The year 2021 has witnessed an unending battle between the judiciary and the government concerning the passing of the Tribunal Reforms Act, 2021. The Act, which revived the exact provisions of an ordinance (also earlier struck down by SC to be unconstitutional) is known to pose a serious threat to the judicial independence of the tribunals by providing exemplary power to the Union Government regarding appointments, service conditions, salaries, etc. of members of the key tribunals. The question of the independence of the tribunals reverberates a scenario of potential misuse of the orders/judgements of these tribunals by the government, as the government remains the prime litigant in the Indian legal framework.
In light of this, the article expounds on the evolving jurisprudence concerning the need for tribunalisation in India . It also explains the initial confusion regarding the scope of the jurisdiction of such tribunals to supersede the judicial review powers of the High Courts. The passing of the Finance Act, 2017 which positioned the Union Government to exercise sweeping powers regarding the appointment, removal, salary, etc. of the adjudicating members of these tribunals has been dealt with in the article along with the Roger Mathew judgement of the SC striking down such provisions. Further, the article also focuses on examining the constitutional validity of the tribunals formed for resolution of the matters which are out of the purview of Articles 323A and 323B.
Background – Post-1980s there has been a rapid proliferation of tribunals adjudicating matters concerning the domains which their parent statutes have provided for them. For some, it is the grundnorm, the constitution (under Articles 323A and 323B) which has enveloped the legal validity of working of these tribunals, and for others, it’s the combination of legislating power of the Parliament and the courts’ interpretation in consonance with the entries provided under Article 246, validating the establishment of these tribunals.
Be it as it may, the tribunal system in India is aimed at decongesting the astronomical number of cases, which often plague the formal court system. Rendering justice through tribunals is expeditious and less expensive when equated with pure judicial mechanisms of courts, and also allows specialized adjudicators of the concerned domain to nurture decision-making process. Although these purposes have attained a backseat due to the inconsistent constitution of these tribunals and lack of uniform guidelines in the adjudication of matters.[1]
Often, suggestions for improving the framework of the
tribunals have been provided which include the establishment of a Tribunal Commission
at a National level or an Appellate Tribunal Body for all domains, comprising
of politically aloof members and judges. Independence of the members presiding
such tribunals is the most contentious of all the questions which spawn
infidelity on part of the public interest to hold good the constitutional
principles of rule of law and doctrine of separation of powers.[2]
Notwithstanding, the constitutionality of the tribunals
which do not fall within the ambit of Articles 323A and 323B, is a significant
question in itself. The tribunals constituted for deciding matters as enlisted
under Article 323B(2) initially excluded the judicial review power of the High
courts, and only Supreme Court was ordained to review orders and judgements
passed by the tribunals due to its inviolable power under Article 32. The L.
Chandrakumar[3]
judgement, raised many eyebrows for reattributing the power of judicial
review to High Courts, by stating the violation of basic structure doctrine[4] and
consequently ruling down certain provisions of the Administrative Tribunals
Act, 1985.[5] However,
the tribunals constituted out of the purview of Article 323A/323B are known to
have sparked debate as to the constitutionality of the modus operandi of
these tribunals. The constitutionality question had been though settled by the
SC by holding such Tribunals to be constitutional, but the very judgement
of the court has been accused of the charge of having a preposterous standing.
Emergence of Tribunals and Issues of Jurisdiction – Heavy administrative fallouts during the executive stronghold in the Indira Gandhi regime, reflect an ostensible power concentrating time period which promoted the outgrowth of the administrative bodies in India. This was the first time when the Parliament went on establishing regulatory and adjudicatory mechanisms apart from the constitutional courts on the highly debated reasons of simplified procedures and balancing the social revolutionary strand.[6] The Constitution Forty-second (42nd) Amendment Act, 1976 incorporated two essential Articles (323A/323B) into the constitution which lay the framework for the establishment of administrative tribunals. Although, the constitution of tribunals for the matters (other than public services) have been listed under Article 323B (2), and establishment of a tribunal for any other matter apart from those as mentioned in this list, is a question of constitutionality and will be discussed in the other part of this article.
The relevant question though revolved around the question of
excluding the jurisdiction of High Courts to hear challenges against the
orders/judgements of these tribunals. The Administrative Tribunals Act, 1985
was enacted with a provision to exclude the jurisdiction of every court except
the Supreme Court and concomitantly the impugned Section 28 of the Act was
challenged in the case of S.P. Sampath Kumar v. Union of India[7]. The
Supreme Court left the question open-ended highlighting that tribunals are not
creating any void by the exclusion of jurisdiction of HCs under Articles (226/227).
They are merely establishing an efficient and effective alternative to the
courts, and if these tribunals could convincingly perform the function of
judicial review, then they could very well pass the constitutionality test.
After the pronouncement of this judgement, there were questions raised highlighting the probable lack of uniformity and withering of public faith in entire justice mechanisms in India due to prospective different interpretations that the HCs may give to this ruling.[10] Nonetheless, it also argued sometimes that judicial review of only the Supreme Court is to be considered as a basic feature of the constitution.[11] Significantly, in the case of CIT v. Chhabil Dass Agarwal[12], the Supreme Court made pertinent remarks as to whether High Courts should hear the matter if alternative remedy (appellate tribunals, here CIT Appeals) is available for the same. The court said –
“15. It is settled law that non-entertainment of
petitions under writ jurisdiction by the High Court when an efficacious
alternative remedy is available is a rule of self-imposed limitation. It is
essentially a rule of policy, convenience, and discretion rather than a rule of
law. Undoubtedly, it is within the discretion of the High Court to grant relief
under Article 226 despite the existence of an alternative remedy. However, the
High Court must not interfere if there is an adequate efficacious alternative
remedy available to the petitioner and he has approached the High Court without
availing the same unless he has made out an exceptional case warranting such
interference or there exist sufficient grounds to invoke the extraordinary
jurisdiction under article 226.”[13]
Hence, the judicial review power
of High Courts is although upheld to be inviolable in nature, but balancing
notion to support the alternative remedies of appellate tribunals has been promoted
by the Supreme Court, consequently also accentuating the ‘discretion’ of High
Courts to hear the matter in hand.
Independence of Tribunals and Selection of Members – Constitutional Courts in India, on many occasions, have ruled that though courts can interfere with the tribunal jurisdiction and their decision-making to a certain extent, the government is to harness sufficient leeway to determine the administrative matters.[14] But the courts have also laid for themselves adequate scope, where violative actions of the executive on the pretext of exploiting the given leeway, destroy the very basis of separation of powers amongst the organs of the state also resulting in violation of the basic structure doctrine. Nonetheless, the frequent challenges to the L. Chandrakumar judgement raise a pertinent question with regards to the independence of decision-making by the tribunals as there seem to be increasing political interventions by the regimes. A study conducted by Vidhi Centre for Legal Policy has also highlighted excessive intervention by the government departments and ministries, who themselves are sometimes parties in the proceedings of these tribunals.[15] Therefore, it is necessary that the presiding member of an administrative tribunal should be free from any undue influence, be technically skilled, and free from discharging the entrusted functions.[16]
The following heads reflect how the independence of these tribunals has been put on the backburner by the legislature and executive in India, thereby leading to the obvious question - whether tribunals are efficient alternatives to the courts or not?
Quashing of the Finance Act, 2017 by Supreme Court – The government of India in 2017, purportedly in the nature of money bill, passed the Finance Act, 2017 where some provisions were provided on mergers of various tribunals in India and also made modifications in the selection of presiding members in these tribunals. The legislation on one side proposed an incongruous mix of two tribunals, and on the other, contentiously ordained the government to make rules regarding qualifications and appointments of members presiding the tribunals.
The act granted powers
to the government to make the following rules concerning members of the tribunals –
(a)qualification, (b) appointments; (c) term of office; (d) salaries and
allowances; (e) resignation; (f) removal; and (g) other conditions of service
for members of such tribunals.
Previously, the process of formulation
of rules and procedures was incorporated in the parent act of the statutes,
thereby enabling the legislature to keep a check on the executive actions. But this
legislation transferred all the power from parent statutes and granted them to
the government.
Additionally, the procedure of removal
of a member of a tribunal had been compromised to the whims and fancies of the
executive. The legislation had enabled the ministry to decide upon receiving a
complainant against a member whether to conduct an inquiry or not. However,
formerly a Supreme Court judge was mandated to conduct an inquiry, and only
after such inquiry the concerned Ministry could have suspended a member.[17]
Hence, this act exceedingly
enlarged the scope of possibility of the political appointee in these tribunals by
the government, as well as the procedure for removal of a ‘recalcitrant’ member has
also been simplified. The question of the constitutionality of this Act
arose in the courts in the case of Roger Mathew v. South Indian Bank Ltd.[18]
as the said act was presented in the form of a money bill. The Supreme
Court struck down the controversial section 184 of said Act, ordering the
government to follow the rules framed under parent legislations of these
tribunals until the rules are re-framed to be in consonance with the changing
times.
The legislation was consequently held to be violative of the separation of power doctrine and erosion of rule of law. The legislation was also violative of the Supreme Court judgement of Madras Bar Association v. Union of India[19] where it held that the appointment of members of tribunals should be in a similar process as that of the judges of the court, to maintain independence and fairness in decision-making process.
Case of CICs and Information Commissioner under RTI – Slashing the salary amount as well as tenure of the members is also a grievous political tool to disrupt the independent functioning of adjudicatory and tribunal bodies. Curtailment of the duration of tenure of Chief Information Commissioner and Information Commissioners, the designations under Central Information Commission which were established by the Right to Information Act, 2005 is a prototype instance to highlight how these bodies are just toy guns which the executive could make amenable by changing rules governing them and thereby affecting their independence. The RTI legislation as well rules issued by the central government from time to time, state that the search committee for short-listing and selection of candidates for Chief commissioners and ICs would include the following members [20] –
- The Prime Minister who shall be the Chairman of the Committee
- The Leader of the Opposition in the Lok Sabha, and,
- A Union Cabinet Minister to be nominated by the Prime Minister.
Lack of any judicial personnel, possibly a Supreme Court judge, is quite ostensible and obnoxious here since a body deciding matters of as much importance as those pertaining to the flow of information related to the functioning of public authorities to promote transparency and accountability have been shielded to the political cloister. The central government has, for quite a long period of time now, been lackadaisical in appointing the ICs. Repeated pleading by the citizens and public at large have galvanized the courts to nudge the government to comply with the RTI statute.
Recently, the central government in 2019 slashed the tenure of CIC and ICs from five to three years, and also curtailed the perks which they used to earlier enjoy as equivalent to Chief Election Commissioner.[21] The pay and perks of the commissioners have been reduced to that of Cabinet Secretary (CIC) and Secretaries (ICs) to the government. The reduction in pays and perks has resulted in lowering the commissioners in the hierarchy of the protocol lists.[22] Before this the government in July 2019 amended the RTI legislation, to garner itself the powers to make amendments concerning the rules related to CIC and ICs. It is quite apparent hence that the grave political intervention in the functioning of these administrative and tribunal bodies assaults the independence and consequently the orders/judgements/decrees passed by such bodies are marred with the influential character of the executive. The end result here is of course complete wreck of rule of law.
Tribunals Established Outside Purview of Article(s) 323A/323B – Articles 323A/323B explicitly lay down the categories of those matters, where the Parliament or the appropriate legislature has the constitutional authority to set up a tribunal for effective and speedy disposal of cases in the domain. However, an intriguing question then arises for the tribunals set up outside the purview of these articles. These may include the National Company Law Tribunal, National Company Law Appellate Tribunal, and National Green Tribunals, which were not incorporated in the articles of the constitution, neither a scope in these two articles provisioning addition of new matters was provided in the 42nd Amendment. The Supreme Court in the landmark judgement of Union of India v. R. Gandhi, Madras Bar Association[23] was approached to determine the constitutionality of such tribunals. The court emphatically answered the question in the affirmative, declaring such tribunals to be very much part of the constitutional creation. Parliament, the court said, is competent to constitute such tribunals for matters which maybe even not be listed under Art. 323B (2). The court rescued this interpretation by expanding the horizons of Article 246 and the entries of the Lists (I and III) provided henceforth, read with Chapter IV-A of the Indian Constitution. It was held that Article 323B (2) is not the sole repository of competence of the Parliament to establish the Tribunal and is merely an ‘enabling’ provision.
However, critics have pointed out that the court has
erroneously implanted the constitutional validity of such tribunals in the Indian
scenario, and such tribunals could only be set up by a constitution amendment
to Articles 323A/323B by enlarging the list of matters. The court, it is
argued, defectively held the list under Article 323B (2) to be illustrative and
not exhaustive, and thereby wrongly ordained the Parliament/legislature to have the competence of constituting such tribunals.[24] The
critics point out that if such interpretation of the articles is accepted, it
would result in unbridled powers in the hands of the Parliament to impinge upon
the jurisdiction of the constitutional courts.
The above premise of wrong interpretation by the court is based on the following two notions[25]:
- If in other chapters of the constitution, Parliament already had the power to tribunalise, then what was the need of incorporating an ‘enabling’ provision as the court said. And consequently, what was the need of enumerating ‘illustrative’ matters under Article 323B (2), if vast powers conferring competence to Parliament to establish tribunals were already laid down in other parts (Entries under List I, III read with Article 246[26], 247[27] of the Indian Constitution).
- Assuming that the competence of Parliament could be attributed through reading into the Entries mentioned, the establishment would even then be contentious since the said entries provide for the establishment of ‘Courts’ and not the ‘Tribunals’ (Entries read with Article 247). And the courts have, on various occasions starkly differentiated between a tribunal and a formal court.
While critics also argue that the constitutionally
prescribed power to Parliament to establish the tribunals is limited as the bare
reading of Article 323B (1) confers such power on ‘all or any of the matters
specified in Clause (2)’. This judgement has thus been a catalytic
pronouncement embroidering wide power to the Parliament to constitute the
tribunals, thereby eroding the importance of judicial courts in deciding the
field of operations for such tribunals.
Conclusion – Expeditious, economical, and efficient justice dispensation is one of the founding principles on which our Constitution is based. It is thus, extremely pertinent that to garner public confidence in justice delivery mechanisms, changes are made in order to adapt to the growing expectations of the large populace and the burgeoning public interest. The institutionalization of tribunals in India thus significantly paves the pathway for procedural adjustments towards the growing societal needs and provides a framework to deal with the changing legal scenarios.
Consequently, this has also spawned the need for judicially
sound, specialized, and trained presiding members who could helm such
administrative bodies. Although, the report by Vidhi Centre for Legal Policy
has reflected that the members presiding over the administrative tribunals are
often former justices of the constitutional courts or regular district courts,
and they are appointed as members of these tribunals post their retirement. The
report has characterized such appointments as fallacious since these former
judges are neither equipped with the specialized knowledge associated with
dealing with these specific statutes, neither have more zeal and scope of
time to enlarge their fields. Such appointments thus have been totally
defeating the purpose of the creation of these bodies in the first place.
It could also now be concluded that the issue of the
independent functioning of tribunals in India remains an unresolved question
where the executive has time and again resorted to impinge upon the selection
process for deciding the appointment of members for the tribunals. Although,
the tribunalisation in India, has been significant and the needful step to provide
for easy dispensation of disputes and matters of special importance, it has
also enlarged the scope for the encroachment of judicial review power of the
constitutional courts in India. Entailing reaction from the judiciary has led
to the delineation of limits that the tribunals and administrative cannot breach.
However, the tussle between the judiciary and legislative organ (led by a strong
majority of a single party) continues with the Supreme Court recently making a
remark that the Central Government is ‘now testing the patience of the court’
as the government chooses to repeatedly pass Tribunal Reform Bill providing
sweeping powers to the executive for appointment of members in tribunals. The Supreme Court has warned the government
of contempt action against the violation of the court’s repeated observance to
fix the problematic arenas of the Tribunal Bill.
Needless to say, that the government’s proclivity to
disregard even the judgement of the Supreme Court reflects its nefarious design
to potentially alter the working of tribunals to suit its whims and fancies.
Footnotes
[1]
Reforming The Tribunals Framework In India: An Interim Report,
Vidhi Centre For Legal Policy, 2018.
[2]
Id.
[3]
L. Chandrakumar v. Union of India, AIR 1997 SC 1125.
[4]
Kesavananda Bharati v. State of Kerala & Anr., (1973) 4 SCC 225.
[5]
Section 28 of the Administrative Tribunals Act, No. 13 of 1985 – Exclusion of
jurisdiction of courts except the Supreme Court under Article 136 of the
Constitution.
[6]
Granville Austin, Working a Democratic Constitution: A History of the Indian
Experience, 1st ed. 1999, pp. 370-388.
[7]
S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124.
[8]
L. Chandrakumar v. Union of India, AIR 1997 SC 1125.
[9]
Rojer Mathew v. South Indian Bank, 2018 SCC OnLine SC 500; Union of India v. R.
Gandhi, Madras Bar Association, (2010) 11 SCC 1.
[10]
P. Leelakrishnan, Reviewing Decisions of Administrative Tribunal:
Paternalistic Approach of the Indian Supreme Court and Need for Institutional
Reforms, 54 JILI 1, p. 20 (2012).
[11]
Nageswara Rao and GB Reddy, Doctrine of Judicial Review and Tribunals: Speed
breakers Ahead, 39 JILI 410, p. 422 (1997).
[12]
CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603; Engineering Professional Co. Pvt.
Ltd. v. Deputy Commissioner of Income-tax, (Gujarat High Court (2020) 115
taxmann.com 288 (Gujarat).
[13]
Id.
[14]
R.K. Jain v. Union of India, (1993) 4 SCC 119.
[15]
Supra note, 1.
[16]
Union of India v. Kali Da Bastish, (2006) 1 SCC 779.
[17]
Anamika Kundu and Vasavi Khatri, 1976 to 2017: The Transformation of the
Tribunal System in India, 8 Indian J. Const. L. 43, 49 (2019).
[18]
Roger Mathew v. South Indian Bank Ltd., Civil Appeal No. 8588 of 2019.
[19]
Madras Bar Association v. Union of India, AIR 2015 SC 1571.
[20]
Appointment of Information Commissioners in the Central Information
Commission, Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel and Training, F. No.: 4/9/2018-IR, available at https://dopt.gov.in/sites/default/files/4-9-2018-IR%20Noting.PDF
, last seen on 14/09/2020.
[21]
Right to Information, (Term of Office, Salaries, Allowances and Other Terms
and Conditions of Service of Chief Information Commissioner, Information
Commissioners in the Central Information Commission, State Chief Information
Commissioner and State Information Commissioners in the State Information
Commission) Rules 2019, Ministry of Personnel, Public Grievances and
Pensions, Department of Personnel and Training, G.S.R. 810(E) 24/10/2019,
available at http://documents.doptcirculars.nic.in/D2/D02rti/RTI_Rules_2019r4jr6.pdf,
last seen on 14/09/2020.
[22]
Shyamlal Yadav, New draft rules downgrade CIC and ICs, cut their tenure and
perks¸ The Indian EXPRESS (Oct 17, 2019), available at https://indianexpress.com/article/india/new-rti-act-draft-rules-downgrade-cic-and-ics-cut-their-tenure-and-perks-6072678/,
last seen on 14/09/2020.
[23]
Union of India v. R. Gandhi, Madras Bar Association, (2010) 3 CTC 517.
[24]
Gautam Swarup, Indiscriminate Tribunalisation and the Exclusive Judicial
Domain: An analysis of the 42nd Amendment in the light of decisions
of the Supreme Court¸ 23 National Law School of India Review 97, 102
(2012).
[25]
Id.
[26]
Article 246 of the Indian Constitution delineates the distribution of matters
under three lists of Union List, State List and Concurrent List, supplemented
by Schedules.
[27]
Article 247 of the Indian Constitution postulates the power of Parliament to
establish additional courts for better administration of laws made by the
Parliament.
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