Question

Discuss whether tribunalisation of judiciary hits the basic structure of the constitution by violating the principle of separation of powers and independence of the judiciary

Answer 1

With the enactment of Administrative Tribunals Act, 1985, parliament has systematically taken away important judicial functions of the High Courts and civil courts and transferred them to quasi-judicial bodies like tribunals.Curbing of High Courts power and transferring to tribunals is called as tribunalisation of justice. Tribunals were established for speedy justice and reducing the pendency of cases.

Tribunalisation affects the Independence of the Judiciary :

• Even in L. Chandrakumar case, the court reiterated the fact that judicial review is part of the basic structure of the Constitution and the power of judicial review of the High Court and Supreme Court under Art. 226 and. Art. 32 ensure independence of the Judiciary. The ‘exclusion of jurisdiction’ clause in all the legislations which have been enacted under scope of Article 323A and Article 323 B was struck down.
• The superintendence power of High Courts over lower courts within their jurisdiction was held a part of the basic structure.

Tribunalisation violates the principle of separation of powers:

• Since, the parliament and state legislatures now have power to establish tribunals pertaining to any field, therefore it is highly likely that they will establish tribunals pertaining to their field of political interests.However, the tribunals are completely under the control of executive hence it is highly possible that those who will be adjudicating disputes in the tribunals will be influenced by the political interests of the party in power. Basically executive is doing the work of the judiciary in the context of tribunal.So it is against the spirit of separation of powers.

Way Ahead for solving such Issues :

• Separate Bench should be created in High Courts which will exercise judicial review over the appeals against the judgement of tribunals.
• The problem of dependency of tribunals on the executive can be solved by adopting a system which is similar to the Tribunals Act of the United Kingdom.
• The absence of uniformity in administration of tribunals can be resolved by establishing a supervisory body which will supervise the functioning of the tribunals.

Tribunals were established for speedy justice and reducing the pendency of cases. But there is also the argument that Tribunalisation of judiciary is a threat to the separation of powers Transfer of judicial power should not be permissible in disguise of speedy justice; it will leave the judiciary handicapped and destroy the process of check and balance between the three organs of the democracy.