Trials of Tribunalisation: Analysis of Tribunal Reforms Act, 2021

Background

The judiciary’s welcoming reception towards tribunalisation seems to be fading away, as various High Courts and Supreme Court remain frustrated with the Executive interference that has rendered the Tribunals ineffective due to accruing vacancies in several States. The empty benches have led to a denial of justice and burdened the shoulders of active benches with more load. This defeats the primary objective of ‘expeditious disposal’ of cases, as litigants continue to languish for years seeking a conclusion to their issues.

This was evident in the recent case of Benkatesh Sharma v. Union of India at Bombay High Court where a government officer placed in Maharashtra was contesting against his transfer in the Administrative Tribunal. But his case could only be heard by a division bench and Maharashtra Administrative Tribunal had only one member, thus, the additional burden was being discharged by a member from Jammu’s Central Administrative Tribunal. He pleaded that this had led to a delay for hearing in his case. The High Court remarked that the Central Government can abandon the tribunal system altogether as the tribunals have been rendered non-functional due to delay in appointments.

The recent legislation of the Tribunal Reforms Act, 2021 has been challenged in the Supreme Court in the Madras Bar Association v. Union of India. The legislation was supposedly to remedy the defects in tribunal system but the ongoing proceedings in the Court disclose a deeper malaise. The Chief Justice of India while hearing the matter had asked why the candidates recommended for appointment were being ‘cherry-picked’ by the Government. The Attorney-General maintained the stand that the Government has the right to accept or reject the candidates that are recommended. But the Government’s exercise of the right comes at the cost of incessant increase in the matters to be listed at active tribunals and an increase in passive tribunals as retirement approaches.

This forces the High Courts such the Kerala High Court to intervene. The Kerala High Court passed the order extension of term of the judicial members in a plea filed by the Kerala Administrative Tribunal Advocates’ Association. The Association has continuously knocked the doors of the High Court in order to obtain orders and keep the Tribunals functional.

In this backdrop, the Tribunal Reforms Act, 2021 (hereinafter ‘the Act’) provides an insight into the Government’s assessment of the Tribunal troubles and the legislative remedy that the Parliament has invoked to cure this trouble, which remains in defiance of the judicial precedents established.

Judicial & Legislative Analysis of the Tribunal System

The inception of the trend of Tribunalisation was put into effect due to the 42nd Constitutional Amendment which inserted Articles 323A and 323B into the Constitution under Part XIVA. The Amendment in itself was brought forth to dilute the paramountcy of judiciary in various matters, but, the decisions rendered in the cases of S.P. Sampath Kumar v. Union of India and L. Chandra Kumar v. Union of India, among others, have read the Articles in consonance with the basic structure doctrine.

Consequently, all enactments pertaining to various tribunals have been construed accordingly and mandated at least a partial inclusion of judicial review and a necessary degree of separation between the Judiciary and the Executive.

The judicial acceptance rendered to the tribunal system was evident through SP Sampath Kumar wherein constitution of administrative tribunals was held constitutional. But, the Apex Court’s decision consisted of several conditions which were held essential for establishment of an effective tribunal system:

1. Term of Office

The Court held that a term of 5 years was too short; hence, it needs to be increased accordingly. The Court’s observation has significant practical relevance as 5 years remain insufficient to hone the judicial skills and discourages talented advocates from opting for the Bench; as they would have to pay the cost through abandoning their established practice.

Moreover, if an extension of term is not provided then the Advocate will be back to square one to establish his work. This defect continues in the Act where Section 5 of the Act states that the term of office will be for four years or till the age of 67, for members, & age of 70, for Chairman, whichever is earlier.

This defies the judicial direction in SP Sampath Kumar, as the term remains too short, but it also remains highly impractical as the short term will be a detriment against opting for the Tribunal Bench.

2. Circuit Bench

The Court emphasized on access to justice and noted the requirement to establish a permanent bench or a circuit bench wherever a seat of the High Court is present.
The importance of infrastructure cannot be underestimated as the Maharashtra Administrative Tribunal (hereinafter ‘MAT’) continues to function physically due to lack of infrastructure to sustain virtual proceedings. MAT’s pleas to the Government remains futile.

When the Bombay High Court directed MAT to commence online filing and virtual proceedings, in a plea filed by Advocate Yogesh Morbale, the Tribunal authorities submitted to the High Court that its computers are non-functional and is unable to shift to the virtual eco-system.

The inaccessibility due to lack of infrastructure was also brought to the fore through the submissions of the amicus curiae, Senior Advocate Mr. Arvind Datar in Rojer Mathew v. South Indian Bank Ltd., where inaccessibility to these alternative forums of justice was raised, especially when a Tribunal has only one seat leading to exclusion of jurisdiction of all other Courts.

The Government is yet to substantially rectify the defect. But the Act has contrived a makeshift remedy by abolishing certain Tribunals and shifting the burden to the District Courts or High Courts. It must be kept in mind that the government’s decision to abolish the tribunals is yet to be followed by a subsequent announcement of increasing judges or expediting the appointment of judges at High Courts as several High Courts, such as the Delhi High Court which is functioning with over 51% vacancy, and the Patna High Court which is functioning with over 62% vacancy, as the Government continues to hamper the process of clearance of names suggested by the Supreme Court Collegium.

3. Qualifications:

In SP Sampath Kumar, the Court had stated that anyone who is eligible for the post of a district judge or a high court judge should also be eligible for appointment as vice-chairman of the Tribunal.

But, the Government’s parameters of eligible conditions remain arbitrary to this date. The Act portrays the arbitrariness as the condition of age has been chosen over experience or other parameters of qualification. Section 3 of the Act provides that a person must be above the age of 50 to be eligible for the post of Chairperson or Member. This precludes a large pool of deserving and talented candidates.

These conditions have been repeatedly ignored by the Parliament. Consequently, a ceaseless litigious battle emerges every time an enactment comes into force.

But the judiciary has tried its best to make the Tribunal system work. The judiciary’s keenness can be attributed to the duties that Tribunals are entrusted with, which include an expeditious manner of disposal of cases along with easing the backlog of cases at High Courts and District Courts. Consequently, this has led the Supreme Court to declare Tribunals as an effective part of the justice delivery system in the case of Union of India v. Delhi High Court Bar Association. But, the fantasy seems to be fading away as the system is apparently being kept afloat by judicial ultimatums from High Courts and Supreme Court for appointments at different Tribunal branches and benches.

Needlessly, the Act restructures the procedure for the appointments. Under the new mechanism, the appointments are to be recommended by a Search-cum-Selection Committee. Section 3(3) of the Act which provides for the constitution of the Search-cum-Selection Committee lays down a peculiar provision providing for inclusion of the Secretary of the concerned Ministry under which the Tribunal is constituted or established.

Though the Secretary will not have a casting vote but their inclusion in selection process remains without any rhyme or reason. It must be noted that the Committee itself seems to be dominated by Executive personnel, in clear contravention of directions of the Madras Bar Association v. Union of India (2014) where Justice Nariman had observed that allowing Central Government to participate in administrative functioning of the Tribunal would impinge upon the independence and fairness of the members.

In the Madras Bar Association case (2014), the Court had held the National Tax Tribunal Act, 2005 as unconstitutional due to several provisions which contravened judicial independence. The Court had realized the dangers to judicial independence posed due to the Tribunals being under the supervision of nodal Ministry and not the High Court’s supervisory jurisdiction, especially when the disputes involve State, such as tax disputes.

The necessity of judicial independence has been emphasized by the Supreme Court in L. Chandra Kumar and Union of India v. R. Gandhi. The Apex Court had directed the Ministry of Law to be responsible for overseeing the functioning of the Tribunals to provide uniformity and avoid any influence from the nodal Ministry over Tribunal’s operations.

Conclusion

The Act needs to be truly reformative, not only in terms of the words inscribed on the paper but also in terms of implementation on ground. The Government must reappraise itself of the realities and provide an expansion of the district judiciary and the strength of the High Courts, while also avoiding any inordinate delay from the Government machinery, in order to truly combat the increasing judicial burden without compromising on quality of justice or requiring excessive bureaucratic interference in the judicial process.

The expeditious resolution of the appointments can only be implemented through an autonomous mechanism, as directed in Rojer Mathew by the Supreme Court.

Moreover, Central Government must accede and provide supervision of the Tribunals to the High Courts to make the functioning of the Tribunals effective without Executive interference. This can aid in resolving several infrastructural and administrative issues that that currently ail the tribunal system. The members of the MAT had also remarked that if the supervision of the Tribunal was under Bombay High Court then it wouldn’t need to seek infrastructural assistance as it would have been provided by the High Court authorities itself.

Alternatively, the Government can also implement an All India Tribunal Service cadre or provide for autonomous mechanisms, as were suggested by Mr. Datar in Rojer Mathew, taking inspiration from the United Kingdom’s legislation of the Tribunals, Courts and Enforcement Act, 2007. The Government should avoid washing its hands off of the tribunal trouble and opting to disinvest by abolition; rather investment should be provided to increase access of justice and aid the tribunals in expeditious disposal of the cases, thus, easing the judicial burden by unclogging the backlog.

It can be safely conjectured that the Government’s compulsion to exercise control on the administrative aspects of Tribunals, in stark violation of Article 50 which mandates a separation of Executive and Judiciary, stems due to the narrow assessment of tribunals as an extension of itself, i.e., another Government agency. This impulse for control has led to strangulation of the potential of the Tribunal system, thus, the approach towards the tribunals needs to be realigned with the present realities in order to emerge triumphant amidst the losing battle.

(This article is written by Samridhi Nain. Samridhi is a final year student at the Law Centre-I, Delhi University. She serves as an Associate Editor at TCLF)

Cite as: Samridhi Nain, “Trials of Tribunalisation: Analysis of Tribunal Reforms Act, 2021″ (The Contemporary Law Forum, 26th September 2021) <https://tclf.in/2021/09/26/trials-of-tribunalisation-analysis-of-tribunal-reforms-act-2021> date of access.

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