Safeguarding the autonomy of tribunals

JUDICIARY/ GOVERNANCE

Topic: General Studies 2:

• Statutory, regulatory and various quasi-judicial bodies. 
• Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Safeguarding the autonomy of tribunals

Context: New rules were then published in February 2020 with regard to Tribunals & its functioning

A Brief history

• In 2001, government was contemplating establishing a central tribunals division within the ministry of law and justice, an independent supervisory body to bring uniformity for all tribunals. 
• This was in the wake of the seven-judge Constitution Bench decision of the Supreme Court (SC) in the L Chandra Kumar vs Union of India case.
• A set of rules was promulgated in 2017 by the government for administering the functioning of tribunals
• However, SC on November 13, 2019, in Rojer Mathew vs South Indian Bank, had quashed the 2017 rules and directed that fresh rules be issued in line with various past decisions on tribunalisation.
• New rules of 2020 carry out only cosmetic changes and some of the provisions contravene the spirit of law laid down by SC on matters related to tribunals.

Issues with the New Rules

1. Control of Executive:

• The new rules do not remove the control of parent administrative ministries over tribunals, that is, those ministries against which the tribunals have to pass orders. 
• This majorly affects certain tribunals such as the Armed Forces Tribunal wherein it functions under the same ministry which is the first opposite party in litigation
• SC in the cases of L Chandra Kumar (1997), R Gandhi (2010), Madras Bar Association (2014) and Swiss Ribbons (2019) has ruled that tribunals cannot be made to function under the ministries against which they are to pass orders 
• They must be placed under the law ministry instead.

Did You Know?

• Income Tax Appellate Tribunal was created in 1941, it was put under the finance department, but moved to the legislative department a year later to ensure its independence. 
• This arrangement continues till date, and is perhaps the primary reason that it is one of the best-performing tribunals.

2. Selection of Tribunal Members

• The new rules ensure that the secretary of the ministry against which the tribunal is to pass orders sits on the committee for selecting adjudicating members of the same tribunal.
• The selection committee under the new rules can function even in absence of any judicial member, meaning that a committee entirely (or majorly) comprising officers of the executive can select members of tribunals.

3. Tenure of Tribunal members

• The new rules provide for a retirement age of 65 years even for former judges who retire at 62 from the high courts (HCs), which gives them at best a three-year tenure. 
• This is against the minimum five to seven years tenure mandated by SC in the R Gandhi case to ensure continuity.

4. Threat to Independence of Tribunal members

• The bar on employment with the government after retiring from tribunals has been removed, thereby gravely affecting the independence of members.

Way Ahead

• In order to remove unnecessary burden on SC and make justice affordable and accessible, it needs to be ensured that the tribunals work efficiently.
• An independent autonomous body such as a National Tribunals Commission (NTC), responsible for oversight as well as administration, can go a long way in remedying issues that plague the functioning of tribunals.
• In this context, the high courts, being equally effective constitutional courts, practically should become the last and final court in most litigation after tribunals pass the order.

Connecting the dots:

• Article 323-A and Article 323-B