2. Institutionalised Arbitrariness attempts to construct a judicial role for FTs without the statutory foundation required under Indian constitutional doctrine and international human rights law. 2.3 Missing Legal Oversight The FTs are also incompatible with the requirement of legal oversight and statutory clarity. The principle that tribunals must be “established by law” is designed to safeguard against arbitrary executive discretion and to ensure the independence, impartiality, and competence of adjudicatory bodies. It also requires that such tribunals operate within a publicly accessible and clearly prescribed legal framework—one that guarantees procedural consistency, fairness, and legitimacy. This requirement entails more than merely having procedurally sound mechanisms for tribunal creation. It demands a broader legal architecture: one that includes clearly defined adjudicatory procedures, oversight mechanisms, and meaningful rights of appeal. In the case of the FTs, such a framework is conspicuously absent. The principle of legal oversight resonates with the right to an effective remedy under international human rights law—particularly Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR), which is legally binding on India. This provision requires state parties to ensure that remedies for human rights violations are competent, independent, and effective. While these may be administered through judicial, administrative, or legislative authorities, the ICCPR places clear emphasis on judicial mechanisms to uphold due process. Article 2(3) calls for remedies to be determined by “competent” authorities and urges States to “develop the possibilities of judicial remedy”—highlighting that judicial oversight is paramount, particularly where administrative remedies fail to ensure impartiality. The drafting history of Article 2(3) further underscores this emphasis. While some states preferred flexible approaches, others insisted on judicial safeguards. The eventual compromise struck a balance—allowing administrative mechanisms but insisting that executive authorities not serve as sole arbiters, and that judicial mechanisms be prioritised where necessary. The Human Rights Committee (HRC) has reinforced this interpretation through its jurisprudence and General Comments. In Poma Poma v. Peru,78 the HRC found a violation of Article 2(3)(a) when the State, acting as both judge and party, prevented judicial proceedings from being initiated. The HRC affirmed that only judicial remedies can uphold the objectivity and independence necessary for fair adjudication. General Comment No. 31 goes further, stating that judicial bodies are central to ensuring effective remedies, particularly in addressing serious human rights violations.79 While 77 78 79 ibid [27]. HRC ‘Poma Poma v. Peru’ (27 March 2009) UN Doc CCPR/C/95/D/1457/2006. HRC, ‘General Comment No. 31 [80]: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add.13, para 15. 43