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Tribunalization And Its Current Trends

The tussle between the executive and the judiciary over the tribunal system has been never ending. [1]Over the years, cases are adjudicated at a very slow pace and the process has become more expensive. The current promulgation of nine tribunal appellate boards and its transfer of power to high court has raised many questions on whether the courts of justice be able to solve this workload which is increasing day by day. Tribunals were introduced as a reform to divide the administrative work from executive and judiciary.

And now the reason to abolishing so many tribunals is due to their ineffective functioning but the major blame for the same has to be borne by the government itself due to its indifference in constituting them and also the dominant behaviour of the higher judiciary. As of April 2021, there are 25 courts functioning with only 669 judges as against the sanctioned strength of 1080 judges with pendency of approximately 50 lakh cases.

(Department of Justice) This additional conferment of jurisdiction to the high courts and their lack of expertise in the area, coupled with formal procedure, expensive and delayed decisions is likely to delay justice delivery further. (Indian kanoon, 1979) The following paper talks about tribunalization and its impact on the judiciary and the trends followed by it. (Bar And Bench, n.d.)

What is Tribunal?

The word 'tribunal' has not been defined in the constitution or in any other act or law. Tribunal means where a judge or panel of judges sit and discuss on the important controversies that happen between two parties and then exercises judicial power which is primarily distinguished from administrative functions. Tribunalization of justice means a way to analyse the position and outcome of justice with regard to the tribunal system of India.

By the words of The Supreme Court as used in Durga Shankar Mehta v/s Raghraj Singh,[2] the tribunal is not a court but includes within its ambit, all adjudicating bodies, provided that they are constituted by the state and are vested with judicial functions as distinguished from administrative or executive functions. In the words of MP Jain, the tribunal does not allow any uniform procedure to be laid down as it is civil procedure code and under the Indian evidence act of 1872 but they follow the principals of natural justice.

No judicial review against the decision of any tribunal is maintained by the any court of law but if it fails to follow its principles then the same can take place. The tribunals play a very important role in the sphere of adjudication of disputes. Whereas it's function is different from courts but there is a common objective towards which the tribunals work upon which is to impact and deliver justice. (Legal Service India, n.d.)

In agreement to the global practice, tribunalization in India started with the insertion of the articles 323A and 323B into the constitution by the virtue of 42nd amendment act,1976 [3]where the clause meant to establish Administrative Tribunals so as to deal with service matters and also for the establishment of other Special Tribunals which deal with specific disputes under respective stautes. They are a substitute to high courts.

Articles 323 A (Constitution of India) provided a comprehensive study on the adjudication or trial by the administrative tribunals where disputes and complains are resolved. For example- the service of persons appointed to public services and posts in connection with the affairs of the union or of any state or local authority within the territory of India. Thus law under these cases may provide for the establishment of an administrative tribunal for the union and a separate administrative tribunal for each state or two or more states thus excluding jurisdictions of all courts with respect to the concerned disputes or complaints.

Judicial Review:
Through some exceptions we get to know that judicial review by Supreme Court shall remain untouched and only act on matters of importance and grave injustice which was challenged in SP samptahh kumar v. Union of India[4] as violated of the basic structure of the constitution.

Almost a decade later, in the case of L Chandra Kumar v/s Union of India, a 7 judge bench held that the power of superintendence of High courts over lower Courts and tribunals as a part of the basic structure of the constitution. They went on to further declare the exclusion of jurisdiction clauses in all legislations enacted by the backing of the article 323A and 323B were highly unconstitutional.

The Apex court in the same case recognized the powers of tribunals to test the vires of subordinate legislation and rules which became a subject of scrutiny by two judges bench of the High courts. (The Tribunal Reforms, n.d.)

Members:
In 2002 a legislation was passed by the parliament for the formation of National company Law Tribunal and the national company law appellate tribunal as alternatives for High courts in company law matters (Bar And Bench, n.d.). The court ordered for a selection committee be constituted which shall consist of the Chief Justice of India (CJI) or his nominee as chairperson ( with casting vote), a senior judge of supreme Court or Chief justice of high court as member and secretaries from the ministry of Finance or Company affairs and Law as two other members.

According to Section 184 of finanace act 2017 there were certain rules and qualifications and other conditions of service of members of 19 tribunals. (Bar And Bench, n.d.)
In the case of Rojer Mathew v/s South India Bank Ltd, A 5 judge bench declared that the rules to be unconstitutional since:
  1. There was lack of judicial dominance in search and selection committee
  2. Qualifications that were required for judicial and technical members lacked judicial character
  3. There was any disparity in age of superannuation
  4. Short tenures of members and powers of government to reappoint members after retirement from one tribunal to another would lead to interference by executive.

Thereby jeopardising the independence of the judiciary. These specific rules were again changed in 2020 where a 5 member committee shall be appointed with the chief justice and his nominee having a casting vote. It was also directed that advocates who hold 10 years of experience can be appointed as judicial members of the tribunals and their retirement age was set at 67 years. (Bar And Bench, n.d.)

Conclusion:
A recent judgement given by the supreme court in the case of Union of India vs Madras bar Association ,where the Supreme Court ordered separation of Tribunals from the clutches of the executive, has created a lot of interest in the legal arena. It is imperative to say that the judiciary has always been in control of the tribunals. Again the pattern in which they follow is to reduce the workload of the cases of the judiciary.

Eventually as the result of this:
  1. The judiciary wants to have a major say in the appointment if the members of the tribunals.
  2. The judiciary wants to rehabilitate retired judges in the tribunals
  3. The judiciary feels that it has exclusive and predominant power to adjudicate even those disputes of technical and complex nature, as the sole custodian of justice. (Bar And Bench, n.d.)
Here the nodal commission shall take place to end this tussle between the executive and the judiciary. Consolidated funds shall be used for the administration of the tribunals which rests in the hands of the present government.

The only concern which shall remain with the selection of members would be if they have enough expertise in their field to administrate the tribunals. With major countries in the world and their supreme courts rehabilitating learned persons into this field, it will be a question for both the executive and the judiciary to make a selection committee, who are capable of selecting the best among the best.

End-Notes:
  1. Bar and Bench :Administration of Justice from tribunalization to trivialiazation
  2. 1954 AIR 520, 1955 SCR 287
  3. Tribunalization of Justice: Legal Services India
  4. 1987 SCR (3) 233, 1987 SCC Supl. 734

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