MANY regulators have raised a red flag over what they call the “tangential route” taken by the government to shuffle around the working of over two dozen appellate tribunals and the process of making appointments at their helm. They say that this could dilute their sectoral specialisation, impact their functioning and could involve a direct conflict of interest if the government were to be appear as a litigant before a tribunal.
The amendments moved to the Finance Bill, 2017, last week not only involved changes to applicable tax proposals but also structural changes to tribunals, appellate tribunals, boards and authorities under 17 separate Acts.
While some tribunals are proposed to be replaced and their functions are to be taken over by existing tribunals set up under other Acts, another provision moved as part of these amendments empowers the central government to specify the appointments, tenure, removal, and reappointment of chairpersons and members of tribunals through rules — as against the existing provisions on appointments being specified clearly in the laws establishing these tribunals.
Former chairman of the Competition Appellate Tribunal (COMPAT), Justice Vikas S Sirpurkar has asked why in the name of saving expenses, did the Government not move amendments (to the relevant parent legislation under which these institutions were set up). “Shuffling around does reduce efficiency. When I was heading COMPAT, I was given additional charge of the Airports Economic Regulatory Authority Appellate Tribunal. Despite my best efforts, work suffered,” he said.
The tribunals, asserted the former Supreme Court judge who headed COMPAT for 27 months, were created through an Act of Parliament and thereby the changes should have been moved through amendments to the respective legislation governing them.
When contacted, S S Chahar, the current Member (Judicial) of the Cyber Appellate Tribunal, which has been subsumed under the Telecom Disputes Settlement and Appellate Tribunal (TDSAT), said: “As a member (of the Tribunal), the only thing that I can say is that (the move) is not good. Not ensuring that there are separate benches — that, in my view, is not good.” At present, the Cyber Appellate Tribunal does not have a chairperson.
Tribunals are quasi-judicial bodies headed by a senior member of the judiciary, such as a judge of the Supreme Court or Chief Justice of a High Court. Former chairman of the Central Electricity Regulatory Commission Dr Pramod Deo, the longest serving electricity regulator in India, said that combining two appellate tribunals involves the question of technical and domain expertise in disparate sectors which can sometimes be bridged by equipping the body with members having these technical skills. “But the problem is on the issue of tinkering with existing legislation that govern each of these appellate tribunals and the changes being made outside of it (through rules to be issued)… that can certainly be challenged,” he told The Indian Express. The changes, he asserted, should not be outside of the specific legislation for the purpose.
A functionary of the Appellate Tribunal for Foreign Exchange, constituted under the Foreign Exchange Management Act, 1999, said the “tangential route” taken by the government was “more worrying”. He said there is the issue of possible conflict of interest if the government is the litigant before a Tribunal, given that it has direct role in the appointment of its chairperson and members.
Additionally, there are concerns over the impact of the move on the specialisation of tribunals in specific areas and the dilution of their domain expertise. The Telecom Disputes Settlement and Appellate Tribunal (set up under the TRAI Act, 1997), for instance, is to take over the function of both the Cyber Appellate Tribunal (set up under the Information Technology Act, 2000) and the Airports Economic Regulatory Authority Appellate Tribunal (which was set up under the Airports Economic Regulatory Authority of India Act, 2008).
According to PRS Legislative Research, the TDSAT may not have the expertise to adjudicate matters related to the pricing of airport services and it is unclear if the National Company Law Appellate Tribunal (NCLAT), which deals with matters related to company disputes and governance, will have the expertise to deal with matters related to anti-competitive practices, which are currently dealt by the Competition Appellate Tribunal.
The move to reduce the existing numbers of tribunals is in keeping with the NDA Government’s stated objective. For this, the Centre had set up an inter-ministerial group under law secretary Suresh Chandra in February 2016 with the mandate to reduce the number of tribunals from 36 to 18.
This inter-ministerial group is learnt to have suggested a three-stage action plan for converging tribunals.