Tribunals

What is a tribunal?

Tribunals are quasi-judicial bodies that decide disputes, seeking to provide for faster adjudication in certain kinds of matters, as well as technical expertise in a particular domain. This means they have the adjudicatory function (like courts) to decide matters, but are not courts themselves. They are created through the passing of legislation for that purpose (which can be done by the relevant legislature, either Union or State) or by administrative order enabled by such legislation, and derive their powers from the passed legislation. It has been pointed out that since in India there is no clear statutory definition for what a tribunal is, the law laid down by Indian courts (especially the Supreme Court of India) is relied upon.

Sources classify the origin and purpose of tribunals differently:

Some consider tribunals to arise with the expansion of governmental functions, as the modern democratic nation-state has to provide both social security and social welfare to society. The government thus must ensure the speedy resolution of such socio-economic issues, which may either be specialised matters (such as administrative or securities law), or matters that are not purely legal issues (such as industrial disputes between workers and management). But as courts are bound by inherent procedural constraints, they cannot deal with such issues quickly. Tribunals are therefore set up to decide various quasi-judicial issues in place of judicial courts.

Considering their responsibility of resolving certain technical matters (often doing so with the exclusive jurisdiction over such a case), tribunals are composed of both judicial members (i.e., persons having experience as a judge in a court of law) and expert (non-judicial) members who have knowledge in the field the tribunal oversees. While they are not bound to follow rigid procedures as a court is, they are held to the principles of natural justice.

The liberalisation of the Indian economy gave a further push for tribunals, as specialised autonomous regulators (like the Securities and Exchange Board of India to regulate stock markets and securities, or the Competition Commission of India to prevent abuse of dominance in the private sector) were set up, whose decisions were to be appealed to tribunals.

In L. Chandra Kumar v. Union of India (1997), the Supreme Court held that the power of High Courts to exercise judicial superintendence over the decisions of tribunals under Articles 226 and 227 of the Constitution is a part of the Constitution’s basic structure – thereby cementing the decision of any tribunal to judicial scrutiny. This principle was reaffirmed through the case of Union of India v. R. Gandhi in 2010.

The Supreme Court has also held in the case of Rojer Matthew v. South Indian Bank Limited that tribunals need to be financially independent from the executive, and their expenditure should be drawn directly from the public exchequer instead of needing it from a sponsoring ministry.

Evolution of the Tribunal System

The first Indian tribunal created to be distinct from a court of law was the Income Tax Appellate Tribunal, established in 1941 to provide an independent forum of appeal in revenue and tax matters.

Since then, a number of Commissions recommended the creation of tribunals, including:

• The first Administrative Reforms Commission in 1969, recommending the Centre to set up civil services tribunals as the final appellate authority for adjudicating the dismissal, removal or reduction in rank of civil servants.  
• The 6th Law Commission (1974) recommended setting up a separate tribunal and commission for the adjudication of matters in High Courts, so that the arrears of cases there could be reduced.
• The Swaran Singh Committee (1976), to reduce the burden of service cases by public servants on the High Courts, recommended setting up:
  • Administrative tribunals to adjudicate on matters related to service conditions
  • An all-India appellate tribunal for labour and industrial matters.
  • Tribunals for deciding matters of specific sectors.
  • That all such tribunal decisions should be subject to the scrutiny of the Supreme Court.

The recommendations of the Swaran Singh Committee ultimately led to the enactment of the 42nd Constitutional Amendment, which allowed for tribunals to take their place in the Indian legal system.

The increasing growth of tribunals (referred to as tribunalisation) in India is considered to be owing to the need of both specialised decision-making and speedy justice. This can be seen in the stated aims of the 42nd Constitutional Amendment passed in 1976. Articles 323A and 323B were inserted into the Constitution of India through this amendment, empowering Parliament to constitute:

1. administrative tribunals (at both the Central and State level) for adjudication of matters related to recruitment and conditions of service of public servants; and
2. the constitution of other tribunals by the appropriate legislature (whether Central or State) for the adjudication of certain subject matters including industrial disputes, taxation, foreign exchange, etc.

Since the 1980s, a number of tribunals have been established under different Acts. However, the Finance Act, 2017 reduced the number of tribunals, and reorganised them by merging tribunals with similar functions together. This brought the total number of tribunals in the country to 19 from 26. Tribunals were to be further reduced with the passing of the Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021. The bill did not pass as it remained pending at the end of the session, and thus an ordinance with similar provisions was promulgated in April 2021. However, the ordinance was challenged in the Supreme Court, and certain provisions eventually struck down by the Court. The ordinance was effectively replaced by the passing of the Tribunals Reforms Act, 2021 on August 3 2021. After the passing of the Act, there are 16 tribunals currently functioning in India.

There have been calls for further reform – in both urgent needs such as administrative support and vacancies (Shah, 2021); and structural reform in the shape of an independent agency to oversee tribunals. From the Supreme Court, this can be seen in a string of judgements starting from L. Chandra Kumar v. Union of India, to Union of India v. R. Gandhi and Rojer Matthew v. South Indian Bank Limited. These have culminated in the recommendation of a National Tribunals Commission as part of structural reforms for tribunals in Madras Bar Association v. Union of India, which various experts have also argued in favour of – both public and private.

Official definitions

Article 136 of the Constitution of India states that the Supreme Court has the discretionary power to grant special leave (i.e., permission) to appeal against any judgement, decree, determination, sentence or order in any cause or matter that is passed/made by any Court or tribunal in the territory of India.

Article 227 further states that every High Court shall have superintendence over all Courts and tribunals throughout their territorial jurisdiction, that is, the state or Union Territory for which it is the High Court.

However, it must be noted that both Articles 136 and 227 contain exceptions of such powers of the Supreme Court and the High Courts respectively, if the tribunal is constituted by or under any law relating to the Armed Forces.

In Bharat Bank v. Employees of Bharat Bank, the Supreme Court was ruling on the question of the meaning of Article 136 of the Indian Constitution, including how the term “tribunal” is meant within the Article. The Court held that a tribunal needs to be a body or authority vested with certain functions of a Court of justice, and to qualify as a tribunal must have the “trappings” of such a Court. The meaning of tribunal has been further developed through various judicial pronouncements. In Engineering Mazdoor Sabha v. Hind Cycles, the then-Chief Justice of India Gajendragadkar laid down three essential requisites of a tribunal –

1. It must have the trappings of a court;
2. It should be constructed by the state; and
3. It should be invested with the state’s inherent judicial power.

In the case of Madras Bar Association v. Union of India and Union of India v. R. Gandhi, it was further elaborated that “Though both courts and tribunals exercise judicial power and discharge similar functions, there are certain well-recognised differences between courts and tribunals. They are:

1. Courts are established by the State and are entrusted with the State's inherent judicial power for administration of justice in general. Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature. Therefore, all courts are tribunals. But all tribunals are not courts.
2. Courts are exclusively manned by Judges. Tribunals can have a Judge as the sole Member, or can have a combination of a judicial Member and a technical Member who is an “expert” in the field to which the Tribunal relates. Some highly specialised fact-finding tribunals may have only technical Members, but they are rare and are exceptions.
3. While courts are governed by detailed statutory procedural rules, in particular the Code of Civil Procedure and the Evidence Act, requiring an elaborate procedure in decision making, tribunals generally regulate their own procedure applying the provisions of the Code of Civil Procedure only where it is required, and without being restricted by the strict rules of the Evidence Act.”

Types of tribunals

There is the difference between the kinds of tribunals, based on the Constitutional provision invoked to pass the legislation for the tribunal.

Article 323A of the Constitution empowers the Parliament alone to provide for tribunals concerning the recruitment and conditions of service for persons holding any post created or overseen by the government.

Article 323B of the Constitution empowers the appropriate legislature to make laws providing for the adjudication/trial by tribunals of any disputes, complaints, or offence in specified matters, which include – taxes; foreign exchange, import and export across frontiers; industrial and labour disputes; land reform; urban land ceiling; election of legislators; production, procurement, supply and distribution of essential foodstuff.

The current list of tribunals include:

Serial number	Tribunal	Statute establishing tribunal	Appellate Authority
1.	Industrial Tribunal(s)	Industrial Disputes Act, 1947	High Court
2.	Income Tax Appellate Tribunal	Income Tax Act, 1961	High Court
3.	Customs, Excise and Service Tax Appellate Tribunal	Section 129 of the Customs Act, 1962	High Court
4.	Appellate Tribunal	Section 12 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976	High Court
5.	Central and State Administrative Tribunals	Sections 4(1) and 4(2) of the Administrative Tribunal Act, 1985	Supreme Court
6.	Railway Claims Tribunal	Section 3 of the Railway Claims Tribunal Act, 1987	High Court
7	Securities Appellate Tribunal	Section 15K of the Securities and Exchange Board of India Act, 1992	Supreme Court
8.	Debt Recovery Tribunal	Section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993	Debt Recovery Appellate Tribunal
9.	Debt Recovery Appellate Tribunal	Section 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993	High Court
10.	Telecom Disputes Settlement and Appellate Tribunal	Section 14 of the Telecom Regulatory Authority of India Act, 1997	Supreme Court
11.	National Companies Law Tribunal	Section 408 of the Companies Act, 2013	National Companies Law Appellate Tribunal
12.	National Companies Law Appellate Tribunal	Section 410 of the Companies Act, 2013	Supreme Court
13.	National Consumer Disputes Redressal Commission	Section 9(c) Consumer Protection Act, 1986	Supreme Court
14.	Appellate Tribunal for Electricity	Section 110 of the Electricity Act, 2003	Supreme Court
15.	Armed Forces Tribunal	Section 4 of the Armed Forces Tribunal Act, 2007	Supreme Court
16.	National Green Tribunal	Section 3 of the National Green Tribunal Act, 2010	Supreme Court

Appearance in official databases

While there is no data available on tribunals in the National Judicial Data Grid (as it only provides data on District Courts or on High Courts) or eCourt India Services, most tribunals provides their own data on their websites:

National Company Law Tribunal

The National Company Law Tribunal provides information on cases disposed of, brought and pending before it by the law it is brought under. These include sections under the Companies Act, 2013 and the Insolvency and Bankruptcy Code. The data provided is periodic, but there is no archive available to look at previous data to compare it with. The parameters of the data recorded also differ by the law the case is brought under – cases under the Companies Act are measured within a period (from 2016 to 2022) by the total number of cases numbered (i.e., instituted), the total number pending, the total number disposed of, and the percentage of disposal; while cases under the IBC are measured within a period (from 2017 to 2022)  by the total number of cases numbered, the total number pending (both pre and post-admission), the total number disposed of, the total number adjudicated, and the percentage of adjudication. However, the National Company Law Appellate Tribunal provides no such data:

A screenshot of the cases under the Companies Act, 2013 as shown on the NCLT website.

A screenshot of the cases brought under the Insolvency and Bankruptcy Code on the NCLT website.

Central Administrative Tribunal

The Central Administrative Tribunal provides the total number of filed, disposed and pending cases along with the number of cases filed today on a dashboard on their website.

The statistical dashboard as seen on the CAT website.

Railway Claims Tribunal

The Railway Claims Tribunal provides on its website the service of a Daily Summary Report, which gives data on all cases heard and adjudicated by the Tribunal on a daily basis. However, it can only provide the data for a period no longer than 31 days.

The Daily Summary Report search function as seen on the RCT website.

The results of the Daily Summary Report search function.

Telecom Disputes Settlement and Appellate Tribunal

The Telecom Disputes Settlement and Appellate Tribunal provides a number of statistical reports on its website, which include Filed Cases, Pending Cases, and Disposed Cases.

The data results of the search function as seen on the TDSAT website.

Customs Excise and Service Tax Appellate Tribunal

The Customs Excise and Service Tax Appellate Tribunal has published data on the total number of new cases, resolved case, and overall pendency from the years of 2000-2021. This information is broken up by each bench of the Tribunal (i.e., each independent location where the tribunal is established and operating), as well as given in aggregate terms.  

Research that engages with

• Pratik Datta’s paper on the utility of a Tribunal Services Agency examines the need for the administrative aspects of all tribunals to be handled by a single government agency to ensure tribunals can focus on their judicial functions and thus improve efficiency. It presents analyses of other attempts at such an administrative agency in different countries – the UK, Canada, Australia, and the US; and provides a template for the legal and organisational structure of such an agency for India.
• DAKSH has written reports on the tribunals system – includes white paper on structural reforms and a National Tribunal Commission for the Indian tribunal system (including a proposed legal and organisational structure for the Commission).
• The Coalition for the Goods and Services Tax Appellate Tribunal in India (‘GSTAT Coalition India’) convened by DAKSH, has published a joint note on the constitution of GSTAT proposing an institutional structure for state-of-the-art dispute resolution institution.
• XKDR, a Mumbai-based nonprofit research organisation, has studied the processing of cases in the National Company Law Tribunal during the COVID-19 pandemic. This was done by analysing the daily causelists of the tribunal, and examining the number of hearings taken for cases and their ultimate outcome on an input-output approach. The number of hearings in a day were examined both before and during the pandemic and compared those with the respective disposal rates for each period. XKDR has also done a study on case scheduling by the NCLT during exceptional periods such as the COVID-19 pandemic. This was done by analysing case data through daily causelists across three different periods: pre-lockdown, during the lockdown, and post-lockdown. By examining the procedure for case prioritisation (and de-prioritisation of scheduled cases when “urgent” cases have to be heard immediately), it draws a parallel between this process and the medical triage done by doctors – highlighting the need for consistent, principle-based standard operating procedures for case scheduling, akin to that of medical professionals.
• The Vidhi Centre for Legal Policy has a number of reports on the Indian tribunal system: an analysis of the Telecom Disputes Settlement Appellate Tribunal; an analysis of the Intellectual Property Appellate Board; and an interim report on structural reforms as well as the need for a National Tribunals Commission.

International Experiences

Australia

Tribunals in Australia deal with administrative and civil matters. Much like in India, the Australian tribunal system also aims to provide a simpler and cheaper alternative to review government decisions, as well reduce the burden on the judicial system.

Unlike the Indian tribunal, an Australian tribunal is an executive body (and not a quasi-judicial one independent of the executive), who do not adjudicate the legality of a decision nor exercise any judicial power, but instead exercise “merits review”, i.e., examining the merit of the administrative action. In this manner the separation of powers is maintained within the Australian tribunal system.

Presently, this system consists of the Administrative Appeals Tribunal (established in 1975) as a general tribunal to review a range of government decisions, with a very wide jurisdiction of over 400 Acts. Several other tribunals established since then exercising more specific jurisdictions, such as the Equal Opportunity Tribunal (1984), the Workers Rehabilitation and Conciliation Tribunal (1988), the Resource Management and Planning Appeal Tribunal (1993), as well as tribunals for Victoria, Western Australia, Queensland and New South Wales. The Victorian Civil and Administrative Tribunal (VCAT) in particular is supported by Court Services Victoria, set up by the Court Services Victoria Act 2014. By providing administrative facilities and services to VCAT, it enhances the judicial independence of the tribunal from the executive.

Canada

In Canada, while the tribunal system is one of the parts composing the greater justice system, it is considered to be distinct from the court system. Tribunals are instead independent, specialised decision-making government authorities and are referred to as quasi-judicial as they engage in fact-finding and have the power to impact the personal rights of people.

There are two levels of administrative tribunals – Federal and Provincial. Known as commissions or boards, they are created by specific federal/provincial legislation (called as “empowering legislation”) and get their powers either from the legislation or indirectly from general laws on tribunals. As these are government authorities/agencies, appointments to tribunals are made by the Order-in-Council, i.e., a formal order by the Governor General backed by the Cabinet or a Committee of the Cabinet.

Tribunals perform a number of functions – from adjudication, making decisions and rules on behalf of federal/provincial governments, recommendations for law reform, regulatory and licensing functions, etc – while having less formal procedures for the same than a court may. Furthermore, Canadian courts can review the legality of tribunals’ decisions, even when legislation does not provide for/prohibits a right of appeal. Tribunals in Canada receive support from the Administrative Tribunals Support Service of Canada (ATSSC), a statutory body handling a number of administrative functions for tribunals – including registry services, case flow management, research services, IT services, human resource management, etc. It is run by a Chief Administrator, appointed by the Governor in Council, with a separate secretariat for each tribunal.

France

In France, special administrative courts – the Ordre administratif – have a general jurisdiction on administrative matters. These administrative courts are separate from judicial (civil and criminal) courts, as well as independent of the civil services. This separation between administrative and judicial courts is important within the French legal system, and in cases of conflict of jurisdiction a tribunal des conflits determines which court is to deal with the matter. It is a three-tiered system, with a court of first instance (tribunal administratif), an appellate court against decisions of the tribunal administratif (Cour administrative d’appel) and a final appellate court – the Conseil d’Etat.

This administrative court system has wide jurisdiction, that includes reviewing administrative decisions by branches of government, direct taxes, employment, municipal elections, etc. However, observers have remarked that such a system would not be viable for India, considering the restriction of appeals and lack of judicial review that was considered rejected in the framing of the Constitution.

United Kingdom

The United Kingdom (UK) has a number of tribunals overseeing issues of citizens against the State (social security, immigration, etc) as well as private disputes between persons/organisations (Leasehold Valuation Tribunals for disputes between lessors and lessees, Employment Tribunals for disputes between employees and employers, etc).

Tribunals in the UK fulfil a similar function as in India, distinguished by: (i) the special expertise of the tribunal members; and (ii) flexibility regarding its own procedures. The UK tribunal system has itself developed out of changes recommended by different government committees – the Donoughmore Committee Report (1932); the Franks Committee Report (1957); and the Leggart Committee Report (2001), whose recommendations led to the Tribunals, Courts and Enforcement Act, 2007.

Presently, there is a two-tiered tribunal system, with a centralised administration of all tribunals by Her Majesty’s Courts and Tribunals Service (HMCTS) under the Ministry of Justice. This system consists of:

• First-tier tribunals, with several chambers for different subject matters. These tribunals were grouped into 9 Divisions, namely Immigration, Social Security and Pensions, Land and Valuation, Financial, Transport, Health and Social Services, Education, Regulatory, and Employment.
• The Upper Tribunal, which hears appeals against the first-tier tribunals.

United States of America

In the United States of America, judicial power cannot be invested in administrative bodies which are not courts. This is owing to a strict adherence to the separation of powers between the Executive, Legislature and Judiciary; and thus even the United States Supreme Court does not exercise administrative adjudication. Equally, administrative tribunals can exercise only quasi-judicial power, and not judicial power.

The operation of tribunals is therefore delicate, developed first by the Special Committee on Administrative Law (1933) by the American Bar Association, which led to a government committee – the Attorney General’s Committee (1939). The Attorney General’s Committee suggested procedural reforms that resulted in a statutory code – the Administrative Procedure Act, 1946.

The Act sets down the procedure for administrative rule-making and adjudication by federal government agencies. It also lays down the requirements and procedure for judicial review of such administrative actions. However, these can only be on questions of law and interpretation of statutes, when a person (either an individual or an organisation of any kind) has suffered through such actions. There is also an Administrative Office of US Courts to manage all the administrative functions of the judiciary, but it serves only the judicial branch of the US government and does not aid any administrative tribunals.

Data Challenges

• There is no unified availability of data from the tribunals like there is for the district judiciary or the High Courts. The National Judicial Data Grid at present does not include data drawn from any tribunals, thus presenting an incomplete picture of the overall justice system in the country.
• Several tribunals do not record and make available data beyond causelists or the status of ongoing cases. The few that do have been noted in the earlier section “Appearance in Official Databases”. Unlike High Courts, there is no data published or updated on the websites of most tribunals on the pendency of cases before them.
• There is a distributed hierarchy amongst the tribunals themselves, as tribunals are administered (i.e., given funds, infrastructure, and staff for functioning) by sponsoring ministries. There are therefore no uniform standards for data amongst the tribunals – some record data differently from others, while several do not publish their data at all.

Way Ahead

The National Tribunal Commission has been recommended by many as a critical reform to aid tribunal pendency and functioning. A National Tribunal Commission (NTC) or Agency is thought to be able to increase the independence, accountability, uniformity, accessibility and efficiency of tribunals.

Suggestions range from having the NTC being a profit-making company charging fees to a statutory body deducting its expenses from the Consolidated Fund of India. An NTC could perform functions as critical as:

• Recruitment for tribunal membership
• Budgeting
• Administrative oversight
• Providing administrative support, infrastructure (physical and technological)
• Improvement, rationalisation and streamlining of tribunal processes and procedures

The composition of the NTC Board has been suggested as being a mix of judicial members – which have been suggested to be more than half of the total strength of the Board, thus orienting it towards its judicial functions – and some executive members nominated by the Central government.

Synonymous terms

Tribunals are sometimes also referred to as “administrative tribunals”, but this is considered to be misleading and a misnomer by academics for the reasons that:

• Every tribunal is created by an Act passed by the legislature, and not by the Government.
• Decisions of tribunals are of a judicial nature rather than administrative, as it decides legal questions.
• Several tribunals deal with disputes that do not involve the Government, such as the Industrial Tribunal.
• Tribunals are independent, not in any way subject to administrative interference in their deciding a particular case.