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.

  • Dushyant Kishan Kaul
  • Sagarika Kaul


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.

1. The Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021, The Gazette of India, The Ministry of Law and Justice, Government of India (April 4, 2021), accessed on May 31, 2021
2. The Finance Act, 2017, The Gazette of India, The Ministry of Law and Justice, Government of India (April 4, 2021), accessed on May 31, 2021
3. ‘Govt. Issues Tribunals Reforms Ordinance’, The Hindu, (April 7, 2021), accessed on May 31, 2021 Also see, Tribunal Reforms Ordinance, 2021 takes effect: Appellate authorities in 9 laws replaced with High Courts’, Bar and Bench, (April 5, 2021), accessed on May 31, 2021
4. See generally, Alok Prasanna Kumar, ‘The Ordinance Route: Exception or Rule?’, (2018) 53(20) Economic and Political Weekly 10, 11. He mentions how ordinances are self-limiting, how their overuse affects stability and questions whether they are efficacious in unexceptional situations.

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

5. The Constitution (Forty-Second Amendment) Act, 1976, accessed on June 1, 2021
6. Aman Preet Dhingra, ‘Administrative or Judicial Tribunal’, (1988) 30(1) Journal of the Indian Law Institute 103, 103. Also see, Manoj Mate, ‘Elite Institutionalism and Judicial Assertiveness in the Supreme Court of India’, (2014) 28(2) Temple International Comparative and International Law Journal 361, 383-4

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

7. Rupesh Aggarwal, ‘Regularization of Indian Administration: Understanding the Challenges and Conundrums of the Indian Regulatory Mechanism’, (2017) 11 National University of Advanced Legal Studies Law Journal 201, 212-33. Also see, Venkatesh Vijayaraghavan, ‘The Doctrine of Exhaustion of Alternate Remedies: Convenience Rules’, (2001) 13 Student Advocate 1, 2
8. Manoj Mate, ‘Globalization, Rights and Judicial Review in the Supreme Court of India’, (2016) 25(3) Washington International Law Journal 643, 659. See generally, R.C. Saksena, ‘Adjudication by Tribunals in India: Landmark in the Field of Natural Justice’, (1995) 37(2) Journal of the Indian Law Institute 222, 223-30
9. (1987) 1 SCC 124
10. Aman Preet Dhingra, supra note 6, 104. Also see, K.I. Vibhute, ‘Administrative Tribunals and the High Courts: A Plea for Judicial Review’, (1987) 29 Journal of the Indian Law Institute 524, 528-30
11. (1997) 3 SCC 261
12. See generally, Mahendra P. Singh, ‘Administrative Justice in India: The Urgency of Reforms’, (2013) 1 SCC Journal 65, 74-8. Also see, Manoj Mate, supra note 6, 400, 411. Also see, Arun Roy V. and Vishnu Jerome, ‘Administrative Tribunals in India: A Welcome Departure from Orthodox’, (2000) 12 Student Advocate 60, 65-71
13. V. Nageswara Rao and G.B. Reddy, ‘Doctrine of Judicial Review and Tribunals: Speed Breakers Ahead’, (1997) 39 Journal of the Indian Law Institute 411, 417-23. They argue that giving this power to High Courts will lead to confusion. Expert bodies like tribunals were established to bring in technical expertise in adjudication, reduce court pendency and delays and dispense with inflexible judicial formalities. However, with this power, different High Courts will give different and inconsistent interpretations.
14. Civil Appeal No.3067 of 2004
15. See generally, Rishabh Shah and C. Nageshwaran, ‘Union of India v. R. Gandhi: Hard Case, Soft Law’, (2011-12) 5 Indian Journal of Constitutional Law 219, 224-7. Also see, Gautam Swarup, ‘Indiscriminate Tribunalization and the Exclusive Judicial Domain: An Analysis of the 42nd Amendment in the Light of Decisions of the Supreme Court’, (2012) 23(2) National Law School of India Review 97, 102-19
16. (2014) 10 SCC 1
17. See generally, Khagesh Gautam, ‘Political Patronage and Judicial Appointments in India’, (2017) 4(4) Indonesian Journal of International and Comparative Law 653, 718-9. Also see, Sheela Rai, ‘India’s Tryst with Independent Tribunals and Regulatory Bodies and Role of the Judiciary’, (2013) 55(2) Journal of the Indian Law Institute 215, 219-27

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.

18. (2020) 6 SCC 1
19. (2016) 5 SCC 1
20. K.C. Joshi, ‘Constitutional Status of Tribunals’, (1999) 41 Journal of the Indian Law Institute 116, 116-9
21. S. Rajendra Babu, ‘Contribution of the Supreme Court to the Growth of Democracy in India’, (2013) 6(2) National University of Juridical Sciences Law Review 193, 195
22. K.N. Goyal, ‘Development of Administrative Law in Post-Independence India’, (1984) 2 SCC Journal 26, 31

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 –

“(3) The Search-cum-Selection Committee shall consist of —
(a) the Chief Justice of India or a Judge of Supreme Court nominated by him–– Chairperson of the Committee;
(b) two Secretaries nominated by the Government of India –– Members;
(c) one Member, who––
(i) in case of appointment of a Chairperson of a Tribunal, shall be the outgoing Chairperson of the Tribunal; or
(ii) in case of appointment of a Member of a Tribunal, shall be the sitting Chairperson of the Tribunal; or
(iii) in case of the Chairperson of the Tribunal seeking re-appointment, shall be a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India: Provided that, in the following cases, such Member shall always be a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India, namely:––
(i) Industrial Tribunal constituted by the Central Government under the Industrial Disputes Act, 1947;
(ii) (ii) Tribunals and Appellate Tribunals constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993;
(iii) (iii) Tribunals where the Chairperson or the outgoing Chairperson, as the case may be, of the Tribunal is not a retired Judge of the Supreme Court or a retired Chief Justice or Judge of a High Court; and
(iv) (iv) such other Tribunals as may be notified by the Central Government in consultation with the Chairperson of the Search-cum-Selection Committee of that Tribunal; and
(d) the Secretary to the Government of India in the Ministry or Department under which the Tribunal is constituted or established –– Member Secretary.”23

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

23. The Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021, supra note 1. Also see, The Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021, PRS India, (April 4, 2021), accessed on May 31, 2021
24. Shubhansh Thakur, Concerns Around the Tribunals Reform Ordinance, Indian Constitutional Law and Philosophy, (May 16, 2021), accessed on May 31, 2021

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

25. This also brazenly contradicts the dictum in Ishwar Chandra v. Satyanarain, where the Supreme Court held that the presence of the majority of members (to mean those who have voting powers) is essential to conduct any meeting.
26. Shubhansh Thakur, supra note 24
27. ibid


With non-judicial members possibly facing external pressures and expert members often having rather narrow outlooks, the paramountcy of judges (sitting or retired) in tribunals should not be subverted through executive encroachments of this nature. Thus, although tribunals are essential, they can never be treated as effective alternatives to courts.28 Even in the appointment of members of tribunals, the significance of judicial opinion should not be diluted by an excessive political presence. The role of judges, especially in tribunals, should be supreme.29

28. K.M. Munshi, ‘Administrative Tribunals in Modern Democratic State’, (1958-59) 1 Journal of the Indian Law Institute 17, 20-1
29. Sheela Rai, ‘India’s Tryst with Independent Tribunals and Regulatory Bodies and Role of the Judiciary’, (2013) 55(2) Journal of the Indian Law Institute 215, 226-7
DUSHYANT KISHAN KAUL & SAGARIKA KAUL are both judicial law clerks to Hon’ble Judges at the Hon’ble Supreme Court of India. They can be reached at and