Tribunal independence: the Madras Bar Association cases, the 2021 Act and the 2026 Bill

Detail

1. The core question

• A tribunal is a body set up by law to decide disputes in one field, such as tax, service matters or company law. It is a specialised court outside the regular court ladder.
• Constitutional base: the 42nd Amendment (1976) added Articles 323A and 323B [6].
• Art. 323A: Parliament may set up administrative tribunals for the service matters of public servants [6].
• Art. 323B: Parliament or a state legislature may set up tribunals for listed subjects, such as taxation and land reforms [6].

• In 2010 the Supreme Court held that the Art. 323B list is not exclusive. Legislatures can create tribunals on any subject they have the power to make laws on [6].

• Early history: the Income Tax Appellate Tribunal (1941) was India's first tribunal. The Swaran Singh Committee (1976) recommended a system of tribunals at several levels [6].

• Four questions decide whether a tribunal is independent:
• Who selects its members?
• How long do they serve, and can they be reappointed?
• What age and eligibility rules apply?

• Which ministry controls their pay, staff and budget?

• The Court's test: if a tribunal replaces a High Court, it must be as independent as a High Court.

• The trade-off:
• Separation of powers means judging must stay free of the executive (the government of the day).
• Executive efficiency is the government's case for quick, expert and cheaper decisions.
• The problem: the government is the biggest litigant before most tribunals. If it controls the judges' careers, it is judging its own case.

2. The Madras Bar Association (MBA) line of cases

• Background: L. Chandra Kumar (1997).
• When a tribunal rules on whether a law is constitutional, a division bench of the High Court (a bench of two or more judges) can review that ruling [6].
• The Court also asked for one nodal ministry, the Law Ministry, to run all tribunals [6].
• Judicial review (the courts' power to strike down laws or actions that break the Constitution) is part of the basic structure, so tribunals cannot fully shut out the High Courts.

Case (year)	What was challenged	What the Court held
Union of India v. R. Gandhi (2010)	NCLT and NCLAT (company law tribunals) under the Companies Act	Tribunals upheld, but the rules on qualifications and selection were corrected. Technical members must not outnumber judicial members on a bench [6].
Madras Bar Association (2014)	National Tax Tribunal Act 2005	Act struck down. Deciding substantial questions of law (serious legal questions, not just facts) is core High Court work. Tribunals must get their support from the Law Ministry, not from the "parent" ministry whose cases they hear [6].
Rojer Mathew (2019)	Finance Act 2017, Part XIV: merged tribunals (26 → 19) [6], plus the 2017 service Rules	Rules struck down. Short tenures give the executive control over tribunals [6]. A uniform retirement age was recommended. The Court asked for a judicial impact assessment before tribunals are merged [6] and a single nodal agency. The money bill question was sent to a larger bench.
Madras Bar Association (Nov 2020)	Tribunal Rules 2020	Five-year tenure with a maximum age of 67 for members [6]. Advocates with 10 years' practice made eligible. Call for a National Tribunals Commission [6].
Madras Bar Association (July 2021)	Tribunals Reforms Ordinance 2021	Struck down the 4-year tenure and the minimum age of 50 [6].

• Money bill: a bill only about taxes, government borrowing or spending. The Rajya Sabha can delay it for only 14 days (Art. 110). The Finance Act 2017 changed tribunal rules through a money bill, which kept the Rajya Sabha out.
• Judicial impact assessment: a study, done before a law is passed, of how many new cases the law will bring to the courts, and what judges and money will be needed.
• National Tribunals Commission (NTC): an independent body that would select tribunal members, review their work and run tribunals' administration, replacing the parent ministries. A Parliamentary Standing Committee had also proposed one in 2015, after it found several tribunals not working because of vacancies [6].
• Law Commission, 272nd Report (October 2017): "Assessment of Statutory Frameworks of Tribunals in India" [6].

3. The Tribunals Reforms Act 2021 (Act 33 of 2021) [2]

• The steps that led to it:
• The Tribunals Reforms Bill 2021 was introduced in the Lok Sabha on 13 February 2021.
• It was replaced by an Ordinance in April 2021, and the Bill was withdrawn on 2 August 2021 [7].
• In July 2021 the Supreme Court struck down parts of the Ordinance.

• The 2021 Act then put back the same rules.

• What it put back:

• 4-year tenure.
• Minimum age of 50 [7].
• Upper age limits of 70 (chairpersons) and 67 (members) [7].
• A search-cum-selection committee that sends a two-name panel for each post. The government decides "preferably" within three months.

• Committee members: the CJI or a Supreme Court judge he nominates (as chair), two government Secretaries, a sitting or retired tribunal chair or a retired senior judge, and the Secretary of the ministry concerned (no vote) [7].

• It abolished 9 appellate bodies. Their work moved to existing courts [6][7]:

Body abolished	Work moved to
Film Certification (Cinematograph) Appellate Tribunal	High Court
Trade Marks Appellate Board; Patents Appellate Board (both under the IPAB)	High Court
Copyright Appellate Board	Commercial Court / Commercial Division
Customs Authority for Advance Rulings	High Court
Airport Appellate Tribunal	Central government or High Court
Highway Appellate Tribunal	Civil Court
Plant Varieties Appellate Tribunal	High Court
Geographical Indications Appellate Board	High Court

• Legislative override: Parliament passes again, in nearly the same words, a rule the Court has struck down, without removing the reason the Court gave. Critics used this label for the 2021 Act.
• 19 November 2025: MBA v. Union of India (2025 INSC 1330; reported as (2026) 2 SCC 1) [4][5][2]:
• The Court struck down the Act's provisions on eligibility, manner of appointment and length of tenure of chairpersons and members [4].
• It noted that these were copied from the 2021 Ordinance, which it had already struck down in July 2021 [4].
• It held that they undermined judicial independence and separation of powers [4].
• It repeated that the term should be 5 years, with reappointment allowed. It held that the minimum age of 50 went against earlier rulings, which make advocates with 10 years' experience eligible [4].
• Direction: the Centre must set up a National Tribunals Commission within four months. The NTC must be free of executive control, have professional expertise, follow transparent procedures, and have oversight to build public trust [4].

4. The Tribunals Reforms Bill 2026

• Passage: introduced and passed by the Lok Sabha on 10 August 2026, and passed by the Rajya Sabha on 11 August 2026 [3]. Assent and notification should be checked in the Gazette.
• Repeal: Clause 24 repeals the Tribunals Reforms Act 2021 [2]. The Statement of Objects says the Bill follows MBA v. Union of India, (2026) 2 SCC 1 [2].
• Savings: members appointed before 1 October 2021 under the older Acts stay under their old service rules. Members appointed under the 2021 Act cannot have their service terms made worse during their term [2].

4a. National Tribunals Commission

• Members: a chairperson and four members, of whom 2 are judicial members and 2 are technical members (Clause 3(3)) [2].
• Who is eligible [2]:
• Chairperson: someone who has been a Supreme Court judge or a High Court Chief Justice.
• Judicial member: someone who has been a High Court Chief Justice or a High Court judge.

• Technical member: someone with at least 25 years' experience in public administration, finance, law, accountancy, banking, management or technology.

• Appointment: the Centre must consult the CJI before appointing the chairperson and the judicial members [2][3].

• Term: 5 years or age 70, whichever comes first [2].
• Removal: before removal for misconduct-type grounds, there must be an inquiry by a committee headed by a Supreme Court judge nominated by the CJI [2].
• Functions [2][3]:
• It runs the selection process and performance reviews of tribunals.
• It oversees inquiries into complaints against all tribunal members.

• It builds and maintains the National Tribunals Data Grid, a portal holding all case information of the tribunals listed in the First Schedule [2].

• Secretariat and money:

• A Secretary of the rank of Secretary to the Government of India, appointed by the Centre, heads the Secretariat and uses the Commission's administrative and financial powers [2].
• The money comes as grants by the Central Government. The estimate is ₹27.14 crore a year (₹24.79 crore recurring and ₹2.35 crore non-recurring), paid from the Consolidated Fund of India [2].

4b. Selection: the search-cum-selection committee (Clause 13) [2]

Seat	For a tribunal chairperson	For a tribunal member
Head (has a casting vote)	NTC chairperson	An NTC judicial member
Judge seat	Retired HC Chief Justice, nominated by the NTC chair	Retired HC judge, nominated by the NTC chair
Technical seat	An NTC technical member	An NTC technical member
Government seat	A Secretary to GoI nominated by the Centre (for State Administrative Tribunals, the state's Chief Secretary)	Same
Experts	2 empanelled experts (no vote)	Same
Member Secretary	NTC Secretary (no vote)	Same

• How an appointment is made, step by step [2]: 1. The committee assesses candidates. For a chairperson's post, it may use selection or search. 2. For a reappointment, it looks at the person's past work performance. 3. It recommends 1 name plus 1 name on a waiting list for each vacancy. 4. The Secretariat sends the recommendation to the Centre within 3 days. 5. The Centre must appoint within 3 months.

• Tenure [2]:

• Tribunal chairperson: 5 years or age 70, whichever comes first.
• Tribunal member: 5 years or age 67, whichever comes first.

• Both can be considered for reappointment, based on performance.

• Clauses that leave room for the executive [2]:

• Qualifications, pay and removal of tribunal members are to be set by rules ("as may be prescribed", Clause 14(1)), not written into the Act.
• The Centre can amend the First Schedule (the list of tribunals covered) by notification (Clause 18(2)).

5. Testing the 2026 Bill against the MBA norms

Norm	2021 Act	2026 Bill	Verdict
Tenure of 5 years, with reappointment (MBA 2020)	4 years	5 years, with reappointment [2]	Meets it
No minimum age of 50; advocates with 10 years eligible	Minimum age 50	Eligibility left to rules [2]	Depends on the rules
Judicial role in selection	CJI or nominee chairs; 2 Secretaries [7]	Judges control the chair and casting vote; 1 Secretary with a vote [2]	Better, but one executive vote remains
Panel size	2 names	1 name + 1 on the waiting list [2]	Less choice for the government
Time to appoint	"Preferably" 3 months	Must appoint within 3 months [2]	Stronger, but there is no penalty for delay
Independent body (NTC)	None	NTC set up [2]	Meets it on paper
Free of executive control in money and staff	Parent ministries	Central grants; Secretary appointed by the Centre [2]	Still a weak point

• What will actually show success: whether vacancies fall. In February 2021 the Armed Forces Tribunal had 23 of 34 posts vacant and 18,829 cases pending [6]. In January 2018 the ITAT had 91,643 cases pending [6].

Prelims Hooks

• Arts. 323A and 323B were inserted by the 42nd Amendment (1976). 323A covers administrative (service) tribunals. 323B covers other subjects, and in 2010 the Court held its list is not exclusive.
• MBA (2014) struck down the National Tax Tribunal Act 2005. Substantial questions of law belong to the High Courts.
• R. Gandhi (2010): technical members must not outnumber judicial members on a bench.
• Rojer Mathew (2019): struck down the Rules under the Finance Act 2017, which merged tribunals 26 → 19. It sent the money bill question to a larger bench and called for a judicial impact assessment.
• The 2021 Act abolished 9 appellate bodies, including FCAT, IPAB and the Airport Appellate Tribunal. Trap: the NCLAT and ITAT were not abolished.
• 19 November 2025, MBA v. UoI (2025 INSC 1330): struck down the 2021 Act's 4-year tenure and minimum age of 50, and ordered an NTC within 4 months.
• 2026 Bill, NTC: a chair (former SC judge or HC Chief Justice), 2 judicial and 2 technical members. The CJI is consulted for the chair and the judicial members.
• 2026 Bill, tenure: 5 years. Age cap of 70 for chairpersons and 67 for members. Appointment within 3 months. 1 name + 1 on a waiting list.
• Trap: in the 2026 committees, the 2 experts and the Member Secretary have no vote, but the government Secretary does.
• National Tribunals Data Grid: a portal with all case data of the tribunals in the First Schedule. The NTC maintains it.

Mains Points

• Legislative override and the rule of law: the 2021 Act copied provisions the Court had already struck down. This led to the November 2025 judgment. A binding judgment can be answered only by removing its basis, not by passing the same law again. This is a separation of powers issue under the basic structure.
• Has the 2026 NTC fixed the problem?
• Gains: the NTC is led by judges, the CJI is consulted, tenure is 5 years, and the 3-month deadline is mandatory.
• Gaps: the Secretary has a vote, the Centre appoints the NTC's Secretary, the NTC depends on Central grants (₹27.14 crore a year), and qualifications are left to rules.

• Fix: give the NTC a charged budget or a Law Ministry budget line, as in Chandra Kumar (1997) and MBA (2014).

• Cutting tribunals versus access to justice:

• Abolishing tribunals (2017 and 2021) without a judicial impact assessment pushes cases back onto High Courts that are already overloaded. In June 2021, 91,885 High Court cases had been pending for over 30 years [6].

• Specialist matters such as IP and film certification lose expert benches.

• Way forward:

• Bring all tribunals under one nodal ministry or the NTC.
• Run performance audits using the Data Grid.
• Make the Law Commission's 272nd Report (2017) the baseline for uniform service conditions.