Events
& Issues
New Delhi, 16 September 2021
Tribunal Reforms
QUESTION OF
GOVERNANCE
By Dr.S.Saraswathi
(Former Director,
ICSSR, New Delhi)
During the practical lockdown ofParliament debates
during the monsoon session due to uncontrollable disturbances by the
Opposition, peeved over the Pegasus scandal, several bills were passed without
discussion. Among these is a very important legislation on reform of tribunals,which
seeks attention. The bill was passed by voice vote on 3 August, replacing the
ordinance on the matter that was issued in April and struck down by the Supreme
Court.
A series of petitions challenging the
legality of the legislation, including one by Congress Member of Rajya Sabha,
Jairam Ramesh, were filedin theSupreme Court to declare as “unconstitutional”
the provisions of the bill that revive the ordinance.
The Chief Justice of India was soupset by
this development that hetold the Solicitor-General who appeared for the
government, “You have no respect for the judgements of this court…You are
testing our patience”.He asked the government to fill up the long-pending
vacancies in key tribunals before the next hearing.
This bill is another contentious issue
brewing between the governmentand the judiciary. In recent days, the judiciary is
seen as entering into the domain of policy and execution, and for a change,
this bill is perceived as the other way of government entry into the domain of
justice.
There are 16 tribunals in India, including
the National Green Tribunal. In 2017, these were reorganised with mergers based
on functions. Powers regarding terms and conditions of recruitment of members
were delegated to the Union government. But, the rules were struck down by the
Supreme Court.The 2021 bill has abolished eight tribunals and transferred their
functions to existing judicial bodies.
Government’s contention is that tribunals have not necessarily resulted
in faster justice.
Tribunal is a term derived from “Tribunes”,
who were officers chosen by the peoplein the ancient Roman Republic who were in
charge of dispensing justice. They were important officers protecting the
interests of plebian citizens against the patrician magistrates.Today,
tribunals are set up by laws in most of the nations and are administrative
bodies with quasi-judicial functions parallel to the court system.
These are considered in many nations as
specialist judicial bodies created to decide disputes in specified areas of
law. Some are constituted at the level of subordinate courts and appeals can be
made to high courts;some are on par with high courts with appeals lying with
the Supreme Court. They were first set up in 1938 in Britain as an agency of
the Ministry of Justice.
An Alternative Dispute Resolution (ADR)
mechanism is needed in all nations. Existing judicial machinery is unable to
cope with extraordinary increase in litigations arising out of new legislations
and regulationsdueto expansion in human activities and interaction. The main
object in creating tribunals is to overcome delay in normal judicial process.
In India, the Income Tax Appellate Tribunal
was the first tribunal constituted in 1941. It was mainly intended to reduce
the workload on courts and expedite resolution of disputes. The First
Administrative Reforms Commission in 1966 set up a Study Team on Administrative
Tribunals which recommended the setting up of a Civil Services Tribunal. The
High Courts Arrears Commission in 1972 also recommended setting up tribunals.
The famous 42nd Amendment of the
Constitution in 1976 added Part XIV A (Articles 323A and 323B) on
Administrative Tribunals in the Constitution. Article 323A enables only Parliament
to constitute administrative tribunals
for public service matters and 323B enables both Parliament and States to set
up tribunals for certain other matters including taxation, foreign exchange,
import and export, election to Parliament and State legislatures, industrial
labour, land reforms and such issues arising in the context of socio-economic
development and progress. It took away the power of superintendence of the high
court over the administrative tribunals which they possessed under Article 227
of the Constitution. However, the power of the high courts wererestored by 44th
amendment of the Constitution in 1978.
Since 1985, several service matters were
brought under tribunals. Law Commission Report of 1988 strongly recommended
creation of administrative tribunals as alternatives to high courts and to
reduce the backlog in courts.
In Britain, some tribunals are nationwide and
some administered by local authorities. They are two-tier institutions with two
chambers with similar jurisdiction. The upper or the second tier hears appeals
from the first tier.Courts and tribunals follow similar procedures, but tribunals
are not part of the regular judicial system. They are specialist judicial
bodies and deal with particular area of law. They decide a wide range of cases
like employer-employee disputes, appeals against government decisions, tax
related issues, immigration problems and so on. Tribunes are paid salary or
work for fees.
In Australia, tribunals are of two types, government-sponsored
or private, and play an important role. These are either administrative dealing
with disputes in administration or civil deciding private disputes relating to
different problems.Noteworthy as a unique institution in Australia is the
Administrative Appeals Tribunal set up by the Australian government in 1975
with power to review wide range of government decisions. The review is to decidelegal
validity of the decisions and not their correctness or usefulness.
There are two types of jurisdiction –one is like
judiciary where judges hear cases and pronounce judgements, and another is an
administrative system responsible for settling disputes between public bodies
as well as private individuals. Administrative tribunals have only
quasi-judicial functions created under specific laws to adjudicate cases that
may arise in the course of implementation of substantive provisions of relative
enactments.
In Australia, civil tribunals areconcerned
with resolving private disputes. In 1975, the Australian court established
Administrative Appeals Tribunal as a general administrative tribunal, which has
jurisdiction on a range of private disputes, and also review a broad range of
government decisionsalso. There is no such body in UK or Canada or New Zealand.
Informality is the main characteristic of tribunals.
There are 42 administrative tribunals in
France – 31 in mainland and 11 overseas and 8 administrative courts of
appeal. These have jurisdiction under
the ordinary law and are actually
called “courts of first instance” for all civil suits and also has a criminal
division to hear minor offences. A claimant must first bring the case to one
of these courts.
In Canada, tribunals commonly called
Commissions or Boards, function as quasi-judicial bodies. In South Africa, tribunals are created to
fulfil the constitutional mandate of providing access to justice to all.
Strict separation of powers in the
USprecludes administrative jurisdiction. The Supreme Court is generally
considered an appellate court. The Administrative Procedure Act of 1946
provided a statutory code to govern judicial control of administrative action.
The control is, however, restricted to questions of law and its interpretation
and does not extend to policy matters.
This common institution functioning in many
countries is undergoing changes in India. They are indicative of their important role and
significance. But, tribunals are said to be under-staffed.
Governance including justice delivery is a
complicated matter and there is nothing as pure rights, blind application of
law, or straight justice.Interests of national unity, security, development,
and progress require tact inhandlingissues and applying laws. ---INFA
(Copyright, India
News & Feature Alliance)
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