Tribunal Rules, 2020: Reinforcement of executive dominance

1. Introduction

The present paper aims to analyse the Tribunal, Appellate Tribunal, and other Authorities (Qualifications, Experience, and other Conditions of Service of Members) Rules, 2020 which were passed by the Ministry of Finance. The analysis will be primarily done by looking at how the rules have responded to Supreme Court Decision in the case of Rojer Mathew vs South Indian Bank and others which was passed to struck down the 2017 version of these rules and along with that analyse how these rules address the issues of executive dominance, independence in functioning of tribunals, separation of power etc. The paper would also compare the 2020 version of rules with the earlier version of 2017 and would try to track the differences and see how far these rules have addressed the loopholes which were pointed out in the 2017 version. After the discussion on rules of tribunals, the paper will provide an overall understanding of how tribunals function today and if they align with the purpose for which they were created. Lastly, the paper aims to provide some suggestions and reform measures which can be useful for implementation in the functioning of tribunals.

2. Administrative Tribunals

Administrative Tribunals are adjudicatory bodies which lie outside the sphere of the traditional judicial system. They have the quasi-Judicial authorities given to them under the constitution. The provisions from the constitution which govern administrative Tribunals are Article 323-A and Article 323-B. The functioning of tribunals requires them to have same public confidence and independence like judiciary so that public and other authorities completely rely upon the judgments delivered by the tribunals. This is the reason why the Administrative Tribunals Act, 1985 contains strict provisions to ensure this requirement of the tribunals. The court in the case of P. Sampath Kumar vs Union of India[1] also highlighted the requirement of having a senior judge as the chairperson of the tribunals and the judgment also laid out that they also need to be in the appointment committee of the tribunals. The other case of R.K. Jain vs Union of India[2] also talks about having judges in the tribunals and lays out that independence of tribunals is also must maintain. Finally, the case of L. Chandra Kumar vs Union of India[3] goes to the extent of claiming that the tribunals can very well replace high courts provided they follow all the constitutional norms in their functioning. These cases highlight the importance of tribunals to be independent to ensure that they function properly and for the purpose for which they were formed.

3. Analysis of Tribunal Rules, 2017 with reference to the case of Rojer Mathew vs South India Bank

Tribunal, Appellate Tribunal, and other authorities (Qualification, Experience, and other conditions of service of members) Rules, 2017 were passed by the Ministry of Finance through the power they had under Section 184 of the Finance Act, 2017. These rules were applied to various tribunals (19 in total) for example CAT, NCLAT, SAT etc. These rules were later in the case of Rojer Mathew vs South Indian Bank and others[4] declared as being unconstitutional. The court provided various reasons with regards to same. The court found out that in the 2017 version of the rules, the central government was given the power to declare non-judicial members as presiding officers of Tribunals and they can be given other authorities as well and court held that such a provision is impermissible. Further, there was no differentiation amongst the judges of District Courts, High Courts and Supreme Courts for the purpose of appointment as the presiding officer of the tribunal which again was also not allowed.  There were other areas as well where the tribunal was left at the mercy of the centre like for the purpose of removal of the members of the tribunals. Such provisions in the rule devaluate the legitimacy of tribunals and targets their independence. Rule 4(2) in the Tribunal Rules also directly targeted the concept of Separation of powers by laying out that Secretary of the concerned Ministry or the department of the government under which the Tribunal is constituted shall be the chairman of the search cum selection committee of the tribunal. This again gives more power to the legislature as opposed to giving this power directly to the tribunal. Further provisions also demanded the nominees of the central government and other bureaucrats to be part of the abovementioned committee. This limits the role or importance of Chief Justice and hence their role is left to be of a tokenistic value. The conclusion which we reach through this kind of provisions is the presence of executive dominance and undervaluation of the powers of the tribunals. The court in the Rojer Mathew case[5] only cited another case of Supreme Court Advocated on-record Assn. v. Union of India (Fourth Judges Case)[6] to highlight the role and importance of judiciary and its independence. The court also cited the case of Union of India v R Gandhi, President, Madras Bar Association[7] to investigate the ideal constitution of a tribunal. The court found that in the present case which dealt with the constitution of NCLT/NCLAT tribunal under Companies Act that in the selection committee it is important to have a pivotal role of the judiciary. The table below shows how the court changed the constitution of the selection committee to ensure more say of the judiciary. It is important to note that here in the present case it is Ministry of Finance because the dispute concerns the constitution of NCLT, but it will change as and when the Tribunal and relevant Ministry changes.

Through the analysis of the rules and the precedents, the court finally came to the conclusion that the rules are in fact designed in a manner which will go on to establish the say of executive or rather dominance in the administrative tribunals.

4. Addressing the judgment through the new rules of 2020

The new rules were primarily aimed to take into consideration the limits of 2017 rules and amend the rules and to take into account the main judgment in the case of Rojer Mathew[8] and amend them enough to get done with all the criticisms which were given in the case. Starting with the Selection committee, the new rules require the selection committee to consist of Chairperson/ Chairman/ President of the concerned Tribunal, a judge and two secretaries to the government of India. This gives an upper hand to the judiciary in selection of the members of the tribunals. However, there was no change in the new rules with regards to a non-judicial member being the chairperson of tribunal. So, the upper hand of the judiciary will again be there if the chairperson is not a judicial member which will be violative of the Rojer Mathew case the lacunas of which 2020 rules are supposed to address. To illustrate the concept of Selection Committee further, the table below draws the comparison with regards to how the selection committee under 2017 Rules looks when compared to a selection committee which is formed under the 2020 Rules.

It can be very clearly observed in this table that apart from the removal of the nominee of the Central Government, nothing else has changed, the composition highlights the presence of executive dominance. The new rules also prescribe the same composition for the removal as well in the sense that search and selection committee have the power to recommend removals as well so we can say that executive dominance still flourishes there as well. One change which slightly reduces power of the central government is the removal of Rule 4(2) which means that there is no need to have the secretary to central government in the search cum selection committee. Also, earlier under the 2017 rules central government had the power to relax certain rules which it no longer possesses under the 2020 rules. To address the concern of equality among judges at various level for appointment at the tribunal, the 2020 rules replace the word ‘Judge of a High Court’ with ‘Chief Justice of High Court’. Like this, there were other miscellaneous changes as well such as giving a four years term to the members of tribunals rather than three years term which was envisaged in 2017 rules.  Further, the members are also not eligible for re appointment after their retirement from the tribunal as such a clause could have inflicted upon the independence in the sense that the members could have given biased judgments in order to ensure their re-appointment into the tribunal.

5. Conclusion

The main concerns of the Rojer Mathew case were to ensure the independence of the tribunals and to uphold the guidelines for tribunals which were set out in Fourth Judges case and Madras Bar Association case. While comparing the changes which have been made in the 2020 rules, we can see with regards to selection committee and removal committee that despite of the minor changes advanced, not much has been done to decrease the influence of the executive and it still persists. Some changes done as highlighted above are very minor with regards to the fact that how 2017 version of the rules was declared unconstitutional. The substantive flaw seems to have been intentionally reinforced because executive wishes to have upper hand always. The judiciary in the new rules also only has a tokenistic value and not real say while appointment, removal etc. The court gave very specific directions in the Rojer Mathew case which have not been followed directly, only a kind of attempt has been made to make the 2020 rules seem that they are following all the guidelines given by the court. Apart from this, in R Gandhi case, some other concerns with regards to the functioning of the tribunals were also highlighted which were that funding of tribunals should be directly from the Ministry of Law and Justice and there should not be any other Ministry which can act as the parent body of tribunal. The sole purpose behind this was to ensure the financial independence of the tribunals. The other concerns were regarding the removal of chairperson of the tribunals, the court in this case laid down that the removal should only be done after consultation with the Chief Justice. So, most of the larger or graver concerns were not kept into mind while the formation of Tribunal, Appellate Tribunal, and other Authorities (Qualifications, Experience, and other Conditions of Service of Members) Rules, 2020 and the only factor which seems to have been kept in mind was that of advancement of the role of the executive and its dominance. The only solution to this can be the amendment to these rules or formation of new rules altogether which address all the concerns as a whole rather than giving changes in bits and pieces which would in reality ensure the cause of independence of the tribunals.

[1] 1987 AIR 386, 1987 SCR (1) 435

[2] LPA No.369/2018

[3] 1997 (2) SCR 1186

[4] W.P.(C) No. 279/201

[5] Ibid.

[6] WRIT PETITION (C) NO. 14 OF 2015

[7] CIVIL APPEAL NO.3717 OF 2005

[8] Ibid.