Return to sender: The misuse of remand orders by appellate tribunals

by Natasha Aggarwal and Bhavin Patel.

Appellate tribunals were established to ensure speedy and expert adjudication of appeals from regulators’ orders. A defining feature of their institutional design is the inclusion of both judicial and technical members. Judicial members possess legal training and skills and can ensure the application of, and compliance with, judicial principles, such as the principles of natural justice. Technical members are expected to bring sector-specific knowledge relevant to the domain of the tribunal’s work. As such, tribunals are ‘expert’ bodies that are well-equipped to provide speedy and efficient resolution and it would be incorrect to assume that they lack the technical expertise necessary to decide a matter on merits.

However, tribunals in India frequently remand matters to regulators. Our analysis of 764 cases disposed of by the Securities Appellate Tribunal (SAT) from 2009 – 23 reveals that 76 cases (10%) resulted in a remand (Aggarwal and others, 2025). Further, our analysis of 919 cases disposed of by the the Appellate Tribunal for Electricity (APTEL) from 2013 – 22 reveals that 200 cases (21.7%) resulted in a remand (Jain, Patel and Sane, 2025). The fact that one in ten instances before the SAT and a staggering one in five instances before the APTEL are remanded is a matter of concern. Remands result in additional time and resources being spent on resolving a matter, since the dispute is first heard by the regulator, then in challenge by the tribunal, and then, once again by the regulator. Therefore, it is important to study the reasons provided by the tribunal when it remands a matter.

In a recent paper, titled “Return to sender: The misuse of remand orders by appellate tribunals”, we study orders issued by the SAT and the APTEL in 2024, evaluate the instances in which the SAT and the APTEL remanded matters, and examine whether these remands are consistent with recognised legal principles regarding when a remand may be ordered. The paper was also included in Daksh’s “The State of Tribunals Report”, which was released on 25 September 2025.

Our paper addresses three questions:

• What costs do remands impose on the parties and the adjudicatory infrastructure of regulators?

  Our examination of two matters, one originating at SEBI and the other originating at the Kerala Electricity Regulatory Commission, shows that remands cause delays that span up to 14 years. This defeats one of the primary reasons for establishing tribunals, that is, to ensure speedy justice.

• What reasons does the law recognise as valid for remands by tribunals?

  Our earlier studies demonstrate frequent remands by SAT and APTEL. Indian law circumscribes the instances in which courts may order remands. These boundaries are set in the Code of Civil Procedure, 1908 (CPC) and in judicial decisions of superior courts. The CPC, parent statutes that establish tribunals, and rules of procedure framed by tribunals for themselves do not, however, clearly identify when tribunals may remand matters. There is limited guidance on this in superior court decisions. We argue that the reasons for which courts can order remands should also limit the discretion of tribunals in remanding matters. We call these reasons “Permissible Reasons” for remand, and classify any other reasons provided by tribunals when remanding matters as “Other Reasons”.

• How many matters were remanded by SAT and APTEL in 2024? What reasons were provided? Are the reasons permissible under law?

  We study the orders of SAT and APTEL for 2024, in which there are 13/228 (5.7%) remands ordered by SAT and 28/171 (16.4%) remands ordered by APTEL. We find that the SAT ordered a remand for Permissible Reasons in 21 appeals and for Other Reasons in four appeals. The APTEL remanded the matter for Permissible Reasons in 26 appeals and for Other Reasons in 37 appeals.

We find that remands are often ordered for reasons that are not included in the CPC and applicable common law. Unnecessary remands add time and cost to regulatory proceedings. They undermine investor confidence in regulated sectors, since it is difficult to take business decisions in the face of uncertainty about whether a regulator’s orders will have to be reconsidered and modified. This also adversely affects the rule of law requirements of predicability and certainty in regulatory proceedings.

There may be several ways to reduce this problem, including, possibly, by improving order writing practices at the regulators whose orders are challenged in appeal before tribunals. We suggest that it is also useful to consider how this problem can be addressed at tribunals, and therefore recommend that:

• Clear rules determining the scope of the power of ordering a remand should be made applicable to all tribunals. These rules should apply in a consistent manner across tribunals, rather than being framed by each tribunal for itself. This will help ensure consistency and predictability, and limit the discretion of tribunals in this matter.
• These rules should be incorporated in the parent statutes of tribunals.
• In the absence of any reason to deviate from the rules on remand provided in the CPC and applicable common law, the scope of remanding power for tribunals should be the same as that available to courts.

Providing this clarity would help avoid unnecessary and unreasonable orders of remand, and help ensure that the core rule of law principles of consistency, predictability, and clarity are satisfied in the procedural aspects of the functioning of tribunals.

References

Natasha Aggarwal, Amol Kulkarni, Bhavin Patel, Sonam Patel, and Renuka Sane, “Balancing Power and Accountability: An Evaluation of SEBI’s Adjudication of Insider Trading” [2025] (13) Trustbridge Rule of Law Foundation Working Papers.

Chitrakshi Jain, Bhavin Patel, and Renuka Sane, “Examining the performance of ERCs at APTEL” [2025] The Leap Blog.

The authors are researchers at the TrustBridge Rule of Law Foundation.