Tribunal rules 2020: old wine in new bottle?

The problem of executive governance in the appointment of members subsists in the new rule as well.

Titled “ appellate tribunal and additional authorities (prerequisite, experience & other conditions of provision of members) rules, 2020 outlined by the ministry of finance in implementation of powers under section 184 of finance act 2017 which applies to 19 tribunals such as CAT, AFT, NGT, NCLAT, SAT, ITAT. NCDRC, TDSSAT, etc.

The union government notified a new set of rules to reorganize the appointment process and harmonize the service conditions of members of various statutory tribunals. Earlier in 2017, the government had framed another set of rules for tribunals, with the same name but that was struck down as unconstitutional by the Supreme Court in the case Rojur Mathew vs. South Indian Bank and ors.

Do the 2020 rules cure all the defects pointed out by the Supreme Court while quashing 2017 rules?

One of the reasons cited by the Supreme Court for striking down 2017 rules was that they led to a dilution of judicial independence, as the executive was given too much say in the matter of appointment and removal of members of tribunals.

The search cum selection committee was dominated by bureaucrats and nominees of the central government. The lack of judicial dominance in the search cum selection committee is in contravention of the doctrine of separation of powers and in encroachment on a judicial domain. The court relied on its ruling in Supreme Court advocates on record assn. vs. UOI, where it was held that primacy of judiciary is imperative in the selection and appointment of judicial officers including judges of the high court and Supreme Court. As per rules 2017, the search cum selection committee for the appointment of judicial members of CAT comprised the persons:

1.    CJI OR CJI’S nominee as chairperson

2.    Secretary of the government of India, department of personnel and training

3.    Secretary to Government of India, Ministry of law and justice

4.    One expert nominated by the central government

5.    When it comes to 2020 rules, except for the omission of the expert nominee, nothing has changed with respect to the composition of the search cum selection committee for CAT.

Does this composition solve the problem of a lack of judicial dominance?

The rule 2017 made persons having no judicial or legal experience eligible for appointment as presiding officers of the tribunal if they are otherwise of ability, integrity, and standing and having special knowledge of certain specialized subjects. This clause has been omitted in the 2020 rules. Another anomaly pointed out by the court was that the rules treated judges of Supreme Court, high court and district court equal by making them all eligible to be appointed as presiding officer. The court illustrated the example of a composition of appellate tribunal under the smugglers & foreign exchange manipulators (forfeiture of property) act, 1976 that the chairperson of the appellate tribunal shall be the person who is or has been or is qualified to be the judge of Supreme Court or judge of the high court. The CJI Ranjan Gogoi observed and stated that “it appears to be inexplicable as to how both Supreme Court and high court judges can be qualified for the same post when their experience, acquaintance, familiarity and stature under the constitution are immensely dissimilar”. 

Taking note of this, the 2020 rules have been substituted judges of the high court with CJI of the high court in the qualification criteria for the said appellate tribunal. Also, 2017 rules provided that the secretary to the government of India in the ministry or department under which the tribunal be constituted shall be the convener of the search cum selection committee. This was found to be invalid by the court & such provision has been omitted in 2020 rules. The 2020 rules also provided a fixed term of 4 years to tribunal based on 3 years term under 2017 was ineffective.

Conclusion

Despite the above-mentioned changes, the substantive flaw pointed out by the court in 2017 rules – the upper to the executive in the matter of appointments is still present in 2020 rules. Despite the specific direction by the court, the rules did not incorporate the suggestions in R Gandhi case regarding ideal composition of selection committee (4 member committee with 2 representatives from judiciary and casting vote for CJI) the court had also observed that the suspension of president or chairperson or member of tribunal can be only with the concurrence of CJI. There is no provision in 2020 rules to incorporate this direction. Therefore, the tribunal rules 2020 does not offer much hope for advancing the cause of independence of the tribunal.

Author:

eStartIndia Team