Effective Dispensation Of Justice: Role Of The Tribunal
Hon’ble Shri. R. V. Easwar, President
The new President of the Tribunal does some plain-talking on a variety of issues facing the Tribunal today such as Judicial Accountability, Ethics, Delay in Disposal of Matters, Complicated Procedure and Criticism of judgements. While the Learned Judge provides a number of invaluable suggestions, he requests readers to think and come up with suggestions on how the working of the Tribunal can be improved.
I am grateful for the opportunity so kindly give to me by the organizers of the conference to speak on the subject “Effective dispensation of Justice” It is an onerous task and I stand before you in all humility shamefully aware of my limitation and lack of credentials to speak on the subject, and my only hope is that I will be excused for carrying coal to Newcastle.
Dharma & Justice
If ever there was a place on earth in which justice and fair play thrived without any threat, and was administered with utmost efficacy, it was our own country since time immemorial our ancestors adopted the principle of “dharma” in all their thoughts, words and deeds. Now the word “dharma” is not the same thing as “Justice” and this is quite a complicated subject, beyond the scope of the present speech and much more beyond the reach of intellectual faculties of the speaker but for the present purposes I am assuming that both words denote the same concept Justice Rama Jois in his book on legal and constitutional History of India (1984 ed) say that word "dharma” has no corresponding word in any other language and that it can only be explained, not defined Justice corresponds more with “nyaya” which in one of the several shades of meaning of the word “dharma”. Thus, loosely “dharma” can be taken to conform to what is referred to as justice in the Anglo-Saxon jurisprudence. It is necessary for all of us to keep this in mind.
The recently introduced Right to Information Act gives the taxpayers some leverage in accessing information from the judicial bodies, including the ITAT, with regard working on the administrative side. But care should be taken to see that in the grab of seeking information, Applicants under the RTI Act do not seek to brow-beat the Tribunal or seek to interfere in its judicial side or question judicial decisions taken by the members or demand explanation from them for their actions. I have personal experience of this but fortunately for us the attempt was thwarted by the Central Information Commission.
For any system of dispensation of justice to be effective, I think the foremost requirement is that it should be simple. In this respect, the model of the village panchayat system of deciding disputes of all kids arising amongst the residents of the village was ideal and was highly successful in India. The procedure before the panchayat was simple straight-forward mostly oral and hardly any documents were required. The award made by the panchayatdars, to whose jurisdiction the litigants unquestioningly surrendered were simple, blunt and shorn of legalese. One such award passed by panchayat in the state of Madras came for praise by the Privy Council in the 1934.It was a partition dispute between the members of a Hindu joint family the Madras High Court upheld the award on the ground that it represented a bona fide settlement of disputes, thought the panchayatdars had refrained form narrating the contentions of the parties or the reasons for the decision. In a crisp and pithy opinion the Privy Council upheld the award saying that it was an honest and fair attempt to settle a dispute which, if allowed to continue, would have ruined the families. In the contemporary context it would perhaps be too unrealistic to expect such a simple procedure; all the same, the case serves to illustrate how easy for every one concerned it would be if thing are kept simple. Much of the criticism against the justice delivery system in India is about the tedious procedural wrangles that are associated with it. Law books abound with case showing how it take several decades for a case to be settled one way or the other or how the expense involved has brought litigating families to the pavement. In this respect, the experience of the Income Tax Appellate Tribunal has been somewhat different. Its “unique selling point”-USP is its simple procedure. Its motto partly is: “Sulabh nyay” and the mortem appropriate way, in my humble opinion, is to understand these words as denoting “simple justice” and not as: “easy justice”, which somehow makes me uncomfortable. Our institution has been so structured by law and the rules that the filing of the appeals and stay or miscellaneous applications, the calculation of the filling fees, the preparation and filling of paper- books, issue of notice to parties, in leading the proper and necessary parties and so on involves the minimum of time and effort. Simplicity of procedure is one of its strong-points and I have already said, it is one of the most essential requirements for effective dispensation of justice.
Easy Access to Litigants
There is nothing demeaning about frankly admitting from the bench that “Look Mr. Counsel, I have not had the hang of it. Will you please explain it to me over again?” Sometimes we find ourselves ruminating in the chambers that we should have called upon counsel to argue a particular issue in more detail or that we should have enquired into the factual position further… To just sit there stonily when arguments are advance and pretending that we understand them is nothing less than self-deception.
The next important requirement of an effective system of dispensation of justice is that it should be easily accessible to the litigants. In this respect also, the Income Tax Appellate tribunal scores high marks. As tax litigation grew, the number of benches of the Tribunal also grew. I understand that there was only one Bench to start with in 1941 which would go to on tour to other places to decide the cases. Gradually, benches were increased to serve the litigants and by the mid-eighties we had 38 benches which soon become 53 and then 63 at which figure it stands presently. In almost every state we have benches of the Tribunal. In several states, we have benches at more than one city-for example, in Maharashtra we have benches in Mumbai, Pune and Nagpur In Andhra Pradesh in Hyderabad and Vishakapatnam. The north-eastern states are served by the Guwahati benches. The benches are thus spread wide in order to help litigants access the tribunal without much trouble and expense. Since there is a benche of the tribunal in all the places where there is a high court, not much time, effort and money is spent on dispatching the records. Tours are organized frequently to take justice closer to the litigants. I think- subject to correction – that no assessee is required to undertake a travel of more than twelve hours at the most to reach a bench of the Tribunal where his case is to be heard.
Thus the very setting up of the Income Tax Appellate Tribunal has been with the objective of doing away with the cumbersome procedures, thus making it simple for the litigants to get their case registered and to allow easy access to justice without much trouble and expense. The good track record of the tribunal in the matter of disposal of cases is thus largely due to the manner in which it has been structured.
Service Conditions of Members
The third requirement, so far as the structural or institutionalized aspect is concerned for the effective dispensation of justice is very important. It is that there should be reasonably good service condition what is referred to as pay, perquisites and allowance. There should also be some security of service. In this respect, the pay of the Members of the tribunal is the same as that of an additional secretary to the Government of India. The central pay commission reviews the pay and the service conditions of all government employees and makes recommendation. The Income Tax Appellate has been benefit to some extent by the recommendations of the 5th pay commission. We are planning to make an effective representation to the 6th pay commission recently constituted. The Supreme Court passed an order a couple of years back listing the facilities which a member of the Tribunal entitled to. A package of reasonable good pay and service conditions is effective dispensation of justice. It permits the incumbent to live in a manner benefit his status and official position and ensure that he is not deprived of the normal conveniences which persons placed similarly enjoy. It should permit him to give his children the education of their choice and aptitude. To put it briefly, he should be free from financial worries. This frees his mind from having to struggle to lead a comfortable life. More significantly it frees him from the tentacles of temptation.
Independence Of Members
We should therefore not be averse to criticism of a constructive or illuminating nature, nor should we feel crestfallen when we are criticized for having erred… But whatever be the nature of the criticism … it is no part of the duty of the Member to defend the order in public ..
The fourth essential requirement for the effective dispensation of justice is the independence of the members of the tribunal. This is secured by placing the Tribunal under the administrative control of the Ministry of Law and Justice and not under the ministry of finance which administers the taxation laws. The Income Tax Act makes Members dependent on no one for handing down their decision, except the arguments advance before them and their own faculties. There is the delightful story of a conversation that passed between Justice learned Hand and his clerk. The clerk asked the learned judges to whom he considered to be responsible. The learned judge turned to the shelves of his library and famously said: “To those books about us. That is to whom I am responsible”. Members of the Tribunal are authorized to pass such orders on the appeals as they fit, but that authority is always subject to parameters laid down by law. Whenever the independence of the Tribunal was threatened the Supreme Court of India has come to its rescue. The President of the President of the Tribunal is the administrative head and has the power to constitute benches and to transfer Members from one bench to another. The power which was sought to be taken away was restored to him by the Supreme Court in Ajay Gandhi’s case where the court also laid down guidelines to be followed while exercising the power. The Supreme Court has thus zealously guarded the Tribunal from external influences or interference. Our independence is well-protected. It may be noted that the Bangalore Principals of Judicial Conduct adopted in India recognized that “Judicial Independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects”. It is significant to observe that the very first “value”, in a series of values which were adopted in the Bangalore principals, is judicial independence. In its application, the first paragraph very powerfully restates the most elementary principal of effective dispensation of justice thus: “A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any external influence, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason”. Again significantly, and as if to dispel any doubt regarding the applicability of the principals to those who do decide cases but are not called “judge” in the sense of being a judge of a High Court or Supreme Court, the definition clause defines a “judge” to mean “any person exercising judicial power, however designated”. In his book on “The Changing Law”, Lord Denning says: “And when I speak of judge, I include not only the High Court judge, but also all the magistrates and others who exercise judicial functions…….. and I would also add chairman of the tribunals when they are independence of the executive, for then they too are judges. It does not depend on the name “judge” or “chairman” but on the substance”. Undoubtedly the Members of the Income Tax Appellate Tribunal exercise judicial power and therefore the Bangalore Principles must be held to be application to them.
Accountability of Members
It is my personal opinion – and in this I may be wrong – that loading the orders with a mass of case-law serves little to advance the line of reasoning. A few direct or pertinent decisions may serve the purpose. Extracting lengthy passages from several authorities make the order prolix and I am sure none of it is going to be read by those to whom the order matters. Above all to think of the harassed private secretary who is to type out those lengthy passages.
I now wish to touch upon a very important subject which is actually a corollary to the independence of the Members. It is the principle of accountability. In a very pithy statement, Dr. Cyrus Das, the President of the Commonwealth Lawyers Association, wrote in an article on “Judges and Judicial Accountability” published in the year 2000, that: “justice is a consumer product and must therefore meet the test of confidence, reliability and dependability like any other product if it is to survive market scrutiny. It exists for the citizenry at whose service only the system of justice must work. Judicial responsibility, accountability and dependence are in every inseparable. They are, and must be, embodies in the institution of the judiciary.” In the very nature of thing all court all courts and tribunals are structured to function under the full glare of the public justice. Michale Kirby of Australia, while denouncing the suggestion that judges are not accountable said: “we are- and have been for a long time-the most accountants branches of government in one sense our decision are made in open court. I spend the greater part of my working life performing my daily duties in public-that is not something that occur in most fields of activity certainly not in the bureaucracy as well as that the decisions of the court go through a whole range of review from the lower courts to the highest court in the country and in that sense can be openly exposed, citizen commented upon and justified in reasoned decision-making” this profound statement on accountability applies to the Income tax Appellate Tribunal and its members. It is in this light that the recent judgment of the Delhi High Court case of Sudhir Choudhury which required the Members to pronounce their order in the court is perceived in judicial circles, it is hailed as one step in the direction of ensuring accountability in the working tribunal. In deference to the judgment and in order ensure uniformity in this regard, the Tribunal has taken steps to make suitable amendments to its rule to provide for the pronouncement of its orders. In the workshop on judicial accountability convened in Kuala Lumpur, Malaysia in April 2002 there was a tabulation on the conclusions and proposals which emerged out of the deliberation. In principle no. 14, it was conclude that the Commonwealth lawyers association should examine ways in which the judiciary may made more accountable to the citizen, compatible with its independence. Some of the way in which this could be done were listed and they included posting the decisions in the interest so that the public would have direct access to them, introducing of television in the court under condition of strict control, educating the citizen through the media about the work of the court and the frequent difficulties faced by them. I request you to think and come up with suggestions as to how these could be applied or adopted to the working of the Income Tax Appellate Tribunal. Our Tribunal has an official website and we must explore ways and means of putting up all our orders therein. In one of the meeting with the Law secretary in the recent past, he expressed the same view. Our orders are published in Income tax Tribunal Decisions, an official journal, and several other journals including the Income Tax Reports. This gives an opportunity to the public-at least those who pay tax and those who assist them professionally- to assess our work critically. The recently introduced Right to Information Act gives the taxpayers some leverage in accessing information from the judicial bodies, including the ITAT, with regard working on the administrative side. But care should be taken to see that in the grab of seeking information, Applicants under the RTI Act do not seek to brow-beat the Tribunal or seek to interfere in its judicial side or question judicial decisions taken by the members of demand explanation from them for their actions. I have personal experience of this but fortunately for us the attempt was thwarted by the central information commission. The Tribunal has developed its own conventions which are reviewed form time to time and in these conventions the general time limits for passing orders after hearing has been prescribed. This time-limit however does not work some time- for example when the members who heard the matter go on leave or extended tour or where the cases are complicated. But we must take care to ensure that the branch of the time- limit happens as an exception and not as a rule. In the book on Hon’ble Justice Krishna Iyer titled “A Living legend” his lordship is quoted as follows on the question of delay in passing Judgements. “It has become these days, for the highest to the lowest courts’ judges, after the arguments are closed, to take months and year to pronounce judgment even in interlocutory matter as sin which cannot be forgiven a practice which must be forbidden, a wrong which calls for censure or worse”. One of the means of having to give account to the public it is to pass reasoned judgment, above which I shall dwell upon in some detail a little later. While listing the accountability mechanisms that have been put in place in the tribunal, I must also include the setting up of a committee to ensure discipline amongst the members in conference of the Vice-President held in Bombay in January. Though the name given to the committee may be different but to my humble mind the real purpose and the object of setting up the committee appears to be to ensure greater accountability of the Members.
Criticism & How To deal With It
With accountability comes criticism, as Lord Atkin said, Justice is to a cloistered virtue and she must be allowed to suffer the criticism and the respectful, thought outspoken, comments of ordinary men and women. It is now widely accepted by all that the right comment and criticize judgment (in our case, they are “orders” not judgment, but that I think makes little difference to the Principle) is an indispensable part of the accountability process. It acts as an effective check on abuse of power and arbitrariness or perversity and consequently on the manner in which we explain our decision. In constructive criticism lies an opportunity to learn to avoid mistake in future. We should therefore not be averse to criticism of a constructive or illuminating nature, nor should we feel crestfallen when we are criticized for having erred. As the Supreme Court itself famously, we should not perpetuate our errors. Criticism may come from the higher courts from the professional, from the tax authorities or from the tax-paying public honest criticism, irrespective of its source must form the tax authorities or from the tax-paying public. Honest criticism irrespective of its source must from a platform for our further growth intellectually. But illegitimate and irresponsible criticism is to be denounced if it stem from vested interests dissatisfied with our decision, for, it has “the inevitable effect of eroding the dependence of The judiciary” in the words of Justice Bhagwati which His Lordship wrote in the newsletter of the AHRC in 1997. His Lordship opined that “each attack on a judge for a decision given by him or her is an attack on the independence of the judiciary because it represents an attempt on the part of those who indulge in such criticism to coerce judicial conformity with their own preconception and, thereby, to influence the decision-making process”. A similar sentiment was expressed by Justice Sujatha Manohar in a judgment concerning the ITAT where executive criticism of the order of the Tribunal was found to interfere with the judicial decision-making process. The line between “measured criticism of judgments and denigration of judges” shall thus not be traversed. But whatever be the nature of the criticism – whether it is a measured and sober criticism of the order or the denigration of the Member, directly or obliquely – it is no part of the duty of the Member to defend the order in public for he is functus officio and is not supposed to hold a brief for his order thereafter. Henry Cecil, a country Court judge in England, in his Hamlyn lecture say: “it is right that a judge’s conduct should be subject to public and private criticism, but it is not always remembered that no judge may reply to such criticism”. It would be a wise thing to do – if the criticism is constructive – to learn from it; if the criticism is vile or intemperate, the best course would be to totally ignore it! But it is comforting to know that Professor H.P. Lee of the Monash University, in his article titled “Subverting judicial independence” published in 1998 wrote that the uniform opinion in judicial and legal circles is that “scurrilous abuse of particular members of the judiciary or attacks which question the integrity of judicial institutions undermine public confidence in the court and acceptance of their decisions”. It is the speaker’s personal opinion that justice would be first casualty of such baseless and scurrilous allegations.
Avoid a Technical Approach
I will now turn to certain individualized requirements of effective dispensation of justice. A system of tribunals which has emerged as an alternative to the system of courts is intended to be less formal, less expensive and less procedural or technical. The object is to avoid prolonged delays on account of technicalities. Judicial, it has been recognized by some High Courts, in a different context, that an appeal before the Income Tax Appellate Tribunal is not a “lis” but is an adjustment of the assessment and therefore all points which affect that assessment can be taken even though they were not taken before the tax authorities. In the context of condoning the delay in filling the appeal it has been held in several recent judgments of the Supreme Court starting with Mst. Katiji, Balakrishnan vs Krishnamurthi etc. that in the pursuit of justice, technicalities should be avoided and an attempt must be made to decide the substantive issues raised in the appeal. Much earlier, the Supreme Court in Calcutta Company’s case held that the ITAT is not to be rule-ridden and if the necessary grounds are taken, whatever be the form in which they are taken, the Tribunal has to decide them and cannot refrain from doing so merely on a technicality. Too much of stress on a technical approach is bound to defeat the objective for which the Tribunal was created.
Give A Patient Hearing; Avoid Preconceived Notions
I will now turn to a very important aspect of the individualize requirements for effective dispensation of justice. Sec. 254(2) requires us to give an opportunity of being heard to the parties to the appeal. This being a requirement of the law, it is very important how in practice we give effect to the same. “To hear patiently” is the advice of Socrates. How do we go about? Certainly not as an empty formality, or as a hearing for the sake of hearing. It has a further purpose to serve. When Lord Chief Justice Parker (of England) “A judge is not supposed to know anything about the facts of life until they have been presented before him in evidence and explained to him at least three times” he might have said it in lighter vein, but if the need arises we must insist that the facts or the legal position be explained to us not merely three times but more, if we are not sure we have understood them. There is nothing demeaning about frankly admitting from the bench that “Look Mr. Counsel, I have not had the hang of it. Will you please explain it to me over again?” Sometimes we find ourselves ruminating in the chambers that we should have called upon counsel to argue a particular issue in more detail or that we should have enquired into the factual position further. This may require a reposting of the case to clarify the point which means further delay. To just sit there stonily when arguments are advance and pretending that we understand them is nothing less than self-deception. That however does not mean that we should keep on interrupting counsel with our questions, but the general practice should be to adopt an attentive silence during the initial stages of the arguments and the when the stage comes for the formulation of the propositions, we should put questions by way of clarification. Care must be taken to ensure that our questioning does not give the impression that we are hostile to counsel or that we have arrived at a decision against him. An over-speaking judge is an ill-tuned cymbal and we all know that a judge in England lost his job because his aggressive questioning led the person subjected to the questioning believe that he will not get justice in that judge’s Court. In fact, the judge was advised to resign, which he did. To quote Henry Cecil again: “The harm that a judge can do is not merely in actual injustices, that is, wrong decisions, but in sending litigants (and advocates) away with a feeling that their cases have not been properly tried”. It is generally said that a judge should not go to court with pre-conceived ideas, but it seems there is a difference of opinion on that! Lord Reid was asked whether he read newspapers before he went to Court. He denied saying that he avoided reading them as they may give him preconceived notions. When Lord Wilberforce was asked the same question, he replied: “I always do. It is essential that someone should have preconceived ideas!” Reading newspapers before going to court may not be taboo for a Member of the Income Tax Appellate Tribunal, but the point is that we may have subconsciously formed certain opinions about an issue that is likely to come up before us. It may difficult to erase the opinion out if our mind, but it is essential we keep an open mind rill we find sufficient justification in the arguments addressed before us to change it – or not to change it! On no account should we exhibit an inflexible approach from the bench, in any case not to the extent of being accused of having a bias. The question of bias is taken very seriously in some dispensations. I have read somewhere about a judge of the USA trying a criminal case, probably for a serious offence. The accused was put in the dock and was sworn in. He was a non-believer and when asked whether he would swear upon the Bible he replied: “No, I do not believe in God”. The judge quipped: “Nor on morals either”. The judge was removed from the case as he was held to be biased against the accused by making such a flippant statement. To live and to learn should be our policy. This calls for courage, for it is not easy to overcome our own private opinions, but we must at all costs give in to more powerful reasoning, a better logic, a sounder principal of law or even a better or more balanced view canvassed before us.
Adjournments & Avoidable Delays
The vexed question of cutting delays on account of adjournments and in passing orders after the close of the arguments comes next. It was thought at one point of time that it is absolutely at the discretion of the Court whether to grant an adjournment or not, till the legal world woke up to the problem on account of accumulating arrears reaching mind-blowing figures. Then the Code of Civil Procedure was amended to provide that not more than three adjournments will be granted but it is well-known that this also is not being adhered to always, thought the advent of the provision has put some sort of check on the applications for adjournments. In the Income Tax Appellate Tribunal, our experience has been good on this aspect and by and large the cases are heard as per schedule, barring unforeseen circumstances or exceptional reasons. Adjournments are not generally sought as a matter of routine. The Income Tax Act was amended in 1998 to provide that an appeal shall be, as far as possible, disposed of within four years from the date of failing which is a fair target. The recent statistics show that even in large centers such as Bombay, Delhi, Ahmedabad, Chennai etc, the appeals filed in the year 2004 are being taken up for hearing. But as the Hon’ble President has been hoping, the ideal situation would be to dispose of the appeal within a year or at the most a year-and-a-half from the date of filling. Our efforts must be geared towards that goal and we must resolve to cut the delays by allowing avoidable adjournments. I hasten to add that you should not mistake this as an intrusion into your judicial powers. This is only to stress the importance of cutting delays since it is an essential requirement for effective dispensation of justice. More so, several case involving tax-treaties are coming up before the tribunal. It is question of our image outside the country. Just as we take pride in the fact that there is some recognition of our works aboard we should also try to adhere to the schedule of disposal since I understand that a quick disposal is a hallmark of the justice delivery system in western countries and is likely to be appreciated.
Write Judgements In A Succinct Manner
Earlier, I had said that I shall revert to the topic of handing down reasoned order. I shall do that now. As we all know there are three branches of the state. The legislature, the executive and the judiciary Byron R. White as associate justice of the supreme court of the United States of America, proclaimed “we are the only branch of the government that explains itself in writing every time it take a decision." How true these words are giving reasons for our decision is the most important requirement of effective dispensation of justice. We give an account of ourselves in our reasoning just as the power of the bar is the power of clear statement the power of the judiciary is the power to reason,. We must strain every nerve and rack our brains to find the line of reasoning that is most appropriate to the decision. In adopting the line of reasoning we are bound by several parameters. We have to first find the fact and in this there shall be no compromise. Recent Judgements some High courts have found fault with the Tribunal for not recording the basic facts found. Wherever we record our findings of facts. It would be very appropriate in fact necessary to refer to the evidence on the basis f which the facts are recorded. Where paper books have been filed it is expected of us to refer to the relevant pages thereof of support our findings. To these facts found, we need to apply the relevant law. This is somewhat simpler. For the law is settled by the decision of the High Court or Supreme court one way or the other and several nascent issued have received scrutiny at the hands of the tribunal itself on earlier occasions which serve as precedents. It is my personal opinion – and in this I may be wrong – that loading the orders with a mass of case-law serves little to advance the line of reasoning. A few direct or pertinent decisions may serve the purpose. Extracting lengthy passages from several authorities make the order prolix and I am sure none of it is going to be read by those to whom the order matters. Above all to think of the harassed private secretary who is to type out those lengthy passages. Each of us has a different way and style of writing order and I respect them But I also feel – and this I say with the greatest respect to every one concerned – that we should also think several time whether it is really necessary to quote copiously from judgments. Think of the time and labors saved if quoting a few pithy sentences or observations from a judgment would drive home the point, why inflict a burden on the reader (and the stenographer) the time saved may be well – utilized otherwise.
Procedure On The Bench
On the question of rational utilization of time, Chief Justice Lahoti says that working hours of the court are meant only for discharging judicial work. That judges are not expected to proceed on leave until and unless the absence is unavoidable, that they are not expected to participate in ceremonial functions such as inauguration or delivering lecture by abstaining themselves from court. Allied to this is the application of court and case management techniques where under the efforts of the members are directed towards planning the cause-list in such a manner. That the maximum number of case is heard in the available time. We normally take up the calling work first and after adjournments are granted we are in a position to know how many cases are left for being heard. We then taken up the covered matters. Out of the case left thereafter we may take up small matters thought they are down the list both parties agree that they can be disposed of without much ado. This will leave only the complicate matter for being heard. No doubt this will involves changing the order of the cause-list which may not appeal to some members or even counsel. But considering the overall efficiency an attempt may be made convince them. If my understanding is correct this practice is being followed by almost all the benches of the tribunal. Very old matters are given priority in the cause-list and disposing them of after the covered and small matters. May also be a step in the right direction. All this of course requires the co-operation and understanding of the bar and the departmental representatives and our experience in this regard has been very good.
The Ahmedabad Bench Example
While on this subject, an innovative method adopted by the Ahmedabad benches of the tribunal is worthy of emulation. At the time of filling the appeal, a check list is required to be filed along with the appeal which, inter alias shows whether the issue is covered by a precedent. If it says that the issue is so covered a notice or hearing is handed over to both the sides immediately posting the appeal within 60 days merely for the purpose of ascertaining whether the issue is so covered. If on the day of hearing it is agreed by the other side that the issue is covered, the appeal is taken as heard and orders are passed. I am told by the Hon’ble vice- President, Ahmedabad Benches that about 28% to 30% of the appeals are thus disposed of within 60 days. If I may say so with respect the experiment can be undertaken in all the benches.
Discussions Between Members Before Passing Orders
Holding discussions with the colleague who sat in the bench is an essential part of effective dispensation of justice. The purpose of constituting division benches of two members, one a judicial member and the other the accountant members. Is to ensure that both the legal and the accounting aspects are thoroughly gone into before a decision is taken. Though the act. Still maintains a distinction between the two types of members for all practical purpose the distinction does not exit. There is no water-tight compartmentalization of the function of the two. It is therefore all the more necessary and desirable that all issue arising for decision are discussed between the two members on chambers preferable immediately after the hearing. The idea is that both shall contribute usefully to the decision. In actual practice, discussions may not be required in routine matter. But where the issued are of some importance or where the stakes involved are high, or where documentary evidence has to be sifted and weighed it is absolutely necessary that the members should hold discussion in the chambers. Members may study the matter further but in the course of such further study or research certain aspects which were not covered during the hearing are found to be necessary to be resolved or clarified, or if the study reveals some authority or presently not cited during the hearing but in which the issue has been directly decided, the demands of justice and fair play require that the case be listed for clarification and the point shall not be decided without going through the procedure. The tribunal rules also provide for such situation rule. Say that it is open to the tribunal to decide the case on grounds not taken before it but before doing so an opportunity is required to be given to the parties of being heard on that ground A decided rendered without complying with this requirement would be open to the criticism of not conforming to the basic principles of effective dispensation of justice. Even if one of the members overlooks this rule, it is the duty of the other member to point out the same and have the case fixed for clarification.
Continuous Training & Learning
Continuous training and updating of the knowledge is one of basic requirement of effective dispensation of justice. Training could take several forms. A sane and sober advice, given and taken in the right spirit, can itself be a good input for a members. Henry Cecil, In this Hamlyn Lectures suggests that each judge (read member) on appointment should be warned by a senior judge of the dangers of abuse of power and that he “should travel and visit universities and particular in seminars and discussion with both lawyers and social scientists” that there should be some sort of organized instruction mounted by experienced judge who in particular should be specialists in the filed pertaining to the region or division in which the new judge is ultimate going to sit. The income tax appellate tribunal has in place a system of “orientation & training” for new appointees but as least till march 2005 it only consisted of the practice of asking the new appointee to sit in the bench as “observer” for a couple of weeks. This perhaps was not considered enough and the new appointees in 2005 received extensive orientation and training in the form of lectures and speeches by judges of the High court and Supreme courts former members of the tribunal, motivational course etc. on the lines suggested above. The regional conference in Delhi in July and the present regional conference are steps in this direction. In the Latimer House guidelines for the Commonwealth (19th June 1998) it was suggested that there should be training for judicial officers conversing the development of a culture of judicial education, that the training should be organized systematic and ongoing and under the control of an adequately funded judicial body, that it should include the teaching of judicial skills and that the curriculum should be controlled by judicial officers having the assistance of lay specialists. Paragraph 6.3 of value No. 6 titled “Competence and Diligence” of the Bangalore principles of judicial conduct actually places the burden of taking the initiative on the judge (who by definition means a person who performs judicial functions) and mandates that a judge shall take reasonable steps to enhance his judicial skill, knowledge and personal qualities necessary for the performance of his judicial functions by taking advantage of the training and other facilities which should be made available to him under judicial control. The need for such constant updating of the knowledge and skills and the development of the law of taxation is being felt in the tribunal now more than ever, thanks to issues such as treaty interpretation, trans-borders transactions, transfer-pricing and so on. There is in my humble opinion a strong case for the members of the tribunal being deputed to attend seminar on such mater, wherever they are organized (including foreign countries) by professional and judicial bodies. I reflect the anxiety of our members that we should not be found wanting in the in-depth knowledge that is essential to handle such issued as and when they are debated before us. It will not be out of place to mention here that the Hon’ble President has taken initiative in this direction and it is expected that soon some concrete action will follow.
Any discussion on effective dispensation of justice in my humble opinion will be complete without a reference to the topic of judicial ethics. Adherence to judicial ethic is the last, but certainly not the least, requirement of an effective dispensation of justice. It imbibes confidence. As the canon goes justice shall not only be done but shall also appear to be done incidentally, a learned judge wryly cautioned that the danger imbedded in this canon was that it tended to shift the focus of the judge from actually doing justice to merely appearing to do justice The Hon’ble chief justice of India, Justice Lahoti in his inaugural address for the M. C. Setalved Memorial lectures pertinently observed that, “Observance of the cannons of judicial ethics enables the judiciary to struggle with confidence, to chasten oneself and be wise and to learn by themselves the true values of judicial …. The judge have to honor the judicial office which they hold as a public trust . their every action and every word spoken or written must show and reflect correctly that they hold the office as a public trust and they are determined to strive continuously to enhance and maintain the peoples confidence in the judicial system” The following five vices which a judicial officer should avoid have been mentioned in sukra Neeti and they are:(i) Raga-that is leaning in favors of one party,(ii) lobha- greed (iii) bhaya- fear, (iv) dvesha-ill will against any one and (v)vadinoscha rahashruthi (the judge meeting and hearing a party to a case secretly i.e. in the absence of the other party). In K. Veeraswami case the Supreme Court lamented that a “Judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature” There is also a need for maintaining a certain degree of aloofness. This is party regulated by the central conduct rules in the case of Members of the tribunal, but it is advisable to keep the caution administered by Chief Justice Lahoti in his Setalvad Memorial lecture in the following words "…… he (the judge) shall have to conscientiously keep a vigil of his movement and decide thoughtfully where to go and where not to go. Experience and caution would be the best guide of a judge in this regard. He ought to remember that what he thinks of himself is not so material as how people would perceive and interpret his movements and presence at a given place”.
On the question of following judicial ethics, I can do no better than to quote from the autobiography of Hon’ble Justice H. R. Khanna “Neither roses nor thorns” His Lordship say. “Most of us when elevated to the bench have certain ideals and we go there with certain mental commitments. It is like a pledge not to some external authority but to ones inner self to one’s conscience ……… it is at the altar of one’s own conscience ….. that on would be ultimately answerable as to how far one has abided by one’s commitment and pledge. Important though may be the assessment of other, much more important than that is the verdict of one’s own inner self on one’s performance” And I wish to conclude by quoting the telling words of Fali Nariman, the legal luminary in his recent book on “India Legal system’ can it be saved? in which he said “The judicial is like oxygen in the air- citizen simply do not realize and comprehend its utility and importance. We take it for granted in a country like ours and in time like these it is not enough for the judicial only to be independent of the executive and of all other external influences. Judges, because of the high officer they hold and the plenitude of power they exercise. Must be seen to have noble qualities of mind and heart and above all of courage” what application to the judiciary and the judge applies equally to us we the member of the income tax appellate tribunal.
Brother and sisters, I thank all of you for patiently listening to me and also the organizer of this conference for the opportunity to share my thoughts on the subject of “effective dispensation of Justice” the faults in the speech are entirely mine; the inputs came from outside sources to which I am truly grateful. I appeal to you to sift the grain, if you find any from the chaff and forgive me for any impertinence on my part.
Its a good one for the people who are in related jobs. Easwar ji’s work in judiciary of ITAT is always memorable.
It is an excellent piece of article meant for people like me, who could not hear him, due to distance factor. I always thought that in Mr. Eswar we have a honest and sincere personality. I always admired his orders which reflected clarity of thought and upholding of law of the highest order. I wish he makes an indelible mark in the annals of ITAT
brilliant exposition on working of the tribunal.One hopes Mr Eshwar is confirmed as President of the Tribunal and is able to implement what he suggests of the working of the Tribunal.One only hopes that the Law Ministry does not tinker with te constitution and working of the tribunal.
ITAT President tribunal orders as member reported shows brilliance in him.I believe what CJI KAPADIA IS TO SC PRESIDENT EASWAR IS TO ITAT.