On June 1, 2017, Union Finance Minister Arun Jaitley and his 'smart' advisers in the Department of Revenue carried out a real administrative and legal coup against the functioning of as many as 26 Tribunals reduced to 19 on the specious plea of duplication of functioning. The purpose of this coup was to notify the amended rules of appointments and removals of members from these tribunals, even as some of them were disbanded and their functioning merged with other tribunals as stated in the Finance Bill 2017. In short, the
It is usually the practice of the Central Government to publish a draft of statutory rules in the Gazette and invite comments from the public before notifying such rules into law. However, for reasons best known to the political leadership and their 'smart' advisers, the rules were directly notified into law without any invitation for comments from the public.
Even Parliament was bypassed. Or rather, Parliament allowed itself to be bypassed as honorable members, being what they are, could not figure out the enormity of the problems that the Finance Bill provisions for amending Qualifications, Experience and other Conditions of Service of Members Rules for statutory Tribunals would unleash against a functioning system of Tribunals. Kindly note that the Finance Bill is a money Bill and is not the appropriate legislative tool for this kind of legislative action.
In brief, the objective of the amendment was to pack and repack all the Tribunals with hand-picked officials and pliant judges.
This was done despite the fact there has been a Bill pending in Parliament since 2014, which seeks to ensure uniformity in conditions of service across 26 tribunals, appellate tribunals, and other authorities. The Bill amends the parent Acts of each of the 26 tribunals. While the amendments to the Finance Bill, 2017 are delegating appointment and removal functions to the rules, the 2014 Bill has retained these provisions in the parent Act. The 2014 Bill has also been examined by a Parliamentary Standing Committee, which agreed that tribunals must be free from executive involvement.
Additionally, the amendments to the Finance Bill, 2017 have done away with seven existing tribunals such as the Airports Economic Regulatory Appellate Authority (AERA). Functions of these tribunals have been transferred to existing tribunals. For example, the functions of the AERA have been transferred to the Telecom Disputes Settlement and Appellate Tribunal (TDSAT). This implies that TDSAT will now also have to decide upon matters related to pricing of airport services. The question is whether the TDSAT has the technical competence to deal with such diverse issues. Similarly, it is unclear if the National Company Law Appellate Tribunal, which will replace the Competition Appellate Tribunal, will have the expertise to deal with matters related to anti-competitive practices.
To top it all, the rules of removal of members or chairmen of tribunals lack an application of mind, or betray extreme cunningness of low quality, as they seek to transfer the power in this regard from the Supreme Court to the central government, which, in many cases, could be the respondent.
According to Rule 8, a written complaint against any judge on the tribunal is to be scrutinized by the "ministry or department of the government of India" under which the tribunal has been constituted. After a preliminary scrutiny, if the relevant ministry or department is of the opinion that there are reasonable grounds for an inquiry, it shall make a reference to a committee constituted under Rule 7 to conduct an inquiry. The rules are entirely silent on the composition of the committee but once an i