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Report No. 123

Composition

7.8. This is a grey area. The reservations against the proposal of the Law Commission to recommend setting up of tribunals stem from the possible composition of such Tribunals. Largely, it is not the model that is objected. The apprehension is that the tribunal which will replace courts would be manned by people who would not inspire confidence. This condemnation in advance is unwarranted. But the apprehension behind it must be take note of. Undoubtedly, it is true that the tribunals would replace courts and they will operate under the umbrella of the Supreme Court supervising their function under Article 136 of the Constitution. Even then, undoubtedly, the jurisdiction of all courts up to the level of High Court would be excluded once these tribunals as herein envisaged are set up.

As the jurisdiction of all courts up to the High Court is being excluded, the caution uttered by the Supreme Court in recommending the composition of these tribunals must not be lost sight of. To recall, it has been said that judicial review is the basic and essential feature of the Constitution and it cannot be dispensed with. However, it was conceded that if the judicial review is not being dispensed with, it will be within the competence of Parliament to substitute in place of High Court another alternative institutional mechanism or arrangement for judicial review provided it is not less efficacious than the High Court.

In order to provide for such a forum as an alternative to the High Court, it was suggested that what is needed in a judicial tribunal which is intended to supplant the High Court is legal training and experience. Accordingly, the court struck down clause (c) of section 6(1) of the Administrative Tribunals Act, 1985.1 To inspire confidence in the tribunal, the court suggested that the Chairman and Vice-Chairman of the Administrative Tribunal must be either a District Judge or an advocate who is qualified to be a Judge of the High Court. The court directed that such amendment must be carried out to make the provision constitutionally valid. The Law Commission has kept this suggestion in view while recommending the composition of the tribunal.

1. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386.

7.9. It must be conceded that the composition of the tribunals must inspire confidence amongst the disputants coming before the tribunal. But merely providing for appointment of judicial members would defeat the other end in view of the Law Commission, namely, that of replacing the generalist courts and to associate specialists with the tribunal. The tribunals have to have the character and composition of specialist courts. Both these objectives must be fulfilled while determining the Composition of the tribunal.

7.10. Accordingly, it is recommended that the State level tribunals should have as a Chairman a sitting or retired Judge of the High Court and two other members who are eligible for being appointed as High Court Judges. The remaining two must be from the rank of former Vice-Chancellor and an eminent professor. The tribunal would thus consist of five members.

7.11. The Central/National Tribunal must also reflect the same features. It mast have as its Chairman a sitting or retired Judge of the Supreme Court of India, other members who are eligible for being appointed as Judge of the Supreme Court of India, the remaining two must be from the rank of distinguished educationists, former Vice-Chancellors and administrators who have dealt with the problems of education and eminent professors.

7.12. It is needless to say that both the State Level Tribunal and the National Level Tribunal must have a Secretariat of its own.

7.13. The strength of the State and Central/National Educational Tribunal herein indicated is to be observed in the first instance at the time of commencement. Depending upon the workload and other incidental requirements, the strength may be increased commensurate with the workload, but retaining the essential features of the Tribunal in the matter of composition. To be precise, selection from any one sector need not be disproportionately heavy compared to other sectors. It must also be clarified that the Tribunal need not sit en bane, but can sit in benches with this pre-requisite that one of the members of the Bench must of necessity be a Judicial Member.



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