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:
|
|
|
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.
Our Constitution provides protection against laws imposing criminal liability for actions committed prior to the enactment of the law. Article 20 (1) under the Part III (Fundamental Rights), reads: 20. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Thus, the maximum penalty that can be imposed on an offender cannot exceed those specified by the laws at the time. In the context of the Bhopal Gas tragedy in 1984, the Indian Penal Code (IPC) was the only relevant law specifying criminal liability for such incidents. The CBI, acting on behalf of the victims, filed charges against the accused under section 304 of the IPC (See Note 1). Section 304 deals with punishment for culpable homicide and requires intention of causing death. By a judgment dated September 13, 1996, the Supreme Court held that there was no material to show that “any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being.” The Supreme Court thus directed that the charges be re-framed under section 304A of the IPC (See Note 2). Section 304A deals with causing death by negligence and prescribes a maximum punishment of two years along with a fine. Consequently, the criminal liability of the accused lay outlined by section 304A of the IPC and they were tried accordingly. Civil liability, on the other hand, was adjudged by the Courts and allocated to the victims by way of monetary compensation. Soon after the Bhopal Gas tragedy, the Government proposed and passed a series of laws regulating the environment, prescribing safeguards and specifying penalties. These laws, among other things, filled the legislative lacunae that existed at the time of the incident. Given the current provisions (See Note 3), a Bhopal like incident will be tried in the National Green Tribunal (once operationalized) and most likely, under the provisions of the the Environment (Protection) Act, 1986. The criminal liability provisions of the Act (See Note 4) prescribe a maximum penalty of five years along with a fine of one lakh rupees. Further, if an offence is committed by a company, every person directly in charge and responsible will be deemed guilty, unless he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such an offence.
The civil liability will continue to be adjudged by the Courts and in proportion to the extent of damage unless specified separately by an Act of Parliament.
Notes 1) IPC, Section 304. Punishment for culpable homicide not amounting to murder Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 2) IPC, Section 304A. Causing death by negligence Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 3) Major laws passed since 1984: 1986 - The Environment (Protection) Act authorized the central government to take measures to protect and improve environmental quality, set standards and inspect industrial units. It also laid down penalties for contravention of its provisions. 1991 - The Public Liability Insurance Act provided for public liability - insurance for the purpose of providing immediate relief to the persons affected by an accident while handling hazardous substances. 1997 - The National Environment Appellate Authority Act established to an appellate authority to hear appeals with respect to restriction of areas in which any industries, operations or processes are disallowed, subject to safeguards under the Environment (Protection) Act, 1986. 2009 - The National Green Tribunal Act, yet to be notified, provides for the establishment of a tribunal for expeditious disposal of cases relating to environmental protection and for giving relief and compensation for damages to persons and property. This Act also repeals the National Environment Appellate Authority Act, 1997. 4) Criminal liability provisions of the Environment Protection Act, 1986 Section 15. Penalty for contravention of the provisions of the Act (1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. (2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years. Section 16. Offences by Companies (1) Where any offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
