This article is written by Pranav Sethi, from SVKM NMIMS School of law, Navi Mumbai. This article analyses the formation of the National tribunals Commission in light of the case of R Subramanian vs UOI.

Introduction 

“I believe that an independent judiciary is the crown jewel of our constitutional republic.”               -Brett Kavanaugh

The tribunals were established to relieve the Courts of their burden by allowing practitioners and experts in the tribunal’s jurisdiction to deliver quick decisions. The Apex court instructed the Centre to establish the National tribunals Commission (NTC), which will serve as an autonomous body to oversee recruitment and the operational and infrastructure purposes of tribunals throughout the country.

The Supreme Court emphasized the importance of ensuring that tribunals carry out their judicial duties without intervention from the executive branch, either knowingly or unknowingly. Until the National tribunal Commission is formed, a separate division of the Ministry of Finance will be formed to fulfil the interest of tribunals. A bench led by Justice L Nageswara Rao said that establishing such a commission would improve the reputation of tribunals and instil trust in the minds of litigants, but that relying on the parent department for all of their needs would not “extricate them from the executive’s control.”

The three-judge bench comprising Justices L. Nageswara Rao, Hemant Gupta, and S. Ravindra Bhat had released expansive instructions about recruitment, selection, term, conditions of service, and other matters relating to 19 different tribunals, thus requiring certain changes to the tribunal, Appellate tribunal, and other Authorities [Qualification, Experience, and Other Requirements of Operation of Members] Rules, 2020.

Explainer directions by the court 

The Court had seen a troubling pattern of the Government failing to follow the Court’s orders. To ensure that the tribunals do not become another agency under the executive’s power, multiple directives have been given, but they have gone unanswered and thus, forcing the petitioner to return to the regular court. It was probably time to put a stop to this activity. Highlighting that the tribunals are not immune from Executive command and are not considered as autonomous judicial bodies, the Court stated that it is essential to ensure that the tribunals carry out their judicial duties without any direct or indirect intervention from the Executive.

As a matter, “An autonomous body led by a retired Supreme Court judge monitoring the selection and operation of the tribunals, as well as being in charge of any disciplinary hearings against the members, will not only enhance the operations of the tribunals but also be consistent with judicial independence principles. ‘To reduce the tribunals’ reliance on their parent agencies for forwarding their specifications and to ensure timely bureaucratic decision making, as an interim measure, it was directed that a separate “tribunals wing” be formed in the Ministry of Finance, Government of India, to cater to the requirements of the tribunals until the National tribunal commission is formed.

The doctrine of separation of powers

The Supreme Court, through its appellate jurisdiction under Article 136, supervises the operation of administrative bodies and has the authority to impose discipline on these bodies to advance Administrative Law and promote the Rule of Law in India. The Supreme Court determined that the tribunals cannot serve as substitutes for the High Courts. A person serving on the tribunal cannot claim parity or privileges equal to those enjoyed by High Court judges.

Thus, the tribunals’ judicial functions can be differentiated from primarily administrative or executive operations in light of the doctrine of “separation of powers,” which is a fundamental principle of the Constitution.

Constitution of a Selection Committee 

When it was managed to bring to the Court’s attention that the constitution of the Hiring Committees under the 2020 Rules does not confirm judicial dominance, the Court issued the following directives: 

1. As Chairperson of the Selection Committee, the Chief Justice of India or his nominee will be given a casting vote.
2. Generally, the tribunal’s Chairperson would be a retired Supreme Court Judge or the Chief Justice of a High Court. That being said, in some tribunals, the Chairperson may not have been a judicial member. In such tribunals, the Selection Committee should include a retired Supreme Court Judge or a retired Chief Justice of a High Court appointed by the Chief Justice of India in the position of the tribunal’s Chairperson.
3. The 2020 Regulations would be revised to state that whenever the re-appointment of the Chairman, Chairperson, or President of a tribunal is regarded by the Selection Committee, the Chairman, Chairperson, or President of the tribunal will be substituted by a former Judge of the Supreme Court or a retired Chief Justice of a High Court appointed by the Chief Justice of India.
4. The Secretary to the promoting or parent unit must serve as Member-Secretary/Convener to the Search-cum-Selection Committee and shall function without voting in the Search-cum-Selection Committee.
5. Rule 4(2) of the Rules, which states that the Selection Committee shall suggest a board of two or three people from whom the Government shall make appointments on the comments of Chairperson or members of the tribunal, shall be modified and read as uplifting the Search-cum-Selection Committee to suggest the name of only one person. Taking into consideration the necessity of the findings of the qualified applicants from the Intelligence Bureau, the Search-cum-Selection Committee may select another suitable person and place them on the waitlist.

Department timeframe

Currently, Rule 9(1) allows a Chairman, Chairperson, or President of the tribunal to serve until the age of 70, following the Parliamentary directive in Section 184 of the Finance Act. However, Rule 9(2) states that the Vice-Chairman and other members must serve till they reach the age of 65.

Recognizing Amicus Curiae’s proposal that the Vice-Chairman, Vice-Chairperson, or Vice-President or members for nearly all tribunals will have only a brief tenure of fewer than three years under the 2020 Regulations if the upper limit period is 65 years, the Court ordered the Government to revise Rule 9(1) of the 2020 Rules to make the period of Chairman, Chairperson, or President five years or till they attain 70 years, whichever is earlier and other members dealt with in Rule 9(2) as five years or till they attain 67 years, whichever is earlier.

Section 184 of the Finance Act of 2017 offers for the nomination of Chairpersons, Vice-Chairpersons, and members of tribunals after their terms expire. The 2020 Rules do not refer to reappointment. As a result, individuals selected to the tribunals at an early age shall be reappointed with at least one term, with preference given to the services offered by people. 

Judicial membership for advocacy

Even though the Attorney General proposed that an advocate with 25 years of expertise be perceived for appointment as a judicial member, the Amicus Curiae proposed that it should be 15 years.

Taking both recommendations into account, the Court stated, “As the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, we are of the opinion that the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a tribunal.”

Even so, it is decided to leave to the Selection Panel to recognize the Advocates’ knowledge at the bar and specialize in the pertinent branch of the law when assessing them for referral as judicial members.

Qualification requirements for the members of the Indian Legal Service

The Court determined that members of the Indian Legal Service should be regarded for nomination as judicial members if they meet the other requirements that advocates must meet. Furthermore, the Selection Committee considered the type of work completed by participants of the Indian Legal Service and their specialization in the pertinent areas of law when considering one’s nomination.

The significance of nominating proficient and millennial lawyers as well as advanced members 

Tribunals perform judicial functions, and the judicial power of civil courts is generally excluded in issues vested to them. As a result, wherever lawful knowledge in a specific area is involved, it is natural that people who advocate knowledge with the same or a similar area will offer the “catchment” for membership evaluation. This is also true for the choice of technical members who would have expert knowledge in the scientifically valid fields, as well as a regulation background, as needed. Younger advocates, around 45 years old, present additional viewpoints. Many states immediately appoint lawyers as District Judges after only seven years of practice. 

As rightly the court stated, “If the justice delivery system by tribunals is to be independent and vibrant, absorbing technological changes and rapid advances, it is essential that those practitioners with a certain vitality, energy, and enthusiasm are inducted.”Even with a five-year degree, 25 years of practice would imply that the minimum age for appointment would be 48 years: it could be higher, given the time required to handle suggestions. As a result, a tenure without guaranteed re-engagements would be unfeasible.”A younger lawyer, who may not be suitable to continue after one tenure (or is reluctant to continue), can still return, to the bar, than an older one, who may not be able to piece her life together again.”

R Subramanian v. UOI

Facts of the case 

In this case, the petitioner, a practising advocate, has filed a motion pursuing multiple reliefs regarding the workings of the NCLT as well as the constitution/appointment of various benches of the NCLT. According to the petitioner, NCLT benches are to be formed and established in all states, but there are currently only 19 judicial members and 22 technical members. Given the high volume of cases, appointments to the NCLT and NCLAT are significantly delayed.

The learned counsel appearing for the Respondents objects that the concerns expressed in this petition are entirely covered by the Supreme Court’s decision in the case of Madras Bar Association vs Union of India & Anr. While the said Commission is being established, the Court has also allowed for the creation of a completely separate tribunals wing within the Ministry of Finance as an interim measure. The learned counsel contends that because the aforementioned directions have already been issued in respect of all tribunals, with particular reference to the NCLT and NCLAT, the judgment addresses the issues raised by the petitioner. A review of the reliefs reveal that the petitioner requests that a direction be granted to the Ministry of Corporate Affairs and the NCLT to evaluate the need for the number of NCLT tribunals and for this Court to develop a rolling recruitment plan for the NCLT.

Issues 

• Whether the reliefs raised by the petitioner are on legitimate grounds that they have covered in the case of Madras Bar Association vs Union of India & Anr.?
• What are the reliefs that are being pursued for & on what grounds they are needed?

Judgment 

The Court held that they had read the Supreme Court’s decision in Madras Bar Association. Certainly, the judgment addresses the problem brought up by the petitioner, such as appointments to positions. tribunals, investigations into members, and tracking of the operation and the filling vacancies in tribunals, as well as workload assessment as well as providing all necessary infrastructure.

The learned Amicus Curiae proposed establishing a National tribunals Commission comprised of retired Supreme Court Judges, Chief Justices of the High Courts, and Executive Members, with a full-time Secretary performing the following functions:

a) Selection of candidates.

b) Re-appointment of candidates.

c) Conducting of inquiry against members.

d) Sanction leave of members wherever necessary.

e) Monitor the functioning of the tribunals, in particular, the arrears and disposal of cases and filling up of vacancies and ensuring adequate infrastructure.

f) Ensure adequate infrastructure and IT support.

Directions have been authorized for the establishment of the National tribunals Commission and, during the interim period, for the establishment of a separate tribunals wing within the Ministry of Finance. As a result, the remedy decided to seek herein is filled by the previously mentioned judgment.

Conclusion 

The tribunalisation of justice was introduced to speed up the adjudication process, and they have been productive in their goal. The tribunals have carved out a distinct position in the Indian landscape by adjudicating several interesting issues. The independence of these tribunals was described as a fundamental feature of the Indian Constitution in the case of Rojer Mathew’s decision. This fundamental feature must be encapsulated and maintained in reality through the creation of the NTC, which will be solely responsible for choosing, monitoring, and removing appointees to make sure that the tribunals are occupied with men of honesty and great behaviour.

References

• https://www.brainyquote.com/quotes/brett_kavanaugh_925487
• https://www.google.com/url?sa=t&source=web&rct=j&url=https://primelegal.in/wp-content/uploads/2021/03/Blog-35-Judgment.pdf&ved=2ahUKEwjYoY7w05PwAhU5zzgGHT_MAXwQFjACegQICxAC&usg=AOvVaw37dETb_Y7-M5nSW6flH-3B&cshid=1619156474464
• https://www.scconline.com/blog/post/2020/11/30/its-high-time-we-put-an-end-to-the-disturbing-trend-of-govt-ignoring-our-directions-read-why-supreme-court-directed-constitution-of-national-tribunals-commission/amp/
• https://www.latestlaws.com/latest-news/sc-stresses-on-independence-of-tribunals-directs-govt-to-constitute-national-tribunals-commission/
• https://thedailyguardian.com/national-tribunal-commission-a-disregarded-constitutional-necessity/
• https://thelogicalindian.com/uplifting/no-executive-control-supreme-court-directs-to-constitute-national-tribunal-commission–25124
• https://www.scconline.com/blog/post/2020/11/27/appointments-and-functioning-of-tribunals-tribunal-rules-2020-valid-but-need-modifications-national-tribunals-commission-to-be-constituted-directs-sc-read-directions/amp/

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