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
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. 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
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
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.
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:
- 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
- Qualification of Judges of the Tribunals should be akin to the Judges of
- Appointment, service conditions, and tenure of the Judges, Chairman,
Vice Chairman, and Members should be in a uniform and independent manner.
- 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
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.
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.
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:
|The Cinematograph Act, 1952
|The Copyright Act, 1957
|The Customs Act, 1962
||Authority for Advance Rulings
|The Patent Act, 1970
|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
||Plant Varieties Protection Appellate Tribunal
|The Control of National Highways (Land and Traffic) Act,
||Airport Appellate Tribunal
||Civil Court of original jurisdiction
The Tribunals Reforms (Rationalisation and Conditions of Service)
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. Ironically, the appellate tribunals that are
proposed to scrap down have been regarded as the additional layer of
, 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
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. 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
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
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. 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
Award Winning Article Is Written By: Ms.Riya Kumar
- M. Cappelletti, Access to Justice 672 (1976
- S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386.
- Associated Cement Co. Ltd. v. PN Sharma, AIR 1965 SC 1595.
- Gujarat Urja Vikas Nigam Ltd v. Essar Power Lad, (2016) 9 SCC 103.
- L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
- Roger Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1
- R.K. Jain v. Union of India (1993) 4 SCC 119.
- Madras Bar Association v. Union of India, (2015) 8 SCC 583.
- Madras Bar Association v. Union of India, (2010) 11 SCC 1.
- Supra note 6, at Page 3.
Authentication No: AP33833141716-28-0421