NATIONAL LAW

INSTITUTE UNIVERSITY

ADMINISTRATIVE LAW- II

A Project on:

TRIBUNALISATION IN INDIA

Submitted to: Submitted by:

 DR. SUSHMA SHARMA
AKSHEY JOSE
ASST. PROFESSOR 2013 B.A.LLB 39

Contents

INTRODUCTION...................................................................................................... 3
AIMS AND OBJECTIVES........................................................................................... 4
REVIEW OF LITERATURE......................................................................................... 5
Judicial Control of Administrative Tribunals - Mathew, A. and Agarwal, A...........5
Judicial Review................................................................................................. 5
HYPOTHESIS.......................................................................................................... 6
METHOD OF WRITING............................................................................................ 6
RESEARCH QUESTIONS.......................................................................................... 6
DEVELOPMENT OF THE TRIBUNAL SYSTEM IN INDIA..............................................7
JUDICIAL INTERPRETATION...................................................................................10
S.P.Sampath Kumar v. Union of India................................................................10
Sambamurthy v. State of Andhra Pradesh........................................................11
J.B.Chopra v. Union of India.............................................................................. 11
Sakinala Harinath v. State of Andhra Pradesh..................................................11
L. Chandrakumars Case................................................................................... 12
STATUS AND WORKING OF TRIBUNALS IN INDIA..................................................16
TRIBUNALS AND NATURAL JUSTICE......................................................................18
FINALITY OF DECISIONS....................................................................................... 18
CONCLUSION....................................................................................................... 19
SUGGESTIONS..................................................................................................... 19
BIBLIOGRAPHY..................................................................................................... 21
INTRODUCTION

The development of welfarism led to an increase in governmental functions and the

executive saw in this a need to perform a number of quasi- legislative and quasi- judicial
functions, thus blurring the traditional positions of the various wings of the government under
the doctrine of separation of powers, under which the powers of the government were divided
between the legislature, executive and the judiciary which were to be entrusted with the
power of making law, executing it and interpreting the law respectively. The welfare state
radically changed governmental functions and compelled it to involve itself in a host of wide
ranging socio-economic activities which included the regulation of industrial activities,
providing health services, education and other allied welfare measures.

The issues which arose from disputes on such matters raised not only legal matters but also
matters which affect the society at large. Courts therefore became deluged with litigations
arising directly and incidentally from such increased governmental interventions. The
inherent procedural limitations made it difficult for the courts to dispose these cases promptly
thus leading to a huge backlog of cases in all levels of the judiciary. It was also felt in many
quarters that the members of the judiciary were neither adequately trained nor equipped to
deal with the complex socio-economic and technical matters at hand. Thus it was felt
specialised adjudicatory bodies such as tribunals needed to be created to resolve such
disputes fairly and effectively.

Tribunals are a Judgment seat; a court of justice; board or committee appointed to adjudicate
on claims of a particular kind.1Though the term tribunal is present in the Constitution of
India in Articles 136 and 227, it has not been specifically defined. However the essence of the
meaning of the word tribunal which can be culled out from the various Supreme Court
authorities is that they are adjudicatory bodies (except ordinary courts of law) constituted by

1 Thakker, C.K., Administrative Law, Eastern Book Company: Lucknow, 1996,

p.226.
the State and invested with judicial and quasi-judicial functions as distinguished from
administrative or executive functions as was held in Durga Mehta v. Raghuraj Singh2. The
basic test of a tribunal within the meaning of Arts. 136 and 227 is that they are adjudicatory
bodies vested with the power of adjudicating between conflicting rights.

The proper thing to do here is to examine each case specifically and ascertain whether the
powers vested in that body are truly judicial functions or not. Generally, it would seem that
anybody vested with the power to determine the conflicting rights of two or more parties
conclusively would satisfy the test of exercising a judicial function and can be regarded as a
tribunal within the meaning of Arts. 136 and 227. A tribunal as described aforesaid is to act
judicially when determining the dispute between the parties concerned. However, the mere
fact that an authority is to act judicially does not clothe the authority with the judicial power
of the State. The Supreme Court in Jaswant Sugar Mills v. Lakshmi Chand3 laid down the
following characteristics or tests to determine whether an authority is a tribunal or not:

1. Power of adjudication must be derived from a statute or statutory rule.

2. It must possess the trappings of a court and thereby be vested with the power to
summon witnesses, administer oath, compel production of evidence, etc.

3. Tribunals are not bound by strict rules of evidence.

4. They are to exercise their functions objectively and judicially and to apply the law and
resolve disputes independently of executive policy.

5. Tribunals are supposed to be independent and immune from any administrative

interference in the discharge of their judicial functions.

AIMS AND OBJECTIVES

1) To understand the meaning of the term administrative tribunal.

2) To look into the history of administrative tribunals in India.

2 AIR 1954 SC 520 at 522

3AIR 1963 SC 677 at 687

 3) To critically examine articles 323-A and 323-B.
4) To look into the working of administrative tribunals in India today.

REVIEW OF LITERATURE

Judicial Control of Administrative Tribunals - Mathew, A. and Agarwal, A.

Judicial Review

Judicial review is defined as the process by which a judicial body determines the
constitutional validity of an activity or function of the legislature or the executive.4 The
process derives its legitimacy from the fact that in those countries where judicial review is
accepted the constitution is considered as supreme and the power and authority is bound by
the constitutional dictates so much so that it is the duty of the judiciary to regulate state action
and prevent it from exceeding the permissible limits.5 The principle of rule of law is deeply
ingrained in the concept of judicial review and it is a means to check the arbitrary and
undemocratic exercise of state power.

In India, there is no express provision, which provides for judicial review. However judicial
review has found a place in the basic structure doctrine. It was firmly declared in Kesavanda
Bharati v. State of Kerala6that the constitution contained some basic values or features, which
form, constitute the basic constitutional framework. These basic features are unalterable.
Though the constitution itself does not provide a list of these basic features, the essence of
such a list can be culled out from the preamble itself. Later, in Minerva Mills v. Union of
India7, it was expressly declared by the Supreme Court that judicial review was part of basic
structure. In this case it was laid down that it is necessary for each branch of government to

4 Mathew, A. and Agarwal, A, Judicial review And Administrative Tribunals, IBR,

Vol. 25 (2) 1998.

5 The American case of Marbury v. Madison (1803)1 Cranch 137 (US) is

considered as the first judical authority on the power of judicial review. It was in
this case that Marshall,C.J., said that the constitution is paramount law and it is
unchangeable by any ordinary means or ordinary law. No legislature or executive
can function contrary to those provisions of the constitution which are
fundamental.

6 AIR 1973 SC 1461.

7 AIR 1980 SC 1789.

confine itself to the constitutionally sanctioned limits. To decide whether there is any such
transgression, the Constitution has to be interpreted and considering the expertise of the
Judges, the Judiciary is the right body to do so. The power of judicial review is said to
emanate from Arts. 32 and 226.

As enumerated above judicial review forms a part of the basic structure of the Constitution
and is hence inviolable. Therefore the statutory finality of decisions of a tribunal cannot
exclude the jurisdiction of the High Courts under Art. 226 and that of the Supreme Court
under Arts. 32 and 136 of the Constitution. Thus if the tribunal has acted without jurisdiction,
or the order is arbitrary or mala fide or the principles of natural justice have not been
followed or there is a prima facie error, or grave injustice has been perpetrated or for other
such reasons then the superior judiciary may review the decision of the tribunal and set it
aside. If the judicial review were to be excluded then tribunals would be at liberty to exceed
their jurisdiction and act arbitrarily without any check by the courts, thus threatening the very
position of rule of law. Thus the control of administrative adjudication by the judiciary
through the system of judicial review is essential for the proper functioning of the tribunal
system in India.

HYPOTHESIS

This paper seeks to examine the position of law as regards tribunals in India under Articles
323A and 323B of the Constitution and hence the working and functioning of specific
tribunals have not been discussed in detail. The main question that this paper seeks to
examine is that of judicial review of decisions of administrative tribunals in India.

METHOD OF WRITING

Researcher has followed a descriptive, analytical and comparative form of writing.

RESEARCH QUESTIONS
 1. What is an administrative tribunal?
2. Why was there a need to insert articles 323-A and 323-B into the Constitution?
3. What are the effects of the 42nd Amendment to the Indian Constitution which brought
in Articles 323-A and 323-B?

DEVELOPMENT OF THE TRIBUNAL SYSTEM IN INDIA

In India, administrative adjudication increased after independence and several welfare laws
were promulgated which vested the power on deciding various issues in the hands of the
administration. These quasi-judicial powers acquired by the administration led to a huge
number of cases with respect to the manner in which these administrative bodies arrived at
their decisions. The Courts held that these bodies must maintain procedural safeguards while
arriving at their decisions and observe principles of natural justice-their opinions were
substantiated by the 14th Law Commission Report.8

The modern Indian Republic was born a Welfare State and thus the burden on the government
to provide a host of welfare services to the people was immense. The expansion of
governmental functions in order to discharge its above obligations generated a number of
occasions where an individual was at issue with the administration. This necessitated the
development of a system of administrative adjudication which could better respond to social
needs and requirements than through the elaborate system of the ordinary judiciary. In order
to avoid clogging the judicial machinery with cases which would have arisen by the operation
of these new socio-economic legislations, a number of tribunals were established by the
government. The tribunals were established with the object of providing a speedy, cheap and
decentralised determination of disputes arising out of the various welfare legislations.9
Another important reason for the new development is that while the courts are accustomed to
deal with cases primarily according to law, the exigencies of modern administration require
the adjudication of disputes not only on the basis of technical questions of law but by
considering policy questions and the interests of the general public. Besides, tribunals were
also seen as bodies manned by experts who could professionally and fairly deal with the
issues at hand.

8 Nayak,R., Administrative justice In India, Butterwoths : New Delhi, 1989, p.38.

9 In accordance with Art.227 of the Constitution of India

In India such tribunals were set up immediately after independence. In fact, the most
important adjudicatory function is carried out by statutory tribunals created by the legislature
to adjudicate upon certain disputes arising from administrative decisions or to determine
issues judicially.

The Railway Rates Tribunal, the Income Tax Appellate Tribunal, Labour Tribunals, the
Companies Tribunal, various Compensation Tribunals, Revenue Courts of various States,
etc., can be cited as examples of such tribunals.

However the problem of delays in the disposal of cases and the backlog of litigation in the
courts continued to plague the credibility and effectiveness of the judiciary. To find a solution
to this problem, the Government set up the Administrative Reforms Commission in 1967. It
was to examine the problem, suggests solutions and also to recommend the suitable areas in
which tribunals could be set up.10

The Commission recommended the establishment of independent tribunals in the following

areas

a. service matters and dispute of employees under the state

b. orders of assessment on adjudication under Customs, Central Excise, Sales
Tax and orders under the Motor vehicles Act.

The Shah Commission Report in 1969 supported the above recommendations particularly
with respect to service disputes.

Thus the system of administration justice began to establish itself as a part of the adjudicatory
processes and the organisation of administrative justice in the country. At the same time the
judiciary continued to exercise its constitutionally mandated control over these bodies o as to
ensure they did not violate any constitutional norm. However the administration saw this as
an unnecessary intrusion of the judiciary into their activities of nation building and
development.

10 The reasons for the growth of administrative tribunals are as follows: 1) Inadequacy
of the traditional judiciary to effectively decide administration-related matters especially
when it came to technicalities.
2) The traditional judiciary was seen to be slow, costly and excessively procedural.
It is in this context that the issue of political interests that led to the rapid proliferation of
tribunals must be mentioned. Political parties and their leaders resented judicial interference
in the decisions they took through the administration and were keen to prune the exercise of
judicial power. Ample evidence of this can be obtained if one were to examine the actions of
leaders during the emergency, such as removing disputes regarding elections to the office of
President, Prime Minister and Speaker of the Lok Sabha beyond judicial scrutiny. Thus there
were clear signals that the executive did not want the judiciary to interfere with their
developmental plans and other such decisions. Hence in 1976 the issue was discussed at the
Conference of Chief Secretaries and from amongst all these discussions and the reports of the
various bodies stated above, Parliament enacted the 42nd Constitution (Amendment) Act,
1976 inserting Articles 323A and 323B which provided for the establishment of
administrative and other tribunals to deal with the matters specifically provided for.

The main distinction that can be made out between article 323A and 323B is that while 323A
allows for the Parliament to by law provide for administrative tribunals to adjudicate
disputes, 323B allows for the any appropriate legislature, to by law create an administrative
tribunal for the adjudication of disputes. It is also important to note that 323A allows for
tribunals to be created for the purposes of adjudication of disputes in regard 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. 323B, however
allows for the creation of tribunals with regard only to a wide range of specific subjects
which are set out in clause (2) of Article 323B.

Before this Amendment, tribunals were under the control of the concerned High Court and
their orders were appealable in the High Court. The matters which went up to the tribunals
were also amenable to the writ jurisdiction of the High Court and Supreme Court under
Articles 226 and 32 of the constitution of India respectively. However with the insertion of
Articles 323A and B, the legislature had the power to exclude the writ jurisdiction of the High
Court under Article 226 and the fundamental right to move the Supreme Court for the
enforcement of Fundamental rights under Article 32 were removed. The only appeal, which
lies from the orders of these tribunals, is a Special Leave Petition to the Supreme Court under
Article 136 of the Constitution of India.

The tribunals which were established prior to the 1976 Amendment did not exclude the power
of judicial review under Arts.226 and 32 of the Constitution of India. Also appeals from the
decisions of these tribunals generally lay with the High Courts on substantial questions of
law. But it was this very appeal procedure and the unfettered right to go under Arts. 226 and
32 that led to the continued clogging of the higher judiciary with back-log of cases and
defeated the very purpose of establishing the Tribunal system in India. It was the need to
remedy the above that led to the 1976 Amendment. However, the exclusion of the jurisdiction
of the higher judiciary under Arts.226 and 32 raised constitutional questions related to
judicial review and separation of powers. The case law on the matter will be briefly examined
before going into the functioning and efficacy of tribunals in India.

JUDICIAL INTERPRETATION

As mentioned earlier, the Administrative Tribunals Act was passed in 1985 under article
323A and section 28 of this Act provided for the exclusion of jurisdiction of all courts except
that of the Supreme Court under Article 136.11 This fuelled a sudden spurt in the number of
cases that challenged the validity of the said legislation as well as that of the 42nd Amendment
that introduced Articles 323A and 323B in to the constitution. Some of the prominent case in
this regard is discussed below.

S.P.Sampath Kumar v. Union of India12 This is the first and perhaps the most important
case in this period that attracted judicial scrutiny in this area. The Constitution Bench
in Sampath kumar was called upon to decide on the main issue whether Section 28 of the Act
was unconstitutional as it excludes judicial review, which was contended as part of the basic
structure of the constitution13. The Supreme Court accepted without doubt that judicial;
review is part of the basic structure. However the Court went on to observe that the creation
of alternate institutional mechanisms which were as effective as the High Courts would not
be violative of the basic structure. The administrative Tribunals under the Act were
recognized as effective substitutes of the High Courts. This proved to be a shot in the arm of

11 Joshi, K. C., Legal Status of Tribunals, IBR, Vol. 25 (2), 1998.

12 AIR 1987 SC 386.

13 During the pendency of the case, the Government gave an assurance to the
Court that the Act would be amended so that the jurisdiction of the Supreme
Court under Article 32 was not excluded. The Act was consequently amended
after the decision.
the proponents of tribalisation. However the Apex Court came down heavily on the procedure
for appointing the Chairman of the Tribunal. Section 6(1) (c) of the Act allowed a person who
held the post of a Secretary to the Government of India or an equivalent post t become the
Chairman. Since these Tribunals were to be substitutes of High Courts it is impermissible for
bureaucrats to hold such a post. Hence this provision was held to be unconstitutional. The
Chairman should be a retiring or retired Chief Justice of a High Court. Oher members have to
appointed by a committee consisting of a sitting Judge of the Supreme Court. It was also
suggested that the Chief Justice of India has to be consulted while making these
appointments. The Parliament accepted these recommendations and now they find a place in
the Act by way of the Administrative Tribunals (Amendment) Act of 1986.

Sambamurthy v. State of Andhra Pradesh14 It was held in this case that Article 371D(5) of
the constitution, which was inserted by the Constitution (32nd Amendment) Act,1973, was
unconstitutional and void. This provision had enabled the Government of Andhra Pradesh to
modify or nullify any order of the Administrative tribunal of that state. It was pointed out that
such a provision was violative of the basic structure as it made the tribunal not as effective as
the High Court when it comes to judicial review. Here the Court seems to be strictly adhering
to the directive in Sampath Kumars case that the administrative tribunals should be effective
substitutes to the High Court.

J.B.Chopra v. Union of India15It was held that since the Administrative tribunals are meant
to be substitutes of High Courts, their power of judicial review extended to power as to
decide on the constitutionality of service rules.

However, soon we see a reversal of trend leading to a lot of confusion.

In M.B.Majumdar v. Union of India,16 the Supreme Court refused to extend the service
conditions and other benefits enjoyed by ordinary High Court judges to the members of these
Tribunals. Three years later, in R.K.Jain v. Union of India17, the Supreme Court opined that
these Tribunals could not be effective substitutes of High Courts under Articles 226 and 227.

14 (1987) I SCC 386.

15 (1987) I SCC 422.

16 (1990) 4 SCC 501.

17 (1993) 4 SCC 119.

We also find very clear expression of dissatisfaction of the apex court regarding the
functioning and effectiveness of Administrative Tribunals especially with regard to their
power of judicial review.

Sakinala Harinath v. State of Andhra Pradesh18 In this case, the Andhra Pradesh High
Court dropped a bomb shell by expressing serious doubts about the wisdom of the learned
Judges in Sampath Kumars case. The Full Bench ruled that the ruling in the above case
equating Administrative Tribunals to the High courts with respect to their jurisdiction under
Articles 226 and 227 was inconsistent with the apex courts ruling in cases like Kesavanda
Bharati v. State of Kerala19 and Indira Gandhi v. Raj Narain20. It was pointed out that the
constitutional courts could only exercise the power of judicial review. Since the logic of
alternative institutional mechanism propounded in Sampath Kumars case does not fit in to
this scheme, it is constitutionally impermissible. As a result both Articles 323A(d) and section
28 of the Act were struck down as unconstitutional.

The judicial green signal given for tribunalisation given in Sampath Kumar can be seen to be
slowly fading because of the subsequent decisions. The confusion created by these conflicting
decisions ushered in the need for taking a second look at S.P. Sampath Kumars case. This
opportunity arrived when a three judge bench of the Supreme Court in L. Chandrakumar v.
Union of India21 decided to refer the matter to a larger bench. This eventually led to the
famous ruling of the Seven Judge Bench of the Supreme Court on L. Chandrakumar v. Union
of India22, which is now the law of the land.

L. Chandrakumars Case

The important issues considered by the apex court were as follows:

18 1993 (2) An. W.R.484 (FB).

19 (1973) 4 SCC 225.

20 AIR 1975 SC 2291.

21 AIR 1995 SC 1151

22 AIR 1997 SC 1125

 1. Whether Art. 323A (2) (d) and Art.323B (3) (d) of the constitution which give the
power to the Union and State Legislatures to exclude the jurisdiction of all courts
except that of the Supreme Court under Art.136, is in accordance with the power of
judicial review embodied in Art.32 and 226.
2. Whether the power of High Courts to exercise the powers of superintendence over the
subordinate judiciary under Articles 226 and 227 form part of Basic Structure.
3. The competence of the aforesaid tribunals to determine the constitutionality of any
law.
4. Whether the aforesaid tribunals are acting as affective substitutes to High Courts in
terms of efficiency.

It was held that the power of judicial review over legislative and administrative action is
expressly vested with the High Courts and the Supreme Court under Articles 226 and 32
respectively. The contention that the constitutional safeguards which ensure the independence
of the higher judiciary23 is not available to the lower judiciary and bodies such as Tribunals
was upheld and the Apex Court consequently held that the lower judiciary would not be able
to serve as effective substitutes to the higher judiciary in matters of constitutional
interpretation and judicial review. Hence the power of judicial review is vested in the higher
judiciary and the power of High Courts and the Supreme Court to test the constitutional
validity of legislative and administrative action cannot ordinarily be ousted. However it was
held that these tribunals and the lower judiciary could exercise the role of judicial review as
supplement to the superior judiciary. The court applied the provisions of Article 32(3) to
uphold the same.

It was also held that the power of the High Courts to exercise judicial superintendence over
the decisions of the lower judiciary within its jurisdiction (under Articles 226 and 227) are
part of basic structure.

In its supplemental role to the higher judiciary it was held that these tribunals and the lower
judiciary had the power to test the vires of legislative and administrative action, subject to
their decisions being appealable to a Division Bench of the respective High Court.

It was observed that the working of the administrative tribunals was not up to the standards
required of a body supposedly functioning as a substitute to a High Court. The court

23 In terms of qualifications, mode of appointment, tenure, mode of removal,

etc.,
recommended the establishment of a nodal agency to supervise their working. The court also
made suggestions regarding the appointment of members to these tribunals and the
qualifications that such persons must have so as to qualify them for appointment.

Some of the arguments raised in this case are worthy of further examination:

It was contended that judicial review being part of basic structure was erroneous because
there are many constitutional provisions, which exclude judicial review in certain important
issues. Art.136 (2) and Art.226 (4) exclude judicial review in laws related to armed forces,
Art.22 (2) excludes Judicial review in river water disputes, Art.103 (1) on disqualification of
MPs and Art.329 (a) and (b) on laws relating to delimitation of constituencies seeks to
exclude Judicial review. However it is essential to note that these constitutional provisions be
read in the context of the constitutional scheme and with respect to the fact that such
provisions would undoubtedly be subject to Art.32. Secondly, it is important to note that the
disputes relating to armed forces are very sensitive in nature and so the framers of the
Constitution thought it prudent to expressly remove such matters from the ambit of judicial
scrutiny. The emotive nature of river water disputes was a factor, which influenced the move
to remove it from the ambit of judicial scrutiny.24

Though there exists no rigid separation of powers in the Constitution between the three
spheres of government, they have been entrusted with certain specific powers and functions.
In order to ensure that each of the branches do not transgress their constitutionally defined
parameters; there is a constitutionally created system of mutual checks and balances. In this
clear demarcation of functions, judiciary is given the role of deciding disputes and determine
the legality of executive and legislative action. This power of Judicial review flows from
Art.32 and 226 and is an integral part of the constitution in so far as the exercise of the
doctrine seeks to uphold the rule of law and to ensure that the executive and legislature
remains within their allocated domains.

The judges in Sampath Kumars case, relying on the minority judgment of Bhagwati, J.,
in Minerva Mills v. Union of India held that alternate institutional mechanisms which were as
effective as High Courts could exercise the power of Judicial review and consequently oust
the jurisdiction of High Courts under Art.226. There is no denying the fact that the
Parliament mercy under Art.32(3) create special courts to deal with matters that the Supreme
24 It must be noted that all these provisions are subject to Art.32.
Court is empowered to deal with under Articles 32 (1) and (2) but the consequence of the
provision does not led to the outsets of jurisdiction of Supreme Court under Art.32. So while
conceding that alternate institutional mechanisms may be established, it is not permissible for
them to exercise the power of judicial review as substitutes to High Courts even if they are as
effective as High Courts. As has been held in Chandrakumars case, institutional
mechanisms may be set up and they can perform the function of judicial review but not as
substitutes to High Courts but as supplementary to the role of High Courts.

However there are many scholars who still contend that the constitutional bar is against the
conferment of judicial power on agencies outside the judiciary and if arrangements within the
judiciary are made to limit the scope of Articles 32 and 226 are constitutionally valid.
However in its form before the judgment in Chandra Kumar, tribunals are a structure parallel
to the established judiciary and hence outside the judicial set up. Unlike French
Constitutional practice, which allows for such dual system, it is clear that our Constitution
does not provide for this practice.

In India, the constitution has clearly created a judiciary which would be independent and
which is immune to the pressures and pulls from the legislature and the executive. However
tribunal system in India does not provide for such independence. They are clearly extra
judicial authorities, which can be influenced immensely by the executive and hence cannot
carry out their functions independently. This can be visualised as the infringement on the way
the constitution envisaged the courts to act as a check on the other two branches.

So the Supreme Court in L. Chandrakumar v. Union of India laid down that:

a.The powers of Judicial review on legislative action vested in the

Supreme Court and High Court under Art.32 and 226 from part of the
basic structure of the Constitution.
b. The power of High Courts under Art.227 to exercise
superintendence on all courts and tribunals under its jurisdiction is also
basic to the constitution and therefore even if tribunals are allowed the
power to perform Judicial review, they may do it in a supplementary
role and not as substitutes to the High Courts.
c.Though tribunals may act as courts of first instance for the areas they
are dealing with, they are subject to the appeal jurisdiction of a
Division Bench of the High Court under whose jurisdiction they fall.
 d. Though tribunals can examine the Constitutionality of statutes,
the power does not extend to the parent statute under which they are
constituted.
e.In order to supervise the administration of tribunals and to increase
their efficiency an independent agency has to be set up and till then a
nodal Ministry has to see to these aspects.

Consequently Articles 323A (2) (d) and 323B (3) (d) of the Constitution were held to be
unconstitutional.

It is clear that attempts to create a system of administrative adjudication similar to the

French Droit Administratif is impermissible in India. This is because the Constitution of India
has vested the powers of judicial review in the High Courts and the Supreme Court in order
to make its scheme of checks and balances effective. Any other agency performing this
function can only be doing it in a subordinate role. The system of tribunalisation, which
removes the above power from the higher judiciary, will amount to an importation of the
French position in to the Indian context. As has been stated earlier, French system of tribunals
developed in a totally different context and hence their interpretation of the doctrine of
separation of powers in the scheme of governance is different. In India, the constitution is
supreme unlike in France, where a change effected by the Parliament is seen as an expression
of the popular will and therefore is treated as an amendment of the constitution. However
such an interpretation is not acceptable in India where the constitution remains supreme and
paramount law which the Legislature cannot amend by a mere expression of popular will. So
the mechanism of tribunalisation in the strict French sense is constitutionally impermissible.

The constitutional bar against the establishment of a parallel judicial system as in France does
not mean that the rationale behind tribunalisation no longer exists. There is a crying need for
a specialised, speedy and effective method of determination of disputes, which can be
achieved only by reducing the backlog of cases in the ordinary judiciary. The method through
which such a balance may be achieved will be examined after discussing the status and
working tribunals in general.

STATUS AND WORKING OF TRIBUNALS IN INDIA

Tribunals are essentially those bodies of the Executive branch of the government who by
virtue of some statutory provision have the power and duty to act judicially in determining
disputes which come before it.25

Tribunals as stated earlier are distinct from the ordinary courts of the land and as
per Chandrakumars case they are not on par with the High Courts but serve a supplemental
function to the High Courts. They are therefore subject to the writ jurisdiction of the superior
judiciary and to the power of judicial review exercisable by the superior judiciary. In most of
the tribunals appeals from their decisions lie in the High Court on substantial questions of
law.

There are different types of tribunals in India, ranging from single member tribunals to multi-
member tribunals. Tribunals such as the Industrial tribunal may consist of one or more
members, and they can be appointed by the appropriate government. The chairman of the
tribunal is supposed to possess judicial qualifications and is supposed to be or have been a
judge of the High Court or a District judge or be qualified for appointment as a High Court
judge. The other members are expected to satisfy the prescribed requirements- which are to
ensure that the members are experts and will be able to speedily and effectively dispose of
matters. The procedure to be followed by the tribunal is prescribed by the Act and rules made
thereunder. Though the function of the tribunal is to adjudicate on the disputes it has only
some of the trappings of the court. It is not bound by strict rules of procedure and can take
decisions by exercising its discretion. While accepting the fact that such tribunals must work
towards furthering social justice, it has been held in J&K Iron and Steel Co. v. Mazdoor
Union26 that tribunal cannot act beyond the scope of the law. It can decide the dispute on the
basis of the pleadings and has no power to reach a conclusion without any evidence on
record. The tribunal is expected to hold the proceedings in public, follow fair procedure and
decide disputes impartially and independently.

All tribunals in India are arranged on the following basis:

a. created by a statute
b. subject to the writ jurisdiction of the superior judiciary and to judicial review.

25 Chakraverti, S., Administrative Law and Tribunals, 2nd edition, The Law Book
Co. Ltd.: Allahabad

26 AIR 1956 SC 231.

 c. manned by experts and persons with judicial experience.
d. subject to the superintendence of the concerned High Court under Art.227
e. decisions may be final or appealable within the tribunal or in certain cases to
the High Court.

Appeals against orders of the tribunal may be heard by the Supreme Court by special leave
under Art. 136.

TRIBUNALS AND NATURAL JUSTICE

Administrative tribunals must act openly, fairly and impartially. They must afford a
reasonable opportunity to the parties to represent their case and adduce evidence. Thus,
in State of U.P. v. Md. Nooh27 where the prosecutor was also an adjudcating officer and also
in Dhakeshwari Mills28 where the tribunal did not disclose some evidence to the assessee
which was relied upon, the decisions were set aside.

In Union of India v. T.R. Verma29 the Supreme Court held the following to be part of natural
justice:

a. Party must be able to adduce all evidence being relied upon.

b. Evidence must be taken in the presence of both parties.
c. Must be given opportunity to cross- examine.
d. And no material must be relied upon without giving the party opportunity to
explain the evidence.

Tribunals are free to evolve their own method of procedure as long as they conform to the
principles of natural justice as outlined above.

Tribunals are also expected to give reasoned decisions so as to introduce clarity, reduce
arbitrariness and reduce the scope of frivolous appeals. It also provides the supervisory
authority the opportunity to keep tribunals within bounds.

27 AIR 1958 SC 86.

28 AIR 1955 SC 154.

29 AIR 1957 SC 882 at 885.

FINALITY OF DECISIONS

In many statutes, provisions are made for filing appeals or revisions against the orders passed
by the tribunal. An appeal can be filed before the Industrial Tribunal from the Labour Court
or to the Rent Control Tribunal against the order passed by the Rent Controller or to the
Income Tax Appellate Tribunal against orders passed by Income Tax Commissioners.

But sometimes, provisions have been made in a statute by which the orders passed by the
administrative tribunals are final. Such a clause does not exclude the judicial review of
administrative adjudication.

CONCLUSION

In practice there are a number of tribunals functioning in the country. Very few of them,
however, have been able to inspire confidence in the public. The tribunals have shown a
singular lack of competence and objectivity in determining disputes. Another reason for their
failure is the constitution of the tribunals and the method of appointment of the personnel.
Persons with expertise and the right qualifications do not want to sit on these tribunals thus
leading to the unsatisfactory functioning of these tribunals.30 The uncertainty of tenure,
unsatisfactory service conditions, interference by the executive and political interference have
further impeded the proper development of tribunals in India. Tribunals are supposed to
provide specialised adjudicatory services but the type of people appointed lack the requisite
expertise and are on the tribunals merely because of political pressure and executive
interference.

Tribunals are supposed to serve as alternative institutional mechanisms to high courts, they
must therefore be able to inspire public confidence by proving themselves to be a competent
and expert mechanism with a judicial and objective approach.

30 Sathe, S.P., Administrative Law, 6th. Edn., Butterworths, New Delhi, 1999, pp.
245-252.
SUGGESTIONS

In my opinion it is essential that members of the tribunal are equipped with adequate judicial
acumen and expertise. These judicial officers need to be balanced with experts in the
particular field. Only a judicious blend of the two will be able to provide an effective and
result oriented tribunal system. Another important measure which needs to be taken are steps
to maintain the independence of the members of these tribunals from political or executive
interference. Just as the ordinary judiciary are protected from political control through
security of tenure and through institutionalized methods of appointment (through a selection
committee comprising of the Chief Justice, Departmental secretaries, etc.) in order to further
reduce the burden on the high courts the high courts must be divested of the supervisory
jurisdiction over the tribunals. It is essential therefore that a single centralised model agency
be established to oversee the functioning of the tribunals. Such a centralised umbrella
organisation will ensure the independence of the tribunals in matters of tenure and funds.

Thus the overall picture regarding tribunalisation of justice in the country is far from
satisfactory. A fresh look at the system of tribunals in India is required so as to ensure speedy
justice and quick disposal of disputes arising out of administrative disputes which are
essential for the development of the nation.

BIBLIOGRAPHY

Articles
1) Mathew,A. and Agarwal, A, Judicial review And Administrative Tribunals, IBR, Vol.
25 (2) 1998.

2) Joshi, K. C., Legal Status of Tribunals, IBR, Vol. 25 (2), 1998

Books

1) Sathe, S.P., Adminiostrative Law, 6th. Edn., Butterworths, New Delhi, 1999.

2) Chakraverti, S., Administrative Law and Tribunals, 2nd edition, The Law Book Co. Ltd.:
Allahabad, 1988.

3) Jain,M.P., Principles of Administrative Law, Wadhwa & Company : Nagpur, 1996

4) Nayak,R., Administrative justice In India, Butterwoths : New Delhi, 1989,

5) Thakker, C.K., Administrative Law, Eastern Book Company: Lucknow, 1996,

Miscellaneous

1) The Malimath Committee Report.