Tribunal and Court Distinguished

The single sharpest test: ask where the body's jurisdiction comes from. A civil court has jurisdiction unless the law takes it away; a tribunal has none unless the law gives it.

What tribunals and courts have in common

The distinction is one of degree, and an answer that treats it as absolute is wrong. Both:

• decide disputes between parties and give binding decisions;
• must act judicially and observe natural justice;
• must give reasons, on the principle in [Reasoned Decisions];
• take evidence and hear argument;
• are subject to the writ jurisdiction; and
• may, in the case of a tribunal under Articles 323A and 323B, decide constitutional questions.

That last point is the modern position and it narrows the gap considerably.

Facts. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, was a reference to seven judges on whether clause (2)(d) of Article 323A and clause (3)(d) of Article 323B, and section 28 of the Administrative Tribunals Act 1985 with the corresponding exclusion clauses in other statutes, could validly exclude the jurisdiction of the High Courts, and on the place of tribunals in the judicial hierarchy.

Held. Those clauses are unconstitutional to the extent that they exclude the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32, that jurisdiction being part of the inviolable basic structure of the Constitution. Tribunals may perform a supplemental role in discharging those powers. Tribunals created under Articles 323A and 323B are competent to test the constitutional validity of statutory provisions and rules, but all their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls, and they continue to act as courts of first instance so that litigants may not approach the High Courts directly. Where such a question arises before a single Member Bench, the proviso to section 5(6) requires reference to a Bench of at least two Members, one of whom must be a Judicial Member.

Why it matters here. It settles the relationship: a tribunal is not a rival to the High Court but a court of first instance beneath it. That is the sentence to use when asked how tribunals stand in relation to courts.

Tribunal distinguished from a purely administrative body

The second distinction, which questions often add, is between a tribunal and an ordinary administrative authority. The test is the duty to act judicially, and it comes from Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222.

Facts. Section 3 of the Bombay Land Requisition Ordinance 1947 allowed the Provincial Government, if in its opinion it was necessary or expedient, to requisition any land for a public purpose. The first respondent, a refugee from Sind, took an assignment of tenancy rights in a Bombay flat and went into possession. Days later the Government requisitioned the flat, allotted it to another refugee and directed an Inspector to take possession. The High Court issued certiorari against the Province and a Division Bench confirmed it.

Held. By the Full Court, certiorari lies whenever a body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, acts in excess of that authority; it does not lie against an order that is administrative or ministerial. By the majority of four to two, the Government's decision that the property was required for a public purpose was an administrative act, so certiorari did not lie. Kania CJ held that the true test is whether the law under which the authority decides itself requires a judicial approach, and that a lis, or a right to examine and cross-examine, is not necessary. Fazl Ali J put it that the mere fact that an executive authority has to decide something does not make the decision judicial: it is the manner in which the decision has to be arrived at that matters, and the real test is whether there is a duty to decide judicially.

Why it matters here. It gives the criterion that separates a tribunal from a department: a tribunal is set up to decide, and the law requires it to decide judicially.

A worked example: three bodies, three classifications

1. The Court of Small Causes at Bombay. A court: part of the ordinary hierarchy, presided over by judicial officers, bound by procedure and evidence, with jurisdiction over a class of suits defined by law but inherent within that class.

2. The Central Administrative Tribunal. A tribunal: created by the Administrative Tribunals Act 1985 under Article 323A, jurisdiction confined to service matters, mixed judicial and administrative membership, not bound by the Code of Civil Procedure or the Evidence Act, court of first instance, decisions reviewable by a Division Bench of the High Court.

3. The Regional Passport Officer deciding whether to impound a passport. Neither. It is an administrative authority exercising a statutory power. It must act fairly, and after Maneka Gandhi v. Union of India, AIR 1978 SC 597, the procedure must be right, just and fair; but it is not constituted to adjudicate between parties and it is not a tribunal.

Now test the consequences. Certiorari lies against 2 and, on the modern law, against 3 as well for breach of fairness. Article 227 superintendence covers 1 and 2. Contempt power belongs to 1 inherently, to 2 only if the Act confers it, and not at all to 3. A decision of 1 may bind as precedent within its hierarchy; decisions of 2 and 3 do not in the same way.

What it does NOT mean

It does not mean a tribunal is inferior in the sense of deciding less important matters. A service tribunal decides a person's career; a tax tribunal may decide crores.

It does not mean a tribunal need not act judicially. It must, and that is what makes it a tribunal rather than a department.

It does not mean the labels used in a statute are decisive. A body called a tribunal may be a court in substance, and a body called an authority may be a tribunal. What matters is the function and the duty to act judicially.

It does not mean tribunals stand outside the judicial system. After L. Chandra Kumar they are courts of first instance within it, supervised by the High Courts.

Quick revision

1. Court: part of the ordinary hierarchy, inherent and general jurisdiction, judges, bound by procedure and evidence, decides by law alone, inherent contempt power.
2. Tribunal: created by a specific statute, jurisdiction only as conferred, mixed membership, not bound by the Code of Civil Procedure or the Evidence Act, may weigh policy, contempt power only if conferred.
3. Sharpest test: a civil court has jurisdiction unless it is taken away; a tribunal has none unless it is given.
4. Common ground: both decide disputes, both must act judicially, both must give reasons, both are subject to the writ jurisdiction.
5. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125: tribunals are courts of first instance, may decide constitutional questions, and are subject to review by a Division Bench of the High Court; Articles 226, 227 and 32 are part of the basic structure and cannot be excluded.
6. Tribunal against administrative body: the test is the duty to act judicially, from Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222.

Test yourself

1. Distinguish an administrative tribunal from a court. A court is part of the ordinary judicial system, is presided over by judicially trained persons appointed through the constitutional process, possesses inherent and general jurisdiction so that a civil court may try all suits of a civil nature unless barred, is bound by the Code of Civil Procedure and the law of evidence, decides solely according to law, and as a court of record has inherent power to punish for contempt. A tribunal is created by a particular statute for a particular class of dispute, has only the jurisdiction that statute confers, frequently sits with a technical or administrative member alongside a judicial member, is not bound by the Code of Civil Procedure or the Evidence Act though it is given specified civil court powers, may take policy into account, and has contempt power only if the statute gives it. Both must act judicially, and both are subject to the writ jurisdiction of the High Courts.

2. Distinguish a tribunal from an ordinary administrative authority. The distinguishing feature is the duty to act judicially in determining a question affecting rights. A tribunal is constituted to adjudicate, and the law under which it acts requires a judicial approach. An administrative authority exercises a statutory power on grounds of policy and expediency, and although after A.K. Kraipak v. Union of India, AIR 1970 SC 150, and Maneka Gandhi v. Union of India, AIR 1978 SC 597, it must act fairly, it is not constituted to adjudicate. The test is that stated in Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222: whether the law under which the authority is making the decision itself requires a judicial approach, a lis or a right of cross-examination not being necessary.

3. What is the position of a tribunal in the judicial hierarchy in India? It is a court of first instance beneath the High Court. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, held that the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 is part of the inviolable basic structure and cannot be excluded, that tribunals may perform only a supplemental role, that they are competent to decide the constitutional validity of statutory provisions and rules, that all their decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction they fall, and that litigants cannot bypass them by going directly to the High Court.

4. Does a tribunal have power to punish for contempt? Not inherently. A court of record has that power by virtue of its status. A tribunal, being a creature of statute, has only the powers the statute confers, so it can punish for contempt only where the constituting Act gives it that power, either directly or by applying the Contempt of Courts Act to it. This is one of the practical consequences of classifying a body as a tribunal rather than a court.

5. Is a body a tribunal merely because the statute calls it one? No. The name used in the statute is not decisive. What matters is the function performed and whether the law requires the body to act judicially in determining questions affecting rights. A body described as an authority may in substance be a tribunal, and a body labelled a tribunal may in substance be an administrative authority. The consequences that follow, as to the appropriate writ, the availability of superintendence under Article 227, contempt power and the treatment of its decisions, depend on the substance and not on the label.