Evanescing of the Due Process? Abuse of the Writ Jurisdiction in Lieu of Alternate Remedy

Varun Srinivasan

1 Sep 2016 2:50 PM GMT

  • Evanescing of the Due Process? Abuse of the Writ Jurisdiction in Lieu of Alternate Remedy

    Introduction When the members of the Constituent Assembly presented the Constitution of India to our nation, one of its primary and fundamental objectives was not only to provide a sovereign, democratic, republic state, but to secure for its citizens justice, liberty, equality and fraternity by administering adequate safeguards and legal protection in case of any abuse or infringement of...


    When the members of the Constituent Assembly presented the Constitution of India to our nation, one of its primary and fundamental objectives was not only to provide a sovereign, democratic, republic state, but to secure for its citizens justice, liberty, equality and fraternity by administering adequate safeguards and legal protection in case of any abuse or infringement of any right. All our laws as we know of derive its source and power from the Constitution and the writ jurisdiction is one of the special safeguards conferred on the Courts, specifically the Supreme Court and High Courts, to act as guardians of justice while also ensuring that none of these laws infringe or abrogate upon the fundamental fabric of our democracy, which is the Constitution of India.

    But lately, there has been a trend to abuse this power and overtax the already burdened Courts that are in desperate need of judges, in lieu of adopting efficacious civil remedies.The NJAC impasse between the government and the judiciary before the Supreme Court ultimately did little to fill the void and only further contributed to the deficiency of judges rather than resolving it.The legislature understanding the pressure and huge backlog of cases in Courts introduced as early in 1976 through the 42nd Constitutional Amendment, Tribunals, which were specialized forums that sought to reduce the workload on Courts and thereby increase the efficiency in disposing cases. But even after catena of Supreme Court decisions analyzing and interpreting the independence and scope of Tribunals and warning Courts not to interfere in their due process, there have been several instances of High Courts exercising their writ/supervisory jurisdiction, which thereby hampers the functionality of such forums.

    This piece, therefore, analyses the objective of introducing Tribunals while also putting forth scenarios on how the writ jurisdiction has been abused with the assistance of various judicial pronouncements.Reference is also made to specific enactments that are available at the disposal of the litigants and how shrewd legal strategies or wrong admission of writs by judges are adopted in lieu of efficacious remedies, which thereby has been one of the primary contributors to the present backlog of cases in the higher judiciary.

    Tribunals –Evolution & Objective

    The concept and purpose of Tribunals has undergone much debate and scrutiny over recent years.When Tribunals were first introduced, the principal and central objective was not only to provide a forum that would reduce the workload of Courts and thereby expedite delivering verdicts but to also provide a forum which would consist of both lawyers and experts in the areas falling under the jurisdiction of the Tribunal. When the Parliament by way of the 42nd Amendment to the Constitution introduced this concept, it brought about a significant change in the way adjudication of disputes in the country would be perceived. Articles 323A and 323B were the two amendments that officially brought Tribunals into existence. Article 323A provided for the establishment of Administrative Tribunals by the Parliament and Article 323B provided for the establishment of Tribunals to adjudicate on the matters specified in the sub-clause with regard to which the respective Legislature had the power to make laws. For Article 323A to be effective, it was imperative that Parliament enact a law in this regard and, therefore, the Administrative Tribunals Act of 1985 was introduced.Likewise, Tribunals could be set up under Article 323B only if the legislature deemed it necessary and on a legislation being enacted.There are many non-administrative Tribunals, such as the Debt Recovery Tribunal, Compensation Tribunals, Customs Excise and Service Tax Appellate Tribunal and the Income Tax Appellate Tribunal.

    But interestingly though, long before the existence of Tribunals officially came to being in 1976, the concept of Tribunals were present much before as is apparent from the wordings of Article 136 of the Constitution which provides for the term ‘Tribunal’. In fact, Tribunals under the Life Insurance Corporation Act of 1956 and the Industrial Disputes Act of 1947 were in subsistence much before the amendment. Therefore, the introduction of Articles 323A & 323B through the 42nd amendment were only meant to act as an impetus to the Tribunal system while also thereby granting them with legal sanctity and authority for introducing the appropriate legislations. In fact, besides Article 136, from the point of view of jurisdiction, the Tribunals that were existing before the amendment were falling under the ambit of the respective High Courts of a state. Prior to the amendment a writ petition was maintainable either under Article 32 or Article 226 respectively. But subsequent to the amendment, the legislatures’ intention were unambiguous in not adopting a due process for the Tribunals synonymous to that of ordinary Courts, as that would defeat the very purpose of introducing specialized forums which were constituted for efficient outcomes. They therefore, in that process ensured that any appeal from the Tribunal would only directly lie before the Supreme Court under Article 136 and not before the writ jurisdiction of either the Supreme Court or High Courts under Articles 32 and 226 respectively.

    Trappings of a Court

    Although the concept of introducing such specialized forums for an efficacious remedy was a positive step in the right direction, the larger issue that needed to be addressed was as to whether these Tribunals could be considered to possess the judicial authority synonymous with that of a Civil Court. While the term ‘Tribunal’ has not been defined, either in the Constitution or in any of the related legislations, there have been cases wherein Courts have laid down the requisites of Tribunals. In Jaswant Sugar Mills v. Lakshmi Chand(AIR 1963 SC 677),the Supreme Court held that to determine whether an authority acting judicially was a Tribunal or not, the ‘principle incident’ was whether it was invested with the trappings of a Court, such as having the authority to determine matters, authority to compel the attendance of witnesses, the duty to follow the essential rules of evidence and the power to impose sanctions. This decision was followed by another one in the same year in Engineering Mazdoor Sabha v. Hind Cycles, (AIR 1963 SC 874) wherein the Court laid down three essential requisites for a body to be a Tribunal.They were that it had to have the trappings of a Court, it had to be established by the state and that it had to be vested with the inherent judicial power of the state. However the following criteria are only at best illustrative and not exhaustive. Besides judicial precedents, a glance of the Acts would make it evident that there is stark contrast between the functioning of Courts and Tribunals. Most of these Acts, clearly exclude the application of either the Civil Procedure Code of 1905 or the Evidence Act of 1872, which thereby means that Tribunals need not follow any uniform procedure while conducting their proceedings, but they will be bound to follow the principles of natural justice.

    Though both Courts and Tribunals exercise judicial power and discharge similar functions, the following are certain well-recognised differences between Courts and Tribunals as held in Union Of India vs R. Gandhi, (2010) 11 SCC 1. They are:

    • Courts are established by the State and are entrusted with the State's inherent judicial power for administration of justice in general. Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature. Therefore, all courts are Tribunals. But all Tribunals are not courts.

    • Courts are exclusively manned by Judges. Tribunals can have a Judge as the sole member, or can have a combination of a Judicial Member and a Technical Member who is an `expert' in the field to which Tribunal relates. Some highly specialized fact finding Tribunals may have only Technical Members, but they are rare and are exceptions.

    • While courts are governed by detailed statutory procedural rules, in particular the Code of Civil Procedure and Evidence Act, requiring an elaborate procedure in decision making, Tribunals generally regulate their own procedure applying the provisions of the Code of Civil Procedure only where it is required, and without being restricted by the strict rules of Evidence Act.

    From Sampath Kumar to Madras Bar Association: Emergence of Judicial Review

    Subsequent to enacting Articles 323A and 323B respectively, there have been four landmark judgments that have shaped the history of the Tribunal system. The judgment of the constitution bench of the Supreme Court in S.P.Sampath Kumar v. Union of India(AIR 1987 SC 386)kick started the debate in this area. The primary issue raised in Sampath Kumar by way of a writ petition under Article 32 was as to whether the Administrative Tribunals Act and the 42nd Constitutional Amendment were unconstitutional as they excluded judicial review. The contention of the petitioner was that since the amendment only permitted an appeal from the Tribunal under Article 136 and excluded from its purview the writ jurisdiction of Articles 32 and 226, one of the basic and essential features of the Constitution, which is judicial review, was abrogated as a result and this was against the principles as enshrined in Kesavananda Bharati vs. State of Kerala(1973) 4 SCC 225 and Minerva Mills vs. Union of India (AIR 1980 SC 1789).

    The Court while recording its findings went on to hold that although judicial review was part of the basic structure, the Constitutional Amendment did not leave a void in the process of excluding the jurisdiction of High Courts. According to the Court, if another effective institutional mechanism was set up wherein the power of judicial review was vested with the Administrative Tribunal then under such a scenario it would pass the test of constitutionality. As Tribunals were introduced as an effective mechanism to reduce the backlog of cases and assured an efficacious remedy for settlement of disputes, the amendment cannot be faulted with. The Court also further held that since the 42nd Amendment vested with the Tribunals the power of judicial review the exclusion was not erroneous.

    But after almost a decade, a seven judge bench of the Supreme Court in L.Chandrakumar vs. Union of India(1995) 1 SCC 400was constituted to clarify the findings of Sampath Kumar. This bench overruled Sampath Kumar on the point of power of judicial review of the High Courts and this decision still holds good till date. The significant issues that were raised before the Court were as follows:

    • Whether Article 323A(2)(d) and Article 323B(3)(d) abrogated the power of judicial review vested with the High Courts under Articles 226 and 227.

    • Whether the power of superintendence of the High Courts over all Tribunals and Courts situated within their territorial jurisdiction was part of the basic structure.

    • Whether the provision for a technical member would make any difference in deciding the validity of the provision for the constitution of Tribunals.

    The Court after considering all the issues arrived at the conclusion that the power of judicial review vested with the Supreme Court and High Courts under Articles 32 and 226 were inherent constitutional safeguards, which ensured independence of the higher judiciary, were not accessible to the lower judiciary and thereby held that judicial review being part of the basic structure of the Constitution cannot be abrogated by any amendment. Therefore, the exclusion of the jurisdiction clause enacted under the ambit of 323A(2)(d) and Article 323(B)(3)(d) were held to be unconstitutional. The Court further held that since the power of superintendence was a power vested in the higher judiciary over the lower Courts the same was also part of the basic structure and cannot be taken away. On the issue of technical members the Court held that the setting-up of Tribunals was founded on the premise that those with judicial experience and grass-roots experience would best serve the purpose of dispensing speedy justice. The Court also clarified that the Tribunals would continue to act as Courts of first instance in respect of the areas of the law for which they have been constituted.

    Subsequent to this decision in Chandra Kumar, a constitutional bench of the Supreme Court in Union of India v. R. Gandhi was constituted to clarify certain issues that were not addressed in the Chandra Kumar decision. The issues that came up for consideration were as to what extent the powers of the High Court, apart from the power of judicial review, could be transferred to the Tribunals and whether there was a demarcating line for the Parliament to vest intrinsic judicial functions traditionally performed by Courts in any Tribunal. The Court held as follows:

    “..The Constitution contemplates judicial power being exercised by both courts and Tribunals. Except the powers and jurisdictions vested in superior courts by the Constitution, powers and jurisdiction of courts are controlled and regulated by Legislative enactments. High Courts are vested with the jurisdiction to entertain and hear appeals, revisions and references in pursuance of provisions contained in several specific legislative enactments. If jurisdiction of High Courts can be created by providing for appeals, revisions and references to be heard by the High Courts, jurisdiction can also be taken away by deleting the provisions for appeals, revisions or references. It also follows that the legislature has the power to create Tribunals with reference to specific enactments and confer jurisdiction on them to decide disputes in regard to matters arising from such special enactments. Therefore it cannot be said that legislature has no power to transfer judicial functions traditionally performed by courts to Tribunals…

    The Court subsequently went on to hold that while the legislature could make a law providing for constitution of Tribunals and prescribing the eligibility criteria and qualifications for being appointed as members, the superior Courts in the country could, in exercise of the power of judicial review, examine whether the qualifications and eligibility criteria provided for selection of members is proper and adequate to enable them to discharge judicial functions and inspire confidence.

    In yet another landmark decision in Madras Bar Association vs. Union of India, (AIR 2015 SC 1571)a five judge bench of the Supreme Court was constituted to decide on the constitutionality validity of the National Tax Tribunal (NTT).The petitioners in this case challenged the NTT Act on four grounds: first, that the reasons for setting up the NTT were fallacious, since there were no problems of consistency in the present jurisprudence of the High Courts; secondly, deciding upon a substantial question of law was a ‘core judicial appellate function’, which could not be transferred to a quasi-judicial authority that lacked the basic features of a superior court; thirdly, that the enabling constitutional provision, Article 323B, inserted into the Constitution via the 42nd Amendment, violated the basic features of the Constitution; and fourthly, certain specific provisions of the NTT Act undermined the independence of the judiciary, and were, therefore, liable to be struck down. In short, the Court accepted the second and fourth contentions, while upholding the validity of Article 323B.

    Examining the line of Tribunals Cases i.e, Sampath Kumar, Chandra Kumar and R.Gandhi, the Court concluded that it was settled law that judicial review in general and the High Courts’ power to exercise judicial superintendence over the Courts and Tribunals in their respective jurisdictions in particular was part of the basic structure of the Constitution. While the Parliament was competent to enact a law transferring the jurisdiction of the High Court with respect to specific subjects to other Courts or Tribunals, what it could not do was to transfer the constitutionally-vested power of the High Court’s elsewhere. According to the Court, the NTT Act transferred only jurisdiction, and not the High Courts’ powers of superintendence under Articles 226 and 227 of the Constitution. Accordingly, the Court held that the NTT Act did violate the basic structure and struck the entire act as unconstitutional.

    Principle of Alternate Remedy

    There are several statutes that provide exclusive jurisdictions to Tribunals. The Recovery of Debts Due to Banks & Financial Institutions Act, 1993,The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, various tax and labour statutes are a few speciliased legislations to name a few. Section 18 of the RDDBFI Act for instance excludes the jurisdiction of Civil Courts in matters pertaining to the Act with the exception to pursuing a writ remedy before the Supreme Court and High Courts. This means that if the remedy is available as per the provisions of the Act, and orders are passed by the Tribunal, a party will only be allowed to appeal before an appellate forum and will thereby be precluded from pursuing a remedy before any civil forum. Nonetheless the legislature has very clearly provided the exception of pursuing the writ remedy before the Supreme Court or High Courts. The intent behind its introduction was in light of the decision in Chandra Kumar that Tribunals do not have the power of judicial review and the same is only vested with the higher judiciary. But this unfortunately led to litigants exploiting and abusing this provision by approaching the High Courts without following the due process. A writ remedy is one which can only be exercised in exceptional cases but time again we find that there are a plethora of cases pending before the High Courts because of shrewd strategies adopted by the parties. For instance as per Section 18 of the SARFAESI Act any party who wants to appeal before the Appellate Tribunal must compulsorily deposit a percentage of the debt to exercise its rights. So in order to avoid this, litigants circumspect the due process and approach the High Court on some pretext of either arbitrary orders passed by the Tribunal or natural justice not followed or on some other ground and thereby make the High Court a party to this abuse.

    Similarly large number of cases comes to the High Courts in the form a writ petition challenging the violation of provisions of Industrial Disputes, Act, 1947 and other statutory enactments. The High Courts are in fact encouraging these acts and are seldom strict. The Supreme Court has in fact laid down the principle that whenever a writ petition is filed for enforcement of right flowing from any statutory enactment, forum of which is provided to be a specific forum, the High Court should decline to entertain the writ petition under Articles 226/227 of the Constitution of India(U.P. State Bridge Corporation Ltd And Others. Vs. U.P. RajyaSetu Nigam S. KaramchariSangh, (2004) 4 SCC 268). But even after several decisions cautioning High Courts not to entertain writs from Tribunals in lieu of alternate efficacious remedy and only in exceptional circumstances, it has had little to no effect.The landmark case of United Bank of India vsSatyawatiTondon(2010) 8 SCC 110) is one such case in which the Supreme Court has come down heavily on the High Courts;

    …we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance…..It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of Banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution,care and circumspection ….

    The principle of alternate remedy has been best explained in State of Himachal Pradesh v. Gujarat Ambuja Cement Ltd. (AIR 2005 SC 3856);

    …the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction…

    The Courts should, therefore, have good reasons to bypass the alternate remedy to entertain a writ as was held in Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and Others(1985) 1 SCC 260in the following words;

    Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill- suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged."

    It was in City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and others,(2009) 1 SCC 168 that the Supreme Court highlighted the parameters that were required to be kept in view by the High Courts while exercising jurisdiction under Article 226 of the Constitution. According to the decision, a Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:

    1. adjudication of writ petition involves any complex and disputed questions of facts andwhether they can be satisfactorily resolved;

    2. the petition reveals all material facts;

    3. the petitioner has any alternative or effective remedy for the resolution of the dispute;

    4. person invoking the jurisdiction is guilty of unexplained delay and laches;

    5. ex facie barred by any laws of limitation;

    6. grant of relief is against public policy or barred by any valid law; and host of otherfactors.

    Therefore, a Court must consider the pros and cons of the case and only then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights or where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged (Harbans Lal Sahnia v. Indian Oil Corporation Ltd., [2003] 2 SCC 107). Where hierarchy of appeals is provided by the statute, a party must exhaust the statutory remedies before resorting to the writ jurisdiction (G. Veerappa Pillai v. Raman and Raman Ltd., AIR (1952) SC 192).

    Collective Responsibility

    But this problem of entertaining writs was in a way started by the Courts themselves as per the decision in Chandra Kumar which overruled the decision of Sampath Kumar where in it was held that judicial review can only be vested in Courts and not Tribunals. Had the Court not done this and followed the original process adopted by the legislature, i.e. approaching the Supreme Court as per Article 136, this practice could be avoided. The implications of the above decision is that although the principle of judicial review is an inherent and integral part of the Constitution and cannot be abrogated by any statute, the very purpose of introducing Tribunals as an alternate forum is lost, i.e. for the purpose of rendering speedy justice.

    All that the decision in Chandra Kumar has done is to needlessly increase the duration of the procedure to obtain justice when anyhow the power of judicial review is vested in the Supreme Court. Sampath Kumar had in fact rightly indicated what was held in the decision of Minerva Mills that though the power of judicial review cannot be dispensed with, Parliament could always, in place of the High Courts, substitute another alternative institutional mechanism for judicial review. However, the theory of alternative institutional mechanisms as established in Sampath Kumar was held in Chandra Kumar to be in defiance to the proposition laid down in Kesavananda Bharati and Indira Gandhi (AIR 1975 SC 2299); that only constitutional Courts alone were competent to exercise the power of judicial review. Despite High Courts enjoying the power of judicial review against decisions passed by Tribunals, the confounding issue is that, after Chandra Kumar,Tribunals have not been divested of their power of judicial review. The vesting of the power of judicial review on Tribunals has not been done by the Parliament when establishing Tribunals under different enactments, but rather Sampath Kumar vested the power of judicial review on Administrative Tribunals by holding that another institutional mechanism could exercise the power of judicial review, and Chandra Kumar has not overruled this aspect, but conferred the power of judicial review on non-administrative Tribunals as well. Rather, it was only held that Tribunals cannot exercise the power of judicial review to the exclusion of the High Court and the Supreme Court.Though Chandra Kumar has created undesirable consequences, it is unfortunate that this position cannot be changed as judicial review has been conclusively held to be part of the basic structure of the Constitution (Fertiliser Corporation Kamgar Union v. Union of India, AIR 1981 SC 344).

    But blaming the judiciary alone is not going to resolve anything. In reality, a legitimate argument can be made that the legislature had introduced the concept of Tribunals through the 42nd Amendment during the emergency period of Prime Minister Indira Gandhi to usurp and systematically taking away important judicial functions of the High Courts and the Civil Courts in order to vest them in quasi-judicial Tribunals. Although the 44th amendment during the Janata government tried to do away with the pernicious changes of the 42nd Amendment, Articles 323 A and 323B were forgotten to be deleted. Various Supreme Court decisions also failed to note that these two articles were deliberately planned to strip away important functions of the High Courts and vest them in Tribunals. Additionally, it can be argued further that the ostensible reason for creating Tribunals is often attributed to the huge backlog of cases and the need for specialization but the reality however, is that Tribunals are an excellent source of post-retirement opportunities for several bureaucrats and High Court judges. Since these judges and bureaucrats are appointed by the legislature, who are themselves parties to most of the disputes before these tribunals, it makes their intentions more questionable and moot. But the Supreme Court missed the golden opportunity of clearly laying down the role of Tribunals in the overall justice delivery system. It could have demarcated the areas to be covered by Tribunals and those which must exclusively vest with the judiciary. Nevertheless, the ground reality is that Tribunals are legitimate forums and now form an integral part of our justice system. Instead of questioning its legitimacy it is essential to ensure that both Courts and Tribunals collectively work together towards the common goal of rendering quality and speedy justice.

    The legislature should also equally be held accountable by appointing,in anunbiased manner, adequate membersfor various Tribunals. At present,there is a huge dearth of members across various Tribunals and this is one of the primary reasons why High Courts are compelled to exercise their writ jurisdiction. Therefore, the legislature must focus their immediate attention and seriously contemplate in filing these vacancies at the earliest instead of engaging in an endless tussle with the judiciary on the issue of appointment of judges in Courts.

    The litigants should also make a conscientious effort in understanding their legal problem and on how to address it. Lawyers should desist from acts that abuse or desecrate the legal process and instead focus on contributing to the effective dispensation of justice by providing the right advice.Legislature has enacted these legislations for a particular reason and the due process of law should be respected by all. Courts should also act equally responsible and desist from the temptation of encouraging such acts. It is, therefore, imperative that all the organs of the state and the litigants collectively cooperate and function in a responsible manner for the smooth and effective dispensation of justice.

    Profile PicVarun Srinivasan is Senior Associate, NVS & Associates, Advocates & Legal Consultants; Co-Revising Editor 25thEdn.Tannan’s Banking Law & Practice published by Lexis Nexis & Member, Chartered Institute of Arbitrators (London).
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