Context: In this article we discuss how Establishing the National Tribunal commission could possibly entail a radical restructuring of the present tribunals system.
Background

• The Centre has abolished several appellate tribunals and authorities and transferred their jurisdiction to other existing judicial bodies through the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021.
• Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021 has been challenged in the Supreme Court.

Concerns
The Ordinance has met with sharp criticism for the following reasons.

• Bypassing the normal legislative process
• By taking the ordinance route the government seems to have bypassed the usual legislative process thus depriving the legislature of its right to discuss and deliberate on the issue.

Impact of the abolishment of tribunals

• The abolishing of several tribunals such as the Film Certification Appellate Tribunal without any stakeholder consultation will have a profound impact on the stakeholders.
• Despite the Supreme Court’s direction in Rojer Mathew v. South Indian Bank (2019), no judicial impact assessment was conducted prior to abolishing the tribunals through this Ordinance.

Against the judicial direction

• While the Ordinance has incorporated the suggestions made in Madras Bar Association v. Union of India (2020) on the composition of a search-cum-selection committee and its role in disciplinary proceedings, it has fixed a four-year tenure for Chairpersons and members of tribunals thus blatantly disregarding the court’s direction for fixing a five-year term.

Non commission of NTC

• The Centre is yet to constitute a National Tribunals Commission (NTC), an independent umbrella body to supervise the functioning of tribunals, the appointment of and disciplinary proceedings against members, and to take care of administrative and infrastructural needs of the tribunals.
• The idea of an NTC was first mooted in Chandra Kumar v. Union of India (1997).
• The lack of an institutional body like the NTC will fail to deter executive interference in the functioning of tribunals in matters of appointment and removal of tribunal members, as well as in the provision of finances, infrastructure, personnel and other resources required for the day-to-day functioning of the tribunals.
• Such a scenario can lead to a situation where the system can be used to serve political or private interests.

Significance of NTC

• The NTC would ideally take on some duties relating to administration and oversight. A ‘corporatised’ structure of NTC with a Board, a CEO and a Secretariat will allow it to scale up its services and provide requisite administrative support to all tribunals across the country. The NTC could pave the way for the separation of the administrative and judicial functions carried out by various tribunals.
• The NTC functioning as an umbrella authority can support uniform administration across all tribunals.
• The NTC could set performance standards for the efficiency of tribunals and their own administrative processes. This can help increase efficiency as well as ensure better accountability.
• It could function as an independent recruitment body to develop and operationalize the procedure for disciplinary proceedings and the appointment of tribunal members. Giving the NTC the authority to set members’ salaries, allowances, and other service conditions, subject to regulations, would help maintain tribunals’ independence.

Recommendations

• The Finance Ministry which has been vested with the responsibility for tribunals until the NTC is constituted should come up with an appropriate transition plan.
• The way to reform the tribunal system is to look at solutions from a systemic perspective supported by evidence. Establishing the NTC will definitely entail a radical restructuring of the present tribunals system.
• Developing an independent oversight body like the NTC requires a legal framework that protects its independence and impartiality. The NTC must be established vide a constitutional amendment or be backed by a statute that guarantees it functional, operational and financial independence.

Tribunals in India

• Tribunal is a quasi-judicial institution that is set up to deal with problems such as resolving administrative or tax-related disputes. It performs a number of functions like adjudicating disputes, determining rights between contesting parties, making an administrative decision, reviewing an existing administrative decision and so forth.
• The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of the Classical Roman Republic’.
• Tribunal is referred to as the office of the ‘Tribunes’ i.e., a Roman official under the monarchy and the republic with the function of protecting the citizen from arbitrary action by the aristocrat magistrates.
• A Tribunal, generally, is any person or institution having an authority to judge, adjudicate on, or to determine claims or disputes – whether or not it is called a tribunal in its title.

Need of Tribunal

• To overcome the situation that arose due to the pendency of cases in various Courts, domestic tribunals and other Tribunals have been established under different Statutes, hereinafter referred to as the Tribunals.
• The Tribunals were set up to reduce the workload of courts, to expedite decisions and to provide a forum which would be manned by lawyers and experts in the areas falling under the jurisdiction of the Tribunal.
• The tribunals perform an important and specialised role in justice mechanism. They take a load off the already overburdened courts. They hear disputes related to the environment, armed forces, tax and administrative issues.

Constitutional Provisions

• Tribunals were not part of the original constitution, it was incorporated in the Indian Constitution by 42nd Amendment Act, 1976.
• Article 323-A deals with Administrative Tribunals.
• Article 323-B deals with tribunals for other matters.

Articles 323 A and 323 B differ in the following three aspects:

• While Article 323 A contemplates the establishment of tribunals for public service matters only, Article 323 B contemplates the establishment of tribunals for certain other matters (mentioned above).
• While tribunals under Article 323 A can be established only by Parliament, tribunals under Article 323 B can be established both by Parliament and state legislatures with respect to matters falling within their legislative competence.
• Under Article 323 A, only one tribunal for the Centre and one for each state or two or more states may be established. There is no question of the hierarchy of tribunals, whereas under Article 323 B a hierarchy of tribunals may be created.

Article 262: The Indian Constitution provides a role for the Central government in adjudicating conflicts surrounding inter-state rivers that arise among the state/regional governments.