A CRITICAL STUDY OF THE CONSTITUTION AND FUNCTIONING OF THE ADMINISTRATIVE TRIBUNALS IN INDIA –WITH A SPECIAL FOCUS ON LEGAL AND CONSTITUTIONAL ISSUES
By K P C Rao.,
LL.B., FCS., FCMA.
Practicing Company Secretary,
Nature of Indian Polity
The preamble to the constitution of India lays down as under:
WE, THE PEOPLE OF INDIA having solemnly resolved to constitute India into a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Importance of the Preamble
The Preamble of the Constitution sets out the aspirations, hopes, ideals and results anticipated to be achieved by the people via the path of the Constitution. The preamble of the Constitution also declares that the source of authority under the constitution is the people of India and there is no subordination to any external authority. Without altering the basic structure of the Constitution, it can be amended in tune with the social changes by adopting the procedure prescribed in the Constitution.
Rule of Law
‘Rule of Law’ is the supreme manifestation of human civilization and culture and is new ‘lingua franca’ of global moral thought. It is an eternal value of constitutionalism and an inherent attribute of democracy and good governance.
In India, concept of Rule of Law can be traced to Upanishad. It provides-Law is the King of Kings. It is more powerful and rigid than they (Kings). There is nothing higher than law. By its powers the weak shall prevail over the strong and justice shall triumph. Thus in monarchy, the concept of law developed to control the exercise of arbitrary powers of the monarchs who claimed divine powers or rule.
In a democracy, the concept has assumed different dimension and means that the holders of public powers must be able to justify publically that the exercise of power is legally valid and socially just.
The Rule of Law is a viable and dynamic concept and, like many other such concepts, is not capable of any exact definition. This, however, does not mean that there is no agreement on the basic values which it represents. The term Rule of Law is used in contradistinction to ‘rule of man’ and ‘rule according to law’. Even in the most autocratic forms of government there is some law according to which the powers of the government are exercised but it does not mean that there is the Rule of Law. Therefore, Rule of Law means that the law rules, which is based on the principles of freedom, equality, non-discrimination, fraternity, accountability and non-arbitrariness and is certain, regular and predictable, using the word ‘law’ in the sense of ‘jus’ and ‘lex’ both. In this sense ‘the Rule of Law’ is an ideal. It is a modern name for natural law. In history, man has always appealed to something higher than that which is his own creation. In jurisprudence, Romans called it ‘jus naturale’, Mediaevalists called it the ‘Law of God’, Hobbes, Locke and Roussueau called it ‘social contract’ or ‘natural law’ and the modern man calls it ‘Rule of Law’.
The basic concept of the rule of Law is not a well-defined legal concept. The courts would not invalidate any positive law on the ground that it violates the contents of the Rule of the Law. However, in ADM v. Shivakant Shukla, popularly known as Habeas Corpus case, and attempt was made to challenge the detention orders during the Emergency on the ground that it violates the principles of the Rule of Law as the “obligation to act in accordance with rule of law… is a central feature of our constitutional system and is a basic feature of the Constitution”.
In Kesavanada Baharti v.State of Kerala, the Rule of Law was considered as an “aspect of the doctrine of basic structure of the Constitution, which even the plenary power of Parliament cannot reach to amend.”
In Indira Nehru Gandhi v. Raj Narain, in which the Supreme Court invalidated clause (4) of Article 329-A, inserted in the Constitution by the Constitution (Thirty-ninth Amendment) Act, 1975 to immunize the election dispute to the office of the Prime Minister from any kind of judicial review.
A study of Kesavananda, Indira Gandhi and other Habeas Corpus Cases, reveals a distillation of Indian Judicial thought on the conceptions of the Rule of Law, which has evolved well over a quarter century.
The Supreme Court in the case of P.Sambamurthy v. State of A.P, categorically stated that Article 371-D (5) (Proviso) of the Constitution clearly violates Rule of Law which is a basic structure and essential feature of the Constitution.
This provision has authorized the State Government of Andhra Pradesh to nullify any decision of the Administrative Services Tribunal. Declaring the provision unconstitutional, the court maintained that it is a basic principle of Rule of Law that the exercise of power by the executive or by any other authority must not only be conditioned by the executive or by any other authority must not only be conditioned by the Constitution but must also be in accordance with law and the power of judicial review as conferred by the Constitution.
Indian courts have gone further to insist on specific positive content of the Rule of Law obligations. These include the rules of natural justice which have to be followed not just in quasi-judicial action but often also in purely administrative action. The scope and content of the requirement of natural justice have varied from time to time according to the judicial interpretation, but the broad insistence remains.
The concept of ‘Rule of Law’ contains three principles:
(i) Absence of discretionary power in the hands of the government officials. By this Dicey implies that justice must be done through known principles. Discretion implies absence of rules, hence in every exercise of discretion there is room for arbitrariness.
(ii) No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, the Rule of Law implies:
a) Absence of special privileges for a government official or any other person;
b) All the persons irrespective of status must be subjected to the ordinary courts of the land;
c) Everyone should be governed by the law passed by the ordinary legislative organs of the State.
(iii) The rights of the people must flow from the customs and traditions of the people recognized by the courts in the administration of justice.
The modern concept of the Rule of Law is fairly wide and, therefore, sets up an ideal for any government to achieve. This concept was developed by the International Commission of Jurists, known as Delhi Declaration, 1959, which was later on confirmed at Lagos in 1961. According to this formulation, the Rule of Law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld.
During the last few years the Supreme Court in India has developed some fine principles of Third World jurisprudence. Developing the same new constitutionalism further, the Apex Court in Veena Sethi v. State of Bihar extended the reach of the Rule of Law to the poor and the downtrodden, the ignorant and the illiterate, who constitute the bulk of humanity in India.
A conference on the Rule of Law at Chicago described the broad areas of agreement as follows:
(i) The Rule of Law is an expression of an endeavour to give reality to something which is not readily expressible.
(ii) The Rule of Law is based upon the liberty of the individual and has as its object the harmonizing of the opposing notions of individual liberty and public order.
(iii) There is an important difference between the concept of Rule of Law as the supremacy of law over the government and the concept of rule of law as the supremacy of law in society generally.
(iv) Although much emphasis is placed upon the supremacy of the legislature in some countries of the West, the Rule of Law does not depend upon contemporary positive law.
Recent aggressive judicial activism can only be seen as a part of the efforts of the Constitutional Courts in India to establish rule-of-law in society which implies that ‘no matter how high a person may be, the law is always above him’. Court is also trying to identify the concept of rule of law with human rights of the people.
The principle of judicial review became an essential feature of written Constitutions of many countries including India. The essential difference between a Government of despots and a Government of democratically elected persons is that in the former case, there are no limitations on the powers or their exercise whereas in the latter case, the powers are defined and their exercise is regulated by law. In a democratic country like ours, governed by the rule of law, the principle is, "be thou so high the law is above you".
Judicial review is central in dealing with the malignancy in the exercise of administrative power. Outsourcing of legislative and adjudicatory powers to the administrative authorities as an imperative of modern system of governance has brought the law of judicial review of administrative action in prime focus. Law dealing with judicial review of administrative action is largely judge-induced and judge-led; consequently thickets of technicalities and inconsistencies surround it. Anyone who surveys the spectrum of judicial review finds that the fundamentals on which courts base their decision include Rule of Law, administrative efficiency, fairness and accountability. These fundamentals are necessary for making administrative action “people-centric”.
Judicial review is the basic feature of the Indian Constitution and therefore, cannot be abrogated even by an amendment of the Constitution. It is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution embody the principle of judicial review. Article 32 is included in Part III as a fundamental right for enforcement of any of the fundamental rights conferred under Part III.
However, in view of new economic policy of liberalization, privatization and globalization courts are allowing wider flexibilities to the administration. Trend of judicial decisions indicate that unless an administrative action is violative of the Constitution or law or is arbitrary of mala fide, courts do not interfere with administrative decisions. Fact remains that without a good system of judicial review any society would collapse under its own weight making ‘development’ counterproductive.
II. AIMS / OBJECTS OF THE STUDY
The following are the objectives of the study:-
1) To understand the meaning of the term Administrative tribunal.
2) To look into the history and evolution of administrative tribunals in India.
3) To critically examine articles 323-A and 323-B of the Constitution of India.
4) To look into the working and functioning of Administrative Tribunals in India today.
5) To find out the reasons for the controversy over the scope and jurisdiction of Administrative Tribunals in India
6) To suggest ways and means to improve the Tribunal system in India in adjudication of disputes in regard 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
7) To give reasons for the suggestions based on empirical research.
III. SIGNIFICANCE OF THE TOPIC OF RESEARCH
Access to justice
The Indian Constitution guarantees justice to all. All Indian citizens are guaranteed equal rights of life and personal liberty, besides many other fundamental rights. The Constitution of India through article 14 guarantees equality before the law and the equal protection of the laws. Article 39A of the Constitution mandates the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity, and ensure that the same is not denied to any citizen by reason of economic or other disabilities. Equal opportunity must be afforded for access to justice. It is not sufficient that the law treats all persons equally, irrespective of the prevalent inequalities. But the law must function in such a way that all the people have access to justice in spite of economic disparities. The expression “access to justice” focuses on the following two basic purposes of the legal system:
1) The system must be equally accessible to all.
2) It must lead to results that are individually and socially just.
Traditional concept of "access to justice" as understood by common man is access to courts of law. For a common man a court is the place where justice is meted out to him/her. But the courts have become inaccessible due to various barriers such as poverty, social and political backwardness, illiteracy, ignorance, procedural formalities and the like.
To get justice through courts one has to go through the complex and costly procedures involved in litigation. One has to bear the costs of litigation, including court fee and, of course, the lawyer’s fee. A poor litigant who is barely able to feed himself will not be able to afford justice or obtain legal redressal for a wrong done to him, through courts. Further a large part of the population in India is illiterate and live in abject poverty. Therefore, they are totally ignorant about the court-procedures, are terrified and confused when faced with the judicial machinery. Thus, most of the citizens of India are not in a position to enforce their rights, constitutional or legal, which in effect generates inequality.
It is one of the most important duties of a welfare state to provide judicial and non-judicial dispute-resolution mechanisms to which all citizens have equal access for resolution of their legal disputes and enforcement of their fundamental and legal rights. Poverty, ignorance or social inequalities should not become barriers to it. The Maneka Gandhi principle, as enunciated by the Indian Supreme Court, that fundamental rights do not constitute separate islands unto themselves but constitute a continent ushered in what Krishna Iyer, J. terms the jurisprudence of access to justice. He said:
"We should expand the jurisprudence of Access to Justice as an integral part of Social Justice and examine the constitutionalism of court-fee levy as a facet of human rights highlighted in our Nation's Constitution. If the State itself should travesty this basic principle, in the teeth of Articles 14 and 39A, where an indigent widow is involved, a second look at its policy is overdue. The Court must give the benefit of doubt against levy of a price to enter the temple of justice until one day the whole issue of the validity of profit-making through sale of civil justice, disguised as court-fee is fully reviewed by this Court".
Article 39A, as noted above, provides for equal justice and free legal aid. The said article obligates the State to in particular provide free legal aid, by suitable legislation or schemes or in any other way, to promote justice on the basis of equal opportunity. Article 39A puts stress upon legal justice. The directive requires the State to provide free legal aid to deserving people so that justice is not denied to anyone merely because of economic disability. The Supreme Court in Sheela Barse v. State of Maharashtra as emphasized that legal assistance to a poor or indigent accused arrested and put in jeopardy of his life or personal liberty is a constitutional imperative mandated not only by article 39A but also by articles 14 and 21 of the Constitution. In the absence of legal assistance, injustice may result. Every act of injustice corrodes the foundation of democracy and rule of law. Article 39A makes it clear that the social objective of equal justice and free legal aid has to be implemented by suitable legislation or by formulating schemes for free legal aid.
Though Article 39A was introduced in the Constitution in 1976, its objective of providing access to justice could never have been fulfilled but for the majestic role played by the Supreme Court in ‘Public Interest Litigation Movement’. This is a movement whereby any public-spirited person can move the Court for remedying any wrong affecting the public. This is a significant step by the Supreme Court in giving access to justice to the people belonging to the lowest strata of society. Further, it was only through cases filed in public interest that the Supreme Court was able to encourage legal aid service to poor and indigent persons. Through public interest litigation the courts are able to deal with poor people suffering from injustice and exploitation, such as, bonded labour, dalits, women, children, physically challenged, mentally challenged and so on.
Large population, more litigation and lack of adequate infrastructure are the major factors that hamper our justice system. Regular adjudication procedures through the constant efforts of Legal Services Authorities will act as catalysts in curing these maladies of our system.
Time has come to think of providing a forum for the poor and needy people who approached the law courts to redress their grievance speedily. However, the delay in disposal of cases in law court, for whatever reason it may be, has really defeated the purpose for which the people approach the courts for their redressal. Justice delayed is justice denied and at the same time justice hurried is justice buried. So, one has to find out a via media between these two to render social justice to the poor and needy who want to seek their grievance redressed through Law Courts.
The Constitutional promise of securing to all its citizens justice - social, economic and political as promised in the Preamble of the Constitution cannot be realised unless the three organs of the State i.e. legislature, executive and judiciary join together to find ways and means for providing to the Indian poor equal access to its justice system.
The judiciary has tried to do this through Public Interest Litigation movement, but this movement has now lost much of its momentum. The executive is balking at enforcing the courts’ orders in Public Interest Litigation cases. The persons undertaking PIL cases are misusing the opportunity provided or they are not able to fully utilize the opportunity.
Interaction between the three wings of the Government is necessary to improve the justice delivery system and such co-operation should be seen in day-to-day dispensation of justice. Sessions trials in several Courts in the country are held up because of unwanted adjournments on just asking either by the defence counsel or Public Prosecutor, not examining the witnesses within the scheduled time and the non-cooperation of the prosecuting agency. There is a general complaint that the Police has no sufficient time or force, to serve in time the summons on the witnesses and keep the under trial prisoners present in the Court, at the time of trial. There are instances coming to light that the offenders are sentenced but sentences imposed, are not executed because the convicts had already jumped bail and the police has no will and time to search them out.
It is not uncommon for any criminal case to drag on for years. During this time, the accused travels from the zone of "anguish" to zone of "sympathy". The witnesses are either won over by muscle or money power or they become sympathetic to the accused. As a result, they turn hostile and prosecution fails. In some cases, the recollection becomes fade or the witnesses die. Thus, long delay in courts causes great hardship not only to the accused but even to the victim and the State. The accused, who is not let out on bail, may remain in jail for number of months or even years awaiting conclusion of the trial. Thus, effort is required to be made to improve the management of the prosecution in order to increase the certainty of conviction and punishment for most serious offenders. It is experienced that there is increasing laxity in the court work by the police personnel, empowered to investigate the case.
Judiciary today is more deserving of public confidence than ever before. The judiciary has a special role to play in the task of achieving socio-economic goals enshrined in the Constitution while maintaining their aloofness and independence; the Judges have to be aware of the social changes in the task of achieving socio-economic justice for the people.
The Indian Judicial system is constantly exposed to new challenges, new dimensions and new signals and has to survive in a world in which perhaps the only real certainty is that the circumstances of tomorrow will not be the same as those of today. The need of the hour is to correct misconception about the Judiciary by making it more accessible and more explicit, by utilizing the resources available to improve the service to the public, by reducing delays and making courts more efficient and less daunting.”
At the National Seminar on ‘Delay in Administration of Criminal Justice System’ held at New Delhi on 17 March, 2007, the Chief Justice of India, in his Presidential Address observed:
“The criminal justice system in the country is designed to protect the citizens of this country from the onslaught of criminal activities of a section of the community which indulges in such acts. The outcome of any criminal justice system must be to inspire confidence and create an attitude of respect for the rule of law. An efficient criminal justice system is one of the cornerstones of good governance. When we think of criminal justice system it consists of the police, prosecuting agency, various courts, the jail and the host of other institutions connected with the system. The State as a guardian of fundamental rights of its citizens is duty-bound to ensure speedy trial and avoid excessively long delays in trial of criminal cases that could result in grave miscarriage of justice. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible. But, unfortunately, there are a large number of cases pending in various courts. Various factors contribute to large pendency of criminal cases in the subordinate courts. Speedy trial of criminal cases should be recognized as an urgent need of the present judicial system in order to decide the fate of lakhs of litigants. It will help enhance the faith of general public in the present judicial system. In order to have a strong socio-economic system, it is important that each and every state of trial of an accused should move at reasonably fast pace…. Speedy trial ensures that a society is free of such vices. The new system of plea bargaining incorporated in the Criminal Procedure Code shall be available to the under-trial prisoners and the court and the prosecuting agency and the lawyers should make them aware of the benefits of the benevolent provision incorporated in our statute.
The challenges before the criminal justice system are to balance the rights of the accused while dispensing speedy and effective justice. The criminal justice system machinery must also meet the challenge of effectively dealing with the emerging forms of crime and behaviour of the criminals.
On many occasions, delay in the process of trial is caused by the accused themselves. The accused know that any delay in trial would only help him as the memory of the witnesses is likely to be blurred by the passage of time.
In the trial of criminal cases a Judge should be a little more active and he can contribute to a great extent in preventing the delay in the administration of justice. On many occasions the Sessions Judges adjourn the cases for long period and the delay is thus caused and many witnesses who would have supported the prosecution case lose interest in the case and often forget the ethical duty cast on them. In most of the cases, the blame for delay in administration of criminal justice system is put at the door of the courts. Courts are over congested with petty cases and many legislations are being enacted which result in filing of large number of cases before the courts. Inclusion of additional forms of crime, for example, Section 138 cases under the Negotiable Instruments Act or Section 498A in the Indian Penal Code, contributed a large number of cases in the criminal courts. Some of the new legislations like Domestic Violence (Prevention) Act, have come up and contributed some more cases to the criminal courts. To deal with these types of cases we do not have additional number of courts, we do not have additional infrastructure.
In many States sufficient budgetary provisions are not made for improving the infrastructure of the subordinate courts, including additional improvement of existing courts, court complexes. We require modernization and computerization of our criminal justice system. In many States courts are functioning from rented places. The building which was constructed for the purpose of residence is being used to house courts. There should be sufficient sitting arrangement for the witnesses or the clients. There should be suitable building for the proper functioning of the courts. The prosecuting agency should be given sufficient facilities for the court to conduct the cases. The accused and the witnesses should have resting rooms if the trial has become lengthy. All this could be provided only if there are courts with modern facilities. The States should gradually improve the infrastructure and there must be sufficient budgetary allocation in each year. Now the courts are provided only with budgetary allocation for the payment of salaries of staff members of the courts and for day to day expenses for running the courts. This situation could be changed, if sufficient funds are allocated every year for starting new courts and also to improve the conditions of the existing courts. The starting of Fast Track Courts have helped to a great extent in disposing of the pending Sessions cases and that, by itself, has proved that it is because of lack of large number of courts that the pendency of criminal cases is on the rise.”
Right to fair and speedy trial
A fair trial implies a speedy trial. While the Sixth Amendment to the US Constitution expressly states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”, our Constitution does not expressly declare this as a fundamental right. The right to a speedy trial was first recognized in the first Hussainara Khatoon case. In Surinder Singh v. State of Panjab, the Supreme Court held that a speedy trial is implicit in the broad sweep and content of Article 21 of the Constitution. In Hussainara Khatoon case, the Supreme Court directed that all under trial prisoners against whom charge-sheets had not been filed within the limitation-period should be released. The Court observed in the second Hussainara Khatoon case that the State cannot avoid its constitutional obligation to provide for a speedy trial by pleading financial or administrative inability. Directions were issued for taking positive action, like setting up new courts, providing more staff and equipment to courts, appointment of additional judges and other measures calculated to ensure speedy trial.
Subsequently, the Supreme Court has repeatedly emphasized the importance of speedy trial in many cases viz., State of Bihar v. Uma Shankar Kotriwal; Kadra Pahadiya v. State of Bihar; State of Maharashtra v. Champalal Punjaji Shah; S. Guin V. Grindlays Bank; Sheela Barse v. Union of India; Raghubir Singh v. State of Bihar; Rakesh Saxena v. State; Srinivas Pal v. Union Territory of Arunachal Pradesh; etc.,
In the case of Andhra Pradesh v. P. V. Pavithran and also In the case of Abdul Rehman Antulay v. R.S. Nayak, the Supreme Court summarized 11 principles as guidelines applicable to a speedy trial. These guidelines are only illustrative and not exhaustive. They are not intended to operate as hard and fast rules or be applied as a straitjacket formula. This decision was held to be correct in P. Ramachandra Rao v. State of Karnataka.
The speedy trail is guaranteed under Article 21 of the Constitution of India. Any delay in expeditious disposal of criminal trial infringes the right to life and liberty guaranteed under Article 21 of the Constitution of India. The debate on judicial arrears has thrown up number of ideas on how the judiciary can set its own house in order. Alarmed by the inordinate delay in disposal of the backlog of cases, it has been decided to introduce Fast Track Courts. Thus, Fast Track Courts are to tackle the cases of under trials first, as the graph of such persons in jail has gone high. It is high time to restore the confidence of people in this country in judiciary by providing speedy justice.
Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses or the cause which is being tried is eliminated. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law.
In 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. 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-their opinions were substantiated by the 14th Law Commission Report.
The modern Indian Republic was born as a Welfare State and thus the burden on the government to provide a host of welfare services to the people was immense. The expansion of governmental functions in order to discharge its above obligations generated a number of occasions where an individual was at issue with the administration. This necessitated the development of a system of administrative adjudication which could better respond to social needs and requirements than through the elaborate system of the ordinary judiciary. 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 legislations. Another important reason for the new development is that while the courts are accustomed to deal with cases primarily according to law, the exigencies of modern administration require the adjudication of disputes not only on the basis of technical questions of law but by considering policy questions and the interests of the general public. Besides, tribunals were also seen as bodies manned by experts who could professionally and fairly deal with the issues at hand.
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 judicially.
However, the problem of delays in the disposal of cases and the backlog of litigation in the courts continued to plague the credibility and effectiveness of the judiciary. To find a solution to this problem, 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. The Commission recommended the establishment of independent tribunals.
IV. RATIONALE OF STUDY
For a long time a search was going on for a mechanism to relieve the courts, including High Courts and the Supreme Court, from the burden of service litigation which formed a substantial portion of pending litigation. This issue engaged the attention of the Law Commission which recommended for the establishment of tribunals consisting of judicial and administrative members to decide service matters.
The idea of setting up service tribunals also found favour with the Supreme Court of India which in K.K. Dutta v. Union of India advocated for setting up of service tribunals to save the courts from avalanche of writ petitions and appeals in service matters. In the meantime various States had established their own service tribunals.
Tribunals 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 are distinct from the ordinary courts of the land and as per Chandrakumar’s case they are not on par with the High Courts but serve a supplemental function to the High Courts. 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 law.
Establishment of Administrative Service Tribunals
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 under. 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.
Thus, the tribunals in India are:
1) Created by a statute
2) Subject to the writ jurisdiction of the superior judiciary and to judicial review.
3) Manned by experts and persons with judicial experience.
4) Subject to the superintendence of the concerned High Court under Art.227
5) Decisions may be final or appealable within the tribunal or in certain cases to the High Court.
6) Appeals against orders of the tribunal may be heard by the Supreme Court by special leave under Art. 136.
Thus the system of administration justice began to establish itself as a part of the adjudicatory processes and the organisation of administrative justice in the country. At the same time the judiciary continued to exercise its constitutionally mandated control over these bodies o as to ensure they did not violate any constitutional norm. However the administration saw this as an unnecessary intrusion of the judiciary into their activities of nation building and development.
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.
Legal and constitutional changes
The Parliament passed constitution (Forty-second Amendment) Act, 1976 which added part XIV-A in the Constitution. Articles 323-A and 323-B enabled Parliament to constitute administrative tribunals for dealing with certain matters specified therein. Article 323-A provided that Parliament may by law, provide for the adjudication or trial by administrative tribunals 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 or under the control of Government of India or of any corporation owned or controlled by the government. Parliament was further empowered of such tribunals and also to exclude the jurisdiction of all courts except that of the Supreme Court under Article 136. Empowered by these enabling provisions of the Constitution Parliament enacted Administrative Tribunals Act, 1985 for the establishment of administrative service tribunals for deciding service disputes of civil servants of the Centre as well as of the States which was amended in 1986.
Section 4(1) of the Act provides for the establishment of Central Administration Tribunals. It also empowers the Central Government to establish an administrative tribunal for any State on receipt of such a request to establish an administrative tribunal for any State by the State Government. Section 5 provides for the composition of tribunals and benches thereof. According to sub-section (i) of section 5 each tribunal shall consist of a Chairman and such number of Vice-Chairman and other members as the appropriate government may deem fit. Section 5(2) further provides that bench shall consist of one judicial member and an administrative member.
Section 14 of the Act confers jurisdiction, powers and authority on the Central Administrative Tribunal in relation to recruitment, matters concerning recruitment and all service matters of Central civil servants.
Thereafter, Service Tribunals started functioning from November 1985, and since then 25 years have passed. In the mean time, we have encountered so many legal and constitutional issues.
At present there are two categories of service tribunals, one constituted by the States under their own legislation and the other constituted under the Central legislation, Administrative Tribunals Act, 1985. There was a third category also in which a service tribunal had been established in Andhra Pradesh through the amendment of the Constitution in 1976 which was abolished in 1989, while the States of Uttar Pradesh, Rajasthan, Gujarat and Assam have established service tribunals under their own laws. The State of Orissa, Himachal Pradesh, Karnataka, Madhya Pradesh, Tamil Nadu and Maharashtra have established tribunals for their employees under the Central legislation. A central Administrative Tribunal (CAT) has also been established for Central Government employees. This Tribunal works in eighteen places through its benches. Besides these, Circuit benches are also held at other places particularly where the seat of High Court is located.
Before this Amendment, tribunals were under the control of the concerned High Court and their orders were appealable in the High Court. The matters which went up to the tribunals were also amenable to the writ jurisdiction of the High Court and Supreme Court under Articles 226 and 32 of the constitution of India respectively. However with the insertion of Articles 323A and B, the legislature had the power to exclude the writ jurisdiction of the High Court under Article 226 and the fundamental right to move the Supreme Court for the enforcement of Fundamental rights under Article 32 were removed. The only appeal, which lies from the orders of these tribunals, is a Special Leave Petition to the Supreme Court under Article 136 of the Constitution of India.
Constitutional validity of the Administrative Tribunals Act, 1985 was challenged before the Supreme Court in S.P. Sampath v. union of India on the ground that the exclusion of judicial review of the High Court violated the basic structure of the Constitution. Negativating the contention the court held that no matter the judicial review which is the basic feature of Parliament to amend the Constitution so as to substitute in place of High Court another alternative mechanism of judicial review provided it is not less efficacious than the High Court.
In S. P. Sampath Kumar , the Supreme Court directed the carrying out of certain measures with a view to ensuring the functioning of the Administrative Tribunals along constitutionally sound principles. The changes were brought about in the Act by an amending Act (Act 19 of 1986). Jurisdiction of the Supreme Court under article 32 was restored. Constitutional validity of the Act was finally upheld in S. P. Sampath Kumar subject, of course, to certain amendments relating to the form and content of the Administrative Tribunals. The suggested amendments were carried out by another amending Act (Act 51 of 1987).
Thus the Administrative Tribunals became an effective and real substitute for the High Courts.
The whole question of constitutionality of the Administrative Service Tribunals Act, 1985 once again came under the scrutiny of the a seven-Judge Bench of Apex Court in the pace-setting case of L. Chandra Kumar v. Union of India. The Apex Court held that clause 2 (d) of article 323A and clause 3(d) of article 323B, to the extent they empower Parliament to exclude the jurisdiction of the High Courts and the Supreme Court under articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of articles 323A and 323B would, to the same extent, be unconstitutional. The Court held that the jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under article 32 of the Constitution is part of the inviolable basic structure of our Constitution. All decisions of the Administrative Tribunals are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls.
In other words, the court in this case held that Sampat Kumar was decided against the background that the litigation before the high courts had exploded in an unprecedented manner and therefore, alternative inquisitional mechanism was necessary to remedy the situation. But it is self-evident and widely acknowledged truth that tribunals have not performed well, hence drastic measures were necessary in order to elevate their standard by ensuring that they stand up to constitutional scrutiny. Court further held that because the constitutional safeguards which ensure the independence of the judge of the Supreme Court and the High Courts are not available to the members of the tribunals, hence, they cannot be considered full and effective substitute for the superior judiciary in discharging the function of constitutional interpretation. Against this backdrop the court came to the conclusion that Administrative Tribunals cannot perform a substitution role to the High Court, it can only be supplemental. Therefore, clause 2(d) of Article 323-A and clause 3(d) of Article 323 –B of the constitution, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Article 226, 227 and 32 of the Constitution were held unconstitutional and for the same reason Section 28 of the Administrative Tribunals Act, 1985 which contains “exclusion of jurisdiction” clause was also held unconstitutional.
It was further observed by the court that the power of judicial review of the constitutional Courts is a part of the inviolable basic structure of the Constitution which cannot be ousted. However, service continue to be the courts of first instance in service matters and no writ can be directly filed in the writ courts on matters within the jurisdiction of tribunals. Though the two judge bench, one of whom must be a judicial member, of the tribunal can determine the constitutionality of any statutory provision yet it cannot determine the constitutionality of Administrative Tribunal Act, 1985. But the exercise of this power shall be subject to the scrutiny by the Division Bench of the High Court within whose jurisdiction the Tribunal is situated. By bringing back the Tribunal within the jurisdiction of the High Courts the courts served two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication by the tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter. In view of this decision the existing provision of direct appeals to the Supreme Court under Article 136 of the Constitution also stands modified. Now the aggrieved party will be entitled to move the High Court and from the decision of the Division Bench of the High Court he can move the Supreme Court under Article 136 of the Constitution. The court saved the constitutionality of Section 5(b) by providing that whenever a question involving the constitutionality of any provision arises it shall be referred to a two-member Bench, one of whom must be a judicial member.
As a result, orders of the Administrative Tribunals are being routinely appealed against in High Courts, whereas this was not the position prior to the L. Chandra Kumar’s case.
215th Report of the Law Commission of India
On 18th March 2006, the Administrative Tribunals (Amendment) Bill, 2006 (Bill No. XXVIII of 2006) was introduced in Rajya Sabha to amend the Act by incorporating therein, inter alia, provisions empowering the Central Government to abolish Administrative Tribunals, and for appeal to High Court to bring the Act in line with L. Chandra Kumar. The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 17th Report on the said Bill did not subscribe to the same and as for the provision for appeal to High Court expressed the view that the original conception of the Administrative Tribunals be restored and appeal to High Court is unnecessary, and that if a statutory appeal is to be provided it should lie to the Supreme Court only.
In the above backdrop, the Law Commission took up the study on the subject sue motto. The Administrative Tribunals were conceived as and constitute an effective and real substitute for the High Courts as regards service matters. Moreover, the power of judicial review of the High Courts cannot be called as inviolable as that of the Supreme Court. The very objective behind the establishment of the Administrative Tribunals is defeated if all the cases adjudicated by them have to go before the concerned High Courts. If one appeal is considered to be a must, an intra-tribunal appeal would be the best option, and then the matter can be taken to the Supreme Court by way of special leave petition under article 136.
Therefore, the Law Commission is of the view that L. Chandra Kumar’s case needs to be revisited by a Larger Bench of the Supreme Court or necessary and appropriate amendments may be effected in the Act in accordance with law and recommended to the Government accordingly while forwarding its 215th Report (Titled L. Chandra Kumar be revisited by Larger Bench of Supreme Court) on 17th day of December, 2008.
The frame work of hypothesis is based on the following jural postulates:
1) The Constitution of India aims at the establishment of a Sovereign, Socialistic, Secular and Democratic Republic.
2) Democracy would be successful only if there is an independent judiciary capable of expeditious disposal of cases, thereby ensuring the speedy and quick justice.
3) Right to information of a citizen is an integral part for the success of democracy.
4) The Tribunals must derive the Power of adjudication from a statute or statutory rule.
5) 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.
6) Tribunals are not bound by strict rules of evidence.
7) They are to exercise their functions objectively and judicially and to apply the law and resolve disputes independently of executive policy.
8) Tribunals are supposed to be independent and immune from any administrative interference in the discharge of their judicial functions.
9) The powers of judicial review on legislative action vested in the Supreme Court and High Court under Art.32 and 226 from part of the basic structure of the Constitution.
10) The power of High Courts under Art.227 to exercise superintendence on all courts and tribunals under its jurisdiction is also basic to the constitution and therefore even if tribunals are allowed the power to perform judicial review, they may do as substitutes to the High Courts but not in a supplementary role.
11) Though tribunals may act as courts of first instance for the areas they are dealing with, they are subject to the appeal jurisdiction of a Division Bench of the High Court under whose jurisdiction they fall.
12) Though tribunals can examine the Constitutionality of statutes, the power does not extend to the parent statute under which they are constituted.
13) In order to supervise the administration of tribunals and to increase their efficiency an independent agency has to be set up and till then a nodal Ministry has to see to these aspects.
As is well-known at the present day, a research scholar cannot depend upon any one particular method for the preparation of a thesis. A combination of different methods is required to achieve the best possible results. Thus a Historical-cum Analytical method has been applied mainly in the preparation of the present work. Where ever necessary, comparative and critical methods also are employed to have a detailed study of the subject under consideration.
VII. SOURCES OF INFORMATION
The required materials for the thesis have been collected mainly by applying the doctrinal approach. This approach deals with formal sources of law like legislation, case law, text books, articles etc. It is basically textual in approach as contrasted to non-doctrinal approach which is primarily contextual in nature. In the preparation of this thesis, by adopting the above-mentioned technique, data have been collected from various enactments, Research publications/ and Reports of the Law Commission of India, Administrative Reforms Commission, land mark judgments of Supreme Court, High Courts, also cases decided by the Courts, Authoritative Text Books, etc.
The thesis is divided into 6 chapters as under:
Chapter – I
Introduction: In this chapter an outline of the scheme of research intended for the thesis is brought out. The objectives of the study, methodology, sources of information are also discussed in this chapter.
Chapter – II
The evolution and Establishment of Administrative Service Tribunals in India: This chapter deals with the evolution of the tribunal system in India leading up to the insertion of Articles 323A and 323B into the Constitution. The researcher also discusses the issues like (i) 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 Structure (ii) The competence of the tribunals to determine the constitutionality of any law (iii) And also whether the tribunals are acting as affective substitutes to High Courts in terms of efficiency.
Chapter – III
Status and Functioning of Tribunals in India: In this chapter the relevant constitutional and legal provisions as regards tribunals in India including the Articles 323A and 323B of the Constitution and the working and functioning of Administrative Tribunals have been discussed in detail. Further, this chapter also covers the aspect of judicial review.
Chapter – IV
Judicial Interpretation: In this chapter, the researcher highlighted relevant judgments of the Supreme Court, High Courts and Tribunals. Also certain issues of legal importance have been focused.
Chapter – V
Legal & Constitutional Reforms: In this chapter reforms needed in strengthening the working of the Administrative Tribunals in tune with the Social, Economic, political Changes. While doing so, our past experiences especially after the Independence and the experiences of the developed Nations are taken into consideration.
Chapter – VI
Conclusion & Recommendations: In the last chapter, a brief summary of the thesis to ensure the effective functioning of Administrative Tribunals and to achieve the object of the Act i.e., to reduce the burden of courts and also to provide speedy relief to the aggrieved public servants. A set of major findings and observations, together with recommendations of the Researcher are furnished below:
1) The impression that the Tribunal constituted under the Act of 1985 may be dependent upon the Government is misconceived. The functioning of the Tribunal is not at all controlled by the Government, in any manner whatsoever. The Chairman, Vice- Chairmen and Members – Judicial/Administrative, are discharging their duties similarly as are being discharged by higher judiciary in the country. However, to allay the apprehension that the Tribunal may be controlled in certain matters by the Government, the Chairman of the Tribunal can be given powers akin to that of Chief Justice of a High Court. In that connection, a provision in the Act of 1985, similar to the one as article 229 of the Constitution, with regard to laying down conditions of service of employees of the Tribunal can be vested with the Chairman. More independence in financial matters, as enjoyed by the Chief Justice of a High Court can be vested with the Chairman of the Tribunal. Nodal Ministry for the Tribunal can be Ministry of Law and Justice, instead of Ministry of Personnel, Public Grievances and Pensions.
2) The issue as to the an impression that there has to be at least one appeal provided against the orders passed by the Tribunal before the matter may reach the Supreme Court, intra-tribunal appeal, similar to the one provided in every High Court either by way of letters patent appeal or a writ appeal, can be provided under the Act of 1985 itself. By way of suitable amendment thus brought about in the Act of 1985, a provision for intra-tribunal appeal can be made so that an order passed by a single Member Bench would be amenable to appeal before a Division Bench, and the decision of a Division Bench can be challenged before a Bench consisting of three or more Members. Four zones in the country, viz., North, East, West, and South, can be made where the appeals from various Benches may be filed. This may only involve creation of, at the most, eight to ten posts of Members in the Tribunal. After the decision recorded by an appellate Bench, the matter can be taken to the Supreme Court by way of special leave petition.
3) A Judge, sitting or retired, is eligible to be appointed as Chairman in view of the provisions contained in section 6 of the Act of 1985. However, by tradition and practice, considering the importance of functions entrusted to the Tribunal, a Chief Justice of High Court, sitting or retired, is appointed as Chairman. A suitable amendment in section 6 of the Act of 1985 can be made to make only a sitting or former Chief Justice of High Court or Judge of the Supreme Court to be qualified for appointment as Chairman.
4) The Parliamentary Standing Committee expressed the view:
“….May be, a retired judge of the Supreme Court can preside over. And, maybe, other member could be from the judiciary; not from the district judges, but from the level of High Courts, we can keep one. And, then, the third and fourth members can be from the administration so that the dignity and strength of the tribunal is enhanced to that extent.”
The views expressed by the committee may be kept in view in making the changes in Law.
5) In view of the recommendations of the Law Commission (made vide its 215th report), the subject definitely requires the attention of the Government of India and the State Governments and that the judgment of the Hon’ble Supreme Court in L. Chandra Kumar’s case requires reconsideration by a larger Bench of the Supreme Court in the interest of the government servants, both Central and the State, to achieve the object of the Act, namely, speedy and less expensive justice. If this proposal is taken up in the right perspective, it will not only reduce the heavy expenditure by way of fees etc. to the counsel and also the time.
6) In the light of the above, it is urged that the Hon’ble Supreme Court to reconsider L. Chandra Kumar’s case.
7) Alternatively, the policy makers should explore to effect the necessary and appropriate amendments in the Administrative Tribunals Act 1985 in accordance with law.
[A Research proposal submitted to A P University of Law]
[This material is put online to further the educational goals of ‘Study in Law’. This material may be used freely for educational and academic purposes. It may not be used in any way for profit]
1) Administrative Law-Text and Materials by Beatson, Marthews and Elliotts- Oxford University Press, 2007
2) H.M.Seervai: Constitutional Law of India (in 2 volumes) 4th Edition., Universal Book Traders, New Delhi.
3) H.W.R. Wade Administrative Law, 7 edn. 1994, Clarendon Press, Oxford.
4) J.F. Gamer: administrative Law, 5th edn. 1979, Butterworth’s London.
5) J.A.G. Griffith and H. Street: Principles of Administrative Law, 4th edn. 1967, Pitman Publishing, New York.
6) S.A. De Smith: Judicial Review of Administrative Action, 4th End. 1980, Stevens and Sons, London.
7) M.P. Jain and S.N. Jain: Principles of Administrative Law, 4th edn. 1997, wadhva and Company, Nagpur.
8) Democracy Human Rights and the Rule of Law, Butterworth’s, New Delhi, 2000.
9) S.P. Sathe: Administrative Law, 6th Edn. 1998, Butterworth’s, New Delhi
10) I.P. Massey: Administrative Law, 3rd Edn. 1990, EBC, Lucknow.
11) K.C. Davis: Administrative Law & government, 2nd Edn. 1975, West Publishing Co., St. Paul Minn.
12) Judicial Control of Administrative Action in India, Pakistan and Bangladesh, 3rd edition, 2000, Butterworth’s, New Delhi.
13) David Foulkes: Administrative Law, 5th edn. 1982, Butterworth’s, London.
14) Dr. Abdul Rayees Khan: Administrative Law: 1st edn. 1999, K.K. Publications, Hyderabad.
15) H.M.Seervai: Constitutional Law of India (in 2 volumes) 4th Edition. Universal Book Traders, New Delhi.
16) Granville Austin: Indian Constitution-Cornerstone of a Nation, Clarendon Press, Oxford.
17) B. Shiva Rao (ed): Farming of the Indian Constitution (in 5 volumes) Indian Institute of Public Administration, New Delhi.
18) V.N.Shukla: Constitution of India, 9th Edition., Eastern Book Company., Lucknow, 1994.
19) V.D. Mahajan: Constitutional law of India, Eastern Book Company.
20) O Chinnappa Reddy: The Court and the Constitution of India, Oxford University Press, 2010
21) Nani Palkhiwala-A Role Model, edited by Maj Gen Niledra Kumar-Universal Law Publishing Co, 2009
22) The Constitution of India –Selective comments by P M Bakshi, Universal Law Publishing Co.
23) Administrative Law-Text and Materials by Beatson, Marthews and Elliotts- Oxford University Press, 2007
II Journals, Articles and Reports
1) Journal of Indian Law Institute
2) Indian Bar Review
3) All India Reporter
4) Supreme Court Cases
5) Landmark judgments of Indian Higher Judiciary.
6) Supreme Court Journal, (SCJ)
7) Andhra Law Times
III Legislation, Rules, Orders and Ordinances
1) The Constitution of India
2) Administrative Tribunals Act,1985
3) Administrative Tribunals (Amendment) Act, 1986
4) Administrative Tribunals (Amendment) Act, 1987
5) Administrative Tribunals (Amendment) Act, 2006
6) Central Administrative Tribunal (Salaries and Allowances and Conditions of Service of Chairman, Vice-Chairmen and Members) (Second Amendment) Rules, 2009
7) Central Administrative Tribunal (Salaries and Allowances and Conditions of Service of Chairman, Vice-Chairmen and Members) Amendment Rules, 2009
8) Central Administrative Tribunal (Staff) (Conditions of Service) Amendment Rules, 2009
9) Central Administrative Tribunal (Salaries and Allowances and Conditions of Service of Chairman, Vice-Chairmen and Members) Amendment Rules, 2007
10) Central Administrative Tribunal (Senior Principal Private Secretary) Recruitment Rules, 2007
11) Central Administrative Tribunal (Procedure) Rules, 1987
IV Newspapers and Magazines
1) The Hindu (Daily Newspaper)
2) Hindustan Times ( Daily Newspaper)
3) Indian Express ( Daily Newspaper)
4) India Today (Weekly National Magazine)
5) Outlook, (Weekly National Magazine)
6) The Pioneer (Daily Newspaper)
7) Seminar (Monthly Journal)
8) The Statesman (Daily Newspaper)
9) Times of India ( Daily Newspaper)
10) The Tribune (Daily Newspaper)
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