ROLE OF TRIBUNALS IN INDIAN LEGAL SYSTEM

(Project for assessment in legal methods and legal systems)

SUBMITTED TO: SUBMITTED BY:

Mr. Aniruddh Panicker CHARMI KHAMESRA AND
ISHITESHWARI
Faculty of Legal Methods and Legal Systems UG Sem- I

National Law University, Jodhpur

Final Word Count-

 ACKNOWLEDGEMENTS
We would like to thank Mr. Aniruddh Panicker, Faculty of Legal Methods and Legal Systems
for giving us an opportunity to work on this project.
We are thankful to the library staff and IT staff for providing all necessary resources without
which the completion of this project wouldn’t have been possible.
Our note of acknowledgement would be incomplete without expressing our gratitude towards our
families for being a constant source of support, motivation and encouragement and our friends
for giving their valuable suggestions for this project.

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 RESEARCH METHODOLOGY

Subject: Legal Methods and Legal Systems

Topic: ROLE OF TRIBUNALS IN INDIAN LEGAL SYSTEM

This project has been done by researching various primary and secondary sources of information
and compiling all the information together. All the information has been sourced from judgments
and relevant articles

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 SCOPE

The aim of this project is to examine the concept of doctrine of prospective overruling and look
at its impact in India. We have also analysed the topic in a critical manner after going through
the advantages and disadvantages of prospective overruling. Through this project ,we have given
various examples of cases in India where prospective overruling was used and defined in
different ways. We have taken all efforts to make sure that the project is accurate and error free.

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 TABLE OF CONTENTS

WHAT IS PROSPECTIVE OVERRULING?.................................................................................6

ORIGIN OF DOCTRINE OF PROSPECTIVE OVERRULING..Error! Bookmark not defined.

PROSPECTIVE OVERRULING IN INDIA................................................................................12

1. I.C.GOLAKNATH V. STATE OF PUNJAB........................................................................13

FACTS OF THE CASE:............................................................................................................13

ISSUES OF THE CASE:...........................................................................................................13

JUDGEMENT:..........................................................................................................................13

DOCTRINE OF PROSPECTIVE OVERRULING:.................................................................13

MINORITY JUDGEMENT......................................................................................................15

OTHER CASES RELATED TO DOCTRINE OF PROSPECTIVE OVERRULING.................16

Ashok Kumar Gupta v. State of Uttar Pradesh..........................................................................16

Sarwan Kumar v. Madan Lal Aggarwal....................................................................................16

Naryanan Nair v. State of Kerela...............................................................................................16

Indra Sawhney v. Union of India...............................................................................................16

DIFFERENCE IN APPLICATION OF DOCTRINE IN INDIA AND USA...............................18

CRITICISMS ON PROSPECTIVE OVERRULING....................................................................19

CONCLUSION..............................................................................................................................21

BIBLIOGRAPHY..........................................................................................................................22

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 INTRODUCTION

WHAT ARE TRIBUNALS ?

Tribunals are a “Judgment seat; a court of justice; board or committee appointed to adjudicate on
claims of a particular kind.”1Tribunal is a quasi judicial institution that is set up to deal with
problems such as resolving administrative or tax related disputes . It performs a number of
functions like adjudicating disputes , determining rights between contesting parties. "2.
Also,
It makes administrative decisions
It reviews an existing administrative decision
A tribunal generally is any person or any institution having an authority to judge , adjudicate on ,
or to determine claims or disputes whether or not it is called tribunal in its title
How the term ‘Tribunals’ was derived ?
The term tribunal is derived from the word ‘tribunes’ that is ‘Magistrates of the classical roman
republic’ . A tribunal is referred to as office of tribunes that is a roman official under the
monarchy and the republic with the function of protecting the citizens from arbitrary action by
the aristocrat magistrates.
Why the need for tribunals was felt ?
The cases and pendency of cases before the judicial system is a long existing problem since
the colonial era . In 1950, the number of cases pending before the supreme court was only 771 .
by 1978 the number had gone to 23,092 crossing 1 lakh in 1983 and has continued to increase
thereafter standing at 63,843 as of may 2014 this is an extraordinary increase within a single
court the supreme court . The earliest report suggesting a slew of reforms to handle backlog and
delay was in 1924 report of Justice ranking committee .
To overcome the situation that arose due the pendency of cases in various courts, the Tribunals
have been established under different statutes.

1
Thakker, C.K., Administrative Law, Eastern Book Company: Lucknow, 1996, p.226.
2
N.K Jayakumar “Judicial Process in India” APH Publishing Corporation.

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The tribunals were set up to reduce the workload of courts , to expedite decision and to provide a
forum which would be manned by lawyers and experts in the areas following under the
jurisdiction of the tribunals.
They take the load of the already overburdened courts.

HOW THE CONCEPT OF TRIBUNALS WAS INCORPORATED IN THE

CONSTITUTION

1. Tribunals were not originally a part of constitution of india . They were introduced in
1985 Tribunals were constituted with the objective of delivering speedy, inexpensive and
decentralised adjudication of disputes in various matters.
2. The 42 amendment act introduced these provisions in accordance with the
recommendations of the Swaran Singh CommitteeThe Amendment introduced Part
XIV-A to the Constitution. Tribunals were not part of the original constitution, it was
incorporated in the Indian Constitution by 42nd Amendment Act, 1976.
3. Article 323-A deals with Administrative Tribunals
4. Article 323-B deals with tribunals for other matters.

Under Article 323 B, the Parliament and the state legislatures are authorised to provide
for the establishment of tribunals for the adjudication of disputes relating to the
following matters:
 Taxation
 Foreign exchange, import and export
 Industrial and labour
 Land reforms
 Ceiling on urban property
 Elections to Parliament and state legislatures
 Food stuff
 Rent and tenancy rights
While Article 323 A contemplates the establishment of tribunals for public service matters
only, Article 323 B contemplates the establishment of tribunals for certain other matters
(mentioned above).
While tribunals under Article 323 A can be established only by Parliament, tribunals
under Article 323 B can be established both by Parliament and state legislatures with respect
to matters falling within their legislative competence.

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Under Article 323 A, only one tribunal for the Centre and one for each state or two or more
states may be established. There is no question of the hierarchy of tribunals, whereas
under Article 323 B a hierarchy of tribunals may be created.

LEGISLATIVE GENESIS OF TRIBUNALS

For a long time, a search was going on for a mechanism to relieve the courts of India, including

High Courts and the Supreme Court, from the burden of service litigation which formed a

substantial portion of pending litigation. 3 The first Law Commission of India in its 14 th Report on

“Reforms of Administration of Justice” recommended for the establishment of tribunals

consisting of judicial and administrative members to decide service matters. 4 There were two

reasons for this recommendation, firstly, these tribunals will provide speedy remedy in cases of

injustice and would be less expensive; and secondly, to enable the ordinary civil courts to

summarily dispose of frivolous litigation.5 The Central Government appointed a committee

under the Chairmanship of Justice J.C. Shah of the Supreme Court of India in 1969, which again

suggested for the establishment of an independent tribunal for hearing the service matters, to

reduce the backlog of cases in the High Courts. 6 However, the Sixth Law Commission was

against the creation of tribunals for service matters as it impinges upon the appellate jurisdictions

of the High Courts and Supreme Court.7

3
Aman, supra note 4.
4
Law Commission of India, Reform of Judicial Administration, Report No.14, (1958).
5
Arun K. Thiruvengadam, Tribunals, in Oxford handbook of the Indian Constitution, 412-31 (2016).
6
Justice J.C. Shah Committee, Report of the Committee on the High Court Arrears, (1972).
7
Law Commission of India, Structure and Jurisdiction of the Higher Judiciary, Report No. 58, (1974).

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Finally in 1975, Swaran Singh Committee was set up to suggest amendments to the

Constitution, which again recommended for the setting up of service tribunals.8 The committee

took note of congestion of cases in the High Courts and it was against this backdrop that

Parliament passed Constitution (Forty- second Amendment) Act, 1976 which added Part XIV-A

in the Constitution.9 It introduced two new Articles - Articles 323-A and 323-B in the

Constitution, which enabled Parliament and State Legislatures to constitute administrative

tribunals and tribunals for other matters respectively.10

ARTICLE 323A Administrative tribunals Parliament may by law, provide tribunals to adjudicate

the civil service matters, appointments to public service and the post under Union or any of the

State matter. Parliament was further prescribed the power of Jurisdiction, procedure and

authority of such tribunals

ARTICLE 323B Tribunals for other matter The appropriate legislation, by law provide for the

adjudication or4 trials by the tribunals of any dispute complaint or offence with respect to all the

matters specified in clause 2. . i

,;

1. After Part XIV, it inserted Part XIV-A (Articles 323-A and 323-B) by enabling

Parliament to constitute administrative tribunals for the purposes specified therein.11

However, Articles 323-A and 323-B were enabling in nature and not self- executor in as much as

they themselves did not take away the jurisdiction of High Courts under Article 226 or Article
8
Swaran Singh Committee Report, (1976) 2 SCC (Jour) 45.
9
M.P. JAIN, INDIAN CONSTITUTIONAL LAW, (Wadhwa and Co. Nagpur, New Delhi, 5th ed., Reprint 2006).
10
Id.
11
M.P. JAIN, supra note 25.

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227 of the Constitution, but they only enabled Parliament or the appropriate Legislature to make

laws to set up such tribunals and to exclude the jurisdiction of the High Court under Article 226

or Article 227.

By the Constitution (Forty- Fourth Amendment) Act, 1978, Article 227 was amended and

jurisdiction of High Courts over administrative tribunals had been restored. No amendment,

however, was made in Part XIV-A, as inserted by the Constitution (Forty- Second Amendment)

Act, 1976 and exclusion of jurisdiction of all courts and tribunals constituted in exercise of

powers under Articles 323-A and 323-B.12

12
Id.

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 PROSPECTIVE OVERRULING IN INDIA

The doctrine of prospective overruling was used for the first time in the case of I. C. Golaknath
v. State of Punjab13. Since then it has been applied in many case laws and has also been a point
of debate of many jurists. The doctrine is defined as a modern doctrine suitable for a fast moving
society. It does not do away with the doctrine of state decisis but confines it to past transactions.
While in strict theory it may be said that the doctrine 'involves the making of law', what the court
really does is to declare the law but refuse to apply it retroactively to past cases. It is really a
practical solution reconciling the two conflicting doctrines, namely, that a court finds the law and
make law and it finds law but restricts its operation to the future. It enables the court to bring
about a smooth transition by correcting its errors without disturbing the impact of those errors on
past transactions. By the application of this doctrine the past may be preserved and the future
protected. Our Constitution does not expressly or by necessary implication speak against the
doctrine of prospective overruling. However, in India this doctrine has been subject to lot of
criticisms for having adopted the concept from America where the conditions are completely
different.

13
I.C. Golaknath v. State of Punjab, AIR 1976 SC 1463

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 1. I.C.GOLAKNATH V. STATE OF PUNJAB

FACTS OF THE CASE:

The family of Henry and William Golak Nath held over 500 acres of farmland in Jalandhar,
Punjab. In the phase of the 1953 Punjab Security and Land Tenures Act, the state government
held that the brothers could keep only thirty acres each, a few acres would go to tenants and the
rest was declared 'surplus'. This was challenged by the Golak Nath family in the courts and the
case was referred to the Supreme Court in 1965. The family filed a petition under Article 32
challenging the 1953 Punjab Act on the ground that it denied them their constitutional rights to
acquire and hold property and practice any profession (Articles 19(f) and (g)) and to equality
before and equal protection of the law (Article 14). They also sought to have the Seventeenth
Amendment – which had placed the Punjab Act in the Ninth Schedule – declared ultra vires. 14

ISSUES OF THE CASE:

The issues involved were whether Amendment is a “law” under the meaning of Article 13(3)( a),
and whether Fundamental Rights can be amended or not.

JUDGEMENT:

The judgement reversed the Supreme Court's earlier decision which had upheld Parliament's
power to amend all parts of the Constitution, including Part III related to Fundamental Rights.
The judgement left Parliament with no power to curtail Fundamental Rights.

DOCTRINE OF PROSPECTIVE OVERRULING:

Justice Subba Rao, a judge in I. C. Golaknath v. State of Punjab used the doctrine of
prospective overruling to preserve the constitutional validity of the Constitution (Seventeenth
Amendment) Act, legality of which had been challenged. He drew protective cover offered by
the doctrine over the impugned amendments while manifestly holding that the impugned

14
Wikipedia, I.C. Golaknath and Ors. vs State of Punjab and Anrs.(15th August,2018,6:30)
https://en.wikipedia.org/wiki/I.C._Golaknath_and_Ors._vs_State_of_Punjab_and_Anrs.#Judgement

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amendments abridged the scope of fundamental rights. Justifying his stand, he held that:
“What then is the effect of our conclusion on the instant case?”. Having regard to the history of
the amendments, their impact on the social and economic affairs of our country and the chaotic
situation that may be brought about by the sudden withdrawal at this stage of the amendments
from the Constitution, he thought that considerable judicial restraint was to be called for. He then
went on to declare that the decision will not affect the validity of the constitution (Seventeenth
Amendment) Act, 1964, or other amendments made to the Constitution taking away or abridging
the fundamental rights. He further declared that in future Parliament will have no power to
amend Part III of the Constitution so as to take away or abridge the fundamental rights15
To avoid any sort of confusion, the Supreme court laid down three rules regarding prospective
overruling. They are:
(1) The doctrine of prospective overruling can be invoked only in matters arising under our
Constitution;
(2) It can be applied only by highest court of the country, ie. The Supreme Court as it has the
constitutional jurisdiction to declare law binding on all the Courts as it has India;
(3) The scope of the retrospective operation of the law declared by the Supreme Court
superseding its earlier decisions is left to its discretion to be moulded in accordance with- the
justice of the cause or matter before it.16

It is very important to note that, though it was initially mentioned that the doctrine of prospective
overruling was to be invoked only for matters of the constitution, application of the doctrine of
prospective overruling has been extended to the interpretation of the ordinary statutes as
well.  In the cases of Waman Rao v. Union of India  , Atam Prakash v. State of Haryana  , Orissa
Cement Ltd. v. State of Orissa  , Union of India v. Mohd. Ramzan Khan  and Managing Director,
ECIL v. B. Karunakar  the device of prospective overruling was resorted to even in the case of
ordinary statutes.

15
legalserviceindia,propective overruling,(15th aughust,2018,4:30)
http://www.legalserviceindia.com/articles/prul.htm
16
I.C. Golaknath v. State of Punjab, AIR 1976 SC 1463

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MINORITY JUDGEMENT

The judges who delivered the minority judgment in the Golaknath case dissented with the view
of the invocation of the doctrine of prospective overruling. They seemed to rest their argument
on the traditional Blackstonian theory where they said that courts declare law and a declaration
being the law of the land takes effect from the date the law comes into force. They further said
that it would be loathsome to change the above principle and supersede it by the doctrine of
prospective overruling.
.

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 OTHER CASES RELATED TO DOCTRINE OF PROSPECTIVE OVERRULING

Ashok Kumar Gupta v. State of Uttar Pradesh

Doctrine of Prospective Overruling was seen as a method evolved by the courts to adjust
competing rights of parties so as to save transactions whether statutory or otherwise, that were
affected by the earlier law.

 Sarwan Kumar v. Madan Lal Aggarwal17

In this case, the Court defined prospective overruling as, “Under the doctrine of "prospective
overruling" the law declared by the Court applies to the cases arising in future only and its
applicability to the cases which have attained finality is saved because the repeal would
otherwise work hardship to those who had trusted to its existence."

Naryanan Nair v. State of Kerela18

 In this case, Mathew J. explains the thrust of the doctrine by observing that it was not meant to
supplant the traditional Blackstonian doctrine but was essentially meant to protect the interests of
the litigants when judicial overruling of a precedent entailed a change in the law. In effect, what
is contemplated through the doctrine is to lay down the scope of the pronouncement in a
particular case with regard to its applicability to future cases and disputes. And the primary
interest behind the courts actually applying this doctrine is the fact, as already mentioned, that
courts always want to do justice and may apply various criteria to reach their ends. In this effort
of theirs, there are instances when courts have themselves have invoked and laid down effective
principles which will guide them in their endeavour and the above doctrine bears testimony to
this point.

Indra Sawhney v. Union of India19

17
Sarwan Kumar v. Madan Lal Aggarwal, 2003(4) SCC 147
18
Narayan Nair v. State of Kerala, AIR 1971 Ker 98.
19
Indra Sawhney Etc. Etc vs Union Of India And Others, Etc., AIR 1993 SC 477 : 1992 Supp (3)SCC 217

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In this case, Justice Jeevan Reddy decided that the ruling in this case would be effective after
five years from the date of the ruling. The Court thus postponed giving effect to the mandal
ruling for five years from the date of the judgment. This case not only sees the extension of the
application of the doctrine but even the elongation of the time period when the judgment would
be effective. In this case, the ruling of Rangachari was overturned. This case had been in
operation for about three decades under which a number of persons of the SCs and STs had got
promotion. But, the Supreme Court showed some judicial creativity in the Mandal case so as to
bring about a smooth transition instead of holding the ratio in Rangachari invalid from the date
of ruling. If this was to happen, then all the promotions that accrued to the SC and ST candidates
would stand invalidated and this would cause utter chaos and confusion. To avoid such a
situation, Justice Jeevan Reddy invoked this doctrine and held that the judgement in the Mandal
case would not affect the prior transactions and those transactions already contemplated under
the scheme. So, he decided that the judgment would be effective only five years hence.

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 DIFFERENCE IN APPLICATION OF DOCTRINE IN INDIA AND USA

It is pertinent to note that the doctrine of prospective overruling, which has its roots in the
American judicial system and from where the import was drawn from in the Golaknath case, has
been applied in a very narrow manner by Justice Subba Rao as compared to how it is applied in
America. In the U.S.A., this doctrine had been applied in cases of changes in judicial views as
regards the scope and interpretation of constitutional provisions generally.

In United States, the doctrine was used to hold the impugned law invalid from the date of the
decision and not earlier. But, in Golaknath case, all the constitutional amendments were to
remain valid for ever; only the principle of non-amendability of fundamental rights was to apply
in future.

If the American doctrine had been strictly imported into India, then the constitutional
amendments would have been declared invalid from the date of the judgment. Therefore, it is
clear that the Supreme Court has diluted the application of the doctrine based on the needs and
the social scenario prevalent at that time.20

20
M.V. Pratap Kumar, Prospective Overruling,( www.legalservicesindia.com/ articles/prul.html)

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 CRITICISMS ON PROSPECTIVE OVERRULING

Some of the problems that were pointed out were:

1. Cases are decided based not on existing law but on prior law which is now invalid.
2. This gives rise to problems in the functioning of the judiciary as the judge has to determine the
time frame in which the case arose and decide accordingly.21

The people against prospective overruling were of the opinion that retrospective overruling was
better because it causes less problems. In the case of in Narayani Bai v. State of Maharashtra,
even the Judges for whom Subba Rao CJ spoke did not accept the doctrine of prospective
overruling in all its implications as understood by the American Courts
.
HM Seervai ,an eminent Indian jurist has been critical of the doctrine of prospective overruling
or invalidity in the second edition his book Constitutional Law of India. He is basically against
the uncritical adoption of the doctrine into our Constitutional System as he thinks that it might
cause radical changes in the interpretation of the Supreme most law of the land and also in the
judicial process in the country. His basic criticism is against the adoption of this doctrine into our
judicial system as he feels that there are fundamental differences in the roles assigned to the
Supreme Court of India under the Constitution as against the American Supreme Court
and hence a doctrine originated there cannot be imported into our system. The base for his
criticism is the Deep Chand case where a law being held invalid for infringing the fundamental
rights was declared to be void ab initio. According to Seervai, the judges in the Golak nath case
agreed that the first, fourth and seventeenth amendments were infringing the fundamental rights
and yet were not overruled and hence following the Deep Chand case; these amendments should
be treated as if they never existed. So if these amendments never existed, so how can the doctrine
of prospective overruling revive them? Thus he contends that these amendments would remain
valid without any constitutional sanction because these should be treated as void ab initio

21
nls.ac, Prospective Overruling: Need for a Relook(15th august,2018,7:00 pm)
https://www.nls.ac.in/students/SBR/issues/vol10/1014.pdf

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It is important to note that HM Seervai’s criticisms were not sensible as the judges in the Golak
Nath case never mentioned that these amendments would become invalid from the date decided
by the court.

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 CONCLUSION

We have seen through numerous case laws as to how this doctrine was incorporated in to Indian
judicial system for the first time in Golak Nath’s case by then C.J. Subba Rao
It is evident that the doctrine of prospective overruling has been severely criticised in India based
on various factors and also it is used in only less number of cases as compared to retrospective
overruling. However even the 'retrospective' effect of a change in the law can have disruptive
and seemingly unfair consequences. We live in an extremely dynamic society, and so if laws
have to govern us, constant changes have to be made so as to suit our present needs. It is true that
we cannot recklessly adopt some doctrine which was used in America without critically
analysing it and seeing if it suits the nature of law in our country or not. The Supreme Court has
effectively by laying down certain propositions since incorporation of the doctrine into our
system kept a check on it. The power of deciding whether a decision has to be applied
retrospectively or prospectively lies in the hands of the Supreme court. The doctrine has to be
applied within a specified scope so as to meet the ends of justice. It is important to note that
changes have been made in the doctrine to suit our Indian system and furthermore even the scope
of the doctrine has been extended to ordinary statutes as well.

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 BIBLIOGRAPHY
 SCC Online
 https://en.wikipedia.org/wiki/
I.C._Golaknath_and_Ors._vs_State_of_Punjab_and_Anrs.#Judgement
 https://www.nls.ac.in/students/SBR/issues/vol10/1014.pdf
 http://indiianconstitution.blogspot.com/2008/02/doctrine-of-prospective-
overruling.html
 http://www.legalserviceindia.com/articles/prul.htm
 https://www.lawteacher.net/free-law-essays/administrative-law/jurisprudence-
prospective-overruling-in-reference-administrative-law-essay.php

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i