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Rebooting tribunals and recalibrating delivery of justice
The 42nd amendment of 1976 added Part XIVA to the constitution. Articles 323A and 323B in this part provides for tribunals. Parliament and state legislatures can establish tribunals through law.
Tribunals are quasi judicial bodies which adjudicate matters which are relating to subjects which are assigned to them. CAT – Central Administrative Tribunal is an example which deals with matters related to public services of union government.
What has happened:
Finance act of 2017 provided for the executive to decide on criteria of appointment and removal as well as terms of service. In pursuance of the same central government had notified Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017.
In the Rojer Mathew case(2019), Supreme court had struck down these rules citing they are against judicial independence and asked the centre to frame rules as per previous judgments of court.
The Centre has notified new rules in February 2020. These new rules are being criticized as being against earlier judgments of the supreme court.
Supreme court judgments have repeatedly emphasised independence of these tribunals from executive and streamlining of their functioning to ensure separation of powers. Major cases in this regard are:
- RK Jain Vs Union of India(1993);
- Chandra Kumar Vs Union of India (1997),
- Union of India Vs R Gandhi (2010),
- Madras Bar Association Vs Union of India (2014)
- Rojer Mathew Vs South Indian Bank Limited 2019
New rules in contravention of judgments:
- Chandra Kumar(1997) and R.Gandhi(2010) judgments ordered that tribunals should not be under ministries against which orders have to be passed. New rules have not incorporated the same.
- It leads to conflict of interest where ministries control infrastructure, finances and staffing of tribunals under them. Complaints against tribunal members are also received by ministries which can be misused for quid pro quo.
- New rules provide for the secretary of the relevant ministry to be part of the selection committee for members of the tribunal. Further, such selection committees can function even without judicial members.
- Madras Bar association judgment had discouraged inclusion of secretaries due to conflict of interest. In addition, primacy of judicial members in selection committees was ordered by the supreme court. New rules have flouted both these
- New rules provide for 4 year tenure of tribunal members with an upper age of 65 years. In R. Gandhi judgment(2010), court called for 5-7 year tenure.
- With 4 year tenure under the rules, judicial members will be disadvantaged as retirement age is 62 years for high court judges and only 3 years service will be possible.
- Prohibition imposed on further employment under state and central governments is removed. It may compromise judicial independence emphasized in court judgments.
- In R.Gandhi judgment(2010), vague qualification criteria for Members such as experience in economics, business, commerce, nance, management etc was struck down.
- New rules, in contravention to judgment, have included such criteria for some tribunals like armed forces tribunals.
Solutions to recalibrate tribunals to promote efficient justice delivery:
- The Supreme court must deal with only exceptional cases dealing with points of law, constitutional matters of general importance. In most cases the high court must be the final arbiter and the special leave petition(Article 136) to the supreme court must be accepted sparingly. This ensures reduced burden on the judiciary which is the original intent of tribunals as observed in Bihar Legal Service Society(1987), L Chandra Kumar and Rojer Mathew
- Tribunals must be created only in subjects of high technicality. In these cases, eligibility criteria must not be vague as specified in R.Gandhi judgment.
- Tribunals must function only under the Ministry of Law and Justice(MoL&J) and not under parent ministries to prevent conflict of interest. Income tax appellate tribunal is currently under MoL&J.
- National tribunals commission was suggested in Rojer Mathew judgment as an overarching body to regulate appointments, tenure and terms of employment
- Instead of more tribunals, stable rosters to High court judges can promote specialization. Economic survey 2017-18 pointed out taxation benches in supreme court led to reduced pendency due to specialization.
- Tribunals can be created in the judicial system. This improves case disposal efficiency as courts can assign new judges in case of vacancies instead of stopping adjudicatory proceedings. It also brings new perspectives in addition to views of specialists
- Intra court appeals in high courts to be increased along with making some subject matters final in high courts. This provides accessible and affordable remedy to people and unburdens the supreme court. It must be explored as alternative to proposed ‘court of appeal’ between High courts and supreme courts
Reforms to revitalize tribunals are being pursued actively by the government. Opposition to such reforms is seen with ministries. With political will to tackle these issues, and on the strength of existing judgments of the Supreme Court, reforms need to be implemented at the earliest in line with the vision of the political executive, the spirit of the Constitution and the decisions of Constitutional Courts take full effect and shape
- What are quasi judicial bodies? Have the tribunals in India served their purpose? What steps can be initiated to improve efficiency of tribunals? [15 marks, 250 words]