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Analysis: Tribunals Reforms Ordinance, 2021

Tribunal[1] is an apparently judicial institution aimed at settling issues with concern to administration or tax subjects. It is a set of people or an institution of people distinctly selected by the people in analyzing the legal problems of specific types. It is a special court designed by the Central Government in redressing the administrative legal problems. It performs functions of negotiating disputes between parties, critically assessing the decisions of both the parties and also functions as a decision-making body.

The provision of the Tribunals was introduced in the 42nd Amendment Act, 1976 by the Swaran Singh Committee.
The two articles pertaining to the working of the Tribunals are
  • Article 323-A dealing with Administrative Tribunals.
  • Article 323-B dealing with other matters.

Tribunals provide a platform to hear cases falling under the jurisdiction of armed forces, environment, taxes and administration. They assist in minimizing the workload of already pending cases before the Court of Law by establishing itself as a forum for Justice Mechanism with an aim of the principle of nature of Justice.

Since 2015 The Government of India has been working on rationalisation of the Tribunals. The Finance Act of 2017, seven tribunals were either merged on the basis of their utilitarian affinity or were demolished absolutely, thereby reducing the number from 26 to 19. On 13th February, 2021, the Government of India represented by the Finance Minister of the State, Anurag Singh Thakur, introduced a Bill to terminate the Tribunals in which the public was not engaged as a Litigant.

The aim of the bill as stipulated was,  With a view to streamline tribunals, The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 is proposed to be enacted to abolish certain tribunals and authorities and to provide a mechanism for filing appeal directly to commercial court or The High Court as the case may be'�. Finally, on 4th April, 2021, the Ministry of Law and Justice notified the The Tribunals Reform (Rationalisation and Conditions of Service), Ordinance, 2021 promulgated by the President under Section 123(1) of the Constitution of India.

Tribunals holds power above High Courts?
Les Dilationess Semper Exhorret'�[2] is a legal maxim which means that law always abhors delays'� and this is the root cause for the establishment of the Tribunals. The Tribunals aim at speedy redressal of the cases. The pile of pending cases unheard by The Court of Law are transferred in Tribunals so as to provide natural justice. However, the decision binding factor lies in the hands of the High Courts and thus, Tribunals can never supersede the functional supremacy of the High Courts.

The Seven Judge Bench of the Supreme Court held the opinion that the premier decision making body is the High Court and that Tribunals will act under the supervision of the High Courts. The predominance of the High Court over the Tribunals and other systems of Law is the basic structure of the High Court.

The Administrative Tribunals were regarded as a systematic proxy for the High Courts as per the 218th Report of the Law Commission, 2008. The Tribunals were considered to be appropriate forums to provide Justice in an efficient and fair manner. The Report verified the conceivement of the Tribunals as an Alternative mechanism for the resolution of the cases.

The same was held in the famous case of L. Chandra Kumar vs. Union of India, 1997[3] case where the Supreme Court held that that judgement of the tribunal should be held for review by two judges in the High Courts where the Tribunal is located. The decision of the Tribunal cannot be held as binding until and unless reviewed by the Judges of the High Court. It even reciprocated the order in S.P. Sampath Kumar case where the Supreme Court held that a Tribunal could replace the role of High Courts. The Supreme Court overruled the idea that Tribunals could replace the High Courts.

The Ordinance has amended the Finance Act, 2017 to make the Act inclucisve of the search cum selection committees and the tenure of the office. As stated in Finance Act, 2017, It empowered the central government to notify rules on qualifications of members, terms and conditions of their service, and composition of search-cum-selection committees for 19 tribunals (such as Customs, Excise, and Service Tax Appellate Tribunal)'�.

Section 12 Clause (1) refers to the Amendment of Act 7 of the Finance Act, 2017. Subsection (2) states about the Appointment of the Chairperson and Members of the Tribunal by the Central Government in regards to the recommendation of the Search-cum-Selection Committee. The Clause postulates as such,[4] The Chairperson and Members of a Tribunal shall be appointed by the Central Government on the recommendation of a Search-cum-Selection Committee (hereinafter referred to as the Committee) constituted under sub-section (3), in such manner as the Central Government may, by rules, provide'�.

The Search-cum-Selection Committee shall comprise as enumerated in Subsection (3):
  • Chairperson- The Chief Justice of India or a Supreme Court Judge nominated by the Chief Justice of India with a right to the casting of votes
  • Two Secretaries appointed by the Central Government.
  • A sitting or outgoing retired Judge of the Supreme Court or a retired Chief Justice of a High Court to act as the Chairperson.
  • The Secretary of the Ministry under whose jurisdiction the Tribunal is constituted with no right of casting votes.
The term of Office
  • Chairperson- for 4 years or till the attainment of 70 years of age.
  • Other Members- for 4 years or till the attainment of 67 years of age.
Furthermore, the Ordinance postulated the establishment of the National Consumer Disputes Redressal Commission constituted under the Consumer Protection Act, 2019 under the ambit of the Finance Act, 2017. The Ordinance also erases off four bodies from the purview of the Finance Act, 2017, which are:
  • The Appellate Tribunal Authority under The Airport Authority of India Act, 1994
  • The Appellate Board under The Trade Marks Act, 1999
  • The Authority of Advance Ruling Board constituted under Income Tax Act, 1961
  • The Film Certification Appellate Authority under The Cinematograph Act, 1952.
The Nine Laws Amended for the transfer of functions of the key Appellate Bodies to the High Courts are:
  • The Cinematograph Act, 1952
  • The Copyright Act, 1957
  • The Customs Act, 1962
  • The Patents Act, 1970
  • The Airport Authority of India Act, 1994
  • The Trade Marks Act, 1999
  • The Geographical Indications of Goods (Registration and Protection) Act, 1999
  • The Plant Varieties and Farmers' Rights Act, 2001
  • The Control of National Highways (Land and Traffic) Act, 2002.

Reforms Made
The Reforms[5] made under the New Ordinance were as follows:[6]
  • The Cinematograph Act, 1952- The Appellate Tribunal dealing with cases under the jurisdiction of this Act has been dissolved and now the concerned High Court shall be acting under its jurisdiction. As per Section 3 Clause (b) of the Ordinance in regards to The Amendment of Act 37 of 1952, states,  in section 5C, (i) for the word Tribunal'�, at both the places where it occurs, the words High Court'� shall be substituted'�. Clause (e) also mentions, in sections 7A and 7C, for the word Tribunal'�, wherever it occurs, the words High Court'� shall be substituted'�.
  • The Copyright Act, 1957- The Appellate Tribunal hearing the cases as against the Registrar of Copyrights is now substituted with the Commercial Courts as such in hearing the appeals as stated in the Ordinance in The Amendment of Act 14 of 1957. The Commercial Courts described herein as per the Ordinance is highlighted in the Section 3 Subsection (2) of the Ordinance as, Commercial Court'�, for the purposes of any State, means a Commercial Court constituted under section 3, or the Commercial Division of a High Court constituted under section 4, of the Commercial Courts Act, 2015'�.
  • The Customs Act, 1962- The Ordinance makes Amendments in Act 52 of 1962. The Ordinance replaces the power of hearing appeals against the remarks of the Customs Authority from Appellate Authority and has vested the power to the High Court. Section 5 Clause(1) states, in sub-section (1), for the word Appellate Authority'�, at both the places where they occur, the words High Court'� shall be substituted'�.
  • The Patents Act, 1970- In Amending Act 39 of 1970, the Ordinance abolishes the Appellate Tribunal hearing appeals from Controller General of Patents, Designs or Trademarks or the Central Governments and endowed the powers to the High Court. According to Section 6 of the Ordinance, Clause (a), (b) and ( c), in Section 52, 58 and 59 Sections 58, 59, 64, 71, 76, 113, 117A, 117E, and 151. Sections 116, 117, 117B, 117C, 117D, 117F, 117G, and 117H will be removed from the bill'�.
  • The Airport Authority of India Act, 1994- The power of hearing appeals against the Eviction Officer rests with the High Court since the Appellate Tribunal under the jurisdiction has been dissolved in the Amendment of the Act 55 of 1994. The Central Government also holds power in dealing cases or disputes in consonance to properties left at the airport premises by unauthorised users. Section 7 Clause (b) of the Ordinance specifies, in section 28E, for the word Tribunal'�, at both the places where it occurs, the words Central Government'� shall be substituted'�.
  • The Trade Marks Act, 1999- The power of the Intellectual Property Appellate Board (IPAB) shall now stands invalid hearing appeals under this Tribunal and as such the powers now lies with the High Court as per the Ordinance dealing with the Amendment of Act 47 of 1999. The trademark case appeals against the Registrar of TradeMarks will be decided by the High Court. Section 8 of the Ordinance, claims that In Sections 10, 26, 46, 47, 55, 57, 71, for the word tribunal'�, the words Registrar or the High Court, as the case may be,'� shall be substituted'�.
  • The Geographical Indications of Goods (Registration and Protection) Act, 1999- The Appellate Body under this jurisdiction has also been dismissed and the powers lies under the jurisdiction of the High Court in dealing appeals under the Amendment of Act 48 of 1999. As per Section 9 of the Ordinance, in section 19, for the word tribunal'�, the words Registrar or the High Court, as the case may be,'� shall be substituted'�.
  • The Plant Varieties and Farmers' Rights Act, 2001- The Appellate Tribunal under this jurisdiction has been pulled down under the Amendment of the Act 53 of 2001. The High Court has now been empowered with the jurisdiction of hearing appeals against verdicts of Protection of Plant Varieties and Farmers' Rights Authority and the Registrar of Plants Rights Registry. As per Section 10 of the Ordinance,  in Sections 56 and 57- for the word Tribunal'�, wherever it occurs, the words High Court'� shall be substituted'�.
  • The Control of National Highways (Land and Traffic) Act, 2002- The Airport Appellate Tribunal has been replaced by the principle of Civil Court of Original Jurisdiction in a district along with the Ordinary Original Civil Jurisdiction power of the High Court under the Amendment of the Act 13 of 2003. Section 11 of the Ordinance sets down, in Section 14- An appeal from any order passed, or any action taken, excluding issuance or serving of notices, under sections 26, 27, 28, 36, 37 and 38 by the Highway Administration or an officer authorised on its behalf, as the case may be, shall lie to the Court'�.

Critical Analysis
The implemented Ordinance has been described by the Central Government as a step in streamlining' the Tribunals. The Ordinance aims at consolidating the various Tribunals under a single jurisdiction to provide an efficient justice system and faster resolution of cases. The monetary expenses of the public litigant would also diminish with the removal of certain Tribunals. As a matter of fact, in contrast to the claims made by the Central Government, the competency of the Tribunals have shown a decrement in conferring fair justice and on top of it due to the New Ordinance, there has been an increase in the pendency of cases.

The scraping down of Tribunals as an additional layer of litigation'� has placed the new Ordinance in a debatable position. Law requires specialisation in dealing with the issues in the Court of Law, and Tribunals perform a specialized role in dealing cases with specialized knowledge. The Tribunals hold an important aspect in redressing issues which cannot even be dealt with by the Court of Law due to the sensitivity of the matter.

The Tribunals are formed and structured with formulated skills and techniques in dealing with complicated matters providing just decisions. Taking into consideration the Administrative Tribunals, they perform an interfunctional role in dealing with the cases of issues pertaining to the case along with managing an administrative role. Administrative Tribunals contemplate the importance of handling cases in consonance with the technicalities and structural pattern along with the public interest at large. The Supreme Court of India also acknowledged the fact that certain cases require officials with certain specific skills and such skills are possessed by the members of the Tribunals, thereby reducing the Tribunals will lead such skills into futile.

The Madras Bar Association[7] moved a petition in the Supreme Court on 23rd April, 2021, stating that, Tribunals Reforms Ordinance is an Act of Legislative Overruling'�. The Three Judge Bench comprising Justice L. Nageswara Rao, Justice Hemant Gupta and Justice Ravindra Bhatt heard the case challenging the Ordinance. The main contention raised by the Madras Bar Association was that, the reduction in the tenure of the Chairperson and the Tribunal Persons to 4 years is in direct contrast to the directions laid down by the Supreme Court postulating the minimum tenure to be 5 years. It states that it is impermissible and is ultra vires from the jurisdiction of the Ordinance'�.

Justice Hemant Gupta remarked for the contention as stated, "In our November 2020 judgement, we said the 2020 Rules cannot come in with retrospective effect and that all appointments made before shall be governed by the parent Act. To overrule this, they have introduced sub-section (11) from 2017. Now the Union of India will say that because of this, Kudrat Sandhu and the November 2020 judgement stands overruled. That is what retrospectivity is- All appointments between May 26, 2017 till the notified date in 2021. It is a well-known jurisprudence in tax law also that there is always power to legislate with retrospective effect...The notified date is April 4 and its applicability is retrospective from 26 May 2017. We can't physically go back to 2017 and turn back the clock. We have to see the position on April 4 to find out if it is a valid law".

Law Commission's 245th Report stated the requirement of efficient and skilled judges in handling the cases due to a long pending line of cases. In such a situation the transfer of cases to various Tribunals with members of specialized roles would lead to formulated system of dispute resolution and meting out of justice in a systematic manner.

Thus, the Tribunals Reforms Ordinance, 2021 brought along with it various pros and cons. The positive outcomes included the consolidation of the Tribunals and the reduction in the litigants exchequer along with the Law delivered under a single jurisdiction of the Court of Law. While, on the other hand, there exist some loopholes such as the overruling nature of the Supreme Court directives and the abolition of segregated Justice providing forums. The Ordinance holds its integral position in the Justice system and brings into light the is Justice Delayed Is Justice Denied�.

  1. John Bouvier, A Law Dictionary', 1856
  2. Riya Kumar, An Analysis of the Tribunal Reforms Ordinance, 2021, 2021
  3. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
  4. The Gazette of India, The Tribunals Reforms (Rationalisation And Conditions Of Service) Ordinance, 2021, 2021.
  5. Ayushi Suman, The Tribunals Reforms (Rationalisation And Conditions Of Service) Ordinance, 2021, 2021.
  6. Saransh Chaturvedi, '�The Central Government promulgated the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, 2021.
  7. Meher Dutt, '�Tribunals Reforms Ordinance An Act of Legislatively Overruling Supreme Court Decision; Has To Be Struck Down', 2021

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