A

B

c

L. CHANDRA KUMAR ETC. ETC.

v.

THE UNION OF INDIA AND ORS. ETC. ETC.

MARCH 18, 1997

[AM. AHMADI, CTI., M.M. PUNCHHI, K. RAi\1ASWAMY, S.P.

BHARUCHA, S. SAGHIR AHMAD, K. VENKATASWAMI AND

K.T. THOMAS, JJ.]

Constitution of llldia, 1950.

Articles 323A (2) (d) and 323B (3) (d)-Tribunals set up pursuallt to

Articles 323A and 323B-furisdiction of-Exclusion of jurisdiction of all

courts except that of Supreme Court under Article 136-Held, sub-Clause (d)

of clause (2) of Article 323A and sub-Clause (d) of clause (3) of Article 323B

are unconstitutional to the extent they exclude the jwisdiction of High Courts

D under Anicle 2261227 and that of Supreme Court under A1ticle 32.

Articles 32, 136 and 226/227-Judicial review-Held, power of judicial

review vested in Supreme Court and High Court is an integral and essential

f ea tu re of the Constitution constituting part of its inviolable basic struc­

ture-Tribunals created pursuant to Articles 323A and 323B cannot exercise

E power of judicial review of legislative action to the exclusion of High Courts

and Supreme Court-They cannot act as substitutes for High Cowts and ~

Supreme Court-However, they are competent to test the vires of statutory

provisions except the legislation which creates the particular Tribunal and they

may pe.•f onn a supplemental role in this respect: but their decisio11S will be

F subject to High Courts' writ jurisdiction under Article 226/227 before a

Division Bench-No appeal will directly lie before Supreme Court under

A1ticle 136-171ese directions will apply prospectivel)--Theory of altemative

institutional mechanism, reviewed.

Doctrine o.fprospective ovenuling-Applicabi/ity of.

G

Administrative Tribunals Act, 1985:

ss.3(t), 5(2), 5(6)-Tribunals-<:omposition of-Held, s.5(6) is valid

and constitutiona~Sub-Sections (2) and (6) of s.5 to be hannoniously

constmed-Matters

involving intepretation of

statutOI)' provisions or rules

H fiwned under Altic/es 309 of the Constitution shall be referred to a Bench

1186

1

L.CHANDRAKR.v. u.o.r. 1187

! i

consisting of at least two Members one of whom must be a judicial Member. 'A

S. 28-Exclusion of jurisdictio11 of courts-Held, s. 28 a11d the "a­

clusio11 of jwisdiction" clauses in all other legislations enacted under aegis of

A1ticles 323A a11d 323B of the Consiitution, to the v.tent they exclude

jurisdiction of High Courts and Supreme Cowt under Articles 226/227 a11d

32 of the Constitution, are zmconstitutional-Rajasthan Taxation T1ibz111al

Act, 1995-s. 14: Tamil Nadu Taxation Special Tribu11al Act. 1992-S. 14:

Tamil Nadu Land Reforms (Fixatio11 of Ceiling on Land) Amendment Act,

1983 as amended by Tamil Nadu Land Refonns (Fixation of Ceiling on

Land) Amendment Act, 1986-S. 77 G: and West Bengal Taxation Tlibwzal

Act. 1987-s. 14.

Administrative Law:

B

c

Judicial Review-Tlibunals set up under Articles 323A and 323B oflhe

Co11stitutio11-Er:ercise of power by them under A1ticles 226/227. in respective

areas of law, to the exclusion of High Court~Held, unconstitution-D

al-Tribunals cannot act as substitutes of High Court~17ieir function in this

respect is only supplemental-171eir decisions will be subject to sc111tiny before

a Division Bench of High Court-Direction given to improve functioning of

Tribunals.

Articles 323A and 323 B were inserted in the Constitution by the 42nd

Amendment with effect from 1.3.1977. Under Article 323A Parliament was

empowered to make law for setting up Administrative Tribunals to deal

exclusively with service matters. Under Article 3238 the Parliament/the

state Legislatures were empowered to enact laws providing for adjudication

E

or trial by Tribunals of disputes, complaints of offences with respect to F

matter enumerated in clause (2) of Article 3238. Sub-clause (d) of clause

(2) of Article 323A and sub-clause (d) of clause (3) of Article 3238 provided

for exclusion of jurisdiction of all courts except the jurisdiction of Supreme

Court under Article 136 of the Constitution.

The Parliament,

in pursuance of the power conferred

upon· it by

Article 323A (1) of the Constitution, enacted the Administrative Tribunals

Act, 1985, for setting

up Administrative Tribunals with a view to reduce the

burden of various courts

and to provide to the persons covered by the

Administrative Tribunals speedy relief in respect of their grievances. S.28

G

of the Act excluded the jurisdiction of all courts except that of the Supreme H

A

B

c

D

E

F

1188

SUPREME COURT REPORTS [1997) 2 S.C.R.

Court under Article 136 of the Constitution.

A large number of writ petitions were filed before various High

Court'

and this Court challenging the validity of Article 323A of the Constitution

and the provisions of the Administrative Tribunals Act as the same

ex­

cluded jurisdiction of High Courts and the Supreme Court under Article

226/227

and 32 of the Constitution. The matter ultimately came to be heard

by a 5 Judge Constitution Bench of this Court.

(S.P. Sampath Kumar v.

Union of India) [1987] 1 SCC 124. During the pendency of the case, s.28 of

the Act was amended

interalia to save the jurisdiction of this Court under

Article

32 of the Constitution. The Court took the view that most of the

grounds of challenge including challenge to the constitutional. validity of

Article

323A did not survive, and confined the decision only to the

constitu­

tional validity of the provisions of the Act. It held that though judicial

review was a. basic feature of the Constitution, the vesting of the power of

judicial review in the 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 Courts. The Court found that the Act did not

measure up to the requirements of an effective substitute

and suggested

further amendments to the

Act.

The provisions of the Administrative Tribunals Act, 1985, as it stood

amended after the decision of this Court in

Sampath

Kumar and of other

similar statutes enacted in exercise of powers under Articles

323A and 323B

of the Constitution for setting up the Tribunals relating to the subjects

enumerated therein were analysed in subsequent

decisions of this Court

and the High Courts. These decisions involved issues regarding

jurisdic­

tion, composition and functioning of the Tribunals and gave rise to the

present appeals and writ petitions filed before this Court.

In the case giving rise to Civil Appeal

No. 481of1989 validity of s.5(6)

of the Administrative Tribunals

Act, 1985 was involved whereas Civil

Ap­

peal No.169 of 1994 was filed against the judgment of a Full Bench of the

G Andhra Pradesh High Court declaring Article 323A (2)(d) of the Constitu­

tion to iJe unconstitutional to the extent it empowered the Parliament to

exclude the jurisdiction of the High Courts under Article

226 of the

Con­

stitution. Section 28 of the Administrative Tribunals Act, 1985 was also held

to be unconstitutional to the extent it divested the High Courts of jurisdic-

H tion under Article 226 of the Constitution in relation to service matters.

L. CHANDRA KR. v. U.0.1. 1189

Civil Appeals No. 1532·33 of 1993 were filed against the Judgment of the A

Calcutta High Court declaring s. 14 of the West Bengal Taxation Tribunal

Act,

1987 to be unconstitutional. Special Leave petition No. 17768 of 1991

was filed against the judgment of the Madras High Court holding that the

Tamil Nadu Land Reforms Special Appellate Tribunal set up under the

Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment

Act,

1985 would not affect the powers of the Madras High Court to issue writs.

It was held that the Legislature of the

State had no power "to infringe upon

the High Courts" power to issue writs under Articles

226 of the Constitution

and to exercise its power of su1ierintendence under Article 227 of the

Con­

stitution. The other cases also involved similar issues. Ultimately a

Division Bench of this Court felt

that the decision in Sampath

Jrumar v.

·Union of India [1987] 1 SCC 124 required to be comprehensively recon­

sidered and the matter be referred to a larger Bench. The matter was thus

referred to a Bench of seven Judges.

B

c

It was contended for the private parties in the civil appeals and the

D

writ petitions that the power of judicial review vested in the Supreme Court

under Article

32 and. in the High Courts under Article 226/227 of the

Constitution being

part of the basic structure of the Constitution, the

provisions of Articles

323A (2)(d) and 323B (3)(d) permitting the

Parlia·

ment/State Legislature to enact a law to exclude the jurisdiction of this

Court

and the High Courts under Article 32 and 226/227 respectively were E

unconstitutional; that sub-section (6) of

s'.5 of the Administrative

Tribunals Act in so far as

it allowed a Single Member Bench of a Tribunal

to test the constitutional validity of a statutory provision was

unconstitu­

tional; that s.28 of the. Administrative Tribunals Act and similar other

provisions in other enactments passed in exercise of power under Articles

323A and 323B of the Constitution divesting the High Courts of their

power under Article

226 of the Constitution were unconstitutional, and

that the Tribunals being deprived of constitutional safeguards for ensur-

ing their independence, were incapable of

being effective substitutes for the '

High Courts.

F

G

.For the Union of India and the respective State Governments it was

contended

that jurisdiction of High Courts was sought to be removed by

creating alternative institutional mechanism, but, in view of the decisions

of this Court, jurisdiction of this Court was indisputedly a

part of the basic

structure

of the Constitution and

Parliament may be deemed to have been H

1190 SUPREME COURT REPORTS -'1'

[l997] 2S.C.R. .

A aware of such a position and it may be held that jurisdiction under Article

32 was not intended to be affected. It was alternatively contended that

Articles 323A and 3238 do not seek tu exclude the supervisory jurisdiction

of the High Courts over all Tribunals situated within their territorial

jurisdiction.

It was further submitted that though the Administrative

B

Tribunals have not lived upto expectations, keeping in view the massive

arrears and enormous increase in the volume of work. in the High

Courts,

the striking down of the impugned constitutional provisions would instead

of remedying the problem, contribute to its worsening and, therefore, the

Union of India and the States concerned be allowed to further amend the

relevant provisions so as to ensure

that the Tribunals become effective

C alternative fora.

Disposing of the matters, this

Court

HELD: 1.1 Sub-clause (d) of Clause (2) Article 323A and sub-clause

(d) of Clause (3) Article 3238 of the Constitution, to the extent they exclude

D the jurisdiction of the High Courts and the Supreme Court under Articles

226/227 and 32 of the Constitution, are unconstitutional. [1250-A]

Sakinala Had11ath & ors. v. State of Andhra Pradesh & Ors., (1993) 2

An. W. R. 484-approved.

E 1.2 ·The power of judicial review over legislative action vested in the

High Courts under Article 226 and in this Court under Article 32 of the

Constitution is an integral and essential feature of the Constitution,

constituting part of its inviolable basic structure. Ordinarily, therefore, the

power of High Courts and the Supreme Court to test the constitutional

F validity of legislations can never be ousted or excluded. [1237-D-E]

S.P. Sampath kumar v. Union of India, [1987] 1 SCC 124, overruled.

Kesavananda Bharati v. State of Kerala, [1973] 4 SCC 225; Fertiliser .__

Corporation Kamgar Unio11 v. U11io11 of India, [1981] 1 SCC 568 and

G Pratibha Bonnerjea v. Union of India, [1995] 6 SCC 765, relied on.

Special Reference No. I of 1964, [1965] 1 SCR 413; Indira Nehrn

Gandhi v. Raj Narain, [1975] Supp. SCC 1; Minerva Mills Ltd. v. U11ion of

I11dia, [1980] 3 SCC 625; Kilwto Hallahan v. Zachillu and Others, [1992]

Supp. 2 SCC 651; Delhi Judicial Service Association v. State of Gujarat,

H [1991] 4 SCC 406; Bidi supply Co. v. The Union of India & Ors., [1956] SCR

·-

-

-

L. CHANDRA KR. v. u.o.r. 1191

267; State of Madras v. V.G. Row, [1952) SCR 597 and Kihoto Holloha11 v. A

Zachillu & Ors., [1992) 1 SCR 686, referred to.

Marbury v. Madison, 1 Cranch 137 (1803), referred to.

National Mugal Insurance Company of the District of Columbia v.

Tidewater Transfer Company, 93 L. Ed. 1156-337 US 582, 1710mas S. William B

v. United States, 77 L.Ed. 1372-289 US 553, Cooper v.Aaron 3 L.Ed. 2d 5-358

US 1, Northern Pipeline Constmction Company v. Marathon Pipeline Com­

pany and United States, 73 L.Ed 2d 59-458 US 50, cited.

Constituent Assembly Debates-Vol. Vll, p. 953, referred to.

Henry

J. Abraham,

The Judicial Process, 4th Edn., Oxford University

Press (1980) p.296; 171e Indian Constitution: Comer-stone of a Nation-by

Granville Austen, Oxford University Press 1972, referred to.

c

1.3 The power vested in the High Court to exercise judicial superin- D

tendence over the decisions of all Courts and Tribunals within their respec-

tive 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 equal-

ly to be avoided. [1237-FJ

1.4 Our Constitution ensures that the judidary would be capable of

effectively discharging its wide powers of judicial review. While the Con­

stitution confers the power to strike down laws upon the High Courts and

E

the Supreme Court, it also contains elaborate provisions dealing with the

tenure,

salaries, allowances, retirement age of Judges as well

;is the

mechanism for selecting Judges

to the Superior Courts. The inclusion of F

such elaborate provisions appears to have been occasioned by the belief

that,

armed by such provisions, the superior courts would be insulated

from any executive

or legislative attempts to interfere with the making of

their decisions. [1236-F-G; 1237-A]

1.5 The constitutional safeguards which ensure the independence

of

the Judges of the superior judiciary, are not available to the Judges of the

subordinate judiciary

or to those who man Tribunals created by ordinary

legislations. Consequently, Judges of the latter category can never be

con­

sidered full and effective substitutes for the superior judiciary in discharg-

G

ing the function of constitutional interpretation. [1237-D] H

-1

1192 SUPREME COURT REPORTS (1997) 2 S.C.R.

'

A S.P Sampath kumar v. Union of India, [1987] 1 SCC U4 and J.B.

B

c

D

E

F

G

Chopra v. Union of India, [1987] 1 SCC 422, overruled.

R.K Jain v. Union of India, [1993] 4 SCC 119, upheld.

M.B. Majundar v. Union of India, [1990] 4 SCC 501, referred to.

2.1 Section

28 of the Administrative Tribunals Act,1985 and the

"ex­

clusion of jurisdiction" clauses in all other legislations enacted under the aegis

of Articles 323A aml 323B of the Constitution, 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. [1250-A-B]

Sakinala Harinath & Ors. v. State of Andhra Pradesh & Ors., (1993)2

An.W.

R. 484, approved.

S.P. Sampath kumar v. Union of India, [1987] 1 SCC 124, overruled.

2.2 Section 5(6) of the Administrative Tribunals Act is valid and

constitutional. Sub-section (2) and (6) of s.5 are to be harmoniously con­

strued, 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.

So construed, Section 5(6) will no longer be

susceptible to charges

of unconstitutionality.

[1250E; 1249-E-G]

Dr. Mahabal Ram v. Indian Council of Agricultural Research, [1994] 2

SCC 401 and Anwlya Chandra Kalita v. Union of India, [1991] 1 SCC 181,

upheld.

3.1 The Tribunals created

under Articles 323A and 323 B of the

Constitution

are competent to hear matters wherein the vires of statutory

provisions are questioned, and may perform a supplemental role in

dis­

charging the powers conferred by Articles 226/227 and 32 of the Constitu­

tion. However, in discharging this duty, they cannot

act as substitutes for

H the High Courts and the

Supreme Court which have, under our constitu-

-

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L. CHANDRA KR. v. U.O.l. 1193

tional set-up, been specifically entrusted with such--an obligation. Their A

function in this respect is only supplementary and all such decisions of the

Tribunals will be subject to scrutiny before a Division Bench of the respec·

tive High Courts. The Tribunals will consequently also have the power to

test vires of subordinate legislations

and rules.

[1246-G;

1250-C; 1246-G-H;; 1247-A]

3.2 It is important to emphasise that though the subordinate

judiciary or Tribunals created under ordinary legislations cannot exercise

the power of judicial review oflegislative action to the exclusion of the High

Courts

and the Supreme Court, there is no constitutional prohibition

against their performing a supplemental-as opposed to a

substitutional­

role in this respect. That such a situation is contemplated within the con·

stitutional scheme becomes evident from clause (3) of Articles 32 of the

Constitution. [1237-G-H;

1238-A]

B

c

3.3 To hold that the Tribunals have no power to handle matters

involving constitutional issues would not serve the purpose for which they

D

were constituted.

On the other hand, to hold that all such decisions wi~~ 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

ter­

ritorial 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, it will ensure that E

frivolous claims are filtered out through the process of adjudication in the

Tribunal. The

lligh Court will also have the benefit of a reasoned decision

on merits which

will be of use to it in finally deciding the matter. [1245-E-G]

4.1 The Tribunals will, however, continue to act as the only courts of

first instance in respect of the areas oflaw for which they have been constituted.

F

It will not be open

for litigants to directly approach the High Courts even in

cases where they question the

vires of statutory legislations (except, where

the legislation which creates the particular Tribunal is challenged)

by

overlooking the jurisdiction of the concerned Tribunal. [1247-C-D]

4.2 The Tribunals

shall. not entertain any question regarding the vires

of their parent statutes following the settled principle that a Tribunal which

is a creature of an Act cannot declare

that very Act to be unconstitutional.

In such cases alone, the concerned High Court may

be approached directly.

G

All other decisions of these Tribunals, rendered in cases that they are

specifically empowered to adjudicate upon

by virtue of their parent H

1194 SUPREME COURT REPORTS [1997] 2 S.C.R.

A statutes, will also be subject to scrutiny before a Di~ision Bench of their

respective High Courts.

[1247-A-C]

B

c

5.1 All decisions of Tribunals, whether created pursuant to Article

323A or Article 323B of the Constitution, will be subject to the High Court's

writ jurisdiction

under Articles

226/227 of the ConstitUtion, before a

Division Bench of the

High Court within whose territorial jurisdiction the

particular Tribunal falls. [1246-C-D]

5.2 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. [1246-E-F]

5.3 The Directions issued in respect

af making the decisions of

D Tribunals amenable to scrutiny before a Division Bench of the.respective

lfigh Courts will, however, come into effect prospectively i.e. will apply to

decisions rendered hereafter. To maintain the sanctity of judicial proceed­

ings, the doctrine of prospective ever-ruling is invoked so as not to disturb

the procedure in relation to decisions already rendered. [1247-D-E]

E 6.1 Though the various Tribunals have not performed upto expecta-

G

tions, to draw an inference that their unsatisfactory performance points to

their being founded on a fundamentally unsound principle would not be

correct. The reasons for which the Tribunals were constituted have become

even more pronounced.

Our constitutional scheme permits the setting up

of such Tribunals. However, drastic measures may have to

be resorted to

in

order to elevate their standards to ensure that they stand upto constitu­

tional scrutiny in the discharge of the power of judicial review conferred

upon them. [1244-G-H;

1245-A-B]

KK. Dutta v. Union of India, [1980] 4 SCC 38, referred to.

6.2 Setting-up of the 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

1

be better

equipped to dispense speedy and efficient. justice.

It was expected that a

judicious

mix of judicial members and those with grass-root experience

H would best serve this purpose. To hold that the Tribunal should consist

~

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L CHANDRA KR. v. U.0.1. 1195

only of Jndicial members would attack the primary basis of the theory A

pursuant to which they have been constituted. Since the Selection Commit-

tee is

now headed by a Judge of the Supreme Court, nominated by the Chief

Justice of India, the Committee would take care to ensure

that administra-

tive members

are chosen from amongst those who have some backgronnd

to deal with such cases. [1248-A-C]

7.

Our constitutional scheme does not require that all adjudicatory

bodies which fall within

t.he territorial jurisdiction of the High Courts

should

be subject. to their supervisory jurisdiction. If the idea is to divest

B

the High Courts of their onerous burdens, then adding to their supervisory

functions cannot, in any manner, be

of assistance to them. The situation C

at present is that different Tribunals

constituted under different enact­

ments are administered by different Administrative departments of the

Central

and the State Governments. The

Union of India should initiate

action to bring all these Tribunals

under one single nodal department

preferably the legal department. Appointments to Tribunals

and the

su­

D

pervision of their administrative function need to be considered in detail.

The comments of expert bodies like the law Commission of India

and the

Malimath Committee should be taken into consideration

and it should be

ensured that the independence of members of all such Tribunals is

main­

tained. [1248-E-H, 1249-C-E]

Report of the High

Court Arrears Committee 1949; Law

Commission

of India 14th Report on Reform of Judicial Administration (1958);'LCI,

27th Report on Code of Civil Procedure, 1908 (1964); LCI 41st Report on

Code of Criminal Procedure, 1898 (1969); LCI, 54th Report of Code of

Civil Procedure, 1908 (1973); LCI, 57th Report on Structure and Jurisdic­

tion of the Higher Judiciary (1974); Report of High Court Arrears Com­

mittee, 1972; LCI, 79th Report on Delay and Arrears in High Courts and

other Appellate Courts (1979); LCI, 99th Report on Oral Arguments and

Written Arguments in the Higher Courts (1984); Satish Chandra's Com­

mittee Report 1986; LCI, 124th Report on the High Court Arrears-A Fresh

Look

(1988) and Report of the Arrears

Committee (1989-90), cited.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 481 of

1980 Etc.

From the Judgment and Order dated 2.11.88 of the Madras High

E

F

G

Court in W.P. No. 8673 of 1988. H

A

B

c

1196 SUPREME COURT REPORTS (1997] 2 S.C.R.

V.R. Reddy,

K.N. Bhat and Altaf Ahmad, Additional Solicitor

Generals, Rama Jois, Dr.

Shankar Gosh, Dr. D.P. Pal, Sundarananda Pal,

K.K. Venugopal, B. Sen, N.S. Hegde, Tapas Ray, M.L. Verma, P.P. Rao,

Shanti Bhushan, AK. Ganguli, S. Ramachandra Rao, U.N. Bachawat,

Kapil Sibal, Sr. Advs., S.R. Bhat, N.R. Nath, L.M. Bhat, Hetu Arora,

V.Balachandran, G.S. Chatterjee, S. Pal, Raja Chatterjee, R.K. Gupta, H.P.

Sharma, Rajesh, AT. Patra, S.Srivastava, M.A. Krishnamoorthy, J.B. Rani,

P. Murugan, G.S.Chatterjee, Raja Chatterjee, Ms.Aruna Mukherjee,

S.Rizvi, D. Krishna,

K.K.

Saha, J.R. Das, Suman Khaitan, Darshan Singh,

Rana Mukherjee, Goodwill Indeevar, B.K. Ghosh, S. Mukherjee, Bijon

Ghosh, T. Anil Kumar, D.Mahesh Babu,

A. Balaji, Kumar J.Bey, Jayant

Bhushan, Darshan

Singh, Suman J. Khatian, (Kiran K. Shah)-In Person

No. 2); N.N Goswamy, Mrs. Anil Katiyar, Ms. A. Subhashini, A.D.N. Rao, .

Wasim

A. Qadri, Dileep Tandon,

S. Manda!, Manish Mishra, P. Mahale,

K.K. Saha, Dayan Krishnan, J.R. Das, D. Ramakrishna Reddy, Mrs, D.

Bharathi Reddy, S.K. Mehta, Dhruv Mehta, Fazlin Anam, Ms. Monika

D Jairath, M.P. Raju, Manmohan, T.U. Rajan, L.J.Vadak~ra, Rathin Das, S.

Murlidhar, Rana, Ms. Sucharita Mukherjee, (Pravir Choudhary, K.K.

. Mani, Ms. Rani Chhabra, T.V.S.N. Chari, R.K. Mehta,) Sinha Das & Co.,

Ms. Lily Thomas, Anip Sachthey, Ms. Mridula Ray Bhardwaj, A. Bhat­

tacharjee, for the appearing parties.

E

F

G

H

The Judgment of the Court was delivered by

AH!'vlADI, CJI. The special leave petitions, civil appeals and writ

petitions which together constitute the present batch of matters before

us

owe their origin to separate decisions of different High Courts and several

provisions in different enactments which have been made the subject of

challenge. Between them, they raise several distinct questions of

law; they

have, however been grouped together

as all of them involve the considera­

tion of the following broad issues:

(1) Whether the power conferred upon

Parliament or the State

Legislatures, as the case may be, by sub clause ( d) of clause

(2) of Article 323A or

by sub-clause ( d) of clause (3) of

Article

323B of the Constitution, totally exclude the jurisdic­

tion of 'all courts', except that of the

Supreme Court under

Article

136, in respect of disputes and complaints referred to

in clause

(1) of Article 323A or with regard to all or any of

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,

L. CHANDRA KR. v. U.0.1. [AHMADI, C.J.] 1197

the matters specified in clause (2) of Article 323B, runs A

counter to 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 323A

or under Article

323B of the Constitution, possess the

com­

petence to test the constitutional validity of a statutory

provision/rule?

(3) Whether these Tribunals,

as they are functioning at present,

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?

B

c

We shall confine ourselves to the larger issues raised in this batch of

matters without adverting to the specific facts of each of the matters;

we D

shall, however,

sekctively refer to some of the impugned decisions and the

provisions involved to the extent

we find it necessary to do so in order to

appreciate the policy-conflicts in, and to draw the parameters

of, the

controversy before

us. The broad principles enunciated in this judgment

will, at a later time, be applied by a Division Bench to resolve the disputes E

involved in each of the individual cases.

The present controversy has been referred to

us by an order of a

Division Bench of this Court, reported in

[1995] 1

SCC 400, which con­

cluded that the decision rendered by a five-Judge Constitution Bench of

this Court in S.P. Sampath Kumar V. Union of llldia, (1987] 1 sec 124,

needs to be comprehensively reconsidered. The order of the Division

Bench, dated December

2, 1994, was rendered after it had considered the

arguments in the first matter before

us, C.A. No. 481 of 1989, where the

challenge

is to the validity of Section 5( 6) of the Administrative Tribunals

Act,

1985. After analysing the relevant constitutional provisions and the G

circumstances which

led to the decision in Sampath Kumar's case, the

referring 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 including the question whether the Tribunal can at all have an Ad- H

1198 SUPREME COURT REPORTS (1997) 2 S.C.R.

A ministrative Member on its Bench, if it were to have the power of even

deciding constitutional validity of a statute or (Article) 309 rule, as con­

ceded in Chopra's case". The "post-Sampath Kumar cases" which caused

the Division Bench to refer the present matter to

us are as follows : J.B.

Chopra v.

Union of India, (1987)1 SCC 422; M.B. Majumdar v. Union of

B

c

D

E

F

G

H

India, (1990) 4 SCC 501; Amuya Chandra Kalila v. Union of India~ (1991]

1 SCC 181; R.K. Jain v. Union of India, (1993] 4 SCC 119 and Dr. Mahabal

Ram v. Indian Council of Agricultural Research, [1994) 2 SCC 401.

Before we record the contentions of the learned counsel who ap­

peared before us, we must set out the legal and historical background

relevant to the present case.

Part XIV A of the Constitution was inserted through Section 46 of

the Constitution ( 42nd Amendment) Act,

1976 with effect from March

1,1977. It comprises two provisions, Articles 323A and 323B, which have,

for the sake of convenience, been

fully extracted hereunder : PART XIVA

TRIBUNALS

323-A. Administrative tribunals. -­

(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

--

323-B. Tribunals for other

maters. --(1) The appropriate

Legislature

may, by law, provide

for the adjucation 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) (2) The mattters referred

to in clause (1) are the

following, namely :

L CHANDRA KR. v. U.0.1. [AI-I~lADI, C.J.) 1199

(a) provide for the (a) levy, assessment, A

establishment, of an

administrative tribunal for

" , the union and a separate

administrative tribunal for

each State or for two or

more States;

(b) specifiy the jurisdiction,

powers (including the

powers 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 Coillt under

Article

136, with respect to

the disputes or complaints

referred

to

in clause (I);

( 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

jur~sdiction

of such tribunal if the causes

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;

B

c

D

E

F

G

H

1200 SUPREME COURT REPORTS [1997] 2 S.C.R.

A of action on which such

suits

or proceedings are

based had arisen after such

establishment;

B

c

D

E

F

G

H

(t) repeal or amend any order

made by the president

under clause (3) of Article

3710;

(g) contain such supplemental,

incidental and

consequential provisions

(including provisions as to

fee) 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 ofthis article

shall have effect

notwithstanding anything in

any other provision of this

Constitution or in any other

law for the time being in

force.

(t) 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 329 A;

(g) production, procurement,

supply and distribution of

foodstuffs (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) offences against

laws with

respect to any of the

matters specified in sub­

clauses (a) to (g) and fees

in respect of any of those

matters;

(i) any matter incidental to

any of the matters

specified in sub-clauses

(a) to (h).

(3) A

law made under clause

(1) may

--

L. CHANDRA KR. v. U.O.I. [AHMADI, C.J.]

(a) provide for

establishment

1201

the

of a

hierarchy of tribunals;

(b) specify the jurisdiction,

powers (including the

A

power to punish for B

(c)

(d)

contempt) and authority

which may be exercised by

each of the said tribunals ;

provide for the procedure

(including provisions

as to

limitation and rules

of

evidence ) to be followed

by the said tribunals ;

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 failing . within

the jurisdiction of the said

c

D

tribunals; . E

( e) provide for. the transfer to

each such tribunal of

any

cases pending before any

court or any other

authority immediately F

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;

G

H

A

B

c

D

E

F

G

1202 SUPREME COURTREPORTS (1997) 2 S.C.R.

(t) contain such

supplemental, incidental

and consequential provis­

ions (including provisions

as to fees) as the approp­

riate 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

accorpance with the provisions

of Part XI.

(Emphasis added)

We may now examine the manner in which these constitutional

provisions have been sought to be implemented, the problems that have

consequently arisen, and the manner in which Courts

have sought to

resolve them. Such an analysis

will have to consider the working of the two

provisions separately.

A1ticle 323 A

'

'

H In pursuance of the pow~r conferred upon it by clause (1) of Article

.,

--

-

L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1203

323A of the Constitution, Parliament enacted the Administrative Tribunals A

Act, 1985 (Act 13 of 1985) [hereinafter referred to as "the Act"]. The

Statement of Objects and Reasons of the Act indicates that

it was in the

express terms of Article 323A of the Constitutiqn and was being enacted

because a large number of cases relating to service matters were pending

before various Courts; it

was expected that

"the setting up of such Ad­

ministrative Tribunals to deal exclusively with service matters would go a

long

way in not only reducing the burden of the various courts and thereby

giving them more time to

deal with other cases e>..lJeditiously but would

B

also provide to the persons covered by the Administrative Tribunals speedy

relief in respect of their grievances."

Pursuant to the provisions of the Act, the Central Administrative

Tribunal,

with five Benches, was established on November 1,1985. How­

ever, even before the Tribunal had been established, several writ petitions

had been filed in various High Courts

as well as this Court challenging the

c

· constitutional validity of Article 323A of the Constitution as also the D

provisions of the Act; the principal violation complai.ned of being the

exclusion of the jurisdiction of this Court under Article

32 of the Constitu-

tion and of that of the High Courts under Article

226 of the Constitution.

Through an interim order dated October

31, 1985, reported as S.P. Sam­

path Kumar

v.

Union of b1dia, (1985] 4 SCC 458, this Court directed the

carrying out of certain measures with a

view to ensuring the functioning of E

the Tribunal along constitutionally-sound principles. Pursuant to an under­

taking given to this Court at the interim stage

by the erstwhile Attorney

General,

An amending Act (Act 19 of 1986) was enacted.to bring about

the changes prescribed in the aforesaid interim order.

When

Sampath Kumar's case was finally heard, these changes had

.

already been incorporated in the body and text of the Act. The Court took

F

the. view that most of the original grounds of challenge-which included a

challenge to the constitutional validity of Article 323A -did not survive and

restricted its focus to testing only the constitutional validity of the provision

G

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.

Using this theory of effective alternative H

A

B

c

D

E

F

G

H

1204 SUPREME COURT REPORTS [1997) 2 S.C.R.

institutional mechanisms

as its foundation, the Court proceeded to analyse

the provisions of the

Act in order to ascertain whether they passed con­

stitutional muster. The Court came

to the conclusion that the Act, as it

stood al that time, did not measure up to the requirements of an

effective

substitute and, to that end,' suggested several amendments to the provisions ·

governing the form and content of the Tribunal. The suggested amend­

ments were given the force of

law by an amending Act (Act 51 of 1987)

after the conclusion of the case and the Act has since remained unaltered.

We may

now analyse the scheme and the salient features of the Act

as it stands at the present time, inclusive

as it is of the changes suggested

in

Sampath Kumar's case. The Act contains 37 Sections which are housed

in five Chapters. Chapter I ("Preliminary") contains three Sections; Section

3

is the definition clause.

Chapter

II ("Establishment of Tribunals and Benches thereof') con­

tains

Sections 4 to 13. Section 4 empowers the Central Government to

establish: (1) a Central Administrative Tribunal with Benches at separate

places; (2) aµ Administrative Tribunal for a State which makes a request

in this behalf; and

(3) a Joint Administrative Tribunal for two or more

States which enter into an agreement for the purpose. Section

5 states that

·

each Tribunal shall consist of a chairman and such number of Vice­

Chairmen and Judicial and Administrative Members

as may be deemed

necessary

by the appropriate Government. Sub-section (2) of

Section 5

requires every Bench to ordinarily consist of one Judicial Member and one

Administrative :fy1 ember. Sub-section ( 6) of Section 5, which enables the

Tribunal to function through Single Member Benches is the focus of some

controversy,

as \vill subsequently emerge, and is fully extracted as under :

"S: 5(6) -Nothwithstauding anything contained in the foregoing

provisions of this section,

it shall be competent for the Chairman

or any other Member authorised

by

the Chairman in this behalf

to function

as a Bench consisting of a single Member

·and exercise

the jurisdiction powers and authority of the Tribunal in respect of

such classes of cases or such matters pertaining to such classes of

cases as the Chairman may by general or special order specify:

Provided that if at any stage of the hearing of any such case or

matter it appears to the Chairman or such Member that the case

or matter

is of such a nature that it ought to be heard by a Bench

L. CHANDRA KR. v. V.O.I. [AHMADI, CJ.] 1205

consisting of two M_embers the case or matter may be transferred A

by the chairman or, as the case may be, referred to him for transfer

to such Bench

as the Chairman may deem

fit."

Section 6 deals with the qualifications of the personnel of the

Tribunal. Since the first

few sub-sections of Section 6 are

n::quired to be

considered subsequently, they may be reproduced hereunder:

B

"6. Qualifications for appointment of Chainnan, Vice-Chainnan or

other Members. -

(1) A person shall not be qualified for appointment as the Chair­

man unless he--

(a)

is, or has been, a Judge of a High Court; or

(b) has, for at least

two years, held the office of Vice-Chairman;

c

(tj D

(2) A person shall not be qualified for appointment as the Vice··

Chairman unless he--

(a)

is, or has been, or is qualified to be a Judge of a High Court;

or

(b) has, for at least

two years, held the post of a Secretary to the

Government of India or

any other post under the Central or

a State Government carrying a scale of pay which

is not less

than that of a Secretary

to the Government of India; or

(bb) has for at least

five years, held the post of an

Additional

Secretary to the Government of India or any other post under

the Central or a State Government carrying a scale of pay

which

is not less than that of an Additional Secretary to the

Government of India; or

(

c) has, for a period of not less than three years, held office as a

Judicial Member or

an Administrative Member.

(3) A person shall not be qualified for appointment as a Judicial

E

F

G

Member unless he-- H

1206 SUPREME COURT REPORTS {1997]2S.c.µ. ~

A (a) is, or has been, or is qualified to be, a Judge of a High Court;

B

c

D

E

F

or

(b) has been a member of the Indian Legal Service and has held

a post in Grade I of that Service for at least three years.

(3-A) A person shall not be qualified for appointment as an

Administrative Member unless he--

(a) has, for at least

two years,

held the post of an Additional

Secretary to the Government of India or any other post under

the Central or a State Government carrying a sca!e of pay

which

is not less than that of an Additional Secretary to the

Government of India; or

(b) has, for at least three years, held the post of a joint

Secretary

to the Government of India or any other post under the

Central or a State Government carrying a scale of pay which

is not less than that of a Joint Secretary to the Government

of India.

and shall,

in either case, have adequate administrative experience."

Sub-sections (4), (5) and (6) of Section 6 provide that all the

Mem­

bers of the Central Administrative Tribunal, the State Administrative

Tribunals and the Joint Administrative Tribunals shall be appointed by the

President; in the case of the State Administrative Tribunals and the Joint

Administrative Tribunals, the President

is required to consult the

con­

cerned Governor(s). Sub-section (7) stipulates that the Chief Justice of

India

is also to be consulted in the appointment of the Chairman,

Vice­

Chairman and Members of all Tribunals under the Act.

Section 8 prescribes the terms of office of the personnel of the

Tribunal as being

for a duration of five years from the date of entering into

G office; there is also provision for reappointment for another term of five

years. The maximum age limit permissible for the Chairman and the

Vice-Chairman

is 65 years and for that of any other Member is 62 years.

Section

10 stipulates that the salaries, terms and conditions of all Members

of the Tribunal are tp be determined by the central Government; such

terms are, however, not to be varied to the disadvantage of any Member

H after his appointment.

'

r

,

L CHANDRA KR v. U.O.l. [AHMADI, CJ.) 1207

Chapter III ("Jurisdiction, powers and authority of Tribunals") con-A

sists of Sections 14 to 18. Sections 14, 15 and 16 deal with the jurisdiction,

powers and authority of the Central Administrative Tribunal, the State

Administrative Tribunals and the Joint Administrative Tribunals respec­

tively. These provisions make it clear that except for the jurisdiction of this

Court, the Tribunals under the Act

will possess the jurisdiction and powers

B

of every other Court in the country in respect of all service-related matters. Section 17 provides that the Tribunals under the Act will have the same

powers in respect of contempt as are enjoyed by the High Courts.

Chapter IV ("Procedure") comprises Section 19 to 27. Section 21

specifies strict limitation periods and does not vest the Tribunals under the

Act with the power to condone delay.

Chapter V ("Miscellaneous"), the final Chapter of the Act, compris­

ing Sections 28 to 37, vests the Tribunals under the Act wjth ancillary

powers to aid them in the effective adjudication of disputes. Section 28, the

"exclusions of Jurisdiction" clause reads as follows:

"28. Exclusion of Jwisdiction of courts.--On and from the date from

which

any jurisdiction, powers and authority

bec0mes exercisable

under this Act

by a Tribunal in relation to recruitment and matters

concerning recruitment

to any

Service or post or service matters

concerning members of any Service or persons appointed to any

Service or post, no court except--

(a) the Supreme Court; or

(b) any Industrial Tribunal, Labour Court or other authority

constituted under the Industrial Disputes Act,

1947 or any

other corresponding law for the time being in force,

Shall have, or be entitled to exercise any jurisdiction, powers or

authority in relation to such recruitment or matters concerning

such recruitment or such service matters."

c

D

E

F

G

A facet which is of vital

relevance to the controversy before us,-and

consequently needs to be emphasised, is that Section 28, when originally

enacted,

was in the express terms of clause (2) ( d) of Article 323A of the

Constitution and the only exception made

in it was in respect of the

jurisdiction of this Court under Article

136 of the Constitution. However, H

1208 SUPREME COURT REPORTS [1997) 2S.C.R.

A before the final hearing in Sampath Kumar's case the provision was further

amended

to also save the jurisdiction of this Court under Article 32 of the Constitution; this aspect has been noted in the judgment of Mishra, J. in

Sampath Kumar's case (at para 14). Since lhe Court in Sampath Kumar's

case had restricted its focus to the provisions of the Act, it expressed itself

B

to be satisfied with the position that the power of judicial review of the

Apex Court had not been tampered with

by the provisions of

the Act and

did not venture to address the larger issue of whether clause (2)( d) of

Article 323A of the Constitution also required a similar amendment.

Section 29 provides for the transfer to the Tribunals under the Act,

C of all service matters pending in every existing fora before their estab­

lishment. The

only exception carved out is in respect of appeals pending

before High Courts.

Section 35 vests the Central Government with rule­

making powers and Section 36 empowers the appropriate Government to

make rules

to implement the provisions of the Act and the matters

D specified in it. By virtue of

Section 37, the rules made by the Central

Government are required to be laid before Parliament and, in the case of

rules made by State Governments, before the concerned State Legislature

(s).

The Act and its provisions will be analysed in the course of this

E judgment. However, a preliminary appraisal of the framework of the Act

would indicate that 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. The Tribunals created under the

Act

were intended to perform a substitutional role as opposed to -and this

F distinction is of crucial significance-a supplemental role with regard to the

High Courts.

According to the information provided

to us by Mr. K.N. Bhat, the

learned Additional

Solicitor General, apart from the Central Administra­

tive Tribunal which was established on 1.11.1985, eight States have set up

G State Administrative Tribunals, all of which are presently functioning. The

States, along with the date of establishment of the particular State Ad­

ministrative Tribunals, are as follows: Andhra Pradesh (1.11.1989),

Himachal Pradesh (l.9.1986), Karnataka (6.10.1986), Madhya Pradesh

(2.8.1988), Maharashtra (8.7.1989), Orissa (14.7.1986), Tamil Nadu

H (12.12.1988) and west Bengal (16.1.1995).

~

I L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.) 1209

We may now analyse the "post-Sampath Kumar cases" which find A

mention in the order of the referring Bench. In J.B. Chopra's case, a

division Bench of this Court has occasion to consider one of the specific

questions that has now arisen for our consideration, viz., whether the

Central Administrative Tribunal constituted

under the Act has the

authority and the jurisdiction to strike down a rule framed by the President

B

of India under the proviso to Article

309 of the Constitution as bei)1g

violative of Articles 14 and 16(1) of the Constitution. When the matter

came up before the Division Bench, the issue was still being considered by

the constitution Bench

in

Sampath Kumar's case. The Division Bench,

therefore, deferred its judgment till the final pronouncement

of the

decision

in Sampath Kumar's case. Thereafter, it analysed the Constitution

Bench's decision to arrive at the conclusion that

"the Administrative

Tribunal being a substitute of the High Court

had the necessary jurisdic-

c

tion, power and authority to adjudicate upon all disputes relating to service

matters including the power to deal with all question pertaining to the

constitutional validity or otherwise of such laws as offending Article 14 and

D

16(1) of the Constitution."

An aspect which needs to be emphasised is that the Constitution

Bench

in Sampath Kumar's case had not specifically addressed the issue

whether the Tribunals under the Act would have the power to strike down

statutory provisions or rules as being constitutionally invalid. However, the

Division Bench in

J.B. Chopras' case felt that this proposition would follow

as a direct and logical consequence

of the reasoning employed in Sampath

Kumar's ·case.

E

In M.B. Majumdar's case, a Division Bench

of this Court had to F

confront the contention, based on the premise that in Sampath Kumar's

case this Court had equated the Tribunals established under the Act with

High Courts, that the Members of the Central Administrative Tribunals

must be paid the same salaries as were payable to Judges of the High

Court. The Court, after analysing the text of Article 323A of the Constitu-

tion, the provisions of the Act, and the decision in

Sampath

Kumar's case, G

rejected the contention that the Tribunals were the equals of the High

Courts in respect of their service conditions. The Court clarified that in

Sampath Kumar's case, the Tribunals under the Act had been equated with

High Courts only to the extent that the former

\vere to act as substitutes

for the latter in adjudicating service matters; the Tribunals could not,

H

A

B

c

1210 SUPREME COURT REPORTS [1997] 2 S.C.R.

therefore, seek parity for all other purposes.

In

Amulya Chandra's case, a Division Bench of this Court had to

consider the question whether a dispute before the central Administrative

Tribunal could be decided by a single Administrative Member. The Court

took note of sub-section

(2) of

Section 5 of the Act which, as we have seen,

stipulates that a Bench of a Tribunal under the Act should ordinarily

consist of a Judicial Member and an Administrative Member, as also the

relevant observations in Sampath Kumar's case, to conclude that under the

scheme of Act, all cases should be heard

by a Bench of two Members. It

appears that the attention of the Court was not drawn towards sub-section

(6) of

Section 5 which, as we have noticed, enables a single Member of a

Tribunal under the Act to hear and decide cases.

The same issue arose for consideration before another Bench of this

Court in

Dr. Mahabal Ram's case. The Court took note of the decision in

D Amulya

Chandra's case and, since the vires of sub-section (6) of Section 5

of the Act was not under challenge, held that sub-sections (2) and ( 6) of

Section 5 are to be harmoniously construed in the following manner (supra

at p. 404) :

E

F

G

H

" ... There is no doubt that what has been said iin Sampath Kumar's

case would require safeguarding the interest of litigants in the

matter of disposal of their disputes in a judicious

way. Where

complex questions of law would be involved the dispute would

require serious consideration and thorough examination. There

would, however, be many cases before the Tribunal where very

often no constitutional issues or even legal points would be in-

volved

...... We are prepared to safeguard the interests of claimants

who go before the Tribunal by Holding that

while allocating work

to

the Single Member -whether Judicial or administrative -in tem1s

of sub-section ( 6), the Chainna11 should keep in view tlze nature of

the /i.tigation and where questions of law a11d for i11terpretation of

constitutional provisions are involved they should not be assigned to

a Single Member. In fact, the proviso itself indicates Parliament's

concern to safeguard the interest. of claimants

by casting an obliga­

tion

on the Chairman and Members who hear the cases to refer

to a regular bench of two members such cases which in their

opinion require

to be heard by a bench of two Members.

We would

'

'

L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.) 1211

like to add that it would

be open to either party appearing before A

a

Single Member to suggest to the Member hearing the matter that

it should go lo a bench of two Members.

The Member should

ordinarily allow the matter to go to a bench of

two Members when

so requested. This would sufficiently protect the interests of the

claimants and even

of the administrative system whose litigation

may

be before the

Single Member for disposal..... The vires of

sub-section (6) has not been under challenge and, therefore, both

the provisions in Section 5 have to be construed keeping the

legislative intention in

view. We are of the view that what we have

indicated above brings

out. the true legislative intention and the

prescription in sub-section (2) and the exemption in sub-section

(6) are rationalised."

In R.K Jain v. Union of India, [1993) 4

SCC 119, a Division Bench

B

c

~f this Court consisting of three of us (Ahmadi, CJI, Punchhi and Ramas­

wamy, JJ.) had occasion to deal with complaints concerning the functioning

D

of the Customs, Excise and Gold Control Appellate Tribunal, which was

set

up by exercising the power conferred by Article 3238. In his leading

judgment, Ramaswamy,

J. analysed the relevant constitutional provisions,

the Decisions in

Sampath Kumar, J.B. Chopra and M.B. Majumdar to hold

that

the Tribunals created under Articles 323A and 323B could not be held

to

be substitutes of High Courts for the purpose of exercising .iurisdiction

under Articles

226 and 227 of the Constitution. Having had the benefit of

more than

five years' experience of the working of these alternative institu­

tional mechanisms, anguish

was expressed over their ineffectiveness in

exercising the high power of judicial review.

It was recorded that their

perfprmance had left much to be desired. 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.

It was suggested that an

expert body like the Law Commission

of India should study the feasibility

E

F

of providing an appeal to a Bench of two Judges of the concerned High

Court from the orders of such Tribunals and also analyse the working of

G

the Tribunals since their establishment, the possibility of inducting mem-

bers

of the Bar to man such Tribunals etc. It was hoped that recommen­

dations

of such an expert body would be immediately adopted by the

Government of India and remedial steps would

be initiated to overcome

the difficulties faced by the Tribunals,

mak,ing them capable of dispensing.

effective, inexpensive and satisfactory jµstlce.

H

A

B

c

D

E

F

G

1212 SUPREME COURT REPORTS [1997] 2 S.C.R.

In a separate but concurring judgment, Ahmadi, J.(as he then was)

speaking for himself and Punchhi, J., endorsed the recommendations in the

following words:

11

... (T)he time is ripe for taking stock of the working of the various

Tribunals set up in the country after the insertion of Articles 323A

and

323B in the Constitution. 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. After the incorporation of these two articles,

Acts have been enacted whereunder tribunals have been con­

stituted for dispensation of justice. Sufficient time has passed and

experience gained in these last

few years for taking stock of the

situation with a view to finding out if they have served the purpose

and objectives for which they were constituted. Complaints have

been heard in regard to the functioning of other tribunals as well

and it

is time that a body like the Law Commission of India has a

comprehensive look-in with a view to suggesting measures for their

improved functioning. That body can also suggest changes in the

different statutes and evolve a model on the basis whereof

triBunals

·may be constituted or reconstituted with a view to ensuring greater

· ·independence. An intensive and extensive study needs to be un­

dertaken by the Law Commission in regard to the constitution of

tribunals under various statutes with a view to ensuring their

independence so that the public confidence in such tribunals may

increase and the quality

oftheir performance may improve. We

' strongly recommend to the Law Commission of India to undertake

such an exercise on priority basis. A copy· of this judgment may be

forwarded by the Registrar of this Court to the Member Secretary

of the Commission for immediate action."

During the hearing,

we requested the learned Additional Solicitor

General of India, Mr.

K.N. Bhat, to inform us of the measures

undertaken

to implement the directions issued by this Court in R.K. Jain's case. We

were told that the Law Commission had in fact initiated a performance,

analysis on the lines suggested in the judgment; however, when the Division

Bench issued its order indicating that

Sampath

Kumar's case might have to

H be reviewed by a larger Bench, further progre"s on the study was halted.

L CHA.l'iDRAKR. v. U.O.J. [AHMADI, CJ.] 1213

We may _now apply ourselves to analysing the decision which has A

been impugned in one of the matters before us, C.A. No. 169 of 1994. The

judgment,

Sakinala Harinath and Others v. State of

A.P., rendered by a full

Bench of the Andhra Pradesh High Court, has declared Article 323A

(2)( d) of the Constitution 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 lo service matters.

The Judgment of the Court, delivered by M.N. Rao,

J. has in a

elaborate manner, viewed the central issues before

us against the backdrop

of several landmark decisions delivered

by Constitution Benches of this

Court

as also the leading authorities in the comparative constitutional law.

The judgment has embarked on a wide-ranging quest, extending to the

American, Australian and British jurisdictions, to ascertain the true import

B

c

of the concepts of 'judicial power', 'judicial review' and other related

aspects. The judgment has also analysed a contention based on Article

D

371D of the Constitution, but, since that aspect is not relevant to the main

controversy before us,

we shall avoid its discussion.

The Judgment

of the Andhra

Pradesh High Court has, after analys­

ing various provisions of our Constitution, held that under our constitution­

al scheme the Supreme Court and the High Courts are the sole repositories

of the power of judicial review. Such power, being inclusive of the power

to pronounce upon the validity of statutes, actions taken and orders passed

by individuals and bodies falling within the ambit of the impression

"State"

in Article 12 of the Constitution, has only been entrusted to the constitu­

tional 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, [1973] 4

SCC 225, Special Reference No. 1 of 1964,

[1965] 1 SCR 413; Indira Nehrn Gandhi v. Raj Narain, [1975] (Supp) SCC

1; Mine1va Mills Ltd. v. Union of India, [1980) 3 SCC 625, Kihoto Hollohan

v. Zachillu and Othm, [1992) Supp. 2 SCC 651 and certain other decisions,

all of which have been extensively analysed and profusely quoted from.

E

F

G

Analysing the decision in Sampath Kumar's case against this back­

drop, it

is noted that the theory of alternative institutional mechanisms

established in

Sampath Kumar's case is in defiance of the proposition laid

down in

Kesva11a11da Bharati's case, Special reference case and Indira

Gandhi's case, that the Constitutional Courts alone are competent to H

1214 SUPREME COURT REPORTS (1997] 2 S.C.R.

A exercise the power of judicial review to pronounce upon the constitutional

validity of statutory provisions and rules. The High Court, therefore, felt

that the decision in

Sampath

Kumar's case, being per incwiam, was not

binding upon it. The High Court also pointed out that, in any event, the

issue of constitutionality of Article 323A (2) ( d)

was neither challenged nor

B

c

D

E

F

upheld in Sampath Kumar's case and

it could not be said to be an authority

on that aspect.

Thereafter, emphasising the importance of service matters which

affect the functioning of civil servants,

who are an integral part of a sound

governmental system, 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 ad­

judicatory bodies, which would be susceptible to executive influences and

pressures.

It was emphasised that in respect of constitutional Courts, the

Framers of our Constitution had incorporated special prescriptions to

ensure that they would be immune from precisely such 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.

A1ticle 323B.

This provision of the Constitution empowers

Parliament or the State

Legislatures, as the case may be, to enact laws providing for the adjudica­

tion or trial

by Tribunals of disputes, complaints or offences with respect

to a wide variety of matters which have been specified in the nine sub-'

G clause of clause (2) of Article

3238. The matters specified cover a wide

canvas including i11ter alia disputes relating to tax cases, foreign exchange

matters, industrial and labour cases, ceiling on urban property, election to

State Legislatures and Parliament, essential goods and their distribution,

criminal offences etc. Clause (3) enables the concerned Legislature· to

H provide for the establishment of a hierarchy of Tribunals and to lay down

L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1215

their jurisdiction, the procedure to

be followed by them in their function- A

ing, etc.

Sub-clause ( d) of clause (3) empowers the concerned Legislature

to exclude the jurisdiction of all courts, except the jurisdiction of the

Supreme Court under Article 136 of the Constitution, with respect to all

or any

of matters falling within the jurisdiction of the Tribunals. The

constitutional provision, therefore, invests Parliament of the

State Legisla-B

tures, as the case may be, with powers to divest the traditional. courts of a

considerable portion

of their judicial work.

According to the information provided to

us by Mr. K.N. Bhat, the

learned Additional Solicitor General, until the present date, only four

Tribunals have been created under Article 323B pursuant to legislations C

enacted by the Legislatures of three States. The first of these was the West

Bengal Taxation Tribunal which was set up in

1989 under the West Bengal

Taxation Tribunal Act,

1987. Similarly, the Rajasthan Taxation Tribunal

was set up in

1995 under the Rajasthan Taxation Tribunal Act, 1995. The

State of Tamil Nadu has set up two Tribunals by utilising the power D

conferred upon it by Article 323B. The first of these was the Tamil Nadu

Land Reforms Special. Appellate Tribunal which was established on

1.11.1990 under the Tamil Nadu Land Reforms {Fixation of Ceiling of

Land) Amendment Act, 1985 to deal with all matters relating to land

reforms arising under the Tamil Nadu Land Reforms (Fixation of Ceiling

onLand) Act, 1961. Later, the Tamil Nadu Taxation Special Tribunal was E

established on 22.12.1995 under the Tamil Nadu Taxation Special Tribunal

Act, 1992 to deal with cases arising under the Tamil Nadu General

Sales

Tax Act and Additional Sales Tax Act.

Certain problems have arisen in the functioning

of these Tribunals

especially in respect of the manner in which they exclude the jurisdiction

F

of their respective High Courts. This aspect can be illustrated by briefly

adverting to the broad facts of two of the matters before us.

C.A. No.

1532-33

of 1993 arises as a result of conflicting orders issued by the West

Bengal Taxation Tribunal and the Calcutta High Court. Certain petitioners

had challenged the constitutional validity of some provisions in three G

legislations enacted by the West Bengal Legislature before the west Bengal

Taxation Tribunal. After examining the matter and hearing the arguments

advanced in response

by the State of West Bengal, the West Bengal

Taxation Tribunal, by this order dated 9.10.1991, upheld the constitutional

validity

of the

impugned provisions. Thereafter, the constitutional validity

of the same provisions was challenged in a Writ Petition before the H

1216 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Calcutta High Court. During the proceedings, the State of West Bengal

raised the preliminary objection that

by virtue of Section 14 of the West

Bengal Taxation Tribunal Act,

1987, which excluded the jurisdiction of the

High Court in

all matters within the jurisdiction of the Taxation Tribunal,

the Calcutta High Court had. no jurisdiction to entertain the writ petition.

B

c

D

E

F

However, the High Court proceeded with the case and, by its judgment

dated 25.11.1992, declared the impugned provisions

to be unconstitutional.

These developments have resulted in an interesting situation, where the

same provisions have alternately been held to be constitutional and uncon­

stitutional by

two different fora, each of which considered itself to be

empowered to exercise jurisdiction.

S.L.P. No. 17768of1991 seeks to challenge a judgment of the Madras

High Court which has held that the establishment of the Tamil Nadu Land

Reforms Special Appellate Tribunal

will not affect the powers of the

Madras High Court to issue writs. This decision

is based on the reasoning

that the Legislature of the State had no

power" to infringe upon the High

Courts' powers to issue writs under Article

226 of the Constitution and to

exercise its powers of superintendence under Article

227 of the Constitu­

tion."

It is against these circumstances that we must now test the proposi­

tions put forth for our consideration.

Submissions of Counsel.

We have heard the submission of several learned senior counsel who

appeared for the various

pmties before us. Mr. Rama Jois and Mr. Shanti

Bhushan, through .their respective arguments, urged

us to review the

decision in

Sampath Kumar's case and to hold Article 323 A (2)(d) and

Article

323 B (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.

On the other hand, Mr. Bhat, the learned Additional Solicitor

G General, Mr. P.P. Rao, and Mr. K.K. Venugopal urged us to uphold the

validity

cf the impugned constitutional provisions and to allow such

Tribunals

to exercise the jurisdiction under Article 226 of the Constitution.

We have also heard arguments advanced on behalf of the

Regis•.rar of the

Principal Bench of the Central Admmistrative Tribunal,

who was

repre­

sented before us by Mr. Kapil Sibal. Mr. V.R. Reddy, the learned Addi-

H tional Solicitor General, urged us to set aside the judgment of the Madras

. LCHANDRAKR.v. u.oi[AHMADI,CJ.] 1217

High Court which affects the jurisdiction of the Tamil Na du Land Reforms A

Special Appellate Tribunal. Certain other counsel have also addressed us

in support of the main arguments advanced.

Mr. Rama

.Jois, learned counsel for the petitioner in W.P. No. 918

of

1992, contended as follows: (i) Section 5( 6) of the Act, insofar as it

allows a single Member Bench of a Tribunal to test the constitutional

validity of a statutory provision,

is unconstitutional. This proposition flows

from the decisions in Sampath Kumar's case, Amulya chandra's case and

Dr. Mahabal Ram's case. In Sampath

Kuriiar's case, this court had required

a Bench of a Tribunal to ordinarily consist of a Judicial Member and an

Administrative Member. Consequently, Section 5 (2) of the Act

was ac­

cordingly amended; however, since Section 5(6)

was not amended simul­

taneously, the import of the observations in

Sampath

Kumar's case can still

be frustrated. Even if the theory of alternative institutional mechanisms

adopted in

Sampath Kumar's case, is presumed to be correct, Section 5(6)

B

c

of the Act will have to be struck down as a single Member Bench of a

Tribunal cannot be considered to be a substitute for the exercise of the

D

power of a High Court urider Article 226 of the Constitution; (ii) The

impugned provisions of the Constitution, insofar

as they exclude the juris­

diction of the Supreme Court and the High Courts under Articles

32 and

226 of the

Con,stitution, are unconstitutional. This is for the reason that:

E

F

(a) Parliament cannot, in 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 (b) These

provisions violate the basic structure of the Constitution insofar

as they

take

away the power of judicial review vested

!n the Supreme Court under

Article 32 of the Constitution and the High Courts under Articles

226 and

227 of the Constitution. While the Tribunals constituted under Articles

323A and

323 B 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 fr.om Kesavananda

Bharati's case where

1t was held that under our constitutional scheme, only

the constitutional courts have been vested with the power of judicial review

G

of legislative action; (iii). While the provisions of the Act do not pui:port 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;

(iv) The

decision in

Sampath Kumar's case was founded on the hope that the H

1218 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Tribunals would be effective substitutes for the High Courts. This position

is neither factually nor legally correct on account of the following differen­

ces between High Courts and these Tribunals: (a) High Courts enjoy vast

powers as a consequence of their being Courts of record under Article

215

of the Constitution and also process the power to issue Certificates of

B

c

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;

(b) the qualifications for appointment of a High Court Judge and the

constitutional safeguards provided ensure the independence of and ef­

ficiency of the Judges

who man the High Courts. The conditions prescribed

for Members of Tribunals are not comparable; ( c) While the jurisdiction

of the High Courts is constitutionally protected, a Tribunal can be

abolished

by simply repealing its parent statute; ( d) 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. These and other differences

give rise

to a situation whereby the Tribunals, being deprived of constitutional

D safeguards for ensuring their independence, are incapable of being effec­

tive substitutes for the High Courts; (v)

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 jurisdic-

E

F

tion. 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, insofar 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 struc­

ture of the constitution, and

(vi) In view of the afore-stated propositions,

the decision in

Sampath Kumar's case requires a comprehensive recon­

sideration.

Mr.

Shanti Bhushan, appearing for the respondent in C.A. No.

1532-33/96, advanced the following submissions: (i) The 42nd Amendment

to the Constitution, which introduced the impugned constitutional

G provisions, must be viewed in its historical context. The 42nd Amendment,

being motivated by a feeling of distrust towards the est~blished judicial

institutions, sought, in letter and spirit, to divest constitutional courts of

their jurisdiction. The aim

was to vest such constitutional jurisdiction in

creatures whose

establishment and functioning could be controlled by the

H executive. Such an intent is manifest in the plain words of Articles 323A

-

L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1219

and 323B which oust the jurisdiction vested in this Court and the High A

Courts under Articles 32, 226 and 227 of the Constitution; (ii) The validity

of the impugned provisions has to be determined irrespective of the

manner in which the power conferred by them has been exercised.

In

Sampath Kumar's case, this Court restricted its enquiry to the Act, which

did not oust the jurisdiction under Article 32, and did not explore the

larger issue of the constitutionality

of Article 323A (2)( d), which in express

terms permits

Parliament to oust the jurisdiction of the Supreme Court.

This was not correct approach as the constitutionality of a provision ought

not to

be judged only against the manner in which power is sought to be · exercised under it. The correct test is to square the provision against the

constitutional scheme and then pronounce upon its compatibility. The vice

B

c

in Article 323A (2)( d) is that it permits

Parliament to enact, at a future

date, a law to exclude the jurisdiction of this Court under Article

32. Being

possessed of such potential for unleashing constitutional mischief in the

future, its

vires cannot be sustained; (iii) The

power of judicial review

vested in this Court under Article 32 and the High Court under Article

226 D

is part of the basic structure of the Constitution. The relevant portions of

the decisions in

Kesava11a11da Blzarati's casC, Fe1tiliser Corporation Kamgar

Union v. Union of India, [1981] 1 SCC 568 and Delhi Judicial Service

Association v. State of Gujarat, [1991] 4 SCC 406 highlight the importance

accorded to Article 32 of the Constitution; (iv)

The theory of alternative

institutional mechanisms advocated in

Sampath Kumar's case ignores the

fact that judicial review vested in the High Courts consists not only

of the

E

F

. power conferred upon the High Courts but also of the High Courts

themselves as

institutions· endowed with glorious judicial traditions. The

High Courts had been in existence since the 19th century and were pos­

sessed of a hoary past 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 environ­

ment overnight. Consequently, the alternative mechanisms would not, in

the absence of an atmosphere conducive to the building of traditions, be

G

able to act as effective alternatives to High Courts for the exercise of

constitutional Jurisdiction. In

Pratibha

Bo1111erjea v. Union of India, [1995]

6 SCC 765, this Court has analysed the special constitutional status of

Judges of High Courts and explained how they are distinct from other tiers

of the judiciary.

H

A

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1220 SUPREME COURT REPORTS [1997] 2 S.C.R.

Mr. A.K. Ganguli, appearing for the second and third respondents

in C.A. 1532-33/93, adopted the arguments of Mr. Rama Jois and Mr.

Bhushan. In addition, he cited certain authorities in support

of his conten­

tion that the power

to interpret the provisions of the Constitution is one

which has been solely vested in the constitutional courts and cannot be

bestowed on

newly created quasi-judicial bodies which are susceptible to

executive influences.

Mr.

K.N. Bhat, the learned Additional Solicitor General of India

represented the

Union of India which is a party in C.A. No ... 169-o ~f 1994

and C.A. No. 481 of 1989. His contentions are as follows: (i) Clause 2(d)

of Article 323A and clause 3( d) of Article

323B ought not to be struck

down on the ground that they exclude the jurisdiction of this Court under

Article

32 of the Constitution.

On account of several decisions of this

Court, it is a well-established proposition in law that the jurisdiction of this

Court under Article

32 of the

<;:onstitution is sacrosanct and is indisputably

D . 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

E alternative institutional

mech~nisms. The theory enunciated in Sampath

Kumar's case is based on sound considerations and does not require any

reconsideration; (ii) 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,

F the High Courts would still be vested with Constitutional powers to exer­

cise corrective or supervisory jurisdiction; (iii)

Since the decisions of this

Court in Amuzva 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).

G

Mr. P.P. Rao, learned counsel for the State of Andhra Pradesh in

C.A. No.

196 of 1994 and the connected special leave petitions, put forth

the following submissions: (i) The matter before

us involves a very serious,

live problem which needs to be decided by adopting a pragmatic, coopera-

H tive approach instead of by a dogmatic, adversarial process. It is a fact that

L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1221

the Administrative Tribunals which were conceived· as substitutes for the A ·

High Courts have not lived upto expectations and have instead, proved to

be inadequate and ineffective in several ways. However, the striking down

of the impugned constitutional provisions would, instead of remedying the

problem, contribute to its worsening. The problem

of pendency in High

Courts which has been a cause for concern for several decades, has been

focused upon by several expert committees and commissions. The problem

of enormous increase in the volume of fresh institution coupled with

massive areas has necessitated the seeking of realistic solutions

in order to

prevent High Courts from becomingjncapable of discharging their func-

tions. The consistent

view of these expert committees has been that the

only manner in which the situation can be saved is by transferring some of

the jurisdiction of the High Courts, in relatively less important areas, to

specially constituted Tribunals which would act as substitutes for the High

Courts. In

Sampath Kumar's case, this Court was required to test the

constitutional validity of providing for such a substitute to the High Court

B

c

in the shape of Administrative Tribunals.

While deciding the case, this D

Court had actually monitored the amendments to the Act by a series of

orders and directions given from time to time

as the learned Attorney

General had offered to effect the necessary amendments to the Act to

remove its defects. After the

necessary amendments were made to the Act,

this Court was satisfied that there

was no need to strike. it down as it was

of the view that the Act

would provide an effective alternative forum to the

High Courts for the resolution of service disputes. However, the actual

functioning of the Tribunals during the last decade has brought forth

several deficiencies which need to be removed. The remedy, however, lies

not

in striking down the constitutional provisions involved but in allowing

the

Union of India to further amend the Act so as to ensure that the

Tribunals become effective alternative fora; (ii) Article 323A (2)(d) does

not violate the basic structure of the Constitution. The relevant observa-

tions in

Keshvananda Bharati's case, show that there is an inherent distinc-

E

F

tion between the individual provisions of the Constitution and

the basic

features of the Constitution. While the basic features of the Constitution G

cannot be changed even by amending the Constitution each and every

provision of the Constitution can be amended under Article

368. The

majority judgments in

Keshavananda· Bharti's case emphatically state that

.-.. the concept of separation of powers is a basic feature of the Constitution.

It, therefore, follows that the powers of judicial review, which

is a necessary H

1222 SUPREME COURT REPORTS [1997) 2 S.C.R.

A concomitant of the independence of the judii:iary, is also a basic feature of

our Constitution. However, it does not follow that specific provisions such

as Article 32 or Article 226 are by themselves part of the basic structure

of the Constitution. In this regard, the history

of Article 31, which con­

tained a Fundamental Right to Property and was shifted from Part III to

B

c

D

E

F

Chapter IV of Part XII can be cited by way of an example; (iii) the essence

of the power of judicial review is that it must always remain with the

judiciary and must not be surrendered to the executive or the legislature.

Since the impugned provisions save the .iurisdiction of this Court under

Article

136, thereby allowing the judiciary to have the final say in every

form of adjudication, it cannot

be said that the basic

feature of judicial

review had been violated. The constitutional bar is against the conferment

of judicial power on agencies outside the judiciary. However, if within the

judicial set-up, arrangements are made in the interests of better administra-·

lion of justice to limit the jurisdiction under Article 32 and 226 of the

Constitution, there can be no grievance. In fact, it

is in (he interest of better

administration of justice that this Court has developed a practice, even

in

the case of violation of Fundamental Rights, of requiring parties to ap­

proach the concerned High Court under Article

226 instead of directly

approaching this Court

under Article 32 of the Constitution. This, undoub­

tedly, has the effect of limiting the jurisdiction of this Court under Article

32 but, being necessary for proper administration of justice, cannot be

challenged

as unconstitutional.

Service matters, which are essentially in the

nature of in-house disputes, being of lesser significance than those involving

Fundamental Rights, can also be transferred to Tribunals on the same

reasoning;

(iv) By virtue of

Order XXVII-A, Rule lA, ordinary civil courts

are empowered to adjudicate upon questions of

vires of statutory rules and

instruments. In

view of this situation, there is no constitutional difficulty in

empowering Tribunals to have similar powers;

(v) Alternatively, in case we

are inclined to take

view that the power of judicial review of legislative

enactments cannot

in any event be conferred on any other Court or

Tribun'al,. we may use the doctrine of reading down to save the impugned

G constitutional provisions. So construed, the High Courts would continue to

have jurisdiction to decide the

vires of an Act even in the area of service

disputes and would, therefore, perform a supervisory role over Tribunals

in respect of matters involving constitutional questions.

H Mr. K.K. Venugopal, representing

the State of West Bengal in S.L.P.

No. 1063 of 1996 and C.A. No. 1532-33 of 1993, began by reiterating the -

-

L. CHANDRA KR. v. U.O.l. [AHMADI, CJ.) 1223

contention that the impubrned provisions do not seek to oust the jurisdiction A

of this Court under Article 32 which is a basic feature of the Constitution.

His alternative contention was that since the provisions do not exclude the

jurisdiction under Article

136 an<l since Article 32 (3)

itself conceives of

the delegation of that jurisdiction, the ouster of the jurisdiction under

Article 32 was not unconstitutional. This submission was based on the

reasoning that, in the absence of any specific constitutional prohibition,

both Parliament and the State legislatures were vested with sufficient

legislation powers to effect changes in the original jurisdiction of this

Court as well as the High Courts.

He then stated that in the event that we

are not inclined to hold in accordance with either of the earlier contentions,

the doctrine of severability should

be applied to excise the words

"under

Article 136" from the provisions and thus save them from the vice of

uncon.~titutionality. Thereafter, he endeavoured to impress upon us the

jurisprudential soundness of the theory of alternative institutional

mechanism propounded in

Sampath Kumar's case. He theri contended that

B

c

the shortfalls in the. constitution of the Tribunals, the selection of their D

personnel, the methods of their appointment etc. are a consequence of

legislative and executive errors of judgment;

these shortfalls cannot affect

the constitutionality of the parent constitutional provisions.

He concluded

by declaring that these constitutional amendments were lawfully incor­

porated by the representatives of the people in exercise of the constituent

power of Parliament to remedy the existing problem of inefficacious

delivery of justice

in the High Courts. He counselled us not to substitute

our decision for that of the policy evolved by Parliament in exercise of

il~

constituent power and urged us to suggest suitable amendments, as was

done

in Sampath Kumar's case, to make up for the shortfalls in the existing

system.

Mr. Kiran

K. Shah, the petitioner in

W.P. No. 789 of 1990, who is a

lawyer practicing before the Ahmedabad Bench of the Central Administra-

E

F

tive Tribunal, sought to apprise us of the practical problems· faced by

advocates in presenting their cases before the Central Administrative

Tribunal and

of several complaints regarding the discharge of their official G

duties.

·

The Registrar of the Principle Bench of the Central Administrative

Tribunal, who

is theSecond respondent in

C.A. No. 481 of 1989, was

represented before us by Mr. Kapil Sibal. The case

of the Registrar is that H

A

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1224 SUPREME COURT REPORTS (1997] 2 S.C.R. ~

the Tribunals, as they are functioning at present, are not effective sub­

stitutes for the High Courts. However, the creation of alternative institu­

tional mechanisms

is not violative of the basic structure so long as it is as

efficacious

as the constitutional courts. He urged us to discontinue the

appointment

of Administrative Members to the Tribunals and to ensure

that the Members of the Tribunals have security of tenure, which is a

necessary pre-requisite for securing their independence.

-Mr. V.R. Reddy, the learned Additional Solicitor General of India,

drew our attention towards the judgment of tlie Madras High Court which

is the subject of challenge

in

S.L.P. No. 17768 of 1991. Mr. Reddy en---

C deavoured to convince us that the amendments incorporated in the legis­

lation which created the Tamil Nadu Land Reforms Special Appellate

Tribunal after the decision in

Sampath Kumar's case have the effect of

making it a proper and effective substitute for the High Courts.

He also

submitted that the functioning of the Land Reforms Tribunal

was essential

D for the effective resolution of disputes in that branch of law.

We may now address the main issues which have been identified at

the begining of this judgment as being central

to the adjudication of this

batch of matters. This would involve an appreciation of the power of

judicial review and an understanding of the manner and the instrurnen-

E talities through which it is to be exercised.

F

The underlying theme of the impugned judgment of the

AP. High

Court rendered

by M.N. Rao, J. is that the power of judicial review is one

of the basic features of our constitution and that aspect of the power which

enables courts

to test the constitutional validity of statutory provisions is

vested exclusively in the constitutional courts, i.e., the High Courts and the

Supreme Courts. In this Regard, the position in American Constitutional Law

in respect of Courts created under Article ill of the Constitution of the United

States has been analysed to state that the functions of Article ill Courts

(constitutional courts) cannot be performed

by other legislative courts estab-

G

mhed by the Congress in exercise of its legislative power. The following

decisions of the U.S. Supreme Court have been cited for support : National

Mugal Insurance Company

of the District of Columbia v. Tidewater Transfer

Company,

93 L. Ed. 1156

-337 US 582, Thomas S. William v. United States,

77 L. Ed. 1372 -289 US 553, Cooper v. Aaron 3 L. Ed. 2d 5 -358 US 1,

Northem Pipeline Constmction Company v. Marathon Pipeline Company

lJ and United States, 73 L. Ed. 2d 59 -458 US 50.

L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.) 1225

We may briefly advert to the position in American Constitutional A

· Law to the extent that it is relevant for our purpose. As pointed out by

Henery J. Abraham, an acclaimed American Constitutional Law scholar,

judicial review in the United States comprises the power of any cowt to hold

unconstitutional and hence unenforceable any

law, any official action based

upon a

law or any other action by a public official that it deems to be in

conflict with the Basic Law, in the

United States, its Constitution.(*) It

further stated that in the United States, the highly significant power of

judicial review

is possessed, theoretically, by every court of record, no

matter how high or low on the judicial ladder. Though it occurs

only

infrequently, it is quite possible for a Judge in a low-level court of one of

the

50 States to declare a Federal Law unconstitutional.

The position can be better appreciated by analysing the text of

Section 1 of Article III of the U.S. Constitution :

"Article III, Section 1 -The Judicial Power of the United States,

shall be vested in one Supreme Court, and in such inf elior Cowts

as the Congress may from time to time ordain and establish. The

Judges, both of the supreme and inferior Courts, shall hold their

Offices during good Behaviour, and shall, at stated times, receive

for their Services, a Compensation, which shall not be diminished

during their Continuance in Office."

(Emphasis added)

The judgment of the A.P. High Court is, therefore, correct in assert-

B

c

D

E

ing that the judicial power vested in Article III of the U.S. Constitution can p

only be exercised by courts created under Section 1 of Article III. However,

what must be emphasised

is the fact that Article III itself contemplates the

conferment of such judicial power

by the

U.S. Congress upon inferior

courts

so long as the independence of the Judges is ensured in terms of

Section 1

to Article Ill. The proposition which emerges from this analysis

is that in

tJie United States, though the concept of judicial power has been G

accorded'great constitutional protection, there is no blanket prohibition on

the conferment of judicial power upon courts other than the U.S. Supreme

Court.

Hemy J. Abraham, The Judicial Process, 4th Edn .. Oxford University Press (1980) p.

296.

H

A

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D

E

F

1226 SUPREME COURT REPORTS [1997] 2 S.C.R.

Henry

J. Abraham's definition of judicial review in the American

context

is, subject to a few modifications, equally applicable to concept as

it

is understood in Indian Constitutional Law. Broadly speaking, judicial

review in India comprises three aspects : judicial review of legislative

action, judicial . review of judicial decisions and judicial review of ad­

ministrative action. We·are, for the present, concerned only with under­

standing the first

two aspects.

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

Jolin Marshall of the U.S. Supreme Court in

Marbury v. Madison, 1 Cranch 137 (1803) :

"It is emphatically the province and duty of the judicial department

to say what the law is. Those who apply the rule to particular cases,

must of necessity expound and interpret that rule

... A law repug-·

nant to the constitution

is void ... Courts as well as other depart­

ments are bound by that

instrument."

(Emphasis added)

The assumption of such a power unto itself by the U.S. Supreme Court was

never seriously challenged and, over the years, it has exercised this power

in numerous cases despite the persisting criticism that such an exercise was

undemocratic. Indeed, when the Framers of our Constitution set about

their monumental task, they were

well aware that the principle that courts

possess the power to invalidate duly enacted legislations had already

acquired a history of nearly a century and a half.

At a very early stage of the history of this C_ourt, when it was doubted

whether

it

was justified in exercising such a power, Patanjali Sastri, CJ,

While emphatically laying down the foundation of the principle held as

G follows (State of Madras v. V.G. Row, [1952) SCR 597 at G06) :

H

" .. .[O Jur Constitution contains express provisions for judicial review

of legislation as to its conj om1ity with the Constitution, unlike as in

America where the Supreme Court has assumed extensive powers

of reviewing legislative acts under cover of the widely interpreted

"due process" clause in the Fifth and Fourteenth Amendments. If,

-

It

L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1227

then, the courts, in this country face up to such important and none A

too easy task, it is not out of any desire to tilt at legislative authority

in a crusader's sprit, but in

discharge of a duty plainly laid

upo11

them by the constitution. This is especially true as regards .the

"fundamental rights",

as to which this Courts has been assigned the

role of a sentinel on the

qui vive. While the Court naturally attaches

great weight to the legislative judgment,

it cannot desert its

own

duty to detennine finally the constitutionality of an impugned statute."

(Emphasis added)

B

Over the years, this Court has had many an opportunity to express C

its views on the power of judicial review of legislative action. What follows

is an analysis of the leading pronouncements on the issue.

While delivering a separate but concur.ring judgment in the

five­

Judge Constitution Bench Decision in Bidi

Supply Co. v. The Union of India

and Orl:., [1956] SCR 267 at 284, Il_ose, J. made the following observations D

which are apposite to the Present c\mtext:

"The heart and core of democracy lies in the judicial process, and

that means independent and fearless judges free frum executive

control brought up in judicial traditions and training to judicial

ways of working and thinking. The main bulwarks of liberty of

freedom lie there and

it is clear to me that 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. Under the

Constitution, Acts, of Parliament are subjected to judicial review

particularly when they are said to infringe fundamental rights,

therefore,

if under the Constitution Parliament itself has not un­

controlled freedom, of action,

it is evident that it cannot invest

lesser authorities with that power.'' Special Reference No, 1 of 1964, was a case where a seven-Judge

Constitution Bench of this f:ourt had to express itself on the thorny issue

E

F

G

of Parliamentary privileges. While doing so, 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 H

I

1228 SUPREME COURT REPORTS [1997) 2 S.C.R.

A that Gajendragadkar, CJ made the following observations:

B

c

D

E

F

" ... [W]hether or not there is distinct and rigid separation of powers

under the Indian Constitution,

there is no doubt that the constitution

has entmsted to the Judicature in this country the task of construing

the provisions of the Constitution and of safeguarding the

fundamen­

tal rights of the citizens. When a statute is challenged Oil the ground

that it has been passed by a Legislature without authority, or has

otherwise unconstitutionally trespassed Oil fundamental rights, it is

for the courts to detemiine 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

fundamen­

tal 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."

(Emphasis added)

It is interesting to note that the origins of the power of judicial review

of legislative action have not been attributed to one source alone. While

Sastri, C.J. found the power mentioned expressly .in the text of the Con­

stitution, Gajendragadkar, CJ. preferred to trace it to the manner in which

the constitution has separated powers between the three wings of Govern­

ment.

In Kesvananda Bharati's case, a 13-Judge Constitution Bench, by a

majority of

7:6, held that though, by virtue of Article 368, Parliament is

G empowered to amend to Constitution, that power cannot be exercised so

as to damage the basic features of the Constitution or to destroy its basic

structure. The identification of the features which constitute

the basic

structure of our Constitution has been the subject-matter of great debate

in Indian Constitutional Law. The difficulty is compounded by the fact that

H

even the judgments for the majority are not unanimously agreed on this

L. CHANDRA KR. v. u.o.r. [AHMADI, C.J.] 1229

aspect. [There were five judgments for the majority, delivered by Sikri, C.J .,

Shelat & Grover, JJ. Hegde & Mukherjee, JJ. Jaganmohan Reddy, J. and

Khanna,

J. While Khanna, J. did not attempt to catalogue the basic

features, the identification of the basic features

by the other Judges are

specified in the following paragraphs of the Court's judgments : Sikri, C.J.

(para 292), Shelat and Grover,

JJ. (para 582), Hegde and Mukherjee, JJ.

(paras 632, 661) and Jaganmohan Reddy, J. (paras 1159, 1161)]. The aspect

of judicial review does not find elaborate mention in all the majority

judgments. Khanna,

J. did, however, squarely address the issue (at para

1529) :

" ... The power of judicial review is, however, confined not merely

to deciding whether in making the impugned laws the Central or

State Legislatures have acted within the four corners of the legis­

lative lists earmarked for them; the cowts also deal with the question

A

B

c

as to whether the laws are made in conj onnity with and not in

violation of the other provisions of the Constitution ... As long as D

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

con­

travened ... Judicial review has thus become an integral part of our

constitutional system and a power has been vested in the High Courts E

and the Supreme Cowt to decide about the constitutional validity of

provisions of statutes. If the provisions of the statute are found to

be violative of any article of the Constitution, which

is touchstone

for the validity of all

laws, the Supreme Court and the High Courts

are empowered to strike down the said provisions."

F

(Emphasis added)

Shelat

& Grover, JJ., while reaching the same conclusion in respect

of Articles

32& 226, however, adopted a different approach to the issue

(at para

~77) : G

"There is ample evidence in the Constitution itself to indicate that

it creates a system of checks and balances

by reason of which

powers are so distributed that none of the three organs it sets up

can become so pre-dominant as to disable the others from exer-

H

A

B

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1230 SUPREME COURT REPORTS [1997] 2 S.C.R.

cising and discharging powers and functions entrusted to them.

Though the constitution does not

lay down the principle of separa­

tion of powers

in all its rigidity as is the case in the United

States

Constitution but it envisages such a separation to a degree as was

found in Ranasinghe's case (supra). The judicial review provided

e.xpressly in our constitution by means of Articles 226 and 32 is one

uf the features upon which hinges the system of checks and balances."

(Emphasis added)

ln Indira Nehru Gandhi v. Raj Narain, five-Judge Constitution Bench

had to,

i1:ter alia, test the Constitutional validity of provisions which

ousted the jurisdiction of all Courts including the

Supreme Court, in

election matters. Consequently, the Court

was required to express its

opinion on the concept of judicial

n;view. Though all five Judges

delivered concurring judgmeuts to strike down the offending provision,

D their views on the issue of judicial review are replete with variations.

E

F

Ray, C.J ., was of the view that the concept of judicial review, while a

distinctive feature of American Constitutional Law, is not founded

on

any specific Article in our Constitution. He observed that judicial review

can and has

·J;ieen excluded in several matters; in election matters,

judicial review

is not a compulsion. He, however, held that our Constitu­

tion recognises a division of the three main functions of Government

and that judicial power, which

is vested in the judiciary cannot be

passed to

or shared by the

Exec~tive or the Legislature. (Paras 32, 43,

46, 52). Khanna, J. took the view that it is not necessary, within a

democr:itic set up, that disputes relating to the validity of elections be

settled

by Courts of Law; he, however, felt that even so the legislature

could not

be. permitted to declare that the validity of a particular

election would not be challenged before

any forum and would be valid

despite the existence of disputes.

(Para 207). Mathew, J. held that

whereas in the United States of America and in Australia, the judicial

G power is vested exclusively in Courts, there is no such exclusive vesting

of judicial power

in the

Supreme Court of India and the Courts subor­

dinate to it. Therefore, the Parliament could, by passing a law within its

competence, vest judicial power in

any authority for deciding a dispute. (Paras 322 and 323). Beg, J. held that the power of Courts to test the

H legality of ordinary laws and constitutional amendments against the

--

L. CHANDRA KR. v. U.0.1. [AHMADI, C.J.] 1231

norms laid down in the Constitution flows from the 'supremacy of the A

Constitution' which is a basic feature of the Constitution. (Para 622).

Chandrachud, J. felt that the contention that judicial review is a part of the

basic structure and that

any attempt to

exclude the jurisdiction of courts

in respect of election matters

was unconstitutional, was too broadly stated.

He pointed out that the Constitution, as originally enacted, expressly

excluded judicial review in a large number of important. matters. The

examples of Articles 136(2) and

226(4) [exclusion of review in laws relating

to armed forces), Article 262(2) [exclusion of review in river disputes]

Article 103(1) [exclusion of review in disqualification of Members of

Parliament), Article 329(a) [exclusion of review in laws relating to delimita­

tion of constituencies and related matters], were cited for support. Based

on this analysis, Chandrachud,

J. came to the conclusion that since the

Constitution,

as originally enacted, did not consider that judicial power

must intervene in the interests of purity of elections, judicial review cannot

B

c

be considered to be a part of the basic structure in so far as legislative

elections are concerned.

D

The foregoing analysis reveals that the

Ji.idges in Indira Gandhi's

case, all of whom had been party to Kesavananda Bharati's case, did not

adopt similar approaches to the concept of judicial review. While

Beg, J.

clearly expressed his view that judicial review was a part of the basic E

structure of the Constitution, Ray, CJ and Mathew, J. pointed out that

unlike

in the American context, judicial power had not been expressly

vested

in the judiciary by the Constitution of India. Khanna, J. did not

express himself on this aspect, but in

view of his emphatic observations in

Kesavananda Bharati's case, his views

on the subject can be understood to F

have been made clear. Chandrachud, J. pointed out that the Constitution

itself excludes judicial review in a number of matters and

felt that in

election matters, judicial review is not a necessary requirement.

In

Minerva Mills v.

Union of India, a five-Judge Constitution Bench

of this Court had to consider the validity of certain provisions of the

Constitution (42nd Amendment) Act,

1976 which" inter alia, excluded

judicial review. The judgment for the majority, delivered by

Chandrachud,

CJ for four Judges, contained the following observations

(at p.

644, para 21):

G

H

A

B

D

E

1232

SUPREME COURT REPORTS [1997] 2 S.C.R.

" ... 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.

lt is the function of the Judges, nay their duty, to

pronounce upon the validity of laws. If courts are totally deprived

of that power, the fundamental rights conferred upon the people

will become a mere adornment because rights without remedies

are as writ in water. A controlled Constitution

will then become

uncontrolled."

(Emphasis supplied)

The majority judgment held the impugned provisions to be uncon­

stitutional. While giving reasons in support, Chandrachud, CJ stated as

follows :

" .... It is for the courts to decide whether restrictions are

reasonable and whether they are in the interest of the

particular subject. Apart from other basic dissimilarities,

Article 31-C takes away the power of judicial review to an

extent which destroys even the semblance of a comparison

between its provisions and those

of clauses (2) to ( 6)

of Article 19. Human ingenuity, limitless though it may be, has

yet not devised a system by which the liberty of

the

people can be protected except through the intervention of

courts of

law."

It may, however, be noted that the majority in Minerva Mills did not

F hold that the concept of judicial review was, by itself, part of the basic

structure of the Constitution. The judgment of Chandrachud,

CJ in the

Mine1va Mill's case must be viewed in the. context of his judgment in Indira

Gandhi's case where he had stated that the Constitution, as originally

enacted, excluded judicial review in several important matters.

G

H

In his minority judgment in Minerva

Mill's case, Bhagwati, J. held as

follows:

" ... 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

--

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I

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L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1233

judicial review to determine the legality of executive action and A

the validity of legislation passed by the legislature. 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. 77iis power of judicial review is conferred on the judiciary by Articles B

32 and 226 of the Constitution ..... 17ie 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, whether it is limited, and if so, what are the limits

and whether any action of that branch transgresses such limits.

C

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 conditioned by the Constitution and

D

the law''. The power of judicial review is

an integral pa1t of

our constitutional system the power of judicial review ..... is unques­

tionably .... part of the basic structure of the Constitution. Of course,

when I say this I should not be taken to suggest that effective

altemative institutional mechanisms or al7angements for judicial

review cannot be made by Parliament."

(Emphasis added)

E

The A.P. High Court has, through the judgment of M.N. Rao, J.,

pointed out that the theory of alternative institutional mechanisms enun-F

dated by Bhagwati, J. in his minority judgment in Minerva Mill's case was .. not supported by or even mentioned in the majority judgment. In fact, such

a theory finds no prior mention in the earlier decisions of this Court and,

in the opinion of the

AP. High Court, did not represent the correct legal

position.

It is to be noted that in

Sampath Kumar's case, both Bhagwati,

CJ and Misra, J. in their separate judgment have relied on the observations G

in the minority judgment of Bhagwati, J. in Minerva Mill's case to lay the

foundation of the theory of alternative institutional mechanisms.

We

may, at this stage, take note of the decision in Fertiliser Corpora-

tion Kamgar Union

V. Union of India, (1981) 1 sec 568, where H

1234 SUPREME COURT REPORTS [1997) 2 S.C.R.

A Chandrachud, CJ appears to have somewhat revised the view adopted by

him in

Indira Gandhi's case. In that case, speaking for the majority,

Chandrachud,

CJ held that

"the jurisdiction conferred on the Supreme

Court by Article 32 is an important and integral part of the basic structure

of the Constitution." (at para

11).

B

c

In Kihoto Hollohan v. Zachillu &

Ors., a five-Judge Constitution

Bench had to, inter alia, consider the validity of Paragraph 7 of the Tenth

Schedule to. the Constitution which excluded judicial review. The judgment

for the minority, delivered

by Verma, J. struck down the provision on the

ground that it violated the rule of law which

is a basic feature of the

Constitution requiring that decisions be subject to judicial review

by an

independent outside authority.

(Paras 181-182). Though the majority judg­

ment delivered by Venkatachaliah,

J. also struck down the offending

provision, the reasoning employed

was different. The judgment for

·the

majority contains an observation to the effect that, in the opinion of the

D judges in the majority, it was not necessary for them to express themselves

on the question whether judicial review

is part of the basic structure of the

Constitution.

(Para 120).

E

F

G

We may now analyse certain other authorities for the proposition

that the jurisdiction conferred upon the High Courts and the

Supreme­

Court under Article 226 and 32 of the Constitution respectively, is part

of the basic structure of the Constitution. While expressing his

views on

the significance of draft Article

25, which corresponds to the present

Article 32 of the Constitution, Dr. B.R. Ambcdkar, the Chairman of the

Drafting Committee of the Constituent Assembly stated as follows

(CAD, Vol. VII, p.

953) :

"If I was asked to name any particular Article in this Constitution

as the most imporlant -an Article without which this Constitution

would be a nullity--I could not refer

to any other Article except

this one.

It is the very soul of the Constitution and the very hearl of

it and I am glad that the House has realised its

importance."

(Emphasis added)

This statement of Dr. Ambedkar has been specifically reiterated in

H several judgments of this Court to emphasise the unique significance

-

--

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L. CHANDRA KR .. v. U.0.1. [AHMADI, CJ.] 1235

attributed to Article 32 in our constitutional scheme. [See for instance, A

·Khanna, J. in Kesava11a11da Bharati's case (p. 818), Bhagwati, J. in Minerva

Mills (p. 678), Chandrachud, CJ Fertiliser Kamgar (para 11), R. Misra, J.

in Sampatlt Kumar (p. 137)].

In the Special Reference Case, While addressing this issue,

Gajendragadhkar,

CJ stated as follows (supra at pp. 493-494):

"If the power of the High Courts under An. 226 and the authority of

B

this Court under An. 32 are not subject to any exceptions, then it

would be futile to contend that a citizen cannot

move the High

Courts or this Court to invoke their jurisdiction even in cases where

C

his fundamental rights have been violated. The existence of judicial

power

in that behalf must necesswily and inevitably postulate the

existence of a right in the citizen to move the Court in that behalf;

otherwise the power conferred on the High Courts and this Court

would be rendered virtually meaningless. Let it not be forgotten

D

that the judicial power conferred on the High Courts and this

Court

is meant for the protection of the citizens' fundamental

rights, and so, in the existence of the said judicial power itself

is

necessarily involved the right of the citizen to appeal to the said

power in a proper

case." E

(Emphasis added)

To express our opinion on the issue whether the power of judicial

review vested in the High Courts and into the Supreme Court under

Articles

226/227 and 32 is part of the basic structure of the Constitution,

we must first attempt to understand what constitutes the basic structure of

the Constitution. The Doctrine of basic structure

was evolved in

Kesva11a11-

F

da Bharati's case. However, as already mentioned, 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. Indeed, in G

the judgments of Shelat & Grover, JJ., Hegde & Mukherjee, JJ. and

Jaganmohan Reddy, J,., there are specific observations to the effect that

their list of essential features comprising the basic structure of the Con­

stitution are illustrative and are not intended to be exhaustive. In Indira

Gandhi's case, Chandrachud, J. held that the proper approach for a Judge H

1236 SUPREME COURT REPORTS [1997) 2S.C.R.

A 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

B country. (supra at pp. 751-752). This approach was specifically adopted by

Bhagwati, J. in Minerva Mill's case (supra at pp. 671-672) and is not

regarded as the definitive test in this field of Constitutional Law.

c

We find that the. various factors mentioned in the test evolved by

Chandiachud, J. have already been considered by decisions of various

Benches of this Court that have been referred to

in the course of our

analysis. From their conclusions, many of which have been extracted

by us

in toto, it appears that this Court has always considered the power of

judicial review vested in the High Courts and in this Court under Articles

226 and 32 respectively, enabling legislative action to be subjected to the

D scrutiny of superior courts, to be integral to our constitutional scheme.

E

F

While several judgments have made specific references to this aspect

[Gajendragadhkar,

CJ in Special Reference case, Beg, J. and Khanna, J. in

Kesavananda Bharti's case, Chandrachu<l, CJ and Bhagwati, J. in Minerva

Mills, Chandrachud, CJ in Fertiliser Kamgar, K.N. Singh, J. in Delhi Judicial

Service Association, etc.] the rest have made general observations highlight­

ing the significance of this feature.

The legitimacy

of the power of Courts within constitutional

democracies to review legislative action has been questioned since the time

it

was first conceived. The Constitution of India, being alive to such

criticism, has,

while conferring such power upon

the· higher judiciary,

incorporated important safeguards.

An analysis of the manner in which the

Framers of

· our Constitution incorporated provisions relating to the

judiciary would indicate that they were

very greatly concerned with secur­

ing the independence of the judiciary.(#) These attempts were directed at

G ensuring 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

H

#

See Chapter VII, HThe Judicial)' and the Social Revolution" in Granville Austen, The

Indian Constitution: Cornerstone of a Nation Oxford University Pft'ss, 1972; the chapter

includes exhaustive reforences to the relevant preparatory works and dehates in the

Constituent Assembly.

,.

-

--

•

L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1237

Court, it also contains elaborate provisions dealing with the tenure, salaries, A

allowances, retirement age of Judges as well as the mechanism for selecting

Judges to the superior courts. The inclusion of such elaborate provisions

appears to have been occasioned by the belief that, armed by such

provisions, 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 entrusted with the task of

uphold­B

ing the Constitution and to this end, have been conferred the power to

interpret it. It is they who have 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

constitu­

tional limitations. It is equally their duty to 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

inde­

pendence. The constitutional safeguards which ensure the independence

of the Judges of the superior judiciary, are not available to the Judges of

c

the subordinate judiciary or to those who man Tribunals created by

ordi­

nary legislations. Consequently, Judges of the latter category can nevei" be D

considered full and effective substitutes for the superior judiciary in dis­

charging the function of constitutional interpretation. We, therefore, hold

that the power of judicial review over legislative action vested in the High

Courts under Articles

226 and in

. this Court under Article 32 of the

Constitution

is an integral and essential feature of the Constitution,

con­

stituting part of its basic structure. Ordinarily, therefore, the power of E

High Courts and the Supreme Court to test the constitutional validity

of legislations can never

be ousted or excluded.

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.

F

However, it is important to emphasise that though the subordinate G

judiciary or Tribunals created under ordinary legislations cannot exer-

cise the power of judicial review of legislative action to the exclusion of

. the High Courts and the Supreme Court, there is no constitutional

·prohibition against their performing a supplemental--as opposed to a

substitutional--role in this respect. That such a situation

is contemplated H

·~

1238 SUPREME COURT REPORTS (1997) 2 S.C.R.

A \\~thin the constitutional scheme becomes evident when one analyses clause

(3) of Article 32 of the Constitution which reads as under:

B

"32. Remedies for enforcement of 1ights conferred by this Part.--(l)

(2) ...

(3) Without prejudice to the powers conferred on the Supreme

Court

by clauses (1) and (2), Parliament may by law empower any

other cowt to exercise within the local limits of its jurisdiction all or

C any of the powers exercisable by the

Supreme Court under clause

(2)."

(Emphasis supplied)

• If the power under Article 32 of the Constitution, which has been

D described as the "heart" and "soul" of the Constitution, can be

additionally conferred upon "any other court", there is no reason why

the same situation cannot subsist in respect of the jurisdiction con­

ferred upon the High Courts under Article

226 of the Constitution. So long as the jurisdiction of the High Courts under Articles 226/227

E

F

and that of this Court under Article 32 is retained, there is no reason

why the power to test the validity of legislations against the provisions

of the Constitution cannot be conferred upon Administrative

Tribunals. created under the Act or upon Tribunals created under

Article

323B of the Constitution. It is to be remembered that, apart

from the authorisation that

flows from Articles 232A and 323B, both

Parliament and the

State Legislatures possess legislative competence

to effect changes in the original jurisdiction of the Supreme Court and

the High Courts. This power

is available to Parliament under Entries

77, 78, 79 and 95 of List I and to the

State Legislatures under Entry

65 of List II; Entry 46 of List III can also be availed of both by

G Parliament and the State Legislatures for this purpose.

There are pressing reasons

why we are anxious to preserve the

conferment of such a power on these Tribunals. When the Framers of

our Constitution bestowed the powers of judicial review of legislative

H action upon the High Courts and the

Supreme Court, they ensured that

---

--

L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1239

other· constitutional safeguards were created to assist them in effectively A

discharging this onerous burden.· The expectation was that this power

would be required to be used

only occasionally. However, in the five

decades that have ensued since Independence, the quantity of litigation

before the High Courts has exploded in an unprecedented manner. The

decision in

Sampath Kumar's case was rendered against such a backdrop. B

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

and the approach selected by it appeared to be most appropriate to

meet the exigencies of the time. Nearly a decade.later,

we are now in a

position to review the theoretical and practical results that have arisen

as a consequence of the adoption of such an approach.

c

We must, at this stage, focus upon the factual position which

occasioned the adoption

of the theory of alternative institutional

mechanisms in

Sampath Kumar's case. In his leading judgment, R. Misra, D

J. refers to the fact that since independence, the population explosion and

the increase

in

litigation had greatly increased the burden of pendency in

the High Courts. Reference was made to studies conducted towards reliev-

ing the High Courts of their increased foad. In this regard, the recommen­

dations of the Shah Committee for setting up independent Tribunals as E

also the suggestio!l' of the Administrative Reforms Commission that Civil

Service Tribunals be set up, were noted. Reference was: also made to the

decision in

KK Dutta v. Union of India,

(1980) 4 SCC 38, where this Court

had, while emphasising the need

for speedy resolution of service disputes,

proposed the establishment of

Service Tribunals. F

The problem of clearing the backlogs of High Courts, which has

reached colossal proportions in our times

is, nevertheless, one that has

been the

focus of study for close to a half century.

Over time, several

Expert Committees and Commissions have analysed the intricacies

in-G

volved and have made suggestions, not all of which have been consistent. Of the several studies that have been conducted in this regard, as many as

twelve have been undertaken by the Law Commission of India (hereinafter

referred to

as

"the LCI"") or similar high level Committees appointed by

the Central Government, and are particularly noteworthy.(***) H

A

B

c

D

E

F

1240 SUPREME COURT REPORTS [1997] 2 S.C.R. ~

An appraisal of the daunting task which confronts the High Courts

can be made by referring to the assessment undertaken by the LCI in its

124th Report which

was released sometime after the judgment in

Sampatii

Kumar's case. The Report was delivered in 1988, nine years ago, and some

changes have occurred since, but the broad p"'rspective which emerges is

still,

by and large, true:

·

" ... The High Courts enjoy civil as well as criminal, ordinary as well

as extraordinary, and general as well as special jurisdiction. The

source of the jurisdiction

is the Constitution and the various

statutes as well

as letters patent and other instruments constituting

the High Courts. The High Courts in the country enjoy an original

jurisdiction in respect of testamentary, matrimonial and guardian­

ship matters.

Original jurisdiction is conferred oil the High Courts

under the Representation of the People Act, 1951, Companies Act,

1956, and several other special statutes. The High Courts, being

courts of record, have the power to punish for its contempt

as well

as contempt of its subordinate courts. The High Courts enjoy

extraordinary jurisdiction under articles

226 and 227 of the Con­

stitution enabling it to issue prerogative writs, such

as, the one in

the nature of habeas corpus, mandamus, prohibition, quo warranto

and certiorari.

Over and above this, the High Courts of Bombay,

Calcutta, Delhi, Himachal Pradesh, Jammu and Kashmir and

Madras also exercise ordinary original

civil jurisdiction. The High

Courts also enjoy advisory jurisdiction,

as evidenced by section 256

of the Indian Companies Act, 1956, section 27 of the Wealth Tax

Act,

1957, section 26 of Gift Tax Act, 1958, and section 18 of

Companies

(Profits) Surtax Act, 1964. Similarly, there are parallel

provisions conferring advisory jurisdiction on the High Courts,

such

as section 130 of Customs Act, 1962, and section 354 of

(''')Report of the High Court Arrears Committee 1949; LC!, 14th Report on Reform

of Judicial Administration (1958); LC!, 27th Report on Code of Civil Procedure,

1908

G (1964); LC!, 41st Report on Code of Criminal Procedure, 1898 (1969); LCI, 54th

Report

of Code of Civil Procedure,

1908 (1973); LCI, 57th Report on Structure and

Jurisdiction of the Higher Judiciary (1974); Report of High Court Arrears Committee,

1972; LCI, 79th Report on Delay and Arrears in High Courts and other Appellate

Courts (1979); LCI, 99th Report on Oral Arguments and Written Arguments

in the

Higher Courts

(1984);

Satish Chandra's Committee Report 1986; LC!. 124lh Report

on the High Court Arrears--A Fresh Look (1988); Report of the Arrears Committee

H (1989-90).

,_

-

--

L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1241

Central Excises and Salt Act, 1944. The High Courts have also

enjoyed jurisdiction under the Indian Divorce Act, 1869, and the

Parsi Marriage and Divorce Act, 1936. Different types of litigation

coming before the High Court in exercise of its wide jurisdiction

bear different names. The vast area of jurisdiction can

be ap­

preciated

by reference to those names, viz., (a) first appeals; (b)

appeals under the letters patent; (

c) second appeals; ( d} revision

petitions; ( e) criminal appeals;

(f) criminal revisions; (g)

civil and

crimina: references; (h) writ petitions; (i) writ appeals; G) refer­

ences under direct and indirect tax laws; (k) matters arising under

the Sales Tax Act; (!) election petitions under the Representation

of the People Act,; (m) petitions under the Companies Act, Bank­

ing Companies Act and other special Acts and (n) wherever the

High Court has original jurisdiction, suits and other proceedings

in exercise of that jurisdiction. This varied jurisdiction has to some

extent been responsible for a very heavy institution of matters in

the High Courts."

After analysing the situation existing in the High Courts at length,

the LCI made specific recommendations towards the establishment of

specialist Tribunals thereby lending force to the approach adopted in

Sampath Kumar's case. The LCI noted the erstwhile international judicial

trend which pointed towards generalist courts yielding their place to

specialist Tribunals. Describing the pendency in the High Courts

as "catastrophic, crisis ridden, almost unmanageable, imposing ... an im.­

measurable burden on the system", the LCI stated that the prevailng view

in Indian Jurisprudence that the jurisdiction enjoyed by the High Court is

a holy cow required a review. It, therefore, recommended the trimming of

the jurisdiction of the High Courts by setting up specialist courtsn'ribunals

while simultaneously eliminating the jurisdiction of the High Courts.

It is important to realise that though the theory of alternative institu­

tional mechanisms

was propounded in

Sampath Kumar's case in respect of

B

c

D

E

F

the Administrative Tribunals, the concept itself--that of creating alternative G

modes of dispute resolution which would relieve High Courts of their

burden while simultaneously providing specfalised justice--is not new. In

fact, the issue of having a specialised Tax Court has been discussed for

several decades; though the Report of the High Court Arrears Committee

(1972) dismissed it

as

"ill-conceived", the LCI, in its Jl5th Report (1986) H

1242 SUPREME COURT REPORTS (1997] 2 S.C.R.

A revived the recommendation of setting up separate Central Tax Courts.

B

c

Similarly, other Reports of the LCI have suggested the setting up of 'G!am

Nyayalayas' (LCI, 114th Report (1986)], Industrial/Labour Tribunals [LCI,

122nd Report (1987)] and Education Tribunals [LCI, 123rd Report

(1987)].

In R.K Jain's case, this Court had, in order to understand how the

theory of alternative institutional mechanisms had functioned in practice,

recommended that the LCI or a similar expert body should conduct a

survey of the functioning of these Tribunals.

It was hoped that such a study,

conducted after guaging the working of the Tribunals over a sizeable

period of more than

five years would provide an answer to the questions

posed

by the critics of the theory. Unfortunately, we do not have the benefit

of such a study. We

may, however, advert to the Report of the Arrears

Committee (1989-90), popularly known

as the Malimath Committee

Report, which has elaborately dealt

with the aspect. The observations

D contained in the Report, to this extent they contain a review of the

functioning of the Tribunals over a period of three years or so after their

institution,

will be useful for our purpose. Chapter VIII of the second

volume of the Report,

"Alternative Modes and Forums for Dispute

Resolution", deals with the issue at length. After forwarding its specific

E

F

G

H

recommendations on the feasibility of setting up 'Gram Nyayalayas', In­

dustrial Tribunals and Educational Tribunals, the Committee has dealt

with the issue of Tribunals set up under Articles 323A and 323B of the

Constitution. The relevant observations

in this regard, being of consider­

able significance to our

analysis, are extracted in full as under: "Functioning of Tribunals

8.63 Several tribunals are functioning in the country. Not all of

them, however, have inspired confidence in the public mind. The

reasons are not far to seek. The foremost is the lack of competence,

objectivity a11d judicial approach. The next is their co11stitutio11, the

power and method of appoi11tment of personnel thereto, the i11f erior

status and the casual method of working. TI1e last is their actual

composition; men of calibre are not willing to be appointed as

presiding officers in view of the uncertainty of tenure, unsatisfactory

conditions of service, exerntive subordination in matters of ad-

I

L. CHANDRA KR. v. U.0.l. [AHMADI, C.J.] 1243

ministrulion and political interference in judicial functioning. For A

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.

8.64 Even the experiment of setting up of the Administrative

Tribunals under the Administrative Tribunals Act,

1985, has not

been widely welcomed. Its members have been selected from all

kinds of services including the Indian

Police Service. The decision

of the State Administrative Tribunals are not appealable except

under Article

136 of the Constitution.

On account of the heavy

cost and remoteness of the forum, there

is virtual negation of the

right of appeal. This has led to denial of justice in many cases and

consequential dissatisfaction. There appears to be

a move in some

of the

State where they have been established for their abolition.

Tribunals-Test for Including High Court's Jurisdiction

8.65 A Tribunal which substitutes the High Court as an alternative

in:;titutional mechanism for judicial review must be no Jess effica­

cious than the High Court. Such a tribunal must inspire confidence

and public esteem that it is a highly competellf and expert mechanism

with judicial approach and objectivity. What is needed in a t1ibunal,

which is intended to supplant the High Cowt, is legal training and

expe1ience, and judicial acumen, equipmelll and approach. When

such a tribunal

is composed of personnel drawn from the judiciary

as well

as from services or from amongst experts in the field, any

weightage in favour of the service members or expert members

and value-discounting the judicial

members would render the

tribunal less effective and efficacious than the High Court. The

B

c

D

E

F

Act setting up such a tribunal would itself have to be declared as

void under such circumstances. The same would not at

all be

conducive to judicial independence and may even tend, directly or

indirectly, to influence their decision making process, especiaHy

G

when the Government is a litigant in

most of the cases coming

before such tribunal. (See S.P. Sampath Kumar v. Union of India,

reported in [1987) 1 SCR 435. The protagonists of specialist

tribunals, who simultaneously with their establishment want

ex­

clusion of the Writ jurisdiction of the High Courts in regard to H

A

B

c

D

E

F

G

1244 SUPREME COURT REPORTS (1997] 2 S.C.R.

matters entrusted for adjudication to such tribunals, ought not to

·overlook these vital and important aspects. It must not be forgotten

that what is pennissible to be supplant by another equally effective

and efficacious institutional medianism is the High Cowts and not

the judicial review itself. Tribunals are not an end in themselves but

a means to an end; even if the laudable objectives of speedy justice,

uniformity of approach, predictability of decisions and specialist

justice are to

be achieved, the frame work.of the tribunal intended

to be set up to attain them must still retain its basic judicial

character and inspire public confidence. Any scheme of

' ' '

decentralisation of administration of justice providing for an alter-

native Institutional mechanism in substitution of the High Courts

must

pass the aforesaid test in order to be constitutionally valid.

8.66 Tjle overall picture regarding the tribunalisation of justice in

our country is not satisfactory and encouraging. There is a need

for a fresh look and review and a serious consideration before the

experiment

is extended to new areas of fields, especially if the

constitutional jwisdiction of the High Courts is to be simultaneously

ousted. Not many tribunals satisfying the aforesaid tests can

pos­

sibly he established.

(Emphasis added)

Having expressed itself in this manner, the Malimath Committee

specifically recommended

that the theory of alternative institutional

mechanisms be abandoned. Instead, it recommended that institutional

changes be carried out within the High Courts, dividing them into separate

divisions for different branches of law,

as is being done in England. It

stated that appointing more Judges, to man the separate divisions while

using the existing infrastructure would be a better way of remedying the

problem of pendency

in the High Courts.

In the

y~ars that have passed since the Report of the Malimath

Committee

was delivered, the pendency in the High Courts has

substan­

tially increased and we are of the view that its recommendation is not suited

to our present context. That the various Tribunals have not performed upto

expectations

is a self-evident and widely acknowledged truth. However, to

draw an

infere~ce that their unsatisfactory performance points to their

H being founded on a fundamentally unsound principle would not be correct.

,

I

L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1245

The reasons for which the Tribunals were constituted still persist; indeed,

those reasons have become even more pronounced

in our times. We have

already indicated that our constitutional scheme permits the setting up of

such Tribunals. However, drastic measures

may have to be resorted to in

order to elevate their standards to ensure that they stand up to constitu­

tional scrutiny in the discharge of the power of judicial review conferred

upon them.

A

B

We may first address the issue of exclusion of the power of judicial

review of the High Courts. We have already held that in respect of the

power of judicial review, the jurisdiction of the High Courts under Article

226/227 cannot wholly be excluded.

It has been contended before us that C

the Tribunals should not be allowed to adjudicate upon matters where the

vires of legislations is questioned, and that they should restrict themselves

to handling matters where constitutional issues are not raised. We cannot

bring ourselves to agree to this proposition

as that may result in splitting

up proceedings and may cause avoidable delay.

lf such a view were to be D

adopted, it would be open for litigants to raise constitutional issues, many

of which may be quite frivolous, to directly approach the High Courts and

thus subvert the jurisdiction of the Tribunals. Moreover, even in these

special branches of

law, some areas do involve the consideration of con­

stitutional questions on a regular basis; for instance,

in service law matters,

a large majority of

case.~ involve an interpretation of Articles 14, 15 and 16 E

of the Constitution. 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 F

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,

it

will ensure that frivolous claims arc filtered out through the process of

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 G

the matter.

It has also been contended before us that even in dealing with cases

which are properly before the Tribunals, the manner in which justice

is

dispensed by them leaves much to be desired. Moreover, the remedy H

A

B

c

1246 SUPREME COURT REPORTS [1997] 2 S.C.R.

provided in the parent statutes, by way of an appeal by special leave under

Article

136 of the Constitution, is too costly and inaccessible for it to be

real and effective. Furthermore, the result of providing such a remedy

is

that the docket of the

Supreme Court is crowded with decisions of

Tribunals that are challenged

on relatively trivial grounds and it is forced

to perform the role of a First Appellate Court. We have already em­

phasised the necessity for ensuring that the High Courts are able to

.

exercise judicial superintendence over the decisions of .Tribunals· under

Article

227 of the Constitution. In R.K.

Jai11's case, after taking note of

these facts, it

was suggested that the possibility of an appeal from the

Tribunals on questions of

law to a Division Bench of a High Court within

whose territorial jurisdiction the Tribunal falls, be pursued.

It appears that

no follow-up action has been taken pursuant to the suggestion.

Such a

measure would have improved matters considerably. Having regard to both

the afore-stated contentions,

we hold that all decisions of Tribunals,

whether created pursuant

to Article 323A or Article 323B of the Constitu-

D tion, will be subject to the High Court's writ jurisdiction under Articles

226/227 of the Constitution, before a Division Bench of the High Court

within whose territorial jurisdiction the particular Tribunal falls.

E

F

We may add here that 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. In view of our above-mentioned

observations, this situation

will also 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; hut

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.

Before moving on to other aspects,

we may summarise our con-

G clusions on the jurisdictional powers of these Tribunals. The Tribunals are

competent

to hear matters where the vires of statutory provisions are

questioned. However, in discharging this duty, they cannot act

as sub­

stitutes for the High Courts and the Supreme Court which have, under our

constitutional setup, been specifically entrusted with such an obligation.

H Their function in this respect is only supplementary and all such decisions

L. CHANDRA KR. v. U.0.I. [AHMADI, CJ.) 1247

of the Tribunals will be subject to scrutiny before a Division Bench of the A

respective High Courts. The Tribunals will consequently also have the

power to test the

vires of subordinate legislations and rules. However, this

power of the Tribunals

will be subject to one important exception. The

Tribunals shall not entertain any question regarding the

vires of their parent

statutes following the settled principle that a Tribunal which

is a creature

B

of an Act cannot declare that very Act to be unconstitutional. In such cases

alone, the concerned High Court

may be approached directly. All other

decisions of these Tribunals, rendered in cases that they are specifically

empowered to adjudicate upon

by virtue of their parent statutes, will also

be subject to scrutiny before a Division Bench of their respective High

Courts. We

may add that the Tribunals will, however, continue to act as

the only courts of first instance in respect of the areas of law for which

c

they have been constituted. By this, we mean that it will not be open for

litigants to directly approach the High Courts even in cases where they

question the

vires of statutory legislations (except, as mentioned, where the

legislation which creates the particular Tribunal

is challenged) by

overlook-D

ing the jurisdiction of the concerned Tribunal.

The directions issued by

us in respect of making the decisions of

Tribunals amenable

to scrutiny before a Division Bench of the respective

High Courts

will, however, come into effect prospectively i.e. will apply to E

decisions rendered hereafter. To maintain the sanctity of judicial

proceed­

ings, we have invoked the doctrine of prospective over-ruling so as not to

disturb the procedure in relation to decisions already rendered.

We are also required to address the issue of the competence of those

F

who man the Tribunals and the question of who is to exercise administra-

tive supervision over them.

It has been urged that only those who have had

judicial experience should be appointed to such Tribunals. In the case of

Administrative Tribunals,

it has been pointed out that the administrative

members who have been appointed have little or no experience in

ad­

judicating such disputes; the Malimath Committee has noted th:i.t at times, G

IPS Officers have been appointed to these Tribunals. It is stated that in the

short tenures that these Administrative Members are on the Tribunal, they

are unable to attain enough experience in adjudication and in cases where

they do acquire the ability,

it is invariably on the eve of the expiry of their

tenures. For these reasons, it has been urged that the appointment of

H

A

B

c

D

E

F

1248 SUPREME COURT REPORTS [1997] 2 S.C.R.

Administrative Members to Administrative Tribunals be stopped. We find

it difficult to accept such a contention.

lt 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 grass-roots 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. Since the Selection Commit­

tee

is now headed by a Judge of the Supreme Court, nominated by the

Chief Justice of India,

we have reason to believe that the Committee would

take care to ensure that administrative members arc chosen from amongst

those who have some background to deal with such cases.

/

It has been brought to our notice that one reason why these Tribunals

have been functioning inefficiently

is because there is no authority charged

with supervising and fulfilling their administrative requirements. To this

end, it

is suggested that the Tribunals be made subject to the supervisory

jurisdiction of the High Courts within whose territorial jurisdiction they

fall. We arc, however, of the

view that this may not be the best way of

solving the problem. W c do not think that our constitutional scheme

requires that all adjudicatory bodies which fall within the territorial juris­

diction of the High Courts should be subject to their supervisory jurisdic­

tion.

If the idea is to divest the High Courts of their onerous burdens, then

adding to their supervisory functions cannot,

in

an;' manner, be of assis-·

lance to them. The situation at present is that different Tribunals con­

stituted under different enactments are administered by different

administrative departments of the Central and the State Governments. The

problem

is compounded by the fact that some Tribunals have been created

pursuant to Central Legislations and some others have been created

by

State Legislations. However, even in the case of Tribunals created by

G Parliamentary legislations, there is no uniformity in administration. We are

of the view that, until a wholly independent agency for the administration

of all such Tribunals can be set-up, it

is desirable that all such Tribunals

should be, as far

as possible, under a single nodal Ministry which will be

in a position to oversee the working

.of these Tribunals. For a number of

reasons that Ministry should appropriately be the Ministry of

Law. It would

H be open for the Ministry, in its turn, to appoint an independent supervisory

~

'

-

L. CHANDRA KR. v. U.O.l. [AHMADI, C.J.] 1249

body to oversee the working of the Tribunals. This will ensure that if the. A·

President or Chairperson of the Tribunal is for some reason unable to take

sufficient interest in the working of the Tribunal, the entire system

will not langui<;h and the ultimate consumer of justice will not suffer. The creation

of a single umbrella organisation

will, in our view, remove many of the ills

of the present system. If the need arises, there can be separate umbrella

organisations at the Central

and the State levels. Such a supervisory

authority must try to ensure that the independence of the members of

all

such Tribunals is maintained. To that extent, the procedure for the selec-

tion of the members of the Tribunals, the manner in which funds arc

allocated for the functioning of the Tribunals and

all other consequential

details

will have to be

de~rly spelt out.

B

c

The suggestions that we have made in respect of appointments to

Tribunals and the supervision of their administrative function need to be

considered .in detail by those entrusted with the duty of formulating the

policy

in. this respect. That body will also have to take into consideration D

the comments of experts bodies like the LCI and the Malimath Committee

in this regard.

We,

therefore, recommend that the Union of India initiate

action in this behaif and after consulting all concerned, place all these

Tribunals under one single nodal department, preferably the Legal Depart­

ment.

Since we have analysed the issue of the constitutional validity of

Section 5( 6) of the Act at length, we may no pronounce our opinion on

this aspect. Though the vires of the provision

was not in question in Dr.

Mahabal Rani's

case, we a believe that the approach adopted in that case,

·

E

the relevant portion of which has been extracted in the first part of. this . · p ·

judgment, is correct since it harmoniously resolves. the manner iii wlJ.ich .

Sections 5(2) and 5(6) can operate together. We wish to make it clear.tpat..:

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 G

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. So construed, Section 5( 6) will no longer be susceptible H

1250 SUPREME COURT REPORTS [1997] 2 S.C.R.

A to charges of unconstitutionality.

In

view of the reasoning adopted by us, we hold that 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. Section 28 of the

B Act and the

"exclusion of jurisdiction" clauses in all other legislations

enacted under the aegis of Articles 323A and

323B would, to the same

extent, be unconstitutional. The jurisdiction conferred upon the High

Courts under Articles

226/227 and upon the Supreme Court under Article

32 of the Constitution

is part of the inviolable basic structure of our

C 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. The Tribunals

created under Article

323A and Article 323B of the Constitution arc

possessed of the competence

to test the constitutional validity of statutory

provisions and rules. All decisions of these Tribunals

will, however, be

D subject to scrutiny before a Division Bench of the High Court within whose

jurisdiction the concerned Tribunal

falls. The Tribunals will, nevertheless,

continue

to act like Courts of first instance in respect of the areas of law

for which they have been constituted. It will not, therefore, be open for

litigants to directly approach the High Courts even in cases where they

E question the vires of statutory legislations (except where the legislation

which creates the particular Tribunal

is challenged) by overlooking the

jurisdiction of the concerned Tribunal. Section 5(6) of the Act

is valid and

constitutional and

is to be interpreted in the manner we have indicated.

All these matters

may now be listed before a Division Bench to

F enable them to be decided upon their individual facts in the light of the

observations contained in this judgment.

R.P. Matters disposed of.

i

~I