[This is a guest post by Tanishk Goyal and Rishabh Narain Singh.]
On 18th June, 2019, the Uttar Pradesh State Legislature passed the Uttar Pradesh Education Service Tribunal Bill, 2019 (‘The Bill’) which proposed to establish an Education Tribunal, to hear and adjudicate upon service disputes related to higher education. The bill soon became the subject of controversy due to a multitude of reasons which, inter-alia, also included the proposed establishment of the Tribunal at Lucknow which was not agreeable to the lawyers practicing at Allahabad as well as Oudh. The lawyers of the Allahabad High Court Bar Association (AHCBA’) and the Oudh Bar Association (‘OBA’) essentially assailed the bill due to their opposition to the seat of the Tribunal. On August 16, 2019, a Division bench of Allahabad High Court took suo motto cognizance of the matter in ‘In Re: Dispute Relating to Place of Establishment of Adjudicatory Forum Like Specialized Tribunal etc.’ and passed an order asking the State to explain why the specialized education tribunal was proposed to be set up only at one place, Lucknow, ignoring the place of the “Jurisdictional High Court”. This order was challenged by the OBA before the Supreme Court which ultimately quashed the cognizance taken by the Division Bench of the Allahabad High Court.
While the Bill still awaits Presidential Assent required under Article 200 of the Constitution of India, it is pertinent to note that, notwithstanding the debate on the seat of the Tribunal, there still exist certain inherent unarticulated concerns regarding the Constitutional validity of the Bill. These concerns essentially include the lack of legislative competence of the State legislature to pass the bill, the bypassing of judicial review and power of superintendence under Articles 226 and 227 of the Constitution and the violation of the principles of independence of the Judiciary.
I. Legislative Competence
The State Legislature lacks competence under both Article 323-B and Entry 25 of List III to setup a Tribunal that bypasses or dilutes the writ jurisdiction of the High Court under Articles 226/227 of the Constitution. This has been illustrated forthwith.
Tribunals have a long-standing history in India. The 42nd Constitutional Amendment Act inserted Articles 323A and 323B which provide for establishment of Tribunals. The chief purpose of bringing in Tribunals, was to lessen the burden of the High Courts and to provide justice to the litigants in an expeditious and efficient manner. While Article 323-A is exclusively reserved for the Parliament which has the power to set up “Administrative Tribunals”, Article 323-B uses the word “appropriate legislature”, thus empowering both the Parliament and the State Legislature to set up tribunals on the matters mentioned in sub clause(2).
It is also acknowledged here that these Articles are only enabling provisions, and the Parliament or the State Legislature can also establish tribunals beyond them, for the administration of justice as long as they possess the legislative competence under the appropriate Entry in the Seventh Schedule. This has been reiterated by the Supreme Court, in multiple decisions. Illustratively, the Court, in the case of Union of India v. R Gandhi held that:
“80. The legislative competence of Parliament to provide for creation of courts and tribunals can be traced to Entries 77, 78, 79 and Entries 43, 44 read with Entry 95 of List I, Entry 11-A read with Entry 46 of List III of the Seventh Schedule. Referring to these articles, this Court in two cases, namely, Union of India v. Delhi High Court Bar Assn. [(2002) 4 SCC 275] and State of Karnataka v. Vishwabharathi House Building Coop. Society [(2003) 2 SCC 412] held that Articles 323-A and 323-B are enabling provisions which enable the setting up of tribunals contemplated therein; and that the said articles, however, cannot be interpreted to mean that they prohibited the legislature from establishing tribunals not covered by those articles, as long as there is legislative competence under the appropriate entry in the Seventh Schedule.” (emphasis supplied)
Moreover, the contention that Tribunals can be only be constituted with respect to matters mentioned in Articles 323-A and 323-B of the Constitution, was explicitly rejected by the Court in the same case, where it said that:
“83. […] It is [the petitioner’s] contention that the very fact that Articles 323-A and 323-B have been specifically enacted empowering the legislature concerned to make a law constituting tribunals in regard to the matters enumerated therein, demonstrated that tribunals cannot be constituted in respect of matters other than those mentioned in the said Articles 323-A and 323-B. The contention is not sound.
In light of this, while the words “education” and “service” find no mention in sub clause (2) of Article 323-B and there is no other matter mentioned therein which is analogous to education and service, the State may still be in a position to argue that it has exercised its powers under Item 25 of List III of the Constitution of India, which enumerates the following matters on which the State can make laws:-
“25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.”
However, an eleven-judge bench of the Supreme Court in T.M.A Pai Foundation v. State Of Karnataka (‘T.M.A Pai’) limited the power of the State Legislature to set up educational tribunals for the adjudication on disputes relating to private educational institutions only. The observation of the Supreme Court is instructive, and deserves to be quoted in full:-
“64. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a civil court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State — the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. ” (emphasis supplied).
The above ruling of the Court was against the backdrop of the law settled by a seven-judge bench in the case of L Chandra Kumar v. Union of India which held that judicial review under Articles 226/227 and Article 32 forms a part of the basic structure of the Constitution. More specifically, it was held that the jurisdictional powers of the tribunal constituted under Articles 323A and 323B are subject to the powers of the High Court adumbrated in Articles 226/227 of the Constitution. The Supreme Court struck down clause 2(d) of Article 323A and clause 3(d) of Article 323B on the grounds that they excluded the jurisdiction of the High Courts and the Supreme Court under Article 226/227 and 32 respectively.
This essentially means, that under no circumstances,can the State Legislature exclude the writ jurisdiction of the High Court by the establishment of a Tribunal. Since private educational institutions do not qualify as “State” within the meaning of Article 12, they are not amenable to the writ jurisdiction of the High Court. Therefore, the establishment of an education tribunal for the adjudication of disputes of private educational institutions, does not exclude the writ jurisdiction of the High Courts under Articles 226/227 of the Constitution.
Unlike the case in T.M.A Pai, the Uttar Pradesh Bill does not contain the words “private schools and institutions” which essentially means that it is only meant for the Government Educational Institutions which qualify as ‘State’ within the meaning of Article 12, thereby making them amenable to the writ jurisdiction of the High Courts under 226/227 of the Constitution. Section 8 of the Bill nefariously attempts to bypass this writ jurisdiction of the High Court. To this effect, it reads as:-
“8.On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by the Tribunal in relation to service matters of teachers and non teaching employees working in an educational institution, no court except the Supreme Court shall have or be entitled to exercise any jurisdiction, power or authority in relation to such service matters” (emphasis supplied).
This runs counter to the dictum of the apex Court in the case of L Chandra Kumar v. Union of India as mentioned above. It is pertinent to note here that the ruling in L Chandra Kumar also held Article 227 to be a part of the basic structure of the Constitution of India. This essentially means that the ruling is not limited only to the tribunals enacted under Article 323A and 323B but also extends to the tribunals which have been formed under Lists II and III and which come under the High Court’s power of superintendence by virtue of Article 227 of the Constitution, thus covering the U.P Education Tribunal in the present case.
More specifically, Section 8 of the U.P Bill bypasses judicial review of the decision of a statutory/quasi-judicial authority. In a recent judgement of the Supreme Court in M/S Embassy Property Developments Pvt Ltd v. State of Karnataka, a three-judge bench of the Supreme Court categorically held that the High Court can entertain a writ petition under Article 226 against an order of NCLT (a statutory/quasi-judicial authority) under an IBC proceeding. The court clarified that the decisions of statutory or quasi-judicial authorities can be only be corrected by way of judicial review of the administrative action.
Even under ‘special circumstances’, Section 10 of the Bill only allows an aggrieved party to invoke the ‘revision’ powers of the High Court on the ground that the matter involves a ‘question of law’. To this effect, Section 10(1) reads as:
“10. Any person or authority aggrieved. by an order made. by the Tribunal, may, within 90 days from the date of order, apply to the High Court for revision of such order on the ground that the case involves any question of law.”
This provision essentially restricts the writ jurisdiction of the High Court under Articles 226/227 of the Constitution to a mere revisional jurisdiction which can only be invoked under special circumstances. A combined reading of Sections 8 and 10 therefore, amply illustrate the State’s attempts to clip the wings of the High Courts and willingly flout the basic structure of the Constitution.
While the bill needs to be scrutinised for what it says as mentioned above, it needs a closer scrutiny for what it does not say. For instance, the bill is completely silent on the issue of having any statutory appeal against the decision of the Education Tribunal. This essentially translates to a situation where a litigant may only have a recourse to the ‘revisional’ jurisdiction of the High Court against an order of the Education Tribunal and that too, under special circumstances. This silence of the Bill is especially concerning, inasmuch as even the legislations establishing Education Tribunals for private educational institutions provide for a statutory appeal against any order/direction/judgement of the Tribunal before the High Court. (For example, See, The Jharkhand Education Tribunal Act, 2005, §16).
It was perhaps due to the foregoing reasons that the Governor of Uttar Pradesh in exercise of his powers under Article 200 referred the bill to the President, as it aims to curtail the power of the High Court. Article 200 essentially puts the Governor under an obligation to protect the wide powers of the High Courts from being divested by the legislature. To this effect, the proviso of Article 200 reads as:-
“Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.”(emphasis supplied).
Having apprised the reader of the legislative incompetence of the State to enact the said Bill, we now move on to argue how the Bill grossly violates the principles of Independence of the Judiciary.
II. Judicial Independence
Another glaring flaw with this bill is regarding the composition of the education tribunal, as technical members exceeded the number of judicial members. Illustratively, Section 3(2) of the Bill provides for:
“[A] Chairperson, a Vice Chairperson (Judicial), a Vice Chairperson (Administrative) and such other Judicial and Administrative members not less than three in each category as may be determined by the State Government” (emphasis supplied)
Additionally, Section 3(3)(a) of the Bill lists out the qualifications required for the appointment as a chairperson. Essentially, it requires the appointee to either:
“(i) [have] been a Judge of a High Court; or
(ii) [have] for at least two years held the post of Vice Chairperson (Judicial); [or]
(iii) [have] been a member of the Indian Administrative Service and held the post of a Secretary to the Government of India or any other post under the Central or State Government equivalent thereto, and [have] adequate experience in dispensation of justice.”
This provision may essentially create a situation where the Tribunal comprises three Judicial Members and four administrative members with the chairperson being an administrative member. Such a composition is not permissible under our constitutional scheme as it has the potential to put the judicial member(s) in minority, thus giving primacy to the executive.
Bearing in mind the principles of Judicial Independence, a five-judge bench of the Supreme Court in Rojer Mathew v. South Indian Bank Ltd, while reiterating the need to secure the independence of judiciary, struck down the rules framed under the Finance Act, 2017 as they did not comply with directions issued in Union Of India v. R Gandhi. Borrowing from R Gandhi, a five judge bench, which reviewed the Constitutional validity of Parts I-B and I-C of The Companies Act, 1956 inserted by the Companies (2nd Amendment) Act, 2002, held that:-
“48. if Tribunals are established in substitution of Courts, they must also possess independence, security and capacity. Additionally, with transfer of jurisdiction from a traditional Court to a Tribunal, it would be imperative to include members of the judiciary as presiding officers/members of the Tribunal. Technical members could only be in addition to judicial members and that also only when specialised knowledge or know-how is required. Any inclusion of technical members in the absence of any discernible requirement of specialisation would amount to dilution and encroachment upon the independence of the judiciary.” (emphasis supplied)
It is pertinent to note here that, in Union of India v. R Gandhi, the court found out that certain provisions of Company (Second Amendment) Act, 2002 suffered from unconstitutional “defects.” In an attempt to cure such defects, the Court suggested certain corrections which, inter-alia, included the following suggestion:- “xiii. Two-member Benches of the Tribunal should always have a judicial member. Whenever any larger or special Benches are constituted, the number of technical members shall not exceed the judicial members.” (emphasis supplied).
The composition of the GST Appellate Tribunal was also declared unconstitutional by the Madras High Court in the case of Revenue Bar Association v. Union Of India on similar grounds. In this case, the High Court dealt with the constitutional validity of Sections 109 and 110 of Chapter XVIII of the Central Goods and Service Tax (CGST) Act, which said that the Tribunal should have one judicial member and two technical members, each from the Centre and State, a composition which was held to be impermissible under our constitutional scheme.
Thus, from a perusal of the above cases, it is sufficiently clear that Technical/Administrative members cannot override the number of Judicial Members in a Tribunal. It is also clear that the Chairperson of the Tribunal should necessarily be a judicial member in order to safeguard the judiciary from excessive executive interference.
Tribunals create a unique situation where the State, being the biggest litigant or stakeholder in our judicial system, itself becomes a part of the adjudicating body. This strikes at the very root of judicial independence which becomes prone to being caught in the crosshairs of the legislative sniper. While we cannot disregard the aid and assistance of technical/administrative members, who with the help of their expertise and specialised knowledge facilitate the justice delivery process, we have to be cautious that their presence is not translated to their dominance in the Justice delivery system.
In light of the growing need to unload the burden of the superior courts, tribunalisation has been increasing at a breakneck pace. These Tribunals unarguably are an essential part of the justice delivery system and they require complete autonomy and independence while effectively discharging their onerous duties of dispensing justice. However, it is trite to mention that Tribunals have not yet achieved full independence and despite the Court’s exhaustive directions issued in R. Gandhi, they increasingly continue to undermine the Constitution.
As far as the U.P Bill is concerned, the following corrections may be required to make the Bill constitutionally permissible
- Section 3(2) should be amended to conclusively ensure that the number of administrative members do not exceed the number of judicial members.
- Section 3(3)(a) should be amended to ensure that the Chairperson is a judicial member only.
- Section 8 of the Bill should be amended to ensure that the writ jurisdiction of the Allahabad High Court under Articles 226/227 is not excluded.
- Section 10 of the bill should provide a statutory appeal to the Allahabad High Court against any order/direction/judgement of the Tribunal.
However, until the time the directions of the Court in R Gandhi are not complied with; or a Single Nodal Agency under the aegis of the Ministry of Law and Justice to monitor the working of Tribunals as suggested by the Law Commission of India in its 272nd Report is not established, this responsibility to ‘cure’ the unconstitutional defects in Tribunals would have to remain with the Superior Courts of the country.