M J Antony: Legally incompetent authorities

Judiciary is at present seen jealously guarding its power and independence, even accusing the government of attempting to “decimate” it in matters such as the selection of judges. The strife was going on for decades, flaring up occasionally and at different levels. The court had stalled the government’s attempts to pack tribunals with bureaucrats, delaying their establishment. The assertion of judicial prerogatives seems to be trickling down to other areas as well. The Supreme Court stated recently that some “competent authorities” must also have people of judicial experience, and they could not be filled with bureaucrats. 

Most laws and rules prescribe a competent authority, which grants sanction, no-objection certificates and other legal documents. It adjudicates on requests and complaints after consideration of facts and circumstances and can impose liability or affect other’s rights. District magistrates, for instance, issue caste certificates.

 But all competent authorities do not have a judicial mind. The Delhi government, for instance, has notified a list of 101 “competent authorities”, who are its own officers, to implement various laws. With such a nebulous title and enormous powers vested in the hands of bureaucrats, ordinary citizens who approach them might find themselves in Kafkaesque situations.

 The Supreme Court has noted this problem in various judgments, the latest being in the judgment, Laljibhai versus State of Gujarat. Five years ago, the court had frowned upon a competent authority established under the Petroleum & Minerals Pipelines (Acquisition of Land) Act discharging its public function from the premises of a private corporation for whom the use of land was being acquired in Jamnagar and Hazira. The “authority” was getting pay, allowances, vehicle, rent-free accommodation and other perks from the corporation. It would lead to a reasonable apprehension among the landowners that the authority would not act fairly (Trilok Pandya versus State of Gujarat). 

In the new judgment, (Laljibhai case) the court held that the provision conferring such enormous powers on the competent authority violated the equality provision in the Constitution. The law does not prescribe qualifications for the competent authority nor does it lay down a transparent process. The judgment held out the Metro Railways (Construction and Works) Act as a model. According to this law, a competent authority shall be one with judicial experience, at least as a subordinate judge. 

The call for judicial experience for certain competent authorities has been made by the court earlier also, but it had not gone as far as to declare that it would be illegal to confer adjudicatory power on a non-judicial person. In Indian Oil versus Raja Transport (2009), the law named government secretaries and directors of public sector corporations as arbitrators, which was challenged. Though in that case, the authority had nothing to do with the decision contested, the judgment said: “The position may be different where the person named is an employee of a company, which is not that of the state or its intermediaries… In such cases, the court has discretion not to appoint a person.”

 The same proposition was reiterated in HPCL versus Yashwant Joshi. The court said that it would not accept the premise that an officer of a government corporation appointed as a competent authority would be biased; but it would be different if it was a case of private employer and his employee. “We cannot equate the case of a person in private employment with that of a person in public employment.” 

 The court has shifted its stand. It now says that a competent authority operating in private corporations should not be accused of bias when they undertake projects with an element of public interest, as the private sector is encouraged these days to participate in projects of the highest importance — like laying of gas pipelines. The court, however, insists that the authority should have judicial experience.

The moral of the Laljibhai judgment is that it would be wise for lawmakers to prescribe judicial qualifications for members of competent authorities to promote public confidence. Next week, the court will deal with the appointment of judicial members in the armed forces tribunals, on a motion of its own. There have been extreme instances as in Ranjit Thakur versus Union of India in which a jawan was punished for disobeying his officer’s order to eat food. The officer doubled up as the competent authority. The court set aside the punishment. Recall Groucho Marx’s observation that military justice is to justice what military music is to music.

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