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Thursday, February 20, 2014

Totally farcical and eyewash of a Bill introduced in Rajya Sabha to address concerns regarding functioning of Tribunals

As expected and discussed on the blog earlier, THE TRIBUNALS, APPELLATE TRIBUNALS AND OTHER AUTHORITIES (CONDITIONS OF SERVICE) BILL, 2014, has been moved in the Rajya Sabha, ostensibly to implement various judgements rendered by Courts to streamline the functioning of Tribunals.

But what this Bill does proposes is just the opposite of what Constitutional Courts, including Constitution Benches of the Supreme Court, have ruled.

The greatest fright in India in this regard has been the lack of independence of Tribunals since these are functioning under parent administrative ministries, including those very ministries against which these Tribunals are expected to pass orders. Constitutional courts have already directed that it is the Department of Justice under the Ministry of Law and Justice which should look after the functioning of Tribunals, a direction which the Government has incorrigibly not implemented till date.

Another issue that had been engaging the attention of Courts was the fact that there was huge variance in terms and conditions of Chairpersons and Members of different Tribunals and this was also an issue being looked into by the Supreme Court in Writ Petition (Civil) No 120 of 2012 titled Rajiv Garg Vs Union of India.

To tide over the strong observations of the Supreme Court in Rajiv Garg’s case, which remains pending, the aforesaid Bill has been moved, and the same can be accessed by clicking here.

However a bare perusal of the Bill would show that the same has been drafted and introduced as a merely formality, and though it talks of universalisation of service conditions, it does not, in any manner, even touch upon the issue of independence of Tribunals, and in fact goes against the very spirit of the judgements of Courts related to independence of Tribunals and also against the grain of the concept of independence of judicial institutions as enshrined in our Constitution.

The following parts of the Bill may be perused meticulously and carefully:

Section 4 provides for the system of re-appointment of members after culmination of their initial term, making them again susceptible to the ‘carrot syndrome’.

Section 7 provides that in case a Member of a Tribunal is faced with unfinished arbitration work at the time of appointment to the Tribunal that he may have taken up, the ‘Central Government’ may permit him/her to finish the same. Of course, the term ‘Central Government’ in practical terms means the Secretary of the said department.

Section 20 provides that the leave sanctioning authority for the Chairperson for all kinds of leave would be the Minister of the concerned Ministry and so would he/she be for the foreign travel of all other Members. The Members are hence expected to seek leave of the Minister of that very Ministry against which they are supposed to pass orders and directions.

The financial memorandum under the Bill reinforces and underlines the fact that the Tribunals shall remain under the administrative control of parent ministries, which of course is in teeth of the judgement of the Supreme Court in R Gandhi’s case and of the Punjab & Haryana High Court in Navdeep Singh Vs Union of India.

The statement of objects and reasons of the Bill, signed by Kapil Sibal, also misleadingly states that the Bill addresses the issues related to Tribunals that have arisen in various cases before the judiciary. This again is factually incorrect since the most basic dicta of the Courts, that is, the independence of Tribunals from parent ministries, remains unaddressed and untouched, and in fact defeated.


Anonymous said...

True, step by step, things will change and not in one go. MOD may not like to happen this in near future.

dattatreyahg said...

Does it call for taking Mr. Sibal to SC for contemptor some such thing?. He seems to have forgotten that he was an eminent practising lawyer not too far back and the Lawyer's code of conduct, I am sure, must be saying that he cannot mislead the Court by his actions, and also cant mislead the Paliament & the people of this Country

dattatreyahg said...

Looks like all such legislaions are getting fast tracked to ensure safe exit for a permanently 'outgoing' Govt

Venkatesh VT said...

I find no one commenting where really serious issues are involved & lot of comments only when pay & allowances are discussed.We need to understand what are the macro issues which affects us on the long run.Modern society is totally based on a legal framework & quick adjudication unless it is designed properly,the AFs will never get justice

Lt Col (Retd) A N Ramachandran said...

Various court judgements including that of the hon'ble Supreme Court have held that the independence of the Tribunals is inescapable in order to enable it to deliver justice. Keeping it under the thumb of the concerned Ministry imposes severe constraint on the Tribunals.The bill now introduced hardly serves any useful purpose.In a sense, it is contempt of the court judgements.