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WHITHER TRIBUNAL INDEPENDENCE?

Focus: GS-II Governance

Why in news?

In November 2019, a Constitution Bench of the Supreme Court, in Rojer Mathew, declared the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2017 as unconstitutional for being violative of principles of independency of the judiciary.

In the 2017 rules, as noted by the Court in Rojer Mathew, barring the National Company Law Appellate Tribunal (NCLAT), the selection committee for all other tribunals was made up either entirely from personnel within or nominated by the Central government or comprised a majority of personnel from the Central government.

Mandate (Constitutional provisions) Regarding Tribunals

The provision for Tribunals was added by the 42nd Constitutional amendment act which added two new articles to the constitution.

Article 323-A : of the constitution which  empowers the parliament to provide for the establishment of administrative tribunals for adjudicating the disputes relating to recruitment and conditions of service of a person appointed to public service of centre, states, local bodies, public corporations and other public authority. Accordingly parliament has enacted Administrative Tribunals Act,1985 which authorizes parliament to establish Centre and state Administrative tribunals (CAT & SATs).

  1. Central Administrative Tribunal (CAT):
    •  It was set up in 1985 with the principal bench at Delhi and additional benches in other states (It now has 17 benches, 15 operating at seats of HC’s and 2 in Lucknow and Jaipur.
    • It has original jurisdiction in matters related to recruitment and service of public servants (All India services, central services etc).
    • Its members have a status of High Court judges and are appointed by president.
    • Appeals against the order of CAT  lie before the division of High Court after Supreme Court’s Chandra Kumar Judgement.
  2. State administrative tribunals
    • Central government can establish state administrative tribunals on request of the state according to Administrative tribunals act of 1985
    • SAT’s enjoy original jurisdiction in relation to the matters of state government employees.
    • Chairman and members are appointed by President in consultation with the governor.

Article 323-B  which empowers the parliament and the state legislatures to establish tribunals for adjudication of disputes related to following matters

  • Taxation
  • Foreign exchange, Imports and Exports
  • Industry and Labour
  • Land reforms
  • Ceiling on Urban Property
  • Elections to parliament and state legislature
  • Food stuffs
  • Rent and Tenancy Rights

Issues with tribunalisation:

  1. Appeal:  Administrative tribunals were originally set up to provide specialized justice delivery and to reduce the burden of caseloads on regular courts. However, appeals from tribunals have inevitably managed to enter the mainstream judicial system.
  2. High Pendency: Many tribunals also do not have adequate infrastructure to work smoothly and perform the functions originally envisioned leading to high pendency rates thus proving unfruitful to deliver quick justice.
  3. Appointments: Appointments to tribunals are usually under the control of the executive. Not only does the government identify and appoint the members of the tribunals, but it also determines and makes appropriate staffing hires. This is problematic because often there is a lack of understanding of the staffing requirements in tribunals.
  4. There is a lack of information available on the functioning of tribunals. Websites are routinely non-existent, unresponsive or not updated.
  5. Accessibility is low due to scant geographic availability therefore justice becomes expensive and difficult.
  6. Against the separation of powers: Tribunalisation is seen as encroachment of judicial branch by the government.
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