A K Agnihotri : TRIBUNALISATION OF JUSTICE

TRIBUNALISATION OF JUSTICE ( part I)

In its recent decision in S.D. Joshi v. High Court of Judicature at Bombay (later reported as AIR 2011 SC 848) the Supreme Court explained the difference between the two concepts, Tribunals and Courts’ institutions in the following terms;
@pg. 24 ‘This question need not detain us any further, as the law in this regard is no more res integra and stands finally stated by a Constitution Bench of this Court in the case of Harinagar Sugar Mills Ltd. (supra). Justice Hidayatullah, as His Lordship then was, while giving his own reasons concurred with other Judges in allowing the appeal setting aside the order of the Central Government. While commenting upon the maintainability of the appeals, he drew a distinction between a ‘Court’ and a ‘Tribunal’ and dealt with the question as to whether the Central Government, while hearing this appeal, was a Tribunal and held as under:-
   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.
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. 

Lord Sankey, L.C. in Shell Company of Australia v. Federal Commissioner of Taxation observed:
“The authorities are clear to show that there are tribunals with many of the trappings of a court, which, nevertheless, are not courts in the strict sense of exercising judicial power.... In that connection it may be useful to enumerate some negative propositions on this subject: 
1. A tribunal is not necessarily a court in this strict sense because it gives a final decision. 
2. Nor because it hears witnesses on oath. 
3. Nor because two or more contending parties appear before it between whom it has to decide. 
4. Nor because it gives decisions which affect the rights of subjects. 
5. Nor because there is an appeal to a court. 
6. Nor because it is a body to which a matter is referred by another body. 
      A court in the strict sense is a tribunal which is a part of the ordinary hierarchy of courts of civil judicature maintained by the State under its constitution to exercise the judicial power of the State. These courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction. The word “judicial”, be it noted, is itself capable of two meanings. They were admirably stated by Lopes, L.J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson in these words:
“The word ‘judicial’ has two meanings. It may refer to the discharge of duties exercisable by a Judge or by Justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind — that is, a mind to determine what is fair and just in respect of the matters under consideration.”
  That an officer is required to decide matters before him “judicially” in the second sense does not make him a court or even a tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest.
   Now, in its functions the Government often reaches decisions, but all decisions of the Government cannot be regarded as those of a Tribunal. Resolutions of the Government may affect rights of parties, and yet, they may not be in the exercise of the judicial power. 
   Resolutions of the Government may be amenable to writs under Articles 32 and 226 in appropriate cases, but may not be subject to a direct appeal under Article 136 as the decisions of a tribunal. The position, however, changes when Government embarks upon curial functions, and proceeds to exercise judicial power and decide disputes. In those circumstances, it is legitimate to regard the officer who deals with the matter and even Government itself as a tribunal. The officer, who decides, may even be anonymous; but the decision is one of a Tribunal, whether expressed in his name or in the name of the Central Government. The word “tribunal” is a word of wide import, and the words “court” and “tribunal” embrace within them the exercise of judicial power in all its forms. The decision of the Government thus falls within the powers of this Court under Article 136.” 
It was held that all tribunals are not Courts though all Courts are tribunals. This view has been reiterated by this Court, more particularly, in relation to drawing a distinction between a tribunal and a Court. A tribunal may be termed as a Court if it has all the trappings of a Court and satisfies the above stated parameters. Every Court may be a tribunal but every tribunal necessarily may not be a Court. 
    GENESIS:    
              Post Independence saw an increased role of the Government in public welfare and the Executive saw in this an opportunity to expand itself and perform a number of quasi- legislative and  quasi-judicial functions, thereby blurring the constitutionally mandated doctrine of Separation of Powers, under which the powers of the Government or Governance were apportioned amongst the Legislature, Executive and the Judiciary.  
      The increasing interface of Government machinery with the populace and the consequent friction raised disputes which not only raised legal issues but also matters which affected the social fabric of the populace. Consequently, the Courts  became deluged with litigation arising directly and incidentally from such increased governmental role. The inherent procedural limitations made it difficult for the courts to dispose these cases promptly, leading to a huge backlog of cases in all levels of the judiciary. It was also felt in many quarters that the members of the Judiciary were neither adequately trained nor equipped to deal with the complex socio-economic and technical matters being adjudicated. It was felt that specialised adjudicatory bodies such as Tribunals were needed to resolve such disputes fairly, effectively and speedily. That none of the pious wishes were achieved is another matter.
   Tribunals by definition are a “Judgment Seat; a Court of Justice; Board or Committee appointed to adjudicate on claims of a particular kind”. Though the term ‘Tribunal’ is present in the Constitution of India in Articles 136 and 227, it has not been specifically defined. However, the essence of the meaning of the word Tribunal which can be culled out from the various Supreme Court authorities is that they are adjudicatory bodies (except ordinary courts of law) constituted by the State and invested with judicial and quasi-judicial functions as distinguished from administrative or executive functions as was held in Durga Mehta v. Raghuraj Singh-(AIR 1954 SC 520 at 522.)
 The test of qualification of a tribunal, within the meaning of Articles 136 and 227, is that they are adjudicatory bodies vested with resolving conflicting rights.
   Generally, it would seem that anybody vested with the power to determine the conflicting rights of two or more parties conclusively would satisfy the test of exercising a judicial function and can be regarded as a tribunal within the meaning of Articles 136 and 227. A Tribunal as described aforesaid is to act judicially when determining the dispute between the parties concerned. However, the mere fact that an authority is to act judicially does not clothe the authority with the judicial power of the State. The Supreme Court in Jaswant Sugar Mills v.Lakshmi Chand (AIR 1963 SC 677 at 687) laid down the following characteristics or tests to determine whether an authority is a tribunal or not:
1. Power of adjudication must be derived from a statute or statutory rule.
2. It must possess the trappings of a court and thereby be vested with the power to summon witnesses, administer oath, compel production of evidence, etc.
3. Tribunals are not bound by strict rules of evidence.
4. They are to exercise their functions objectively and judicially and to apply the law and resolve disputes independently of executive policy.
5. Tribunals are supposed to be independent and immune from any administrative interference in the discharge of their judicial functions.