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The following piece by C V Madhukar appeared in the September,2011 issue of Governance Now magazine. The debate in Parliament in response to the recent Anna Hazare led agitation demanding a strong Lok Pal Bill was a fine hour for the institution of Parliament.  What was even more important about the debate is that it was watched by thousands of people across the country many of whom have lost faith in the ability of our MPs to coherently articulate their point of view on substantive issues. Of course, in many cases some of these impressions about our MPs are largely formed by what the media channels tend to project, and without a full appreciation of what actually happens in Parliament.  There is now a greater awareness about an important institutional mechanism called the standing committee, and other nuances about the law making process. The Lok Pal agitation brought out another important aspect of our democracy.  There are still many in India who believe that peaceful protest is a powerful way to communicate the expectations of people to the government. Our elected representatives are prepared to respond collectively when such protests are held.  There is a negotiated settlement possible between the agitating citizens and our political establishment within the broad construct of our Constitution.  All of this means that the safety valves in our democracy are still somewhat functional, despite its many shortcomings. But the way the whole Lok Pal episode has played out so far raises a number of important questions about the functioning of our political parties and our Parliamentary system.  A fundamental question is the extent to which our elected MPs are able to ‘represent’ the concerns of the people in Parliament.  It has been obvious for some time now, that corruption at various levels has been a concern for many.  For months before the showdown in August, there have been public expressions of the disenchantment of the people about this problem.  Even though several MPs would say privately that it is time for them to do something about it as elected representatives, they were unable to come together in a way to show the people that they were serious about the issue, or that they could collectively do something significant about the problem.  The government was trying in its own way to grapple with the problem, and was unable to seize the initiative, expect for a last minute effort to find a graceful way out of the immediate problem on hand. In our governance system as outlined in our Constitution, the primary and most important institution to hold the government accountable is the Parliament.  To perform this role, the Parliament has a number of institutional mechanisms that have evolved over the years.  The creation of the CAG as a Constitutional body that provides inputs to Parliament, the Public Accounts Committee in Parliament, the question hour in Parliament are some of the ways in which the government is held to account.  Clearly all of these mechanisms together are unable to adequately do the work of overseeing the government that our MPs have been tasked with.  But it is one thing for our MPs to be effective in their role holding the government to account, and a very different thing to come across collectively as being responsive to the concerns of the people. For our MPs to play their representation role more convincingly and meaningfully there are certain issues that need to be addressed.  A major concern is about how our political parties are structured, where MPs are bound by tight party discipline. In a system where the party leadership decides who gets the party ticket to contest the next election, there is a natural incentive for MPs to toe the party line, even within their party forums.  This is often at the cost of their personal conviction about certain issues, and may sometimes be against what the citizens could want their representatives to do. Add to this the party whip system, under which each MP has to vote along the party line or face the risk of losing his seat in Parliament.  And then of course, if some MP decides to take a stand on some issue, he needs to do all the research work on his own because our elected representatives have no staff with this capability.  This deadly cocktail of negative incentives, just makes it very easy for the MP to mostly just follow the party line.  If the representation function were to be taken somewhat seriously, these issues need to be addressed. The 2004 World Development Report of the World Bank was focussed on accountability.  An important idea in the report was that it was too costly and inefficient for people to vote a government in and wait till the next election to hold the government accountable by voting it out for the poor governance it provides.  That is the reason it is essential for governments and citizens to develop ways in which processes can be developed by which the government can be held accountable even during its tenure. The myriad efforts by government such as social audits, monitoring and evaluation efforts within government departments, efforts by Parliament to hold the government accountable, efforts of civil society groups, are all ways of holding the government to account.  But over and above accountability, in an age of growing aspirations and increasing transparency, our MPs must find new ways of asserting their views and those people that they seek to represent in our Parliament.  This is an age which expects our politicians to be responsive, but in a responsible way. Even as the Lok Pal Bill is being deliberated upon in the standing committee, civil society groups continue to watch how MPs will come out on this Bill.  There are plenty of other opportunities where MPs and Parliament can take the initiative, including electoral reforms, funding of elections, black money, etc.  It remains to be seen whether our MPs will lead on these issues from the front, or will choose to be led by others. This will determine whether in the perception of the public the collective stock of our MPs will rise or continue to deplete in the months ahead.

The Tribunals Reforms Bill, 2021 was introduced in Lok Sabha today.  It seeks to dissolve certain existing appellate bodies and transfer their functions (such as adjudication of appeals) to existing judicial bodies (mainly high courts) (see Table 1).  It also amends the Finance Act, 2017, to bring certain provisions (such as qualifications, appointments, term of office, salaries and allowances of tribunal members) under the purview of the Bill.  Currently, these provisions are notified through Rules under the Finance Act, 2017.   

Note that the 2017 Act reorganised the Indian tribunal system to ensure uniformity in their administration by amalgamating certain tribunals based on the similarity in their functional domain.  It also delegated powers to the central government to make Rules to provide for the qualifications, appointments, term of office, salaries and allowances, removal, and other conditions of service for chairpersons and members of these tribunals.  

This Bill replaces an Ordinance with similar provisions that was promulgated in April 2021.   The 2021 Ordinance was challenged in the Supreme Court over its compliance with past Supreme Court judgements.  In July 2021, the Court struck down certain provisions of the Ordinance, such as the four-year term of office for members, and the minimum age bar of 50 years to be appointed as a member of a tribunal.  Table 2 shows a detailed comparison of key provisions of the 2021 Bill with the 2021 Ordinance and the principles laid down by the Supreme Court in its judgement.  The Bill does not conform to the judgement of the Supreme Court and retains the provisions of the Ordinance that were struck down by the Court. 

For an analysis of the 2021 Ordinance, please see our note here.  For more details on the evolution of the tribunal system in India, please see our note

Table 1: Transfer of functions of key appellate bodies as proposed under the Bill

Appellate body

Role

Proposed entity

Appellate Tribunal under the Cinematograph Act, 1952

Adjudication of appeals against the Board of Film Certification

High Court

Appellate Board under the Trade Marks Act, 1999

Adjudication of appeals against orders of the Registrar

High Court

Appellate Board under the Copyright Act, 1957

Adjudication of certain disputes and appeals against orders of the Registrar of Copyright.   Disputes include those related to publications and term of the copyright

Commercial Court or the Commercial Division of a High Court*

Authority for Advance Rulings under the Customs Act, 1962

Adjudication of appeals against orders of the Customs Authority for advance rulings

High Court

Appellate Board under The Patents Act, 1970

Adjudication of appeals against decisions of the Controller on certain matters.  Matters include applications for patents and restoration of patents.

High Court

Airport Appellate Tribunal under the Airports Authority of India Act, 1994

Adjudication of:

  • disputes arising from the disposal of properties left on airport premises by unauthorised occupants, and
  • for appeals against the order of an eviction officer
  • Central government, for disputes arising from the disposal of properties left on airport premises by unauthorised occupants.
  • High Court, for appeals against orders of an eviction officer.

Airport Appellate Tribunal under the Control of National Highways (Land and Traffic) Act, 2002

Adjudication of appeals against orders of the Highway Administration on matters including, grant of lease or licence of highway land, removal of unauthorised occupation, and prevention of damage to highway.

Civil Court# 

Appellate Tribunal under the Protection of Plant Varieties and Farmers' Rights Act, 2001

Adjudication of appeals against certain orders of Registrar or Plant Varieties and Farmer Rights Authority

High Court

Appellate Board under the Geographical Indications of Goods (Registration and Protection) Act, 1999

Adjudication of appeals against orders of the Registrar

High Court

Notes: * Constituted under the Commercial Courts Act, 2015; # Refers to a Civil Court of original jurisdiction in a district and includes the High Court in the exercise of its ordinary original civil jurisdiction.
Sources: The Tribunals Reforms Bill, 2021; Parent Acts of the appellate bodies; PRS.

Table 2: Key provisions in the 2021 Bill and the Ordinance vis-a-vis the Supreme Court judgements

Provisions

2021 Ordinance

Supreme Court Judgement of July 2021

2021 Bill

Term of office of Chairperson and members

Four-year term with eligibility for re-appointment.

The Court stated that a short tenure of members (such as three years) along with provisions of re-appointment increases the influence and control of the Executive over the judiciary.  In a short tenure, by the time the members achieve the required knowledge, expertise and efficiency, one term gets over.  This prevents enhancement of adjudicatory experience, thereby, impacting the efficacy of tribunals.

The Court struck down the provision of four -year term and reiterated its past judgements, which recommended a five-year term with eligibility for re-appointment.  

Same as that in Ordinance.

Minimum age requirement for appointment of Chairperson and members

50 years

The Court observed that the minimum age requirement of 50 years violates past Court judgements, where the Court has stated that advocates with at least 10 years of relevant experience must be eligible to be appointed as judicial members, as that is the qualification required for a High Court judge.  Such a high age limit also prevents the recruitment of young talent.

The provision was struck down.

Same as that in Ordinance.

Time limit for appointments

Preferably within three months from the date of the recommendations of the search-cum-selection committee.

The Court noted that not mandating the central government to make appointments within three months (from the date of recommendation of the search-cum-selection committee) leads to delay in the appointment of members.  This impacts the functioning and efficacy of tribunals.

The provision was struck down over non-compliance with past judgements, which mandated the appointments to be made within three months.

Same as that in Ordinance.

Number of recommendations for a post

Two names for each post.

The Court stated that the recommendations for appointment of members by the search-cum-selection committee should be final.  The Executive must not be allowed to exercise any discretion in matter of appointments in a tribunal.

The Court struck down the provision and reiterated its past judgement, which specified that the selection committee must suggest one name for each post.  The Committee may recommend one name in wait list.  

Same as that in Ordinance.

Sources: The Tribunals Reforms Ordinance, 2021; The Tribunals Reforms Bill, 2021; Madras Bar Association vs Union of India, W.P.(C) No. 000502 of 2021; PRS.