Very high degree of importance is being given to access to justice under our constitution, with access to court being synonymous to access to justice.
The central question which researcher tries to answer through this submission is, whether by surpassing the jurisdiction of High Courts establishment of tribunals have violated basic structure on following counts i.e.
- Federalism: – as the scheme for federal structure was envisaged even in Judicial Hierarchy as well, while High courts remain to be highest court in the state and not being subordinate to Supreme Court that is apex court in the nation.
- Judicial Review: – The power conferred on High Courts to examine constitutional validity legislative act, as well as to exercise judicial superintendence over the tribunals and courts within their jurisdiction.
- Separation of Powers: – Tribunals usually meet the demand of having technical and administrative members in it. These members are being appointed by the executive, and may even consist of members of executive. Further Tribunal very often acquire their sponsorship from the department, against which the matters will be brought to the tribunal itself, thus lis might exist. Thus appointment by executive for performance of judicial functioning can be seen to be in violation of doctrine of separation of Power, and on extension be seen as violation of judicial independence.
Case for Tribunal System in India
In order to reduce the workload of the Court, and also to expedite the process of decision making, before a forum comprising of experts in addition to lawyers, need to Tribunals was being realised. Especially in an era where myriad number of activities are being undertaken by the Government in various sectors, the need for availing services by people having specialized knowledge in these fields was being realised, for speedier and more effective administration of justice. [1]With Forty-second amendment act of 1976, Government took major step towards revamping the method of adjudication in the country, and Art. 323-A & 323-B were being introduced to the constitution. Through this amendment establishment of Administrative Tribunals for adjudicating in certain matters as specified was being made possible, both by Parliament as well as State Legislation. [2]
What is “Tribunal”?
The definition of word “Tribunal” does not exist in any statute, but Supreme Court has on various occasion tried to define what Tribunal might mean. In Jaswant Sugar Mills Ltd., Meerut v. LakshmiChand, it laid down that in order whether particular body which is required to act judicially can be classified as Tribunal or not, is that whether that particular authority has trappings of a Court, such as authority to compel witness, follow principles of evidence, power to impose sanctions. [3]While a court may be bound by strictly prescribed rules of evidence and procedure, Tribunals may enjoy liberty in the same regards. Thus they are not bound by all the trappings of the court.
Federalism
Background to the issue:-
On bare reading of Section 28 of Administrative Tribunals Act, 1985 it becomes explicit it was legislative intent to exclude the jurisdiction of High Courts debarring it from adjudicating and/or entertaining complaints in relation to service matters. Further it must be noted in this regards that the right to appeal is statutory right tracing itself to certain statute, and cannot be demanded as a matter of natural or inherent or any other right. In order for right to appeal to exist it must be traced back to statute books, relevant on herein is the Constitutional Framework. Right to appeal cannot be created by any agreement between the parties whatsoever or even by the court, as conferring of jurisdiction on courts is legislative function, and right to appeal can circumscribed by the conditions.
Thus in fact denying the High Court jurisdiction to entertain the dispute even for questions involving constitutional validity, would amount to bypassing the jurisdiction of High Court, and thus would be hitting the Federal aspect in Judiciary as being envisaged.
Background to power: –
Article 227 of Indian Constitution confers power on High Court to superintend all the courts and tribunals within their jurisdiction. The power so conferred is not limited for the purposes of enforcement of fundamental rights under part III but also extends for legal rights. This power so conferred is being exercised by use of prerogative writ, and is exclusive in nature, thus cannot be conferred to any other body except by amendment to constitution. Judicial mechanism as being envisaged by constitutional framers to check excess of legislative and executive power has been done to instil sense of confidence and faith in people. This lies to root of giving the high court superintendent over tribunals.
Supreme Court’s Take on the issue
Supreme Court dealt with the issue of exclusion of jurisdiction of High Courts under Art 226 & 227 by Art 323 A & 323 B in L Chandra Kumar, and held such exclusion was unconstitutional.[4] While declaring that jurisdiction so conferred on High Court to be inviolable part of basic structure, the same cannot be ousted. And at best the tribunals can be formed to supplement the courts in discharging the power so conferred to High Courts under constitution. Thus though art 323 A and 323 B may confer power to check constitutional validity of statutory provision and rules, yet such decision so taken will still be under radar of High Court and can be subjected to scrutiny by Division Bench of High court having territorial jurisdiction.
Thus power being conferred to High Court for purpose of superintendence over tribunals, was being recognized and overriding effect of Articles 323 A and B was annulled, for the reason being even with exclusion of jurisdiction clause conferring exclusive jurisdiction to Supreme Court, the jurisdiction of High to Judicial review under Article 227 cannot be denuded.
Reservations expressed to Supreme Court’s Decision
The purpose of formation of tribunals was to reduce the work load of the high courts, and provide expedite justice, but if appeals from tribunals are being preferred to high court in a routine manner the same will go on defeating the purpose of setting up tribunals at first place. As a remedy in Supreme Court from the decisions of Tribunal is anyways guaranteed and appeal to high court will only go lengthening the process of delivery justice.
Separation of Powers
Case for Appointment of Technical Members:-
Tribunals have been established with the object of discharging quasi-judicial duties by acting judicially which differentiates them from other administrative bodies. A Tribunal is neither a Court nor an executive body, but they have an obligation to act judicially. Tribunals are endowed with the judicial functions as distinguished from purely administrative or executive functions. Thus, for the efficient and effective working of these Tribunals, persons who have served in the higher judiciary should be appointed in accordance with the principles laid down by the Constitutional Courts.
If the Tribunals are intended to serve an area which requires specialised knowledge or expertise, the appointment of Technical members in addition to judicial members must always be welcomed, as they can provide an input which may not be available with the judicial members.
Doctrine of Separation of Powers:-
In most basic terms Doctrine of Separation of prescribes exclusiveness amongst different organs of the government i.e. legislature, executive, and the judiciary. Though in the Indian context this doctrine has not been recognized in strict terms, the assumption of functions of one organ by another has not been contemplated. Separation of powers continues to be part of basic structure of constitution.
The principle of separation of power when translated in terms of judiciary could mean independence of judiciary from any coercion by force which may be located within or outside the government. Further rule of law requires separation between judicial powers and executive powers.
Tribunals not being Independent:-
Taking a look at reality it could be easily observed that the Tribunals are not as independent as the judiciary, due to its very way of functioning and has excessive interferences from part of executive branch. This could be due to variety of factors including that the secretary of sponsoring department sits in Selection Committee to see the process of appointment, and also large amount of dependence on part of tribunals on sponsoring department, for sponsorship of infrastructure and funding for smooth function. The same is further exacerbated by the fact very often legislation in garb of expert member prescribes, that the member of sponsoring department are imbibed into tribunals. The same was observed by Supreme Court of India in 2010 in R Gandhi case. [5]
Thus it could be seen that how appointment of technical members by Executive can in de facto go on contravening the spirit of separation of power and independence of judiciary.
Way Forward:-
A simple way to counter this problem would be to simply sever all the ties that particular tribunal has with the executive department, especially in terms of finances. This can go on long way to ensure independence of judicial function performed in tribunals.
Judicial Review
Background
Judicial review has been repeatedly held to part of basic structure of the Constitution, Basic features of the constitution cannot be abridged or affected even by constitutional amendment and are liable to struck down. Judicial review as envisaged by constitution is exclusive in nature, thus any law made under constitution and interpretation of constitution is responsibility of judiciary. Thus examination of Judicial control over the tribunals becomes necessary before enacting any law.
Supreme Court’s Verdict
In RK Jain v. Union of India, Supreme Court recognized that the tribunals lack the efficiency in exercising judicial review, while considering whether these tribunals could be effective substitute for High Court with respect to powers envisaged under constitution. [6]Further relying on MB Majumder case,[7] it was held that Tribunals are cannot be effective substitute for High Courts, especially in a case wherein tribunal assumes jurisdiction wrongfully, the jurisdiction of High Court and Supreme Court cannot be ousted. Any such attempt at best is an attempt to encroach the jurisdiction of higher judiciary to superintend and thus tempering of basic structure of constitution.
Further the above contention of Judicial Review was bolstered in case of L Chandra Kumar, [8]wherein it was held that power of Supreme Court and High Court to scrutinize the constitutional validity of legislation can never be excluded. The power to superintendent the courts and tribunals by High Court is part of basic structure, and High Court cannot be made court only for constitutional interpretation by divesting all its other functions. Thus role of Tribunals was to be seen more to be in line to supplement the functioning of higher judiciary rather than to substitute the same.
Supreme Court in Union of India v. R Gandhi while determining scope of NCLT and NCLAT, divested its power of judicial review to Tribunals to certain extend by carving out leeway for the same and held that the Tribunals can enjoy power for judicial review for specified subject, if the same subject has not been specifically vested in courts by express provisions. [9]
In Mohammed Ansari v. Union of India, Supreme Court held that the Tribunal has very limited jurisdiction only for limited purpose for which it is given power under statute, and not outside the same. [10]While in Union of India v Major General Shri Kant Sharma, Supreme court limited the scope of intervening in proceeding which was duly proceeding before the Tribunal. [11]Though Major General Sri Kant Sharma, is currently under scrutiny before Supreme Court in Union of India v. Thomas Vaidyan case. [12]
In Madras Bar Association Case Supreme Court held that, any attempt to transfer judicial power would be in violation of Basic Structure, but same can be done if the tribunal or court so created conforms to standards and salient feature of the court it attempts to substitute.
Summary
It could be summarily commented that judicial review is definitely one of the most crucial aspect of basic structure and is indispensible, thus any new mode of adjudication can be created as long as it doesn’t compromises with the standard of judicial review.
Conclusion
Tribunals have found their way in Adjudication of disputes in India, due to various advantages such as efficiency in terms of time and money, in addition to expertise of adjudicators; they confer as compared to judicial mechanism that was in place. Though establishment and administration of tribunals touches various aspect of basic structure such judicial review, separation of power, and federalism.
As held in IR Coelho v State of Tamil Nadu while defining what all constitute aspects of basic structure covering all the three hereinabove mentioned aspects, held that any law in violation of the basic structure is liable to be struck down. These concepts are intrinsically linked to each other, as it is impossible to imagine existence of rule of law in absence of judicial review. The difference between three organs of state would be rendered meaningless, if they try to transgress in each other domain, and thus any attempt by executive to enter the domain of judiciary must be strictly checked.
Legislation attempting to bypass the jurisdiction of high court in favour of Supreme Court has been held to be void, and while upholding the federal structure even in judiciary the power of High court over the tribunals in its jurisdiction has been recognized. Thought the same may go on defeating the purpose of establishing the tribunals and introducing additional step in the process of adjudication. While appointment of executive member in tribunal and further deriving their sponsorship from the executive, could go defeating the independence of judiciary in tribunal system, but same can easily be done by ensuring new and independence method of appointment and sponsorship.
Tribunals have come a long way in administration of justice to masses, and by providing proper provisions which ensures that the tribunals upkeep with the benchmark of judiciary, they could radically alter the mechanism for justice delivery in Indian Context.
Views expressed are personal, please take independent Legal advice from a professionals.
[1] Sarayu Satish, THE TRIBUNAL SYSTEM IN INDIA- INCREASING IN IMPORTANCE BUT INCREASING IN EFFECTIVENESS?
.http://www.westminsterlawreview.org/downloads/The%20Tribunal%20System%20in%20India%20-%20Final.pdf
[2] Law Commission of India, Assessment of Statutory Frameworks of Tribunals in India, Report No. 272, October 2017.
[3] Jaswant Sugar Mills Ltd., Meerut v. Lakshmichand, AIR 1963 SC 677.
[4] L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
[5] Union of India v. R. Gandhi, President Madras Bar Association, (2010) 11 SC 1899;
[6] R. K. Jain v. Union of India,AIR 1993 SC1769.
[7] M.B. Majumdar v. Union of India,AIR 1990 SC 2263.
[8] Supre 4.
[9] Supra 5.
[10] Mohammed Ansari v. Union of India, (2017) 3 SCC 740.
[11] Union of India v. Major General Shri Kant Sharma, (2015) 6 SCC 773.
[12] Union of India, v. Thomas Vaidyan M, Civil Appeal No. 5327/2015, order dated 16.11.2015.