EDITORIALS & ARTICLES
Reforming the Tribunals
Recently, the Centre has abolished several appellate tribunals and authorities and transferred their jurisdiction to other existing judicial bodies through the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021.
Features of Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021
- It dissolves certain existing appellate bodies and transfers their functions (such as adjudication of appeals) to other existing judicial bodies.
- The Finance Act, 2017 empowered the central government to notify rules on:
- Qualifications of members of tribunals;
- Terms and conditions of their service; and
- Composition of search-cum-selection committees for 19 tribunals (such as the Customs, Excise, and Service Tax Appellate Tribunals)
- The Ordinance amends the 2017 Act to include provisions related to the composition of search-cum-selection committees and term of office of tribunal members in the Act itself.
- Search-cum-selection committees: The 2017 Act specifies that the Chairperson and Members of the Tribunals will be appointed by the central government on the recommendation of a Search-cum-Selection Committee.
- The Ordinance specifies that these Committees will consist of:
- The Chief Justice of India, or a Supreme Court Judge nominated by him, as the Chairperson (with casting vote),
- Two Secretaries nominated by the central government,
- The sitting or outgoing Chairperson, or a retired Supreme Court Judge, or a retired Chief Justice of a High Court, and
- The Secretary of the Ministry under which the Tribunal is constituted (with no voting right).
- Term of office: The Ordinance specifies that the term of office for the Chairperson of the tribunals will be of four years or till the attainment of the age of seventy years, whichever is earlier.
- For other members of the tribunals, the term will be of four years or till the age of sixty-seven years, whichever is earlier.
- National Consumer Disputes Redressal Commission: The Ordinance includes the National Consumer Disputes Redressal Commission established under the Consumer Protection Act, 2019 within the purview of the Finance Act, 2017.
- The Ordinance removes the following bodies from the purview of the Finance Act, 2017:
- The Airport Appellate Tribunal established under the Airports Authority of India Act, 1994,
- The Appellate Board established under the Trade Marks Act, 1999,
- The Authority of Advanced Ruling established under the Income Tax Act, 1961, and
- The Film Certification Appellate Authority established under the Cinematograph Act, 1952.
Constitutional validity of tribunals in India
- The original Constitution did not contain provisions with respect to tribunals but the 42nd Amendment Act of 1976 added a new Part XIV-A to the Constitution.
- Article 323 A empowers the Parliament to provide for the establishment of administrative tribunals for the adjudication of disputes relating to recruitment and conditions of service of persons appointed to public services.
- It enables the Parliament to take out the adjudication of disputes relating to service matters from the civil courts and the high courts and place it before the administrative tribunals.
- The Parliament has passed the Administrative Tribunals Act in 1985 which authorises the Central government to establish one Central administrative tribunal and the state administrative tribunals.
- The Central Administrative Tribunal (CAT) exercises original jurisdiction in relation to recruitment and all service matters of public servants covered by it.
- Its jurisdiction extends to the all-India services, the Central civil services, civil posts under the Centre and civilian employees of defence services.
- The members of the defence forces, officers and servants of the Supreme Courtand the secretarial staff of the Parliament are not covered by it.
- Under Article 323 B, the Parliament and the state legislatures are authorised to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters:
- Taxation, Foreign exchange, import and export, Industrial and labour, Land reforms, Ceiling on urban property, Elections to Parliament and state legislatures, Food stuffs and Rent and tenancy rights
- Article 136 of the constitution empowers the Supreme Court to grant special leave to appeal from any judgment, decree, order, determination, sentence or order passed or made by any tribunal in India.
- Article 227 enables every High Court to exercise power of superintendence over all tribunals throughout the territories over which it exercises jurisdiction.
Challenges faced by tribunals in India
- Abrupt abolition of Tribunals by government: The Ordinance has met with sharp criticism for not only bypassing the usual legislative process, but also for abolishing several tribunals without any stakeholder consultation.
- There was no judicial impact assessment which was conducted prior to abolishing the tribunals through this Ordinance.
- Unavailability of National Tribunal Commission: The Centre is yet to constitute a National Tribunals Commission (NTC) to take care of administrative and infrastructural needs of the tribunals.
- The idea of an NTC was first mooted in L. Chandra Kumar v/s Union of India (1997), but it has still not seen the light of day.
- Tribunals serve the political interest: The lack of institutional framework allows the partisan interests to allow the twisting of laws in order to serve political or private interests.
- Interference of executives in tribunal system: In India, the executive interference in the functioning of tribunals is often seen in matters of appointment and removal of tribunal members.
- It is also observed in the provisions of finances, infrastructure, personnel and other resources required for day to day functioning of the tribunals.
- Lack of specified procedure: The administrative adjudicatory bodies do not have any rigid set of rules and procedures which makes them vulnerable to violation of the principle of natural justice.
- Scope of Arbitrariness: The civil and criminal courts work on a uniform code of procedure as prescribed under Civil Procedure Code (CPC) and Code of Criminal Procedure (CrPC) respectively but the administrative tribunals have no such stringent procedure.
Arguments in favour of National Tribunal Commission
- Overcoming the government’s inertia in establishing NTC: It will be an independent umbrella body to supervise the functioning of tribunals, appointment of and disciplinary proceedings against members.
- The commencement of dialogue and promoting awareness about the NTC is vital for overcoming the government’s inertia in establishing such a body.
- Promotion of transparency and independence: The establishment of an independent oversight body such as NTC, for accountable governance requires a legal framework that protects its independence and impartiality.
- Support uniform administration across all tribunals: It could pave the way for the separation of the administrative and judicial functions carried out by various tribunals.
- Corporatised structure of NTC: A Board, a CEO and a Secretariat will allow the NTC to scale up its services and provide requisite administrative support to all tribunals across the country.
- Perform duties relating to administration and oversight: It could set performance standards for the efficiency of tribunals and their own administrative processes.
- It could function as an independent recruitment body to develop and operationalise the procedure for disciplinary proceedings and appointment of tribunal members.
- The administrative roles of the NTC include providing support services to tribunal members, litigants, and their lawyers.
- Maintain independence of tribunals: The NTC having the authority to set members’ salaries, allowances, and other service conditions, subject to regulations, would help maintain tribunals’ independence.
Road ahead
- The NTC must be established vide a constitutional amendment or be backed by a statute that guarantees it functional, operational and financial independence.
- The way to reform the tribunal system is to look at solutions from a systemic perspective supported by evidence.
- The establishment of the NTC will definitely entail a radical restructuring of the present tribunals system.
- The basic feature of tribunals has to be crystallized and preserved in reality by the formation of NTC, which will have the sole duty of selecting, supervising and removing the appointees to ensure that the tribunals are occupied with man of integrity and good character.
- It will enable timely appointment and would eliminate the current practice of extending the tenure solely due to failure to approve appointments.
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