Since its inception, India has adopted the doctrine of separation of powers, which essentially divides the government into three branches: the legislature, the executive and the judiciary, which are responsible for making the law, implementing the law, and interpreting the law respectively. However, the establishment of a welfare state has greatly increased the government’s sphere of influence to include social security and welfare schemes, such as free or subsidized healthcare and education, rationed food etc. This, in turn, implies a larger number of institutions that are liable to sue or be sued, which inevitably leads to a highly increased workload for the judiciary.
These new cases were interdisciplinary, consisting of elements of social, cultural, and economic importance that were sometimes beyond the black-and-white of legal jargon. The judicial infrastructure, by itself, was not set up to tackle such cases and was found to be inefficient to dispose of these cases swiftly, leading to a huge backlog of cases in courts all around the country. Therefore, a need was felt to introduce quasi-legislative and quasi-judicial institutions that would be better suited to adjudicate on certain important state and central matters, which might not always be strictly legal. Tribunals are thus constituted as a combination of legal professionals and other experts in the areas on which the tribunals are to adjudicate, to ensure a fair, representative and expeditious resolution of cases.
The word ‘tribunal’ has been defined in various judgments and texts over the years. In Durga Shankar Mehta v. Raghuraj Singh, the Supreme Court defined a tribunal to include all adjudicating bodies constituted by the State and invested with judicial functions. It was said that tribunals were not the same as a court.1 In Associated Cement Co. Ltd. v. P. N. Sharma, the Supreme Court stated that while a tribunal may possess some of the qualities of a court, they are not interchangeable terms. As far as functionality goes, an administrative tribunal is neither exclusively judicial nor solely administrative, but an amalgamation of both.2 In general, the word ‘tribunal’ has taken on the meaning of a quasi-judicial body that is specially instituted to adjudicate on and resolve administrative or tax-related disputes.
Till 1976, tribunals were not officially recognized by the Constitution of India. They were introduced by the 42nd Amendment Act, 1976, under Article 323A, which deals with administrative tribunals, and 323B, which deals with tribunals related to other matters. Article 323A states that the Parliament may provide for the adjudication of issues concerning the recruitment and conditions of service of people employed under public services by administrative tribunals. In pursuance of Article 323A of the Indian Constitution, the Administrative Tribunals Act, 1985 was set up, aiming to provide an infrastructure other than the judiciary to adjudicate on matters relating to public services. Section 4 of the Act enumerated three kinds of administrative tribunals. Section 4(1) provides for the establishment of the Central Administrative Tribunal (CAT) at the level of the Centre, Section 4(2) for tribunals at the state level, and lastly, Section 4(3) for joint tribunals for two or more states, called the Joint Administrative Tribunal (JAT).3
Difference Between Courts and Tribunals
While both courts and tribunals are designed to adjudicate legal matters, there are certain essential differences. While courts are part of the judicial system, tribunals are agents of the judicial system. Courts can try all suits whereas tribunals can only adjudicate on specific issues. Further, a court of law is bound by the procedural framework and the law of evidence while a tribunal is not, and functions based on the principles of natural justice.
Can tribunals substitute the high courts’ power of judicial review?
Through Section 28 of the Administrative Tribunals Act of 1985, the power of judicial review had been taken away from the Supreme Court as well as the High Courts, as envisaged under Clause 2(d) of Article 323-A of the Constitution. While the Supreme Court was granted its power of judicial review back in 1986, the High Courts still had no jurisdiction, which was in other cases granted to it under Article 226 of the Constitution. The constitutional validity of such a provision was challenged and expounded upon in the case S. P. Sampath Kumar v. Union of India. As regards the question of whether the jurisdiction of High Courts under Article 226 could be taken away, the Supreme Court referred to the case Minerva Mills Ltd. & Ors. v. Union of India & Ors., wherein it was held that the jurisdiction of the High Courts could only be limited if an equally efficacious alternative was put into effect.
he Court held that since the administrative tribunals are supposed to substitute the High Courts, they must be comprised of competent personnel who have had sufficient legal training and knowledge to be on par with the High Court judges. Therefore, it was decided that only a previous High Court judge or a vice-chairman of a tribunal with an experience of two or more years could become the Chairman of a tribunal. It was concluded that while the Supreme Court will retain its original and appellate jurisdiction, the tribunals will substitute the High Courts.4 However, this judgment was overturned by a 7-judge bench in the case L. Chandrakumar v Union of India & Ors.
The Court held that the power of judicial review that has been granted to the High Courts under Article 226 of the Constitution is a part of its basic structure and therefore cannot be done away with. It was therefore held that the tribunals could in no way substitute the jurisdiction of the High Courts and can only supplement and support them in their functions. The tribunals will function under the supervision of the High Courts, where decisions of the tribunals will be capable of being appealed.5
Flaws in the Tribunals System
While the idea behind establishing administrative tribunals to act as supplements to higher judiciary sounds good, the on-ground implementation of it has fallen short. The arbitrariness of conduct in tribunals, a lack of a standardized procedure, as well as the method of appointment of personnel, has contributed to the incompetence of these institutions and a failure to garner public support. Unlike Courts, the tribunals are not independent and are subject to executive control, even in the appointment of members, which is why experts and qualified professionals are often hesitant to join them, contributing to the overall incompetency. More often than not, the mandatory judicial quota of the tribunal membership is taken up by retired judges who are not acquainted with modern legislation or other judges who are incompetent for the HC and the SC and use tribunals as stepping stones to angle the trajectory of their careers upwards.
The restrictions on appointments are such that experts in the field who will truly be able to do justice to a problem have no way in. For example, in 2021, the National Company Law Tribunal appointed retired District judges as well as other field professionals, who are unequipped to deal with dynamic corporate law problems. The minimum age requirement of 50 years made the practicing experts in the fields of company law, insolvency law, etc., who would have ensured speedy and efficient management of cases, ineligible for being appointed. On top of this, most tribunals have major vacancies and no active effort is made to fill them. All this results in negating the purpose of establishing tribunals in the first place, as it neither manages to serve justice nor reduce the burden on the Courts. The government directs district courts to pick up the overflowing work from these tribunals, essentially giving rise to a roundabout system of what would have happened had the tribunals never been established.
A majority of the decisions taken by tribunals, even those in which the government is involved, are appealed in the higher courts that usually overturn the tribunals’ decisions. It is hard, in this scenario, to appreciate the value of tribunals in fulfilling their purpose. While they are meant to supplement the High Courts, neither the personnel nor the judicial acumen, nor the confidence in judgments, is comparable to those of the High Courts.6 Another major issue is that tribunals are heavily controlled by their respective ministries as they are dependent on them for funding, infrastructure and administration.
Therefore, certain tribunals such as the Debt Recovery Tribunal, which functions under the Ministry of Finance, and the Armed Forces Tribunal, which functions under the Ministry of Defence, often find themselves bound by a double obligation as they might have to pass orders against the ministry itself from which it sustains itself. This may sometimes cause a failure of justice.
A report titled “Reforming the Tribunals Framework in India” by the Vidhi Centre for Legal Policy studied the work of 37 central tribunals and identified the lack of independence as a major limitation of Indian tribunals. Since the selection committee for the tribunals are also in part constituted by members of the executive, they do not enjoy the level of independence enjoyed by the judiciary, and the selection of members is often biased, arbitrary and unfair to play into the government’s interests. In the case Union of India v R. Gandhi, the Supreme Court stated that these selection committees must comprise both members of the judiciary as well as the executive in equal proportions. The report recorded that the precedent set out by the Apex Court is not being followed in practice, and suggested that an independent and autonomous body such as the National Tribunals Commission must be set up to supervise the establishment and administration of the tribunals.
The setting up of a body like the NTC was also supported by the Supreme Court in the case Rojer Matthew v South Indian Bank Ltd. & Ors. The NTC must ensure that the tribunals obtain their independence from the influence of other powers by prioritizing members of the judiciary. The report suggested the formation of a nine-member committee, of which five must be from the judiciary, in order to achieve this. The report also elaborated on a standardized entrance exam (All India Entrance Examination for Tribunals) for appointment to tribunals, thereby eliminating the risk of biases and enabling objectivity and uniformity in the appointment of members. Further, a single overarching body like the NTC shall remove non-uniformity in the administration of tribunals, as it will be the sole body overseeing the funding, functioning and efficacy of all the tribunals.7
In 2021, a Tribunals Reforms Bill (later passed) was introduced in the Lok Sabha by Nirmala Sitharaman which proposed the dissolution of certain appellate tribunals and delegating their functions to other judicial institutions. For example, cases under the Copyright Act will be heard by the Commercial Court of the Commercial Division of a High Court. It also recommends the merging of tribunals that work in the same domain to consolidate and standardize the administration of similar cases. The Bill also set the minimum age criteria for members at 50 years, and the maximum at 70 for the Chairperson and 67 for other members.8
- Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520
- Associated Cement Co. Ltd. v. P. N. Sharma, AIR 1965 SC 1595
- The Administrative Tribunals Act, No. 13, Acts of Parliament, 1985
- S. P. Sampath Kumar v Union of India, 1987 AIR 386
- L. Chandra Kumar v Union of India & Ors., 1995 AIR 1151
- Murali Neelakantan, Indian Tribunals – Is the Path to Hell Paved with Good Intention (?, SCC Online, 10 November 2022).
- Arijeet Ghosh & Reshma Sekhar, What We Can Do to Reform the Tribunals Framework in India, (The Wire, 10 November 2022).
This article is written by Aanya Sharma, currently pursuing law at Campus Law Centre, Faculty of Law, University of Delhi.