Issues Related to Tribunals

• Vacancies
  • The SC noted that, the vacancies of 20 presiding officers, 110 judicial members and 111 technical members were pending across the country in various tribunals.
    • For example, in the National Green Tribunal, Income Tax Appellate Tribunal, Central Administrative Tribunal. These persisting vacancies make them redundant.
• Ignoring Recommendations
  • Recommendations of names by the selection committees led by sitting Supreme Court judges to fill up the vacancies have been largely ignored by the government.
• Denying Right of the People to Access Justice
  • The Court pointed out that with defunct tribunals and High Courts having no jurisdiction over the areas of law wielded by tribunals, litigants have nowhere to go for justice.
• Problem of Non-Uniformity
  • Added to this is the problem of non-uniformity across tribunals with respect to service conditions, tenure of members, varying nodal ministries in charge of different tribunals.
  • These factors contribute significantly to malfunctioning in the managing and administration of tribunals.
• High Pendency
  • Many tribunals also do not have adequate infrastructure to work smoothly and perform the functions originally envisioned leading to high pendency rates thus proving unfruitful to deliver quick justice.
  • The 272nd Law Commission Report highlighted worrying pendency figures for the CAT (44,333 cases), AFT (10000 cases).
• Reappointment
  • According to The 272nd Law Commission Report, Out of the 37 tribunals analyzed, only five tribunals have expressly barred reappointment. However, 15 tribunals contain no provision on reappointment. Arguably, this creates a situation of ambiguity where reappointment of members is potentially possible.

Way Forward

The Law Commission of India released its 272nd Report titled “Assessment of Statutory Frameworks of Tribunals in India”, recommended for

• The Selection Board/Committee responsible for appointing members should be headed by the Chief Justice of India or a sitting judge of the Supreme Court or his nominee.
• Vacancy arising in the tribunals should be filled within six months prior to the occurrence of vacancy.
• The Central Government should bestow the function of monitoring the working of the tribunals to a single nodal agency to ensure uniformity in all affairs of the tribunals. 
• The nodal agency should preferably be the Ministry of Law and Justice.
• Conditions on appointment, tenure and service conditions of members of the tribunals needs to be standardized.

Supreme Court Cases

With regard to Tribunalisation of Justice: The evolution of law and attitude of judiciary towards tribunalisation can be traced through the following landmark judgements –

• In S.P. Sampath Kumar and Ors. Vs Union of India, the issue was regarding the constitutional validity of 42nd amendment and the Administrative Tribunals Act 1985 as they excluded judicial review. It was held that Judicial Review was part of basic structure of the Constitution but then it was also stated that if the constitutional amendment provides for an effective mechanism for vesting the Administrative Tribunals with power of Judicial review then it would not be unconstitutional even though it excluded the jurisdiction of High Courts.
• In L.Chandra Kumar vs The Union of India:
  • The court reiterated the fact that judicial review is part of basic structure of Constitution and the power of judicial review of High Court and Supreme Court under Art. 226 and. Art. 32 ensure independence of Judiciary. The ‘exclusion of jurisdiction’ clause in all the legislations which have been enacted under scope of Article 323A and Article 323 B was struck down.
  • The superintendence power of High Courts over lower courts within their jurisdiction was held a part of the basic structure. With respect to tribunals it was held that they will ensure speedy justice and they will act as courts of first instance with respect to areas of law for which they have been established. The reason given, behind the judgement was that the constitutional provision ensures the independence of only superior judiciary and not of tribunals. Therefore, the tribunals can never be a perfect substitute of superior courts and hence the power of judicial review of High Court and Supreme Court can never be excluded.
• In Union of India v. R Gandhi, It was also stated that though the legislature can form laws prescribing eligibility criteria and kind of expertise required for appointment in tribunals, the superior courts have the authority to examine whether the eligibility criteria and qualifications prescribed for appointment of members is adequate enough to enable them to meet the purpose for which the given tribunal is constituted.
• Roger Mathew Case 2019
  • SC Declared the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2017 as unconstitutional.

What were those rules?

• The power to prescribe eligibility criteria, selection process, removal, salaries, tenure and other service conditions pertaining to various members of 19 tribunals were sub-delegated to the rule-making powers of the Central government.
  • Only judges and advocates can be considered for appointment as a judicial member of the tribunal and persons from the Indian Legal Service cannot be considered for appointment as judicial members.
  • Recently, in Revenue Bar Association (2019), the Madras High Court declared Section 110(1)(b)(iii) of the CGST Act, 2017 as unconstitutional for allowing members of Indian Legal Service to be judicial members in GSTAT.