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Executive Summary
India’s tribunal system was conceived as a response to the limits of the ordinary judiciary: chronic arrears, increasing regulatory complexity and the need for specialised fora to adjudicate technical disputes. Over time, however, tribunals have ceased to be merely supplemental institutions and, in several sectors, have come to replace constitutional courts as the primary fora for administrative, corporate and economic adjudication. This relocation of judicial power has sharpened long-standing anxieties about the erosion of judicial independence through executive control over appointments, tenure and service conditions. The Tribunals Reforms Act, 2021 is the most recent and contested legislative intervention in this terrain.
This article argues that the tribunal project in India sits at the intersection of two competing constitutional logics. One is the functional logic of the administrative state, which prioritises expertise, speed and managerial efficiency. The other is the structural logic of constitutionalism, which insists that entities exercising judicial power must be institutionally insulated from the Executive. By tracing the doctrinal evolution from S.P. Sampath Kumar to Madras Bar Association and examining the statutory architecture of the 2021 Act against that jurisprudential backdrop, the article shows that Parliament’s persistent attempts to retain executive dominance over tribunals place the system in recurring tension with the basic structure doctrine. The analysis of the National Company Law Tribunal illustrates how these structural tensions translate into concrete risks for commercial adjudication, creditor confidence and regulatory stability.
Introduction: Tribunalisation and the Constitutional State
The Indian Constitution rests upon a calibrated separation of powers between the Legislature, the Executive and the Judiciary. Although this separation is not rigid in the classical Montesquieu sense, the independence of the judiciary has been recognised since Kesavananda Bharati v. State of Kerala (1973) as an essential element of the basic structure1. Judicial independence operates as a structural guarantee: it prevents the consolidation of power in the political branches and ensures that disputes involving the State are resolved by bodies that are not beholden to it.
The rise of tribunals marks a decisive reconfiguration of this adjudicatory landscape. Tribunals were introduced to address chronic arrears in constitutional courts, manage increasingly technical disputes and provide more accessible adjudication in specialised regulatory domains2. Functionally, they belong to what comparative scholarship describes as the “administrative justice” layer of the modern State: institutions located closer to regulators and administrators yet vested with adjudicatory power. Over time, tribunals in India have shifted from being peripheral adjuncts to assuming primary jurisdiction over wide swathes of administrative, economic and corporate regulation3.
This institutional shift sharpens a structural tension. On one side stands Parliament’s desire to construct specialised fora that are faster, less formal and more technically equipped than High Courts. On the other stands the constitutional requirement that entities exercising judicial power be institutionally insulated from the very executive authorities whose decisions they review. The Tribunals Reforms Act, 2021, enacted against the backdrop of repeated judicial interventions, crystallises this tension4. The central question is whether the design choices embodied in the Act respect the minimum conditions of independence that Indian jurisprudence has developed for tribunals.
Constitutional Origins and Structural Ambivalence
The formal constitutional basis of tribunalisation was laid by the Forty-Second Constitutional Amendment Act, 1976, which inserted Articles 323A and 323B5. Article 323A authorised the creation of Administrative Tribunals for public service disputes; Article 323B permitted tribunals for taxation, industrial and labour matters, land reforms and specified elections. These provisions reflected an explicit decision to re-imagine the architecture of adjudication: constitutional courts would no longer enjoy an exclusive monopoly over the resolution of complex public law disputes.
This amendment responded to a specific political economy. As the Law Commission later noted, the conventional court system was perceived as incapable of handling the growing volume and technical complexity of disputes in an increasingly interventionist State6. The expansion of the regulatory state in the post-liberalisation period intensified this dynamic, especially in areas such as environmental regulation, telecom, intellectual property, competition and corporate insolvency. Tribunalisation emerged as a device for reallocating jurisdiction to fora that could, in theory, deliver faster and more expert decision-making7.
Yet this strategy carried an inherent constitutional ambivalence. Tribunals are creatures of statute. Their composition, funding, infrastructure and day-to-day administration are typically tied to the very ministries whose regulatory decisions they are meant to scrutinise. The Law Commission’s 272nd Report highlighted this structural dependence, insisting that tribunals vested with judicial functions must enjoy the “same degree of independence” as courts exercising comparable jurisdiction8. From a constitutional perspective, therefore, the question was never simply whether tribunals are efficient, but whether their institutional design is compatible with the judicial role they are expected to perform.
Doctrinal Consolidation: From Substitution to Structural Safeguards
The Supreme Court’s jurisprudence on tribunals can be read as an attempt to preserve the constitutional identity of judicial power even as its institutional location evolves. In S.P. Sampath Kumar v. Union of India (1987), the Court upheld the Administrative Tribunals Act,
1985, but only on the condition that tribunals function as “effective substitutes” for the High
Courts and do not degrade the quality or independence of adjudication. Tribunal validity was thus made contingent on institutional safeguards.
This tentative acceptance was sharpened in L. Chandra Kumar v. Union of India (1997), which struck down the exclusion of High Court jurisdiction under Articles 323A and 323B9. By holding that judicial review under Articles 226, 227 and 32 forms part of the basic structure, the Court fixed a non-negotiable boundary for legislative experimentation: tribunals could act as courts of first instance, but their decisions had to remain subject to constitutional court supervision. The Court distinguished between the forum of first instance and the location of ultimate constitutional control; Parliament could adjust the former in pursuit of efficiency but could not alter the latter.
A further deepening occurred in Union of India v. R. Gandhi (2010), involving the NCLT and NCLAT [7]. The Court moved beyond jurisdiction to institutional design, holding that where tribunals replace High Court jurisdiction, their members must enjoy security of tenure, judicial primacy in appointments and protection from executive interference comparable to that enjoyed by High Court judges. Structural conditions non-trivial tenure, independence in appointments and autonomy over service conditions were thus constitutionalised as prerequisites for legitimate tribunal design.
In Rojer Mathew v. South Indian Bank Ltd. (2019), the Court scrutinised the Finance Act, 2017 and reiterated that the “logic of tribunalisation” cannot be exploited as a vehicle for executive aggrandisement10. The trajectory from Sampath Kumar to R. Gandhi and Rojer Mathew reveals a sustained effort to ensure that, although tribunals may be administratively distinct and functionally specialised, they cannot be structurally subordinate to the Executive if they are to exercise judicial power in a constitutionally acceptable manner.
The Tribunals Reforms Act, 2021: Rationalisation or Retrenchment?
Seen formally, the Tribunals Reforms Act, 2021 pursues rationalisation: it abolishes several appellate tribunals, transfers their jurisdiction to High Courts and seeks to establish uniform procedures and service conditions across surviving tribunals11. It fixes a uniform four-year tenure, with eligibility for reappointment, and retains final appointing authority with the Central Government. These moves can be understood, at a managerial level, as an attempt to streamline a fragmented institutional landscape and reduce fiscal and administrative overheads.
When examined through the lens of existing jurisprudence, however, many of these choices are problematic. Short, renewable tenures, especially where reappointment is controlled by the Executive, sit uneasily with the idea of decisional independence. They generate incentives for members to avoid conflict with the Government to safeguard future extensions, embedding a subtle but powerful form of dependence12 13. Retaining final appointment authority with the Government, even where judges participate in Search-cum-Selection Committees, preserves an asymmetry of power that earlier decisions had sought to correct14.
The Law Commission had recommended a National Tribunals Commission as an independent body to oversee appointments, administration and oversight across the tribunal system15. Instead of moving towards such a model, the 2021 Act consolidates executive influence over key levers of control. The abolition of specialised tribunals and the re-transfer of their jurisdiction to High Courts may, on the surface, appear to strengthen independence, but as Sinha notes, it simultaneously sacrifices the expertise and procedural ecology that justified tribunalisation in the first place16. The Act thus risks solving one constitutional problem by recreating another.
Judicial Scrutiny and the Legitimacy of Legislative Response
Challenges to the Tribunals Reforms Act, 2021 emphasise that several of its provisions replicate, with minor drafting variations, norms that the Supreme Court struck down in Madras Bar Association v. Union of India (2021)17. In that decision, the Court invalidated provisions concerning tenure, minimum age and selection committee composition, finding them inconsistent with earlier directives on tribunal independence.
This raises a question about the nature of constitutional dialogue. L. Chandra Kumar confirmed that the Supreme Court’s role as final interpreter of the Constitution is itself part of the basic structure18. When Parliament reenacts norms that are materially indistinguishable from those already invalidated, the boundary between legitimate “response” and impermissible “defiance” becomes blurred. From a constitutional theory perspective, such persistence can be read as an attempt by the political branches to renegotiate, through ordinary legislation, the terms of the basic structure doctrine.
The contest over the 2021 Act is therefore not confined to the technical legality of particular clauses. It implicates the systemic question of whether the State accepts that there are substantive constitutional limits to the ways in which it may structure bodies exercising judicial power. If those limits are treated as pliable, the authority of judicial review is itself placed under strain.
The NCLT as a Case Study in Structural Risk
The National Company Law Tribunal offers a concrete lens through which to view these abstract tensions. As the principal forum for corporate restructuring, mergers, oppression and mismanagement and insolvency under the Insolvency and Bankruptcy Code, the NCLT occupies a central position in India’s commercial adjudication framework19. Its capacity to deliver timely and credible decisions affects creditors, investors and broader financial stability.
Structural vulnerabilities persistent vacancies, delayed appointments, short and renewable tenures have imposed systemic stress on the NCLT’s functioning. When members know that reappointment lies with the Executive, and when administrative support structures are controlled by ministries that may themselves be stakeholders in corporate disputes, the risk is
not merely of actual interference but of perceived structural bias20. In markets that depend on predictable and impartial enforcement of rights, the appearance of neutrality is itself a critical asset.
The transfer of appellate functions from specialised commercial tribunals to already overburdened High Courts adds a further complication. High Courts confer an independence dividend, but often lack the concentrated expertise and case-management systems that complex insolvency and corporate litigation require. As Sinha notes, these changes threaten to recreate the very delays and doctrinal fragmentation that tribunalisation was originally intended to address21. The NCLT thus finds itself in a double bind: internally exposed to executive dominance and externally dependent on an appellate environment at risk of overload.
Efficiency, Access to Justice and Constitutional Limits
Efficiency and access to justice have been the principal arguments advanced for tribunalisation, often anchored in Article 39A22. On a narrow view, tribunals can appear to advance these goals: they may be less formal, more geographically dispersed and more specialised than High Courts. However, constitutional doctrine requires that these advantages be weighed against the foundational requirement of independence.
Speed of disposal cannot constitutionally offset erosion of decisional autonomy. Where institutional design exposes adjudicators to executive influence through control over tenure, reappointment or service conditions, any gains in efficiency are purchased at the expense of impartiality23. The Supreme Court’s insistence on structural independence reflects an understanding that fairness is produced not only by individual integrity but also by institutional architecture. A tribunal member whose continuation depends on executive grace is not situated in the same position as a constitutional judge with guaranteed tenure.
The abolition of specialised tribunals in favour of High Court adjudication reveals the limits of an efficiency-only lens. While High Courts strengthen independence, the loss of domainspecific expertise and the addition of complex commercial matters to already overloaded dockets may increase delay and cost 24 25. Reforms that cure one constitutional infirmity executive capture risk reinstating another backlog and lack of specialisation. The real challenge is therefore to design institutions that hold efficiency and independence in a principled balance rather than treating them as mutually exclusive.
Conclusion
The evolution of tribunal reforms in India reflects a persistent constitutional struggle between administrative efficiency and judicial independence. The Tribunals Reforms Act, 2021 stands as the latest expression of a legislative preference for executive control and managerial rationalisation that sits uneasily with the Supreme Court’s basic structure jurisprudence. The Court’s decisions from S.P. Sampath Kumar through L. Chandra Kumar, R. Gandhi, Rojer Mathew and Madras Bar Association affirm that tribunals entrusted with judicial power must be structured to reflect the same core guarantees of independence that characterise constitutional courts 26 27.
The recurring confrontation over tribunal design is not simply a clash of institutional egos. It represents a deeper disagreement over whether adjudicatory power, once relocated for reasons of efficiency, remains constitutionally anchored in the judiciary or becomes vulnerable to absorption by the administrative state. The future of tribunalisation in India will ultimately turn on whether the political branches accept that efficiency is a derivative, not foundational, constitutional value. Rationalisation of adjudicatory structures is desirable, but it must proceed within the limits set by the basic structure doctrine. That requires designing tribunals and the NCLT in particular in ways that combine genuine specialisation and speed with robust safeguards of independence. Only then can the tribunal project be reconciled with the constitutional commitment to the rule of law.
Footnotes
1. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
2. Law Commission of India. (2017). Assessment of statutory frameworks of tribunals in India (Report No. 272). Ministry of Law and Justice
3. Sinha, I. (2024). Tribunalisation and the Tribunals Reforms Act, 2021: Balancing efficiency with judicial independence. Indian Journal of Law and Legal Research, 7(5), 2794–2812
4. Government of India. (2021). The Tribunals Reforms Act, 2021. Ministry of Law and Justice
5. Government of India. (1976). The Constitution (Forty-Second Amendment) Act, 1976. Ministry of Law and Justice
6. Law Commission of India. (2017). Assessment of statutory frameworks of tribunals in India (Report No. 272). Ministry of Law and Justice.
7. Sinha, I. (2024). Tribunalisation and the Tribunals Reforms Act, 2021: Balancing efficiency with judicial independence. Indian Journal of Law and Legal Research, 7(5), 2794–2812
8. Law Commission of India. (2017). Assessment of statutory frameworks of tribunals in India (Report No. 272). Ministry of Law and Justice
9. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261
10. Rojer Mathew v. South Indian Bank Ltd., (2019) 6 SCC 524
11. Government of India. (2021). The Tribunals Reforms Act, 2021. Ministry of Law and Justice
12. Rojer Mathew v. South Indian Bank Ltd., (2019) 6 SCC 524
13. Madras Bar Association v. Union of India, (2021) 7 SCC 369
14. Union of India v. R. Gandhi, (2010) 11 SCC 1
15. Law Commission of India. (2017). Assessment of statutory frameworks of tribunals in India (Report No. 272). Ministry of Law and Justice
16. Sinha, I. (2024). Tribunalisation and the Tribunals Reforms Act, 2021: Balancing efficiency with judicial independence. Indian Journal of Law and Legal Research, 7(5), 2794–2812
17. Madras Bar Association v. Union of India, (2021) 7 SCC 369 18 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261
18. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261
19. Sinha, I. (2024). Tribunalisation and the Tribunals Reforms Act, 2021: Balancing efficiency with judicial independence. Indian Journal of Law and Legal Research, 7(5), 2794–2812
20. Law Commission of India. (2017). Assessment of statutory frameworks of tribunals in India (Report No. 272). Ministry of Law and Justice
21. Sinha, I. (2024). Tribunalisation and the Tribunals Reforms Act, 2021: Balancing efficiency with judicial independence. Indian Journal of Law and Legal Research, 7(5), 2794–2812
22. Sinha, I. (2024). Tribunalisation and the Tribunals Reforms Act, 2021: Balancing efficiency with judicial independence. Indian Journal of Law and Legal Research, 7(5), 2794–2812
23. Union of India v. R. Gandhi, (2010) 11 SCC 1
24. Law Commission of India. (2017). Assessment of statutory frameworks of tribunals in India (Report No. 272). Ministry of Law and Justice
25. Sinha, I. (2024). Tribunalisation and the Tribunals Reforms Act, 2021: Balancing efficiency with judicial independence. Indian Journal of Law and Legal Research, 7(5), 2794–2812
26. S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124
27. Madras Bar Association v. Union of India, (2021) 7 SCC 369.
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