New tribunal law raises more questions than answers

On 13 August 2026, the Tribunals Reforms Bill, 2026 received Presidential assent, a mere three days after it was introduced in Parliament. The bill proposed creation of a National Tribunal Commission (NTC) for administering 16 tribunals. It was passed by the Lok Sabha without any discussion. 

This law marks the Union government’s fifth attempt at tribunal reform in the last decade, beginning with the Finance Act, 2017 and culminating with the Tribunals Reform Act, 2021. Each attempt was followed by a round of litigation before the Supreme Court. Best described as a struggle between the bureaucracy and the bar associations for control over judicial power vested in tribunals, this relentless litigation dates back to Sampath Kumar v Union of India (1987). Ambiguous provisions reveal that the 2026 Act is no exception.

A long-standing demand only partially fulfilled

The creation of the NTC gives partial effect to one of the major recommendations in L. Chandra Kumar v Union of India (1997) which was to shift the administration of tribunals from the ‘parent ministry/department’ to an independent body. Senior Advocate Arvind Datar, who argued all the major tribunal cases for Madras Bar Association (MBA) over the last 25 years, has reiterated this demand multiple times. 

There was a simple logic to this demand. Ministries are often the main litigants before tribunals and can easily cripple their functioning by delaying appointments or refusing to provide adequate supporting staff and infrastructure. In 2013 for example, the Court had to direct provision of adequate physical space for Debt Recovery Tribunals (DRT) which often operate out of premises owned by public sector banks, their main litigants. The banks and the DRT are both controlled by the Department of Financial Services.  

While the NTC provides a centralised machinery to oversee appointment of tribunal Chairpersons and members, it is not responsible for infrastructure and supporting staff. The 2026 Act’s silence on this matter leaves tribunals still partially dependent on their parent ministries.  

Replicating problems but not solutions 

Under the 2026 Act, the NTC shall consist of five members: a Chairperson, who is a former judge of the Supreme Court or Chief Justice of a High Court; two judicial members who are former judges of High Courts; and two technical members who have general expertise in administration, finance, law et cetera. 

As per Section 5, the Chairperson and two judicial members are to be appointed by the Union in consultation with the Chief Justice of India (CJI). The language of this provision is similar to that in Article 124 of the Constitution which governs appointment of judges to the Supreme Court. When disputes arose between the Union and judiciary over who would have the final say under Article 124, lengthy litigation ensued. Ultimately, the Court gave its collegium the power to overrule the government. By replicating the language of Article 124, the 2026 Act fails to address the very same question—can the Union reject the CJI’s opinion in case of disagreement over appointments to the NTC? We simply do not know until the first disagreement surfaces. 

The NTC is also responsible for constituting a seven-member “search cum selection” committee which will, in turn, appoint Chairpersons and members to the 16 tribunals covered under the 2026 Act. Only four of the committee members have voting rights, of which three are either members or nominees of the NTC. Only one is a Secretary of the Government of India. 

The question now is whether this composition satisfies the requirement of judicial primacy in appointments to the tribunals, as mandated by the Court in previous litigation over tribunals? 

The answer to this question depends on the court’s interpretation of Section 5. If the NTC is perceived as being under the control of the Union, it is safe to conclude that the “search cum selection” committee would be deemed unconstitutional due to the overbearing influence of the Union. 

The ambiguity outlined above could have been easily avoided. Models from other democracies provide insight on how to check executive influence over commissions such as the NTC. For example, the Judicial Conduct Commission in the State of New York has 11 members of which four are appointed by the Governor, four by the state legislature, and three by the Chief Judge of the state judiciary. Similarly, the Judicial Appointments Commission in the United Kingdom has 12 members selected through open competition and another three appointed by the judiciary. Even presuming executive influence in the appointment of the 12 members, the remaining three stand as independent watchdogs on the functioning of the JAC. 

The advantage of having different institutions nominate members directly to the Commission is that it is a far more transparent governance structure when compared to the convoluted and ambiguous mechanism proposed by Section 5. 

For more than a decade the legislative draftsmen of the Union have chosen these convoluted appointment mechanisms for judicial commissions like NJAC and NTC, when simpler alternatives were possible.     

Removal of members

The 2026 Act empowers the Union to single-handedly remove members of both the NTC and the tribunals administered by it, on grounds of insolvency, conviction or physical or mental incapability. This is prima facie violative of the principles of judicial independence and of natural justice. 

In case of complaints on other grounds such as financial conflict of interest or abuse of office, the Union is empowered to screen complaints before determining the need for an inquiry. For NTC members, the inquiry will be conducted by a CJI-appointed Supreme Court judge and for tribunal members, it will be overseen by the NTC’s Chairperson. The interpretation of Section 5 will determine whether the NTC Chairperson’s involvement in the inquiry against tribunal members threatens judicial independence or not.

In both cases, the inquiry report shall be forwarded to the Union for a final decision. In other words, the decision to initiate the inquiry and the final decision on the inquiry report lies with faceless bureaucrats within the Union. Most constitutional law scholars would argue that this mechanism vests far too much power in the Union over independent tribunals. 

Notably, the opening and closing parts of this scheme of removal was broadly upheld by the Supreme Court in MBA v Union of India (2020). In that case, instead of delving into legal issues on first principles, the Court upheld contentious provisions on the basis of vague assurances by the Attorney General of India that the power to refer a complaint for an inquiry was merely to “weed” out frivolous complaints. Yet, the power to “weed out” also implies the power to initiate an inquiry which can cause great public embarrassment to the members of the tribunals and can thus be used as a lever of control by the government. More so when this new law has, for the first time ever, introduced dangerously vague concepts like “incompetence” and “inefficiency” as grounds for dismissal. 

On the AG’s assurance that the Union would consider itself bound by the recommendations of an independent inquiry, the Court should have insisted that the same be spelled out in the law. Instead it provided the government with an opportunity to exercise a pocket veto by simply abstaining from action. 

Control over the Secretary 

The Secretary to the NTC is statutorily vested with control of its administrative and financial powers. Quite strangely, under the 2026 Act, the Secretary is appointed by the government but is not explicitly subject to disciplinary powers of the NTC’s Chairperson. At most Section 8(4) gives the Chairperson a general power of oversight over the Secretariat. If the NTC is deemed to be a judicial body, this is an unviable administrative structure as it is the equivalent of allowing for a Union appointed Registrar of the Supreme Court without any clarity on whether the Chief Justice can dismiss him. 

In conclusion, the 2026 Act is a legislation shrouded in ambiguity and is likely to result in further litigation once the qualification criteria for tribunal members are notified via the rules. 

Prashant Reddy Thikkavarapu is the co-author of “Tareekh Pe Justice: Reforms for India’s District Courts (2025).”