Little accountability put on heads & members of tribunals, says SC

The Crisis of Accountability in India’s Tribunal System: A Judicial Critique

The landscape of quasi-judicial adjudication in India is currently at a critical crossroads. Recently, the Supreme Court of India expressed profound concern over the functioning of various tribunals, pointing out a glaring lack of accountability among their heads and members. This observation comes at a time when the executive and the judiciary are locked in a persistent dialogue regarding the independence, tenure, and structural integrity of these bodies. As a Senior Advocate observing the evolution of our legal system, it is evident that the “tribunalisation” of justice, intended to de-clog the regular courts, is facing a systemic identity crisis.

The Supreme Court’s remarks are not merely a critique of individual performance but a fundamental questioning of the institutional framework governing tribunals. When the highest court of the land observes that there is “little accountability” put on the shoulders of those presiding over these bodies, it signals a deep-seated frustration with the delays, vacancies, and perceived lack of judicial rigor that have come to characterize many of these institutions. This article explores the nuances of this debate, the legislative history of the Tribunals Reforms Act, 2021, and the potential impact of the amendments currently being finalized by the Government of India.

Understanding the Core Conflict: The Tribunals Reforms Act, 2021

The genesis of the current friction lies in the Tribunals Reforms Act, 2021. This legislation was introduced with the stated objective of streamlining the tribunal system by abolishing certain “redundant” bodies and merging others. However, the Act quickly became a flashpoint for constitutional litigation. Various bar associations across the country challenged the law, asserting that several of its provisions directly contravened prior judgments of the Supreme Court, particularly those concerning the independence of the judiciary.

The primary contention revolves around the service conditions of tribunal members. In several landmark rulings, including the Madras Bar Association series of cases, the Supreme Court has consistently held that for a tribunal to be an effective substitute for a High Court, it must possess a similar degree of independence. The Court had specifically prescribed a five-year tenure for members to ensure stability and freedom from executive pressure. However, the 2021 Act initially sought to cap this tenure at four years, leading to a direct confrontation between the legislature and the judiciary.

The Attorney General’s Submission and the Path Forward

In a recent development that offers a glimmer of hope for resolution, Attorney General R. Venkataramani informed the Supreme Court that the government is in the process of finalizing certain amendments to the 2021 law. These amendments are expected to address the concerns raised by the bar associations and the court regarding tenure and service conditions. The AG’s submission suggests a willingness on the part of the executive to align the statutory framework with the judicial mandates that have emphasized a five-year term for members.

While the promise of amendments is a positive step, the underlying issue of accountability remains unaddressed. The Supreme Court’s observation about the lack of accountability highlights a paradoxical situation: while the judiciary fights for the independence and security of tenure for tribunal members, it also recognizes that this independence must be balanced with a robust mechanism to ensure performance and ethical conduct. Without such a mechanism, the tribunal system risks becoming a sanctuary for inefficiency.

The Dilemma of Administrative Members as Heads of Tribunals

Another significant point of contention mentioned by the Attorney General involves the appointment of administrative members as heads of tribunals. Historically, many tribunals have been led by retired judges of the High Courts or the Supreme Court (Judicial Members). However, the executive has increasingly pushed for allowing administrative members—typically retired bureaucrats—to take on leadership roles within these bodies.

The legal community, led by various bar associations, argues that this breaches the principle of separation of powers. A tribunal, while technically a quasi-judicial body, performs functions that are essentially judicial in nature. Allowing an administrative member to head such a body could potentially dilute the judicial character of the institution. The Supreme Court has often reiterated that if a tribunal replaces a court, its presiding officer must possess the same legal acumen and judicial temperament as a judge. The move to appoint administrative heads is seen by many as an attempt by the executive to exert greater control over the adjudicatory process.

The Judicial Perspective on Accountability and Performance

The Supreme Court’s recent frustration stems from the high pendency of cases and the frequent stay orders issued by High Courts on tribunal decisions. The Court noted that if tribunals were functioning with the required level of competence and accountability, the burden on the High Courts would naturally decrease. Instead, we see a trend where tribunals are often bypassed or their orders are routinely challenged due to a perceived lack of depth in their findings.

Accountability in this context refers to more than just disciplinary action; it refers to a standard of excellence. It involves the timely disposal of cases, the quality of judgments, and the adherence to the principles of natural justice. Currently, there is no centralized body to monitor the performance of tribunal members or to ensure that they are meeting the institutional goals for which these bodies were created. The Court’s comments underscore the need for a “peer review” or a “performance audit” mechanism that does not compromise judicial independence but ensures that the taxpayer-funded infrastructure of tribunals delivers results.

The Constitutional Mandate: Articles 323A and 323B

To understand the depth of this issue, one must look at the constitutional basis of tribunals. Introduced via the 42nd Amendment in 1976, Articles 323A and 323B empowered Parliament and State Legislatures to set up tribunals for administrative and other matters. The goal was to provide specialized adjudication and reduce the workload of the traditional courts. However, the landmark judgment in L. Chandra Kumar v. Union of India (1997) clarified that tribunals are not intended to be a complete substitute for the judiciary and that their decisions are subject to the scrutiny of High Courts under Articles 226/227.

Since then, the evolution of tribunal law has been a constant struggle to define the boundaries of executive influence. The Supreme Court has insisted that the selection committee for tribunal members must be dominated by the judiciary to ensure that appointments are made on merit rather than political or bureaucratic patronage. The recent pushback against the 2021 Act is a continuation of this constitutional struggle to protect the “basic structure” of the Constitution, which includes the independence of the judiciary.

The Need for a National Tribunals Commission (NTC)

For years, legal experts and the Supreme Court itself have advocated for the creation of a National Tribunals Commission (NTC). An NTC would act as an independent, umbrella body to supervise the functioning of all tribunals in India. It would handle recruitment, provide administrative support, and most importantly, establish an accountability framework.

Currently, different tribunals fall under the jurisdiction of different parent ministries. For example, the Income Tax Appellate Tribunal (ITAT) is under the Ministry of Law and Justice, while others may fall under the Ministry of Finance or the Ministry of Environment. This “parent ministry” model creates an inherent conflict of interest, as the ministry is often a party to the litigation before the tribunal. Moving towards an NTC model would strip the executive of its administrative control over these bodies, thereby enhancing their independence and providing a centralized platform for enforcing accountability.

Impact on the Litigant: Why This Matters

Beyond the legal and constitutional debates, the “accountability gap” has a direct impact on the common litigant. When a tribunal member is not accountable for the quality or speed of their work, it is the citizen who suffers. Vacancies in tribunals like the National Company Law Tribunal (NCLT) or the Armed Forces Tribunal (AFT) have led to delays that span years, defeating the very purpose of “speedy justice” that tribunals were supposed to provide.

The uncertainty surrounding tenure and service conditions also affects the quality of talent attracted to these positions. If the term of office is too short (such as the proposed four years), experienced legal professionals and retired judges may be reluctant to apply, leading to a “brain drain” where tribunals are staffed by individuals who may view the role as a post-retirement perk rather than a serious judicial commitment. This lack of expertise directly contributes to the lack of accountability that the Supreme Court has highlighted.

The Administrative vs. Judicial Divide: A Deeper Look

The role of administrative members in tribunals is a unique feature of the Indian system. These members bring specialized technical or domain expertise—such as in tax, environment, or service matters—which is invaluable for complex adjudications. However, the problem arises when the line between “technical expertise” and “judicial decision-making” becomes blurred. The Supreme Court’s stance is clear: while administrative members can assist the bench, the presiding authority must be judicial to ensure that the rule of law and legal precedents are correctly applied.

The AG’s mention of amendments regarding administrative members heading tribunals is a crucial point of interest. If the government persists in allowing non-judicial members to head these bodies, it may face further strikes from the Court. A compromise must be reached where the technical expertise of the administrative member is utilized without compromising the judicial leadership necessary for a fair trial.

Conclusion: Restoring Faith in Quasi-Judicial Institutions

The Supreme Court’s remarks regarding the lack of accountability in tribunals serve as a wake-up call for both the executive and the legal fraternity. The Attorney General’s assurance that amendments are in the pipeline suggests that the government is listening, but the quality of these amendments will be the true test. Will they merely be cosmetic changes to satisfy the Court’s immediate concerns, or will they address the structural rot that has weakened the tribunal system?

As we move forward, the focus must shift from a mere debate over “tenure” to a broader discussion on “performance.” Independence and accountability are two sides of the same coin. A judge or a tribunal member is given independence not to act at their whim, but to perform their duties without fear or favor. In return, the system demands a high level of accountability to the law and the constitution. The proposed amendments to the Tribunals Reforms Act, 2021, offer a historic opportunity to finally bridge the gap between these two principles and create a tribunal system that is truly fit for purpose in the 21st century.

The legal community awaits the final draft of these amendments with bated breath. For the sake of the thousands of litigants who seek justice through these specialized bodies, one can only hope that the new laws will foster an environment of professional excellence, judicial independence, and, most importantly, the accountability that the Supreme Court has rightly demanded.