Judicial overreach: Bypassing expert tribunals in the electricity sector

by Natasha Aggarwal and Bhavin Patel.

A 2023 decision of the Supreme Court (The Southern Power Distribution Company of Telangana State v. Agarwal Foundaries Private Limited and Another, SLP (C) No. 14047-14066/2019) underscored the importance of judicial deference to expert bodies, stating that the High Court should have remanded a technical matter to the Appellate Tribunal for Electricity (APTEL) instead of adjudicating it itself.

The Electricity Act, 2003 establishes a framework under which appeals from orders of the Central Electricity Regulatory Commission and State Electricity Regulatory Commission (SERCs) may be filed before the APTEL. In 2021-22, only 12 appeals from the Telangana State Electricity Regulatory Commission (TSERC) were filed before the Appellate Tribunal for Electricity (APTEL), while 85 appeals were filed before the Telangana High Court (that is, more than seven times the number of appeals before the APTEL). Therefore, a large number of challenges to the TSERC’s orders were filed before the High Court, and not the APTEL, a sector-specific expert body. Notably, this problem is not unique to Telangana and exists in other states from time to time. For example, in 2019-20, 21 appeals from the Odisha Electricity Regulatory Commission were filed before the APTEL while 34 writ petitions were filed before the High Court.

The trajectory of the TSERC’s orders, from the TSERC to the Telangana High Court, raises questions on the grounds and scope of judicial review of these orders and their adherence to well-established principles of administrative law. These principles caution against judicial overreach in reviewing regulatory decisions. Over time, the Supreme Court of India has established the circumstances in which judicial review is permitted as well as the considerations that may be relevant in deciding to exercise judicial review.

In a recent paper, Bypassing expert tribunals through writs: Judicial overreach in review of the Telangana State Electricity Regulatory Commission’s orders, we study 179 writ petitions and 181 writ appeals involving the TSERC before the Telangana High Court between 2014-2022 and examine whether judicial review of the TSERC’s orders by the High Court is within the permitted limits in administrative law.

Our study reveals that 52.5% of the writ petitions in our subset and 58% of the writ appeals in our subset fall squarely within the scope of the matters for which the Electricity Act provides an appellate mechanism through the APTEL. Therefore, the largest number of writ petitions and writ appeals relate to ‘substantive matters’, which we identify as those that the Electricity Act contemplates as falling within the scope of TSERC’s quasi-judicial powers and APTEL’s appellate jurisdiction.

The existence of an efficacious alternative remedy, such as an appeal before the APTEL is not a complete bar on judicial review. However, well-established principles of administrative law limit the situations in which courts should entertain matters when such an alternative remedy exists, particularly because specialised tribunals and appellate authorities have the technical expertise to examine the facts and merits of a case. Moreover, the rationale for providing such an appellate mechanism is the requirement of technical expertise, and the APTEL has such expertise while the High Courts may not, and therefore the exercise of judicial review in such situations undermines the objectives of the Electricity Act.

The authors are researchers at TrustBridge Rule of Law Foundation.