The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 was introduced by Finance Minister Ms. Nirmala Sitaraman on August 2, 2021, after which it was passed by the Lok Sabha on August 3 and the Rajya Sabha on August 9, 2021.
While the Bill dissolved certain existing appellate bodies and transfers their functions to other existing judicial bodies, it also fixes the term of office for the Chairperson and members of Tribunal to 4 years, subject to an upper age Limit for the Chairperson at 70 years and 67 years for other members.
The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 has abolished tribunals and transferred their functions to High Courts. This action would add to the pending cases in such High Courts. It abolishes Tribunals formulated under the Cinematograph Act, 1952, the Trade Marks Act, 1999, Copyright Act, 1957, Customs Act, 1962, Patents Act, 1970 and Airports Authority of India Act, 1994 and transfers pending cases from them will to commercial or civil courts or high courts.
The Government has called the abolished appellate tribunals an "unwanted additional layer of judicial intervention". The lack of human resources (such as inadequate number judges) is observed to be one of the key reasons for accumulation of pending cases in courts.
The process of rationalisation of tribunals was started by the government in 2015. Based on functional similarity, seven tribunals were abolished or merged by the Finance Act, 2017, and their total number was reduced from 26 to 19.
Reason(s) for Reform
Objects and reasons of the Bill state that after the government’s analysed tribunals’ data of the last three years, it was pointed out that in several sectors, tribunals did not necessarily lead to faster justice delivery and that they were also at a considerable expense to the exchequer.
It was also stated that the tribunals that are proposed to be abolished in this phase, are of the kind which handle cases in which public at large is not a litigant or those which neither take away any significant workload from High Courts which otherwise would have adjudicated such cases nor provide speedy disposal.
Many cases do not achieve finality at the level of tribunals and are litigated further till High Courts and Supreme Court, especially those with significant implications. Therefore, these tribunals only add to another additional layer of litigation, it adds.
“Reducing the number of tribunals shall not only be beneficial for the public at large, reduce the burden on public exchequer, but also address the issue of shortage of supporting staff of tribunals and infrastructure,” it concludes.
A Welcome Step or An impending Executive-Judiciary showdown?
Lawbeat reached out to members from the legal fraternity who applauded the Bill.
Former Chief Justice of Allahabad High Court, Justice Govind Mathur pointed out that he welcomed this step, albeit with a hope that in near future, other Tribunals too would be abolished and at the same time strength of Judges in regular Courts would be enhanced and shall also be satisfied. He added that though the expectation from these Tribunals was to have expeditious disposal of the disputes with the aid of experts, most of the Tribunals failed to give any favourable breath to our adjudicating system.
Senior Advocate Sanjoy Ghose said, "I do feel that this is a very good development." He added that the twin-fold objective of tribunalisation was (a) to bring in specialist /domain inputs and (b) to expedite justice, however, both these objectives stand far from accomplished.
"Many tribunals remain not constituted for months if not years and others do not have enough caseload to justify the paraphernalia and expenses involved in running a separate tribunal," Ghose said.
Lawbeat also reached out to Mr. A.K.Srivastava (Ex- IRS officer) Ex Vice-chairman, Railway Claims Tribunal, Lucknow, who said that the Act has not only defied the judgement of the Court but has effectively held that in future Courts will not have any say.
"The Act also provides that terms and conditions of selection process may be changed by a notification. This puts legislature and judiciary in face of each other as was done in the appointments of judges case or more importantly in Kesvananda Bharti case. Along with the basic feature doctrine, the most important contribution of the judgement was that the Supreme Court protected its right of Judicial Review which was further retreated in the Minerva Mills case. Supreme Court invalidated, amendment to Art 31 C, “ … and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy," he added.
Advocate Pradeep K. Bakshi said that the Tribunal Reforms Act is a much needed enactment and a step in the right direction.
He said that the right of appellate adjudication and power of Appeal is better done in the hands of judges and Courts as they are better versed and trained in resolution of complex legal issues involved before the Appellate Tribunals.
"Even otherwise tribunalisation of appellate jurisdiction has only added one more layer in the process of resolution of disputes without cutting down on delays, one of the major reason these Tribunals were created," Bakshi said.
Advocate-on-Record Vikram Hegde, on the other hand thinks that the issue of vacancies in the tribunals in those tribunals such as the NCLAT which is functioning with only one acting chairperson for more than a year and others such as the Appellate Tribunal for PMLA and FEMA which has been functioning without a Chairman for an even longer period of time affects the the public at large and the legal community in particular.
"While the tribunals bill has some desirable provisions, the fact that it reintroduces the very same provisions which have met the disapproval of the Supreme Court in Madras Bar Association indicates that it is once again going to be litigated and there is no end in sight to this conundrum. This back and forth will exacerbate the problems being faced by the public and lawyers"
- Advocate Vikram Hegde
Prateek Som, Standing Counsel for the Haryana Government at the Supreme Court thinks that the new bill will face challenges in passing the Judicial Review of the Apex Court as similar provisions, when incorporated under ordinance were struck down by 5 judges bench of SC.
"This new tribunal bill is a classical example of executive-judiciary power tussle. Disagreement may arise on section 3(7) of the bill, which clearly reflects on executive overreach which may not be taken well by judiciary. In fact, this section dilutes the power of recommendation committee as ultimately executive will decide on who heads tribunals. Another aspect of minimum age of Chairperson & members may create disagreement. I feel it would be difficult for an advocate appointed after attaining the age of 50 years to resume legal practice after completion of one term, in case he is not reappointed.”
- Advocate Prateek Som
Advocate Sarthak Raizada thinks that the Bill is bound to provoke a showdown between the Parliament and the Supreme Court because it reintroduces provisions from the Ordinance that were declared unconstitutional by the Court in the Fourth Madras Bar Association Case.
"That said, the Bill also presents the Supreme Court with yet another opportunity to recognise that the Parliament and Judiciary are co-equal branches of the Government, and that the Parliament has an equal say in the interpretation of the Constitution, even when it comes to matters of judicial independence," added Raizada.
Advocate Ananth Krishna Subbalakshmy thinks that since the creation of tribunals was allowed through the 42nd Constitutional Act in 1976 in the midst of the Emergency, successive Central Governments have sought almost consistently to undermine the High Courts through the creation of tribunals that were given exclusive power to decide on the same matter.
"The move to consolidate tribunals and leave powers to the High Court or Civil Courts is more than welcome in this light," added Subbalakshmy
"Tribunals' Were Designated as Expert Bodies; Bill May Add To Already Bustling Dockets"
Vice President of Bombay Bar Association, Senior Advocate Birendra Saraf thinks that while its true that many of the tribunals did not serve the purpose for which they were formed, the answer to that was not a complete scrapping of the tribunals but to ensure that they were manned by effective persons appointed on the basis of merits and expertise in the field and that too after some training.
"I believe that in some fields specialised tribunals with special knowledge of the subject such as patent law, are necessary," he said.
"The reason why many of the tribunals did not function effectively was that the member was either a legal person with no knowledge of the subject or a technical person with no legal background. In some tribunals, there was also a complete lack of proper infrastructure. The scrapping of the tribunals will only add to the bursting dockets of civil courts and High Courts where too the Judge mostly won’t be familiar with the subject."
- Senior Advocate Birendra Saraf
President of Delhi High Court Bar Association, Senior Advocate Mohit Mathur said that even though the Government has taken this step and passed on the cases to High Courts and civil courts, the looming pendency across High Courts of cases across India, which runs into Crores is another issue altogether.
"Though it benefits lawyers of the High Courts by bringing back work, at the same time, having gone through the statistics and pendency which has been mounting, I don't know how, without the adequate manpower and infrastructure it will be handled in the High Courts. The statistics and data regarding pendency is one of the things which alarm me."
- Senior Advocate Mohit Mathur
The Senior Counsel also pointed out that most Appellate Tribunals are Quasi-judicial and this means, they lack finality - that, which is attached to High Courts or Civil Court. "Another thing is that there is lack of expertise which may get reflected when cases are sent back to High Courts, mostly because many Tribunals gain expertise in specialised cases over a period of time," he added.
He further stated that Tribunalisation has always been an interference in the administration. If Administrative functions and technicalities are handed over to Tribunals, it is still understandable, but when they are given judicial powers where they have to look at justice dispensation, obviously, the Court which has been formed for dispensation of justice is definitely a better option, he added.
Senior Advocate Siddhartha Dave said that Tribunal system in India had failed.
"It was borrowed from England where the experience was not good. Yet, the Indian Parliament continued to create many Tribunals. The infrastructure of these tribunals was poor and had many vacancies. It is time the Tribu al system is completely abolished and the jurisdiction goes back to the various High Courts. The Government should increase the strength of the High Courts and make in time appointments"
- Senior Advocate Siddhartha Dave
Tribunals: "Parking Lots" for Retired Bureaucrats and Judges
Justice Govind Mathur also pointed out that though statutory Tribunals were part of our adjudicatory system since long, the concept was included in our Constitutional Scheme by the 42nd Constitutional Amendment Act 1976, whereby the intention of the Government was to bring out several disputes from purview of Judiciary and was shown to have adjudication by the experts of the subjects instead of Judges. "Basis "Judge made law", it became compulsory to have judicial members with every such Tribunal. Obviously, the expectation from these Tribunals was to have expeditious disposal of the disputes with the aid of experts. However, most of the Tribunals failed to give any favourable breath to our adjudicating system.
"As a matter of fact, Tribunals are now causing a delay in settling these disputes and these bodies are sheltering retired Judges and bureaucrats. This is definitely causing enormous injury to independence of judiciary" said Justice Mathur
Senior Counsel Sanjay Ghose added that tribunals now are seen more as parking lots for retired bureaucrats and judges. "This should be ended," he said.
While delving into the competency of many lawyers who are are available and ready and willing to serve the cause of justice, Ghose thinks that an "All India Tribunal Cadre" may also be considered for all central government tribunals.
"This could be the beginning of the journey towards an all India legal service cadre which is a goal our Hon’ble Prime Minister has many times shared publicly," said Ghose
Alas! The Vibrant Bar!
[With insightful inputs by Salil Tiwari and Ratna Singh, Special Correspondents at Lawbeat as well as Srijith R., Media Producer at Lawbeat]