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GS Mains Test Series 2018
GS Mains Test Series 2018

ADMINISTATIVE TRIBUNALS

The Preamble of the Constitution of India, declares India to be a Sovereign, Socialist, Secular, Democratic, Republic. In the wisdom of our framers of Constitution, these ingredients were essential to establish a society which is egalitarian and a state which bases itself on the tenets of welfarism. Thus rule of law and the administration of justice; lie at the core of the phenomena of welfare state.

Also with the acceptance of Welfare ideology, there has been a phenomenal increase in the functions of the government, which has lent enormous powers to the executive and also led to increase in the legislative output. This has led to more litigation, restrictions on the freedom of the individuals and constant frictions between them and the authority.

The 42nd Amendment Act 1976 inserted Part XIV-A to the Constitution of India consisting of Articles 323A and 323B. Which led to the establishment of administrative tribunals.

Article 323A: Provides for the establishment of Administrative Tribunals for adjudication or trial of disputes and complaints with respect to recruitment, conditions of service of persons appointed to public services and other allied matters.

Article 323B: Makes provision for the creation of Tribunals for adjudication or trial of disputes, complaints or offences connected with tax, foreign exchange, industrial and labour disputes, land reforms, ceiling on urban property, election to Parliament and State Legislatures, etc. Parliament has power to enact any law under Article 323A while both Parliament and State Legislatures can make laws on matters of Article 323B, subject to their legislative competence.

Administrative Tribunals have emerged not only in India but also in many other countries with the objective of providing a new type of justice - public good oriented justice. These tribunals manned by technical experts, with flexibility in operations, informality in procedures have gained importance in the adjudication process.

Reason for establishment of Tribunals

Administrative tribunals are established for the following reasons:

  • The traditional judicial system proved inadequate to decide and settle all the disputes requiring resolution. It was slow, costly, inexpert, complex and formalistic. It was already overburdened, and it was not possible to expect speedy disposal of even very important matters: e.g. disputes between employers and employees, lockouts, strikes, etc. These burning problems cannot be solved merely by literally interpreting the provisions of any statute, but require the consideration of various other factors and this cannot be accomplished by the courts of law. Therefore, industrial tribunals and labour courts were established, which possessed the technique and expertise to handle these complex problems.
  • The administrative authorities can avoid technicalities. They take a functional rather than a theoretical and legalistic approach. The traditional judiciary is conservative, rigid and technical. It is not possible for the courts of law to decide the cases without formality and technicality. On the other hand, administrative tribunals are not bound by the rules of evidence and procedure and they can take a practical view of the matter to decide the complex problems.
  • Administrative authorities can take preventive measures, for example, licensing, rate fixing, etc. Unlike regular courts of law, they have not to wait for parties to come before them with disputes. In many cases, these preventive actions may prove to be more effective and useful than punishing a person after he has committed a breach of any legal provision.
  • Administrative authorities can take effective steps for enforcement of the aforesaid preventive measures, e.g. suspension, revocation or cancellation of licences, destruction of contaminated articles, etc. which are not generally available through the ordinary courts of law.
  • Sometimes, the disputed questions are technical in nature and the traditional judiciary cannot be expected to appreciate and decide them. Administrative authorities are usually manned by experts who can deal with and solve these problems, e.g. problems relating to atomic energy, gas, electricity, etc.

Advantages of Administrative Tribunal

Administrative adjudication is a dynamic system of administration, which serves, more adequately than any other method, the varied and complex needs of the modem society. The main advantages of the administrative tribunals are:

a) Flexibility

Administrative adjudication has brought about flexibility and adaptability in the judicial as well as administrative tribunals. For instance, the courts of law exhibit a good deal of conservatism and inelasticity of outlook and approach. The justice they administer may become out of harmony with the rapidly changing social conditions. Administrative adjudication, not restrained by rigid rules of procedure and canons of evidence, can remain in tune with the varying phases of social and economic life.

b) Adequate Justice

In the fast changing world of today, administrative tribunals are not only the most appropriated means of administrative action, but also the most effective means of giving fair justice to the individuals. Lawyers, who are more concerned about aspects of law, find it difficult to adequately assess the needs of the modem welfare society and to locate the individuals place in it.

c) Less Expensive

Administrative justice ensures cheap and quick justice. As against this, procedure in the law courts is long and cumbersome and litigation is costly. It involves payment of huge court fees, engagement of lawyers and meeting of other incidental charges. Administrative adjudication, in most cases, requires no stamp fees. Its procedures are simple and can be easily understood by a layman.

d) Relief to Courts

The system also gives the much-needed relief to ordinary courts of law, which are already overburdened with ordinary suits.

Lacunas in functioning of Tribunals

Firstly, tribunals operate under the thumb of parent administrative ministries against whom many of them are meant to pass orders, therefore remaining at their mercy with visible and invisible strings for facilities, infrastructure and also rule-making.

Secondly, the secretary of the said Ministry sits on the panel for selecting and reappointing the adjudicating members and also has a role to play in disciplinary committees. For instance, the defence secretary is a part of the committee for selection and re-appointment of members of the Armed Forces Tribunal, and the said secretary is that very officer against whom all tribunal orders are to be passed.

Thirdly, under the garb of providing cheaper and informal adjudication, appeals have been provided, on very limited grounds, directly to the Supreme Court from some tribunals making access to justice a far call with some litigants accepting injustice rather than challenging orders simply because they cannot afford prohibitive costs of litigation in the apex court.

Fourthly, persons who at times have served as part of the same ministries are appointed as members and who carry with them their own personal experiences and over-familiarity making justice subjective as compared to judges who bear no such baggage and are trained to be objective.

Fifthly, a majority of non-judicial members are not legally qualified and hence are not even eligible to appear before such tribunals while they are allowed to exercise judicial functions while sitting on the bench.

Sixthly, some tribunals are not even vested with powers of civil contempt thereby leaving them toothless qua enforcement.

Rationalization of tribunals

The Finance Bill, 2017 has proposed for rationalization of the tribunals.

The amendments permit the central government to decide the terms of service including appointments, term of office, salaries and allowances, and removal of tribunal members through rules.

Additionally, the amendments to the Finance Bill, 2017 have done away with seven existing tribunals such as the Airports Economic Regulatory Appellate Authority (AERA). Functions of these tribunals have been transferred to existing tribunals. For example, the functions of the AERA have been transferred to the Telecom Disputes Settlement and Appellate Tribunal (TDSAT). This implies that TDSAT will now also have to decide upon matters related to pricing of airport services. The question is whether the TDSAT has the technical competence to deal with such diverse issues. Similarly, it is unclear if the National Company Law Appellate Tribunal, which will replace the Competition Appellate Tribunal, will have the expertise to deal with matters related to anti-competitive practices.

Criticism of Rationalisation

  • Rules are framed by the central government, under a particular Act, and undergo post facto scrutiny by Parliament. In contrast, a Bill is examined and debated by Parliament before its passage. However by allowing the government to determine the appointment, reappointment and removal of members through rules, the threshold of Parliamentary scrutiny of these provisions is being lowered.
  • Further, tribunals perform a judicial function, while the government is part of the executive. There may be instances where the government is a party to a dispute before a tribunal like the Central Administrative Tribunal (CAT) or the Income Tax Appellate Tribunal (ITAT). There would be conflict of interest if the government were to be a litigant before the tribunal as well as have the power to determine appointment or reappointment of its members. By allowing the central government to frame rules to decide each of these aspects, the independence of tribunals could be affected.
  • Assuming powers to appoint and remove the chairpersons triggering fears the unprecedented move will undermine the authority and independence of these quasi-judicial institutions.
  • Another provision - Section 180 - effectively fires judges from nine existing tribunals with three months' pay and allowances. There is no safety net for the tribunal judges. Legally speaking most of the legislations appointing judges totribunals prohibit their service conditions from being changed after their appointments.
  • This could pose a conflict of interest in cases where the government is a litigant since it is the one controlling the conditions of tribunal.
  • Through this move it will enable the government to put their own henchmen in tribunals control even autonomous bodies.
  • There is no infrastructure and merging them will add to their backlog, overlap and confusions.
  • COMPAT particularly dealt with competition laws which is essential but under NCLT which is already overburdened since The new Insolvency and Bankruptcy Code has designated NCLT as the adjudicating authority for corporates cases thus it may lead to compromise in efficiency and effectiveness.
  • TDAT may not be able to replace the expertise of AERA appellate tribunal especially when domestic air traffic is on the rise AERAAT.
  • Government has not followed several salutary principles laid down by the Supreme Court in 2014 to secure the independence of tribunals.