Tribunalisation of Justice: Reform in Rhetoric, Retreat in Reality

While the early post-independence tribunals were largely confined to tax matters, the Swaran Singh Committee marked the beginning of a more systematic move towards tribunalisation by introducing Specialised Tribunals to address systemic delays in administrative disputes.

Introduction

The emergence and functioning of tribunals in India reveals the complex and evolving dynamics of justice administration, executive oversight, and constitutional governance. At the heart of this evolution lies a paradox. Indian Courts have not rejected the legitimacy of Administrative Tribunals as instruments necessary to a modern welfare state, but they have repeatedly imposed safeguards to preserve judicial independence.

Tribunalisation in India can be traced back to the establishment of the Income Tax Appellate Tribunal (ITAT) in 1941, which stood as India’s first specialised Tribunal. The creation of ITAT was justified by practical considerations such as alleviating the burden on courts, ensuring speedy resolution of tax disputes, and expertise in a technically complex domain. This early experiment in specialised adjudication was administrative and not constitutional in origin, but it laid the foundation for the later expansion of tribunalisation within India’s judicial framework.¹ As tribunalisation evolved, attention turned to the mounting backlog in service matters before the Constitutional Courts, particularly the High Courts. In response, the Swaran Singh Committee recommended the establishment of Administrative Tribunals as a component of the adjudicatory framework under the Constitution.² While the early post-independence tribunals were largely confined to tax matters, the Swaran Singh Committee marked the beginning of a more systematic move towards tribunalisation by introducing Specialised Tribunals to address systemic delays in administrative disputes. It also sought to change the appellate structure by recommending that Tribunal decisions can be subject to scrutiny only by the Supreme Court under Article 136. Essentially, it suggested the exclusion of the jurisdiction of all other courts, including the writ jurisdiction of the Supreme Court under Article 32 and the High Courts under Article 226.

The Constitution (42nd Amendment) Act, 1976 brought about an overhaul in the adjudication of disputes in India.³ It provided for the insertion of Articles 323-A and 323-B into the Constitution, enabling Parliament and the State Legislatures to establish Administrative Tribunals to adjudicate the matters specified in the sub-clauses.⁴

When constitutionally authorised tribunals were introduced, their justification was the hope that they would alleviate backlog and delay.⁵ In recent years, however, academics and lawyers have grown increasingly sceptical of this rationale and of the rapid proliferation of tribunals. Critics argue that the problem is not only inefficiency but also the outsourcing of essential judicial functions to bodies/institutions structurally dominated by the executive. This article examines the evolving debate on tribunalisation in India by tracing the constitutional challenges that expose the persistent tension between judicial doctrine that affirms tribunal legitimacy and institutional practices that repeatedly undermine judicial independence.

Tracing the evolution: From cautious acceptance to disillusionment

The Supreme Court first examined the constitutional validity of tribunalisation in S.P. Sampath Kumar v. Union of India.⁶ Parliament enacted the Administrative Tribunals Act, 1985 (1985 Act) pursuant to Article 323-A, enabling the establishment of Central and State Administrative Tribunals for service matters. Thereafter, multiple writ petitions were filed before the High Courts and the Supreme Court challenging Article 323-A and the 1985 Act. The principal challenge was that the exclusion of the Supreme Court’s jurisdiction under Article 32 and the High Courts‘ jurisdiction under Article 226 was unconstitutional. These challenges culminated in the seminal Constitution Bench decision in the S.P. Sampath Kumar case. The Court held that Parliament could create an “effective alternative institutional mechanism” to adjudicate service disputes, but held that such tribunals must be institutionally robust. Since High Courts had developed a long-standing reputation for independence and credibility, the Court noted that any tribunal replacing their jurisdiction must be a “worthy successor” capable of performing their constitutional role.

In L. Chandra Kumar v. Union of India⁷, a seven-Judge Constitution Bench reconsidered the framework established in the case of S.P. Sampath Kumar⁸ and held that the exclusion of the High Courts‘ writ jurisdiction under Article 226 and the Supreme Court’s jurisdiction under Article 32 was unconstitutional. The Court reaffirmed that judicial review of legislative and administrative action forms part of the basic structure of the Constitution and cannot be ousted by a statute or a constitutional amendment. The Court decisively held that the institutional safeguards constitutionally guaranteed to Judges of the higher judiciary, for example, security of tenure and protection from executive interference (i.e. the tenets of judicial independence), were not available to Members of tribunals, and hence tribunals could not function as substitutes for the High Courts in matters involving constitutional interpretation. The Court held that tribunals would operate as supplemental adjudicatory bodies whose decisions remained subject to review by the High Courts under Articles 226/227. While preserving the primacy of the Constitutional Courts, the Court encouraged tribunals and recommended structural reforms, including judicial participation in appointments and the placement of all tribunals under a single nodal ministry to ensure coherence.

Interestingly, post L. Chandra Kumar⁹, the courts accepted the legitimacy of tribunalisation, shifting their attention from constitutional challenges to ensuring that tribunals functioned effectively and maintained standards comparable to courts (i.e. judicial independence).¹⁰ This approach also informed the judicial treatment of tribunals established under statutes outside Articles 323-A and 323-B, such as the Debt Recovery Tribunals (DRTs) introduced pursuant to the Recovery of Debts [and Bankruptcy] Act, 1993. The Delhi High Court initially struck down the Act in Delhi High Court Bar Assn. v. Union of India¹¹ on the ground that it compromised judicial independence and violated Article 14. The Supreme Court reversed this decision in Union of India v. Delhi High Court Bar Assn.¹² The Supreme Court upheld the Act and noted that the Government had introduced rules providing for judicial participation in appointments through a Selection Committee headed by the Chief Justice of India or a nominee. Therefore, the DRT framework did not undermine the independence of the judiciary. Reaffirming L. Chandra Kumar case¹³, the Court emphasised that the decisions of DRTs remained subject to the supervisory jurisdiction of the High Courts under Articles 226 and 227, and observed that tribunals for tax and revenue matters had long become an integral part of India’s judicial system. It accordingly upheld the constitutionality of the Recovery of Debts [and Bankruptcy] Act, 1993 and clarified that Articles 323-A and 323-B did not exhaust Parliament’s power to establish tribunals in other subject areas.

In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha¹⁴, the Supreme Court adopted a restrained idea of judicial review over tribunals. The Court held that the High Courts‘ jurisdiction under Article 226 is confined to ensuring that such bodies act within the boundaries of legality and that they do not exceed their statutory jurisdiction. The Court held that so long as tribunals function within its jurisdiction, the manner in which they exercise their powers does not, by itself, warrant judicial interference. The judgment reflects an early judicial confidence in tribunals as specialised adjudicatory mechanisms and a willingness to accord them functional autonomy.

In R. Gandhi v. Union of India¹⁵, the Supreme Court considered the constitutional validity of the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT), established pursuant to the Companies (Amendment) Act, 2002. While affirming that Parliament had the legislative competence to establish these tribunals, the Court held that the particular scheme for the NCLT and NCLAT suffered from serious constitutional infirmities. Relying on L. Chandra Kumar case¹⁶, the Court reiterated that although Parliament may transfer jurisdiction from the High Courts to specialised tribunals, such tribunals cannot operate as substitutes for the High Courts nor exclude their supervisory jurisdiction under Articles 226 and 227. The Court further held that the judiciary has the power to examine whether the qualifications, eligibility conditions, and selection processes for tribunal members adequately safeguard judicial independence. It held that tribunals exercising jurisdiction previously vested in the High Courts must be composed predominantly of members with judicial experience and cannot be staffed mainly by civil servants or the executive. Applying these principles, the Court found multiple defects in the structure of the NCLT and NCLAT. These infirmities undermined the principles of judicial independence, and ultimately of separation of powers. Consequently, while upholding the idea of the NCLT and NCLAT, the Court held that they could not be constituted until the identified structural deficiencies were rectified.

In the seminal Madras Bar Assn. v. Union of India¹⁷, a five-Judge Constitution Bench examined the validity of the National Tax Tribunal Act, 2005. The 2005 Act sought to establish the National Tax Tribunal (NTT) as a single national appellate body to hear appeals from Tax Tribunals, replacing the appellate review of the High Courts. The Court found that the NTT sought not to supplement, but to supplant the High Courts in adjudicating questions of tax law. The 2005 Act did not provide adequate safeguards of judicial independence and vested excessive control in the executive. As a result, the Tribunal lacked the features necessary to discharge judicial functions previously entrusted to High Courts. The Court therefore struck down the 2005 Act, the first instance where a tribunal-creating statute was invalidated entirely for failing to meet constitutional requirements.

In Madras Bar Assn. v. Union of India¹⁸, the Supreme Court revisited the constitutional validity of the NCLT and NCLAT, after enactment of the Companies Act, 2013 (2013 Act). The petitioners argued that the new statute ignored the binding directions issued in the case of R. Gandhi¹⁹ on the structural safeguards required for these tribunals, and also contended relying on Madras Bar Association (I) that the very creation of the NCLT was unconstitutional. Justice Sikri reaffirmed the position taken in the case of R. Gandhi, holding that the Parliament is competent to establish tribunals on subjects within its legislative competence, and the creation of NCLT/NCLAT is not per se unconstitutional. However, the Court accepted the petitioners’ contention that several provisions of the 2013 Act particularly those regulating the qualifications of judicial and technical members, the composition of the Selection Committee, and aspects of tenure failed to satisfy the standards laid down in the case of R. Gandhi for ensuring judicial independence. These provisions were accordingly struck down. At the same time, the Court distinguished the Madras Bar Association (I) judgment, characterising it as an exceptional situation where the statutory scheme was wholly incompatible with constitutional principles, whereas in the case of NCLT/NCLAT, constitutional defects could be remedied without invalidating the Tribunal itself.

In Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., the Supreme Court again criticised the structural consequences of tribunalisation.²⁰ The Court expressed concern that tribunals had come to function as substitutes for High Courts without being subject to comparable safeguards of independence, appointment standards, or tenure. The Court noted that bypassing the High Courts through direct appeals to the Supreme Court undermines access to justice and risks reducing the Supreme Court to a routine appellate forum, eroding its constitutional role. Relying on L. Chandra Kumar²¹ and Madras Bar Association (I), the Court observed that tribunalisation cannot be justified merely by legislative competence or claims of efficiency, and that provisions such as centralised location, short tenures, executive-dominated appointments, and direct statutory appeals raise serious concerns for the Rule of Law. Directing the Law Commission to undertake a comprehensive review of tribunal composition, appellate structure, and the exclusion of the High Court’s jurisdiction, the judgment reflected a deeper constitutional concern, that is, unchecked tribunalisation may weaken, rather than strengthen, India’s adjudicatory framework.

Rojer Mathew, Madras Bar Association VI and the delegation doctrine

In Rojer Mathew v. South Indian Bank Ltd.²², a Constitution Bench examined the constitutional validity of Part XIV, Finance Act, 2017, which reorganised tribunals and delegated extensive rule-making power to the executive and the Tribunal Rules, 2017 framed under it. The court’s inquiry centred on the constitutional limits of tribunalisation, the separation of powers, judicial independence, and the institutional role of High Courts and the Supreme Court.²³ The Court left the constitutional question, i.e., whether the Finance Act, 2017 could validly be enacted as a Money Bill to a larger Bench, it delivered a decisive ruling on the structure of tribunals. The Court struck down the Tribunal Rules, 2017 in their entirety for violating the constitutional standards of judicial independence laid down in the cases of L. Chandra Kumar²⁴, R. Gandhi²⁵, and Madras Bar Association (I) & (II). The Court unanimously invalidated the composition of the search-cum-Selection Committees under the Tribunal Rules, 2017, holding that executive dominance undermined judicial independence. The Court held that the Rules gave excessive control to the executive in appointments, permitted under-qualified technical members to replace Judicial Members, created short tenures, and allowed removal procedures dominated by the executive all of which undermined the judicial character of tribunals. This is particularly interesting because the Court reaffirmed that tribunalisation is constitutionally permissible only when tribunals function as independent adjudicatory bodies, comparable in competence and security to the courts whose jurisdiction they replace or supplement. The judgment signals a broader structural concern: Tribunal reform cannot occur piecemeal. The Court recognised that the fragmented tribunal system requires systemic reform by directing reconsideration of statutory appeals to the Supreme Court and by endorsing the need for an independent National Tribunals Commission. Rojer Mathew is an important reaffirmation that tribunalisation must strengthen rather than weaken the constitutional scheme of justice, and that any attempt to dilute judicial independence through the back door of statutory scheme will not withstand constitutional scrutiny.

More recently, in Madras Bar Assn. (6) v. Union of India²⁶, the Supreme Court struck down the core provisions of the Tribunals Reforms Act, 2021 (2021 Act). The Court held that the 2021 Act impermissibly overrides binding judicial precedents (under Article 141), as it re-enacted provisions previously struck down in the cases of Madras Bar Assn. v. Union of India²⁷ and Madras Bar Assn. v. Union of India²⁸. The Court held that the Act’s provisions prescribing a minimum age of eligibility of 50 years, a short tenure of four years, the requirement of a two-name panel for selection, and executive control over service conditions were unconstitutional, as they violated Articles 14, 21, and 50, as well as the basic structure principles of separation of powers and judicial independence. Consistent with the other judgments, this judgment reaffirmed that tribunals established under Articles 323-A and 323-B must function as “real substitutes” for courts, exercising comparable independence. The Court rejected the Union’s contention that Parliament could re-enact invalidated provisions without addressing their constitutional defects, observing that “merely shifting the same content does not cure constitutional defects”. The decision provided relief to tribunal members appointed prior to the 2021 Act, protecting their tenure and service conditions.

The Court also directed the establishment of an independent National Tribunals Commission within four months, with authority over appointments, service conditions, and the administration of all tribunals, thereby removing such control from the Ministry of Finance and other executive departments. The judgment held that repeated legislative attempts to circumvent and dilute the court’s directions on tribunal independence constitute non-compliance with the Rule of Law. This decision marks a crucial judicial scrutiny of tribunalisation jurisprudence, signaling that doctrinal reaffirmation can transform into institutional mandamus; without concrete structural reform (for instance, an independent Commission), further constitutional invalidations may follow.

A puzzling picture

The trajectory of tribunalisation in India reflects an interesting and nuanced constitutional project caught between doctrine and practice. From the cases of S.P. Sampath Kumar²⁹ to L. Chandra Kumar³⁰, R. Gandhi³¹, Madras Bar Association cases, and Rojer Mathew³², the Supreme Court has consistently reaffirmed that tribunals may discharge judicial functions only within a framework that preserves the independence, competence, and supervisory role of Constitutional Courts. In practice, post L. Chandra Kumar case, this doctrine of structural safeguards has not translated into legislative compliance. Repeated legislative attempts to assert executive control through appointments, tenure, qualifications, or appellate design demonstrate the limits of doctrinal solutions in the absence of aligned institutional efforts.³³

This tension is most visible in the appellate structure paradox and the independence deficit that afflict the Tribunal system today. Though tribunals were created to relieve courts and promote specialised adjudication, direct appeals to the already overburdened Supreme Court or High Court Division Benches exacerbate delay rather than alleviate it. Likewise, the efficiency justification for tribunals falls short when they lack the independence necessary to meaningfully scrutinise executive action. In practice, the promise of decentralised, specialised adjudication may instead produce a system structurally predisposed to executive deference.

What emerges from this paradox is doctrinal exhaustion: The courts have, over the years, laid down the constitutional framework for tribunalisation, but the problem of executive dominance plaguing tribunals highlights that the issue is structural and not doctrinal. Without institutional reforms that protect tribunals from political incentives, such as an independent National Tribunals Commission, transparent appointment criteria, and safeguards against executive control, the constitutional framework will remain ineffective.

Tribunalisation sits at a constitutional crossroads. It is a valuable instrument of the modern regulatory and welfare state, offering expertise, accessibility, and efficiency in adjudication. At the same time, its constitutional legitimacy depends on whether tribunal design can adequately secure independence and integrity. Unless reform goes beyond statutory tinkering, tribunalisation will remain a paradox, broadly permissible in form but susceptible to constitutional challenge.

This conundrum is reflected in practice through staggering statistics. The original justification for tribunals was that they would expedite justice and reduce judicial backlog, but in several sectors this promise is unfulfilled.³⁴ The example of the DRTs is illustrative. Over 16,500 high-value recovery matters involving claims worth nearly Rs 4.98 lakh crores are pending before three DRTs in Delhi, due to staffing shortages and inadequate infrastructure.³⁵ As of January 2024, over 2 lakh cases were pending across 39 DRT Benches nationwide.³⁶ Original applications under Section 19(24), Recovery of Debts [and Bankruptcy] Act, 1993 are to be decided within 180 days, and securitisation applications under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) are expected to conclude within 120 days. In practice, most of these matters extend well beyond these timelines. Similar delays are visible elsewhere, the NCLT had 20,671 cases pending as of November 2024, and 30,672 interlocutory applications awaiting disposal as of March 2025.³⁷ The NCLAT continues to face uneven burdens, 2515 cases pending are before the New Delhi Bench as compared to 799 before the Chennai Bench. The Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has a backlog of 73,235 cases as of October 2024 despite improved disposal rates.³⁸ This stark delay in tribunals, specifically designed to deliver timely outcomes underscores how structural deficits can subvert the welfare/efficiency logic that underpins justification for tribunalisation.

During a recent hearing on 26 February in the latest Madras Bar Assn. v. Union of India³⁹, the Supreme Court expressed serious concern that several tribunals are functioning in a state of near-complete unaccountability, describing them as a “no man’s land”.⁴⁰ The Court, capturing its dissatisfaction with how tribunalisation has unfolded in practice, remarked, “What mess have we created. In the over-anxiety of not taking much burden, we have created this,” capturing its dissatisfaction with how tribunalisation has unfolded in practice. The three-Judge Bench emphasised the need for a uniform framework to ensure continuity, competence, and responsibility in tribunal functioning. These observations are important because they reflect a shift from reiterating constitutional safeguards to scrutinising how tribunals actually perform. Read with earlier decisions calling for structural reforms, including the establishment of an independent National Tribunals Commission, these remarks suggest the court’s growing intolerance of non-compliance with the safeguards governing tribunals. They underscore the court’s concern that tribunalisation must operate in practice as envisioned in doctrine; failing this, renewed judicial intervention may become inevitable.