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Report No. 272

Chapter - VII

Appeals to High Courts and the Supreme Court

7.1 The establishment of Tribunals is oriented towards the promotion of social goals which aims at dispensing collective justice to a large segment of the general public with the expertise in Administrative Law/principles. It is therefore imperative that a provision for judicial review of decisions of the Tribunal is there to determine whether the Tribunal met the minimum standards of rationality. 104 The Law Commission of India in its 162nd Report identified the need for a fair balance between the interests of State and the interests of individuals. It was observed that Courts can interfere with the jurisdiction of a Tribunal to the extent permitted by 'science of administrative law' because the paramount concern of Administrative Law is to protect the citizen from abuse of official power.

104 Leelakrishan, P., "Reviewing Decisions of Administrative Tribunal: Paternalistic approach of the Indian Supreme Court and need for Institutional Reforms" 54:1 JILI 25 (2012).

7.2 It is a settled legal proposition that the higher judiciary alone has the function of determining authoritatively the meaning of statutory enactment and to lay down the frontiers of jurisprudence of any body or Tribunal constituted under the Act. A Tribunal has to function under the Statute, whereas the higher judiciary is a Constitutional authority, which is entrusted not only with the task of interpreting the laws and the Constitution, but also to exercise supervisory control over the Tribunals. This position is contemplated under the Constitution and also pronounced by the Court in order to preserve the independence of judiciary while discharging sovereign functions of dispensing justice. By creating Tribunals, this position cannot be diluted by a law made by the Parliament or State Legislatures.

7.3 The judicial hierarchy of Indian Legal System is distinct as compared to that under the American and the Canadian Constitution. The American Constitution confers all powers on the State except the specified subjects which are exclusively meant for the Federal Government. However, under the Canadian Constitution, only specified subjects and powers are given to the constituent states and all residuary powers are left with the Federal Government

7.4 In common law countries, the administrative adjudication operates under the judicial supervision unlike the French System which has established Counseil d'Etat. In India and various other common law countries, the judicial review of decisions is allowed on a few legal grounds like denial of principles of natural justice, failure to observe prescribed procedure, want or abuse of jurisdiction, error of law, ultra vires decision etc.105 Indian Administrative Law has adopted the second control mechanism i.e., judicial review of administrative agencies.

In the United Kingdom, the Tribunal system is divided into two tiers with 'first tier Tribunal' and the appellate 'upper Tribunal'. Appeal from the upper tribunal is heard by the court of appeal and further appeal goes to the Supreme Court of United Kingdom. The purpose of this system is to guarantee the independence of judiciary, that is why the Tribunals are considered as 'machinery of adjudication' rather than the 'machinery of administration.'106

105 Supra note 5 at p. 525.

106 Supra note 82 at 21; See also The Constitutional Reform Act, 2005 (UK), s. 3.

7.5 Franks' Report strongly emphasised the review of Tribunal decisions by the Courts on the point of law by the certiorari proceedings or by appeal. The judicial review has to be limited i.e., only on the points of law and not of facts except when there is a complete absence of evidence.107 The Report also recommended that except in cases where the Tribunal of first instance is exceptionally strong, there must be a general right of appeal on fact, law and merits to an appellate Tribunal. In addition, there should be a right of appeal to the Courts on a point of law.108

107 Judicial Review available at:

http://14.139.60.114:8080/jspui/bitstream/123456789/663/8/Judicial%20Review.pdf (last visited on 15-08-2017).

108 Gupta, Balram K., "Administrative Tribunals and Judicial Review: A Comment on Forty-second Amendment" JSPUI 419, Franks Report has been implemented by the Tribunals and Inquiries Act, 1958 (now Act of 1971).

7.6 In common law, 109 every Tribunal with a limited jurisdiction is subject to control by the High Court on various grounds like when Tribunal exceeds its jurisdiction, acts contrary to the principles of natural justice, fails to perform statutory duty, fails to exercise its jurisdiction or commits an error of law.110 In the Supreme Courts of other jurisdictions, the cases decided by them are few and are of Constitutional and national importance. In those jurisdictions, the subordinate Courts decide the cases finally to avoid overloading of the Supreme Courts. The Supreme Courts of other jurisdictions such as the United States, the United Kingdom, Canada, Australia and South Africa sit either en banc, i.e., of its full strength, or in large benches of five or more judges considering the importance of the case.111

109 Tribunals and Inquiries Act, 1958 (now Act of 1971).

110 Supra note 85 at 420.

111 Andhrayujina, T.R., "Restoring the Supreme Court's exclusivity" available at:

http://www.thehindu.com/opinion/lead/Restoring-the-Supreme-Court%E2%80%99sexclusivity/ article11557294.ece. (last visited 10-08-2017).

7.7 The Supreme Court, as the Apex Court in the country, was meant to deal with important issues like Constitutional questions, questions of law of general importance or where grave injustice had been done. If the Supreme Court goes on entertaining all and sundry kinds of cases, it will be flooded and there will be huge backlog obstructing it to deal with the cases, for which it was really meant. After all, the Supreme Court has limited time at its disposal and it cannot be expected to hear every kind of dispute.112

112 Mathai @ Joby v. George, (2010) 4 SCC 358.

7.8 In S.G. Chemical and Dyes Trading Employees Union v. S.G. Chemicals and Dyes Trading Ltd., (1986) 2 SCC 624 it was observed:

'Today, when the dockets of this Court are over- crowded, may almost choked, with the flood, or rather the avalanche, of work pouring into the Court, threatening to sweep away the present system of administration of justice itself, the Court should be extremely vigilant in exercising its discretion under Article 136..

7.9 Justice K.K. Mathew, referred to the opinion of Justice Frankfurter, in his article,114 observing:

114 An eminent Judge of the Court, (1982) 3 SCC (Jour) 1.

'The function of the Supreme Court, according to Justice Frankfurter, was to expound and stabilize principles of law, to pass upon constitutional and other important questions of law for the public benefit and to preserve uniformity of decision among the intermediate courts of appeal.'

7.10 Mr. K.K. Venugopal, in one of his lectures, pointed out:115

115 R.K. Jain Memorial Lecture delivered on 30.01.2010.

' an alarming state of affairs has developed in this Court because this Court has gradually converted itself into a mere Court of Appeal which has sought to correct every error which it finds in the judgments of the High Courts of the country as well as the vast number of tribunals. This Court has strayed from its original character as a Constitutional Court and the Apex Court of the country. If the Apex Court seeks to deal with all kinds of cases, it necessarily has to accumulate vast arrears over a period of time which it will be impossible to clear in any foreseeable future.

This is a self-inflicted injury, which is the cause of the malaise which has gradually eroded the confidence of the litigants in the Apex Court of the country, mainly because of its failure to hear and dispose of cases within a reasonable period of time. It is a great tragedy to find that cases which have been listed for hearing years back are yet to be heard.'

7.11 A question cannot be said to be of public importance unless it is important throughout the State and not a single geographical area. 116 The matters of public importance may mean matters relating to Governmental action or inactions which arouse something in the nature of a nationwide crisis of confidence.117 It may include indiscriminate dumping of municipal waste, noise and solid waste pollution, protection of wildlife etc. The conduct of an individual may assume such a dangerous proportion and may so prejudicially affect or threaten to affect the public well-being as to make such conduct a definite matter of public importance. 118

When it is alleged that a Minister has acquired vast wealth for himself, his relations and friends, by abuse of his official position, there can be no question that the matter is of public importance. It is of public importance that public men failing in their duty should be called upon to face the consequences. It is certainly a matter of importance to the public that lapses on the part of Ministers should be exposed. The cleanliness of public life in which the people should be vitally interested, must be a matter of public importance. The people are entitled to know whether they have entrusted their affairs to an unworthy man. Allegations may very well raise questions of great public importance.119

116 Cantero, Raoul G., "Certifying Questions to the Florida Supreme Court: What's So Important?" FBJ 40 (2002).

117 Segal, Zeev, "The Power to Probe into Matters of Vital Public Importance", 58 TLR 941 (1984).

118 Ram Krishan Dalmia v. Shri Justice S.R. Tendolkar, AIR 1958 SC 538.

119 State of Jammu and Kashmir v. Bakshi Ghulam Mohammad, AIR 1967 SC 122.

7.12 The Supreme Court, through its appellate jurisdiction supervises the functioning of administrative bodies, and can impose discipline over these bodies for the progress of Administrative Law and promotion of the Rule of Law in India.120 The purpose of conferring supervisory jurisdiction and power of judicial review on the Constitutional Courts is to keep the Tribunals within their legal binds/authority.121 In fact, the powers of the High Courts under Article 227 are revisional in nature, while jurisdiction under Article 226 is considered as an exercise of original jurisdiction122.

120 Supra note 13 at 1989.

121 Nagendra Nath Bora v. Commissioner of Hills Division, AIR 1958 SC 398; and State of Punjab v. Navjot Sandhu, (2003) 6 SCC 641.

122 Surya Deo Rai v. Ram Chander Rai, AIR 2003 SC 3044.

7.13 When a Statute gives a right of appeal from Tribunal to a Court of law, it is ordinarily confined to on a point of law but questions of law must be distinguished from questions of fact.123 On every question involving legal interpretation which arises only after the establishment of primary facts, an appeal on a point of law should be available.124 An Appeal is a continuity of suit proceedings, and a right to enter into a superior Court. It is re-hearing of a case while judicially examining the case and reviewing/revising the decision of the subordinate court.125 The Supreme Court does not usually entertain appeals against an order of a Tribunal unless appellant has exhausted the alternative remedies provided by the relevant law.126

123 Supra note 4 at 794.

124 Id. at 795.

125 Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 P.C. 165; State of Kerala v. K.M. Charia Abdulla, AIR 1965 SC 1585; Lakshmiratan Engineering Works v. Asst. Commissioner, AIR 1968 SC 488; Shankar Ramachandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1; Amarjit Kaur v. Pritam Singh, AIR 1974 SC 2068 (5); Hasmat Rai v. Raghunath Prasad, AIR 1981 SC 1711; Ramankutty Guptan v. Avara, AIR 1994 SC 1699; and Tirupati Balaji Developers (P) Ltd. v. State of Bihar, (2004) 5 SCC 1.

126 Jain, M.P., Indian Constitutional Law Lexis Nexis Butterworths Wadhwa Nagpur, 2010 at p. 264.

7.14 A right of appeal is considered to be a universal requirement for the effective enjoyment of right to life and liberty as one of the core principle of jurisprudence. This is in foundation of the set-up of Courts in hierarchical order. As men are fallible, so are the judges and mistake if any is committed while passing a judgment the same is required to be rectified. Based on that, the litigant party must have a right to go in an Appeal. This issue was dealt with elaborately by a five-Judge Bench of the Supreme Court in Sita Ram v. State of U. P., AIR 1979 SC 745 wherein it was observed:

'A single right of appeal is more or less a universal requirement of the guarantee of life and liberty rooted in the conception that men are fallible, that Judges are men and that making assurance doubly sure, a full-scale reexamination of the facts and the law is made an integral part or fundamental fairness or procedure.

Where, the subject-matter is less momentous, where two courts have already assessed the evidence and given reasoned decisions, pragmatism and humanism legitimate, in appropriate cases, the passing of judgment at the third tier without giving reasons where the conclusion is one of affirmance. Natural justice cannot be fixed on a rigid frame and fundamental fairness is not unresponsive to circumstances.'

7.15 The Supreme Court, In Re: Sanjiv Dutta, Deputy Secretary, Ministry of Information and Broadcasting, (1995) 3 SCC 619 128 held:

128 See also State of West Bengal v. Shivananda Pathak, AIR 1998 SC 2050. defiance are no methods to correct the errors of the courts.'

'None is free from errors, and the judiciary does not claim infallibility. It is truly said that a judge who has not committed a mistake is yet to be born. Our legal system in fact acknowledges the fallibility of the courts and provides for both internal and external checks to correct the errors. The law, the jurisprudence and the precedents, the open public hearings, reasoned judgments, appeals, revisions, references and reviews constitute the internal checks while objective critiques, debates and discussions of judgments outside the courts, and legislative correctives provide the external checks. Together, they go a long way to ensure judicial accountability. The law thus provides procedure to correct judicial errors. Abuses, attribution of motives, vituperative terrorism and



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