DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

ADMINISTRATIVE LAW
TRIBUNALISATION OF JUSTICE

SUBMITTED TO:
DR. RAJNEESH YADAV
ASSISTANT PROFESSOR
LAW

SUBMITTED BY:
ANSHUMAAN JAISWAL
ENROLMENT NO. – 200101028
SECTION A
B.A. LL.B.(HONS.)
SEMESTER V
 ACKNOWLEDGEMENT

I would like to express my gratitude to my professor for the subject of Administrative Law,
Dr. Rajneesh Yadav for his guidance in selection of the project topic as well as his help in
understanding the subject matter of the project topic. I would also like to express my
gratitude to the staff of Dr. Madhu Limaye Library for their help in efficient research for
successful completion of this project work.

Lastly, I would like to express my thanks towards my friends and family.

Thank You

Anshumaan Jaiswal

200101028
 TABLE OF CONTENTS

INTRODUCTION....................................................................................................................3

CONCEPT OF TRIBUNALS.................................................................................................4

HISTORY OF TRIBUNALISATION IN India....................................................................4

JUDICIAL INTERPRETATION: TRIBUNALS IN INDIA...............................................7

What Is a Tribunal?.............................................................................................................7

Are Tribunal and Courts the Same In The Indian Scenario?.........................................8

Constitutional Validity of Tribunals..................................................................................9

RULES FOR FUNCTIONING OF TRIBUNALS..............................................................10

SUGGESTION TO THE EXISTING TRIBUNAL SYSTEM OF INDIA........................12

CONCLUSION.......................................................................................................................13
 INTRODUCTION

Since India achieved independence, the Indian judiciary has been widely acclaimed as the
most powerful in the world, for its display of activism and grit. However, the attainment of
this stature has been subject to many concerted attempts at usurping political hegemony over
judicial supremacy, and at throttling the judiciary's independence and its power of judicial
review -two significant factors determining the level of judicial empowerment in a country.

The insertion of Articles 323A and 323B, through the Forty Second amendment to the
Constitution of India ('Forty Second amendment), is often cited as a fitting illustration of such
an attempt, for this amendment stripped away essential judicial functions from High Courts)
and Civil Courts, and vested them in tribunals instead. Since the Forty Second amendment,
the Supreme Court of India (SC) and the High Courts have considered a number of
constitutional challenges relating to tribunals, in an attempt to preserve their independence
and power of judicial review, which are features embedded in the basic structure of the Indian
Constitution. By exercising its powers of judicial review again and again the judiciary has
kept in control the tribunalisation of justice.

CONCEPT OF TRIBUNALS

Terminology Of Tribunal' - The term 'tribunal' owes its origin to the French concept of
'tribunal' meaning "a judgement seat' or to the Latin term "tribünal referring to a platform for
the seat of magistrates. Merriam Webster defines tribunal as a court or forum of justice
Classification Of Administrative Tribunals In India

Administrative Tribunals may be classified into four categories:

 Tribunals setup outside mainstream judicial system and decide disputes between
government and private individuals.
 Tribunals setup within judicial framework and decide disputes between citizens like
rent, motor vehicle, and industrial tribunals.
 Tribunals established to decide disputes between private individuals but established
outside the mainstream judicial system.
  Tribunals constituted under Article 323 – A and 323 – B of the Indian Constitution to
decide disputes between government and the citizens.

HISTORY OF TRIBUNALISATION IN India

In India, the concept of tribunals existed even before the Constitution came into being in for
of separate courts for various matters such as consumer disputes, civil disputes, company
matters, etc. In 1941 the Income Tax Appellate Tribunal was established in India in order to
provide specialised and speedy administrative justice. It was the first administrative tribunal
of India. This tribunal soon acquired reputation of fairness in the administration of justice.
After Independence, need was being felt to establish tribunals for flexibility and speed in the
justice delivery system.

An Administrative Reforms Commission was set up in 1967 by the Government of India to

recommend the suitable areas in which tribunals could be set up. The Commission
recommended the establishment of tribunals in the following areas namely:

 Service matters and Dispute of employees under the State.

 Orders of assessment on adjudication under customs, Central Exercise, Sales Tax and
orders under the Motor Vehicles Act.

Chapter XIV A of the Indian Constitution provides for the arrangements regarding the
institution of qualified adjudicatory bodies for judicial competence. This Chapter was
incorporated in the Constitution through the 42nd Amendment to the Constitution. Article
323A and 323B are treated as the offsprings of this amendment. These articles deals with
Judicial as well as other tribunals.

Article 323A states:

(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 more
States;

(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."

Article 323B states:

(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. I

(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 any other 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 food-stuffs (including edible oilseeds
and oils) and such other goods as the President may, by public notification, declare to be
essential goods.

The 42nd Amendment Act was followed by the Administrative Tribunals Act, 1985 which
established the Central Administrative Tribunal.

JUDICIAL INTERPRETATION: TRIBUNALS IN INDIA

What Is a Tribunal?

"Tribunal' has not been defined anywhere in the Indian Constitution. However, the Indian
judiciary has time and again made attempts to provide a meaning to the term "tribunal". In
the case of Kilhoto Hollohan v. Zachill, the Supreme Court referred to its earlier decisions
and observed that in order to determine whether an authority exercising adjudicatory powers
is a tribunal or not, the test is whether

1. There is a lis-an affirmation by one party and denial by the other,

2. The dispute involved decision on the rights and obligations of parties; and 3. The authority
is called upon to decide it.

From a functional point of view, an administrative tribunal is neither exclusively a judicial

body not exclusively a judicial body nor exclusively an administrative body but is somewhat
between the two. In Bharat Bank Lad v. Employees Bharat Bank Ltd, the court stated that the
tribunals are adjudicating bodies which decide controversies between the parties and exercise
judicial functions as distinguished from administrative functions.
The tribunals are established in order to provide speedy, cheap determination of disputes and
to reduce the workload of the courts. The traditional judicial system proved to be inadequate
to decide and settle the disputes as it was slow, costly, complex and formalistic. A tribunal's
basic test within the scope of Article 136 is that it is an adjudicating body (other than the
tribunal) with the state's judiciary."

Are Tribunal and Courts the Same In The Indian Scenario?

The term 'tribunal as used in Article 136 does not have the same meaning as Court, but
includes all adjudicating bodies within its jurisdiction, given that they are appointed by the
State and invested with the judiciary, as distinct from strictly administrative or executive
functions. A tribunal may possess some but not all trappings of a court. A body in order to be
designated as a "tribunal" must be one which is administrative in character, but is invested
with judicial powers to adjudicate on questions of law or fact affecting the rights of citizens
in the judicial matters.

The proceedings followed by the courts are regularly prescribed and, while exercising
powers, the courts must comply with the proceedings and, on the other hand, the proceedings
to be followed by the courts cannot always be prescribed strictly. The basic and fundamental
characteristic common to both the courts and the tribunals is the exercise of judicial duties
and the exercise of judicial powers necessarily in a sovereign state,

In the case of R.K. Jain v. Union of India", the Supreme Court suggested that Tribunals
cannot be treated as substitutes of High Courts under Articles 226 and 227. The Apex Court
held that

"The Tribunals set up under Articles 323A and 3238 of the Constitution or under an Act of
legislature are creatures of the Statute and in no case can claim the status as Judges of the
High Court or parity or as substitutes. However, the personnel appointed to hold those offices
under the State are called upon to discharge judicial or quasi-judicial power. So they must
have judicial approach and also knowledge and expertise in that particular branch of
constitutional, administrative and tax laws. The legal input would undeniably be more
important and sacrificing the legal input and not giving it sufficient weightage and teeth
would definitely impair the efficiency and effectiveness of judicial adjudication. It is
therefore necessary, that those who adjudicate upon these matters should have legal expertise,
judicial experience and modicum of legal training as on many an occasion different and
complex questions of law which baffle the minds of even trained judges in the High Court
and Supreme Court would arise for discussion and decision."

Constitutional Validity of Tribunals

The attempt to usurp judicial power by the executive in the name of tribunals (such as the
National Company Law Tribunal/National Company Law Appellate Tribunal, the National
Tax Tribunal (NTT), the Central Administrative Tribunal, the Copyright Board, and the
Intellectual Property Rights Appellate Board) has become increasingly evident. Through the
judgments that were delivered in certain cases, the judiciary has attempted to build an
impregnable boundary wall that would ensure that the principle of separation of powers is
obeyed in letter and in spirit, and that the power of judicial review remains intact." In the case
of S.P. Sampath Kumar v. Union of India", the Supreme Court decided upon the
constitutionality of Section 28 of the Act. This particular provision aimed at abolishing of the
Supreme Court and the High Court's power of judicial review over the tribunals established
under the Act. It was held that it was not violative of basic structure of the constitution.
Several other amendments were also made to the Act. The manner of appointment under
Section 4 was held to be insufficient and it was suggested that the recommendations of a
High-Powered Selection Committee, chaired by Chief Justice of India, must be followed
normally, unless reasons for failing to follow them are given. Moreover, Section 6(1)(c)
providing that the Secretary to the Government of India with 2 years' service would be
eligible for appointment as chairman of a tribunal was struck down, Section 6(2) was
amended providing that only District Judge or Advocate, qualified to be High Court Judge,
shall be eligible for appointment as Vice Chairman. The term of appointment of 5 years was
taken up for reconsideration." The jurisdiction of the Supreme Court can never be ousted.
The High Courts' jurisdiction may be ousted without affecting the jurisdiction of the Supreme
Court as held in Sampath Kumar 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."
However, a decision by the High Court of Andhra Pradesh in Sakinala Harinath and Ors Ste
of Andhra Pradesh and Chrs, presented a different method and indicated that a provision
overthrowing the authority of judicial review of High Courts and Supreme Court, would be
against the basic structure doctrine. Subsequently, the Supreme Court, in R.K. Jate Union of
India critic and the reasoning behind the Sampath Kumar decision and emphasized that the
scope of the High Court's judicial review under Article 226 cannot even be ruled out by a
constitutional amendment

Later, a 7-judge bench of the Supreme Court is L. Chandra Kumar Union of India" concluded
that, according to Articles 226 and 227, the right of the High Courts to exercise judicial
superintendence over the judgments of all courts and tribunals is part of the constitution's
basic structure. It also claimed that "all Tribunals decisions, whether created pursuant to
Article 323A or Article 3218 of the Constitution, shall be subject to the writes Jurisdiction of
the High Court's pursuant to Article 226 of the Constitution, before a High Court Division
Bench under whose territorial jurisdiction the specific tribal falls It also addit issues related to
appointments to administrative tribunals, where it emphasized that the tribunals required a
judicious combination of both special members and members of the judiciary. The court
proposed the inclusion of a judge of the Supreme Court in the selection committee set up to
nominate members to the tribunal as a means of maintaining the independence of the
tribunals. Lastly, it clained that the tribunals played a supplementary function as opposed to a
dhstitutional position for Irudid's high courts and supreme court. The early phase of tribunal
litigation concentrated on the constitutionality of the cation of tribunals without violating the
inherent powers of the high courts and the spreme court. L Chandra Kumar's decision marked
the end of this process, by maintaining tribunals constitutional validity if certain conditions
were me the most important of these conditions was that the writ jurisdiction of the High
Courts under Articles 226 and the Supreme Court under Article 32 of the Constitution should
not be removed.

RULES FOR FUNCTIONING OF TRIBUNALS

In India, some tribunals do not follow any uniform procedure. The procedure is sometimes
laid down in the statute, and sometimes the tribunal is left free to develop its own procedure.
The procedure for the Copyright Board is given in the Copyright Act, 1957, while the Tax
Appellate Tribunal is left free to decide its own procedure. However, as a matter of general
practice, the tribunals exercise the powers of a civil court relating to examination, discovery,
inspection, production of documents, compelling attendance of witnesses and issuing
commissions. In the absence of statutory requirements, the tribunals follow the principles of
natural justice. Their proceedings are considered as judicial proceedings for the purposes of
Section 293, 195 and 226 of the Indian Penal Code, 1860 (IPC), and they are deemed to be
civil courts for the purposes of Section 480 and 482, CrpC. In the interests of flexibility and
adaptability, the technical rules of the Evidence Act, 1872 do not apply to tribunals.
However, the rules of procedure of the Tribunals should not violate the requirements of fair
procedure and they must conduct themselves with openness, faimess and impartiality.

Tribunals are required to give reasons for their decisions. This is necessary not only for a
sound system of judicial review but also in the interest of discipline for the tribunal and
public confidence. The principle of res judicata in its technical sense does not apply to
tribunals." Tribunals are bound by the law declared by the Supreme Court, and the tribunals
Forking under the territorial jurisdiction of a High Court are bound by the law laid down by
the High Court." Tribunals are subject to the writ jurisdiction of the Supreme Court and the
High Courts. By the Constitution (42 Amendment) Act, 1976, Articles 323 A and 323 B had
been added to the Constitution which authorised the government to establish special tribunals
to perform a substitutional role to the High Court. Under this provision administrative service
tribunals had been established as a substitute to the High Court in service matters of
government servants.

As the tribunals are under the supervisory jurisdiction of the High Courts, various High
Courts have laid down a few rules regarding the functioning of these tribunals. In Mallappa
Murigeppa Sajjan v. State, the Kamataka High Court held that the government cannot
suspend the working of a tribunal. The tribunal in this case had been constituted under the
Karnataka Land Reforms Act, 1961. It had official and non-official members. Non-official
members were drawn from the Congress Party. When the Congress Government came to
power, it issued an order directing the suspension of the working of the tribunal until further
orders. Non-official members challenged this order as mala-fide. Allowing the appeal, the
court held that because the Act has not given the government power of superintendence over
the tribunal, the government could not directly impinge on the judicial functioning of the
tribunal which falls under the supervisory jurisdiction of the High Court under Article 227 of
the Constitution.
In P. Satyanarayana v. Land Reforms Tribunal", the Andhra Pradesh High Court ruled that in
the absence of any statutory provisions, a tribunal cannot review its own decisions. However,
it can recall its own decisions. However, it can recall its orders obtained through fraud in
exercise of its inherent powers. In G. Rajalakshmi V. Appellate Authority", the question
before the court was: If the tribunal fails to consider the objections filed before it, can the
appellate tribunal consider the merits of the case as the original authority? The Andhra
Pradesh High Court answering the question in the negative held that the proper course in such
a situation would be to remand the case to the original tribunal.

In the NCLT case, the Supreme Court made the following recommendations to make
tribunals effective:

 The tribunals must be independent of civil services.

 The tribunals should not become post-retirement havens for civil servants. •
Independence of the tribunals must be ensured.
 Members of the tribunals should not be independent persons and not serving civil
servants.
 Even technical members must not be civil servants.
 Continued existence of the tribunals must not be dependent on the will of the
government. The tribunals must not be depended on the government for
infrastructural facilities or personnel.
 The tribunals should resemble more the court and not bureaucratic boards.
 There should be a separation between the administrative and adjudicatory functions of
the regulatory agency.
 Members of the tribunals should not retain lien in any government department. The
tribunals must be headed by judicial persons and not technical persons.
 High Court jurisdiction may be supplemented but cannot be supplanted.
 SUGGESTION TO THE EXISTING TRIBUNAL SYSTEM OF INDIA

The Tribunalisation of justice in India is hefty. The number of classification of tribunals and
their rules are very wide and the position provided to the tribunals currently is lower than the
Indian courts. For example, in a dispute under Competition Law, the decision of the NCLAT
is further appealable the Courts. Although this creates a scope for well-observed justice with
several reviews, but it also delays justice and it is well said. "Justice delayed is justice
denied". Thus, the legislature must provide some measures so that justice is not denied to any
party to the dispute.

CONCLUSION

People have alright under Article 21 of the Constitution to a specialised, quality and speedy
justice. However, it is a fact that our existing judicial system cannot deliver due to inherent
delays, technicalities of procedure, by labyrinth of appeal and unaffordable cost. Therefore,
the need for administrative tribunals cannot be over emphasised. The core question is how to
organise tribunals in a manner that does not violate the integrity of the constitutional judicial
system which forms the basic structure of the constitution. Tribunals thus may be organised
as a part of the Civil and Criminal Court System under the canopy of the Supreme Court of
India as have been organised in the United Kingdom under the Tribunals, Courts, and
Enforcement Act, 2007.