The term `Courts' refers to places where justice is administered or refers to Judges who exercise judicial functions. Courts are established by the state for administration of justice that is for exercise of the judicial power of the state to maintain and uphold the rights, to punish wrongs and to adjudicate upon disputes.
Tribunals on the other hand are special alternative institutional mechanisms, usually brought into existence by or under a statute to decide disputes arising with reference to that particular statute, or to determine controversies arising out of any administrative law.
Courts refer to Civil Courts, Criminal Courts and High Courts.
Tribunals can be either private Tribunals (Arbitral Tribunals), or Tribunals constituted under the Constitution (Speaker or the Chairman acting under Para 6(1) of the Tenth Schedule) or Tribunals authorized by the Constitution (Administrative Tribunals under art 323A and Tribunals for other matters under Article 323B) or Statutory Tribunals which are created under a statute (Motor Accident Claims Tribunal, Debt Recovery Tribunals and consumer fora). Some Tribunals are manned exclusively by Judicial Officers (Rent Tribunals, Motor Accidents Claims Tribunal, Labour Courts and Industrial Tribunals). Other statutory Tribunals have Judicial and Technical Members (Administrative Tribunals, TDSAT, Competition Appellate Tribunal, Consumer fora, Cyber Appellate Tribunal, etc).
The SC had attempted to point out the difference between Court and Tribunal in several decisions. We may refer a few of them.
a. In Hari Nagar Sugar Mills vs Shyam Subar Jhunjhunwala - (1962) 2 SCR 339, Hidayatullah J., succinctly explained the difference between Courts and Tribunals, thus:--"All Tribunals are not courts, though all courts are Tribunals". The word "courts" is used to designate those Tribunals which are set up in an organized state for the administration of justice. By administration of justice is meant the exercise of juridical power of the state to maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the courts are there to restore the vinculum juris, which is disturbed.......
When rights are infringed or invaded, the aggrieved party can go and commence a querela before the ordinary Civil Courts. These Courts which are instrumentalities of Government, are invested with the judicial power of the State, and their authority is derived from the Constitution or some Act of Legislature constituting them. Their number is ordinarily fixed and they are ordinarily permanent, and can try any suit or cause within their jurisdiction. Their numbers may be increased or decreased, but they are almost always permanent and go under the compendious name of "Courts of Civil Judicature". There can thus be no doubt that the Central Government does not come within this class.
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 Art 136,227, or 228 or in Art 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 Arts. 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."
Constitutional Framework: -Tribunals were not part of the original constitution, it was incorporated in the Indian Constitution by 42nd Amendment Act, 1976.
i) Article 323-A deals with Administrative Tribunals.
ii) Article 323-B deals with tribunals for other matters.
Under Article 323 B, the Parliament and the state legislatures are authorised to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters:
1. Taxation
2. Foreign exchange, import and export
3. Industrial and labour
4. Land reforms
5. Ceiling on urban property
6. Elections to Parliament and state legislatures
7. Food stuff
8. Rent and tenancy rights
Articles 323 A and 323 B differ in the following three aspects:
i) While Article 323 A contemplates the establishment of tribunals for public service matters only, Article 323 B contemplates the establishment of tribunals for certain other matters (mentioned above).
ii) While tribunals under Article 323 A can be established only by Parliament, tribunals under Article 323 B can be established both by Parliament and state legislatures with respect to matters falling within their legislative competence.
iii) Under Article 323 A, only one tribunal for the Centre and one for each state or two or more states may be established. There is no question of the hierarchy of tribunals, whereas under Article 323 B a hierarchy of tribunals may be created.
Article 262: The Indian Constitution provides a role for the Central government in adjudicating conflicts surrounding inter-state rivers that arise among the state/regional governments;
To summaries The Major Difference between the two are as under
Administrative Tribunal:
1. Administrative Tribunal need not follow C.P.C., Evidence rules.
2. It deals with only the selected and special matter.
3. The members need not be a trained person in law.
4. The decision is subjective.
5. It is more rapid, cheap and efficient.
6. It is a new trend in the India.
7. It solves the matters based on departmental policy and technicality.
8. It need not follow precedents, principles of res judicata, estoppels, and likes.
9. ‘Independence of judiciary’ principle is not seen in Administrative tribunals. The executive dictates terms and conditions with the tenure, terms and conditions of service of the members and Chairman. though certain constitutional guarantees are provided to check the executive power.
10. Strictly speaking, it is a branch of Government. Lord Greene criticizes Tribunal’s functions are ‘Hybrid functions’ i.e. executive plus judicial.
11 To solve the over-burden on the courts, the system of Administrative Tribunals has been developed.
12. They are functional rather than a theoretical and legalistic approach.
13. They enjoy a wide discretion.
14. Tribunal possesses some of the qualities and features of a court but not all.
Courts:
1. Court has to follow procedural laws such as C.P.C., Evidence rules.
2. It deals with all matters, disputes.
3. The judge or magistrate in the Court is a qualified person in law.
4. The decision is objective.
5. It is more lengthy, costlier, and based strictly on Law which has limitations on technical and special matters, when compared with tribunal.
6. The system of Court was established some centuries back.
7. It solves all matters basing on the rule of law, procedures, oath, evidence, etc.
8. It follows precedents, principles of res judicata, estoppel.
9. Courts function under the principles of ‘independence of judiciary’. Therefore, the executive does not interfere with the judges’ tenure, terms and conditions of service.
10. It is purely judicial.
11. The traditional courts are overburdened with accumulated cases.
12. These are conservative, rigid, and procedural technically adhered.
13. They enjoy a lesser discretion compared with Administrative Tribunals.
14. The Court possesses all the judicial qualities.
Drawbacks of Administrative Tribunals
Although, administrative tribunals play a very crucial role, yet it has some defects in it. Some of the criticisms of the administrative tribunal are discussed below-
Against the Rule of Law: It can be observed that the establishment of the administrative tribunals has repudiated the concept of rule of law. Rule of law was propounded to promote equality before the law and supremacy of ordinary law over the arbitrary functioning of the government. The administrative tribunals somewhere restrict the ambit of the rule of law by providing separate laws and procedures for certain matters.
Lack of specified procedure: The administrative adjudicatory bodies do not have any rigid set of rules and procedures. Thus, there is a chance of violation of the principle of natural justice.
No prediction of future decisions: Since the administrative tribunals do not follow precedents, it is not possible to predict future decisions.
Scope of Arbitrariness: The civil and criminal courts work on a uniform code of procedure as prescribed under C.P.C and Cr.PC respectively. But the administrative tribunals have no such stringent procedure. They are allowed to make their own procedure which may lead to arbitrariness in the functioning of these tribunals.
Absence of legal expertise: It is not necessary that the members of the administrative tribunals must belong to a legal background. They may be the experts of different fields but not essentially trained in judicial work. Therefore, they may lack the required legal expertise which is an indispensable part of resolving disputes.
LACK OF INDEPENDENCE
Appointment of members: there is no impartiality in selection of members the executive has a major say in selection and appointment of the members and the presiding officer of the tribunal very few of judicial members compared to the executive are in selection committee, which amounts to conflict of interest thus breach of natural justice and judicial principle.
Removal of members: as there is no process laid down for removal of the members of the Tribunal this concentrates a lot of power with executive; non-uniformity in removal procedure; gives birth to arbitrariness; there is no requirement of judicial inquiry before removal of the members of the tribunal;
Reappointments: Majority tribunals have no provision for reappointment;
Nodal Ministry: provision of Nodal Ministry leads to influencing tactics by the executive for favourable orders; their apathy in filling up vacancies; lack of judicial or expert members dilutes the efficacy of tribunals; There is a degree of variance in the appointment process, qualification of members, age of retirement, resources and infrastructure of different tribunals.
Tendency to appoint judges/bureaucrats: it is a disturbing trend; casts doubts on the neutrality of judges plus the “halo effect” simply takes away the informal functioning mode of functioning.
NON-UNIFORMITY IN REGULATION
Discrepancies in qualifications: there is no uniformity on the matter of qualification requirements which leads to varying competencies, maturity and status of members, disparity of qualification and experience also exists amongst technical/expert members
Tenure and Age of retirement: Short tenure of 3-5 years precludes the cultivation of domain expertise, which can impact the efficacy of tribunals.
Pendency of cases: The high pendency figures exist despite a high disposal rate. These figures are often high due to systemic issues like awarding avoidable adjournments, condonation of avoidable delays, absenteeism, etc.
Vacant positions: acute shortage of personnel is the prime reasons for tribunal being losing its efficacy and being branded as dysfunctional.
JURISDICTION OF HIGH COURTS
· The issue of the ousting of power of judicial review of High courts was settled by the Supreme Court in the landmark L. Chandra Kumar Case.
· The court held that from all the decisions of the tribunals, an aggrieved party should be allowed to move to the High Court under Articles 226/227, before a division bench.
· It also stated that no appeal from a decision of tribunal would lie directly before the Supreme Court under Article 136 of the Constitution.
· The court also criticised the inconsistencies that occur due to tribunals operating under different ministries stating that there needs to be a single nodal authority or ministry for the administration of tribunals in order to improve efficiency.
· In Gujarat Urja Vikas Nigam Ltd. v Essar Power Limited (2016), the Supreme Court stated that direct appeals to it from tribunals resulted in denial of access to the High Court’s thereby becoming a substitute for them.
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