TRACING THE DEVELOPMENT OF SYSTEM OF TRIBUNALS IN : 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 , 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).

4 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7

iii. The sluggish pace of the Indian courts and the innumerable backlogs has led to development of alternatives. The Tribunal system is cheap, speedy and flexible. iv. Administrative authorities can take preventive measures, example licensing, rate fixing, etc. Unlike that of the courts of law they do not have to wait for parties to come before them with disputes. v. Traditional judiciary cannot be expected to appreciate technical decisions and administrative authorities which are usually manned by experts can deal with problems relating to atomic energy, gas, electricity, etc. vi. Administrative tribunals do their work more rapidly, more cheaply, more efficiently than ordinary courts, possess greater technical knowledge and fewer prejudices against government, give greater heed to the social interest involved, decide disputes with conscious effort at furthering social policy embodied in the legislation.24

DISTINCTION BETWEEN COURT AND TRIBUNAL

An administrative tribunal is similar to a court in certain aspects. Both of them are constituted by the state, are invested with the judicial powers and have a permanent existence. Thus, they are adjudicating bodies. They deal with and finally decide disputes between parties that affect rights of subjects. As observed by the Supreme Court in Associated Cement Companies Limited v. P.N. Sharma25, “The basic and the fundamental feature which is common to both the courts and the tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign state”. But at the same time, it must not be forgotten that an administrative tribunal is not court. The line of distinction between court and the tribunal in some cases is indeed fine though real. All courts are tribunals but the converse need not necessarily be true.26 The real distinction is that the courts have an air of detachment.27

Tribunal possesses some of the trappings of a court, but not all, and therefore, both must be distinguished:

24 Yash Patel, Development and Applicability of Administrative Law in India (Jun. 23, 2017) https://www.academia.edu/7452205/Final_project_yash. 25 A.I.R. 1965 S.C. 1595. 26 TAKWANI, supra note 20, at 241. 27 Barkat Singh v. Hans Raj Pandit, Driver and Ors., A.I.R. 1985 P&H 263.

5 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7

 A court of law is an organ of the government, belonging to the judicial department, whose function is the application of the laws to controversies brought before it and the of justice.28 On the other hand, an administrative tribunal is an agency created by the statute and invested with judicial powers.29 Lord Greene said, administrative tribunals perform hybrid functions.30  Ordinary civil courts have judicial power try all suits of a civil nature, excepting those whose cognizance is either expressly on impliedly barred while tribunals have power to try cases in special matters statutorily conferred.  Judges of ordinary courts of law are independent of the executive while members of administrative tribunals are entirely in the hands of the government.  A court of law is generally presided over by an officer trained in law, but the president or a member of a tribunal may not be trained as well in law.  In a court of law, a judge must be an impartial arbiter while an administrative tribunal may be party to the dispute to be decided by it.  Court of law is bound by all the rules of evidence and procedure but an administrative tribunal is not bound by those rules.  A court must decide all the questions objectively on the basis of the evidence and materials produced before it, but an administrative Tribunal may decide the questions taking into account the departmental policy on expediency.  While precedents, principles of this res judicata and estoppel, bind a court of law an administrative tribunal is not strictly bound by them.31  A court of law can decide the vires of legislation, while an administrative tribunal cannot do so.32

HISTORICAL DEVELOPMENT OF TRIBUNALS

There were Tribunals even in the past. When we trace the root of Tribunal, we would find it prevalent in the medieval ages as well. There were extra courts in order to reduce the burden of the King and they were presided by some officials of higher rank or lower rank depending

28 White County v. Gwin, 130 Ind. 5G2, 30 N. E. 237, 22 L. II. A. 402; Brumley v. State, 20 Ark. 77; Ex parte Gardner, 22 Nev. 280, 39 Pac. 570; Railroad Co. v. Harden, 113 Ga. 450, 38 S. E. 950; State v. Caywood, 90 Iowa, 307, 05 N. W. 3S5; Michigan Cent. R. Co. v. Northern Ind. R. Co.. 3 Ind. 239; Ex parte Thistleton, 52 Cal. 225; Thomas v. Robinson, 3 Wend. (X. Y.) 208; Erwin v. U. S. (D. C.) 37 Fed. 4S8, 2 L. It. A. 229. 29 Binayak Subudhi & Praveer Sharma, Central Administrative Tribunals: A Boon Or A Bane For Indian Justice System 3(5) JCIL 1, 5-7 (2017). 30 Jhonson v. Minister of Health, (1947) All. E.R. 395. 31 TAKWANI, supra note 20, at 241. 32 Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., AIR 1950 SC188 : AIR 1950 SCR 459.

6 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7

upon the gravity of the matter. According to Wade33, commissioners of customs and excise were given judicial powers more than three centuries ago. Today administrative tribunals deal with and decide a wide range of disputes between individuals and individuals as well as between subjects and their governments.34

In India, administrative adjudication increased after independence and several welfare laws were promulgated which vested the power on deciding various issues in the hands of the administration.35 The modern Indian Republic was born a Welfare State and thus the burden on the government to provide a host of welfare services to the people was immense.36 These quasi-judicial powers acquired by the administration led to a huge number of cases with respect to the manner in which these administrative bodies arrived at their decisions.37 The Courts held that these bodies must maintain procedural safeguards while arriving at their decisions and observe principles of natural justice-their opinions were substantiated by the14thLaw Commission Report.38 The idea of setting up service tribunals also found favour with the Indian Supreme Court, which in Kamal Kanti Dutta v. Union of India39 advocated for setting up of service tribunals to save the courts from avalanche of writ petitions and appeals in service matters. In the meantime, various States had established their own service tribunals like Service tribunal established in Andhra Pradesh in 1973 by the Constitution (32nd Amendment) Act, 1973.

In order to avoid clogging the judicial machinery with cases which would have arisen by the operation of these new socio-economic legislations, a number of tribunals were established by the government.40 The tribunals were established with the object of providing a speedy, cheap and decentralised determination of disputes arising out of the various welfare legislations.41Regarding the problem of backlog and delayed disposal of case the Government

33 WADE & FORSYTH, ADMINISTRATIVE LAW 771(10th ed. 2009). 34 C.K. THAKKER, supra note 2, at 239. 35 Abhishek Kumar Jha, Administrative Tribunals of India-A Study in the Light of Decided Cases (Jun. 2, 2017) http://www.academia.edu/4614327/ADMINISTRATIVE_TRIBUNALS_OF_INDIA_A_Study_in_the_light_ of_decided_cases. 36 J. Adi Narayana & Neeraj Sastry, Tribunalisation Of Justice: Application Of Droit Administratif In India 1(3) INTERNATIONAL JOURNAL FOR LEGAL DEVELOPMENTS AND ALLIED ISSUES 173 (2015). 37 A.K. Agnihotri, Tribunalisation of Justice (Jun. 3, 2017) http://thertt.com/Articles/b7929eec-5848-4348-a807- 352661618608.html. 38 R. NAYAK, ADMINISTRATIVE JUSTICE IN INDIA 38 (1989). 39 A.I.R. 1980 S.C. 2056. 40 (1985) I L.S.D. () col. 77 (29-1-1985). 41 M. P. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW, 246-248 (1996).

7 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7

set up the Administrative Reforms Commission in 1967.42 In 1976, Parliament enacted the 42nd Constitution (Amendment) Act, 1976 inserting Articles 323A and 323B which provided for the establishment of administrative and other tribunals to deal with the matters specifically provided for.43From then on, the System of Tribunals has been put under the scanner and has been tested upon the touchstone of Constitutionality.

TRIBUNALS AND JUDICIAL REVIEW

Judicial Review of Decisions of the Tribunals

No appeal, revision or reference against the decision of an administrative tribunal is maintained if the said right is not conferred by the relevant statue. The decision rendered by the tribunal will be treated as “final” when provisions can also be made for ouster of jurisdiction of civil court. This statutory finality, will not affect the jurisdiction of High Court under Article 226 and 227 and the Supreme Court under Article 32 and 136 of the Constitution. Denning, L.J., made the following observation,44 “If the tribunal were to be at liberty to exceed their jurisdiction without any check by the court, the rule of law would be an end”. The power of High Court and the Supreme Court under the Constitution are extremely limited. The Supreme Court and the High Court are not court of appeal and revision over the decision of administrative tribunals.45

Power of Tribunals to Review Decisions

There is no inherent power of review with any authority and the said power can be exercised only if it conferred by relevant statute.46 An administrative tribunal becomes functus officio as soon as it makes an order. The decision must stand unless and until it is set aside by appellate or revisional authority or by a competent court.

42 Agnihotri, supra note 36 . 43 Jha, supra note 34. 44 R. v. Medical Appeal Tribunal, ex P. Gilmore, (1957) I QB 574, 586: 1957 I All ER 796, 801 (CA); See also, 1 HISTORY OF LAW OF ENGLAND 57-63 (4th edn.). 45 State of A.P v. C.V. Rao, (1975) 2 SCC 557: AIR 1957 SC 2151; Sri Rama Vilas Service (P) Ltd. v. C. Chandrasekaran, AIR 1964 SC 107: (1964) 5 SCR 869; Bombay Union of Journalist v. State of Bombay, AIR 1964 SC 1617: (1964) 6 SCR 22; Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80; AIR 1979 SC 75; Prem Kakar v. State of Haryana, (1976) 3 SCC 433: AIR 1976 SC 1474, Union of India v. Parma Nanda, (1989) 2 SCC 177: AIR 1989 SC 1185. 46 Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji, (1971) 3 SCC 844: AIR 1970 SC 1273; Mahar Singh Nayak Chand v. Haunihal, (1973) 3 SCC 731: AIR 1972 SC 2533; Majir Chandra Bhan Singh v. Latafat Ullah Khan, (1979) I SCC 321: AIR 1978SC 1814; R.R. Verma v. Union of India, (1980) 3 SCC 402: AIR 1980 SC 1461.

8 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7

In the case of Northern India Caterers (India) Ltd. v. of Delhi,47 Pathak, J., rightly observed: “Whatever the nature of the proceedings, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.” An administrative tribunal possesses those powers which are inherent in every judicial tribunal to prevent miscarriage of justice, or to correct grave and palpable errors committed by it, or what the principles of natural justice required it to do.48

Tribunals are bound by Supreme Court and High Court Decision

The law declared by the Supreme Court shall be binding on all court within the territory of India.49 The question which arises because of lack of parallel provision for decisions of High Court is whether the law declared by a High Court has a similar binding effect over all subordinate courts and inferior tribunals within the territories in relation to which it exercises jurisdiction. If any administrative tribunal acts without jurisdiction exceeds its power or seeks to transgress the law laid down by the High Court, the High Court can certainly interfere with the action of the tribunal. This question directly arose before the Supreme Court in East India Commercial Co. Ltd v. Collector of Customs50 where it was held that the decision of a High Court on a point is binding on all subordinate court and inferior tribunals within its territorial jurisdiction and the notice was therefore, required to be quashed. Where the tribunal notices a decision of the Supreme Court and tries to distinguish it with distinguishing features, the approach is highly objectionable.51

CONSTITUTIONAL STATUS OF TRIBUNALS

The word ‘tribunal’ has been used in Article 13652 and Article 227.53 The Constitution (42nd) Amendment Act, 1976, has inserted Articles 323-A and 323-B, by which Parliament has been

47A.I.R. 1980 S.C. 674, 678. 48 Shivdeo v. State of Punjab, A.I.R. 1963 S.C. 1909, 1911. 49 INDIA CONST. art. 141. 50 A.I.R. 1962 S.C. 1893. 51 Union of India v. Kantilal Hematran Pandya, A.I.R. 1995 S.C. 1349. 52 Article 136 of the Constitution empowers the Supreme Court to grant special leave to appeal from any judgment, decree, determination, and sentence or order passed or made by the any tribunal in India.

9 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7

authorized to constitute administrative tribunals of disputes and adjudication of matters specific therein. 54 Article 323-A was inserted to enable the Parliament to establish Tribunals, which could exclude the jurisdiction of all courts including the High Courts. However, it was only in the year 1985 that, in exercise of its powers under Article 323A, Parliament enacted the Administrative Tribunals Act.55 After Part XIV, it inserted part XIV-A (Arts. 323-A and 323- B) by enabling Parliament to constitute administrative tribunals for purpose specific therein.56 The constitutional validity of this Act was challenged before the Supreme Court in S.P. Sampath Kumar v. Union of India57 on the ground that the exclusion of judicial review of the High Court violated the basic structure of the Constitution. The court held that no matter the judicial review, which is the basic feature of the Constitution cannot be violated; but it is within the power of Parliament to amend the Constitution so as to substitute, in place of High Court, another alternative mechanism of judicial review, provided it is not less efficacious than the High Court.58But, in L. Chandra Kumar v. Union of India 59 the court in this case held that Sampath Kumar was decided against the background and that administrative tribunals cannot perform a substitutional role to the High Court, it can only be supplemental.

FINANCE ACT, 2017 AND THE RECENT TURMOIL

By the recent amendment to Finance Act, 2017 the government decided to wind up eight tribunals and merge them with other existing tribunals;60 Competition Appellate Tribunal with the National Company Law Appellate Tribunal, the Cyber Appellate Tribunal and the Airports Economic Regulatory Authority Appellate Tribunal with the Telecom Disputes

53 Article 227 enables every High Court to exercise power of superintendence over all tribunals throughout the territories over which it exercise jurisdiction 54 THAKKER, supra note 2, at 237. 55 Justice D.K. Jain, Central Administrative Tribunal- A Pulsating Vibrant Dispensation: An Introspection, Address at the Chandigarh Judicial Academy on the eve of Silver Jubilee of the Chandigarh Bench of the Central Administrative Tribunal (November 19, 2011). 56 Rajib Hassan, Judicial Review of the Decisions of Administrative Tribunals by the Supreme Court and High Courts: A Long-standing Controversy- Settled (October 26, 2013), http://www.articlesbase.com/national- state-local-articles/judicial-review-of-the-decisions-of-administrative-tribunals-by-the-supreme-court-and- high-courts-a-long-standing-controversy-settled-4912243.html. 57 S.P. Sampath Kumar v. Union of India (1987) 1 S.C.C. 124 : A.I.R. 1987 S.C. 386. 58 I. P. MASSEY, ADMINISTRATIVE LAW 605-606 (8th ed. 2012). 59 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261: A.I.R. 1997 S.C. 1125. 60 Radhika Merwin, Merger of Tribunals to rationalise working Business Line (Jun. 2, 2017) http://www.thehindubusinessline.com/economy/policy/merger-of-tribunals-to-rationalise- working/article9598534.ece.

10 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7

Settlement and Appellate Tribunal.61 Lack of capacity and non-functioning and cutting costs and expenditures of Tribunals was the reason of their merging. It was categorized under the Finance Act as a money bill and therefore beyond the President and Rajya Sabha’s discretion. It is a matter of debate whether issue as such can be taken into account as a money bill. The system of Tribunals which has long been trusted for the reduction of the burden from the shoulders of the Courts has seen many phases. It came into existence with the passing of the Administrative Tribunals Act, 1985. Very recently, India has witnessed the substantial changes in the Tribunal system by the way of Finance Act, 2017. India's finance bill for the financial year 2016-2017 was presented by the Finance Minister on February 1, 2017 and approved by the Lok Sabha with certain modifications on March 22, 2017.62 The Lok Sabha voted the Bill to be a money bill.63 On March 30, 2017, the Lok Sabha rejected all the amendments proposed by the Rajya Sabha to the Bill and the same was sent to the for his assent.64The result was that many of the Tribunals were to be merged. The decision was advocated as one to reduce functioning cost of numerous tribunals. However, it has faced many backlashes in the nature of opposition due to question on its constitutionality. A basic question which hovers over the proposition is that whether restructuring of Tribunals can be taken by the way of a money bill? Is there no requirement of the recommendations of Rajya Sabha to be binding over Lok Sabha? Is Lok Sabha alone enough to restructure the judicial structure? This calls for a study of the structuring of Tribunal system and its historical development all the way to the latest developments in the area.

A Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely (a) The imposition, abolition, remission, alteration or regulation of any tax; (b) The regulation of the borrowing of money or the giving of any guarantee by the , or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;

61 Jyoti Mukul, Govt to scrap 8 Appellate Tribunals; NCLAT to take over COMPAT’s duties Business Standard (Jun. 3, 2017) http://www.business-standard.com/article/economy-policy/govt-to-scrap-8-appellate- tribunals-nclat-to-take-over-compat-s-duties-117032200553_1.html. 62 Rana Chakrabarti, Anubha Sita et.al., The Finance Act, 2017 - Implications & Constitutionality ?INDUS LAW (Jun. 2, 2017) http://induslaw.com/publications/banking_and_finance.html. 63 Archis Mohan, Lok Sabha passes Finance Bill after turning down Rajya Sabha amendments BUSINESS STANDARD (Jun. 2, 2017) http://www.business-standard.com/article/specials/lok-sabha-passes-finance-bill- after-turning-down-rajya-sabha-amendments-117033100069_1.html. 64 Finance Bill 2017: Lok Sabha rejects Rajya Sabha amendments, passes legislation in original form INDIA TODAY (Jun. 2, 2017) http://indiatoday.intoday.in/story/finance-bill-2017-lok-sabha-rajya-sabha- amendments/1/916318.html.

11 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7

(c) The custody of the consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund; (d) The appropriation of moneys out of the consolidated Fund of India; (e) The declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure; (f) The receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or (g) Any matter incidental to any of the matters specified in sub clause (a) to (f) The term "incidental" in Article 110(1)(g) of the Constitution can be interpreted widely and the merging of tribunals but changing the appointment of tribunal members may not be legitimately included. A list of matters to be included in a money bill should be construed ejusdem generis. A money bill is a bill which contains only provisions dealing with the matters enumerated in Art. 110(1) (a) to (g). Clause (g) which speaks of “any matter incidental to any of the matters specified in sub-clause (a) to (f)” should be construed in a manner so that clauses (a) to (f) are considered while deciding what is an incidental matter. A Bill is a money bill when it deals only with the matters specified in Art. 110(1) and not with any extraneous matter.65

PROPOSED RECOMMENDATIONS AND CONCLUSION

To make the working of Tribunals near perfect, some recommendations can be put forth.

 There is a need to form a regulatory body at the head of all the Tribunals. It should be independent and supreme body for the Tribunal system.  There is a need to list the Tribunals under legislations  A uniform procedure should be provided for all the Tribunals and the principle of natural justice should be backed with principles of Evidence law to some extent.  The jurisdiction of High Court and the Supreme Court should be left unaltered and an Appellate Tribunal with the power of reviewing questions of fact should be constituted.  The salaries should be enhanced to attract best legal brains of the country.

65 M.P. JAIN, INDIAN CONSTITUTIONAL LAW 70 (7th ed., 2014).

12 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7

 To keep politics out of the appointment process, there should be an All-India basis examination for the posts under Tribunal system.  The restructuring of Tribunals as proposed by the Finance Act, 2017 should not be hurried as the propositions for merger call for such mergers which combine almost differently working Tribunals like the Airports Economic Regulatory Authority Appellate Tribunal and the Cyber Appellate Tribunal will be merged with the Telecom Dispute Settlement and Appellate Tribunal.

Not only this, but the recent politics which is being played under the guise of passing money bills should be done away with. There is absolutely no sense in merging together two such Tribunals which are very distinct in their working. What is the similarity between Airports Economics Regulatory Authority and the Cyber Appellate Tribunal? These belong to categorically different areas and their functioning is different. If they are merged, it will only create haphazardness in the functioning of existing Tribunals. It is true that the working of Tribunals takes a huge share of the economy yet, it should be realised that they are intrinsic parts of the national justice system. Whatever we spend on the traditional judiciary should rather be channelized into the proper functioning of the Tribunals rather than merging them. The tribunal system in India has come a long way, since independence to the present day. The changes in the tribunal system have been visible, as can be seen from the “pre-independence era” to the “post-independence era” to the “42nd Amendment Act”, to “Sampath Kumar”, and from “Sampath Kumar” to “Chandra Kumar”. The transition is huge. A significant change is taking over the Indian Legal System which is evident in the proliferation of the tribunal system. Tribunals are being established to provide for speedy disposal of cases and thus reduce the pressure on the Courts. Administrative adjudication through tribunals or quasi-judicial bodies has become a common phenomenon and an indispensable instrumentality in judicial machinery of the contemporary states.66 The development of administrative law in a welfare state has made administrative tribunals a necessity.67India, as a nation is very vast and it is equally true that for every matter and every infringement of right, an ordinary citizen cannot afford to move to the Court. The cheaper and faster the justice, the more is the want of it. The very objective behind the establishment of the Administrative Tribunals is defeated if all the cases adjudicated by them have to go before

66 K.I. Vibhute, Administrative Tribunals And The High Courts: A Plea For Judicial Review 29 JILI 524, 538- 39 (1987). 67 H. M. SEERVAI, CONSTITUTIONAL 23 (1968).See also, S.L. GOEL, PUBLIC ADMINISTRATION: THEORY AND PRACTICE 984 (2003).

13 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7

the concerned High Courts.68In many cases, expert advice is needed. Many a times, it may happen that the judges are not so expert on the matter. So, a special Tribunal presided by those who are well-versed in the area of dispute may solve a dispute even more speedily. Tribunals also help to translate the state policies into action.

A study of the elements of money bill makes it amply clear that the list is exhaustive and not inclusive. This is because even the last sub-clause which used the word ‘incidental’ is qualified by words following it. The matters which are incidental to those which are listed in sub-clauses (a) to (f) can only be introduced as money bills. However, the matter of restructuring of the Tribunals is not such a matter. Also, even if the reason behind the restructuring is that of cost-reduction and efficient utilisation of consolidated fund, it cannot be introduced as a money bill. This is because the primary matter is the restructuring of the Tribunals and the utilisation of consolidated fund is only a secondary matter thereto. There should be a call for review of the money bill and it would be apt if a Review Committee is set up for getting a better insight of how the Tribunals are working and which of them need to be wound up and which of them can be called for a merger.

68 162d Law Commission Report (1998), REVIEW OF FUNCTIONS OF CENTRAL ADMINISTRATIVE TRIBUNAL AND INCOME TAX APPELLATE TRIBUNAL.

14 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 7