Law Commission Of India Suggests Uniformity,Independence In Appointments, Monitoring Of Tribunals By Nodal Agency [Read Report]

The Law Commission of India, in its 272nd report, has laid out a detailed step-by-step procedure for improving the working of the tribunal system in the country.

The report titled "Assessment of Statutory Frameworks of Tribunals in India" has been prepared pursuant to the observations made by the Supreme Court in the case of Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., (2016)9SCC103. The Apex Court had directed the LCI to examine changes required to be made to the statutory framework constituting various Tribunals, keeping in mind the very objective of their establishment.

On a scrutiny of the functioning of the Tribunals in India, the Commission concluded that the object of setting up Tribunals has not been achieved, especially in view of the pendency of cases in some of the Tribunals. It suggests that Tribunals be monitored by a single nodal agency under the aegis of the Ministry of Law and Justice, in order to ensure uniformity in affairs.

Further, the Commission opines that the jurisdiction of the Supreme Court should not be allowed to be bypassed, merely by making a provision to approach the Apex Court under Article 136 of the Constitution of India. It explains, "... the said Article does not provide for an appeal but confers discretion on the Supreme Court to grant leave or not. The Special Leave Petitions are considered on certain fixed parameters laid down by the Supreme Court from time to time. More so, providing for approaching the Supreme Court directly and excluding the jurisdiction of High Court, tantamount to violation of the fundamental right of the citizens of access to justice."

The report makes the following recommendations:
A. In case of transfer of jurisdiction of High Court to a Tribunal, the members of the newly constituted Tribunal should possess the qualifications akin to the judges of the High Court. Similarly, in cases where the jurisdiction and the functions transferred were exercised or performed by District Judges, the Members appointed to the Tribunal should possess equivalent qualifications required for appointment as District Judges.

B. There shall be uniformity in the appointment, tenure and service conditions for the Chairman, Vice-Chairman and Members appointed in the Tribunals. While making the appointments to the Tribunal, independence shall be maintained.

C. There shall be constituted a Selection Board/Committee for the appointment of Chairman, Vice-Chairman and Judicial Members of the Tribunal, which shall be headed by the Chief Justice of India or a sitting judge of the Supreme Court as his nominee and two nominees of the Central Government not below the rank of Secretary to the Government of India to be nominated by the Government. For the selection of Administrative Member, Accountant Member, Technical Member, Expert Member or Revenue Member, there shall be a Selection Committee headed by the nominee of the Central Government, to be appointed in consultation with the Chief Justice of India.

D. The Chairman of the Tribunals should generally be the former judge of the Supreme Court or the former Chief Justice of a High Court and Judicial Members should be the former judges of the High Court or persons qualified to be appointed as a Judge of the High Court.Administrative Members, if required, should be such persons who have held the post of Secretary to the Government of India or any other equivalent post under the Central Government or a State Government, carrying the scale of pay of a Secretary to the Government of India, for at least two years; OR held a post of Additional Secretary to the Government of India, or any other equivalent post under the Central or State Government, carrying the scale of pay of an Additional Secretary to the Government of India, at least for a period of three years.Expert Member/Technical Member/Accountant Member should be a person of ability, integrity and standing, and having special knowledge of and professional experience of not less than fifteen years, in the relevant domain. (can be increased according to the nature of the Tribunal).The appointment of Technical/Expert members in addition to the judicial members be made only where the Tribunals are intended to serve an area which requires specialised knowledge or expertise or professional experience and the exercise of jurisdiction involves consideration of, and decisions into, technical or special aspects.

E. While making the appointments to the Tribunal, it must be ensured that the Independence in working is maintained. The terms and conditions of service, other allowances and benefits of the Chairman shall be such as are admissible to a Central Government officer holding posts carrying the pay of Rs.2,50,000/-, as revised from time to time.The terms and conditions of service, other allowances and benefits of a Member of a Tribunal shall be such as are admissible to a Central Government officer holding posts carrying the pay of Rs.2,25,000/-, as revised from time to time.The terms and conditions of service, other allowances and benefits of Presiding Officer/Member of a Tribunal (to which the jurisdiction and functions exercised or performed by the District Judges are transferred) shall be such as are admissible to a Central Government officer drawing the corresponding pay of a District Judge.

F. Vacancy arising in the Tribunal should be filled up as early as possible by initiating the procedure well in time, as early as possible, preferably within six months prior to the occurrence of vacancy.

G. The Chairman should hold office for a period of three years or till he attains the age of seventy years, whichever is earlier. Whereas Vice-Chairman and Members should hold the office for a period of three years or till they attain the age of sixty seven years whichever is earlier. It will be appropriate to have uniformity in the service conditions of the Chairman, Vice-Chairman and other Members of the Tribunals to ensure smooth working of the system.

H. Every order emanating from the Tribunal or its Appellate Forum, wherever it exists, attains finality. Any such order may be challenged by the party aggrieved before the Division Bench of the High Court having territorial jurisdiction over the Tribunal or its Appellate Forum.

I. The provisions of Section 3(o) of the Armed Forces Tribunal Act, 2007 excludes certain matters from the jurisdiction of the Armed Forces Tribunal (AFT) and the parties aggrieved in those matters can approach the High Court under writ jurisdiction. The Act excludes the jurisdiction of the High Court under Article 227(4) but not under Article 226. In matters, where AFT has jurisdiction, parties must have a right to approach the High Court under Article 226 for the reason that a remedy under Article 136 is not by way of statutory appeal. The issue is pending for consideration before the larger Bench of the Supreme Court.

J. The Tribunals must have benches in different parts of the country so that people of every geographical area may have easy Access to Justice. Ideally, the benches of the Tribunals should be located at all places where the High Courts situate. In the event of exclusion of jurisdiction of all courts, it is essential to provide for an equally effective alternative mechanism even at grass root level. This could be ensured by providing State- level sittings looking to the quantum of work of a particular Tribunal. Once that is done, the access to justice will stand ensured.