Critical Analysis of Tribunal Reforms (Rationalisation and Condition of Service) Ordinance 2021
Tribunals are quasi-judicial institutions set up to address delay in disposing of cases in courts. In addition to the delay in the administration of justice, the need for specialization and expertise to decide on complex factors has been another reason to create tribunals to adjudicate certain types of disputes.
On 13th February 2021, the Government of India introduced the Tribunal Reforms (Rationalisation and conditions of Service) Bill in the parliament. It was implemented on 4th April 2021 with a view of streamline tribunals, as well as to abolish certain tribunals, and authorities and to provide a mechanism for filing an appeal directly to the commercial court or high court. It dismisses certain existing appellate bodies and transfers their functions to other existing judicial bodies.
In 2017 through the Finance Act, seven tribunals were abolished or merged based on functional similarities. And with that, the number of tribunals has come down from 26 to 19.
In continuation to that now in 2021 the tribunal ordinance dissolves a few other appellate bodies and transfers their functions to existing judicial bodies mainly the High Court.
The 2017 Finance Act empowered the central government to notify rule on the composition of Search and Selection Committees and Term of Office.
Search and Selection Committee-The Search and Selection Committee is responsible for making a recommendation to the central government for appointment and removal of a member of the respective tribunal. The Search and Selection Committee will be consisting of the Chief Justice of India or a Supreme Court Judge as chairperson. And two Secretaries nominated by the central government. The sitting or outgoing Chairperson or a retired Supreme Court Judge or a retired High Court Chief Justice. And a secretary of the relevant ministry under which the tribunal is constituted.
The Bill also makes a change with respect to The National Consumer Disputes Redressal Commission established under the Consumer Protection Act 2019. The bill brings the commission under the provision of the Finance Act 2017. And the members of the commission will be governed under the rule notified under the Finance Act 2017.
This will include the appointment and removal including the Term of Office and the Term of Office for the chairperson will be 4 years or till he attains the age of 70 years. And for other members it will be 4 years or till they attain the age of 67 years.
Issues and Concerns: -
In the case of Madras Bar Association v. Union of India (2020) the Supreme Court had mentioned that, the chairperson, the vice chairperson and the members of the tribunals are eligible to hold the office for a time period of five years and also entitled for reappointment. But the ordinance fixed a time period of four for the tenure which is not according to the judgement of the Supreme Court in the case of Madras Bar Association.
As well as nothing is mentioned about the National Tribunals Commission. Supreme Court has recommended forming a single body known as National Tribunals Commission which will keep an oversight in the working of tribunals, but this point was not mentioned in the ordinance. In fact, the ordinance is quite about the other recommendation of the court regarding the housing allowance to tribunal chairpersons and members, in addition to appointment of advocates with ten years of practice as Tribunal members.
Already the pending cases are very high and vacancies in the high court are also increasing. Already the pending cases are very high and vacancies in the high court are also increasing. It is difficult to fathom the compelling circumstances which forced these drastic changes through the short-cut route of ordinance.
Recommendations for Tribunals: -
Recently the Law Commission of India in its report mentioned about the issues with tribunals and also made some suggestions in this regard.
Independence: The government makes appointments to the tribunal which plays an important role in the country’s Justice delivery system. The tribunals functioning under the government department which may be litigant before them make the tribunals subservient to the executive. There is an apprehension that this could disturb the independent functioning of the tribunals. Also, the provisions relating to the qualifications, appointment, etc. do not conform to the standards laid down by the Supreme Court in its various decisions. The Law Commission has thus suggested that a committee led by the CJI should be in charge of the appointment to important posts. These include the chairman, vice chairman, and judicial members of the various central Tribunals.
Functioning: -the disposal rate of tribunals in comparison to the filing of cases per year is 94%. However, the tribunals are still burdened with high pending cases. The official data in respect of the working of some of the tribunals do not depict a satisfactory picture. Some of the common problems are Lack of infrastructure, unsatisfactory service condition, delays engineered by lawyers and parties before the forums have been persistent problems.
Vacancy: another major problem is the vacancies that are not filled for a long period of time and that is affecting the efficiency of tribunals. The commission recommends the procedure for filling up vacancies start six months before the seats fall vacant.
Reason for Replacing Tribunals: -
Poor Adjudication & Delay: the quality of adjudication has been underwhelming in most cases, the delays have been substantial because the government has struggled to find competent persons willing to accept positions on these tribunals, and litigation has actually become more expensive as these tribunals added another layer to it.
Litigations Against Them: - There has been incessant litigation since 1985 by advocate bar associations against the tribunals over serious questions of their independence from the executive.
Tribunals are a quasi-judicial institution, which are formed to deal with particular matters.The Tribunals, generally, is any person or institution having an authority to judge, adjudicate on, or to determine claims or disputes. Tribunals were not originally part of the Constitution. The 42nd Amendment Act 1976 introduced a provision for tribunals in accordance with the recommendations of the Swaran Singh Committee.
Constitutional Provisions that deals with Administrative Tribunals:
Article 323A deals with administrative tribunals. These are quasi-judicial institutions that resolve disputes related to the recruitment and service conditions of a person engaged in public service.
Article 323B it deals with tribunals for other subject. Under Article 323B , the parliament and the state legislatures are authorized to provide for the establishment of tribunals for the adjudication of disputes relating to Taxation, Foreign Exchange, Import and export, Industrial and Labour, land reforms etc.
https://prsindia.org/billtrack/the-tribunals-reforms-rationalisation-and-conditions-of-service-ordinance-2021, https://www.scconline.com/blog/?p=246590 http://www.legalserviceindia.com/legal/article-5411-analysis-of-the-tribunals-reforms-rationalisation-and-conditions-of-service-ordinance 2021.html#:~:text=Lawyers%20in%20India-,Analysis%20of%20The%20Tribunals%20Reforms%20(Rationalisation,Conditions%20Of%20Service)%20Ordinance%2C%202021&text=The%20author%20through%20this%20piece,the%20Need%20of%20Administrative%20Tribunals. https://blog.forumias.com/tribunal-reforms-ordinance-2021-explained-point-wise/ https://www.iasparliament.com/current-affairs/concerns-with-tribunals
Author ~Pragyna Panigrahi
3rd Year, Amity Law School
Amity University Chhattisgarh