ASSESSMENT OF STATUTORY FRAMEWORKS OF TRIBUNALS IN INDIA, CHAPTER – I

INTRODUCTION

• 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.^[1]
• ‘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.^[2]
• The delay in justice administration, is one of the biggest obstacles which have been tackled with the establishment of Tribunals.^[3] According to H.W.R Wade, “The social legislation of the twentieth century demanded tribunals for purely administrative reasons; they could offer speedier, cheaper and more accessible justice, essential for the administration of welfare schemes involving large number of small claims. The process of Courts of law is elaborate, slow and costly….Commissioners of customs and excise were given judicial powers more than three centuries ago. Tax tribunals were in fact established as far back as the 18^th”^[4]
• In due course of time, a need for a system of adjudication has arisen which is more suited to give response to the emerging requirements of the society which may not be so elaborate and costly as provided by the Courts of law. The primary reason for the creation of Tribunals was to overcome the crisis of delays and backlogs in the administration of justice. Therefore, the Administrative Tribunals have been established to overcome the major lacuna present in the Justice delivery system in the light of the legal maxim Lex dilationes semper exhorret which means ‘The law always abhors delays’.^[5]

• The delay in disposal of cases relating to civil matters is significantly increasing arrears, and the courts seem helpless in this matter. “The necessities of the modern collectivist State with the aim of the creation of a socialist society are multipurpose”. The State has ceased to be neutral with the giving up of the philosophy of laissez faire and has become vigorous so as to affect every man in every sphere.^[6]
• To overcome the situation that arose due to the pendency of cases in various Courts, domestic tribunals and other Tribunals have been established under different Statutes, hereinafter referred to as the Tribunals. A ‘tribunal’ in the legal perspective is different from a domestic tribunal. The ‘domestic tribunal’ refers to the administrative agencies designed to regulate the professional conduct and to enforce disciple among the members by exercising investigatory and adjudicatory powers. Whereas, Tribunals are the quasi-judicial bodies established to adjudicate disputes related to specified matters which exercise the jurisdiction according to the Statute establishing them. Similarly, Ombudsman looks into the complaints of grievances suffered by the citizen at the hands of some organ of the administration.
• The increase in number of statutory Tribunals mirrors the rise in State activities. Because the legislation has progressively bestowed benefits on individuals and subjected their everyday lives to propagating control and management, the scope for dispute between an individual and the State has emerged.^[7] Tribunals are cheaper (cost effective) than Courts but their constitution and functions are different from the Courts.

However, a Tribunal is more suited than a Court to undertake the task after considering all relevant issues of law, fact, policy and discretion.^[8]

• According to Chantal Stebbings, “The reasons for the diversity, lack of coherence, uncertainty of status and inherent individual weaknesses which have rendered both theoretical analysis and practical reform so problems lie to a considerable extent in the historico-legal context of the statutory administrative tribunal as an institution in the nineteenth century.” He further adds, “The term ‘tribunal’, not being a term of art, referred to any dispute-resolution body or process, from the regular courts of law, through domestic bodies regulating clubs, societies and professions, to ministers making decisions in the course of their administrative duties.”^[9]
• According to Neil Hawke, “Administrative tribunals might well be referred to as ‘administrative courts’ since usually their task is to adjudicate disputes which arise from the statutory regulation of a wide variety of situations, some of which will involve decisions or other action by administrative agencies, or relationship between private individuals.”^[10]
• The Franks’ Report (1957) identified the advantages of Tribunals as ‘cheapness (cost effectiveness), accessibility, freedom from technicality, expedition and expert knowledge of their particular subject.’ It enumerated three broad principles that should govern the operation of the Tribunals as well as the planning inquiries, which are openness, fairness and impartiality in the following words:

‘Tribunals are not ordinary courts, but neither are they appendages of Government Departments. Much of the official evidence … appeared to reflect the view that tribunals should properly be regarded as part of the machinery of administration, for which the Government must retain a close and continuing responsibility. Thus, for example, tribunals in the social services field would be regarded as adjuncts to the administration of the services themselves. We do not accept this view. We consider that tribunals should properly be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration. The essential point is that in all these cases Parliament has deliberately provided for a decision outside and independent of the Department concerned, either at first instance … or on appeal from a decision of a Minister or of an official in a special statutory position… Although the relevant statutes do not in all cases expressly enact that tribunals are to consist entirely of persons outside the Government service, the use of the term ‘tribunal ’ in legislation undoubtedly bears this connotation, and the intention of Parliament to provide for the independence of tribunals is clear and unmistakable.’ ^[11]

• According to Robin Creyke, “Tribunals generally have more speedy processes and less formal procedures than courts, including an absence of any requirement to follow rules of evidence. Tribunals are generally cheaper than Courts and there may be limits on legal representation in Tribunal hearings.”^{[12] [13]}
• As per Robson, “administrative tribunals do their work more rapidly, more cheaply, more efficiently than the ordinary courts .. possess greater technical knowledge andfewer prejudices against government; … give greater heed to the social interests involved .. decide disputes with conscious effort at furthering the social policy embodied in the legislation I”¹³¹
• The Tribunals have the power to adjudicate over a wide range of subjects that impact everyday life. Tribunals function as an effective mechanism to ameliorate the burden of the judiciary. The law Courts with their elaborate procedures, legalistic fronts and attitudes were deemed incapable of rendering speedy and affordable justice to the parties concerned. Particularly in technical cases, it was felt that the nature of the statutes required adjudicatory forums comprising of persons having expert knowledge of the working of these laws. The Tribunals emerged not with the sole promise of speedy, effective, decentralised dispensation of justice but also the expertise and knowledge in specialised areas that was felt to be lacking in the judges of traditional Courts.¹⁴ According to M. C. J. Kagzi, “The provisions declaring the proceedings before the tribunaljudicial proceedings, giving it the powers of a civil court for certain procedural matters, and requiring it to hear the parties go to prove that the tribunal is required to act judicially and not mere judiciously,”¹⁵
• The Law Commission of India in its 14^th Report (1958) titled “Reform of Judicial Administration ” recommended the establishment of an appellate Tribunal or Tribunals at the Centre and in the States. Later, in its 58^th Report (1974) titled ‘Structure and Jurisdiction of the Higher Judiciary’, the Law Commission urged that separate high powered Tribunal or Commission should be set up to deal with the service matters and that approaching the Courts should be the last resort.
• The High Court Arrears Committee set up under the chairmanship of Justice J. C. Shah (1969), recommended for setting up of an independent Tribunal to handle service matters pending before the High Courts and the Supreme Court. Later on, the Swaran Singh Committee which was appointed to study, ‘the required changes in fundamental laws’, recommended in 1976 that the Administrative Tribunals may be set up under a Central law, both at the State level and at the Centre to decide cases relating to service matters.
• Based on the recommendations of the Swaran Singh Committee, Part XIV-A was added by the Constitution (Forty-second Amendment) Act, 1976, titled as ‘Tribunals’ which provided for the establishment of ‘Administrative Tribunals’ under Article 323-A and ‘Tribunals for other matters’ under Article 323-B. The main objective of establishing Tribunals as set out in the Statement of Objects and Reasons of The Constitution (Forty-Second Amendment) Act, 1976 is as under:

‘To reduce the mounting arrears in High Courts and to secure the speedy disposal of service matters, revenue matters and certain other matters of special importance in the context of the socio-economic ^{[14] [15]} development and progress, it is considered expedient to provide for administrative and other tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in regard to such matters under article 136 of the Constitution.’

• With the enactment of Administrative Tribunals Act, 1985, a large number of cases relating to service matters pending before various Courts were brought within the jurisdiction of the Tribunals. Administrative Tribunals created under Article 323A have been freed from technical rules of Indian Evidence Act, 1872 and procedural shackles of the Code of Civil Procedure, 1908 but, at the same time, they have been vested with the powers of Civil Court in respect of some matters including the review of their own decisions and are bound by the principles of natural justice.^[16]
• The Tribunal has to exercise its powers in a judicious manner by observing the principles of natural justice or in accordance with the statutory provisions under which the Tribunal is established. There may be a lis between the contending parties before a statutory authority, which has to act judiciously to determine the same. There may not be a lis between the contending parties, the tribunal/authority may have to determine the rights and liabilities of the subject. In both the situations, it will be known as a quasi-judicial function. The word ‘quasi’ means ‘not exactly’. “Where a statutory authority is empowered to take a decision which affects the rights of persons and such an authority under the relevant law required to make an enquiry and hear the parties, such authority is quasi-judicial and decision rendered by it is a quasi-judicial act.”^[17]
• The Law Commission of India in its 124^th Report (1988) titled ‘The High Court Arrears – A Fresh Look’, while taking note of the recommendations of “The High Courts Arrears Committee” (1969) observed that:

‘1.15. … It is here a germ for the first time of creating specialist Tribunals as alternatives to the High Court with a view to curtailing the jurisdiction of the High

Court to control the inflow of work which may indirectly help in tackling the problem of arrears and backlog of cases. …

1.21. … The Law Commission is of the firm view that, wherever possible, proliferating appellate and wide original jurisdiction should be controlled or curtailed without impairing the quality of justice. .

1.27. To sum up, the approach of the commission is to reduce number of appeals, to set up specialist courts/tribunals, simultaneously eliminating the jurisdiction of the High Court which, when translated into action by implementing the reports submitted by the present Law Commission, would, on a very superficial assessment, reduce the inflow of work into the High Court by nearly 45% of its present inflow.’ [Emphasis added]

• The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in paragraph 13.3 of its Seventeenth Report on the Administrative Tribunals (Amendment) Bill, 2006, observed that “….After making the provision for an appeal to the High Court, the very purpose for which this Central Administrative Tribunal was constituted, will be defeated because these were constituted for a specific purpose that employees should get the speedy remedy and the High Courts should not be over-burdened.”
• The Law Commission in 215^th Report (2008) titled “L. Chandra Kumar be revisited by Larger bench of Supreme Court of India”, pointed out that the Administrative Tribunals were conceived and constituted as an effective and real substitute for the High Courts as regards service matters are concerned. The power of judicial review of the High Courts cannot be called as inviolable as that of the Supreme Court. The very objective behind the establishment of the Administrative Tribunals will stand defeated if all the cases adjudicated by them have to go before the concerned High Court. However, the Commission did not record any explanation/reason as to how the power of judicial review of the High Court could be less inviolable than the Supreme Court, particularly after the seven-Judge Bench judgment in Chandra Kumar v. Union of India.  ^[18] 1.22. In Gujarat Urja Vikas Nigam Ltd v. Essar Power Ltd}⁹ the Supreme Court of India made a reference to the Commission to examine and submit a Report pertaining to various issues relating to the Tribunals with regard to persons appointed, manner of appointment, duration of appointment etc., 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 reference is in the following words:

‘The questions which may be required to be examined by the Law

Commission are:

1. Whether any changes in the statutory framework constituting various Tribunals with regard to persons appointed, manner of appointment, duration of appointment, etc. is necessary in the light ofjudgment of this Court in Madras Bar Association (Supra) or on any other consideration from the point of view of strengthening the rule of law ?
2. Whether it is permissible and advisable to provide appeals routinely to this Court only on a question of law or substantial question of law which is not of national or public importance without affecting the constitutional role assigned to the Supreme Court having regard to the desirability of decision being rendered within reasonable time?

• Whether direct statutory appeals to the Supreme Court bypassing the High Courts from the orders of Tribunal affect access to justice to litigants in remote areas of the country?

1. Whether it is desirable to exclude jurisdiction of all courts in absence of equally effective alternative mechanism for access to justice at grass root level as has been done in provisions of TDSAT Act (Sections 14 and 15)?
2. Any other incidental or connected issue which may be considered appropriate?’

1.23. It is in this backdrop, the Commission has to consider and answer the questions raised by the Supreme Court in respect of constitution of Tribunals, appointment of ^[19]

their respective Chairman and members and their service conditions. Further, whether power of Judicial Review, a basic feature of the Constitution conferred upon the High Courts under Articles 226 and 227 of the Constitution can be diluted or taken away totally denying the litigants right to approach the High Court in writ jurisdiction against the jurisdiction and order of the Tribunal and also, whether such litigants should not have a right of statutory appeal against an order of the Tribunals, as providing the remedies under Article 136 of the Constitution is admittedly not a right of Appeal rather a means to approach the Supreme Court and it is the discretion of the Supreme Court to entertain the petition or not.

^[1] Walker, David M., Oxford Companion to Law, Oxford University Press, ISBN 0-19-866110-X, 1980 at p.1239.

^[2] Kagzi, M.C.J, The Indian Administrative Law, Metropolitan Book Co. Pvt. Ltd., Delhi, 3^rd edn., 1973 at pp. 276 and 279.

^[3] Sinha, S. B., “Judicial Reform in Justice-Delivery System” (2004) 4 SCC (Jour) 35.

^[4] Wade, H.W.R & Forsyth, C.F., Administrative Law, Oxford University Press, United Kingdom, 10^th edn., 2009 at p. 773.

^[5] K. I. Vibhute, “Administrative Tribunals and the High Courts: A Plea for Judicial Review” 29 JILI 524 (1987).

^[6] Supra Note 2 at 271.

^[7]  Elliott, Mark, Beatson, Jack, Matthews, Martin, Administrative Law: Text and Materials, Oxford University Press, New York, 3^rd edn., 2005 at p. 679.

^[8] Groves, Matthew, Lee, H. P., Australian Administrative Law: Fundamentals, Principles and Doctrines, Cambridge University Press, New York, 1^st edn., 2007 at p. 77.

^[9]  Stebbings, Chantal, Legal Foundations of Tribunals in Nineteenth Century England, Cambridge University Press, New York, 1^st edn., 2006 at p. 3.

^[10] Hawke, Neil, Introduction to Administrative Law, Cavendish Publishing Limited, United Kingdom, 1^st edn., 1998 at p. 65.

^[11] Drewry, Gavin, “The Judicialisation of Administrative Tribunals in the UK: From Hewart to Leggatt” 28 TRAS 51 (2009).

^[12] Supra Note 7.

^[13] Supra Note 2 at 284.

^[14] Jain, M.P., Jain, S.N., Principles of Administrative Law 1989, Lexis Nexis, India, 7^th edn., 2011 at p. 1996.

^[15] Supra Note 2 at 279.

^[16] Basu, Durga Das, Commentary on the Constitution of India, Lexis Nexis, New Delhi, 8^th edn., 2011 at p. 10650; See also, State of West Bengal v. Kamal Sengupta, (2008) 8 SCC 612.

^[17] Quasi-Judicial, Justice (R) Shabbir Ahmed, available at:

http://sja.gos.pk/assets/articles/Quasi%20Judicial.pdf (last visited on 25-09-2017); See also Rex v. Electricity Commissioners, (1924) 1 KB 171.

^[18] AIR 1997 SC 1125.

^[19] (2016) 9 SCC 103.