Explained: The Tussle Between Centre And Supreme Court Over Tribunals

In 1976, with the forty-second Amendment Act, the Indira Gandhi-led government added a new part to the Indian Constitution titled 'Tribunals'. The tribunals are quasi-judicial bodies with both judicial and non-judicial members set up to settle disputes and claims on specific subject matters. The non-judicial members are the experts in these subject matters.

There were two main goals behind setting up the tribunals, one, it allows application of specialised subject knowledge, apart from judicial principles, in disputes on technical matters, and, two, it reduces the burden on the traditional court system. However, several tribunals are facing the same issues of high caseload and pendency.

Currently, in India, some tribunals are at the level of subordinate courts with appeals lying with the High Court, while others are at the level of High Courts with appeals lying with the Supreme Court.

Supreme Court on Tribunals

The apex court has been concerned about the independence of the tribunals, since as quasi-judicial bodies, they are a lot more dependent on the executive than the regular courts. It has passed several orders regarding the issue.

In 1986, the Supreme Court ruled that Parliament may create tribunals as an alternative to High Courts, however, they must have the same efficacy as the High Courts. The apex court further stated that if an administrative tribunal supplants the High Courts, the office of the Chairman of the tribunal should be equated with that of the Chief Justice of the High Court.

Therefore, the Chairman of the tribunal must be a current or former High Court Judge. Further, in 2019, the Supreme Court stated – “the knowledge, training, and experience of members or presiding officers of a tribunal must mirror, as far as possible, that of the Court it seeks to substitute”.

In 2014, the Supreme Court had said that the central government should not have any administrative involvement with the members of the tribunal as it may influence the independence and fairness of the tribunal members. Since the government itself may be a litigant party, its involvement in administrative matters of tribunals may influence the fairness of the adjudication process, the court said.

In judgements in 1997 and 2014, the Supreme Court recommended, in order to maintain judicial independence in tribunals, that their administration should be under one nodal ministry, such as the Ministry of Law and Justice, instead of the respective administrative ministry to which their area of adjudication relates.

In 2020, the apex court had recommended setting up of a National Tribunals Commission to supervise appointments and administration of tribunals.

Government's Response

In April 2021, the central government brought an ordinance with regards to the tribunals, covering the composition of the search-cum-selection committees for the selection of members of 15 tribunals, and the term of office for members. It empowered the central government to notify qualifications and other terms and conditions of service (such as salaries) for the Chairperson and members of these tribunals.

In July 2021, the Supreme Court of India struck down certain provisions of the ordinance, like a four-year term for members stating that these harmed the independence of the judiciary, which forms a part of the basic structure of the Constitution.

In response, Parliament passed the Tribunals Reforms Bill, 2021 in August, and Tribunal (Conditions of Service) Rules, 2021 in September, which include the provisions of the ordinance which had been struck down by the apex court.

The law says that in case of the Central Administrative Tribunal (CAT), a person with at least three years of experience as the Judicial Member or Administrative Member may be appointed as the Chairman. Since the Administrative Member will be a person who has been an Additional Secretary or equivalent to the central government, she may not have the required judicial experience for appointment as the Chairman of CAT - violating the Supreme Court guidelines mentioned above.

The new rules also specify that the central government will be the leave sanctioning authority for the Chairperson of tribunals, and members (in case of absence of the Chairperson).

These were challenged in the Supreme Court through a bunch of petitions filed by Madras Bar Association, Congress leader Jairam Ramesh and others for contravention of the principles laid out by the Supreme Court.

The Tussle

A bench headed by Chief Justice of India NV Ramana in September criticised the government for bringing back the very same provisions for administration of tribunals in the 2021 law that the court struck down in July.

The bench observed that it is “very upset” by the government, which, it added, is “bent upon not honouring” the orders of the court and has rather sought to overrule a judgment by enacting a “replica” of the old law.

Recently, the government responded to the court, giving the following arguments in its favour:

• Basic structure in the Constitution can only be used to test the validity of a Constitutional amendment, not the validity of a statute.

• The tenure and other service conditions are all issues of policy, and if the Parliament is denied the right to make laws relating to policy, then it would violate the constitutional principle of separation of powers.

• It also offered to place before the court past judgements declaring the exclusive right of Parliament and executive to frame policies and execute them.

The government told the court in an affidavit:

“The Government of India is distressed by the fact that both laws and statutory rules made by parliament and executive in areas of pure policy are being held to be void by invoking independence of judiciary when such laws and rules do not violate fundamental rights or any provision of the Constitution, and is wholly within competency."

“The government equally believes that the court striking down these pure matters of policy violates the separation of powers by the judicial wind of the state.”