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Adieu Tribunals

Abolition of tribunals and transfer of their jurisdiction to Courts is an easy option for the Government but for citizens, abolition of tribunals shuts down an avenue for securing quick and inexpensive justice. Perhaps, instead of wholesale abolition, the Government should have thought of improving the working of tribunals by providing human and financial resources for tribunals to function effectively.

Devendra Saksena | New Delhi |

The Tribunals Reforms Ordinance 2021, that abolished eight tribunals at one go, has sparked a fair bit of criticism. According to the objects and reasons for the Ordinance, abolition of the tribunals would be “beneficial for the public at large, reduce the burden on public exchequer, (and) also address the issue of shortage of supporting staff of tribunals and infrastructure.” But the abolition of the tribunals has not been well received.

The film community has come out hammer and tongs against the abolition of the Film Certification Appellate Tribunal (FCAT), that heard appeals against Central Board of Film Certification orders, and abolition of the Intellectual Property Appellate Board has disappointed the legal fraternity. The abolition of some wellfunctioning tribunals along with some defunct ones is surprising, because tribunals were established in furtherance of the Constitutional commitment of providing quick and inexpensive justice, with the express purpose of overcoming delays and backlogs in the administration of justice and reduce the cost of litigation.

The first tribunal to be established in India was the Incometax Appellate Tribunal (ITAT) in 1941. Looking to the ITAT’s success in speedy disposal of cases, successive Law Commissions recommended the formation of more such tribunals to deal with cases of specialised nature. The Law Commission of India in its 14th Report (1958) “Reform of Judicial Administration” recommended the establishment of appellate Tribunal or Tribunals at the Centre and in the States.

Later, in its 58th Report (1974) titled ‘Structure and Jurisdiction of the Higher Judiciary’, the Law Commission urged that separate high-powered Tribunals or Commissions should be set up to deal with service matters. Thereafter, the High Court Arrears Committee set up under the chairmanship of Justice JC Shah (1969), recommended the setting up of an independent Tribunal to handle service matters pending before the High Courts and the Supreme Court.

The Swaran Singh Committee, 1976 reached a similar conclusion. Consequently, the Constitution was amended to provide for establishment of ‘Administrative Tribunals’ under Article 323-A and ‘Tribunals for other matters’ under Article 323-B. Afterwards also, the Law Commission of India in its 124th Report (1988) titled ‘The High Court Arrears – A Fresh Look’ had observed that specialist tribunals could reduce the pendency of cases in High Courts by 45 per cent.

The Law Commission concluded: “1.27. To sum up, the approach of the Commission is to reduce number of appeals, to set up specialist courts/tribunals, simultaneously eliminating the jurisdiction of the High Court which, when translated into action by implementing the reports submitted by the present Law Commission, would, on a very superficial assessment, reduce the inflow of work into the High Court by nearly 45 per cent of its present inflow.” Once again, on directions of the Supreme Court, the Law Commission examined the working of tribunals in its 272nd Report (2017), and noticed no significant shortcomings.

Various recommendations, to improve the performance of tribunals, were made in the report of the Law Commission, but none of its recommendations was adopted. Though tribunals exist in almost all advanced countries e.g. England, USA, France, Australia, the present Government does not appear favourably inclined towards them. PM Modi had declared, as far back as April 2015, that there was a need to evaluate whether tribunals lead to faster delivery of justice or were “barriers” to slow down justice. Mr Modi also suggested that the budget allocated to tribunals could be diverted to Courts. Consequently, it was decided to bring down Central Tribunals from 36 to 18.

By provisions included in the Finance Act 2017, eight tribunals were merged in other tribunals. No particular logic was followed for the merger; for example, the Airports Economic Regulatory Authority Appellate Tribunal was merged with Telecom Disputes Settlement and Appellate Tribunal. The Government also framed some rules regarding qualifications, experience and other service conditions of members of tribunals. In a setback to the Government, a Constitution Bench of the Supreme Court struck down the abovesaid rules, and referred the issue of the validity of the passage of the Finance Act 2017 as a Money Bill, to a larger bench.

The court also directed that the Government should carry out an appropriate exercise for “amalgamation of existing Tribunals adopting the test of homogeneity of the subject matters.” After acquiring a majority in the Rajya Sabha, the Government had no need to be circumspect, as in 2017, so the Tribunals Reforms Bill, abolishing eight tribunals was introduced in the Lok Sabha in February 2021. Since the Bill could not be passed due to paucity of time, the Bill was notified in the shape of Tribunals Reforms Ordinance on 4 April 2021.

Analysis suggests that the performance of tribunals has suffered, inter alia, due to the conflicting vested interests of the Government, Judiciary and Bureaucracy. The Government feels embarrassed by certain decisions of tribunals, like the ones of the FCAT approving exhibition of some controversial films and of the Central Information Commission classifying political parties as public bodies. The Government thinks that it would be better off without tribunals, which needlessly give controversial findings.

Pursuant to this line of thought, some tribunals were marked for abolition and some important bodies like the Central Information Commission were rendered ineffective by keeping most posts of members vacant. Most significantly, the Government would like to dole out memberships of tribunals to its loyalists. The Judiciary, particularly the High Courts, see tribunals as rivals. Despite a pendency exceeding 51.53 lakh cases and an endemic shortage of judges, the High Courts are loathe to surrender even a negligible part of their jurisdiction to tribunals and spare no opportunity to run them down.

Additionally, the Judiciary wants retired judges to man all tribunals, which does not go down well with other stakeholders. Then, in a turf war with sister services, the IAS wants to hog all post-retirement appointments, simultaneously reducing opportunities for other services. Other forces are also at play. Finance Act 2021 lays down that all benches of the Income-tax Appellate Tribunal would have dynamic jurisdiction and would hold only virtual hearings. As it is, a heavy responsibility lies on the Tribunal, which is the apex fact finding body under the Income-tax Act.

The change in law, made “to impart greater efficiency, transparency and accountability” would end face to face hearings, which are necessary to adjudge the important questions of fact and law, before the Tribunal. But, the move could benefit some top lawyers who could represent cases before Tribunal benches at various locations during the course of a single day. Also, the working of many tribunals suffer because members view post-retirement appointments as sinecures. Not having done much original work in their high posts immediately before retirement, many appointees are not physically or mentally equipped to do the hard work expected of them.

With an unsupportive Government and the many pulls and counter-pulls, the tribunal system has not realised its full potential in India. Abolition of tribunals and transfer of their jurisdiction to Courts is an easy option for the Government but for citizens, abolition of tribunals shuts down an avenue for securing quick and inexpensive justice. Perhaps, instead of wholesale abolition, the Government should have thought of improving the working of tribunals by providing human and financial resources for tribunals to function effectively.

A well-functioning tribunal could sum up the evidence and give a definitive finding of fact which would help the High Court in its dispensation of justice. Tribunals could ease the burden on the higher judiciary even more, if higher courts confined themselves only to those appeals against tribunal judgements that raise questions of law. The way forward could be to constitute a Selection Board for the appointment of chairmen and members of tribunals, who should have uniform conditions of service and a reasonable tenure in office.

The Selection Board would ensure that tribunals always function at full strength. Finally, to enhance their effectiveness, tribunals should have the power of contempt so that both parties, particularly the Government, obey its decisions. Law courts with their elaborate procedures, legalistic fronts and attitudes have proved incapable of rendering speedy and affordable justice. On the other hand tribunals have emerged with the promise of “speedy, effective, decentralised dispensation of justice (and) also the expertise and knowledge in specialised areas that was felt to be lacking in the judges of traditional Courts.” (MP Jain and SN Jain, Principles of Administrative Law) It is for us to choose between the two alternatives.

(The writer is a retired Principal Chief Commissioner of Income-Tax)