ABSTRACT: Presently, the tribunals occupy an important part in the sphere of adjudication of disputes. The tribunals have original jurisdiction over many matters. As there are aspects which are different in the functioning of a tribunal from the courts, because it is a quasi-judicial body, there arises certain problems as well. This paper proceeds to analyze the position of law with regard to the tribunal system in India, look at its issues and challenges and offer recommendations for the same.
In the current scenario of adjudication of disputes, apart from the court system, even tribunals play a very important role. The number of tribunals has been increasing after 1947,1 especially after the 42nd Amendment Act of 1976, which provided for the insertion of Art. 323A and Art. 323B.2 Tribunals function differently from courts, from the manner of appointment to the procedure followed, yet they seek to achieve the same objective as that of courts- to deliver justice. In this light, the paper proceeds to analyze the tribunal system in India.
Part I looks at the situation before the 42nd Amendment Act and the changes it brought to the erstwhile tribunal system, and provides a description of the meaning of the term ‘tribunal’. Part II deals with the three landmark judgments which have influenced the tribunal system to a great extent, namely, S.P. Sampath Kumar v. Union of India, L. Chandra Kumar v. Union of India and the recent R. Gandhi v. Union of India. After Sampath Kumar, the High Courts did not enjoy the power of judicial review with regard to matters concerning tribunals under Art. 323A which was the position post the 42nd Amendment, but after Chandra Kumar, which brought about a massive change and continues to be good law, the High Courts enjoyed the power of judicial review with regard to matters concerning tribunals both under Arts. 323A and 323B. Part III analyzes some of the issues and concerns relating to the tribunal system in India- the implications of Chandra Kumar, the appointment of members in tribunals by the Executive the provision for members in tribunals to comprise of persons from the Executive and the problems surrounding tribunalisation, and provides recommendations for the same.
I. AN OVERVIEW OF THE TRIBUNAL SYSTEM IN INDIA
Tribunals, one of the bodies of administrative adjudication in India, have witnessed much debate in the recent years. They were set up to reduce the workload of courts, to expedite decisions and to provide a forum which would consist of both lawyers and experts in the areas falling under the jurisdiction of the tribunal.3 The 42nd Amendment Act of 19764 brought about a massive change in the adjudication of disputes in the country, as it provided for the enactment of Art. 323A and Art.323B in the Constitution of India.5 Art. 323A provides for the establishment of administrative tribunals by the Parliament and Art. 323B provides for the establishment of tribunals to adjudicate on the matters specified in the sub-clause with regard to which the respective Legislature had the power to make laws.6 Art. 323A was to be effective only if the Parliament implemented a law in this regard and hence the Administrative Tribunals Act of 1985 was enacted.7 Similarly, tribunals could be set up under Art. 323B only if the necessary legislation was enacted8 and there are many non-administrative tribunals, such as the Income Tax Appellate Tribunal, Debt Recovery Tribunal, the Customs Excise and Service Tax Appellate Tribunal and the Compensation Tribunals.9 Importantly, tribunals existed prior to the 42nd Amendment Act and even prior to the date of the enactment of the Constitution, as Art. 136 provides for the term ‘tribunal’ and further, there were, inter alia, tribunals established under the Industrial Disputes Act of 1947 and under the Life Insurance Corporation Act of 1956. Art. 323A and Art. 323B did not provide for the setting up of the tribunals for the first time in the country, but were rather meant to provide a fillip to the tribunal system10 and provide constitutional authority for the legislations.11 Further, before the insertion of Art. 323A and Art. 323B, tribunals were under the ambit of the respective High Courts.12 The High Courts had appellate jurisdiction in this regard on matters which could be heard by the tribunals. Further, a writ petition could also be maintained before the Supreme Court and the High Court under Art. 226 and Art. 32 respectively, but after this amendment, an appeal could be preferred only to the Supreme Court by means of a Special Leave Petition under Art. 136 and the writ jurisdiction under both Art.226 and Art. 32 were excluded.13
Though the term ‘tribunal’ has not been defined, either in the Constitution or in any of the related legislations, there have been cases wherein courts have laid down the requisites of tribunals. In Jaswant Sugar Mills,14 it was held that to determine whether an authority acting judicially was a tribunal or not, the ‘principle incident’ was whether it was invested with the trappings of a court, such as having the authority to determine matters, authority to compel the attendance of witnesses, the duty to follow the essential rules of evidence and the power to impose sanctions. In another judgment in the same year,15 it was held that the three essential requisites for a body to be a tribunal were that it had to have the trappings of a court, had to be established by the state and it had to be vested with the inherent judicial power of the state. However, these criteria are illustrative and not exhaustive.16 With regard to the functioning of a tribunal, tribunals do not have to follow any uniform procedure as laid down under the Civil Procedure Code17 and under the Indian Evidence Act of 1872 but they have to follow the principles of natural justice.18
II.TRACING THE TRAJECTORY OF JUDGMENTS- FROM SAMPATHKUMAR TO R. GANDHI
After the enactment of Art.323A and Art. 323B, there have been three landmark judgments which have shaped the history of the tribunal system.19 As Art. 323A and Sec. 28 of the Administrative Tribunals Act provided for excluding the jurisdiction of all courts except the jurisdiction of the Supreme Court under Art. 136, there were a catena of cases which challenged the validity of both the legislation and the 42nd amendment.20 The judgment of the five judge Bench of the Supreme Court in S.P.Sampath Kumar v. Union of India21 flagged off the debate in this area.
The important issue raised in Sampath Kumar was whether the Administrative Tribunals Act and the 42nd constitutional amendment (in light of Art. 323A) were unconstitutional as they excluded judicial review.22 The court held that judicial review was part of the basic structure of the Constitution but went on to state that if the constitutional amendment did not leave a void by excluding the jurisdiction of the High Court but if it set up another effective institutional mechanism wherein the power of judicial review was vested the Administrative Tribunal would pass the test of constitutionality. The basic structure doctrine implies that if any there is a legislation amending any area of law belonging to the basic structure, the amendment would be adjudged void.23
The court further held that these tribunals had the power of judicial review owing to the 42nd Amendment Act. This was also because exclusion of the jurisdiction of the High Court by providing for effective institutional mechanisms would not bar judicial review as tribunals were effective mechanisms as they helped in reducing the backlog of cases and assured quick settlements of service disputes. However, it is surprising that the issue pertaining to the constitutionality of Art. 323B(3)(d), which is similar to Art. 323A(2)(d) was not raised before the Court.
Almost a decade later, in L.Chandrakumarv. Union of India,24 a seven judge Bench of the Supreme Court overruled Sampath Kumaron the point of the power of judicial review of the High Courtsand it still continues to be good law. It was a landmark decision also because the issue of the constitutionality of Art. 323B(3)(d) was raised for the first time. The important issues raised before the Court were- first, whether Art. 323A(2)(d) and Art. 323(B)(3)(d) violated the power of judicial review vested with the High Court under Art. 226 and Art. 227. Second, whether the power of superintendence of the High Courts over all tribunals and courts situated within their territorial jurisdiction was part of the basic structure. Third, whether the provision for a technical member would make any difference in deciding the validity of the provision for the constitution of tribunals. First, it was held that the power of judicial review was vested with the Supreme Court and the High Court under Art. 226 and under Art. 32 as the constitutional safeguards which ensured the independence of the higher judiciary were not available to the lower judiciary and reiterated that judicial review was a part of the unviolable basic structure doctrine.25 The court also reiterated that an ‘exclusion of jurisdiction’ clause enacted in any legislation under the ambit of 323A(2)(d) and Art. 323(B)(3)(d) were unconstitutional. Second, it was held that the power of superintendence of the High Courts over the lower judiciary within their territorial jurisdiction was part of the basic structure. Third, it was held that the setting-up of tribunals was founded on the premise that those with judicial experience and grass-roots experience would best serve the purpose of dispensing speedy justice. The court also clarified that the tribunals would continue to act as courts of first instance in respect of the areas of the law for which they have been constituted.
Importantly, the reasons stated for this ratio decidendi was that the constitutional safeguards which ensured the independence of the superior judiciary were not available to those manning tribunals. Hence the judges of the tribunals can never be considered the full and effective substitutes of the superior judiciary in discharging the functions of constitutional interpretation and thus the power of judicial review could not be ousted from the High Court and the Supreme Court. Interestingly, the court has only looked at independence of the judiciary in terms of, inter alia, salaries, allowances and the retirement age of judges and not with regard to whether the presence of administrative and technical members would be the interference of the Executive in judicial actions.
However, when certain civil appeals came up for hearing before a three-judge Bench of the Supreme Court, wherein it felt that Chandra Kumar had not addressed the issue of to what extent the powers of the High Court, excepting judicial review could be transferred to the tribunals and whether there was a demarcating line for the Parliament to vest intrinsic judicial functions traditionally performed by courts in any tribunal. Hence the three-judge Bench directed the appeals to be heard by a Constitution Bench, and in Union of India v. R Gandhi,26 these issues were addressed.
First, it was held that the Constitution contemplates judicial power being exercised by both courts and tribunals (in light of Art. 32, Art. 247, Art. 323A and Art. 323B) and hence if jurisdiction of High Courts could be created by providing for appeals, revisions and references to be heard by the High Courts, jurisdiction can also be taken away by deleting the provisions for appeals, revisions or references and it also followed that the legislature has the power to create tribunals with reference to specific enactments and confer jurisdiction on them to decide disputes in regard to matters arising from such special enactments. Second, it was held that while the legislature could make a law providing for constitution of tribunals and prescribing the eligibility criteria and qualifications for being appointed as members, the superior courts in the country could, in exercise of the power of judicial review, examine whether the qualifications and eligibility criteria provided for selection of members is proper and adequate to enable them to discharge judicial functions and inspire confidence.
Despite three landmark judgments, there are a lot of issues regarding the tribunal system in India. First, the reasons for the establishment of the tribunals included the delivery of speedy justice but if the decisions of the tribunals were subject to judicial review, the High Court would have to hear those cases when already the Supreme Court had the power to do so and hence it would lengthen the judicial process.27 Second, the independence of the tribunals is under question as administrative or technical members, are in most instances, appointed by the Executive28 and many tribunals consist of members from the Executive.29 Third, increasing tribunalisation is problematic as there is no uniformity in administration among the tribunals30 and the functioning of most of the tribunals is in a very bad state.31
III.THE TRIBUNAL SYSTEM TODAY- SOME ISSUES AND CONCERNS
1.The implications of Chandra Kumar
The judgment in Chandra Kumar has unnecessarily increased the duration of the procedure to obtain justice when anyhow the Supreme Court has the power of judicial review. As correctly pointed out in Sampath Kumar, it has been held in Minerva Mills32 that the power of judicial review cannot be dispensed with but the Parliament could, in place of the High Courts, substitute another alternative institutional mechanism for judicial review. However, in Chandra Kumar, the court felt that the theory of alternative institutional mechanisms as established in Sampath Kumar was in defiance to the proposition laid down in Kesavananda Bharati33 and Indira Gandhi34 that only constitutional courts alone were competent to exercise the power of judicial review. The confounding issue is that, after Chandra Kumar, despite High Courts enjoying the power of judicial review against decisions passed by tribunals, tribunals have not been divested of their power of judicial review. The vesting of the power of judicial review on tribunals has not been done by the Parliament when establishing tribunals under different enactments,35 but rather Sampath Kumar vested the power of judicial review on administrative tribunals by holding that another institutional mechanism could exercise the power of judicial review, and Chandra Kumar has not overruled this aspect, but conferred the power of judicial review on non-administrative tribunals as well. Rather, it was only held that tribunals cannot exercise the power of judicial review to the exclusion of the High Court and the Supreme Court.
Though Chandra Kumar has created undesirable consequences, it is unfortunate that this position cannot be changed as judicial review has been conclusively held to be part of the basic structure of the Constitution.36 In light of the current situation, it is submitted that the power of judicial review be divested from the tribunals as only constitutional courts are competent to exercise the power of judicial review37 and it is recommended that each High Court has a separate Bench to deal with the power of judicial review with regard to tribunals in order to expedite the process.
2.The provision for administrative/technical members
Many legislations, such as the Administrative Tribunals Act of 1985, the Income Tax Act of 1961, Consumer Protection Act of 1986 and the Competition Act of 2002, provide for administrative or technical members to be a part of the tribunal. Administrative members are those who have practical experience of the functioning of the services38 and technical members are those who are experts in the field related to the respective tribunals.39 These administrative and technical members are, in most instances, appointed by the Executive.40 Moreover, many tribunals also consist of members from the Executive.41 The issue is whether the appointment by Executive with regard to the performance of judicial functions is a violation of the doctrine of separation of powers and the concept of the independence of the judiciary.
The doctrine of separation of powers emphasizes the exclusiveness of the organs of the government, namely the legislature, the executive and the judiciary.42 It was held in Ram Jawaya that though the Constitution has not recognized this doctrine in absolute rigidity, it does not contemplate the assumption of functions belonging to a particular organ of the State by another. This doctrine is a part of the basic structure of the Constitution.43 The principle of independence of the judiciary is the insulation of courts from any coercion attempted by forces either from within or from outside the government.44 The makers of the Constitution were anxious that even the subordinate judiciary be insulated from executive interference45 and this principle is part of the basic structure of the Constitution.46 Further, the separation of judicial power from executive power is also one of the facets of the principle of the rule of law.47
In reality, tribunals are not fully independent. The Supreme Court observed that the secretary of the ‘sponsoring department’48 sits in the Selection Committee for appointment. Further, when the tribunals are formed, they are largely dependent on the sponsoring department for infrastructure and funding.49 Also, legislations constituting tribunals habitually provide for the members of civil services from the sponsoring departments to become members of the tribunal.50
Clearly, in light of the above, the appointment of administrative and technical members by the Executive is a contravention of the doctrine of separation of powers and the principle of the independence of the judiciary. Surprisingly, this issue was dealt with in light of the independence of the judiciary by the Supreme Court in as late as 2010, in R Gandhi.
It is recommended that the model which was adopted in the United Kingdom in the Tribunals, Courts and Enforcement Act of 2007 (“Tribunals Act”) be followed in India. The guarantee of judicial independence is available to most tribunal members.51 For the members of the tribunals which are created under the Tribunals Act, appointments would be made only after the recommendations of the Judicial Appointments Commission.52 The eligibility criteria for being a member of the Judicial Appointments Commission is that the person had to be a solicitor or a barrister or possessed a qualification awarded by the Institute of Legal Executives or by anybody authorised to confer rights of audience or rights to conduct litigation.53 Hence, all the formal links with the ‘sponsoring department’ are severed.54
Currently, there a lot many tribunals functioning in the country, and an exhaustive list of tribunals cannot be prepared.55 The tribunal system has been growing haphazardly with the lack of any overarching plan.56 There is no uniform administration of these tribunals and there is flexibility in the norms of natural justice which have to be followed.57 The Supreme Court expressed the problems related to tribunals succinctly by stating that,58
Even very recently, the Supreme Court has expressed its concerns over the ‘bureaucratic attitude’ in the functioning of several tribunals opining that it was very unfortunate that the court had to interfere for the provision of infrastructure and manpower.59 Thus, there are a lot of issues surrounding tribunalisation which need to be addressed. These issues are the the haphazard growth of tribunals constituted by the Central and the State governments, inefficient functioning of the tribunals, and the lack of a uniform procedure in adjudicating disputes.
With regard to these issues, it is recommended that first, the Ministry of Law and Justice should prepare a list of tribunals which are currently functioning, along with the legislations they are governed under and the places they are located in. This would spread awareness and would help any person in the country know which tribunal he has to approach in case of a dispute, especially because tribunals would act as courts of first instance in respect of the areas of the law for which they have been constituted. Second, there should be a body which supervises the functioning of tribunals. It was recommended in Chandra Kumar that the Ministry of Law and Justice should appoint an independent supervisory body to oversee the working of the tribunals and also, in the United Kingdom, the Tribunals Act provides for the establishment of the Administrative Justice and Tribunals Council whose functions are to keep the administrative justice system under review and to consider ways to make the system accessible, fair and efficient.60
As tribunals do not have to follow any uniform procedures but only follow the principles of natural justice, it poses a problem as courts have not laid down even the basic guidelines of natural justice which is applicable to the tribunals. To add to this problem, case law pertaining to natural justice is not consistent and the person affected and the adjudicators are unable to have a clear understanding of the procedures which have to be followed. Flexibility may be justifiable to a certain extent as tribunals should have the freedom to decide the procedures in accordance to the needs of the specific body but this has resulted in a multiplicity of procedures followed by the tribunals and the law regarding procedures is unpredictable.61 Hence, third, for the formulation of minimal norms of procedure to be followed, the recommendations of the Law Commission Report of 1958 must be implemented. The Commission recommended that there should be a legislation for the functioning of tribunals which provides for a simple procedure reflecting the principles of natural justice.62
The tribunal system in India has come a long way, since independence to the present day. The changes in the tribunal system have been visible, as can be seen from the pre-independence era and the post-independence era to the 42nd Amendment Act, the 42nd Amendment Act to SampathKumar, and fromSampath Kumar to Chandra Kumar. Though the reasons for setting up tribunals are very relevant, the system faces a lot of issues. As tribunals occupy an important sphere in both administrative law as well as constitutional law, these issues form a vital part of the discourse in these areas.
It is hoped that in the way forward, there would be a separate Bench at all High Courts which would hear matters pertaining to the judicial review against the orders of the tribunals. This would greatly help in reducing the unfortunate effects of Chandra Kumar. The problem of administrative/technical members, wherein most of these members are appointed by the Executive and that many tribunals consist of members from the Executive, may be resolved by following a system which similar to the one provided for by the Tribunals Act of the United Kingdom. The issues surrounding tribunalisation may be addressed by providing for a list of the tribunals across the country, setting up of a body which supervises the working of tribunals and enacting a legislation which deals with a simple procedure which embodies the principles of natural justice.
Thus, as tribunals have ‘come to stay’,63 and the basic premise of the establishment of tribunals is sound, resolving the current issues will help in improving the tribunal system in India, and hopefully, will make the process of litigation easier for those who wish to approach the tribunals.
*Sarayu Satish is a third year undergraduate student pursuing the B.A.LLB. (Hons.) degree at the National Law School of India University, Bangalore.
1 V. Nageswara Rao and G.B. Reddy, Doctrine of Judicial Review and Tribunals: Speedbreakers Ahead, 39 JOURNAL OF THE INDIAN LAW INSTITUTE 418 (1997).
2 Art. 323A, THE CONSTITUTION OF INDIA, 1950 reads thus:
Administrative tribunals.- (1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.
(2) A law made under clause (1) may—
(a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to the disputes or complaints
referred to in clause (1);
(e) provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the
establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;
(f) repeal or amend any order made by the President under clause (3) of article 371D;
(g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the
effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.
(3) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.
Art. 323B, THE CONSTITUTION OF INDIA, 1950 reads thus:
Tribunals for other matters-
(1) The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the matters specified in clause ( 2 ) with respect to which such Legislature has power to make laws
(2) The matters referred to in clause ( 1 ) are the following, namely:
(a) levy, assessment, collection and enforcement of any tax;
(b) foreign exchange, import and export across customs frontiers;
(c) industrial and labour disputes;
(d) land reforms by way of acquisition by the State of any estate as defined in Article 31A or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way;
(e) ceiling on urban property;
(f) elections to either House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to in Article 329 and Article 329A;
(g) production, procurement, supply and distribution of foodstuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods;
(h) offences against laws with respect to any of the matters specified in sub clause (a) to (g) and fees in respect of any of those matters;
(i) any matter incidental to any of the matters specified in sub clause (a) to (h).
3 M.P. Jain and S.N. Jain, PRINCIPLES OF ADMINISTRATIVE LAW, VOL. I, 713 (6thedn., 2007).
4 42nd Amendment Act, 1976.
5 Arts.323A and 323B, THE CONSTITUTION OF INDIA, 1950.
6 However the Supreme Court has held in Union of India v. Delhi High Court Bar Association (AIR 2002 SC 1479) that the legislatures can establish tribunals outside the scope of Art. 323A and Art. 323B as long as there was legislative competence under the Seventh Schedule.
7 D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, VOL. 9, 10647 (8thedn., 2011).
8 Id. at 10700.
9 See generally M.P. Jain and S.N. Jain, supra note 3.
10 M.P. Jain, INDIAN CONSTITUTION LAW, VOL. I, 294 (5thedn., 2003); M.P.Jain and S.N.Jain, supra note 2,at 662.
11 D.D. Basu, supra note 7, at 10700.
12 Art. 227, THE CONSTITUTION OF INDIA, 1950.
13 Arun Roy and Vishnu Jerome, Administrative Tribunals in India: A welcome departure from orthodoxy? 12(1) STUDENT BAR REVIEW,61 63-64 (2000).
14 Jaswant Sugar Mills v. Lakshmi Chand, AIR 1963 SC 677.
15 Engineering Mazdoor Sabha v. Hind Cycles, AIR 1963 SC 874.
16 MP Jain, supra note 9, at 281.
17 S.P. Sathe, ADMINISTRATIVE LAW, 297 (7th edn., 2012).
18 MP Jain and S.N.Jain, supra note 3, at 803.
19 As the Administrative Tribunals Act and the 42nd Amendment Act ousted the jurisdiction of the High Courts under Art.226 and Art. 227 of the Constitution of India (thus excluding the power of judicial review of the High Courts), the petitioners filed a writ petition under Art. 32 of the Constitution of India before the Supreme Court. Art. 32 provides that a writ petition may be filed before the Supreme Court in case of a violation of the fundamental rights. This was based on the contention that in Minerva Mills v. Union of India [AIR 1980 SC 1789 (Supreme Court of India)], it was held that judicial review is a basic and essential feature of the Constitution of India and no law passed by in exercise of its constituent power can abrogate it or take it away.
20 Arun Roy and Vishnu Jerome, supra note 12, at 65.
21 AIR 1987 SC 386 (Supreme Court of India) [“Sampath Kumar”].
22 After the interim order was passed, the Central Government assured the Court that steps would be taken to save the Court’s jurisdiction under Art. 32, remove other minor anomalies and set up a Bench of the tribunal at the seat of every High Court and these changes were brought about by the Administrative Tribunals (Amendment) Act of 1986.
23 D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, VOL. 9, 5540 (8thedn., 2011).
24 AIR 1997 SC 1125 (Supreme Court of India) [“Chandrakumar”]
25 KesavanandaBharati v. State of Kerala, AIR 1973 SC 1461 (Supreme Court of India), Fertiliser Corporation Kamgar Union v. Union of India, AIR 1981 SC 344 (Supreme Court of India), KihotoHollohan v. Zachilhu, AIR 1993 SC 412.
26 (2010) 6 SCR 857 (Supreme Court of India) [“R. Gandhi”].
27 See generally,V. Nageswara Rao and G. B. Reddy, supra note 1.
28 M.P. Jain and S.N. Jain, supra note 3, at 791. The ‘Executive’, as succinctly explained in Rai Sahib Ram JawayaKapur v. State of Punjab, AIR 1955 SC 549 (‘Ram Jawaya’), is the ‘executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.’
29 Justice Ruma Pal, An Independent Judiciary, 5th V.M. Tarkunde Memorial Lecture, New Delhi (November 10, 2011), available at http://www.theradicalhumanist.com/index.php?option=com_radical&controller=article&cid=431&Itemid=56
30 M.P.Jain and S.N. Jain, supra note 3, at 867.
31 ArvindDatar, Tribunals: A Tragic Obsession, available at http://india-seminar.com/2013/642/642_arvind_p_datar.htm.
32 Minerva Mills v. Union of India, AIR 1980 SC 1789 (Supreme Court of India).
33 KesavanandaBharati v. State of Kerala, AIR 1973 SC 1461 (Supreme Court of India).
34 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 (Supreme Court of India).
35 215th Report of the Law Commission of India, L. Chandra Kumar to be visited by Larger Bench of Supreme Court, 57 (2008), available at http://lawcommissionofindia.nic.in/reports/report215.pdf.
36 Minerva Mills v. Union of India, AIR 1980 SC 1789 (Supreme Court of India), Fertiliser Corporation Kamgar Union v. Union of India, AIR 1981 SC 344 (Supreme Court of India), KihotoHollohan v. Zachilhu, AIR 1993 SC 412.
37 KesavanandaBharati v. State of Kerala, AIR 1973 SC 1461 (Supreme Court of India); Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 (Supreme Court of India).
38 S.P.Sampath Kumar v. Union of India, AIR 1987 SC 386 (Supreme Court of India).
39 Union of India v. R. Gandhi, (2010) 6 SCR 857 (Supreme Court of India).
40 M.P. Jain and S.N. Jain, supra note 3, at 791.
41 Justice Ruma Pal, supra note 27.
42 M.P. Jain and S.N. Jain, supra note 3, at 31.
43 KesavanandaBharati v. State of Kerala, AIR 1973 SC 1461 (Supreme Court of India); Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 (Supreme Court of India); I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861.
44 Granville Austin, THE INDIAN CONSTITUTION, CORNERSTONE OF A NATION, 175-176 (9thedn., 2005).
45 Union of India v. SankalchandHimatlalSheth AIR 1977 SC 2328.
46 UoI v. SankalchandSheth [where it was held that ‘independence of the judiciary’ is a cardinal feature]; Minerva Mills v. Union of India, AIR 1980 SC 1789; KihotaHollohon v. Zachilhu, AIR 1993 SC 412; Supreme Court Advocates on Record v. Union of India, AIR 1994 SC 268.
47 H.W.R. Wade and C.F. Forsyth, ADMINISTRATIVE LAW, 18 (10thedn., 2009).
48 The department which generated the disputes which had to be decided by the tribunal.Id. at 777.
49 To illustrate, different departments of the Ministry of Finance administer atleast three tribunals. The Securities Appellate Tribunal is administered by the Capital Markets Division, Prevention of Money Laundering Tribunal by the Department of Revenue, the the Debt Recovery Tribunal by the Department of Financial Services. [The Trouble with Tribunals, OPEN-THE MAGAZINE(May 18, 2013), available at http://www.openthemagazine.com/article/nation/the-trouble-with-tribunals].
50 Union of India v. R. Gandhi, (2010) 6 SCR 857 (Supreme Court of India).
51 Sec. 1, Tribunals, Courts and Enforcement Act, 2007.
52 H.W.R. Wade and C.F. Forsyth, supra note 46, at 777.
53 Secs.50 and 51, Tribunals, Courts and Enforcement Act, 2007.
54 H.W.R. Wade and C.F. Forsyth, supra note 44, at 777.
55 I.P. Massey, ADMINISTRATIVE LAW, 184 (2008).
56 790 M.P. Jain and S.N. Jain, supra note 3, at 790.
57 M.P. Jain and S.N. Jain, supra note 3, at 867-868.
58 Justice Ruma Pal, supra note 27.
59 SC anguish over pathetic state of tribunals, THE BUSINESS STANDARD (July 16, 2013), available at http://www.business-standard.com/article/pti-stories/sc-anguish-over-pathetic-state-of-tribunals-113071600888_1.html. To illustrate the lack of resources available to the tribunals and the interference by the Government, a classic example is the National Green Tribunal. The National Green Tribunal was established by the National Green Tribunal Act of 2010. This Tribunal has jurisdiction over matters relating to environmental protection and the conservation of forests. This Act was challenged on the ground that the Tribunal lacked judicial independences, and the Madras High Court, upholding the contentions, stayed the appointments to the tribunal. The Central Government appealed to the Supreme Court against the stay order and the Supreme Court lifted the stay order and allowed the tribunal to function pending the disposal of the appeal. After the Supreme Court lifted the stay order, the Central Government failed to provide it with resources. At first, the Tribunal was operating out of a Guest House. Further, the budgetary allocation to the Tribunal was reportedly slashed. [See The Trouble with Tribunals, OPEN-THE MAGAZINE(May 18, 2013), available at http://www.openthemagazine.com/article/nation/the-trouble-with-tribunals.
60 Schedule 7 Part 1, Tribunals, Courts and Enforcement Act, 2007.
61 MP Jain and S.N. Jain, supra note 3, at 868-869.
62 14th Report of the Law Commission of India, Reforms of the Judicial Administration (1958).
63 215th Report of the Law Commission of India, supra note 35, at 68, available at http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf.