Threat to NGT's autonomy? Govt tightens grip on tribunals

The recently notified Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules 2017 (the Rules) is yet another example of the Union government’s attempt to regulate the composition and functioning of the constitutionally independent judicial system.

Fulfilling its intentions under the Finance Act 2017, the Rules lay down a new structure for appointment, removal and conditions of service of members for several quasi-judicial bodies and tribunals. In effect, the Rules increase the role of the government and bring about a sweeping change to how these institutions function at present.

One such tribunal affected by the Rules is the nation’s environmental watchdog, the National Green Tribunal (the NGT). Formed through the National Green Tribunal Act 2010 to promote India’s commitment to the Rio Declaration and resolve issues of substantial ecological importance, the tribunal has long been criticised for judicial overreach and policy-making by the central government.

Environmental lawyer Ritwick Dutta says that the Centre has in the last three years, made concerted efforts to dilute the provisions of the NGT Act. One such example is the TSR Subramanian Committee - a high-level committee formed to review India’s environmental laws - which had recommended the curtailing of the NGT’s powers and even proposed critical dilutions of environmental statutes.

Now with the passage of the new Rules, the government may have finally got what it wanted. Several experts have expressed concern for the independence of the NGT, as well as other tribunals, that act as justice delivery systems for many critical sectors. “It affects the independence and autonomy of the body to a large degree. Even for the tribunals, this type of rule making ought not to be done and is certainly not advisable,” says former Supreme Court Justice Vikramajit Sen.

Other experts have also drawn parallels with the government’s previous attempts to control the selection of judges to the country’s higher courts through the introduction of the National Judicial Appointments Commission (NJAC) Act 2014 to abolish the collegium-based system of appointments. Even after Supreme Court’s striking down of the NJAC for violating the basic structure of the constitution, the government’s ongoing tussle with the apex court over the finalisation of the Memorandum of Procedure for these higher judicial appointments and the introduction of the tribunal Rules seem to show that the Centre wants to continue on the same lines. However, Justice Sen says that similar rules for appointments in superior courts may be difficult for the Centre to replicate as they would first require substantial constitutional amendments.

Under the new Rules, chairpersons, presidents and other members of the tribunals will be appointed by the central government on the recommendation of a search-and-selection committee convened by the secretary of the concerned ministry or department. As a result, appointments of chairpersons and judicial members of the NGT will now be made only on the recommendation of a committee comprising five persons, of which the Chief Justice (or his nominee) will be the only member from the judiciary. Previously, the selection committee for these appointments comprised a judge of the Supreme Court and the Chairperson of the tribunal in addition to a government official. Even the selection of NGT’s expert (technical) can now be done by a five-member committee, which does not include a single person from the judiciary unlike the previous structure involving two judicial persons.

The criteria for appointment of these chairpersons, judicial and expert members of the NGT have also been diluted under the Rules. Earlier, the Chairperson of the NGT had to be (or have been) a judge of the Supreme Court or a chief justice of a high court. Now, even a judicial or expert member holding office for not less than three years or a person with 25 years of professional experience in law can be selected as a Chairperson. The criteria for judicial members have been relaxed and holders of judicial offices for 10 years are also eligible for appointment, unlike the previous requirement of being a past or present judge of the Supreme Court or a high court. This means that judicial magistrates, district and lower court judges previously appointed by the government can now become judicial members unlike before.

Similarly, the qualification requirements for heads of other tribunals have also been relaxed. Earlier, the Chairperson of the Airports Appellate Tribunal had to be (or have been) a high court judge who was appointed after consultation with the Chief Justice of India. Under the new Rules, even a person with 25 years of professional experience can be selected as Chairperson and the requirement of prior consultation with the Chief Justice has been removed and replaced with a body of government officials and appointees.

The situation is similar with the appointment of the Chairperson of the Telecom Disputes Settlement and Appellate Tribunal where the minimum requirement has been diluted from being a past or present judge of the Supreme Court or a Chief Justice of a high court to include a person with 25 years of professional experience eligible for the position. Even the qualification for appointment as a presiding officer of a National Industrial Disputes Tribunal now includes a district or additional district judge with three or more years of experience, from the earlier requirement of being (or have been) a high court judge. 

Experts say that with these changes, the administrative and functional autonomy of the tribunals could be curtailed as it is the relevant ministries that will select the members, who will in turn have to adjudicate on the actions of the very same ministries. “This is a very serious issue. It completely compromises the independence of the judiciary and makes the tribunals simple extensions of the government,” says Sanjay Parikh, senior advocate, Supreme Court.

According to the Rules, the members of these tribunals can now also be removed on the recommendation of a committee constituted by the government without the consultation of the Chief Justice, except for the National Company Law Appellate Tribunal. Further, the Centre has laid down a procedure for dealing with complaints, according to which the preliminary inquiry will be conducted by the concerned ministry or department. Experts feel that these moves place the tribunals at a subordinate position vis-à-vis the ministries (and departments) and violate the independence of these statutory bodies.

According to them, the situation is similar to the new architecture for the setting of interest rates through the introduction of the Monetary Policy Committee in 2016, which ended the Reserve Bank of India (RBI) governor’s role as the sole arbiter. The selection of these committee members - as well as the deputy governors of the RBI – by a panel headed by the Cabinet Secretary with the RBI Governor only as a member have increased the Centre’s hold over the appointment of key people in the central bank and in the running of the monetary policy, experts say.

These tribunal rules were notified by the Ministry of Finance under the Finance Act - which was passed as a money bill without requiring the mandatory approval of the Rajya Sabha. Parikh says that this move stands in contradiction to the very essence of these independent bodies, whose purpose and rules for selection of members were carefully considered by both the Houses of Parliament when they were constituted.

Diminishing Powers 

Tribunals covered under the Rules:

• National Green Tribunal

• Industrial Tribunal constituted by the Central Government 

• Income Tax Appellate Tribunal

• Customs, Excise and Service Tax Appellate Tribunal

• Appellate Tribunal (under the Smugglers and Foreign Exchange Manipulators Act 1976)

• Central Administrative Tribunal

• Railway Claims Tribunal

• Securities Appellate Tribunal

• Debts Recovery Tribunal

• Debts Recovery Appellate Tribunal

• Airport Appellate Tribunal

• Telecom Disputes Settlement and Appellate Tribunal

• Appellate Board (under the Trade Marks Act 1999)

• National Company Law Appellate Tribunal

• Authority for Advance Ruling (under the Income Tax Act 1961)

• Film Certification Appellate Tribunal

• National Consumer Disputes Redressal Commission

• Appellate Tribunal for Electricity

• Armed Forces Tribunal