The Law Commission submitted its 272nd Report on ‘Assessment of Statutory Frameworks of Tribunals in India’ after the Supreme Court in Gujrat Urja Vikas Nigam Ltd. v. Essar Power Ltd., (2016) 9 SCC 103 had asked it to consider changes required to be made with respect to statutory framework constituting various Tribunals and the procedure and terms and conditions for appointment of Chairperson and Members to such tribunals. Dr. B.S. Chauhan, Chairman of the Law Commission of India and the former SC Judge has conveyed that the Commission has tried to take into account the tribunal system of our country and foreign countries, reports of previous law commissions, committees to draw a detailed step by step procedure to improve the working of the tribunal system in the country.
Commission gave a detailed report starting from the evolution and meaning of Tribunals, stating that exigencies of the situation proclaiming the enforcement of new rights in the wake of escalating State activities and furtherance of the demands of justice led to the establishment of Tribunals also explaining how time and again, through various reports and committees, need to have independent administrative tribunals has been urged.
Commission took a global perspective of working of tribunals in many other countries like France, USA, Canada, England and Australia. It gave detailed background of the Tribunals in India in light of various judgments, legislations establishing Tribunals and Commissions and committees highlighting their importance and also has scrutinized the functioning of Tribunals. Commission specifically highlighted the problem of pendency of cases in some of the Tribunals suggesting a solution that Tribunals be monitored by a single nodal agency under the patronage of the Ministry of Law and Justice, in order to ensure uniformity in affairs.
The Commission stressed upon the issue of bypassing the jurisdiction of the High Court by virtue of Art. 136 of the Constitution that provides for Special Leave Petition to be used sparingly by the Apex Court. This practice, the Commission said directly hits the basic structure. It went on to observe that the SLPs are considered on certain fixed parameters laid down by the Supreme Court from time to time. Moreover, provision of approaching the Supreme Court directly and excluding the jurisdiction of High Court, tantamount to violation of the fundamental right of the citizens of access to justice.
The Commission drew following conclusions:
a. It observed that one of the compelling reasons for establishing the Tribunals had been pendency of large number of cases and delay in disposal of cases in the Courts and as a remedy to prevent any delay and deliver speedy justice, the Administrative Tribunals were established to work as an independent forum. However, the purpose is not served as it should be as the power of judicial review of the High Courts against a judgment of the Tribunal is not only time consuming, but also expensive and there is always a possibility of various High Courts interpreting the same statutory provision differently.
b. It highlighted that the Supreme Court in earlier judicial pronouncements had held that the Tribunals are substitutes of the High Courts. Therefore, the manner of appointment, eligibility, tenure and other protections and privileges of persons manning such Tribunals must be the same as that of the High Court judges. Also, such persons must have complete independence as required under the ‘principle of Independence of Judiciary’ which is a basic feature of the Constitution.
c. It further observed that reappointment has a strong bearing on the independence of this institution and thus, reappointment must be an exception and not the rule. Therefore, it said reappointment of members except the members appointed from the Bar is unwarranted as it compromises with the independence of judiciary and also, the involvement of government agencies is process of selection must be minimal for the reason of government being the litigant in every case.
d. The commission further took note of the fact that the present system does not have uniformity in the qualifications, tenure and service conditions of Chairman, Vice-Chairman and other members.
e. It further suggested that Technical Members should be appointed only and only when service/advice of an expert on technical or special aspect is required.
The recommendations made in the report are as follows:-
a. In case of transfer of jurisdiction of High Court to a Tribunal, the members of the newly constituted Tribunal should possess the qualifications akin to the judges of the High Court.
b. Further, in cases where the jurisdiction and the functions transferred were exercised or performed by District Judges, the Members appointed to the Tribunal should possess equivalent qualifications required for appointment as District Judges.
c. There shall be uniformity in the appointment, tenure and service conditions for the Chairman, Vice-Chairman and Members appointed in the Tribunals to maintain their independence.
d. There shall be constituted a Selection Board/Committee for the appointment of Chairman, Vice-Chairman and Judicial Members of the Tribunal to be headed by CJI or a sitting Supreme Court judge as his nominee and two nominees of the Central Government not below the rank of Secretary to the Government of India to be nominated by the Government
e. Further, for the selection of Administrative Member, Accountant Member, Technical Member, Expert Member or Revenue Member, there shall be a Selection Committee headed by the nominee of the Central Government, to be appointed in consultation with the Chief Justice of India.
f. The Chairman of the Tribunals should generally be the former judge of the Supreme Court or the former Chief Justice of a High Court and Judicial Members should be the former judges of the High Court or persons qualified to be appointed as a Judge of the High Court.
g. Administrative Members, if required, should be such persons who have held the post of Secretary to the Government of India or any other equivalent post under the Central Government or a State Government, carrying the scale of pay of a Secretary to the Government of India, for at least two years; OR held a post of Additional Secretary to the Government of India, or any other equivalent post under the Central or State Government, carrying the scale of pay of an Additional Secretary to the Government of India, at least for a period of three years.Expert Member/Technical Member/Accountant Member should be a person of ability, integrity and standing, and having special knowledge of and professional experience of not less than fifteen years, in the relevant domain. (can be increased according to the nature of the Tribunal).
h. The appointment of Technical/Expert members in addition to the judicial members be made only where the Tribunals are intended to serve an area which requires specialised knowledge or expertise or professional experience and the exercise of jurisdiction involves consideration of, and decisions into, technical or special aspects.
i. The Commission also specified that terms and conditions of service, other allowances and benefits of the Chairman shall be such as are admissible to a Central Government officer holding posts carrying the pay of Rs.2,50,000/-, as revised from time to time. Similarly, the same would apply to members of tribunal and for the Presiding Officer/Member of a Tribunal (to which the jurisdiction and functions exercised or performed by the District Judges are transferred).
j. With regard to vacancies arising in the tribunal, it has recommended that it should be filled up as early as possible by initiating the procedure well in time, as early as possible, preferably within six months prior to the occurrence.
k. Every order emanating from the Tribunal or its Appellate Forum, wherever it exists, attains finality. Any such order may be challenged by the party aggrieved before the Division Bench of the High Court having territorial jurisdiction over the Tribunal or its Appellate Forum.
l. In matters, where Armed Forces Tribunal has jurisdiction, parties must have a right to approach the High Court under Article 226 for the reason that a remedy under Article 136 is not by way of statutory appeal. The issue is pending for consideration before the larger Bench of the Supreme Court.
m. The Tribunals must have benches in different parts of the country so that people of every geographical area may have easy Access to Justice. Ideally, the benches of the Tribunals should be located at all places where the High Courts situate.
