Will the tribunals lose their independence?

The move to cut the number of tribunals by merging various of these quasi-judicial bodies may well be projected as a major reform by the Centre. Some aspects of this move—brought in through the Finance Bill 2017 on Tuesday—are intriguing. Apart from the questionable rationale behind the decision to merge some very disparate entities, the Centre is also seen usurping to itself more powers when it comes to the right to appoint/ remove the members of the various tribunals.

Some questions arise: Wouldn’t these moves make these tribunals weaker? Shouldn’t there be a clear separation of powers when it comes to the executive making quasi-judicial appointments? Isn’t there a conflict of interest with the government itself being party of dispute in many of these tribunals? Or, is that what the government wants so that it could have an indirect say in how disputes are resolved? There’s also the oft repeated question: why should these amendments, too, be put in the guise of a ‘Money Bill’?

“There will be uniformity in service conditions and pay structure of all those retired judges who are being appointed in all these tribunals. Where there is less work and there are two-three tribunals, that will now be done by one,” Finance Minister Arun Jaitley reportedly said in Parliament, moving the amendments as part of the Finance Bill 2017.

The FM may be right in bringing in uniformity in service conditions and pay structure of all those retired judges who are being appointed in all these tribunals. However, there’s more. As things stand now, the various terms of appointment and removal of members of the tribunals are clearly mentioned in the respective laws.

Through the new amendment though, it is being delegated to rules that have to be notified by the Centre—that is, not through Parliament. That is, the Centre will have a greater say in the appointment and dismissal of tribunal members, which may question the neutrality of those appointed. In fact, the Centre can now add more tribunals also without prior parliamentary approval.

“It has to be seen whether this amendment will pass the test for the separation of powers between the executive and the judiciary as set out by the Supreme Court in its various judgments,” says MR Madhavan, co-founder and President of PRS Legislative Research, a research body.

Madhavan points out that the Supreme Court in the Madras Bar Association versus the Union of India in 2014 had held that Appellate Tribunals have similar powers and functions as High Courts and hence matters related to appointment and tenure must be free from executive involvement. Also, he points out that most of the tribunals that are being amended include several in which the Centre would usually be one of the parties to the dispute such as those related to income tax, customs, railways and so on.

While it may be a good idea to subsume various tribunals, the point is whether the various tribunals have the same synergies—and whether the merger will increase efficiencies or just make systems inefficient. Let's consider some of the mergers that appear to be odd.

The amendment suggests the merger of the Airport Economic Regulatory Authority Appellate Tribunal (Aeraat) and the Cyber Appellate Tribunal with the Telecom Dispute Settlements and Appellate Tribunal (TDSAT).

The Cyber Appellate Tribunal—that was formed under The Information Technology Act, 2000—into grievances due to an order of an adjudicating officer under this Act. The TDSAT was formed under the 1997 law that also created the Telecom Regulatory Authority of India to regulate the telecom sector. TDSAT’s main functions are to adjudicate disputes between a licensor and a licensee; between two or more service providers; between a service provider and a group of consumers and so on.

Still, these two tribunals may share some common grounds.

However, the Airport Economic Regulatory Authority was formed to regulate tariff and other charges for the aeronautical services rendered at airports and to monitor performance standards of airports. And, Aeraat adjudicates disputes and dispose of appeals in these matters.

Now, aren’t the areas of expertise in these areas different? Is it fair to expect the members of the tribunal to have equal expertise in all these differing fields? Would this move create efficiencies in the structure of the merged entity, or just the reverse? All these are serious issues.

Such questions also arise on the move to merge the Competition Appellate Tribunal that deals with anti-competition matters with the National Company Law Appellate Tribunal that mainly looks into governance of companies.

Finally, should all these changes be brought in as a money bill? “The tribunals have nothing to do with Money Bills,” says Madhavan. He says the Supreme Court should come out with principles that bring clarity and guidelines on what should be classified as a Money Bill and what shouldn’t.