The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of the Classical Roman Republic’. A Tribunal, generally, is any person or institution having an authority to judge, adjudicate on, or to determine claims or disputes – whether or not it is called a tribunal in its title.
Need for Tribunals:
To overcome the situation that arose due to the pendency of cases in various Courts, domestic tribunals and other Tribunals have been established under different Statutes, hereinafter referred to as the Tribunals.
The Tribunals were set up to reduce the workload of courts, to expedite decisions and to provide a forum which would be manned by lawyers and experts in the areas falling under the jurisdiction of the Tribunal.
The tribunals perform an important and specialised role in justice mechanism. They take a load off the already overburdened courts. They hear disputes related to the environment, armed forces, tax and administrative issues.
According to H.W.R Wade, “The social legislation of the twentieth century demanded tribunals for purely administrative reasons; they could offer speedier, cheaper and more accessible justice, essential for the administration of welfare schemes involving large number of small claims.”
Tracing the Evolution:
The 42nd amendment brought a huge change in the adjudication process of the country by introducing Article 323 A and 323 B in the Constitution of India. The 42nd Amendment and its insertion into Part XIVA paved the way for tribunals in India. They were seen as a panacea to the increasing burden of litigation on the High Courts and the Supreme Court. Subsequently, a number of tribunals were established. These included Administrative Tribunals, Rent Control Tribunals and Tax Tribunals.
However, the constitution and functioning of these tribunals have been controversial and intensely debated. It appears prima facie that through these amendments, the Parliament intended to transfer the judicial power from Judiciary to bodies which can be easily controlled by the legislature. The amendment allowed the Parliament to form laws which will provide for authority, jurisdiction and mode of operation of these tribunals and it also allowed for exclusion of jurisdiction of High Courts and civil courts except the Jurisdiction of Supreme Court under Article 136. At this juncture, two important issues arise, firstly, whether tribunalisation hits the basic structure by violating the principal of separation of powers and independence of judiciary and secondly, whether the constitution allows for the transfer of judicial power.
The evolution of law and attitude of judiciary towards tribunalisation can be traced through the following landmark judgements:
In S.P. Sampath Kumar and Ors. Vs Union of India, the issue was regarding the constitutional validity of 42nd amendment and the Administrative Tribunals Act 1985 as they excluded judicial review. It was held that Judicial Review was part of basic structure of the Constitution but then it was also stated that if the constitutional amendment provides for an effective mechanism for vesting the Administrative Tribunals with power of Judicial review then it would not be unconstitutional even though it excluded the jurisdiction of High Courts.
In L.Chandra Kumar vs The Union of India, the court reiterated the fact that judicial review is part of basic structure of Constitution and the power of judicial review of High Court and Supreme Court under Art. 226 and. Art. 32 ensure independence of Judiciary. The ‘exclusion of jurisdiction’ clause in all the legislations which have been enacted under scope of Article 323A and Article 323 B was struck down.
The superintendence power of High Courts over lower courts within their jurisdiction was held a part of the basic structure. With respect to tribunals it was held that they will ensure speedy justice and they will act as courts of first instance with respect to areas of law for which they have been established. The reason given, behind the judgement was that the constitutional provision ensures the independence of only superior judiciary and not of tribunals. Therefore, the tribunals can never be a perfect substitute of superior courts and hence the power of judicial review of High Court and Supreme Court can never be excluded.
In Union of India v. R Gandhi, it was held that exclusion of jurisdiction of High Court is permissible and parliament has the authority to form tribunals through specific enactments and vest them with the jurisdiction to adjudicate upon the matters related to those specific enactments. It was also stated that though the legislature can form laws prescribing eligibility criteria and kind of expertise required for appointment in tribunals, the superior courts have the authority to examine whether the eligibility criteria and qualifications prescribed for appointment of members is adequate enough to enable them to meet the purpose for which the given tribunal is constituted.
Despite of the unambiguous opinions given by the Supreme Court, there are several concerns which need to be addressed. Firstly, the sole purpose behind the establishment of tribunals was to ensure speedy justice; however, subjecting their judgements to judicial reviews of High Court and Supreme Court is going to make the process more lengthy and complex. Secondly, whether the tribunals can be independent if most of members are either appointed by executive or, are a part of the executive. Thirdly, with the increase in number of tribunals the uniformity in administration of tribunals is decreasing and functioning of most of the tribunals is not in a proper state.
The provision for Tribunals was added by the 42nd Constitutional amendment act which added two new articles to the constitution.
1. Article 323-A : of the constitution which empowers the parliament to provide for the establishment of administrative tribunals for adjudicating the disputes relating to recruitment and conditions of service of a person appointed to public service of centre, states, local bodies, public corporations and other public authority. Accordingly parliament has enacted Administrative Tribunals Act,1985 which authorizes parliament to establish Centre and state Administrative tribunals (CAT & SATs).
A. Central Administrative Tribunal (CAT): It was set up in 1985 with the principal bench at Delhi and additional benches in other states ( It now has 17 benches, 15 operating at seats of HC’s and 2 in Lucknow and Jaipur.
It has original jurisdiction in matters related to recruitment and service of public servants (All India services, central services etc).
Its members have a status of High Court judges and are appointed by president.
Appeals against the order of CAT lie before the division of High Court after Supreme Court’s Chandra Kumar Judgement.
B. State administrative tribunals
Central government can establish state administrative tribunals on request of the state according to Administrative tribunals act of 1985
SAT’s enjoy original jurisdiction in relation to the matters of state government employees.
Chairman and members are appointed by President in consultation with the governor.
2. Article 323-B which empowers the parliament and the state legislatures to establish tribunals for adjudication of disputes related to following matters
• Foreign exchange, Imports and Exports
• Industry and Labour
• Land reforms
• Ceiling on Urban Property
• Elections to parliament and state legislature
• Food stuffs
• Rent and Tenancy Rights
Characteristics of Administrative Tribunals
Administrative Tribunal is a creation of a statute.
An Administrative Tribunal is vested in the judicial power of the State and thereby performs quasi-judicial functions as distinguished from pure administrative functions.
Administrative Tribunal is bound to act judicially and follow the principles of natural justice.
It is required to act openly, fairly and impartially.
An Administrative Tribunal is not bound by the strict rules of procedure and evidence prescribed by the civil procedure court.
Issues with Tribunalisation:
Inadequate infrastructure: Many tribunals also do not have adequate infrastructure to carry out their functions efficiently which leads to high pendency rates thus proving unfruitful to deliver quick justice.
Caseload with Judiciary remains unresolved: Administrative tribunals were originally set up to provide specialized justice delivery and to reduce the burden on regular courts. However, appeals from tribunals inevitably enter the mainstream judicial system.
Lack of Information: There is a lack of information available on the functioning of tribunals. Websites are routinely non-existent, unresponsive or not updated.
Understaffed Tribunals: Appointments to tribunals are usually under the control of the executive. Not only does the government identify and appoint the members of the tribunals, but it also determines and makes appropriate staffing hires. This is problematic because often there is a lack of understanding of the staffing requirements in tribunals.
Against the doctrine of separation of powers: Tribunalisation is seen as encroachment of judicial branch by the government.
Accessibility: Accessibility is low due to scant geographic availability therefore justice becomes expensive and difficult.
Devaluation of the authority of High Courts. Appeals going directly to the Supreme courts, bypassing High Courts. In this case, Supreme Court would have less time and resources for constitutional matters.
Many tribunals have no constitutional protection.
There is no scope of a dissenting judgement in a tribunal.
Justice becomes costly and less accessible as unlike High Courts, tribunals are not present in almost each state.
Way Forward/ Solutions:
Qualifications: In Union of India vs. R. Gandhi , the Supreme Court looked at the working of tribunals closely. It said that when the existing jurisdiction of a court is transferred to a tribunal, its members should be persons of a rank, capacity and status as nearly as possible equal to the rank, status and capacity of the court.
Independence: The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department.
Accessibility: Tribunals must have benches in different parts so as to ensure that they are accessible.
Appointments to members: Should be done by an impartial and independent selection committee.
Law Commission Report:
• The Law Commission has pointed a grim picture of the case burden- the top five central tribunals in the country have a combined backlog of over 3.50 lakh cases. • In its report ‘Assessment of Statutory Frameworks of Tribunals in India’, it was held that “though the disposal rate of the tribunals in comparison to the filing of cases per year had been remarkable — 94 per cent — the pendency still remains quite high.” • It highlighted that the concept of tribunals was evolved to overcome the crisis of delay and backlogs in the administration of justice in regular courts. However, the official data depicts a deplorable state of affairs. • The Law Commission of India has recommended that the writ petitions challenging the decisions of different central tribunals in the country should be filed before a division bench of the High Court instead of the Supreme Court.
Judicial independence and separation of powers are two strong pillars of a democratic state. They are an inherent aspect of a country governed by rule of law. Judicial independence and separation of powers have been held to be part of basic structure of the Constitution by the Hon’ble Supreme Court of India. It has often been alleged against excessive tribunalisation that it strikes a hard blow on judicial independence and separation of powers. Excessive tribunalisation means transferring more and more power to the executive branch which goes against the very idea of having separation of power. Judicial independence ensures judicial branch which is free of any sort of intrusion from any other branch. Thus, excessive tribunalisation goes against the very idea of a country governed by rule of law.
In the Delhi Bar Association case, it was argued that the legislative competence of the Parliament to create tribunals could not be questioned. The contention that vesting jurisdiction with tribunals would leave the High Courts with no jurisdiction in those matters was struck down by the Court. Tribunals need to be viewed as departments of ministries as part of the administration and also need to seem to be so independent as to be excluded from jurisdiction of ordinary courts. Thus, the system of Droit Administratif should be incorporated in India.
The High Courts’ jurisdiction may be ousted without affecting the jurisdiction of the Supreme Court as held in Sampath Kumar case and suggested by the Law Commission, but must be accountable to an independent body which is neither an arm of the administration nor an ordinary court. The Supreme Court must be careful in admitting appeals from the orders of tribunals to ensure the efficiency and smooth functioning of this system. A partial adoption of the Droit Administratif, coupled with an overlooking independent nodal agency, both free from over-interference from the administration or the ordinary courts is one way by which the present ills of the system may be removed.