Breaking: Law Commission recommends single nodal agency to monitor tribunals [Read report]

The Law Commission of India has released its 272^nd report on Assessment of Statutory frameworks of Tribunals in India.

The Commission has made a slew of recommendations in its report and has also made an interesting departure from its previous stance on certain important issues.

Some of the important conclusions made by the commission are as follows.

Appeal to High Courts

The Commission, in a marked departure from its earlier stance, has concluded that the power of judicial review to high courts is a basic feature of the Constitution and cannot be tinkered with. The Commission has also gone so far as to state that its earlier observations in the 215^th report has no foundation and is contrary to the law laid down by the Supreme Court in L Chandra Kumar’s case.

“The Law Commission of India persistently suggested that 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. In 215th Report (2008), the Commission made an unwarranted remark that the power of judicial review of High Court cannot be as inviolable as that of the Supreme Court. No reason or explanation as been given in support of such observation and no foundation has been laid for making such remark…Such observations are admittedly contrary to the law laid down by the seven Judge Bench in L.Chandra Kumar…

The Power of judicial review conferred on the High Courts is same as that of the Supreme Court which is a basic feature of the Constitution and tinkered with only by amending of the Constitution.”

On appointments to tribunals

“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.

Such persons must have the complete independence as required under the ‘principle of Independence of Judiciary’ which is a basic feature of the Constitution. It must be further noted that, since reappointment has a strong bearing on the independence of the institution, it should be kept out of the influence of the executive. Therefore, to ensure independence, reappointment must be the exception and not the rule.

On the other hand, in some other cases, the Supreme Court concluded that the Tribunals can neither be alternative nor substitutes of the High Courts. A person manning the Tribunal cannot claim parity or privileges at par with the High Court judges. However, a seven judge Bench in L Chandra Kumar (Supra) in crystal clear words held that the Tribunals are supplemental to High Courts and not their substitutes.

The selection of the members should be done in an impartial manner. Therefore, the selection committee must not be headed by a Secretary to the Government of India who is always a party to every litigation before the Tribunal. Re-appointment of Members except in case of Members appointed from the Bar is unwarranted as it compromises with the independence of judiciary. More so, the involvement of Government agencies in selection making process should be minimal for the reason that Government is litigant in every case.”

Qualifications for appointment

“The Commission while discussing the appointment criteria, 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 and it is thereby felt that a change in system is needed because lack of uniformity is causing a major concern in the effective working of present Tribunal system.

In Tribunals, the Technical Members should be appointed only and only when service/advice of an expert on technical or special aspect is required. The Tribunal should be manned by persons qualified in law, having judicial training and adequate experience with proven ability and integrity.”

Single Nodal Agency

“The Law Commission of India considers it appropriate that in order to ensure uniformity in all the affairs of the Tribunals, the Central Government may consider bestowing the function of monitoring the working of the Tribunals to a single nodal agency, under the aegis of the Ministry of Law and Justice.”

Recommendations

The Commission has made the following recommendations:

• In case of transfer of jurisdiction of a high court to a Tribunal, the members of the newly constituted Tribunal should possess the qualifications akin to the judges of the high court. Similarly, 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.
• There shall be uniformity in the appointment, tenure and service conditions for the Chairman, Vice-Chairman and Members appointed in the Tribunals. While making the appointments to the Tribunal, independence shall be maintained.
• There shall be constituted a Selection Board/Committee for the appointment of Chairman, Vice-Chairman and Judicial Members of the Tribunal, which shall be headed by the Chief Justice of India or a sitting judge of the Supreme Court 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.
• 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. 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). 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.
• While making the appointments to the Tribunal, it must be ensured that independence in working is maintained. The 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. 2.5 lakh, as revised from time to time.
• The terms and conditions of service, other allowances and benefits of a Member of a Tribunal shall be such as are admissible to a Central Government officer holding posts carrying the pay of Rs. 2.25 lakh, as revised from time to time.
• The terms and conditions of service, other allowances and benefits of Presiding Officer/Member of a Tribunal (to which the jurisdiction and functions exercised or performed by the District Judges are transferred) shall be such as are admissible to a Central Government officer drawing the corresponding pay of a District Judge.
• Vacancy arising in the Tribunal 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 of vacancy.
• The Chairman should hold office for a period of three years or till he attains the age of seventy years, whichever is earlier. Whereas Vice-Chairman and Members should hold the office for a period of three years or till they attain the age of sixty seven years whichever is earlier. It will be appropriate to have uniformity in the service conditions of the Chairman, Vice-Chairman and other Members of the Tribunals to ensure smooth working of the system.
• 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.
• The provisions of Section 3(o) of the Armed Forces Tribunal Act, 2007 excludes certain matters from the jurisdiction of the Armed Forces Tribunal (AFT) and the parties aggrieved in those matters can approach the high court under writ jurisdiction. The Act excludes the jurisdiction of the high court under Article 227(4) but not under Article 226. In matters, where AFT 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.
• 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. In the event of exclusion of jurisdiction of all courts, it is essential to provide for an equally effective alternative mechanism even at grass root level. This could be ensured by providing State- level sittings looking to the quantum of work of a particular Tribunal. Once that is done, the access to justice will stand ensured.

Read the full report below. 

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