In a strong message to the government that appointments to tribunals and their functioning should remain independent of the executive's influence, the Law Commission of India has recommended that a Committee led by the Chief Justice of India should be in charge of the appointments of Chairman, Vice-Chairman and Judicial Members of the various central tribunals, which form a pillar of the country's justice delivery system.
“While making the appointments to the Tribunal, it must be ensured that independence in working is maintained,” the report of the Commission, led by former Supreme Court judge, Justice (retired) B.S. Chauhan, said in its report to the government.
Specialised role
The tribunals perform an important and specialised role in justice mechanism. They take a load off the already over-burdened courts. They hear disputes related to the environment, armed forces, tax and administrative issues
The Commission has suggested a common nodal agency, possibly under the Law Ministry, to both monitor the working of the tribunals and to ensure uniformity in the appointment, tenure and service conditions for the Chairman, Vice-Chairman and members. As of now, tribunals function under the very government department which may be a litigant before them, and probably, against which they may have to pass orders.
Every order emanating from the tribunal or its appellate forum, wherever it exists, attains finality, the Commission recommended.
HC power to review
In a marked departure from its earlier stand, the Commission recommended the restoration of the High Courts’ power of judicial review over the decisions of the tribunals.
“The power of judicial review conferred on the High Courts is same as that of the Supreme Court, which is a basic feature of the Constitution and tinkered with only by amending of the Constitution,” the report said.
It said parties should be allowed to challenge a tribunal order before the Division Bench of the high court having territorial jurisdiction over the tribunal or its appellate forum. Presently, parties are deprived of an opportunity to move high courts concerned against the orders of some tribunals and have to move the Supreme Court directly.
The Commission, in this regard, specifically points to the case of the Armed Forces Tribunal (AFT). It recommended that in disputes in which the AFT has jurisdiction, “parties must have a right to approach the high court under Article 226 for the reason that a remedy under Article 136 is not by way of statutory appeal”. It, however, points out that the exact issue is pending for consideration before the Supreme Court.
The Commission said tribunals must have benches in different parts of the country so that people of every geographical area may have easy access to justice.
“Ideally, the benches of the tribunals should be located at all places where the high courts situate. In the event of exclusion of jurisdiction of all courts, it is essential to provide for an equally effective alternative mechanism even at grass root level. This could be ensured by providing State- level sittings looking to the quantum of work of a particular tribunal. Once that is done, the access to justice will stand ensured,” the Commission said.
It further noted that reappointment of chairman and others compromises the independence and fairness of the tribunal.
“One may be inclined to decide matters in a manner that would ensure their reappointment,” the report said.
In its report titled 'Assessment of Statutory Frameworks of Tribunals in India', submitted to the Law Ministry on Friday, the panel said, “though the disposal rate of the tribunals in comparison to the filing of cases per year had been remarkable — 94% — the pendency remains high”.
