Unit-V

Administrative Tribunals

Need of Administrative Justice

INTRODUCTION
Administrative justice is part and parcel of the common, though frequently
unarticulated understandings and expectations inherent in the constitutional fabric
woven from the weft and warp of our political and legal systems. Put quite simply, it
is a fundamental principle that the government- at all the levels and in all its
manifestations-should act justly in its
dealings with the public. Not only are the means to attain
administrative justice problematic, but the concept of justice
itself is the ambiguous and often contested.1 In this background
the introductory part seeks to provide a contextual overview of
the current provision of administrative justice in India.
The road to administrative justice is a challenging one,
the challenge being how to ensure, in the modern and complex
society that the actions and decisions of our public bodies
and institutions are just? How can administrative justice be
achieved? Through what mechanisms? What is required to a
system able to deal justly with the heard policy choices that
inevitably have to be made in the selection of priorities, the
allocation of resources and the availability of public services?
Consequently whether from a conceptual, procedural or
substantive perspective, administrative justice presents one
of the most central and vexed issues in the field of public law.2
Traditional democratic processes for delivering
administrative justice fall short of meeting demands for
machinery that can respond effectively to the complexity of
modern government. The traditional mechanism of seeking
justice through courts has been widely supplemented in the
1 ADMINISTRATIVE JUSTICE-Central Issues in UK and European Administrative
law,Diane
Longley and Roda James-Cavendish, p. 3.
2 Ibid.
2
past years by the recognition and functioning of new
mechanisms like the Tribunals, Inquiries, Commissions,
Regulatory authorities etc. The evolution of these methods ate
aimed to overcome the crises of accountability and legitimacy
in the administrative functioning which the conventional courts
failed to meet.
Although this book is about the administrative justice
system in India special emphases has been given to the
Administrative Tribunals only as these are considered as the
most established and successful contributors of the
administrative justice.
In Indian perspective the courts acted as the guardian of
the rights and interests of people. They also are involved in
providing adequate remedies for the administrative wrongs
and have also proved to be the authorities which established
the fundamental principles of administrative law along with the
equity jurisprudence. The courts have the constitutional
obligation for maintaining the rule of law in the society. But
because of the overburden, complicated procedures, time
consuming methods and all the other reasons discussed later,
the courts alone as the traditional institutions for securing the
administrative justice have proved inadequate. It was natural
to expect new alternatives or innovative ways and to make the
alternative arrangements to look at the emergent needs in the
areas of more effective scrutiny of administrative process.
Inspiration from the global developments had been taken
and as a result a lot of experimentation was done. This resulted
in establishing of new mechanisms. These systems are known
as Tribunals Inquiries, Commissions etc. Before coming to the
details about administrative justice through Tribunals it
necessary to first consider the several other ways which have
developed or have been developing as systems to meet
expectations of administrative justice in India.
TRIBUNALS
Administrative tribunals are quasi-judicial organizations,
located outside of the judicial branch. They play a central role
in the administration of government policies. It is difficult to
make generalizations about administrative tribunals because
their forms and functions are so variable. However, tribunals
typically resemble courts in form and, in function; they decide
how to apply government policies to particular cases. Perhaps
25
the most familiar areas in which administrative tribunals
operate are in service matters, environment and social security
policy, but tribunals are in fact quite common features of
bureaucracies.
Tribunals are known as a seat or court of justice. Meaning
of tribunals denotes the bench on which a judge or other
presiding officer sits in court. Tribunals are also referred a
committee or board appointed to adjudicate in a particular
matter.
According to Curzon, Tribunals have been defined as
“Bodies outside the hierarchy of the courts with administrative
or judicial functions”16
Administrative tribunals resolve disputes between, for
example, the citizen and an officer of a government agency or
between individuals in an area of law in which the government
has legislated the conduct of their relations.
H.W.R.Wade and Phillips once opined that ‘A prominent
feature of the governmental scene is the multitude of special
tribunals created by Act of Parliament. Each of these is
designated to be part of some scheme of administration, and
collectively they are sometimes called the administrative
tribunals.’17
Schwartz and Wade have written in their book; legal
Control of Government. ‘The welfare state could not function
without an elaborate judicial system of its own. Claims for
benefit, application for licenses, disputes about controlled rents,
planning appeals, compulsory purchase of land- there are host
of matters which have to be adjudicated upon from day to day
and which are, for the most part unsuitable for the regular
courts. In the background are the courts of law with supervisory
16 Curzon, Dictionary of Law, 1994, p387.
17 Page 904
26
and often, also, appellate functions. But the front line judicial
authorities for the administrative purposes are bodies created
ad hoc.’
It is generally understood that for creation of new standards
in such diverse matters such as housing, social services, town
and country planning, capacity for work, control of transport,
professional and Trade discipline, and the like, greater
technical experience, greater flexibility and a greater emphasis
on social welfare are required than the ordinary judicial process
and tradition allow.18
Tribunals are the outcome of this requirement which has
ever been a very effective tool for administrative justice today.
18 Principles of Australian Administrative law by Benjafield, D.G. and Whitemore, H.,
p.
332 (4ht Edn.)
27
DIFFERENCE BETWEEN ADMINISTRATIVE
TRIBUNALS AND THE REGULAR
COURTS
Just as any regular court the administrative tribunals also
hear both parties to the dispute, examine the evidence, and
pronounce decisions. However, administrative tribunals or
courts are not considered to be part of the ‘judiciary.’
Administrative tribunals decides different kinds of
disputes depending upon the law which constitute them, the
different range of disputes covers:-
• disputes between a private citizen and a central /State
government departments, such as claims to social security
benefits; failure of natural justice.
• disputes which require the application of specialized
knowledge or expertise, such as the assessment of
compensation following the compulsory purchase of land;
and
• other disputes which by their nature or quantity are
considered unsuitable for the ordinary courts, such as fixing
a fair rent for premises or immigration appeals.
Special features of tribunals in comparison to courts :
Encouraging Applicants: SPEED, ECONOMY,
FORMALITY, and REPRESENTATION;
FLEXIBILITY OF APPROACH
INQUISITORIAL RATHER THAN ADVERSARIAL
APPROACH.
SPECIALIZED JURISDICTIONS.
The main reasons for the creation of administrative
tribunals may be identified as:
28
• Burden on Judiciary-the relief of congestion in the ordinary
courts of law (the courts could not cope with the caseload
that is now borne by social security tribunals,
employment tribunals and the like);
• Delay-the provision of a speedier and cheaper procedure
than that afforded by the ordinary courts (tribunals avoid
the formality of the ordinary courts); and
• Need for Expertise:-the desire to have specific issues dealt
with by persons with an intimate knowledge and
experience of the problems involved (which a court with a
wide general jurisdiction might not acquire).
A slight difference in the approach of administrative
tribunals is that they do not follow the principles of law and
evidence but they follow the principles of natural justice. Further,
administrative courts in India are manned by officers from the
executive organ of the government, and not from the judiciary.
Other notable points that make administrative courts
different from regular courts are as follows:
• It is not compulsory to have a lawyer to represent your
case, if there is scope for adjustment on the dispute.
• The decision can be determined by experts on a subject
and they don’t have to be judges.
• Formal rules pertaining to evidence and witnesses are
not necessary.
• There are no complex court procedures.
• Administrative courts are not bound by precedents as they
can formulate policy and exercise considerable flexibility
to improve standards and procedures.
29
DIFFERENCE BETWEEN
TRIBUNALS AND INQUIRIES
Tribunals and inquiries somewhat have different functions
within the administrative process. Tribunals are mainly
adjudicative and act as court substitutes by hearing appeals
against decisions. Tribunals generally have an important role
in finding facts and applying legal rules derived from statutes
and regulations. However unlike the ordinary courts the doctrine
of binding precedents does not apply to them.
On the other hand inquiries are the part of original decision
making process, they are frequently activated only after an
appeal has been lodged against the initial government
decision. There is different kind of inquiries under
administrative law. For example planning inquiry, it results in
the recommendations to the particular departmental head,
which may well have wider policy considerations to take into
account before arriving at final decision.
Tribunal is a permanent body which sits periodically.
An inquiry is established on ad hoc basis.
Inquiries are set up in response of a particular event. They
may sit for months and years but they are not permanent
bodies.
Tribunals are empowered to make decisions which are
binding on the bodies subject to their jurisdiction.
Inquiries generally do not have formal decision-making
power. Inquiry ends with publication of report containing its
recommendations. It will generally be the matter of the authority
which ordered for the inquiry to act or not to act on these
recommendations.
Tribunals are concerned with matters of fact and law,
whereas inquiries are concerned with wider policy issues.
30
DEVELOPMENT
FRANCE
When we have to look into the historical development of
tribunals it is best to begin with the development of tribunals in
France, from where the concept of administrative courts has
originated.
In academic terms, French law can be divided into two
main categories: private or judicial law (“droit privé”) and public
law (“droit public”).
There are two spheres of judicial law includes, these are,
civil law (“droit civil”); and criminal law (“droit pénal”).
Public law includes, two spheres which includes
administrative law (“droit administratif”); and constitutional law
(“droit constitutionnel”).
Taken together, these four areas of law (civil, criminal,
administrative and constitutional) constitute the major part of
French law.
This is appropriate to say that the French judicial system
is divided in two parallel hierarchies of courts, the courts of the
judiciary and the administrative courts. The reason for this
double hierarchy lies in the French interpretation of the
separation of powers. It was thought that if the regular courts
had to decide on cases to which the administration was a party,
this would give the judiciary a means of intervening in the
administrative process, which would violate the principle of
the separation of powers. This is also the most striking
distinction between the common law and civil law legal systems
on the continent, of which the French is a prime example
(having the Conseil d’Etat, and a system of tribuneaux
administratifs) is the absence within the common law systems
31
of any separate court applying a universally applicable body
of concepts and rules, quite distinct from the general law of
the land, regulating justiciable administrative activity.
However this concept of administrative courts was not
accepted easily. New prejudices were added to the old
by Dicey’s critique of the exclusive administrative
jurisdiction vested in the French Conseil d’Etat, which he
stigmatised as being opposed to the fundamental
principles of the rule of law that pervaded the British
Constitution.19 To him the rule of law involved the
proposition that every person, including Ministers and
officials, was subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary courts; droit
administratif, on the other hand, implied the exemption of
the Government and its servants from personal legal
responsibility for official acts before the ordinary courts;
instead, they were subject to “official” law applied by
special and more or less official bodies.20 Since the rule
of law was a good thing, what was incompatible with the
rule of law was obviously a bad thing.
19 Introduction to the Study of the Law of the Constitution (10th ed., 1959), pp. 328-
405.
20 E.H. Lawson, “Dicey Revisited” (1959) 7 Political Studies 109, 207. Cf.
Trowbridge H.
Ford, “Dicey as a Political Journalist” (1970) 18 Political Studies 220. See also M.
Loughlin, Public Law and Political Theory (1992) Chap. 7; P. Craig, Public Law and
Democracy in the United Kingdom and The United States of America (1990), Chap. 2.
32

37
ENGLAND
English lawyers were readily persuaded to regard
administrative law, or droit administratif, as a misfortune
inflicted upon the benighted folk across the Channel. In 1932
the Committee on Ministers’ Powers thought it sufficient to
condemn as “inconsistent with ... the supremacy of the Law” a
proposal to take away the existing supervisory and appellate
jurisdiction of the High Court and to vest it in new and distinct
administrative courts. As recently as 1935 the then Lord Chief
Justice of England could still dismiss the term “administrative
law” as “Continental jargon”.22 In so far as it was being brought
into existence by Parliament (by confiding justiciable issues
to special statutory tribunals and delegating unreviewable
powers to Ministers) it was to be resisted as un-English. A
climate of opinion in which administrative law was treated as
an alien intrusion that was not (or at least ought not to be) part
of the law of England was inimical to objective research into
the problems posed by the developing law of public
administration.23 The inter-war years in particular was largely
dominated by impassioned but often sterile controversies
concerning the constitutional propriety of administrative
tribunals and delegated legislation.
Another ideological rider in the growth of administrative
law was the concept of separation of powers. Every
government has three vital organs to ensure its smooth
functioning, namely:
22 Lord Hewart of Bury, Not Without Prejudice, p. 96.
23 For a critical account of the baleful influence of Dicey’s insistence that the legality
of
governmental action was to be determined by the ordinary courts applying the
general law of the land, refer H.W. Arthurs, “Rethinking Administrative Law: a
Slightly
Dicey Business” (1979) 170 O.H.L.J. 1 and Without the Law: Administrative Justice
and Legal Pluralism in Nineteenth Century England (1985); and M. Loughlin, “Courts
and Governance”, Chap. 9 in P. Birks (ed.), The Frontiers of Liability vol. 1 (1994).
38
• The legislature
• The executive
• The judiciary
This structure is based on the understanding that just as
the human body depends on the smooth functioning of its vital
organs to stay fit and healthy, every government requires these
three vital organs (listed above) to work perfectly. We know
that the legislature enacts laws to regulate activities in the
society while the executive implements these so as to maintain
the law and order in the state. The relevance of the judiciary is
that when there are any crimes that are committed or if there
are any disputes about rights, duties, responsibilities or a
question of law that arises, the judiciary interprets the law and
delivers a judgment to settle the dispute.
The separation of powers embodies an ideological
philosophy, that of balancing power between different bodies
so that no power centre can act without the co-operation of the
others, and each checks the others – the checks and balances
doctrine. No legal machinery can deal with the extreme case
of overwhelming political power, and however much we may
split up our governments, the separate parts could be taken
over by a like-minded tyrannical group. Nevertheless, the
separation of powers is intended to make this possibility
unlikely.
A theory of separation of powers has been recognized
since at least the time of Aristotle. There are several different
meanings of the separation of powers (Marshall, 1971). For
example, the classical doctrine favoured by Aristotle would
divide power according to class interests, these comprising
monarchy, aristocracy and democracy. This version of the
separation of powers is partly reflected in the British institutions
39
of monarch, House of Lords and House of Commons, and was
a powerful influence upon the 1688 Revolution. However, the
most influential version of the separation of powers is that
proposed by Montesquiue (De L’Esprit de Lois, 1748).
According to Montesquiue, government powers can be
divided into three kinds: (i) the legislative power of enacting
general laws; (ii) the executive power concerned with policy
making, foreign affairs and enforcement; (iii) the judicial power
concerned with the settlement of disputes about the law. If any
two of these three fall into the same hands there is a risk of
tyranny. Moreover, no branch must trespass on the territory of
another branch and each can check the powers of the others,
for example, the legislative can dismiss the executive. In its
pure form, the reparation of powers leads to weak and
cumbersome government. In practice a pragmatic
compromise is usually adopted.
In England the early Stuarts had endeavoured to withdraw
matters of State from the courts of common law,24 and had
enforced their will primarily through the medium of their
prerogative courts, in which substantive and procedural rules
unknown to the common law were applied. The common
lawyers joined in alliance with the parliamentarians to bring
about the downfall of the Court of Star Chamber and other
prerogative courts in 1641, and their alliance was renewed in
1655 to thwart the arbitrary pretensions of James II. The
traditions handed down from the constitutional struggles of the
seventeenth century created an all but invincible prejudice
against encroachments upon the province annexed by the
common-law courts in the field of public laws. Public law and
private law were in the future to be undivided and indivisible.
These traditions were reinforced by the exceptional degree of
24 In particular by the writ de non procedendo rege inconsulto.
40
public esteem earned by the superior judges after the Act of
Settlement 1701 had ensured their independence of the
Executive, and they led naturally to a general tendency to
exaggerate the practical efficacy of the functions exercised by
the ordinary courts in controlling the activities of government
bodies and office holders.25
The landmark events facilitating the growth of
administrative tribunals in England:-
1. The Crichel Down affair-a political scam of 1954.
2. A committee of inquiry appointed by lord Chancellor, was
chaired by Sir Oliver Franks- Frank’s Report.1957-study
of administrative tribunals and such public inquiries.
3. Recommendations of the Franks committee were largely
accepted and resulted in the Tribunals and Enquiries Act
of 1958.
4. Basic assumptions of Franks report:-
• Tribunals are an adjudicating rather than an
administrative body.
• They should be fair, open and impartial.-publicity of
proceedings, reasoned decision.
• Impartiality
Lowering down of the standards of public administration
and particularly rampant corruption paved way for some
important developments in the English administrative field.
In the year 1954, The Crichel Down affair happened in
England, this was was a British political scandal, with a
disproportionate subsequent effect and notoriety. The
resignation of the government minister Sir Thomas
25 Echoed even today in the argument that it is unnecessary and indeed undesirable,
to
have a specialised Administrative Division of the High Court because the Crown
Office and the nominated judges of the Queen’s Bench Division do the job so
excellently.
41
Dugdale has been taken as setting a precedent on
ministerial responsibility, even though the doctrine
supposed to arise from the affair is only partially supported
by the details. Lord Carrington, Dugdale’s junior minister,
offered his resignation but was told to stay on.
The case is related to 725 acres (2.93 km2) of agricultural
land at Crichel Down, near Long Crichel, owned by a
Commander Marten and purchased in 1938 by the Air Ministry.
This was given for bombing practice for the Royal Air Force.
The purchase price when it was requisitioned was £12,006. In
1941 Winston Churchill gave a promise in Parliament that the
land would be returned to its owners, after World War II. This
promise was not honoured. Instead the land (then valued at
£21,000) was handed over to the Ministry of Agriculture who
vastly increased the cost of the land beyond the amount the
original owners could afford (£32,000), and leased it out.
In the year 1949 the original owners began a campaign
for a return sale of the land, and gained an inquiry.
The inquiry was chaired by Sir Oliver Shewell Franks.
Baron Franks, was an English public servant and philosopher
. In 1957 the Franks Committee was appointed by the British
lord chancellor to study administrative tribunals and such
procedures as the holding of a public inquiry. The committee
declared that the work of administrative tribunals and of public
inquiries should be characterized by openness, fairness, and
impartiality, and their report applied these aims in great detail.
The recommendations of the committee were largely accepted
and resulted in the Tribunals and Enquiries Act of 1958.
Basic assumptions of the report could be divided into three
segments:-
Tribunals are an adjudicating, rather than administrative,
body and they should be fair, open and impartial.
42
Openness is for publicity of proceedings and the reasoning
behind the decision.
Fairness of a clear procedure, present the case fully and
knowledge of requirements to meet for parties. Impartiality
established from independence from real or apparent influence
of administration.
Citizen should have prior knowledge of right to apply,
public knowledge of the proceedings unless the content is of
sensitive nature, legal representation normally allowed.
Tribunals empowered to take evidence under oath
subpoena witness and award remedy. Decisions with full
reasoning and copy sent to all parties. Final appellate tribunal
to publish its decision for lower tribunals.
Appeal from first instance to an appellate tribunal, but
never to a minister, unless First Instance tribunal is highly
competent. Common law remedies of Certiorari (direction to
send records), mandamus (mandatory order) and writ of
prohibition (abstain a court where it lacks competance) should
never be restricted. Also the report recommended the Councils
of Tribunals to be formed to perform their respective role as
envisaged in report.
Tribunal procedures
The report of Franks committee had far reaching
consequences as it affected and influenced the administrative
scene in all the common law jurisdictions including India.
Since tribunals are established to provide a form of
redress, mostly in disputes between citizen and State, the
principal hallmark of any tribunal is that it must be independent,
and perceived as such.
The tribunal should be able to reach decisions according
to law without pressure either from the body or person whose
43
decision is being appealed, from any party to a dispute or
from anyone else.
Judicial decisions should be uninfluenced by other external
considerations.
Procedures should be open to scrutiny if they are to retain
public confidence; they should provide a fair hearing at which
citizens can state their case and be informed of all the evidence;
tribunals should reach their decisions demonstrably free from
all personal interest and bias.
Tribunal hearings should be open and fair, which must be
available to all sections of the community in our society.
Tribunals should be independent and provide open, fair
and impartial hearings
Tribunals should be free to reach decisions according to
law without influence (actual or perceived) from the body or
person whose decision is being challenged or appealed, or
from anyone else.
Judicial officers should be independent
Procedures of selection and appointment of Tribunal
members should be fair and independent of related
departments of government and other interested parties.
Procedures should ensure conflicts of interest are
identified and avoided and
Hearings should normally take place in public, although a
private hearing should be provided in appropriate
circumstances.
At the hearing, the identity of tribunal members to be
communicated to the parties.
Hearings should be conducted with an appropriate degree
of informality, and the necessary steps taken to ensure all
relevant issues are explored.
44
Appropriate guidance about evidence and procedures
should be given at hearings especially where individuals have
no legal representation.
Special procedures should be provided for hearings involving
vulnerable groups.
The parties should be accorded equal status.
If the hearing proceeds in the absence of a party, or his
representative, the tribunal should nevertheless seek to ensure
that that party’s case is fully considered.
Decisions should be soundly based on the evidence and
relevant law;
They must be supported by reasons, explained clearly to
the parties, and if given orally confirmed in writing.
Reasons should identify findings of fact, apply relevant law
and explain the decision.
Tribunals should be accessible to users and focus on the
needs of users.
Potential users of the tribunal should be given access to
information about its services, and where previous decisions
of the tribunal are recorded.
Makers of decisions from which there is a right of appeal
to a tribunal, should be obliged to inform those affected by
decisions of the right of appeal, and how a guide to such rights
and procedures can be obtained.
Papers required by tribunals to be proportionate, and
appropriate to issues at stake.
SPECIAL ATTRIBUTES OF TRIBUNAL JUSTICE :
ACCESSIBILITY
IMPARTIALITY
OPENNESS
45
TRANSPARENCY
PROCEDURAL FAIRNESS-HEARING
PROPORTIONALITY
REASONED DECISIONS
Users should be able to understand: what papers they
have to provide; what papers the other party will provide; what
additional papers the other party can be required to provide.
Provision should be made for users with special needs,
e.g. audio tape.
There should be a clear time limit for lodging of all papers.
Tribunals to provide clear information about how their case
will be handled.
Users should be clearly informed about what is expected
of them, what they have to provide, what will happen at a
hearing, and the circumstances in which how to make a claim.
Users should be able to find out about the progress of
their case, and how long they are likely to have to wait for a
hearing or decision.
The tribunal’s decision should be accompanied by
information about appeal rights.
A complaints policy and procedure; should be in place in
relation to the performance of both judiciary, and administration,
and be publicized to users.
Tribunals should establish and publish a clear policy on
equal treatment, and continuously monitor compliance.
Tribunals should offer cost effective procedures and be
properly resourced and organized.
Judicial resources should be managed to provide a good
service, and to ensure that individuals sit often enough to
maintain knowledge and skills.
46
Standards for judicial behaviour and performance should
be set and monitored.
Outstanding cases should be collected and monitored.
Standards for hearing venues, and for service, and
performance should be set and monitored, in consultation with
users.
Appropriate planning and monitoring procedures should
be in place.
Data about patterns in the caseload (errors in first tier
decision making, cost of cases going to judicial review etc.)
should be collected and monitored.
Administrative processes should be responsive to the
needs of those who wish to use them.
The reference to “judicial office” is intended to include all
tribunal Chairs and members who exercise judicial powers.
All hearings should be in public; except that the press or
public may be excluded from all or part of the hearing in the
interests of morals, public order, national security, or where
the interests of the protection of the private life of the parties
so require, or to the extent strictly necessary in the opinion of
the tribunal in special circumstances where publicity would
prejudice the interests of justice (Article 6, European
Convention on Human Rights).
The Tribunal chairman may ask anyone giving evidence
to give evidence on oath.
Franks committee report resulted in many achievements
as most of the recommendations were implemented by
Tribunals and Inquiries act 1958 and Tribunals &Inquiries Act
1992; others were implemented by administrative practice.
Working and number of Council of tribunal was mentioned
in the schedules, with their function being advisory, but they
47
could make recommendations on any matter and had to be
consulted before any rule was enacted.
Right to give reasons was added, but it had to be asked
before or during the decision and judicial review restricted in
few instances. List of tribunals could be stopped by ministerial
power.
Where report’s recommendations weren’t followed are
appeals to High Court (Session Court in Scotland) only based
on law and procedure to appoint chairman and member is
different from what report proposed.
The UK tribunal system can be seen as beginning with
the coming into force of the National Insurance Act 1911 which
provided for adjudication of disputes by administrative
agencies. During the twentieth century, UK government
ministers acquired more and more power and were vested
with decisions that affected the day to day life of citizens.[[4]
Tribunals had long been criticised. Lord Scarman had seen
them as a danger to the prestige of the judiciary and the
authority of the ordinary law. In 1988 there were calls for an
Administrative Review Council to provide independent scrutiny
on the Australian model but such ideas were rejected.
The tribunal system of the United Kingdom is part of the
national system of administrative justice with tribunals classed
as non-departmental public bodies (NDPBs).Though it has
grown up on an ad hoc basis since the beginning of the
twentieth century, from 2007 reforms were put in place to build
a unified system with recognised judicial authority, routes of
appeal and regulatory supervision.
The system was little altered by the Tribunals and Inquiries
Act 1992.At the start of the twenty first century there were further
calls for reform in the system there. In 2000 the Legatt Review
48
was set up to look into the operation of administrative tribunals.
The Review found that each tribunal had its own processes
and standards and were not accessible to users. It also raised
concerns about the level of independence of tribunals and the
long delays which users faced in having their dispute resolved
by the tribunals.
The Legatt Review recommended that a new independent
tribunal service be set up so that the relevant sponsoring
government departments could no longer be seen as
influencing the individual tribunals and that a composite twotier
tribunal structure should be adopted.
That led to the creation of the Tribunals Service in 2006,
as an executive agency to manage and administer tribunals,
and to the Tribunals, Courts and Enforcement Act 2007.
The Tribunals, Courts and Enforcement Act 2007 created
a new unified structure for tribunals and recognises legally
qualified members of tribunals as members of the judiciary of
the United Kingdom who are guaranteed continued judicial
independence.
49
ADVANTAGES OF ADMINISTRATIVE
TRIBUNALS
The advantages of administrative tribunals are numerous.
You don’t have to worry about paying for court fees, legal
representation or pleadings. None of this is essential in
administrative courts or tribunals. Further, as there are no
complex procedures, there will be speedy justice. This system
also reduces the burden of pending cases in regular courts.
The weight of expert opinion endows the administrative
tribunals with a higher level of professional expertise and
transparency.
The tribunals are preferred because the courts’ functions
under archaic and elaborate procedural laws and highly
technical evidence law. To ensure fair play and avoidance of
judicial error, the procedural laws provide for appeals, revisions
and reviews and allow parties to file innumerable applications
and raise vexatious objections as a result of which the main
matters get pushed to the back ground. All litigation in courts
get inevitably delayed which leads to frustration and
dissatisfaction among litigants. In view of huge pendency, courts
are not able to bestow attention and give priority to cases
arising under special legislations. Therefore, there is a need
to transfer some selected arrears of litigation dealt with by
traditional courts to special tribunals.
Only if continued judicial independence is assured,
Tribunals can discharge judicial functions. In order to make
such independence a reality, it is fundamental that the members
of the Tribunal shall be independent persons, not civil servants.
They should resemble courts and not bureaucratic boards.
Even the dependence of Tribunals on the sponsoring or parent
50
department for infrastructural facilities or personnel may
undermine the independence of the Tribunal.
Disadvantages of Administrative Tribunals :
Administrative tribunals and courts have come under
considerable criticism. It has limited or non-existent right to
appeal. It has separate laws and procedures that circumvent
the celebrated judicial principles followed by regular courts in
the country. Further, the decisions of administrative tribunals/
courts are not documented, preserved or known to the general
public.
The advantage of a tribunal is that it is:
(a) Quick with no long waits for the case to be heard and
it is dealt with speedily;
(b) Cheap, as no fees are charged;
(c) Staffed by experts who specialise in particular areas;
(d) Characterised by an informal atmosphere and
procedure;
(e) Allowed not to follow its own precedents, although
tribunals do have to follow court precedents Insert.
The disadvantages of tribunals are that:
(a) Some have become more formal;
(b) They are not always independent of the Government,
although the Independent Tribunal Service now
recommends possible chairmen to the Lord
Chancellor;
(c) Some tribunals act in private;
(d) They do not always give reasons, although they are
supposed to give reasons.
(e) Legal aid is not generally available, except for the
Lands Tribunal, the Employment Appeal Tribunal and
the Mental Health Review Tribunal;
51
(f) There is no general right of appeal to the courts: it all
depends on the particular statute creating the tribunal.
Present day evaluation of tribunals in England make it
clear that there is a tribunal in England to after almost every
sphere of life. They do a useful job in taking some types of
work away from the courts and dealing with specialised
matters, less valuable claims and matters involving the exercise
of a discretion.26
There are grey areas and problems remain over lack of
standard rights, like the right of appeal, and procedures. In
many instances they make important decisions affecting
people’s livelihoods and quality of life. To compete this
challenge some special kind of training for tribunal members
is necessary.
26 T. Blakemore and B. Greene, Law for Legal Executives, 1996, p.95:
52
Tribunals in India
Meaning of Tribunal?
Working of Tribunals.
Tribunals and Judicial review.
Doctrine of Precedent
Administrative Tribunals, Article 141 and the Doctrine of
Precedent.
Contempt of Administrative tribunals.
Tribunals at work.
53
Meaning of Tribunal?
A tribunal is a generic term for any body acting judicially,
whether or not it is called a tribunal in its title. For example, an
advocate appearing before a Court on whom a single Judge
was sitting could describe that judge as ‘their tribunal’
The term tribunal is more popularly used today to denote
the administrative courts in India which in the new administrative
law regime which embraces a variety of tribunals for providing
specialized justice.
The Constitution does not define the term “tribunal”.
Etymologically ‘tribunal’ means the seat of justice. In Article
136 the word ‘tribunal’ is used in contradistinction to courts.
Article 136:-
Article 136 - Special leave to appeal by the Supreme
Court
1. Not with standing anything in this Chapter, the Supreme
Court may, in its discretion, grant special leave to appeal
from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court
or tribunal in the territory of India.
2. Nothing in clause (1) shall apply to any judgment,
determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to
the Armed Forces.
Thus under Article 136 Supreme Court can hear appeals
not only from a court but also from other decision making body
which though not a court as such may yet be characterized as
a ‘tribunal’.27
Supreme Court articulated the meaning of the word
tribunals through different case laws.
27 Principles of Administrative Law,M.P. Jain and S.N. Jain , p.667
54
In Union of India V. R. Gandhi,28 the Supreme Court
elaborately discussed the role of Courts, establishment and
functioning of tribunals and the difference between courts and
tribunals.
The term ‘courts’ refers to places where justice is
administered or refers to Judges who exercise judicial
functions. Courts are established by the State for administration
of justice that is for exercise of the judicial power of the state
to maintain and uphold the rights, to punish wrongs and to
adjudicate up on disputes. Courts refer to the Civil Courts,
Criminal Courts and High Courts. Tribunals on the other hand
are special alternative institutional mechanisms, usually
brought into existence by or under a statute to decide disputes
arising with reference to that particular statute, or to determine
controversies arising out of any administrative law. Tribunals
can be either private tribunals such as arbitral tribunals or
Tribunals constituted under the Constitution or Tribunals
authorized by the Constitution or Statutory Tribunals which are
created under a statute.
Some Tribunals are manned exclusively by Judicial
Officers. Example for that type of Tribunals are Rent Tribunals,
Motor Accidents Claims Tribunal, Labor Courts, Industrial
Tribunals etc., Other Statutory Tribunals are having both judicial
and technical members. Example for that type of Tribunals are
Central Administrative Tribunals, Telecom Disputes Settlement
Appellate Tribunal Competition Appellate Tribunals, Consumer
Forum, Cyber Appellate Tribunal etc.,
Durga Shankar Meha v. Raghuraj Singh,29 defined
‘Tribunal’:-
28 (2010) 96 CLA 222 (SC)
29 AIR 1954 SC 520, S.C.
55
“The expression ‘Tribunal’ as used in Article 136 does not
mean the same thing as ‘Court’ but includes, within its ambit,
all adjudicating bodies, provided they are constituted by the
State and are invested with judicial as distinguished from
administrative or executive functions.”
Bharat Bank v. Employees30, the Supreme Court
observed that though tribunals are clad in many of the trappings
of a court and though they exercise quasi-judicial functions,
they are not full-fledged courts. Thus, a tribunal is an
adjudicating body which decides controversies between the
parties and exercises judicial powers as distinguished from
purely administrative functions and thus possess some of the
trappings of a court, but not all.
• In ‘Harinagar Sugar Mills Ltd., V. Shyam Sundar
Jhunjhunwala’ 31 under section 111(3) of the Companies
Act, 1956, while deciding a dispute regarding the
registration of shares, between a company and a person
who has purchased its share, the Central govt. has to act
judicially, and it has been held that it is a tribunal and so
the court can hear an appeal from its decision.
The Supreme Court succinctly explained the difference
between courts and Tribunals - ‘All Tribunals are not courts,
though are courts are Tribunals. The word ‘Courts’ is used to
designate those Tribunals which are set up in an organized
state for the administration of justice. By administration of justice
is meant the exercise of juridical power of the State to maintain
and uphold rights and to punish ‘wrongs’. Whenever there is
an infringement of a right or an injury, the courts are there to
restore the vinculum juris, which is disturbed.’
30 AIR 1950 SC 188
31 (1962) 2 SCR 339
56
When rights are infringed or invaded, the aggrieved party
can go and commence a quarrel before the ordinary civil courts.
These courts which are instrumentalities of Government are
invested with the judicial power of the State and their authority
is derived from the Constitution or some Act of Legislature
constituting them. Their number is ordinarily fixed but they
ordinarily permanent and can try any suit or cause with their
jurisdiction. Their numbers may be increased or decreased,
but they are almost always permanent and go under the
compendious name of ‘Courts of Civil Judicature’. There can
be thus be doubt that the Central Government does not come
within this clause.
With the growth of civilization and the problems of modern
life, a large number of administrative Tribunals have come into
if ever, this power is invoked.
84
The judgment of the Supreme Court in L. Chandra Kumar
is also likely to lead to consequences, which are undesirable.
The Supreme Court is not correct in its assumption that the
reach and range of the power of judicial review of the Supreme
Court and that of the High Courts are identical. It has already
been pointed out above that the power of judicial review in
India, after Kesavananda’s case, covers the following three
cases. The courts have the power to strike down the following:
i) subordinate legislation which is ultra vires the parent
Act;
ii) legislations of Parliament and the State Legislatures
if they contravene the provisions of the Constitution;
and
iii) the constitutional amendments which violate the basic
structure of the Constitution.60
The Supreme Court in Kesavananda for the first time in
the history of democratic Constitutions of the world, assumed
to itself the third power mentioned above, i.e., the power to
declare constitutional amendments as unconstitutional if they
violate the basic structure of the Constitution. Some might feel
that the assumption of this power by the Supreme Court is
bad enough in the context of representative democracy. But
what is worse would be to extend the exercise of this enormous
power to the High Courts also and after Chandra Kumar to all
manner of tribunals. One bizarre consequence would be that
different High Courts are likely to strike down different
provisions of constitutional amendments in different States and
the Constitution of India which is the fundamental law of the
country would be in operation in a fractured and fragmented
manner. In fact, a Division Bench of the Andhra Pradesh High
60 V. Nageswara Rao and G. B. Reddy, Doctrine of Judicial Review and Tribunals:
Speed Breakers Ahead, 39 JILI 411 (1997)
85
Court in Sakinala Harinath v. Andhra Pradesh has struck down
Article 323A (2) (d) which ousted the jurisdiction of the High
Courts in service matters. Given the vagaries of unstable
coalition governments which depend on survival politics at any
cost, the possibility cannot be ruled out of collusive writ petitions
in the High Courts seeking the striking down of inconvenient
provisions of constitutional amendments, past, present or
future, without any party seeking a further appeal to the
Supreme Court conveniently. Now, thanks to the Chandra
Kumar judgment, these disastrous results can be extended to
different tribunals within the same State striking down different
provisions of the constitutional amendments on the ground of
violation of the so-called basic structure of the Constitution.61
Thus, as stated above, the Supreme Court ought not to
assimilate the judicial review of the High Courts to that of the
Supreme Court of India with regard to the basic structure
doctrine as propounded in Kesavananda. The Supreme Court
should exclusively reserve to itself the power to strike down
constitutional amendments for violating the basic structure of
the Constitution. Bestowing this power on the High Courts
would create terrible constitutional confusion and this confusion
would be worse confounded if it is further extended to all manner
of tribunals. While the Supreme Court on one hand expressed
its serious reservations about the quality of justice dispensed
by these service tribunals, the court on the other hand was
willing to distribute the power of judicial review under the
Kesavananda doctrine to all sorts of tribunals throughout the
country.62
It should be remembered that though Parliament has the
power under Article 32(3) to confer the power of judicial review
61 Ibid.
62 Ibid.
86
on “other courts” without prejudice to the power of the Supreme
Court under Article 32(1), it has not done that so far even when
it has established different tribunals under different enactments.
But in an extraordinary gratuitous gesture the Supreme Court
has done that in Chandra Kumar’s case while professing to
uphold the supremacy of judicial review in the name of
upholding the supremacy of the Constitution.63
The power of judicial review of the High Courts under article
226 is not as inviolable as that of the Supreme Court under
article 32. While article 32(4) preserves the supremacy of
judicial review of the Supreme Court there is no saving
provision under Article 226. Establishment of tribunals as
substitutes and not supplements to the High Courts as held by
the Supreme Court in Sampath Kumar’s case is perfectly in
tune with the letter and spirit of the Constitution.64
As the Supreme Court itself observed in Chandra
Kumar’s case, the establishment of tribunals system was
necessitated by certain compelling circumstances like the need
for expert bodies to deal with specialized categories of dispute
settlement, the need for cutting down delays in the justice
delivery modalities, and docket explosion in the ordinary courts
of the land. The very purpose and Srationale of those tribunals
would be defeated if all those cases have to go before the
concerned High Courts again. It is too late in the day to go
back to Dicey’s puritanical view of Rule of Law vis-à-vis Droit
Administratif. Establishment of Alternative Dispute Resolution
mechanism is now universally accepted in common law as
well as continental legal systems and also in other jurisdictions.
In L. Chandra Kumar, the Supreme Court was justifiably
perturbed over the functioning and quality of justice dispensed
63 Ibid.
64 Ibid.
87
by the tribunals. The composition of the tribunals also needs
particular attention. There is no doubt, that many remedial
measures have to be taken regarding the composition,
qualifications and mode of appointment of members of the
tribunals as well as the judges of different High Courts and of
the Supreme Court.
The Law Commission in the aforesaid Report, as regards
the position of the Administrative Tribunal after L. Chandra
Kumar, also observed:
“It is no longer an alternative mechanism to the High Court,
but a tribunal whose decisions are subject to scrutiny by the
High Court, albeit by a Division Bench. (As a matter of fact,
Shri Justice Shiva Shankar Bhat, a retired Judge of the
Karnataka High Court, who was appointed as Chairman of
the Karnataka State Administrative Tribunal, tendered his
resignation soon after the decision in L. Chandra Kumar was
rendered, complaining that inasmuch as the position and status
of the Tribunal has been downgraded by the said decision, he
cannot continue as the Chairman of the State Administrative
Tribunal). While striking down certain clauses of Articles 323-
A and 323-B of the Constitution …, the Supreme Court has at
the same time affirmed the soundness of the principle on which
these administrative tribunals are created. It did not agree with
the contention that these tribunals should be abolished
inasmuch as they have not proved effective in discharge of
their duties and have failed to achieve the object with which
they were created. The Supreme Court has also held that
though these tribunals are subject to the writ jurisdiction of the
High Courts, they are yet competent to decide questions
relating to the constitutional validity of the statutory provisions
and rules except, of course, the provisions of the Administrative
88
Tribunals Act 1985 under which they have been constituted.
The Supreme Court has also rejected that there ought to be
no technical/administrative members in these tribunals. They
said that these non-judicial members provide an input which
may not be available with the judicial members.
In the light of the above dicta of the Supreme Court, not
much room is left for the Law Commission of India to suggest
any substantial measures or recommendations with respect
to the functioning of these tribunals.”65
Statutory finality of tribunals will not affect the jurisdiction
of H.C. and SC. If the Tribunal ceases to have control over the
matter, forums are:-
(a) The appellate authorities/Court ( if provided under
the Statute constituting the tribunal)
(b) S.C. :- Under Art. 32 ( writs) and 136(Special leave
to Appeal By S.C.
(c) H.C. :-Under Art 226(writ jurisdiction) and 227(power
of Superintendence)
The power of H.C. and S.C. is recognized by the
Constitution so it can not be taken away by the statute. Review
of decisions of tribunals can be done on many grounds, e.g. If
the order is arbitrary, perverse, or malafide, not observed
natural justice, error apparent on the face of record or is based
on irrelevant considerations etc.
Powers of HC and SC under the constitution are very
limited and these courts are often very reluctant to interfere
with the decisions of specially constituted authorities.
65 162nd Report of the Law Commission of India vide para 4.5.
89
Doctrine of Res Judicata and
Administrative Tribunals
Section 1166 of the Code of Civil Procedure, 1908 covers
the doctrine of res judicata. Res judicata is a Latin term, it
means a thing adjudged. It is a rule that a final judgment on
the merits by a court having jurisdiction is conclusive between
the parties to a suit as to all matters that were litigated or that
could have been litigated in that suit.
The Indian legal system places a high importance on this
rule and courts employ the rule of res judicata to prevent
dissatisfied party from trying to litigate the issue a second time.
Res judicata will be applied to a pending lawsuit if several
facts can be established by the party asserting the res judicata
defense. First, the party must show that a final judgment on the
merits of the case had been entered by a court having
jurisdiction over the matter. This means that a final decision in
the first lawsuit was based on the factual and legal disputes
between the parties rather than a procedural defect, such as
the failure to serve the defendant with legal process.
The general principle of res judicata also applies to
administrative adjudication although section 11 of the C.P.C.
speaks of the civil suits only.
When, and to what extent an administrative decision is to
be given the effect of a judgment binding on the parties in
66 11.Res judicata
.- No Court shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating under
the same title, in a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised’ and has been heard and finally decided
by such Court.
90
collateral proceedings has been said not to be governed by
logical rules. Commentators have treated the matter
functionally67, with rejection of any attempt , ”to lay down logical
rules to which numerous exceptions would have to be taken to
make them fit the law…”68 On the other hand judicial approach
has tended to be conceptual rather than pragmatic and
functional.
In the case of Bombay Gas Company v. Shridhar,69 it
was held that an award pronounced by Industrial Tribunal have
effect of res judicata between the same parties and thus it
was held that the Payment of Wages authority has no jurisdiction
to entertain the said question again.
In Bhopal Sugar Industries v. I.T.O.,70 the Income Tax
Officer refused to carry out clear and unambiguous directions
issued by income tax Tribunal. Observing that such refusal
would be against the fundamental principle of hierarchy of
courts, the Supreme Court stated, “Such a view is destructive
of the basic principles of the administration of justice.”
In the case of Bombay Gas Company v. Jagannath
Pandurang71 the Supreme court gave the observation that the
doctrine of res judicata is a wholesome one which is applicable
to not merely the matters governed by the provisions of the
Code of Civil Procedure but to all Litigations.
In case of Jain Exports v. Union of India,72 Supreme Court
stated “In a tier system undoubtedly the decisions of higher
authorities are binding on lower authorities and quasi-judicial
tribunals are also bound by this principle.”
It proceeds on the principle that there should be no
unnecessary litigations.
67 Hart, Ann Introduction to Administrative Law, 1940 , C. XV.
68 Note 1929, MICH. Law Review, 677, 679
69 AIR 1961 SC 1196
70 AIR 1961 S.C.182(185)
71 (1975) 4 SCC 690
72 (1988) 3 SCC 579 (585)
91