L. CHANDRA KUMAR V/S UNION OF INDIA AND ORS
“Judicial review is an integral, fundamental part of the constitution and falls within the ambit of basic structure Doctrine” In this case the impact of Articles 323-A and 323-B (under which the tribunals are created) on the power of judicial review and superintendence of the High Court ( under Articles 226 &amp;227) and of the Supreme Court( under Article 32) was in question.To reduce the burden of litigation from the High Courts and Supreme Court a long time search was going on for a mechanism to relieve the courts, the Law Commission recommended for the establishment of tribunals consisting of judicial and administrative members to decide service matters. The idea of setting up service tribunals also found favour in the case of K.K. Dutta v. Union of India which advocated for setting upof service tribunals to save the courts from avalanche of writ petitions and appeals in servicematters.It was against the backdrop that Parliament passed Constitution (Forty- Second Amendment) Act, 1976, which added Part- XIV- A in the Constitution. This Part is entitled as ‘Tribunals’ and consists of only two Articles- Article 323-A, dealing with administrative tribunals and Article 323-B, dealing with tribunals for other matters.Article 323-A, enables the Parliament to take out the adjudication of disputes relating to service matters from the civil courts and the High Courts and place it before the administrative tribunals. In pursuance of Article 323-A, the Parliament passed the Administrative Tribunals Act, 1985. The Act authorised the Central Government to establish one Central Administrative Tribunal and the State Administrative Tribunals. The purpose of the Act was to provide speedy and inexpensive justice to the aggrieved public servants.Under Article 323-B, the Parliament and the State Legislatures are authorised to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters: taxation, foreign exchange, import and export; industrial and labour; land reforms; ceiling on urban property, elections to Parliament and State Legislatures; food stuffs, rent and tenancy rights.These articles 323-A and 323-B have been brought up to set up various tribunals as adjudicatory bodies. These enable the Parliament as well as the State Legislatures, to exclude the jurisdiction of all courts except that of this Court under Article 136 regarding matters falling within the jurisdiction of the concerned tribunals. Even before the Tribunal had been established, several writ petitions had been filed challenging the constitutional validity of Article 323-A and 323-B of the Constitution for excluding the jurisdiction of this Court under Article 32 of the Constitution and of that of the High Courts under Article 226 of the Constitution.The validity of the Act was challenged before this Court which was upheld in Sampath Kumar’s case. While upholding the validity of Section 28 of the Act in Sampath Kumar’s case this Court took the view that the power of judicial review need not always be exercised by an equally efficacious alternative mechanism and not necessarily by regular courts. In this case 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.PROCEDURAL HISTORY:The petitioner has submitted that the impugned constitutional provisions, in so far as they seek to divest the High Courts of their power of superintendence over all Tribunals and Courts situated within their territorial jurisdiction, violate the basic structure of the Constitution. Further pointed out that tribunals constituted under Articles 323A and 323B can be vested with the power of judicial review over administrative action, the power of judicial review of legislative action cannot be conferred upon them. This proposition flows from Kesavananda Bharati’s case where it was held that under our constitutional scheme, only the constitutional courts have been vested with the power of judicial review of legislative action.The respondent has submitted that that the jurisdiction of this Court under Article 32 of the Constitution is sacrosanct and is indisputably a part of the basic structure of the Constitution. This position had been clearly enunciated well before the 42nd Amendment to the Constitution was conceived. Therefore, Parliament must be deemed to have been aware of such a position and it must be concluded that the jurisdiction under Article 32 was not intended to be affected. However, the jurisdiction of the High Courts under Article 226 was sought to be removed by creating alternative institutional mechanisms.Further it was submitted by the respondent that Articles 323A and 323B do not seek to exclude the supervisory jurisdiction of the High Courts over all Tribunals situated within their territorial jurisdiction. Viewed from this perspective, the High Courts would still be vested with constitutional powers to exercise corrective or supervisory jurisdiction therefore there is no vice of unconstitutionality.The respondents also contended that 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 citing the decision of this court in the case of Amulya Chandra’s and Dr. Mahabal Ram’s case.ISSUE BEFORE THE COURT:Whether the power conferred upon the Parliament by Article 323-A (2) (d) or upon the State Legislature by Article 323-B (3) (d) of the Constitution of India, to totally exclude the jurisdiction of ‘all courts’, except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in Article 323-A(1) or Article 323-B(2), is against the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution?Whether the Tribunals constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision or rule?Whether the Tribunals, as they are functioning at present, can be said to be the effective substitutes for the High Court in discharging the power of judicial review? If not, what are the changes required to make them conform to their founding objectives?RATIO OF THE COURT:On the issue of excluding the jurisdiction the court held that although Section 28 was originally enacted in express terms with Article 323A of the Constitution and the only exception was made in respect to the jurisdiction of the Supreme Court under Article 136 but when the final hearing of Sampat Kumar’s case was concluded the provision was already amended to save the jurisdiction of the Supreme Court under Article 32 of the Constitution. It also pointed out that as Sampat Kumar case was specifically related with power of judicial review of the Supreme Court, and as it already had been returned to the court, the court expressed itself satisfied with the position as it had emerged during the pendency of Sampat Kumar case and the court did not ventured to address the larger issue of whether Article 323A (2) also required a similar amendment. The court also held that the Act was to perform a substitution role and not a supplemental role.In the case of Sampat Kumar case it was found that the case did not specifically addressed the question regarding the power of the Administrative Tribunals in striking down a statute or provision as unconstitutional. In J. B. Chopra’s case the Division Bench felt that it would follow as a logical and direct consequence of the judgment in Sampat Kumar’s case. In M. B. Majumdar v. Union of India the bench held that Administrative Tribunals can be equated with High courts as regards to its jurisdiction in service matters but not in case of service conditions of the members of the tribunal. In R. K. Jain v. Union of India, which coincidently had the same bench as in the discussed case, analyzed the relevant provisions, and cases such as Sampat Kumar, Chopra, Majumdar case found that the Tribunals under Article 323A cannot be substitutes to the High Court as their performance was not satisfactory and also because they leave the litigants with only one remedy under 136 by the way of appeal to the Supreme Court which is costly affair. The court  suggested that an expert body like the Law Commission of India should study the feasibility of providing an appeal to a two judge Bench of the High Court from a decision of the Tribunals.The court observed that the power of judicial review vested on the constitutional Courts cannot be bestowed on newly created quasi-judicial bodies which are susceptible to executive influences. After citing various cases like Kesavananda Bharati’s case, Indira Nehru Gandhi v. Raj Narain, the Court came to the conclusion that judicial review is indeed a basic feature of the Constitution.On the issue of competence of tribunals under the alleged articles the court cited took help from the American practice regarding judicial review. The court also found that the definition of judicial review in America and in India are similar and therefore went on to review the position of judicial review in America and for this relied on the view of Henry J. Abraham(Henry J. Abraham, The Judicial Process), an acclaimed American Constitutional Law scholar. It found that theoretically every Court in America, no matter how high or low, had the power of judicial review although it is seldom used. That is there is no blanket prohibition on the conferment of judicial power upon Courts other than the U. S. Supreme Court.The court also agreed that if the power of judicial review under Article 32 of the Constitution, which has been described as the heart and soul of the Constitution, can be additionally conferred on any other court, there is no reason why the same cannot be done in case of the power conferred upon the High Court under Article 226 of the Constitution. However it is must that the jurisdiction of the High Court under Articles 226/227 and of the Supreme Court under Article 32 is retained and the Tribunals function as a supplementary body.However the court held that the jurisdiction of the Tribunals would be subject to the review of the High Court under Articles 226/227. This would serve two purposes, firstly, it will ensure that frivolous claims would be filtered out through the process of adjudication in the Tribunal and secondly, the High Court will not lose its power of judicial review. Therefore the Supreme Court held that the Tribunals constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision or rule subject to the review by the High Court. The court further held that Clause 2(d) of Article 323-A and clause 3(d) of Article 323-B to the extent they exclude the jurisdiction of the High Court and the Supreme Court were held to be unconstitutional.On the issue of present functioning of the tribunals and tribunals as substitutes of High Court, the Court pointed out that the Tribunals are not substitutes of the High Court but are supplementary. The court further suggested that the tribunals will function as a supplementary body and all such decisions of the Tribunals will be subject to the scrutiny before a Division Bench of the respective High Courts. That to remove the inefficiency of the Tribunals the tribunals should be made subject to the supervisory jurisdiction of the High Court. And the Ministry may appoint an independent supervisory body to oversee the working of the tribunals.The court held that till a wholly independent body is set for the purpose of overseeing the working of the Tribunals, all such Tribunals will be under single nodal ministry whose members would be appropriately be a Ministry of Law.DECISION HELD BY COURT:In this case the judgement was given by JUSTICE A.M AHMADI that the Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.The Tribunals will, 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 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 enable them to be decided upon their individual facts in the light of the observations contained in this judgment.
Briefcased.in Case Name: L.CHANDRA KUMAR V S UNION OF INDIA & ORS. Case Year: 1997 “Judicial review is an integral fundamental part of the constitution and falls within the ambit of basic structure Doctrine” L. CHANDRA KUMAR V S UNION OF INDIA AND ORS Case name: L.Chandra kumar V S Union of india & ors. Case number: Civil appeal number 4880 Court: The Supreme Court of India Bench: JUSTICE A.M. Ahmadi JUSTICE M.M. Punchhi JUSTICE K. Ramaswamy JUSTICE S.P. Bharucha JUSTICE Saiyed Saghir Ahmad JUSTICE K. Venkataswami JUSTICE K.T. Thomas. Decided on: MARCH 18 1997 Relevant Act Sections: Articles 323 A and 323 B of the Constitution 1950 Section 28 of the Administrative Tribunals Act 1985  BRIEF FACTS AND PROCEDURAL HISTORY: 1. In this case the impact of Articles 323 A and 323 Bon the power of judicial review and superintendence of the High Courtand of the Supreme Court( under Article 32) was in question. 2. To reduce the burden of litigation from the High Courts and Supreme Court a long time search was going on for a mechanism to relieve the courts the Law Commission recommended for the establishment of tribunals consisting of judicial and administrative members to decide service matters. The idea of setting up service tribunals also found favour in the case of K.K. Dutta v. Union of India which advocated for setting up of service tribunals to save the courts from avalanche of writ petitions and appeals in service 1 | P a g e Briefcased.in Case Name: L.CHANDRA KUMAR V S UNION OF INDIA & ORS. Case Year: 1997 3. It was against the backdrop that Parliament passed Constitution Act 1976 which added Part XIV A in the Constitution. This Part is entitled as ‘Tribunals’ and consists of only two Articles Article 323 A dealing with administrative tribunals and Article 323 B dealing with tribunals for other matters. 4. Article 323 A enables the Parliament to take out the adjudication of disputes relating to service matters from the civil courts and the High Courts and place it before the administrative tribunals. In pursuance of Article 323 A the Parliament passed the Administrative Tribunals Act 1985. The Act authorised the Central Government to establish one Central Administrative Tribunal and the State Administrative Tribunals. The purpose of the Act was to provide speedy and inexpensive justice to the aggrieved public servants. 5. Under Article 323 B the Parliament and the State Legislatures are authorised to provide for the establishment of tribunals for the adjudication of disputes relating to the following matters: taxation foreign exchange import and export industrial and labour land reforms ceiling on urban property elections to Parliament and State Legislatures food stuffs rent and tenancy rights. 6. These articles 323 A and 323 B have been brought up to set up various tribunals as adjudicatory bodies. These enable the Parliament as well as the State Legislatures to exclude the jurisdiction of all courts except that of this Court under Article 136 regarding matters falling within the jurisdiction of the concerned tribunals. Even before the Tribunal had been established several writ petitions had been filed challenging the constitutional validity of Article 323 A and 323 B of the Constitution for excluding the jurisdiction of this Court under Article 32 of the Constitution and of that of the High Courts under Article 226 of the Constitution. 7. The validity of the Act was challenged before this Court which was upheld in Sampath Kumar’s case. While upholding the validity of Section 28 of the Act in Sampath Kumar’s case this Court took the view that the power of judicial review need not always be exercised by an equally efficacious alternative mechanism and not necessarily by regular courts. In this case 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. 2 | P a g e Briefcased.in Case Name: L.CHANDRA KUMAR V S UNION OF INDIA & ORS. Case Year: 1997  PROCEDURAL HISTORY: 1. The petitioner has submitted that the impugned constitutional provisions in so far as they seek to divest the High Courts of their power of superintendence over all Tribunals and Courts situated within their territorial jurisdiction violate the basic structure of the Constitution. Further pointed out that tribunals constituted under Articles 323A and 323B can be vested with the power of judicial review over administrative action the power of judicial review of legislative action cannot be conferred upon them. This proposition flows from Kesavananda Bharati’s case where it was held that under our constitutional scheme only the constitutional courts have been vested with the power of judicial review of legislative action. 2. The respondent has submitted that that the jurisdiction of this Court under Article 32 of the Constitution is sacrosanct and is indisputably a part of the basic structure of the Constitution. This position had been clearly enunciated well before the 42nd Amendment to the Constitution was conceived. Therefore Parliament must be deemed to have been aware of such a position and it must be concluded that the jurisdiction under Article 32 was not intended to be affected. However the jurisdiction of the High Courts under Article 226 was sought to be removed by creating alternative institutional mechanisms. 3. Further it was submitted by the respondent that Articles 323A and 323B do not seek to exclude the supervisory jurisdiction of the High Courts over all Tribunals situated within their territorial jurisdiction. Viewed from this perspective the High Courts would still be vested with constitutional powers to exercise corrective or supervisory jurisdiction therefore there is no vice of unconstitutionality. 4. The respondents also contended that 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 citing the decision of this court in the case of Amulya Chandra’s and Dr. Mahabal Ram’s case.  ISSUE BEFORE THE COURT: 1. Whether the power conferred upon the Parliament by Article 323 A(d) or upon the State Legislature by Article 323 B(d) of the Constitution of India to totally exclude the jurisdiction of ‘all courts’ except that of the Supreme Court under Article 136 in respect of disputes and complaints referred to in Article 323 A(1) or Article 323 B(2) is 3 | P a g e Briefcased.in Case Name: L.CHANDRA KUMAR V S UNION OF INDIA & ORS. Case Year: 1997 against the power of judicial review conferred on the High Courts under Articles 226 227 and on the Supreme Court under Article 32 of the Constitution 2. Whether the Tribunals constituted either under Article 323A or under Article 323B of the Constitution possess the competence to test the constitutional validity of a statutory provision or rule 3. Whether the Tribunals as they are functioning at present can be said to be the effective substitutes for the High Court in discharging the power of judicial review If not what are the changes required to make them conform to their founding objectives  RATIO OF THE COURT: 1. On the issue of excluding the jurisdiction the court held that although Section 28 was originally enacted in express terms with Article 323A of the Constitution and the only exception was made in respect to the jurisdiction of the Supreme Court under Article 136 but when the final hearing of Sampat Kumar’s case was concluded the provision was already amended to save the jurisdiction of the Supreme Court under Article 32 of the Constitution. It also pointed out that as Sampat Kumar case was specifically related with power of judicial review of the Supreme Court and as it already had been returned to the court the court expressed itself satisfied with the position as it had emerged during the pendency of Sampat Kumar case and the court did not ventured to address the larger issue of whether Article 323Aalso required a similar amendment. The court also held that the Act was to perform a substitution role and not a supplemental role. 2. In the case of Sampat Kumar case it was found that the case did not specifically addressed the question regarding the power of the Administrative Tribunals in striking down a statute or provision as unconstitutional. In J. B. Chopra’s case the Division Bench felt that it would follow as a logical and direct consequence of the judgment in Sampat Kumar’s case. In M. B. Majumdar v. Union of India the bench held that Administrative Tribunals can be equated with High courts as regards to its jurisdiction in service matters but not in case of service conditions of the members of the tribunal. In R. K. Jain v. Union of India which coincidently had the same bench as in the discussed case analyzed the relevant provisions and cases such as Sampat Kumar Chopra Majumdar case found that the Tribunals under Article 323A cannot be substitutes to the High Court as their performance was not satisfactory and also because they leave the litigants with only one remedy under 136 by the way of appeal to the Supreme Court which is costly 4 | P a g e Briefcased.in Case Name: L.CHANDRA KUMAR V S UNION OF INDIA & ORS. Case Year: 1997 affair. The court suggested that an expert body like the Law Commission of India should study the feasibility of providing an appeal to a two judge Bench of the High Court from a decision of the Tribunals. 3. The court observed that the power of judicial review vested on the constitutional Courts cannot be bestowed on newly created quasi judicial bodies which are susceptible to executive influences. After citing various cases like Kesavananda Bharati’s case Indira Nehru Gandhi v. Raj Narain the Court came to the conclusion that judicial review is indeed a basic feature of the Constitution. 4. On the issue of competence of tribunals under the alleged articles the court cited took help from the American practice regarding judicial review. The court also found that the definition of judicial review in America and in India are similar and therefore went on to review the position of judicial review in America and for this relied on the view of Henry J. Abraham(Henry J. Abraham The Judicial Process) an acclaimed American Constitutional Law scholar. It found that theoretically every Court in America no matter how high or low had the power of judicial review although it is seldom used. That is there is no blanket prohibition on the conferment of judicial power upon Courts other than the U. S. Supreme Court. 5. The court also agreed that if the power of judicial review under Article 32 of the Constitution which has been described as the heart and soul of the Constitution can be additionally conferred on any other court there is no reason why the same cannot be done in case of the power conferred upon the High Court under Article 226 of the Constitution. However it is must that the jurisdiction of the High Court under Articles 226 227 and of the Supreme Court under Article 32 is retained and the Tribunals function as a supplementary body. 6. However the court held that the jurisdiction of the Tribunals would be subject to the review of the High Court under Articles 226 227. This would serve two purposes firstly it will ensure that frivolous claims would be filtered out through the process of adjudication in the Tribunal and secondly the High Court will not lose its power of judicial review. Therefore the Supreme Court held that the Tribunals constituted either under Article 323A or under Article 323B of the Constitution possess the competence to test the constitutional validity of a statutory provision or rule subject to the review by the High Court. The court further held that Clause 2(d) of Article 323 A and clause 3(d) of 5 | P a g e Briefcased.in Case Name: L.CHANDRA KUMAR V S UNION OF INDIA & ORS. Case Year: 1997 Article 323 B to the extent they exclude the jurisdiction of the High Court and the Supreme Court were held to be unconstitutional. 7. On the issue of present functioning of the tribunals and tribunals as substitutes of High Court the Court pointed out that the Tribunals are not substitutes of the High Court but are supplementary. The court further suggested that the tribunals will function as a supplementary body and all such decisions of the Tribunals will be subject to the scrutiny before a Division Bench of the respective High Courts. That to remove the inefficiency of the Tribunals the tribunals should be made subject to the supervisory jurisdiction of the High Court. And the Ministry may appoint an independent supervisory body to oversee the working of the tribunals. 8. The court held that till a wholly independent body is set for the purpose of overseeing the working of the Tribunals all such Tribunals will be under single nodal ministry whose members would be appropriately be a Ministry of Law.  DECISION HELD BY COURT: 1. In this case the judgement was given by JUSTICE A.M AHMADI that the Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will however be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. 2. 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 question the vires of statutory legislationsby 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 3. All these matters may now be listed before a Division Bench to enable them to be decided upon their individual facts in the light of the observations contained in this 6 | P a g e indicated. 