By Bharti Chhabra, Shajpreet Arora, UPES
“Editor’s Note: The paper deals with an analysis of the case of L. Chandra Kumar v. Union of India, the landmark case which decided on the constitutionality of Articles 32A and 323B as they dealt with the exclusion of jurisdiction of High Court in service matters. The judgment contains oft quoted distinction between Courts of Law and Tribunals.”
There were enormous controversies regarding the constitutionality of Article 323A and 323B as it was felt that the exclusion of the jurisdiction of the High Court in relation to service matters was against the spirit of the Constitution. In numerous cases right from Keshavnanda Bharati’s (Keshavanand Bharti v. State of Kerela) case to Sampat Kumar’s case and beyond the Courts have tried to set this controversy to rest but in the process further creating more controversies. However the matter finally rested in the landmark judgment of L. Chandra Kumar’s case. A thorough discussion of this case goes a long way in clarifying the positions of the Administrative Tribunals vis-a-vis the power of judicial review and the basic structure of the Constitution. Hence a case study of…
Facts of the Case
Pursuant to Article 323-A and 323-B of the Constitution of India the Central Administrative Tribunal, with five Benches, was established on November 1, 1985. However, even before the Tribunal had been established, several writ petitions had been filed in various High Courts as well as the Supreme Court, challenging the constitutional validity of Article 323-A, on the ground that it is contrary to the spirit of the Constitution as it excludes the jurisdiction of the Supreme Court under Article 32 of the Constitution and the High Court under Article 226 of the Constitution. Through an interim order in S. P. Sampat Kumar v. Union of India the Supreme Court, in order to ensure the functioning of the Tribunal along with sound Constitutional principles, directed carrying out of certain measures.
When Sampat Kumar’s case was finally heard, these changes had already been incorporated in the body and text of the Act. The Supreme Court took the view that most of the original grounds of challenge –which included the challenge to the constitutional validity of Article 323-A – did not survive and restricted its focus to testing only the validity of the provisions of the act. In the final decision it was held that though judicial review is the 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 Court, would not be violative of the basic structure of the Constitution, so long it was ensured that the alternative mechanism was an effective and real substitute for the High Court.
Similar questions were raised subsequently in many cases and one of them was L. Chandra Kumar v. Union of India. In this case after analyzing the relevant Constitutional provisions and the circumstances which led to the decision in Sampat Kumar’s case, the bench reached the conclusion that:- on account of the divergent view expressed by the Supreme Court in a series of cases after Sampat Kumar’s case, the resulting situation warranted a fresh look by a larger Bench over all the issues adjudicated by the Court in Sampat Kumar’s case including the question whether the Tribunal can at all have an Administrative Member on its bench, if it were to have the power of even deciding the constitutional validity of a statute or Article 309 rule as decided in J. B. Chopra v. Union of India.The present case under discussion is the very case where the larger bench looked over all the issues adjudicated by the Court in Sampat Kumar’s case.
- 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 ?
- 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?
Issue 1 :- 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 with regard to all or any of the matters specified in Article 323-B (2), runs contrary to the power of judicial review conferred on the High Court u/as 226/227 and on the Supreme Court u/a 32 of the Constitution of India?
In adjudging this issue the Bench made a study of the provisions of the Administrative Tribunals Act particularly Section 28. It pointed out 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 found that the main intention behind the Act was to provide for a self-contained, self-sufficient and exclusive forum of adjudicating all service related matters. But it made it clear that it was intended to perform a substitution role and not a supplemental role.
Next it ventured in examining post-Sampat Kumar cases and found that those cases 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 etc. and 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. It 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 also took in view the suggestions made by the learned counsels. Mr. Rama Jois and Mr. Shanti Bhushan urged the court to review the judgment in Sampat Kumar’s case and contended that Articles 323A (2) (d) and 323B (3) (d) should be declared unconstitutional to the extent they exclude the jurisdiction of the High Court. Mr. Bhatt, the learned Additional Solicitor General, Mr. P. P. Rao and Mr. K. K. Venugopal on the other hand urged the court to uphold the validity of the said Articles. Mr. A. K. Ganguly cited 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. Next it went to discuss the other facet of this issue viz. judicial review and the basic feature of the constitution. After citing various cases like Kesavananda Bharati’s case, dissenting view of Chandrachud J. in Indira Nehru Gandhi v. Raj Narain, Minority judgment of Bhagwati J. in Minerava Mills v. Union of India and the view, or rather a revised view, of Chandrachud CJ. In Fertilizer Corporation Kamgar Union v. Union of India, the Court came to the conclusion that judicial review is indeed a basic feature of the Constitution.
Also the court relied on the view of Dr. B. R. Ambedkar, the Chairman of the Drafting Committee of the Constitution of India regarding Article 25 (corresponding to the present Article 32 of the Constitution) where he said that this Article is the very soul of the Constitution.
Issue 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?
In this regard 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.
In giving the reason of this view the learned Court pointed out the following points:
In view of the unprecedented increase of litigation it is necessary to provide Tribunals with supplementary power of judicial review. In this regard the decision in Sampat Kumar’s case was correct as it adopted the theory of alternative institutional mechanism in such a backdrop of serious backlog of cases in the High Court.
- It is very necessary for clearing the backlog of pending cases which has assumed a colossal proportion.
- Although the Tribunals have not performed upto the expectations it would not be satisfactory to attribute these problems to the very basic principles of its establishment and hold them as unsound. The reasons for the establishment of the Tribunals still persist and have become more pronounced in the recent times.
However it 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; one it will ensure that frivolous claims would be filtered out through the process of adjudication in the Tribunal and two, the High Court will not lose its power of judicial review. Thus 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.
Issue 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?
The Court throughout the judgment pointed out that the Tribunals are not substitutes of the High Court but are supplementary. Moreover it suggested the following changes:
- They 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.
- The contention that appointment of Administrative members to Administrative tribunals should be stopped cannot be accepted as a judicious mix of judicial members and those with grass-root experience would be better suited for the purpose of speedy and efficient discharge of justice.
- To remove the inefficiency of the Tribunals the tribunals should be made subject to the supervisory jurisdiction of the High Court.
- The Ministry may appoint an independent supervisory body to oversee the working of the tribunals.
- Power of judicial review over legislative action vested in the High Courts and the Supreme Court under Articles 226 and 32 respectively is the basic structure of the Constitution.
- Power of judicial superintendence over decisions of all courts and Tribunals within their jurisdiction is the basic structure of the Constitution
- Judicial review of legislative action in exercise of power by subordinate judiciary or Tribunals created under ordinary legislation cannot be to the exclusion of the High Courts and the Supreme Court. However they can perform supplemental – as opposed to substitutional – role in this respect.
- Tribunals constituted under Articles 323A and 323B have the power to test vires of subordinate legislation except vires of their parent statutes. All its decisions would be subject to scrutiny before Division Bench of their respective High Courts under Articles 226/227. No appeal would lie directly to the Supreme Court under Article 136. The said direction would operative prospectively.
- Appointment of Administrative members need not be stopped.
- 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.
All the matters are to be listed before a Division Bench to enable them to be decided upon their individual facts in the light of the observations contained in the judgment
Formatted on 22nd March 2019.
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 (1973) 4 SCC 225 : AIR I973 SC 1461
 (1987) 1 SCC 124 : AIR (1987) SC 386)
 [Dt/- Oct 31, 1985]
 [(1987) 1 SCC 124 : AIR (1987) SC 386
 ( (1995) 1 SCC 400 : (1995) AIR SCW 1200)
 (1987) 1 SCC 422 : AIR (1987) SC 357
 ((1987) 1 SCC 422 : AIR (1987) SC 357)
 [(1990) 4 SCC 501 : AIR (1990) SC 2263]
 [(1993) 4 SCC 119 : AIR (1993) SCW 1899]
 ((1973) 4 SCC 225 : AIR I973 SC 1461)
 ((1975) Supp SCC 1 : AIR 1975 SC 229)
 ((1980) 3 SCC 625 : AIR 1980 SC 1789)
 ((1981) 1 SCC 568 : AIR 1981 SC 344)
 4th edn. Oxford University Press (1980)