There is a regulator for every important commercial sector and a tribunal over it to adjudicate appeals against the regulator’s decision. There was even talk about a regulator to regulate the regulators, but the idea mercifully faded away. Speakers at seminars and commentators still end their discourse on sectoral problems with a proposal for yet another regulator and tribunal.
This impulse has spread to other zones. The executive and the courts are tempted to set up mechanisms with quasi-judicial powers to solve disputes, though the Constitution does not permit it. Only the legislature can establish a regulatory mechanism. The executive’s attempt to set up an adjudicatory mechanism was nixed by the Supreme Court in a recent case, Secretary, Jain Pathashala vs Shivaji Bhagwat.
The Maharashtra government set up a grievances committee to hear the complaints of ad hoc teachers. It comprised officers from the education department and could not adjudicate on disputes. When disputes did arise over appointments and termination, the matter went up to the Bombay High Court. It made significant changes in the constitution and functioning of the committee. A retired district judge was to head the panel, which could hear and decide complaints against the government’s decision, and civil courts were barred from interfering with its decision. Further changes were made and the grievance committee was turned into a one-man tribunal by an executive order, at the instance of the high court.
This, according to the Supreme Court, was transgression of the constitutional scheme. A tribunal can be set up only by Parliament or a state legislature. This is evident from Indian Constitution’s Part XIV-A, which deals with tribunals. Courts and tribunals are constituted by the state to invest judicial functions, as distinguished from purely administrative or executive functions. Tribunals are established under special statutes to settle controversies arising under those special laws.
Tribunals can be private (arbitral tribunals); or constituted under the Constitution (Speaker or the Chairman acting under Para 6[1] of the Tenth Schedule); or authorised by the Constitution (Administrative Tribunals under Article 323A and tribunals for other matters under Article 323B); or statutory, which are created under a statute (Motor Accident Claims Tribunal, Debt Recovery Tribunals and consumer fora). In any case, a tribunal should be established by a law. It cannot be established by the executive.
It was argued that the power of the executive is co-extensive with that of the legislature under Article 162 of the Constitution. If there is no enactment covering a particular aspect, the government could carry on the administration by issuing administrative directions until the legislature makes a law on that behalf. However, the Supreme Court emphasised that even that was subject to the provisions of the Constitution.
“If the power to constitute and create judicial tribunals by executive orders is recognised, there is every likelihood of tribunals being created without appropriate provisions in regard to their constitution, functions, powers, appeals, revisions, and enforceability of their orders, leading to chaos and confusion,” the judgment said. If the executive is allowed to set up tribunals, citizens’ rights could be affected, since ad hoc bodies exercising judicial functions could be established. The members may not be independent or competent so they would be handing down binding decisions.
It is not just the executive that is barred from setting up tribunals. Even the courts cannot ask the executive to set up tribunals. In the Maharashtra case, the grievance committee was turned into a full-fledged tribunal at the instance of the high court. This was against the constitutional mandate.
The Supreme Court said: “Neither the Constitution nor any statute empowers a high court to create or constitute quasi-judicial tribunals for adjudicating disputes. It has no legislative powers. Nor can it direct the executive branch of the state government to create or constitute quasi judicial tribunals, otherwise than by legislative statutes. Therefore, it is not permissible for the high court to direct the state government to constitute judicial authorities or tribunals by executive orders, nor permissible for the state by executive order or resolution create them for adjudication of rights of parties.”
In this case, the high court went ahead and barred even the civil courts from dealing with disputes assigned to the tribunal created by it. This was contrary to Section 9 of the Code of Civil Procedure which provides that the courts shall have jurisdiction to try all suits of a civil nature.
The Supreme Court has, thus, reined in the powers of the executive and high courts to turn a grievance committee mechanism into a tribunal. They can appoint only fact-finding bodies or recommending bodies to assist the government or its authorities. A grievance committee cannot wear the robe of a quasi-judicial forum nor can its decisions be made final and binding on parties. When there are so many cross-border intrusions among the three arms of the state, this clarification will help check further constitutional skirmishes.
