Restructuring the tribunals system

GS 2 : Statutory, Regulatory and various Quasi-judicial Bodies.

Source : The Hindu dated 17/05/2021 https://www.thehindu.com/opinion/op-ed/restructuring-the-tribunals-system/article34574959.ece
Reference : https://prsindia.org/billtrack/the-tribunals-reforms-rationalisation-and-conditions-of-service-ordinance-2021

Context : Recently, the President promulgated the  Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021 through which the Appellate authorities under nine laws have been replaced with High Courts.

Now this ordinance has been challenged in the high court.

What are Tribunals?
  • It is any person or institution having an authority to judge, adjudicate on, or to determine claims or disputes – whether or not it is called a tribunal in its title.
  • It is a quasi-judicial institution that is set up to deal with problems such as resolving administrative or tax-related disputes.
Relevant constitutional provision
  • Original Constitution did not contain provisions with respect to tribunals.
  • The 42nd Amendment Act of 1976 added a new Part XIV-A to the Constitution(on the recommendation of the Swaran Singh Committee) – consists of only two Articles–Article 323 A dealing with administrative tribunals and Article 323 B dealing with tribunals for other matters.
Differences between the two tribunals

Chandrakumar case(1997)

the SC declared those provisions of these two articles which excluded the jurisdiction of the high courts and the Supreme Court as unconstitutional
So judicial remedies are now available against the orders of these tribunals.
About the Tribunal Reforms Ordinance 2021
  • It dissolves certain existing appellate bodies and transfers their functions (such as adjudication of appeals) to other existing judicial bodies.

Section 184 of the Finance Act, 2017 has been amended to empower the Central Government to make rules for qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of service of Members of Tribunals.

  • Search-cum-selection committees: (as suggested by the SC inMadras Bar Association v. Union of India (2020)
    • The Chairperson and Members of the Tribunals will be appointed by the central government on the recommendation of a Search-cum-Selection Committee.
    • The Committee will consist of:
      • Chief Justice of India, or a Supreme Court Judge nominated by him, as the Chairperson (with casting vote),
      • 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.
      • 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.
Need for the Tribunal Reforms Ordinance 2021
  • Poor Adjudication & Delay in Judgement: The 272nd Law Commission Report mentions the Tribunals such as Central Administrative Tribunals and others had a pendency of 2.5 Lakh cases.
  • Lack of independence: An interim report titled, Reforming The Tribunals Framework in India mentioned that the tribunals are not independent. The Executive holds key positions in Tribunals and the government is the biggest litigant. So the cases might not be decided fairly.
  • Huge unfilled vacancies : For example, In 13 tribunals alone, nearly 138 posts lying vacant out of 352 posts.
Concerns with the ordinance
  • Ordinance route(Art.123) – bypassing the usual legislative process.
  • Lack of stakeholder consultation
    • Eg. the Film Certification Appellate Tribunal (FCAT) usually had at least one member from the film industry.
    • With the disbanding of the FCAT, the only recourse left to the filmmaker is to approach the High court, which is strewn with difficulties.
    • One, the filmmaker should hire a lawyer, and get entangled in an already overburdened legal system.
    • Two, the judges and lawyers might not have an informed view on film certification.
  • No judicial impact assessment (as directed in Rojer Mathew vs South Indian bank(2019)) was conducted prior to abolishing the tribunals through this Ordinance.
  • Principles laid down in UOI vs R Gandhi, Madras Bar Association case (2010) not met:
    • Term: the court held that the term of office shall be five or seven years.
    • Suspension of the President/ Chairman or member of a Tribunal can be only with the concurrence of the Chief Justice of India.
    • It was held that administrative support for all Tribunals and its members should be from the Ministry of Law and Justice, not from parent ministries or departments concerned.
  • Burdening judiciary
    • There are over 3.5 crore cases pending across the Supreme Court, the High Courts, and the subordinate courts.
    • Also, High Courts have 403 vacancies against a sanctioned strength of 1,079 judges.
What could be done?
  • Expedite appointments
    •  Law Commission’s 245th Report (2014) recommended that to deal with the backlog issue,the addition of well qualified and efficient judges are required to encourage the rate of disposal of cases
    • National Tribunals Commission
      • was first mooted in L. Chandra Kumar v. Union of India (1997) .
      • ( 74th Parliamentary Standing Committee Report on 2015 also mentioned a single nodal agency for monitoring Tribunals, Appellate Tribunals and Other Authorities).
      • to support uniform administration across all tribunals.
      • could  pave the way for the separation of the administrative and judicial functions carried out by various tribunals.
      • 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.

While appreciating the success of the tax tribunals, the Apex Court elucidated that its success roots from one of many reasons of recruitment of members takes place at a younger age which contributes to the progression of their careers within tribunals as well as from tribunals to the High Courts

Conclusion

The Apex Court has said that wherever there is matter involving technical aspects and require assistance of experts, Tribunals are the judicial institutions established to adjudicate them. Also, the right to justice is an essential and intrinsic part of the basic structure of the Constitution
Hence ,instead of abolishing the appellate tribunals, the government should bring about a radical restructuring of the present tribunals system. Establishing a National Tribunals Commission will be a welcome step in this regard.

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