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Transcript of Admin Law Fd., Six Sem
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8/18/2019 Admin Law Fd., Six Sem
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Dr. Ram Manohar Lohiya National Law University,
Lucknow
B.A. L.L.B. (Hons.), emester !"
(#$%&'#$%)
Aministrative Law
*inal Dra+t
o-ic An /verview o+ Aministrative ri0unals in
"nia
u0mitte to u0mitte 0y
Mr. hashank hekhar Nia *atima
Assistant 1ro+essor, ection A
law Roll No 2
3nrolment no %4$%$%$2
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Acknowle5ement
I hereby extend a heartfelt gratitude towards my administrative law professor Mr. Shashank
Shekhar for letting me research on the topic of my choice and also letting the submission
possible under his judicious guidance.
A token of thanks is also well deserved by all the people whose valuable advice went into the
improvement of this project. The ever helpful staff of the libraray of r. !am Manohar "ohiya
#ational "aw $niversity deserves a special mention for being overtly instrumental in completion
of this project.
I therefore humbly present this project with the best of my abilities and skills and apologise for
any mistake or discrepancy in putting together this piece of research.
%
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"ne6
&. Introduction''''''''''''''''''''''''.(
%. An overview of the Tribunal System in India''''''''''')
*. Tracing the Trajectory of Indian +udgements from Sampath ,umar to
!.-andhi'''''''''''''''''''''''''..
(. The Tribunal System today/ Some Issues and 0oncerns''''''.&&
a1 Implications of 0handra ,umar''''''''''''''''&&
b1 2rovisions for Administrative3Technical members''''''''..&%
c1 Tribunalisation'''''''''''''''''''''''&*
4. 0onclusion''''''''''''''''''''''''..&4
). 5ibliography''''''''''''''''''''''''&)
"ntrouction
*
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In the current scenario of adjudication of disputes6 apart from the court system6 even tribunals
play a very important role. The number of tribunals has been increasing after &7(& especially
after the (%nd Amendment Act of &7)6 which provided for the insertion of Art. *%*A and Art.
*%*5.% Tribunals function differently from courts6 from the manner of appointment to the
procedure followed6 yet they seek to achieve the same objective as that of courts8 to deliver
justice. In this light6 the paper proceeds to analy9e the tribunal system in India.
2art I looks at the situation before the (%nd Amendment Act and the changes it brought to the
erstwhile tribunal system6 and provides a description of the meaning of the term :tribunal;. 2art
II deals with the three landmark judgments which have influenced the tribunal system to a great
extent6 namely6 S.2. Sampath ,umar v. $nion of India6 ". 0handra ,umar v. $nion of India and
the recent !. -andhi v. $nion of India. After Sampath ,umar6 the %1 A law made under clause >&1 may? >a1 provide for the establishment of an
administrative tribunal for the $nion and a separate administrative tribunal for each State or for
two or more States@ >b1 specify the jurisdiction6 powers >including the power to punish for
contempt1 and authority which may be exercised by each of the said tribunals@ >c1 provide for the
& . #ageswara !ao and -.5. !eddy6 octrine of +udicial !eview and Tribunals/ Speedbreakers
Ahead6 *7 journal of India law Institute (&B >&771.
(
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procedure >including provisions as to limitation and rules of evidence1 to be followed by the said
tribunals@ >d1 exclude the jurisdiction of all courts6 except the jurisdiction of the Supreme 0ourt
under article &*)6 with respect to the disputes or complaints referred to in clause >&1@ >e1 provide
for the transfer to each such administrative tribunal of any cases pending before any court or
other authority immediately before the establishment of such tribunal as would have been within
the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are
based had arisen after such establishment@ >f1 repeal or amend any order made by the 2resident
under clause >*1 of article *&@ >g1 contain such supplemental6 incidental and conseCuential
provisions >including provisions as to fees1 as 2arliament may deem necessary for the effective
functioning of6 and for the speedy disposal of cases by6 and the enforcement of the orders of6
such tribunals. >*1 The provisions of this article shall have effect notwithstanding anything in any
other provision of this 0onstitution or in any other law for the time being in force.
Art. *%*56 The 0onstitution of India6 &74D reads thus/ Tribunals for other matters8 >&1 The
appropriate "egislature may6 by law6 provide for the adjudication or trial by tribunals of any
disputes6 complaints6 or offences with respect to all or any of the matters specified in clause > % 1
with respect to which such "egislature has power to make laws >%1 The matters referred to in
clause > & 1 are the following6 namely/ >a1 levy6 assessment6 collection and enforcement of any
tax@ >b1 foreign exchange6 import and export across customs frontiers@ >c1 industrial and labour
disputes@ >d1 land reforms by way of acCuisition by the State of any estate as defined in Article
*&A or of any rights therein or the extinguishment or modification of any such rights or by way
of ceiling on agricultural land or in any other way@ >e1 ceiling on urban property@ >f1 elections to
either
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". An /verview /+ he ri0unal ystem "n "nia
Tribunals6 one of the bodies of administrative adjudication in India6 have witnessed much debate
in the recent years. They were set up to reduce the workload of courts6 to expedite decisions and
to provide a forum which would consist of both lawyers and experts in the areas falling under the
jurisdiction of the tribunal.% The (%nd Amendment Act of &7)* brought about a massive change
in the adjudication of disputes in the country6 as it provided for the enactment of Art. *%*A and
Art.*%*5 in the 0onstitution of India.( Art. *%*A provides for the establishment of administrative
tribunals by the 2arliament and Art. *%*5 provides for the establishment of tribunals to
adjudicate on the matters specified in the sub8clause with regard to which the respective
"egislature had the power to make laws.4
Art. *%*A was to be effective only if the 2arliament
implemented a law in this regard and hence the Administrative Tribunals Act of &7B4 was
enacted.) Similarly6 tribunals could be set up under Art. *%*5 only if the necessary legislation
was enacted and there are many non administrative tribunals6 such as the Income Tax Appellate
Tribunal6 ebt !ecovery Tribunal6 the 0ustoms =xcise and Service Tax Appellate Tribunal and
the 0ompensation Tribunals.B Importantly6 tribunals existed prior to the (%nd Amendment Act
% M.2. +ain and S.#. +ain6 : principles of administrative law’ 6ol. I6 &* >)thedn.6 %DD1.
* (%nd Amendment Act6 &7).
( Arts.*%*A and *%*56 The 0onstitution of India6 &74D
4 AI! %DD% S0 &(71 that the legislatures can establish tribunals outside the scope of Art. *%*A
and Art. *%*5 as long as there was legislative competence under the Seventh Schedule.
) .. 5asu6 :commentary on the constitution of India’ 6 ol. 76 &D)( >Bthedn.6 %D&&1.
Id.) at pg. &DDD
B Ibid (
)
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and even prior to the date of the enactment of the 0onstitution6 as Art. &*) provides for the term
:tribunal; and further6 there were6 inter alia6 tribunals established under the Industrial isputes
Act of &7( and under the "ife Insurance 0orporation Act of &74). Art. *%*A and Art. *%*5 did
not provide for the setting up of the tribunals for the first time in the country6 but were rather
meant to provide a fillip to the tribunal system 7 and provide constitutional authority for the
legislations.&D Eurther6 before the insertion of Art. *%*A and Art. *%*56 tribunals were under the
ambit of the respective 4thedn.6 %DD*1@ M.2.+ain and S.#.+ain6 Ibid %6at
))%.
&D .. 5asu6 Ibid )6 at &DDD
&& Arun !oy and ishnu +erome6 Administrative Tribunals in India/ A welcome departure from
orthodoxyF &%>&1 :tudent Bar !eview’ 6)& )*8)( >%DDD1.
&% +aswant Sugar Mills v. "akshmi 0hand6 AI! &7)* S0 )
&* =ngineering Ma9door Sabha v.
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and it had to be vested with the inherent judicial power of the state. in light of Art. *%*A1 were unconstitutional as they excluded
judicial review. The court held that judicial review was part of the basic structure of the
0onstitution but went on to state that if the constitutional amendment did not leave a void by
excluding the jurisdiction of the th edn.6 %D&%1.
&4 Arun !oy and ishnu +erome6 Ibid &(6 at )4
&) AI! &7B S0 *B)
& .. 5asu6 :commentary on constitution of India’ 6 ol. 76 44(D >Bthedn.6 %D&&1.
B
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The court further held that these tribunals had the power of judicial review owing to the (%nd
Amendment Act. This was also because exclusion of the jurisdiction of the d16 which is similar to Art. *%*A>%1>d1 was not raised before the
0ourt.
Almost a decade later6 in L.;hanrakumar v. Union o+ "nia6&B a seven judge 5ench of the
Supreme 0ourt overruled Sampath ,umaron the point of the power of judicial review of the
*1>d1 was raised for the first time. The important issues
raised before the 0ourt were8
• first6 whether Art. *%*A>%1>d1 and Art. *%*>51>*1>d1 violated the power of judicial review
vested with the
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• Second6 it was held that the power of superintendence of the
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deleting the provisions for appeals6 revisions or references and it also followed that the
legislature has the power to create tribunals with reference to specific enactments and
confer jurisdiction on them to decide disputes in regard to matters arising from such
special enactments.
• Second6 it was held that while the legislature could make a law providing for constitution
of tribunals and prescribing the eligibility criteria and Cualifications for being appointed
as members6 the superior courts in the country could6 in exercise of the power of judicial
review6 examine whether the Cualifications and eligibility criteria provided for selection
of members is proper and adeCuate to enable them to discharge judicial functions and
inspire confidence.
espite three landmark judgments6 there are a lot of issues regarding the tribunal system in
India.
• Eirst6 the reasons for the establishment of the tribunals included the delivery of speedy
justice but if the decisions of the tribunals were subject to judicial review6 the
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%. he im-lications o+ ;hanra 9umar
The judgment in 0handra ,umar has unnecessarily increased the duration of the procedure to
obtain justice when anyhow the Supreme 0ourt has the power of judicial review. As correctly
pointed out in Sampath ,umar6 it has been held in Minerva Mills%*
that the power of judicialreview cannot be dispensed with but the 2arliament could6 in place of the
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power of judicial review% and it is recommended that each
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the basic structure of the 0onstitution. Eurther6 the separation of judicial power from executive
power is also one of the facets of the principle of the rule of law.*%
In reality6 tribunals are not fully independent. The Supreme 0ourt observed that the secretary of
the :sponsoring department; sits in the Selection 0ommittee for appointment. Eurther6 when thetribunals are formed6 they are largely dependent on the sponsoring department for infrastructure
and funding. Also6 legislations constituting tribunals habitually provide for the members of civil
services from the sponsoring departments to become members of the tribunal.**
0learly6 in light of the above6 the appointment of administrative and technical members by the
=xecutive is a contravention of the doctrine of separation of powers and the principle of the
independence of the judiciary. Surprisingly6 this issue was dealt with in light of the independence
of the judiciary by the Supreme 0ourt in as late as %D&D6 in ! -andhi.
It is recommended that the model which was adopted in the $nited ,ingdom in the Tribunals6
0ourts and =nforcement Act of %DD >KTribunals ActL1 be followed in India. The guarantee of
judicial independence is available to most tribunal members.*( Eor the members of the tribunals
which are created under the Tribunals Act6 appointments would be made only after the
recommendations of the +udicial Appointments 0ommission. The eligibility criteria for being a
member of the +udicial Appointments 0ommission is that the person had to be a solicitor or a
barrister or possessed a Cualification awarded by the Institute of "egal =xecutives or by anybodyauthorised to confer rights of audience or rights to conduct litigation. *4 %D&D1 ) S0! B4
*( Sec. &6 Tribunals6 0ourts and =nforcement Act6 %DD
*4 Secs.4D and 4&6 Tribunals6 0ourts and =nforcement Act6 %DD
&(
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0urrently6 there a lot many tribunals functioning in the country6 and an exhaustive list of
tribunals cannot be prepared. The tribunal system has been growing hapha9ardly with the lack of
any overarching plan. There is no uniform administration of these tribunals and there is
flexibility in the norms of natural justice which have to be followed. The Supreme 0ourt
expressed the problems related to tribunals succinctly by stating that6*)
:Tribunals have been functioning inefficiently ... The situation at present is that different
tribunals constituted under different enactments are administered by different administrative
departments of the 0entral and the State -overnments. The problem is compounded by the fact
that some tribunals have been created pursuant to the 0entral legislations and some others have
been created by State legislations.;
=ven very recently6 the Supreme 0ourt has expressed its concerns over the :bureaucratic attitude;in the functioning of several tribunals opining that it was very unfortunate that the court had to
interfere for the provision of infrastructure and manpower. Thus6 there are a lot of issues
surrounding tribunalisation which need to be addressed. These issues are the the hapha9ard
growth of tribunals constituted by the 0entral and the State governments6 inefficient functioning
of the tribunals6 and the lack of a uniform procedure in adjudicating disputes.
Gith regard to these issues6 it is recommene that
• first6 the Ministry of "aw and +ustice should prepare a list of tribunals which are currently
functioning6 along with the legislations they are governed under and the places they are
located in. This would spread awareness and would help any person in the country know
which tribunal he has to approach in case of a dispute6 especially because tribunals would
act as courts of first instance in respect of the areas of the law for which they have been
constituted.
• Second6 there should be a body which supervises the functioning of tribunals. It was
recommended in 0handra ,umar that the Ministry of "aw and +ustice should appoint anindependent supervisory body to oversee the working of the tribunals and also6 in the
$nited ,ingdom6 the Tribunals Act provides for the establishment of the Administrative
+ustice and Tribunals 0ouncil whose functions are to keep the administrative justice
*) I.2. Massey6 "Administrative )aw’ 6 &B( >%DDB1.
&4
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system under review and to consider ways to make the system accessible6 fair and
efficient.*
As tribunals do not have to follow any uniform procedures but only follow the principles of
natural justice6 it poses a problem as courts have not laid down even the basic guidelines of natural justice which is applicable to the tribunals. To add to this problem6 case law pertaining to
natural justice is not consistent and the person affected and the adjudicators are unable to have a
clear understanding of the procedures which have to be followed.
Elexibility may be justifiable to a certain extent as tribunals should have the freedom to decide
the procedures in accordance to the needs of the specific body but this has resulted in a
multiplicity of procedures followed by the tribunals and the law regarding procedures is
unpredictable. &74B1.
&)
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would greatly help in reducing the unfortunate effects of 0handra ,umar. The problem of
administrative3technical members6 wherein most of these members are appointed by the
=xecutive and that many tribunals consist of members from the =xecutive6 may be resolved by
following a system which similar to the one provided for by the Tribunals Act of the $nited
,ingdom. The issues surrounding tribunalisation may be addressed by providing for a list of the
tribunals across the country6 setting up of a body which supervises the working of tribunals and
enacting a legislation which deals with a simple procedure which embodies the principles of
natural justice.
Thus6 as tribunals have :come to stay;6*7 and the basic premise of the establishment of tribunals is
sound6 resolving the current issues will help in improving the tribunal system in India6 and
hopefully6 will make the process of litigation easier for those who wish to approach the tribunals.
Bi0lio5ra-hy
1rimary ources
Books
•
M.2. +ain and S.#. +ain6 : principles of administrative law’ 6ol. I6 &* >)thedn.6 %DD1.• .. 5asu6 :commentary on constitution of India’ 6 ol. 76 44(D >Bthedn.6 %D&&1.
• M.2. +ain6 Indian 0onstitution "aw6 ol. I6 %7( >4thedn.6 %DD*1
• S.2. Sathe6 : Administrative law’ 6 %7 >th edn.6 %D&%1.
• I.2. Massey6 "Administrative )aw’ 6 &B( >%DDB1.
• &Dthedn.6 %DD71.
• -ranville Austin6 :'he Indian Constitution( Corner stone of a nation’ 6 &48&)
>7thedn.6 %DD41.
tatutes an Bare Acts
• Arts.*%*A and *%*56 The 0onstitution of India6 &74D
• (%nd Amendment Act6 &7)
*7 %&4th !eport of the "aw 0ommission of India6 supra note *46 at )B6 available at
http/33lawcommissionofindia.nic.in3&84D3!eport&(ol&.pdf .
&
http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdfhttp://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf
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• %&4th !eport of the "aw 0ommission of India6 ". 0handra ,umar visited by "arger
5ench of Supreme 0ourt6 4 >%DDB16 available at
http/33lawcommissionofindia.nic.in3reports3report%&4.pdf .
• &(th !eport of the "aw 0ommission of India6 !eforms of the +udicial Administration
>&74B1.
• Schedule 2art &6 Tribunals6 0ourts and =nforcement Act6 %DD
• Secs.&6 4D and 4&6 Tribunals6 0ourts and =nforcement Act6 %DD
econary ources
Articles
• :octrine of +udicial !eview and Tribunals/ Speedbreakers Ahead;6 . #ageswara !ao
and -.5. !eddy6 *7 journal of India law Institute (&B >&771.• Arun !oy and ishnu +erome6 Administrative Tribunals in India/ A welcome departure
from orthodoxyF :tudent Bar !eview’ 6)*8)( >%DDD1.
• +ustice !uma 2al6 An Independent +udiciary6 4th .M. Tarkunde Memorial "ecture6 #ew
elhi >#ovember &D6 %D&&16 available at http/33www.theradicalhumanist.com3index.phpF
optionHcomradicalJcontrollerHarticleJcidH(*&JItemidH4)
=e0sites
• http/33www.archive.india.gov.in3knowindia3profile.phpFidH*)
• http/33cgat.gov.in3act.htm
• https/33www.academia.edu3()&(*%3AMI#IST!ATI=T!I5$#A"SEI#IAA
Studyinthelightofdecidedcases
• http/33www.ebc8india.com3lawyer3articles37%v(a(.htm
• http/33admis.hp.nic.in3himpol30iti9en3"aw"ib30*.htm
>all sites have been accessed before %th march6 %D&)1
&B
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