On tribunals, why has it become govt vs SC?

Government’s repeated defiance of the apex court on the matter is intriguing. The passage of the tribunals bill without debate is worrying

In a justifiable display of annoyance over the delay in filling up vacancies in the various tribunals, the Supreme Court has in its order of August 16 given the government 10 days to fill up those vacancies. Chief Justice N V Ramana has sternly observed that the fact of pendency of writ petitions before the court “shall not come in the way of the Union of India, and/or taking an excuse by them, for not processing/appointing members in various Tribunals.”

The Supreme Court had in an earlier order expressed unhappiness about the delay in filling up vacancies in the GST Tribunal and had gone on to make a larger point – “It seems that the bureaucracy does not want these tribunals.” This was in the backdrop of the court’s observation that there is a serious problem of vacancies in at least 15 tribunals ranging from the Debt Recovery Tribunal to the Central Administrative Tribunal. Thus, there were as many as 221 vacancies of judicial and technical members in the various tribunals as on August 5.

It may be recalled that the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, had abolished nine Appellate Bodies and transferred their functions to High Courts. The Appellate Bodies abolished were those as established under the Cinematograph Act, 1952; Trademarks Act, 1999; Copyright Act, 1957; Patent Act, 1970; Advance Rulings under the Customs Act, 1962; Airport Appellate Tribunal under the Airports Authority of India Act, 1994; Control of National Highways (Land and Traffic) Act, 2002; Protection of Plant Varieties and Farmers' Rights Act, 2001; and the Geographical Indications of Goods (Registration and Protection) Act, 1999. This was a process that had commenced with the Finance Bill 2017, when the tribunal system was sought to be rationalised and the number of tribunals reduced from 26 to 19.

The Law Commission of India, in its Report No 272 (Assessment of Statutory Frameworks of Tribunals in India), while discussing the reasons for the delay in justice administration, had emphasised the need for establishing tribunals. These reasons have not changed. The Constitution also provides for the establishment of tribunals.

There were as many as 69,476 cases pending at various stages in the Supreme Court as on August 2. The position in the High Courts is more alarming -- as many as 58,68,271 cases (both civil and criminal) are pending as on date. Out of this, more than 1,50,000 cases are more than 20 years old. Thus, there is no doubt that the courts are straining under the burden of the heavy pendency.

The reasons given while presenting the Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021, (which later got implemented through the Ordinance) was that the tribunals do not contribute to a reduction in the workload for the courts, nor do they deliver faster justice, and that they come at the expense of the exchequer. This is a harsh and perhaps unfair indictment of the functioning of the tribunal system. But as Justice L Nageswara Rao observed in a Supreme Court decision, the “existence of large number of vacancies of Members and Chairpersons and the inordinate delay caused in filling them up has resulted in emasculation of the tribunals.”

The latest decision arose out of the fourth time that the matter has come up before the apex court in the last three years. In 2019, the court had struck down the rules that were introduced by the government on the ground that they were in violation of the principles laid down by the apex court regarding the composition and security of tenure of the tribunals and the composition of the selection committee. New rules were notified in February 2020 which were again challenged and found to be vires of the apex court’s directions. Some provisions of the Ordinance and the Rules notified afresh in June 2021 again met the same fate. The apex court struck down provisions relating to the four-year tenure and the minimum age requirement of 50 years for members of tribunals – it has consistently held that the tenure should be five years and that the minimum age requirement of 50 would discourage younger talent.

Despite the apex court’s observations, the government went ahead with introducing the Tribunals Reforms Bill, 2021, in the Lok Sabha on August 2, and it was passed by the House the next day and by the Rajya Sabha on August 9. Predictably, there was no debate in Parliament on the Bill. This fact did not escape the attention of the apex court which, while passing its latest order, lamented the lack of quality debates in Parliament saying that it is a “sorry state of affairs” that has resulted in passage of laws with a lot of ambiguity in their provisions. The court has also expressed concern over the “disturbing trend” of the government not complying with its directions.

While a rationalisation of the functioning of tribunals may be necessary, the solution perhaps lies in ensuring that the vacancies are filled up in the various surviving tribunals. They need to be given adequate infrastructure and support. And yes, it should be appreciated by all concerned that these posts are much more than sinecure jobs. Tribunals fulfil a very important role in the speedy disposal of litigation and discharge of justice. Shutting down tribunals, or worse not filling the vacancies in the existing tribunals, only increases the burden of the already overburdened courts. What the government should be doing is to ensure a rigorous selection process so that the right persons are selected for these important roles.

The matter is now listed before the Supreme Court for August 31. It will be interesting to see the government’s response.

(The writer is a former chairman of the Central Board of Indirect Taxes & Customs)