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There are some vexed issues otherwise having the propensity to grow into an unwieldy ogre, but which can be tamed by one simple uncomplicated step leading to perpetual harmony.
I am talking of the introduction of a single agency to administer the multiple tribunals in the country, which is anyway mandated by Constitution Bench decisions of the Supreme Court.
In the year 1997, the celebrated seven-judge Bench in L Chandra Kumar v. Union of India underlined the need for creation of a “wholly independent agency” to administer tribunals. It also observed that till that was done, a single nodal Ministry must oversee the functioning of tribunals and that the said Ministry should be the Ministry of Law & Justice. In line with these observations, the then Law Minister mooted the idea of the Central Tribunals Division under the Law Ministry and stated the following in Parliament in 2001:
“In pursuance of the above (the judgment in L Chandra Kumar), the proposal to set up a ‘Central Tribunals Division’ in the Department of Legal Affairs, is under consideration. Setting up of the Central Tribunals Division will bring about uniformity in the administration of the Tribunals.”
Had the above been undertaken as per the directions of the Supreme Court and wishes of the then political executive, we would not have seen the multiple rounds of litigation on tribunalisation, rounds that are continuing till date due to an unexplained obduracy.
Thirteen years after L Chandra Kumar, yet another Constitution Bench in Union of India v. R Gandhi directed that to offset any conflict of interest, tribunals must not function under the aegis of any parent administrative Ministry against which they have to pass orders, and all such tribunals must be placed under the Ministry of Law & Justice. The following were the exact observations:
“…But in India, unfortunately Tribunals have not achieved full independence. The Secretary of the concerned `sponsoring department' sits in the Selection Committee for appointment. When the Tribunals are formed, they are mostly dependant on their sponsoring department for funding, infrastructure and even space for functioning…
…(xii) The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department…”
It bears remembrance that the Income Tax Appellate Tribunal, created by the Crown prior to independence, and one of the most successful tribunals in India, functions under the Law Ministry and not the Finance Ministry against which it is to pass orders. A simple yet solid arrangement, not only ordained by law, but also dictated by common sense.
In Navdeep Singh v. Union of India, decided by the Punjab & Haryana High Court on November 20, 2012, the Ministry of Law & Justice candidly and appreciably submitted that while it was in favour of creating the Central Tribunals Division, the other ministries under which tribunals were functioning were opposed to the idea. The High Court, of course, would have none of it and ordered the implementation of law as laid down by the Constitution Bench decisions in L Chandra Kumar and R Gandhi. It is yet another matter that the decision has not yet been implemented even though the Supreme Court had not granted a stay on the judgment and had only stayed the contempt proceedings in the SLP filed by the Union of India.
Again in Madras Bar Association v. Union of India, a Constitution Bench, while striking down the creation of the National Tax Tribunal in its entirety, observed that the Secretary against whom orders were to be passed by the tribunal, must not be a part of the Selection Committee for members of the tribunal. This despite the fact that the said tribunal, as envisaged, was to function under the Law Ministry and not the Finance Ministry. The following were the observations:
“...In this behalf, it would also be pertinent to mention, that the interests of the Central Government would be represented on one side, in every litigation before the NTT. It is not possible to accept a party to a litigation, can participate in the selection process, whereby the Chairperson and Members of the adjudicatory body are selected. This would also be violative of the recognized constitutional convention recorded by Lord Diplock in Hinds case (supra), namely, that it would make a mockery of the constitution, if the legislature could transfer the jurisdiction previously exercisable by holders of judicial offices, to holders of a new court/tribunal (to which some different name was attached) and to provide that persons holding the new judicial offices, should not be appointed in the manner and on the terms prescribed for appointment of Members of the judicature...”
Recently, in Swiss Ribbons Pvt Ltd v. Union of India, the Supreme Court again brushed aside the objections of the Central government on placing tribunals under the Law Ministry, and asked for the implementation of the directions of the Constitution Bench in R Gandhi. The government had stated that the Rules of Business precluded it from doing so. But the interesting part remains that the Constitutional Allocation of Business Rules rather place ‘administration of justice’ under the Department of Justice of the Ministry of Law & Justice and not under other ministries which have nothing to do with the subject of justice by a million miles.
In fact, in totality, the idea of having a single independent nodal agency to administer tribunals has been directed and endorsed by the following:
(a) Constitution Bench decisions in L Chandra Kumar and R Gandhi and recently reiterated in Swiss Ribbons
(b) The two detailed post-scripts in Rojer Mathew by Justice DY Chandrachud and Justice Deepak Gupta
(d) The Law Minister of India in the Parliament in 2001 and also the Ministry of Law & Justice which supported the creation of a ‘Central Tribunals Division’
(e) The report by Mr Arvind P Datar, Senior Advocate, the Amicus in the matter, as reproduced in Rojer Mathew v. South Indian Bank Limited.
The subject has resulted in multiple litigation reaching the gates of the highest Court of the land time and again, when this miasma was really avoidable. Rules introduced by the Central government for tribunals in 2017 were struck down in Rojer Mathew and the new Rules of 2020, virtually an old wine in a not-so-new bottle, are again under challenge. I had written about the problem areas in the new Rules of 2020 in this co-authored opinion piece.
So what can be done?
The simple solution to the quandary is that the personalities concerned who are dealing with the subject must let go of their prestige and rather follow the idea of the then Law Minister stated in the Parliament and as pushed by the Law Ministry till recent times, which is anyway the word of law as explained above. The opinion of the highest political executive and the law laid down by the Supreme Court must not be held ransom to rigidity at lower levels of governance.
The introduction of a new overall agency under the Ministry of Law & Justice, called by whichever nomenclature - Central Tribunals Division, National Tribunals Commission or National Tribunals Agency - can simply take over the administration of all tribunals without even the requirement of any statutory change or new legislation since almost all parent enactments and the new Rules of 2020 speak of the “Central Government” without naming the Ministry.
‘Administration of Justice’ being under the Law Ministry as per the Rules of Business, the said Ministry anyway is the only legally suitable Ministry to handle tribunals. Rather than being an encumbrance on the system as professed, a nodal agency would ease the overall burden of the government since all ministries are maintaining separate divisions for handling tribunals. All such functions would cease and get transferred to the new umbrella agency or division under the Law Ministry, thereby ending the conflict of interest forever, and putting the litigants at ease about the independence of quasi-judicial bodies. This is the simple uncomplicated step I had alluded to at the opening.
Once that is done, the new Rules of 2020 can be tweaked to bring them in line with pronouncements on tribunalisation. For example, a common or standing Search-cum-Selection Committee can be introduced for all tribunals. This Committee can have fixed members or have members on rotation, the total number being odd and with representatives of the judiciary being numerically higher than the executive and the Secretary of the Department against which a particular tribunal has to pass orders not being a part of the Selection Committee (Para 131 of Madras Bar Association).
The tenure under the new Rules could be tweaked in such a manner that each member who is a former judge gets a minimum of 5 to 7 years [Para 120(ix) of R Gandhi] while each Judicial Member who is a lawyer gets more in order to attract better talent.
Other parts of the rules which are in contravention of law already laid down by the Supreme Court, such as the qualification criterion [Paras 108, 120(i) & 120(iv) of R Gandhi], provision of non-judicial members becoming Chairpersons, the complaints procedure etc can also be suitably modified to bring them in line with the concept of separation of powers.
The above is not a heavy or thorny task since the Rules are not legislative but executive in nature, with powers conferred by the statute and amendable by the Central government.
However, more than the will to follow the law already laid down for ensuring independence in tune with the concept of separation of powers which has already been appreciably accepted by the political executive in principle, what is required is avoidance of making this an adversarial point of prestige by the agencies involved by unnecessary hardening of stands.
We must let go.
After all, interest reipublicase ut sit finis litium.
The author is a practicing lawyer at the Punjab & Haryana High Court and Member of the International Society of Military Law and the Law of War. He is also the author of “Military Pensions: Commentary, Case Law & Provisions”