Author: Priya Jha, III year of B.A.,LL.B. from KIIT School of Law
In the Administrative Tribunal act,1985 defined tribunal under section 3(t) it state that tribunal means central administrative tribunal or state administrative tribunal or any joint administrative tribunal there is no exact definition of tribunal defined under administrative tribunal act,1985 and neither in the legislative statue and act.The word Tribunal had been derived from latin word Tribunes which means ‘Magistrates of the Classical Roman Republic’ referred under the monarchy roman official and republic has key function to protecting the citizen from the arbitrary power of the government and make government should responsible to their needs and provide good governance.Tribunal is a quasi judicial institution that carries out several function , including adjudicating disputes, deciding the rights of disputing parties, making administrative decisions, reviewing past administrative decisions, and more like.It deals with the dispute related to administrative matter ,environment issue, armed forces and tax. The need to set up administrative tribunal to reduce the workload of the court . There is arising number of pendency cases in various different overburden court in India to overcome the situation need to established tribunal in India.There is also various reason to established tribunal to provide expedite decision which would manned by expert in the area falling under the jurisdiction of the tribunal.
MERIT AND DEMERIT OF TRIBUNAL
The Administrative Tribunal act,1985 gives power to tribunal to adjudicate matter . There are merit and demerit of establishment of tribunal in India. The tribunal provide specialized decision by the Expert member and staff in that field who have a longer period of experience due to that they are more efficiently make decision than a court of law. The tribunal are more flexible than court of law .The court have rigid and long procedure whereas tribunal deal by the expert in that field of law so they make expedite decision . The Judges in the court based their decision on precedent and complex procedure of law where required depth knowledge of law whereas in the tribunal the judgment are based on Natural justice. The member in the tribunal did not refer the previous judgement followed precedent. The tribunal help to reducing the burden of the court .The ordinary court of law take more time in delivering the judgment which required cost and time because of having complex procedure of decision making whereas the tribunal have speedy delivery of justice due to their flexible decision making procedure adding less cost to the party . The Executive have given to the power to the administration Tribunal established by the act of the parliament can exercise ultra virus power and become arbitrary and violate the principal of natural justice and since the power operating by the administration operated by the executive and not in the hand of judiciary so there is possibility of misusing of power by political parties of their political interest. These are the above important merit and demerit of Tribunalisation in India.
CONSTITUTIONAL PROVINSION RELATED TO TRIBUNAL
The tribunal was not initially a part of the constitution . It was adopted in 1976 through the 42nd amendment in the constitution of India. The Article 323A and 323B in the Indian constitution deals with purpose and function of tribunal in the administration. Under Article 323A of the constitution deals with establishment of tribunal for public services matter only by the act of the parliament.The Article 323A state that one tribunal set up for the central and one for each state level. These are generally established at national and each state level are known as administrative tribunal and governed by the administrative tribunal act,1985 Whereas under Article 323B deals with the Establishment of tribunals for other matter which was not covered under Article 323A of the Indian constitution .The Article 323B generally deals with matter include Taxation, Industrial and Labour disputes, Land Reforms, The ceiling on urban propertyElections related to parliament and state legislature andFoodstuff. Under Article 323 B tribunal can be established by the act of parliament and state legislature with respect to matter falling under their adjudicating jurisdiction and having legislative competence. Under Article 323B tribunal may be created based on hierarchy of jurisdiction.
DIFFERENT KIND OF TRIBUNAL IN INDIA
The Administrative tribunal ,1985 dealing with the matter as listed in article 323A and 323B of the constitution of India are as follow
Central Administrative Tribunal (CAT)- It had been established by the act of Parliament or setup by the central government. It has jurisdiction to deal with the dispute related to government employee and official controlled under the central government .It include members, chair man and vice-chair man.The appeal against the order of the CAT lies before the respective high court of state.
State Administrative Tribunals (SAT)- It had been established by the state government at each respective state.It had deal with the dispute related to collection and enforcement of tax, fees charged and evaluation.
Joint Administrative Tribunal (JAT) -It had been established for two or more state jointly solve the dispute between two state exercise administrative tribunal for such state.
The act further stated about the various composition of the tribunal.They are generally established by the act of parliament and under separate statue it consist of National Green Tribunal (NGT) under the National Green Tribunal Act, 2010. The National Company Law Appellate Tribunal (NCLAT) under Section 410 of the Companies Act, 2013 and Income Tax Appellate Tribunal (ITAT) under Section 252 of the Income Tax Act, 1961 among other. Depending on the statutes under which each tribunal was established as well as the issues it deals with, the methods followed by each tribunal may vary. This promotes specialization and helps each tribunal function well, but it may also make it more difficult for the executive to oversee and govern these tribunals.
CONSTITUTIONAL VALIDITY OF ARTICLE 323A and 323B
By adding Articles 323 A and 323 B to the Indian Constitution, the 42nd amendment significantly altered the nation's judicial system. Through Articles 323A and 323B, the Parliament and state legislatures, respectively, are granted the legal authority to create administrative tribunals. Articles 323 A and 323 B remained, however, the 44th Amendment repealed all the changes made by the 42nd amendment. It appears at first glance that the Parliament sought to transfer the judicial power from the judiciary to institutions that may be readily controlled by the legislature through these modifications.The modification permitted the exclusion of the High Courts and civil courts, with the exception of the Supreme Court's power under Article 136, from the authority, jurisdiction, and modes of operation of these tribunals. At this point, two crucial questions come up: first, if tribunalization undermines the fundamental principles of the separation of powers and the independence of the judiciary, and second, whether the constitution permits the transfer of judicial authority.
IMPLICATION OF LANDMARK JUDGEMENT AND LEGAL REFORM
The Following landmark judgement state about the implication of Tribunalisation through the 42ND amendment in the constitution of India are as follow
In S.P. Sampath Kumar and Ors. Vs Union of India (1985) 4 SCC 458 Stated 42nd Amendment and the Administrative Tribunals Act of 1985 were at issue in Sampath Kumar because they precluded judicial review. It was determined that judicial review was a fundamental component of the Constitution, but it was also stated that even though a constitutional amendment excluded high courts from having jurisdiction, it would not be unconstitutional if it included a practical mechanism for giving administrative tribunals the ability to conduct judicial reviews.
In L. Chandra Kumar vs The Union of India AIR 1995 SC 1151, the court reaffirmed that judicial review is a fundamental component of the Constitution and that the High Court and Supreme Court's authority to conduct judicial reviews under Articles 226 and 32 ensures the independence of the judiciary. The "exclusion of jurisdiction" provision in every law passed in accordance with Articles 323A and 323B was declared invalid. The basic structure was held to include the High Court's authority to supervise lower courts that fell under their purview. It was decided that tribunals would ensure prompt justice and serve as courts of the first instance for the types of cases for which they were constituted.The ruling's justification was that only the superior courts and not tribunals are guaranteed independence under the constitution. As a result, tribunals can never fully replace superior courts, and the High Court and Supreme Court will always have the authority to review decisions made by lower courts.
In the case Union of India v. R. Gandhi, (2010) 6 SCR 857, it was determined that it was acceptable to exclude cases from the High Court's purview and that Parliament had the power to create tribunals through specific enactments and give them the authority to decide cases that fell under such enactments. The superior courts have the authority to determine whether the eligibility requirements and qualifications prescribed for the appointment of members are sufficient to enable them to meet the purpose for which the given tribunal is constituted, despite the fact that the legislature can create laws prescribing eligibility criteria and the kind of expertise required for appointment in tribunals.
In the case of Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, it was determined that because the separation of powers is a fundamental component of the constitution, parliament lacks the authority to decide disputes involving the election of the prime minister. Instead, those disputes must be decided by appropriate courts or tribunals. But ever since the Administrative Tribunals Act of 1985 was passed, the legislature has gone beyond the lines set by the separation of powers and taken away crucial judicial duties from the High Courts and Civil Courts by transferring them to quasi-judicial organizations that are directly under its control. As a result, the required authority granted to the High Court by our Constitution has been more severely limited.I believe that the potential risk of this transfer of judicial authority would be the violation of citizens' legal rights in our nation. It is extremely possible that since the parliament and state legislatures now have the authority to create tribunals relevant to any topic, they will create tribunals pertaining to their particular area of political interests. Because of the judiciary's independence, judges are guaranteed to be impartial toward politics and to base their decisions solely on the law, which is unaffected by the governing party in parliament.However, because the tribunals are entirely under the jurisdiction of the government, it is very likely that individuals who decide cases in the tribunals will be swayed by the political objectives of the party in power. It is a widely held belief that bureaucratic opinions are extremely conservative and circumspect, but the fact that they are appointed solely on the basis of political considerations raises questions about whether they have any interest in the dominant political theories. The creation of tribunals was supported on the grounds that it would lessen the load on the courts, promote swift resolution of cases, and satisfy the demand for specialization.It has been noted, too, that these tribunals have functioned as a source of post-retirement employment for the judges and administrators who support the dominant political ideologies. Additionally, there have been instances where tribunals have fallen short of achieving the one and only goal for which they were created, namely the swift resolution of disputes.
In Madras Bar Association vs Union Of India the president had passed the ordinance with the recommendation of the central government exercising its power under article 123 of the constitution of India regarding salaries,appointment and tenure of the member of tribunal by amending in the provision of Finance act 2017 that the appointment of the member of the tribunal by the search selection committee headed by chief justice of India and any other judges nominated by the Chief justice of India. Under Sections 12 and 13 of the Ordinance, which alter Sections 184 and 186 of the Finance Act, respectively, set a 50-year age restriction for appointment as a chairman or member of any tribunal, meaning that no one older than that age may be appointed to the tribunals for any post. Additionally, it limited the incomes of the members and established their terms at four years or until they reached the ages of 67 for any other member and 70 for the Chairperson, whichever came first and Hence the madras bar Association argue before the court the ordinance passed by the president on recommendation of central government is ultra virus and violate the principal of judicial administration and separation of power which is internal part of the constitution.The three bench of supreme court of India fixed the tenure of member four years. The supreme court in his judgement stated that appointment should me made three month prior by search selection committee headed by the chief justice of India.
In Rojer Mathew v South Indian Bank Ltd And Ors Chief the supreme court held that the constitutional validity of Section 184 of the Finance Act, 2017 and observed that Tribunals were conceptualized as a specialized body for the resolution of disputes and the method of appointment to these tribunals has a great impact on determining the independence of the judiciary.
From the above judgment observed that the Supreme Court's clear rulings, there are still a number of issues that need to be resolved. First off, the creation of tribunals was done solely to ensure swift justice; nevertheless, the process will become longer and more complicated if their rulings are subjected to judicial scrutiny by the High Court and Supreme Court. The second question is whether the tribunals can remain impartial if the majority of their members are either executive branch employees or have been chosen by them. Thirdly, the uniformity in tribunal administration is deteriorating as the number of tribunals rises, and the majority of tribunals are not functioning properly.
In light of the foregoing discussion, it may be said that the threat of judicial tribunalisation to the country's democracy lies in the separation of powers and judicial review. Under the pretense of swift justice, the transfer of judicial power should not be permitted since it will weaken the court and eliminate the system of checks and balances between the three democratic organs. But there are steps that can be taken to address these problems. First, a separate bench should be established in the High Courts to handle appeals against tribunal judgments and exercise judicial review.Second, a system that is similar to the Tribunals Act of the United Kingdom can be used to address the issue of tribunals' dependence on the executive. Third, creating a supervisory body that would oversee how the tribunals operate can address the lack of consistency in tribunal administration.
Union of India v. R. Gandhi, (2010) 6 SCR 857
Madras Bar Association vs Union Of India(2021) 3 SC 215
Rojer Mathew vs South Indian Bank Ltd And Ors Chief(2019) 5 SCC 21
L.Chandra Kumar vs The Union of India AIR 1995 SC 1151
S.P. Sampath Kumar and Ors. Vs Union of India (1985) 4 SCC 458
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
The Administrative Tribunal act,1985
The constitution of India