The Tribunal Reforms Bill replaced the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. The provisions in the ordinance concerning conditions of service and tenure of tribunal members and chairpersons were struck down by a three-judge bench of the Supreme Court in July 2021. The bench comprised justices Nageshwara Rao, Ravindra Bhat, and Hemant Gupta.
In the verdict, Justices Rao and Bhat formed the majority, while Justice Gupta dissented and upheld the changes. Besides, Chief Justice of India N.V. Ramana also made remarks on the process of appointment of tribunal members, which caused a fresh deadlock between the legislature and the judiciary over the powers of and limitations on law-making.
It is to be noted that despite striking down of certain provisions of the ordinance by the Supreme Court, the same provisions were included in the Tribunal Reforms Bill, 2021 and was introduced in the Lok Sabha on August 2, 2021. Then the bill was passed by the Lok Sabha on August 3, 2021 and by the Rajya Sabha on August 9, 2021. It received the presidential assent on August 13, 2021 and became The Tribunals Reforms Act, 2021. Coming into force from April 4, 2021, the act amended the cinematograph Act, 1952; the customs Act, 1962; the Airports Authority of India Act, 1994; the Trade Marks Act, 1999; and the protection of plant varieties and Farmers Rights Act, 2001; and certain other acts.
Major Provisions of the Act
The act dissolved certain existing tribunals and transferred their functions, such as adjudication of appeals to other existing judicial bodies.
Amendments to the Finance Act, 2017 The Finance Act, 2017 merged tribunals on the basis of domain and empowered the central government to notify rules on: (i) composition of search-cum-selection committees, (ii) qualifications of tribunal members, and (iii) their terms and conditions of service like their removal and salaries. The act removes these provisions from the Finance Act, 2017, and makes them a part of itself. The act empowered the central government to make rules regarding the qualifications, appointment, salaries and allowances, resignation, removal, and other conditions of services of the chairperson and member of a tribunal.
Search-cum-selection Committees The chairperson and members of the tribunals will now be appointed by the central government on the recommendation of a search-cum-selection committee. The committee, except for the state administrative tribunal, will comprise: (i) a chairperson who shall be the Chief Justice of India or a Supreme Court judge nominated by him (with casting vote), (ii) two secretaries will be nominated by the central government as members (iii) the sitting or outgoing chairperson, or a retired Supreme Court judge, or a retired chief justice of a high court, and (iv) the secretary of the ministry under which the tribunal is constituted (with no voting right).
For state administrative tribunals, provisions were made for a separate search-cum-selection committee. This committee will comprise: (i) the chief justice of the high court of the concerned state, as the chairman (with a casting vote) (ii) the chief secretary of the state government and the chairman of the public service commission of the concerned state as members (iii) the sitting or outgoing chairperson, or a retired high court judge, and (iv) 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 act 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 the appointment of a chairperson or a member.
- There is provision of re-appointment based on the performance, following the recommendation of the search-cum-selection committee.
- A uniform, salary, equivalent to central government officers holding the same post is provided.
- The chairperson or members can be removed from office on the basis of recommendation of the search-cum-selection committee and they will cease to hold the office but entitled to claim compensation equivalent to three months’ pay and allowances for their premature termination.
The Dissolved Tribunals
There are 16 tribunals in India, including National Green Tribunal, Armed Forces Appellate Tribunal, Debt Recovery Tribunal, etc., which now suffer from crippling vacancies. The present act has dissolved eight of them, namely, (i) the Film Certification Appellate Tribunal under The Cinematography Act, 1952; (ii) the Intellectual Property Appellate Board under The Trade Marks Act, 1999; (iii) the Intellectual Property Appellate Board under The Copyright Act, 1957; (iv) the Customs, Excise, and Service Tax Appellate Tribunal under The Customs Act, 1962; (v) the Intellectual Property Appellate Board under The Patents Act, 1970; (vi) the Airport Appellate Tribunal under The Airports Authority of India Act, 1994; (vii) the National Highways Tribunal under The Control of National Highways (Land & Traffic) Act, 2002; (viii) and the Intellectual Property Appellate Board under The Geographical Indications of Goods (Registration and Protection) Act, 1999.
Issue of Contention
The act has become a matter of controversy since its passage and the Supreme Court issued a notice in this regard on August 16, 2021 on a writ petition filed by Jairam Ramesh challenging the act as ultra vires. As per the petitioner, the provisions in the 2021 Act were a “transgression of the constitutional limits of Parliament’s legislative power and undermines the power of judicial review and the supremacy of the Constitution, which are basic features of the Constitution”.
The act dissolves eight tribunal and confers their jurisdiction on high courts and civil courts, so as to address the problem of shortage of staff, infrastructure in tribunals, and lagged dispute resolution. It also contains provisions that bring changes in the procedure of constitution of tribunals, conferring the power of appointment and removal upon the search-cum-selection committee (SCSC). As per the writ petition, this poses a serious threat to judicial independence by giving the government overarching powers in matter of appointments, service conditions, salaries, etc., of members of key tribunals.
Conflicts between Judiciary and Legislature
There have been other instances also, in which the Supreme Court and Parliament have dissented with each other regarding the issue of rationalisation of tribunals.
In the Roger Mathew vs Union of India case, a five-judge constitution bench, headed by the then CJI, Ranjan Gogoi, and comprising justices Ramana and D.Y. Chandrachud had struck down an amendment to the Finance Act, 2017, passed as a money bill, that altered the structure and functioning of various tribunals. The bench directed the government to formulate fresh norms on the appointment of tribunal members.
In two other instances, the Madras Bar Association had challenged, in 2010 and 2015, various provisions relating to the establishment of the National Company Law Tribunal. The Supreme Court, in two judgments, had interpreted provisions relating to the appointment of members to support the independence of the judiciary.
In a recent development in September 2021, the Supreme Court has warned the central government to impose a suo motu stay on the legislation of tribunal reforms. Deep concern was expressed by the Chief Justice of India NV Ramana during the hearing of a petition by NCLAT acting chief who had challenged the curtailment of his tenure by 10 days. He was to retire on September 20, 2021. The curtailment of his tenure was done as per the new act.
Experts’ Views
There is no consensus among legal experts on the efficacy of the government’s move. Some are of the view that the move may lead to faster hearing and disposal of cases while others express apprehension that the lack of specialisation in regular courts could harm the decision-making process. For instance, the Film Certification Appellate Tribunal requires expertise in art and cinema as it exclusively hears appeals against decisions of the censor board. Transferring cases to high courts will put extra pressure as the courts are overburdened.
Conclusion
The Constitution grants ample powers to all the organs of the government—executive, legislature, and judiciary. Each one works smoothly and makes the process of administration easy, which is also one of the distinctive features of federalism. Yet, at times, dissenting views emerge, and matters reach deadlock for lack of judicious decisions. The present case may be said of the same ilk. However, the sooner the tussle gets solved, the better. Each party must show restraint and reach a wise solution amicably.
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