Tribunals and Tribunalization of Justice
- Original Constitution did not contain provisions with respect to tribunals.
- Added via 42nd Amendment Act of 1976 :
- Part XIV-A titled ‘Tribunals’
- Two Articles are related to this
|Article 323 A||Administrative tribunals|
|Article 323 B||Tribunals for other matters.|
1 . Administrative Tribunals
- Article 323 A empowers the
- Parliament to establish administrative tribunals for the adjudication of disputes relating to recruitment and conditions of service of persons appointed to public services of Center, states, local bodies, public corporations and other public authorities.
- In pursuance of Article 323 A, Parliament has passed the Administrative Tribunals Act in 1985 and established one Central administrative tribunal and state administrative tribunals.
- Benefit :
- Provide speedy and inexpensive justice to the aggrieved public servants.
- Reduced pendency of normal courts
1 . 1 Central Administrative Tribunal (CAT)
- Setup in 1985 with the principal bench at Delhi and additional benches in different states. At present 17 benches
- CAT exercises original jurisdiction in relation to recruitment and all service matters of public servants .
- Its jurisdiction extends to
- All-India services
- Central civil services
- Civil posts under the Centre
- Civilian employees of defence services.
However, members of the defence forces, officers and servants of Supreme Court and the secretarial staff of Parliament are not covered by it.
Composition of CAT
|Type||– Multi- member body : Chairman + members |
– Via Amendment to Administrative Tribunal Act, members have been given status of judges of High Court
|Strength||– 1 Chairman + 65 members |
– Members are drawn from both judicial and administrative streams and are appointed by President.
– They hold office for term of five years or until they attain age of 65 years in case of chairman and 62 years in case of members, whichever is earlier.
Other points regarding CAT
- Tribunals do not have to follow procedure as laid down under Civil Procedure Code & under Indian Evidence Act but they have to follow the principles of Natural Justice.
- Only a nominal fee of 50 is to be paid by the applicant.
- Applicant may appear either in person or through a lawyer.
- Originally, appeals against the orders of the CAT could be made only in the Supreme Court and not in the high courts. However, in the Chandra Kumar case (1997), SC declared this restriction on the jurisdiction of High Courts as unconstitutional. Now appeals against CAT decision lie with High Court.
1 . 2 State Administrative Tribunals (SATs)
- Administrative Tribunals Act of 1985 empowers the Central government to establish the State Administrative Tribunals (SATs) on specific request of the concerned state governments.
- So far (2013), SATs have been set up in the nine states of Andhra Pradesh, Himachal Pradesh, Odisha, Karnataka, Madhya Pradesh, Maharashtra, Tamil Nadu, West Bengal and Kerala. However, the Madhya Pradesh, Tamil Nadu and Himachal Pradesh Tribunals have since been abolished.
- Jan 2018 : Haryana setup SAT
- SATs exercise original jurisdiction in relation to recruitment and all service matters of state government employees.
- Chairman and members of the SATs are appointed by President after consultation with the Governor .
- The act also makes a provision for setting up of joint administrative tribunal (JAT) for two or more states.
2. Tribunals for other matters
Under Article 323 B, Parliament and State Legislatures are authorised to provide for establishment of Tribunals for the adjudication of disputes relating to :
- Foreign exchange, import and export
- Industrial and labour
- Land reforms
- Ceiling on urban property
- Elections to Parliament and state legislatures
- Food stuffs
- Rent and tenancy rights
Articles 323 A and 323 B differs in following three aspects
- While Article 323 A contemplates establishment of tribunals for public service matters only, Article 323 B contemplates establishment of tribunals for certain other matters (mentioned above).
- 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
- Under Article 323 A, only one tribunal for the Centre and one for each state or two or more states may be established. There is no question of hierarchy of tribunals, whereas under Article 323 B a hierarchy of tribunals may be created.
In Chandra Kumar case (1997), the Supreme Court declared those provisions of these two articles which excluded the jurisdiction of the high courts and Supreme Court as unconstitutional. Hence, the judicial remedies are now available against the orders of these tribunals. (In case of Tribunals other than CAT, direct appeal can be made to Supreme Court)
Issue : Tribunalization of Justice
First tribunal was set up in India 25 years ago to take the load off high courts. At last count, there are 93 specialised tribunals in India .
Benefit of Tribunals
- Tribunals were established with the object of providing a speedy and cheap determination of disputes
- Relief to Courts: system gives the much-needed relief to ordinary courts of law, which are already overburdened with numerous suits.
- Specialised Body to adjudicate on special and technical issues as tribunals are manned by judicial as well as technical members.
- Flexibility : They do not have to follow any uniform procedure as laid down under the Civil Procedure Code and the Indian Evidence Act but they have to follow the principles of Natural Justice.
Problems with Tribunalisation of Justice
- Against Doctrine of Separation of Powers :
- Tribunals are part of Executive and their creation to adjudicate matters means shifting powers of adjudication from Judiciary to the Executive
- Article 50 (DPSP) : Separation of Judiciary from Executive
- Increased the workload of Supreme Court : Government has made a provision that appeal from the decisions of such tribunals shall lie before the Supreme Court. Routine direct appeals to the highest court in commercial litigation affecting individual parties, without there being any issue of national importance, is overburdening Supreme Court=> matters of constitutional importance are not getting the due priority
- Conflict of Interest : Central Government has power to appoint the members of the tribunal and in large number of cases, Central Government itself is the stakeholder in the cases before the tribunal.
- Accessibility and Cost of Justice Issue : Tribunals are also not as accessible as high courts. For example,
- Environmental Tribunals : there are just four benches of the Green Tribunal for the whole country. In comparison, high courts were easily accessible for environmental matters.
- SEBI : A shareholder in Kerala or Northeast would have to travel to Mumbai to challenge any order by the SEBI.
- Undermining the Authority of Judiciary: Tribunals have largely replaced high courts for disputes under the various Acts. An aggrieved, by an order of an appellate tribunal, can directly appeal to the Supreme Court, side-stepping the High Court.
- 2015 Supreme Court judgment struck down the National Tax Tribunals (NTT) . Supreme Court said that the tribunal couldn’t decide “questions of law”, adding these could only be decided by constitutional courts.
- Tribunals do not follow any uniform procedures but principles of natural justice, adjudicators are unable to have a clear understanding of the procedures to be followed.
- Sidestepping high courts: as in some cases, an appeal against the order of an appellate tribunal can directly be filed in the Supreme Court.
- Tribunals should be made last word on facts and Supreme Court should restrict itself to the pure question of law.
- Law Commission of India (LCI) , in its 272nd report, has laid out a detailed procedure for improving the working of the tribunal system in the country
- Selection of the members of Tribunals should be impartial by Separate Selection Committee
- Chairman should hold office for 3 years or till he attains the age of 70 years
- Tribunals must have benches in different parts of the country so that people may have easy Access to Justice, ideally where the High Courts are situated
- In case of transfer of jurisdiction of High Court (or District Court) to a Tribunal, the members of the newly constituted Tribunal should possess the qualifications akin to the judges of the High Court (or District Court)