12 Jan 2011

Tribunal different from Court: Supreme Court explains

Created under the seal of the Government and performing the judicial functions, the legal status of courts is often a question of considerable debate and importance. The issue arises primarily on account of the distinction between 'court' and 'tribunal' in as much as the ramifications and areas of competence between the two often vary. As far as India is concerned, legally speaking all Courts are Tribunals but all Tribunals are not courts in as much as there are certain other essential attributes of a Court which a tribunal may not carry.
In its recent decision in S.D. Joshi v. High Court of Judicature at Bombay (later reported as AIR 2011 SC 848) the Supreme Court explained the difference between the two concepts and institutions in the following terms;
@pg. 24 This question need not detain us any further, as the law in this regard is no more res integra and stands finally stated by a Constitution Bench of this Court in the case of Harinagar Sugar Mills Ltd. (supra). Justice Hidayatullah, as His Lordship then was, while giving his own reasons concurred with other Judges in allowing the appeal setting aside the order of the Central Government. While commenting upon the maintainability of the appeals, he drew a distinction between a ‘Court’ and a ‘Tribunal’ and dealt with the question as to whether the Central Government, while hearing this appeal, was a Tribunal and held as under:-
“31. With the growth of civilization and the problems of modern life, a large number of Administrative Tribunals have come into existence. These tribunals have the authority of law to pronounce upon valuable rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary courts of civil judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to courts, but are not courts. When the Constitution speaks of “courts” in Article 136, 227 or 228 or in Articles 233 to 237 or in the Lists, it contemplates courts of civil judicature but not tribunals other than such courts. This is the reason for using both the expressions in Articles 136 and 227.
By “courts” is meant courts of civil judicature and by “tribunals”, those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of theattributes of the State, and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary courts of civil judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinction is that courts have “an air of detachment”. But this is more a matter of age and tradition and is not of the essence. Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test insufficient. Lord Sankey, L.C. in Shell Company of Australia v. Federal Commissioner of Taxation observed:
“The authorities are clear to show that there are tribunals with many of the trappings of a court, which, nevertheless, are not courts in the strict sense of exercising judicial power.... In that connection it may be useful to enumerate some negative propositions on this subject: 
1. A tribunal is not necessarily a court in this strict sense because it gives a final decision. 
2. Nor because it hears witnesses on oath. 
3. Nor because two or more contending parties appear before it between whom it has to decide. 
4. Nor because it gives decisions which affect the rights of subjects. 
5. Nor because there is an appeal to a court. 
6. Nor because it is a body to which a matter is referred by another body. See Rex v. Electricity Commissioners”
32. In my opinion, a court in the strict sense is a tribunal which is a part of the ordinary hierarchy of courts of civil judicature maintained by the State under its constitution to exercise the judicial power of the State. These courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction. The word “judicial”, be it noted, is itself capable of two meanings. They were admirably stated by Lopes, L.J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson in these words:
“The word ‘judicial’ has two meanings. It may refer to the discharge of duties exercisable by a Judge or by Justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind — that is, a mind to determine what is fair and just in respect of the matters under consideration.”
That an officer is required to decide matters before him “judicially” in the second sense does not make him a court or even a tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest.
Now, in its functions the Government often reaches decisions, but all decisions of the Government cannot be regarded as those of a  Tribunal. Resolutions of the Government may affect rights of parties, and yet, they may not be in the exercise of the judicial power. 
Resolutions of the Government may be amenable to writs under Articles 32 and 226 in appropriate cases, but may not be subject to a direct appeal under Article 136 as the decisions of a tribunal. The position, however, changes when Government embarks upon curial functions, and proceeds to exercise judicial power and decide disputes. In those circumstances, it is legitimate to regard the officer who deals with the matter and even Government itself as a tribunal. The officer who decides, may even be anonymous; but the decision is one of a tribunal, whether expressed in his name or in the name of the Central Government. The word “tribunal” is a word of wide import, and the words “court” and “tribunal” embrace within them the exercise of judicial power in all its forms. The decision of the Government thus falls within the powers of this Court under Article 136.” 
It was held that all tribunals are not Courts though all Courts are tribunals. This view has been reiterated by this Court, more particularly, in relation to drawing a distinction between a tribunal and a Court. A tribunal may be termed as a Court if it has all the trappings of a Court and satisfies the above stated parameters. Every Court may be a tribunal but every tribunal necessarily may not be a Court. The essential features of ‘Court’ have been noticed by us above and once these essential features are satisfied, then it will have to be termed as a ‘Court’. The statutory provisions of the Family Court squarely satisfy these ingredients and further Presiding Officers of Family Courts are performing judicial and determinative functions and, as such, are Judges. 
‘Judge’ is a generic term and other terms like, Umpire, Arbiter and Arbitrator are only species of this term. A Judge, primarily, determines all matters of disputes and pronounces what is law now, as well as what will be the law for the future and acts under the appointment of the Government. Pollock C.B. in Ex parte Davis [(1857) 5 W.R.523] said, “judges are philologists of the highest orders. They are not mere administrative officers of the Government but represent the State to administer justice.” Thus, we have no hesitation in coming to the conclusion that the Family Court constituted under Section 3 of the Act has all the trappings of a Court and, thus, is a court and the Presiding Officer, that is, Judge of the Family Court is a ‘Judge’ though of limited jurisdiction. 
@ pg 41 A Constitution Bench of this Court in the case of Chandra Mohan v. State of UP [AIR 1966 SC 1987] was concerned with appointments to the posts of District Judges which were challenged by the existing members of the Judicial services on the ground that judicial officer from executive departments, discharging some revenue and magisterial duties, are not members of the judicial services and thus cannot be appointed to such posts. The Court, while  referring to the independence of the judiciary, said that subordinate judiciary in India is in the closest contact with the people and thus their independence should be beyond question. Explaining the words ‘judicial services’ the Court gave the expression a narrower meaning and, while setting aside the appointments so made of the persons other than from judicial services of the State, held as under: 
“16. So far there is no dispute. But the real conflict rests on the question whether the Governor can appoint as District Judges persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a district Judge? The acceptance of this position would take us back to the pre-independence days and that too to the conditions prevailing in the princely States. In the princely States one used to come across appointments to the judicial service from police and other departments. This would also cut across the well-knit scheme of the Constitution and the principle underlying it, namely, the judiciary shall be an independent service. Doubtless if Article 233(1) stood alone, it may be argued that the Governor may appoint any person as a district judge, whether legally qualified or not, if he belongs to any service under the State. But Article 233(1) is nothing more than a declaration of the general power of the Governor in the matter of appointment of District Judges. It does not lay down the qualifications of the candidates to be appointed or denote the sources from which the recruitment has to be made. But the sources of recruitment are indicated in clause (2) thereof. Under clause (2) of Article 233 two sources are given, namely, (i) persons in the service of the Union or of the State, and (ii) advocate or pleader. Can it be said that in the context of Chapter VI of Part VI of the Constitution “the service of the union or of the State” means any service of the Union or of the State or does it mean the judicial service of the Union or of the State? The setting viz. the chapter dealing with subordinate courts, in which the expression “the service” appears indicates that the service mentioned therein is the service pertaining to courts. That apart, Article 236(2) defines the expression “judicial service” to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. If this definition, instead of appearing in Article 236, is placed as a clause before Article 233(2), there cannot be any dispute that “the service” in Article 233(2) can only mean the judicial service. The circumstance that the definition of “judicial service” finds a place in a subsequent article does not necessarily lead to a contrary conclusion. The fact that in Article 233(2) the expression “the service” is used whereas in Articles 234 and 235 the expression “judicial service” is found is not decisive of the question whether the expression “the service” in Article 233(2) must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with district Judges. The expressions “exclusively” and “intended” emphasise the fact that the judicial service consists only of persons intended to fill up the posts of district Judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined “judicial service” in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a district judge.”
Another Constitution Bench of this Court in the case of Statesman (Private) Ltd. v. H.R. Deb & Ors. [AIR 1968 SC 1495] spelt out the distinction between Judicial Office and Judicial function. A challenge was made to the appointment of Presiding Officer, Second Labour Court on the ground that he did not possess essential qualifications as prescribed in Section 7(3) of the Industrial Disputes Act, 1947, as he was holding the office of Executive Magistrate though performing judicial functions as well. The Court held as under:
“11. Lest our meaning be extended by Government to cases under serving of saving under Section 9, we wish to make it clear that the intention of the legislature really is that men who can be described as independent and with sufficient judicial experience must be selected. The mention of High Court Judges and District Judges earlier in the same section indicates that ordinarily judicial officers from the civil judiciary must be selected at least so long as the separation of judiciary from the Executive in the public services is not finally achieved. The appointment of a person from the ranks of civil judiciary carries with it an assurance which is unique. The functions of a Labour Court are of great public importance and  quasi civil in nature. Men of experience on the civil side of the law are more suitable than Magistrates. Persons employed on multifarious duties and in addition performing some judicial functions, may not truly answer the requirement of Section 7 and it may be open in a quo warranto proceeding to question their appointment on the ground that they do not hold essentially a judicial office because they primarily perform other functions. For it cannot be denied that the expression “holding a judicial office” signifies more than discharge of judicial functions while holding some other office. The phrase postulates that there is an office and that that office is primarily judicial. Office means a fixed position for performance of duties. In this case the distinction was unsubstantial because the Magistrate was holding a fixed position for nineteen years and performing functions primarily of a judicial character. The case was not fit for interference by a writ in view of the provisions of Section 9 of the Act.”
The Bench, while dealing with the case of Labour Law Practitioners’ Association (supra), found that this judgment should not be interpreted narrowly to exclude from judicial services, new hierarchy of Civil Courts being set up which are headed by a Judge who could be considered as a District Judge bearing in mind the extensive definition of the term in Article 236. We have no hesitation in noticing that the judgments of the Constitution Bench of this Court in the cases of Chandra Mohan and H.R. Deb (supra) are binding and they have taken a view that the expression ‘judicial service’ has to be confined to the persons appointed as Judges under the relevant Rules and the provisions contained in Articles 233 and 234 of the Constitution. We have already noticed that in the case of Labour Law Practitioners’ Association (supra), the Court was primarily concerned with ensuring that Labour Court Judges who were performing judicial functions should maintain independence of judiciary and they should be placed under the control of the High Court and the appointments to those offices should be made in conformity with Article 234 of the Constitution.
Thus, this judgment can hardly be cited to support the proposition advanced by the petitioners. ‘Judicial service’ as understood in its ‘generic sense’, may impliedly include certain other services for limited purposes but such other services may not be judicial service stricto sensu as contemplated under Articles 233 and 234 of the Constitution.

1 comment:

G B Reddy said...

Dear Mr.Tarun,
Indeed,this write-up is very useful to those who try to understand the distinction between courts and tribunals.The reference to the views of the SC of India and Justice Hidayatulla serves the purpose ver well.Thank u and keep posting more of such information