{"id":56438,"date":"2020-03-02T19:00:00","date_gmt":"2020-03-02T13:30:00","guid":{"rendered":"https:\/\/blogadmin.forumias.com\/?p=56438"},"modified":"2020-03-02T17:09:58","modified_gmt":"2020-03-02T11:39:58","slug":"7-pm-whither-tribunal-independence-2nd-march-2020","status":"publish","type":"post","link":"https:\/\/forumias.com\/blog\/7-pm-whither-tribunal-independence-2nd-march-2020\/","title":{"rendered":"7 PM | Whither tribunal independence?| 2nd March 2020"},"content":{"rendered":"\n<p><strong>Context:\n<\/strong>Tribunal,\nAppellate Tribunal, and other Authorities (Qualifications, Experience and other\nConditions of Service of Members) Rules, 2020 notified after SC verdict in\nNovember 2019 and issues related to it.<\/p>\n\n\n\n<p><strong>More\nin news:<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>The\nSupreme Court in November 2019 passed a&nbsp;significant judgment on the\nfunctioning of Tribunals in the Country.&nbsp;<\/li><li>The\nMinistry of Finance in February 2020 has notified a new set of rules called the\nTribunal, Appellate Tribunal, and other Authorities (Qualifications, Experience\nand other Conditions of Service of Members) Rules, 2020.<\/li><\/ul>\n\n\n\n<p><strong>Tribunals\nin India:<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>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. <ul><li>Article 323-A\u00a0deals with Administrative Tribunals.<\/li><li>Article 323-B\u00a0deals with tribunals for other matters.<\/li><\/ul><\/li><li>Tribunal is a\u00a0quasi-judicial institution\u00a0that is set up to deal with problems such as resolving administrative or tax-related disputes. It performs a number of functions like\u00a0adjudicating disputes, determining rights between contesting parties, making an administrative decision, reviewing an existing administrative decision\u00a0and so forth.<\/li><li>The Administrative Tribunals Act, 1985 provides for three types of tribunals:<ul><li>The Central Government establishes an administrative tribunal called the\u00a0Central Administrative Tribunal (CAT).<\/li><li>The Central Government may, upon receipt of a request in this behalf from any\u00a0State Government,\u00a0establish an administrative tribunal for such State employees.<\/li><li>Two or more States might ask for a joint tribunal, which is called the\u00a0Joint Administrative Tribunal (JAT),\u00a0which exercises powers of the administrative tribunals for such States.<\/li><\/ul><\/li><li>There are tribunals for settling various administrative and tax-related disputes, including\u00a0Central Administrative Tribunal (CAT), Income Tax Appellate Tribunal (ITAT), Customs, Excise and Service Tax Appellate Tribunal (CESTAT), National Green Tribunal (NGT), Competition Appellate Tribunal (COMPAT)\u00a0and\u00a0Securities Appellate Tribunal (SAT),\u00a0among others.<\/li><\/ul>\n\n\n\n<p><strong>Issue\nin Focus:<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>The\nFinance Act, 2017&nbsp;had given the Centre the power to govern appointments,\nremoval and service conditions of the members of judicial tribunals like\nNational Green Tribunal, Income Tax Appellate Tribunal, National Company Law\nAppellate Tribunal. Pursuant to such powers, the Central Government went on to\nframe the Rules, which gave the Government overly broad powers as regards the\nappointment and service conditions of tribunal members. <\/li><li>The\npetitioners had challenged&nbsp;the Finance Act, 2017,&nbsp;particularly&nbsp;Part\nXIV on various grounds.&nbsp;The Part XIV had repealed provisions relating to\nthe administration of 26 Tribunals established under diverse central laws. Part XIV of the\nAct merges a number of tribunals, including the Copyright Board with the\nIntellectual Property Appellate Board (IPAB).<\/li><li>The\nprovisions were questioned on the ground that they gave more powers to the\nexecutive and interfered with the judicial independence of the panels.<\/li><\/ul>\n\n\n\n<p><strong>Supreme\nCourt Judgments:<\/strong><\/p>\n\n\n\n<p><strong>Rojer\nMathew v. South Indian Bank Ltd. &amp; Ors., 2019:<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>The Supreme Court in\u00a0Rojer Mathew v. South Indian Bank Ltd. &amp; Ors., 2019 struck down the\u00a0Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017\u00a0framed under Section 184 of the\u00a0Finance Act, 2017\u00a0on the grounds that they impinge on judicial independence and are contrary to the guidelines laid down in cases like\u00a0RK Jain\u00a0and\u00a0Madras Bar Association.<\/li><li>The Rules notified in 2017 have now been struck down by the Supreme Court and the Government has been directed to frame a fresh set of Rules.<\/li><li>Some of the defects identified by the court in the rules (2017) include: <ul><li>Search-cum-selection committee for tribunal personnel was composed predominantly of nominees of the Central Government. Such a lack of judicial dominance is in violation of separation of powers and in negation of judicial independence; <\/li><li>technical members have not been mandated any prior adjudicatory experience, this goes against the dicta of the Court in Madras Bar Association judgment <\/li><li>the role of judiciary in the procedure for removal of tribunal members has been completely taken away; <\/li><li>lack of uniform age of superannuation for different tribunal members and short tenure, paved way for increased executive interference; <\/li><li>Re-appointment of tribunal members will erode independence of the tribunal members and thus erode public faith in the system.<\/li><\/ul><\/li><\/ul>\n\n\n\n<p><strong>Madras\nBar Association v. Union of India (2010):<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>Constitution\nBench in&nbsp;Madras Bar Association v. Union of India (2010) had held that\nthough the legislature can legislate which disputes will be decided by\ncourts&nbsp;and which disputes will be decided by tribunals, this&nbsp;is\nsubject to constitutional limitations. The Bench held that such legislation\ncannot&nbsp;encroach&nbsp;upon the independence of the judiciary and must\nrespect&nbsp;the principles of the rule of law and the&nbsp;separation of\npowers. It held that if tribunals are to be vested with judicial power hitherto\nvested in or exercised by courts, such tribunals should possess the independence,\nsecurity and capacity associated with courts.<\/li><li>In&nbsp;Madras\nBar Association (2010), the Bench made observation on when tribunals can\ninclude technical non-judicial members.&nbsp;It stated that if a\ntribunal&nbsp;is intended to serve an area which requires specialised knowledge\nor expertise,&nbsp;technical members in addition to judicial members should be\nallowed. However, it emphasised that when a category of cases is transferred\nfrom the courts to the tribunals merely to either expedite cases,&nbsp;then\nthere is no need for non-judicial technical member. It emphasised that\nin&nbsp;such non-technical&nbsp;tribunals, only members of the judiciary should\nbe the Presiding Officers\/Members.&nbsp;<\/li><\/ul>\n\n\n\n<p><strong>2020\nRules framed against SC Judgements:<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>In the\n2017 rules, as noted by the Court in&nbsp;Rojer Mathew, barring the National\nCompany Law Appellate Tribunal (NCLAT), the selection committee for all other\ntribunals was made up either entirely from personnel within or nominated by the\nCentral government or comprised a majority of personnel from the Central\ngovernment.&nbsp;Now, in the 2020 rules, by default, all committees consist of\na judge, the president\/chairman\/chairperson of the tribunal concerned and two\nsecretaries to the Government of India.<\/li><li>Under\nthe 2020 rules, the inclusion of the president\/chairman\/chairperson of the\ntribunal as a member in the selection committee&nbsp;is directly against the\nprevious SC Judgements. For instance, now, in the Income Tax Appellate Tribunal\n(ITAT), Customs Excise and Service Tax Appellate Tribunal (CESTAT), Central\nAdministrative Tribunal (CAT), Debt Recovery Appellate Tribunal (DRAT), etc., a\nnon-judicial member can become the president\/chairman\/chairperson, as the case\nmay be. Therefore, when a non-judicial member becomes a member in the selection\ncommittee, the Supreme Court judge will be in minority, giving primacy to the\nexecutive, which is impermissible. In&nbsp;Madras Bar Association&nbsp;(2010),\nthe Court explicitly held that only judges and advocates can be considered for\nappointment as judicial member of the tribunal and that persons from the Indian\nLegal Service cannot be considered for appointment as judicial member.&nbsp;<\/li><li>In the\n2020 rules, the tenure of members has been increased from three years to four\nyears, thereby blatantly violating the directions of the Supreme Court. In&nbsp;Madras\nBar Association&nbsp;(2010), the Court had held that the term of office \u201cshall\nbe changed to a term of seven or five years\u201d.<\/li><\/ul>\n\n\n\n<p><strong>Way\nForward:<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\"><li>The common thread in the\u00a0Madras Bar Association\u00a0series and\u00a0Rojer Mathew\u00a0decisions is that judiciary must have an equal say in the appointment of members of the tribunals.\u00a0To deny the executive an upper hand in appointing members to tribunals, the court ordered to have two judges of the Supreme Court to be a part of the four-member selection committee.<\/li><li>Streamlining of functioning of tribunals:<ul><li>Tribunals should be financially independent for its functioning; thus, finance ministry in consultation with the nodal ministry to directly allocate adequate funds for their day to day functioning <\/li><li>Financial Impact Assessment to be conducted \u2013 this will assess the financial needs of the tribunals and Finance Ministry will have to ensure sufficient resources are made available for the functioning<\/li><li>Tribunal members shall not be accorded a status equivalent to that of HC\/SC judge<\/li><li>Legislature should consult Law Commission and revisit the provisions for direct statutory appeals to the Supreme Court from tribunals. Instead of appeal to SC, provisions may be provided for an appeal to a Division Bench of High Court, if at all required. <\/li><li>After assessing case loads and commonality of subject matter jurisdiction, Union to consider whether certain tribunals, having niche jurisdictions, require merging <\/li><\/ul><\/li><li><strong>Justice Chandrachud suggested the following: <\/strong><\/li><\/ul>\n\n\n\n<p>Creation\nof a National Tribunals Commission (NTC) to oversee, selection, appointment,\nsalaries and service conditions of tribunal members. NTC will consist of 3\nserving judges of Supreme Court nominated by the CJI, 2 serving Chief\nJustices\/Judges of High Courts, 2 officers not below the level of Secretary to\nGovernmentt and 2 independent members.<strong>Source:<\/strong><a href=\"https:\/\/www.thehindu.com\/opinion\/lead\/whither-tribunal-independence\/article30957940.ece\">https:\/\/www.thehindu.com\/opinion\/lead\/whither-tribunal-independence\/article30957940.ece<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Context: Tribunal, Appellate Tribunal, and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 notified after SC verdict in November 2019 and issues related to it. More in news: The Supreme Court in November 2019 passed a&nbsp;significant judgment on the functioning of Tribunals in the Country.&nbsp; The Ministry of Finance in&hellip; <a class=\"more-link\" href=\"https:\/\/forumias.com\/blog\/7-pm-whither-tribunal-independence-2nd-march-2020\/\">Continue reading <span class=\"screen-reader-text\">7 PM | Whither tribunal independence?| 2nd March 2020<\/span><\/a><\/p>\n","protected":false},"author":61,"featured_media":49370,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"footnotes":""},"categories":[130,9],"tags":[],"class_list":["post-56438","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-7-pm","category-public","entry"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/forumias.com\/blog\/wp-content\/uploads\/2019\/07\/7-PM.png?fit=1000%2C500&ssl=1","views":{"total":719,"cached_at":""},"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts\/56438","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/users\/61"}],"replies":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/comments?post=56438"}],"version-history":[{"count":0,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts\/56438\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/media\/49370"}],"wp:attachment":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/media?parent=56438"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/categories?post=56438"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/tags?post=56438"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}