The last decade saw a proliferation of regulators and tribunals. Each scam produced a new one. Later, raw wisdom dawned on the decision makers that tribunalisation had gone too far and their number should be reduced. The tribunals have not substantially lightened the burden on regular courts, which was one of the pious intentions. Moreover, most of those entities are non-functional due to the lack of infrastructure, fund crunch and chronic vacancies of judicial and technical members.

Judges have been speaking about this crisis from different platforms. Now, in three major judgments, they have taken to writing about it. Earlier this month, while upholding the amendment to Insolvency and Bankruptcy Code, a long “post-script” was added to the judgment by three judges of the Supreme Court. In Pioneer Urban Land vs Union Of India, they stated that some “recalcitrant states and Union Territories” have not set up the Real Estate Regulatory Authority and appointed adjudicating officers. The court directed them to do so in three months and file compliance reports. The central government was also directed to file a similar affidavit of compliance on its part. “It is absolutely necessary that the NCLT and the NCLAT are manned with sufficient members to deal with litigation that may arise under the Code generally.”

While these tribunals are comparatively new, the old ones are in dire straits. This is evident from two other recent judgments of the Delhi High Court — one dealing with intellectual property rights and the other with competition law. In Mylan Lab vs Union of India, the complaint was that the company’s stay application regarding a design could not be taken up because of the absence of a technical member in the Intellectual Property Appellate Tribunal (IPAB). The court called for the status of the various tribunals under IPR laws.

According to the status report, IPAB was established in 2003. It hears appeals under the Patents Act, the Copyright Act and the Plant Varieties Protection Act. No technical member (copyright) has been appointed till date. With respect to patents, the post of technical member was lying vacant since May 2016. With respect to trademarks, the post of technical member was lying vacant since December 2018. There is only one technical member relating to plant varieties protection. 

IPAB had also begun to receive Geographical Indication appeals from 2009 and till date only 12 appeals have been disposed of. This was done by an apparent loan system. The technical member of trademarks will join the bench as technical member for hearing the Geographical Indication matters along with the chairman. Even this system does not work well in most IPR cases because either the chairman’s post is vacant or the technical member is not appointed. So there is a logjam in all these IPR appeals. 

 
Another judgment of the Delhi High Court dealt with the situation in the Competition Commission of India (CCI). In Cadd Systems vs CCI, a company was accused of cartelisation in a tender to conduct tree census in Pune using GPS. When CCI passed an order against it, the firm moved the high court alleging that the CCI was functioning without a judicial member and was not competent to adjudicate the matter. The plea was rejected because the law has provided a loophole (Section 15) by which CCI can function without a judicial member. This clearly runs counter to various Supreme Court judgments which had asserted that a judicial member is mandatory. However, the court dismissed the challenge observing that “plainly, interdicting CCI from passing final orders would effectively bring its functioning to a standstill”. This ad hocism will repel any corporation which looks for ease of doing business.

There are other quasi-judicial bodies like the consumer forums established in every district in the country but whose coram is never full. In south Delhi, for instance, there is a build-up of final hearing matters because there was no president for nearly two years. One lady gives out the next date of hearing, usually four months hence. The above state of affairs affects both large corporations who want to enter manufacturing sector as well as individual consumer who buys goods and services. The time for bandage solutions or looking the other way is over.


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