Regulators red-flag Government’s shortcut on merging tribunals

Competition Appellate Tribunal (COMPAT), Justice Vikas S Sirpurkar has asked why in the name of saving expenses, did the Government not move amendments (to the relevant parent legislation under which these institutions were set up). “Shuffling around does reduce efficiency. When I was heading COMPAT, I was given additional charge of the Airports Economic

Regulatory Authority Appellate Tribunal. Despite my best efforts, work suffered,” he said.

The tribunals, asserted the former Supreme Court judge who headed COMPAT for 27 months, were created through an Act of Parliament and thereby the changes should have been moved through amendments to the respective legislation governing them.

When contacted, S S Chahar, the current Member (Judicial) of the Cyber Appellate Tribunal, which has been subsumed under the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), said: “As a member (of the Tribunal), the only thing that I can say is that (the move) is not good. Not ensuring that there are separate benches — that, in my view, is not good.” At present, the Cyber Appellate Tribunal does not have a chairperson.

Tribunals are quasi-judicial bodies headed by a senior member of the judiciary, such as a judge of the Supreme Court or Chief Justice of a High Court. Former chairman of the Central Electricity Regulatory Commission Dr Pramod Deo, the longest serving electricity regulator in India, said that combining two appellate tribunals involves the question of technical and domain expertise in disparate sectors which can sometimes be bridged by equipping the body with members having these technical skills. “But the problem is on the issue of tinkering with existing legislation that govern each of these appellate tribunals and the changes being made outside of it (through rules to be issued)... that can certainly be challenged,” he told The Indian Express. The changes, he asserted, should not be outside of the specific legislation for the purpose.

A functionary of the Appellate Tribunal for Foreign Exchange, constituted under the Foreign Exchange Management Act, 1999, said the “tangential route” taken by the government was “more worrying”. He said there is the issue of possible conflict of interest if the government is the litigant before a Tribunal, given that it has direct role in the appointment of its chairperson and members.

Additionally, there are concerns over the impact of the move on the specialisation of tribunals in specific areas and the dilution of their domain expertise. The Telecom Disputes Settlement and Appellate Tribunal (set up under the TRAI Act, 1997), for instance, is to take over the function of both the Cyber Appellate Tribunal (set up under the Information Technology Act, 2000) and the Airports Economic Regulatory Authority Appellate Tribunal (which was set up under the Airports Economic Regulatory Authority of India Act, 2008).

According to PRS Legislative Research, the TDSAT may not have the expertise to adjudicate matters related to the pricing of airport services and it is unclear if the National Company Law Appellate Tribunal (NCLAT), which deals with matters related to company disputes and governance, will have the expertise to deal with matters related to anti-competitive practices, which are currently dealt by the Competition Appellate Tribunal.

The move to reduce the existing numbers of tribunals is in keeping with the NDA Government’s stated objective. For this, the Centre had set up an inter-ministerial group under law secretary Suresh Chandra in February 2016 with the mandate to reduce the number of tribunals from 36 to 18.

This inter-ministerial group is learnt to have suggested a three-stage action plan for converging tribunals.