The Union Ministry of Finance has framed new rules prescribing uniform norms for the appointment and service conditions of members to various Tribunals.
The Rules titled 'Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020' are made in exercise of powers under Section 184 of the Finance Act 2017.
These rules are applicable to the following Tribunals :
- Industrial Tribunal constituted by the Central Government under the Industrial Disputes Act 1947.
- Income Tax Appellate Tribunal under the Income Tax Act 1961.
- Customs, Excise, Service Tax Appellate Tribunal under the Customs Act 1962.
- Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act 1976.
- Central Administrative Tribunals under the Administrative Tribunals Act 1985.
- Railway Claims Tribunal under the Railway Claims Tribunal Act 1987.
- Securities Appellate Tribunal under the Securities and Exchange Board of India Act 1992.
- Debts Recovery Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act 1993.
- Debts Recovery Appellate Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act 1993.
- Airport Appellate Tribunal under the Airport Authority of India Act 1994.
- Telecom Disputes Settlement and Appellate Tribunal under the Telecom Regulatory Authority of India Act 1997.
- Appellate Board under the Trade Marks Act 1999.
- National Company Law Appellate Tribunal under the Companies Act 2013.
- Authority for Advance Ruling under the Income Tax Act 1961.
- Film Certification Appellate Tribunal under the Cinematograph Act 1956.
- National Consumer Dispute Redressal Commission under the Consumer Protection Act 1986.
- Appellate Tribunal for Electricity under the Electricity Act 2003.
- Armed Forces Tribunal under the Armed Forces Act 2007.
- National Green Tribunal under the National Green Tribunal Act 2000.
As per the new Rules, the appointments to the above Tribunals will be made by Central Government on the recommendations by the "Search cum Selection Committee" constituted for each Tribunals.
The composition of the Search Cum Selection Committee of each Tribunal is specified in Schedule of the Rules. The Chief Justice of India, or a judge nominated by the CJI is a member of the Search Cum Selection Committee of all Tribunals.
The Search Cum Selection Committee has the power to recommend the removal of a member, and also to conduct inquiry into allegations of misconduct by a member.
It may be noted that the previous Rules framed by the Centre under Section 184 of the Finance Act, namely the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules 2017, were struck down by the Constitution Bench of the Supreme Court in November 2019 in the case Rojer Mathew v South Indian Bank.
This was on the ground that the Rules diluted judicial independence, as the Central Government had excessive say in the matter of appointment and removal of Tribunal members. The Court also found the Rules to be vague in respect of qualifications prescribed for members.
The bench headed by the then CJI Ranjan Gogoi found that Search-cum-Selection Committees were were dominated by government nominees and bureaucrats.
On this basis, the Court held that "the lack of judicial dominance in the Search-cum-Selection Committee is in direct contravention of the doctrine of separation of powers and is an encroachment on the judicial domain".
"A perusal of the Schedule to the Rules shows that save for token representation of the Chief Justice of India or his nominee in some Committees, the role of the judiciary is virtually absent", CJI Gogoi had observed in the judgment.
The Court had also found that the removal process vested too much power in the hands of the government as well; the government could constitute a committee, which could recommend removal.
As per the new rules, the "Search cum Selection Committee" has to recommend the removal.
The constitutionality of Section 184 was also challenged in the case on the ground of excessive delegation, which was not accepted by the Court.