Tribunals Reforms Ordinance: A Disguise to Efface Lines of Separation

By Anushka Juneja

People’s faith is the bedrock on which the efficacy of adjudication and edifice of judicial review is based. For inspiring trust in the litigant public, they must have an assurance that the person deciding their cases is completely free from pressure or influence of the government. The drafters of the Constitution have very diligently defined the powers and functions of various organs of the government. But there have been numerous instances where the executive has tried to infringe this principle of separation of powers. One of the most recent examples of this transgression of power is the promulgation of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. An analysis of the provisions of the ordinance reveals the lackadaisical approach that the government has adopted in following the court’s directions, which it is bound to follow. The author intends to critique some of these provisions and demonstrate how this ordinance is yet another attempt by the executive to curtail and interfere with the judiciary’s powers.

Never-ending Litigation

The first tribunal rules were issued in 2017 but were quashed because they harmed judicial independence. Following that, another set of rules were framed in 2020, but those could not be implemented because the Apex Court found several faults. On February 1, 2021, another bill was issued in this regard, but it has not yet received the parliamentary nod. It is in continuance to this that the ordinance has now been issued. These time and again efforts by the government to interfere with the judicial powers have given life to never-ending litigation on the validity of these rules, and a plea challenging the provisions of the ordinance has already been filed in the Supreme Court.

Provisions are in Direct Contravention to the Precedents

Backlogs and delays in the administration of justice are of prime concern for any country governed by the rule of law. In the ever-constant strive to increase access to justice, the constitution of tribunals has evolved as a one-stop solution. However, this ordinance dissolves nine existing appellate bodies, including Film Certification Appellate Tribunal (FCAT) and transfers their powers to the High Courts. In the Madras Bar Association Case, it was directed that a prior judicial assessment has to be conducted before scrapping the tribunals, but no such procedure was followed. The Finance Act, 2017 has been amended, and provisions relating to the term of office and search-cum-selection committees have been added.  The Apex Court has clearly stated that the minimum tenure must be five years. Still, the term of office that has been specified in the ordinance is four years or till the attainment of the age of seventy years for the chairperson and four years or age of sixty-seven years for other members.

Further, the ordinance has specified that the members of the tribunal would be appointed by the government on the recommendation of a search-cum-selection committee. The committee is required to suggest two names for the government to choose from within three months. This is in complete contradiction to the Madras Bar Association Case in which the government was explicitly directed to restrict the recommendation to a single name while keeping the other person in the waiting, to be recommended only if the previously recommended name was not approved.

Government Intends to Curtail the Judiciary’s Powers

The National Tribunal Commission (NTC) is an umbrella body to take care of the infrastructural and administrative needs of tribunals. It would work independently to supervise and ensure the smooth working of these judicial bodies. The idea of such kind of a body was first mooted in the L. Chandra Kumar v. Union Of India case and, since then, has been reiterated in numerous cases, including the most recent Rojer Mathew case. The constitution of NTC would lead to the preservation of the tribunals’ independence and would, in a real sense, lead to the restructuring of the tribunal system in India. But the centre has adopted an evasive approach towards complying with the Apex Court’s directives and has yet not constituted an NTC. This depicts that the centre intends to have an upper hand and intends to suppress the judiciary’s powers.

Furthermore, under Article 144 of the Constitution, all the authorities are directed to act in aid of the Supreme Court. If it were not for this article, the decisions of the Supreme Court would have remained ineffective. It places an unescapable duty on the government’s shoulders to abide by the decisions of the top Court. By not complying with these, the government has failed to assist the Apex Court and has defaulted on its obligations.

Conclusion

Tribunals have played a vital role in delivering access to justice. To sustain people’s faith in the judiciary, these tribunals must function independently, without the interference of the executive. All the provisions of the ordinance that do not align with the directions issued by the Apex Court should be scrapped, and a body like the National Tribunal Commission should be set up. The government’s inertia in setting up a body like this can be overcome by promoting and initiating awareness about the National Tribunal Commission.

(Anushka Juneja is a first year student of law at Gujarat National Law University)