The Tribunals Reforms Act, 2021: Tussle between the Centre and the Supreme Court

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Overview

The Union Government recently passed the Tribunals Reforms Act, 2021. Previously, the ordinance named “Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021” was passed on the same subject which was quashed by the Supreme Court of India. In the recent remarks made by the Chief Justice and other Judges, they have been asserting that the Supreme Court would strike down the Tribunals Reforms Act, 2021. In this article, we will look upon the reasons and consequences, if the Court passes an adverse order. 

The Tribunal Reforms Act, 2021

A tribunal is a quasi-judicial institution that is specially set up to solve issues like administrative, tax, and other variety of disputes according to the changing times. Tribunals were added to the constitution by the 42nd amendment of 1976.

The bill passed in August 2021 replaced the Tribunal Reforms Ordinance of 2021. It abolished the five appellate tribunals Film Certification Appellate Tribunal, Airports Appellate Tribunal, Authority for Advanced Rulings, Intellectual Property Appellate Board, and the Plant Varieties Protection Appellate Tribunal. It also introduced the provisions for the change of term period of tribunal officials. Not only this, but the Act also made provisions for selecting the chairperson and officers of a tribunal. It sets up search-cum-selection committee which will have the power to select the members.

The committee so made will be headed by the Chief Justice of India or any other Supreme Court Judge nominated by him. The Judge so nominated will have the voting right. There will be two Secretaries, nominated by the central government. This would also include the sitting or outgoing Chairperson, or a retired Supreme Court Judge, or a retired Chief Justice of a High Court. Also, there will be a Secretary of the Ministry under which the tribunal would be made. The Secretaries will not have any voting rights. The central government must decide upon the recommendations within three months.

Also, the tenure of the Chairperson of tribunals is limited to four years, or till he or she attains the age of seventy years, whichever is earlier. The same was done with the members of tribunals, their term is limited to four years, or till she/he attains the age of sixty-seven years, whichever is earlier.

Issues with the Tribunals Reforms Act, 2021

The Supreme Court raised several issues with the act. They said that the act has unconstitutional legislative overriding principles. The necessary discussion which should have taken place was missing. The Act also reinforces the provisions which the Court struck down in the Madras Bar Association case in 2021 (the case is discussed later on). It also disregarded repeated directions issued by the Court to keep in mind the proper functioning of tribunals. The provisions in the ordinance which fixed the terms of members and the chairperson had already been struck down by the Court previously.

The Act requires the Central government to take a decision on the recommendations made by the Selection Committee within three months from the date of that recommendation. This has been given in section 3(7) of the Act. The provision undermines the separation of power between judiciary and legislature and also violates the judicial independence which has been guaranteed by the constitution.

The Act also lays down a provision for abolishing five tribunals, which leaves the aggrieved party with no other option than to approach the High Courts and Supreme Courts. This will again prove detrimental to the decision-making process and will increase the load on the already overburdened judiciary. Also, the specialized tribunals had experts from the respective fields which made the decision-making process speedy and has more chances of giving satisfactory decisions.

The removal of any member or the chairperson would be in the hands of the Central Government, on recommendations of the search-cum-selection committee.

Madras Bar Association Case and its impact

A petition was filed by the Madras Bar Association and Jairam Ramesh challenging the Tribunals Reforms Act, 2021.

There were several other pleas filed by different State Bar Associations demanding the appointment of members of the Tribunal and other provisions.

The Court made disheartening remarks on the bureaucracy. Firstly, the Court asked the government to make a clear stand as to when they are planning to fill those vacancies in the tribunals. It noted that there were a total of 20 vacancies for the presiding officer, 110 for judicial members, and 111 for technical members over various tribunals. To this, when the Court didn’t receive satisfactory answers, it snapped the Central Government by saying that they were testing the patience of the Court. Here, Justice Chandrachud remarked that the Tribunals Reforms Act of 2021 is “virtually a replica of the provisions struck down by this court in the Madras Bar Association”.

The court observed that the appointments were not at all made according to the directions issued by them and also that the Central Government is disrespecting the Court and its orders.

In the next hearing, a list was submitted to the Court mentioning the appointments. This further aggravated the disappointment when it was seen that the government has cherry-picked members of the tribunals. It was observed that the government took some members from the suggested list of the selection committee and went ahead picking other members from the waitlist that was given by the selection committee, ignoring others in the select list. The Court said that they select people after conducting interviews of hundred others appearing for the same and the government just goes ahead rejecting their selected people.

The same thing is happening with the selection of members of other tribunals. The list is given by the selection committee, which they make after an elaborate process is truncated and appointments are made on whims of the government. It was also pointed out that the appointments are until further orders, to which the Attorney General said that the wording should have been “until further orders of the Supreme Court”. The government has been given two weeks to furnish the reasons if the appointments are not made.

Conclusion   

The series of hearings show the utter irresponsibility of the Central Government in making appointments of members of the tribunals. The Supreme Court’s order was ignored again and again. Also, the government seems to be crossing the line of separation of powers of judiciary and legislature. The abuse of power and disrespect of orders of the Supreme Court paints a tainted image of the working system. While the suit challenging the legality of the Tribunals Reforms Act, 2021 is still pending before the court, it clearly seems to be ultra vires in terms of powers granted to the government.

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