DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW

PROJECT
ADMINISTRATIVE LAW

TITLE-

CONSTITUTIONAL VALIDITY OF ADMINISTRATIVE TRIBUNALS IN

INDIA

Submitted To: Submitted By:

Dr. RAJNEESH YADAV Devashree Sahu
Assistant Professor (LAW) Enrolno.-160101061

Dr. RMLNLU Section-A, VTH SEM.

BA LLB(Hons)
Acknowledgment

I am profoundly thankful to my teacher Dr. Rajneesh Yadav for providing me with this
wonderful opportunity to work upon this project after doing which I feel to have enlightened
myself in this regard and for the precious time he had spent guiding me for the completion of this
project.

I also thank the members of the library staff for their cooperation in making available the
research material and allowing me to access the internet even during the free time and whenever
I required to do so.

Last but not the least I would like to thank my friends it was only because of their excellent help
that I had been able to complete my project.
Contents
Acknowledgment .......................................................................................................................................... 2
Introduction ................................................................................................................................................... 4
Tribunals vis -a- vis Courts ........................................................................................................................... 5
Tribunals- Unconstitutionality ...................................................................................................................... 7
Vitiating the principle of Separation of Power ......................................................................................... 8
Tribunals- Constitutionality .......................................................................................................................... 9
Conclusion and Suggestions ......................................................................................................................... 9
Bibliography ............................................................................................................................................... 11
Introduction
Indians courts, although the finest in the legal order of the developing countries, have for long
suffered from the unending plague of backlog, at all levels. Various factors at various moments
in time have been blamed regarding the same. However, no solution to hold it together or to
serve as an untarnished adhesive during the course of time has been identified so far. Over the
years recourse has been sought to options from within the constitutional scheme of India itself
and to that extent several measures were implemented and some of them even to this day are
prevalent and holding ground in the face of ever growing disputes seeking adjudication.
Administrative Tribunals find their origin in Article 323A and 323B of the Constitution of India,
these in turn were inserted vide the 42nd Constitutional Amendment Act of 1976. Turbulent were
those times, that such a move by the legislature which was conceived as an end to the backlog
woes of at least the Higher Courts, was marred with unimaginable controversy. As it is the
amendments made via the said act did not go well with the legal luminaries and to a certain
extent even the other arms of the State. It must be clarified at this juncture, that "administrative
tribunals" in this paper shall refer to not just the tribunals established under Article 323A which
essentially were administrative but also the tribunals established under Article 323B, to
adjudicate upon the matters specified therein. However, this paper has excluded Tribunals which
may have been present in the country even prior to the enactment of the instant Act. The first
controversy that reached the Supreme Court was in the form of S.P. Sampath Kumar v. Union of
India1, it revolved around the constitutional value of certain provisions of the Administrative
Tribunals Act, 1985 which provided for the exclusion of the jurisdiction of other court in matters
which were strictly put under the jurisdiction of the Tribunals constituted therein. The
composition of these Tribunals inter alia was considered to be another bone of contention. The
idea was to include experts from the field sought to be covered under the Tribunal's jurisdiction
along with judicial officers in the form of retired judges or the like. However, such inclusion of
people not possessing a legal background was considered to be a direct assault upon the
independence of this very important wing of the State, namely the judiciary, this in turn
jeopardizing the very basic tenets of the Constitution namely, the aspect of Separation of power,
so piously imbibed into the constitutional scheme by its framers. Needless to say, the
apprehensions are still rife on this front considering the recent NJAC verdict.

1
AIR 1987 SC 386
In the backdrop of the above mentioned, this paper seeks to, after perusing through the
arguments presented on either side so far, by the apex court in so many judgements and the
opinion rendered by various legal luminaries including the various Law Commission Report on
this aspect, justify that such Tribunals are in fact constitutional. To this extend, the paper shall
address as to why is it that, general legislations are being tested against the touchstone of the
basic structure of the Constitution (separation of power and power of judicial review main
tenets). Followed by tracing the revelations so far, including the more contemporary Tribunals
and the "regulatory" bodies such as the Competition Commission of India and the like.

Tribunals vis -a- vis Courts

The only difference between a court and an administrative agency exercising adjudicatory
powers seems to be the legislative classification. A court is a court because it has been classified
as such; and an administrative agency exercising adjudicatory powers is an administrative
agency because it has been designated as such.2

The above stated opinion to a certain extend sums up this highly academic discourse with regard
to the dichotomy between the two institutions concerned with dispensing justice. There have
been endless general propositions and the same have been meted out with endless exceptions
thereby barring any attempts of establishing clear differentiation between a traditional court of
law and a tribunal. General points of differentiation that have so far been raised pertain chiefly to
(1) the nature of the power being exercised i.e. either administrative or judicial, however in the
contemporary sense, both these institutions discharge both the powers in some or the other realm
for instance, the chief justices of the various High Courts exercise powers in their administrative
capacity over their own staff and the lower courts (2) procedural requirements, since essentially
traditional courts follow the code of law in so far the procedure for their proceedings is
concerned whereas the tribunals since the same were established to fast forward the route to
justice do not have to confirm to such established procedural norms and also possess the
autonomy to lay down procedural norms for their own functioning save for the principles of
natural justice. However, some administrative tribunals are also vested with powers of a civil

2
I. P. Massey, Administrative Law 157 ( 8th edn,, Eastern Book Company, Lucknow 2012)
court for the purpose of summoning witnesses, examining them on oath, compelling the
production of documents, etc.

In the case of S.D. Joshi v. High Court of Judicature at Bombay3 the Hon'ble Supreme Court had
reviewed this contention and had stated that "by "courts" is meant courts of civil judicature and
by "tribunals", those bodies of men who are appointed to decide controversies arising under
certain special laws. Among the powers of the State is included the power to decide such
controversies. This is undoubtedly one of the attributes of the State, and is aptly called the
judicial power of the State. In the exercise of this power, a clear division is thus noticeable.
Broadly speaking, certain special matters go before tribunals, and the residue goes before the
ordinary courts of civil judicature. Their procedures may differ, but the functions are not
essentially different. What distinguishes them has never been successfully established. Lord
Stamp said that the real distinction is that courts have "an air of detachment". But this is more a
matter of age and tradition and is not of the essence. Many tribunals, in recent years, have
acquitted themselves so well and with such detachment as to make this test insufficient." While
stating the same the court relied upon the opinion of Justice Hidayatullah in the case of
Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala4, where it was stated that :-

" 31. With the growth of civilization and the problems of modern life, a large number
of Administrative Tribunals have come into existence. These tribunals have the
authority of law to pronounce upon valuable rights; they act in a judicial manner and
even on evidence on oath, but they are not part of the ordinary courts of civil
judicature. They share the exercise of the judicial power of the State, but they are
brought into existence to implement some administrative policy or to determine
controversies arising out of some administrative law. They are very similar to courts,
but are not courts. When the Constitution speaks of “courts” in Article 136, 227 or
228 or in Articles 233 to 237 or in the Lists, it contemplates courts of civil judicature
but not tribunals other than such courts. This is the reason for using both the
expressions in Articles 136 and 227."

3
AIR 2011 SC 848
4
AIR 1961 SC 1669
Thus the what seems to be the scenario is that there isn't much difference between the
traditional courts of law or the rather contemporary administrative agencies discharging
judicial functions but nevertheless these administrative tribunals although possessing the
"trappings of the courts" are not courts in the strict sense of the term.

Tribunals- Unconstitutionality
The fact that in their judicial capacity the administrative tribunals share the same
adjudicatory powers as the traditional courts of law has led to many a controversies, mainly
because of the fact that although they share the same adjudicatory powers, the institutions
of courts form part of the separate arm of the State and therefore are blessed with ample
security and protection with regard to its autonomy, sanctity and integrity in its decision
making process. However the administrative tribunals have time and again been criticised
for lack of the aforementioned security and the consequential interference of the other
wings of the State namely the executive thereby blurring separation of power between the
wings of the State, which forms a basic tenet of the Indian Constitution. These tribunals
were conceptualised as substitutes to the various High Court so as reduce the back log of
cases that they were dealing with at the moment, however excessive executive control,
incapacity of its members to discharge the judicial functions and as such the intention of
the executive to usurp the powers of the Constitutional courts in the garb of such tribunals
were certain concerns which raised and duly accepted by the Supreme Court in the case of
5
L. Chandra Kumar v. Union Of India And Others thereby leading to the
unconstitutionality of the clause (2) of Art. 323-A and 323-B to the extent they excluded
the jurisdiction of the High Courts over the orders of the Tribunals. It observed 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.6

5
AIR 1997 SC 1125
6
Id.
Vitiating the principle of Separation of Power
The theory of separation of powers as propounded by Montesquieu although was not in
stricto sensu incorporated in our Constitution, nonetheless, our organic document adheres
to the concept of separation of powers and it is not necessary to go into the minute details
as to in what respects departure from this theory is discernible.7 The Indian Constitution
has not indeed recognized the doctrine of separation of powers in its absolute rigidity but
the functions of the different parts or branches of the Government have been sufficiently
differentiated and consequently it can very well be said that our Constitution does not
contemplate assumption, by one organ or part of the State, of functions that essentially
belong to another." 8 The separation of power between the branches of the Government
entails a sense of independence and secured autonomy which emboldens the judiciary to do
justice even in the face of utmost resistance from the other branches of the Government. It
is this unfettered sense of independence, which provides the judicial atmosphere where a
court can work with absolute commitment to the cause of justice and constitutional values.
Its existence depends however not only on philosophical, ethical or moral aspects but also
upon several mundane things - security in tenure, freedom from ordinary monetary worries,
freedom from influences and pressures within (from others in the Judiciary) and without
(from the Executive).9 However, the basic setting of an administrative tribunal presumes a
brooding omnipresence of the executive upon all the above mentioned aspects and to that
extend can never be considered to enjoy the freedom as is securely enjoyed by the
traditional courts. This being the main proposition with regard to the unconstitutionality of
the tribunals, certain measures have been implemented based upon the recommendations of
the Supreme Court which have acted as the saving grace for the tribunals and their
constitutionality has been secured. Mainly, that all the Tribunals shall function under the
superintendence of the respective High Courts as per Article 227 of the Constitution of
India, all orders passed by the tribunals shall be open to judicial scrutiny by a division of
bench of the High Courts as per Article 22610 and obviously the unhindered power of the
Supreme Court to streamline these tribunals in the wake an untoward actions. It is needless

7
Sakinala Hari Nath and Ors. v. State of Andhra Pradesh and Ors., 1993 (3)ALT 471.
8
Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab, AIR 1955 SC 549.
9
Union of India v. R. Gandhi, President, Madras Bar Association,(2010) 11 SCC 1.
10
AIR 1997 SC 1125
to mention that such conditional constitutionality of the tribunals has taken flack from
various legal luminaries and even from the Law commission of India 11 advocating in
favour of the tribunalisation of the Indian judicial system.

Tribunals- Constitutionality
It is pertinent to establish at the onset that although the tribunals currently are functioning
in India, that is after their powers and the initial intent behind their inception was
considerably curtailed so as make them coherent with the Constitutional scheme of the
Country. Therefore, what follows is the fact that the tribunals in their original form have
indeed been held to be in violation of the Constitution of India and the charges settled in
this regard, as already mentioned have been duly accepted by the Hon'ble Supreme Court,
namely their incapacity to protect against the interference of the Executive and thereby
vitiating the principle of separation of power which is imbedded within the threads of our
Constitution . It is only post improvisational techniques such as restoring the powers of the
High Courts under Article 226 and 227 over the tribunals, disseminating adjudicatory
powers from the regulatory authorities to purely adjudicatory tribunals for instance the
creation of Competition Appellate Tribunal vide the amendment of 2007 in the
Competition Act or amending the threshold for selection of the members to a tribunal, that
the tribunals in their current forms are still functional.

Conclusion and Suggestions

Considering the abovementioned propositions, their merit in the preset context, it seems
that the task of tribunalisation was not taken care of in the manner and the vigil that it
should have been taken care of. The idea though was noble, it provided loopholes whereby
the judiciary could have easily been strong-armed by Executive to its convenience. This is
simply not acceptable and that seems to be the reason for the insertion of the same vide
Article 50 in the Constitution of India. The overall picture regarding the tribunalisation of
justice in our country is not satisfactory and encouraging. There is a need for a fresh look
and review and a serious consideration before the experiment is extended to new areas of

11
L. Chandra Kumar be revisited by Larger Bench of Supreme Court , in Reports of the Law Commission of India
215.27 (2010).
fields, especially if the constitutional jurisdiction of the High Courts is to be simultaneously
ousted.12

Therefore, the suggestions are in the backdrop of the fact although the tribunals now stand
as constitutional, it is of vital importance that constant monitoring be undertaken and steps
implemented to assure them a respectable amount of autonomy and independence and
especially security against any excursions from the Executive in order for its better
functioning.

12
AIR 1997 SC 1125
Bibliography
1. Durga Das Basu, Commentary on the Constitution of India (8th edn,, Wadhwa and
Company Law Publisher Nagpur 2007)
2. I.P. Massey, Administrative Law ( 8th edn,, Eastern Book Company, Lucknow
2012)