Nainshi Srivastava, Administrative Law, DSMNRU, 2017

Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERSITY
LUCKNOW

A RESEARCH PROJECT ON
TOPIC
(UNDER THE SUPERVISION OF GULAB RAI)

AN ASSIGNMENT FOR ADMINISTRATIVE LAW

SUBMITTED TO: SUBMITTED BY:
Gulab Rai, Nainshi Srivastava,
Proctor, Roll No’: 29
DSMNRU, Lucknow L.L.B. 3rd Year

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 INDEX

1. Introduction............................................................................................3
2. An overview of The Tribunal System in India.......................................4
3. The Tribunal System Today - Some Issues and Concerns..................6
4. Tribunalisation.......................................................................................9
5. Conclusion.............................................................................................11

INTRODUCTION

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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, especially after the 42nd Amendment Act of 1976, which provided for the
insertion of Art. 323A and Art. 323B. 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

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experts in the areas falling under the jurisdiction of the tribunal.3The 42nd Amendment
Act of 19764brought 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. 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. 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. Similarly, tribunals could be set up under Art. 323B only if the necessary
legislation was enacted and there are many nonadministrative tribunals, such as the
Income Tax Appellate Tribunal, Debt Recovery Tribunal, the Customs Excise and
Service Tax Appellate Tribunal and the Compensation Tribunals. 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 system and provide constitutional authority for the
legislations. Further, before the insertion of Art. 323A and Art. 323B, tribunals were
under the ambit of the respective High Courts. 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. 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, 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, 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

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with the inherent judicial power of the state. However, these criteria are illustrative and
not exhaustive. With regard to the functioning of a tribunal, tribunals do not have to
follow any uniform procedure as laid down under the Civil Procedure Code and under
the Indian Evidence Act of 1872 but they have to follow the principles of natural justice.

II.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 Mills 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 KesavanandaBharati
and Indira Gandhi that only constitutional courts alone were competent to exercise the
power of judicial review. The confounding issue is that, after Chandra Kumar, despite

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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, 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. 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 review 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 membersMany 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 services and technical members are those who are experts in
the field related to the respective tribunals. These administrative and technical members
are, in most instances, appointed by the Executive. Moreover, many tribunals also
consist of members from the Executive. 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. 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.
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. The
makers of the Constitution were anxious that even the subordinate judiciary be insulated

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from executive interferenceand this principle is part of the basic structure of the
Constitution. Further, the separation of judicial power from executive power is also one
of the facets of the principle of the rule of law.
In reality, tribunals are not fully independent. The Supreme Court observed that the
secretary of the ‘sponsoring department’ 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. Also, legislations constituting
tribunals habitually provide for the members of civil services from the sponsoring
departments to become members of the tribunal.
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 of7the 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.
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. 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. Hence, all the
formal links with the ‘sponsoring department’ are severed.

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 III.TRIBUNALISATION

Currently, there a lot many tribunals functioning in the country, and an exhaustive list of
tribunals cannot be prepared. The tribunal system has been growing haphazardly with
the lack of any overarching plan. There is no uniform administration of these tribunals
and there is flexibility in the norms of natural justice which have to be followed. The
Supreme Court expressed the problems related to tribunals succinctly by stating
that,‘Tribunals have been functioning inefficiently ... The situation at present is that
different tribunals constituted under different enactments are administered by different
administrative departments of the Central and the State Governments. The problem is
compounded by the fact that some tribunals have been created pursuant to the Central
legislations and some others have been created by State legislations.’
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. 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

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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. 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. 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.

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 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 from Sampath 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’, 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.

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