Tribunals Reforms Bill 2021

Context:

The Parliament has passed the Tribunals Reforms Bill 2021,

• Which has provisions relating to the tenure, age criteria, and search-cum-selection committee for tribunal appointments.
• However, the new bill has once again tried to reintroduce similar provisions to the ones struck down by the Supreme Court earlier, giving rise to the possibility of a new challenge in the apex court.

About Tribunals Reforms Bill 2021:

• The Tribunals Reforms Bill, 2021 was introduced in Lok Sabha by the Finance Minister, Ms. Nirmala Sitharaman, on August 2, 2021.  The Bill seeks to dissolve certain existing appellate bodies and transfer their functions (such as adjudication of appeals) to other existing judicial bodies (see Table).  The Bill replaces a similar Ordinance promulgated in April 2021.

Transfer of functions of key appellate bodies as proposed under the Bill

• Amendments to the Finance Act, 2017: The Finance Act, 2017 merged tribunals based on domain.  It also empowered the central government to notify rules on:
  • composition of search-cum-selection committees,
  • qualifications of tribunal members, and
  • their terms and conditions of service (such as their removal and salaries). 

The Bill removes these provisions from the Finance Act, 2017.  Provisions on the composition of selection committees, and term of office have been included in the Bill.  Qualification of members, and other terms and conditions of service will be notified by the central government. 

• Search-cum-selection committees: 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:
  • 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).  
     
• State administrative tribunals will have separate search-cum-selection committees.  These Committees will consist of:
  • the Chief Justice of the High Court of the concerned state, as the Chairman (with a casting vote)
  • the Chief Secretary of the state government and the Chairman of the Public Service Commission of the concerned state,
  • the sitting or outgoing Chairperson, or a retired High Court Judge, and
  • the Secretary or Principal Secretary of the state’s general administrative department (with no voting right).  The central government must decide on the recommendations of selection committees preferably within three months from date of the recommendation.
     
• Eligibility and term of office: The Bill provides for a four-year term of office (subject to the upper age limit of 70 years for the Chairperson, and 67 years for members).  Further, it specifies a minimum age requirement of 50 years for appointment of a chairperson or a member.  

How does the Bill Contradict SC Judgement?

The provisions of the bill are similar to certain provisions of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021, which were struck down by the Supreme Court last month.

Administrative Tribunals

The characteristics of administrative tribunals are mentioned below.

1. They are of statutory origin, and so must be created by a statute by Parliament/Legislatures.
2. They are quasi-judicial in nature, which means, they have some, not all the features of a court.
3. They function on the principles of natural justice and are not bound by the Civil Procedure Code.
4. They have the power to summon witnesses, administer oaths and compel the submission of documents, etc. like other courts.
5. The writs of prohibition and certiorari are available against decisions of such tribunals.
6. They are independent bodies and are not subject to administrative interference.

Other Tribunals

A few examples of other tribunals are briefly described below.

Armed Forces Tribunal

• This is a military tribunal established under the Armed Forces Tribunal Act, 2007.
• It settles disputes with respect to the commission, emoluments, appointments and service conditions of personnel in the armed forces.
• Its Principal Bench is in New Delhi. It also has ten Regional Benches.

National Green Tribunal

• It was formed in 2010 for effective and expeditious disposal of cases that are related to the protection and conservation of the environment, forests and other natural resources.

Water Disputes Tribunal

• These are constituted for the purpose of settling disputes between Indian states on the question of water-sharing between rivers that flow through multiple states.

Income Tax Appellate Tribunal (ITAT)

• Established in 1941, the ITAT deals with appeals under the direct taxes acts.
• The orders passed by this tribunal are final and an appeal lies to the High Court only if a substantial question of law arises for determination.
• Currently, the tribunal has 63 Benches.

Tribunal vs Court

Both tribunals and courts deal with settling disputes between parties that affect the subjects’ rights. Tribunals are like courts in many respects but there are differences between the two. The following table summarises the difference between tribunals and courts.

SC on the vacancy on Tribunals 

• No new judicial appointments have been made to tribunals since 2017 when the government first framed rules for a uniform appointment procedure to these quasi-judicial bodies.
• The Statement of Objects and Reasons of the 2021 Bill states that data from the past three years shows that the presence of tribunals in certain sectors has not led to faster adjudication, and such tribunals add considerable cost to the exchequer. 
• It also states that these amendments would address the issue of shortage of support staff and infrastructure in such tribunals.  
• However, transferring functions of an appellate body to a High Court may lead to a further increase in the disposal time of cases as most High Courts already have high pendency.  
• The lack of human resources (such as inadequate number of judges) is observed to be one of the key reasons for accumulation of pending cases in courts.
• The Standing Committee on Personnel, Public Grievances, Law and Justice (2015) had noted that several tribunals (such as Cyber Appellate Tribunal and Armed Forces Tribunal) have vacancies which makes them dysfunctional.
• As of March 3, 2021, there were 23 posts vacant out of a total  34 sanctioned strength of judicial and administrative members in the Armed Forces Tribunal.
• The Committee stated that NTC being a dedicated independent agency for providing resources (includes infrastructural, financial, and human resource) to tribunals would help in resolving such issues.
• The Supreme Court (2019) considered the question whether amalgamation of tribunals could increase litigation, which in the absence of adequate infrastructure or budgetary grants, would overburden the judiciary.  
• It noted the absence of such judicial impact assessment, and directed the central government to undertake an exercise to assess requirements and make sufficient resources for each Tribunal. 
• Neither the Finance Act, 2017 which reorganised several Tribunals nor this Bill provide a Financial Memorandum that estimates the resources required as a result of their provisions.
• This defeats the purpose with which these tribunals were set up, which was to help reduce the burden on High Courts.  
• Further, if there is an issue of shortage of administrative capacity at such tribunals, it may be questioned whether the capacity should be increased, or their case-load be shifted to other courts.

Problems with Tribunals in India:

• Huge unfulfilled Vacancy: Different qualification requirements for different tribunal leads to a high level of vacancy in the appellate tribunals. For example, In 13 tribunals alone, nearly 138 posts lying vacant out of 352 posts.
• 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. Combined with the Vacancy they cannot determine the appeals. So the ordinance is necessary.
• 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. So, the ordinance by shifting the appeals to the Judiciary will enable fair trial.
•  Non-uniformity across tribunals with respect to service conditions, tenure of members, varying nodal ministries in charge of different tribunals. This created and contributed to malfunctioning in the managing and administration of tribunals.
• Ad-hoc regulation of Tribunals: The tribunals fall under various ministries subjects to frequent ad-hoc regulatory changes. By abolishing the appellate tribunals there won’t be any such possibility for ad-hoc regulations.

Bypassing the jurisdiction of the High Court in certain Tribunals: 

Few tribunals like NGT, NCLAT, CAT, etc have provisions allowing for direct appeals to the Supreme Court. Even though the Supreme court in the L. Chandra Kumar case criticized them for such practice. The Supreme Court held that it will create congestion in SC and also make the Justice costly and inaccessible.

Suggestions

• SC has cautioned on the continuous creation of tribunals. So the Government has to stop creating new Tribunals and focus on bringing standardisation in Tribunals instead of abolishing them.
• The government has to amend the provisions of Tribunals that left High Courts out of its Jurisdiction.
• Adopting a methodology of a merger like the United Kingdom. The UK also suffered a similar problem to India with Tribunalisation. Further, both countries have similar administrative frameworks. This was highlighted by the Supreme Court in the NCLT Case. Further, the SC also mentions few significant recommendations. 
• The Leggatt Report of the UK is also applicable to the problem faced by Tribunals in India. India has to create a single tribunals service and nodal agency based on the Leggatt Report. The Supreme Court also recommended the establishment of a National Tribunals Commission as an independent body to overview the functioning of tribunals.
• 74th Parliamentary Standing Committee Report on 2015 also mentioned a single nodal agency for monitoring Tribunals, Appellate Tribunals and Other Authorities

Source: Indian Express

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