The Act seeks to dissolve certain existing appellate bodies and transfer their functions (such as adjudication of appeals) to other existing judicial bodies, further it has brought changes in the term of office and other provisions.
Chronology of events
The provisions of the Act are discussed below:
Transfer of functions of key appellate bodies as proposed under the Bill |
||
Acts |
Appellate Body |
Proposed entity |
The Cinematograph Act, 1952 |
Appellate Tribunal |
High Court |
The Trade Marks Act, 1999 |
Appellate Board |
High Court |
The Copyright Act, 1957 |
Appellate Board |
Commercial Court or the Commercial Division of a High Court* |
The Customs Act, 1962 |
Authority for Advance Rulings |
High Court |
The Patents Act, 1970 |
Appellate Board |
High Court |
The Airports Authority of India Act, 1994 |
Airport Appellate Tribunal |
|
The Control of National Highways (Land and Traffic) Act, 2002 |
Airport Appellate Tribunal |
Civil Court# |
The Geographical Indications of Goods (Registration and Protection) Act, 1999 |
Appellate Board |
High Court |
The Committee will consist of:
State administrative tribunals will have separate search-cum-selection committees. These Committees will consist of:
Critical analysis
Some tribunals face the issue of a large backlog of cases. For example, as of March 15, 2021, the central government industrial tribunal cum-labour courts had 7,312 pending cases; as of February 28, 2021, the Armed Forces Tribunal had 18,829 pending cases; and as of January 1, 2018, the Income-tax Appellate Tribunal had 91,643 pending cases.
The lack of human resources (such as inadequate number judges) is observed to be one of the key reasons for accumulation of pending cases in courts. The Standing Committee on Personnel, Public Grievances, Law and Justice (2015) had noted that several tribunals (such as Cyber Appellate Tribunal and Armed Forces Tribunal) have vacancies which makes them dysfunctional. As of March 3, 2021, there were 23 posts vacant out of total 34 sanctioned strength of judicial and administrative members in Armed Forces Tribunal.
However, on the flip side, transferring functions of an appellate body to a High Court may lead to a further increase in the disposal time of cases as most High Courts already have high pendency. Note that as of July 20, 2021, there are over 59 lakh cases pending in High Courts across India. This defeats the purpose with which these tribunals were set up, which was to help reduce the burden on High Courts. Further, if there is an issue of shortage of administrative capacity at such tribunals, it may be questioned whether the capacity should be increased, or their case load be shifted to other courts.
However, the Act specify that the term of office for the Chairperson and members will be four years. Supreme Court stated objection in such provision. The Court stated that specifying four years of term of office violates the principles of separation of powers, independence of judiciary, rule of law, and equality before law.
Over the years, the Supreme Court had stated that short tenure of members of a tribunal along with provisions of re-appointment increases the influence and control of the Executive over the judiciary. It also discourages meritorious candidates from applying for such positions as they may not leave their well-established careers to serve as a member for a short period. The Court has also noted that security of tenure and conditions of service (including adequate remuneration) are core components of independence of the judiciary. The Supreme Court had stated that the term of office for the Chairperson and other members must be five years (subject to a maximum age limit of 70 years for the Chairperson and 67 years for other members).
The Act specify that a person must be at least 50 years old to be appointed as a member of a tribunal. This violates past Supreme Court judgements. It reiterated earlier judgements which emphasized the recruitment of members at a young age. In past judgements, the Supreme Court (2020) has stated that advocates with at least 10 years of relevant experience must be eligible to be appointed as judicial members, as that is the qualification required for a High Court judge. A minimum age requirement of 50 years may prevent such persons from being appointed as tribunal members.
(a) has been adjudged as an insolvent; or
(b) has been convicted of an offence which involves moral turpitude; or
(c) has become physically or mentally incapable of acting as such Chairperson or Member; or
(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as such Chairperson or Member; or
(e) has so abused his position as to render his continuance in office prejudicial to the public interest.
Chairpersons and judicial members of tribunals are former judges of High Courts and the Supreme Court. While the move brings greater accountability on the functioning of the tribunals, it also raises questions on the independence of these judicial bodies.
In the Search-cum-Selection Committee for state tribunals, the Bill brings in the Chief Secretary of the state and the Chairman of the Public Service Commission of the concerned state who will have a vote and Secretary or Principal Secretary of the state’s General Administrative Department with no voting right. This gives the government a foot in the door in the process. The Chief Justice of the High Court, who would head the committee, will not have a casting vote
Further the Act created a controversy between legislature, judiciary and Executive. Let us understand the Act from this point of view.
Thus, the Act has nullified the ruling in the Madras Bar Association case. Thereby, divesting the judiciary of its innate power to keep a check on the power of the legislature and diluting the doctrine of separation of powers.
Executive versus Judiciary
It flows from this subsection that the appointments may proceed even in case of the total absence of members from the judiciary. By way of this provision, the executive may exercise primacy over the judiciary in the Committee concerned with judicial appointments. Moreover, the provisions dealing with tenure and age restrictions of members could be viewed as another form of executive control in tribunal appointments.
Further, as opposed to prior judicial rulings, Section 3(7) states that the Search-cum-selection committee shall recommend a panel of two names for each position and the subsequent selection will be at the discretion of the Central Government. As a result of which it has been directed by the Supreme Court at various instances that the committee shall recommend only one name for each position. While doing so, the court noted that “executive influence should be avoided in matters of appointments to tribunals”. However, due to the operation of the non-obstante clause, the government has chosen to ignore any such directions.
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