The Supreme Court’s (SC’s) strong observations on Monday, on the government’s reluctance to fill up vacancies in various tribunals points towards India’s Achilles’ heel, that makes seeking justice a costly affair in the country. The Indian judiciary is counted among one of the most burdened institutions in the world. With 4.5 crore pending cases, it takes years to resolve business litigations, adding to the cost of doing business in India. Tribunals being quasi-judicial bodies, play an important role in expediting resolution of litigations in the country.
With 240 vacancies in several tribunals across the country, the list produced by Chief Justice Ramana revealed, among others, that Debt Recovery Tribunals across the country have 15 vacancies for chairpersons.
These vacancies include three vacant posts in Chandigarh and Delhi each and one each in Chennai, Cuttack, Ernakulam, Kolkata, Patna, Pune, Nagpur, Jabalpur and Dehradun. The chairperson's post in Kolkata's Debt Recovery Appellate Tribunal is also vacant.
In August, an SC bench led by Chief Justice of India NV Ramana presented the government with a list of vacancies in several tribunals. Telecom Disputes and Settlement Appellate Tribunal, Appellate Tribunal for Forfeited Property, and National Company Law Appellate Tribunal (NCLT) do not have chairpersons. There are about 25 vacancies for judicial members in the Income Tax Appellate Tribunal, and there are 27 posts to be filled for technical members.
There are about 25 vacancies in the Railway Claims Tribunal, while National Green Tribunal has 30 and Central Administrative Tribunal has 32 vacancies. The National Company Law Tribunal has a total of 33 vacancies. The Armed Forces Tribunal, the nodal body for resolving disputes within the armed forces, has 23 vacancies in total.
Over the last few years, India has performed really well in the overall ease of doing business rankings — climbing up to 63rd place in the latest edition — the country continues to be ranked much lower ( 163rd place among 190 countries) when it comes to enforcement of contracts. It would be difficult to improve the ranking on enforcement of contracts in the absence of efficient tribunals.
“To have effective dispensation of justice, it is important that the tribunals function at full capacity. Due to non-appointments, the functioning of tribunals such as NCLT, NCLAT has been severely impacted. The tribunals play a crucial role in the regulatory framework for economic activities in the country. There should be accountability with the government as access to justice is integral to rule of law,” said Gauri Rasgotra, partner & head Delhi Cyril Amarchand Mangaldas.
A growing number of unresolved cases in the NCLT have put to doubt the efficiency of the Insolvency and Bankruptcy (IBC) process. In the first 10 days of June, the tribunal had four acting presidents. The full time chairperson’s post remained vacant for about 18 months.
Cases amounting to about Rs 9 lakh crore of debt from 13,170 IBC cases are pending for resolution before the tribunal, with 71 per cent of these cases pending for over half a year. By design, IBC focuses on resolution of liquidation cases, and to achieve its stated goal, time is the key.
Filling up the vacancies in NCLT could ensure that a crucial reform like IBC does not end up being redundant like several other reforms. The IBC was suspended for defaults that took place post March 25, 2020, due to the pandemic. NCLT and NCLAT are the most important bodies for completing the resolution process.
“Even the vacancies at tribunals need to be filled up expeditiously where the Central Government needs to step in and fill the vacancies. Overall judicial reforms and addressing the issue of vacancies is one aspect of the problem,” said Kumar Saurabh Singh, partner Khaitan & Co.
According to Singh, a wide array of matters ends up going to the SC in appeal which also takes up a lot of time of the Supreme Court. “This is another area which needs to be looked in to ensure that matters do not languish through the appeal route for years in the judicial process,” Singh said.
Interestingly, by the Finance Act, 2017, the centre abolished or merged seven tribunals bringing their total number to 19 from 26. The move was part of the government’s pitch of reducing the burden and size of administrative costs in the country.