Report No. 272

Chapter - X

Conclusions and Recommendations

10.1 One of the compelling reasons for establishing the Tribunals had been pendency of large number of cases and delay in disposal of cases in the Courts. As a remedy thereof, quasi-judicial institutions in the name of Administrative Tribunals were established so as to work as an independent and specialised Forum. The Tribunals would provide speedy justice in cost-effective manner. The judicial functions discharged by the Tribunals can be distinguished from purely administrative or executive functions in view of the doctrine of 'separation of powers' which forms part of the basic structure of the Constitution.

The Administrative Tribunals Act of 1985, was enacted to give effect to the Swaran Singh Committee Report (1976) which provided that against the order of the Tribunal, a party may approach the Supreme Court under Article 136 and excluded the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. The Choksi Committee (1977) expressed the desirability of constituting Special Tax Benches in High Courts to deal with the large number of pending Tax cases.

10.2 The Law Commission of India persistently suggested that the power of judicial review of the High Courts against a judgment of the Tribunal is not only time consuming, but also expensive and there is always a possibility of various High Courts interpreting the same statutory provision differently. In 215th Report (2008), the Commission made an unwarranted remark that the power of judicial review of High Court cannot be as inviolable as that of the Supreme Court. No reason or explanation has been given in support of such observation and no foundation has been laid for making such remark. In fact, neither any Court nor the Legislature has ever expressed such opinion. Such observations are admittedly contrary to the law laid down by the seven Judge Bench in L.Chandra Kumar (Supra).

10.3 The Supreme Court in earlier judicial pronouncements had held that the Tribunals are substitutes of the High Courts. Therefore, the manner of appointment, eligibility, tenure and other protections and privileges of persons manning such Tribunals must be the same as that of the High Court judges. Such persons must have the complete independence as required under the 'principle of Independence of Judiciary' which is a basic feature of the Constitution. It must be further noted that, since reappointment has a strong bearing on the independence of the institution, it should be kept out of the influence of the executive. Therefore to ensure independence, reappointment must be the exception and not the rule.

10.4 On the other hand, in some other cases, the Supreme Court concluded that the Tribunals can neither be alternative nor substitutes of the High Courts. A person manning the Tribunal cannot claim parity or privileges at par with the High Court judges. However, a seven judge Bench in L Chandra Kumar (Supra) in crystal clear words held that the Tribunals are supplemental to High Courts and not their substitutes.

10.5 The selection of the members should be done in an impartial manner. Therefore, the selection committee must not be headed by a Secretary to the Government of India who is always a party to every litigation before the Tribunal. Re-appointment of Members except in case of Members appointed from the Bar is unwarranted as it compromises with the independence of judiciary. More so, the involvement of Government agencies in selection making process should be minimal for the reason that Government is litigant in every case.

10.6 The Power of judicial review conferred on the High Courts is same as that of the Supreme Court which is a basic feature of the Constitution and tinkered with only by amending of the Constitution. The Government may put in place a mechanism which takes care of all matters regarding appointment of persons manning the Tribunals and in providing their service conditions. The jurisdiction of High Court should not generally be bypassed merely by making a provision to approach the Supreme Court against an order of a Tribunal under Article 136 for the reason that the said Article does not provide for an appeal but confers discretion on the Supreme Court to grant leave or not.

The Special Leave Petitions are considered on certain fixed parameters laid down by the Supreme Court from time to time. More so, providing for approaching the Supreme Court directly and excluding the jurisdiction of High Court, tantamount to violation of the fundamental right of the citizens of access to justice.

10.7 The Commission while discussing the appointment criteria, took note of the fact that the present system does not have uniformity in the qualifications, tenure and service conditions of Chairman, Vice-Chairman and other members and it is thereby felt that a change in system is needed because lack of uniformity is causing a major concern in the effective working of present Tribunal system.

10.8 In Tribunals, the Technical Members should be appointed only and only when service/advice of an expert on technical or special aspect is required. The Tribunal should be manned by persons qualified in law, having judicial training and adequate experience with proven ability and integrity.