Restructuring The Tribunals System

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The centre has abolished various appellate tribunals and authorities and transferred their jurisdiction to other already existing judicial authorities. It is done under Tribunals Reforms (Rationalisation and condition of service) Ordinance 2021.

The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021

• It was promulgated on April 4, 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).

• 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.

• 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 Advance Ruling established under the Income Tax Act, 1961, and 
• the Film Certification Appellate Authority established under the Cinematograph Act, 1952

Criticisms of Ordinance 

The ordinance was criticised for various reasons:

1. Bypassing the legislative system of passing any law.
2. Abolition of several administrative Tribunals without any stakeholder consultation. For example, the Film Certification Appellate Tribunal is abolished.
3. No Judicial Impact Assessment was done before abolishing these tribunals despite the Supreme Court’s Judgement in Rojer Mathew vs South Indian Banks (2019).
4. The SC asked to have a five-year term for Chairpersons and Members of Tribunals, still, the Ordinance has a 4-year term for them.
5. No efforts are yet taken on the establishment of the National Tribunal Commission (NTC).

National Tribunals Commission (NTC)

• NTC should be established as advised in L. Chandra Kumar vs Union of India case (1997). 
• It will be an umbrella body and independent in nature to supervise the functioning of the Tribunals. 
• It will also look over the appointment of and disciplinary proceedings against the members.
• It will take responsibility for the administrative and infrastructural needs of Tribunals.
• NTC should be established with a legal framework backing it so as to make its working impartial, transparent and independent in nature.
• The Finance Ministry has been vested with the responsibility of Tribunals until NTC is created.

Challenges for NTC

• Establishment of NTC as an independent body.
• Promoting awareness about NTC.
• Establishing NTC through constitutional amendment or by a statute that guarantees its functional, operational and financial independence.
• In India, executive interference in the functioning of tribunals is often there: 
  • In matters of appointment and removal of tribunal members, 
  • In the provision of finances, infrastructure, personnel and other resources required for the day-to-day functioning of the tribunals.

Tribunals and Constitutional validity

• Tribunals were incorporated in the Indian Constitution by the 42nd Amendment Act, 1976 on recommendations of the Swaran Singh Committee.
• Article 323A empowers the Parliament to provide for the establishment of administrative tribunals for the adjudication of disputes relating to service of persons appointed to public services of the Centre, the States, Local bodies, Public Corporations and other Public Authorities.
• Article 323-B deals with the establishment of tribunals by the Parliament and the state legislature 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
  • Foodstuff
  • Rent and tenancy rights
• Under article 323B, Parliament and State legislatures both can establish tribunals with respect to matters falling within the legislative jurisdiction.

Significance of Tribunals

• They are quasi-judicial bodies.
• They perform a number of functions like 
  • adjudicating disputes, 
  • determining rights between contesting parties, 
  • making an administrative decision, 
  • reviewing an existing administrative decision etc.
• They are useful in sharing the burden of the Courts at all levels.
• Appeals to their decisions can be made in the High Court or Supreme Court so that justice is done totally.

Issues with the Functioning of Tribunals

• Lack of separation of powers: However, a large segment of the justice delivery has shifted from courts to tribunals, the tribunals are run by the government (executive) and not the judiciary.
• Administrative issues: The manner of appointment of its members, performance appraisal, career path for tribunal members, remuneration, terms of service are all outside the oversight of the judiciary.
• Pendency and Vacancy: The Law Commission Reports highlighted worrying pendency figures for various tribunals. Tribunals also suffer from the same problems of shortage of personnel as with the judiciary in India.
• Excluding Jurisdiction of Courts: With so many areas of jurisdiction being taken away from the high courts and moved to tribunals, unmindful long-term damage is being inflicted on the judiciary. The very creation of regulatory agencies and giving them quasi-judicial powers, is excluding the jurisdiction of courts.
• Lack of autonomy and Independence

Way Forward

• The way to reform the tribunal system is to look at solutions from a systemic perspective supported by evidence. 
• It is important to recognise that holistic reforms can only be conceived and effectively implemented by engaging with all stakeholders.
• Establishing the NTC will definitely entail a radical restructuring of the present tribunal system. The Finance Ministry should come up with a transition plan to transfer the responsibility for tribunals to NTC.
• Shifting the oversight of tribunals from the executive government to the judiciary can also be a suitable step.

Sources: TH