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Vidhi Centre recommends reforms for India’s ailing tribunals [Read Report]
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Vidhi Centre recommends reforms for India’s ailing tribunals [Read Report]

Meera Emmanuel

Lack of independence, absence of uniformity in administration, high case pendency and vacancies constitute the major issues plaguing the working of tribunals in India, as per a report by the Vidhi Centre for Legal Policy.

Titled Reforming the Tribunals Framework in India: An Interim Report, the report attempts to trace the origins of tribunals, critically analyse precedent and reports, and provide an exhaustive assessment of problems in India’s tribunals framework.

It can be noted that this report does not take into account the changes introduced by the Finance Act, 2017 since it is currently under challenge. Rather, the parent statutes, rules and regulations of all central tribunals prior to the enactment of the Finance Act have been analysed.

In total, 37 central tribunals have been studied to identify the following problem areas.

I. Lack of independence

The broad concern is that the functioning of tribunals in India is not free from Executive control. Tribunals, which are expected to be unbiased and independent, depend on various Executive departments for funding and administration. Given this concern, the report recommends,

In order to ensure independence, the say of the executive needs to be reduced. Otherwise members may become biased in order to ensure reappointment and would be less inclined to take bold decisions.

Unfortunately, in their current shape, tribunals in India are vulnerable to Executive bias, as can be gauged from the following parameters:

Appointment, Removal and reappointment of members: The report found that the selection committees tasked with appointing members are not independent. A contributing factor is the dominance of  Executive members in selection committees. Further, the removal procedure rests with the Executive. Both factors could serve as gateways for Executive interests to govern the way these bodies function.

Notably, in 18 of the 37 tribunals that actually have selection committees, 13 committees were found to have more Executive than judicial members.

Vidhi Centre recommends reforms for India’s ailing tribunals [Read Report]

As regards removal of members, ideally there should be uniformity in the grounds for removal as well as the procedure to be followed. However, the report found that only 10 out of the analysed 37 tribunals have mandatory inquiry requirements prior to removal of members.

Vidhi Centre recommends reforms for India’s ailing tribunals [Read Report]

With respect to reappointment of members, the report notes that only 5 of the analysed 37 tribunals expressly bars the same. Of the remaining bodies, there are no provisions regarding reappointment with respect to 15 of them. On this aspect, the report notes that this creates a situation of ambiguity, where reappointment of members is potentially possible. 

Vidhi Centre recommends reforms for India’s ailing tribunals [Read Report]

Nodal Ministries: Referring to the fact that currently, multiple executive ministries oversee tribunals in India, the report notes,

Tribunals are entirely dependent on their nodal ministries for their day to day functioning. These ministries can compromise the functioning of the tribunal by providing inadequate resources with the aim of arm-twisting the tribunal into passing favourable orders or not able to function at all.

Lending credence to such apprehensions is a quoted report, which found that since 2017, the lack of adequate judicial and expert members in the principal and zonal benches of the NGT has either resulted in those benches being shut down, or has rendered them incapable of passing decisions.

The report has also raised concerns that the proclivity to appoint retired judges and bureaucrats as members of tribunals would affect the impartiality and the institutional integrity of these bodies.

II. Administrative Concerns

The prominent concern raised in this area is the lack of uniformity in regulations across tribunals. In this regard, the following have been noted:

  • Different qualification requirements lead to varying competencies, maturity and status of members.
  • The short tenures prescribed for some tribunals precludes the cultivation of domain expertise, which can impact the efficacy of tribunals. Discrepancies in the prescribed age of retirement also lead to uneven tenures, in turn hampering institutional continuity.
  • Multiple Nodal Ministries for various tribunals also add to these administrative concerns.

III. Pendency and Vacancies

A third broad problem area identified by the report concerns case pendency and burgeoning vacancies in tribunals.

With respect to the issue of high case pendency, reference has been made to the 272nd Law Commission Report, which has highlighted worrying pendency figures for the CAT (44,333 cases), CESTAT (90,592 cases), ITAT (90,538 cases) and the AFT (10,222 cases).

Notably, the high pendency figures exist despite a high disposal rate. As observed in Vidhi’s report, these figures are often high due to systemic issues such as failed hearings (avoidable adjournments that are not penalised) and absenteeism.

Recommendations

In order to introduce uniformity and coherence in the functioning of tribunals, the report proposes a merger of Central Tribunals on the basis of subject-matter. This model draws inspiration from the Leggatt Report recommendations, which led to the reform of tribunals in the United Kingdom.

Following this proposal, the following nine-categories of tribunals have been proposed i.e. (a) Tax; (b) Environment; (c) Services; (d) Public Utilities & Infrastructure; (e) Licensing; (f) Finance (Bank); (g) Finance (Company); (h) Finance (Property); (i) Inter-State Water Dispute.

Vidhi Centre recommends reforms for India’s ailing tribunals [Read Report]

Another notable proposal is the establishment of one Nodal Authority i.e. the National Tribunals Commission (NTC) to oversee the administration of all Tribunals.

Vidhi Centre recommends reforms for India’s ailing tribunals [Read Report]

Other recommendations made in the report include the following:

  • Transparent appointment of members: This could be ensured by appointing members through open advertisement calls, made by a sub-committee comprising an equal number of judicial and executive members. The Central government could make the final appointment based on the majority opinion of this sub-committee. Alternatively, members can be selected through a common entrance test i.e. the All India Entrance Examination for Tribunals.
  • Specify the qualification standards for tribunal members
  • There should be a complete bar on reappointment of members.
  • Post-Tenure Restrictions: Former members should be made ineligible for further government employment. Further, they should be ineligible to appear, act or plead before any tribunal. However, they can practice before the High Courts and the Supreme Court.
  • Sub-committees could be formed for selection of members, filling up vacancies and removal of members following a uniform procedure.
  • Direct appeal to the Supreme Court should not be permitted from any tribunal.
  • The decision of a tribunal shall attain finality in all cases. However, in the event of substantial questions of law, a statutory appeal can lie with the Division Bench of the territorial High Court.

On a concluding note, the report recommends that prior to the implementation of any reform, public consultation must be carried out with all stakeholders, including members of the Judiciary, the Executive, practising advocates, civil society, bureaucrats, etc.

Read full report below:

Vidhi-Report-2018-Tribunals-in-India.pdf
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