ADMINISTRATIVE LAW PROJECT AD A D M I N I STR ST R A TI V E A D J UD I C A TI ON ”
“
SUBMITTED TO: Dr. APARNA SINGH
(ASSISTANT PROFESSOR OF LAW)
PROJECT SUBMITTED BY: ISHI SEHGAL R ISHI
Semester V, Section B
E NROLL. NO. 150101112 R OLL OLL NO. 115
AM MANOHAR LOHIYA NATIONAL LAW DR . R AM
U NIVERSITY. LUCKNOW, UTTAR PRADESH
ACKNOWLEDGEMENT I have made this project work, and and on the way of completing it, I have learned a lot of things for which I am thankful to Mrs. Aparna Singh, Assistant Professor, RMLNLU, Lucknow and my guide, who gave me the opportunity to do this project work and guided me all the way. I would also like to thank my friends, and colleagues, for their opinions, suggestions and critical analysis, which has helped me to improve this project. I also thank the RMLNLU library and the people working there. Their silent work is the reason behind the completion of this project.
I thank God, He has been very generous on me, to have kept me in good health and make the conditions favourable for me to complete this work in time.
Lastly, I thank my parents. Without Wit hout their continuous support and belief in me, I would never have been able to make this project.
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TABLE OF CONTENTS CHAPTER 1: INTRODUCTION .............................................................................................. 3 CHAPTER 2: MEANING AND GENERAL CONCEPTS OF ADMINISTRATIVE ADJUDICATION ...................................................................................................................... 4 CHAPTER 3: REASONS FOR GROWTH OF ADMINISTRATIVE ADJUDICATION AND ITS NEED ........................................................................................................................ 5 CHAPTER 4: DISADVANTAGES OF ADMINISTRATIVE ADJUDICATION................... 7 CHAPTER 5: ADVANTAGES OF ADMINISTRATIVE ADJUDICATION ....................... 10 CHAPTER 6: ADMINISTRATIVE TRIBUNAL ...................................................................11 DEFINTION.........................................................................................................................11 MEANING OF THE TRIBUNAL UNDER THE INDIAN CONSTITUTION ..................12 CONSTITUTIONAL RECOGNITION OF ADMINISTRATIVE TRIBUNALS .............. 13 CHARACTERISTICS OF ADMINISTRATIVE TRIBUNAL ........................................... 14 CHAPTER 7: MECHANISM FOR ADMINISTRATIVE ADJUDIACTION ....................... 15 CONCLUSION........................................................................................................................ 18 BIBLIOGRAPHY .................................................................................................................... 19
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CHAPTER 1: INTRODUCTION Today, over and above ministerial functions, the executive perform many quasi-legislative and quasi-judicial functions as well. Governmental functions have increased and even though according to the traditional theory, the function of adjudication of disputes is the exclusive jurisdiction of the ordinary courts of law, in reality, many judicial functions have come to be performed by the executive, e.g. imposition of fine, levy of penalty, confiscation of goods, etc. The traditional theory of 'laissez faire' has been given up and the old ‘Police State’ has now become a ‘Welfare State’, and because of this radical change in the philosophy as to the role to be played by the State, its functions have increased. Today it exercises not only sovereign functions, but, as a progressive democratic State, it also seeks to ensure social security and social welfare for the common masses. It regulates the industrial relations, exercises control over production, and starts many enterprises. The issues arising there from are not purel y legal issues. It is not possible for the ordinary courts of law to deal with all these socio-economic problems.
For example, industrial disputes between the workers and the management must be settled as early as possible. It is not only in the interest of the parties to the disputes, but of the society at large. It is, however, not possible for an ordinary court of law to decide these disputes expeditiously, as it has to function, restrained by certain innate limitations. All the same, it is necessary that such disputes should not be determined in an arbitrary or autocratic manner. Administrative tribunals are, therefore, established to decide various quasi-judicial issues in place of ordinary courts of law.
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CHAPTER 2: MEANING AND GENERAL CONCEPTS OF ADMINISTRATIVE ADJUDICATION Administrative adjudication is the process by which an administrative agency issues an affirmative, negative, injunctive, or declaratory order. The formal proceedings before an administrative agency adopt the process of rulemaking or adjudication. In rule making process, the policies are formulated by setting rules for the future conduct of persons governed by that agency. While in adjudication process, the agency's policies are applied to the past actions of a particular party, and it results in an order for or against that party. Both these methods are regulated by the law of administrative procedure 1. The term ‘administrative adjudication’ has been used synonymously with “administrative justice”2. In a socialist society, bulks of cases are not decided by the ordinary courts. When a dispute arises between an administrative agency and a private person it is settled by the administration, this is called administrative adjudication. Jural postulates play a vital role in administrative adjudication. This is so because administrative adjudication is based on the assumption that when liberty is subtracted, justice has to be added. It is necessary to make the people conscious of the view that administrative powers will be exercised according to their notion of good behavior and good administration. When the government is given more and more powers, public opinion becomes more and more sensitive of the abuse and misuse of such powers. The judiciary has established certain legal standards in this respect. It has its own weaknesses, but has great strength as well.
Administrative adjudication has come into existence as a result of the philosophy of welfare State and consequential socialization of law. Today the State exercises not only sovereign functions, but as a progressive democratic State, it also seeks to ensure social security and social welfare for the common masses. It regulates industrial relations, exercises control over production and starts many enterprises. The issues arising there from are socio-economic issues. It is not possible for the ordinary Courts of law to deal with all the issues of socioeconomic policies. As Wade and Philips rightly observe:
1 2
C.K. Thakkar , Administrative Law (Eastern Book Company, 1992). Timothy Endicott, Administrative Law (Oxford University press 2008) 4
“Modern government gives rise to many disputes which cannot appropriately be solved by applying objective legal principles or standards and depends ultimately on what is desirable in the public interest as a matter of social policy.” 3 For example industrial relations between the workers and the management must be settled as soon as possible. It is not in the interest of the parties to the disputes but of the society at large. It is not possible for the ordinary Courts to decide these disputes expeditiously. At the same time, it is necessary that such disputes should not be determined in arbitrary or autocratic manner. Administrative Tribunals are, therefore, established to decide various quasi- judicial issues in place of ordinary Courts of law. Tribunals are recognized even by the Constitution of India.
CHAPTER 3: REASONS FOR GROWTH OF ADMINISTRATIVE ADJUDICATION AND ITS NEED According to Dicey's theory of rule of law, the ordinary law of the land must be administered by ordinary law courts. He was opposed to the establishment of administrative tribunals. According to the classical theory and the doctrine of separation of powers, the function of deciding disputes between the parties belonged to ordinary courts of la w. But the governmental functions have increased and ordinary courts of law are not in a position to meet the situation and solve the complex problems arising in the changed socio-economic context.
The complexities of intensive form of government and synthetic structure of present society have given rise to new problems requiring new solutions. One aspect of post-independence era is that the drive against poverty, illiteracy and disease has started. The government embarked on massive plans of dispensation of benefits, public health, education, planning, social security, transport, agriculture, industrialization and redistribution of nation's wealth. In these circumstances, administrative tribunals are established for the following reasons4: — (i) Policy considerations
In the changed socio-economic context, while the Courts are accustomed to deal with cases primarily according to law, the exigencies of modem government postulate that some types of controversies be disposed of by applying not law, pure and simple, but considerations of policy as well, that is, what is in “public interest", what is “expedient" or what is
3 Constitutional Law, 1965, p. 699; See also the Reports of the Franks Committee 1957, pp. 8-9. 4 I.P. Massey, Administrative law, 9th edition, EBC. 5
“reasonable". Such questions can be solved not only on basis of law and fact but also by applying policy considerations. This cannot be accomplished by the Courts of law. Therefore Tribunals were established to handle these complex problems. (ii) Inadequacy of Judicial system
The traditional judicial system proved inadequate to decide and settle all disputes requiring resolution. It is most complicated, expensive and dilatory. It was not possible to expect speedy disposal of even very important matters e.g., disputes between employers and employees, lockouts and strikes etc. It was for these reasons that Industrial Tribunals and Labour Courts were established, which possessed the technique and expertise to deal with such complex problems. (iii) Merits of the System of Administrative Adjudication
The system of administrative adjudication is cheap, speedy and flexible. Judicial system is slow, costly, complex and formalistic. According to the Franks Committe 5: “Tribunals have certain characteristics •which often give them advantages over the Courts. These are cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject." (iv) Functional approach to socio-economic problems
Administrative Tribunals can avoid technicalities. They adopt a functional rather than a theoretical and legalistic approach. The traditional judicial system is conservative, rigid and technical. Courts of law cannot decide cases without formality and technicality. On the other hand Administrative Tribunals are not bound to follow stric t rules or procedure and evidence. It is, therefore, that they can take practical view of the matter to solve complex problems. (v) Need for expertise
Sometimes, disputes are technical in nature. The traditional judicial system cannot be expected to appreciate and decide them. The reason is obvious because the judge is generalist. On the other hand, Administrative Tribunals are usually manned by experts who can deal with and solve these problems; e.g., problems relating to atomic energy, gas, electricity etc. (vi) Preventive measures
5
Paul Craig Administrative Law, 6th edition (Oxford University Press). 6
Administrative authorities can resort to preventive measures: e.g., licensing, rate fixing etc. Unlike ordinary Courts of law, they have not to wait for the parties to come before them with disputes. In a number of cases, these preventive actions may be more effective and useful than punishing a person after he has violated any legal provision. (vii) Policing of preventive measures
Administrative authorities can take effective steps for policing of the aforesa id preventive measures, e.g., suspension, revocation or cancellation of licences, destruction of contaminated articles, etc. which are not feasible through the regular Court of law. (viii) Functioning of Tribunals Robson observes, Administrative Tribunals discharge their functions “more rapidly, more cheaply, more efficiently than ordinary Court possess greater technical knowledge and fewer prejudices against government give greater heed to the social interests involved decide disputes with conscious effort at furthering social policy in the legislation.”6
CHAPTER 4: DISADVANTAGES OF ADMINISTRATIVE ADJUDICATION Even though administrative adjudication is essential and useful in modem day administration, we should not be blind to the defects from which it suffers or the dangers it poses to a democratic polity. Some of the main drawbacks are mentioned below. (i)
Administrative adjudication is a negation of Rule of Law. Rule of Law ensures equality before law for everybody and the supremacy of ordinary law and due procedure of law over governmental arbitrariness. But administrative tribunals, with their separate laws and procedures often made by themselves, puts a serious limitation upon the celebrated principles of Rule of Law.
(ii)
(ii) Administrative tribunals have in most cases; no set procedures and sometimes they violate even the principles of natural justice.
(iii)
(iii) Administrative tribunals often hold summary trials and they do not follow any precedents. As such it is not possible to predict the course of future decisions. (iv)The civil and criminal courts have a uniform pattern of administering justice and centuries of experience in the administration of civil and criminal laws have
6 Quoted by Kagzi: The Indian Administrative Law, 1973. p. 284. 7
borne testimony to the advantages of uniform procedure. A uniform code of procedure in administrative adjudication is not there. (iv)
(v) Administrative tribunals are manned by administrators and technical hea ds who may not have the background of law or training of judicial work. Some of them may not possess the independent outlook of a judge.
The Swaran Singh Committee has very commendably completed its recommendatory exercises in the restructuration of the Constitution 7. Though the Committee covered a wide spectrum from the Preamble to Article 368 but for our limited purpose attention is focussed on those recommendations only of the Committee which relate to administrative justice. The Committee recommends: 1. Administrative tribunals may be set up both at the State level and at the Centre to decide cases relating to service matters. These tribunals shall be constituted under a Central law. 2. Provision may be made for setting up an All-India Labour Appellate Tribunal to decide appeals from Labour Courts and Industrial Courts. 3. Disputes relating to the following matters shall be decided by tribunals: (i) Any matter concerning revenue or concerning any act ordered or done in the collection thereof. (ii) Any matter relating to land reforms, ceiling on urban property and procurement and distribution of food grains and other essential commodities. In regard to the matters specified above the writ jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 shall be excluded. The relevant sta tutes governing these matters will also make specific provisions excluding the jurisdiction of courts over such matters. However the right to apply for special leave of the Supreme Court under Article 136 shall remain. 4. No writ shall lie in relation to election matters.
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http://indiatoday.intoday.in/story/swaran-singh-committee-recommends-new-chapter-on-fundamental-dutiesin-the-constitution/1/436571.html. 8
5. Reference to tribunals in Article 227 should be omitted. 6. The words 'and for any other purpose' may be deleted from Article 226. Another problem of administrative adjudication is that apart from the statute there is no obligation on administrative agencies exercising decision-making powers to give reasons for their decisions. It is admitted on all hands that in order to avoid arbitrariness, to facilitate review and to develop uniform principles of administrative law, 'reasons' are essential. It is gratifying that the Supreme Court has insisted that the administrative agencies exercising adjudicatory powers must give reasons though the question of sufficiency of reasons in a particular case remains still uncertain.8 If the courts of law are to be replaced by administrative authorities and tribunals as indeed, in some kinds of cases, with the proliferation of administrative laws, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing and give sufficiently clear and explicit reasons in support of their orders. Then alone administrative authorities and tribunals exercising quasi-judicial functions will be able to justify their existence and carry credibilit y with the people by inspiring confidence in the administrative adjudicatory process. It is true that all the persons manning administrative agencies exercising adjudicatory powers are not judges, and therefore, are not expected to write lengthy judgments 9. However, it may be suggested that they must be brought under some legal obligation to include a statement of findings and conclusions as well as the reasons or basis thereof upon all material issues of fact, law and discretion presented on record whenever any party demands it. Administrative agencies exercising adjudicatory powers must also reinforce their findings with 'substantial evidences'. Substantial evidences here me an such relevant evidences as a reasonable man might accept as adequate to support the conclusion. The 'no evidence rule' presently followed is not only illusory but also unjust. Leaving aside tribunals, administrative agencies exercising adjudicatory powers discharge various other administrative and governmental functions. In many cases these agencies combine the functions of prosecutor and judge in one. In the interest of justice and for regaining the lost faith of the people in administrative justice some sort of separation of functions is necessary. Therefore, the institution of 'Hearing Officers' of U.S.A. or the institution of 'Inspectors' of England is worth considering. This may also help eliminate problems like
8 9
Bhagat Raja v. Union of India, AIR 1967 SC 1606. C.K. Thakkar , Administrative Law (Eastern Book Company, 1992) 9
'departmental bias', 'plea bargaining', 'official perspective' and 'political interference ' which are eating into the very marrow of the administrative justice. Un-foreseeability and unpredictability of decisions of administrative agencies exercising adjudicatory powers is another reason why these agencies do not carry credibility with the people. These agencies do not publish their decisions in the form of official reports and thereby their actions go beyond the pale of public criticis m10. This element of secrecy not only creates suspicion but the agencies are deprived of the benefit which healthy public criticism can confer. Administrative agencies also do not follow the theory of precedents, and therefore, their decisions become unpredictable. This not only offends the common man's sense of justice but is also against the concept of rule of law. No doubt individualization of justice demands freedom from precedents, yet these agencies must be very slow in overruling their own decisions. This will help in developing some sound principles of administrative law which are significantly lacking in India . If substantive law is important, the procedural law cannot be in any way less significant, because unless the media is certain and trustworthy justice cannot be up to the mark and may result in arbitrary actions. Therefore, it may be suggested that the Central Government must appoint a Task Force Committee to go into various problems of administrative justice with special reference to its procedure and to draft a minimum procedure on the pattern of Administrative Procedure Code, 1946 and the Tribunals and Enquiries Act, 1958, laying down the minimum procedure which all the administrative agencies exercising adjudicatory powers must follow.
CHAPTER 5: ADVANTAGES OF ADMINISTRATIVE ADJUDICATION 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: 1) Flexibility
10
M.P. Jain, Changing face of Administrative Law in India and abroad (1982). 10
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. 2) 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. 3) 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 4) Relief to Courts
The system also gives the much-needed relief to ordinary courts of law, which are already overburdened with ordinary suits
CHAPTER 6: ADMINISTRATIVE TRIBUNAL DEFINTION Tribunal is an administrative body which exercises the power to adjudicate. In the Franks
Committee Report, Tribunals are not regarded as ordinary Courts But they are not accepted even as “appendages of Government Departments". The view of the Committee is that tribunals should be regarded “as machinery provided by parliament for adjudication rather than as part of the machinery of administration. The essential point is that all these cases, Parliament has deliberately provided for a decision outside and independent of the 11
Department concerned and intention of Parliament to provide for independence of Tribunals is clear and unmistakable.'11 According to Wade 12 “Tribunal are administrative only because they are part of an administrative scheme for which a Minister is responsible to Parliament, and because the reasons for preferring them to the ordinary Courts are administrative reasons.” Even in America the system of Administrative adjudication has been developed. In this country administrative agencies discharge the functions of Tribunals e.g., Commissions, Boards or Officers. 13 According to the dictionary 14 meaning, ‘Tribunal' means seat or bench upon which a judge or judges sit in a Court,' ‘a Court of Justice'. If used in this sense, the expression is very wide as it includes even ordinary Courts of law whereas in administrative law this expression is limited to adjudicating bodies other than the ordinary Courts of law. MEANING OF THE TRIBUNAL UNDER THE INDIAN CONSTITUTION
As regards the Indian context, the term Tribunal’ has been used under the Constitution but has not been defined. From the functional point of view, the position of Tribunal is somewhere between a Court and the government department exercising adjudicatory powers. Although in strict sense Tribunals are not Courts of law, yet they are invested with powers to adjudicate upon the issues affecting the ri ghts of the citizens According to S.N. Jain 15, the term “Tribunal' has been used under the Indian Constitution in three different senses — 1) All administrative bodies exercising quasi/-judicial functions, whether as a part or parcel of the department or otherwise, may be termed as ‘Tribunals’. The only distinguishing feature of these bodies as against other bodies exercising administrative powers that these bodies are required to follow the rules of natural justice in rendering decisions. 2) All those administrative adjudicatory bodies may be regarded as Tribunals which are not under the control of the department involved in the dispute and therefore decide disputes as a Judge free from any departmental bias. The Income-Tax Appellate Tribunal may fall in this category as it is under the control of the Ministry
11 Report of the Committee on Administrative Tribunals and Enquires, 9 (1957). 12 Wade, Administrative Law, 1988, p. 900. 13 William A. Robson, Justice and Administrative Law, 1951, p. 315. 14 Webster's New World Dictionary, 1972, p. 1517. 15 Administrative Tribunal in India, 1977, pp. 6 -7. 12
of Law and not Ministry of Finance and is free to decide matters impartially. Similarly another Tribunal free from departmental control is Railway Rates Tribunal. 3) The term Tribunal’ as used in Article 136 has a special meaning in the sense that the authority must exercise ‘inherent judicial powers of the State’. 16 Accordingly the test to identify a Tribunal is not its control, composition or procedure but its function. As a result of this functional test, even departmental bodies may be classified as ‘Tribunal’, e.g., Custodian General of Evacuee Property, the Central Government exercising powers under section 111 (3) of the Companies Act, 1956, the Central Board of Revenue exercising appellate powers under section 190 of the Sea Customs Act, 1878 and the Central Government exercising powers under section 191 of the Sea Customs Act 1878. 17 In Durga Shanker Mehta v. Raghuraj Singh 18 the Supreme Court has defined ‘Tribunal’ in the following words : “The expression ‘Tribunal’ as used in Article 136 does not mean the same thing as ‘Court’ but includes, within its ambit, all adjudicating bodies, provided they are constituted by the state and are invested with judicial as distinguished from administrative or executive functions.” The proper test to identify a Tribunal within the meaning of Article 136 or for that purpose Article 227 is that it is an adjudicating authority outside the Court which is vested with the judicial powers of the State. However, an authority other than a Court may be vested by statute with judicial power in widely different circumstances, which it would be impossible and indeed inadvisable to attempt to define exhaustively. The test of the Tribunal is not meant to be exhaustive, and it may be that other bodies not satisfying the test are also Tribunals. CONSTITUTIONAL RECOGNITION OF ADMINISTRATIVE TRIBUNALS
There are provisions under the Constitution of India which recognize the existence and importance of Tribunals. Articles 136 and 227 express mention the word Tribunal’. As provided under Article 136, the Supreme Court has discretionary power to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India. Under Article 227, it is
16 Associated Cement Companies Ltd. v. P.N. Sharma, AIR 1965 SC 1595, 1606. 9 S.N. Jain, Administrative Tribunals in India, 1977, pp. 6-7. 10. 'AIR. 1954 SC520. 13
provided that every High Court has supervisory power over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
The use of Administrative Tribunals as a mode of deciding disputes is on the increase because it has all the benefits of a Court without suffering from its limitations. It is for this advantage that Part XIV-A has been inserted in the Constitution by the Forty Second Amendment Act, 1976 which confers power on the Parliament and the State Legislatures to establish Tribunals to deal with specified subjects. There are two articles in part XIV which provides for the establishment of tribunals. Article323- A l ays down that parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of a person appointed to public services and posts in connection with the affairs of union or of any state or of any local or other authority within the territory of India or under the control of the government of India or of any corporation owned or controlled by the government. Article 323-B lays down that the appropriate legislature may, by law, provide for the adjudication or trial by Tribunals of any disputes, complaints or other offences with respect to all or any of the matters enumerated therein with respect to which such legislature has power to make law.
CHARACTERISTICS OF ADMINISTRATIVE TRIBUNAL
In Bharat Bank Ltd v. Employees,19 the Supreme Court has observed that though tribunals are clad in many of the trappings of a Court and though they exercise quasi- judicial functions, they are not full-fledged Courts. Thus a tribunal is a adjudicating body which decides controversies between the parties and exercises judicial powers as distinguished from purely administrative functions and thus possesses some of the trappings of a Court, but not all. In this case while dealing with the issue whether an Industrial Tribunal established under the Industrial Disputes Act, 1947 is Tribunal or not within the meaning of Article 136, the Supreme Court laid down that a tribunal must have the following characteristics: i.
The proceedings before it must commence on an application which is in the nature of a plaint.
ii.
It has the same powers as regards discovery, inspection, taking evidence, as are possessed by a Civil Court.
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AIR 1950 SC 188. 14
iii.
Witnesses are examined and cross-examined as in a Court of law.
iv.
A party may be represented by a legal practitioner.
v.
The tribunal is required to decide on the basis of evidence adduced and according to the provision of the statutes.
vi.
Members of the tribunal are persons qualified to be Judges.
A few more characteristics were added to this list by the Supreme Court in later decisions”:
(i)
It is required to sit in public.
(ii)
It must be capable of giving determinative judgment or award affecting the rights and obligations of parties. (ix) It must be endowed with State's inherent judicial power, meaning thereby that it has statutory origin.
CHAPTER 7: MECHANISM FOR ADMINISTRATIVE ADJUDIACTION Tribunals are largely classified into two categories i.e. domestic tribunal and statutor y tribunal. This classification is based on the nature of the subject matter they adjudicate. 1)
Domestic Tribunals.
2)
Statutory Tribunal
Domestic Tribunals: Domestic tribunal is a private body, not-statutory body set up by the agreement either express or implied between the parties and designed as tribunal is really not a tribunal. It exercises jurisdiction over the internal affairs and its decisions are subject to judicial control under the doctrine of ultra vires20. For examples- Tribunals of Bangladesh Bar Council, Bangladesh Medical Association etc. 1. The domestic tribunal deals with the private matters rather than public matters. 2. The domestic tribunal does not follow procedures of the trial. 3. It deals with the internal affairs of a particular profession or association. 4. No court fee is required in domestic tribunal.
Statutory Tribunal:
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S.N. Jain, Administrative Tribunals in India, 1977 JILI 322. 15
Statutory tribunal is a statutory body. When any tribunals are created by the provisions of statutes or under the authority of a statute they should strictly be called statutory tribunal. The jurisdictions of the statutory tribunals are rest upon the statutes. For examples- Bangladesh Labour Appellate Tribunal. 1. Statutory tribunals adjudicate matters of public concern. 2. It deals with the disputes between a govt. employee and the govt. in service matter.
Distinction between Domestic Tribunal and Statutory Tribunal The following distinguishing features between domestic tribunals and statutory tribunals Should be kept in mind: 1. Whereas the jurisdiction of a domestic tribunal is founded on an agreement or contract between its members, (express or implied) jurisdiction of a statutory tribunal rests on the statute or rules framed thereunder.
2. In case of a domestic tribunal, even if the action is not lawful, normally, a writ jurisdiction under Article 32 or 226 or supervisory jurisdiction under Article 227or under Article 136 of the Constitution is not available though other remedies such as declaration, injunction, damages, etc. can be sought in appropriate cases. In case of statutory tribunal, however, the orders passed or actions taken are subject to the jurisdiction of the Supreme Court or High Courts under the Constitution of India.
3. It is open to a domestic tribunal to adopt its own procedure consistent with the principles of natural justice and fair play. Statutory tribunal, on the other hand, derive power and authority from a statute which creates it, and has to follow procedure laid down in the Act under which it has been established
DIFFERENCE BETWEEN COURT AND A TRIBUNAL Some differences between a Courts and a Tribunal are: 1. Tribunals are set up to be less formal, less expensive, and a faster way to resolve disputes than by using the traditional court system.
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2. Tribunals may not allow people to be represented by a lawyer, may not allow crossexamination of witnesses where as the court always allows this. 3. Tribunals often specialise in resolving disputes in a particular area where as the courts generally have the power to hear a much broader range of cases. 4. The nature of tribunal is ad hoc, and the court is a permanent body. 5. The tribunal will be governed by chairmen that will have a special knowledge about the issue or level of legal training but, a judge in courts has general knowledge about many areas of la w. 6. Courts follow well defined procedures detailed in their Rules, whereas tribunal procedures are more flexible. 7. The doctrine of precedents applied in particular superior courts whereas tribunals will not follow the strict rule of precedent.
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CONCLUSION In practice there are a number of tribunals functioning in the country. Very few of them, however, have been able to inspire confidence in the public. The tribunals have shown a singular lack of competence and objectivity in determining disputes. Another reason for their failure is the constitution of the tribunals and the method of appointment of the personnel. Persons with expertise and the right qualifications do not want to sit on these tribunals thus leading to the unsatisfactory functioning of these tribunals. The uncertainty of tenure, unsatisfactory service conditions, interference by the executive and political interference have further impeded the proper development of tribunals in India. Tribunals are supposed to provide specialised adjudicatory services but the type of people appointed lack the requisite expertise and are on the tribunals merely because of political pressure and executive interference. Tribunals are supposed to serve as alternative institutional mechanisms to high courts, they must therefore be able to inspire public confidence by proving themselves to be a competent and expert mechanism with a judicial and objective approach. In order to achieve this it is essential that members of the tribunal are equipped with adequate judicial acumen and expertise. These judicial officers need to be balanced with experts in the particular field. Only a judicious blend of the two will be able to provide an effective and result oriented tribunal system. Another important measure which needs to be taken are steps to maintain the independence of the members of these tribunals from political or executive interference. Just as the ordinary judiciary are protected from political control through security of tenure and through institutionalized methods of appointment (through a selection committee comprising of the Chief Justice, Departmental secretaries, etc.) in order to further reduce the burden on the high courts the high courts must be divested of the supervisory jurisdiction over the tribunals. It is essential therefore that a single centralised nodal agency be established to oversee the functioning of the tribunals. Such a centralised umbrella organisation will ensure the independence of the tribunals in matters of tenure and funds. Thus the overall picture regarding tribunalisation of justice in the country is far from satisfactory. A fresh look at the system of tribunals in India is required so as to ensure speedy justice and quick disposal of disputes arising out of administrative disputes which are essential for the development of the nation.
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BIBLIOGRAPHY WEBSITES:1) http://www.preservearticles.com/2011111216927/short-essay-on-the-administrativetribunals-of-india.html 2) http://lawcommissionofindia.nic.in/101-169/report162.pdf 3) http://lawcare87.blogspot.in/2014/02/concept-of-tribunals.html 4) http://indiatoday.intoday.in/story/swaran-singh-committee-recommends-new-chapteron-fundamental-duties-in-the-constitution/1/436571.html 5) http://www.ebc-india.com/lawyer/articles/76v2a4.htm
BOOKS & ARTICLES:1) Dr. J.J.R. Upadhyaya, Administrative law, 7 th edition, central law agency. 2) I.P. Massey, Administrative law, 9 th edition, EBC 3) Philip Elman, A Note on Administrative Adjudication Vol, 74, No. 4 (Mar., 1965) The Yale Law Journal. 4) William A. Robson, Justice and Administrative Law 5) Upendra Baxi, Development in Indian Administrative law, Public law in India. 6) M.P. Jain, Changing face of Administrative Law in India and abroad (1982). 7) S.N. Jain, Administrative Tribunals in India, 1977 JILI 322 . 8) Timothy Endicott, Administrative Law (Oxford University press, 2008). 9) C.K. Thakkar , Administrative Law (Eastern Book Company, 1992).
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