In Supreme Court of India
Civil Appeal No. 481 of 1989
(1997 ) 3 SCC 261
AIR 1997 SC 1125
L. Chandra Kumar
Union of India
Date of Judgement
(CJI) A.M. Ahmadi, (J) M.M. Punchhi, (J) K. Ramaswamy, (J) S.P. Bharucha, (J) S. Saghir Ahmad, (J) K. Venkataswamy, (J) K.T. Thomas
To reduce the burden of service litigation from the High Courts and Supreme Court which formed a substantial portion of pending litigation, Law Commission in 1975, administrative reform commission in 1969, Swaran Singh Committee in 1975 and Supreme Court in the case of KK dutta v. Union of India recommended for the establishment of tribunals consisting of judicial and administrative members to decide service matters.
It was against this backdrop the Constitution (Forty-second Amendment) Act, 1976 inserted Part XIV-A in the Constitution which contains Articles 323-A and 323-B. These Articles have been brought up to set up various tribunals as adjudicatory bodies. These enable the Parliament as well as the State Legislatures, to exclude the jurisdiction of all courts except that of this Court under Article 136 regarding matters falling within the jurisdiction of the concerned tribunals.
Pursuant to the provisions of the Act, the Central Administrative Tribunal, with five Benches, was established on November 1, 1985. However, even before the Tribunal had been established, several writ petitions had been filed challenging the constitutional validity of Article 323A and 323B of the Constitution for excluding the jurisdiction of this Court under Article 32 of the Constitution and of that of the High Courts under Article 226 of the Constitution.
The vires of the Act was challenged before this Court which was upheld in Sampath Kumar’s case. The court in Sampath Kumar’s case took the view that most of the original grounds of challenge – which included a challenge to the constitutional validity of Article 323A – did not survive as the changes asked were already incorporated and restricted its focus to testing only the constitutional validity of the provisions of the Act. In its final decision, the Court held that though judicial review is a basic feature of the Constitution, the vesting of the power of judicial review in an alternative institutional mechanism, after taking it away from the High Courts, would not do violence to the basic structure so long as it was ensured that the alternative mechanism was an effective and real substitute for the High Court.
While upholding the validity of Section 28 of the Act in Sampath Kumar’s case this Court took the view that the power of judicial review need not always be exercised by an equally efficacious alternative mechanism and not necessarily by regular courts. This Court stated that every Bench of the Tribunal should consist of one Judicial Member and one Administrative Member.
It was held by a Division Bench of this court on 2/12/1994 that the decision rendered by a five-Judge Constitution Bench of this Court in S.P. Sampath Kumar v. Union of India needs to be comprehensively reconsidered by a larger bench.The order of the Division Bench was rendered after it had considered the arguments to the validity of Section 5(6) of the Administrative Tribunals Act, 1985. The main reason that can be accorded to have a fresh look at the issues involved in Sampath Kumar’s case is the observations of the Bench therein by which the tribunals have been equated with the High Courts .
Let us look at the various cases decided after Sampath kumar’s case and the divergent views involved:
a. In J.B. Chopra v. Union of India, relying upon Sampath Kumar, the court held that the Tribunals have the jurisdiction, power and authority even to adjudicate upon questions pertaining to the constitutional validity of a rule under the proviso to Article 309 of the Constitution framed by the President of India. They can even adjudicate on the vires of the Act of Parliament and State Legislatures. This power is given by Section 5(6) of the Act to even a single Administrative member, if so desired by the Chairman.
b. In Amulya Chandra Kalita v. Union of India, the Court held that the Administrative Member of Tribunal alone is not competent to hear and decide a case. The Act was amended vide its Section 5(2) as substituted by Act 19 of 1986. The attention of the Bench deciding Amulya Chandra Kalita’s case, however, was not invited to Section 5(6).
c. The aforesaid point came to be examined again in Dr. Mahabal Ram v. Indian Council of Agricultural Research. Regarding section 5(6) of the Act, it opined that any matter involving questions of law or interpretation of constitutional provision should be assigned to a two-Member Bench and parties can request the single Member to refer the matter to a larger Bench of two Members and such request should ordinarily be accepted.
d. Shri Rama Jois, attacking the validity of sub-section (6), has raised an issue regarding the view taken in Sampath Kumar’s case that it is not necessary that the judicial power be always exercised by regular courts. This, according to the learned counsel is contrary to the dicta laid down in Kesvananda Bharati v. State of Kerala and also the recent view in Sakinala Harinath v. State of Andhra Pradesh by a Full Bench of Andhra Pradesh High Court. Another facet relates to the equality of status between the Tribunals and the High Courts.
e. A note discordant to that of Sampath Kumar was struck in this regard in M.B. Majumdar v. Union of India, holding that Administrative Tribunals cannot be equated with the High Court in all respect and they are not deemed High Courts, due to which their pay and age of superannuation cannot be equated with High Court Judges.
f. Another view taken by this Court was in State of Orissa v. Bhagwan Sarangi wherein it was held that a Tribunal established under the Act is nonetheless a tribunal and it cannot side-track a decision of the concerned High Court.
g. In R.K. Jain v. Union of India, it was emphasized that to enable the Tribunal of becoming capable of acting as effective alternative institutional mechanism, there is a need for the Members of the Tribunal to have adequate legal expertise, judicial experience and legal training to dispense with High Court’s power of judicial review. It was however opined that such tribunals being creature of statutes can in no case claim the status of the High Court or parity or as substitutes.
After analysing the relevant constitutional provisions and the circumstances which led to the decision in Sampath Kumar’s case, the Bench reached the conclusion that on account of the divergent views expressed by this Court in a series of cases decided after Sampath Kumar’s case, the resulting situation warranted a “fresh look by a larger Bench over all the issues adjudicated by this Court in Sampath Kumar’s case.
Facts: The case has been referred to this court to be decided by a larger bench to settle the divergent views expressed by this court in a series of cases decided after the case of Sampath kumar over all the issues adjudicated by this court in Sampath Kumar’s case.
a) To hold Article 323A(2)(d) and Article 323B(3)(d) of the Constitution to be unconstitutional to the extent they allow Tribunals created under the Act to exclusively exercise the jurisdiction vested in the High Courts under Articles 226 and 227 of the Constitution and that the power to interpret the provisions of the constitution is solely vested in the constitutional courts and cannot be bestowed on newly created quasi judicial bodies which are susceptible to executive influences.
b) To hold Section 5(6) of the Act, in so far as it allows a single Member Bench of a Tribunal to test the constitutional validity of a statutory provision, unconstitutional.
c) The impugned provisions of the Constitution, in so far as they exclude the jurisdiction of the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution, are unconstitutional. This is for the reason that: (i) Parliament cannot, in the exercise of its constituent power, confer power on Parliament and the State Legislatures to exclude the constitutional jurisdiction conferred on the High Courts as the power to amend the Constitution cannot be conferred on the Legislatures and (ii)These provisions violate the basic structure of the Constitution insofar as they take away the power of judicial review vested in the Supreme Court under Article 32 of the Constitution and the Courts under Articles 226 and 227 of the Constitution. While the Tribunals constituted under Articles 323A and 323B can be vested with the power of judicial review over administrative action, the power of judicial review of legislative action cannot be conferred upon them. This proposition flows from Kesavananda Bharati’s case where it was held that under our constitutional scheme, only the constitutional courts have been vested with the power of judicial review of legislative action
d) While the provisions of the Act do not purport to affect the sacrosanct jurisdiction of the Supreme Court under Article 32 of the Constitution, Articles 323A and 323B allow Parliament to pursue such a course in future and are therefore liable to be struck down.
e) The decision in Sampath Kumar’s case was founded on the hope that the Tribunals would be effective substitutes for the High Courts. This position is neither factually nor legally correct on account of the following differences between High Courts and these Tribunals: (i) High Courts enjoy vast powers as a consequence of their being Courts of Record under Article 215 of the Constitution and also possess the power to issue Certificates of Appeal under Articles 132 and 133 of the Constitution in cases where they feel that a decision of this Court is required. This is not so for Tribunals; (ii) the qualifications for appointment of a High Court Judge and the constitutional safeguards provided ensure the independence of and efficiency of the Judges who man the High Courts. The conditions prescribed for Members of Tribunals are not comparable; (iii) While the jurisdiction of the High Courts is constitutionally protected, a Tribunal can be abolished by simply repealing its parent statute; (iv) While the expenditure of the High Courts is charged to the Consolidated Fund of the States, the Tribunals are dependent upon the appropriate Government for the grant of funds for meeting their expenses.
f) Under our constitutional scheme, every High Court has, by virtue of Articles 226 and 227 of the Constitution, the power to issue prerogative writs or orders to all authorities and instrumentalities of the State which function within its territorial jurisdiction. In such a situation no authority or Tribunal located within the territorial jurisdiction of a High Court can disregard the law declared by it. The impugned constitutional provisions, in so far as they seek to divest the High Courts of their power of superintendence over all Tribunals and Courts situated within their territorial jurisdiction, violate the basic structure of the Constitution.
g) In view of the aforestated propositions, the decision in Sampath Kumar’s case requires a comprehensive .reconsideration
h) The High Courts had been in existence since the 19th century enabling them to win the confidence of the people. It is this which prompted the framers of our Constitution to vest such constitutional jurisdiction in them. A Tribunal, being a new creation of the executive, would not be able to recreate a similar tradition and environment overnight.
a) To uphold the validity of the impugned constitutional provisions and to allow such Tribunals to exercise the jurisdiction under Article 226 of the Constitution.
b) It is a well-established proposition in law that the jurisdiction of this Court under Article 32 of the Constitution is sacrosanct and is indisputably a part of the basic structure of the Constitution. This position had been clearly enunciated well before the 42nd Amendment to the Constitution was conceived. Therefore, Parliament must be deemed to have been aware of such a position and it must be concluded that the jurisdiction under Article 32 was not intended to be affected. However, the jurisdiction of the High Courts under Article 226 was sought to be removed by creating alternative institutional mechanisms.
c) The theory enunciated in Sampath Kumar’s case is based on sound considerations and does not require any reconsideration.
d) Alternatively, Articles 323A and 323B do not seek to exclude the supervisory jurisdiction of the High Courts over all Tribunals situated within their territorial jurisdiction. Viewed from this perspective, the High Courts would still be vested with constitutional powers to exercise corrective or supervisory jurisdiction.
e) Since the decisions of this Court in Amulya Chandra’s case and Dr. Mahabal Ram’s case had clearly held that matters relating to the vires of a provision are to be dealt with by a Bench consisting of a judicial member and these guidelines will be followed in future, there is no vice of unconstitutionality in Section 5(6)
(1) Whether the power conferred upon Parliament or the State Legislatures by sub-clause (d) of clause (2) of Article 323-A or by sub- clause (d) of clause (3) of Article 323-B of the Constitution, to totally exclude the jurisdiction of `all courts’, except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in Article 323-A(1) or Article 323-B(2), is against the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution?
(2) Whether the Tribunals, constituted either under Article 323-A or under Article 323-B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/rule ?
(3) Whether these Tribunals with their present functioning can be said to be effective substitutes for the High Courts in discharging the power of judicial review ? If not, what are the changes required to make them conform to their founding objectives ?
The Statement of Objects and Reasons of the Act indicates that it was in the express terms of Article 323A of the Constitution that the reason for its enactment was to reduce the large number of cases relating to service matters pending before various Courts. This will not only reduce the burden of the various courts and thereby giving them more time to deal with other cases expeditiously but would also provide speedy relief to the persons covered by the Administrative Tribunals in respect of their grievances. It was intended to provide a self-contained, almost wholly exclusive (the exceptions being specified in Section 28) forum for adjudication of all service-related matters and to perform a substitutional role as opposed to a supplemental role with regard to the High Courts. But even after so many years of working of these alternative institutional mechanisms, they have proved to be ineffective in exercising the high power of judicial review. Thereafter, it was noted that the sole remedy provided, that of an appeal to this Court under Article 136 of the Constitution, had proved to be prohibitively costly while also being inconvenient on account of the distances involved.
We are conscious of the fact that when a Constitution Bench of this Court in Sampath Kumar’s case adopted the theory of alternative institutional mechanisms, it was attempting to remedy an alarming practical situation as since independence, the population explosion and the increase in litigation had greatly increased the burden of pendency in the High Courts.
The reason for the inefficiency of these tribunals is that they have not been able to inspire confidence in the public mind due to lack of competence, objectivity, judicial approach, constitution, the power and method of appointment of personnel, the inferior status and the casual method of working. And also due to uncertainty of tenure, unsatisfactory conditions of service, executive subordination in matters of administration and political interference in judicial functioning, men of calibre are not willing to be appointed as presiding officers in view of the For these and other reasons, the quality of justice is stated to have suffered and the cause of expedition is not found to have been served by the establishment of such tribunals.
A Tribunal which substitutes the High Court as an alternative institutional mechanism for judicial review must be no less efficacious than the High Court. Such a tribunal must inspire confidence and public esteem that it is a highly competent and expert mechanism with judicial approach and objectivity. The requirement of a Tribunal which is to supplant the High Court, is legal training and experience, and judicial acumen, equipment and approach
A sound justice delivery system is a sine qua non for the efficient governance of a country wedded to the rule of law. An independent and impartial justice delivery system in which the litigating public has faith and confidence alone can deliver the goods.
When analysing the manner in which the framers of our Constitution incorporated provisions relating to the judiciary, it indicates that they were very greatly concerned with securing the independence of the judiciary. It has been attempted to ensure that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, retirement age of Judges salaries, allowances and the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions is so that the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. The Judges of the superior courts have been given the task of upholding the Constitution and have been conferred the power to interpret it. They are supposed to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty of oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. These constitutional safeguards which ensure the independence of the Judges of the superior judiciary, have not been given to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations and so the subordinate Judges can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation.
In this regard, the position in American Constitutional Law in respect of Courts created under Article III of the Constitution of the United States has been analysed to state that the functions of Article III Courts (constitutional courts) cannot be performed by other legislative courts established by the Congress in the exercise of its legislative power.
The Supreme Court has always considered the power of judicial review vested in the High Courts and in the Supreme Court under Articles 226 and 32 respectively, subjecting the legislative action to the scrutiny of superior courts, to be integral to our constitutional scheme. Now to look at the issue of whether the power of judicial review vested in the High Courts and in the Supreme Court under Articles 226/227 and 32 is part of the basic structure of the Constitution, we need to first understand what constitutes the basic structure of the Constitution. The Doctrine of basic structure was evolved in Kesavananda Bharati’s case. That case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution. In Indira Gandhi’s case, it was held that the proper approach for a Judge who is confronted with the question whether a particular facet of the Constitution is part of the basic structure, is to examine, in each individual case, the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of our Constitution as a fundamental instrument for the governance of the country.
Broadly speaking, judicial review in India comprises three aspects : judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action.
In the modern era, the origin of the power of judicial review of legislative action may well be traced to the classic enunciation of the principle by Chief Justice John Marshal of the U.S. Supreme Court in Marbury v. Madison. It is the duty of the judicial department to say what the law is. Only those who apply the rule to particular cases, must interpret that rule. A law repugnant to the Constitution is void. This instrument binds the Courts as well as other departments. Only courts possess the power to invalidate duly enacted legislations.
While several judgements have made specific references to this aspect (Beg and Khanna in keshavnanda bharti and chandrachud and bhagwati in minerva mills) the rest have made general observations highlighting the significance of this feature. It becomes clearly discernible from the statement of Dr. ambedkar who stated in the drafting committee of the constituent assembly that Article 32 is the most importance article and it is the heart and soul of the constitution along with the the following cases, the importance of judiciary and that judicial review is one of the basic structures of the constitution and the power of constitutional courts in India in respect of judicial review of legislative action:
a) In Bidi Supply Company v. The Union of India and others, it was held that the heart and core of a democracy lies in the judicial process, and that means independent and fearless judges free from executive control brought up in judicial traditions and training to judicial ways of working and thinking. The uncontrolled powers of discrimination in matters that seriously affect the lives and properties of people cannot be left to executive or quasi executive bodies even if they exercise quasi judicial functions because they are then invested with an authority that even Parliament does not possess. The acts of Parliament, which are said to infringe fundamental rights, are subject to judicial review under the Constitution, therefore if under the Constitution Parliament itself has not uncontrolled freedom of action, it is evident that it cannot invest lesser authorities with that power.
b) In Special Refence No. 1 of 1964, the Court was required to consider the manner in which our Constitution has envisaged a balance of power between the three wings of Government and it was in this context it held that whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by a Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative functions, and the functions and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country.
c) In Kesavananda Bharati’s case, it was held that though by virtue of Article 368, Parliament can amend the Constitution, but not to such an extent that would destroy its basic structure or damage the basic features of the Constitution. The power of judicial review enables the court to deal with the question as to whether the laws are made in conformity with and not in violation of the other provisions of the Constitution and not just confines it in deciding whether in making the impugned laws the Central or State Legislatures have acted within the four corners of the legislative lists earmarked for them; the courts also As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened.
d) In Indira Nehru Gandhi v. Raj Narain that the concept of judicial review, while a distinctive feature of American Constitutional Law, is not founded on any specific Article in our Constitution. Though judicial review is not a compulsion, judicial power, which is vested in the judiciary cannot be passed to or shared by the Executive or the Legislature for support.
e) In Fertiliser Corporation Kamgar Union v. Union of India, the jurisdiction conferred on the Supreme Court by Article 32 is held to be an important and integral part of the basic structure of the Constitution.”
f) In Minerva Mills v. Union of India, it was held that our Constitution is founded on a nice balance of power among the three wings of the State, namely, the Executive, the Legislature and the Judiciary. It is the function of the Judges, and their duty, to pronounce upon the validity of laws. Depriving the courts of that power will make the fundamental rights conferred upon the people a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled. The reasonability of the restrictions is to be decided by the courts and also whether they are in the interest of the particular subject.
The Constitution has, therefore, created an independent machinery for resolving these disputes and this independent machinery is the judiciary which is vested with the power of judicial review to determine the validity of legislation passed by the legislature and the legality of executive action. It is the solemn duty of the judiciary under the Constitution to keep the different organs of the State such as the executive and the legislature within the limits of the power conferred upon them by the Constitution. This power of judicial review is conferred on the judiciary by Articles 32 and 226 of the Constitution. The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of government, and if limited, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that “the exercise of powers by the government whether it be the legislature or the executive or any other authority, be subjected to the Constitution and the law”. The power of judicial review is an integral part of our constitutional system making it a part of the basic structure of the Constitution.
g) Relying on the judgment of Sakinala Harinath and others v. State of A.P in which Article 323A(2)(d) of the Constitution was declared to be unconstitutional to the extent it empowers Parliament to exclude the jurisdiction of the High Courts under Article 226 of the Constitution; additionally, Section 28 of the Act has also been held to be unconstitutional to the extent it divests the High Courts of jurisdiction under Article 226 in relation to service matters.
The judgment of the Andhra Pradesh High Court has, after analysing various provisions of our Constitution, held that under our constitutional scheme the Supreme Court and the High Courts are the sole repositories of the power of judicial review and within this power is included the power to pronounce upon the validity of statutes, actions taken and orders passed by individuals and bodies falling within the ambit of the expression “State” in Article 12 of the Constitution, has only been entrusted to the constitutional Courts, i.e., the High Courts and this Court. For this proposition, support has been drawn from the rulings of this Court in Kesavananda Bharati v. State of Kerala, Indira Nehru Gandhi v. Raj Narain, Minerva Mills Ltd. v. Union of India, Kihoto Hollohan v. Zachillu and others.
Analysing the decision in Sampath Kumar’s case against this backdrop, it is noted that the theory of alternative institutional mechanisms established in Sampath Kumar’s case is in definance of the proposition laid down in Kesavananda Bharti’s case, Special Reference Case and Indira Gandhi’s case, that the Constitutional Courts alone are competent to exercise the power of judicial review to pronounce upon the constitutional validity of statutory provisions and rules. It was held by the High Court that the issue of constitutionality of Article 323A(2)(d) was neither challenged nor upheld in Sampath case and it could not be said to be an authority on that aspect. Further, the High Court held that service matters which involve testing the constitutionality of provisions or rules, being matters of grave import, could not be left to be decided by statutorily created adjudicatory bodies, as they would be influenced by executive pressures. The High Court also cited reasons for holding that the sole remedy provided, that of an appeal under Article 136 to this Court, was not capable of being a real safeguard. It was also pointed out that even the saving of the jurisdiction of this Court under Article 32 of the Constitution would not help improve matters. It was, therefore, concluded that although judicial power can be vested in a Court or Tribunal, the power of judicial review of the High Court under Article 226 could not be excluded even by a constitutional Amendment.
Judicial review has thus become an integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of provisions of statutes. The Supreme Court and the High Courts are empowered to strike down the provisions which are found to be violative of any article of the Constitution.
In view of the reasoning adopted, the court has held that:
a) Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional.
But to hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of the Constitution, the frivolous claims will be filtered by adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.
We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided
b) All the “exclusion of jurisdiction” clauses in the legislation enacted under the aegis of Articles 323A and 323B would, along with Section 28 of the Act will be unconstitutional.
c) The jurisdiction conferred upon the High Courts under Article 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution.
d) The Tribunals created under Article 323A and Article 323B of the Constitution have the competence to test the constitutional validity of statutory provisions and rules. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nonetheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted and so it will not be open for the litigants to directly approach the High Courts even in cases where they question the vires of the statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules with an exception that they shall not entertain any question regarding the vires of their parent statutes. In such cases alone, the concerned High Court may be approached directly.
Also, under the existing system, direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution but now this situation will stand modified. In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution
e) Section 5(6) of the Act is valid and constitutional as where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a single Member Bench of the Administrative Tribunal, the proviso to Section 5(6) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a single Member Bench or a Bench which does not consist of a Judicial Member. It must be remembered that the setting up of these Tribunals is founded on the premise that specialist bodies comprising both trained administrators and those with judicial experience would, by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of judicial members and those with grassroots experience would best serve this purpose. To hold that the Tribunal should consist only of judicial members would attack the primary basis of the theory pursuant to which they have been constituted.
f) An intensive and extensive study needs to be undertaken by the Law Commission in regard to the constitution of tribunals under various statutes to ensure the independence of these tribunals to increase public confidence in them and to improve the quality of their performance. The need of the hour is that until a wholly independent agency for the administration of all such Tribunals is up, all such Tribunals should be under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system.
It was finally decided that the matter is to be listed before a Division Bench to enable them to be decided upon their individual facts in the light of the observations contained in this judgment.
In this case, the Supreme Court changed its earlier position regarding tribunals and held that since judicial review is a fundamental, integral and essential feature of the Constitution, the jurisdiction conferred on the High Courts under Article 226/227 and upon the Supreme Court under Article 32 of the Constitution cannot be ousted even by a provision in the constitution. In view of this, the courts and tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the constitution.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje