INTRODUCTION
In 1976, the Constitution (Forty-second Amendment) Act inserted Part XIVA into the Constitution and, with it, a promise: that specialised tribunals would deliver quicker, cheaper and more expert adjudication than an overburdened court system could manage.1 Forty-five years later, Parliament enacted the Tribunals Reforms Act, 2021, a statute that abolished a series of appellate tribunals, returned their dockets to the High Courts and other forums, and prescribed conditions of service for the members of the tribunals that survived.2 The direction of travel is unmistakable. Where the late twentieth century witnessed the steady expansion of tribunalisation, the present decade has seen its contraction, and the 2021 Act is the clearest legislative expression of that reversal.
The Act would deserve scholarly attention for its scale alone. It demands closer scrutiny because of its provenance. Its central provisions on tenure and minimum age reproduce, almost verbatim, provisions of an ordinance that the Supreme Court had struck down in Madras Bar Association v. Union of India only weeks before the Bill was introduced.3 A statute that restores what a constitutional court has just invalidated, without altering the legal basis of the invalidation, raises questions that go beyond administrative law into the architecture of the separation of powers itself.
This paper evaluates the Tribunals Reforms Act, 2021 against the constitutional standards that the Supreme Court has developed over three decades of tribunal jurisprudence, beginning with the guarded endorsement of tribunalisation in the 1980s and culminating in the insistence, from L. Chandra Kumar onwards, that tribunals discharging judicial functions must possess independence comparable to that of the courts they supplement.4 Part II traces the constitutional foundations of tribunalisation. Part III examines the Finance Act, 2017 and the litigation it generated. Part IV dissects the anatomy of the 2021 Act. Part V analyses the separation of powers problem created by legislative override. Part VI offers a functional assessment of the erosion of adjudicatory independence, with comparative signposts. Part VII outlines reform pathways, and Part VIII concludes.
THE CONSTITUTIONAL FOUNDATIONS OF TRIBUNALISATION IN INDIA
A. The Forty-second Amendment and the promise of Articles 323A and 323B
Articles 323A and 323B, inserted by the Forty-second Amendment, furnished the express constitutional basis for tribunalisation. Article 323A empowered Parliament to establish administrative tribunals for disputes relating to the recruitment and conditions of service of public servants,5 while Article 323B permitted the appropriate legislature to create tribunals for a catalogue of other matters, from taxation and land reforms to elections and essential goods.6 The stated objectives were docket relief for the High Courts and the application of specialised expertise to technical disputes, objectives that commanded broad acceptance even among critics of the Amendment’s more notorious provisions.7
Parliament acted on the new power through the Administrative Tribunals Act, 1985, which established the Central Administrative Tribunal and enabled state tribunals, and which, significantly, excluded the jurisdiction of all courts except the Supreme Court under Article 136 in respect of service matters.8 The exclusion set up the first great constitutional test of tribunalisation. In S.P. Sampath Kumar v. Union of India, the Supreme Court upheld the Act by deploying the theory of effective alternative institutional mechanisms: judicial review need not remain the monopoly of the ordinary courts, provided the substitute forum was no less efficacious than the High Court it displaced.9 The judgment was a conditional blessing. Tribunals could stand in for courts, but only if they were, in substance, as independent and as capable as courts.
B. From Sampath Kumar to L. Chandra Kumar: substitution gives way to supervision
The condition proved difficult to satisfy in practice. Sampath Kumar itself extracted amendments concerning the mode of appointment of members before sustaining the statute,10 and within a few years the Court’s confidence in the substitution theory had visibly eroded. In R.K. Jain v. Union of India, the Court documented the institutional deficiencies of the tribunal system, the dependence of tribunals on their sponsoring ministries, the uneven quality of appointments, and the inadequacy of Article 136 as the sole corrective, and called for a comprehensive review.11
That review came in L. Chandra Kumar v. Union of India, where a seven-judge bench recast the constitutional settlement.12 The Court held that the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 forms part of the basic structure of the Constitution, which follows from the line of authority beginning with Kesavananda Bharati and Minerva Mills,13 and cannot be excluded even by constitutional amendment. Tribunals were re-characterised as supplemental rather than substitutional: they would function as courts of first instance in their domains, but their decisions would remain subject to the writ jurisdiction of Division Benches of the High Courts.14
Two later decisions completed the doctrinal framework. In Union of India v. R. Gandhi, the Court held that when jurisdiction is transferred from courts to tribunals, the tribunal must possess the essential attributes of the court it replaces: security of tenure, adequate qualifications, and freedom from executive dominance in appointment and administration. It laid down detailed corrections to the composition of the National Company Law Tribunal, including the principle that a selection committee must not be dominated by the executive and that short tenures with prospects of reappointment undermine independence.15 In Madras Bar Association v. Union of India, the Court struck down the National Tax Tribunal Act, 2005 in its entirety, holding that a tribunal exercising the jurisdiction of High Courts over substantial questions of law could not be constituted in a manner that compromised judicial independence.16 By 2014, then, the constitutional position was settled: tribunalisation was permissible, but adjudicatory independence was its non-negotiable price.
THE FINANCE ACT, 2017 AND THE BEGINNING OF THE RETREAT
A. Section 184 and the delegation of tribunal design to the executive
The modern phase of the controversy began with Part XIV of the Finance Act, 2017, enacted, contentiously, as a money bill.17 The Act merged several tribunals and, through Section 184, authorised the Central Government to prescribe by rules the qualifications, appointments, terms of office, salaries and removal of the members of nineteen tribunals.18 The delegation was remarkable in its breadth. Matters that the Supreme Court had treated as constitutive of judicial independence were handed to the rule-making power of the very executive that appears as the largest litigant before those tribunals. The Law Commission of India, reporting in the same year, warned that the framework of tribunals required rationalisation on principles of independence, uniformity and accessibility, not consolidation of executive control.19
B. Rojer Mathew and the fate of the 2017 Rules
The rules framed under Section 184 in 2017 lowered qualifications, permitted bureaucratic preponderance in search-cum-selection committees, and prescribed three-year terms.20 In Rojer Mathew v. South Indian Bank Ltd., a Constitution Bench struck down the 2017 Rules in their entirety as contrary to the parent Act and to the principles laid down in L. Chandra Kumar and R. Gandhi, directing that appointments be made under the pre-existing statutes until fresh rules were framed.21 The Court emphasised that short tenures punctuated by executive-controlled reappointment are inherently corrosive of independence, and that dilution of judicial dominance in selection committees is impermissible.22 On the antecedent question whether Part XIV could validly have been enacted as a money bill under Article 110,23 the Court doubted the correctness of the earlier approach and referred the issue to a larger bench, where it remains unanswered.24 The unresolved reference matters: if the money bill route fails, the entire statutory foundation of the present tribunal architecture is suspect.
C. Madras Bar Association (2020) and the 2020 Rules
The Government’s response was a fresh set of rules in 2020, which retained four-year terms and executive-heavy selection.25 In Madras Bar Association v. Union of India, decided in November 2020, the Supreme Court again intervened, this time surgically rather than wholesale.26 It directed that advocates with ten years’ experience be eligible for appointment as judicial members, that members hold office for five years, that search-cum-selection committees be composed so that the judiciary retains primacy, and that house rent and other allowances reflect the status of the office.27 Most significantly, the Court reiterated a proposal it had made repeatedly since R.K. Jain: the establishment of a National Tribunals Commission, an independent umbrella body to superintend appointments, administration and infrastructure, severing the umbilical cord between tribunals and their sponsoring ministries.28 The stage was set for compliance. What followed instead was confrontation.
THE TRIBUNALS REFORMS ACT, 2021: AN ANATOMY
A. Abolition of appellate tribunals and the transfer of jurisdiction
The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance was promulgated in April 2021,29 and its provisions were later re-enacted in the Tribunals Reforms Act, 2021. The statute’s first operation was abolition. The Film Certification Appellate Tribunal, the Intellectual Property Appellate Board, the Airport Appellate Tribunal, the Plant Varieties Protection Appellate Tribunal and the Authority for Advance Rulings, among others, were wound up, and their functions transferred to High Courts, commercial courts and other existing forums.30 The Statement of Objects and Reasons justified abolition on the ground that these tribunals had not materially reduced delay and had added a layer of litigation at considerable public expense.31
The justification is not implausible in the abstract, and honesty requires the acknowledgment that not every tribunal created since 1976 earned its keep. But the manner of abolition invites two objections. First, no empirical assessment of pendency, disposal rates or user experience was published; Parliament legislated on assertion rather than evidence, in contrast to the data-driven rationalisation the Law Commission had contemplated.32 Secondly, jurisdiction was returned to High Courts without any corresponding augmentation of judicial strength or specialised capacity, so that the delay rationale collapses into paradox: dockets were moved from slow specialised forums to slower generalist ones.
B. Tenure, minimum age and the recycling of invalidated provisions
The Act’s second operation concerned the tribunals that survive. The first proviso to Section 3(1) prescribes a minimum age of fifty years for appointment as chairperson or member,33 and Section 5 fixes a term of four years.34 These are, in substance, the very provisions of the 2021 Ordinance that the Supreme Court struck down in July 2021 in Madras Bar Association, where the Court held that the minimum age requirement arbitrarily excludes successful younger advocates, contradicts the direction that ten years’ practice suffices for judicial membership, and that a four-year term, against the five years the Court had mandated, discourages competent candidates and deepens dependence on reappointment.35 The majority found the provisions violative of the principles of separation of powers and judicial independence as applied in the earlier Madras Bar Association decisions.36
The dangers of a short tenure are not speculative. A member appointed at fifty for four years, hoping for reappointment or for post-retirement engagement, adjudicates in the shadow of the government that will decide that hope. R. Gandhi identified precisely this structure as the mechanism by which the executive converts formal adjudicatory independence into practical subordination. The 2021 Act does not merely fail to remedy the structure; it entrenches it in primary legislation, beyond the easy reach of rule-level correction.
C. The search-cum-selection committee and executive preponderance
The third operation lies in the appointments machinery. Section 3(7) obliges the search-cum-selection committee to recommend a panel of two names for each post, from which the Central Government makes the appointment, preferably within three months.37 The committee itself, constituted under Section 3, includes the Chief Justice of India or a nominee judge with a casting vote, but seats government secretaries alongside, and the administrative ministry’s secretary participates as convenor.38 The two-name panel is the critical device: even where the judiciary controls the shortlist, the final choice between candidates rests with the executive, which is to say, with the dominant litigant before the tribunal being staffed. R. Gandhi’s warning that selection must not be effectively controlled by the executive is difficult to reconcile with a scheme in which the executive always chooses between the finalists,39 and the Court’s insistence in the electricity regulation context that adjudicatory bodies require a judicial mind at their core points in the same direction.40 The timeline, moreover, is exhortatory rather than binding: “preferably” within three months is an invitation to the very vacancy crisis that has hollowed out tribunal benches for a decade.
LEGISLATIVE OVERRIDE AND THE SEPARATION OF POWERS
A. Madras Bar Association (2021): the ordinance struck down
The July 2021 judgment requires closer attention, because it is the hinge on which the constitutional evaluation of the Act turns. A majority of the Supreme Court struck down the first proviso to Section 184(1) of the Finance Act, 2017, as inserted by the 2021 Ordinance, prescribing the minimum age of fifty, and the provision fixing a four-year tenure, holding them contrary to the binding directions issued in the November 2020 decision and destructive of judicial independence.41 The dissent would have deferred to legislative choice in matters of service conditions, treating the directions of 2020 as advisory in the domain of policy.42 The disagreement is instructive, for it maps the boundary between permissible legislative response to judicial decisions and impermissible legislative disobedience of them. The majority’s position rests on the premise that the 2020 directions were not policy preferences but constitutional determinations,43 concretising the requirements of independence that flow from the basic structure. On that premise, Parliament’s options were to comply or to amend the Constitution, not to re-legislate the offending text.
B. Re-enactment without cure: a constitutional impasse
Parliament chose a third course. The Tribunals Reforms Act, 2021, passed in August 2021 and deemed to have come into force on the date of the Ordinance,44 re-enacted the minimum age and tenure provisions in materially identical terms. Indian constitutional doctrine has long distinguished between valid validating legislation and invalid legislative override. A legislature may retrospectively alter the legal foundation on which a judicial decision rests, thereby removing the defect the court identified; it may not simply declare that a judgment shall not have effect while leaving the defect intact.45 Where a statute reproduces invalidated provisions without curing the vice of invalidity, it amounts to the exercise of judicial power by the legislature, offending the separation of powers.46 Measured against that standard, the 2021 Act is vulnerable in the extreme. The defect identified by the Court was not a technicality of drafting but the substantive incompatibility of a fifty-year age floor and a four-year term with adjudicatory independence. Re-enactment changes the statutory vehicle, not the constitutional infirmity. Unsurprisingly, a fresh challenge by the Madras Bar Association is pending before the Supreme Court.47 Whatever its outcome, the episode has already exacted a price: five rounds of litigation between the Bar and the Union in under a decade, a rule-and-strike-down cycle that leaves tribunals unstaffed while the branches contend, and a visible erosion of the convention that judicial declarations on constitutional questions settle the law.
THE EROSION OF ADJUDICATORY INDEPENDENCE: A FUNCTIONAL ASSESSMENT
A. Institutional design and the executive-litigant problem
Constitutional doctrine aside, the 2021 Act should be evaluated functionally, by asking what it does to the position of the litigant who faces the State before a tribunal. The structural fact at the centre of Indian tribunalisation is that the government is the largest litigant before the very bodies it creates, staffs, houses and finances. R.K. Jain exposed the pathologies of ministry-administered tribunals a generation ago,48 and L. Chandra Kumar directed that tribunals be brought under a single independent nodal ministry precisely to attenuate the conflict.49 That direction has never been implemented. Under the 2021 Act, the parent ministry that administers the substantive statute continues to administer the tribunal that adjudicates disputes under it, in tension with the directive principle of separating the judiciary from the executive enshrined in Article 50.50 Selection by two-name panel, four-year renewable-in-effect tenure, and ministerial control of infrastructure and staff together produce a body that may decide honestly in every individual case and yet cannot be seen to be independent, and in the law of adjudication, appearance is substance.
B. Vacancies, infrastructure and access to justice
The second functional dimension is capacity. The Supreme Court in the November 2020 decision recorded the chronic vacancy position across tribunals and the failure to make appointments even from completed selection processes.51 The 2021 framework aggravates the problem at both ends: abolition transfers pending matters to High Courts already carrying historic backlogs, while the unattractive service conditions for surviving tribunals depress the quality and quantity of applicants. Access to justice suffers in a distinctly regressive pattern. The appellant before the erstwhile Intellectual Property Appellate Board or Film Certification Appellate Tribunal now litigates in a High Court, at High Court cost, at High Court distance, and on a High Court timeline. The Law Commission’s premise, that tribunals justify themselves by being cheaper, faster and closer to the user than courts,52 is inverted when tribunals are dissolved without rebuilding the judicial capacity their creation was meant to relieve.
C. Comparative signposts: Franks, Leggatt and the road not taken
Comparative experience underscores that retreat was not the only available response to tribunal dysfunction. The Franks Committee, reviewing British tribunals in 1957, insisted that tribunals be understood as machinery for adjudication rather than as appendages of the administration, and distilled the governing values of openness, fairness and impartiality.53 The Leggatt Review in 2001 diagnosed exactly the disease familiar in India, tribunals dependent on their sponsoring departments, and prescribed independence through unification: a single tribunals service, administered independently of the departments whose decisions the tribunals review.54 The prescription was enacted in the Tribunals, Courts and Enforcement Act 2007, which created a unified two-tier structure under a Senior President of Tribunals.55 The trajectory of English law, from suspicion of tribunals to their integration as an independent limb of the justice system,56 is the mirror image of India’s trajectory since 2017. Where the United Kingdom answered dysfunction with institutional independence, India has answered it with abolition and tightened executive control.
REFORM PATHWAYS: TOWARDS A NATIONAL TRIBUNALS COMMISSION
The elements of a constitutionally durable settlement are not obscure; they have been stated by the Supreme Court and the Law Commission with increasing precision. The centrepiece is the National Tribunals Commission recommended in the November 2020 decision: an independent statutory, or preferably constitutional, body to conduct selections, manage the tribunal cadre, own tribunal infrastructure and budgets, and monitor performance.57 Placing appointments and administration in a commission dominated neither by the executive nor by any single interest would resolve the executive-litigant conflict at its source, and funding charged on the Consolidated Fund of India would complete the insulation.58
Around that centrepiece, four subsidiary reforms follow from the case law. First, tenure: a fixed term of five to seven years, with reappointment either abolished or entrusted exclusively to the Commission on recorded criteria, so that no member adjudicates with an eye on the appointing ministry. Secondly, eligibility: restoration of the ten-year advocate standard for judicial membership, which widens the recruitment pool and aligns tribunal benches with the constitutional standard for High Court appointment. Thirdly, selection: committees with judicial primacy recommending one name per post, removing the executive’s choice between finalists that R. Gandhi condemned.59 Fourthly, rationalisation done honestly: abolition decisions preceded by published workload data and accompanied by transfer of judicial strength to the receiving courts. None of this requires constitutional amendment; it requires only that Parliament legislate a comprehensive Tribunals Code that treats the case law from L. Chandra Kumar to Madras Bar Association as a floor to build on rather than an obstacle to circumvent.60
CONCLUSION
The Tribunals Reforms Act, 2021 is a study in constitutional regression. Judged by its own stated purposes, it is unlikely to reduce delay, because it moves disputes from specialised forums to congested courts. Judged by the Supreme Court’s jurisprudence, it is presumptively invalid in its central provisions, because it re-enacts what the Court struck down without curing the defect. Judged institutionally, it deepens the very executive dominance over adjudication that three decades of case law have sought to dismantle. Tribunalisation in India was a constitutional wager: that the values of Article 50 and the basic structure could be preserved inside specialised bodies if, and only if, those bodies were built to be independent. The 2021 Act does not lose that wager so much as walk away from the table.
Yet retreat is not destiny. The materials for reconstruction lie ready in the Court’s directions and the Law Commission’s blueprint, and the pending challenge to the Act offers the occasion. A National Tribunals Commission, secure tenure, judicially led selection and evidence-based rationalisation would convert the present cycle of enactment and invalidation into a stable settlement. The question the Act poses is ultimately not about tribunals at all, but about whether legislative power will operate within the discipline of constitutional adjudication. On the answer depends not only the fate of India’s tribunals, but the credibility of the separation of powers that they were meant to serve.
*****
Footnotes
1. The Constitution (Forty-second Amendment) Act, 1976, § 46 (India).
2. The Tribunals Reforms Act, 2021, No. 33, Acts of Parliament, 2021 (India).
3. Madras Bar Assn. v. Union of India, 2021 SCC OnLine SC 463.
4. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
5. India Const. art. 323A.
6. India Const. art. 323B.
7. M.P. Jain, Indian Constitutional Law (8th ed. 2018).
8. The Administrative Tribunals Act, 1985, No. 13, Acts of Parliament, 1985 (India).
9. S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124.
10. Id.
11. R.K. Jain v. Union of India, (1993) 4 SCC 119.
12. L. Chandra Kumar, supra note 4.
13. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.
14. L. Chandra Kumar, supra note 4.
15. Union of India v. R. Gandhi, President, Madras Bar Assn., (2010) 11 SCC 1.
16. Madras Bar Assn. v. Union of India, (2014) 10 SCC 1.
17. The Finance Act, 2017, No. 7, Acts of Parliament, 2017 (India), pt. XIV.
18. Id. § 184.
19. Law Commission of India, Report No. 272: Assessment of Statutory Frameworks of Tribunals in India (2017).
20. The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 (India).
21. Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1.
22. Id.
23. India Const. art. 110.
24. Rojer Mathew, supra note 21.
25. The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 (India).
26. Madras Bar Assn. v. Union of India, (2021) 7 SCC 369.
27. Id.
28. Id.
29. The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, Ord. No. 2 of 2021 (India).
30. The Tribunals Reforms Act, 2021, supra note 2 (amendments effected to the enactments specified therein).
31. Statement of Objects and Reasons, The Tribunals Reforms Bill, 2021 (India).
32. Law Commission of India, supra note 19.
33. The Tribunals Reforms Act, 2021, supra note 2, § 3(1).
34. Id. § 5.
35. Madras Bar Assn., supra note 3.
36. Id.
37. The Tribunals Reforms Act, 2021, supra note 2, § 3(7).
38. Id. § 3.
39. R. Gandhi, supra note 15.
40. State of Gujarat v. Utility Users’ Welfare Assn., (2018) 6 SCC 21.
41. Madras Bar Assn., supra note 3.
42. Id. (Gupta, J., dissenting).
43. Madras Bar Assn., supra note 26.
44. The Tribunals Reforms Act, 2021, supra note 2, § 1(2).
45. Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283.
46. Madan Mohan Pathak v. Union of India, (1978) 2 SCC 50.
47. Madras Bar Assn. v. Union of India, W.P. (C) No. 1018 of 2021 (India) (challenge pending).
48. R.K. Jain, supra note 11.
49. L. Chandra Kumar, supra note 4.
50. India Const. art. 50.
51. Madras Bar Assn., supra note 26.
52. Law Commission of India, supra note 19.
53. Report of the Committee on Administrative Tribunals and Enquiries, Cmnd. 218 (1957) (UK).
54. Sir Andrew Leggatt, Tribunals for Users: One System, One Service (2001) (UK).
55. Tribunals, Courts and Enforcement Act 2007, c. 15 (UK).
56. H.W.R. Wade & C.F. Forsyth, Administrative Law (11th ed. 2014).
57. Madras Bar Assn., supra note 26.
58. Law Commission of India, supra note 19.
59. R. Gandhi, supra note 15.
60. L. Chandra Kumar, supra note 4.