ADMINISTRATIVE LAW INTERNAL ASSIGNMENTNATIONAL LAW UNIVERSITY ODISHAADMINISTRATIVE LAW PROJECTPROJECT TOPIC:ADMINISTRATIVE TRIBUNALS AND THEIR ROLE INMODERN ERASubmitted to:Submitted by:Prof. Hyder AliMinal Sangatwani (12/bba/029)Shreyan Das (12/bba/050)Steve Saldanha (12/bba/054)ADMINISTRATIVE LAW INTERNAL ASSIGNMENTTABLE OF CONTENTS INTRODUCTION 3 EVOLUTION OF TRIBUNAL SYSTEM IN INDIA 4 ADMINISTRATIVE TRIBUNALS ACT, 1985 6 TYPES OF ADMINISTRATIVE TRIBUNALS 6 CENTRAL ADMINISTRATIVE TRIBUNAL (CAT) 7 CUSTOMS AND EXCISE REVENUE APPELLATE TRIBUNAL (CERAT) 7 ELECTION COMMISSION (EC) 7 FOREIGN EXCHANGE REGULATION APPELLATE BOARD (FERAB) 8 INCOME TAX APPELLATE TRIBUNAL 8 RAILWAY RATES TRIBUNAL 8 INDUSTRIAL TRIBUNAL 8 SOME FEATURES OF TRIBUNALS IN INDIA 8 SOURCES OF TRIBUNALS JURISDICTION 9 PROCEDURE 10 WHAT THE ADMINISTRATIVE TRIBUNALS CANNOT DO? 10 JUDICIAL INTERPRETATION 11 ADVANTAGES OF ADMINISTRATIVE TRIBUNAL 141ADMINISTRATIVE LAW INTERNAL ASSIGNMENT DISADVANTAGES OF ADMINISTRATIVE TRIBUNALS 15 TRIBUNALS IN INDIA: A CRITICAL MODERN OVERVIEW 15 CONSTITUTIONAL OVERVIEW REGARDING TRIBUNALS IN INDIA 17 CONCLUSION 19 BIBLIOGRAPHY 202ADMINISTRATIVE LAW INTERNAL ASSIGNMENTINTRODUCTIONWelfare nature of government is the evolutionary goal of probably every kind of government these days in this contemporary world. There has been a phenomenal increase in the functions of the government, which has lent enormous powers to the executive and also led to increase in the legislative output. This has led to more litigation, restrictions on the freedom of the individuals and constant frictions between them and the authority. The development of welfare-ism led to an increase in governmental functions and the executive saw in this a need to perform a number of quasi-legislative and quasi- judicial functions, thus blurring the traditional positions of the various wings of the government under the doctrine of separation of powers, under which the powers of the government were divided between the legislature, executive and the judiciary which were to be entrusted with the power of making law, executing it and interpreting the law respectively1.But now these welfare states changed radically and involve itself in the hosting of wide socio-economic activities; for example: providing health services, education , industrial regulation and other allied welfare measures2. Now where there is these kind of activities; disputes are certain and obvious. The issues which arose from disputes on such matters raised not only legal matters but also matters which affect the society at large. The constitution and function of our court system is very traditional as well as inefficient3. The inherent procedural limitations made it difficult for the courts to dispose these cases promptly thus leading to a huge backlog of cases in all levels of the judiciary. Courts therefore became deluged with litigations arising directly and incidentally from such increased governmental interventions. It was also felt in many quarters that the members of the judiciary were neither adequately trained nor equipped to deal with the complex socio-economic and technical matters at hand4.Thus it was felt specialised adjudicatory bodies such as tribunals needed to be created to resolve such disputes fairly and effectively5. The appointed to adjudicate on claims of a particular kind. The essence of the meaning of the word tribunal which can be culled out from the various Supreme Court authorities is that they are adjudicatory bodies (except ordinary courts of law) constituted by the State and invested with judicial and quasi-judicial functions as distinguished from administrative or executive functions. Administrative tribunals have emerged not only in India but also in many other countries with the objective of providing a new type of justice - public good oriented justice. These tribunals manned by technical experts, with flexibility in operations, informality in procedures have1Kagzi , M.C. Jain The Constitutional of India Vol.1 & 2. New Delhi: India Law House, 2001. 2De, D. J. The Constitution of India, Vol 1 & 23Ibid.4Id. at 1.5De, D. J. The Constitution of India, Vol 1 & 2.3ADMINISTRATIVE LAW INTERNAL ASSIGNMENTgained importance in the adjudication process. According to Seervai, the development of administrative law in a welfare state has made administrative tribunals a necessity'. Administrative tribunals are authorities outside the ordinary court system, which interpret and apply the laws when acts of public administration are questioned in formal suits by the courts or by other established methods6. They are not a court nor are they an executive body. Rather they are a mixture of both. They are judicial in the sense that the tribunals have to decide facts and apply them impartially, without considering executive policy7. They are administrative because the reasons for preferring them to the ordinary courts of law are administrative reasons. The Supreme Court in Jaswant Sugar Mills v. Lakshmi Chand laid down the following characteristics or tests to determine whether an authority is a tribunal or not8:Power of adjudication must be derived from a statute or statutory rule. It must possess the trappings of a court and thereby be vested with the power to summon witnesses, administer oath, compel production of evidence, etc. Tribunals are not bound by strict rules of evidence. They are to exercise their functions objectively and judicially and to apply the law and resolve disputes independently of executive policy. Tribunals are supposed to be independent and immune from any administrative interference in the discharge of their judicial functions9. This project comprehensively deals with the all possible aspects regarding the tribunals in India. An exhaustive research was done using secondary sources from books, articles and over the internet. A comprehensive bibliography is provided at the end of this project.EVOLUTION OF TRIBUNAL SYSTEM IN INDIAIn India, administrative adjudication increased after independence and several welfare laws were promulgated which vested the power on deciding various issues in the hands of the administration. The modern Indian Republic was born a Welfare State and thus the burden on the government to provide a host of welfare services to the people was immense. These quasi-judicial powers acquired by the administration led to a huge number of cases with respect to the manner in which these administrative bodies arrived at their decisions. The Courts held that these bodies must maintain procedural safeguards while arriving at their decisions and observe principles of natural justice-their6Kashyap, Subhash C. Khanna D.D. Kueck, Gret W. Reviewing the Constitution Delhi: Shipra Publication, 2000. 7Ibid.8Id. at 6.9Mathew, P.D. & P.M. Bakshi Indian Judicial System New Delhi: ISI, 2002.4ADMINISTRATIVE LAW INTERNAL ASSIGNMENTopinions were substantiated by the 14th Law Commission Report.In order to avoid clogging the judicial machinery with cases which would have arisen by the operation of these new socio-economic legislations, a number of tribunals were established by the government. The tribunals were established with the object of providing a speedy, cheap and decentralised determination of disputes arising out of the various welfare legislations10.Another important reason for the new development is that law courts, on account of their elaborate procedures, legalistic fronts and attitudes can hardly render justice to the parties concerned, in technical cases. Ordinary judges, brought up in the traditions of law and jurisprudence, are not capable enough to understand technical problems, which crop up in the wake of modem complex economic and social processes. Only administrators having expert knowledge can tackle such problems judiciously. To meet this requirement, a number of administrative tribunals have come into existence.In India such tribunals were set up immediately after independence. In fact, the most important adjudicatory function is carried out by statutory tribunals created by the legislature to adjudicate upon certain disputes arising from administrative decisions or to determine issues judicially11.The Railway Rates Tribunal, the Income Tax Appellate Tribunal, Labour Tribunals, the Companies Tribunal, various Compensation Tribunals, Revenue Courts of various States, etc., can be cited as examples of such tribunals. Regarding the problem of backlog and delayed disposal of case the Government set up the Administrative Reforms Commission in 1967. It was to examine the problem, suggests solutions and also to recommend the suitable areas in which tribunals could be set up, according to this commission The reasons for the growth of administrative tribunals are as follows:12Inadequacy of the traditional judiciary to effectively decide administration-related matters especially when it came to technicalities The traditional judiciary was seen to be slow, costly and excessively procedural. Service matters and dispute of employees under the state Orders of assessment on adjudication under Customs, Central Excise, Sales Tax and orders under the Motor vehicles Act13. Period of emergency played a crucial role in the evolution of tribunals in India. There were clear signals that the executive did not want the judiciary to interfere with their developmental plans10Supra note, 9.11Ibid.12Sathe S.P., Adminiostrative Law, 6th. Edn., Butterworths, New Delhi, 1999, pp. 245-252. 13Prof. Ramchandra G. Kapse v Haribansh Ramakbal Singh [1995] Supp6 S.C.R. 471.5ADMINISTRATIVE LAW INTERNAL ASSIGNMENTand other such decisions. Such as removing disputes regarding elections to the office of President, Prime Minister and Speaker of the Lok Sabha beyond judicial scrutiny14. Hence in 1976 the issue was discussed at the Conference of Chief Secretaries and from amongst all these discussions and the reports of the various bodies stated above, Parliament enacted the 42ndConstitution (Amendment) Act, 1976 inserting Articles 323A and 323B, which provided for the establishment of administrative and other tribunals to deal with the matters specifically provided for.The main distinction that can be made out between article 323A and 323B is that while 323A allows for the Parliament to by law provide for administrative tribunals to adjudicate disputes,323B allows for the any appropriate legislature, to by law create an administrative tribunal for the adjudication of disputes.Administrative Tribunals Act, 1985In pursuance of Art 323-A Parliament has passed the Administrative Tribunals Act, 1985 covering all matters falling within the clause (1) of Article 323- A. This Act authorises central government to establish administrative tribunals for central services and on the application o f States even for States services as well as for local bodies and other authorities including public corporation. From the date of establishment of tribunals all courts except the Supreme Court under Art 136 lose their jurisdiction with respect to the matter falling within the jurisdiction of the tribunals15.A tribunal shall consist of Chairman and such number of Vice-Chairmen and other members as appropriate Government may deem fit. They are appointed by the President in the case of Central tribunals and by the President in consultation with the Governors or Governors in case of State or joint Tribunals. The qualifications regarding that are laid down in the Act16.Other aspects regarding administrative Tribunals are being discussed below different headings and sub-headings.TYPES OF ADMINISTRATIVE TRIBUNALS1714Infra note 15.15Kashyap, Subhash C. (ed.) Constitutional Reforms: Problem, Prospects and Perspectives New Delhi: Radha Pub., 2004.16Ibid. at 15.17Raj , Hans The Constitution of India New Delhi: Surjeet Publications, 1998.6ADMINISTRATIVE LAW INTERNAL ASSIGNMENTThere are different types of administrative tribunals, which are governed by the statues, rules, and regulations of the Central Government as well as State Governments.Central Administrative Tribunal (CAT)The enactment of Administrative Tribunals Act in, 198518 opened a new chapter in administering justice to the aggrieved government servants. It owes its origin to Article 323 A of the Constitution which empowers the Central Government to set up by an Act of Parliament, the Administrative Tribunals for adjudication of disputes and complains with respective recruitment and conditions of service of persons appointed to the public services and posts in connection with the Union and the States19.The Tribunals enjoy the powers of the High Court in respect of service matters of the employees covered by the Act. They are not bound by the technicalities of the Code of Civil Procedure, but have to abide by the Principles of Natural Justice. They are distinguished from the ordinary courts with regard to their jurisdiction and procedures. This makes them free from the shackles of the ordinary courts and enables them to provide speedy and inexpensive justice20.The Act provides for the establishment of Central Administrative Tribunal and State Administrative Tribunals. The CAT was established in 1985. The Tribunal consists of a Chairman, Vice-Chairman and Members. These Members are drawn from the judicial as well as the administrative streams. The appeal against the decisions of the CAT lies with the Supreme Court of India21.Customs and Excise Revenue Appellate Tribunal (CERAT)22The Parliament passed the CERAT Act in 1986 The Tribunal adjudicate disputes,. Complaints or offences with regard to customs and excise revenue. Appeals from the, orders of the CERAT lies with the Supreme CourtElection Commission (EC)Administrative Tribunals Act, 1985 http://cgat.gov.in/act.htm as on 18th Oct,2011 Kashyap , Subhash C.(ed.) Perspectives of the Constitution New Delhi: Shipra Publishers, 1995. ISBN-81-85402-61-2. Ibid. at 19. Infra note 22. The Act was brought into force with effect from 2-10-1985. The Central Administrative Tribunals was set up on 1-11-1985.7ADMINISTRATIVE LAW INTERNAL ASSIGNMENTThe Election Commission is a tribunal for adjudication of matters pertaining to the allotment of election symbols to parties and similar other problems. The decision of the commission can be challenged in the Supreme Court.Foreign Exchange Regulation Appellate Board (FERAB)The Board has been set up under the Foreign Exchange Regulation Act, 1973. A person who is aggrieved by an order of adjudication for causing breach or committing offences under the Act can file an appeal before the FERAB.Income Tax Appellate TribunalThis tribunal has been constituted under the Income Tax Act, 196 1. The Tribunal has its benches in various cities and appeals can be filed before it by an aggrieved persons against the order passed by the Deputy Commissioner or Commissioner or Chief Commissioner or Director of Income Tax. An appeal against the order of the Tribunal lies to the High Court. An appeal also lies to the Supreme Court if the High Court deems fit.Railway Rates TribunalThis-Tribunal was set up under the Indian Railways Act, 1989. It adjudicates matters pertaining to the complaints against the railway administration. These may be related to the discriminatory or unreasonable rates, unfair charges or preferential treatment meted out by the railway 'administration. The appeal against the order of the Tribunal lies with the Supreme Court.Industrial TribunalThis Tribunal has been set up under the Industrial Disputes Act, 1947. It can be constituted by' both the Central as well as State governments. The Tribunal looks into the dispute between the employers and the workers in matters relating to wages, the period and mode of payment, compensation and other allowances, hours of work, gratuity, retrenchment and closure of the establishment. The appeals against the decision of the Tribunal lie with the Supreme Court.SOME FEATURES OF TRIBUNALS IN INDIAJurisdiction and Power:After the coming into force of Administrative Tribunals Act, 198510, all judicial remedies save those of the Supreme Court under Art 2 and 136 have been abolished and 8ADMINISTRATIVE LAW INTERNAL ASSIGNMENTthe pending proceeding before other courts stand transferred before the regional Administrative Tribunals under .29 of the Act23.Administrative Tribunal is competent to exercise all powers which the respective courts had, including declaration as to constitutionality of relevant laws. In short, the jurisdiction of the Tribunal is not supplementary but is a complete substitute of the High Courts and Civil Courts24. In view of .14 of the Administrative Tribunal Act, 1985, in case where the suit lay, the employee will now have to seek his remedy by application under s.19 of the Act. Pending suits shall stand transferred to the Administrative Tribunal having territorial jurisdiction under section 29 of the Act12. Section 29A (inserted in 1986) gives an appellant jurisdiction of the Central Administrative Tribunal. Appeals from judgement of Civil Courts in suits relating to service matter which are now governed by the A.T. Act shall lie to the Administrative Tribunals to the exclusion of any other Civil Appellant Court or the High Court13. The central Administrative Tribunal is the Tribunal constituted under Art.323-A of the Constitution and is expected to have the same jurisdiction as that of High Court25. Orders of the Central Administrative Tribunals are not open to challenge before the High Court. Sources of Tribunals Jurisdiction26Suit of proceeding transferred to it under .29 of the Act S.19 deals with jurisdiction of entertaining original application relating to service matters Appellant jurisdiction under s.29A What the Administrative Tribunals can do-1. Unconstitutionality of Law (a) The tribunal can declare the unconstitutional a statute or subordinate legislation relating to the dispute before it, which contravenes provisions of the constitution. (b) Whether a body would be an authority within the meaning of Art.12. 23 19 of the Administrative Tribunals Act, 1985.24 Kashyap , Subhash C.(ed.) Perspectives of the Constitution New Delhi: Shipra Publishers, 1995. ISBN-81-85402-61-2.2529A of the Administrative Tribunals Act, 1985.2629 of the Administrative Tribunals Act, 1985.9ADMINISTRATIVE LAW INTERNAL ASSIGNMENTIn a case where enquiry has been dispensed with under the 2nd proviso to Art 311(2), the tribunal is competent to examine the legal jurisdiction for such dispensation.15 It may decide question of law, including preliminary pleas in bar, e.g. limitation; non-joinder of party; territorial jurisdiction of the tribunal; res judicata. Procedure27A Tribunal is not barred by the provisions of the Evidence Act.16 In order to discover the truth, the Tribunal may resort to the inquisitional procedure, provided no principle of natural justice is violated. Tribunals shall be guided solely by the principles of natural justice unfettered by anything in the CPC and shall have the power to regulate its own procedure. A plea of violation of statutory provision can be taken before the Tribunal though not taken in the petition. It is competent to execute its own order, though the A.T Act has no specific provision in this behalf.28 What the Administrative Tribunals cannot do29?However wide be the jurisdiction of the tribunal, it cannot exercise any jurisdiction of powerwhich no court could exercise, e.g.-To question the ground of satisfaction of the President under Cl. (c) of the second proviso to Art.311 (2) 1730 To go into the merits of an administrative determination in the absence of mala fides, arbitrariness, colourable exercise of power or exercise of power without jurisdiction; or a finding without any evidence at all31. To overrule or by-pass decision of the High Court which are binding on it as precedents. Though, like the High Court or a Civil Court, an administrative Tribunal has jurisdiction to make interim order in like circumstances32. Ed. Sorabjee, Soli J. Law & Justice An anthology Delhi: Universal Law Publishing, 2006. Cf. Kaptan Singh v, UOI (1986) 4 SLR 545 (Del). UOI v. Deep Chand Pandey (1992) 4 SCC 432. 30Ibid.31UOI v. K D Batish AIR 2006 SC 789.10ADMINISTRATIVE LAW INTERNAL ASSIGNMENTJUDICIAL INTERPRETATION33As mentioned earlier, the Administrative Tribunals Act was passed in 1985 under article 323A and .28 of this Act provided for the exclusion of jurisdiction of all courts except that of the Supreme Court under Article 13618. This fuelled a sudden spurt in the number of cases that challenged the validity of the said legislation as well as that of the 42nd Amendment that introduced Articles 323A and 323B in to the constitution. Some of the prominent case in this regard is discussed below.S.P. Sampath Kumar v. Union of India34. This is the first and perhaps the most important case in this period that attracted judicial scrutiny in this area. The Constitution Bench in Sampath kumar was called upon to decide on the main issue whether Section 28 of the Act was unconstitutional as it excludes judicial review, which was contended as part of the basic structure of the constitution20. The Supreme Court accepted without doubt that judicial; review is part of the basic structure. However the Court went on to observe that the creation of alternate institutional mechanisms which were as effective as the High Courts would not be violative of the basic structure35. The administrative Tribunals under the Act were recognized as effective substitutes of the High Courts. This proved to be a shot in the arm of the proponents of tribunalisation. However the Apex Court came down heavily on the procedure for appointing the Chairman of the Tribunal. Section 6(1) (c) of the Act allowed a person who held the post of a Secretary to the Government of India or an equivalent post t become the Chairman. Since these Tribunals were to be substitutes of High Courts it is impermissible for bureaucrats to hold such a post. Hence this provision was held to be unconstitutional36. The Chairman should be a retiring or retired Chief Justice of a High Court. Other members have to appointed by a committee consisting of a sitting Judge of the Supreme Court. It was also suggested that the Chief Justice of India has to consult while making these appointments. The Parliament accepted these recommendations and now they find a place in the Act by way of the Administrative Tribunals (Amendment) Act of 198637.32Ibid. at 10.33Infra note 20.34S.P. Sampath Kumar v. Union of India AIR 1987 SC 386 35Ibid.36Id. at 387.37Samatha v State of Andhra Pradesh and Others AIR 1997 SC 329711ADMINISTRATIVE LAW INTERNAL ASSIGNMENTSambamurthy v. State of Andhra Pradesh38 It was held in this case that Article 371D (5) of the constitution, which was inserted by the Constitution (32nd Amendment) Act, 1973, was unconstitutional and void. This provision had enabled the Government of Andhra Pradesh to modify or nullify any order of the Administrative tribunal of that state39. It was pointed out that such a provision was violative of the basic structure as it made the tribunal not as effective as the High Court when it comes to judicial review. Here the Court seems to be strictly adhering to the directive in Sampath Kumars case that the administrative tribunals should be effective substitutes to the High Court.J.B.Chopra v. Union of India40 It was held that since the Administrative tribunals are meant to be substitutes of High Courts, their power of judicial review extended to power as to decide on the constitutionality of service rules. However, soon we see a reversal of trend leading to a lot of confusion. In M.B.Majumdar v. Union of India41 the Supreme Court refused to extend the service conditions and other benefits enjoyed by ordinary High Court judges to the members of these Tribunals. Three years later, in R.K.Jain v. Union of India42, the Supreme Court opined that these Tribunals could not be effective substitutes of High Courts under Articles 226 and 227. We also find very clear expression of dissatisfaction of the apex court regarding the functioning and effectiveness of Administrative Tribunals especially with regard to their power of judicial review.Sakinala Harinath v. State of Andhra Pradesh43 In this case, the Andhra Pradesh High Court dropped a bomb shell by expressing serious doubts about the wisdom of the learned Judges in Sampath Kumars case44. The Full Bench ruled that the ruling in the above case equating Administrative Tribunals to the High courts with respect to their jurisdiction under Articles 226 and 227 was inconsistent with the apex courts ruling in cases like Kesvananda Bharati v. State of Kerala45 and Indira Gandhi v. Raj Narain46. It was pointed out that the constitutional courts could only exercise the power of judicial review. Since the logic of alternative institutional mechanism propounded in Sampath Kumars case does not38Sambamurthy v. State of Andhra Pradesh (1987) I SCC 38639Ibid. at 389.40Id.41M.B. Majumdar v. Union of India (1990) 4 SCC 501. 42R.K.Jain v. Union of India (1993) 4 SCC 11943Sakinala Harinath v. State of Andhra Pradesh 1993 (2) An. W.R.484 (FB) 44Supra note, 3.45Kesvananda Bharati v. State of Kerala (1973) 4 SCC 225. 46Ibid. at 8.12ADMINISTRATIVE LAW INTERNAL ASSIGNMENTfit in to this scheme, it is constitutionally impermissible. As a result both Articles 323A(d) and section 28 of the Act were struck down as unconstitutional47.The judicial green signal given for tribunalisation given in Sampath Kumar can be seen to be slowly fading because of the subsequent decisions. The confusion created by these conflicting decisions ushered in the need for taking a second look at S.P. Sampath Kumars case. This opportunity arrived when a three judge bench of the Supreme Court in L. Chandrakumar v. Union of India28 decided to refer the matter to a larger bench. This eventually led to the famous ruling of the Seven Judge Bench of the Supreme Court on L. Chandrakumar v. Union of India48, which is now the law of the land.L. Chandrakumars Case The important issues considered by the apex court were as follows:Whether Art. 323A (2) (d) and Art.323B (3) (d) of the constitution which give the power to the Union and State Legislatures to exclude the jurisdiction of all courts except that of the Supreme Court under Art.136, is in accordance with the power of judicial review embodied in Art.32 and 22649. Whether the power of High Courts to exercise the powers of superintendence over the subordinate judiciary under Articles 226 and 227 form part of Basic Structure50. The competence of the aforesaid tribunals to determine the constitutionality of any law51. Whether the aforesaid tribunals are acting as affective substitutes to High Courts in terms of efficiency52. It was held that the power of judicial review over legislative and administrative action is expressly vested with the High Courts and the Supreme Court under Articles 226 and 32 respectively. The contention that the constitutional safeguards which ensure the independence of the higher judiciaryis not available to the lower judiciary and bodies such as Tribunals was upheld and the Apex Court consequently held that the lower judiciary would not be able to serve as effective substitutes to the higher judiciary in matters of constitutional interpretation and47Indira Gandhi v. Raj Narain AIR 1975 SC 2291.48L. Chandrakumar v. Union of India AIR 1995 SC 1151.49Ibid. at 13.50Id. at 15.51See also, Prof. Ramchandra G. Kapse v Haribansh Ramakbal Singh [1995] Supp6 S.C.R. 471, 1996 (1) UJ 471 52Samatha v State of Andhra Pradesh and Others AIR 1997 SC 3297.13ADMINISTRATIVE LAW INTERNAL ASSIGNMENTjudicial review. Hence the power of judicial review is vested in the higher judiciary and the power of High Courts and the Supreme Court to test the constitutional validity of legislative and administrative action cannot ordinarily be ousted. However it was held that these tribunals and the lower judiciary could exercise the role of judicial review as supplement to the superior judiciary. The court applied the provisions of Article 32(3) to uphold the same53.ADVANTAGES OF ADMINISTRATIVE TRIBUNALAdministrative adjudication is a dynamic system of administration, which serves, more adequately than any other method, the varied and complex needs of the modem society. The main advantages of the administrative tribunals are:1) FlexibilityAdministrative adjudication has brought about flexibility and adaptability in the judicial as well as administrative tribunals. For instance, the courts of law exhibit a good deal of conservatism and inelasticity of outlook and approach. The justice they administer may become out of harmony with the rapidly changing social conditions. Administrative adjudication, not restrained by rigid rules of procedure and canons of evidence, can remain in tune with the varying phases of social and economic life.2) Adequate JusticeIn the fast changing world of today, administrative tribunals are not only the most appropriated means of administrative action, but also the most effective means of giving fair justice to the individuals. Lawyers, who are more concerned about aspects of law, find it difficult to adequately assess the needs of the modem welfare society and to locate the individuals place in it.3) Less ExpensiveAdministrative justice ensures cheap and quick justice. As against this, procedure in the law courts is long and cumbersome and litigation is costly. It involves payment of huge court fees, engagement of lawyers and meeting of other incidental charges. Administrative adjudication, in most cases, requires no stamp fees. Its procedures are simple and can be easily understood by a layman.53Supra note, 18.14ADMINISTRATIVE LAW INTERNAL ASSIGNMENT4) Relief to CourtsThe system also gives the much-needed relief to ordinary courts of law, which are already overburdened with ordinary suits.DISADVANTAGES OF ADMINISTRATIVE TRIBUNALSEven though administrative adjudication is essential and useful in modem day administration, we should not be blind to the defects from which it suffers or the dangers it poses to a democratic polity. Some of the main drawbacks are mentioned below.Administrative adjudication is a negation of Rule of Law. Rule of Law ensures equality before law for everybody and the supremacy of ordinary law and due procedure of law over governmental arbitrariness. But administrative tribunals, with their separate laws and procedures often made by themselves, puts a serious limitation upon the celebrated principles of Rule of Law. Administrative tribunals have in most cases, no set procedures and sometimes they violate even the principles of natural justice. Administrative tribunals often hold summary trials and they do not follow any precedents. As such it is not possible to predict the course of future decisions. The civil and criminal courts have a uniform pattern of administering justice and centuries of experience in the administration of civil and criminal laws have borne testimony to the advantages of uniform procedure. A uniform code of procedure in administrative adjudication is not there. Administrative tribunals are manned by administrators and technical heads who may not have the background of law or training of judicial work. Some of them may not possess the independent outlook of a judge. TRIBUNALS IN INDIA: A CRITICAL MODERN OVERVIEW15ADMINISTRATIVE LAW INTERNAL ASSIGNMENTTribunals are essentially those bodies of the Executive branch of the government who by virtue of some statutory provision have the power and duty to act judicially in determining disputes which come before it. Tribunals as stated earlier are distinct from the ordinary courts of the land and as per Chandrakumars case they are not on par with the High Courts but serve a supplemental function to the High Courts54. They are therefore subject to the writ jurisdiction of the superior judiciary and to the power of judicial review exercisable by the superior judiciary. In most of the tribunals appeals from their decisions lie in the High Court on substantial questions of law55.There are different types of tribunals in India, ranging from single member tribunals to multi-member tribunals. Tribunals such as the Industrial tribunal may consist of one or more members, and they can be appointed by the appropriate government. The chairman of the tribunal is supposed to possess judicial qualifications and is supposed to be or have been a judge of the High Court or a District judge or be qualified for appointment as a High Court judge. The other members are expected to satisfy the prescribed requirements- which are to ensure that the members are experts and will be able to speedily and effectively dispose of matters. The procedure to be followed by the tribunal is prescribed by the Act and rules made there under56. Though the function of the tribunal is to adjudicate on the disputes it has only some of the trappings of the court. It is not bound by strict rules of procedure and can take decisions by exercising its discretion. While accepting the fact that such tribunals must work towards furthering social justice, it has been held in J&K Iron and Steel Co. v. Mazdoor Union that tribunal cannot act beyond the scope of the law. It can decide the dispute on the basis of the pleadings and has no power to reach a conclusion without any evidence on record. The tribunal is expected to hold the proceedings in public, follow fair procedure and decide disputes impartially and independently.All tribunals in India are arranged on the following57Created by a statute58. Subject to the writ jurisdiction of the superior judiciary and to judicial review. Manned by experts and persons with judicial experience. 54Infra note 55.55L. Chandrakumar v. Union of India AIR 1995 SC 1151. 56Ibid.57See, Sharma, S.R. (ed.) Encyclopaedia of Constitutional Law Vol. 1 to 5: An Introduction to Constitutional Law New Delhi: Anmol Publications, 2003.58Ibid. at 56.16ADMINISTRATIVE LAW INTERNAL ASSIGNMENTSubject to the superintendence of the concerned High Court under Art.22759 Decisions may be final or appealable within the tribunal or in certain cases to the High Court. Appeals against orders of the tribunal may be heard by the Supreme Court by special leave under Art. 13660. CONSTITUTIONAL OVERVIEW REGARDING TRIBUNALS IN INDIA61Among the many innovative provisions adopted by the Forty-second Amendment of the Constitution (1976) a measure of far-reaching importance was the provision for the setting up of Administrative Tribunals. Part XIV-A which consists of two Articles 323A and 323B deals with these Tribunals. Section (1) of Article 323-A provides for the adjudication or trial by administrative tribunals62 of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India. The power to constitute such Tribunals is vested exclusively in Parliament63.Section (2) of the same Article provides that a law made by Parliament under (1) may:Provide for the establishment of an Administrative Tribunal for the Union and a separate Administrative Tribunal for each State or for two or more States64;Specify the jurisdiction, powers and authority which may be exercised by such tribunals; Provide for the procedure to be followed by these tribunals; and Exclude the jurisdiction of all courts except the special jurisdiction of the Supreme Court under Article 13665. Article 323-B empowers Parliament or State Legislatures to set up tribunals for matters other than those covered by clause (2) of Article 323-A. The matters to be covered by such tribunals are as follows66:Levy, assessment, collection and enforcement of any tax; 59Joshi, K. C., Legal Status of Tribunals, IBR, Vol. 25 (2), 1998. 60Supra note 56.61See, Om Prakash Pathak v. UOI (1986) 4 SLR 251. 62Supra note 58.63Joshi, K. C., Legal Status of Tribunals, IBR, Vol. 25 (2), 1998.64Mathew, P.D. & P.M. Bakshi Indian Judicial System New Delhi: ISI, 2002. 65See, In re Staklinski & Pyramid Elec. Co. 6 N.Y.2d 159.66Sathe S.P., Adminiostrative Law, 6th. Edn., Butterworths, New Delhi, 1999, pp. 245-252.17ADMINISTRATIVE LAW INTERNAL ASSIGNMENTForeign exchange, import and export across customs frontiers; Industrial and labour disputes67; Matters connected with land reforms covered by Article 31-A; Ceiling on urban property; Elections to either House of Parliament or Legislatures of the States and Production, procurement, supply and distribution of food-stuffs or other essential goods68. A law made under the above provisions may provide for the establishment of a hierarchy of tribunals and specify the jurisdiction, powers and authority which may be exercised by each of them. Such law may also provide for the procedure to be followed by these tribunals and exclude the jurisdiction of all courts except the Supreme Court of India.The Scheme of Administrative Tribunals envisaged by Part XIV-A of the Constitution as several other provisions of the Forty-second Amendment of the Constitution was looked upon with suspicion and misgivings by certain sections of political and public opinion in the country and that was reflected in the attempt of the Janata Government (1977-79) to abolish these provisions69. The Forty-fourth Amendment (1978) among other things sought to abolish Part XIV-A altogether. However, this attempt of the Janata Government was unsuccessful as it could not muster adequate support in Parliament70.The basic objective of administrative tribunals is to take out of the purview of the regular courts of law certain matters of dispute between the citizen and government agencies and make the judicial process quick and less expensive71.The fact that there has been a phenomenal increase in the number of disputes in which administrative authorities are involved has to be recognised. If all these disputes go to the ordinary judicial system where there is provision for appeals to successive higher courts one after another, there will be no speedy settlement of such disputes and they might linger for years or decades.Inordinate delay and enormous cost are the two distinguishing features of the ordinary judicial system. The number of cases that are pending before the High Courts and the Supreme Court today is legion72. No one can normally expect any67G Mohanti v. UOI ATR (1987) 1 CAT 229.68Mathew, P.D. & P.M. Bakshi Indian Judicial System New Delhi: ISI, 2002.69Ekta Shakti Foundation v Government of (NCT of Delhi) [2006] Supp3 S.C.R. 631. 70Jagdishchandra Maganlal Trivedi v. State Bank of India AIR 2005 NOC 371.71Jha, Abhishek Kumar , 'Administrative Tribunals of India': A Study in the Light of Decided Cases (January 22, 2012). Available at SSRN: http://ssrn.com/abstract=1989780 or http://dx.doi.org/10.2139/ssrn.1989780.72Supra note 61.18ADMINISTRATIVE LAW INTERNAL ASSIGNMENTspeedy disposal of most of them73. At the same time, there are matters of social concern which require reasonably quick disposal. Administrative tribunals facilitate this and that is the strongest argument in their favour.Administrative tribunals are not an original invention of the Indian political system. Such tribunals are now well established in all democratic countries of Europe as well as the United States of America74.Britain which until a few decades ago looked upon administrative tribunals with suspicion has, in recent times, recognised their beneficial role and therefore has set up many of them. The experience of India during the past two decades and more has demonstrated that administrative tribunals have an effective role to play in a country which has embarked upon a programme of rapid socioeconomic change75.CONCLUSIONIn practice there are a number of tribunals functioning in the country. Very few of them, however, have been able to inspire confidence in the public. The tribunals have shown a singular lack of competence and objectivity in determining disputes. Another reason for their failure is the constitution of the tribunals and the method of appointment of the personnel. Persons with expertise and the right qualifications do not want to sit on these tribunals thus leading to the unsatisfactory functioning of these tribunals. The uncertainty of tenure, unsatisfactory service conditions, interference by the executive and political interference have further impeded the proper development of tribunals in India. Tribunals are supposed to provide specialised adjudicatory services but the type of people appointed lack the requisite expertise and are on the tribunals merely because of political pressure and executive interference76.Tribunals are supposed to serve as alternative institutional mechanisms to high courts, they must therefore be able to inspire public confidence by proving themselves to be a competent and expert mechanism with a judicial and objective approach. In order to achieve this it is essential that members of the tribunal are equipped with adequate judicial acumen and expertise77. These judicial officers need to be balanced with experts in the particular field. Only a judicious blend of the two will be able to provide an effective and result oriented tribunal system. Another important measure which needs to be taken are steps to maintain the independence of the73Ibid.74Infra note 71.75 Tribunalisation in India http://legalsutra.org/1446/tribunalisation-in-india/ as on 16th August, 2013.76See, Supra note 61.77Samatha v State of Andhra Pradesh and Others AIR 1997 SC 329719ADMINISTRATIVE LAW INTERNAL ASSIGNMENTmembers of these tribunals from political or executive interference78. Just as the ordinary judiciary are protected from political control through security of tenure and through institutionalized methods of appointment (through a selection committee comprising of the Chief Justice, Departmental secretaries, etc.) in order to further reduce the burden on the high courts the high courts must be divested of the supervisory jurisdiction over the tribunals. It is essential therefore that a single centralised nodal agency be established to oversee the functioning of the tribunals. Such a centralised umbrella organisation will ensure the independence of the tribunals in matters of tenure and funds79.Thus the overall picture regarding tribunalisation of justice in the country is far from satisfactory80. A fresh look at the system of tribunals in India is required so as to ensure speedy justice and quick disposal of disputes arising out of administrative disputes which are essential for the development of the nation81.BIBLIOGRAPHYCASESS.P. Sampath Kumar v. Union of India AIR 1987 SC 386Sambamurthy v. State of Andhra Pradesh (1987) I SCC 386M.B. Majumdar v. Union of India (1990) 4 SCC 501.R.K.Jain v. Union of India (1993) 4 SCC 119Sakinala Harinath v. State of Andhra Pradesh 1993 (2) An. W.R.484 (FB)Kesvananda Bharati v. State of Kerala (1973) 4 SCC 225Indira Gandhi v. Raj Narain AIR 1975 SC 2291L. Chandrakumar v. 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