7 PM Daily Editorials Brief – February 10, 2018(Apex Court passes interim order on appointments to Tribunals)

Context:

• The Supreme Court accepted the suggestions made by the Central Administrative Tribunal (CAT) Bar Association on appointments to various tribunals.
• By doing so the apex court stayed the applicability of provisions of the Central Tribunal, Appellate Tribunal and other Authorities (Qualification, experience and other conditions of service of members) Rules, 2017
• Rules notified give the Centre powers over appointment, removal and service conditions of judges of 19 tribunals.
• The National Green Tribunal is among the 19 tribunals covered by the new rules.
• The judicial independence of these 19 tribunals will be compromised because of the excessive influence of the Central government while appointing and removing judges to and from these bodies.
• The Bench led by Chief Justice of India Dipak Misra  was acting on a petition filed by Congress MP Jairam Ramesh.

Tribunals in India:

• • Tribunals were added in the Constitution by Constitution (Forty-second Amendment) Act, 1976 as Part XIV-A, which has only two articles viz. 323-A and 323-B.
  • Article 323-A deals with Administrative Tribunals; article 323-B deals with tribunals for other matters.
  • The ‘tribunals’ are not courts of normal jurisdiction, but they have very specific and predefined work area.
  • The administrative tribunals are not original invention of the Indian Political System. They are well established in all democratic countries of Europe as well as United States of America.

Present appointment criteria of members to various tribunals:

• In India, tribunals have not achieved full independence.
•  The selection process has been left entirely to the Executive, though the functions of the Tribunal are judicial.
• The Secretary of the concerned ‘sponsoring department’ sits in the Selection Committee for appointment.

What are the various challenges facing by tribunals?

• The functioning of administrative tribunals suffers from lack of autonomy especially in terms of appointment and funding.
• Lack of adequate infrastructure to work smoothly and perform the functions originally envisioned for them.
• There is a lack of understanding of the staffing requirements in tribunals.
• Appointments to tribunals are usually under the control of the executive. The following issues can be crop up out of this:

Issues related to appointments:

• Tribunals perform a judicial function, while the government is part of the executive.
• There may be instances where the government is a party to a dispute before a tribunal like the Central Administrative Tribunal (CAT) or the Income Tax Appellate Tribunal (ITAT).
• There would be conflict of interest if the government were to be a litigant before the tribunal as well as have the power to determine appointment or reappointment of its members.
• By allowing the central government to frame rules to decide each of these aspects, the independence of tribunals could be affected.
• In Shamnad Basheer vs Union Of India on 10 March, 2015, the Supreme Court held that “the selection process has been left entirely to the Executive, though the functions of the Tribunal are judicial. This act is a direct affront to the basic structure, which is fundamental to the Constitution of India. “

Suggestions made by CAT Bar Association related to appointment of members:

The suggestions were made by Senior Counsel  Aryama Sundaram in the batch of petitions challenging the Finance Act, 2017 and the Rules made there under pertaining to tribunals. The following were the suggestions:

• Staying the composition of Search-cum-Selection Committee as prescribed in Tribunal, Appellate Tribunal and Other Authorities (Qualification, experience and other conditions of service of members) Rules, 2017 both in respect of Chairman/Judicial Members and Administrative Members.
• Appointment to the post of Chairman shall be made by nomination by the Chief Justice of India.
• Stay the terms of office of 3 years as prescribed in Column 5 of the Schedule to the Tribunal, Appellate Tribunal and other Authorities (Qualification, experience and other conditions of service of members) Rules, 2017.
• All appointments to be made in pursuance to the selection made by the interim Search-cum-Selection Committee shall be with conditions of service as applicable to the Judges of High Court.
• All appointments to be made in pursuance to the selection made by the interim Search-cum-Selection Committee shall abide by the conditions of service as per the old Acts and the Rules.

Related laws:

The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017:

• This provision gives the Central government the power to “make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service” for judges appointed to 19 tribunals.

The Finance Bill 2017:

• Finance Bill, 2017, being passed as a money bill includes attempt to rationalise the functioning of multiple tribunals.
• The rationalisation has raised questions about the independence of these adjudicatory bodies.
•  The qualifications, tenure, conditions of service, removal and emoluments of the chairpersons and  members of these tribunals will all be under the control of the Centre  Positive impact:

1. 1. Reducing the number of tribunals will speed up dispute resolution and curb wasteful expenditure.
   2. Rationalising tribunals would lead to efficiency.
   3. It will ensure uniform service conditions
   4. Since few tribunals have lesser pending cases, there are chances that the excess bandwidths could be used in few cases.

• May prevent overlap e.g. Competition Appellate Tribunal (Compat) will be merged with the National Company Law Appellate Tribunal.

Central Administrative Tribunal:

• CAT was established under Article 323A of the Constitution (inserted by the 42nd Constitutional Amendment, 1976).
• It is a multi-member body consisting of Chairman and members.
• It was established in 1985 under Section 29 of the Administrative Tribunals Act, 1985.
• The Principal seat of Central Administrative Tribunal is at New Delhi and it has 16 Outlying Benches scattered all over the Country.
• The Chairman is normally a retired Chief Justice of a High Court.

National Green Tribunal Act, 2010:

• National Green Tribunal Act, 2010 (NGT) is an Act of the Parliament of India which enables creation of a special tribunal to handle the expeditious disposal of the cases pertaining to environmental issues.
• It draws inspiration from the India’s constitutional provision of Article 21, which assures the citizens of India the right to a healthy environment.

Conclusion:

In the interest of better justice delivery and maintaining the rule of law in the society and to preserve individual freedom, there should be some kind of judicial control over these tribunals.