Tuesday, March 28, 2023

Emasculated Tribunals

The apex court, while hearing petitions highlighting the issue, has expressed its displeasure multiple times. In its latest show of quizzing, it pulled up the centre once again. Why does the anomaly persist?

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On February 16, the Supreme Court called out the centre for taking the issue of pending appointments in various tribunals across the country lightly. The three-judge bench, comprising Chief Justice of India NV Ramana and Justices AS Bopanna and Hima Kohli, questioned the centre over vacancies in various tribunals despite the Court nudging the government to fill them up soon. “We are getting [requests for] extension of time for NCLT (National Company Law Tribunal) matters, etc. Some knee-jerk appointments took place and nothing after that. We do not know the fate of members and many are retiring. Bureaucracy is taking it lightly,” the bench said.

Attorney General KK Venugopal, who has been assisting the bench on the issue, attempted to show the list of vacancies and the steps taken to fill them up. The Court said that its judicial intervention saw the government make abrupt efforts to fill up vacancies in tribunals some time back and nothing was done after that. It decided to hear the issue in a suo motu proceeding after two weeks. It was hearing a bunch of separate petitions on vacancies across tribunals and a challenge to the Tribunal Reforms Bill.

Recently, the centre had approved the proposal of the Department of Financial Services for the appointment of chairpersons in all the five Debt Recovery Appellate Tribunals (DRATs) after the Court expressed its displeasure over taking such vacancies too lightly.

The apex court has expressed its displeasure multiple times on vacancies in tribunals. In September last year, the centre had filed an affidavit in the Court over the delay in the appointment of members and chairpersons of various tribunals. According to the affidavit, the centre had acted upon all the recommendations made by the Search-Cum-Selection-Committees (SCSCs) and appointment orders had been issued. The recommendations already made by the SCSC pertained to six tribunals—the Income Tax Appellate Tribunal (ITAT), the National Company Law Tribunal (NCLT), the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), the National Consumer Disputes Redressal Commission (NCDRC), the Appellate Tribunal for Electricity (APTEL), and the Armed Forces Tribunal (AFT). 

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Earlier, on May 11, 2021, September 4, 2021, and September 7, 2021, appointments had been made to NCDRC, APTEL and AFT, respectively. Subsequently, on September 11, 2021, the centre made appointments to ITAT, NCLT and TDSAT. In all, a total of 84 appointments have been made to various tribunals during 2020 and 2021, according to the affidavit.

The centre on September 16 had notified the Tribunal Rules, 2021, related to the conditions of service. The Rules prescribe the qualifications for appointment to various tribunals, salaries, allowances, procedures for resignation, leaves, pensions, etc.

On September 6, a bench headed by Chief Justice of India NV Ramana had observed that the Union government had no respect for the judgments of the Supreme Court and was now “emasculating tribunals” by not filling up vacancies in them. The Court came down heavily on the government for enacting the Tribunal Reforms Act, 2021, in an arbitrary manner, reducing the terms of members and chairman of tribunals and the law being identical to the “earlier law struck down” by the apex court.

Earlier, in the case of Roger Matthew, the constitutional validity of Section 184 of Finance Act, 2017, was assailed by the Madras Bar Association. However, the Constitution Bench upheld Section 184 of the Finance Act, 2017, which went on to strike down the Tribunal Rules 2017. Soon after that, a writ petition was filed (Madras Bar Association vs Union of India), assailing the validity of Tribunal Rules 2020 framed by the centre. A three-judge bench directed the centre to set up the National Tribunals Commission, along with several directions. Post this judgment, the Parliament passed the Tribunal Reforms Bill, 2021, wherein the same provisions were constituted that had been already struck down by the Supreme Court.

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Last year in August, the top court asked the solicitor general (SG) if it wanted all tribunals to be wrapped up as they were unable to function due to a massive shortage of manpower. It asked the SG to consult with competent authorities and inform the bench about appointments in tribunals.

In July 2021, the Supreme Court had struck down the provisions of Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, which had fixed the terms of members of various tribunals as four years. It stated that the decision of the government was irrational, arbitrary, and discriminatory. The Court pronounced its decision on the plea filed by the Madras Bar Association challenging Sections 12 and 13 of the Ordinance, and Sections 184 and 186(2) of the Finance Act, 2017, as amended. The Court had reserved its order on petitions challenging the constitutional validity of the ordinance, which sought to differ from its mandate for a five-year tenure to chairpersons and members of tribunals; also fixing the eligibility age at 50, which negated the Court’s order for allowing lawyers with 10 years’ experience to be in the zone of consideration.

Earlier on June 1, 2021, the apex court had directed that the process of constituting a SCSC had to be initiated at the earliest. It also passed directions not to issue any advertisement for participation of other eligible candidates’ appointment as members.

The Bombay High Court had on November issued notice on a PIL filed to air the grievances of several employees whose matters were pending before the Nagpur bench of the Maharashtra Administrative Tribunal for many years and no relief had come their way, in view of the indifference of Maharashtra in filling up both the vacancies of judicial members.

Also Read: Supreme Court says Centre hasn’t honoured its verdict in tribunal reforms case

Recently, the Lucknow bench of the Allahabad High Court had also expressed strong displeasure at the centre over non-appointment of presiding officers in various Debt Recovery Tribunals (DRTs) and DRATs for a long time. The High Court had sought a response from the Secretary, Union ministry of finance, on what was preventing the government from appointing presiding officers/chairmen in DRTs/DRATs, which were vacant for several months in the country.

A petition was filed in January last year seeking directions to fill the vacancies of chairman, member and other administrative staff at the Appellate Tribunal for the Prevention of Money Laundering Act. The petition was filed by advocate Amit Sahni who submitted that an RTI application filed by him revealed that out of the composition of one chairman and four members, the tribunal was functioning with only one member—who was also functioning as acting chairman. Hence, sufficient number of matters were not being taken up, and litigants, lawyers and public at large were suffering. Moreover, according to the RTI reply, the petitioner was informed that 2,822 cases of PMLA, 66 cases of SAFEMA, 270 cases of NDPS, 1,077 cases of FEMA and 1,134 cases of PBPT were pending before the tribunal.

—By Shivam Sharma and India Legal Bureau

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