PATNA UNIVERSITY

P.G. DEPARTMENT OF LAW

NEW DISPUTE REDRESSAL

MACHINERY : TRIBUNALS
Third Semester Project Assignment 2017

Project submitted to:

Dr. VANI BHUSHAN
Faculty, P.G. Department of Law
Patna University

Project submitted by:

Rakesh Roshan Singh
ROLL NO.- 19
SEMESTER- 3rd
SESSION- 2016-18

COURSE- LL.M.
 ACKNOWLEDGMENT

In this, third semester of LL.M. Course at PG Deptt. of Law, Patna University, I have got the
good fortune to study Law Relating To Jurisdiction And Systems of Courts in India. Here, the
guidance of Dr. Vani Bhushan, Faculty of law, made me able to understand the concept and,
thus, I greatly owe to him. He had given a proper direction to my study. His unfettered support
made me able to complete this project.

I am thankful to other faculty members of Patna University for their co-operation.

I am also thankful to the librarians of Patna University for their support.

I remain, of course, entirely responsible for any errors.

Rakesh Roshan Singh

2
 RESEARCH METHODOLOGY
Doctrinal research asks what the law is on a particular issue. It is concerned with analysis of the legal
doctrine and how it has been developed and applied.

SOURCES
The sources used by the researcher in this project work are primary as well as secondary sources, details
of which are given as under:-
Primary sources: The primary sources used in this project work include Constitution of India and judicial
precedents.
Secondary sources: As far as secondary sources are concerned books and commentaries have been
studied in the present work.

SCOPE AND LIMITATION

This project work is descriptive study of the subject matter.

3
 Contents

INTRODUCTION ............................................................................................................................................. 5
AN OVERVIEW OF THE TRIBUNAL SYSTEM IN INDIA .................................................................................... 6
THE TRIBUNAL SYSTEM TODAY- SOME ISSUES AND CONCERNS ................................................................ 11
The implications of Chandra Kumar ....................................................................................................... 11
The provision for administrative/technical members ............................................................................ 12
Tribunalisation ........................................................................................................................................ 13
CONCLUSION............................................................................................................................................... 15
BIBLIOGRAPHY ............................................................................................................................................ 16

4
 INTRODUCTION

In the current scenario of adjudication of disputes, apart from the court system, even tribunals
play a very important role. The number of tribunals has been increasing after 1947,
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.

5
 AN OVERVIEW OF THE TRIBUNAL SYSTEM IN INDIA

Tribunals, one of the bodies of administrative adjudication in India, have witnessed much
debate in the recent years. They were set up to reduce the workload of courts, to expedite
decisions and to provide a forum which would consist of both lawyers and experts in the
areas falling under the jurisdiction of the tribunal.1 The 42nd Amendment Act of 1976
brought about a massive change in the adjudication of disputes in the country, as it provided
for the enactment of Art. 323A and Art. 323B in the Constitution of India. 2 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 subclause
with regard to which the respective Legislature had the power to make laws.3 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 enacted8 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

1
M.P. Jain and S.N. Jain, PRINCIPLES OF ADMINISTRATIVE LAW, VOL. I, 713 (6thedn., 2007)
2
Arts.323A and 323B, THE CONSTITUTION OF INDIA, 1950
3
However the Supreme Court has held in Union of India v. Delhi High Court Bar Association (AIR 2002 SC
1479) that the legislatures can establish tribunals outside the scope of Art. 323A and Art. 323B as long as there
was legislative competence under the Seventh Schedule

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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,4 it was held that the
three essential requisites for a body to be a tribunal were that it had to have the trappings of
a court, had to be established by the state and it had to be vested with the inherent judicial power
of the state. However, these criteria are illustrative and not exhaustive. 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.

After the enactment of Art.323A and Art. 323B, there have been three landmark judgments
which have shaped the history of the tribunal system. As Art. 323A and Sec. 28 of the
Administrative Tribunals Act provided for excluding the jurisdiction of all courts except the
jurisdiction of the Supreme Court under Art. 136, there were a catena of cases which
challenged the validity of both the legislation and the 42nd amendment. The judgment of the
five judge Bench of the Supreme Court in S.P.Sampath Kumar v. Union of India flagged off
the debate in this area.

The important issue raised in Sampath Kumar was whether the Administrative Tribunals Act
and the 42nd constitutional amendment (in light of Art. 323A) were unconstitutional as they
excluded judicial review. The court held that judicial review was part of the basic structure
of the Constitution but went on to state that if the constitutional amendment did not leave a
void by excluding the jurisdiction of the High Court but if it set up another effective
institutional mechanism wherein the power of judicial review was vested the Administrative

4
Engineering Mazdoor Sabha v. Hind Cycles, AIR 1963 SC 874.

7
Tribunal would pass the test of constitutionality. The basic structure doctrine implies that if
any there is a legislation amending any area of law belonging to the basic structure, the
amendment would be adjudged void.

The court further held that these tribunals had the power of judicial review owing to the 42nd
Amendment Act. This was also because exclusion of the jurisdiction of the High Court by
providing for effective institutional mechanisms would not bar judicial review as tribunals
were effective mechanisms as they helped in reducing the backlog of cases and assured quick
settlements of service disputes. However, it is surprising that the issue pertaining to the
constitutionality of Art. 323B(3)(d), which is similar to Art. 323A(2)(d) was not raised before
the Court.

Almost a decade later, in L.Chandrakumarv. Union of India,5 a seven judge Bench of the
Supreme Court overruled Sampath Kumaron the point of the power of judicial review of the
High Courtsand it still continues to be good law. It was a landmark decision also because the
issue of the constitutionality of Art. 323B(3)(d) was raised for the first time. The important
issues raised before the Court were- first, whether Art. 323A(2)(d) and Art. 323(B)(3)(d)
violated the power of judicial review vested with the High Court under Art. 226 and Art. 227.
Second, whether the power of superintendence of the High Courts over all tribunals and
courts situated within their territorial jurisdiction was part of the basic structure. Third,
whether the provision for a technical member would make any difference in deciding the
validity of the provision for the constitution of tribunals. First, it was held that the power of
judicial review was vested with the Supreme Court and the High Court under Art. 226 and
under Art. 32 as the constitutional safeguards which ensured the independence of the higher
judiciary were not available to the lower judiciary and reiterated that judicial review was a part
of the unviolable basic structure doctrine. The court also reiterated that an exclusion of
jurisdiction clause enacted in any legislation under the ambit of 323A(2)(d) and Art.
323(B)(3)(d) were unconstitutional. Second, it was held that the power of superintendence of
the High Courts over the lower judiciary within their territorial jurisdiction was part of the
basic structure. Third, it was held that the setting-up of tribunals was founded on the premise
that those with judicial experience and grass-roots experience would best serve the purpose of

5
AIR 1997 SC 1125 (Supreme Court of India) [Chandrakumar]

8
dispensing speedy justice. The court also clarified that the tribunals would continue to act as
courts of first instance in respect of the areas of the law for which they have been constituted.

Importantly, the reasons stated for this ratio decidendi was that the constitutional safeguards
which ensured the independence of the superior judiciary were not available to those
manning tribunals. Hence the judges of the tribunals can never be considered the full and
effective substitutes of the superior judiciary in discharging the functions of constitutional
interpretation and thus the power of judicial review could not be ousted from the High Court
and the Supreme Court. Interestingly, the court has only looked at independence of the
judiciary in terms of, inter alia, salaries, allowances and the retirement age of judges and not
with regard to whether the presence of administrative and technical members would be the
interference of the Executive in judicial actions.

However, when certain civil appeals came up for hearing before a three-judge Bench of the
Supreme Court, wherein it felt that Chandra Kumar had not addressed the issue of to what
extent the powers of the High Court, excepting judicial review could be transferred to the
tribunals and whether there was a demarcating line for the Parliament to vest intrinsic judicial
functions traditionally performed by courts in any tribunal. Hence the three-judge Bench
directed the appeals to be heard by a Constitution Bench, and in Union of India v. R
Gandhi,6 these issues were addressed.

First, it was held that the Constitution contemplates judicial power being exercised by both
courts and tribunals (in light of Art. 32, Art. 247, Art. 323A and Art. 323B) and hence if
jurisdiction of High Courts could be created by providing for appeals, revisions and
references to be heard by the High Courts, jurisdiction can also be taken away by deleting the
provisions for appeals, revisions or references and it also followed that the legislature has the
power to create tribunals with reference to specific enactments and confer jurisdiction on
them to decide disputes in regard to matters arising from such special enactments. Second, it
was held that while the legislature could make a law providing for constitution of tribunals
and prescribing the eligibility criteria and qualifications for being appointed as members, the
superior courts in the country could, in exercise of the power of judicial review, examine

6
(2010) 6 SCR 857 (Supreme Court of India) [R. Gandhi]

9
whether the qualifications and eligibility criteria provided for selection of members is proper
and adequate to enable them to discharge judicial functions and inspire confidence.
Despite three landmark judgments, there are a lot of issues regarding the tribunal system in
India. First, the reasons for the establishment of the tribunals included the delivery of speedy
justice but if the decisions of the tribunals were subject to judicial review, the High Court
would have to hear those cases when already the Supreme Court had the power to do so and
hence it would lengthen the judicial process. Second, the independence of the tribunals is
under question as administrative or technical members, are in most instances, appointed by
the Executive and many tribunals consist of members from the Executive. Third,
increasing tribunalisation is problematic as there is no uniformity in administration among the
tribunals and the functioning of most of the tribunals is in a very bad state.

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 THE TRIBUNAL SYSTEM TODAY- SOME ISSUES AND CONCERNS

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 Kesavananda
Bharati 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 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.

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The provision for administrative/technical members

Many legislations, such as the Administrative Tribunals Act of 1985, the Income Tax Act of
1961, Consumer Protection Act of 1986 and the Competition Act of 2002, provide for
administrative or technical members to be a part of the tribunal. Administrative members are
those who have practical experience of the functioning of the 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 from executive interference45
and 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.

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Clearly, in light of the above, the appointment of administrative and technical members by
the Executive is a contravention of the doctrine of separation of powers and the principle of the
independence of the judiciary. Surprisingly, this issue was dealt with in light of the
independence of the judiciary by the Supreme Court in as late as 2010, in R Gandhi.
It is recommended that the model which was adopted in the United Kingdom in the
Tribunals, Courts and Enforcement Act of 2007 (Tribunals Act) be followed in India. The
guarantee of judicial independence is available to most tribunal members. 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.

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,

13
inefficient functioning of the tribunals, and the lack of a uniform procedure in adjudicating
disputes.

With regard to these issues, it is recommended that first, the Ministry of Law and Justice
should prepare a list of tribunals which are currently functioning, along with the legislations
they are governed under and the places they are located in. This would spread awareness
and would help any person in the country know which tribunal he has to approach in case
of a dispute, especially because tribunals would act as courts of first instance in respect of
the areas of the law for which they have been constituted. Second, there should be a body
which supervises the functioning of tribunals. It was recommended in Chandra Kumar that
the Ministry of Law and Justice should appoint an independent supervisory body to oversee
the working of the tribunals and also, in the United Kingdom, the Tribunals Act provides
for the establishment of the Administrative Justice and Tribunals Council whose functions
are to keep the administrative justice system under review and to consider ways to make the
system accessible, fair and efficient.

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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 BIBLIOGRAPHY

1. Seervai, H.M. Constitutional Law of India vol. I, 3rd Edn; Universal Law Publishing
Co. Pvt. Ltd.

2. Singh, Mahendra P.; V.N. Shukla's Constitution of India, 11th Edition, 2008, EBC

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