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TRACING THE DEVELOPMENT OF SYSTEM OF TRIBUNALS IN INDIA: A SPECIAL REFERENCE TO FINANCE ACT, 2017 Sanya Darakhshan Kishwar1 ABSTRACT Recently, we heard of Finance Act, 2017 which came with so many new changes. Mandatory requirement for Aadhaar, mandatory declaration of Aadhaar Number, cap on donations made by companies to political parties were some of the changes. However, the most significant of the changes which has raised many eyebrows is the restructuring and merging of Tribunals. Certain existing tribunals are to be merged. One might not find any connection in the working of Airports Economic Regulatory Authority Appellate Tribunal and Cyber Appellate Tribunal or the Telecom Dispute Settlement and Appellate Tribunal, yet they are being merged. The constitutionality of the mergers is doubted as the money bills are normally confined to taxation issues. However, restructuring of Tribunals on the pretext of cutting across expenditures by the way of numerous Tribunals, has raised a question on constitutional validity of the Bill. In the current scenario, Tribunals have occupied a significant arena for themselves. These quasi-judicial bodies have been introduced for the relieving the burden of the Courts. Everyone is familiar with litigation and its ramifications. Litigation is very costly and financially burdening as well as tiresome and lengthy. This paper would analyse the historical development of Tribunal system in India and position of law with regard to the tribunal system in India. It would also look at its issues and challenges the Tribunal system are facing and offer recommendations for the same. It would also aim at proposing a critical analysis of the recent merging of Tribunals under Finance Act, 2017. INTRODUCTION TO TRIBUNALS - DEFINITION, MEANING AND CHARACTERISTICS “And crowne your heads with heavenly coronall, such as the Angels wear before Gods Tribunall.” 2 1 5th Year BSc LLB Student, Central University of South Bihar, Gaya 2 E. SPENSER, FAERIE QUEEN (1976). 1 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7 Tribunals are a “Judgment seat; a court of justice; board or committee appointed to adjudicate on claims of a particular kind.”3 The number of tribunals has been increasing after 19474 especially after the 42nd Amendment Act of 1976. They were set up to “reduce the workload of courts, to expedite decisions and to provide a forum which would consist of both lawyers and experts in the areas falling under the jurisdiction of the tribunal.”5 Definition Tribunals occupy an inherently ambiguous position in systems of law and administration.6The Oxford English Dictionary says the original meaning of the word ‘tribunal’ include ‘judgement seat’.7 It is not possible to define the word “tribunal” precisely and scientifically.8 According to the dictionary,9 “tribunal” means “a seat or a bench upon which a judge or judges sit in a court”, and “a court of justice”. But this meaning is very wide, including even ordinary courts of law; whereas, in administrative law, this expression is limited adjudicating authorities other than ordinary courts of law.10 Though the word “Tribunal” has not been statutorily defined, the test for a tribunal was held in Jaswant Sugar Mills v. Lakshmi Chand11, to be whether it was invested with the trappings of a court, such as having the authority to determine matters, authority to compel the attendance of witnesses, the duty to follow the essential rules of evidence and the power to impose sanctions. In Durga Shankar Mehtha v. Raghuraj Singh12, the Supreme Court expressed that ‘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 invested with judicial as distinguished from administrative or executive functions. In Bharat Bank Ltd. v. Employees13, the Supreme Court observed that though tribunals are clad in many of the trappings of court and though they exercise quasi-judicial functions, they are 3 C.K. THAKKER, ADMINISTRATIVE LAW 226 (1996). 4 V. Nageswara Rao and G.B. Reddy, Doctrine of Judicial Review and Tribunals: Speed breakers Ahead, 39 JOURNAL OF THE INDIAN LAW INSTITUTE 418 (1997). 5 1 M.P. JAIN & S.N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW, 713 (6th edn., 2007). 6 Tom Smyth, Overview to TRIBUNALS IN THE COMMON LAW WORLD, at ix (Robin Creyke ed., 2008). 7 Lord Justice Camwarth, Murray Chitra et.al., An overview of the Tribunal Scenes in Autralia, Canada, New Zealand and the United Kingdom, in the TRIBUNALS IN THE COMMON LAW WORLD 2 (Robin Creyke ed., 2008). 8 NOOR MOHAMMED BILAL, DYNAMISM OF JUDICIAL CONTROL AND ADMINISTRATIVE ADJUDICATION 29 (2004). 9 WEBSTER’S NEW WORLD DICTIONARY 1517 (1972); CONCISE OXFORD DICTIONARY, 1530-1531 (2002). 10 C.K. THAKKER, supra note 2, at 224. 11 A.I.R. 1963 S.C. 677. 12 A.I.R. 1954 S.C. 520. 13 A.I.R. 1950 S.C. 188. 2 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7 not full-fledged court. In Associated Cement Companies Ltd. v. P.N. Sharma14, the Supreme concluded about the tribunal as that it is an adjudicating body which decides controversies between the parties and exercises judicial powers as distinguished from purely administrative functions and the possesses some of the trappings of a court, but not all. There are three essential requisites of a tribunal: i) It must have the trappings of a court; ii) It should be constituted by the State; and iii) It should be invested with the State’s inherent judicial power.15 S.N. Jain defines the tribunal, as “the work is a name given to various types of administrative bodies. The only common element running through these bodies is that they are quasi- judicial and are required to observe principles of natural justice or fair hearing while determining issues”16. Prof. Balram Gupta says that if an authority is to be considered as tribunal it must be constituted by the state invested with certain functions of the judicial powers of the state.17 Prof, M.P. Jain says that a body, besides being under a duty to act judiciary, should be one which has been constituted by and invested with a part of the judicial functions of the state.18 Basu says that ‘tribunal’ is used in juxtaposition with the world ‘code’ and refers to the quasi-judicial tribunals excluding courts which have the trappings of a court.19 Tribunal is thus a judicial body not being an ordinary court that functions on constitutional mandate or under statutory empowerment performing judicially quasi- judicially as the arm of judicial system with a repository or expertise a unique to its nature.20 Characteristics of Administrative Tribunals The following are the characteristic of an administrative tribunal: i. An Administrative tribunal has statutory origin and so it is creature of statute; ii. It has some of the trapping of a court but not all; iii. It performs quasi-judicial functions as it is entrusted with judicial powers of the State; 14 A.I.R. 1965 S.C. 1595. 15 Engineering Mazdoor Sabha v. Hind Cycle, A.I.R. 1963 S.C.C 874. 16 PARAS DIWAN, ADMINISTRATIVE LAW 62 (1995). 17 SUNIL CHHABRA, ADMINISTRATIVE TRIBUNALS 2 (1990). 18 See id. 19 See id. 20 L. Chandrakanthi, Administrative Tribunals Under Indian Constitution: An Overview 2(4) IJLDAI 42, 45- 46(2016). 3 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7 iv. It is not bound by the strict rules which should be followed by the court i.e. rules of evidence; v. It possesses power of court in some matters like power to summon witnesses, to administer oath, to compel production of documents etc.; vi. It enjoys independence from any administrative interference in the discharge of their judicial or quasi-judicial functions; vii. The prerogative writs of certiorari and prohibition are available against the decisions of administrative tribunals.21Hence tribunal cannot dispose the matters as final arbitrator and it should act without any bias; viii. It is perpetual in nature and tribunal have been established specially to deal with a particular type of case or with a number of closely related types of cases.22 REASONS FOR THE GROWTH OF ADMINISTRATIVE TRIBUNALS Dicey, the father of the doctrine of Rule of Law was opposed to the establishment of administrative tribunals. With the growth in governmental functions, ordinary courts of law were not in a position to solve the complex problems arising in the changed socio-economic context. 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.23 Administrative tribunals established for the following reasons: i. In the changed socio-economic context, some types of controversies cannot be disposed of by applying law pure and simple. So, there occurs a need for setting up of Tribunals with experts who can solve modern complex questions by adopting objective standards. ii. Administrative tribunals can avoid technicalities as they function without the formalities of evidence and procedural laws. 21 C.K. TAKWANI, LECTURES ON ADMINISTRATIVE LAW 31 (2001). 22 B. L. JONES, JOHN FRANCIS GARNER et.al., GARNER’S ADMINISTRATIVE LAW 24 (1996); See also, M. C.JAIN KAGZI, THE INDIAN ADMINISTRATIVE LAW 30 (4th ed., 1982). 23 See, NEIL HAWKE, INTRODUCTION TO ADMINISTRATIVE LAW 67 (2013); J.J.R. UPADHYAYA, ADMINISTRATIVE LAW 139 (9th edn., 2014);S.H. BAILEY, CASES, MATERIALS AND COMMENTARY ON ADMINISTRATIVE LAW 99 (2005); NEIL PARPWORTH, CONSTITUTIONAL AND ADMINISTRATIVE LAW 349 (2016); BRIAN THOMPSON &MICHAEL GORDON, CASES AND MATERIALS ON CONSTITUTIONAL AND ADMINISTRATIVE LAW 653 (2014).

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