Report No. 162
1.6. When the Law Commission of India had initiated the study pursuant to the observations in R.K. Jain v. Union of India, it devoted its attention to three types of tribunals only viz.,-
(i) Administrative Tribunals constituted under the Administrative Tribunals Act, 1985 enacted pursuant to Articles 323A of the Constitution.
(ii) The Customs, Excise and Gold (Control) Appellate Tribunal established under section 129 of the Customs Act, 1962 and dealing with cases under both the Customs Act and the Central Excises and Salt Act, 1944.
(iii) The Income-tax Appellate Tribunal constituted under section 252 of the Income-tax Act, 1951.
1.7. The Law Commission of India is of the opinion, keeping in view all the relevant circumstances, that it would be appropriate and convenient to examine the functioning of each of these types of tribunals separately. Indeed these three tribunals are constituted under three different enactments. Only the tribunals mentioned in (i) above are governed by Article 323A and not the other two types of tribunals. They are also situated differently in the matter of their powers, status, importance, method of recruitment and other conditions of service.
Major issues of study regarding functioning of Administrative Tribunals in the country
The Commission has decided to confine its area of study on the following major issues pertaining to the functioning of Administrative Tribunals in the country:-
1. Appointment of members of the Tribunals-their eligibility, mode of appointment etc.
2. Composition of the Tribunal.
3. Need to standardise the powers and procedures of administrative tribunals.
4. Guarantee parties appearing before the tribunals basic procedural rights and safeguards; and ancillary issues like seeking justice through post.
5. Simplify administrative law, particularly with regard to judicial review and appeal.
6. Ensure the requisite degree of independence when a tribunal is required to act in a judicial fashion.
The Reference to the Law Commission is to specifically consider the functioning of those agencies which could be classified as "administrative tribunals". These agencies are authorized by the Government through law to make decisions which can affect people's fundamental rights of equality, property, economy, political and liberty rights and economic and social entitlements.
Besides this there are many decision making bodies which are not, strictly speaking, "tribunals" which affect people and make decisions about resources in a community. The Commission feels that the role of such decision making bodies in the administrative justice system also deserves careful consideration.
The Commission refers to the extracts of the Malimath Committee report quoted in L. Chandra Kumar's case (1997) 3 SCC 261, para. 88 citing a number of reasons which show that several tribunals in the country have not inspired confidence in the public mind.
(i) The foremost is the lack of competence, objectivity and judicial approach.
(ii) The next is their constitution, the power and method of appointment of personnel thereto, the inferior status and the casual method of working.
(iii) Their actual composition; men of calibre are not willing to be appointed as presiding officers in view of the uncertainty of tenure, unsatisfactory conditions of service, executive subordination in matters of administration and political interference in judicial functioning.
The Supreme Court observed:
"89 That the various Tribunals have not performed up to the expectations is a self-evident and widely acknowledged truth.
However, drastic measures may have to be resorted to in order to elevate their standards to ensure that they stand up to constitutional scrutiny in the discharge of the power of judicial review conferred upon them."
Besides these reasons, we are of the view that the following issues also need drawing a ttention:-
(a) There is delay, lack of training and public perception of unfairness and a feeling that impermissible considerations play a part in many cases.
(b) Issues of efficiency and cost to individuals and to the Government in the administrative system providing justice are of fundamental concern. In some cases, particularly involving individual's rights or entitlements, delay in the system can result in injustice and undermine the credibility of the system as a way to achieve justice.
(c) The Government, in carrying out reform, should try to avoid making decisions expensive.
(d) The question of appropriate procedures often seems difficult for people to understand, particularly when issues relating to appeals and judicial review are involved.
(e) There appears to be an ad hoc approach to procedures used by some tribunals on making decisions. Some agencies create their own, some are governed by regulations, and others have none.
Some objectives which should be achieved by an administrative justice system and also be reflected in decision making procedures include: Representativeness, Accessibility/Openness, Expertise, Accountability, Efficiency.
The attainment of these objectives by an administrative system will create an environment in which the principles of natural justice can operate and, in fact, many of these objectives are integral to natural justice or fairness.