ANALYSIS: TRIBUNAL REFORMS BILL 2021

Introduction

The Parliament has recently passed the Tribunals Reforms Bill 2021, which has provisions relating to the tenure of members of tribunals, age criteria for appointment, and search-cum-selection committee for tribunal appointments etc., amidst the furore in parliament by replacing the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. However, the Parliament has reintroduced some provisions in the Bill which were struck down by the Supreme Court earlier which further causes the tussle between the judiciary and the legislature as the legislature interferes with the independence of the judiciary.[1]

In this article, we will discuss briefly the provision of the new bill and the provisions which root the tussle between the Supreme Court and the government.

Provisions of the Tribunals Reform Bill, 2021

Major highlights of the bill are as follows –

  • Removal of Appellate Tribunal – The new Bill dissolved eight Appellate Tribunals and transferred their work to the concerned High Courts and Civil Courts.[2]
  • Amendments to the Finance Act, 2017 – According to the Bill the Central Government will notify the qualification of the members of their terms of service and other conditions of service.[3]
  • Search-cum-selection committees – In the new Bill, the Central Government will have the power to appoint the Chairperson and other members of the Tribunal from the recommendation given by the “Search-cum-selection committee”.[4]

State tribunals will be having different “Search-cum-selection committees”.

  • Eligibility and term of office – The Bill provides for the tenure and minimum age for the members to be appointed, their tenure will be of four years and the minimum age will be 50 years.[5]
  • Removal of tribunal members – According to the new Bill the Central Government will have the power to remove any member of the Tribunal on the recommendation of “Search-cum-selection committees”.[6]
The tussle between Supreme Court and the Government since 2017

The tussle for the powers of the Tribunals is long-dated; started by the Government in 2017 bypassing the Finance Act, 2017 which allows the Government to make rules and conditions for the appointment, term, qualification and allowances, etc. of the member of the tribunals and which has also reduced the number of the tribunal in India from 26 to 19.[7]

The new Tribunal rules conceded by the Government had been seen by the Judiciary as an attempt to interfere with the independence of the Judiciary and had been struck down by the Supreme Court in its judgment Rojer Mathew & Ors. v. South Indian Bank Ltd. & Ors. (2019).[8]

But in February 2020 Government introduces the new rules which were again struck down by the Supreme Court in its judgment Madras Bar Association v. Union of India (2020) and the court suggested some amendments in the rules like re-appointment of members of the tribunal and allowing the Advocates with 10 years of experience to be appointed as a member and increasing the tenure to 5 years etc.

However, to overrule the court order, the Government has introduced the Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 but could not get it passed in the budget session, so the Government has promulgated the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021 in April this year, which yet contain the provisions which were struck down by the Supreme Court in its order earlier in November 2020.[9]

Furthermore, on June 30, the Government has notified the rules through the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) (Amendment) Rules, 2021 which contains the rules as recommended by the court in its judgment mentioned above.

Nonetheless, the Supreme Court has struck down individually the ordinance and the Rules, 2021, as they still contain the provisions which are not amended as directed by the court, for instance, the new rules still contain the provision of a minimum age of 50 for the appointment and the tenure is still the four years.

Provisions of new Bill in contradiction to Direction of Supreme Court

Some major provisions are: –

  • According to the Bill, the tenure of the members of the Tribunal will be of four years, which the Supreme Court wants to be of longer period along with the option of re-appointment or else it will discourage the advocates to join on the cost of abandoning their established practice.[10]
  • The Bill has specified that the person must be 50 years old for the appointment to the Tribunal but the Supreme Court said that it must be for all Advocates with 10 years of experience and as in P. Sampath Kumar v. Union of India & Ors.[11] Supreme Court states that anyone eligible for the post of civil court and High Court judges must be eligible for the appointment as vice-chairman in the Tribunals.
  • Another major provision in the Bill is that the Search-Cum-Selection Committee will recommend the names to the Government and the Government will have to choose from them within 3 months which further has been seen by a Judiciary as a breach of independence of Judiciary while appointing the members for judicial bodies.

Suggestion

Bypassing the Tribunal Reform Bill, 2021 the Government has interfered with the independence of the Judiciary which is a direct violation of freedom given to the Judiciary by the Constitution, in short, the separation of power or the basic structure of the constitution.

However, by dissolving the appellate tribunals’ government has increased the workload of the High Courts which are already under the burden of its work, so to ease the working of the Judiciary System, Government must pass the rules for the proper functioning of the tribunals instead of dissolving the Tribunals and also take back the rules which are struck down by the Court like the minimum age criteria, qualification, allowances, etc.

Furthermore, India can also adopt the method of merging as adopted by the UK Government, as it also has faced the same issue as India is facing. Since both India and UK have a similar structure of functioning, the Leggatt Report of the UK is also applicable to the issues faced by the Tribunal. Further, Government can also establish the National Tribunals Commission to review the functioning of the Tribunals.[12]

Conclusion

After pondering over the Act and its provision, one could reach the conclusion that the Act needs more reformations and reliability as endorsed by the Supreme Court through various judgments stated earlier and the Act must remove or reform the provisions similar to the ones which were promulgated in the ordinance as has been directed by the Supreme Court.

Further, the government must appraise and expand the judiciary for the expeditious working of it instead of curbing it, by way of passing such Act and creating the tussle between the Judiciary and Legislature which further burdens the already loaded Judiciary. As a developing nation, we are not against any development which is done for the betterment of our people but at the same time, it does not mean we support things that can hurt us instead of helping us as done by the Act.

Author(s) Name: Prakhar Dwivedi (Jiwaji University, Gwalior, MP)

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