012 and need careful consideration before any reforms.
The solution to these lies in amending the Inter-State River Water Disputes Act to strengthen provisions relating to timely settlement of disputes and enforcement of the award. In addition to this, the need of the hour is to develop a national outlook in relation to water resources and infuse a spirit of mutual accommodation in interstate relationship in order to create a favorable atmosphere to settle ISR water disputes.
National Tax Tribunals
Article 323 B allows the parliament to establish tribunals to deal with certain issues. Using this provision, several tribunals such asNTT (National Tax Tribunal), NGT, and ITAB etc. have been formed. Tribunals are formed with the objective to reduce the burden on courts, use administrative expertise in adjudicating issues, and quicken dispute resolution. However, tribunals have been a reason of dispute between the government and the judiciary.
The issues being raised by the judiciary are:
- It is not against the formation of tribunals. It is a constitutional right and hence alright. But, it is against the composition of them.
- Since tribunals deal with matters dealt with courts, they should have the same composition, autonomy, character, competence as the judiciary.
- SC says they should enjoy the same constitutional rank as the courts and should be headed by people with such capability.
- The tribunals should be institutionally as strong, should not depend on parent departments, impartial and independent. Judicial wisdom is more important than administrative experience in adjudicating disputes.
- While the government wants to put the judiciary hat on the executives, mere experience in civil service cannot be treated as technical expertise; there should be persons with expertise in the required domain.
- Also, bureaucrats can’t be the adjudicator as they lack judiciary experience so there is need of judicial members in the bench.
The arguments of the government are
- Tribunals are necessary for speedy resolution which the judiciary is not able to provide.
- Administrative experience is more important in dealing with the present complex issues.
Tribunals for PPP
Recommended by Vijay Kelkar Committee.
Indian economic growth has been marred by twin balance sheet syndrome with a huge quantum of capital especially stuck in stalled projects (mainly in infrastructure sector) and stressed banks unable to lend more. In this regard, the government of the day is planning to set up an independent tribunal for faster resolution of disputes relating to Public-Private Partnerships (PPP) and public procurement in the form of a two-tier framework of Infrastructure PPP Project Review Committee (IPRC) and Infrastructure PPP Adjudicatory Tribunal (IPAT).
- Speedy resolution of disputes
- Relieving stressed balance sheets of corporate sector
- Decreasing bank’s NPA
- More liquidity in the economy
- Completion of stalled projects like in infrastructure sector
Considering long delays in arriving at a final solution by the tribunals in the cases of river disputes, do you think setting up of tribunals was a right decision to resolve river disputes instead of handing over these cases to regular courts? Critically comment. (200 Words)
The tussle between the government and the judiciary has been going since the 1990’s when tribunals began to be set up to ease the burden on the regular courts. Elaborate the statement by giving examples of recent such tussles and critically comments on the view of the Supreme Court on the issue of setting up of tribunals. (200 Words)