Tribunalization of the Judiciary

This article was written by Anindita Dutta, a student of  WBNUJS.

Introduction

The basic elements of the Indian Constitution, the absence of which would render the Constitution incomplete can be perceived by determining the true intent of the framers of the Constitution. This is the doctrine of contemporaneous exposition and recourse may be had to the Constituent Assembly debates. The principle of ‘Separation of Powers’[1] states that the three organs of the government- Legislature, Executive and the Judiciary must be independent of each other for the “efficient discharge of the functions of Government”. ‘Independence of Judiciary’, enshrined in Article 50 of the Constitution, states that judicial powers must be kept out of Executive interference.[2] These, along with the power of ‘Judicial Review’, guaranteed by the Constitution to the High Courts (‘HCs’) by virtue of Articles 226 and 227 and to the Supreme Court (‘SC’) under Articles 32 and 136, form a part of the Basic Structure of the Constitution and must be read together.

‘Tribunalization’ is the perfect example of interplay between the Judiciary and the Executive. Tribunalization refers to the systematic creation of alternative tribunals by statutes to adjudicate upon specific subject-matters. The 42^nd Constitutional Amendment, passed during Indira Gandhi’s regime, brought in Articles 323A and 323B to the Constitution[3], thereby partly shifting powers of adjudication from Judiciary to the Executive. Many argue that the provision for the creation of tribunals was brought to limit the independence of the Judiciary[4] under the guise of speedy delivery of justice, disposal of cases by specialised bodies and relieving the Courts of a heavy backlog of cases.

Analysis

Constitutional Validity of Tribunals

Judicial Review gives a Court the power to review its own decision and decisions of the lower courts; it can be implied that a particular law taking away the power to review decisions of tribunals is not only unconstitutional but is also without any basis. Similar was Section 28 of the Administrative Tribunals Act, 1985 (‘1985 Act’), passed in furtherance of Article 323-A, which excluded High Courts from reviewing judgements passed by the tribunals. The case of Sampath Kumar[5] held that the tribunals are “alternate institutional mechanisms” to High Courts; it upheld the constitutionality of the 1985 Act and the 42^nd Amendment because they alternately vested the tribunals with the power of judicial review even though they took away such power from the HC.

In my opinion, if the validity of S. 28 and such similar provisions is upheld, it will give the Executive enormous flexibility to mould legislations in such a manner that all tribunals become substitutes for High Courts. All judicial powers can then be vested in tribunals thereby, limiting the powers of the High Courts and rendering them redundant in certain cases.

1. Chandrakumar[6], revisited the decision in Sampath Kumar, and rendered invalid S. 28 of the 1985 Act and Articles 323-A(2)(d) and 323-B(3)(d) which scrap powers of judicial review of “all courts other than the Supreme Court”.[7] This restores the hierarchy of the judicial system; one has to go to appeal to the Division Bench of the HC before moving to the SC.

Article 323-B(3)(1)(a) provides for the creation of “a hierarchy of tribunals”. This implies that the creation of appellate tribunals is constitutionally valid. Reading this provision with Article 227, which states that the HCs have “superintendence over all courts and tribunals”[8], suggests that HCs have jurisdiction over decisions passed by the appellate tribunals. Appellate bodies for certain tribunals have been created to separate the nature of functions carried out by the two bodies: tribunals perform the regulatory function and the appellate tribunals perform the judicial functions. But, the question arises whether the appellate jurisdiction of HCs is hampered by the creation of appellate tribunals, which are judicial bodies where the appeals from the decisions of tribunals lie. A tribunal, as long as it preserves HC’s power of judicial review, is constitutionally valid but it seems that appellate tribunals interfere with HCs’ power of reviewing the decisions of tribunals, as provided under Article 227.

The Creation of Appellate Tribunals

Tribunals are created for adjudication of specialised subject-matters exclusively. Hence, it is required that tribunals be manned by judicial as well as technical members. Appointment of members with degrees in law but no specialised qualification will defeat the purpose with which tribunals have been created. Similarly, technical members with no qualification of law will be incompetent to deal with substantial questions of law. Therefore, for the effective functioning of the tribunals, it is necessary that they are well-equipped with qualified members of judicial as well as technical expertise. It can be said that the decisions of tribunals and appellate tribunals are more accurate and judicious in certain areas than those of HCs because tribunals deal with targeted areas and HCs are general and inclusive.

Further, it has been held by the SC that status of the Chairperson and members of the tribunals should correspond to that of HC Judges to safeguard the ‘Independence of Judiciary’.[9] If the tribunals are manned by judges of the HC, it follows naturally that the appellate tribunals have Chief Justices of HCs or judges of the SC as Chairperson/members[10] to maintain the hierarchy between the Tribunals. The issue then, is whether an HC judge (if the judgement of the Appellate Tribunal is further appealed before the HC) will be able to challenge a decision passed by a judicial member higher in rank and hierarchy.[11]

Following the abovementioned arguments, it can be said that even if a particular legislation creating tribunals and appellate tribunals doesn’t explicitly bar HCs’ power to hear their decisions in appeals, ‘judicial review’ is hampered and problems arise as to the competence of the HC to challenge decisions of appellate tribunals.

Appointments to the Tribunals

The creation of tribunals is governed by statutes, which also provide for the process of appointment and the constitution of the tribunals. This power has been given to the Legislature by the Constitution under Articles 323A and 323B. The process of appointments to the tribunals is subject to the power of Judicial Review of the HCs and the SC. It is the duty of the Courts to make sure that the composition of the tribunals is not titled towards the Executive and that, tribunals don’t become a means of transferring judicial functions to the Executive. The presence of more members belonging to the Executive than the Judiciary is firstly, an attack on judicial independence and separation of powers. Secondly, the tribunals then, lack the competence to make decisions on pure questions of law. Thirdly, a member belonging to a particular branch of the Government will be unable to render a decision which is impartial and unbiased. Situations become more problematic when the Central Government has the power to appoint the members of the tribunal and the Central Government itself is the stakeholder in the cases before the tribunal. Similar was the case of Madras Bar Association v. UOI[12] which held that members of the tribunals should be vested with similar independence as is vested with the judges of the HCs and, the situation mentioned above is clearly a case of conflict of interest. The provision vesting the Central Government with the power to appoint members of the National Tax Tribunal (‘NTT’) was held to be unconstitutional.[13] Hence, it is necessary that the tribunals are not ‘dependent’ on any wing of the government for its appointment, infrastructure or working.[14]

Conclusion

Tribunals are supplementary to HCs and therefore, both tribunals and High Courts should work hand in hand. Tribunals and HCs have different subject-matter jurisdiction; tribunals should be ‘courts of first instance’ for subject-matters exclusively within their jurisdiction. However, they must not take away the HCs’ appellate jurisdiction. The power of Judicial Review has been granted to the HCs by the Constitution; a statute attempting to interfere with such a power is rendered unconstitutional. Tribunals are specialized bodies manned with judicial as well as technical members and, as long as they are not tilted towards the Executive, prove to be effective part of the justice delivery mechanism. The basic features of ‘Independence of Judiciary’, ‘Separation of Powers’ and ‘Judicial Review’ must not interfered with.

[1] First enshrined in The Commonwealth of India Bill, 1925.

[2] Constituent Assembly Debates (Proceedings)- Volume VIII 23^rd May 1949, The Constitution of India, 1950, Art. 50.

[3] The Constitution of India, 1950, Art. 323A and Art. 323B, inserted vide The Constitution (Forty Second Amendment) Act, 1976.

[4] Arvind P. Datar, Tribunals: A Tragic Obsession available at http://india-seminar.com/2013/642/642_arvind_p_datar.htm (Retrieved 20^th September, 2017).

[5] S. P. Sampath Kumar v. Union of India, (1987) 1 SCC 124.

[6] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.

[7] The Constitution of India, 1950, Art. 323-A(2)(d); The Constitution of India, 1950, Art.323-B(3)(d).

[8] The Constitution of India, 1950, Art. 227.

[9] Union of India v. Madras Bar Association, (2010) 11 SCC 1.

[10] Law Commission of India, L. Chandra Kumar be revisited by Larger Bench of Supreme Court, Report No. 215, 31 (December, 2008).

[11] Sheela Rai, India’s Tryst with Independent Tribunals and Regulatory Bodies and Role of the Judiciary, 55 Journal of the Indian Law Institute 215.

[12] Madras Bar Association v. Union of India, (2014) 10 SCC 1.

[13] Id.

[14] Similar was the recommendation in Union of India v. Madras Bar Association, (2010) 11 SCC 1.