Strong directions of CJI on tribunals

The Chief Justice of India, NV Ramana, in an open court laid bare how vacancies are choking tribunals, which have not been filled despite recommendations of names by selection committees headed by sitting Supreme Court judges. It was revealed that Debt Recovery Tribunals (DRTs) across the country have 15 vacancies for chairpersons, three vacant posts in Chandigarh and Delhi each and one each in Chennai, Cuttack, Ernakulam, Kolkata, Patna, Pune, Nagpur, Jabalpur and Dehradun.

The chairperson's post in Kolkata's Debt Recovery Appellate Tribunal is also vacant. Other tribunals without chairpersons are the National Company Law Appellate Tribunal, the Telecom Disputes and Settlement Appellate Tribunal and the Appellate Tribunal for Forfeited Property. The Income Tax Appellate Tribunal has 25 vacancies for judicial members and 27 for technical members. Railway Claims Tribunal has a total 25 vacancies. The National Green Tribunal has a total 30 vacancies. Central Administrative Tribunal has a total of 32 vacancies. Similarly, the National Company Law Tribunal has 19 vacancies for judicial members and 14 for technical members. The crucial Armed Forces Tribunal, which heads disputes within the Forces, has a total 23 vacancies for judicial and technical members.

The legal battle started a year ago for filling vacancies and continuing.

3rd March 2020

The Supreme Court asked about ineffectiveness of working of Tribunals in India, the SG Mehta sought time up to 16th March 2020. This is the beginning of effort by public interested persons to set the government right on filling vacancies in Tribunals. Justices AM Khanwilkar & D Maheswari were hearing cases about defunct Tribunals because of vacancies.

The issue came up in light of dismissal of a Writ Petition on January 7th 2020, noting that appropriate remedy was available before the Debt Recovery Tribunal (DRT). When the Petitioner approached DRT at Nagpur, it was found that the said tribunal was defunct. In light of this, the Petitioner filed an appropriate application, seeking directions from the Court.

July 14, 2021

Time passed and entered 2021 with the same litigation for filling vacancies. On July 14, the Supreme Court says: "aghast to note that some tribunals are on the verge of closure due to the absence of Members… Existence of large number of vacancies of Members and Chairpersons and the inordinate delay caused in filling them up has resulted in emasculation of the tribunals. The main reason for tribunalisation, which is to provide speedy justice, is not achieved as tribunals are wilting under the unbearable weight of the exploding docket."

August 7, 2021

The CJI asked Solicitor General Tushar Mehta. "The question here is whether you really want these tribunals to continue or do you intend to close them... Is it that the bureaucracy does not want these tribunals?" Justice Surya Kant, on the Bench, pointed out that with tribunals defunct and High Courts having no jurisdiction over the areas of law wielded by tribunals, litigants have nowhere to go for justice.

Justice Surya Kant, on the Bench, pointed out that with tribunals defunct and High Courts having no jurisdiction over the areas of law wielded by tribunals, litigants have nowhere to go for justice. Justice Kant observed, "If you don't want these tribunals, allow us to restore their jurisdictions to the High Courts. On the other hand, if you want these tribunals to continue, fill up the vacancies... You can't take away the right of the people to access justice".

The Supreme Court issued notice to the Centre and the GST Council in a PIL plea filed by advocate Amit Sahni seeking the constitution of national and regional GST tribunals.

The vacancies in High Courts are at a staggering 455, as on August 1. It appears that exhortations from the courts, and even a judicial order from the top court in April — fixing time-frames for the Intelligence Bureau and the Government to process names forwarded by the Collegium for making appointments to the High Courts or returning files and for accepting names reiterated by the judges' body — has not imparted a sense of urgency.

August 16, 2021

The bench of Chief Justice of India and two judges put the government on the dock about the complete absence of material justifying the Bill and also the lack of proper debate in the Parliament before it was made into law. It challenged the government to produce material showing its reasons for introducing the Tribunal Reforms Bill of 2021, which abolishes nine appellate tribunals and revives provisions of an ordinance struck down by the Supreme Court, in the Parliament.

This Bill had replaced the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. The provisions in the ordinance regarding conditions of service and tenure of Tribunal Members and Chairpersons were struck down by the Supreme Court. However, the same provisions re-appeared in the Tribunal Reforms Bill introduced by Finance Minister Nirmala Sitharaman on August 2 in the Lok Sabha.

Chief Justice Ramana questioned: "Show us one appointment that you have made… Whenever we ask the Ministry about tribunal appointments, you say it is 'under process'... If you want to make appointments, nothing prevents you from appointing… Till yesterday, we did not hear anything about any appointments to tribunals.". "We have a simple question for you… Are you planning to continue with the tribunals or close them down? Everything comes down to this question."

The Tribunal Reforms Bill 2021 was challenged. It revives provisions of Ordinance that was struck down by the Supreme Court. The Bill was introduced to replace that ordinance. Bill was passed in Lok Sabha amid protests over the Pegasus controversy, cleared by Rajya Sabha on August 9.

"In spite of the ordinance being struck down by the court, the Bill has been passed. There was no debate. We did not see any. We are not questioning the wisdom of the Parliament… We are not saying anything about the Parliament's power.... But at least we must know the reasons of the government in introducing the Bill… the Honourable Minister has but just one word… Please show us the debate which took place on the Bill. This is a serious issue," Chief Justice Ramana said.

September 7, 2021

Special Bench of Chief Justice N V Ramana, Justice D Y Chandrachud and Justice L Nageswar Rao said it was running out of patience, no more pleas of 'under process' without appointing any for years, the tribunals were on the verge of collapse and the directed to fill vacancies by September 13. "You have no respect for the judgments of this court… You are testing our patience," Chief Justice Ramana addressed Solicitor General Tushar Mehta, appearing for the government.

"Everybody is happy with the quick way in which the government cleared the Supreme Court appointments… We do not want any confrontation with the government. But if you can so quickly make appointments to the Supreme Court, you can very well do so with these small tribunals. The tribunals have virtually collapsed… Why are you being so particular about the tribunals?" Chief Justice Ramana asked Mehta.

The Supreme Court gave almost a final warning to government to make appointments to Tribunals. A very sad state of affairs prevalent is unless a PIL is filed, admitted and the Court entertained them leading to a strong directive, state is unwilling to appoint judges to the tribunals. The vacancies mounted up to 240 in all the tribunals. These are sanctioned posts, does not impose any additional financial burden.

Why the government is hostile to Tribunals? If these quasi-judicial bodies fail the aggrieved and all those aggrieved knocks the doors of High Courts, is it possible for HCs for bearing that additional burden of litigation raising from tribunals? Meanwhile, the government abolished 9 appellate tribunals through the same 'reforms' Act of 2021 increasing the burden on High Courts. What the government is up to?

(The author is Dean & Professor, School of Law, Mahindra University, Hyderabad, and former Central Information Commissioner)

(The opinions expressed in this column are those of the writer. The facts and opinions xpressed here do not reflect the views of The Hans India)