TRIBUNALS

To prepare for INDIAN POLITY for any competitive exam, aspirants have to know about the tribunal. It gives an idea of all the important topics for the IAS Exam and the polity syllabus (GS-II.). This is an essential portion of the polity.  As IAS aspirants, you should be thorough with the tribunal. In this article, you can read all about the tribunal for the Polity and Governance segments of the UPSC syllabus.

  • A tribunal is a statutory, quasi-judicial body established in India by an Act of Parliament or State Legislature to resolve disputes in a speedy, cost-effective and inefficient manner that are brought before it.

 

CONSTITUTIONAL PROVISIONS
  • Tribunals were not part of the original constitution.
  • Added by 42nd Amendment Act, 1976 with a new Part XIV-A to the Constitution on recommendation of Swaran Singh Committee. (Committee also recommended FUNDAMENTAL DUTIES)
  • 323-A – deals with Administrative Tribunals.
  • 323-B – deals with tribunals for other matters.
  • Works on principle of natural justice, not abide by civil procedure code.
  • Members are drawn from Judicial and administrative streams.
  • Chairpersons of tribunals accorded Status of judges of HC
  • They enjoy some of the powers of a civil court e. issuing summons and allowing witnesses to give evidence. Its decisions are legally binding on the parties, subject to appeal.
Art.262 The Indian Constitution provides a role for the Central government in adjudicating conflicts surrounding inter-state rivers that arise among the state/regional governments.

 

ARTICLES 323A AND 323B DIFFER IN THE FOLLOWING THREE ASPECTS:
Art.323 A Art. 323 B
Contemplates the establishment of tribunals for public service matters only Contemplates the establishment of tribunals for certain other matters. E.g. tax, utility services.
Can be established only by Parliament and not by state legislatures. Can be established both by Parliament and state legislatures with respect to matters falling within their legislative competence.
Only one tribunal for the Centre and one for each state or two or more states may be established. No question of the hierarchy of tribunals arises.  A hierarchy of tribunals may be created.

 

UTILITY OF TRIBUNAL
  • Flexibility in procedures – They are not restrained by rigid rules of procedure.
  • Less Expensive – Setup to be less formal, less expensive, and a faster way to resolve disputes than by using the traditional court system.
  • Relief to Courts – The system also gives the relief to ordinary courts of law, which are already overburdened with numerous suits, tendencies and vacancies.
  • Domain experts on a specialized subject – Reduces the time needed and thus costs.
  • Diversity of subjects -They hear disputes related to the environment, armed forces, tax and administrative issues.
  • Providing speedy and inexpensive, effective justice to the aggrieved party.

 

ADMINISTRATIVE TRIBUNAL
  • Article 323 A– Enables the Parliament to take out the adjudication of disputes relating to service matters from the civil courts and the high courts and place it before the administrative tribunals.
  • In accordance to Art.323 A, Parliament has passed the Administrative Tribunals Act in 1985.
  • The act authorises the Central government to establish one CAT and SAT.

 

CENTRAL ADMINISTRATIVE TRIBUNAL (CAT)
  • CAT was set up in 1985 with the principal bench at Delhi and additional benches in different states.
  • CAT has 17 regular benches, 15 of which operate at the principal seats of high courts and the remaining two at Jaipur and Lucknow.
  • Original jurisdiction of CAT – In relation to recruitment and all service matters of public servants covered by it. Jurisdiction extends to the all-India services, Central civil services, civil posts under the Centre and civilian employees of defence services.

 

COMPOSITION OF CAT
  • The CAT is a multi-member body consisting of a chairman and members.
  • Originally, CAT consisted of a Chairman, Vice- Chairman and members.
  • Now, no post of Vice-Chairman in the CAT (removed by the Administrative Tribunals Amendment Act, 2006.)
  • Sanctioned strength of the CAT – One Chairman and 65 Members (As of 2019)
  • Members drawn from both judicial and administrative streams and are appointed by the president.
Exception– Members of the defence forces, officers and servants of the SC and the secretarial staff of the Parliament are not covered by it.

 

TERM OF OFFICE
  • Chairman– For 5 years or until they attain the age of 65 years, whichever is earlier.
  • Members – For 5 years or until they attain the age of 62 years, whichever is earlier.

 

APPOINTMENTS
  • The appointment of Members in CAT is made on the basis of recommendations of a high-powered selection committee chaired by a sitting Judge of SC who is nominated by CJI.
  • After obtaining the concurrence of Chief Justice of India, appointments are made with the approval of Cabinet Committee of Appointments (Headed by PM).

 

PROCEDURE OF CAT
  • The CAT is not bound by the procedure laid down in the Civil Procedure Code of 1908.
  • It is guided by the principles of natural justice. These accords CAT flexibility in approach.
  • CAT allows applicant to appear either in person or through a lawyer.
  • Originally, appeals against the orders of the CAT could be made only in the SC and not in the high courts (Bypassing jurisdiction of HC).
  • Chandra Kumar case (1997) SC declared this restriction on the jurisdiction of the HC as unconstitutional, holding that judicial review is a part of the basic structure of the Constitution.
  • SC laid down that appeals against the orders of the CAT shall lie before the division bench of the concerned HC and later on in the SC.

 

STATE ADMINISTRATIVE TRIBUNAL
  • The Administrative Tribunals Act of 1985 empowers the Central government to establish the SATs on specific request of the concerned state governments.
  • SATs have been set up in the nine states of Andhra Pradesh, Himachal Pradesh, Odisha, Karnataka, Madhya Pradesh, Maharashtra, Tamil Nadu, West Bengal and Kerala. (As of 2019)
  • Original jurisdiction of SAT – In relation to recruitment and all service matters of state government employees.

 

APPOINTMENTS
  • The chairman and members of the SATs are appointed by the president after consultation with the governor of the state concerned.
  • The act also makes a provision for setting up of joint administrative tribunal (JAT) for two or more states.
  • A JAT exercises all the jurisdiction and powers exercisable by the administrative tribunals for such states.
  • The chairman and members of a JAT are appointed by the president after consultation with the governors of the concerned states.

 

CHARACTERISTICS OF ADMINISTRATIVE TRIBUNALS
  • Administrative Tribunal is a creation of a statute.
  • An Administrative Tribunal is vested in the judicial power of the State and thereby performs quasi-judicial functionsas distinguished from pure administrative functions.
  • Administrative Tribunal is bound to act judicially and follow the principles of natural justice. It is required to act openly, fairly and impartially.
  • An Administrative Tribunal is not bound by the strict rules of procedure and evidence prescribed by the civil procedure court and Evidence act.

 

DIFFERENCE BETWEEN COURT OF LAW AND TRIBUNAL

Administrative Tribunals and Ordinary Courts both deal with the disputes between the parties which affects the rights of the subjects. however, Administrative Tribunal is not a court.

Court of Law Tribunal
A court of law is a part of the traditional judicial system. An Administrative Tribunal is an agency created by the statute and invested with judicial power.
The Civil Courts have judicial power to try all suits of a civil nature unless the cognizance is expressly barred. Tribunal is also known as the Quasi-judicial body. Tribunals have the power to try cases of special matter which are conferred on them by statutes
Judges of the ordinary courts of law are independent of the executive in respect of their tenure, terms and conditions of service etc. Judiciary is independent of Executive. Tenure, terms and conditions of the services of the members of Administrative Tribunal are entirely in the hands of Executive.
A court of law can decide vires of a legislation Administrative Tribunal cannot do so
A court of law is bound by all the rules of evidence and procedure. An Administrative Tribunal is not bound by rules but bound by the principles of nature of Justice.
The presiding officer of the court of law is trained in law and legal professional. The president or a member of the Tribunal may not be trained as well in law. He may be an expert in the field of Administrative matters.
Court must decide all questions objectively on the basis of evidence and materials on record. Decision of Administrative Tribunal may be subjective rather than objective. Administrative Tribunal may decide questions by taking into account departmental policy.

 

PROBLEMS WITH TRIBUNALS
  • Violation of Doctrine of Separation of Powers – Tribunal is not a court of law and is controlled and manned by the members of Judiciary and Executive which allows the Executive to perform adjudication functions.
  • Potential Conflict of interest – Executives adjudicating cases of executives. Executive is also the largest litigant in the country.
  • Inadequate constitutional protection: The tribunals do not enjoy the same constitutional protection as HC.
  • Increasing Pendency and inordinate delays – Average pendency across tribunals is 3.8 years with 25% increase in the size of unresolved cases.
  • Undermining the Authority of Judiciary: Tribunals have largely replaced HC for disputes under the various Acts.
  • Overcrowding of tribunals leads to “Tribalization of justice” as observed by Supreme Court.
  • Huge vacancies in dozens of tribunals have defeated the very purpose for which these specialized quasi- judicial forums were created.
  • Unequal geographical presence – Tribunals are also not as accessible as HC. This makes justice expensive and difficult to access.
  • Overlapping Jurisdiction: Various tribunals are functioning under various ministries and departments and also there are multiple tribunals performing functions of similar nature.

 

WAY FORWARD

Law Commission of India (LCI) in its report has laid out a detailed procedure for improving the working of the tribunal system in the country-

  • Qualification of judges – In case of transfer of jurisdiction of HC (or District Court) to a Tribunal, the members of the newly constituted Tribunal should possess the qualifications akin to the judges of the HC (or District Court).
  • Common nodal agency – Under law ministry to monitor the working of tribunals as well as ensure uniformity in the appointment, tenure and service conditions of all members appointed in the tribunals.
  • Filling Vacancy arising in the Tribunal – Preferably within six months prior to the occurrence of vacancy.
  • Selection should be impartial with minimal involvement of government agencies as the government is a party in litigation.
  • Formation of Separate Selection Committee – for both judicial and administrative members.
  • Equitable regional presence – Tribunals must have benches in different parts of the country to ensure easy access to justice, ideally where the HIGH COURT are situated.

 

Revision of Tenure-

  • Chairman – should hold office for 3 years or till age of 70 years, whichever is earlier.
  • Vice-Chairman and Members – should hold the office for 3 years or till age of 67 years, whichever is earlier.

 

NEW RULES FOR TRIBUNALS IN 2020 

Context– Union Ministry of Finance has framed new rules prescribing uniform norms for the appointment and service conditions of members to various Tribunals.

 

ABOUT NEW RULE
  • The ‘Tribunal, Appellate Tribunal and other Authorities Rules, 2020’, were framed by the Ministry of Finance in exercise of powers under Section 184 of the Finance Act 2017.
  • These apply to 19 Tribunals including CAT; Income Tax Appellate Tribunal, Customs, Excise, Service, Tax Appellate Tribunal etc.
  • However, Foreigners Tribunals are not covered.

 

APPOINTMENT
  • Appointments to the above Tribunals will be made by Central Government on the recommendations by the “Search cum Selection Committee” composed of:
    • CJI or judge nominated by him
    • President/chairperson of tribunal concerned
    • Two government secretaries from the concerned ministry/department.

 

REMOVAL
  • “Search Cum Selection Committee” has the power to recommend the removal of a member, and also to conduct inquiry into allegations of misconduct by a member.

 

QUALIFICATIONS FOR TRIBUNAL MEMBERS
  • Only persons having judicial or legal experience are eligible for appointment.

 

TERM OF OFFICE
  • Rules also provide a fixed term of four years to the Tribunal members.

 

INDEPENDENCE
  • The condition in the 2017 Rules (which were set aside by Court) that the members will be eligible for re-appointment has also been dropped in 2020 Rules.

 

 

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