Tribunals in India: Questions of Independence and Constitutionality

The year 2021 has witnessed an unending battle between the judiciary and the government concerning the passing of the Tribunal Reforms Act, 2021. The Act, which revived the exact provisions of an ordinance (also earlier struck down by SC to be unconstitutional) is known to pose a serious threat to the judicial independence of the tribunals by providing exemplary power to the Union Government regarding appointments, service conditions, salaries, etc. of members of the key tribunals. The question of the independence of the tribunals reverberates a scenario of potential misuse of the orders/judgements of these tribunals by the government, as the government remains the prime litigant in the Indian legal framework. 

In light of this, the article expounds on the evolving jurisprudence concerning the need for tribunalisation in India . It also explains the initial confusion regarding the scope of the jurisdiction of such tribunals to supersede the judicial review powers of the High Courts. The passing of the Finance Act, 2017 which positioned the Union Government to exercise sweeping powers regarding the appointment, removal, salary, etc. of the adjudicating members of these tribunals has been dealt with in the article along with the Roger Mathew judgement of the SC striking down such provisions. Further, the article also focuses on examining the constitutional validity of the tribunals formed for resolution of the matters which are out of the purview of Articles 323A and 323B.

Background – Post-1980s there has been a rapid proliferation of tribunals adjudicating matters concerning the domains which their parent statutes have provided for them. For some, it is the grundnorm, the constitution (under Articles 323A and 323B) which has enveloped the legal validity of working of these tribunals, and for others, it’s the combination of legislating power of the Parliament and the courts’ interpretation in consonance with the entries provided under Article 246, validating the establishment of these tribunals.

Be it as it may, the tribunal system in India is aimed at decongesting the astronomical number of cases, which often plague the formal court system. Rendering justice through tribunals is expeditious and less expensive when equated with pure judicial mechanisms of courts, and also allows specialized adjudicators of the concerned domain to nurture decision-making process. Although these purposes have attained a backseat due to the inconsistent constitution of these tribunals and lack of uniform guidelines in the adjudication of matters.[1]

Often, suggestions for improving the framework of the tribunals have been provided which include the establishment of a Tribunal Commission at a National level or an Appellate Tribunal Body for all domains, comprising of politically aloof members and judges. Independence of the members presiding such tribunals is the most contentious of all the questions which spawn infidelity on part of the public interest to hold good the constitutional principles of rule of law and doctrine of separation of powers.[2]

Doctrine of Merger - Kunhayammad v. State of Kerala

Introduction – The case of Kunhayammed and Others v. State of Kerala and Another[1] was concerned with a very important question of law in the realm of civil procedural laws. The subject matter of the case touched upon the doctrine of merger and res judicata in civil cases and posed a substantial question on the deeper nuances of its applicability. Before discussing the technicalities of the judgement and the arguments presented by the respective sides, let us delve briefly into the facts of the matter.

The Kerala Private Forests (Vesting and Assignment) Act, 1971 provided for the vesting in the Government of private forests in Kerala and for its assignment to agriculturists for cultivation. It was also provided that any disputes on the question(s) whether any land was a private forest or not, and, whether any private forest was vested in the Government or not, would be decided by the Forest Tribunal constituted under section 7. Appeals against any such decision could be made to the High Court under section 8-A within a period of 60 days from the date of decision.

In a particular dispute before the Forest Tribunal, Kozhikode involving 1020 acres of land, it was ruled on 11-8-1982 that the land did not vest in the Government. The State Government filed an appeal in the High Court that was subsequently dismissed on 17-12-1982. In the statute, no further mechanism of appeal or review had been provided to the parties. In such a scenario, the State chose to approach the Apex Court under Article 136 of the Constitution of India by way of a Special Leave Petition. However, this petition was dismissed on 18-7-1983 by an order that only stated the following – “Special leave petition is dismissed on merits.”

A little while later, in January 1984, the Government went before the Kerala High Court and filed a review application of its earlier order. The original petitioners in this matter raised a preliminary objection concerning the maintainability of the review petition. The High Court overruled these objections petition and decided to proceed further on the merits of the subject-matter. The petitioners then sought for leave to appeal to the Supreme Court, which was granted.

The two contentions that were primarily preferred by the appellants before the Supreme Court were that, first, the order passed by the Kerala High Court had merged into the order of the Supreme Court dismissing the SLP. Therefore, the consequence of such merger was that the order of the High Court had ceased to exist in the eye of law and the review application cannot be filed before the High Court. Secondly, the appellants put forth that the effect of the Supreme Court’s dismissal of the SLP was that the High Court’s decision had been affirmed. Thus, a further review petition could not be entertained.