November 23

Raeesa Vakil: Appointments to Administrative Tribunals in India

Administrative tribunals in India occupy a historically contested place within the constitutional framework. Much of this contestation has dealt with questions of regulatory independence, and consequently, with the manner of appointments of judges to tribunals. A recent report on restructuring administrative tribunals by the Law Commission of India fails to address this critical question.

In August 2016, the Supreme Court decided the case of Gujarat Urja Vikas Nigam v. Essar Power Ltd., an appeal from a regulatory tribunal that concerned a contractual dispute on electricity supply. After deciding the contractual question, Justice Anil R. Dave and Justice Adarsh Goel of the Supreme Court ended the judgment with a section titled ‘An Epilogue’ in which they deemed it “necessary to draw attention of all concerned to a vital issue of composition and functioning of Tribunals”. They accordingly called upon the Law Commission of India (an advisory body to the government, constituted by executive order) to look into a series of specific questions. The Commission was asked, in particular, to examine whether the statutory framework that governs appointments of judges to administrative tribunals required changes in light of various previous Supreme Court rulings on these questions. The Commission followed the Court’s direction, and has examined these questions over the last year, releasing a report last month, titled ‘An Assessment of Statutory Frameworks on Tribunals in India’ (a summary of their recommendations can be found here) in October 2017.

The Indian Supreme Court’s detour into administrative reform in the course of deciding a contractual dispute raises, of course, questions about its use of the power of judicial review, but must also be seen in light of a longer contestation between the Court, Parliament, and the executive, over control of administrative tribunals. This contestation dates back to the 1970s, when repeated attempts by the executive to constrain the power of the judiciary put the Court and the Executive in direct conflict. The executive’s power to constitute administrative tribunals to deal with disputes on a number of subjects was incorporated into the Constitution by an amendment passed during a period of deep constitutional crisis; in this ‘Emergency’ the executive effectively suspended constitutional governance and curtailed the Supreme Court’s power to enforce fundamental rights. This 42nd Constitutional Amendment was subsequently subjected to judicial review and the bulk of it was struck down, but the provisions on tribunals survived untouched at the time.

The Indian Supreme Court subsequently made serious inroads into the executive’s power to constitute tribunals to decide disputes under Articles 323A and 323B of the Constitution. These provisions, and their effecting legislation were originally designed to vest almost complete control in the executive while divesting the High Courts of jurisdiction to exercise judicial review. The Court first established that if tribunals were to substitute for courts and exclude their oversight, appointments must be made in a manner that secured the independence of tribunals (i.e. in consultation with the judiciary) – a separation of powers claim. Subsequently, in L. Chandra Kumar v. Union of India (1997) the Supreme Court overruled this ‘alternative institutional mechanism’ theory, holding that administrative tribunals could not be exempt from judicial review by High Courts, and that the absence of the safeguards given to judicial appointments meant that tribunals and courts could not be seen as equal. Tribunals, it was clear, supplemented, and did not supplant, courts.

Executive pushback to the decision in L. Chandra Kumar was immediate, and was met with immediate responses from the judiciary. In 2005, the executive attempted to constitute an overarching National Companies Law Tribunal and a National Tax Tribunal; in 2006, the legislation constituting these two bodies was struck down by the Supreme Court in Madras Bar Association v. Union of India. Also in 2005, the executive narrowly avoided having the governing legislation for the Competition Commission struck down on similar grounds of appointments and independence, by assuring the Court it would bring in necessary amendments (Brahm Dutt v. Union of India).In 2008, the executive called upon the Law Commission to reconsider L. Chandra Kumar’s case, and the subsequent report recommended that the Supreme Court revisit the decision in L. Chandra Kumar, affirming that the executive should be allowed to exempt tribunals from judicial review by High Courts (the Supreme Court did not do so). The National Green Tribunal, an ‘environmental court’ established by the executive in 2010, after much prodding from the judiciary, has been the site of extensive litigation, especially over appointments.

The Supreme Court’s interventions on appointments to tribunals have focused on two aspects: concerns over separation of powers (securing independence from the executive by making the judiciary a part of the appointment process), and over qualifications (ensuring that judges in tribunals have adequate legal, as well as domain-specific expert knowledge, to decide disputes). To overcome these two hurdles, and to avoid the exercise of judicial review over constituted tribunals, the common practice, varying slightly from tribunal to tribunal, has become for the executive appoint former judges and civil servants as tribunal judges, in consultation with the judiciary. Several laws mandate that only retired judges or civil servants can staff tribunals, and in 2016, one study found that 70% of retired Supreme Court judges went on to staff became tribunals and similar regulatory bodies.

It is unsurprising therefore, that the entire, well-compensated tribunal appointment system has been criticized as a being no more than a source of “excellent source of post-retirement for opportunities for several bureaucrats and High Court judges.” Deeper criticisms of this ­judicially-driven appointment system lie in whether it causes a conflict of interest within the judiciary, since the executive confirms judicial nominations to staff tribunals, and compensation for tribunal positions substantially exceeds judicial pensions. The question of whether the potential for a post-retirement position might influence a judge’s decision-making in Court has been raised politically, along with calls for a ‘cooling-off’ period of two years post-retirement. While serving as Chief Justice of the Supreme Court, Justice RM Lodha had also suggested that one way to “insulate judges from the lure of post-retirement jobs” could be to have them opt or one of two choices: a substantial pension, or remaining in the running for a post-retirement opportunity. None of these suggestions or criticism have gained much traction or deeper examination.

A different set of concerns have arisen with the appointment of non-judicial members, who are either expert advisors (specialists or industry experts), or administrative advisors (former civil servants). It has been argued that the rapid expansion of the number of tribunals is directly linked to a vested interest in creating more appointments, despite the fact that tribunals have not proved effective in disposing of cases quickly and efficiently, as they were intended. More critically, a rising problem concerns unfilled appointments in tribunals (see, for instance, at the Armed Forces Tribunal, the National Green Tribunal); narrow qualifications for judges, combined with disagreements with the executive over confirmations of judicial nominations have resulted in substantial vacancies, which further delays dispute resolution.

Significantly, the Law Commission’s Report on tribunals addresses none of these concerns about appointments to tribunals. While reiterating the concerns that the Supreme Court has repeatedly expressed about the independence of tribunals, the Commission has not responded to potential conflicts of interest within the government and judiciary. It has not engaged with the question of vacancies, apart from recommended that they should not occur, and if they do, that they be addressed rapidly. It has not examined the several suggestions for cooling-off periods for judges, or for expanding the pool of nominees from which appointments could be made. The Commission’s report in this context has been deeply disappointing, and leaves all these critical questions unanswered.

In March 2017, soon after the Supreme Court directed the Law Commission to start examining these problems, the Government of India initiated a broad set of reforms that attempted to restructure 27 tribunals, each of which deal with a specific subject matter ranging from foreign exchange, railways, airports, companies, competition (anti-trust) and telecom. These were to be combined and unified, bringing the number of tribunals down to 19. Unusually, the government sought to achieve this by bringing provisions in through the Finance Bill 2017: an annual legislation that gives effect to the Government’s budget. The move was a clever way to dodge legislative scrutiny by the upper house (Rajya Sabha) of India’s bicameral legislature.

The amendments proposed by the Government entirely remove the judiciary and the legislature from the process of making appointments to the restructured tribunals; instead, the government is now vested with the power to make rules for appointments, qualifications, the term of office, and service conditions for judges. Naturally, this has raised furious opposition, both politically and by legal commentators, many of whom see this as an attempt by the executive to take control of what has, until now, been a series of institutions largely responsive to judicial scrutiny. This is in addition to concerns about how the Bill was passed, as well as concerns about whether the merging of tribunals on separate subject areas will be effective. A member of the Opposition has filed a petition for judicial review, challenging the amendments to tribunals at the Supreme Court, arguing that the change in the appointments process, in particular, amounts to excessive delegation of legislative functions to the executive. While the case is still being heard, the Government of India has reportedly assured the Court during hearings that it will take steps to “bring the selection process to tribunals in consonance” with prior Supreme Court rulings on securing the independence of tribunals.

In light of these deep conflicts, the Law Commission of India had over a year to examine the issues concerning the appointment of judges to tribunals, and to respond to several criticisms of the existing system. Rather than address these concerns, the Commission chosen only to reiterate the status quo. Scholars of administrative law will, therefore, look once again to the Indian Supreme Court as it re-examines the Finance Act.


Raeesa Vakil is a J.S.D. candidate at the Yale Law School.