- The Law Commission of India has recommended that a Committee led by the Chief Justice of India should be in charge of the appointments of Chairman, Vice-Chairman and Judicial Members of the various central tribunals.
- Such a step sends strong message to the government that appointments to tribunals and their functioning should remain independent of the executive’s influence.
The specialized role of Tribunals
- The tribunals perform an important and specialized role in justice mechanism.
- They take a load off the already over-burdened courts.
- They hear disputes related to the environment, armed forces, tax and administrative issues.
- Tribunals function under the very government department which may be a litigant before them, and probably, against which they may have to pass orders.
What are the suggestions?
- 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.
- Every order emanating from the tribunal or its appellate forum, wherever it exists, attains finality, the Commission recommended.
- 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, interfered with only by amending of the Constitution.
- The parties involved 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 in the case of Armed Forces Tribunal (AFT) has recommended that in disputes in which the AFT has jurisdiction, parties must have a right to approach the high court under Article 226 for the reason that a remedy under Article 136 is not by way of statutory appeal.
- The Commission prioritized tribunals to have benches in different parts of the country so that people of every geographical area may have easy access to justice.
Why should Tribunals be independent?
- The right to an independent and impartial tribunal established by law contains both objective and subjective elements.
- The objective requirements are mainly institutional, demanding the separation of powers within the constitutional structure of the country.
- The subjective element requires that any semblance of dependence must be avoided by the (members of the) tribunal. They should avoid any act, attitude or comment which may lead to doubts among litigants as to the independence of the tribunal. Such avoidance is also part of the necessary impartiality of the judiciary.
- The separation of the executive and the judicial branches of government is particularly important in securing the basis for the independence of the judiciary.
- The independent and impartial position of judges is the crucial point: if the government or other authorities can remove judges at will, their institutional independence is not secured.
- The courts or the judges are in case under the control or influence of non-judicial entities, their independence and impartiality may be impaired. Such control may be exercised through conditions of payment of judges, the possibility for other branches of government to issue instructions to courts, or threats of transfers of judges to other posts should their decisions not conform to expectations or instructions.
Features of Tribunals in India
- Administrative Tribunal is competent to exercise all powers which the respective courts had, including declaration as to constitutionality of relevant laws. The jurisdiction of the Tribunal is not supplementary but is a complete substitute of the High Courts and Civil Courts.
- Is established outside the court hierarchy by the executive in exercise, and in accordance with the statutory provisions.
- It is an independent forum set up to adjudicate upon a given type of controversies between two adversaries: administration and citizen.
- It is required to act Judicially, and performs quasi-judicial functions.
- It proceedings are deemed to be judicial proceedings, and in certain procedural matters it has powers of a civil court.
- Itis not wedded to the technicalities of the rules of procedure and evidence prescribed by the Code of Civil procedure and the Evidence Act.
- It decides non-conventional type of disputes in aid of social control, public development and public security programs of the welfare state in accordance with the rules off natural justice; and
- It does not satisfy the institutional conditions of a law court although it has the trappings of a court.
Judicial review on decision of tribunals
- Courts have supervisory jurisdiction over the actions of public tribunals, boards, officers and public decision makers.
- In some circumstances, parties who have been affected by decisions of tribunals may bring an application in court to have the administrative decision reviewed by the court. This is called judicial review.
- There are two broad categories of judicial review: procedural judicial review and substantive judicial review.
- Procedural judicial review involves an allegation that an impugned administrative decision was reached in a manner not in compliance with procedural fairness (i.e. there was a denial of natural justice, or the decision was otherwise procedurally unfair).
- Substantive judicial review challenges the decision itself, either on the basis that the decision-maker in question did not have the power to make the decision he or she purported to make (i.e. acted outside his or her jurisdiction); or on the basis that the decision was either incorrect or unreasonable.
- Judicial review can be pursued provincially before the Divisional Court.
Is it bounded by Supreme Court and High Court?
- Supreme Court shall be binding on all court within the territory of India. Undoubtedly, the scope of Article 141 is very wide and it would apply to ordinary courts as well as administrative tribunals.
- There is no provision corresponding to Article 141 with respect to the law declare by the High Court. The issue remains whether the law declare by a High Court has a similar binding effect over all subordinate courts and inferior tribunals within the territories in relation to which it exercising its jurisdiction.
- The Supreme Court and High Court, over and above writ jurisdiction has also supervisory jurisdiction over all subordinate courts and inferior tribunals within the territories in relation to its jurisdiction.
- Therefore, if any administrative tribunal acts without jurisdiction exceeds its power or seek to transgress the law laid down by the High Court, the High Court can certainly interfere with the action of the tribunal.
Origin of Tribunals
The original Constitution did not contain any provisions with respect to tribunals.
- The 42nd Amendment Act of 1976 added a new Part XIV -A to the Constitution, entitled as ‘Tribunals’ and consists of only two Articles—
- Article 323 A dealing with administrative tribunals and
- Article 323 B dealing with tribunals for other matters.
What are administrative tribunals?
Article 323 A
- It enables the Parliament to take out the settlement of disputes relating to service matters from the civil courts and the high courts and place it before the administrative tribunals.
- Article 323 A, the Parliament has passed the Administrative Tribunals Act in 1985.
- The act authorizes the Central government to establish one Central administrative tribunal and the state administrative tribunals.
- This act opened a new chapter in the sphere of providing speedy and inexpensive justice to the aggrieved public servants.
Tribunals for Other matters
Under Article 323 B, the Parliament and the state legislatures are authorized to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters:
(b) Foreign exchange, import and export
(c) Industrial and labour
(d) Land reforms
(e) Ceiling on urban property
(f) Elections to Parliament and state legislatures
(g) Rent and tenancy right
How Article 323 A and 323 B different?
- While Article 323 A anticipates establishment of tribunals for public service matters only, Article 323 B contemplates establishment of tribunals for certain other matters.
- While tribunals under Article 323 A can be established only by Parliament, tribunals under Article 323 B can be established both by Parliament and state legislatures with respect to matters falling within their legislative competence.
Under Article 323 A, only one tribunal for the Centre and one for each state or two or more states may be established.