2. Institutionalised Arbitrariness This right to adjudication by an independent forum becomes even more critical when the tribunal in question replaces a court. The Supreme Court in MBA I made clear that any legislative move to alter, abridge, or substitute access to courts must be tested against the requirement that the new forum possess institutional integrity. In its words: “If Tribunals are to be vested with judicial power hitherto vested in or exercised by courts, such Tribunals should possess the independence, security and capacity associated with courts.”107 49 The principle here is straightforward: if a tribunal is to be clothed with judicial power, particularly in place of ordinary courts, it must mirror those courts in their structure, safeguards, and independence. It is not enough for a tribunal to be formally constituted—it must be functionally and institutionally equivalent to the court it replaces. This principle of institutional equivalence has been elaborated in subsequent jurisprudence. In Madras Bar Assn. v. Union of India (2014) (“MBA II”),108 the Supreme Court insisted that “while constituting the analogous court/tribunal, it will have to be ensured, that the appointment and security of tenure of judges of that court would be the same, as of the court sought to be substituted.”109 Not only must judges have equivalent status, the Court held, but “all conventions/customs/practices of the court sought to be replaced, have to be incorporated in the court/tribunal created.”110 In Rojer Mathew v. South Indian Bank Ltd. (2019), the Court reiterated what it called a “wellestablished principle”: wherever Parliament transfers jurisdiction from traditional courts to tribunals, “the qualification and acumen of the Members in such tribunal must be commensurate with that of the court from which the adjudicatory function is transferred.”111 It further stated that “a Tribunal to have the character of a quasi-judicial body and a legitimate replacement of courts, must essentially possess a dominant judicial character through their members/Presiding Officers… knowledge, training and experience of members/Presiding Officers of a Tribunal must mirror, as far as possible, that of the Court which it seeks to substitute.”112 In all of these formulations, the constitutional benchmark remains the same: when tribunals are given powers formerly exercised by courts, they must match the courts in terms of independence, capacity, and procedural safeguards. The courts, in other words, are the reference point. As MBA I makes explicit, “only if continued judicial independence is assured, tribunals can discharge judicial functions… It is fundamental that the members of the tribunal shall be independent persons, not civil servants. They should resemble the courts and not bureaucratic Boards.”113 This is not simply a matter of form—it is a matter of constitutional substance. The Court concluded unequivocally: “There seems to be no doubt… that the Members of a court/tribunal to which adjudicatory functions are transferred must be manned by Judges/members whose stature and qualifications are commensurate to the court from which the adjudicatory process has been transferred.”114 106 109 112 107 110 113 ibid [40]. ibid [90]. 108 (2014) 10 SCC 1. ibid [113.2]. ibid. 111 Rojer Mathew v. South Indian Bank Ltd. (2020) 6 SCC 1 [159]. 114 ibid [161]. Madras Bar Assn. (MBA I) (n 103) [64]. ibid [128].