Tribunals and the separation of powers

Indian Constitutional Law - New Challenges · Unit V · Topic 19 of 21 · 5 min read

Articles 323A and 323B, the line from Sampath Kumar and L. Chandra Kumar to the Madras Bar Association cases, the Tribunals Reforms Act 2021 and the 2025 judgment, and why tribunalisation is a contest over judicial independence.

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On this page

1. The constitutional basis
2. The founding cases
3. Independence of members
4. The rules cases and the Tribunals Reforms Act
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Tribunals sit on the boundary between the executive and the judiciary. Parliament creates them to relieve the courts and bring in expertise; the Court has insisted that when they take over the work of courts they must be as independent as courts. The answer is a sequence of cases, each a round in a dialogue with Parliament, and the theme is that the Court has controlled tribunalisation through judicial review and independence, not by forbidding it.

1. The constitutional basis

The Forty-second Amendment (1976) inserted Part XIVA. Article 323A allows Parliament to set up administrative tribunals for disputes about recruitment and conditions of service of public servants; Article 323B allows Parliament or a State legislature to set up tribunals for listed matters such as taxation, foreign exchange, industrial and labour disputes, land reforms, elections and rent. Both originally allowed the law to exclude the jurisdiction of all courts except the Supreme Court under Article 136. The Administrative Tribunals Act 1985 created the Central Administrative Tribunal. Many other tribunals rest on ordinary legislative competence rather than Part XIVA.

The theoretical background is old. Dicey’s idea of the rule of law distrusted administrative adjudication; the Franks Committee (UK, 1957) answered that tribunals are machinery for adjudication, not part of administration, and must show openness, fairness and impartiality. The United Kingdom later brought its tribunals into a unified system under the judiciary by the Tribunals, Courts and Enforcement Act 2007.

2. The founding cases

S.P. Sampath Kumar v. Union of India, 1986 INSC 259: the exclusion of High Court jurisdiction in service matters was upheld because the tribunal was to be an effective substitute for the High Court, with changes to the qualifications and selection of its members to secure that.
L. Chandra Kumar v. Union of India, 1997 INSC 288: a seven-judge Bench struck down Articles 323A(2)(d) and 323B(3)(d) to the extent they excluded the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32. Judicial review by the constitutional courts is part of the basic structure. Tribunals are supplementary, not substitutes: they may act as courts of first instance, but their decisions are subject to review by a Division Bench of the High Court. The Court also recommended that all tribunals be placed under a single nodal ministry instead of the ministries whose orders they review.

3. Independence of members

Union of India v. R. Gandhi, President, Madras Bar Association, 2010 INSC 305: Parliament may transfer the company jurisdiction of High Courts to the National Company Law Tribunal, but when it moves judicial functions to a tribunal it must give it the independence and competence of the court it replaces. Provisions on technical members and selection committees were found defective.
Madras Bar Association v. Union of India, 2014 INSC 685: the National Tax Tribunal Act 2005 was struck down. Appeals on substantial questions of law, a core High Court function, could not be moved to a tribunal staffed partly by non-judges and controlled by the executive.

4. The rules cases and the Tribunals Reforms Act

The Finance Act 2017 merged several tribunals and gave the Union power to make rules on the qualifications, appointment and tenure of members.

Rojer Mathew v. South Indian Bank, 2019 INSC 1236: the 2017 Rules were struck down for violating independence, and fresh rules were directed. The question whether the Finance Act was properly passed as a Money Bill was referred to a larger Bench.
Madras Bar Association v. Union of India, 2020 INSC 666: directions on the 2020 Rules, including a five-year tenure, eligibility of advocates with ten years’ practice, and the setting up of a National Tribunals Commission.
Madras Bar Association v. Union of India, 2021 INSC 332: provisions of the Tribunals Reforms Ordinance 2021 fixing a four-year tenure and a minimum age of fifty were struck down as contrary to the earlier directions.

Parliament then passed the Tribunals Reforms Act 2021, which re-enacted the same tenure and age provisions and abolished several appellate bodies, including the Intellectual Property Appellate Board and the Film Certificate Appellate Tribunal, sending their work to the High Courts. In Madras Bar Association v. Union of India, 2025 INSC 1330, decided on 19 November 2025 by a Bench led by Gavai CJ, the Court struck down the provisions that repeated what it had already invalidated, holding that Parliament cannot override a judgment by re-enacting the same provision without removing the basis of the decision, and directed the Union to set up a National Tribunals Commission.

The debate. The case for tribunals: arrears, speed, expertise in tax, telecom, competition and environment, and lower cost. The case against, as the Court has seen it: members appointed and re-appointed by the ministry whose decisions they review, short tenures that encourage deference, long vacancies, and appeals that go straight to the Supreme Court, so that High Courts lose their supervisory role and litigants face a distant forum. The dispute is about who controls adjudication. A strong answer links it to Chandra Kumar (judicial review), the Judges cases (judicial primacy in appointments) and the doctrine against legislative override of judgments. Compare the UK, where tribunals are led by a Senior President of Tribunals within the judiciary, and the United States, where administrative law judges sit inside agencies and their appointment has itself been challenged under the Appointments Clause (Lucia v. SEC, 2018).

How this is examined

Essays: “tribunalisation of justice and judicial independence”; “tribunals are supplementary, not substitutes”; the Supreme Court and the Tribunals Reforms Act. Short notes: L. Chandra Kumar, Article 323A, the National Tribunals Commission. Give the constitutional base, the case sequence, the 2021 Act and the 2025 judgment, and the debate.

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