Administrative Tribunals in India

Introduction

In Administrative law, the term ‘tribunal’ is used in a significant sense and refers to only the
adjudicatory bodies which lie outside the sphere of the ordinary judicial system. Technically in
India, the judicial powers are vested in the Courts which aims to safeguard the rights of the
individuals and promotes justice. Therefore, to institute an effective system of the judiciary with
fewer complexities, the judicial powers are delegated to the administrative authorities, thus, giving
rise to administrative tribunals or administrative adjudicatory bodies which holds quasi-judicial
features.

History of Tribunalisation

The concept of tribunalisation came into existence in India with the establishment of the Income
Tax Appellate Tribunal before the independence of the country. After independence, a need was
being felt for resolving administrative disputes with flexibility and speed. The core objective of
tribunalisation was to provide specialised and speedy justice to the people.

After the drafting of the Indian Constitution, several rights for the welfare of the individuals were
guaranteed by the Constitution. People have the right to speedy trials and of specialised quality
which cannot be delivered by the prevailing judicial system due to the overburden of cases and
appeals, technicalities in procedure etc.

Hence, the need for the inception of the administrative tribunals couldn’t be ignored.

Growth of Administrative Tribunals

The 42nd Amendment to the Constitution introduced Part XIV-A which included Article 323A and
323B providing for constitution of tribunals dealing with administrative matters and other issues.
According to these provisions of the Constitution, tribunals are to be organized and established in
such a manner that they do not violate the integrity of the judicial system given in the Constitution
which forms the basic structure of the Constitution.

The introduction of Article 323A and 323B was done with the primary objective of excluding the
jurisdiction of the High Courts under Article 226 and 227, except the jurisdiction of the Supreme
Court under Article 136 and for originating an efficacious alternative institutional mechanism or
authority for specific judicial cases.
(Article 226 gives High Courts the ability to issue instructions, orders, and writs to any person or
authority, including the government. Whereas, Article 227 gives High Courts the power of
superintendence over all courts and tribunals in the territory over which they have jurisdiction.

The Constitution of India under Article 136 vests the Supreme Court of India, the apex court of the
country, with a special power to grant special leave, to appeal against any judgment or order or
decree in any matter or cause, passed or made by any Court/tribunal in the territory of India.)

The purpose of establishing tribunals to the exclusion of the jurisdiction of the High Courts was
done to reduce the pendency and lower the burden of cases. Therefore, tribunals are organised as a
part of civil and criminal court system under the supremacy of the Supreme Court of India.

From a functional point of view, an administrative tribunal is neither an exclusively judicial body
nor an absolute administrative body but is somewhere between the two. That is why an
administrative tribunal is also called ‘quasi-judicial’ body.

Characteristics of Administrative Tribunals

The following are the few attributes of the administrative tribunals which make them quite
disparate from the ordinary courts:

1. Administrative tribunals must have statutory origin i.e. they must be created by any statute.

2. They must have some features of the ordinary courts but not all.

3. An administrative tribunal performs the quasi-judicial and judicial functions and is bound to
act judicially in every circumstance.

4. They are not adhered by strict rules of evidence and procedure.

5. Administrative tribunals are independent and not subject to any administrative interference
in the discharge of judicial or quasi-judicial functions.

6. In the procedural matters, an administrative tribunal possesses the powers of a court to

summon witnesses, to administer oaths and to compel the production of documents, etc.

7. These tribunals are bound to abide by the principle of natural justice.

8. A fair, open and impartial act is the indispensable requisite of the administrative tribunals.

9. The prerogative writs of certiorari and prohibition are available against the decisions of
administrative tribunals.
Categories of Administrative Tribunals

Administrative Tribunals for service matter [Article 323A]

(1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of
disputes and complaints with respect to recruitment and conditions of service of persons appointed
to public services and posts in connection with the affairs of the Union or of any State or of any
local or other authority within the territory of India or under the control of the Government of India
or of any corporation owned or controlled by the Government.

(2) A law made under clause (1) may—

(a) provide for the establishment of an administrative tribunal for the Union and a separate
administrative tribunal for each State or for two or more States;

(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority
which may be exercised by each of the said tribunals;

(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be
followed by the said tribunals;

(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article
136, with respect to the disputes or complaints referred to in clause (1);

(e) provide for the transfer to each such administrative tribunal of any cases pending before any
court or other authority immediately before the establishment of such tribunal as would have been
within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings
are based had arisen after such establishment;

(f) repeal or amend any order made by the President under clause (3) of article 371D;

(g) contain such supplemental, incidental and consequential provisions (including provisions as to
fees) as Parliament may deem necessary for the

effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders
of, such tribunals.

(3) The provisions of this article shall have effect notwithstanding anything in any other provision
of this Constitution or in any other law for the time being in force.
Tribunals for other matters [Article 323B]
(1) The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of
any disputes, complaints, or offences with respect to all or any of the matters specified in clause
(2) with respect to which such Legislature has power to make laws.

(2) The matters referred to in clause (1) are the following, namely:—

(a) levy, assessment, collection and enforcement of any tax;

(b) foreign exchange, import and export across customs frontiers;

(c) industrial and labour disputes;

(d) land reforms by way of acquisition by the State of any estate as defined in article 31A or of any
rights therein or the extinguishment or modification of any such rights or by way of ceiling on
agricultural land or in any other way;

(e) ceiling on urban property;

(f) elections to either House of Parliament or the House or either House of the Legislature of a
State, but excluding the matters referred to in article 329 and article 329A;

(g) production, procurement, supply and distribution of food-stuffs (including edible oilseeds and
oils) and such other goods as the President may, by public notification, declare to be essential
goods for the purpose of this article and control of prices of such goods;

(h) rent, its regulation and control and tenancy issues including the right, title and interest of
landlords and tenants;

(i) offences against laws with respect to any of the matters specified in sub-clauses (a) to (h) and
fees in respect of any of those matters;

(j) any matter incidental to any of the matters specified in sub-clauses (a) to (i).

(3) A law made under clause (1) may—

(a) provide for the establishment of a hierarchy of tribunals;

(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority
which may be exercised by each of the said tribunals;

(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be
followed by the said tribunals;

(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article
136, with respect to all or any of the matters falling within the jurisdiction of the said tribunals;
(e) provide for the transfer to each such tribunal of any cases pending before any court or any other
authority immediately before the establishment of such tribunal as would have been within the
jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based
had arisen after such establishment;

(f) contain such supplemental, incidental and consequential provisions (including provisions as to
fees) as the appropriate Legislature may deem necessary for the effective functioning of, and for
the speedy disposal of cases by, and the enforcement of the orders of, such tribunals.

(4) The provisions of this article shall have effect notwithstanding anything in any other provision
of this Constitution or in any other law for the time being in force.

Explanation. —In this article, “appropriate Legislature”, in relation to any matter, means
Parliament or, as the case may be, a State Legislature competent to make laws with respect to such
matter in accordance with the provisions of Part XI.

In the landmark case of L. Chandra Kumar v. Union of India[1], the court reached various
conclusions as to jurisdictional powers of the tribunal constituted under Articles 323A and 323B.
The Supreme Court struck down clause 2(d) of Article 323A and clause 3(d) of Article 323B on
the ground that they excluded the jurisdiction of the High Courts and the Supreme Court under
Article 226/227 and 32 respectively.

The SC ruled that the tribunals created under Article 323A and 323B would continue to be the
courts of the first instance in their respective areas for which they are constituted. The litigants are
not allowed to approach the High Courts directly by overlooking the jurisdiction of the concerned
tribunal.

No appeal for the decision of the tribunal would lie directly before the Supreme Court under
Article 136 but instead, the aggrieved party would be entitled to move the High Court under
Article 226 and 227 and after the decision of the Division Bench of the High Court, the party may
approach the Apex Court under Article 136.

Distinction between Courts and Tribunals

Courts Administrative Tribunal

A Court of law is a part of the traditional judicial The administrative tribunal is an agency created
system. by a statue endowed with judicial powers.
 A Court of law is vested with general jurisdiction It deals with service matters and is vested with
over all the matters. limited jurisdiction to decide a particular issue.

It is not bound by the rules of the Evidence Act

It is strictly bound by all the rules of evidence and
and the CPC unless the statute which creates the
by the procedure of the Code of Civil Procedure.
tribunal imposes such an obligation.

It is not mandatory in every case that the members

It is presided over by an officer expert in the law.
need to be trained and experts in law.

The decision of the court is objective in nature The decision is subjective i.e. at times it may
primarily based on the evidence and materials decide the matters taking into account the policy
produced before the court. and expediency.

It is not obligatory to follow precedents and

It is bound by precedents, the principle of res
principle of res judicata but the principle of
judicata and the principle of natural justice.
natural justice must be followed.

It can decide the validity of legislation. It cannot decide the validity of legislation.

The courts do not follow investigatory or

Many tribunals perform investigatory functions as
inquisition functions rather it decides the case on
well along with its quasi-judicial functions.
the basis of evidence.

The Administrative Tribunals Act, 1985

In pursuance of the provisions in Article 323A, Parliament passed the Administrative Tribunal Act,
1985, providing for all the matters falling within the clause(1) of Article 323-A.

According to this Act, there must be a Central Administrative Tribunal (CAT) at the centre and a
State Administrative Tribunal (SAT) at the state level for every state.

The tribunal is competent to declare the constitutionality of the relevant laws and statutes. The Act
extends to, in so far as it is related to the Central Administrative Tribunal, to the whole of India
and in relation to the Administrative tribunals for states, it is applicable to the whole of India
except the State of Jammu and Kashmir (Section 1).
Objective for the establishment of Administrative Tribunals

The main purpose of the introduction of this act was :

1. To relieve congestion in courts or to lower the burden of cases in courts.

2. To provide for speedier disposal of disputes relating to the service matters.

Applicability of the Act

According to Section 2 of the Administrative Tribunals Act, 1985, the act applies to all Central
Government employees except –

 The members of the naval, military or air force or any other armed forces of the Union

 Any officer or servant of the Supreme Court or any High Courts

 Any person appointed to the secretariat staff of either House of the Parliament.

Composition of the Tribunals and Bench

Section 4 of this Act describes the composition of the tribunals and bench. Each tribunal shall
consist of a Chairman, Vice Chairman, Judicial and Administrative members. Every bench must
include at least one judicial and one administrative member. The benches of the Central Tribunal
shall ordinarily sit at New Delhi, Allahabad, Calcutta, Madras, Bombay and such other place as the
Central Government specifies. The Chairman may transfer the Vice Chairman or other members
from one bench to another bench.

Qualification and Appointment of Members

Section 6 of the Administrative Tribunals Act, 1985, lays the provisions specifying the
qualifications and appointment of the members of tribunals.

Chairman: To be appointed as a chairman, a person must have the following qualifications-

  He is or has been a judge of a High Court or

 He has held the office of Vice Chairman for two years or

 He has held the post of secretary to the Government of India or

 He has held any other post carrying the scale pay of secretary.
Vice-Chairman: A person is qualified for the post of Vice-Chairman if he-

 Is or has been a judge of the High Court or

 Has for 2 years held the post of Secretary to the Government or holding any other post
carrying the same pay scale under the Central or State Governments or

 Has held for 5 years the post of an Additional Secretary to the Government of India or any
other post carrying the scales of pay of Additional Secretary.
Judicial Member: A person to be appointed as a judicial member must-

 Be or have been a judge of the High Court or

 Have been a member of Indian Legal Service and has held a post in Grade I of the service
for at least 3 years.
Administrative Member: A person to be appointed as an Administrative member must-

 Have held the post of an Additional Secretary to the Government of India or another
equivalent post for at least 2 years, or

 Have held the post of a Joint Secretary to the Government of India or other equivalent post,
or

 Have adequate administrative experience.

The Chairman, Vice-Chairman and other members shall be appointed by the President. The
Judicial Members shall be appointed by the President with the consultation of the Chief Justice of
India. The Chairman, Vice-Chairman and other members of the State Tribunal shall be appointed
by the President after consultation with the Governor of the concerned state.

Term of Office

According to Section 8 of the Act, the Chairman, Vice-Chairman and other members of the
tribunal shall hold the office for a term of 5 years or until he attains-
 1. Age of 65 years, in the case of the Chairman or Vice-Chairman

2. Age of 62 years in the case of other members

Resignation and Removal

Section 9 of the Act prescribes the procedure of resignation by any member and removal of any
member.

The Chairman, Vice-Chairman or other members may resign from his post by writing to the
President.

They shall be removed from their office only by an order made by the President on the ground of
proved misbehaviour or incapacity after an enquiry made by a judge of the Supreme Court. They
shall have the right to be informed of the charges against them and shall be given a reasonable
opportunity of hearing. The Central Government may make rules to regulate the procedure for the
investigation of the charges against them.

Jurisdiction of Central Tribunal

Section 14 states that the Central Tribunal from the day of the appointment shall exercise all the
jurisdiction, powers and authority in relation to the following matters which were within the
jurisdiction of other courts (except the Supreme Court) before the enactment of this Act:

1. Recruitment of any civil service of Union or All India service or civil post under the Union
or civilian employees of defence services;

2. All service matters of the above-mentioned employees, and also of employees of any local
or other authority within the territory of India or under the control of the Government of
India or any corporation or society owned or controlled by the Government;

3. All service matters of such persons whose services have been placed by the State
Government or any local or other authority or any corporation at the disposal of the Central
Government.

Procedure and Powers of Tribunals

Section 22 of the Administrative Tribunals Act, 1985 lays down the powers and procedure of
tribunals discussed below-
 1. A tribunal is not bound to follow the procedure laid down by the Code of Civil Procedure,
1908. It has the power to regulate its own procedure but must abide by the principle of
natural justice.

2. A tribunal shall decide the applications and cases made to it as rapidly as possible and every
application shall be decided after scrutinizing the documents and written submissions and
perceiving the oral arguments.

3. Tribunals have the same powers as vested by the civil courts under the Code of Civil
Procedure, 1908, while trying a suit, with regard to the following subject-matter-

4. Summoning and enforcing the attendance of any person and examining him on oath;

5. Production of documents;

6. Receiving evidence on affidavits;

7. Ask for any public record or document from any office under Section 123 and 124 of the
Indian Evidence Act, 1872;

8. Issuing commissions for the examination of witnesses and documents;

9. Reviewing its decisions;

10. Deciding the case ex-parte;

11. Setting aside any order passed by it ex-parte;

12. Any other matter prescribed by the Central Government.

13. Leading Case Laws

Case: S.P. Sampath Kumar v. Union of India[2]

Facts: The constitutional validity of the Administrative Tribunals Act, 1985, was predominantly
challenged on the ground that this Act excludes the jurisdiction of High Courts under Articles 226
and 227 with regard to service matters and hence, destroyed the concept of judicial review which
was an essential feature of the Indian Constitution.

Judgment: A five-Judge Bench of the Court upheld the validity of the Act except Section 6(1)(c).
The court held that although this Act has excluded the jurisdiction of judicial review exercised by
the High Courts in the service matters it has not entirely excluded the concept of judicial review.
The jurisdiction of the Supreme Court under Article 32 and 136 has not been excluded by this Act
and kept unscathed.
Thus, there still exists an authority where matters of injustice can be entertained by judicial review.
The judicial review which is the part of the basic structure of the Indian Constitution can be taken
away from a particular area only if an alternative effectual institutional mechanism or authority is
provided.

However, Section 6 (1)(c) of the Act was held to be unconstitutional as it gave unrestricted power
to the Government to appoint the Chairman, Vice-Chairman and other members of the tribunals.
These appointments must be made by the Government in a meaningful and effective manner only
after consulting the Chief Justice of India.

The court recommended that the term of 5 years prescribed under the Act for Chairman, Vice-
Chairman and other members of the tribunal is not rational because it would act as dissuasion for
the good and generous people to accept the job in the tribunal and should, therefore, be reasonably
extended.

The directions given by the Supreme Court came into effect through the Administrative Tribunals
(Amendment) Act, 1987.

Case: Union of India v. R. Gandhi, President, Madras Bar Association[3]

Facts: The constitutionality of the National Company Law Tribunal (NCLT) and National
Company Law Appellate Tribunal (NCLAT) on the following grounds-

1. Parliament does not have authority to vest the judicial functions in any tribunal that have
been traditionally performed by the High Courts since so long.

2. Transferring the entire company jurisdiction of the High Court to the tribunal are violative
of the doctrine of Rule of Law, Separation of Powers and Independence of the Judiciary.

3. The various provisions of Part 1B and 1C of the Companies Act are defective and
unconstitutional, being in breach of constitutional principles of Rule of Law, Separation of
Powers and Independence of the Judiciary.
Judgment: the court upheld the constitutionality of NCLT and NCLAT in exercising the powers
and jurisdiction of the High Court subject to necessary changes to be made in the Companies Act,
1956 as amended in 2002, through suitable amendments

The court acknowledged and upheld the constitutional power of the Parliament to constitute
tribunals for adjudication of disputes. The legislative competence of Parliament to provide for the
creation of courts and tribunals can be traced to Article 245, 246 and 247 of the Constitution read
with various entries in the Union List and the Concurrent List which is in no way affected or
controlled by Article 323A or 323B of the Constitution.

The court further added that it cannot be assumed that constitution of tribunals and transferring
judicial powers per se infringe the rule of law, separation of powers and independence of the
judiciary because the Constitution enables both courts and tribunals to exercise judicial powers.

What matters the most is whether the constituted tribunals respect and maintain the principles of
separation of powers, rule of law and independence of the judiciary. The constitution of NCLT and
NCLAT must be subject to judicial review so that the court in the exercise of judicial review look
into the matter to check if these principles are compromised by such tribunalisation and may
interfere in between to preserve the same.

Advantages of Administrative Tribunals

The concept of administrative tribunals was introduced because it has certain advantages over
ordinary courts. Few of them are mentioned below-

 Flexibility: The introduction of administrative tribunals engendered flexibility and

versatility in the judicial system of India. Unlike the procedures of the ordinary court which
are stringent and inflexible, the administrative tribunals have a quite informal and easy-
going procedure.

 Speedy Justice: The core objective of the administrative tribunal is to deliver quick and
quality justice. Since the procedure here is not so complex, so, it is easy to decide the
matters quickly and efficiently.

 Less Expensive: The Administrative Tribunals take less time to solve the cases as compared
to the ordinary courts. As a result, the expenses are reduced. On the other hand, the ordinary
courts have cumbrous and slow-going, thus, making the litigation costly. Therefore, the
administrative tribunals are cheaper than ordinary courts.

 Quality Justice: If we consider the present scenario, the administrative tribunals are the best
and the most effective method of providing adequate and quality justice in less time.

 Relief to Courts: The system of administrative adjudication has lowered down the burden of
the cases on the ordinary courts.
Drawbacks of Administrative Tribunals

Although, administrative tribunals play a very crucial role in the welfare of modern society, yet it
has some defects in it. Some of the criticisms of the administrative tribunal are discussed below-

 Against the Rule of Law: It can be observed that the establishment of the administrative
tribunals has repudiated the concept of rule of law. Rule of law was propounded to promote
equality before the law and supremacy of ordinary law over the arbitrary functioning of the
government. The administrative tribunals somewhere restrict the ambit of the rule of law by
providing separate laws and procedures for certain matters.

 Lack of specified procedure: The administrative adjudicatory bodies do not have any rigid
set of rules and procedures. Thus, there is a chance of violation of the principle of natural
justice.

 No prediction of future decisions: Since the administrative tribunals do not follow

precedents, it is not possible to predict future decisions.

 Scope of Arbitrariness: The civil and criminal courts work on a uniform code of procedure
as prescribed under C.P.C and Cr.P.C respectively. But the administrative tribunals have no
such stringent procedure. They are allowed to make their own procedure which may lead to
arbitrariness in the functioning of these tribunals.

 Absence of legal expertise: It is not necessary that the members of the administrative
tribunals must belong to a legal background. They may be the experts of different fields but
not essentially trained in judicial work. Therefore, they may lack the required legal
expertise which is an indispensable part of resolving disputes.

Conclusion

It can be concluded that in the present scenario, the administration has become an important part of
the government as well as the citizen’s life. Due to this increasing role, it is important to establish a
competent authority for the redressal of people’s grievances and adjudication of the disputes.
Therefore, the concept of administrative tribunals was emerged and is dynamically flourishing in
India holding certain flaws and strengths.

Central Administrative Tribunal Notes

The Central Administrative Tribunal (CAT) was established in 1985 through the Administrative
Tribunals Act. The CAT is responsible for adjudication or trial of matters connected with
recruitment and conditions of service of personnel in public service in India. Central
Administrative Tribunal – Latest Update

1. Union Minister of State, Development of North Eastern Region (DoNER), MoS PMO,
Personnel, Public Grievances, Pensions, Atomic Energy and Space, Dr. Jitendra Singh on
8th June 2020 inaugurated the 18th Bench of Central Administrative Tribunal (CAT) for
the Union Territories of Jammu and Kashmir and Ladakh through a Video Conference.

Central Administrative Tribunal

The CAT was created by the Act in 1985 under Article 323A of the Constitution of India. The
Tribunal derives its jurisdiction, powers, and authority from this Section. It was established via
the 42nd Constitutional Amendment of the Constitution.

 Tribunals under Article 323A can be formed only through the Parliament and not
the State Legislatures.
 However, Article 323B, which deals with other tribunals, enables such tribunals to
be formed both by the Parliament and the State Legislatures.

 Article 323A is only for tribunals for public service matters.



 Only one service at the central level and one for each state or two or more states can
be established.
 Here, there is no hierarchy of tribunals.
Central Administrative Tribunal Mandate

The mandate of the CAT is to adjudicate matters related to the recruitment and conditions of
service of personnel engaged in public service in the country.

Central Administrative Tribunal Jurisdiction

The CAT exercises original jurisdiction over all service matters concerned with:

1. Members of the all-India services.

2. Persons appointed to any civil service of the Union or civil post under the Union.
3. Civilians appointed to any defence services or posts related to defence.
4. Employees of PSUs or public sector organizations were notified by the government.
Note:-

Members of the defence forces, officers, Supreme Court staff, the Parliament’s secretarial staff are
not covered under the CAT.
Composition of Central Administrative Tribunal
Central Administrative Tribunal’s members are drawn from legal and administrative fields to
provide the benefit of expertise in both domains.

 Chairperson (tenure of 5 years or 65 years of age, whichever is earlier)

 Should be an SC judge or the Chief Justice of a High Court.

 Vice-chairperson (tenure of 5 years or 62 years of age, whichever is earlier)
 Other members
All are appointed by the President.

The Functioning of Central Administrative Tribunal

The following are some of the features of the CAT’s functioning:

 The Tribunal has been conferred the power to exercise the same jurisdiction and authority
regarding contempt of itself as a High Court.
 Appeals against the orders of a tribunal could be made in the High Court (and not the SC
directly – Chandra Kumar Case, 1997).
 The CAT has 17 Benches in the country as well as 21 Circuit Benches.
 The CAT Principal Bench deals with matters of the Government of the National Capital
Territory of Delhi.
 In deciding cases, the Tribunal is guided by the principles of natural justice. It is not bound
by the Civil Procedure Code.
 The central government decides the salaries, emoluments, and conditions of service of the
Tribunal’s employees.
 A petitioner can either appear in person before the Tribunal or take the help of a legal
practitioner.

UPSC Questions related to Central Administrative Tribunal

Q1

What is the function of the Central Administrative Tribunal?

The CAT is responsible for adjudication or trial of matters connected with recruitment and
conditions of service of personnel in public service in India.
Q2

How many members are in the Central Administrative Tribunal?

66 members including all the Benches.
Q3

Is Central Administrative Tribunal a constitutional body?

No, it is a statutory body.
Multiple Choice Question

Consider the following statements

  The Central Administrative Tribunal (CAT) was created by the Act in 1985 under Article
323A of the Constitution of India. The Tribunal derives its jurisdiction, powers, and
authority from this Section. It was established via the 42nd Constitutional Amendment of
the Constitution.
 44th Amendment Act modified the Constitutional emergency provisions and prevented
them from being misused in the future. It restored the Supreme Court and High Courts’
jurisdiction and power which they enjoyed before the 42nd amendment act was passed
 In the Chandra Kumar case (1997), the Supreme Court had held that appeals against the
orders of a tribunal could be made in the High Court. This defeats the purpose of reducing
the burden of the normal courts.
 Tribunals have the power to try cases that are of the type that the Statute confers upon
them. They are formed for adjudicating cases of a particular kind. Tribunals are bound by
the principles of natural justice and not the civil procedure codes.
Choose the correct answer from the below-given options

A) Only Statement 1, 2, and 4 are true

B) All the above-given statements are false.

C) Only Statements 1, 3, and 4 are true,

D) None of the above-given statements are false.

Answer: D
 Difference between Article 32 and Article 226

Introduction
Judiciary plays a very important role in a democracy as it not only prevents the government
authorities from using their powers arbitrarily but it also safeguards the rights of the citizens and
the very Constitution of India. Thus, The Constitution of India envisages a strong, independent,
and well-organised judiciary.

Article 32 and 226 empowers the Supreme Court and the High Courts respectively, with the power
to initiate an action against a government body in case of violation of rights and liberties of the
citizen. This article describes the writ power that the Supreme Court and High Courts have under
Article 32 and 226 and how these articles are different from each other.

Article 32
Referred to as the ‘heart and soul of the constitution’ by Dr Bhim Rao Ambedkar, Article 32 is a
fundamental right envisaged under Part III of the Constitution of India. It is a ‘right to
constitutional remedies’ which provides a right to protect other fundamental rights from violation.
In other words, if any fundamental right is violated by the government, then Article 32 empowers
the person whose fundamental right has been violated to approach the Supreme Court for the
enforcement of his/her fundamental rights.

Article 32(1) confers the right to approach the Supreme Court for claiming or enforcing the
fundamental rights provided under Part III of the Constitution of India.

Article 32(2) confers power to the Supreme Court to issue directions, orders, or writs, namely
Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto for enforcing those
fundamental rights.

Article 32(3) empowers the parliament to confer the power to issue orders, directions, and writs to
any other court within the local jurisdictional limits of India.

Article 32(4) states that unless provided by the constitution, the right to constitutional remedy
conferred under this Article cannot be suspended

Important Judgements

Article 32: A basic structure

In the case of Fertilizer Corporation Kamgar (Union) v. Union of India, it was held that the power
conferred to the Supreme Court under Article 32 is an integral part of the constitution and thus,
belongs to the basic structure of the Constitution of India.
Applicability of Article 32

In the case of Ramdas Athawale v. Union of India, it was held that Article 32 is applicable in cases
where there is a question of enforcement of fundamental rights. If the question of enforcement of
fundamental rights does not arise then Article 32 will not be applicable.

Scope of Article 32

As held in the case of Nain Sukh Das v. State of Uttar Pradesh, the scope of Article 32 is quite
narrow as it can be enforced only in cases of violation of fundamental rights conferred under Part
III of the constitution.

Enforceability against private individuals

As per the decision of the apex court in the case of PUDR v. Union of India, Article 32 is
enforceable against private individuals as well.

Article 226
Enshrined under Part V of the Constitution of India, Article 226 confers power to the High Courts
to issue orders, directions, and writs in the nature of Habeas corpus, Mandamus, Certiorari,
Prohibition, and Quo Warranto.

As per Article 226(1), every High Court within the territory of India has the power to issue orders,
directions, and writs to any individual or authority including the Government for the enforcement
of fundamental rights as well as other legal rights under its own local jurisdiction.

Article 226(2) confers the power to the High Courts to issue orders, directions, and writs outside
their own local jurisdiction in the cases where the cause of actions lies wholly or in part within
their local jurisdiction.

Article 226(3) states that when an interim order has been passed under Article 226 by way of
injunction or stay against the respondent without:

1. i) providing the copy of the petition and evidential document to the respondent;
2. ii) giving an opportunity of being heard.
then, if the respondent moves to the High Court to cancel the interim order and provides a copy of
such petition to the petitioner, then, the High Court shall decide the application within a period of
two weeks of receiving such application or within the period of two weeks from the date on which
the other party received such application, whichever is later.

As per Article 226(4), the power conferred to the High Courts under Article 226 is not in
derogation to the powers conferred to the Supreme Court under Article 32(2).
Scope of Article 226

As held in the case of Bandhua Mukti Morcha v. Union of India, the scope of Article 226 is much
wider than Article 32 as it confers power to the High Courts to issue orders, directions, and writs
not only for the enforcement of fundamental rights but also for the enforcement of legal rights
which are conferred to the disadvantaged by way of certain statutes and are as important as the
fundamental rights.

Writs
As defined under Article 32 and Article 226, there are 5 writs, namely Habeas Corpus, Mandamus,
Certiorari, Prohibition, and Quo warranto.

Habeas Corpus

Habeas Corpus is a Latin term which means “produce the body”. It is a writ that is issued for
releasing an illegally detained person. It is issued to an individual or an authority to bring the
person who has been illegally detained before the court. This is done to know the grounds for
detention. The court decides the validity of the detention and in case of no legal justification of
detention, the person so detained is set free.

Article 22 of the Constitution of India mandates it for the police to present a detained person
before the magistrate within 24 hours of his arrest (excluding the travelling time), failure of which
would lead to the release of the detained person.

Important Judgements

1. ADM Jabalpur v. Shivakant Shukla

This case is also known as the ‘Habeas Corpus case’. It is a landmark judgement in which it was
held that writ of Habeas Corpus cannot be suspended even at the time of an emergency.

1. Sheela Barse v. State of Maharashtra

In this case, the court held that if any detained person is incapable of praying for the writ of habeas
corpus for himself, then somebody else may pray for the same on his behalf. The court further
emphasized upon the importance of legal assistance and how legal aid to a poor person who is
jailed is not only a mandatory provision under Article 39A but also under Article 14 and 21 of the
Constitution of India.

1. Kanu Sanyal v. District Magistrate

In this case, the Supreme Court of India held that the court may decide upon the legality of
detention without having the detained person produced before it. The court emphasized that the
focus must be on the legality of the detention which should be determined by looking into the facts
and circumstances of the case. The court further stated that the writ of habeas corpus is a
procedural writ and not a substantive writ.

1. Nilabati Behera v. State of Orissa

This is a case in which the petitioner was a mother whose son was taken away by the police for
interrogation, but later his dead body was found near a railway track. During the investigation, it
was revealed that the victim died because of an injury caused by some blunt object like a lathi. The
apex court held that remedy under Article 32 is a public law and therefore, the principle of
sovereign immunity does not apply. Thus, the petitioner was awarded compensation of an amount
of Rs. 1,50,000 and directions were given to the State of Orissa to initiate proceedings against the
individuals involved in the death case.

Mandamus

Mandamus is a Latin term which means “we command”. The writ of mandamus is issued by a
higher court to an inferior court or any public authority, commanding it to perform an official duty
imposed by the law. This writ is used to compel a public authority to discharge its legal obligations
and perform its legal duty effectively and efficiently.

Grounds for issuing a writ of mandamus

Writ of Mandamus can be issued against any public authority in certain cases:

1. misuse of discretionary power;

2. exceeding its scope of power;
3. ignoring relevant factors;
4. deciding on irrelevant factors;
5. acting with mala fide intentions.

Circumstances where the writ of mandamus cannot be issued:

1. Private body entrusted with public duty;

2. When the duty is discretionary in nature; and
3. When the duty arises out of a contract.

Important Judgements

1. Barada Kanta v. State of West Bengal

In this case, the court held that the writ of mandamus cannot be issued against any private
individual because the main essence of the writ of mandamus is to compel the authority to perform
its public duty and private individuals are not entrusted with public duty.
 1. Hemendra Nath Pathak v. Gauhati University

In this case, the petitioner prayed for a writ of mandamus against the university where he studied
because the university failed the petitioner even after he scored passing marks which were required
as per the statutory rules of the university. The writ of mandamus was issued and the university
was directed to declare him pass as per the university rules.

Certiorari

Certiorari means “to be certified”. Writ of certiorari is issued by the higher court to an inferior
court to quash any wrongful order. This writ is both curative as well as preventive.

Grounds for Certiorari

Writ of certiorari can be issued by the Supreme Court and High Court against any inferior court,
tribunal, or quasi-judicial body on certain grounds:

1. exceeding the jurisdictional limit;

2. violating the principle of natural justice;
3. passing a wrongful order or judgement;
4. overlooking the procedure established by law.

Important Judgements

1. T. C. Basappa v. T. Nagappa & Anr.

In this case, it was held that writ of certiorari may be issued when a court has either acted without
its jurisdiction or has acted beyond its jurisdiction. The court also laid down the parameters for
deciding the question of exercise of jurisdiction.

1. Surya Dev Rai v. Ram Chander Rai & Anr.

In this case, the apex court held that writ of certiorari can be issued against an inferior court only
and not against any higher court or court of the same hierarchy.

Prohibition

Writ of prohibition is issued by a higher court to a lower court, or a tribunal or a quasi-judicial

body to stop it from proceeding in a case because it either does not have jurisdiction or it exceeds
the jurisdiction in deciding the case. It is important to note that writ of prohibition is issued against
a judicial body only, and not against a legislative or an administrative body.
Difference between Certiorari and Prohibition

 Writ of certiorari is issued to quash an order wrongfully passed by an inferior court whereas
writ of prohibition is issued to stop the court from proceeding in the case.
 Writ of prohibition is issued while the proceedings are pending whereas writ of certiorari is
issued when an order is passed.

Important Judgement

1. East India Company Commercial Ltd. v. Collector of Customs

In this case, the Supreme Court emphasized on the meaning of writ of prohibition and stated that it
is an order passed by a higher court directing a lower/inferior court to stop the proceedings on the
grounds that the court either does not have a jurisdiction or the court is exceeding its jurisdiction in
deciding the case.

Quo Warranto

Writ of quo warranto means “by what authority”. This type of writ is issued by the court against a
person holding a public office over which he has no authority.

Conditions for quo warranto

1. The office needs to be a public office created by a statute;

2. A private person should have occupied the office wrongfully;
3. The office must have a public duty to perform;
4. The person must be using the office.
Writ of quo warranto can also be issued against a person who was initially qualified to occupy the
office, and later on became disqualified but still holds the office.

Important Judgement

1. Jamalpur Arya Samaj v. Dr. D Ram & Ors.

In this case, the Patna High Court held that writ of quo warranto can be issued against a person
holding a public office wrongfully only. It is not applicable in the case of a private office. The
decision was so given when a petition was filed praying for a writ of quo warranto against the
working committee of a private body, Bihar Raj Arya Samaj Pratinidhi Sabha. The Court denied
issuing the writ.
 Major Difference between Article 32 and Article 226

Basis of
Article 32 Article 226
difference

Right Article 32 is a fundamental right. Article 226 is a constitutional right.

Article 32 can be suspended if an

Article 226 cannot be suspended even at
Suspension emergency has been declared by the
the time of emergency.
President.

Article 226 has a broader scope as it is

Article 32 has a narrow scope as it is
applicable not only in the case of
Scope applicable only in case of violation of
violation of a fundamental right but also
a fundamental right.
of a legal right.

Article 226 empowers the High Court to

Article 32 empowers the Supreme
issue a writ in its own local jurisdiction
Court to issue writ all over India.
Jurisdiction only. Therefore, High Courts have
Therefore, the Supreme Court has
narrower territorial jurisdiction as
broader territorial jurisdiction.
compared to the Supreme Court.

Article 226 confers Discretionary power

Since, Article 32 is a fundamental
to the High Court which means it is at
Discretion right, the same cannot be refused by
the discretion of the High Court to issue
the Supreme Court.
a writ or not.

Conclusion
With the same power of enforcing fundamental rights, Article 226 has a much broader scope than
Article 32 because it can also be used to enforce other legal rights conferred by the Constitution or
any other statute.

However, it is Article 32 which is known as the heart and soul of the Constitution and for the fact
that it is a fundamental right in itself cannot be refused. Whereas, Article 226 being a
constitutional right gives discretionary power to the High Courts. Further, it is the decision of the
Supreme Court under Article 32 which supersedes the decision of High Courts under Article 226.
Thus, with the difference in powers both articles ensure that the rights of the citizens are protected
and provisions of the constitution are upheld.