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Report No. 272

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

1.11. 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

12 Supra Note 7.

1.12. As per Robson, "administrative tribunals do their work more rapidly, more cheaply, more efficiently than the ordinary courts possess greater technical knowledge and fewer 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."13

1.13. 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 tribunal judicial 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

13 Supra Note 2 at 284.

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

15 Supra Note 2 at 279.

1.14. The Law Commission of India in its 14th 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 58th 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.

1.15. 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.

1.16. 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 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.'

1.17. 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

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

1.18. 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

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.

1.19. The Law Commission of India in its 124th 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]

1.20. 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."

1.21. The Law Commission in 215th 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 L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.

1.22. In Gujarat Urja Vikas Nigam Ltd v. Essar Power Ltd, (2016) 9 SCC 103. 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:

I. 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 of judgment of this Court in Madras Bar Association (Supra) or on any other consideration from the point of view of strengthening the rule of law?

II. 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?

III. 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?

IV. 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)?

V. 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 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.



Assessment of Statutory Frameworks of Tribunals in India Back




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