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Sunday, February 2, 2014

Cabinet decision towards implementation of judgements related to freeing of Tribunals from control of the Executive. A superficial step, but a step nevertheless!

As most readers would know, we have been emphasizing on the independence of judicial functioning of various Tribunals existing in India. Some posts on the subject can be accessed here, here, here and here.

The Hon’ble Supreme Court in R Gandhi’s case had passed detailed directions related to functioning of Tribunals and ensuring that they are not placed under any administrative or parent ministry. This was followed by a judgement by the Hon’ble Punjab & Haryana High Court in a Public Interest Litigation (PIL) filed by me wherein it was directed that the Armed Forces Tribunal (AFT) must be placed under the purview of the Department of Justice under the Ministry of Law & Justice and not under the Ministry of Defence.

Another Writ Petition was recently filed by the majorly public-oriented Madras Bar Association against the newly notified Company Law and Company Law Appellate Tribunals which have been placed under the Ministry of Corporate Affairs rather than the Law Ministry. The Supreme Court has been pleased to record the statement of the Government in its interim order that no appointments shall be made in the said Tribunals till further orders.

The Ministry of Law and Justice has in fact been trying to tame this issue since long, but other Ministries have been resisting the move and seeking to wield control over Tribunals which clearly goes to show their interest in emasculating independence of these bodies. In fact, the Government has till date not realised that implementation of judgements of Constitutional Courts in this regard is not subject to opinions of various Ministries. The issue has been ignored since long, and illegally and contemptuously so, as is evident from this press report of the year 2001 and this official press release issued way back in the year 2004.

Now, two days back, on 30 Jan 2014, the Union Cabinet has finally given the approval to recommendations of a Group of Ministry on various Tribunals. However, the move falls short of expectations since though it talks of introducing an over-arching legislation for prospective universalisation of tenure, pay & allowances, appointments, retirement, facilities etc of Members of Tribunals, it does not apparently touch upon the biggest quandary in the concept of Tribunalisation, and that is, the control of administrative and parent ministries over them. For example, the Armed Forces Tribunal (AFT) has to pass all orders against the Ministry of Defence which is the opposite party for all military litigants but the AFT is functioning under the same Ministry which not only controls its infrastructure and operation but also rule-making powers. Similarly, the Debt Recovery Tribunal (DRT) functions under the Ministry of Finance and even under the patronage of banks. Though the cabinet approval needs to be perused in totality to analyse its finer aspects, the first impression does portray that only the surface has been scratched without ensuring the actual independence of Tribunals.

A superficial step, but a step nevertheless, and perhaps in the right direction!

Long distance ahead, but we shall run and cover it. 


dattatreyahg said...

Even SC directions have to go thro' this GOM recommendation for cabinet approval for mplementation?! Looks like it is getting closer to yet another Contempt case.

Anonymous said...

Maj Navdeep, What is stopping contempt proceedings in these cases?