Reforms in tribunals necessary but Modi govt isn’t helping judiciary by scrapping them

The ordinance scraping intellectual property and film certification tribunals is yet another case of the Modi government using a sledgehammer to crack open a difficult nut.

Prime Minister Narendra Modi speaks in the Rajya Sabha | PTI

The Narendra Modi government adopted the ordinance route to promulgate The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 earlier this month. It effectively scrapped tribunals such as the Intellectual Property Appellate Board and the Film Certification Appellate Tribunal. Most of the IPAB’s functions have been transferred to commercial courts and the commercial division of high courts, while the high courts will subsume the appellate tribunal’s powers.

The abolishing of tribunals is a continuation of the Narendra Modi government’s policy of rationalising tribunals in phases, according to a Bill introduced in the Lok Sabha by Finance Minister Nirmala Sitharaman in February 2021. She cited data from the last three years to show that tribunals do not contribute to a reduction in the workload for the high courts, nor faster justice delivery, and come at an expense to the exchequer.

Understandably, if a tribunal has a high pendency of cases and if most of its decisions are appealed before the high courts, the argument to scrap the institution is a strong one. However, it is worth analysing whether the concept of a specialised quasi-judicial tribunal itself is flawed, or if shortcomings are the result of other factors like lack of specialisation or institutional support.

Role of tribunals in the judicial system

Tribunals are specialised quasi-judicial bodies that are established under a statute. They have specific powers granted under the parent statute and specialised expertise in a subject, unlike other courts that have general expertise and determine cases based exclusively on legal reason.

The objective of tribunals is to streamline the delivery of justice, by adopting relaxed rules of procedure, employing experts and making quicker decisions. The finance minister’s Bill says that tribunals have not reduced pendency but stops short of giving a reason behind it. In the case of the Intellectual Property Appellate Board (IPAB), government lethargy in appointing technical members resulted in an increase in the pendency of cases. In its 17 years of existence, the IPAB did not have a chairperson for a total of 1,130 days, according to a blog post by Prashant Reddy and Prannv Dhawan. With the Film Certification Appellate Tribunal (FCAT), the concern is that political appointments compromise its independence. In both cases, design flaws and poor implementation are the reason for below-par functioning, but this cannot be used to fault the institution itself.

The idea of constituting specialised tribunals to adjudicate disputes developed in the context of delays and backlog in the judicial system. During the Emergency era, the Indira Gandhi government deliberated upon a significant overhaul to India’s constitutional framework. In February 1976, it constituted the Swaran Singh Committee to look into any amendments required to the Constitution. In its report, the committee took note of the pendency in high courts, and recommended establishing tribunals to reduce judicial delays. Subsequently, the Constitution was amended to include Articles 323A and 323B, which allow central and state governments to establish tribunals. The Statement of Objects and Reasons to the amendment states that these provisions were incorporated to reduce mounting arrears in high courts, and ensure speedy disposal of justice.

Reform without reinventing the wheel

The key word used in the ordinance is ‘reform’, which means an improvement or change to the existing structure or institution. This is not what the Tribunal Reforms Ordinance seeks to do. Instead, it aims to abolish tribunals. A number of concerns raised about the tribunals’ functioning reflect non-compliance with the Supreme Court’s directions, rather than an inherent institutional flaw.

In L Chandra Kumar vs Union of India (1997), the Supreme Court made various recommendations to ensure proper administration and independence of tribunals. For example, it recommended that the Ministry of Law and Justice should oversee the functioning of tribunals, with the help of an independent supervisory body. Former IPAB chairperson Prabha Sridevan highlights the IPAB’s dependence on the Department for Promotion of Industry and Internal Trade (DPIIT) for infrastructure and personnel, and the constitution of the search-cum-selection committee as fatal design flaws. With the FCAT, the scope for political appointments in a body that addresses disputes on censorship is the main concern.

The Finance Act, 2017 aimed to address these concerns. It clarified that the central government would appoint the chairperson and other members of tribunals based on recommendations by a search-cum-selection committee. The Chief Justice of India, or a Supreme Court judge appointed by the CJI, would be its chairperson with a casting vote. The government then notified the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 on 12 February 2020.

The Rules, which detail the procedure for selection, compensation for members and procedure for initiating inquiries for misbehaviour (among other things), were another step in the same direction. The Rules also have a detailed Schedule on the expertise required for appointments as office-bearers in tribunals. The next logical step in tribunal reforms would have been to make these appointments and develop capacity in tribunals so they could speedily redress grievances. Instead, the Modi government did a U-turn in February 2021 and introduced the Tribunal Reforms Bill to scrap tribunals and in April, the President of India promulgated the Ordinance.

This is yet another case of the Union government using a sledgehammer to crack open a difficult nut. One of the first decisions taken by the Modi government in 2014 was to abolish the Group of Ministers (GoM) and the Empowered Group of Ministers (EGoM) set up under the United Progressive Alliance (UPA) rule. The Manmohan Singh-led government formed these to address contentious policy issues. When the National Democratic Alliance (NDA) came to power in 2014, there were 21 GoMs and nine EGoMs – a clear indication of slow decision-making.

The Modi government scrapped them, transferred matters to line ministries and streamlined them under the Cabinet Secretariat and the Prime Minister’s Office (PMO). Eventually, it  realised that the Council of Ministers was too large a group to discuss every issue. By the end of NDA’s first term, they had resumed the practice of setting up GoMs and EGoMs, albeit without formal recognition. Groups headed by Union ministers were looking at issues such as amending the Bureau of Indian Standards Act, the National Commission for Women Act and the Juvenile Justice Act. The second NDA government set up more GoMs to address specific issues such as the onion crisis in November 2019 and privatisation of Air India.

A notable difference between GoMs under the UPA versus those under its successor is that the Modi government’s informal GoMs also have subject-matter specialists weighing in on issues. This is a key learning that can be transposed to tribunal reforms.

Judges with expertise

The Tribunal Reforms Ordinance may end up throwing the baby out with the bathwater, and it remains unclear if the Modi government will backtrack on its position. However, the need to build capacity remains true for tribunals and courts. To do so, the government could consider constituting specialist benches for different kinds of matters, and encouraging judges to develop domain expertise.

For example, the Judicial Institute of the World Intellectual Property Organization (WIPO) offers capacity-building support by creating a space for dialogue on developments in intellectual property and exchange of ideas on its adjudication. A Department of Justice commissioned report suggests developing a mechanism to evaluate the performance of judges and improve accountability. Such capacity-building measures are essential in a country that has 5.7 million cases pending in its high courts. It will be a small but effective step to ensure that justice is neither denied nor delayed.

The authors work at the Koan Advisory Group, a technology policy consulting firm. Views are personal. 

This article is part of ThePrint-Koan Advisory series that analyses emerging policies, laws and regulations in India’s technology sector. Read all the articles here.

(Edited by Prashant Dixit)