Safeguarding the autonomy of tribunals

Recent rules enhance the power of the executive and erode the independence of tribunals. Modify them

On August 2, 2001, former law minister, Arun Jaitley, stated before Parliament that the government was considering 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.

It is 2020, but neither the vision of the then law minister, nor the dicta of the Constitution Bench have been realised. On the contrary, the current state of tribunals in the nation, and the burgeoning workload of SC, point towards an opposite approach of what was expected.

While quashing a set of rules promulgated in 2017 by the government administering the functioning of tribunals, SC on November 13, 2019, in Rojer Mathew vs South Indian Bank, had directed that fresh rules be issued in line with various past decisions on tribunalisation. New rules were then published in February 2020, but unfortunately, these carry out only cosmetic changes and contravene the law laid down by SC on this subject.

Some of these provisions are jarring. 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 and which also wields rule-making powers and controls finances, infrastructure and manpower.

Needless to state, 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 and they must be placed under the law ministry instead. Shockingly, even complaints against members of tribunals can be made to the same parent ministries as per these rules. It’s worth recalling that when the 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.

The new rules also 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, a system which was termed as “mockery of the Constitution” by SC in Madras Bar Association. The selection committee under the new rules can even function in absence of any constituent, meaning thereby that a committee entirely (or majorly) comprising officers of the executive can select members of tribunals. 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.

The new rules again contain ambiguous clauses stating that any person with experience in economics, commerce, management, industry and administration can be appointed as a member of certain tribunals and that even members with non-judicial/ legal background can become chairpersons, while both these aspects were held impermissible in the R Gandhi case. Even the bar on employment with the government after retiring from tribunals has been removed, thereby gravely affecting the independence of members.

Unless steps are taken in compliance with the law laid down by SC for tribunals, neither their independence nor their ability to reduce the burden on the regular judiciary can be guaranteed. Tribunals must not be seen as an extension of the executive.

Further, in order to de-clutter SC of unnecessary burden and make justice affordable and accessible, it needs to be ensured that the high courts, being equally effective constitutional courts, practically become the last and final court in most litigation. The decisions of HCS must not be used as mere stepping stones towards SC for (especially rich) litigants. If required, the intra-court appellate jurisdiction from a single bench to a division bench within HC can be widened, catering to more subject matters. SC must be allowed to focus only on constitutional points of law of general public importance, Centre-state/interstate disputes or where there is a major conflict between decisions of two or more high courts. “Special Leave to Appeal” may be extended only to really “special” cases.

These measures will not only provide consistency and stability but also promote judicial discipline. As also held by SC, the system must not burden the highest court of the land with deciding on routine and innocuous matters, for example, whether a consumer should be paid 10% or 12% interest, or whether a maintenance of ~30,000 or ~32, 000 is enough for an estranged spouse.

The SC must be left with only quality work consistent with its eminence and majesty.