The decision to merge 8 of the existing 27 Tribunals to let only 19 remain, has stirred a hornet's nest in India.
Rationalisation of Tribunals in India
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- Tribunals, merged! The recently passed Finance Bill 2017 has proposed sweeping changes and overhaul of the functioning of tribunals. Eight existing Tribunals are now merged into other existing Tribunals. Ex: the Competition Appellate Tribunal (COMPAT) will now be merged into the National Company Law Appellate Tribunal [NCLAT]. So, appeals from orders passed by the CCI will now be heard by the NCLAT (a strange situation!)
- Why Tribunals? India has numerous “Tribunals” that look into matters pertaining to company law, environmental law, competition law, intellectual property law, employment disputes, censorship, taxation, customs, securities regulation, debt recovery, telecom disputes, consumer disputes, service issues pertaining to the civil and military personnel, claims against the railways and other regulatory disputes.
- Origin of Tribunals : These tribunals have proliferated ever since then Prime Minister Indira Gandhi’s infamous 42nd Constitutional Amendment Act, 1976 was enacted during the emergency. The Amendment, among other things, sought the creation of tribunals under the Centre or the State to adjudicate on certain issues that were till then under the purview of India’s independent judiciary.
- Problems with this Reform? The real problems with these amendments (merger and abolition of tribunals) are, (1) the poor drafting of the Bill – The Finance Bill aims to reform a total of 27 tribunals. Of these, it seeks to shut down eight by merging them with the 19 remaining tribunals. This is a difficult job as each tribunal is set up under a different Act of Parliament.
- Problems with this Reform (2) The fact that the Centre is taking for itself powers related to appointment, removal and qualification criteria of judges appointed to these tribunals. The important aspect of Section 179 of the Finance Bill is its intention to transfer huge powers from the Parliament to the government. Most of the 19 tribunals targeted by this Bill are manned by a mix of judicial and technical members and the qualification and appointment criteria for these bodies has been laid down by Parliament. The Finance Bill effectively gives bureaucrats of the central government the power to draft the qualification and appointment criteria for a multitude of tribunals.
- Problems with this Reform (3) Another provision – Section 180 – effectively fires judges from nine existing tribunals with three months’ pay and allowances. While there are provisions for the support staff to be absorbed into existing tribunals, there is no safety net for the tribunal judges. Legally speaking most of the legislations appointing judges to tribunals prohibit their service conditions from being changed after their appointments.
- When GoI is a litigant – While this proposal can lower administrative costs, ensuring specialisation and bringing in officials from diverse backgrounds will be imperative. This could pose a conflict of interest in cases where the government is a litigant. The rationalisation of tribunals is important at times, but this will lead to dilution of expertise and confusion.
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