INTRODUCTION

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

iii.Tribunalisation

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

CONCLUSION

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.