Statutory Tribunals, and Their Place in Human Rights Protection

In one line

A statutory tribunal is a body created by statute to determine a defined class of dispute outside the ordinary court structure, and its place in human rights protection rests on accessibility and specialisation, subject to the constitutional rule that judicial review under articles 226 and 32 cannot be excluded.

The constitutional provisions

Articles 323A and 323B were inserted by the Forty-second Amendment.

Article 323A empowers Parliament to provide by law for the adjudication by administrative tribunals of disputes relating to recruitment and conditions of service of persons appointed to public services, and permits the law to exclude the jurisdiction of all courts except the Supreme Court under article 136.

Article 323B empowers the appropriate Legislature to provide for tribunals for other specified matters, including taxation, foreign exchange, industrial and labour disputes, land reforms, urban property ceilings, elections, food, and rent and tenancy.

And article 227 gives the High Court superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

The rule that judicial review cannot be excluded

This is the doctrinal centre of the topic and it should be given precisely.

The exclusion clauses in articles 323A(2)(d) and 323B(3)(d), and the statutory provisions enacted under them, were held unconstitutional to the extent that they excluded the jurisdiction of the High Courts under articles 226 and 227 and of the Supreme Court under article 32.

The reasoning had three steps. Judicial review is a basic feature of the Constitution. The power of the High Courts under article 226 and of the Supreme Court under article 32 is part of that basic feature. An amendment or a statute excluding it therefore fails.

The consequence in practice. A decision of a tribunal is subject to judicial review by a Division Bench of the High Court within whose jurisdiction the tribunal sits, and a litigant may not approach the Supreme Court directly under article 136 without first going to the High Court.

Two things follow for a human rights answer. A tribunal cannot become a place where rights are determined finally and unreviewably. And the tribunal's advantage of speed is reduced by the addition of a High Court stage, which is the standing criticism of the arrangement.

Why tribunals matter for human rights protection

Four reasons, and they are the case in favour.

Accessibility. Procedures are simpler, the strict rules of evidence do not apply, fees are lower, and a party may frequently appear in person.

Speed, at least in design, since a tribunal deals with one class of case and is not competing with a general docket.

Specialisation. A body deciding only service disputes, or only environmental matters, or only consumer complaints, develops the expertise that a generalist court cannot.