The emergence of a Welfare State
led to the State bearing the culpability to take care of people’s socio-economic
needs. All the aspects of this responsibility cannot be endured
by a single branch of the State, especially one as underfunded as the
judiciary. This created an opening for the executive to assist the judiciary by
performing many quasi-judicial functions like levying of fines,
penalties etc. The legislature decided to ease the load of problems faced by
the Indian Courts by instituting provisions under Articles 323A and 323B of the
Constitution of India, 1950100 to form adjudicating authorities
exercising quasi-judicial powers, and these evolved into tribunals.
The Supreme Court in the case of Bharat120 Bank Ltd. V/s. Employees stated that all adjudicatory bodies
performing quasi-judicial functions are not tribunals. Only those Governmental
bodies which pass the basic test under Articles 136 and 227 of being vested with
State’s judicial power under a statute or a statutory rule, can be
classified to be a tribunal. So, on one hand, a Court derives its power
directly from the Constitution, whereas tribunals derive their powers
from statutes enacted under Articles 323A200 and 323B of
the Indian Constitution. Thus, the judiciary as an organ is free from
legislative control. They can interpret the statutes enacted by the legislature
howsoever they desire and can render a judgement which, according to
their own viewpoint,240 is correct. However, a tribunal is a child
of a statute which has been specially enacted for its creation and is
bound by the statutes that have created it. Given that they are still a
part of the judicial system, it is imperative to ensure that they are
not decorated with unfettered power. There has to be a system
of300 checks and balances over their
functioning and a High Court must be given authority over their working.
Tribunals are formed by the
legislature through a statute to solve particular kinds of cases pertaining to
a particular department of the Government like the Income Tax
Appellate Tribunal or the Appellate Tribunal for Electricity. These
departments receive the funding to maintain their360 infrastructure,
support, services, workspace etc. from the Government which can be
highly influential in regard to the working of these tribunals.
The Government officials may try to influence the decisions being taken by these
departments in a way that would400 favour the State. This was a problem in the
case of Union of India v/s. R. Gandhi where the sponsoring agency had
appointed its own Director as a member of the selection committee of the NCLT.
This allowed the department to select the kind of officers that would
rule in the department’s favour. It was also observed that the civil
servants who are inculcated as part of a tribunal, are aligned with the
interests of their own480 department. This creates bias towards the welfare of
their own department, especially when it is one of the parties in500 a dispute. To
remedy this situation, the Court proposed a new four-member selection committee
including the Chief Justice of India or his nominee, a Senior judge of
Supreme Court or a High Court Chief Justice, Secretary of Ministry of Finance
and Company Affairs and Secretary of Ministry of Law and Justice. This
committee would be free from any departmental members interfering in the
selection of the constituting body of the tribunal ensuring its independence.
The same issue also came up in the case of Madras
Bar Association vs. Union of India. A five-judge bench of the Supreme Court
declared600 the National Tax Tribunal Act, 2005 to be unconstitutional.
The Court overturned the provisions which allowed the Central Government to
decide the venue, setting up of branches, transferring representatives etc. of
these tribunals The objective of this statute was to640 strengthen the executive’s
dominance over the tribunals compromising their independence. Government itself, being a stakeholder,
added to the prospect of these adjudicators indulging in bias. It was
also held that constituting a tribunal of a majority of executive’s
officers rather than judicial members would reduce its ability to act
independently. Contrary to these tribunals, a High Court is independent from700 the influence of
any other branch of the State. They are not answerable to any particular
department of the Government720 and have the authority to direct the
Legislatures and State Governments to act in a certain manner.
The only authority over
and above the High Courts is that of the Supreme Court of India. Robbing
the High Courts of their power would increase the work pressure on the
Supreme Court as they would have to indulge in matters that could
have been decided by the High Court. High Courts have a considerably greater
number of judges and can easily tackle800 increased workload. Thus, having a High Court
overseeing the functioning of the tribunals as well as the Trial Courts
is ideal.
The 42nd Amendment to the
Constitution of India, 1950, brought about a severe change to the provisions of840 the Constitution which severely diminished the powers of judicial
review exercised by the High Courts and the Supreme Court. There were two
principal changes curtailing their power. First, Article 227(1), which
restricted the authority of the High Court to exercise its power over all
Courts subject to its appellate jurisdiction, excluded tribunals from the
provision effectively. Further,900 Clause 5 was inserted to the Article,
which withdrew the power of the High Court to question or review any
judgement of a lower Court unless one of the parties prefers an appeal
or a revision. The second change was the incorporation of Articles 323A and
323B which empowered the Parliament to pass laws960 for creation of Administrative Tribunals which would only submit
to the jurisdiction of the Supreme Court.
In the guise of taking the case load off of
the High Courts, the Legislature attempted to increase the control of the
Government over1000 the judicial system. Ousting the
authority of the High Court would have allowed the State Governments to
influence the decisions of the tribunal to be more favourable to their
cause. As mentioned above, the Supreme Court would be unable to deal with
this bias of the tribunals due to the exorbitant amount of work
that would inculcate for them. However, some relief was granted to them when
the Constitution (44th Amendment) Act, 1978 was enacted.1078
