Analysis of Tribunal Reforms Ordinance 2021 or Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021

Introduction

The Government of India promulgated Tribunal Reforms Ordinance 2021 or Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021. The main change brought by the Ordinance is that it omits certain existing appellate bodies and transfers their appellate authority to some other Judicial Bodies. This ordinance also brings some changes to the Finance Act 2017. The government also introduced the Bill in Lok Sabha on an equivalent subject. The government introduced the ordinance for improving the standard of Justice, but the ordinance also takes away few advantages related to the Tribunals.

What are Tribunals?

The Tribunal could even be a quasi-judicial institution. They were acknowledged to affect problems like resolving administrative or tax-related disputes. Initially, Tribunals weren't in the Constitution. Swaran Singh Committee recommended including Tribunals as an element of the Constitution.

According to the 42nd Amendment Act, 1976 the Tribunals got a constitutional place and were placed under Part XIV-A. This part has only two articles:

• Article 323-A deals with Administrative Tribunals. The tribunals work for the appointment and services of such people who are engaged in the public service industry. 

• Article 323-B deals with tribunals for other matters. These tribunals resolve disputes associated with Taxation, exchange, Industrial and labor, Land reforms, import and export, Food, Ceiling on urban property, etc.

About the Tribunal Reforms Ordinance 2021

The Tribunal Improvements Decree 2021 pursues to thaw sure present appellate courts and transmission their purposes. The appellate tribunals formed through subsequent legislations are transferred. These include:

The Cinematograph Act, 1952 was replaced by the High Court. 

• The Trade Marks Act, 1999 replaced by the High Court.

• The Copyright Act, 1957 replaced by the Commercial Court Constituted under the Commercial Courts Act, 2015, or the Commercial Division of a High Court.

• The Customs Act, 1962 replaced by the High Court.

• The Patents Act, 1970 replaced by the High Court.

• The Airports Authority of India Act, 1994 replaced by The Central government, for disputes arising from the disposal of properties left on airport premises by unauthorized occupants. Tall Court, for pleas in contradiction of instructions of an removal major.

• The Control of National Highways (Land and Traffic) Act, 2002 replaced by the Civil Court.

• The Geographical Indications of products (Registration and Protection) Act, 1999 replaced by the High Court.

Changes to the Finance Act 2017

Apart from these changes, the ordinance also amended the Finance Act to incorporate subsequent changes. The ordinance empowers the Central Government to form rules for qualifications, appointment, term of office, salaries and allowances, resignation, removal, and other terms and conditions of service of Members of Tribunals.

Search-cum-Selection Committee: The ordinance mentions that there will be Chairpersons and other responsible members for the tribunals. All the recommendations for the appointments will be made by this committee. 

Tenure: Now, The tenure of Chairperson of a Tribunal is for a term of 4 years or till the age of 70, whichever is earlier. Members of a tribunal also will have a tenure of 4 years or until they turn 67.

Need for the Tribunal Reforms Ordinance 2021:

The amendments introduced are basically due to the following reasons:

• Huge unfulfilled Vacancy: Different qualification requirements for various tribunal results in a high level of vacancy within the appellate tribunals. As an example: In 13 tribunals alone, nearly 138 posts lying vacant out of 352 posts.
• Poor Adjudication & Delay in Judgement:The 272nd Law Commission Report mentions the Tribunals like Central Administrative Tribunals had a pendency of 5 Lakh cases. Combined with the Vacancy they will not determine the appeals. Therefore, the ordinance is significant.
• Lack of independence: An interim report titled, Reforming The Tribunals Framework in India mentioned that the tribunals aren't independent. The head holds key positions in Tribunals and thus the government that the foremost important litigant. Therefore, the cases won't be decided fairly. So, transferring the case to the Judiciary will provide a chance of fair trial. 

Non-uniformity across tribunals concerning service conditions, tenure of members, varying nodal ministries responsible for various tribunals. This created and contributed to malfunctioning within the managing and administration of tribunals.

• Ad-hoc regulation of Tribunals:The tribunals fall into various ministries subjects to frequent ad-hoc regulations. There will be no such possibility for ad-hoc regulations by abolishing the appellate tribunals. 
• Bypassing the jurisdiction of the Supreme court in certain Tribunals: Few tribunals like NGT, NCLAT, CAT, etc. have provisions allowing direct appeals to the Supreme Court, albeit the Supreme court within the L. Chandra Kumar case criticized them for such practice. The Supreme Court held that it'll create congestion in SC and also make the Justice costly and inaccessible.

Thus, the ordinance for abolishing the appellate tribunals and vesting that power to the High Courts could even be a solution to the matter.

Challenges with the Tribunals Reforms ordinance 2021:

Even though the ordinance solves many problems, there are few main challenges with an equivalent.

1. Burdening the Judiciary: The tribunals release the burden from the judiciary by resolving a huge number of cases on their own. Shifting the whole appeals towards High courts will provide more burden to the Judiciary. For example, A law commission report says that the absolute best five central tribunals in India have appropriated 3.50 lakh cases pending from the judiciary.

 The 272nd Law Commission Report also accepts the high case resolving potential of the tribunals. So abolishing the appellate tribunals isn't considered the right move.

1. Against the pliability within the Justice delivery system: The introduction of tribunals engendered flexibility and versatility within the judiciary of India. Unlike the procedures of the standard court which are stringent and inflexible, the chief tribunals have a quite informal and easy-going procedure.

Suggestions to enhance the tribunals:

Firstly, SC has cautioned on the continual creation of tribunals. Therefore, the Government has to stop creating new Tribunals and specialize in bringing standardization in Tribunals rather than abolishing them.

Secondly, the government has got to amend the provisions of Tribunals that left High Courts out of their Jurisdiction.

Thirdly, adopting a strategy of a merger just like the UK. The United Kingdom also suffered an identical problem to India with Tribunalisation. Further, both countries have similar administrative frameworks. This was tinted by Supreme Court in NCLT Circumstance. Further, the SC also mentions few significant recommendations. Such as,

Leggatt Report of the United Kingdom is additionally applicable to the matter faced by Tribunals in India. India has got to create one tribunal service and the nodal agency supported the Leggatt Report.

Fourthly, the 74th Parliamentary committee Report on 2015 also mentioned one nodal agency for monitoring Tribunals, Appellate Tribunals, and Other Authorities.

Conclusion:

The Tribunals in India serve some important purposes. Rather than abolishing appellate tribunals, the government can try implementing the Leggatt Report because it won't only solve the matter with appellate tribunals but also solve the issues with other tribunals also.

This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being. Further, despite all efforts that have been made to ensure the accuracy and correctness of the information published, White Code Consulting & Governance shall not be responsible for any errors caused due to human error or otherwise.