On Thursday, the Department of Revenue, Finance Ministry, notified the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. This was done in pursuance of the powers delegated to it by Parliament via Section 184 of the Finance Act, 2017. This provision gives the Central government the power to “make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service” for judges appointed to 19 tribunals. These 19 tribunals include the National Green Tribunal, the National Company Law Tribunal, the Intellectual Property Appellate Tribunal, the Armed Forces Tribunal, the National Consumer Disputes Redressal Commission, the Film Certification Appellate Tribunal, the Telecom Disputes Settlement and Appellate Tribunal, the Debt Recovery Tribunal, the Securities Appellate Tribunal, the Central Administrative Tribunal, the Income Tax Appellate Tribunal and The Customs, Excise and Service Tax Tribunal.
The manner in which these rules have been drafted leaves no doubt that the judicial independence of these 19 tribunals will be compromised because of the excessive influence of the Central government while appointing and removing judges to and from these bodies.
On the subject of appointments, the Supreme Court and several High Courts have made it clear that the selection committee for appointments should be balanced with members from the judiciary and the executive, rather than loaded in favour of the latter. Legislation that has not complied with these rules has been struck down as unconstitutional. For instance, in 2010, a Constitution bench of the Supreme Court, in the case of Madras Bar Association versus Union of India, struck down provisions related to the National Company Law Tribunal because the five-member selection committee had only one member from the judiciary while the rest were from the executive – secretaries from various ministries. At the time, the Supreme Court gave broad directions that the selection committee should have equal numbers from both sides, with the chief justice’s nominee getting a casting vote.
This judgement was followed by the Madras High Court in Shamnad Basheer versus Union of India and South India Music Companies versus Union of India. In both cases, a bench headed by then Chief Justice Sanjay Kishan Kaul (recently elevated to the Supreme Court) struck down selection committees handling appointments to the Intellectual Property Appellate Board and the erstwhile Copyright Board for being packed with bureaucrats from the executive. In the context of the Intellectual Property Appellate Board, the High Court stated:
“…. the selection process has been left entirely to the Executive, though the functions of the Tribunal are judicial. This act is a direct affront to the basic structure, which is fundamental to the Constitution of India. The 1st respondent has totally overstepped and acted in disregard to the law laid down by the Supreme Court in Union of India Vs R Gandhi, President, Madras Bar Association, [(2011) 10 SCC 1] by turning a blind eye. The directions issued therein are meant to be applicable to all the Tribunals. The 1st respondent cannot take a stand that for one enactment they can maintain basic structure by their action and violate through another. The need to protect the independence of judiciary has been dealt with and decided in all the decisions referred supra. It has been consistently held that the judiciary should have a substantial role in the selection. It was also held that the process of appointment should substantially be that of members of judiciary.”
In the context of the Copyright Board, the High Court held:
“We also note that though Sub-rules (2) to (5) of Rule 3 of the Copyright Rules, 2013 speaks about appointment to the post of Chairman with the consultation of Chief Justice of India, the rules are silent qua the procedure for appointment to the members. Thus, an attempt is being made to fill up the same with an executive order. Though we do not find anything wrong in the process, the Committee constituted with the overdose of Executive cannot be sustained in the eye of law.”
The law on the issue of appointments to tribunals is therefore clear – the judiciary must have primacy. The notified rules flout this principle for almost all 19 tribunals. The “Schedule” to the Rules prescribe a different composition for the selection committee of each tribunal. For example, the committee to select the chairman of the Central Administrative Tribunal comprises two members of the judiciary, two of the executive and one expert nominated by the government – there is no mention of the qualifications of this expert. Similarly, the selection committee to choose an administrative member of the same tribunal consists of only one member of the judiciary, three of the executive and one government-nominated expert – again with no mention of the qualifications of the expert.
The committee to appoint the chairperson and judicial members of the Intellectual Property Appellate Board is made up of one member of the judiciary, two of the executive and two government-nominated experts (qualifications not mentioned again). To appoint the board’s technical members, the selection panel consists of two members of the executive and three experts.
This pattern of packing selection committees with bureaucrats of nominees of the government is repeated for more tribunals, such as the politically sensitive National Green Tribunal that deals with cases relating to environmental protection and conservation of natural resources.
Apart from the appointment criteria, the other factor that strongly influences judicial independence is the power to remove judges from their posts. Judges of High Courts and the Supreme Court can be removed only by a vote of each House of Parliament. When some of the powers of High Courts were shifted to tribunals, similar safeguards were not implemented for the judges manning these tribunals. In most cases, the power to remove judges of tribunals was vested with the government, provided an inquiry was conducted by a Supreme Court judge. For example, Section 10 (2) of the National Green Tribunal Act, 2010 stated: “The Chairperson or Judicial Member shall not be removed from his office except by an order made by the Central Government after an inquiry made by a Judge of the Supreme Court in which such Chairperson or Judicial Member has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges”.
This is clearly not the strongest safeguard but the fact that the inquiry function was vested with a Supreme Court judge provided some check on the government’s function.
The new rules, however, vest the power of removal entirely with the Central government. The procedure is as follows: As per Rule 8, a written complaint against any judge on the tribunal is to be scrutinised by the “ministry or department of the government of India” under which the tribunal has been constituted. After a preliminary scrutiny, if the relevant ministry or department is of the opinion that there are reasonable grounds for an inquiry, it shall make a reference to a committee constituted under Rule 7 to conduct an inquiry. The rules are entirely silent on the composition of the committee but once an inquiry is conducted by the committee, it may make a recommendation to the Central government, which may then remove the judge from the tribunal.
The entire scheme laid out in Rules 7 and 8 is absurd beyond belief. To illustrate with an example, if somebody files a complaint against a judge of the National Green Tribunal, a preliminary scrutiny of the complaint will be conducted by the Ministry of Environment – a strange set-up, given that it is the job of the tribunal to hold the Ministry of Environment accountable. The same stands true for most tribunals. The Intellectual Property Appellate Board has the power to strike down decisions of the Patents Office and the Trade Marks Registry, both of which function under the Department of Industrial Policy and Promotion, which will also be the department that scrutinises complaints against judges of the board under Rule 8.
For several years now, the Supreme Court has expressed deep discomfort with this set-up where the “parent ministry” was in charge of providing administrative support to the tribunals that were supposed to review and if necessary strike down the decisions of these ministries. In its decision in 2010, the Constitutional Bench of the Supreme Court stated:
“In India, unfortunately Tribunals have not achieved full independence. The Secretary of the concerned ‘sponsoring department’ sits in the Selection Committee for appointment. When the Tribunals are formed, they are mostly dependant on their sponsoring department for funding, infrastructure and even space for functioning.”
Worried about the clear conflict of interest present in this situation, the Supreme Court recommended that the administration of all tribunals be handled by the Law Ministry.
Given the above position of the Supreme Court on the simpler issue of “admistrative support”, there is little doubt that it will adopt a much tougher stance on vesting the power of scrutinising complaints with the “parent ministry” and the power of removal with the Central government, per se.
Prashant Reddy Thikkavarapu is a Research Associate at the School of Law, Singapore Management University.