Author(s): SOLPO Research
Draft Electricity (Amendment) Bill, 2020 – Electricity Contract Enforcement Agency
In the present legal note, we attempt to answer the question – whether the Electricity Contract Enforcement Agency (“the ECEA” or the “Dispute Resolution Authority”) proposed to be created by introducing an amendment to Electricity Act, 2003 can be lawfully established within the Central Electricity Regulatory Commission (“the CERC”). If this is possible, what should be the minimum safeguards that are required for ensuring that the scheme does not fall foul of the law laid down by the Supreme Court in various judgments?
Executive Summary: The legislature is fully empowered to vest judicial functions in a separate forum i.e. a judicial tribunal. In order to ensure the independence of tribunals, compliance of the principles summarized in the present Legal Note is essential. The legal principles are primarily those that were earlier enumerated in the judgment of the Supreme Court in Madras Bar Asso. (2010)1 and then largely reiterated in Roger Mathew’s (2019)2 case. The judicial principles that emerge are as follows:
(a) A legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the Constitution) to any tribunal.
(b) A Tribunal to have the character of a quasi-judicial body and a legitimate replacement to Courts, must essentially possess a dominant judicial character through their members/presiding officers. It is a fundamental prerequisite for transferring adjudicatory functions from Courts to Tribunals that the latter must possess the same capacity and independence as the former, and that members as well as the presiding officers of Tribunals must have significant judicial training and legal experience. Further, knowledge, training and experience of members/presiding officers of a Tribunal must mirror, as far as possible, that of the Court which it seeks to substitute.
(c) While enacting legislation pertaining to transfer of judicial power, Parliament has to ensure that the newly created court/tribunal conforms with the salient characteristics and standards of the court sought to be substituted.
(d) The tribunal should have as members, persons of a rank, capacity and status (as nearly as possible) equal to the rank, status and capacity of the court which was till then dealing with such matters. The members of the tribunal should have the independence and security of tenure associated with judicial tribunals. A tenure of three years may be suitable for a retired Judge of High Court or the Supreme Court or even in case of a judicial officer on deputation. However, it will be illusory to expect a practising advocate to forego his well-established practice to serve as a Member of a Tribunal for a period of three years.
(e) The difference between age of superannuation of Chairman/Presiding Officer and Member of a Tribunal is because Chairman/Presiding Officer is not a promotional post and thus cannot be equated with that of the Member. The post of Chairman/Presiding Officer requires judicial and administrative experience of at least that of the judge of a High Court which is evident from the statutes prescribing them.
(f) The Tribunals should have similar standards of appointment and service as that of the Court it is substituting. The Search-cum-Selection Committees should not go against the constitutional scheme so as to dilute the involvement of judiciary in the process of appointment of members of tribunals which is in effect an encroachment by the executive on the judiciary.
(g) Only where the exercise of jurisdiction involves inquiry and decisions into technical or special aspects, where presence of technical members will be useful and necessary, tribunals should have technical members. Indiscriminate appointment of technical members in all tribunals will dilute and adversely affect the independence of the judiciary.
(h) The legislature can reorganise the jurisdictions of judicial tribunals. For example, it can provide that a specified category of cases tried by a higher court can be tried by a lower court or vice versa (a standard example is the variation of pecuniary limits of the courts). Similarly, while constituting tribunals, the legislature can prescribe the qualifications/eligibility criteria.
(i) It is an acceptable feature/practice to provide one appellate forum wherever an enactment is a complete code for providing judicial remedies. Providing one right to appeal before an appellate forum is a well-accepted norm which is perceived as a healthy tradition. A second appeal to the Supreme Court is permissible, where the scope of the appeal to the Supreme Court is restricted only “to question of law arising out of such order.