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AIR 1997 SUPREME of High Courts, over decisions of all

courts and Tribunals within their respective
COURT 1125 jurisdictions - Is part of basic structure of
SUPREME COURT Constitution.
A. M. AHMADI , C.J.I. and M. M. PUNCHHI ,
J. and K. RAMASWAMY , J. and S. The power vested in the High Courts to exercise
P. BHARUCHA , J. and S. SAGHIR judicial superintendence over the decisions of
AHMAD , J. and K. VENKATASWAMI , all Courts and Tribunals within their respective
J. and K. T. THOMAS , J. jurisdictions is also part of the basic structure
of the Constitution. This is because a situation
Civil Appeal No. 481 of 1989 with S.L.P. where the High Courts are divested of all
(Civil) No. 16059 of 1992. W.P. (Civil) No. other judicial functions apart from that of
918 of 1992, R.P. (Civil) No. 704 of 1990 in constitutional interpretation, is equally to be
C.A. No. 1212 of 1990, C.A. No. 3 of 1992 and avoided.
169 of 1994 and etc. etc., D/- 18 - 3 - 1997 (Paras 79 , 93)

L. Chandra Kumar v. Union of India and Ors. (C)Constitution of India, Art.32, Art.226,
Art.323A, Art.323B - Judicial review -
(A)Constitution of India, Art.32, Art.226, Legislative action - Exercise of power by
Preamble - Judicial review - Power of, over subordinate judiciary or tribunals created
legislative action - Vested in High Court under ordinary legislations - Cannot be to the
and Supreme Court under Arts. 226 and 32 exclusion of High Court and Supreme Court -
respectively - Is part of basic structure of However they can perform supplemental - as
Constitution. opposed to substitutional - role in this respect.
The constitutional safeguards which ensure the Though the subordinate judiciary or Tribunals
independence of the Judges of the superior created under ordinary legislations cannot
judiciary, are not available to the Judges of exercise the power of judicial review of
the subordinate judiciary or to those who legislative action to the exclusion of the
man Tribunals created by ordinary legislations. High Courts and the Supreme Court, there
Consequently, Judges of the latter category can is no constitutional prohibition against their
never be considered full and effective substitutes performing a supplemental - as opposed
for the superior judiciary in discharging to a substitutional - role in this respect.
the function of constitutional interpretation. Such a situation is contemplated within the
Therefore, the power of judicial review over constitutional scheme becomes evident when
legislative action vested in the High Court one analyses clause (3) of Art. 32.
under Article 226 and in Supreme Court under (Paras 80 , 93 , 99)
Art. 32 is an integral and essential feature of
the Constitution, constituting part of its basic If the power under Art. 32 which has been
structure. Ordinarily, therefore, the power of described as the "heart" and "soul" of the
High Courts and the Supreme Court to test the Constitution, can be additionally conferred upon
constitutional validity of legislations can never "any other Court", there is no reason why the
be ousted or excluded. same situation cannot subsist in respect of the
(Paras 78 , 90 , 93 , 94) jurisdiction conferred upon the High Courts
under Art. 226 of the Constitution. So long
(B)Constitution of India, Art.226, Art.227, as the jurisdiction of the High Courts under
Preamble - Judicial superintendence - Powers Arts. 226/227 and that of Supreme Court under

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Art. 32 is retained, there is no reason why the Court within whose territorial jurisdiction the
power to test the validity of legislations against Tribunal concerned falls will serve two purposes.
the provisions of the Constitution cannot be While saving the power of judicial review of
conferred upon Administrative Tribunals created legislative action vested in the High courts under
under the Act or upon Tribunals created under Article 226/227 of the Constitution, it will ensure
Art. 323B of the Constitution. It is to be that frivolvous claims are filtered out through the
remembered that, apart from the authorisation process of adjudication in the Tribunal. The High
that flows from Arts. 323A and 323B, both Court will also have the benefit of a reasoned
Parliament and the State Legislatures possess decision on merits which will be of use to it in
legislative competence to effect changes in the finally deciding the matter.
original jurisdiction of the Supreme Court and (Para 90)
the High Courts. This power is available to
Parliament under Entries 77, 78, 79 and 95 of List The directions issued by the Supreme Court in
1 and to the State Legislatures under Entry 65 of respect of making the decisions of Tribunals
List II, Entry 46 of List III can also be availed of amenable to scrutiny before a Division Bench
both by Parliament and the State Legislatures for of the respective High courts will, however
this purpose. come into effect prospectively i.e. will apply
(Para 81) to decisions rendered hereafter. To maintain the
sanctity of judicial proceedings, it invoked the
(D)Constitution of India, Art.323A, Art.323B, doctrine of prospective overruling so as not to
Art.226, Art.227, Art.136 - Tribunals disturb the procedure in relation to decisions
constituted under Arts. 323A, 323B - Powers already rendered.
of - They have power to test vires of (Para 94)
subordinate legislations except vires of their
parent statutes - All its decisions would (E)Administrative Tribunals Act (13 of 1985),
be subject to scrutiny before Division S.5 - Tribunal - Constitution of - Appointment
Bench of their respective High Courts of Administrative members - Need not be
under Arts. 226/227 - No appeal would lie stopped.
directly to Supreme Court under Art. 136 -
Said directions would operate prospectively. The plea that the appointment of Administrative
Administrative Tribunals Act (13 of 1985), Members to Administrative Tribunals be stopped
S.28 - All decisions of Tribunals, whether would not be tenable. It must be remembered
created pursuant to Art. 323A or Art. 323B that the setting-up of these Tribunals is founded
of the Constitution, will be subject to the on the premise that specialist bodies comprising
High Court's writ jurisdiction under Arts. both trained administrators and those with
226/227 before a Division Bench of the High judicial experience would, by virtue of their
Court within whose territorial jurisdiction the specialised knowledge, be better equipped to
particular Tribunal falls. dispense speedy and efficient justice. It was
(Paras 91 , 93 , 99) expected that a judicious mix of judicial
members and those with gross-roots experience
To hold that the Tribunals have no power to would best serve this purpose. To hold that the
handle matters involving constitutional issues Tribunal should consist only of judicial members
would not serve the purpose for which they were would attack the primary basis of the theory
constituted. On the other hand, to hold that all pursuant to which they have been constituted.
such decisions will be subject to the jurisdiction Since the Selection Committee is now headed
of the High Courts under Arts. 226/227 of the by a Judge of the Supreme Court, nominated
Constitution before a Division Bench of the High by the Chief Justice of India, there is reason to
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believe that the Committee would take care to reason unable to take sufficient interest in the
ensure that administrative members are chosen working of the Tribunal, the entire system will
from amongst those who have some background not languish and the ultimate consumer of justice
to deal with such cases. will not suffer. The creation of a single umbrella
(Para 95) organisation will, remove many of the ills of the
present system. If the need arises, there can be
(F)Constitution of India, Art.323A, Art.323B separate umbrella organisations at the Central
- Tribunals - Appointment and supervision and the State levels. Such a supervisory authority
of their administrative function - Till wholly must try to ensure that the independence of the
independent agency is set for the said members of all such Tribunals is maintained. To
purpose, Supreme Court directed that all that extent, the procedure for the selection of the
such tribunals should be under single nodal members of the Tribunals, the manner in which
ministry which will oversee working of these funds are allocated for the functioning of the
tribunals - Ministry should appropriately be Tribunals and all other consequential details will
a Ministry of Law. have to be clearly spelt out.
(Para 96)
Our constitutional scheme does not require that
all adjudicatory bodies which fall within the The suggestions made in respect of appointments
territorial jurisdiction of the High Courts should to Tribunals and the supervision of their
be subject to their supervisory jurisdiction. If administrative function need to be considered
the idea is to divest the High Courts of their in detail by those entrusted with the duty of
onerous burdens, then adding tot heir supervisory formulating the policy in this respect. That
functions cannot, in any manner, be of assistance body will also have to take into consideration
to them. The situation at present is that different the comments of expert bodies like the LCI
Tribunals constituted under different enactments and the Malimath Committee in this regard.
are administered by different administrative Therefore, Supreme Court recommended that the
departments of the Central and the State Union of India initiate action in this behalf and
Governments. The problem is compounded by after consulting all concerned, place all these
the fact that some Tribunals have been created Tribunals under one single nodal department,
pursuant to Central Legislations and some preferably the Legal Department.
others have been created by State Legislations. (Para 97)
However, even in the case of Tribunals
created by parliamentary legislations, there is no (G)Administrative Tribunals Act (13 of
uniformity in administration. Thus until a wholly 1985), S.5(6) - Validity - Question involving
independent agency for the administration of all interpretation of a statutory provision or rule
such Tribunals can be set up, it is desirable that in relation to the Constitution - Coming up for
all such Tribunals should be as far as possible, consideration before tribunal - Proviso to S.
under a single nodal Ministry which will be 5(6) will automatically apply and Chairman
in a position to oversee the working of these or Member concerned shall refer the matter
tribunals. For a number of reasons that Ministry to a Bench consisting of at least two Members,
should appropriately be the Ministry of Law. It one of whom must be a Judicial Member - So
would be open for the Ministry, in its turn, to construed S. 5(6) is no longer be susceptible to
appoint an independent charges of unconstitutionality.
(Para 98)
supervisory body to oversee the working of the
Tribunals. This will ensure that if the President (H)Constitution of India, Art.323A, Art.323B,
or Chairperson of the Tribunal is for some Art.32, Art.226, Art.227 - Constitution of
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Tribunals Clauses of Arts. 323A and 323B Cases Referred Chronological Paras
excluding - jurisdiction of High Courts and AIR 1975 SC 2299 : 1975 32, 33, 64, 65, 71, 76
Supreme Court under Arts. 226/227 and 32 Supp SCC 1
are unconstitutional. AIR 1973 SC32,
1461
33, :41,
(1973)
42, 45,
4 62, 65, 74, 76, 77
(Para 99) SCC 225
AIR 1965 SC 745 : (1965) 1 32, 33, 60, 75, 77
(I)Constitution of India, Art.226 - Pendency in SCR 413
High Courts - Clearing of - Recommendation AIR 1956 SC 479 : 1956 59
by Malimath Committee that institutional SCR 267
charges be carried out within High Courts, AIR 1952 SC 196 : 1952 57
dividing them into separate divisions for SCR 597 : 1952 Cri LJ 966
different branches of law - Not suited in (1803) 1 Cranch 137 (US) : 56
present context as pendency in High Courts Marbury v. Madison
substantially increased after said report. Cases Referred Chronological Paras
(Para 89) 93 Law ED 1156 337 51
US 582 : National Mugal
Cases Referred Chronological Paras Insurance Company of the
1995 AIR SCW 1200 : 3 District of Columbia v. Tide
(1995) 1 SCC 400 : AIR 1995 Water Transfer Company
SC 1151 77 Law Ed 1372 : 289 US 51
1995 AIR SCW 4713 : 42 553 : Thomas William v.
(1995) 6 SCC 765 United States
(1994) 2 SCC 401 3, 26, 41, 44, 98 73 Law Ed 2d 59 : 458 51
(1994) 1 APLJ (HC) 1 (FB) 30 US 50 : Northern Pipeline
1993 AIR SCW 1899 :3, 27, 28, 29, 88, 91 Construction Company v.
(1993) 4 SCC 119 : AIR 1993 Marathan Pipeline Company
SC 1769 and United States
1992 Supp (2) SCC 651 32, 72 3 Law Ed 2d 5 : 358 US 1 : 51
1991 AIR SCW 2419 : 42, 77 Cooper v. Aaron
(1991) 4 SCC 406 : 1991 Cri
LJ 3086 : AIR 1991 SC 2176
(1991) 1 SCC 181 : 1991 3, 25, 26, 41, 44
SCC (L and S) 145 Judgement
AIR 1990 SC 2263 : (1990) 4 3, 24, 27
1. AHMADI, C.J.I. :-The special leave
SCC 501
petitions. civil appeals and writ petitions which
AIR 1987 SC 357 : (1987) 1 3, 22, 23, 27
together constitute the present batch of matters
SCC 422 : 1987 Lab IC 466
before us owe their origin to separate decisions
7, 29, 33, 40,AIR
41, 42,
198744,SC
45,386
46,:49,
(1987)
70, 74,
1 82, 83, 85, 86, 87
of different High Courts and several provisions
SCC 124 : 1987 Lab IC 222
in different enactments which have been made
(1985) 4 SCC 458 : 1985 8
the subject of challenge. Between them, they
SCC (Lab) 986
raise several distinct question of law; they have,
AIR 1981 SC 344 : (1981) 1 42, 71, 74, 77
however, been grouped together as all of them
SCC 568 : 1980 Lab IC 1367
involve the consideration of the following broad
AIR 1980 SC 1789 :32, (1980)
66, 68,
3 69, 70, 74, 76, 77
issues:
SCC 625
AIR 1980 SC 2056 : (1980) 4 83 (1) Whether the power conferred upon
SCC 38 : 1980 Lab IC 1090 Parliament or the State Legislatures, as the case
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may be, by sub-clause (d) of clause (2) of Article order of the Division Bench, dated December 2,
323 A or by sub-clause (d) of clause (3) of Article 1994, was rendered after it had considered the
323B of the Constitution, to totally exclude the arguments in the first manner before us. C. A.
jurisdiction of 'all courts', except that of the No. 481 of 1989. where the challenge is to the
Supreme Court under Article 136. in respect of validity of Section 5(6) of the Administrative
disputes and complaints referred to in clause (1) Tribunals Act, 1985. After analysing the relevant
of Article 323A or with regard to all or any of the constitutional provisions and the circumstances
matters specified in clause (2) of Article 323B, which led to the decision in Sampath Kumar's
runs counter to the power of judicial review case (AIR 1987 SC 386), the referring Bench
conferred on the High Courts under Articles reached the conclusion that on account of the
226/227 and on the Supreme Court under Article divergent views expressed by this Court in a
32 of the Constitution? series of cases decided after Sampath Kumar's
case, the resulting situation warranted a "fresh
(2) Whether the Tribunals, constituted either look by a larger Bench over all the issues
under Article 323A or under Article 323B of the adjudicated by this Court in Sampath Kumar's
Constitution, possess the competence to test the case including the question whether the Tribunal
constitutional validity of a statutory provision/ can at all have an Administrative Member on
rule? its Bench, if it were to have the power of even
deciding constitutional validity of a statute or
(3) Whether these Tribunals, as they are (Article) 309 rule, as conceded in Chopra's case.
functioning at present, can be said to be effective The "post-Sampath Kumar cases'' which caused
substitutes for the High Courts in discharging the the Division Bench to refer the present matter to
power of judicial review? If not, what are the us are as follows : J. B. Chopra v. Union of India.
changes required to make them conform to their (1987) 1 SCC 422 : (AIR 1987 SC 357); M. B.
founding objectives? Majumdar v. Union of India. (1990) 4 SCC 501 :
(AIR 1990 SC 2263); Amulya Chandra Kalita v.
2. We shall confine ourselves to the larger issues
Union of India, (1991) 1 SCC 181 ; R. K. Jain
raised in this batch of matters without adverting
v. Union of India, (1993) 4 SCC 119 : (1993
to the specific facts of each of the matters; we
AIR SCW 1899) and Dr. Mahabal Ram v. Indian
shall, however, selectively refer to some of the
Council of Agricultural Research. (1994) 2 SCC
impugned decisions and the provisions involved
401.
to the extent we find we find it necessary to do
so in order to appreciate the policy-conflicts in, 4. Before we record the contentions of the
and to draw the parameters of, the controversy learned Counsel who appeared before us,
before us. The broad principles enunciated in this we must set out of the legal and historical
judgment will, at a later time, be applied by a background relevant to the present case.
Division Bench to resolve the disputes involved
in each of the individual cases. 5. Part XIVA of the Constitution was inserted
through Section 46 of the Constitution
3. The present controversy has been referred
to us by an order of a Division Bench of this (42 nd Amendment) Act, 1976 with effect from
Court, reported in (1995) 1 SCC 400 : (1995 AIR March 1, 1977. It comprises two provisions,
SCW 1200). which concluded that the decision Articles 323A and 323 B, which have, for the
rendered by a five-Judge Constitution Bench of sake of convenience, been fully extracted here-
this Court in S. P. Sampath Kumar v. Union of under:
India, (1987) 1 SCC 124 : (AIR 1987 SC 386),
needs to be comprehensively reconsidered. The PART XIVA

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TRIBUNALS (Emphasis added)

323-A. Administrative tribunals.- (1) 323-B. Tribunals for other matters.- (1) The
Parliament may, by law, provide for the appropriate Legislature may, by law, provide 6. We may now examine the manner in which
adjudication or trial by administrative tribunals for the adjudication or trial by tribunals of any
of disputes and complaints with respect to disputes, complaints, or offences with respect these constitutional provisions have been sought
recruitment and conditions of service of to all or any of the matters specified in clause
persons appointed to public services and (2) with respect to which such Legislature has to be implemented, the problems that have
posts in connection with the affairs of the power to make laws.
Union or of any State or of any local or other consequently arisen, and the manner in which
authority within the territory of India or under
the control of the Government of India or of Courts have sought to resolve them. Such an
any Corporation owned or controlled by the
Government. analysis will have to consider the working of the
(2) A law made under clause (1) may- (2) The matters referred to in clause (1) are the
following, namely :- two provisions separately.
(a) provide for the establishment of an (a) levy, assessment, collection and
administrative tribunal for the Union and a enforcement of any tax;
separate administrative tribunal for each State
or for two or more States:
Article 323A
(b) specify the jurisdiction, powers (including (b) foreign exchange, import and export across
the power to punish for contempt) and authority customs frontiers;
which may be exercised by each of the said 7. In pursuance of the power conferred upon it
tribunals;
(c) provide for the procedure (including (c) industrial and labour disputes; by clause (1) of Article 323A of Constitution,
provisions as to limitation and rules of
evidence) to be followed by the said tribunals; Parliament enacted the Administrative Tribunals
(d) exclude the jurisdiction of all courts, except (d) land reforms by way of acquisition by the
the jurisdiction of the Supreme Court under State of any estate as defined in Article 31 A Act, 1985 (Act 13 of 1985) (hereinafter referred
Article 136, with respect to the disputes or or of any rights therein or the extinguishment
complaints referred to in clause (1): or modification of any such rights or by way of to as "the Act). The Statement of Objects and
ceiling on agricultural land or in any other way;
(e) provide for the transfer to each such (e) ceiling on urban property; Reasons of the Act indicates that it was in
administrative tribunal of any cases
pending before any Court or other authority the express terms of Article 323 A of the
immediately before the establishment of
such tribunal as would have been within the Constitution and was being enacted because
jurisdiction of such tribunal if the causes of
action on which such suits or proceedings are a large number of cases relating to service
based had arisen after such establishment;
(f) repeal or amend any order made by the (f)elections to either House of Parliament or the matters were pending before various Courts;
President under clause (3) of Article 371D; House or either House of the Legislature of a
State, but excluding the matters referred to in it was expected that "the setting up of such
Article 329 and Article 329A;
(g) contain such supplemental, incidental (g) production, procurement, supply and Administrative Tribunals to deal exclusively
and consequential provisions (including distribution or foodstuffs (including edible oil
provision as to fees) as Parliament may deem seeds and oils) and such other goods as the with service matters would go a long way in
necessary for the effective functioning of, and President may, by public notification, declare to
for the speedy disposal of cases by, and the be essential goods for the purpose of this article not only reducing the burden of the various
enforcement of the orders of, such tribunals. and control of prices of such goods;
(3) The provisions of this article shall have (h) offences against laws with respect to courts and thereby giving them more time to
effect notwithstanding anything in any other any of the matters specified in sub-clauses
provision of this Constitution or in any other (a) to (g) and fees in respect of any of those deal with other cases expeditiously but would
law for the time being in force. matters; (i) any matter incidental to any of
the matters specified in sub-clauses (a) to (h). also provide to the persons covered by the
(3) A law made under clause (1) may- (a)
provide for the establishment of a hierarchy of Administrative Tribunals speedy relief in respect
tribunals; (b) specify the jurisdiction, powers
(including the power to punish for contempt) of their grievances.''
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
8. Pursuant to the provisions of the Act,
said tribunals; (d)exclude the jurisdiction
of all Courts except the jurisdiction of the
the Central Administrative Tribunal, with five
Supreme Court under Article 136 with respect
to all or any of the matters falling within the
Benches, was established on November 1, 1985.
jurisdiction of the said tribunals; (e) provide
for the transfer to each such tribunal of any
However, even before the Tribunal had been
cases pending before any Court or any other
authority immediately before the establishment
established, several writ petitions had been filed
of such tribunal as would have been within
the jurisdiction of such tribunals if the causes
in various High Court as well as this Court
of action on which such suits or proceedings
are based had arisen after such establishment;
challenging the constitutional validity of Article
(f) contain such supplemental, incidental and
consequential provisions (including provisions
323A of the Constitution as also the provisions
as to fees) as the appropriate Legislature may
deem necessary for the effective functioning of,
of the Act; the principal violation complained
and for the speedy disposal of cases by, and the
enforcement of the orders of, such tribunals. (4)
of being the exclusion of the jurisdiction of this
The provisions of this article shall have effect
notwithstanding anything in any other provision
Court under Article 32 of the Constitution and
of this Constitution or in any other law for
the time being in force. Explanation.- In this
of that of the High Courts under Article 226 of
article, "appropriate Legislature'', in relation to
any matter, means Parliament or, as the case
the Constitution. Through an interim order dated
may be, a State Legislature competent to make
laws with respect to such matter in accordance
October 31, 1985, reported as S.P. Sampath
with the provisions of Part XI. Kumar v. Union of India, (1985) 4 SCC 458,

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this Court directed the carrying out of certain ("Preliminary'') contains three Sections; Section
measures with a view to ensuring the functioning 3 is the definition clause.
of the Tribunal along constitutionally sound
principles. Pursuant to an undertaking given to 11. Chapter II ("Establishment of Tribunals and
this Court at the interim stage by the erstwhile Benches thereof'') contains Sections 4 to 13.
Attorney General, an amending Act (Act 19 of Section 4 empowers the Central Government
1986) was enacted to bring about the changes to establish: (1) a Central Administrative
prescribed in the aforesaid interim order. Tribunal with Benches at separate places:
(2) An Administrative Tribunal for a State
9. When Sampath Kumar's case (AIR 1987 which makes a request in this behalf; and
Sc 386) was finally heard, these changes had (3) a Joint Administrative Tribunal for two
already been incorporated in the body and text or more States which enter into an agreement
of the Act. The Court took the view that most for the purpose. Section 5 states that each
of the original grounds of challenge - which Tribunal shall consist of a Chairman and such
included a challenge to the constitutional validity number of Vice-Chairman and Judicial and
of Article 323A - did not survive and restricted Administrative Members as may be deemed
its focus to testing only the constitutional validity necessary by the appropriate Government. Sub-
of the provisions of the Act. In its final section (2) of Section 5 requires every Bench to
decision, the Court held that though judicial ordinarily consist of one Judicial Member and
review is a basic feature of the Constitution, the one Administrative Member. Sub-section (6) of
vesting of the power of judicial review in an Section 5, which enables the Tribunal to function
alternative institutional mechanism, after taking through Single Member Benches is the focus of
it away from the High Courts, would not do some controversy, as will subsequently emerge,
violence to the basic structure so long as it and is fully extracted as under:
was ensured that the alternative mechanism was
an effective and real substitute for the High "S. 5(6) - Notwithstanding anything contained
Court. Using this theory of effective alternative in the foregoing provisions of this section, it
institutional mechanism as its foundation, the shall be competent for the Chairman or any
Court proceeded to analyse the provisions of the other Member authorised by the Chairman in
Act in order to ascertain whether they passed this behalf to function as a Bench consisting of
constitutional muster. The Court came to the a single Member and exercise the jurisdiction,
conclusion that the Act, as it stood at that time, powers and authority of the Tribunal in respect of
did not measure up to the requirements of an such classes of cases or such matters pertaining
effective substitute and, to that end, suggested to such classes of cases as the Chairman may by
several amendments to the provisions governing general or special order specify:
the form and content of the Tribunal. The
suggested amendments were given the force of Provided that if at any stage of the hearing of any
law by an amending Act (Act 51 of 1987) after such case or matter it appears to the Chairman or
the conclusion of the case and the Act has since such Member that the case or matter is of such
remained unaltered. a nature that it ought to be heard by a Bench
consisting of two Members the case or matter
10. We may now analyse the scheme and the may be transferred by the Chairman or, as the
salient features of the Act as it stands at the case may be, referred to him for transfer to such
present time, inclusive as it is of the changes Bench as the Chairman may deem fit.''
suggested in Sampath Kumar's case (AIR
1997 SC 386). The Act contains 37 Sections
which are housed in five Chapters. Chapter I
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12. Section 6 deals with the qualifications of the (b) has been a member of the Indian Legal
personnel of the Tribunal. Since the first few sub- Service and has held a post in Grade 1 of that
sections of Section 6 are required to be Service for at least three years.

considered subsequently, they may be (3-A) A person shall not be qualified for
reproduced hereunder: appointment as an Administrative Member
unless he-
"6. Qualifications for appointment of Chairman,
Vice-Chairman or other Members.- (1) A person (a) has, for at least two years, held the post of an
shall not be qualified for appointment as the Additional Secretary to the Government of India
Chairman unless he- or any other post under the Central or a State
Government carrying a scale of pay which is not
(a) is, or has been, a Judge of a High Court; or less than that of an Additional Secretary to the
Government of India; or
(b) has, for at least two years, held the office of
Vice-chairman; (b) has, for at least three years, held the post
of a Joint Secretary to the Government of India
(c) ... ... ... or any other post under the Central or a State
Government carrying a scale of pay which is
(2) A person shall not be qualified for
not less than that of a Joint Secretary to the
appointment as the Vice-Chairman unless he-
Government of India.
(a) is, or has been, or is qualified to be a Judge
and shall, in either case, have adequate
of a High Court; or
administrative experience.
(b) has, for at least two years, held the post
13. Sub-sections (4), (5) and (6) of
of a Secretary to the Government of India or
Section 6 provide that all the Members
any other post under the Central or a State
of the Central Administrative Tribunal, the
Government carrying a scale of pay which is not
State Administrative Tribunals and the Joint
less than that of a Secretary to the Government
Administrative Tribunals shall be appointed
of India; or
by the President; in the case of the
(bb) has for at least five years, held the post of an State Administrative Tribunals and the Joint
Additional Secretary to the Government of India Administrative Tribunals, the President is
or any other post under the Central or a State required to consult the concerned Governor(s).
Government carrying a scale of pay which is not Sub-section (7) stipulates that the Chief Justice
less than that of an Additional Secretary to the of India is also to be consulted in the appointment
Government of India; or of the Chairman, Vice-chairman and Members of
all Tribunals under the Act.
(c) has, for a period of not less than three
years, held office as a Judicial Member or an 14. Section 8 prescribes the terms of office of the
Administrative Member. personnel of the Tribunal as being for a duration
of five years from the date of entering into office;
(3) A person shall not be qualified for there is also provision for reappointment for
appointment as a Judicial Member unless he- another term of five years. The maximum age
limit permissible for the Chairman and the Vice-
(a) is, or has been, or is qualified to be , a Judge Chairman is 65 years and for that of any other
of a High Court; or Member is 62 years. Section 10 stipulates that the
salaries, terms and conditions of all Members of
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the Tribunal are to be determined by the Central Disputes Act, 1947 or any other corresponding
Government; such terms are, however, not to be law for the time being in force.
varied to the disadvantage of any Member after
his appointment. shall have, or be entitled to exercise any
jurisdiction, powers or authority in relation to
15. Chapter III ("Jurisdiction, powers and such recruitment or matters concerning such
authority of tribunals'') consists of Sections recruitment or such service matters.''
14 to 18. Section 14, 15 and 16 deal
with the jurisdiction, powers and authority 18. A facet which is of vital relevance to the
of the Central Administrative Tribunal, the controversy before us, and consequently need
State Administrative Tribunals and the Joint to be emphasised, is that Section 28, when
Administrative Tribunals respectively. These originally enacted, was in the express terms of
provisions make it clear that except for the clause (2)(d) of Article 323 A of the Constitution
jurisdiction of this Court, the Tribunals under the and the only exception made in it was in respect
Act will possess the jurisdiction and powers of of the jurisdiction of this Court under Article 136
every other Court in the country in respect of all of the Constitution. However, before the final
service-related matters. Section 17 provides that hearing in Sampath Kumar's case, (AIR 1987
the Tribunals under the Act will have the same Sc 386) the provision was further amended to
powers in respect of contempt as are enjoyed by also save the jurisdiction of this Court under
the High Courts. article 32 of the Constitution; this aspect has been
noted in the judgment of Misra, J. in Sampath
16. Chapter IV ("Procedure'') comprises Sections Kumar's case (at para 14). Since the Court in
19 to 27. Section 21 specifies strict limitation Sampath Kumar's case had restricted its focus
periods and does not vest the Tribunals under the to the provisions of the Act, it expressed itself
Act with the power to condone delay. to be satisfied with the position that the power
of judicial review of the Apex Court had not
17. Chapter V ("Miscellaneous''), the final been tampered with by the provisions of the Act
Chapter of the Act, comprising Sections 28 to 37, and did not venture to address the larger issue
vests the Tribunals under the Act with ancillary of whether clause (2)(d) of Article 323A of the
Constitution also required a similar amendment.
powers to aid them in the effective adjudication
of disputes. Section 28 the "exclusion of 19. Section 29 provides for the transfer to the
jurisdiction'' clause reads as follows: Tribunals under the Act, of all service matters
pending in every existing for a before their
"28. Exclusion of jurisdiction of courts.- On establishment. The only exception carved out is
and from the date from which any jurisdiction, in respect of appeals pending before High Courts.
powers and authority becomes exercisable under Section 35 vests the Central Government with
this Act by a Tribunal in relation to recruitment rule-making powers and Section 36 empowers
and matters concerning recruitment to any the appropriate Government to make rules to
Service or post or service matters concerning implement the provisions of the Act and the
members of any Service or persons appointed to matters specified in it. By virtue of Section 37,
any Service or post, no court except- the rules made by the Central Government are
required to be laid before Parliament and, in the
(a) the Supreme Court; or
case of rules made by State Governments, before
(b) any Industrial Tribunal, Labour Court or the concerned State Legislature(s).
other authority constituted under the Industrial

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20. The Act and its provisions will be analysed the Constitution Bench's decision to arrive at the
in the course of this judgment. However, conclusion that "the Administrative Tribunal
a preliminary appraisal of the framework of
the Act would indicate that it was intended being a substitute of the High Court had the
to provide a self-contained, almost wholly necessary jurisdiction, power and authority to
exclusive (the exceptions being specified in adjudicate upon all disputes relating to service
Section 28) forum for adjudication of all service- matters including the power to deal with all
related matters. The Tribunals created under the questions pertaining to the constitutional validity
Act were intended to perform a substitutional or otherwise of such laws as offending Articles
role as opposed to - and this distinction is of 14 and 16(1) of the Constitution.''
crucial significance - a supplemental role with
regard to the High Courts. 23. An aspect which needs to be emphasised
is that the Constitutional Bench in Sampath
21. According to the information provided to Kumar's case, (AIR 1987 SC 386) had not
us by Mr. K. N. Bhat, the learned Additional specifically addressed the issue whether the
Solicitor General, apart from the Central Tribunals under the Act would have the power to
Administrative Tribunal which was established strike down statutory provisions or rules as being
on 1-11-1985, eight States have set up State constitutionally invalid. However, the Division
Administrative Tribunals, all of which are Bench in J. B. Chopra's case,. (AIR 1987 SC
presently functioning. The States, along with 357) felt that this proposition would follow as a
the date of establishment of the particular direct and logical consequence of the reasoning
State Administrative Tribunals, are as follows : employed in Sampath Kumar's case, (AIR 1987
Andhra Pradesh (1-11-1989), Himachal Pradesh SC 386).
(1-9-1986), Karnataka (6-10-1986), Madhya
Pradesh (2-8-1988), Maharashtra (8-7-1989), 24. In M. B. Majumdar's case, (AIR 1990 SC
Orissa (14-7-1986), Tamil Nadu (12-12-1988) 2263), a Division Bench of this Court had to
and West Bengal (16-1-1995). confront the contention, based on the premise
that in Sampath Kumar's case, (AIR 1987 SC
22. We may now analyse the "post-Sampath 386) this Court had equated the Tribunals
Kumar cases'' which find mention in the order established under the Act with High Courts,
of the referring Bench. In J. B. Chopra's case, that the Members of the Central Administrative
(AIR 1987 SC 357), a Division Bench of Tribunal must be paid the same salaries as were
this Court had occasion to consider one of payable to Judges of the High Court. The Court,
the specific questions that has now arisen for after analysing the text of Article 323A of the
our consideration, viz., whether the Central Constitution, the provisions of the Act, and the
Administrative Tribunal constituted under the decision in Sampath Kumar's case, rejected the
Act has the authority and the jurisdiction to contention that the Tribunals were the equals
strike down a rule framed by the President of of the High Court in respect of their service
India under the proviso of Article 309 of the conditions. The Court clarified that in Sampath
Constitution as being violative of Articles 14 and Kumar's case, the Tribunal under the Act had
16 (1) of the Constitution. When the matter came been equated with High Courts only to the extent
up before the Division Bench, the issue was still that the former were to act as substitutes for
being considered by the Constitution Bench in the latter in adjudicating service matters; the
Sampath Kumar's case, (AIR 1987 SC 386).The Tribunals could not, therefore, seek parity for all
Division Bench, therefore, deferred its judgment other purposes.
till the final pronouncement of the decision in
Sampath Kumar's case. Thereafter, it analysed
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25. In Amulya Chandra's case, (1991 (1) SCC assigned to a Single Member. In fact, the proviso
181), a Division Bench of this Court had to itself indicates Parliament's concern to safeguard
consider the question whether a dispute before the interest of claimants by casting an obligation
the Central Administrative Tribunal could be on the Chairman and Members who hear the
decided by a single Administrative Member. cases to refer to a regular bench of two members
The Court took note of sub-section (2) of S. such cases which in their opinion require to be
5 of the Act which, we have seen, stipulates heard by a bench of two Members. We would
that a Bench of a Tribunal under the Act like to add that it would be open to either party
should ordinarily consist of a Judicial Member appearing before a Single Member to suggest to
and an Administrative Member, as also the the Member hearing the matter that it should go
relevant observations in Sampath Kumar's case, to a bench of two Members. The Member should
to conclude that under the scheme of the Act, ordinarily allow the matter to go to a bench of
all cases should be heard by a Bench of two two Members when so requested. This would
Members. It appears that the attention of the sufficiently protect the interests of the claimants
Court was not drawn towards sub-section (6) of and even of the administrative system whose
Section 5 which, as we have noticed, enables a litigation may be before the Single Member for
single Members of a Tribunal under the Act to disposal .....The vires of sub-section (6) has not
hear and decide cases. been under challenge and, therefore, both the
provisions in Section 5 have to be construed
26. The same issue arose for consideration before keeping the legislative intention in view. We are
another Bench of this Court in Dr. Mahabal of the view that what we have
Ram's case (1994 (2) SCC 401). The Court took
note of the decision in Amulya Chandra's case, indicated above brings out the true legislative
(1991 (1) SCC 181), and , since the vires of intention and the prescription in sub-section
subsection (6) of Section 5 of the Act was not (2) and the exemption in sub-section (6) are
under challenge, held that sub-sections (2) and rationalised.''
(6) of Section 5 are to be harmoniously construed
in the following manner (supra at p. 404): 27. In R. K. Jain v. Union of India. (1993) 4
SCC 119 : (1993 AIR SCW 1899), a Division
"..... There is no doubt that what has been Bench of this court consisting of three of us
said in Sampath Kumar's case would require (Ahmadi, CJI, Punchhi and Ramaswamy. JJ.)
safeguarding the interest of litigants in the matter had occasion to deal with complaints concerning
of disposal of their disputes in a judicious the functioning of the Customs. Excise and Gold
way. Where complex questions of law would Control Appellate Tribunal, which was set up
be involved the dispute would require serious by exercising the power conferred by Article
consideration and thorough examination. There 323B. In his leading judgment. Ramaswamy, J.
would, however, be many cases before the analysed the relevant constitutional provisions,
Tribunal where very often no constitutional the decisions in Sampath Kumar, (AIR 1987 SC
issues or even legal points would be involved... 386), J. B. Chopra, (AIR 1987 SC 357) and
We are prepared to safeguard the interests of M. B. Majumdar, (AIR 1990 SC 2263) to hold
claimants who go before the Tribunal by holding that the Tribunals created under Articles 323A
that while allocating work to the Single Member and 323B could not be held to be substitutes
- whether judicial or administrative - in terms of of High Courts for the purpose of exercising
subsection (6), the Chairman should keep in view jurisdiction under Articles 226 and 227 of
the nature of the litigation and where questions the Constitution, Having had the benefit of
of law and for interpretation of constitutional more than five years experience of the working
provisions are involved they should not be of these alternative institutional mechanisms,
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anguish was expressed over their ineffectiveness in regard to the functioning of other tribunals
in exercising the high power of judicial review. as well and it is time that a body like the
It was recorded that their performance had Law Commission of India has a comprehensive
left much to be desired. Thereafter, it was look-in with a view to suggesting measures for
noted that the sole remedy provided, that of their improved functioning. That body can also
an appeal to this Court under Article 136 of suggest changes in the different statues and
the Constitution, had proved to be prohibitively evolve a model on the basis whereof tribunals
costly while also being inconvenient on account may be constituted or reconstituted with a view
of the distances involved. It was suggested that to ensuring greater independence. An intensive
an expert body like the Law Commission of and extensive study needs to be undertaken
India should study the feasibility of providing by the Law Commission in regard to the
an appeal to a Bench of two Judges of the Constitution of tribunals under various statutes
concerned High Court from the orders of such with a view to ensuring their independence so
Tribunals and also analyse the working of that the public confidence in such tribunals may
the Tribunals since their establishment, the increase and the quality of their performance
possibility of inducting members of the Bar to may improve. We strongly recommend to the
man such Tribunals etc. It was hoped that the Law Commission of India to undertake such
recommendations of such an expert body would an exercise on priority basis. A copy of this
be immediately adopted by the Government of judgment may be forwarded by the Registrar
India and remedial steps would be initiated to of this Court to the Member Secretary of the
overcome the difficulties faced by the Tribunals, Commission for immediate action.''
making them capable of dispensing effective,
inexpensive and satisfactory justice. 29. During the hearing, we requested the learned
Additional Solicitor General of India, Mr. K. N.
28. In a separate but concurring judgment. Bhat, to inform us of the measures undertaken
Ahmadi, J. (as he then was) speaking for himself to implement the directions issued by this Court
and Punchhi, J., endorsed the recommendations in R. K. Jain's case. (1993 AIR SCW 1899).
in the following words (at p. 1908, para 8 of 1993 We were told that the Law Commission had
AIR SCW): in fact initiated a performance-analysis on the
lines suggested in the judgment; however, when
"....[T] he time is ripe for taking stock of the the Division Bench issued its order indicating
working of the various Tribunals set up in the that Sampath Kumar's case, (AIR 1987 SC 386)
country after the insertion of Articles 323A and might have to be reviewed by a larger Bench,
323B in Constitution. A sound justice delivery further progress on the study was halted.
system is a sine qua non for the efficient
governance of a country wedded to the rule 30. We may now apply ourselves to analysing the
of law. An independent and impartial justice decision which has been impugned in one of
delivery system in which the litigating public has
faith and confidence alone can deliver the goods. the matters before us, C. A. No. 169 of 1994.
After the incorporation of these two articles. The judgment, Sakinala Harinath, v. State of A.
Acts have been enacted where under tribunals P., (1994(1) APLJ (HC) 1), rendered by a full
have been constituted for dispensation of justice. Bench of the Andhra Pradesh High Court, has
Sufficient time has passed and experience gained declared Article 323A (2)(d) of the Constitution
in these last few years for taking stock of the to be unconstitutional to the extent it empowers
situation with a view to finding out if they have Parliament to exclude the jurisdiction of the High
served the purpose and objectives for which they Courts under Article 226 of the Constitution;
were constituted. Complaints have been heard additionally, Section 28 of the act has also been
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held to be unconstitutional to the extent it divests 33. Analysing the decision in Sampath Kumar's
the High Courts of jurisdiction under Article 226 case, (AIR 1987 SC 386) against this backdrop, it
in relation to service matters. is noted that the theory of alternative institutional
mechanisms established in Sampath Kumar's
31. The judgment of the Court, delivered by case is in defiance of the proposition laid down
M. N. Rao, J. has, in an elaborate manner, in Kesavananda Bharati's case, (AIR 1973 SC
viewed the central issues before us against 1461), Special Reference Case, (AIR 1965 SC
the backdrop of several landmark decisions 745) and Indira Gandhi's case, (AIR 1975 SC
delivered by Constitution Benches of this Court 2299), that the Constitutional Courts alone are
as also the leading authorities in comparative competent to exercise the power of judicial
constitutional law. The judgment has embarked review to pronounce upon the constitutional
on a wide-ranging quest, extending to the validity of statutory provisions and rules. The
American, Australian and British jurisdictions, High Court, therefore, felt that the decision
to ascertain the true import of the concepts in Sampath Kumar's case, being per incuriam,
of 'judicial power', 'judicial review' and other was not binding upon it. The High Court
related aspects. The judgment has also analysed also pointed out that, in any event, the issue
a contention based on Article 371D of the of constitutionality of Article 323A(2)(d) was
Constitution, but, since that aspect is not relevant neither challenged nor upheld in Sampath
to the main controversy before us, we shall avoid Kumar's case and it could not be said to be an
its discussion. authority on that aspect.

32. The judgment of the Andhra Pradesh High 34. Thereafter, emphasising the importance of
Court has, after analysing various provisions service matters which affect the functioning of
of our Constitution, held that under our civil servants, who are an integral part of a
constitutional scheme the Supreme Court and sound governmental system, the High Court held
the High Court are the sole repositories of the that service matters which involve testing the
power of judicial review. Such a power, being constitutionality of provisions or rules, being
inclusive of the power to pronounce upon the matters of grave import, could not be left to
validity of statues, actions taken and orders be decided by statutorily created adjudicatory
passed by individuals and bodies falling within bodies, which would be susceptible to executive
the ambit of the expression "State'' in Article influences and pressures. It was emphasised
12 of the Constitution, has only been entrusted that in respect of Constitutional Courts, the
to the constitutional courts, i.e., High Courts Framers of our Constitution had incorporated
and this Courts. For this proposition support has special prescriptions to ensure that they would be
been drawn from the rulings of this Court in immune from precisely such pressures. The High
Kasavananda Bharati v. State of Kerala. (1973) Court also cited reasons for holding that the sole
4 SCC 225: (AIR 1973 SC 1461), Special remedy provided, that of an appeal under Article
Reference No. 1 of 1964, (1965) 1 SCR 413 : 136 to this Court, was not capable of being a
(AIR 1965 SC 745), Indira Nehru Gandhi v. Raj real safeguard. It was also pointed out that even
Narain, 1975 (Supp) SCC 1 : (AIR 1975 SC the saving of the jurisdiction of this Court under
2291). Minerva Mills Ltd. v. Union of India, Article 32 of the Constitution would not help
(1980) 3 SCC 625 : (AIR 1980 SC 1789), Kihoto to improve matters. It was, therefore, concluded
Hollohan v. Zachillu, 1992 Supp (2) SCC 651 that although judicial power can be vested in a
and certain other decisions, all of which have Court or Tribunal, the power of judicial review
been extensively analysed and profusely quoted of the High Court under Article 226 could not be
from. excluded even by a constitutional Amendment.

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Article 323B was established on 1-11-1990 under the Tamil

Nadu Land Reforms (Fixation of Ceiling on
35. This provision of the Constitution empowers Land) Amendment Act, 1985 to deal with all
Parliament or the State Legislatures, as the matters relating to land reforms arising under
case may be, to enact laws providing for the the Tamil Nadu Land Reforms (Fixation of
adjudication or trial by Tribunals of disputes, Ceiling of Land) Act, 1961. Later, the Tamil
complaints or offences with respect to a wide Nadu Taxation Special Tribunal was established
variety of matters which have been specified in on 22-12-1995 under the Tamil Nadu Taxation
Special Tribunal Act, 1992 to deal with cases
the nine sub-clauses of clause (2) of Article arising under the Tamil Nadu General Sales Tax
323B. The matters specified cover a wide Act and Additional Sales Tax Act.
canvas including inter alia disputes relating to
tax cases, foreign exchange matters, industrial 37. Certain problems have arisen in the
and labour cases, ceiling on urban property, functioning of these Tribunals especially in
election to State Legislatures and Parliament, respect of the manner in which they exclude
essential goods and their distribution, criminal the jurisdiction of their respective High Courts.
offences etc. Clause (3) enables the concerned This aspect can be illustrated by briefly adverting
Legislature to provide for the establishment of to the board facts of two of the matters before
a hierarchy of Tribunals and to lay down their us C. A. No. 1532-33 of 1993 arises as a
jurisdiction, the procedure to be followed by result of conflicting orders issued by the West
them in their functioning, etc, Sub-clause (d) of Bengal Taxation Tribunal and the Calcutta High
clause (3) empowers the concerned Legislature Court. Certain petitioners had challenged the
to exclude the jurisdiction of all courts, except constitutional validity of some provisions in
the jurisdiction of the Supreme Court under three legislations, enacted by the West Bengal
Article 136 of the Constitution, with respect Legislature before the West Bengal Taxation
to all or any of the matter falling within the Tribunal. After examining the matter and hearing
jurisdiction of the Tribunals. The constitutional the arguments advanced in response by the
provision, therefore, invests Parliament or the State of West Bengal, the West Bengal Taxation
State Legislatures, as the case may be, with Tribunal, by its order dated 9-10-1991, upheld
powers to divest the traditional courts of a the constitutional validity of the impugned
considerable portion of their judicial work. provisions. Thereafter, the constitutional validity
of the same provisions was challenged in a
36. According to the information provided to writ petition before the Calcutta High Court.
us by Mr. K. N. Bhat, the learned Additional During the proceedings, the State of West
Solicitor General, until the present date, only Bengal raised the preliminary objection that
four Tribunals have been created under Article by virtue of Section 14 of the West Bengal
323B pursuant to legislations enacted by the Taxation Tribunal Act. 1987, which excluded
Legislatures of three States. The first of these was the jurisdiction of the High Court in all matters
the West Bengal Taxation Tribunal which was within the jurisdiction of the Taxation Tribunal,
set up in 1989 under the West Bengal Taxation the Calcutta High Court had no jurisdiction
Tribunal Act, 1987. Similarly, the Rajasthan to entertain the writ petition. However, the
Taxation Tribunal was set up in 1995 under High Court proceeded with the case and,
the Rajasthan Taxation Tribunal Act. 1995. The its judgment dated 25-11-1992, declared the
State of Tamil Nadu has set up two Tribunals by impugned provisions to be unconstitutional.,
utilising the power conferred upon it by Article These developments have resulted in an
323B. The first of these was the Tamil Nadu interesting situation, where the same provisions
Land Reforms Special Appellate Tribunal which have alternately been held to be constitutional
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and unconstitutional by two different fora, each us to set aside the judgment of the Madras High
of which considered itself to be empowered to Court which affects the jurisdiction of the Tamil
exercise jurisdiction. Nadu Land Reforms Special Appellate Tribunal.
Certain other counsel have also addressed us in
38. S.L.P. No. 17768 of 1991 to challenge support of the main arguments advanced.
a judgment of the Madras High Court which
has held that the establishment of the Tamil 41. Mr. Rama Jois, learned counsel for the
Nadu Land Reforms Special Appellate Tribunal petitioners in, W.P. No. 918 of 1992, contended
will not affect the powers of the Madras High as follows: (i) Section 5(6) of the Act, insofar
Court to issue writs. This decision is based as it allows a single Member Bench of a
on the reasoning that the Legislature of the Tribunal to test the constitutional validity of
State had no power "to infringe upon the High a statutory provisions, is unconstitutional. This
Courts' power to issue writs under Article 226 proposition flows from the decisions in, Sampath
of the Constitution and to exercise its power Kumar's case, (AIR 1987 SC 386), Amulya
of superintendence under Article 227 of the Chandra's case, (1991 (1) SCC 181) and Dr.
Constitution.'' Mahabal Ram's case, (1994 (2) SCC 401). In
Sampath Kumar's case. this Court had required
39. It is against these circumstances that we a Bench of a Tribunal to ordinarily consist
must now test the propositions put forth for our of a Judicial Member and an Administrative
consideration. Member. Consequently, Section 5(2) of the
Act was accordingly amended; however, since
Submissions of Counsel Section 5(6) was not amended simultaneously,
the import of the observations in, Sampath
40. We have heard the submissions of several
Kumar's case, can still be frustrated. Even if the
learned senior counsel who appeared for the
theory of alternative institutional mechanisms
various parties before us. Mr. Rama Jois and Mr.
adopted in, Sampath Kumar's case, is presumed
Shanti Bhushan, through their respective
to be correct, Section 5(6) of the Act will have
arguments, urged us to review the decision in, to be struck down as a single Member Bench
Sampath Kumar's case, (AIR 1987 SC 386), and of a Tribunal cannot be considered to be a
to hold Article 323A (2)(d) and Article 323B substitute for the exercise of the power of a High
(3)(d) of the Constitution to be unconstitutional Court under Article 226 of the Constitution; (ii)
to the extent they allow Tribunals created under The impugned provisions of the Constitutions,
the Act to exclusively exercise the jurisdiction insofar as they exclude the jurisdiction of the
vested in the High Courts under Articles 226 and Supreme Court and the High Court under
227 of the Constitution. On the other hand, Mr. Articles 32 and 226 of the Constitution, are
Bhat, the learned Additional Solicitor General, unconstitutional. This is for the reason that: (a)
Mr. P.P. Rao, and MR. K. K. Venugopal urged Parliament cannot, in exercise of its constituent
us to uphold the validity of the impugned power, confer power of Parliament and the
constitutional provisions and to allow such State Legislatures to exclude the constitutional
Tribunals to exercise the jurisdiction under jurisdiction conferred on the High Courts as
Article 226 of the Constitution. We have also the power to amend the Constitution cannot be
heard arguments advanced on behalf of the conferred on the Legislatures; and (b) These
Registrar of the Principal Bench of the Central provisions violate the basic structure of the
Administrative Tribunal, who was represented Constitution insofar as they take away the power
before us by Mr. Kapil Sibal, Mr. V. R. Reddy, of judicial review vested in the Supreme Court
the learned Additional Solicitor General, urged under Article 32 of the Constitution and the
High Courts under Articles 226 and 227 of the
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Constitution. While the Tribunals constituted substitutes for the High Courts; (v) Under our
under Articles 323A and 323B can be vested with constitutional scheme, every High Court has,
the power of judicial review over administrative by virtue of Articles 226 and 227 of the
action, the power of judicial review of legislative Constitution, the power to issue prerogative writs
action cannot be conferred upon them. This or orders to all authorities and instrumentalities
proposition flows from, Kesavananda Bharati's of the State which function within its territorial
case, (AIR 1973 SC 1461), where it was held jurisdiction. In such a situation, no authority or
that under our constitutional scheme, only the Tribunal located within the territorial jurisdiction
constitutional Courts have been vested with the of a High Court can disregard the law declared
power of judicial review of legislative action; by it. The impugned constitutional provisions,
(iii) While the provisions of the Act do not insofar as they seek to divest the High Courts
purport to affect the sacrosanct jurisdiction of of their power of superintendence over all
the Supreme Court under Article 32 of the Tribunals and Courts situated within their
Constitution, Articles 323A and 323B allow territorial jurisdiction, violate the basic structure
Parliament to pursue such a course in future of the Constitution; (vi) In view of the afore-
and are therefore liable to be struck down; (iv) stated propositions, the decision in, Sampath
The decision in Sampath Kumar's case, (AIR Kumar's case, (AIR 1987 SC 386), requires a
1987 SC 386), was founded on the hope that the comprehensive reconsideration.
Tribunals would be effective substitutes for the
High Courts. This position in neither factually 42. Mr. Shanti Bhushan, appearing for the
nor legally correct on account of the following respondent in C. A. No. 1532-33/96, advanced
differences between High Courts and these the following submission: (i) The 42 nd
Tribunals; (a) High Courts enjoy vast powers as Amendment to the Constitution, which introduce
a consequence of their being Courts of Record the impugned constitutional provisions, must
under Article 215 of the Constitution and also be viewed in its historical context. The 42nd
possess the power to issue Certificates of Appeal Amendment, being motivated by a felling
under Articles 132 and 133 of the Constitution in of distrust towards the established judicial
cases where they feel that a decision of this Court institutions, sought, in letter and spirit, to divest
is required. This is not so for Tribunals; (b) the constitutional Courts of their jurisdiction. The
qualifications for appointment of a High Court aim was to vest such constitutional jurisdiction in
Judge and the constitutional safeguards provided creatures whose establishment and functioning
ensure the independence of and efficiency of could be controlled by the executive. Such an
the Judges who man the High Courts. The intent is manifest in the plain words of Articles
conditions prescribed for Members of Tribunals 323A and 323B which oust the jurisdiction
are not comparable; (c) While the jurisdiction of vested in this Court and the High Courts under
the High Court is constitutionally protected, a Articles 32, 226 and 227 of the Constitution;
Tribunal can be abolished by simply repealing its (ii) The validity of the impugned provisions has
parent statue; (d) While the expenditure of the to be determined irrespective of the manner in
High Courts is charged to the Consolidated Fund which the power conferred by them has been
of the States, the Tribunals exercised. In, Sampath Kumar's case, (AIR 1987
SC 386), this Court restricted its enquiry to the
are dependent upon the appropriate Government Act, which did not oust the jurisdiction under
for the grant of funds for meeting their expenses. Article 32, and did not explore the larger issue
These and other differences give rise to a of the constitutionality of Article 323A(2)(d),
situation whereby the Tribunals, being deprived which in express terms permits a Parliament
of constitutional safeguards for ensuring their to oust the jurisdiction of the Supreme Court.
independence, are incapable of being effective This was not the correct approach as the
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constitutionality of a provision ought not to Judges of High Courts and explained how they
be judged only against the manner in which are distinct from other tiers of the judiciary.
power is sought to be exercised under it. The
correct test is to square the provision against the 43. Mr. A. K. Ganguli, appearing for the second
constitutional scheme and then pronounce upon and third respondents in C. A. 1532-33/93,
its compatibility. The vice in Article 323A(2)(d) adopted the arguments of Mr. Rama Jois and Mr.
is that it permits Parliament to enact, at a future Bhushan, In addition, he cited certain authorities
date, a law to exclude the jurisdiction of this in support of his contention that the power to
Court under Article 32. Being possessed of such interpret the provisions of the Constitution is one
potential for unleashing constitutional mischief
in the future, its vires cannot be sustained; (iii) which has been solely vested in the constitutional
The power of judicial review vested in this Courts and cannot be bestowed on newly created
Court under Article 32 and the High Court quasi-judicial bodies which are susceptible to
under Article 226 is part of the basic structure executive influences.
of the Constitution. The relevant portions of
44. Mr. K.N. Bhat, the learned Additional
the decisions in, Kesavananda Bharati's. (AIR
Solicitor General of India represented the Union
1973 SC 1461), Fertiliser Corporation Kamgar
of India which is a party in C. A. No. 169 of
Union v. Union of India, (1981) 1 SCC
1994 and C. A. No. 481 of 1989. His contentions
568 : (AIR 1981 SC 344) and Delhi Judicial
are as follows: (i) Clause 2(d) of Article 323A
Service Association v. State of Gujarat, (1991)
and Clause 3(d) of Article 323B ought not to
4 SCC 406: (1991 AIR SCW 2419), highlight
be struck down on the ground that they exclude
the importance accorded to Article 32 of the
the jurisdiction of this Court under Article
Constitution; (iv) The theory of alternative
32 of the Constitution. On account of several
institutional mechanisms advocated in, Sampath
decisions of this Court, it is a well-established
Kumar' case, (AIR 1987 SC 386), ignores the
proposition in law that the jurisdiction of this
fact that judicial review vested in the High Courts
Court under Article 32 of the Constitution is
consists not only of the power conferred upon
sacrosanct and is indisputably a part of the basic
the High Courts but also of the High Courts
structure of the Constitution. This position had
themselves as institutions endowed with glorious
been clearly enunciated well before the 42nd
judicial traditions. The High Courts had been
Amendment to the Constitution was conceived.
in existence since the 19th century and were
Therefore, Parliament must be deemed to have
possessed of a hoary past enabling them to win
been aware of such a position and it must be
the confidence of the people. It is this which
concluded that the jurisdiction under Article 32
prompted the Framers of our Constitution to
was not intended to be affected. However, the
vest such constitutional jurisdiction in them.
jurisdiction of the High Court under Article
A Tribunal, being a new creation of the
226 was sought to be removed by creating
executive, would not be able to recreate a
alternative institutional mechanisms. The theory
similar tradition and environment overnight.
enunciated in, Sampath Kumar's case, (AIR
Consequently, the alternative mechanisms would
1987 SC 386), is based on sound considerations
not, in the absence of an atmosphere conducive
and does not require any reconsideration; (ii)
to the building of traditions, be able to act
Alternatively, Articles 323A and 323B do not
as effective alternatives to High Courts for
seek to exclude the supervisory jurisdiction of
the exercise of constitutional jurisdiction, In,
the High Court over all Tribunals situated within
Pratibha Bonnerjea v. Union of India, (1995) 6
their territorial jurisdiction. Viewed from this
SCC 765: (1995 AIR SCW 4713), this Court
perspective, the High Courts would still be
his analysed the special constitutional statues of
vested with constitutional powers to exercise
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corrective or supervisory jurisdiction; (iii) Since and directions given from time to time as the
the decisions of this Court in, Amulya Chandra's learned Attorney General had offered to effect
case, (1991 (1) SCC 181) and Dr. Mahabal Ram's the necessary amendments to the Act to remove
case, (1994 (2) SCC 401), had clearly held that its defects. After the necessary amendments
matters relating to the vires of a provision are to were made to the Act, this Court was satisfied
be dealt with by a Bench consisting of a judicial that there was no need to strike it down as it
member and these guidelines will be followed in was of the view that the Act would provide
future, there is no vice of unconstitutionality in an effective alternative forum to the High
Section 5(6). Courts for the resolution of service disputes.
However, the actual functioning of the Tribunals
45. Mr. P. P. Rao, learned counsel for the during the last decade has brought forth several
State of Andhra Pradesh in C. A. No. 196 of deficiencies which need to be removed. The
1994 and the connected special leave petitions, remedy, however, lies not in striking down
put forth the following submissions; (i) The the constitutional provisions involved but in
matter before us involves a very serious, live allowing the Union of India to further amend
problem which needs to be decided by adopting the Act so as to ensure that the Tribunals
a pragmatic, co-operative approach instead of become effective alternative fora; (ii) Article
by a dogmatic, adversarial process. It is a fact 323A(2)(d) does not violate the basic structure
that the Administrative Tribunals which were of the Constitution. The relevant observations
conceived as substitutes for the High Courts have in, Kesavananda Bharati's case, (AIR 1973
not lived upto expectations and have instead, SC 1461). show that there is an inherent
proved to be inadequate and ineffective in distinction between the individual provisions of
several ways. However, the striking down of the Constitution and the basic features of the
the impugned constitutional provisions would, Constitution. While the basic features of the
instead of remedying the problem, contribute Constitution cannot be changed
to its worsening. The problem of pendency in
High Courts which has been a cause for concern even by amending the Constitution, each and
for several decades, has been focussed upon by every provision of the Constitution can be
several expert committees and commissions. The amended under Article 368. The majority
problem of enormous increase in the volume of judgments in, Kesavananda Bharati's case
fresh institution coupled with massive arrears emphatically state that the concept of separation
has necessitated the seeking of realistic solutions of powers is a basic feature of the Constitution.
in order to prevent High Courts from becoming It, therefore, follows that the power of judicial
incapable of discharging their functions. The review, which is a necessary concomitant of
consistent view of these expert committees has the independence of the judiciary, is also a
been that the only manner in which the situation basic feature of our Constitution. However, it
can be saved is by transferring some of the does not follow that specific provisions such
jurisdiction of the High Courts, in relatively as Article 32 or Article 226 are by themselves
less important areas, to specially constituted part of the basic structure of the Constitution.
Tribunals which would act as substitutes for the In this regard, the history of Article 31, which
High Courts. In, Sampath Kumar's case, (AIR contained a Fundamental Right to Property and
1987 SC 386), this Court was required to test was shifted form Part III to Chapter IV of Part
the constitutional validity of providing for such XII can be cited by way of an example; (iii)
a substitute to the High Courts in the shape The essence of the power of judicial review is
of Administrative Tribunals. While deciding the that it must always remain with the judiciary
case, this Court had actually monitored the and must not be surrendered to the executive or
amendments to the Act by a series of orders the legislature. Since the impugned provisions
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save the jurisdiction of this Court under Article of 1996 and C. A. No. 1532-33 of 1993,
136, thereby allowing the judiciary to have began by reiterating the contention that the
the final say in every form of adjudication, it impugned provisions do not seek to oust the
cannot be said that the basic feature of judicial jurisdiction of this Court under Article 32
review been violated. The constitutional bar which is a basic feature of the Constitution.
is against the conferment of judicial power His alternative contention was that since the
on agencies outside the judiciary. However, provisions do not exclude the jurisdiction under
if within the judicial setup, arrangements are Article 136 and since Article 32(3) itself
made in the interests of better administration of conceives of the delegation of that jurisdiction,
justice to limit the jurisdiction under Articles the ouster of the jurisdiction under Article 32
32 and 226 of the Constitution, there can be was not unconstitutional. This submission was
no grievance. In fact, it is in the interest of based on the reasoning that, in the absence
better administration of justice that this Court of any specific constitutional prohibition, both
has developed a practice, even in the case of Parliament and the State legislatures were
violation of Fundamental Rights, of requiring vested with sufficient legislative powers to
parties to approach the concerned High Court effect changes in the original jurisdiction of
under Article 226 instead of directly approaching this Court as well as the High Courts. He
this Court under Article 32 of the Constitution. then stated that in the event that we are not
This, undoubtedly, has the effect of limiting inclined to hold in accordance with either of the
the jurisdiction of this Court under Article 32 earlier contentions, the doctrine of severability
but, being necessary for proper administration of should be applied to excise the words "under
justice, cannot be challenged as unconstitutional. Article 136'' from the provisions and thus
Service matters, which are essentially in the save them from the vice of unconstitutionality,
nature of in-house disputes, being of lesser Thereafter, he endeavoured to impress upon us
significance than those involving Fundamental the jurisprudential soundness of the theory of
Rights, can also be transferred to Tribunals on alternative institutional mechanisms propounded
the same reasoning; (iv) By virtue of Order in, Sampath Kumar's case, (AIR 1987 Sc
XXVII-A, Rule 1A, ordinary Civil Courts are 386). He than contended that the shortfalls
empowered to adjudicate upon questions of vires in the constitution of the Tribunals, the
of statutory rules and instruments. In view of this selection of their personnel, the methods of
situation, there is no constitutional difficulty in their appointment etc. are a consequence of
empowering Tribunals to have similar powers; legislative and executive errors of judgment;
(v) Alternatively, in case we are inclined to these shortfalls cannot affect the constitutionality
take the view that the power of judicial review of the parent constitution provisions. He
of legislative enactments cannot in any event concluded by declaring that these constitutional
be conferred on any other Court or Tribunal, amendments were lawfully incorporated by the
we may use the doctrine of reading down to representatives of the people in exercise of the
save the impugned constitutional provisions. constituent power of Parliament to remedy the
So construed, the High Court would continue existing problem of inefficacious delivery of
to have jurisdiction to decide the vires of an justice in the High Courts. He counselled us not
Act even in the area of service disputes and to substitute our decision for that of the
would, therefore, perform a supervisory role
over Tribunals in respect of matters involving policy evolved by Parliament in exercise of
constitutional questions. its constituent power and urged us to suggest
suitable amendments, as was done in, Sampath
46. Mr. K. K. Venugopal, representing the Kumar's case, to make up for the shortfalls in the
State of West Bengal in, S.L.P. No. 1063 existing system.
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47. Mr. Kiran K. Shah, the petitioner in and an understanding of the matter and the
W. P. No. 789 of 1990, who is a lawyer instrumentalities through which it is to be
practicing before the Ahmedabad Bench of exercised.
the Central Administrative Tribunal, sought to
apprise us of the practical problems faced by 51. The underlying theme of the impugned
advocates in presenting their cases before the judgment of the A. P. High Court rendered by
Central Administrative Tribunal and so several M. N. Rao, J. is that the power of judicial
complaints regarding the discharge of their review is one of the basic features of our
official duties. Constitution and that aspect of the power which
enables Courts to test the constitutional validity
48. The Registrar of the Principal Bench of of statutory provisions is vested exclusively in
the Central Administrative Tribunal, who is the the constitutional Courts, i.e., the High Courts
second respondent in C.A. No. 481 of 1989, was and the Supreme Court. In this regard, the
represented before us by Mr. Kapil Sibal. The position in American Constitutional Law in
case of the Registrar is that the Tribunals, as respect of Courts created under Article III of
they are functioning at present, are not effective the Constitution of the United States had been
substitutes for the High Courts, However, the analysed to state that the functions of Article
creation of alternative institutional mechanisms III Courts (constitutional Courts) cannot be
is not violative of the basic structure so long as performed by other legislative Courts established
it is as efficacious as the constitutional Courts. by the Congress in exercise of its legislative
He urged us to discontinue the appointment of power. The following decisions of the U. S.
Administrative Members to the Tribunals and to Supreme Court have been cited for support:
ensure that the Members of the Tribunals have National Mugal Insurance Company of the
security of tenure, which is a necessary pre- District of Columbia v. Tidewater Transfer
requisite for securing their independence. Company, 93 L. Ed. 1156 : 337 US 582, Thomas
S. William v. United States, 77 L Ed 1372 : 289
49. Mr. V. R. Reddy, the learned Additional US 553, Cooper v. Aaron 3 L Ed 2nd 5 : 358 US
Solicitor General of India, drew our attention 1, Northern Pipeline Construction Company v.
towards the judgment of the Madras High Court Marathon Pipeline Company and United States,
which is the subject of challenge in S.L.P. 73 Ed 2d 59 : 458 US 50.
No. 17768 of 1991. Mr. Reddy endeavoured to
convince us that the amendments incorporated 52. We may briefly advert to the position in
in the Legislation which created the Tamil Nadu American constitutional Law to the extent that
Land Reforms Special Appellate Tribunal after it is relevant for our purpose. As pointed out
the decision in, Sampath Kumar's case, (AIR by Henry J. Abraham, an acclaimed American
1987 SC (386), have the effect of making it Constitutional Law scholar, judicial review in the
a proper and effective substitute for the High United States comprises, the power of any Court
Courts. He also submitted that the functioning of to hold unconstitutional and hence unenforceable
the Land Reforms Tribunals was essential for the any law, any official action based upon a law or
effective resolution of disputes in that branch of any other action by a public official that it deems
law. to be in conflict with the Basic Law, in the United
States its Constitution, Henry J. Abraham. The
50. We may now address the main issues which Judicial Process, 4th Edn., Oxford University
have been identified at the beginning of this Press (1980) p. 296. It is further stated that in
judgment as being central to the adjudication the United State,s the highly significant power
of this batch of matters. This would involve of judicial review is possessed, theoretically, by
an appreciation of the power of judicial review every Court of record, no matter how high or
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low on the judicial ladder. Though it occurs only review of judicial decisions and judicial review
infrequently, it is quite possible for a Judge in a of administrative action. We are, for the present,
low-level Court of one of 50 States of declare a concerned only with understanding the first who
Federal Law unconstitutional. aspects.

53. The position can be better appreciated by 56. In the modern era, the origin of the power
analysing the text of Section 1 of Article III of of judicial review of legislative action may
the U.S. Constitution: well be traced to the classic enunciation of the
principle by Chief Justice John Marshall of the
"Article III, Section 1- the judicial power of the U. S. Supreme Court in, Marbury v. Madison, 1
United States, shall be vested in one Supreme Cranch 137 (1803):
Court, and in such inferior Courts as the
Congress may from time to time ordain and "It is emphatically the province and duty of the
establish. The judicial department to say what the law is. Those
who apply the rule to particular cases, must of
Judges, both of the supreme and inferior Courts, necessity expound and interpret that rule... A
shall hold their Offices during good behaviour, law repugnant to the constitution void;.. Courts
and shall, at stated times, receive for their as well as other departments are bound by that
services, a compensation, which shall not be instrument.
diminished during their continuance in office.''
(Emphasis added)
(Emphasis added)
The assumption of such a power unto itself by
54. The judgment of A. P. High Court is, the U. S. Supreme Court was never seriously
therefore, correct in asserting that the judicial challenged and, over the years, it has exercised
power vested in Article III of the U.S. this power in numerous cases despite the
Constitution can only be exercised by Courts persisting criticism that such an exercise was
created under Section 1 of Article III, However, undemocratic. Indeed, when the Framers of
what must be emphasised is the fact the Article our Constitution set about their monumental
III itself contemplates the conferent of such task. they were well aware that the principle
judicial power by the U. S. Congress upon that Courts possess the power to invalidate
inferior Courts so long as the independence of duly enacted legislations had already acquired a
the Judges is ensured in terms of Section 1 history of nearly a century and a half.
of Article III. The proposition which emerges
from this analysis is that in the United States, 57. At a very early stage of the history of this
though the concept of judicial power has been Court, when it was doubted whether it was
accorded great constitutional protection, there justified in exercising such a power, Patanjali
is no blanket prohibition on the conferment of Sastri, C.J., while emphatically laying down the
judicial power upon Courts other than the U. S. foundation of the principle held as follows. State
Supreme Court. of Madras v. V. g. Row. (1952 SCR 597 at 606 :
(AIR 1952 SC 196 at p. 199))
55. Henry J. Abraham's definition of judicial
review in the American context is, subject "....(O)ur Constitution contains express
to a few modifications, equally applicable to provisions for judicial review of legislation as to
the concept as it is understood in Indian its conformity with the Constitution, unlike as in
Constitutional Law. Broadly speaking, Judicial America where the Supreme Court has assumed
review in Indian comprises three aspects : extensive powers of reviewing legislative acts
judicial review of legislative action, judicial under cover of the widely interpreted "due
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process'' clause in the Fifth and Fourteenth if under the Constitution Parliament itself has
Amendments. If, then, the Courts in this country not uncontrolled freedom of action, it is evident
face up to such important and none too easy that it cannot invest lesser authorities with that
task. it is not out of any desire to tilt at power.''
Legislative authority in a crusader's spirit, but
in discharge of a duty plainly laid upon them 60. Special Reference No. 1 of 1964, (AIR
by the Constitution. This is especially true as 1965 SC 745), was a case where a seven-Judge
regards the "fundamental rights.'' as to which this Constitution Bench of this Court had to express
Court has been assigned the role of a sentinel on itself on the thorny issue of Parliamentary
the qui vive. While the Court naturally attaches Privileges. While doing so, the Court was
great weight to the legislative judgment, it cannot required to consider the manner in which our
desert its own duty to determine finally the Constitution has envisaged a balance of power
constitutionality of an impugned statute.'' between the three wings of Government and it
was in this context that Gajendragadkar, C.J.
(Emphasis added) made the following observations:

58. Over the years, this Court has had many "...(W)hether or not there is distinct and
an opportunity to express its views on the rigid separation of powers under the Indian
power of judicial review of legislative action. Constitution, there is no doubt that the
What follows is an analysis of the leading Constitution has entrusted to the judicature in
pronouncements on the issue. this country the task of construing the provisions
of the Constitution and of safeguarding the
59. While delivering a separate but concurring fundamental rights of the citizens. When a
judgment in the five-Judge Constitution Bench statute is challenged on the ground that it has
decision in, Bidi Supply Co. v. Union of India, been passed by a Legislature without authority.
(1956) SCR 267 at 284 : (AIR 1956 SC 479 at p. or has otherwise unconstitutionally trespassed
487), Bose, J. made the following observations on fundamental rights, it is for the Courts to
which are apposite to the present context: determine the dispute and decide whether the
law passed by the legislature is valid or not.
"The heart and core of a democracy lies in the Just as the legislatures are conferred legislative
judicial process, and that means independent functions, and the functions and authority of the
and fearless judges free from executive control executive lie within the domain of executive
brought up in judicial traditions and training to authority, so the jurisdiction and authority of
judicial ways of working and thinking. The main the Judicature in this country lie within the
bul domain of adjudication. If the validity of any
law is challenged before the Courts, it is
warks of liberty and freedom lie there and
never suggested that the material question as to
it is clear to me that uncontrolled powers of
whether legislative authority has been exceeded
discrimination in matters that seriously affect
or fundamental rights have been contravened,
the lives and properties of people cannot be left
can be decided by the legislatures themselves.
to executive or quari executive bodies even if
Adjudication of such a dispute is entrusted solely
they exercise quasi judicial functions because
and exclusively to the Judicature of this country.''
they are then invested with an authority that
even Parliament does not possess. Under the (Emphasis added)
Constitution, Acts of Parliament are subject
to judicial review particularly when they are 61. It is interesting to note that the origins of
said to infringe fundamental rights. therefore, the power of judicial review of legislative action

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have not been attributed to one source alone. with a view to see that the guarantees afforded
While Sastri, C. J. found the power mentioned by those rights are not contravened ....Judicial
expressly in the text of the Constitution. review has thus become an integral part of our
Gajendragadkar, C. J. preferred to trace it to the constitutional system and a power has been
manner in which the Constitution has separated vested in the High Courts and the Supreme Court
powers between the three wings of Government. to decide about the constitutional validity of
provisions of statutes. If the
62. In. Kesavananda Bharati's case(1973(4) SCC
425 AIR 1973 SC 1461, a 13-Judge Constitution provisions of the statute are found to be violative
Bench, by a majority of 7:6, held that though, by of any article of the Constitution, which is
virtue of Article 368. Parliament is empowered the touchstone for the validity of all laws,
to amend the Constitution, that power cannot the Supreme Court and the High Courts are
be exercised so as to damage the basic features empowered to strike down the said provisions."
of the Constitution or to destroy its basic
structure. The identification of the features which (Emphasis added)
constitute the basic structure of our Constitution
has been the subject-matter of great debate 63. Shelat and Grover, JJ., while reaching the
in Indian Constitutional Law. The difficulty is same conclusion in respect of articles 32 and
compounded by the fact that even the judgments 226, however, adopted a different approach to
for the majority are not unanimously agreed the issue (at para 577) :
on this aspect. (There were five judgments for
"There is ample evidence in the Constitution
the majority, delivered by Sikri, C. J., Shelat
itself to indicate that it creates a system of checks
and Grover, JJ., Hedge and Mukherjee, JJ.,
and balances by reasons of which powers are so
Jaganmohan Reddy. J. and Khanna, J. While
distributed that none of the three organs it sets
Khanna, J. did not attempt to catelogue the basic
up can become so pre-dominant as to disable the
features, the identification of the basic features
others from exercising and discharging powers
by the other Judges are specified in the following
and functions entrusted to them. Though the
paragraphs of the Court's judgments: Sikri . C.
Constitution does not lay down the principle
J. (para 292), Shelat and Grover, JJ. (para 582).
of separation of powers in all its rigidity as is
Hegde and Mukherjee. JJ. (paras 632, 661) and
the case in the United States Constitution but it
Jaganmohan Reddy. J. (paras 1159. 1161). The
envisages such a separation to a degree as was
aspect of judicial review does not find elaborate
found in Ranasinghe's case (supra). The judicial
mention in all the majority judgments. Khanna, J.
review provided expressly in our Constitution
did, however, squarely address the issue (at para
by means of Articles 226 and 32 is one of the
1529):
features upon which hinges the system of checks
"... The power of judicial review is, however, and balances."
confine not merely to deciding whether in
(Emphasis added)
making the impugned laws the Central or State
Legislatures have acted within the four corners 64. In, Indira Nehru Gandhi v. Rai Narain,
of the legislative lists earmarked for them; (1975 Supp SCC 1 AIR 1975 SC 2299), a
the Courts also deal with the question as to five-Judge Constitution Bench had to, inter alia,
whether the laws are made in conformity with test the Constitutional validity of provisions
and not in violation of the other provisions of which ousted the jurisdiction of all Courts
the Constitution....As long as some fundamental including the Supreme Court, in election
rights exist and are a part of the Constitution, the matters. Consequently, the Court was required
power of judicial review has also to be exercised to express its opinion on the concept of
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judicial review. Though all five Judges delivered (exclusion of review in laws relating to armed
concurring judgments to strike down the forces), Article 262(2) (exclusion of review
offending provisions, their views on the issue in river disputes), Article 103(1) (exclusion
of judicial review are replete with variations, of review in disqualification of Members of
Ray, C.J., was of the view that the concept of Parliament), Article 329(a) (exclusion of review
judicial review, while a distinctive feature of in laws relating to delimitation of constituencies
American Constitutional Law, is not founded in laws relating to delimitation of constituencies
on any specific Articles in our Constitution. He and related matters), were cited for support.
observed that judicial review can and has been Based on this analysis. Chandrachud, J. came
excluded in several matters; in election matters, to the conclusion that since the Constitution, as
judicial review is not a compulsion. He, however, originally enacted, did not consider that judicial
held that our Constitution recognises a division power must intervene in the interests of purity of
of the three main functions of Government elections, judicial review cannot be considered
and that judicial power, which is vested in the to be a part of the basic structure in so far as
judiciary cannot be passed to or shared by the legislative elections are concerned.
Executive or the Legislature, (Paras 32, 43,
46, 52). Khanna J. took the view that it is 65. The foregoing analysis reveals that the judges
not necessary, within a democratic set up, that in, Indira Gandhi's case, (AIR 1975 SC 2299).
disputes relating to the validity of elections be all of whom had been party to Kesavananda
settled by Courts of Law; he, however, felt that Bharati's case, did not adopt similar approaches
even so the legislature could not be permitted to to the concept of judicial review. While Beg
declare that the validity of a particular election J. clearly expressed his view that judicial
would not be challenged before any forum and review was a part of the basic structure of the
would be valid despite the existence of disputes. Constitution, Ray, CJ and Mathew, J. pointed
(Para 207). Mathew, J. held that whereas in out that unlike in the American context, judicial
the United States of America and in Australia, power
the judicial powers is vested excluviely in
Courts, there is no such exclusive vesting of had not been expressly vested in the judiciary
judicial power in the Supreme Court of India by the Constitution of India. Khanna, J. did
and the Courts subordinate to it. Therefore, the not express himself on this aspect, but in view
Parliament could, by passing a law within its of his emphatic observations in, Kasavananda
competence, vest judicial power in any authority Bharti's case (AIR 1973 SC 1461), his views
for deciding a dispute. (Paras 322 and 323). Beg on the subject can be understood to have been
J. held that the power of Courts to test the legality made clear. Chandrachud, J. pointed out that
or ordinary laws and constitutional amendments the Constitution itself excludes judicial review
against the norms laid down in the Constitution in a number of matters and felt that in election
flows from the supremacy of the Constitution matters, judicial review is not a necessary
which is a basic feature of the Constitution. (para requirement.
622). Chandrachud, J. felt that the contention
66. In, Minerva Mills v. Union of India, (1980
that judicial review is a part of the basic
(3) SCC 625 : AIR 1980 SC 1789), a five-
structure and that any attempt to exclude the
Judge Constitution Bench of this Court had
jurisdiction of Courts in respect of election
to consider the validity of certain provisions
matters was unconstitutional, was too broadly
of the Constitution (42nd Amendment) Act,
stated. He pointed out that the Constitution, as
1976 which, inter alia, excluded judicial review.
originally enacted, expressly excluded judicial
The judgment for the majority, delivered by
review in a large number of important matters.
The examples of Articles 136(2) and 226(4)
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Chandrachud, CJ for four Judges, contained the 69. In his minority judgment in, Minerva Mills'
following observations (at p. 644, para 21) : case, (AIR 1980 SC 1789), Bhagwati, J. held as
follows :
".....Our Constitution is founded on a nice
balance of power among the three wings of the "...The Constitution has, therefore, created an
State, namely, the Executive, the Legislature and independent machinery for resolving these
the Judiciary. it is the function of the Judges, disputes and this independent machinery is
nay their duty, to pronounce upon the validity the judiciary which is vested with the power
of laws. If Courts are totally deprived of that of judicial review determine the legality of
power, the fundamental rights conferred upon the executive action and the validity of legislation
people will become a mere adornment because passed by the legislature. It is the solemn
rights without remedies are as writ in water. duty of the judiciary under the Constitution
A controlled Constitution will then become to keep the different organs of the State such
uncontrolled." as the executive and the legislature within the
limits of the power conferred upon them by
(Emphasis supplied) the Constitution. This power of judicial review
is conferred on the judiciary by Articles 32
67. The majority judgment held the impugned and 226 of the Constitution....The judiciary
provisions to be unconstitutional. While giving is the interpreter of the Constitution and to
reasons in support. Chandrachud, CJ stated as the judiciary is assigned the delicate task to
follows : determine what is the power conferred on each
branch of government, whether it is limited, and
"....It is for the Courts to decide whether
if so, what are the limits and whether any action
restrictions are reasonable and whether they
of that branch transgresses such limits. It is for
are in the interest of the particular subject.
the judiciary to uphold the constitutional values
Apart from other basic dismilarities, Article 31-
and to enforce the constitutional limitations. That
C takes away the power of judicial review to
is the essence of the rule of law, which inter
an extent which destroys even the semblance
alia requires that "the exercise of powers by the
of comparison between its provisions and those
Government whether it be the legislature or the
of Clauses (2) to (6) of Article 19. Human
executive or any other authority, be conditioned
ingenuity, limitless though it may be, has yet
by the Constitution and the law." The power
not devised a system by which the liberty of
of judicial review is an integral part of our
the people can be protected except through the
constitutional system... the power of judicial
intervention of Courts of law."
review...is unquestionably ...part of the basic
68. It may, however, be noted that the majority structure of the Constitution. Of course, when
in, Minerva Mills did not hold that the concept I say this I should not be taken to suggest that
of judicial review was, by itself, part of the basic effective alternative institutional mechanisms or
structure of the Constitution. The judgment of arrangements for judicial review cannot be made
Chandrachud, CJ in the Minerva Mill's case, by Parliament."
(AIR 1980 SC 1789), must be viewed in the
(Emphasis added)
context of his judgment in Indira Gandhi's case
where he had stated that the Constitution, as 70. The A.P. High Court has, through the
originally enacted, excluded judicial review in judgment of M.N. Rao, J., pointed out that the
several important matters. theory of alternative institutional mechanisms
enunciated by Bhagwati, J. in his minority
judgment in, Minerva Mill's case, (AIR 1980 SC
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1789), was not supported by or even mentioned 73. We may now analyse certain other authorities
in for the proposition that the jurisdiction conferred
upon the High Courts and the Supreme Court
the majority judgment. In fact, such a theory under Article 226 and 32 of the Constitution
finds no prior mention in the earlier decisions respectively, is part of the basic structure of
of this Court and, in the opinion of the the Constitution. While expressing his views
A.P. High Court, did not represent the correct on the significance of draft Article 25, which
legal position. It is to be noted that in, corresponds to the present Article 32 of the
Sampath Kumar's case, (AIR 1987 SC 386) both Constitution, Dr. B. R. Ambedkar, the Chairman
Bhagwati, CJ and Misra, J. in their separate of the Drafting Committee of the Constituent
judgment have relied on the observations in the Assembly stated as follows (CAD, Vol. VII, p.
minority judgment of Bhagwati, J. in Minerva 953) :
Mill's case to lay the foundation of the theory of
alternative institutional mechanisms. "If I was asked to name any particular Article
in this Constitution as the most important - an
71. We may, at this stage, take note of Article without which this Constitution would
the decision in, Fertiliser Corporation Kamgar be a nullity - I could not refer to any other
Union v. Union of India, (1981) 1 SCC 568 : Article except this one. It is the very soul of the
(AIR 1981 SC 344), where Chandrachud, CJ Constitution and the very heart of it and I am glad
appears to have somewhat revised the view that the House has realised its importance."
adopted by him in, Indira Gandhi's case, (AIR
1975 SC 2299). In that case, speaking for (Emphasis added)
the majority, Chandrachud, CJ held that "the
jurisdiction conferred on the Supreme Court by 74. This statement of Dr. Ambedkar has been
Article 32 is an important and integral part of the specifically reiterated in several judgments of
basic structure of the Constitution." (at para 11). this Court to emphasis the unique significance
attributed to Article 32 in our constitutional
72. In, Kihoto Hollohan v. Zachillu, (1992 scheme. (See for instance, Khanna, J. in,
Supp (2) SCC 651), a five Judge Constitution Kesavananda Bharti's case, (1973 (4) SCC 225 :
Bench had to, inter alia, consider the validity AIR 1973 SC 1464) (p. 818 of SCC) : (at p. 1899
of Paragraph 7 of the Tenth Schedule to the of AIR, Bhagwati, J. in Minerva Mills, (1980
Constitution which excluded judicial review. (3) SCC 625 : AIR 1980 SC 1789) (p. 678 of
The judgment for the minority, delivered by SCC) : (at Pp. 1825 - 26 of AIR), Chandrachud,
Verma, J. struck down the provision on the CJ Fertiliser Kamgar, (1981 (1) SCC 568 : AIR
ground that it violated the rule of law which is 1981 SC 344) (para 11), R. Misra J. in Sampath
a basic feature of the Constitution requiring that Kumar, (1987 (1) SCC 124 : AIR 1987 SC 386)
decisions be subject to judicial reviews by an (p. 137 of SCC) : (at Pp. 393-94 of AIR).
independent outside authority. (Paras 181-182).
Though the majority judgment delivered by 75. In the Special Reference case, (1965 (1)
Venkatachaliah, J. also stuck down the offending SCR 413 : AIR 1965 SC 745), while addressing
provision, the reasoning employed was different. this issue, Gajendragadhkar, CJ stated as follows
The judgment for the majority contains an (supra at Pp. 493-494 of SCR): (at p. 787 of
observation to the effect that, in the opinion of AIR):
the Judges in the majority, it was not necessary
for them to express themselves on the question "If the power of the High Courts under Art.
whether judicial review is part of the basic 226 and the authority of this Court under
structure of the Constitution. (Para 120). Art. 32 are not subject to any exception, then

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it would be futile to contend that a citizen of our Constitution, its object and purpose, and
cannot move the High Courts or this Court to the consequences of its denial on the integrity
invoke their jurisdiction even in cases where of our Constitution as a fundamental instrument
his fundamental rights have been violated. The for the governance of the country. (supra at
existence of judicial power in that behalf must Pp. 751-752). This approach was specifically
necessarily and inevitably postulate the existence adopted by Bhagwati, J. in Minerva Mill's case
of a right in the citizen to move the Court in (of 1980 (3) SCC 625) : (at p. 1820 of AIR 1980
that behalf; otherwise the power conferred on the SC 178), and is not regarded as the definitive test
High Courts and this Court would be rendered in this field of Constitutional Law.
virtually meaningless. Let it not be forgotten
that the judicial power conferred on the High 77. We find that the various factors mentioned in
Courts and this Court is meant for the protection the test evolved by Chandrachud, J. have already
of the citizens fundamental rights, and so, in been considered by decisions of various Benches
the existence of the said judicial power itself is of this Court that have been referred to in the
necessarily involved the right of the citizen to course of our analysis. From their conclusions,
appeal to the said power in a proper case." many of which have been extracted by us in toto,
it appears that this Court has always considered
(Emphasis added) the power of judicial review vested in the High
Courts and in this Court under Articles 226 and
76. To express our opinion on the issue whether 32 respectively, enabling legislative action to be
the power of judicial review vested in the High subjected to the scrutiny of superior Courts, to
Courts and in the Supreme Court under Articles be integral to our constitutional scheme. While
226/227 and 32 is part of the basic structure of several judgments have made specific references
the to this aspect (Gajendragadhkar, CJ in, Special
Reference case, (AIR 1965 SC 745), Beg J. and
Constitution, we must first attempt to understand Khanna, J. in Kesavananda Bharati's case, (AIR
what constitutes the basic structure of the 1973 SC 1461) Chandrachud, CJ and Bhagwati,
Constitution. The Doctrine of basic structure J. in Minerva Mills, (AIR 1980 SC 1789)
was evolved in, Kasavananda Bharati's case, Chandrachud, CJ in Fertiliser Kamgar, (AIR
(1973 (4) SCC 225 : AIR 1973 SC 1461). 1981 SC 344), K. N. Singh, J. in Delhi Judicial
However, as already mentioned, that case did Service Association, (1991 AIR SCW 241)
not lay down that the specific and particular etc.) the rest have made general observations
features mentioned in that judgment alone would highlighting the significance of this feature.
constitute the basic structure of our Constitution.
Indeed, in the judgments of Shelat and Gover, 78. The legitimacy of the power of Courts within
JJ., Hegde and Mukherjee, JJ. and Jaganmohan constitutional democracies to review legislative
Reddy, J., there are specific observations to action has been questioned since the time it was
the effect that their list of essential feature first conceived. The Constitution of India, being
comprising the basic structure of the Constitution alive to such criticism, has, while conferring such
are illustrative and are not intended to be power upon the higher judiciary, incorporated
exhaustive. In Indira Gandhi's case, (1975 Supp. important safeguards. An analysis of the manner
SCC 1 : AIR 1975 SC 2299), Chandrachud J, in which the Framers of our Constitution
held that the proper approach for a Judge who is incorporated provisions relating to the judiciary
confronted with the question whether a particular would indicate that they were very grately
facet of the Constitution is part of the basic concerned with securing the independence of
structure, is to examine, in each individual case, the judiciary. (#) These attempts were directed
the place of the particular feature in the scheme at ensuring that the judiciary would be capable
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of effectively discharging its wide powers of Indian Constitution : Cornerstone of a Nation

judicial review. While the Constitution confers Oxford University Press 1972; the chapter
the power to strike down laws upon the High includes exhaustive references to the relevant
Courts and the Supreme Court, it also contains preparatory works and debates in the Constituent
elaborate provisions dealing with the tenure, Assembly.
salaries, allowances, retirement age of Judges as
well as the mechanism for selecting Judges to the 79. We also hold that the power vested in the
superior Courts. The inclusion of such daborate High Courts to exercise judicial superintendence
provisions appear to have been occasioned by over the decisions of all Courts and Tribunals
the belief that, armed by such provisions, the within their respective jurisdictions is also part
superior Courts would be insulated from any of the basic structure of the Constitution. This
executive or legislative attempts to interfere with is because a situation where the High Courts are
the making of their decisions. The Judges of divested of all other judicial functions apart from
the superior Courts have been entrusted with that of constitutional interpretation, is equally to
the task of upholding the Constitution and to be avoided.
this end, have been conferred the power to
interpret it. It is they who have to ensure that the 80. However, it is important to emphasise
balance of power envisaged by the Constitution that though the subordinate judiciary or
is maintained and that the legislature and the Tribunals created under ordinary legislations
executive do not, in the discharge of their cannot exercise the power of judicial review
functions, transgress constitutional limitations. of legislative action to the exclusion of
It is equally their duty to oversee that the the High Courts and the Supreme Courts,
judicial decisions rendered by those who man there is no constitutional prohibition against
the subordinate Courts and tribunals do not their performing a supplemental as opposed
fall foul of strict standards of legal correctness to a substitutional-role in this respect. That
and judicial independence. The constitutional such a situation is contemplated within the
safeguards which ensure the independence of the constitutional scheme becomes evident when
Judges of the superior judiciary are not available one analyses Clause (3) of Article 32 of the
to the Judges of the subordinate judiciary or to Constitution which reads as under :
those who man Tribunals created by ordinary
"32. Remedies for enforcement of rights
legislations. Consequently, Judges of the latter
conferred by this part - (1) ... ...
category can never be considered full and
(2)... ... ... ... ...
effective substitutes for the superior judiciary
in discharging the function of constitutional (3) Without prejudice to the powers conferred
interpretation.We, therefore, hold that the power on the Supreme Court by Clauses (1) and (2),
of judicial review over legislative action vested Parliament may by law empower any other
in the High Courts under Article 226 and in this Court to exercise within the local limits of its
Court under Article 32 of the Constitution is an jurisdiction all or any of the powers exercisable
integral and essential feature of the Constitution, by the Supreme Court under Clause (2)."
constituting part of its basic structure. Ordinarily,
therefore, the power of High Courts and the (Emphasis supplied)
Supreme Court to test the constitutional validity
of legislations can never be ousted or excluded. 81. If the power under Article 32 of the
Constitution, which has been described as the
(#) See Chapter VII, "The Judiciary and the "heart" and "soul" of the Constitution, can be
Social Revolution" in Granville Austen, The additionally conferred upon "any other Court,"
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there is no reason why the same situation cannot later, we are now in a position to review the
subsist in respect of the jurisdiction conferred theoretical and practical results that have arisen
upon the High Courts under Article 226 of as a consequence of the adoption of such an
the Constitution. So long as the jurisdiction approach.
of the High Courts under Article 226/227 and
that of this Court under Article 32 is retained, 83. We must, at this stage, focus upon the factual
there is no reason why the power to test the position which occasioned the adoption of the
validity of legislations against the provisions theory of alternative institutional mechanisms
of the Constitution cannot be conferred upon in, Sampath Kumar's case, (AIR 1987 SC 386).
Administrative Tribunals created under the Act In his leading judgment, R. Misra, J. refers to
or upon Tribunals created under Article 323B the fact that since independence, the population
of the Constitution. It is to be remembered explosion and the increase in litigation had
that, apart from the authorisation that flows greatly
from Articles 323A and 323B, both Parliament
and the State Legislatures possess legislative increased the burden of pendency in the
competence to effect changes in the original High Courts. Reference was made to studies
jurisdiction of the Supreme Court and the High conducted towards relieving the High Courts
Courts. This power is available to Parliament of their increased load. In this regard, the
under Entries 77, 78, 79 and 95 of List I and to commendations of the Shah Committee for
the State Legislature under Entry 65 of List II; setting up independent Tribunals as also the
Entry 46 of List III can also be availed of both suggestion of the Administrative Reforms
of Parliament and the State Legislatures for this Commission that Civil Service Tribunals be set
purpose. up, were noted. Reference was also made to
the decision in, K.K. Dutta v. Union of India,
82. There are pressing reasons why we are (1980) 4 SCC 38 : (AIR 1980 SC 2056), where
anxious to preserve the conferment of such a this Court had, while emphasising the need for
power on these Tribunals. When the Framers speedy resolution of service disputes, proposed
of our Constitution bestowed the powers of the establishment of Service Tribunals.
judicial review of legislative action upon the
High Courts and the Supreme Court, they 84. The problem of clearing the backlogs of High
ensured that other constitutional safeguards were Courts, which has reached colossal proportions
created to assist them in effectively discharging in our times is, nevertheless, one that has
this onerous burden. The expectation was that been the focus of study for close to a half
this power would be required to be used only century. Over time, several Expert Committees
occasionally. However, in the five decades that and Commissions have analysed the intricacies
have ensured since Independence, the quantity of involved and have made suggestions, not all
litigation before the High Courts has exploded of which have been consistent. Of the several
in an unprecedented manner. The decision in, studies that have been conducted in this regard,
Sampath Kumar's case. (AIR 1987 SC 386), as many as twelve have been undertaken by the
was rendered against such a backdrop. We are Law Commission of India (hereinafter referred
conscious of the fact that when a Constitution to as "the LCI") or similar high level Committees
Bench of this Court in, Sampath Kumar's case appointed by the Central Government, and are
adopted the theory of alternative institutional particularly noteworthy.(***)
mechanisms, it was attempting to remedy an (***) Report of the High Court Arrears
alarming practical situation and the approach Committee 1949; LCI, 14th Report on Reform
selected by it appeared to be most appropriate to of Judicial Administration (1958); LCI, 27th
meet the exigencies of the time. Nearly a decade Report on Code of Civil Procedure, 1908
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(1964); LCI, 41st Report on Code of Criminal Pradesh, Jammu and Kashmir and Madras also
Procedure, 1898 (1969); LCI, 54th Report of exercise ordinary original civil jurisdiction. The
Code of Civil Procedure, 1908 (1973); LCI, High Courts also enjoy advisory jurisdiction,
57th Report on Structure and Jurisdiction of the as evidenced by Section 256 of the Indian
Higher Judiciary (1974); Report of High Court Companies Act, 1956, Section 27 of the Wealth
Arrears Committee, 1972; LCI, 79th Report Tax Act, 1957, Section 26 of Gift Tax Act,
on Delay and Arrears in High Courts and 1958, and Section 18 of Companies (Profits)
other Appellate Courts (1979); LCI, 99th Report Surtax Act, 1964. Similarly, there are parallel
on Oral Arguments and Written Arguments in provisions conferring advisory jurisdiction on
the Higher Courts (1984); Satish Chandra's the High Courts, such as, Section 130 of Customs
Committee Report 1986; LCI, 124th Report on Act, 1962, and Section 354 of Central Excises
the High Court Arrears - A Fresh Look (1988); and Salt Act 1944. The High Courts have also
Report of the Arrears Committee (1989-90). enjoyed jurisdiction under the Indian Divorce
Act, 1869, and the Parsi marriage and Divorce
85. An appraisal of the daunting task which Act, 1936. Different types of litigation coming
confronts the High Courts can be made by before the High Court in exercise of its wide
referring to the assessment undertaken by the jurisdiction bear different names. The vast area
LCI in its 124th Report which was released of jurisdiction can be appreciated by reference to
sometime after the judgment in, Sampath those names, viz., (a) first appeals; (b) appeals
Kumar's case. (AIR 1987 SC 386). The Report under the letters patent; (c) second appeals;
was delivered in 1988, nine years ago, and (d) revision petitions; (e) criminal appeals;
some changes have occurred since, but the broad (f) criminal revisions; (g) civil and criminal
perspective which emerges is still, by and large, references; (h) writ petitions; (i) writ appeals;
true : (j) references under direct and indirect tax laws;
(k) matters arising under the Sales Tax Act; (1)
"....The High Courts enjoy Civil as well as election petitions under the Representation of the
criminal, ordinary as well as extraordinary and People Act; (m) petitions under the Companies
general as well as special jurisdiction. The Act, Banking Companies Act and other special
source of the jurisdiction is the Constitution Acts and (n) wherever the
and the various status as well as letters patent
and other instruments constituting the High High Court has original jurisdiction, suits and
Courts. The High Courts in the country enjoy an other proceedings in exercise of that jurisdiction.
original jurisdiction in respect of testamentary, This varies jurisdiction has to some extent
matrimonial and guardianship matters. Original been responsible for a very heavy institution of
jurisdiction is conferred on the High Courts matters in the High Courts."
under the Representation of the People Act,
1951, Companies Act, 1956, and several other 86. After analysing the situation existing in the
special statutes. The High Courts, being Courts High Courts at length, the LCI made specific
of record, have the power to punish for its recommendations towards the establishment of
contempt as well as contempt of its subordinate specialist Tribunals thereby lending force to
Courts. The High Courts enjoy extraordinary the approach adopted in Sampath Kumar's
jurisdiction under Articles 226 and 227 of the case. The LCI noted the erstwhile international
Constitution enabling it to issue prerogative judicial trend which pointed towards generalist
writs, such as, the one in the nature of habeas Courts yielding their place to specialist
corpus, mandamus, prohibition, quo warranto Tribunals. Describing the pendency in the High
and certiorari. Over and above this, the High Courts as "catastrophic, crisis ridden, almost
Courts of Bombay, Calcutta, Delhi, Himachal unmanageable, imposing .....an immeasurable
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burden on the system." the LCI stated that the extent they contain a review of the functioning
prevailing view in Indian Jurisprudence that of the Tribunals over a period of three years
the jurisdiction enjoyed by the High Court is or so after their institution, will be useful
a holy cow required a review. It, therefore, for our purpose. Chapter VIII of the second
recommended the trimming of the jurisdiction of volume of the Report, "Alternative Modes and
the High Courts by setting up specialist Courts/ Forums for Dispute Resolution," deals with the
Tribunals while simultaneously eliminating the issue at length. After forwarding its specific
jurisdiction of the High Courts. recommendations on the feasibility of setting
up 'Gram Nyayalayas,' Industrial Tribunals and
87. It is imported to realise that though the Educational Tribunals, the Committee has dealt
theory of alternative institutional mechanisms with the issue of Tribunal set up under Articles
was propounded in, Sampath Kumar's case, (AIR 323A and 323B of the Constitution. The relevant
1987 SC 386), in respect of the Administrative observations in this regard, being of considerable
Tribunals, the concept itself - that of creating significance to our analysis, are extracted in full
alternative modes of dispute resolution which as under :
would relieve High Court of their burden while
simultaneously providing specialised justice - "Functioning of Tribunals
is now new. In fact, the issue of having a
specialised Tax Court has been discussed for 8.63 Several tribunals are functioning in the
several decades; though the Report of the High country. Not all of them, however, have inspired
Court Arrears Committee (1972) dismissed it confidence in the public mind. The reasons
as "ill-conceived," the LCI, in its 115th Report are not far to seek. The foremost is the
(1986) revived the recommendation of setting lack of competence, objectivity and judicial
up separate Central Tax Courts. Similarly, approach. The next is their constitution, the
other Reports of the LCI have suggested the power and method of appointment of personnel
setting up of 'Gram Nyayalayas' (LCI, 114th thereto, the inferior status and the casual
Report (1986)), Industrial/Labour Tribunals method of working. The last is their actual
(LCI, 122nd Report (1987)) and Education composition; men of calibre are not willing to
Tribunals (LCI, 123rd Report (1987)). be appointed as presiding officers in view of the
uncertainty of tenure, unsatisfactory conditions
88. In R.K. Jain's case, (1993 AIR SCW 1899), of service, executive subordination in matters
this Court had, in order to understand how the of administration and political interference in
theory of alternative institutional mechanisms judicial functioning. For these and other reasons,
had functioned in practice, recommended that the quality of justice is stated to have suffered
the LCI or a similar expert body should conduct and the cause of expedition is not found to
a survey of the functioning of these Tribunals. have been served by the establishment of such
It was hoped that such a study, conducted tribunals.
after gauging the working of the Tribunals
over a sizeable period of more than five years 8.64 Even the experiment of setting up
would provide an answer to the questions posed of the Administrative Tribunals under the
by the critics of the theory, Unfortunately, Administrative Tribunals Act, 1985, has not
we do not have the benefit of such a study. been widely welcomed. Its members have been
We may, however, advert to the Report of selected from all kinds of services including the
the Arrears Committee (1989-90), popularly Indian Police Service. The decision of the State
known as the Malimath Committee Report, Administrative Tribunals are not appealable
which has elaborately dealt with the aspect. The except under Article 136 of the Constitution. On
observations contained in the Report, to this account of the heavy cost and remoteness of the
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forum, there is virtual negation of the right of judicial review itself. Tribunals are not an end
appeal. This has led to in themselves but a means to an end;even if the
laudable objectives of speedy justice, uniformity
denial of justice in many cases and consequential of approach, predictability of decisions and
dissatisfaction. There appears to be a move specialist justice are to be achieved, the
in some of the States where they have been framework of the tribunal intended to be set up
established for their abolition. to attain them must still retain its basic judicial
character and inspire public confidence. Any
Tribunals-Tests for Including High Courts scheme of decentralisation of administration of
jurisdiction. justice providing for an alternative institutional
mechanism in substitution of the High courts
8.65 A Tribunal which substitutes the High court
must pass the aforesaid test in order to be
as an alternative institutional mechanism for
constitutionally valid.
judicial review must be no less efficacious than
the High Court. Such a tribunal must inspire 8.66 The overall picture regarding the
confidence and public esteem that it is a highly tribunalisation of justice in our country is
competent and expert mechanism with judicial not satisfactory and encouraging. There is a
approach and objectivity. What is needed in need for a fresh look and review and a
a tribunal, which is intended to supplant the serious consideration before the experiment is
High Court, is legal training and experience, extended to new areas of fields, especially if the
and judicial acumen, equipment and approach. constitutional jurisdiction of the High Courts is
When such a tribunal is composed of personnel to be simultaneously ousted. Not many tribunals
drawn from the judiciary as well as from satisfying the aforesaid tests can possibly be
services or from amongst experts in the field, established.
any weightage in favour of the service members
or expert members and value-discounting the (Emphasis added)
judicial members would render the tribunal
less effective and efficacious than the High Having expressed itself in this manner, the
Court. The Act setting up such a tribunal would Malimath Committee specifically recommended
itself have to be declared as void under such that the theory of alternative institutional
circumstances. The same would not at all be mechanisms be abandoned. Instead, it
conducive to judicial independence and may recommended that institutional changes be
even tend, directly or indirectly, to influence carried out within the High Courts, dividing them
their decision making process especially when into separate divisions for different branches
the government is a litigant in most of the cases of law, as is being done in England. It stated
coming before such tribunal. (see S. P. Sampath that appointing more judges to man the separate
Kumar v. Union of India, reported in 1987 (1) divisions while using the existing infrastructure
SCR 435) (AIR 1987 SC 386). The protagonists would be a better way of remedying the problem
of specialist tribunals, who simultaneously with of pendency in the High Courts.
their establishment want exclusion of the writ
jurisdiction of the High Courts in regard 89. In the years that have passed since the Report
to matters entrusted for adjudication to such of the Malimath committee was delivered, the
tribunals, ought not to overlook these vital and pendency in the High Courts has substantially
important aspects. It must not be forgotten that increased and we are of the view that its
what is permissible to be supplant by another recommendation is not suited to our present
equally effective and efficacious institutional context.That the various Tribunals have not
mechanism is the High Courts and not the performed upto expectations is a self-evident and

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widely acknowledged truth. However, to draw an a Division Bench of the High Court within whose
inference that their unsatisfactory performance territorial jurisdiction the Tribunal concerned
points to their being founded on a fundamentally falls will serve two purposes. While saving the
unsound principle would not be correct. The power of judicial review of legislative action
reasons for which the Tribunals were constituted vested in the High Courts under Articles 226/227
still persist; indeed, those reasons have become of the constitution, it will ensure that frivolous
even more pronounced in our times. We have claims are filtered out through the process of
already indicated that our constitutional scheme adjudication in the Tribunals. The High Court
permits the setting up of such Tribunals. will also have the benefit of a reasoned decision
However, drastic measures may have to be on merits which will be of use to it in finally
resorted to in order to elevate their standards deciding the matter.
to ensure that they stand up to constitutional
scrutiny in the discharge of the power of judicial 91. It has also been contended before us that
review conferred upon them. even in dealing with cases which are properly
before the Tribunals, the manner in which justice
90. We may first address the issue of exclusion is dispensed by them leaves much to be desired.
of the power of judicial review of the High Moreover, the remedy provided in the parent
Courts . We have already held that in respect of statutes, by way of an appeal by special leave
the power of judicial review, the jurisdiction of under Article 136 of the Constitution, is too
the High Courts under Articles 226/227 cannot costly and inaccessible for it to be real and
be excluded. effective. Furthermore, the result of providing
such a remedy is that the docket of the Supreme
It has been contended before us that the Tribunals Court is crowded with decisions of Tribunals
should not be allowed to adjudicate upon matters that are challenged on relatively trivial grounds
where the vires of legislations is questioned, and it is forced to perform the role of a First
and that they should restrict themselves to Appellate Court. We have already emphasised
handling matters where constitutional issues are the necessity for ensuring that the High Courts
not raised.We cannot bring ourselves to agree are able to exercise judicial superintendence
to this proposition as that may result in splitting over the decisions of Tribunals under Article
up proceedings and may cause avoidable delay.If 227 of the Constitution. In R. K. Jain's case,
such a view were to be adopted, it would be (1993 AIR SCW 1899), after taking note of
open for litigants to raise constitutional issues, these facts, it was suggested that the possibility
many of which may be quite frivolous, to directly of an appeal from the Tribunals on questions
approach the High Court and thus subvert the of law to a Division Bench of a High Court
jurisdiction of the Tribunals. Moreover, even within whose territorial jurisdiction the Tribunal
in these special branches of law, some areas falls, be pursued.It appears that no follow-up
do involve the consideration of constitutional action has been taken pursuant to the suggestion.
questions on a regular basis; for instance, in Such a measure would have improved matters
service law matters, a large majority of cases considerably. Having regard to both the afore-
involve an interpretation of Articles 14, 15 and stated contentions, we hold that all decisions of
16 of the Constitution. To hold that the Tribunals Tribunals, whether created pursuant to Article
have no power to handle matters involving 323A or Article 323B of the Constitution, will
constitutional issues would not serve the purpose be subject to the High Court's writ jurisdiction
for which they were constituted.On the other under Articles 226/227 of the Constitution before
hand, to hold that all such decisions will be a Division Bench of the High Court within whose
subject to the jurisdiction of the High Courts territorial jurisdiction the particular Tribunal
under Articles 226/227 of the constitution before falls.
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92. We may add here that under the existing continue to act as the only Courts of first
system, direct appeals have been provided from instance in respect of the areas of law for
the decisions of all Tribunals to the Supreme which they have been constituted. By this, we
Court under Article 136 of the Constitution. In mean that it will not be open for litigants
view of our above-mentioned observations, this to directly approach the High Courts even in
situation will also stand modified. In the view cases where they question the vires of statutory
that we have taken, no appeal from the decision legislations (except, as mentioned, where the
of a Tribunal will directly lie before the Supreme legislation which creates the particular Tribunal
Court under Article 136 of the Constitution; but is challenged) by overlooking the jurisdiction of
instead, the aggrieved party will be entitled to the concerned Tribunal.
move the High Court under Articles 226/227 of
the Constitution and from the decision of the 94. The directions issued by us in respect
Division Bench of the High Court the aggrieved of making the decisions of Tribunals amenable
party could move this Court under Article 136 of to scrutiny before a Division Bench of the
the Constitution. respective High Courts will, however, come into
effect prospectively i. e. will apply to decisions
93. Before moving on to other aspects, we may rendered hereafter. To maintain the sanctity
summarise our conclusions of the jurisdictional of judicial proceeding, we have invoked the
powers of these Tribunals. The Tribunals are doctrine of prospective over-ruling so as not to
competent to hear matters where the vires of disturb the procedure in relation to decisions
statutory provisions are questioned. However, already rendered.
in discharging this duty, they cannot act as
substitutes for the High Courts and the Supreme 95. We are also required to address the
Court which have, under our constitutional issue of the competence of those who man
setup, been specifically entrusted with such an the Tribunals and the question of who is
obligation. Their function in this respect is only to exercise administrative supervision over
supplementary and all such decisions of the them. It has been urged that only those
Tribunals will be subject to scrutiny before a who have had judicial experience should be
Division Bench of the respective High Courts. appointed to such Tribunals. In the case of
The Tribunals will consequently also have the Administrative Tribunals, it has been pointed
power to test the vires of subordinate legislations out that the administrative members who have
and rules. However, this power of the Tribunals been appointed have little or no experience
will be subject to one important exception. in adjudicating such disputes; the Malimath
The Tribunals shall not entertain any question Committee has noted that at times. IPS
regarding the vires of their Officers have been appointed to these Tribunals.
It is stated that in the short tenures that
parent statutes following the settled principle that these Administrative Members are on the
a Tribunal which is a creature of an Act cannot Tribunal, they are unable to attain experience
declare that very Act to be unconstitutional. in adjudication and in cases where they do
In such cases alone, the concerned High Court acquire the ability, it is invariably on the
may be approached directly. All other decisions eve of the expiry of their tenures.For these
of these Tribunals, rendered in cases that reasons, it has been urged that the appointment
they are specifically empowered to adjudicate of Administrative Members to Administrative
upon by virtue of their parent statutes, will Tribunals be stopped. We find it difficult to
also be subject to scrutiny before a Division accept such a contention. It must be remembered
Bench of their respective High Court. We that the setting-up of these Tribunals is founded
may add that the Tribunals will, however, on the premise that specialist bodies comprising
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both trained administrators and those with administration of all such Tribunals can be set-
judicial experience would, by virtue of their up, it is desirable that all such Tribunals should
specialised knowledge, be better equipped to be, as far as possible, under a single nodal
dispense speedy and efficient justice. It was Ministry which will be in a position to oversee
expected that a judicious mix of judicial the working of
members and those with grass-roots experience
would best serve this purpose. To hold that the these Tribunals. For a number of reasons that
Tribunal should consist only of judicial members Ministry should appropriately be the Ministry of
would attack the primary basis of the theory Law. It would be open for the Ministry, in its
pursuant to which they have been constituted. turn, to appoint an independent supervisory body
Since the Selection Committee is now headed to oversee the working of the Tribunals. This
by a judge of the Supreme Court, nominated by will ensure that if the President or Chairperson
the Chief Justice of India. we have reason to of the Tribunal is for some reason unable to
believe that the committee would take care to take sufficient interest in the working of the
ensure that administrative members are chosen Tribunal, the entire system will not languish and
from amongst those who have some background the ultimate consumer of justice will not suffer.
to deal with such cases. The creation of a single umbrella organisation
will, in our view, remove many of the ills of
96. It has been brought to our notice that the present system. If the need arises, there can
one reason why these Tribunals have been be separate umbrella organisations at the Central
functioning inefficiently is because there is no and the State levels.Such a supervisory authority
authority charged with supervising and fulfilling must try to ensure that the independence of the
their administrative requirements. To this end, it members of all such Tribunals is maintained. To
is suggested that the Tribunals be made subject that extent, the procedure for the selection of the
to the supervisory jurisdiction of the High Courts members of the Tribunals, the manner in which
within whose territorial jurisdiction they fall. We funds are allocated for the functioning of the
are, however, of the view that this may not be Tribunals and all other consequential details will
the best way of solving the problem. We do have to be clearly spelt out.
not think that our constitutional scheme requires
that all adjudicatory bodies which fall within the 97. The suggestions that we have made in
territorial jurisdiction of the High Courts should respect of appointments to Tribunals and the
be subject to their supervisory jurisdiction. If supervision of their administrative function need
the idea is to divest the High Courts of their to be considered in detail by those entrusted
onerous burdens, then adding to their supervisory with the duty of formulating the policy in this
functions cannot, in any manner, be of assistance respect.That body will also have to take into
to them. The situation at present is that different consideration the comments of expert bodies like
Tribunals constituted under different enactments the LCI and the Malimath Committee in this
are administered by different administrative regard. We, therefore, recommended that the
departments of the Central and the State Union of India initiate action in this behalf and
Governments. The problem is compounded by after consulting all concerned, place all these
the fact that some Tribunals have been created Tribunals under one single nodal department,
pursuant to Central Legislations and some preferably the Legal Department.
others have been created by State Legislations.
However, even in the case of Tribunals created 98. Since we have analysed the issue of the
by Parliamentary legislations, there is no constitutional validity of Section 5(6) of the Act
uniformity in administration.We are of the view at length, we may now pronounce our opinion
that, until a wholly independent agency for the on this aspect. Though the vires of the provision
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All India Reporter

was not in question in, Dr. Mahabal Ram's case, Tribunals will, however be subject to scrutiny
(1994(2) SCC401), we believe that the approach before a Division Bench of the High Court within
adopted in that case, the relevant portion of whose jurisdiction the concerned Tribunal falls.
which has been extracted in the first part of The Tribunals will, nevertheless, continue to act
this judgment, is correct since it harmoniously like courts of first instance in respect of the areas
resolves the manner in which Sections 5(2) of law for which they have been constituted.
and 5(6) can operate together.We wish to make It will not, therefore, be open for litigants
it clear that where a question involving the to directly approach the High Courts even in
interpretation of a statutory provision or rule cases where they question the vires of statutory
in relation to the Constitution arises for the legislation (except where the legislation which
consideration of a single Member Bench of the creates the particular Tribunal is challenged)by
Administrative Tribunal, the proviso to Section overlooking the jurisdiction of the concerned
5(6) will automatically apply and the Chairman Tribunal. Section 5(6)of the Act is valid and
or the Member concerned shall refer the matter constitutional and is to be interpreted in the
to a Bench consisting of at least two Members, manner we have indicated.
one of whom must be a Judicial Member.
This will ensure that questions involving the 100. All these matters may now be listed before
viresof a statutory provision or rule will never a Division Bench to enable them to be decided
arise for adjudication before a single Member upon their individual facts in the light of the
Bench or a bench which does not consist of observations contained in this judgment.
a Judicial Member. So construed, Section 5(6)
will no longer be susceptible to charges of Order Accordingly
unconstitutionality.

99. 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 Act and the "exclusion of jurisdiction"
clauses in all other legislations enacted under
the aegis of Article 323A and 323B would,
to the same extent, be unconstitutional. The
jurisdiction conferred uipon 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 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 are possessed of the competence
to test the constitutional validity of statutory
provisions and rules. All decisions of these
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