“Justice delayed is democracy denied”—John F Kennedy, US president
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 (Rationalization and Conditions of Service) Ordinance, 2021, which the Supreme Court struck down last month in a 2:1 verdict in Madras Bar Association versus Union of India saying it as unconstitutional as it interferes with the independence of the judiciary. This has triggered a fresh stand-off between the legislature and the judiciary over the powers of and limitations on lawmaking.
What are Tribunals?
- Tribunals are specialist judicial bodies that decide disputes in a particular area of law.
- They are institutions established for discharging judicial or quasi-judicial duties.
- The objective may be to reduce the caseload of the judiciary or to bring in subject expertise for technical matters.
Creation of Tribunals
In 1976, Articles 323A and 323B were inserted in the Constitution of India through the 42nd Amendment.
- Article 323A: This empowered Parliament to constitute administrative Tribunals (both at central and state level) for adjudication of matters related to recruitment and conditions of service of public servants.
- Article 323B: This specified certain subjects (such as taxation and land reforms) for which Parliament or state legislatures may constitute tribunals by enacting a law.
- Article 262: The Indian Constitution provides a role for the Central government in adjudicating conflicts surrounding inter-state rivers that arise among the state/regional governments.
- In 2010, the Supreme Court clarified that the subject matters under Article 323B are not exclusive, and legislatures are empowered to create tribunals on any subject matters under their purview as specified in the Seventh Schedule.
Tribunal Reforms Bill, 2021
(1) Dissolution of Existing Bodies
- The Bill seeks to dissolve certain appellate bodies and transfer their functions to other existing judicial bodies.
(2) Merging of Existing Bodies
- The Finance Act, 2017 merged tribunals based on domain.
(3) Search-cum-selection Committees
- The Chairperson and Members of the Tribunals will be appointed by the central government on the recommendation of a Search-cum-Selection Committee.
- The Committee 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 governments.
- The sitting 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).
(4) State Administrative Tribunals
- It will have separate search-cum-selection committees with the Chief Justice of the High Court of the concerned state, as the Chairman (with a casting vote).
(5) Eligibility and Term of Office
- The Bill provides for a four-year term of office (subject to the upper age limit of 70 years for the Chairperson, and 67 years for members).
- Minimum age requirement of 50 years for appointment of a chairperson or a member.
(6) Removal of Tribunal Members
- The central government shall, on the recommendation of the Search-cum-Selection Committee, remove from office any Chairperson or a Member.
To summarize the transfer of functions and other provisions of the Bill, consider the following table:
Transfer of functions of key appellate bodies as proposed under the Bill
|Acts||Appellate Body||Proposed Entity|
|The Cinematograph Act, 1952||Appellate Tribunal||High Court|
|The Trade Marks Act, 1999||Appellate Board||High Court|
|The Copyright Act, 1957||Appellate Board||Commercial Court or the Commercial Division of a High Court*|
|The Customs Act, 1962||Authority for Advance Rulings||High Court|
|The Patents Act, 1970||Appellate Board||High Court|
|The Airports Authority of India Act, 1994||Airport Appellate Tribunal||The central government, for disputes arising from the disposal of properties left on airport premises by unauthorized occupants. High Court, for appeals against orders of an eviction officer.|
|The Control of National Highways (Land and Traffic) Act, 2002||Airport Appellate Tribunal||Civil Court#|
|The Geographical Indications of Goods (Registration and Protection) Act, 1999||Appellate Board||High Court|
Amendments to the Finance Act, 2017:
- The Finance Act, 2017 merged tribunals based on domain.
- It also empowered the central government to notify rules on:
(i) Composition of search-cum-selection committees,
(ii) Qualifications of tribunal members, and
(iii) Their terms and conditions of service (such as their removal and salaries).
- The Bill removes these provisions from the Finance Act, 2017.
- Provisions on the composition of selection committees and term of office have been included in the Bill.
- Qualification of members and other terms and conditions of service will be notified by the central government.
What are the issues raised by the Supreme Court?
(1) Bypassing the usual legislative process
- The government has re-enacted the very same provisions struck down by the Court in the Madras Bar association case (2021).
- There was no discussion over the bill in the Parliament.
- It amounts to “unconstitutional legislative overriding” of the judgment passed by the SC.
(2) Government not following repetitive directions issued by the Court
- The Centre is not following the repeated directions issued by the Court to ensure the proper functioning of the Tribunals.
- The provisions in the ordinance regarding conditions of service and tenure of Tribunal Members and Chairpersons were already struck down by the Supreme Court.
(3) Issue over the Security of Tenure
- The Tribunals Reforms Act, 2021 bars appointments to tribunals of persons below 50 years of age.
- It undermines the length/security of tenure.
(4) Violates the principles of separation of powers and judicial independence
- Central Government can take a decision on the recommendations made by the selection Committee within three months from the date of such recommendations.
- Section 3(7) of the bill mandates the recommendation of a panel of two names by the search-cum selection committee.
- This violates the principles of separation of powers and judicial independence.
(5) Existence of a large number of vacancies in the Tribunals
- Currently, India has 16 tribunals including the National Green Tribunal, the Armed Forces Appellate Tribunal, and the Debt Recovery Tribunal, etc.
- Many of these tribunals suffer from crippling vacancies.
- Existence of large number of vacancies of Members and Chairpersons and the inordinate delay caused in filling them up has resulted in weakening of the tribunals.
(6) Detrimental to the Decision-making Process
- These cases will be transferred to High Courts or commercial civil courts immediately.
- The lack of specialization in regular courts could be detrimental to the decision-making process.
Government is yet to constitute the National Tribunals Commission (NTC)
- Further, the Centre is yet to constitute a National Tribunals Commission (NTC), an independent umbrella body to supervise the functioning of tribunals, appointment of and disciplinary proceedings against members, and to take care of administrative and infrastructural needs of the tribunals.
- The idea of an NTC was first mooted in L. Chandra Kumar v. Union of India (1997).
- Developing an independent oversight body for accountable governance requires a legal framework that protects its independence and impartiality.
- Therefore, the NTC must be established vide a constitutional amendment or be backed by a statute that guarantees it functional, operational and financial independence.
- As the Finance Ministry has been vested with the responsibility for tribunals until the NTC is constituted, it should come up with a transition plan.
Advantages of NTC
- The NTC would ideally take on some duties relating to administration and oversight.
- It could set performance standards for the efficiency of tribunals and their own administrative processes.
- It could function as an independent recruitment body to develop and operationalise the procedure for disciplinary proceedings and appointment of tribunal members.
- Giving the NTC the authority to set members’ salaries, allowances, and other service conditions, subject to regulations, would help maintain tribunals’ independence.
Inherent Issues with Indian Judiciary
The Constitution of India, through its Preamble, has guaranteed its citizens ‘ Justice’’—economic, political, and social. But even after 70 years of independence, achieving substantive justice for the vast majority of the citizens has remained a distant dream. In the specific area of the justice delivery system, India is faced with several problems relating to large backlogs and pendency of cases.
Despite the independence of the judiciary from the executive and legislative bodies, the Indian judicial system faces a lot of problems.
The major issues that the system faces are:
- The pendency of cases.
- Lack of transparency (particularly in the appointment of judges).
- Under trials of the accused.
- Lack of information and interaction among people and courts.
1) Pendency of cases
- India’s legal system has the largest backlog of pending cases in the world – as many as 30 million pending cases. Of them, over four million are High Court cases, 65,000 Supreme Court cases.
- This number is continuously increasing and this itself shows the inadequacy of the legal system.
- And also due to this backlog, most of the prisoners in India’s prisons are detainees awaiting trial.
- It is also reported that in Mumbai, India’s financial hub, the courts are burdened with age-old land disputes, which act as a hurdle in the city’s industrial development.
What led to the underperformance of the Indian Judiciary?
The issue of heavy arrears pending in the various courts of the country has been a matter of concern since the time of independence. The primary factors contributing to docket explosion and arrears as highlighted by Justice Malimath Committee report are as follows:
- Population explosion
- Litigation explosion
- Hasty and imperfect drafting of legislation
- Plurality and accumulation of appeals (Multiple appeals for the same issue)
- Inadequacy of judge strength
- Failure to provide adequate forums of appeal against quasi-judicial orders
- Lack of priority for disposal of old cases (due to the improper constitution of benches)
2) Corruption in the judiciary
- Like any other institution of the Government, the Indian judicial system is also allegedly corrupt.
- There is no system of accountability. The media also do not give a clear picture on account of the fear of contempt.
3) Lack of transparency
- Another problem facing the Indian judicial system is the lack of transparency. It is seen that the Right to Information (RTI) Act is totally out of the ambit of the legal system.
- Thus, in the functioning of the judiciary, the substantial issues like the quality of justice and accountability are not known properly.
- In the recent past, there have been many debates regarding the Collegium system and the new system that the government wanted to introduce for the appointment of judges, the NJAC.
4) Hardships of the undertrials
- Right to a speedy trial is an integral part of the principles of fair trial and is fundamental to the international human rights discourse.
- In Indian jails, most of the prisoners are undertrials, which are confined to the jails until their case comes to a definite conclusion.
- In most of the cases, they end up spending more time in the jail than the actual term that might have had been awarded to them had the case been decided on a time and, assuming, against them.
- Plus, the expenses and pain and agony of defending themselves in courts is worse than serving the actual sentence. Undertrials are not guilty till convicted.
5) No interaction with society
- It is very essential that the judiciary of any country should be an integral part of the society and its interactions with society must be made regular and relevant.
- Lack of faith in a fair and swift judicial system creates a low-trust society.
- The rule of law and trust are central to enable people in large societies, who do not personally know each other, to live together peacefully and collaborate.
The inherent issues can be addressed with some simple measures like:
- For pendency, time-limits should be prescribed for all cases based on priorities. So setting time-standards is essential and it will vary for different cases, and also for different courts depending on their disposal-capacity. Alternative disputes resolution (ADR) mechanisms should be promoted for out of court settlements.
- To imbibe transparency, a thorough understanding of the principle of independence of the judiciary and ensuring its accountability is the sole prerogative of the Supreme Court itself. The judiciary should come up with its own solution for transparent functioning and judicial appointments.
- To make trials speedy, the judiciary must scrutinize the sensitivity of a particular case before taking up for hearing. Fast track courts must be established for varieties of cases.
- Impartiality, independence, fairness and reasonableness in decision-making are the hallmarks of the judiciary.
- Speedy trial and quick justice are a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution.
- The effort to fast-track the judicial process is in a major policy tangle. The need for a new policy framework and governmental and judicial initiative are need of the hour.
- The executive and judiciary are the two pillars of Indian democracy and their independence is the most important thing for nation to grow and democracy to flourish and live long.
- Tribunals have shown immense potential in the past and to make most out of it, the government should look to strengthen them giving them more powers and resolving the issues faced by them like insufficient staff.
- The rapidly evolving field of “legal tech” enables us to use emerging technologies like digitization, process automation, data and analytics, AI to completely reimaging how a 21st century, the citizen-centric legal system should work.