COURTS VS. TRIBUNALS

[Mr. M. GOVINDARAJAN]

In 'Union of India V. R. Gandhi' - (2010) 96 CLA 222 (SC) the Supreme Court elaborately discussed the role of Courts, establishment and functioning of tribunals and the difference between courts and tribunals.

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 up on disputes.   Courts refer to the Civil Courts, Criminal Courts and High Courts. 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.   Tribunals can be either private tribunals such as arbitral tribunals or Tribunals constituted under the Constitution or Tribunals authorized by the Constitution or Statutory Tribunals which are created under a statute.

Some Tribunals are manned exclusively by Judicial Officers. Example for that type of Tribunals are Rent Tribunals, Motor Accidents Claims Tribunal, Labor Courts, Industrial Tribunals etc., Other Statutory Tribunals are having both judicial and technical members. Example for that type of Tribunals are Central Administrative Tribunals, Telecom Disputes Settlement Appellate Tribunal Competition Appellate Tribunals, Consumer Fora, Cyber Appellate Tribunal etc.,

In 'Harinagar Sugar Mills Ltd., V. Shyam Sundar Jhunjhunwala' - (1962) 2 SCR 339 the Supreme Court succinctly explained the difference between courts and Tribunals - 'All Tribunals are not courts, though are 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 quarrel 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 but they ordinarily permanent and can try any suit or cause with 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 be thus be doubt that the Central Government does not come within this clause.     

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 article 136, 227 or 228 or in article 233 to 237 or in the Lists, it contemplates Courts of Civil Judicature but not Tribunals other than such courts.

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.

Next we see the term 'judicial'.  This term is capable of two meanings. In 'Royal Aquarium & Summer & Winter Garden Society V. Parkinson' - (1892) 1 QB 432 it was held that the word 'judicial' has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to being to bear a judicial mind - that is, a mind to determine what is fair and just in respect of the matters under consideration. If an officer is required to decide matters before him 'judicially' in the second sense does not make him a court or even a Tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest. Courts and Tribunals act 'judicially' in both senses, and in the term 'court' are included the ordinary and permanent Tribunals and in the term 'Tribunal' are included all others, which are not so included. In 'Jaswant Sugar Mills V. Laxmi Chand' - (1963) Supp (1) SCR 242, the Supreme Court observed that in order to be a Tribunal a body or authority must, besides being under a duty to act judicially, should be invested with the judicial powers of the State.

The Constitution Bench of Supreme Court in 'Associated Cement Co., Ltd., V. P.N. Sharma' - (1965) 2 SCR 366 explained the position of Tribunals as - 'The expression 'court' denotes a Tribunal constituted by the State as a part of the ordinary hierarchy of courts which are invested with State's inherent judicial powers. A sovereign State discharges legislative, executive and judicial functions and can legitimately claim corresponding powers which are described as legislative, executive and judicial powers. Under our Constitution, the judicial functions and powers of the state are primarily conferred on the ordinary courts which have been constituted under its relevant provisions. The Constitution recognized a hierarchy of courts and their adjudication are normally entrusted all disputes between citizens and citizens as well as the disputes between the citizens and the State. These Courts can be described rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process. The powers which these courts exercise are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions.

In every State there are administrative bodies or authorities which are required to deal with matters within their jurisdiction in an administrative manner and their decisions are described as administrative decisions. In reaching their administrative decisions, administrative bodies can often to take into consideration questions of policy. It is not unlikely that even in this process of reaching administrative divisions, the administrative bodies or authorities are required to act fairly and objectively and would in many cases have to follow the principles of natural justice; but the authority to reach decision conferred on such administrative bodies is clearly distinct and separate from the judicial power conferred on courts, and the decisions pronounced by administrative bodies are similarly distinct and separate in character from judicial decision pronounced by courts.

Tribunals which fall under the purview of Article 136(1) occupy a special position of their own under the scheme of our Constitution. Special matters and questions are entrusted to them for their decision and in that sense, they share with the court one common characteristic; both the courts and the Tribunals are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions.

In 'Durga Shankar Mehta V. Raghuraj Singh (1995) 1 SCR 267 it was held that the Courts and Tribunals are both adjudicating bodies and they deal with and finally determine disputes between parties which are entrusted to their jurisdiction. The procedure followed by the courts is regularly prescribed and in discharging their functions and exercising their powers, the courts have to conform to that procedure. The procedure which the Tribunals have to follow may not always be so strictly prescribed, but the approach adopted by both the courts and the Tribunals is substantially the same and there is no essential difference between the functions that they discharge. As in the case of courts, so in the case of Tribunals, it is the State's inherent powers which has been transferred and by virtue of the said power it is the State's inherent judicial function which they discharge.

The tribunals are preferred because the courts' functions under archaic and elaborate procedural laws and highly technical evidence law. To ensure fair play and avoidance of judicial error, the procedural laws provide for appeals, revisions and reviews and allow parties to file innumerable applications and raise vexatious objections as a result of which the main matters get pushed to the back ground. All litigation in courts get inevitably delayed which leads to frustration and dissatisfaction among litigants. In view of huge pendency, courts are not able to bestow attention and give priority to cases arising under special legislations.   Therefore, there is a need to transfer some selected arrears of litigation dealt with by traditional courts to special tribunals.

Only if continued judicial independence is assured, Tribunals can discharge judicial functions. In order to make such independence a reality, it is fundamental that the members of the Tribunal shall be independent persons, not civil servants. They should resemble courts and not bureaucratic boards. Even the dependence of Tribunals on the sponsoring or parent department for infrastructural facilities or personnel may undermine the independence of the Tribunal.

In 'L. Chandrakumar V. Union of India' - (1997) 3 SCC 261 the Supreme Court observed that it has been brought to the notice of the Supreme Court that one reason why the Tribunals have been functioning inefficiently is because there is no authority charged with supervising and fulfilling their administrative requirements.  The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central legislation and some others have been created by State legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration. The Supreme Court is of the view that until a wholly independent agency for the administration of all such Tribunals can be set up it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law.