This article was written by Aditi Halder, a student of West Bengal National University of Juridical Sciences.
The 42nd amendment brought a huge change in the adjudication process of the country by introducing Article 323 A and 323 B in the Constitution of India. The legislative competence to establish administrative tribunals is conferred through Article 323A and Article 323B to Parliament and state legislatures respectively. The 44th amendment removed all the changes brought by 42nd amendment however, Article 323 A and Article 323 B stayed. It appears prima facie that through these amendments, the Parliament intended to transfer the judicial power from Judiciary to bodies which can be easily controlled by the legislature. The amendment allowed the Parliament to form laws which will provide for authority, jurisdiction and mode of operation of these tribunals and it also allowed for exclusion of jurisdiction of High Courts and civil courts except the Jurisdiction of Supreme Court under Article 136. At this juncture, two important issues arise, firstly, whether tribunalisation hits the basic structure by violating the principal of separation of powers and independence of judiciary and secondly, whether the constitution allows for the transfer of judicial power.
Tracing the evolution
The evolution of law and attitude of judiciary towards tribunalisation can be traced through the following landmark judgements:
In Sampath Kumar the issue was regarding the constitutional validity of 42nd amendment and the Administrative Tribunals Act 1985 as they excluded judicial review. It was held that Judicial Review was part of basic structure of the Constitution but then it was also stated that if the constitutional amendment provides for an effective mechanism for vesting the Administrative Tribunals with power of Judicial review then it would not be unconstitutional even though it excluded the jurisdiction of High Courts.
In L. Chandrakumar the court reiterated the fact that judicial review is part of basic structure of Constitution and the power of judicial review of High Court and Supreme Court under Art. 226 and. Art. 32 ensure independence of Judiciary. The ‘exclusion of jurisdiction’ clause in all the legislations which have been enacted under scope of Article 323A and Article 323 B was struck down. The superintendence power of High Courts over lower courts within their jurisdiction was held a part of the basic structure. With respect to tribunals it was held that they will ensure speedy justice and they will act as courts of first instance with respect to areas of law for which they have been established. The reason given, behind the judgement was that the constitutional provision ensures the independence of only superior judiciary and not of tribunals. Therefore, the tribunals can never be a perfect substitute of superior courts and hence the power of judicial review of High Court and Supreme Court can never be excluded. In Union of India v. R Gandhi, it was held that exclusion of jurisdiction of High Court is permissible and parliament has the authority to form tribunals through specific enactments and vest them with the jurisdiction to adjudicate upon the matters related to those specific enactments. It was also stated that though the legislature can form laws prescribing eligibility criteria and kind of expertise required for appointment in tribunals, the superior courts have the authority to examine whether the eligibility criteria and qualifications prescribed for appointment of members is adequate enough to enable them to meet the purpose for which the given tribunal is constituted.
Despite of the unambiguous opinions given by the Supreme Court, there are several concerns which need to be addressed. Firstly, the sole purpose behind the establishment of tribunals was to ensure speedy justice; however, subjecting their judgements to judicial reviews of High Court and Supreme Court is going to make the process more lengthy and complex. Secondly, whether the tribunals can be independent if most of members are either appointed by executive or, are a part of the executive. Thirdly, with the increase in number of tribunals the uniformity in administration of tribunals is decreasing and functioning of most of the tribunals is not in a proper state.
The doctrine of separation of power ensures democracy in our country by allowing each of the organs i.e. legislature, executive and judiciary to check and balance the actions of one another. Our constitution provides for separate and fixed roles of these organs and overstepping of jurisdiction of each other is strictly prohibited. It also provides that each of the organs should function independently. Given that, the independence of judiciary is necessary to ensure greater justice and avoid the government from acting per its whish or curbing the rights of citizens on the name of governance. In Indira Nehru Gandhi v. Raj Narain it was held that parliament does not have the authority to adjudicate disputes and any dispute pertaining to election of Prime Minister has to be adjudicated by suitable courts or tribunals because separation of powers is part of the basic structure of the constitution. However, since the enactment of the Administrative Tribunals Act, 1985, legislature has overstepped the boundaries demarcated by separation of powers and has deprived High Courts and Civil courts of important judicial functions by transferring them to quasi- judicial bodies which are directly under its control. Therefore, the necessary power given to the High Court through our Constitution has been curbed to a greater extent. I think that the potential danger of this transfer of judicial power would be infringement of legal rights of citizens in our country. Since, the parliament and state legislatures now have power to establish tribunals pertaining to any field, therefore it is highly likely that they will establish tribunals pertaining to their field of political interests. The independence of Judiciary ensured that the Judges should be free of any political interest and they will give judgements purely based on rule which is not affected at all by the ruling party in the parliament. However, the tribunals are completely under the control of executive hence it is highly possible that those who will be adjudicating disputes in the tribunals will be influenced by the political interests of the party in power. It is a common concept that the opinion of Bureaucracy are very conservative and cautious in nature, but their appointments based on purely political discretions raises concern about their interest in the prevailing political theories. When tribunals were established, it was justified on the basis that it will reduce the overburdening on courts, ensure speedy disposal of cases and fulfil the need of specialization. However, it has been observed that these tribunals have worked as a source of post retirement occupation for the bureaucrats and judges who support the prevalent political thoughts. Moreover, there have been instances where tribunals have failed to achieve the sole purpose for which they were established, i.e. speedy disposal of cases.
At this juncture, examples of other commonwealth countries can be taken where the transfer of judicial power from judiciary to quasi-judicial bodies was struck down. In Canada, the Supreme Court struck down the green tribunal which was established to decide rent control cases. The court stated that the matter was purely civil in nature and hence it can be heard only by courts and not by any tribunal. Similarly, the US Supreme Court pointed out the potential dangers of tribunals which encroached upon the functions of the courts and struck down the establishment of bankruptcy tribunal.
Reference can also be made to the report of Franks Committee which examined the functioning of tribunals. Justice Legatt, who headed the tribunal, stated that it is very necessary that tribunals should be independent and must be seen as independent by the public. It should not appear that they are under the control executive. Conversely, the tribunal system in India has all the evils which Justice Legatt advised to eradicate.
In the light of the above discussion it can be concluded that tribunalisation of judiciary is a threat to separation of power and judicial review which helps to ensure democracy in the country. Transfer of judicial power should not be permissible in disguise of speedy justice; it will leave the judiciary handicapped and destroy the process of check and balance between the three organs of the democracy. However, certain measures can be adopted to solve these issues. First, separate Bench should be created in High Courts which will exercise judicial review over the appeals against the judgement of tribunals. Second, the problem of dependency of tribunals on the executive can be solved by adopting a system which is similar to the Tribunals Act of United Kingdom. Third, the absence of uniformity in administration of tribunals can be resolved by establishing a supervisory body which will supervise the functioning of the tribunals.
 V.N Shukla Constitution of India, 975 (12th ed., 2015).
 S.P. Sampath Kumar and Ors. Vs Union of India (1985) 4 SCC 458.
 L. Chandra Kumar vs The Union of India AIR 1995 SC 1151.
 Union of India v. R. Gandhi, (2010) 6 SCR 857
 Sarayu Satish The Tribunal System in India- Increasing in Importance but Increasing in Effectiveness? 3 Westminster Law review 2.
 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
 Prashant Reddy Should High Courts Continue to exercise writ jurisdiction over IPAB September 17, 2017, available https://spicyip.com/2011/07/should-high-courts-continue-to-exercise.html (Last visited on September 17, 2017).
 Live Law. in India’s tryst with tribunalisation and transfer of judicial power to regulatory bodies September 15, 2017, available
http://www.livelaw.in/indias-tryst-tribunalisation-transfer-judicial-power-regulatory-bodies/ (Last visited on September 15, 2017).
 Arvind P. Datar Tribunals: A tragic obsession July 20, 2018 available
(Last visited on September 20, 2017).
 Residential Tenancies (1981) 123 DLR (3d) 554
 Northern Pipeline Construction Co. v Marathan Pipeline Co. 73 Led 2d 675
 Marshall, G. (1957), The Franks Report on Administrative Tribunals and Enquiries. Public Administration, 35: 347–358. doi:10.1111/j.1467-9299.1957.tb01316.x.
 The Tribunals, Courts and Enforcement Act 2007.
 Supra, note 8.