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Insights into Editorial: Act and friction: On appointments to tribunals

 

 

 

Introduction:

Tribunals form an integral part of the Indian justice system. Their failure to achieve the objective of efficient dispute resolution has led to widespread recognition of the need for administrative reforms of tribunals.

The Union Government has attempted to achieve this by-passing rules to rationalise and consolidate tribunal administration, but these attempts have been the subject of numerous challenges in the Supreme Court of India.

 

Context:

  1. Recent developments have demonstrated the Union government’s implacable determination to undermine the autonomy of the various tribunals in the country.
  2. It recently got Parliament to enact the Tribunals Reforms Act, which contained provisions that had been struck down by the Supreme Court in an ordinance issued earlier.
  3. After being sharply questioned by the Supreme Court on the unusual delay in filling up vacancies among judicial and administrative members, it released a set of appointments.
  4. The Court found that there was cherry-picking among the names chosen by the various Selection Committees.
  5. Instead of exhausting the selection list put together by panels of judges and officials, the Government had waded into the waiting list to exercise its choice.
  6. In another development, the Government cut short the tenure of the Acting Chairperson of the National Company Law Appellate Tribunal (NCLAT) by 10 days. That chairperson was set to deliver in some matters on which the NCLAT had reserved judgment before retiring on September 20.

 

Importance of Tribunals:

  1. The 42nd Constitutional Amendment in 1976 embedded tribunals as an integral part of the justice delivery mechanism in India.
  2. Since then, specialised tribunals have been set up in a wide range of sectors both under union as well as state laws.
  3. However, the more than four decades-long experience with these tribunals has been far from satisfactory, and has exposed many problems plaguing these adjudicatory bodies.
  4. The introduction of Articles 323A and 323B into the Constitution of India has successfully embedded tribunals as an integral part of the justice delivery mechanism in the country.
  5. Since the tribunals have been vested with jurisdiction over certain matters that were previously vested with the district courts and the High Courts, these judicial institutions have become forums for the common person to seek justice and therefore are expected to be as fair and as independent as any other court.
  6. The tribunals should not become an indirect route for the executive to assert their control over the judiciary.

 

Recent Supreme court view on Tribunals:

  1. The Supreme Court emphasized the importance of ensuring that tribunals carry out their judicial duties without intervention from the executive branch, either knowingly or unknowingly.
  2. Until the National tribunal Commission is formed, a separate division of the Ministry of Finance will be formed to fulfil the interest of tribunals.
  3. A bench led by Justice L Nageswara Rao said that establishing such a commission would improve the reputation of tribunals and instil trust in the minds of litigants, but that relying on the parent department for all of their needs would not “extricate them from the executive’s control.”

 

Need of the hour: National Tribunals Commission:

  1. The issue of tribunals has been a source of considerable friction between the Government and the Court.
  2. Courts want to ensure that a reasonable tenure was available to the appointees, and do not allow criteria related to age and experience to be used to undermine their independence.
  3. Tribunals have always been seen as institutions that were a rung lower in independence as regular courts, even though there is wide agreement that administrative tribunals are required for quicker and more focused adjudication of cases that required specialisation and domain expertise.
  4. As several laws now provide for such adjudicative bodies, the executive does have an interest in retaining some leverage over their members.
  5. The Supreme Court has repeatedly called for the establishment of a national tribunals commission to make suitable appointments and evaluate the functioning of tribunals.
  6. The idea of an National Tribunals Commission was first mooted by the Supreme Court in Chandra Kumar v. Union of India (1997).
  7. The objective of National Tribunals Commission is envisaged to be 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.

 

Implementing the Idea of ‘National Tribunals Commission’ (NTC):

  1. Over the course of these challenges, the idea of creating a ‘National Tribunals Commission’ (NTC) to independently appoint, supervise, and administer tribunals has emerged as a solution.
  2. Various rulings of the Supreme Court over time have directed the Union Government to set up an NTC. Tribunals at the state level too would benefit from a state tribunals commission. There has been little progress in this area.
  3. Therefore, instead of delegating the powers to the executive to frame rules that determine appointments to the tribunals, the legislature should empower the NTC to frame rules and oversee the process of appointment.
  4. There must be adequate judicial representation, and the conditions of eligibility for membership of the NTC or any sub-committee should uphold these principles.
  5. Following the consolidation of tribunal administration under the NTC, we recommend that a single sub-committee under the NTC should be responsible for the appointment of judicial members to all tribunals.
  6. Sub-committees should be formed to appoint technical members. The NTC should ensure that tribunal’s composition is such that their independence is maintained while also considering the area of specialisation of the tribunal.

 

Conclusion:

Developing an independent oversight body for accountable governance requires a legal framework that protects its independence and impartiality.

Therefore, the National Tribunals Commission should be established via a constitutional amendment or be backed by a statute that guarantees it functional, operational and financial independence.

As tribunals have attained a unique place in the Indian judicial landscape and have been adjudicating several important matters, their independence has to be crystallised and preserved in reality by the formation of NTC.