The article reflects the relationship between the Indian judiciary system and the requirement for tribunals. The power of ordinance promulgation is the power of the President under Article 123(1) of the Indian Constitution. Tribunals have always remained a topic of discussion and scrutiny. The article reads about the need and features of the ordinance. Like two sides of the coin, this new ordinance has also its positives and negatives analysis of this ordinance. This article will try to critically examine the proposed bill with an aim to provide a better and efficient justice system.
Table of Contents
What are Tribunals?
Tribunal is a quasi-judicial institution that deals and empowers with the authority to or adjudicates on powers of the judicial body.[1] The Tribunal is an apparently judicial institution aimed at settling issues with concern to administration or tax subjects. It is a set of people or an institution of people distinctly selected by the people in analyzing the legal problems of specific types.
It is a special court designed by the Central Government in redressing the administrative legal problems. Some of the examples of tribunals are NGT (National Green Tribunal) for environmental disputes, CAT (Central Administrative Tribunal) for administrative matters.
Need of Tribunals.[2]
With the development of time, cases and pendency of cases in the general courts and High Courts rose at significant rates affecting the rate of pronouncing justice. Apart from these rising issues, the court procedure was tedious and cumbersome, expensive with the ritualistic approach whereas on the other side tribunals consumed less time, easy process and pocket – friendly and better propagation of justice. This also provided constructive structure to the Indian Judicial system.
On the recommendations of the Swaran Singh Committee, Part XIV-A titled ‘Tribunals’ was added to the Constitution by the 42nd Amendment Act, 1976 which led to the formation of Administrative tribunals under Art. 323A that deals with administrative tribunals and Art. 323B that deals with tribunals with other subjects.
In the case of S.P. Sampath Kumar v. Union of India[3], Hon’ble Supreme Court held that tribunals are not means to an end, although they are cost-effective, easy process, and less formalistic but still lack uniformity of decisions, predictability of decisions. The objective of framing tribunal was to retain the judicial character and gain public trust and confidence
In the case of Associated Cement Co. Ltd. v. PN Sharma[4], it was held that tribunals proceed on the no – evidence rule, where there is no stated procedure or guideline to be followed whereas courts are bound to follow. Tribunals have the convenience of pronouncing judgment based on natural principles and circumstances of the case matter.
The Administrative Tribunals were regarded as a systematic proxy for the High Courts as per
the 218th Report of the Law Commission, 2008. The Tribunals were considered to be
appropriate forums to provide justice in an efficient and fair manner. The report verified the
conceive of the Tribunals as an alternative mechanism for the resolution of the cases.
About the Ordinance – The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021[5]
Recently on 13th February, 2021, a bill with similar provisions was introduced in Lok Sabha by Anurag Singh Thakur, Finance Minister of State. The bill stated to dissolve the tribunals and transfer their functions to other existing judicial bodies. These are the tribunals where the general public was not as a litigant.
The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 provides the to abolish certain adjudicatory tribunal authorities and provide the facility directly to the commercial court or High Courts as with the subject of the case. The promulgated ordinances replace nine appellate adjudicatory bodies with High Courts.
Later, on 4th April, 2021, the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, was promulgated by the President under the power of Article 123(1) of the Constitution of India to issue an ordinance.
9 Appellate authorities amended for the transfer of functions to High courts are:[6]
- The Cinematograph Act, 1952
- The Trade Marks Act, 1999
- The Copyright Act, 1957
- The Customs Act, 1962
- The Patents Act, 1970
- The Airports Authority of India Act, 1994
- The Control of National Highways (Land and Traffic) Act, 2002
- The Geographical Indications of Goods (Registration and Protection) Act, 1999
- The Plant Varieties and Farmers Rights Act, 2001
The Ordinance includes National Consumer Disputes Redressal Commission established under the Consumer Protection Act, 2019 within the ambit of the Finance Act, 2017.[7]
The Ordinance also repeals four bodies from the ambit of the Finance Act, 2017, that are listed as:
- Appellate Tribunal Authority under The Airport Authority of India Act(AAI).
- The Appellate board under the TradeMark Act, 1999
- The Appellate Authority of Advance Ruling Board constituted under the Income Tax Act, 1961
- The Film Certification Appellate Authority under the Cinematograph Act,1962
Amendments
The Ordinance promulgated has amended the Finance Act, 2017, which empowered the government to publish rules on:
- Necessary qualifications of members of tribunals,
- Terms and conditions of their service, and
- Composition of search-cum- committees for 19 tribunals
The Ordinance also amended and included provisions regarding composition and combination of search-cum-committees, and terms of tribunal members.
Section 12 of Clause (1) regards the Amendment of Act 7 of the Finance Act.
Subsection (2) reads about the appointment of the chairperson and members of the tribunal by the Central Government in accordance with the recommendation of the Search-cum-Selection Committee (referred in subsection (3)).
The Search-cum-Selection Committee shall be consist of is enumerated in Subsection (3)
- Chairperson – Chief Justice of India (CJI) or Judge of Supreme Court nominated by CJI by right of the casting of votes.
- Two secretaries were appointed by the Central Government.
- A sitting of retired judges of the Supreme Court or a retired judge of a High Court.
- Secretary of ministry under which the Tribunal is constituted, with no voting rights.
Term[8]
- The Ordinance states the term of the office of chairperson as 4 years or till the age of seventy years of age, whichever is earlier, and the term of the office for members of the tribunal is 4 years or sixty-seven years of age, whichever is earlier.
Reforms[9]
Several reforms were made under the new Ordinance which made evident changes in existing appellate functions to judicial powers and authorities:
- In the Cinematograph Act 1952, the ordinance transfers the appellate and adjudicatory power of the tribunal to Judicial courts as per the subject of the case under the ambit of Section 5C. The Ordinance omitted the ‘Tribunals ‘ under Sections 7A and 7C with ‘High Courts.’
Section 2(h) which records the meaning of the Tribunal has been omitted. Moreover, clauses (h), (i), (j), and (k) of sub-section 2 of section 8 which read the power to make rules have also been repealed.
- In the Copyright Act 1957, the new Ordinance omitted Section 2(aa) which defined Appellate Board. Clause(fa) is changed to Clause (faa), where ‘Commercial Courts’ are defined for State. Section 3 which constitutes Commercial Courts and Section 4 of the Commercial Courts Act, 2015, recorded the Commercial Division of a High Court was constituted. This Ordinance transfers the power of the Appellate Board of Commercial Courts to that of the Commercial Division of a High Court.
The disputes decided by the ‘Appellate Board’ were replaced by ‘Commercial Courts ‘ under Section 6. Sections 11 and 12 related to the reference of Appellate Authority were repealed. The new Ordinance has replaced the ‘Appellate Authority’ to ‘Commercial Courts’ in the sections related to 19A, 23, 31, 31A, 31B, 31C, 31D, 32, 32A, and 33A.
Under Section 50 which is related to rectification of registrar, where the ‘Appellate Authority’ was substituted with ‘High Court’, the Ordinance empowers to directly appeal to the High Courts, such appeal will be judged by a single judge.
- In the Patent Act, 1970, the Ordinance annuls Section 2(1)(a) and (u)(B) where the reference of ‘Appellate Authority’ was mentioned. Section 52 omitted the ‘Appellate Board’, section stresses on the point of transferring power to ‘High Courts’ from ‘Appellate Board’. In the Sections 58, 59, 64, 71, 76, 113, 117A, 117E, 151. In Sections 116, 117, 117B, 117C, 117D, 117F, 117G, and 117H, ‘Appellate Board ‘ is substituted or annulled with ‘High Courts.’
- In the Trademark Act, 1999, several sections 2(1) (a), (d), (f), (k), (n), (ze), and (zf) will be repealed as all were associated with the functioning and working of the Appellate Board. In the following sections 10, 26, 46, 47, 55, 57, 71, 91, 94, 97, 98, 113, 124, 125, 130, 141, 144, 157, ‘Tribunals’ was substituted with ‘ Registrar or the High Court, according to the case matter’ and the ‘Appellate Board’ was replaced by ‘High Courts.’ It repeals all sections of Chapter “Appeals” except some sections like sections 91, 94, 97, 98.
- In the Geographical Indication of Goods Act, 1999, the new Ordinance transfers powers and functions of the ‘Appellate Board’ to ‘High Courts’, according to the case. This substitution is made in these sections 19, 23, 27, 31, 34, 35, 48, 57, 58, 72, 75. Sections related to the reference of the Appellate board will be annulled i.e. sections 2(1)(a) and (p), 32, 33, 48.
- In the Protection of Plant Varieties and Farmers’ Rights Act, 2001, Sections related to the reference of ‘Appellate authority’ are repealed i.e. Section 2(d), (n), (o), (y), (z).
In sections 56, 44, 57, ‘Appellate authority’ was replaced to ‘High Court.’ In some sections- sections 54, 55, 58, 59, where the reference of ‘Tribunal’, its composition and procedure is given are also annulled.
- In Acts like the Control of National Highways (Land and Traffic) Act, 2002, the Customs Act, 1962, and the Airport Authority of India Act, 1994, power was transferred from various ‘Appellate authority ‘to ‘Judicial Powers’. The Ordinance transfers the powers of the National Highways (Land and Traffic) Act, 2002, to the Civil Court. In the Customs Act, 1962, the Appellate Authority has been substituted with the “High Court”. In the Airport Authority of India Act, 1994, the “Tribunal” is replaced with “Central Government”.
https://legalreadings.com/critical-analysis-on-new-education-policy-2020/
Positive Aspects of Ordinance.
- The Appellate Authority was ineffective than it formerly expected. In the case of Oracle v. Google, the US Supreme Court stated that it is essential for judges to perform tedious research to understand technological complications. The Tribunals are bound by principles of Natural Justice and no other procedure and legal complications and there are problems associated with it, adjudicatory bodies have no check on the legality of the judgment, which becomes a question for public confidence.
- Another constraint of adjudication of judicial powers is that it does not provide scope for review and appeal. In other words, there are limited appeals and scope of reviewing the judgment of tribunals. By transferring powers from Tribunals to judicial powers will lead to the better pronouncement of justice.
- The IPAB was formed under the appeals from Registrar of the Patents Act, 1970, the Trade Marks Act, 1999, the Geographical Indication of Goods Act, 1999 & the Copyright Act, 1957 were formed to develop technological developments and lessening the burden of courts but the results turned out to be opposite of expectations as IPAB was inefficient is propagating justice and cutting of the workload of High courts as in September 2020, it calculated that more than around 5 lakh cases are still pending in High courts[10].
Critical Analysis[11]
The procedure for rationalizations of tribunals by the Government of India was started in 2015. The Government of India proposed amendments that were formulated to streamline tribunalization. It suggested reducing the burden on the public exchequer by dissolving the tribunals and their related authorities. According to statistics, the tribunals have been inefficient in propagating justice.
In the case of R.K., Jain v. Union of India Supreme Court emphasized the fact that tribunals play a crucial role in both central Authority, as well as state, pronouncing justice who have financially and geographically restrained. The proposal to dissolve down the appellate tribunals can be called an additional layer of litigation which will ultimately lead to piling of cases and an increase in the burden on judicial authorities.
Adjudication of power has always been the topic of power and this ordinance has brought up the topic for debate from all-around people in Specialization of the subject is a vital element and Tribunals denote and are accessible to specialization on the subject.
Administrative tribunals play ‘hybrid roles and functions ’ in modern society; all issues cannot be solved with legal technicalities; it also requires acknowledging the public interests.
In the case of Madras Bar Association v. Union of India, (2015), the Supreme court rejected the argument which stated that it is a breach of the basic structure of the Constitution if Tribunals are permitted to adjudicate judiciary power which was earlier performed by Courts. The courts further said that expertise and expediency are needed in an hour and Tribunals are entailed with members with specialization and proper qualification. On 23rd April, 2021, Madras Bar Association moved a petition which was considered by a three-judges bench of the Supreme Court composed of Justices L. Nageswara Rao, Hemant Gupta, and S. Ravindra Bhat. It challenged the Ordinance by referring to it as legislative overruling. By reducing the tenure of the above-listed chairpersons to a maximum of four years, the government has superseded the rules laid down by the Apex Court stating that the minimum term of tenure must be five years.
The question lies here is that the abolishment of tribunals will hamper the efficiency of the justice delivery system. High courts and commercial courts lack expertise and specialization, this could lead to piling of the plethora of cases. In short, this will hamper the objective and aim of the Indian Justice system.
Transferring of cases from tribunals to High courts and commercial courts will have administrative and procedural implications. The Law Commission’s 245th Report (2014) suggested that the efficient and specialized judges need an hour to promote the disposal rate. Looking at the contemporary scenario, the dissolution of tribunals might not be a wise idea.
There is a need for a young, high-spirited, and positive legal personality to be recruited in Tribunals.
Conclusion.
Lex dilationes abhorrent which means unnecessary delays in the administration of justice dilute the quality of that. The fundamental objective of the legal justice system is to provide timely justice. Like every coin has two sides similarly the Ordinance has its positive aspects such as consolidation of the Tribunals and the reduction in the litigant’s exchequer along with the Law delivered under a single jurisdiction of the Court of Law as well as loopholes such as the overruling nature of the Supreme Court directives and the abolition of segregated justice providing forums. The aim of this bill is to follow the Supreme Court’s decision in the case of L. Chandra Kumar. It is no longer necessary to maintain the power to punish for contempt with tribunals as they are now subject to the jurisdiction of High Courts.
REFERENCES
[1] Guleria, A., TRIBUNALIZATION IN INDIA: A CONSTITUTIONAL STUDY OF ADMINISTRATIVE TRIBUNALS. ENLIGHTENED VOICE, p.62.
[2] Kumar, R., 2021. Analysis of The Tribunals Reforms (Rationalisation and Conditions Of Service) Ordinance, 2021, available at: http://www.legalserviceindia.com/legal/article-5411-analysis-of-the-tribunals-reforms-rationalisation-and-conditions-of-service-ordinance-2021.html [Last visited in June 2021].
[3] 1987 SCR (1) 435.
[4] 1965 SCR (2) 366.
[5] PRS Legislative Research. 2021. The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, available at: https://prsindia.org/billtrack/the-tribunals-reforms-rationalisation-and-conditions-of-service-ordinance-2021 [Last visited in June 2021].
[6] Latest Laws. 2021. Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 explained, available at: https://www.latestlaws.com/did-you-know/tribunals-reforms-ordinance-2021-explained/ [Last visited in June 2021].
[7] Ibid.
[8] Mondaq.com. 2021. The Finance Act, 2017 – Implications & Constitutionality? – Government, Public Sector – India, available at: https://www.mondaq.com/india/fiscal-monetary-policy/589176/the-finance-act-2017–implications-constitutionality [Last visited on 9 June, 2021].
[9] Khuranaandkhurana.com. 2021. President promulgate the Tribunals Reforms Ordinance, 2021, available at: https://www.khuranaandkhurana.com/2021/04/06/central-government-promulgates-the-tribunal-reforms-rationalisation-and-conditions-of-service-ordinance-2021/ [Last visited on 9 June, 2021].
[10] ALG India Law Offices LLP. 2021. Review: The Tribunal Reforms (Rationalization and Conditions of Service) Bill, 2021 – ALG India Law Offices LLP, available at: https://www.algindia.com/review-the-tribunal-reforms-rationalization-and-conditions-of-service-bill-2021/ [Last visited in June 2021].
[11] Kumar, R., 2021. Analysis of The Tribunals Reforms (Rationalisation And Conditions Of Service) Ordinance, 2021, available at: http://www.legalserviceindia.com/legal/article-5411-analysis-of-the-tribunals-reforms-rationalisation-and-conditions-of-service-ordinance-2021.html [Last visited in June 2021].
BY LAVANYA LAKHOTIA | RNB GLOBAL UNIVERSITY