INTRODUCTION
The Supreme Court in Rojer Mathew v South Indian Bank Ltd and Ors[1] landed a big blow to the Central Government when it struck down the rules framed under Section 184 of the Finance Act, 2017, reaffirming the established principle of judicial independence from the vice of executive interference. Coming at a time when there is a sense of excessive executive control over the judicial autonomy primarily due to controversy in appointment of judges, most notable being the controversy in the appointment of Justice Kurein Joseph to the Supreme Court, the ruling is of significant importance, both in terms of autonomy of the judiciary and preserving the faith of the people in the sacred institution.
In the instant case, although a careful perusal of the precedents suggests the redundancy on the clarity of the autonomy of the judicial bodies, the same about the quasi-judicial bodies is something to be cherished. Moreover, the Court while in its order also emphasized on, inter alia, the importance of establishing an independent forum foreseeing the quasi-judicial bodies like Tribunals in order to maintain uniformity in their modus operandi and bring a sense of independence from the executive control.
INVALIDATING EXECUTIVE INTERFERENCE
The 5-judge Constitution Bench led by CJI Ranjan Gogoi held that the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules, 2017 framed by the Central Government suffered from various infirmities and accordingly struck down the rules as unconstitutional in its entirety. The Bench however, upheld the constitutional validity of Section 184 of the Finance Act giving powers to the Government to frame rules vis-à-vis appointment and service conditions of members of various Tribunals. The Court directed the government to frame new rules and until such rules are framed, the appointments to the respective tribunals would be made according to the provisions of the parent Act under which such tribunals were constituted.
Directing the government to take advice from the Ministry of Law and recommendations of the Law Commission Report, the government is required to present a report to the Apex Court regarding the formulation of new rules.
NEED FOR A TRIBUNAL COMMISSION
Often is the case that the tribunals are affected by the executive control owing to them being, inter alia, dependent upon the government/ministry for financial, administrative or any other support which thereby defeats the whole purpose of their fairness and independence, the government frequently being the litigant before the tribunal. Keeping such infirmities of the current tribunal regulatory framework in mind and backed by the recommendations of the 272nd Law Commission Report[2] and the Supreme Court’s observation in the instant case, it’s time for the establishment of a separate single regulatory framework, overseeing the entire Tribunal system in the country, bringing all such Tribunals to parity.
The need for independent Tribunals as the forums for redressal mechanisms was first realized in the United Kingdom when the Sir Andrew Leggatt Committee (2001) highlighted the inherent deficiencies of a non-uniform Tribunal system. Thereafter, a Tribunal service was created in 2006 which was later merged with the Courts service in 2010, resulting in the formation of a single cohesive judicial structure and service for the country.[3]
However, international inspiration is redundant as in L. Chandrakumar v Union of India,[4] (“L. Chandrakumar”), the Supreme Court envisaging for the establishment of a single nodal agency/ministry for monitoring the entire Tribunal framework in the country observed that it would be legally incorrect to allow the supervision of a Tribunal by a department/ministry which is a party before it and would contravene the maxim ‘nemo judex in causa sua’.
Further, in Madras Bar Association v Union of India,[5] the Supreme Court upheld the ratio of Union of India v R. Gandhi[6] and relied on the Tribunal structure prevalent in United Kingdom to observe that Tribunals in India would not achieve full independence unless vide ranging reforms in the framework are undertaken, like those in the United Kingdom and as pointed out in the L. Chandrakumar case.
Therefore, for an independent Tribunal structure, it is important the Tribunals are given adequate financial independence notwithstanding which ministry or department functions as the nodal agency overseeing the Tribunal regulatory framework. The Tribunals must be in a position not to approach such nodal agency for its day to day requirements like recruitment of staff, computerisation, infrastructure building, etc. It will not only ensure that the Tribunals are not under the financial control of the Department, who is a litigant before them, but it may also enhance the public faith and trust in the mechanism of Tribunals eventually bringing a desirable uniformity in the functioning of the Tribunals.
A QUASI-JUDICIAL PARADIGM
Although the idea for an independent Tribunal commission may seem blurry to the keen legislative observers with the intricacies and legal nuances involved, a recent development in the ADR field, another quasi-judicial mechanism bolsters the said idea, i.e. the Arbitration and Conciliation (Amendment) Act, 2019. The Amendment calls for the establishment of an Arbitration Council of India (ACI), an independent body to frame policies and guidelines for the establishment, operation and maintenance of uniform professional standards in respect of all matters relating to arbitration in India.
Considering the growing impact and increased adoption of ADR mechanism by the parties, the introduction of the ACI was much required to streamline the arbitration mechanism in India. Thus, an idealistic example is there to be seen and establishment of an independent body to oversee the functioning of the Tribunals would not, in any case, open some kind of pandora’s box.
CONCLUSION
Independence of judiciary forms the basis on which the entire judicial system rests and it is of paramount importance that, with time, necessary steps are adopted for preserving such independence. It is disheartening to see that in spite of the Supreme Court’s directions the government has not taken any step to realize the idea of a single nodal agency for Tribunals thereby, endangering and compromising the independence of the entire quasi-judicial system.
With the Apex Court reiterating its stance on the importance of such body, one expects the government would, this time, pay heed to the directions outlined by the Court and come up with a plan for establishing an overseeing body to streamline the system and protect the independence of quasi-judicial bodies as it has done in the ADR mechanism.
[1] Rojer Mathew v South Indian Bank Ltd and Ors, Civil Appeal No. 8588 of 2019 (India).
[2] Assessment of Statutory Frameworks of Tribunals in India, Report No. 272, Law Commission of India, Oct 2017 (India).
[3] DREWRY, GAVIN, THE JUDICIALISATION OF ADMINISTRATIVE TRIBUNALS IN THE U.K: FROM HEWART TO LEGGATT 28 (TRAS 2009).
[4] L. Chandra Kumar v Union of India, (1997) 3 S.C.C. 261 (India).
[5] Madras Bar Association v Union of India, (2014) 10 S.C.C. 1 (India).
[6] Union of India v R. Gandhi, Civil Appeals No. 3067 of 2004 With No. 3717 of 2005 (India).
