New rule for Tribunals

2020 MAR 3

Mains   > Polity   >   Judiciary   >   Tribunals

In News:

The Central Government has notified new rules to regulate appointment of members to tribunals, appellate tribunals and other Authorities.

What are Tribunals?

  • A tribunal is a quasi-judicial body established in India by an Act of Parliament or State Legislature under Article 323A or 323B to resolve disputes.
  • Central Administrative Tribunal (CAT), Railway Claims Tribunal (RCT), Debt Recovery Tribunal (DRT) are some examples.
  • They follow the principles of Natural Justice and plays an important role in the adjudication of disputes, especially those subjects which demand technical expertise.
  • They enjoy some of the powers of a civil court, viz., issuing summons and allowing witnesses to give evidence. Its decisions are legally binding on the parties, subject to appeal.

Why Tribunals were needed:

  • Reduce load on ordinary courts: The traditional system has been overburdened with ordinary suits. Their procedures are formalistic, expensive and took years to resolve. The tribunal system gives the much-needed relief to such ordinary courts.
  • Specialized approach: Tribunals comprise of people who have spent a considerable amount of time on one particular subject or field of knowledge. Hence, they are in a better position to understand technical issues and ensure justice.  
  • Cheaper resolution: Because of its flexibility and informality, the complaints need not be represented by a lawyer. They may be represented by an individual or by themselves. They have few operational formalities. Hence, tribunals ensure inexpensive justice.
  • Timely justice: Tribunals follow the principle of natural justice and the procedures are much simpler compared to courts. Also, most tribunals have time limits within which they should dispose cases.  

Why new rules?

  • The previous rules framed by the Centre in 2017 was struck down by the Constitution Bench of Supreme Court (SC) in November 2019 in the case Rojer Mathew v. South Indian Bank.
  • In 2019, the Supreme Court struck down rules on the qualifications, appointments, removal, and remuneration of members to various tribunals formulated under the Finance Act, 2017, citing violation of the principle of separation of powers.
  • The SC held that a committee constituted for the purposes of appointing tribunal members must be dominated by judicial members and not representatives from the government. It also held that the members of the Indian Legal Services are not fit for appointment as judicial members of any tribunal.
  • In case of Income Tax Appellate Tribunal (ITAT), the SC stated that judicial members should be given preference for appointment to the posts of president and vice president.

The new rules:

  • The Ministry of Finance has framed new rules called ‘Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules 2020
  • As per the 2020 rules, the appointment to the Tribunals will be made by the Central Government on the recommendations given by ‘Search cum selection Committee’. The composition of the Search Cum Selection Committee of each Tribunal is specified in Schedule of the Rules.
  • The Chief Justice of India or a Judge nominated by the CJI will be a member of the committee. The committee has the power to recommend the removal of a member and also conduct inquiry into allegations of a member's misconduct.
  • The rules are applicable to various tribunals, ranging from Income-Tax Appellate Tribunal, Debt Recovery Tribunal, National Company Law Appellate Tribunal etc. to National Green Tribunal.

Criticism of the New Rules:

  • SC in its previous order had clarified that the committee for appointment must be dominated by judicial members. Despite this, the new rules envisage an equal representation, with two judicial members and two representatives from the government. 
  • The government has raised the minimum qualification for judicial members opposed to the concessions given by SC, by increasing the period of experience required. This is despite governments claim of not being able to find enough qualified judicial members.
  • The new rules mandate only President of ITAT to be a judicial member while SC has held that judicial members should be given preference for appointment to the posts of President and Vice-President.

General Issues with Tribunals:

  • Over tribunalisation: Successive governments have created numerous tribunals, with varied and overlapping jurisdictions- all of which contribute to malfunctioning in the managing and administration of tribunals.
  • Opaque appointment process: Members to the tribunals are selected by the executive based on recommendations od selection committees. However, details of the process or minutes of the meetings are rarely published.
  • Lack of independence: funds and functionaries of tribunals are regulated by ministries and departments of the executive, thereby inhibiting their freedom.
  • Non uniformity: There is no uniformity with respect to service conditions, tenure of members, varying nodal ministries in charge of different tribunals. Some tribunals are not vested with powers of civil contempt, leaving them toothless in enforcement.
  • Jurisdictional overreach: In some cases, tribunals have encroached into areas outside their jurisdiction. Eg: Directives by NGT in the domain of policy making.

Way forward:

  • In the present arrangement of the selection committee, the judicial members will not be able to outvote the government representatives to ensure judicial dominance in the appointment process. However, by providing the judicial members with a casting vote in case of a tie can solve this problem.
  • The government should ensure that the qualification, appointments and other terms of service of Tribunals are in tandem with the principles of Separation of Powers. The Rules should be in alliance with the directives of SC in previous judgements.
  • Besides these, the 272nd report of the Law commission of India has made several recommendations to strengthen the system of tribunals in the country. Some of these are:
    • Uniformity in service conditions: It recommended that there should be uniformity in the appointment, tenure, and service conditions for all members of tribunals.  to ensure this, the function of monitoring their working should be transferred to a single nodal agency, set up under the Ministry of Law and Justice.
    • Conditions for appeals: if decisions of appellate tribunals are appealed before High Courts regularly the purpose of establishing tribunals may be defeated. Hence, a party aggrieved by an appellate tribunal’s decision should be able to approach only the Supreme Court on grounds of public or national importance.
    • Regional benches: Tribunals should have benches in different parts of the country to ensure access to justice by people across geographical areas.  These benches should be located where High Courts are situated.

PRACTICE QUESTION:

Q. Tribunals are meant to provide speedy, cost-effective dispute resolution. Does tribunals violate the principle seperation of power. What are the inherent issues with tribunals in India?