Policy Analysis

Tribunal Reform Bill, 2021- Is Separation of Powers Violated?

Author: Vanshika Sachwani, a Student of Ramaiah College of Law

Tribunal is a quasi-judicial institution that resolves disputes related to the administration or tax-related disputes. This body is independent of the administration and decides the case impartially between the parties. Lord Danning has referred to the tribunal in such a way that “They are more like an inquiry before an investigating body charged with the task of finding out what happened.” There were mainly two reasons why tribunals were set up firstly, they were set up to reduce the burden of the courts, and secondly, to allow specialized subject knowledge for technical matters. The tribunal was not initially part of the Indian Constitution it was incorporated in the 42nd Amendment Act 1976. Article 323 -A deals with Administrative Tribunals which deals with matters related to employment, public servant, etc. Article 323 – B deals with tribunals related to other matters and Articles such as Land reform, foreign exchange, import and export, Urban roofing, elections in parliament and state legislature, etc.

Basic Details of the Bill

The Tribunal Reform Bill, 2021 was passed in Rajya Sabha on 9th August and in Lok Sabha on 3rd August 2021. The Bill seeks to amend the Cinematograph Act, of 1952, the Customs Act, of 1962, the Airports Authority of India Act, of 1994, the Trade Marks Act, of 1999, the Protection of Plant Varieties, and Farmers’ Rights Act, 2001, and specific other legislation. The bill contained provisions related to the appointment of tribunals again creating a power tussle between two state institutions. The CJI N V Ramana, who had last said, “What we saw recently is — an ordinance, which was struck down by the court, was made into an Act. I have not come across any debate which has taken place in Parliament. We have no problem that the legislature has the right and prerogative to make any law. We do not interfere with their rights. But at least we should know what are the reasons for the government to introduce this Bill again after striking down the ordinance. Nothing is there.”

Key Provisions of the Tribunal Reform Bill 2021

  1. Removal of Appellate Tribunal: The bill seeks to dissolve the existing appellate bodies and transfer their work to existing judicial bodies. For example, disputes heard by the Film Certification Appellate Tribunal will be resolved by the Supreme Court.
  2. Amendments to Finance Act, 2017: According to the bill the government will have the power to notify the qualifications and conditions for the appointment for the tribunal. 
  3. Merging the existing bodies: The Finance Act, of 2017 merged tribunals based on domain. For example, the Competition appellate tribunal has been merged with the National Company Law Tribunal.
  4. Search Cum- Selection Committee: In the new bill, Government has the power to appoint the tribunal members from the recommendation provided by Search Cum- Selection Committee. 
  5. States have separate Search Cum – Selection Committee 
  6. Tenure and age- The minimum age set up to be a member is set as 50 years and the tenure of 4 years has been fixed.
  7. Removal of Tribunal Members – The bill gives power to the government to remove the members from the tribunal on the recommendation of the Search Cum Selection Committee.

Tension Between Government and Judiciary 

The tussle between Government and the judiciary began when the government passed the finance Act of 2017 which reorganized the tribunal system by merging tribunals based on similarity in their functions, the number of tribunals was reduced from 26 to 19. This delegated the power to the central government allowing them to make rules regarding the term of office, qualification, appointment, salaries, allowances, and other such conditions for the members of the tribunal—the SC in Rojer Mathew & Ors. v. South Indian Bank Ltd. & Ors. (2019) struck down 2017 rules by arguing that the short tenure of the members reduces the efficacy of the tribunal as it reduces the adjudicatory experience and the lack of dominance of the judiciary violates the doctrine of separation of powers. In Madras Bar Association v. Union of India (2020) government suggested -amendments such as increasing the tenure to 5 years and allowing advocates with 10 years of experience to be appointed as a member, etc. to the new government rules passed in February 2020. Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 and the Tribunal, Appellate Tribunal, and other Authorities (Qualifications, Experience, and Other Conditions of Service of Members) (Amendment) Rules, 2021 were struck down by SC as they did not contain suggestions by the Suggestions by the Supreme Court.

Contradicting Provisions with the directions of the Supreme Court 

The SC demanded a longer tenure of the appointment and an option of re-appointment or else it discourages the members to leave their current practices and join the tribunal, but according to the bill the tenure has been fixed for 4 years. In the case of P. Sampath Kumar v. Union of India & Ors. Supreme Court states that anyone eligible for the post of civil court and High Court judges must be eligible for the appointment as vice-chairman in the Tribunals, SC also suggested that the advocates with practicing experience of 10 years must be eligible to be the member, in contradiction to that the bill states the minimum age to be eligible to become a member is 50 years. Selection by the Government on the recommendation of the Search Cum Selection Committee is a breach of a division of powers between government and judiciary.

Conclusion

The Author believes that on such matters where questions such as “Who is more powerful? Government or Judiciary?”  can be raised must be dealt with sensitivity by both government and judiciary the doctrine of the separation of power must not be violated by any of the organs of the state. There is a need for balance and reforms in the Act, the government can set up committees to check on the functioning of the tribunals while at the same time accepting the suggestions of the SC regarding the matters related to qualifications and appointment of matters as tribunals more likely comes in the ambit of the judiciary.


References 

https://iasscore.in/current-affairs/mains/tribunals-reforms-bill-2021

https://timesofindia.indiatimes.com/india/government-locks-horns-with-supreme-court-on-tribunal-appointments/articleshow/89811685.cms

https://prsindia.org/billtrack/the-tribunals-reforms-bill-2021

https://www.juscorpus.com/analysis-tribunal-reforms-bill-2021/

https://www.scconline.com/blog/post/2021/08/10/parliament-passes-tribunal-reforms-bill-2021/

https://www.drishtiias.com/daily-updates/daily-news-analysis/tribunals-reforms-bill-2021

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