Tribunalisation of courts
1)
The
Madras High Court struck down key provisions relating to the Intellectual
Property Appellate Board (IPAB) established under the Trade Marks Act, 1999 as
unconstitutional.
2)
This is yet another interlude in the tussle between judiciary and
the legislature on the “tribunalisation” of courts.
3)
There has been much concern over the validity, character and
competence of several of the tribunals in India. The Supreme Court has
articulated the principles that a tribunal has to abide by in order to be
constitutionally valid.
4)
There are 29 different tribunals set up under various Central
legislations.
5)
The Court in Chandra Kumar (1997) and NCLT (2010) suggested that
the tribunals which were replacing the jurisdiction of the Courts should enjoy
the same constitutional protections as them.
Ø This meant that when the
jurisdiction is being transferred from a court to a tribunal, the members of this
tribunal should hold a rank, status and capacity which is as close to those of
the judges in a court as possible.
6)
The recent Supreme Court judgment which struck down the National
Tax Tribunals (NTT) also clearly spelt out the parameters to test the
constitutionality of tribunals.
7)
At stake are core principles of an independent judiciary and
separation of powers, a part of the basic structure of the Constitution.
8)
The crux of the present case is with regard to the qualification
and selection of Chairman, Judicial Member and Technical Member of the IPAB.
i.
Section 85(3)(a) of the Trade Marks Act allows members of the
Indian Legal Service holding a post of Grade 1 for at least three years, for appointment
as a Judicial Member of the IPAB. The High Court declared this
unconstitutional, suggesting that an officer working with the Executive cannot
act in a judicial capacity.
ii.
The court held that the recommendations of the Chief Justice of
India for the post of Chairman had to be given due consideration by the
Appointments Committee of the Cabinet (ACC), which until now considered this as
a mere suggestion.
9)
Tribunals are designed for speedy disposal of specialised
disputes. But a tribunal which is biased, incompetent and unfair, cause more
harm than serve such intended purposes.
-------------------------------------------------------------------------------------------------------------------------------------
Retrograde governance : Jat OBC quota
1)
The
Supreme Court struck down the March 4, 2014
notification issued by the then UPA government to include the Jats in the
Central list of OBCs for the nine States.
2)
The notification was issued despite a piece of advice to the
contrary by the National Commission for Backward Classes (NCBC).
3)
Terming the notification an instance of “retrograde governance,”
the court found that the government’s decision was based on statistics dated
over a decade ago.
4)
The judgment observed that
i.
The State should not go by the “perception of the self-proclaimed
socially backward class or advanced
classes” on who deserved to be categorised as the “less fortunates.”
classes” on who deserved to be categorised as the “less fortunates.”
ii.
The State should maintain an independent and high degree of
vigilance to discover emerging forms of backwardness in a continually evolving
society. “Possible wrong inclusions” into the OBC list in the past cannot be
basis for further inclusions.
iii.
A prominent reason for historic injustice in the country, could
not be the sole decider of backwardness of a class.
iv.
Inclusion of a community in the Central OBC list, based only on
historical injustices like caste, would lead to the “under-protection of the
most deserving backward class of citizens, which is constitutionally mandated
v.
The government was both judicially and statutorily bound to comply
with the NCBC’s decisions.
-------------------------------------------------------------------------------------------------------------------------------------
'Wilful non-compliance' of CIC order by political parties
1)
The Central Information Commission accepted that political parties were in violation
of its order, however it was unable to take any action against them. The
petitioners called it “an abdication of its responsibilities".
2)
This is the only case of non-compliance in the RTI’s history which
left the CIC suggesting that further action can be taken by the Union
government or by courts.
3)
The CIC in June 2013 deemed national parties to be ‘public authorities’
under the Act, to whom the provisions of the Act would now apply.
4)
The petitioners had sought penalties — including withholding of subsidies
like land at concessional prices — and compensation, but the CIC’s order finds
that the current provisions of the RTI Act do not allow for such penalty and compensation
to be awarded.
5)
This unusual case of wilful
non-compliance highlights the need to identify the legal gaps and lacunae in
the implementation mechanism of the RTI
act.
6)
Counter views :
i.
The CIC is not a court, but a quasi-judicial body. It is expected
to follow not the letter of the law, but the spirit of the
law. Following this, the Act clearly gives it the power to award penalty and compensation.
law. Following this, the Act clearly gives it the power to award penalty and compensation.
ii.
The CIC’s verdict will have far-reaching, dangerous consequences
when bodies declared by the CIC as public authorities will no more care to obey
the CIC’s directions, thus giving a final blow to the RTI Act by none other
than CIC itself.
http://www.thehindu.com/todays-paper/tp-national/cic-gives-in-to-parties-defiance/article7004905.ece
-------------------------------------------------------------------------------------------------------------------------------------
No comments:
Post a Comment