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Analysis of The Tribunals Reforms (Rationalisation And Conditions Of Service) Ordinance, 2021

The author through this piece of research has tried to highlight the interconnection between the Indian Legal System and the Need of Administrative Tribunals. The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 promulgated by the President of India, has started long standing debates on various issues including the need of specialization of courts and tenure of the judges and members of the tribunals. The author has opted for evaluative and analytical approach towards the proposed bill to encourage the justice delivery system in an efficient manner in order to benefit the citizens of India.

Why Tribunals?

The right to justice is an essential and intrinsic part of the basic structure of the Constitution. According to Cappelletti, Effective access to justice can thus be seen as the most basic requirement - the most basic human right of a system purports to guarantee legal rights.[1] With large number of cases that are filled, huge pendency in the High Courts and in the subordinate Courts giving rise to a general public opinion that the Court proceedings are time-consuming and costly, more so at the High Court level. Whereas, the Tribunal resolve disputes in less time and in a cost-effective manner, creating a constructive atmosphere for the establishment of Tribunals.

In accordance with the recommendations of the Swaran Singh Committee, Part XIV-A titled as ‘Tribunals’ was added in the Constitution (Forty-second Amendment) Act, 1976, which entailed the formation of ‘Administrative Tribunals’ under Article 323-A and ‘Tribunals for other matters’ under Article 323-B.

The Supreme Court has held that the Tribunals are not an end in themselves but a means to an end; even if the laudable objectives of speedy justice, uniformity of approach, predictability of decisions and specialist justice are to be achieved, the framework of the Tribunals intended to be set up, to attain them it is essential to retain the basic judicial character so as to inspire public confidence.[2]

A Five-Judge bench of the Apex Court elucidated regarding the judicial character of the Tribunals. It discussed that Special Matters are assigned to them for adjudication. Both courts and tribunals are established by the State and are entrusted with judicial functions differentiated into purely administrative or executive duties. The courts are bound to follow prescribed procedure laid down by law but the tribunals are not restricted to them, they have the convenience of pronouncing the judgment according to the technicality and circumstances of each case.[3]

Proposition of Reforms

It was in the year 2016 that the Law Commission of India was made a reference by the Apex Court of India to study and submit a report circumscribing several issues in relation to the Tribunals in India.[4]

The 272nd Law Commission Report (2017) proposed certain imperative changes which were made keeping in mind the objective of establishments and procedure of the Tribunals in India. Ensuing are the proposed imperative changes formulated by the Commission:
  1. In order to provide easy Access to Justice to citizens belonging to diversified geographical areas, Tribunals must have benches in different parts of the country
  2. Qualification of Judges of the Tribunals should be akin to the Judges of High Court.
  3. Appointment, service conditions, and tenure of the Judges, Chairman, Vice Chairman, and Members should be in a uniform and independent manner.
  4. With the aim to ensure uniformity in affairs of all the Tribunals, the Ministry of Law and Justice, a single nodal agency, should be made responsible to monitor the working of the Tribunals.
The above mentioned changes contemplated the need to bring down the pendency of cases before the higher courts, escalate the efficiency of the Tribunals and to deliver justice accessibly to the citizens of India. These proposed imperative changes have been appreciated but unfortunately could not have been implemented in actuality.

Tribunals superseding or substituting the High Courts?

The objective of establishment of Tribunals primarily were to surpass the major lacuna prevailing in the Indian legal system in the purview of the legal maxim Lex Dilationes Semper Exhorret meaning the law always abhors delays. The Tribunals were never established to supersede the powers of High Courts.

By the Seven-Judge Bench of the Supreme Court, it was held that it is the part of the basic structure of the Constitution that the High Courts have power to exercise judicial supervision and charge over the decisions of all Courts and Tribunals. The Court was also of the opinion that for efficient working of the Tribunals it is necessary that an independent single nodal ministry can also be set up which shall oversee the conduct of the Tribunals.[5]

The Apex Court recently in the year 2019, criticized the practise of tribunalisation and the system of directing appeals unswervingly to the Supreme Court from the Tribunal. It further elucidates about importance of hierarchy of courts and certainly, directed the appeal to the high court.[6]

The Law Commission of India in its 215th Report (2008) paid emphasis on conceivement and constitution of Administrative Tribunals as real and efficient substitute for the High Courts. The Administrative Tribunals were regarded as the Alternative Mechanism in order to ensure access to justice which is placed at grassroots level.

Highlights of the Tribunals Reforms Ordinance, 2021

The Government of India, on 13th February 2021 introduced the Tribunals Reforms (Rationalisation and Conditions of Service) Bill, in the Parliament of India. The bill got assent of the President of India and came to into existence as an Ordinance on 4th April 2021. It aims to dissolve certain appellate bodies and direct their roles and duties to other judicial bodies that are entailed in the table given below:
 
Acts  Appellate Body Proposed Entity
The Cinematograph Act, 1952 Appellate Tribunal High Court
The Copyright Act, 1957 Appellate Board High Court
The Customs Act, 1962 Authority for Advance Rulings High Court
The Patent Act, 1970 Appellate Board High Court
The Airports Authority of India Act, 1994 Airport Appellate Tribunal
  • Central Government, for disputes arising from the disposal of properties left on airport premises by unauthorised occupants.
  • High Court, for appeals against orders of an eviction officer.
The Trade Marks Act, 1999
  • Appellate Board
  • Appellate Tribunal
  • High Court
  • Registrar or the High Court, as the case may be
 
The Geographical Indications of Goods (Registration and Protection) Act, 1999
  • Appellate Board
  • Appellate Tribunal
  • High Court
  • Civil Court of original jurisdiction
The Protection of Plant Varieties and Farmers’ Right Act, 2001 Plant Varieties Protection Appellate Tribunal High Court
The Control of National Highways (Land and Traffic) Act, 2002 Airport Appellate Tribunal Civil Court of original jurisdiction
Source: The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021

Moreover, the Ordinance curtails reduction of the tenure of the Chairpersons and Members of certain tribunals of National Consumer Dispute Redressal Commission, Securities Appellate Tribunal, Debt Recovery Tribunal, National Company Law Appellate Tribunal, and the Debt Recovery Appellate Tribunal, Customs Excise and Service Tax Appellate Tribunal, Income Tax Appellate Tribunal.

Further, the Ordinance has amended the eligibility for a citizen to be selected as a Chairperson or Member of a Tribunal, thereby, making it mandatory that such a person who has not completed the age of fifty-five (55) year shall not eligible. Furthermore, said bill introduces a Search-cum-Selection Committee which will consist of Chairperson, three (3) Members and one (1) Member Secretary. Out of three (3) Members, two (2) Members will be appointed by the Government of India who will be nominated Secretaries. Furthermore, it makes the Chairperson and Member of Tribunal eligible for re-appointment.

Reform or Downfall? Critical Analysis of the Ordinance

Process of rationalisation of tribunals started to take place by the Government of India since 2015. As per the Central government the proposed reforms are formulated in order to streamline the tribunals. It suggested that public exchequer’s burden shall be reduced by scrapping down the tribunals’ infrastructure and supporting staff. According to the presented statistical by the government, in various sectors the tribunals have not been efficient in delivering faster Justice.

Supreme Court comprising of Three-Judges bench emphasised that establishing tribunals at centre as well as at state level each is vital to deliver access to justice to the citizens who are financially and geographically restrained.[7] Ironically, the appellate tribunals that are proposed to scrap down have been regarded as the additional layer of litigation, resulting into pilling up of matters and delay.

The Ordinance has led to longstanding debates amongst people from various spheres. One of the imperative concern is regarding the specialisation of the courts. It is a fact that Tribunals denotes specialisation of the subject, they are based on. Administrative Tribunals perform ‘hybrid functions’. They are possessed with technique and expertise to handle the complex problems. In the modern society, certain complex matters cannot always be resolved by applying pure legal principles. Administrative Tribunals play an effective role of keeping in mind the technicalities and public interest while resolving the issues.

The need of Tribunals has been recognised by the Supreme Court of India in a celebrated case, rejecting the contention that Tribunals performing judicial functions, traditionally performed by the courts, breaches the basic structure of the Constitution. The Apex Court elucidated that wherever there is matter involving technical aspects and require assistance of experts, Tribunals are the judicial institutions established to adjudicate them.[8] The imperative requirement of efficiency of these Tribunals is that they entail members who have specialised capacity and qualification to handle the matters.

On 23 April 2021, Madras Bar Association moved a petition which was considered by a Three-Judges Bench of Supreme Court comprising of Justices L Nageswara Rao, Hemant Gupta and S Ravindra Bhat. It challenged the Ordinance by referring to it as legislative overruling. By the way of reducing the tenure of the above-listed chairpersons to maximum four years, the government has superseded the rules laid down by the Apex Court stating that the minimum term of tenure must be five years.[9]

The main point of contention is that whether reduction in expenses of India’s budget due to abolishment of tribunals might compromise the quality of Justice delivery system. There is a possibility that the High Courts and Commercial Courts face issues in handling plethora of cases which require technical and specialised support in a specified subject. This would lead to increase in pendency of cases and again fail the objective of Indian Legal System of meeting the needs of the society. Lack of judges in Supreme Court and especially in High Courts is a matter of concern since a long time.

Moreover, transferring pending matters before the Appellate Tribunals to Commercial Courts and High Court as per the proposed Bill, would lead to procedural as well as practical complexities. Law Commission’s 245th Report (2014) recommended that to deal with the backlog issue that addition of well qualified and efficient judges are required to encourage the rate of disposal of cases. In this situation, abolishment of Tribunals might not be a wise step in terms of speedy disposal of cases.

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.

This can only be possible, if young and merit based citizens are recruited as members of the Tribunals.[10] Moreover, the qualifying condition of only a person more than fifty years of age being eligible for becoming the Chairperson and member of the Tribunals, restrict the young talent to prove their excellence and efforts for introducing change in society. Scrapping of the tribunals and capping of age-qualifications of members would possibly lead citizens to wander around for job opportunities.

End-Notes:
  1. M. Cappelletti, Access to Justice 672 (1976
  2. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386.
  3. Associated Cement Co. Ltd. v. PN Sharma, AIR 1965 SC 1595.
  4. Gujarat Urja Vikas Nigam Ltd v. Essar Power Lad, (2016) 9 SCC 103.
  5. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
  6. Roger Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1
  7. R.K. Jain v. Union of India (1993) 4 SCC 119.
  8. Madras Bar Association v. Union of India, (2015) 8 SCC 583.
  9. Madras Bar Association v. Union of India, (2010) 11 SCC 1.
  10. Supra note 6, at Page 3.

Award Winning Article Is Written By: Ms.Riya Kumar
Awarded certificate of Excellence
Authentication No: AP33833141716-28-0421

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