Preparation And Presentation Before Regulators, Authorities & Commercial Tribunals
Table of Contents
Preparation And Presentation Before Regulators, Authorities & Commercial Tribunals
Introduction
At the time of cardiac arrest, Cardiopulmonary resuscitation, commonly known as CPR, is an emergency procedure that can help the patient until further measures are taken to restore him to health. Similarly, at the time of presentation before various Authorities, CPR – Communications is Key; Planning is Crucial; Relationship Building – is the advocacy procedure that needs to be adopted if one wants to win a case.
The number of people practicing advocacy before tribunals remain low and repetitive as many are afraid to venture into this arena. However, it is possible to outshine in a tribunal setting, regardless of the jurisdiction, provided the unwavering focus is applied at the time of preparation, presentation, and advocacy before Tribunals and Authorities.
Tribunals have grown in India both in number and authority and their powers, functions, practice, and procedure have become a subject in itself for both applicants/appellants, respondents, and interested learners. Apart from Tribunals, there may be bodies performing quasi-judicial functions that have been created and are administered by the Central Government and they may be falling in categories of Commissions, Boards, or other Authorities.
Related Topic:
Govt. Notifies New Rules to Appointment in The Tribunals
These Tribunals, Commissions, Boards, Authorities provide independent adjudication of disputes and function through prescribed practice and procedure which may vary as per the nature of the function they perform.
Meaning And Role of Tribunals
A preliminary search on the Wikipedia search engine on the internet shows that the term ‘Tribunal‘ is derived from the word ‘tribunes‘, which means ‘Magistrates of the Classical Roman Republic‘. “Tribunal” originally referred to the office of the tribunes, and the term is still sometimes used in this sense in historical writings.
Generally, in most cases, a Tribunal is a quasi-judicial body with a lesser degree of a formality than a Court. The tribunals perform an important role in the judicial mechanism of the country and ease pressure on overburdened courts.
Tribunals are not new entities in India. The Income Tax Appellate Tribunal being the foremost established Tribunal in India dates back to 25th January 1941. However, despite authorizing the establishment of Tribunals, the Constitution of India does not define a ‘tribunal‘. Various Court judgments have tried demarcating the functions of both Court and Tribunal and in the process have tried to bring forth the meaning of each. The dictionary meaning as on the internet of Tribunal is “a body established to settle certain types of dispute”.
The Law Commission of India in its Report 272 dated 27th October 2017, titled ‘Assessment of Statutory Frameworks of Tribunals in India‘ has described ‘Tribunal‘ as an administrative body established for the purpose of discharging quasi-judicial duties.
The definition of ‘Tribunal‘ has been taken up by the courts in various judgments viz. Harinagar Sugar Mills Ltd. vs. Shyam SundarJhunjhunwala – (1962) 2 SCR 339; Kihoto Hollohon vs. Zachillhu – 1992 Supp (2) SCC 651and many others.
The Supreme Court in Union of India v. R.Gandhi, Civil Appeals No.3067 of 2004 with No.3717 of 2005, decided on 11.05.2010, observed and held as under:
The term `Courts’ refers to places where justice is administered or refers to Judges who exercise judicial functions. Courts are established by the state for the administration of justice that is for the exercise of the judicial power of the state to maintain and uphold the rights, to punish wrongs, and to adjudicate upon disputes. „Tribunals‟ on the other hand are special alternative institutional mechanisms, usually brought into existence by or under a statute to decide disputes arising with reference to that particular statute or to determine controversies arising out of any administrative law. Courts refer to Civil Courts, Criminal Courts, and High Courts. Tribunals can be either private Tribunals (Arbitral Tribunals), or Tribunals constituted under the Constitution (Speaker or the Chairman acting under Para 6(1) of the Tenth Schedule) or Tribunals authorized by the Constitution (Administrative Tribunals under Article 323-A and Tribunals for other matters under Article 323-B) or Statutory Tribunals which are created under a statute. [Para 12] [901-E-H; 902-A]
The landmark Madras Bar Association v/s Union of India & Anr judgment of the Supreme Court on 14 May 2015 specifically rejected the contention that transferring judicial function, traditionally performed by the Courts, to the Tribunals offended the basic structure of the Constitution.
The judicial system in India is classified into various levels – at the top is the Supreme Court, followed by the High Courts at the State level, District courts at the District levels, and Lok adalats at the village and Panchayat levels. The Tribunals play a distinct role in this system.
The Law Commission of India in its Report 272 dated 27th October 2017, titled ‘Assessment of Statutory Frameworks of Tribunals in India‘ has recommended that there should be uniformity in the appointment, tenure, and service conditions for the Chairman, Vice-Chairman and Members appointed in the Tribunals. While making the appointments to the Tribunal, independence shall be maintained.
The Tribunals, Appellate Tribunals, and Other Authorities (Conditions of Service) Bill, 2014 which sought to establish uniform conditions of service for the chairpersons and members of 26 tribunals and authorities were introduced in Rajya Sabha on 19th February 2014 and then later withdrawn on 11th April 2017. The Finance Act of 2017 came into effect on 1st April 2017. Before the Finance Act 2017, the Acts that set up a tribunal also contained provisions of qualifications for appointment, the term of office, and removal of its members. The amendments in the Finance Act, 2017 have modified these conditions of service of 19 tribunals that are currently in place. The amendments permit the central government to decide the terms of service including appointments, terms of office, salaries and allowances, and removal of tribunal members through rules. The Act also sought to replace certain Tribunals and transfer their functions to existing Tribunals; thereby it has merged eight tribunals on the ground of functional similarity. These are as follows:
- The Employees Provident Fund Appellate Tribunal (EPFAT) with The Industrial Tribunal.
- The Copyright Board with The Intellectual Property Appellate Board.
- The Railways Rates Tribunal with The Railways Claims Tribunal.
- The Appellate Tribunal for Foreign Exchange with The Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976.
- The National Highways Tribunal (NHT) with The Airport Appellate Tribunal (AAT).
- The Cyber Appellate Tribunal and The Airports Economic Regulatory Authority Appellate Tribunal with The Telecom Disputes Settlement and Appellate Tribunal (TDSAT).
- The Competition Appellate Tribunal with the National Company Law Appellate Tribunal.
In exercise of the powers conferred by section 184 of the Finance Act, 2017, the Central Government had framed ‘The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. These Rules were struck down by the Supreme Court in November 2019. The reframed the Tribunal, Appellate Tribunal, and other Authorities (Qualifications, Experience, and Other Conditions of Service of Members) Rules, 2020 were notified by the Ministry of Finance on 12-02-2020. These Rules are made in exercise of powers under Section 184 of the Finance Act 2017 and are applicable to the following Tribunals:
1. Industrial Tribunal constituted by the Central Government under the Industrial Disputes Act 1947.
2. Income Tax Appellate Tribunal under the Income Tax Act 1961.
3. Customs, Excise, Service Tax Appellate Tribunal under the Customs Act 1962.
4. Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act 1976.
5. Central Administrative Tribunals under the Administrative Tribunals Act 1985.
6. Railway Claims Tribunal under the Railway Claims Tribunal Act 1987.
7. Securities Appellate Tribunal under the Securities and Exchange Board of India Act 1992.
8. Debts Recovery Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act 1993.
9. Debts Recovery Appellate Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act 1993.
10. Airport Appellate Tribunal under the Airport Authority of India Act 1994.
11.Telecom Disputes Settlement and Appellate Tribunal under the Telecom Regulatory Authority of India Act 1997.
12. Appellate Board under the Trade Marks Act 1999.
13. National Company Law Appellate Tribunal under the Companies Act 2013.
14. Authority for Advance Ruling under the Income Tax Act 1961.
15. Film Certification Appellate Tribunal under the Cinematograph Act 1956.
16. National Consumer Dispute Redressal Commission under the Consumer Protection Act 2019.
17. Appellate Tribunal for Electricity under the Electricity Act 2003.
18. Armed Forces Tribunal under the Armed Forces Act 2007.
19. National Green Tribunal under the National Green Tribunal Act 2000.
Constitutional Provisions
The Constitution of India is the longest written constitution of any sovereign country in the world and currently it consists of XXII parts which are divided into Articles numbered up to 395 and 12 schedules. It is the supreme law and all acts and rules derive their power from the Constitution.
The provisions relating to ‘Tribunals‘ are covered in Part XIVA of the Constitution. The provisions viz. Part XIVA was not a part of the original constitution but was inserted in the Constitution vide The Constitution (FortySecond Amendment) Act of 1976.
The Constitution of India through Part XIVA, Articles 323A (Administrative Tribunals), and 323B (Tribunals for other matters) empower the Legislature to set up administrative and other tribunals respectively and describe the powers and functions that may be vested in such tribunals.
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