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Sampath Kumar treated tribunals as substitutes for High Courts. Chandra Kumar called the substitution unconstitutional. The Republic essay hero. Pulled quote: Sampath Kumar treated tribunals as substitutes for High Courts. Chandra Kumar called the substitution unconstitutional. By then a generation of cases had been routed through the substitute.. Sub-flavour: Bench & Judiciary. By Akanksha Tiwari. THE REPUBLIC Sampath Kumar treated tribunals as substitutesfor High Courts. Chandra Kumar called thesubstitution unconstitutional. By then ageneration of cases had been routed through thesubstitute. Bench & Judiciary·By Akanksha Tiwari
[ The Republic ]

Tribunals after R. Gandhi: a court system designed to fail then patched

The 42nd Amendment inserted Articles 323A and 323B into the Constitution in 1976 and promised tribunal-based adjudication that would unburden the High Courts. Forty years on, the Madras Bar Association line of cases reveals what the project actually produced — a parallel adjudicatory order whose specialist competence was thin, whose independence was contested, and whose corrections from the Supreme Court came only after the damage to High Court jurisdiction had been done.

The Supreme Court's tribunal jurisprudence is a chronicle of corrections arriving years after they would have mattered. The 42nd Amendment inserted Articles 323A and 323B into the Constitution in January 1977.1 A constitutional bench upheld the resulting Administrative Tribunals Act in 1986 without seriously engaging the question of whether High Court writ jurisdiction could be excluded at all. A different constitutional bench buried that holding eleven years later. A five-judge bench rewrote tribunal-design law in 2010. A different five-judge bench struck down a freshly enacted statute in 2014 for ignoring the rewrite. Another bench did the same in 2015 with the National Company Law Tribunal's enabling Companies Act provisions. Two more rounds — Rojer Mathew in 2019 and Madras Bar Association IV in 2021 — repeated the cycle. At each step the Court tightened the framework. At each step Parliament responded with a fresh statute incorporating the same structural flaws the Court had just struck down. Two generations of litigants have moved through this churn. The corrections are real. They came after the damage was done.

This essay traces the doctrinal arc of that churn — Sampath Kumar to Chandra Kumar, then through the Madras Bar Association line — and asks what tribunalisation actually delivered to the Indian legal system. The argument is not that tribunals should be abolished. The case for specialist adjudication is real and the High Courts' backlog crisis is severe. The argument is that the tribunal project as actually executed produced a system designed to fail the tests of independence and competence, and that the Court's interventions — significant in doctrine — patched the architecture only at its outer edges. The substantive trade — High Court jurisdiction surrendered for tribunals that did not, in operation, justify the surrender — has not been recovered.

The framers did not write tribunals into the Constitution. The Emergency did.

The original Constitution of 1950 mentioned tribunals only incidentally. Articles 136 and 227 referred to them as bodies whose decisions the Supreme Court and the High Courts respectively could review. There was no Part XIV-A. There was no Article 323A. The framers, who had drawn extensively on comparative material from the United Kingdom, France, and the United States, were familiar with the case for administrative adjudication. They chose not to constitutionalise it.

The First Law Commission, in its much-cited Fourteenth Report of 1958, considered the question afresh.2 The Commission's chair, MC Setalvad, was India's first Attorney General and is generally regarded as the most independent occupant of that office; his fellow members included MC Chagla, KN Wanchoo, and SM Sikri, all of whom became significant superior court judges. The Commission examined the French Conseil d'Etat at length and rejected its transplantation to India. Its language is worth recovering. To establish administrative courts that would take the place of ordinary courts of law, the Commission wrote, would be 'derogatory to the citizens' rights'; it would be 'a step backward to erect in the place of deliberate judicial tribunals restrained by formal procedure and deciding according to law, executive justice administered by administrative tribunals'. Maitland's description of the Court of Star Chamber — 'a court of politicians enforcing a policy, but not a court enforcing a law' — sat at the centre of the Commission's worry.

The Commission nevertheless endorsed one specific category of tribunal: service tribunals for the adjudication of complaints by government servants. It recommended that these tribunals be headed by a person with High Court judge qualifications and that the writ jurisdiction of the High Courts under Article 226 be retained over them. The point is important and is too often forgotten. The argument for specialist adjudication was made and won in 1958. The argument that won was a narrow one, conditional on the retention of supervisory High Court jurisdiction. The argument that lost was the broader one — that tribunals could supplant the High Courts. It would lose again in 1974, when the Sixth Law Commission under former Chief Justice PB Gajendragadkar reiterated the view that a separate system of administrative tribunals required curtailment of Article 226 jurisdiction and was therefore not desirable.

What happened between 1974 and 1976 is what changed everything. The Swaran Singh Committee was appointed in February 1976 — eight months into the Emergency proclaimed in June 1975. The Committee's tribunal recommendations were taken up almost verbatim into the 42nd Amendment. The constitutional architecture for tribunals was thus drafted not by the framers, not by either of the relevant Law Commissions, but by an Emergency-era expert committee whose mandate, as Granville Austin documents, was the broader Indira Gandhi project of constraining judicial review. Articles 323A and 323B were drafted to permit Parliament to exclude the jurisdiction of every court except the Supreme Court under Article 136 — including the High Courts under Article 226. The Janata government, after the Emergency ended, attempted to delete the provisions through the 44th Amendment. The deletion clause passed the Lok Sabha. It failed in the Rajya Sabha, where the Congress still held a majority, by a single procedural reverse. Part XIV-A survived not because anyone defended it on principle but because the political moment for its removal closed before the legislative arithmetic permitted.

This origin is not a footnote. It is the explanation for why the constitutional litigation that followed had the shape it did. The Court was confronted with a constitutional provision that had been designed to displace High Court jurisdiction, drafted under conditions in which serious democratic deliberation was impossible, and retained in the Constitution by legislative inertia after those conditions had ended. The Court's choices in Sampath Kumar (1986) and Chandra Kumar (1997) cannot be read without that context.

Sampath Kumar: how the Court underwrote the tribunal project

The Administrative Tribunals Act came into force on 1 October 1985. Writ petitions challenging its constitutionality reached the Supreme Court almost immediately. The interim order in S.P. Sampath Kumar v Union of India, passed by a division bench of Bhagwati CJ and Ranganath Misra J on 31 October 1985, made an unusual move. The Attorney General agreed, on the record, that the legislative amendments necessary to make the statute acceptable to the Court 'would be introduced shortly in Parliament'. The Court directed that a judicial member be included on every bench of the tribunal and that the tribunal's seat track the High Court's seat. Government complied; the law was amended accordingly. By the time the constitutional bench heard the matter on the merits in 1986, the Court had become, in operational fact, a co-author of the statutory scheme it was being asked to adjudicate.

The final judgment of December 1986 has two main opinions.3 Ranganath Misra J's lead opinion holds that Parliament could exclude High Court jurisdiction under Article 226 because tribunals were capable of acting as 'effective alternative institutional mechanisms' for the discharge of writ functions. The phrase, the doctrinal centre of the judgment, was drawn from Bhagwati J's own minority opinion in Minerva Mills v Union of India (1980) — para 87 — which the Sampath Kumar bench characterised, with some textual generosity, as also implicit in the Minerva Mills majority. Bhagwati CJ's concurrence took the theory further, holding that appointments to tribunals must be made in consultation with the Chief Justice of India, and recommending specific amendments to the statute. The Court's expectation was that the legislative and operational defects in the tribunals scheme would be cured by an ongoing dialogue with Parliament.

The judgment ignored four prior constitutional bench rulings that had treated Article 226 jurisdiction as part of the basic structure of the Constitution: Kesavananda Bharati v State of Kerala (1973), Special Reference No 1 of 1964 on legislative privileges, Indira Gandhi v Raj Narain (1975) — decided during the Emergency itself — and the majority opinions in Minerva Mills (1980). None of these is obscure. None of them was cited. The 'effective alternative institutional mechanism' theory rested on a minority opinion in Minerva Mills that read, in its own terms, more like a willingness to entertain a possibility than a settled holding. That a five-judge constitutional bench treated this minority view as decisive, while not engaging with four contrary constitutional bench holdings, is the defining peculiarity of the Sampath Kumar approach.

The disposition that resulted was, in operational terms, a judicial underwriting of the tribunal project. The Central Administrative Tribunal began functioning. Cases under Article 226 against the Union Government in service matters were transferred to it. State-level tribunals were progressively established under the same Act. The litigation moved off the High Court rolls and into the tribunal benches. Whatever the doctrinal complexity of the Sampath Kumar reasoning, its operational meaning was unambiguous: the tribunalisation that the Swaran Singh Committee had designed was now constitutionally insulated, and the High Courts' Article 226 jurisdiction over service matters was, for the next decade, displaced.

Chandra Kumar: the correction, and what it could not undo

Doubts surfaced quickly. The first sustained critique within the Supreme Court came in RK Jain v Union of India (1993), a three-judge bench dealing with the Customs, Excise and Gold Control Appellate Tribunal.6 Ramaswamy and Ahmadi JJ noted the operational dysfunction in CEGAT and the inadequacy of the appointments procedure, and asked the Law Commission to review the position. Five months later, MN Rao CJ of the Andhra Pradesh High Court delivered Sakinala Harinath v State of Andhra Pradesh, an unusual judgment in which a High Court bench held a constitutional provision — Article 323A(2)(d) — unconstitutional to the extent it ousted Article 226.4 Per incuriam reasoning at this altitude is rare; Rao CJ noted, correctly, that the Sampath Kumar bench had not engaged with the prior constitutional bench rulings on basic structure, and treated that omission as freeing the High Court to take the prior holdings as binding.

The Supreme Court took up the issue itself in L. Chandra Kumar v Union of India, a seven-judge bench whose unanimous judgment was delivered by Ahmadi CJ in 1997.5 The Court endorsed Rao CJ's reasoning. It held that the writ jurisdiction of the High Courts under Article 226 and of the Supreme Court under Article 32 is part of the basic structure of the Constitution and cannot be ousted. The 'effective alternative institutional mechanism' theory was rejected. Tribunals could perform a supplemental, not substitutional, function. All tribunal decisions would be subject to writ jurisdiction in the relevant High Court, before a Division Bench. The clauses in Articles 323A(2)(d) and 323B(3)(d) that excluded High Court jurisdiction were read down. The constitutional architecture the Swaran Singh Committee had designed was thus, eleven years after it had begun operating, judicially returned to its pre-Sampath Kumar shape on the question of writ jurisdiction.

Chandra Kumar is rightly treated as one of the major constitutional bench decisions of the 1990s. It was bold; it was rigorous; it directly disowned a prior constitutional bench's reasoning. The First Law Commission's 1958 view — that tribunals must operate under, not in displacement of, Article 226 — was, after thirty-nine years, vindicated. Three things, however, deserve attention before celebrating the judgment.

First, Chandra Kumar reached the right conclusion on the wrong path. The Court held that the writ jurisdiction was basic structure and could not be excluded. It did not strike down Article 323A(2)(d) or Article 323B(3)(d) as unconstitutional, even though Rao CJ in Sakinala Harinath had been prepared to. It chose instead the route of reading down — preserving the constitutional text while neutralising the offending part of it. The constitutional architecture of Part XIV-A thus survives, in the Constitution, with provisions that the Supreme Court has held cannot be given the effect their drafters intended. This is a doctrinal embarrassment that the post-Emergency constitutional order has chosen to live with rather than resolve.

Second, Chandra Kumar's restorative arithmetic was retrospective only as a matter of doctrine. The cases that had been routed through tribunals between 1986 and 1997 — a decade's worth of service-matter adjudication — could not be reopened. The litigants who had been steered away from High Courts to tribunals during those years had no remedy for the diversion. The doctrinal recognition that they had been diverted did not return their files.

Third, and most consequentially, Chandra Kumar reaffirmed the legitimacy of tribunals as supplemental adjudicatory bodies. It did so without giving the tribunal system anything resembling the kind of structural reform — uniform service conditions, transparent appointment procedures, fixed tenure, financial independence from the parent ministry — that comparative experience in the UK, Australia, and Canada had treated as preconditions of legitimate tribunal adjudication. The Court accepted that selection committees should include a Supreme Court judge as chair. It recommended that all tribunals be under a single nodal ministry, preferably the Ministry of Law. Beyond that, the structural defects of the tribunal architecture were left to be addressed, if at all, by Parliament, by the executive, and by later litigation.

R. Gandhi: the structural test, finally

That later litigation arrived in 2010, in Union of India v R. Gandhi.7 The Companies (Amendment) Act 2002 had created the National Company Law Tribunal and the National Company Law Appellate Tribunal. The amendments consolidated jurisdiction over company-law matters that had previously been divided between the High Courts, the Company Law Board, the Board for Industrial and Financial Reconstruction, and the Appellate Authority for Industrial and Financial Reconstruction. The Madras Bar Association challenged the constitutional validity of the amendments. Jayasimha Babu J of the Madras High Court held that Parliament was competent to create the NCLT but identified several provisions in the appointments and qualifications regime that violated separation of powers and judicial independence. The Supreme Court, in a five-judge bench judgment by Raveendran J, broadly upheld the High Court's reasoning and laid down the structural-design tests that the post-Sampath Kumar literature had not had since the 1958 Law Commission Report.

Three principles emerged from R. Gandhi and are worth restating: Parliament has the competence to constitute tribunals on subjects within its legislative power, but cannot oust High Court or Supreme Court writ jurisdiction; the superior courts can examine whether the qualifications and selection procedures for tribunal members are constitutionally adequate; and Parliament cannot pack tribunals with members drawn predominantly from the civil service, because doing so violates the separation of powers and the independence of the judiciary.

The application of these principles to the NCLT scheme is the most consequential part of the judgment. The Court identified fourteen specific structural defects in the Companies (Amendment) Act 2002 and held that until those defects were cured by legislative amendment, the NCLT could not be constituted. The fourteen defects ranged from the qualifications of the President and Members of the NCLT — civil servants of comparatively junior rank were being made eligible for what was, in effect, a substitute for High Court adjudication — to the composition of the selection committee, the tenure terms, the salary provisions, and the relationship of the appellate tribunal to the High Courts. The Court, for the first time in the tribunal jurisprudence since 1958, was treating tribunal design as a matter of structural constitutional law rather than as a matter of legislative discretion subject only to writ-jurisdiction-preservation review.

R. Gandhi was a doctrinal advance. Its operational meaning was, however, ambivalent. The Court did not declare the amendments unconstitutional in their entirety. It identified the defects and held the tribunal incapable of constitution until the defects were cured. Parliament had a choice: cure them and proceed; or do nothing and leave the NCLT a paper tribunal. What Parliament did instead, when it replaced the Companies Act 1956 with the Companies Act 2013, was draft NCLT provisions that incorporated some R. Gandhi corrections and ignored others. The Madras Bar Association sued again. Madras Bar Association v Union of India (MBA-II) in 2015 reiterated R. Gandhi and struck down the NCLT/NCLAT qualifications provisions of the new Act.9

The cycle had begun. Court strikes down statute. Parliament re-enacts substantially the same statute. Court strikes it down again. The interval between strike-down and re-enactment was, by the second cycle, less than two years.

The National Tax Tribunal: where the Court drew the harder line

Between R. Gandhi and MBA-II, the Court delivered the most aggressive of the tribunal-line judgments. The National Tax Tribunal Act 2005 had created a tribunal to adjudicate appeals from the appellate tax tribunals — in effect, to substitute for the High Courts' jurisdiction over substantial questions of tax law. The justifications offered were the standard ones: arrears in tax cases, inconsistencies between High Courts on tax questions, the need for specialist tax adjudication.

In Madras Bar Association v Union of India (2014), Kehar J for the majority struck the entire statute down.8 The reasoning extended the structural principles of R. Gandhi but went further. The Court held that the deciding of substantial questions of law was a core judicial function that could not be removed from the High Courts at all. The point was not that the National Tax Tribunal had structural defects in its appointments or qualifications; it was that no tribunal could properly be entrusted with the function the NTT had been designed to discharge. Nariman J, writing separately, set out the structural argument in even stronger terms. The deciding of substantial questions of law was the constitutional work of the High Courts; outsourcing it to a tribunal, however well-designed, was constitutionally impermissible.

The NTT judgment was the high point of the Court's tribunal jurisprudence. It was the moment at which the Court appeared willing to treat not only the form but the substance of tribunal jurisdiction as a constitutional question. The expectation in the aftermath was that the Court would now treat tribunals that sought to substitute for substantive High Court adjudication — as opposed to tribunals that adjudicated specialised, technical, or first-instance matters — with the same scepticism.

The expectation did not survive MBA-II, where Sikri J's judgment expressly distinguished the NTT case as exceptional. Nariman J, the author of the strongest separate opinion in the NTT case, signed onto Sikri J's distinguishing reasoning. The NCLT and NCLAT, with R. Gandhi-style structural corrections, were treated as constitutionally permissible. The line the Court drew was thus not between tribunals that substituted for High Court substantive jurisdiction and tribunals that did not; it was between tribunals whose enabling statutes the Court was willing to strike down and tribunals whose enabling statutes it was willing to read down. The substantive constitutional principle Nariman J had announced in the NTT case did not survive the practical pressure of the next round.

Rojer Mathew and MBA-IV: the Finance Act route, and the Court's reply

The 2017 Finance Act marked a doctrinal escalation by the executive. Section 184 of the Act empowered the Central Government to make rules concerning the qualifications, appointment, term of office, salaries, allowances, resignation, removal, and other terms and conditions of service of the chairpersons and members of various tribunals. The Act, passed as a Money Bill, simultaneously merged eight tribunals into other tribunals. The Tribunal Rules 2017, framed under Section 184, prescribed terms that were substantially worse than the conditions R. Gandhi had required: shorter tenures, executive-dominated selection committees, removal procedures controlled by the parent ministry.

The challenge in Rojer Mathew v South Indian Bank Ltd (2019) was heard by a five-judge bench.10 The Court struck down the Tribunal Rules 2017 as inconsistent with the principles laid down in Chandra Kumar, R. Gandhi, and the MBA line. It directed the Centre to reframe the rules. It also referred the question whether the Finance Act 2017 had been validly enacted as a Money Bill to a larger bench — the Money Bill question remains pending and is, by itself, a major constitutional dispute.

The Centre re-framed the rules. The 2020 version, the Tribunal Rules 2020, was struck down in Madras Bar Association v Union of India (2020).11 The Court found that the new rules, despite the Rojer Mathew direction, retained substantially the same structural defects on tenure, selection-committee composition, and removal procedures. The Centre re-framed again. The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021, later enacted as the Tribunals Reforms Act 2021, abolished nine tribunals and transferred their work back to the High Courts. It also prescribed a four-year tenure for members of the surviving tribunals. Madras Bar Association v Union of India (2021) — the fourth round, MBA-IV — struck down the four-year tenure and other provisions, holding that the Centre's repeated attempts to circumvent the structural requirements of R. Gandhi crossed into legislative overreach.12

The pattern is the central fact about post-2017 tribunal jurisprudence. The Court has been doing the right doctrinal work. The executive has been writing successive statutes that ignore the doctrinal work. The Court has struck them down, one by one, on schedule. The struck-down statutes have, on average, governed tribunal appointments and conditions of service for somewhere between two and four years before the Court has corrected them. During that period, members appointed under the unconstitutional rules have served; cases have been decided; the appellate-litigation pipeline has churned. The corrections have not unwound the period of operation under the corrected-away rules.

What the tribunal project actually delivered

If we step back from the cases and ask what tribunalisation has produced in operational terms, three things are visible.

The first is that the backlog crisis that the 42nd Amendment's tribunal provisions were nominally designed to address has not been resolved. The cumulative case-pendency in the Indian judicial system, including tribunals, has risen continuously since the 1970s. The Central Administrative Tribunal, the principal Article 323A tribunal, has its own backlog. The National Company Law Tribunal has its own backlog. The Income Tax Appellate Tribunal has its own backlog. The expectation that specialised adjudicatory bodies would clear arrears has not been borne out. The 1958 First Law Commission's prediction — that specialisation might bring efficiency only if the writ jurisdiction were curtailed, which the Commission was unwilling to recommend — proved more accurate than the 1976 Swaran Singh Committee's faith that exclusion-of-jurisdiction clauses would resolve the arrears problem.

The second is that the specialist competence the tribunal project promised has been delivered unevenly. The Income Tax Appellate Tribunal, established in 1941, predates the entire constitutional tribunalisation project and is generally regarded as a competent specialised forum. The Customs, Excise and Service Tax Appellate Tribunal (the successor to CEGAT, which RK Jain critiqued in 1993) is generally regarded as adequate. The Central Administrative Tribunal has not produced the specialist administrative-law jurisprudence its drafters anticipated; its decisions, in many cases, are routine applications of service rules. The Securities Appellate Tribunal and the Competition Appellate Tribunal have built useful jurisprudence in their respective fields. Many of the smaller tribunals — the Cyber Appellate Tribunal, the Copyright Board (since merged into the IPAB and then abolished by the Tribunals Reforms Act 2021), the Telecom Disputes Settlement and Appellate Tribunal — produced little. The 2021 abolition of nine tribunals and the return of their work to the High Courts is itself an acknowledgement, made by the Centre, that several of the tribunalisation experiments did not justify themselves.

The third is the institutional cost on the side of the High Courts. The High Courts lost first-instance jurisdiction in tax matters, service matters, company-law matters, debt-recovery matters, securities matters, telecom matters, and others. They retained appellate writ jurisdiction under Article 226 after Chandra Kumar, but writ jurisdiction is a thinner instrument than first-instance jurisdiction; it does not develop substantive law in the same way. The body of judge-developed administrative law and company law that the High Courts had been generating until the early 1980s did not continue at the same density once the tribunals took over the first-instance work. The doctrinal corpus produced by the tribunals, in many fields, did not substitute for it. The High Courts are also generally regarded as having retained their backlog problems despite the diversion of tribunal-jurisdiction cases; this is consistent with the empirical scholarship Datar,14 Thiruvengadam, and others have surveyed, which suggests that diversion of jurisdiction does not, on its own, reduce backlog in the body the cases have been diverted from.13

The counter-argument from administrative reality

Against this account, a serious counter-argument deserves a fair statement. It runs roughly as follows. The tribunal project may have under-delivered on its original promise, but the alternative was not better and may have been substantially worse. The High Court system that the framers built was designed for an India of 1950 — a smaller economy, fewer regulated industries, less specialised litigation. The expansion of the regulatory state in the post-liberalisation period has produced volumes of technical adjudication that no general-jurisdiction court can handle competently. The tribunals, whatever their structural flaws, brought specialist competence to fields where High Court judges, sitting in the regular rota, would have been adjudicating in subject areas they did not control. The doctrinal corrections delivered by the Sampath Kumar to MBA-IV line have, over time, reformed the worst of the structural defects; the four-year tenure is gone, the executive-dominated selection committees are gone, the residual qualifications regime is largely consistent with R. Gandhi. The system is, in 2026, materially better than it was in 1996.

This account has force. The expansion of the regulatory state is real. The High Court system's capacity to absorb specialised adjudication in 2026 is not what it would have been if the tribunal project had never been undertaken. The doctrinal corrections have, over time, accumulated. Some tribunals — IPAB before its abolition was a counter-example, but the Securities Appellate Tribunal, the Income Tax Appellate Tribunal, NCLAT in its mature phase — do specialised work the High Courts would not, in operational reality, have been positioned to do.

What this account understates is the cost of the route taken. The 1958 Law Commission's path — narrow, specialist tribunals operating under High Court writ jurisdiction, with judicial-style appointments and tenure conditions written into the enabling statutes from the start — was available in 1976 and would have produced specialist adjudication without the Article 226 disturbance, without the structural-design litigation that consumed forty years of the Court's docket, and without the period of de facto displacement of High Court jurisdiction between 1986 and 1997. The path actually taken produced specialist adjudication eventually, but at the cost of a generation's worth of unrecoverable jurisdiction transfer and a constitutional jurisprudence that is still resolving design questions the framers of Part XIV-A had no business raising in the first place. The counter-argument from administrative reality is correct that the present system is better than its worst predecessors. It does not show that the present system is better than what a non-Emergency reform would have produced.

Where the question rests

The Indian tribunal jurisprudence is now in its fifth doctrinal round. The Tribunals Reforms Act 2021 abolished nine tribunals and returned their work to the High Courts. MBA-IV struck down its tenure provisions. The Centre has since framed fresh rules consistent with MBA-IV. The Money Bill question, referred by Rojer Mathew to a larger bench, remains pending and may, if decided, change the legislative arithmetic for tribunal-related amendments. The National Tax Tribunal remains the unique case in which the Court declined to permit substantial-question-of-law adjudication to be tribunalised at all; whether that holding survives or is distinguished further depends on cases the Court has not yet heard.

The doctrinal trajectory has produced two structural rules that now appear settled. Article 226 jurisdiction over tribunal decisions cannot be excluded, after Chandra Kumar. Tribunal appointments, qualifications, tenure, and conditions of service must satisfy the structural-independence requirements of R. Gandhi as developed through the MBA line. These rules are doctrinally important and there is reason to think they will hold. They do not, however, recover what tribunalisation cost the High Court system between 1986 and 1997, and they do not address the underlying question of whether, in the substantive fields where tribunals now operate, specialist adjudication has justified the trade.

The trade was made at the wrong moment, by the wrong process, on the wrong terms. The Court spent forty years correcting it. The correction is real. So is the period during which the uncorrected architecture governed adjudication for an entire generation of litigants. The First Law Commission saw this clearly in 1958. The Swaran Singh Committee in 1976 did not. Part XIV-A of the Constitution still records that Committee's choice rather than the Court's later correction. The constitutional text we live under contains the Emergency Parliament's tribunal vision, read down by judicial doctrine but not erased from the document. That is the resting place of the question, and it is not a settled one.

Notes

  1. Constitution (Forty-second Amendment) Act 1976, inserting Part XIV-A consisting of Articles 323A (Administrative Tribunals) and 323B (Tribunals for other matters). The amendment passed during the 1975-77 Emergency on the recommendation of the Swaran Singh Committee.
  2. Law Commission of India, Reform of Judicial Administration (Law Com No 14, vol 2, 1958) 692-694 — the Fourteenth Report endorsed specialised service tribunals while expressly recommending the retention of Article 226 jurisdiction. The First Law Commission's chair MC Setalvad was India's first Attorney General.
  3. S.P. Sampath Kumar v Union of India (1987) 1 SCC 124 — a five-judge bench upheld the Administrative Tribunals Act 1985, accepted Bhagwati J's 'effective alternative institutional mechanism' theory from his minority opinion in Minerva Mills v Union of India (1980) 3 SCC 625 [87], and treated tribunals as legitimate substitutes for High Courts. The judgment ignored Kesavananda Bharati, Indira Gandhi v Raj Narain, and the Minerva Mills majority — all of which had treated Article 226 as basic structure.
  4. Sakinala Harinath v State of Andhra Pradesh (1993) 3 ALT 471 — MN Rao CJ held Article 323A(2)(d) unconstitutional to the extent it ousted Article 226 jurisdiction. The High Court's boldness in disregarding a Supreme Court constitutional bench is itself notable; per incuriam reasoning is rarely used at this altitude.
  5. L. Chandra Kumar v Union of India (1997) 3 SCC 261, especially paras 78-80 — Ahmadi CJ, for a seven-judge bench, held that the power of judicial review vested in the High Courts under Article 226 and the Supreme Court under Article 32 is part of the basic structure of the Constitution and cannot be excluded. Tribunals could perform a supplemental, not substitutional, role.
  6. RK Jain v Union of India (1993) 4 SCC 119 — a three-judge bench dealing with the Customs, Excise and Gold Control Appellate Tribunal first expressed misgivings about the Sampath Kumar substitution theory. The two-Justice concurrences in Ahmadi and Ramaswamy JJ were the doctrinal hinge between Sampath Kumar and Chandra Kumar.
  7. Union of India v R. Gandhi (2010) 11 SCC 1 — a five-judge bench dealing with the National Company Law Tribunal under the 2002 amendments to the Companies Act 1956. Raveendran J set out fourteen structural defects in the NCLT's appointments and qualifications regime and held that until those defects were cured, the tribunal could not be constituted.
  8. Madras Bar Association v Union of India (2014) — the National Tax Tribunal decision; Kehar J for the majority struck down the NTT Act 2005 on the ground that the tribunal sought to supplant High Court jurisdiction over substantial questions of tax law. Nariman J's separate concurrence argued that the core judicial function of deciding substantial questions of law could not be removed from the High Courts.
  9. Madras Bar Association v Union of India (Madras Bar Association II) MANU/SC/0610/2015 — Sikri J's judgment for the five-judge bench reiterated R Gandhi and struck down the NCLT/NCLAT qualifications provisions in the Companies Act 2013. Nariman J, who had written separately in the NTT case, was a signatory to the unanimous bench in MBA-II.
  10. Rojer Mathew v South Indian Bank Ltd (2019) 19 SCC 339 — a five-judge bench struck down the Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules 2017 issued under the Finance Act 2017. The judgment also referred the question of whether the Finance Act 2017 had been validly enacted as a Money Bill to a larger bench.
  11. Madras Bar Association v Union of India (2020) 11 SCC 217 — the Court struck down the Tribunal Rules 2020, framed under the Finance Act 2017, on similar grounds to Rojer Mathew. Service conditions, tenure, and the selection-committee composition all failed the Chandra Kumar / R Gandhi tests.
  12. Madras Bar Association v Union of India (2021) — the fourth round; the Court struck down certain provisions of the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance 2021, later passed as the Tribunals Reforms Act 2021, especially the four-year tenure for tribunal members. The Union had abolished nine tribunals by the same legislation and transferred their work back to the High Courts.
  13. Arun K Thiruvengadam, 'Tribunals' in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) ch 23 — the most comprehensive scholarly survey of the constitutional jurisprudence on Indian tribunals, on which much of the present essay draws.
  14. Arvind P Datar, 'The Tribunalisation of Justice in India' (2008) Acta Juridica 287 — the leading practitioner critique. Datar's case is that tribunalisation has undermined judicial independence without producing the efficiency gains it promised. He represented petitioners in several Madras Bar Association cases.
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Akanksha Tiwari is a Contributing Editor at LegalRepublic.in. She writes on comparative constitutional law and on profile-essays examining the figures who built — and continue to shape — the Indian legal order.

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