The promulgation of the Tribunals Reforms (Rationalisation & Conditions of Service) Ordinance, 2021, notified on April 4, has done away with nine appellate tribunals including the Intellectual Property Appellate Board (IPAB) and the Film Certification Appellate Tribunal (FCAT). The power of these tribunals has been transferred to the High Courts.
The reason for abolishing so many tribunals appears to be their ineffective functioning, but the major blame for the same has to be borne by the government itself due to its indifference in constituting them, and also the hegemonic behaviour of the higher judiciary.
As of April 1, 2021, the 25 High Courts are functioning with only 669 judges as against the sanctioned strength of 1,080 judges, with pendency of approximately 50 lakh cases. This additional conferment of jurisdiction to the High Courts and their lack of expertise in the area, coupled with formal procedure, expensive and delayed decisions, is likely to delay justice delivery further.
In consonance with the global practice, tribunalization in India formally started with insertion of Articles 323A and 323B into the Constitution by virtue of 42nd Amendment Act, 1976, which provided for establishment of Administrative Tribunals to deal with service matters and also for establishment of other Special Tribunals to deal with special disputes under respective statutes. These tribunals have been established to act as substitutes of High Courts.
Articles 323A and 323B empowered Parliament and legislatures to exclude the jurisdiction of all courts with respect to the concerned disputes or complaints. An exception to this is the jurisdiction of the Supreme Court under Article 136 (discretionary power to entertain appeals). When exclusion of judicial review by the High Courts under Article 226/227 was challenged in SP Sampath Kumar v. Union of India as violative of the Basic Structure of the Constitution, a 5-judge Bench, by applying the theory of “alternative institutional mechanisms”, refuted the submission by observing that judicial review by Supreme Court has been left untouched for bringing matters of importance and grave injustice.
A decade later, while supporting the tribunal system, a 7-judge Bench in L Chandra Kumar v. Union of India held that the power of superintendence of High Courts over lower courts and tribunals is also part of the Basic Structure of the Constitution. The Court went on to declare that Section 28 of the Administrative Tribunals Act, 1985 and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B are unconstitutional. After the judgment, the decision of tribunals constituted under Articles 323A or 323B, became subject to scrutiny by two-judges benches of the High Courts. In the same case, the apex court recognized the power of tribunals to test the vires of subordinate legislation and rules.
In 2002, Parliament brought a legislation for formation of the National Company Law Tribunal and the National Company Law Appellate Tribunal as alternatives for High Courts on company law matters. When this was impugned, a 5-judge Bench in Union of India v. R. Gandhi upheld their constitutionality. The Court also directed that a 4-member selection committee be constituted, which shall consist of the Chief Justice of India (CJI) or his nominee as Chairperson (with casting vote), a senior judge of Supreme Court or Chief Justice of High Court as Member, and Secretaries from the Ministry of Finance or Company Affairs and Law as two other Members. This selection process was reiterated in Madras Bar Assn. v. Union of India.
By virtue of Section 184 of the Finance Act, 2017, rules were made in the year 2017 for qualifications and other conditions of service of members of 19 Tribunals. In Rojer Mathew v. South India Bank Ltd, a 5-judge Bench declared these rules to be unconstitutional, as - (1) there is lack of judicial dominance in search-cum-selection committee, (2) qualifications required for a judicial and technical member lack judicial character, (3) disparity in age of superannuation, (4) short tenures of members and power of government to reappoint members after retirement from one tribunal to another would lead to interference by executive, thereby jeopardising the independence of the judiciary.
On similar grounds, the 2020 Rules were stuck down in Madras Bar Assn. v. UOI, (2020 SCC Online SC 962). This time, on matter of selection, a 3-judge Bench directed constitution of a 5-member committee with the CJI or his nominee having a casting vote power. It was directed that advocates holding 10 years' experience shall be appointed as judicial members of tribunals and the retirement age shall be kept at 67 years.
The conspectus of all these decisions indicates that - (1) the judiciary wants to have a major say in the appointment of members of tribunals, (2) the judiciary intends to rehabilitate retired judges in these tribunals, and (3) the judiciary feels that it has exclusive and predominant power to adjudicate even those disputes of technical and complex nature, as the sole custodian of justice.
The Tribunal Reforms Ordinance, 2021, contrary to the apparent intention of the Supreme Court, postulates that notwithstanding any court’s judgment, the search-cum-selection committee shall recommend a panel of two names for appointment to the post of Chairperson or Member. By prescribing 4-year tenure, without any re-appointment for them, the Ordinance has further negated the direction of the Court to not have short tenures for Members. And to this extent, the Ordinance's constitutionality has been challenged in Supreme Court by the Madras Bar Association, a regular litigant which challenges tribunal-related-laws.
In the never-ending tussle between the executive and the judiciary over the tribunal system, fulfilment of the litigants’ desire to secure speedy, inexpensive and informal justice remains a distant-dream.
Dr BR Ambedkar himself did not repose total trust in the courts when discussions took place in the Constituent Assembly on giving enormous powers to courts by inserting the “due process clause” in Article 21. Justice J Chelameswar rightly pointed out in his dissenting judgment in Supreme Court Advocates-on-record Assn. v. Union of India that “to assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well, is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved”.
Added to this, the Supreme Court itself in Manoj Narula v. UOI observed that the doctrine of “constitutional trust” is applicable to every high constitutional functionary. Therefore, by reposing trust in other institutions, the government and higher judiciary can ensure that tribunals function as effective alternative institutions. The need of the hour is not abolition of tribunals, but ensuring their effective functioning.
Prof GB Reddy is a Professor at University College of Law, Osmania University. Baglekar Akash Kumar is a student at the University.
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views of Bar & Bench.