Judiciary plays hardball in making of tribunals as legal experts differ

Illustration: Binay Sinha
There was a sense of deja vu when the Supreme Court struck down a rule framed by the Centre to regulate the appointment of members to tribunals and appellate tribunals, with a direction to the government to reformulate them.

The apex court’s observations reflected the findings of a Law Commission of India report (Assessment of Statutory Frameworks of Tribunals in India) that was submitted to the government in October 2017. Two years later, the Supreme Court voiced similar concerns that were raised in the Commission’s findings.

Legal experts say striking down of the rules that regulate appointments in tribunals is unlikely to impact their functioning. However, the apex court has clearly thrown the gauntlet at the Centre to get its act together on how tribunals are set up and run.  

“This does not necessarily create a vacuum as the earlier provisions relating to the appointment of tribunal members would continue to apply,” says Mukesh Butani, founder-partner, BMR Legal.

So, until the government formulates fresh rules, all appointments would be made according to the applicable law prior to the enactment of the Finance Act, 2017, say experts.

The SC ruling has again put the spotlight on a long-standing tussle between the executive and the judiciary on the efficacy of the tribunal system. Judiciary has been of the view that tribunals -- a quasi-judicial institution --have been used to undermine the independence of the judicial process. The executive held that tribunals help address delays in disposal of cases in courts.

Legal experts are divided over the question whether the current ruling by the apex court would have any impact on the government’s position vis-à-vis setting up and functioning of tribunals.

“We have seen multiple judgments of the Supreme Court on tribunals which have tried to change the way the government sets up and runs tribunals, but again and again, the government, irrespective of party in power, has shown reluctance to do so in accordance with the judgments of the court,” says Alok Prasanna Kumar, senior resident fellow at Vidhi Centre for Legal Policy.

Since tribunals replace courts for specified disputes, the Supreme Court has opined that the qualification and acumen of the members of various tribunals must be commensurate with that of judges, points out Tine Abraham, partner at Law firm, Trilegal.

Butani, however, is more optimistic of change. “One can expect that the process for appointment of tribunal members would be streamlined and made transparent to ensure talented experts are appointed,” he adds.

Experts argue that the amendments suggested in the Finance Act, 2017, were expected to streamline the process and qualification of various tribunal members and fast-track their appointments. “It appears the selection rules were formulated in a zeal to ensure that tribunals are expeditiously manned and a major cause for delay in justice dispensation is addressed,” says Butani.

Given the current state of redundancy and delay in various tribunals, consolidation of tribunals is as a positive step forward, Abraham points out.

Kumar concurs with the apex court’s view that a judicial and financial impact assessment ought to be carried out before tribunals are merged, given the implications of such a merger. Among other things, the Commission had noted that currently there is no uniformity in the age of retirement of tribunal members.

One of the key findings in the Law Commission’s 2017 report was that the high pendency of cases in some tribunals indicates that the objective of setting them up has not been achieved. The Commission, too, had suggested the involvement of government agencies in the appointment of members should be minimal since the government is typically a party in litigation.

Butani agrees with this point of view. “It is apparent that with the government being the largest litigant, it must neither be allowed nor perceived to have a vital play in the appointment of the tribunal members via these Selection Committees,” he says.

Most experts feel the ideal solution is having a tribunals commission and giving neither the judiciary nor the government final say in the matter.

What Supreme Court wants
  • Government must frame fresh rules to regulate appointment of members to tribunals and appellate tribunals
  • New rules should ensure non-discriminatory and uniform conditions of service
  • Government must conduct  judicial impact assessment of all tribunals to analyse ramifications of changes in their framework
  • Apex  court recommends setting up of an independent statutory body, ‘National Tribunals Commission’, to oversee the selection process of members, fixing criteria for appointments and service rules



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