“THE TRIBUNAL REFORMS ACT, 2021 is a replica of the struck-down Ordinance; old wine in a new bottle, the wine whets not the judicial palate, but the bottle merely dazzles.” Justice K. Vinod Chandran noted in his concurring opinion in Madras Bar Association v. Union of India (2025). The Supreme Court in Madras Bar Association struck down provisions of the Tribunals Reforms Act, 2021 and directed the Government to establish a National Tribunals Commission (‘NTC’) within four months. It reiterated the directions contained in Rojer Mathew v. South Indian Bank (2019), delivered by the Constitution Bench calling for an independent body to oversee the functioning of tribunals and insulate their administration from executive control.
In response, the Government has now brought the Tribunals Reforms Act, 2026. The Act establishes the NTC and repeals the earlier regime. In several respects, it is an improvement on its predecessor. It restores tenure, provides uniform service conditions and brings some certainty to pending appointments. However, the more consequential issue is whether the new law has removed the defect identified by the Court, or retained the same arrangement in more cleverly drafted terms.
The short answer is no. It has not remedied the situation to any substantial extent. The Act is riddled with fundamental issues and ambiguities. At the first glance three provisions are problematic: who appoints the NTC, who controls the Search-cum-Selection Committee (‘SCSC’), and who decides the qualifications of tribunal members. The third issue has not yet been tested, but the Act leaves it to rules made by the Government.
A familiar haste in Parliament
For starters, the Bill itself received little parliamentary scrutiny. The Lok Sabha passed it on August 10 without discussion, amid protests over the police response to demonstrations concerning the NEET paper leak. The Rajya Sabha cleared it the next day, again amid Opposition protests. The Bill received the President’s assent on August 13. The concern is the speed with which legislation carrying such significant implications for judicial independence was pushed through Parliament without meaningful deliberation.
The 2026 Act thus followed the 2021 Act almost beat for beat. In 2021, Chief Justice N.V. Ramana, during the proceedings, had to ask the Solicitor General to place before the Court the parliamentary debates and the Government’s reasons for enacting the 2021 Act and reintroducing provisions that had already been struck down. To the sheer embarrassment of the entire process, the Court observed: “It is a serious issue... tribunals have to continue or to be shut down.” The Court was also pointing to the cavalier manner in which the appointment and administration of tribunals had been handled. The episode was another reminder that the problems surrounding tribunals had been before the Government and the courts for decades, without any lasting resolution.
The long history of executive control
Tribunals were conceived on twin ideas: that specialists could resolve technical disputes more efficiently, and that they could ease the burden on regular courts. But S.P. Sampath Kumar (1986) and L. Chandra Kumar (1997) also recognised the problem of tribunals being controlled by Ministries whose decisions they review. L. Chandra Kumar called for an independent body to oversee them – the recommendation never worked out. Instead, the Finance Act, 2017 left members’ qualifications and service conditions to rules framed by the Union Government, deepening executive control.
The Court returned to the issue in R. Gandhi (2010), National Tax Tribunal (2014) and Rojer Mathew (2019), progressively insisting on greater institutional independence and an independent National Tribunals Commission. The 2021 Ordinance and Act, however, reproduced provisions the Court later struck down in Madras Bar Association in 2021 and 2025. The Court again directed the constitution of an NTC and continuation of its judgement till such time. As Chief Justice Gavai has observed, former administrators serving on tribunals may be reluctant to rule against the Government they once served. That is the concern behind the Court’s repeated insistence that tribunals must be insulated from executive control.
Who controls the National Tribunals Commission?
As per the scheme of the Act, Section 5 gives the Central Government the power to appoint all five members of the NTC. For the Chairperson and two Judicial Members, it must “consult” the Chief Justice of India. Whereas, appointment of two Technical Members requires no such consultation.
On a plain reading, “consultation” may sound reassuring. But the word, borrowed from the Constitution, carries its own baggage. Article 124(2) uses the same expression for appointments to the Supreme Court. Its meaning changed sharply between 1981 and 1998. The First Judges Case held that consultation did not mean concurrence and retained the Executive’s primacy in judicial appointments. The Second Judges Case and the Third Judges Reference reversed that position, giving the judiciary primacy in the appointment process and ultimately leading to the collegium system, which on reiteration binds the Government.
Despite decades of litigation, Section 5 does not contemplate what happens when the Government and the Chief Justice disagree. That omission is particularly concerning given the history of disagreements between the Government and the Collegium headed by the Chief Justice. In 2016, the Government returned 43 of 77 Collegium recommendations, several of which were later reiterated. By September 2023, 70 recommendations were pending, including seven reiterations. A Bench led by Justice S.K. Kaul criticised the delay, even though the Court had already held that reiterated recommendations are binding on the Government. In August 2026, while reiterating the recommendations of Amitesh Banerjee and Sakya Sen to the Calcutta High Court, the Collegium again reminded the Government that there is no space for thinking – once reiteration is made. The history of judicial appointments therefore offers little reason to assume that disagreements between the two sides will be uncommon.
Given the experience gained, the Court in Rojer Mathew had envisaged a stronger arrangement for tribunals. It contemplated an NTC in which the Chief Justice would nominate a majority of its members. Justice Deepak Gupta went further in his opinion, suggesting that the Chief Justice should appoint the members of the Commission. Section 5, without any binding effect attached to the consultation, falls short of that arrangement.
The ambiguity in the selection committees
Section 13 creates two Search-cum-Selection Committees, one to select Tribunal Chairpersons and another to select Tribunal Members. The first is chaired by the Commission’s Chairperson and the second by a Judicial Member of the Commission. Both Committees also include a Technical Member, a retired High Court judge nominated by the Commission’s Chairperson, and a Central Government Secretary. The experts who assess candidates and the Commission Secretary have no vote. Section 13 provides that the Chairperson of the Committee shall have the casting vote, without saying whether the Chairperson also has an ordinary vote.
The provision appears to draw from R. Gandhi, where the casting vote was intended to resolve a tie between two judicial and two executive members. That reading, however, assumes that the Chairperson has an ordinary vote in the first place. The Act creates a dichotomy in this regard. Section 9(4), while dealing with other decisions of the NTC, expressly includes the Chairperson among those “present and voting”, while Section 9(5) separately confers a casting vote on the Chairperson. On the other hand, Section 13 takes a different approach. It gives the Chairperson of the Search-cum-Selection Committee a casting vote without stating whether the Chairperson also has an ordinary vote. Even the existence of an ordinary vote is left to assumption. There was no reason for the provision to leave this ambiguous when Section 9 expressly settles the position for other business of the NTC.
If the Chairperson has only a casting vote, there are three ordinary voters and no tie can arise. If the Chairperson also has an ordinary vote, there are four voters and a tie becomes possible. In the Chairperson Selection Committee, that tie would be resolved by the NTC Chairperson. In the Member Selection Committee, it would be resolved by a Judicial Member of the Commission. Both, however, are appointed under Section 5 by the Government, with only a requirement of consultation with the Chief Justice. Therefore, the omission in Section 13 makes the position under Section 5 more concerning.
Continued dependence on the Executive
Section 14 leaves the qualifications, selection, salaries and service conditions of tribunal members to rules made by the Government, much like Section 184 of the Finance Act, 2017. In Rojer Mathew, the majority upheld such delegation, while holding that the rules could be challenged if they departed from the constitutional scheme or the directions issued by the Court. Justice Deepak Gupta, joined by Justice D.Y. Chandrachud, took a different view. They held that prescribing the qualifications of persons who exercise judicial power is an essential legislative function and cannot be delegated to the Executive. That reasoning has direct relevance to the manner in which Section 14 of the 2026 Act has been framed.
The NTC is also dependent on the Executive in matters of its own administration. Under Section 8, its Secretariat is headed by a person appointed by the Central Government, on terms prescribed by the Government. Section 10 further provides that its finances may depend on grants that the Government “may” provide. These provisions, along with Sections 5, 13 and 14, place significant aspects of the NTC’s administration, finances and composition within the control of the Government. This is particularly significant because the NTC is intended to perform regulatory functions in relation to the Executive.
The constitutional test remains judicial independence
None of this turns on what the drafters intended. What matters is the control the Act gives the Government over the NTC and the selection of tribunal members, despite being a frequent litigant before them. The 2026 Act changes much of the 2021 regime, but the provisions governing appointments and selection leave the Government with substantial control.
Section 5 must therefore be read to make the Chief Justice’s view binding. Section 13 must likewise clarify whether the Chairperson has an ordinary vote in addition to the casting vote. Without these safeguards, the Act leaves the Executive with control over the institutions meant to insulate tribunals from executive influence.
