Contents of the Blog.
Explain the phenomenon of tribunalisation of justice in India. UPSC law Optional 2017 Q1(d).
Q1 : MEANING OF TRIBUNALISATION OF JUSTICE : In addition to courts, tribunals are established in India since 1941. The core idea for establishing them to decide complex cases of a technical nature requiring specialisation and expertise. This phenomena of delivering justice through tribunal, in contrast to courts, is known to be ‘tribunalisation’ of justice.
Q2 : WHY TRIBUNALISATION? This conception is motivated on the premise that tribunals are cost-effective, accessible and give scope for utilising expertise in the respective fields. It is a fact that our current judicial system is unable to deliver due to inherent delays, procedural complexities, a maze of appeals, and prohibitively high costs. As a result, the importance of administrative tribunals cannot be overstated.
Rojer Mathew v. South Indian Bank Limited, (2020) 6 Supreme Court Cases | Need for Tribunal
15. The courts in India were successfully handling all jurisdictions. The problem was not lack of talent. The problem was not lack of knowledge. The main problem was extremely low number of judges as compared to the population and a very high vacancy position. Tribunalisation of justice was done not because the courts were incapable of handling the matters but mainly because there were huge delays in settling matters. Now even for complex commercial matters, specialised commercial courts have been set up. However, at the same time, one cannot deny that in the fast-expanding technological world, there is a need to haveexpert adjudicators. Therefore, there is a need to have specialised tribunals. These tribunals being substitutes for courts must also meet the expectations of our founding fathers and be totally independent and fearless.
16. Unfortunately, the working of some of the tribunals leaves much to be desired. Not all the problems arise because of the persons who run the tribunals. Many difficulties arise because of huge vacancies, few benches, financial crunch and dependence of the tribunals on the departments, which sadly administer the tribunals. Some of the tribunals are virtually subjugated to the departments as far as the administrative matters are concerned and this also affects the independence of the judiciary. Judicial independence not only means independence to take the right decisions but functional independence is equally important. Perceptions are also very important. What does the litigating public appearing before the tribunal feel? Is the tribunal functioning like a wing of the government or as an independent body? If there has to be separation of powers then these tribunals must have functional autonomy to run themselves as they best feel like.
Q3 : WHAT IS A TRIBUNAL?
Literal meaning of “tribunal” is “seat of a judge” & includes court as well.
Meaning of “tribunal” under administrative law refers to adjudicatory bodies outside the sphere of ordinary courts of the land.
Rojer Mathew v. South Indian Bank Limited, (2020) 6 Supreme Court : A ‘Tribunal’ can be understood as a body tasked with discharging quasi-judicial functions with the primary objective of providing a special forum for specific type of disputes and for faster and more efficacious adjudication of issues.
DIFFERENCE IN TRIBUNAL & COURT : Tribunal and Court are to mean two different things. A tribunal may possess some but not all trappings of a court. Tribunal is administrative in character but also has the judicial powers to adjudicate on questions of law or fact affecting the rights of citizens in a judicial manner.
Q4 : HOW TO DETERMINE WHETHER A BODY IS TRIBUNAL OR NOT [TEST FOR DETERMINING TRIBUNAL]?
In Kihoto Hollohan v. Zachillhu, (1992) Supp (2) SCC 651, the Supreme court of India laid down the test for determining an authority exercising adjudicatory powers is a tribunal or not,
(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.
Q5 : WHAT ARE THE TYPES OF ADMINISTRATIVE TRIBUNALS :
IP Massey categorizes four types of Tribunal in India.
TYPE 1 : Tribunals which decide disputes between government and private individuals but stay outside main stream judicial system.
TYPE 2: Tribunals which decide disputes between citizens and stay within judicial framework. Example : Rent, Motor Vehicle and Industrial Tribunals
TYPE 3: Tribunals established to decide disputes between private individuals but established outside the main stream judicial system. Example : The Company Law Board (CLB)
TYPE 4: 42nd Amendment, 1976 to Constitution added Articles 323-A and 323-B.
Tribunals established under Articles 323-A and 323-B of the Constitution to decide disputes between government and the citizens. It has a distinct constitutional origin and enjoy powers same as high courts, whereas still amenable to High Court Jurisdiction.
What is Article 323-A all-about?
Article 323-A deals with administrative tribunals to be constituted for adjudication of disputes 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 specified authority.
The law enacted by. the Parliament for this purpose may provide for all matters relating to the constitution and functions of the Administrative Tribunals as well as for exclusion of jurisdiction of all courts, except the jurisdiction of the Supreme Court of India, with respect to the matters required to be adjudicated by the Administrative Tribunal.
It is for this purpose that the Administrative Tribunals Act, 1985 has been enacted and Section 28 therein excludes the jurisdiction of all courts except the Supreme Court or any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force in relation to matters which the Administrative Tribunal is empowered to adjudicate
What is Article 323-B all-about?
Article 323B empowers the appropriate Legislature to enact legislation to provide for adjudication or trial by Tribunals of any disputes, complaints or offences with respect to the matters specified in Clause (2) of the said Article. The matters specified in Article 323B(2) exhaustively deal with a variety of matters which can be brought within the purview of tribunalisation by both the Parliament and State Legislatures.
Thanks to L. Chandra Kumar vs Union Of India AIR 1997 SC 1125 case, where SC categorically held that HC Jurisdiction will violate basic structure doctrine and invalidated the provisions of statutory law which did it so. Further it has observed that the numerous Tribunals with lack of uniformity in the matter of qualification, appointments, tenure and service conditions is causing the major concern in effective working of the present Tribunal system.
Q6 : WHAT ARE CHARACTERISTICS OR CORE PRINCIPLES OF ADMINISTRATIVE TRIBUNALS?
(1) An Administrative Tribunal is creature of a law or statute and this it is said to have statutory origin.
(2) They are independent in acting and not subject to any administrative interference in the discharge of their judicial or quasi-judicial functions. But are bound by the law declared by the Supreme Court and concerned territorial jurisdiction of a High Court.
(3) It is vested with judicial powers of a State, in contrast to purely administrative or executive powers, and it said to perform judicial and quasi-judicial functions.
(4) It has some trappings of court such as with regard to procedural matters.
There is no uniform procedure for Tribunals in India. For some, procedure is given in statute itself (Eg: Copyright Board is given in the Copyright Act, 1957) and for others, it is free to decide its own procedure (Eg : Tax Appellate Tribunal).
However, powers of civil court (as given under CPC) relating to examination, discovery, inspection, production of documents, compelling attendance of witnesses and issuing commissions is general to all tribunals. If not, they should at least comply with principles of natural justice and conduct themselves with openness, fairness and impartiality in their procedure. And moreover, they are required to give reasons for their decisions.
Further, Tribunal proceedings are considered to be
Judicial proceedings for the purposes of Sections 193, 195 and 226 of the Penal Code, 1860 (IPC),
Civil Courts for the purposes of Sections 480 and 482, CrPC.
(5) It is not bound by strict rules of evidence and procedure. Such as Indian Evidence Act and Principles of Res Judicata not applicable to them.
(6) Its decisions are judicial, rather than administrative, as it records findings of facts objectively and then apply law to them without regard to executive policy.
(7) It decides disputes between government and citizens and citizens alone too.
(8) Writs of certiorari and prohibition are available against the decisions of administrative tribunals.
Q7 : DETAILED HISTORY ON TRIBUNALISATION IN INDIA:
Income Tax Appellate Tribunal (ITAT) was established to expedite tax disputes
The Administrative Reforms Commission was set up to explore the arenas for establishing Administrative Tribunals for different subject matters. It recommended establishment of Civil Services Tribunals as adjudicatory entities for disciplinary punishments awarded to civil servants.
Wanchoo Committee recommended reforms to the Income Tax Appellate Tribunal to effectuate replacement of Civil Courts for expeditious redressal of tax disputes.
High Court’s Arrears Committee Report headed by Justice JC Shah highlighted an urgent need for individual-specialised Tribunals for exclusively dealing with service matters and to unburden High Courts by restricting the barrage of writ petitions being filed by government employees.
Swaran Singh Committee took a radical view by advocating amendments to the Constitution for regulation of Tribunals and to curtail the writ jurisdiction of High Court and the Supreme Court. This report attracted a lot of critique from the legal fraternity and was later rejected in Sakinala Hari Nath vs. State Of Andhra Pradesh 1993 (3) ALT 471 & L. Chandra Kumar v. Union of India 1997 (2) SCR 1186
Drawing its competence from Article 323A of the Constitution, the Parliament enacted the Administrative Tribunals Act, 1985. The primary objective was to provide a forum alternative to the High Courts for routine service appeals, which otherwise was overburdening the working of the Constitutional Courts. It recognised that the higher Courts were envisaged to primarily deal with important Constitutional issues and substantial question of law of general public importance.
The National Environment Tribunal Act, 1995 and National Environment Appellate Authority Act, 1997 were enacted. However, these were soon found to be incapable of providing expeditious resolution of disputes which necessitated reforms as suggested by the Law Commission of India. This led to the establishment of the National Green Tribunal (NGT) in 2010 as a special fast- track Court only to deal with issues related to the environment.
Raghavan Committee was set up to suggest methods to regulate anti- competitive practices. This Committee recommended establishment of the Competition Commission of India (CCI), which was envisioned to maintain adequate competition in the market and protect consumer welfare. Further, the Competition Act, 2002 was later enacted which provided certain powers of Civil Courts to the CCI for effective enquiry and adjudication.
The Law Commission submitted its 272nd Report on ‘Assessment of Statutory Frameworks of Tribunals in India’ after the Supreme Court in Gujrat Urja Vikas Nigam Ltd. v. Essar Power Ltd., (2016) 9 SCC 103 had asked it to consider changes required to be made with respect to statutory framework constituting various Tribunals and the procedure and terms and conditions for appointment of Chairperson and Members to such tribunals. Dr. B.S. Chauhan, Chairman of the Law Commission of India and the former SC Judge has conveyed that the Commission has tried to take into account the tribunal system of our country and foreign countries, reports of previous law commissions, committees to draw a detailed step by step procedure to improve the working of the tribunal system in the country.
Key Suggestion of 272nd Report of Law Commission
The Commission has suggested a common nodal agency, possibly under the Law Ministry, to both monitor the working of the tribunals and to ensure uniformity in the appointment, tenure and service conditions for the Chairman, Vice-Chairman and members. As of now, tribunals function under the very government department which may be a litigant before them, and probably, against which they may have to pass orders.
Every order emanating from the tribunal or its appellate forum, wherever it exists, attains finality, the Commission recommended.
In a marked departure from its earlier stand, the Commission recommended the restoration of the High Courts’ power of judicial review over the decisions of the tribunals. “The power of judicial review conferred on the High Courts is same as that of the Supreme Court, which is a basic feature of the Constitution and tinkered with only by amending of the Constitution,” the report said.
It said parties should be allowed to challenge a tribunal order before the Division Bench of the high court having territorial jurisdiction over the tribunal or its appellate forum. Presently, parties are deprived of an opportunity to move high courts concerned against the orders of some tribunals and have to move the Supreme Court directly.
The Commission said tribunals must have benches in different parts of the country so that people of every geographical area may have easy access to justice.
“Ideally, the benches of the tribunals should be located at all places where the high courts situate. In the event of exclusion of jurisdiction of all courts, it is essential to provide for an equally effective alternative mechanism even at grass root level. This could be ensured by providing State- level sittings looking to the quantum of work of a particular tribunal. Once that is done, the access to justice will stand ensured,” the Commission said.
It further noted that reappointment of chairman and others compromises the independence and fairness of the tribunal.