Identifying the ‘Outsider’ enforcement is within the broad parameters of the agreed basic notions — is what constitutes the premise of the rule of law. 48 In addition to the restrictions and limitations imposed by legislation and the constitution, the power of an adjudicator is constrained by rules of interpretation and precedent. The power allocated to a judge is also meant to be exercised for keeping parliament and the executive within its limits, as set by the legal framework. While in law there is a distinction between ‘courts’ and ‘tribunals’, 49 even persons (whether legally qualified or otherwise) presiding over tribunals are expected to perform judicial functions, for they too draw legitimacy from the state’s monopoly over the judicial power. 50 Both courts and tribunals are required to act judicially and apply the law without fear or favour. 51 In the Indian context, the common law understanding of the rule of law, including its independence and adherence to a fair and identified procedure, applies to both courts and tribunals. International obligations, to the extent not inconsistent with domestic law, are also applicable. Increasingly, Indian domestic law is being tested on the anvil of the concept of rule of law, which includes fair trial guarantees whose content is supplemented by international human rights law. 52 The rule of law also inheres in the application of the law to protect human rights and distinguishes the rule of law from rule by law. In other words, the march is towards ‘Rechstaat’. 53 Against this broad overview of the concept of the rule of law, this article now turns to identify the specific factors relevant to an assessment of the FTs. It is contended that for a tribunal to be valid under Indian law, it is fundamental that it passes the following test. First, the establishment of a tribunal must be by a validly enacted law, consistent with the requirements of the rule of law and the constitution. This is the law governing the creation, establishment and powers of the tribunal. 54 The purpose of this approach is to ensure that tribunals are independent and capable and remain so. This precept is on the basis that in a democracy, elected representatives of the people can debate, deliberate and refine the law that are to apply to them, and any changes to the law would also need to undergo the same process that ensures no despotic bureaucrat can change the structure of the laws overnight. Such a restriction in the Constitution, in addition to the precepts of the rule of law, also flows from art 323-B of the Constitution, which requires creation of tribunals by laws made by legislature. Second, the tribunal must be capable, competent, independent, fair and protected from external influence and must be able to act judicially. 48 49 50 51 52 53 54 See Lord Bingham, ‘The Rule of Law’ (2007) 66(1) Cambridge Law Journal 67. See Bellur Narayanaswamy Srikrishna, ‘The Indian Legal System’ (2009) 36(2) International Journal of Legal Information 242. One broad distinction that is necessary to make at this juncture — by and large, the tribunals in India do not have the power to order detention or to regulate custody of any person. This power has been vested with magistrate’s courts alone. See Arun K Thiruvengadam, ‘Tribunals’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press 2015) 412. Naorem Sanajaoba, ‘International Dimensions of Human Rights and International Obligations of India’ (1998) 40(1/4) Journal of the Indian Law Institute 87. See N W Barber, ‘The Rechtsstaat and the Rule of Law’ (2003) 53(4) The University of Toronto Law Journal 443; Loammi C Blaau ‘The Rechtsstaat Idea Compared with the Rule of Law as a Paradigm for Protecting Rights’ (1990) 107 South African Law Journal 76. The Illegal Migrants (Determination by Tribunal) Act, 1983 (n 28) provided for such safeguards. 120