Opinion - Leader Page Articles

Judges dominion

By Pratap Bhanu Mehta

There is a danger that a perception will grow that the judiciary is needlessly enlarging its domain.

THE OBSERVATIONS of the Supreme Court that led to a stay on the appointment of a civil servant as Chairman of the Competition Commission raise important issues about the scope of judicial power. The Court implied that only a judge could be appointed chairperson of such a commission. The Competition Commission is an important regulatory agency whose mandate covers the prohibition of anti-competitive agreements, prohibition of abuse of market dominance, scrutiny of mergers and acquisitions, etc. It will primarily deal with companies that have assets of over Rs.1000 crores, and hence the stakes involved in any one of its decisions are likely to be very high. It is extremely important that the Commission discharge its functions honestly and with the best available knowledge. Competition policy is not quite as simple a matter as it first appears: the complex web of relationships that exists between companies in modern capitalism can make detection of anti-competitive stakes in any merger difficult indeed.

It is with this challenge in mind that the Competition Commission Act provided that the chairperson can either be a former judge, or someone with the relevant experience and expertise from a variety of fields ranging from international trade to accounting. Many equivalent Commissions all over the world routinely appoint bankers, academic economists as their heads. Civil servants and judges between them have such an extraordinary monopoly over India's regulatory institutions. Many had hoped that such provisions would in the long run enable the Government to tap a wide variety of talent: from the professions, from the private sector, from academia.

The honourable justices of the Supreme Court seem to rest their objection to the appointment of a civil servant on one central argument: the Commission will perform judicial functions and hence only a judge can be appointed. This argument is not sound: there are numerous regulatory agencies that perform quasi-judicial functions, and it is certainly not an established principle that only judges may do so. That this principle has gained credence is a result of the judiciary's own activism that has blurred the distinction between judicial and quasi-judicial functions rather than a constitutional first principle. Regulatory commissions will inevitably have mixed functions: quasi-judicial and administrative.

There is no a priori argument that in commissions with mixed mandates, it is necessary to have a judge as a Chairman. In many ways the Competition Commission is unlike standard tribunals. As a nation we have to be prepared that in the context of a changing economy we will create new institutional forms, not all of which will correspond to the forms bequeathed to us by our traditional distinctions and jurisprudence. The central question is this. Is the mission of the Competition Commission, despite the fact that it might perform quasi-judicial functions, such that it is possible that, all things considered, it might be better served by a non-judge as chairperson?

The Supreme Court has, in the past, rightly affirmed that the jurisdiction granted to the Supreme Court and the High Courts is part of the basic structure of the Constitution and no tribunal can supersede those functions. The tendency of some Acts to oust the jurisdiction of the courts is what led to the assertion of judicial sovereignty over tribunals in the first place. But it is not clear why there should be the presumption that the appointment of a non-judge is automatically tantamount to encroaching upon judicial functions or ousting court jurisdiction. There is also a serious problem here. If the Commission is thought of as a judicial entity, and criticism of a judge acting in judicial capacity is seen as criminal contempt, frank criticism of the Commission's work is less likely.

There may be other possible reasons for invalidating the current appointment. But the Commission was created by an Act of Parliament, and the only relevant consideration for the court is the constitutionality of the Act, not the soundness of its policy. It was one thing for the Court to intervene on behalf of parliamentary sovereignty as it did in the oil companies' privatisation case; it is quite another thing for it consistently to go against Parliament. There is a real danger that a perception will grow that the judiciary is needlessly enlarging its domain. One of the members of the bench is reported to have commented that at this rate the Government might one day think of appointing bureaucrats to the Supreme Court as well. This exaggerated fear is out of sync with reality. The judiciary has, going beyond what is mandated by the Constitution, so effectively shut out the executive from appointments to the Supreme Court that the possibility of the judge's fears coming true is quite remote.

The proliferation of post-retirement appointments for judges should be a greater cause for concern. The balance of power, as it currently stands, is largely in the favour of the judiciary. Much of this assertion of judicial power has been for the good, but if the judiciary appears to needlessly extend its dominion whenever Parliament creates any innovative institutions, its own authority will be jeopardised.

(The writer is a Professor of Philosophy and of Law and Governance, JNU.)

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