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Insights into Editorial: Restructuring the tribunals system

 

 

Context:

The Centre has abolished several appellate tribunals and authorities and transferred their jurisdiction to other existing judicial bodies through the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021. This Ordinance has been challenged in the Supreme Court.

 

Sharp criticism against the ordinance by the centre:

The Ordinance has met with sharp criticism for not only bypassing the usual legislative process, but also for abolishing several tribunals such as the Film Certification Appellate Tribunal without any stakeholder consultation.

Further, this is not the time that the central government has tried to interfere with the functioning of the tribunal.

This interference of the executive in the domain of the tribunals can be dubbed as violation of separation of powers.

 

Background for National Tribunals Commission (NTC):

  1. The idea of an NTC was first mooted in Chandra Kumar v. Union of India (1997), but it has still not seen the light of day.
  2. Initiating dialogue and promoting awareness about the NTC is vital for overcoming the government’s inertia in establishing such a body.
  3. Developing an independent oversight body for accountable governance requires a legal framework that protects its independence and impartiality.
  4. Where the institutional design is not properly conceived, partisan interests can twist the law to serve political or private interests.
  5. In India, executive interference in the functioning of tribunals is often seen in matters of appointment and removal of tribunal members, as well as in provision of finances, infrastructure, personnel and other resources required for day-to-day functioning of the tribunals.
  6. Therefore, the NTC must be established vide a constitutional amendment or be backed by a statute that guarantees it functional, operational and financial independence.

 

Need for National Tribunals Commission (NTC) to decrease Judicial backlogs:

  1. NTC will need to adhere to the standards set by the judiciary in maintaining its independence.
  2. Due to an overwhelming executive role, the National Judicial Appointments Commission (NJAC) was seen to be severely compromising the independence of the judiciary.
  3. Thus, the executive as well as the bar, being relevant stakeholders, should form a part of any NTC, but it needs to give primacy to judicial members.
  4. Developing an independent oversight body for accountable governance requires a legal framework that protects its independence and impartiality.
  5. Therefore, the NTC should be established via a constitutional amendment or be backed by a statute that guarantees it functional, operational and financial independence.

 

Establishment of the National Tribunals Commission (NTC):

  1. One way to regulate the matters of tribunals without compromising their independence is the establishment of the National Tribunals Commission (NTC).
  2. Despite the Supreme Court’s direction in Rojer Mathew v. South Indian Bank (2019), no judicial impact assessment was conducted prior to abolishing the tribunals through this Ordinance.
  3. While the Ordinance has incorporated the suggestions made in Madras Bar Association v. Union of India (2020) on the composition of a search-cum-selection committee and its role in disciplinary proceedings.
  4. It has also fixed a four-year tenure for Chairpersons and members of tribunals “notwithstanding anything contained in any judgment, order, or decree of any court” by blatantly disregarding the court’s direction for fixing a five-year term.
  5. Further, the Centre is yet to constitute a National Tribunals Commission (NTC), an independent umbrella body to supervise the functioning of tribunals, appointment of and disciplinary proceedings against members, and to take care of administrative and infrastructural needs of the tribunals.

 

Administrative duties of the NTC:

  1. One of the main reasons that has motivated the idea of NTC is the need for an authority to support uniform administration across all tribunals.
  2. The NTC could therefore pave the way for the separation of the administrative and judicial functions carried out by various tribunals.
  3. A ‘corporatised’ structure of NTC with a Board, a CEO and a Secretariat will allow it to scale up its services and provide requisite administrative support to all tribunals across the country.
  4. The NTC would ideally take on some duties relating to administration and oversight.
  5. It could set performance standards for the efficiency of tribunals and their own administrative processes.
  6. Importantly, it could function as an independent recruitment body to develop and operationalise the procedure for disciplinary proceedings and appointment of tribunal members.
  7. Giving the NTC the authority to set members’ salaries, allowances, and other service conditions, subject to regulations, would help maintain tribunals’ independence.
  8. Administrative roles of the NTC include providing support services to tribunal members, litigants, and their lawyers.
  9. For this purpose, it would need to be able to hire and supervise administrative staff, and to consolidate, improve, and modernise tribunals’ infrastructure.

 

Conclusion:

As the Finance Ministry has been vested with the responsibility for tribunals until the NTC is constituted, it should come up with a transition plan.

It is important to understand that the tribunals were set up to reduce the burden of cases from regular courts.

A reform to the tribunals system in India may as well be one of the keys to remedy the age-old problem that still cripples the Indian judicial system as the problem of judicial delay and backlog.

The way to reform the tribunal system is to look at solutions from a systemic perspective supported by evidence.

Establishing the NTC will definitely entail a radical restructuring of the present tribunals system.