The ideologies of Rule of Law and Separation of Powers mandate the ordinary courts alone to act as dispute resolution machineries. However, need was felt to enable the other institutions to share the responsibilities of the ordinary courts as they were over-burdened with growing litigations, particularly service litigations. The 42nd Constitutional Amendment Act, 1976 introduced the institution of tribunals in India. The legislative intent was that they should be considered as substitutes of the high courts for adjudicating service matters and thereby curtailed the power of judicial review of the high courts under Article 323-A (2) (d)[i] and 323-B (3) (d)[ii] and by Section 28 of the Administrative Tribunals Act, 1985[iii] and so was recognised by the Supreme Court until the case of L.Chandrakumar v Union of India, 1997. However, the higher judiciary could not let its power of extraordinary jurisdiction which is one of the basic structures of the Constitution be curtailed by a statute enacted by the legislature. In this tussle, the objective with which the tribunals were set up, that is to provide speedy justice, lessen the burden of the High Courts, and enable adjudication by the persons having expertise in the matters was overshadowed by the fulfilment of constitutional mandates. However, in 2016 as the repercussions of the judgment of 1997 could be felt, the Supreme Court in Gujarat Urja Vikas Nigam Ltd v Essar Power Ltd., sought the Law Commission of India to review the statutory frameworks of the tribunals along with the possibility of examining “direct statutory appeals to the Supreme Court from the order of Tribunals bypassing the High Courts and to exclude jurisdiction of all the Courts in absence of equally effective alternative mechanism for Access to Justice at grass root level.” Nonetheless, the role, power and functions of the tribunals have been interpreted by the judiciary to be similar to that of High Court on various fronts. This paper puts forth the argument that the Constitution of India being a living and organic document should be allowed to adjust with the exigencies of the situation and thereby the powers and the scheme of the Administrative Tribunals Act, 1985 should be allowed to be restored in its original form to strengthen the framework of rule of law in India.
“Nothing is more remarkable in our present social and administrative arrangements than the proliferation of tribunals of many different kinds. There is scarcely a new statute of social or economic complexion which does not add to the number.” – Sir C.K. Allen
The advent of the 20th century marked the evolution of the concept of the modern welfare state. The philosophy of laissez faire no longer rules the working of a welfare state, resultantly a welfare state is vigorous in nature and affects every person in every sphere. In such conditions, disputes between State and individuals are inevitable.
Dicey’s theory of Rule of Law and Montesquieu’s doctrine of separation of powers propound that the function of deciding disputes rests with the ordinary courts of law. But, welfare state is a complex system of governance and polity and the ordinary courts with their elaborate procedures and legalistic fronts and attitudes have faced difficulties to meet the challenges arising in the changing socio-economic context resulting in delay in justice delivery, increase in cost of litigation and miscarriage of justice.
The Preamble, under which the Indian Constitution was adopted, envisages social, economic and political justice and consequently with the enactment of Articles 12[iv], 14[v], 15[vi], 16[vii], 309[viii], 311[ix] of the Constitution of India, a large number of service matters calling for the adjudication of disputes relating to recruitment and conditions of service of government servants and also employees of other fields of public employment started coming up before the various High Courts whose power of judicial review under Article 226[x] and 227[xi] of the Indian Constitution was invoked for adjudication by the aggrieved employees. The opportunity to the High Courts to dispose cases and the frequency at which they are filed is extremely disproportionate in our nation leading to increasing arrears.
The Indian Constitution also guarantees a right to fair and speedy trial within the right to life and personal liberty protected under Article 21 of the Indian Constitution. Therefore, a slow justice delivery system fails to uphold the principle of speedy trial and infringes Article 21 of the Indian Constitution.
In the backdrop of this major lacunae and in the light of the maxim, “Lex dilationes semper exhorret” which means ‘the law always abhors delays’[xii] a need was felt to set up a system of adjudication which may not be as elaborate and costly as provided by the ordinary courts of law. This lead to the emergence of tribunals in India.
The judicial interpretations of legislative policy of introducing tribunal system in India has altered the basics of the system so as to make the entire attempt futile. The authorities set up to examine the working of the tribunals never have stated that the idea of setting up an institution to perform the judicial function of state so as to bypass the superintendence and review of the High Courts is impossible under the Indian Constitutional framework. However, they have always pressed attention upon the rider that, such an institution should be able to provide an equally effective remedy. Hence, the possibility of reinforcing the original legislative intent behind the passing of 42nd Constitutional Amendment Act, 1976 was sought to be examined by the Supreme Court in Gujarat Urja Vikas Nigam Ltd v Essar Power Ltd., 2016.
The Malimath Committee regarded tribunals as not the end but a means to an end. An equivalent efficacious institution and not the power of judicial review of the High Court could be supplanted under our Constitutional framework. The Administrative Tribunals Act, 1985 had been assailed on the ground that it allowed curtailment of judicial review of administrative tribunals’ decisions by the high courts and violated the basic structure doctrine, however, the intention behind such move was to aid the higher judiciary while dispensing speedy justice. The research has been conducted with an objective of examining the judicial developments while interpreting the scheme of the Administrative Tribunals Act, 1985.
The Emergence of Tribunals in India: Historical background
The Indian judicial system faced the problem of backlog of cases since the pre-independent era. As early as in 1924, Justice Rankin Committee Report suggested reforms in form of enquiry into the operations and effects of substantive and procedural laws. In 1941, for the very first time a tribunal in the form if Income Tax Appellate Tribunal was set up. Thereafter, the Administrative Reforms Committee in 1969 recommended the setting up of Civil Services Tribunals to act as the final adjudicator to decide upon the punishments of dismissal, remove and reduction in rank. The Wanchoo Committee in 1970, proposed to set up an alternate dispute resolution body named, Income Tax Settlement Commission for the administration of fiscal laws and to facilitate fair, prompt and independent settlement and compromise.
Tribunals as a machinery of dispute resolution were not a part of the judicial system in 1950 when the Indian Constitution came into force. Nonetheless, it was envisaged by the framers and hence Articles 136[xiii] and 227 of the Constitution did talk about tribunals and thereby allowing the Supreme Court and as a corollary the High Court to exercise writ jurisdiction under Article 32[xiv] and 226.
The 42nd Constitutional Amendment Act, 1976 sought to alter this position. It was an attempt to design the Indian tribunal system on the French model. It introduced Part XIV-A and XIV-B into the Constitution which contained Articles 323-A and 323-B. Article 323-A does not provide a hierarchy of tribunals, Article 323-B does. Article 323-A laid down that the conditions of service and recruitment of the government employees could be adjudicated or tried by tribunals set up under a law made by the Parliament, it also allowed the Parliament to exclude the jurisdiction of all the courts over tribunals but retained the operation of Article 136. The appropriate legislature could provide for adjudication of all or any matters laid down in clause (2) of Article 323-B. Thereby, the Administrative Tribunals Act, 1985 was passed by the Parliament to implement the provisions of Article 323-A of the Constitution.
Meaning of the term ‘Tribunal’:
The term ‘Tribunal’ is derived from the word ‘Tribunes’, which means ‘Magistrates of the Classical Roman Republic’. Tribunal is referred to as the office of the ‘Tribunes’ i.e., a Roman official under the monarchy and the republic with the function of protecting the plebeian citizen from arbitrary action by the patrician magistrates.
A Tribunal, generally, is any person or institution having an authority to judge, adjudicate on, or to determine claims or disputes – whether or not it is called a tribunal in its title.
‘Tribunal’ is an administrative body established for the purpose of discharging
quasi-judicial duties. An Administrative Tribunal is neither a Court nor an executive body. It stands somewhere midway between a Court and an administrative body. The exigencies of the situation proclaiming the enforcement of new rights in the wake of escalating State activities and furtherance of the demands of justice have led to the establishment of Tribunals writes Kagzi, M.C.J, The Indian Administrative Law (1973).[xv]
Characteristics of a Tribunal:
The characteristics of a dispute resolution authority to be called as a tribunal was laid down by the Franks Committee Report in 1957. “The Report traced the origin of the tribunals in the Statute, thus having statutory origin. It has some of the trappings of a court but not all.
An administrative tribunal is entrusted with the judicial powers of the State and thus,
performs judicial and quasi-judicial functions, as distinguished from pure administrative or executive functions and is bound to act judicially. Even with regard to procedural matters, an administrative tribunal possesses powers of a court; for example, to summon witnesses, to administer oath, to compel production of documents, etc. An administrative tribunal is not bound by strict rules of evidence and procedure.”[xvi]
The Statutory frameworks of Tribunals in India and Judicial Interpretations
The Administrative Tribunals Act, 1985 was enacted to provide speedy and inexpensive justice to the government employees on their complaints relating to service matters. The Act set up service tribunals in three forms. The Central Administrative Tribunal for the Union, State Administrative Tribunal for States and Joint Administrative Tribunals for two or more States.[xvii] The Act is not made applicable to the employees of the ordinary courts, that is, the Supreme Court, High Court or the subordinate Court and the secretarial staff of the Parliament and the State legislatures. The Tribunals had also been given a power to punish for their contempt, under the Contempt of Courts Act, 1971. They exercise this power similar to the High Courts.
The tribunals can regulate their own procedures within the statutory limitations. They enjoy the powers of the civil courts to certain extent, and their proceedings are deemed to be judicial proceedings under The Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973. They cannot delegate their quasi-judicial functions to any other authority or official. It cannot give decisions without giving an opportunity of being heard to the parties or without observing the principles of natural justice. The Administrative Tribunals Act, 1985 provides for the appointment of Chairperson and Members of the Tribunals. Notably, the tribunals are made bound by the decisions of Supreme Court under Article 141. [xviii]
In S P Sampath Kumar v Union of India,[xix] (hereinafter Sampath Kumar’s case) the provisions of the Administrative Tribunal Act of 1985[xx] and Article 323-A(2)(d) was assailed on the ground that it abrogated the power of judicial review of the High Court and the Supreme Court. Upon the perusal of the object of the 42nd Constitutional Amendment Act, 1976 and scheme of the Administrative Tribunals Act, 1985, the Supreme Court in 1987 regarded tribunals as complementary to the High Court. The idea behind setting up of service tribunals was that the service law related jurisdiction of the highest court of State would be curtailed and the disputes would be heard and decided by the tribunals. Since the high courts were replaced by the tribunals, their powers of superintendence and judicial review under Articles 227 and 226 to that effect were also restricted by the 42nd Amendment Act. In 1987, the power of judicial review of the Supreme Court under Article 32 was restored. The power of judicial review of the Supreme Court and the High Court forms one of the prongs of the doctrine of basic structure. Placing reliance on Minerva Mills v Union of India, 1981 the Supreme Court observed that as long as the institution replacing the High Court is as effective as the latter, the doctrine of judicial review cannot be violated. However, the Court directed section 6(1) (c) to be omitted as it made the Secretary to the Government of India eligible for the post of Chairperson, which according to the Supreme Court should be equated for all purposes with the Chief justice of the High Court and the selection of Vice-Chairperson and Members should be done by a high powered committee with a sitting Judge of the Supreme Court, to be nominated by the Chief Justice of India, as its Chairman. This was to ensure that the statutory framework of the tribunals, upon whom the stature of High Court is being vested should match the standards of the justice delivery by the latter. Thus, the partial exclusion of judicial review over the acts of Tribunals was allowed in this case. However, it was later noted by the Andhra Pradesh High Court that the judges in this cases did not mean that the tribunals have stepped into the shoes of the High Court through Articles 226 and 227.[xxi]In Union of India v Parmanand,[xxii] The Supreme while exercising jurisdiction under Article 136 ruled that the Central Administrative Tribunal constituted under the Administrative Tribunals Act, 1985 had the authority to decide constitutionality of service rules. While holding so, the Supreme Court had thrown light upon the powers of the tribunals. It was held that the tribunals enjoy the power of judicial review at par with the civil courts or the high court, it is neither less nor more. The judicial review by the superior courts of administrative actions is done on very specific and limited technical grounds namely, whether the action was on relevant considerations, if the decision was rendered sans considering any evidence, observance of the principles of natural justice. The Courts do not review whether the administrative body acting within its authority was proper in exercising discretion or appreciate the evidence. The Supreme Court through this judgement thus placed the administrative tribunals within the same limits as that of the High Courts, in case of exercising judicial review. Thereby restricting the role or function of the tribunals for, the question which arose in this case was with respect to the role of function of the tribunals and the Court ruled on its power, jurisdiction and authority. It interchanged these two varied concepts. This difference is reflected upon perusing sections 14[xxiii] and 22[xxiv] of the Administrative Tribunals Act, 1985.[xxv]
The Andhra Pradesh High Court[xxvi] observed that due to the ruling of Keshavananda Bharati v State of Kerala, 1973 the Parliament of India under Article 368 cannot make a law which abrogates the basic structure of the constitution. Since, Article 323-A (2) (d) allows the Parliament to make a law abrogating one of the prongs of the basic structure of the constitution that is the power of judicial review of the High Court under Article 226, it is against the spirit of the Constitution and hence is declared to be unconstitutional.
The question that whether the central Administrative Tribunal is duty bound by the rule framed under proviso to Article 309 by the President of India or has the power to strike it down if such rule strikes at Article 14 and 16(1) of the Constitution came up before the Supreme Court.[xxvii]The Bench relying upon the precedent laid down in Sampath Kumar’s case, held that, with the power to adjudicate and try all the disputes related to the recruitment and service conditions of government employees comes the power to determine the constitutional validity of laws offending Articles 14 and 16(1). The Sampath Kumar’s case had ruled that the Central Administrative Tribunals could determine the constitutional validity of Acts on the touchstone of Articles 14, 15 and 16.
Since tribunals established under the Administrative Tribunals Act, 1985 was considered a substitute of the High Court, the question whether the adjudicators of tribunals were to be treated at par with the judges of the high courts in all matters, particularly with respect to the pay parity came up before a Division of the Supreme Court in 1990.[xxviii]The Supreme Court answered in negative. It based its conclusion upon the reasoning that, the provisions of Article 323-A, the Administrative Tribunals Act, 1985 and the ruling of Sampath Kumar’s case do not indicate to draw an inference that the adjudicators of a tribunal are at par with the judges of the high courts in all matters. It is only with respect to the adjudication of service matters that the tribunals are to be equated with the high courts.
In R.K. Jain v Union of India,[xxix] a three-judge bench of the Supreme Court reiterated that the power of judicial review formed the basic structure of the constitution and that the tribunals are not equivalent to and substitutes of high courts with respect to exercising jurisdiction under Article 226 and 227 of the Constitution of India. The Court, however, expressed dissatisfaction with the working of the tribunals constituted under the Administrative Tribunals Act, 1985 and the fact that the decisions of the tribunals could be appealed only by way of Article 136, which is again not a right to appeal, it is upon the discretion of the Supreme Court whether or not to hear the appeal. Also, this system proved to be ineffective owing to its heavy costs and inconvenience in travelling. It was suggested that an expert body like the Law Commission of India should study the feasibility of providing an appeal to a Bench of two judges of the concerned high court from the orders of such tribunals, and also analyse the working of the tribunals since their establishment, the possibility of inducting members of the Bar to such tribunals etc. It was hoped that these recommendations are implemented at the earliest so that the tribunals are made capable of dispensing effective, inexpensive, and satisfactory justice.
This case proved to be a turning point in the jurisprudence with respect to functioning of administrative tribunals. The courts which defended the actions of the legislature by making an expansive and liberal interpretation of the meaning of ‘judicial review’ at this point felt the need of reassessment
In L.Chandrakumar v Union of India, 1997[xxx]the understanding of the judiciary with respect to the role played by the tribunals while performing the judicial functions of the State underwent a sea change. The court regarded the tribunals as supplemental to and not substitutes of High Courts. The practice of bypassing the jurisdiction of the High Court was ordered to be curtailed and henceforth the decisions of the administrative tribunals could be scrutinized by the Division bench of the High Court. Also, that the validity of the statute under which the tribunals are created could not be examined by the administrative tribunals and the appropriate High Court would become the court of first instance. Barring cases where the constitutionality of the parent Act is challenged, all questions regarding services must be raised only before an administrative tribunal, and writ or an appeal, as the case may be, would lie against an administrative tribunal’s decision to a High Court having jurisdiction over it. A Special Leave Petition under Article 136 could be filed before the Supreme Court from the decision of the Division Bench of the High Court.
Notably, the court while determining the question of composition of the tribunals held that the members of the tribunal having an expertise in both administration and judiciary would enable efficient functioning of the tribunals while dispensing service matters. With respect to the exercise of superintendence by the High Court, the court expressed reluctance to restore it under Article 227, rather it suggested that superintendence could be exercised by a nodal department of the government, preferably the Ministry of Law. The Court was hopeful that an independent nodal ministry would be set up for this purpose.
With these observations, the Supreme Court declared Section 28 of the Administrative Tribunals Act, 1985, Article 323-A(2)(d) and Article 323-B(3)(d) of the Constitution as amended by the Constitution (42nd Amendment) Act, 1976 as ultra-vires and unconstitutional as they destroyed the basic structure of the Constitution.
The Courts thus did not let the legislature decide the limits of their extraordinary jurisdiction even when such was to be exercised by another limb of the judiciary itself.
It is a set practice, as far as judicial interpretation is concerned, that the ouster or finality clauses are interpreted in the strictest manner possible.
The 272nd Law Commission of India Report titled, “Assessment of Statutory Frameworks of Tribunals in India” published in 2017 had made an observation that the consequences of the decision of Supreme Court in L.Chandrakumar v Union of India, were dismaying as Articles 226 and 227 were made applicable to the decisions of the administrative tribunals. The Haryana and Karnataka Government were sceptical about the functioning of their respective State Administrative Tribunals in this altered scenario hence sought to abolish it as, the lack of uniformity in the High Court decisions and consequently in CAT benches will create
confusion in the mind of the litigant. It will further make the public lose faith in seeking justice through the judiciary, and thus undermine the democratic norms.
In Gujarat Urja Vikas Nigam Ltd v Essar Power Ltd.[xxxi] the Supreme Court inter alia, asked the Law Commission of India to examine the possibility of “routine appeals to the Supreme Court affecting the constitutional role assigned to the Supreme Court, direct statutory appeals to the Supreme Court from the order of Tribunals bypassing the High Courts and to exclude jurisdiction of all the Courts in absence of equally effective alternative mechanism for Access to Justice at grass root level.”
The recommendations of the 272nd law Commission report suggest that, whenever the jurisdiction of an ordinary court is sought to be ousted an equally effective mechanism must be provided. Thus indicating that the curtailment of power of judicial review is a possibility under the Constitution of India provided however, the counterparts of courts have equivalent capacity. For this it gave various suggestions for ensuring independence and effectiveness in the working of the administrative tribunals.
At this juncture it is apt to quote S.A DE Smith, “This points to the conclusion that only by an exceptionally strongly worded formula can Parliament effectively deprive the superior courts of power to award any of the common law or equitable remedies which they dispense to keep inferior tribunals within their jurisdiction. On the other hand, a right of appeal to the courts, which is a creature of statute, may be taken away by much weaker formulae. And where no appeal is provided for from the decisions of a tribunal, the courts are chary of seeming to assume an appellate jurisdiction under the guise of exercising a supervisory jurisdiction.”[xxxii]
The Indian traditional court system due to its inherent procedural commitments hampers the speedy justice and the rule of law cannot be upheld in the backdrop of such justice delivery system.
The Tribunals were setup to be at par with the high courts with respect to adjudication of service disputes, but with judicial intervention and legislative amendments they have now become the counter parts of the lower courts. The Administrative Tribunals (Amendment) Bill, 2006 seeks to further weaken their position as it allows the Government to abolish the Administrative Tribunals and deprive the tribunals of the power to initiate contempt proceedings and exercise contempt jurisdiction. With these developments the administrative tribunals have become a mere formality and the objective behind their establishment is frustrated. The administrative tribunals in India could therefore, effectively adjudicate, without hampering the constitutional ideals, under the Administrative Tribunals Act, 1985 before the ruling of L.Chandrakumar v Union of India, 1997.
The restoration of their powers and reinforcement of finality in their decisions is the need of the hour.
(Authored by Divyashree R Dacha, post graduate student at Maharashtra National Law University, Aurangabad.)
[i] The Constitution of India, 1949 Article 323-A(2) (d) – exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to the disputes or complaints
referred to in clause (1).
[ii] The Constitution of India, 1949 Article 323-B(3)(d) – exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to all or any of the matters falling within the jurisdiction of the said tribunals.
[iii] The Administrative Tribunals Act, 1985 Act No. 13 of 1985 Section 28. Exclusion of jurisdiction of courts except the Supreme Court under article 136 of the Constitution.
[iv] The Constitution of India, 1949 Article 12. Definition of State
[v] The Constitution of India, 1949 Article 14. Equality before law.
[vi] The Constitution of India, 1949 Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
[vii] The Constitution of India, 1949 Article16. Equality of opportunity in matters of public employment.
[viii] The Constitution of India, 1949 Article 309. Recruitment and conditions of service of persons serving the Union or a State.
[ix] The Constitution of India, 1949 Article 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State
[x] The Constitution of India, 1949 Article 226. Power of High Courts to issue certain writs.
[xi] The Constitution of India, 1949 Article 227. Power of superintendence over all courts by the High Court.
[xii] K. I. Vibhute, Administrative Tribunals and the High Courts: A Plea for Judicial Review 29 JILI 524
[xiii] The Constitution of India, 1949 Article 136. Special leave to appeal by the Supreme Court.
[xiv] The Constitution of India, 1949 Article 32. Remedies for enforcement of rights conferred by this Part.
[xv] 272nd Law Commission of India Report, Assessment of Statutory Frameworks of Tribunals in India, 2017.
[xvii] The Administrative Tribunals Act, 1985 Act No. 13 of 1985 Brief Summary (January 9, 2021, 3.09 PM), https://dopt.gov.in/sites/default/files/Summary_ATAct_1985_15Dec2014.pdf.
[xviii] Supra note 16.
[xix]1987 AIR 386.
[xx] The Administrative Tribunals Act, 1985 Act No. 13 of 1985 Ss. 4, 5, 6, 28.
[xxi] Sakinala Harinath v State of A.P., (1994) 1 APLJ (HC) 1.
[xxii]3 AIR 1989 SC 1185.
[xxiii] The Administrative Tribunals Act, 1985 Act No. 13 of 1985 Section 14. Jurisdiction, powers and authority of the Central Administrative Tribunal.
[xxiv] The Administrative Tribunals Act, 1985 Act No. 13 of 1985 Section 21. Limitation.
[xxv] Anupa v. Thapliyal, Role of the Central Administrative Tribunal: Whether Confined to Judicial Review?, (1990) 1 SCC (Jour) 11.
[xxvi] Supra note 3.
[xxvii] J.B. Chopra and Ors v UOI, AIR 1987 SC 357.
[xxviii] M.B. Majumdar v UOI, AIR 1990 SC 2263.
[xxix] (1993) 4 SCC 119.
[xxx](1997) 3 SCC 261: AIR 1997 SC 1125.
[xxxi](2016) 9 SCC 103.
[xxxii] S.A DE Smith, The Statutory Restriction of Judicial Review, 18 MOD. L. REV., 580, 575-594 (1955).