Context:

• Chief Justice of India NV Ramana’s remarks questioning the law passed last weekrelating to the process of appointment of tribunal members has triggered a fresh stand-off between the legislature and the judiciary over the powers of and limitations on lawmaking.

CJI Remarks:

• Judiciary must know the reasons of introducing a bill even it after being struck down by the judiciary.
• No debates and discussions are taking place in the parliament which is hindering judiciary ability to understand the reasons behind any law.

Cause of Tussle:

• Recently, Parliament passed the Tribunal Reforms Bill, 2021, which seeks to lay down terms for service and tenure of members of various tribunals.
• The new law contained the same provisions as the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, which the Supreme Court struck down last month in a 2:1 verdict.
• Recently court had expressed displeasure over the vacancies in various tribunals and asked the Centre to take a stand in a week.
• Setting at naught a decision of the Court without removing the defect pointed out in the judgment would sound the death knell of the rule of law.
• The rule of law would cease to have any meaning, because then it would be open to the government to defy a law and yet to get away with it

Court reason for the strucking down the law:

• Minimum age criterion of 50 years for appointment of advocates as members of tribunals and the four-year tenure that the amendment prescribes are arbitrary in nature. 

Government response:

• It is a matter of policy, whether four years or five years of the tenure. The policy cannot be interfered with.
• at a certain stage, even Parliament wonders, are we not having any powers if the judiciary is interfering to this extent? 

Features of the Ordinance:

• It dissolves certain existing appellate bodies and transfers their functions (such as adjudication of appeals) to other existing judicial bodies.
• The Ordinance amends the 2017 Act to include provisions related to the composition of search-cum-selection committees and term of office of tribunal members in the Act itself.
• The Ordinance includes the National Consumer Disputes Redressal Commission established under the Consumer Protection Act, 2019 within the purview of the Finance Act, 2017.

Search-cum-selection committees:

• The Ordinance specifies that these Committees will consist of:
• the Chief Justice of India, or a Supreme Court Judge nominated by him, as the Chairperson (with casting vote),
• two Secretaries nominated by the central government,
• the sitting or outgoing Chairperson, or a retired Supreme Court Judge, or a retired Chief Justice of a High Court, and
• the Secretary of the Ministry under which the Tribunal is constituted (with no voting right).  

Term of Office:

• The Ordinance specifies that the term of office for the Chairperson of the tribunals will be of four years or till the attainment of the age of seventy years, whichever is earlier.  
• For other members of the tribunals, the term will be of four years or till the age of sixty-seven years, whichever is earlier. 

Abolition of Bodies:

• The Ordinance removes the following bodies from the purview of the Finance Act, 2017:

• the Airport Appellate Tribunal established under the Airports Authority of India Act, 1994,
• the Appellate Board established under the Trade Marks Act, 1999,
• the Authority of Advanced Ruling established under the Income Tax Act, 1961,
• the Film Certification Appellate Authority established under the Cinematograph Act, 1952.

Reasons behind Abolition of Bodies:

• It is part of the tribunal rationalisation process which initiated in 2015. By the Finance Act, 2017, seven tribunals were abolished or merged based on functional similarity and their total number was reduced to 19 from 26.
• In these tribunals, public at large are not the litigant, hence, they will be merged with the commercial bench of high court.
• Abolition of bodies will ensure more judicial independence.

Concern with the Act:

• The tenure of four years fixed by the Ordinance is contrary to the directions issued by the Supreme Court in the Madras Bar Association case (2020). According the supreme court, four year tenures discourages meritorious candidates.
• Supreme court has also held that small tenure enhances arbitrariness of the executive by letting them interfere with the tribunal work.
• Court had directed to let search committee only recommend one name for the appointment. But, the ordinance has kept it two names.
• Court had held that appointment must be done within 3 months after submission of names by the search committee. But, the central government has made it preferably in 3 months.

Way Forward:

• The Ordinance is a path as per the multiple rulings of the court and try to rationalise the multiple act governing tribunals in India.
• Abolition of appellate tribunals have strengthened the position of high court and ensured judicial independence.
• By incorporating court guidelines on search and selection committee, ordinance has tried to create balance between judicial independence and fast and speedy justice.

Constitutional Provisions regarding Tribunals:

Administrative Tribunals:

• Article 323 A empowers the Parliament to provide for the establishment of administrative tribunals.
• In pursuance of Article 323 A, the Parliament has passed the Administrative Tribunals Act in 1985. The act authorises the Central government to establish one Central administrative tribunal and the state administrative tribunals.

Purpose of Administrative tribunals:

• It is for the adjudication of disputes relating to recruitment and conditions of service of persons appointed to public services of the Centre, the states, local bodies, public corporations and other public authorities.

Tribunals for other matter:

• Under Article 323 B, the Parliament and the state legislatures are authorised to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters:
  • Taxation
  • Foreign exchange, import and export
  • Industrial and labour
  • Land reforms
  • Ceiling on urban property

Difference Between article 323A and 323B:

• While Article 323 A contemplates establishment of tribunals for public service matters only, Article 323 B contemplates establishment of tribunals for certain other matters (mentioned above).
• While tribunals under Article 323 A can be established only by Parliament, tribunals under Article 323 B can be established both by Parliament and state legislatures with respect to matters falling within their legislative competence.
• Under Article 323 A, only one tribunal for the Centre and one for each state or two or more states may be established. There is no question of hierarchy of tribunals, whereas under Article 323 B a hierarchy of tribunals may be created.