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Tribunals Reforms – The Bigger Picture

Delay and backlogs in the administration of justice was a genuine concern for our country, more so, when in the present judicial setup, disputes often take years to attain finality, travelling across trial courts to the High Court and ending with an inevitable approach to the Supreme Court.

In addition to the delay, there was a rise of specialization and increase of complex regulatory and commercial aspects, which required esoteric appraisal and adjudication, and the existing lower courts in the country were not that equipped to deal with such complex new issues. 

The creation of tribunals thus evolved as one solution to ease burdens on the existing system and to increase access to justice. Various tribunals came to be established, such as Central Administrative Tribunal (CAT), Income Tax Appellate Tribunal (ITAT), Customs, Excise and Service Tax Appellate Tribunal (CESTAT), National Green Tribunal (NGT), Film Certificate Appellate Tribunal (FCAT), Securities Appellate Tribunal (SAT) Intellectual Property Appellate Board (IPAB) National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT), etc. 

While some tribunals have been performing well, the Supreme Court and the Government of India have recognized, time and again, the need to revisit the tribunals’ system. 

The Government began the process of rationalization of tribunals in 2015. By the Finance Act, 2017, some of the existing tribunals were abolished or merged based on functional similarity. The Supreme Court has also revisited the issue time and again, notably in K. Jain vs. Union of India, (1993) 4 SCC 119, L. Chandra Kumar vs. Union of India, (1997) 3 SCC 261, R, Union of India vs. R. Gandhi, President, Madras Bar Association, (2010) 11 SCC 1, Gujarat Urja Vikas Ltd. vs. Essar Power Ltd. (2016) 9 SCC 103 and recently in the case of Rojer Mathew vs. South India Bank Ltd. (2020) 6 SCC 1 and Madras Bar Association vs. Union of India [W.P.(C) No.840/2020] decided on 27.11.2020.  

The Govt. has promulgated the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, issued by the Ministry of Law and Justice, which was notified on April 4, 2021. By the said Ordinance, amendments have been made to the Cinematograph Act, 1952; Copyright Act, 1957; Customs Act, 1962; Patents Act, 1970; Airport Authority of India Act, 1994; Trade Marks Act, 1999; Geographical Indications of Goods (Registration and Protection) Act, 1999; Protection of Plant Varieties and Farmers’ Rights Act, 2001; Control of National Highways (Land and Traffic) Act, 2002; and the Finance Act, 2017. 

The Film Certification Appellate Tribunal (FCAT) and Intellectual Property Appellate Board (IPAB) are amongst the tribunals abolished through this amendment. 

With the abolition of IPAB, High Courts will be the forum for adjudicating the disputes of patents, trademarks, and geographical indications, while copyright matters will be heard in commercial courts.

FCAT was constituted to hear appeals of filmmakers aggrieved by the Central Board of Film Certification (CBFC). In the Cinematograph Act, the appellate body will again be the High Court.

Of all, the abolition of the FCAT has apparently disappointed many in the film industry and is being criticized as restrictive and a step in retrograde. FCAT had been considered more progressive than the Censor Board. Filmmakers also liked it for being able to dispense quicker justice, which is of utmost importance for allowing them to release their films as scheduled, saving them from financial loss. It is being argued that FCAT abolition will not only overburden the courts, further resulting in delayed disposal of producer’s grievances but would also make it arduous and expensive for them to approach the High Courts every time against a decision of the Censor Board.   

On the other hand, it is also being said that number of films needing to go to the appellate tribunal has been steadily declining, and over the last few years, only around 0.2 percent of films were taken to FCAT. Also, the stature of the High Courts as fiercely independent and progressive cannot be lost sight of. There are many instances where the High Courts have been expeditiously decided the dispute and paved the way for the release of a film as scheduled. Recently, the Delhi High Court had refused to stay the release of the firm, ‘The White Tiger’, which was scheduled to be released on the online streaming platform, Netflix on January 22, 2021. There is no reason to believe as to why the High Courts would not perform better than the FCAT. At the same time, a lasting solution lies in reforming and rationalizing the Censor Board itself. 

While the jury is still out on this bold decision of the Govt, High Courts will undoubtedly need better infrastructure and more judges to deal with an increasing number of cases and to adjudicate them swiftly and without any delay.  

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