Undermining Judicial Primacy? A Comment on the Tribunal Reforms Ordinance, 2021

Dushyant Kishan Kaul and Sagarika Kaul explore the aspect of judicial primacy in regulating appointments to such quasi-judicial bodies.

Introduction

On April 4, 2021, the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance¹ (hereinafter referred to as the “2021 Ordinance”) was promulgated. Notified by the Ministry of Law and Justice, it has amended the Finance Act, 2017² (“2017 Act”) and sought to do away with a number of appellate tribunals and transfer their powers to pre-existing judicial bodies. Many appellate bodies stand dissolved, with the various High Courts being the proposed judicial entities to take over the workload.³ However, rather than examining the reasons why the use of ordinances⁴ are questioned in general, this article explores the aspect of judicial primacy in regulating appointments to such quasi-judicial bodies. It sheds light on certain problematic provisions of the ordinance, and how the same threaten the doctrines of judicial independence and separation of powers.

A combined reading of the provisions analyzed in the article show how they have had the effect of undermining judicial supremacy in matters of appointment. Whilst seeking to preserve the veneer of a dominant judicial role, whose importance has been repeatedly stressed by the Supreme Court of India (“Supreme Court”), the ordinance has, in effect, diluted the principle of judicial predominance in such bodies. More specifically, it equates retired judicial appointees with currently serving ones. Additionally, the decision of the Chief Justice of India in such appointments, which should otherwise be decisive, has been denuded of the finality that it is meant to carry. Through an incorrect application of some terms (such as ‘nominee’ and ‘casting vote’) the judiciary has been deprived of the authority in such matters. This article demonstrates the danger of inordinate administrative influences in areas that ought to be controlled by the judiciary.

Establishment of Tribunals in India: Relevant Judicial Pronouncements

Pursuant to the recommendations of the Swaran Singh Committee report, the 42nd Amendment Act of 1976⁵ was passed. Among other things, it inserted Article 323-A into Part XIV-A of the Constitution to empower the legislature to enact a law that provided for the adjudication of civil disputes by statutory administrative tribunals. ⁶

Despite the challenges⁷ they present, courts in India have largely encouraged the introduction of autonomous regulatory bodies, provided judicial supervision is not compromised.⁸ One of the seminal cases concerning the composition of these tribunals early on, was S.P. Sampath Kumar v. Union of India⁹. Here, the Supreme Court arrived at the conclusion that administrative tribunals were substitutes of High Courts. It thus allowed for Parliament to set up adjudicatory institutions that were viable alternatives to High Courts.¹⁰ This erroneous conclusion was eventually overruled by a seven-judge bench in L. Chandra Kumar v. Union of India¹¹. The salience of this decision is visible in its decisive observation that tribunals were neither substitutes nor could function by totally excluding the jurisdiction of High Courts, as they were only supplemental to higher courts. Any attempt to supplant their jurisdiction would thus violate the basic structure of the Constitution.¹² However, there have been concerns about granting this power of judicial review to strike down laws that are infringe the basic structure, to High Courts as well.¹³ In addition, it held that the decisions of these tribunals were subject to the review jurisdiction of the Division Bench of the High Court. It notably opined that a committee headed by the Chief Justice of India would ensure the selection of administrative members is impartial and based on their competence. Furthermore, in Union of India v. R. Gandhi¹⁴, the court upheld the power of the judiciary to alter the composition of the committee to ensure administrative independence.¹⁵ This position was reiterated in Madras Bar Association v. Union of India¹⁶ (“Madras Bar Association”) where the impugned National Tax Tribunal was quashed, as it sought to virtually replace the High Court. The court was opposed to having members of the civil service in judicial tribunals, for it would erode public trust and cause suspicion. Thus, the court has been successful in thwarting executive attempts to influence quasi-judicial appointments.¹⁷

Most recently, in Rojer Mathew v. South India Bank¹⁸, the court abrogated the committee which, in effect, had rendered judicial participation in appointments a mere formality. By relying on the decision in Supreme Court Advocates on Record Association v. Union of India¹⁹, the court held that members of the judiciary had to be appointed to foreclose the dangerous possibility of total and exclusive executive control. In fact, it rightly foregrounded the primacy of judicial members in such appointments, given their qualifications and experience in judging competence when compared to executive members.

The above-mentioned set of dictums make it abundantly clear that the administrative tribunals have the competence to become courts of first instance. They have, over time, become indispensable to expeditious and cost-effective justice.²⁰ Whether it be judicial or quasi-judicial bodies, their powers emanate from the will of the people.²¹ The power of administrative tribunals has rightfully been subjected to the superintendence of the High Courts and the Supreme Court.²² The 2021 ordinance is an attempt to de facto erode judicial independence in this respect.

Analyzing the 2021 Ordinance

One of the most troubling provisions of the 2021 Ordinance is Section 12, which amends Section 184(3) of the 2017 Act, dealing with the composition of the search-cum-selection committee. The amended provision reads as follows –

This committee is entrusted with the task of recommending names for appointment to the government. Apart from the Chief Justice of India (or his/her nominee) or a judge of the Supreme Court (with a casting vote), there is no judicial presence in this committee. The fourth member of the committee, who may consist of the outgoing Chairperson of that tribunal, or retired Supreme Court or High Court judges, has been argued to be sufficient to ensure judicial primacy in such appointments.²⁴

The reasoning behind the insertion of the aforementioned provision is specious, for three reasons. First, the committee proceeds on the fallacious premise that nominees (retired judges of the Supreme Court or High Courts). are analogous to regular judicial entities. It is a truism that retired members of the judiciary should not be placed at par with serving members. Second, if the Chief Justice is unable to attend the committee meeting, the decision of the committee is nevertheless valid, since there is no prescribed quorum for such meetings.²⁵ This is further protected by Section 184(8), which conveniently shields attacks on grounds based on absence of member/s or any vacancy in the committee. Third, if the Chief Justice, for some reason or the other, disagrees with the decision of the other members, the decision will nonetheless stand. This is because the casting vote of the Chief Justice can be exercised only in case of a total impasse.²⁶

Another blatant violation of the decision in Madras Bar Association is the very presence of Section 184(7). This provision requires the committee to recommend two names for the government to choose from. It totally ignores how the court had struck down an almost identical provision earlier. Since judicial primacy in appointments is integral, such executive discretion is not only unnecessary, but also unwarranted.²⁷