Shooting Down the Independence of Judiciary: Tribunal Reforms Act 2021

The ‘basic structure’ of the Indian Constitution has revolutionized India’s constitutional law jurisprudence since its establishment. The doctrine of the separation of powers is considered to be an important pillar of the basic structure, keeping the independence of the judiciary intact, preventing disequilibrium in the balance of powers which generally leads to abuse of power and capricious states. As per the basic structure doctrine laid down in the landmark case of Kesavananda Bharati v. The State of Kerala, the legislature was given the power to amend the provisions of the constitution apart from the basic structure. One of the key components of the basic structure is the separation of powers under which the parliament, legislature and executive have the authority to only formulate laws for issues that fall into their own distinct jurisdictions. The Judiciary has the power to adjudicate on the validity of laws passed by the legislature (judicial review) as per Articles 13 (2). Article 226 and Article 32, respectively, vest the High Courts and the Supreme Court with the power of judicial review. The Supreme Court has the power to strike down any law made by the legislature and inconsistent with the Part III of the constitution. The Indian government’s enactment of the Tribunals Reform Act of 2021 has led to the dissolution of the separation of powers which is integral to maintain the independence of judiciary.

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The abolishment of nine appellate tribunals took place as the government turned a blind eye towards their potentials and defeated the primary reason of their establishment i.e., efficient disposal of cases. The central government’s urge to exercise power over the administrative structure of the tribunals reflects the lack of proper evaluation of it altogether. It sheds light on the way in which the tribunals are being viewed by the government, as extensions of executive. The executive branch of the government also secured primacy over judicial appointments along with flexibility in determining the time limits for the same. Article 50 of the constitution ensures separation of powers of judiciary from the executive. It was later also stated to be applicable to tribunals by the Supreme Court in Roger Mathew v. South Indian Bank ltd. Giving excessive power to the executive branch in this regard encroached upon the separation of powers doctrine as each branch should function independently without any obstruction from the other branches of the state. In Indira Nehru Gandhi v. Raj Narain, the court held that the amendment introduced (39th Amendment Act, 1975) was unconstitutional as it took away the powers of the Supreme Court on adjudicating on matters relating to the election of the Prime Minister. Similarly, in the Madras Bar Association  v. Union of India &Anr(2020), the supreme court struck down the provisions of the Ordinance introduced by the central government. Despite that the Tribunal Reforms Act 2021 was enacted, going against this ruling and quashing the components of the basic structure doctrine.

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The changes started with the enactment of the predecessor of the Tribunal Reform Act of 2021. The Finance Act, 2017 was enacted to maintain consistency in administration of the tribunals by merging them together on the basis of their functioning areas. The Finance Act consequently enabled more interference on the part of the union government in terms of making important decisions regarding salaries, term of office, qualifications, conditions of service, members, chairpersons, removal and others for several tribunals like the Railway Claims Tribunal, Armed Forces Tribunal, Industrial tribunal and National Green Tribunal. The Supreme Court of India saw this as obstruction to the doctrine of separation of powers and consequently upheld section 184 of the Act while abandoning the rules formulated under it. Again, The Supreme Court in the Madras Bar Association  v. Union of India &Anr(2020) (MBA-III) case, had struck down the provisions of the Tribunals Reform Bill (Rationalization and Conditions of Service) Ordinance 2021, despite which the Tribunals Reform Act 2021 was passed in the parliament and received its assent by the President. Since it went against the judgement of the Supreme Court, Section 3(1) of the Tribunal Reforms Act contained “Notwithstanding anything contained in any judgment, order or decree of any court, or in any law for the time being in force” which held the ruling irrelevant.

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The Tribunal Reforms Act 2021 (‘the Act’) causes the abolishment of nine appellate tribunals under the Cinematograph Act, 1952, Copyright Act, 1957, the Trademarks Act, 1999, Appellate Board under the Copyright Act, 1957, Customs Act, 1962, Patents Act, 1970, Airports Authority of India Act, 1994, Airport Appellate Tribunal under the Control of National Highways (Land and Traffic) Act, 2002 and Protection of Plant Varieties and Farmers’ Rights Act, 2001. It covers the provisions which were earlier struck down by the Supreme Court in the Tribunals Reform Bill, thereby overriding its decision. “We have earlier heard these matters and passed detailed judgments. There is no respect for the judgments of this court that is what we are feeling. There is testing the patience of the court…,” said Chief Justice of India N V Ramana (heading the three judge bench). The transfer of functions from the tribunals would lead to cases being dealt with limited knowledge of the specific jurisdiction and lack of expertise. Provided below are the concerns and observations of the Supreme Court on the Tribunal Reform Act 2021;

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(a) The Supreme Court had observed that there was a lack of an opposition present during the decision-making process of the bill. This led to an unfair discussion without having a counter or different (distinct) viewpoints which is foremost important to achieve a reasonable decision.

(b) The Search-cum-selection committee; The Supreme Court had observed that a shorter term for the chairpersons and members (4 years) of the tribunal could potentially discourage individuals from leaving their already established careers. It would make re-appointment recurrent giving the executive a larger pool of influence and control in comparison to the judiciary. This disequilibrium in the balance of powers violates the independence of judiciary. The adequate re-numeration, conditions of service and secure tenure highlight the core components of the judiciary and going against them violates article 14 (Right to equality), 21 (Right to life and personal liberty) and 50 (Separation of judiciary from executive). The term of the members (maximum age limit; 67) and of the chairperson (maximum age limit; 70 years) was set to be 5 years (one term) as per the Supreme Court as it is a substantial number of years.

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 (c) Section 3(1), the Supreme Court also observed that the minus age limit (50 years) for the appointment of members and a chairperson for unusually high disregarding the potential of the youth and restricting the recruitment process. This provision under the Tribunals Reform Act, 2021 ignored the past Supreme Court case judgements which emphasized on a ten year work experience to be sufficient for any judicial appointment. The requirement of a ten year long work experience is sufficient to make an individual eligible for the position of a High court judge. Therefore, the minimum age limit of 50 years (for members and chairpersons) was considered to be exceptionally unreasonable.

(d) Section 3 (3), The Search-cum-selection committee consists of; Supreme Court Judge nominated by the CJI of India or The Chief Justice himself, Chairperson (having casting vote), Two secretaries by the Union Government, Retired SC judge or Chief Justice of High Court, Secretary of Ministry under which tribunals are establishing (Having no voting right). The appointment of three secretaries makes the committee dominated by the authority of the executive rather than that of the  judiciary. The Supreme Court noted that “executive influences should be avoided in matters of appointments to tribunals”. The non-obstinate clause made the government ignore such ruling and make the executive in-charge of appointing three secretaries along with deciding their term of office.

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(e) The Supreme Court also observed two hundred forty vacancies and held the central government responsible for delay in the process of appointment of members along with absolute inconsistency in the same. Vacancies have caused widespread disfunction in important tribunals like the National Green Tribunal and are causing the failure of speedy-justice (considered as main objective of tribunals). “The appointment letters which have been issued clearly indicate that they(Central government of India) have cherry-picked three names from the select list and others from the waitlist, ignoring others in the select list. In service law, you can’t go to the waitlist ignoring the select list. What kind of selection and appointment is this?” Attorney General Venugopal was asked by the bench. The lack of coherence by the Central Government in the ability to fulfill the requirement of filling up these vacancies have brought important Tribunals like the Central Administrative Tribunal CAT), National Company Law Appellate Tribunal (NCLAT), Telecom Disputes Settlement and Appellate Tribunal (TDSAT) to a standstill which otherwise are required to efficiently provide justice. These vacancies have over-burdened the high court rather than reducing its workload. Hence, The Supreme Court felt that the government did not make any substantial effort in resolving the concerns regarding the vacancies and held it responsible for debilitating the tribunals.

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There is a test that can be used for checking the validity of a legislation which has ignored a judicial decision. In the case of Lahore Machines v. Union of India, it was laid down that the shortcomings of the judgement should be corrected or reformed and then the legislation could have such power as to override a judicial pronouncement. In the present case, the Supreme Court’s observations and decisions were ignored. The defects in the Madras Bar Association v Union of India & Anr, 2020 (MBA-III 2020 case), were precisely stated by the Supreme Court in the Tribunal Reforms (Rationalization and Conditions of Service) Ordinance, 2021.The central government ignored this judgement and arbitrarily re-enacted the provisions which were struck down.

Devina Somani

2nd Year Law Student, Jindal Global Law School


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