Order, order

| Updated on September 08, 2021

An unnecessary confrontation with the judiciary has held up much-needed tribunal reforms

The Supreme Court’s pique over the Tribunal Reforms Act — meant to address issues of inadequate infrastructure and staff at the tribunals, pendency of cases and unsatisfactory grievance redress — should be given due importance. To be sure, these specialised courts were conceived to expedite rulings and ease the burden on the general courts, but are today themselves burdened by a mountain of pending cases. But the issue is whether the proposed remedy is worse than the disease. The new law reduces the additional layer by abolishing eight appellate boards and tribunals and transferring all cases pending to the High Courts. But in doing so, it overlooks some key concerns: the existing burden of pending cases before the High Courts (57 lakh) and the huge number of vacancies among tribunals which has ramped up the number of pending cases there. Interestingly, about 40 per cent or 400 of the over 1,000 posts of judges in High Courts lie vacant, which is a leading cause of pending cases. Meanwhile, Chief Justice of India MV Ramana has released a list of 240 vacancies in different tribunals. This includes a large number of vacancies of presiding officers, and judicial and technical members — 20, 110 and 111, respectively. Almost 15 major Tribunals are defunct as a result. These vacancies have not been filled despite recommendations of names by the selection committees headed by sitting Supreme Court judges. Now, the new law has raised the hackles of the Supreme Court because of the Executive trying to have a greater say in the appointments.

While the tribunal system requires overhaul, the Centre has been clumsy and ham-handed in its approach. The apex court has held, in the Madras Bar Association case, that certain provisions of the Finance Act, 2017, which have taken the shape of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, are unconstitutional — in that they violate the ‘basic structure doctrine’ of separation of powers and independence of the judiciary. The present law overturns the SC’s ruling, as it proposes changes in the procedure of appointing tribunal members, conferring the power of appointment and removal of the presiding officers of the tribunals effectively on the executive. The Act fixes minimum age qualification as 50 years and limits tenure to four years, both of which are provisions in the earlier ordinance that the SC had struck down. The Centre should be more flexible. The fallout of this conflict over tribunal appointments has been serious.

The 272nd Law Commission report, released in October 2017, documents as many as 91,538 pending cases in Income Tax Appellate Tribunal; 90,592 in Customs, Excise and Service Tax Appeal Tribunal; and 78,118 in Debt Recovery Tribunal. There is no reason to believe that the situation has improved. Meanwhile, the tribunals need to ensure that their rulings are sound in law. These institutional concerns can only be addressed through a process of consultation — not confrontation.

Published on September 08, 2021

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