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TMI Blog1997 (3) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... 3A and article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. - C.A. No. 481 of 1989 - - - Dated:- 18-3-1997 - Judge(s) : A. M. AHMADI., K. RAMASWAMY., K. T. THOMAS., K. VENKATASWAMI., M. M. PUNCHHI., S. P. BHARUCHA., S. SAGHIR AHMAD. Additional Solicitor Generals: V.R. Reddy, K.N. Bhatt and Altaf Ahmad, for the parties. Other Advocates: S.R. Bhat, N.R. Nath, L.M. Bhat, Hetu Aror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 32 of the Constitution ? (2) Whether the Tribunals, constituted either under article 323A or under article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/rule ? (3) Whether these Tribunals, as they are functioning at present, can be said to be effective substitutes for the High Courts in discharging the power of judicial review ? If not, what are the changes required to make them conform to their founding objectives ? We shall confine ourselves to the larger issues raised in this batch of matters without adverting to the specific facts of each of the matters we shall, however, selectively refer to some of the impugned decisions and the provisions involved to the extent we find it necessary to do so in order to appreciate the policy-conflicts in, and to draw the parameters of, the controversy before us. The broad principles enunciated in this judgment will, at a later time, be applied by a Division Bench to resolve the disputes involved in each of the individual cases. The present controversy has been referred to us by an order of a Division Bench of this court, reported as Chandra Kumar v. Union of India [1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. (1) The appropriate Legislature may, by law, provide for the adjudication or trial by Tribunals of any disputes, complaints, or offences with respect to all or any of the matters specified in clause (2) with respect to which such Legislature has power to make laws. (2) A law made under clause (1) may- (2) The matters referred to in clause (1) are the following, namely- (a) Provide for the establishment of an administrative Tribunal for the Union and a separate administrative Tribunal for each State or for two or more States; (a) levy, assessment, collection and enforcement of any tax; (b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said Tribunals; (b) foreign exchange, import and export across customs frontiers; (c) Provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) exclude the jurisdiction of all courts' except the jurisdiction of the Supreme Court under article 136, with respect to all or any of the matters falling within the Jurisdiction of the said Tribunals; (3) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force. (e) provide for the transfer to each such tribunal of any cases pending before any court or any other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such Tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment; (f) Contain such supplemental, incidental and consequential provisions (including provisions as to fees) as the appropriate Legislature may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such Tribunals. (4) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amending Act (Act 19 of 1986) was enacted to bring about the changes prescribed in the aforesaid interim order. When Sampath Kumars case, [1987] 1 SCC 124, was finally heard, these changes had already been incorporated in the body and text of the Act. The court took the view that most of the original grounds of challenge--which included a challenge to the constitutional validity of article 323A--did not survive and restricted its focus to testing only the constitutional validity of the provisions of the Act. In its final decision, the court held that though judicial review is a basic feature of the Constitution, the vesting of the power of judicial review in an alternative institutional mechanism, after taking it away from the High Courts, would not do violence to the basic structure so long as it was ensured that the alternative mechanism was an effective and real substitute for the High Court. Using this theory of effective alternative institutional mechanisms as its foundation, the court proceeded to analyse the provisions of the Act in order to ascertain whether they passed constitutional muster. The court came to the conclusion that the Act, as it stood at that time, did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench as the Chairman may deem fit." Section 6 deals with the qualifications of the personnel of the Tribunal. Since the first few sub-sections of section 6 are required to be considered subsequently, they may be reproduced hereunder : "6. Qualifications for appointment of Chairman Vice-Chairman or other Members--(1) A person shall not be qualified for appointment as the Chairman unless he-- (a) is, or has been, a judge of a High Court; or (b) has, for at least two years, held the office of Vice-Chairman or . . . . (2) A person shall not be qualified for appointment as the Vice-Chairman unless he-- (a) is, or has been, or is qualified to be a judge of a High Court; or (b) has, for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India; or (bb) has, for at least five years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, powers and authority of the Central Administrative Tribunal, the State Administrative Tribunals and the joint Administrative Tribunals respectively. These provisions make it clear that except for the jurisdiction of this court, the Tribunals under the Act will possess the jurisdiction and powers of every other court in the country in respect of all service-related matters. Section 17 provides that the Tribunals under the Act will have the same powers in respect of contempt as are enjoyed by the High Courts. Chapter IV ("Procedure") comprises sections 19 to 27. Section 21 specifies strict limitation periods and does not vest the Tribunals under the Act with the power to condone delay. Chapter V ("Miscellaneous"), the final Chapter of the Act, comprising sections 28 to 37, vests the Tribunals under the Act with ancillary powers to aid them in the effective adjudication of disputes. Section 28, the exclusion of jurisdiction" clause reads as follows : "28. Exclusion of jurisdiction of courts except the Supreme Court under article 136 of the Constitution.--On and from the date from which H any jurisdiction, powers and authority become exercisable under this Act by a Tribunal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary appraisal of the framework of the Act would indicate that it was intended to provide a self-contained, almost wholly exclusive (the exceptions being specified in section 28) forum for adjudication of all service-related matters. The Tribunals created under the Act were intended to perform a substitutional role as opposed to--and this distinction is of crucial significance--a supplemental role with regard to the High Courts. According to the information provided to us by Mr. K.N. Bhat, the learned Additional Solicitor-General, apart from the Central Administrative Tribunal which was established on November 1, 1985, eight States have set up State Administrative Tribunals, all of which are presently functioning. The States, along with the date of establishment of the particular State Administrative Tribunals, are as follows : Andhra Pradesh (November 1, 1989), Himachal Pradesh (September 1, 1986), Karnataka, (October 6, 1986), Madhya Pradesh (August 2, 1988), Maharashtra (July 8, 1989), Orissa (July 14, 1986), Tamil Nadu (December 12, 1988) and West Bengal (January 16, 1995). We may now analyse the "post-Sampath Kumar" cases which find a mention in the order of the referring B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of their service conditions. The court clarified that in Sampath Kumar's case [1987] 1 SCC 124, the Tribunals under the Act had been equated with High Courts only to the extent that the former were to act as substitutes for the latter in adjudicating service matters the Tribunals could not, therefore, seek parity for all other purposes. In Amulya Chandra's case [1991] SCC 181, a Division Bench of this court had to consider the question whether a dispute before the Central Administrative Tribunal could be decided by a single Administrative Member. The court took note of sub-section (2) of section 5 of the Act which, as we have seen, stipulates that a Bench of a Tribunal under the Act should ordinarily consist of a Judicial Member and an Administrative Member, as also the relevant observations in Sampath Kumar's case [1987] 1 SCC 124, to conclude that under the scheme of the Act, all cases should be heard by a Bench of two Members. It appears that the attention of the court was not drawn towards sub-section (6) of section 5 which, as we have noticed, enables a single Member of a Tribunal under the Act to hear and decide cases. The same issue arose for consideration before anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia [1993] 4 SCC 119, a Division Bench of this court consisting of three of us (Ahmadi, Punchhi and Ramaswamy JJ.) had occasion to deal with complaints concerning the functioning of the Customs, Excise and Gold Control Appellate Tribunal, which was set up by exercising the power conferred by article 323B. In his leading judgment, Ramaswamy J., analysed the relevant constitutional provisions, the decisions in Sampath Kumar [1987] 1 SCC 124, J. B. Chopra [1987] 1 SCC 422 and M. B. Majumdar [1990] 4 SCC 501, to hold that the Tribunals created under articles 323A and 323B could not be held to be substitutes of the High Courts for the purpose of exercising jurisdiction under articles 226 and 227 of the Constitution. Having had the benefit of more than five years' experience of the working of these alternative institutional mechanisms, anguish was expressed over their ineffectiveness in exercising the high power of judicial review. It was recorded that their performance had left much to be desired. Thereafter, it was noted that the sole remedy provided, that of an appeal to this court under article 136 of the Constitution, had proved to be prohibitively costly while also being inconvenie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce may improve. We strongly recommend to the Law Commission of India to undertake such an exercise on priority basis. A copy of this judgment may be forwarded by the Registrar of this court to the Member-Secretary of the Commission for immediate action." During the hearing, we requested the learned Additional Solicitor-General of India, Mr. K. N. Bhat, to inform us of the measures undertaken to implement the directions issued by this court in R. K. Jain's case [1993] 4 SCC 119. We were told that the Law Commission had in fact initiated a performance-analysis on the lines suggested in the judgment; however, when the Division Bench issued its order indicating that Sampath Kumar's case [1987] 1 SCC 124, might have to be reviewed by a larger Bench, further progress on the study was halted. We may now apply ourselves to analysing the decision which has been impugned in one of the matters before us, C.A. No. 169 of 1994. The judgment, Sakinala Harinath v. State of A. P. [1994] 1 APLJ (HC) 1, rendered by a Full Bench of the Andhra Pradesh High Court, has declared article 323A(2)(d) of the Constitution to be unconstitutional to the extent it empowers Parliament to exclude the jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s alone are competent to exercise the power of judicial review to pronounce upon the constitutional validity of statutory provisions and rules. The High Court, therefore, felt that the decision in Sampath Kumar's case [1987] 1 SCC 124 being per incuriam, was not binding upon it. The High Court also pointed out that, in any event, the issue of constitutionality of article 323A(2)(d) was neither challenged nor upheld in Sampath Kumar's case [1987] 1 SCC 124 and it could not be said to be an authority on that aspect. Thereafter, emphasising the importance of service matters which affect the functioning of civil servants, who are an integral part of a sound governmental system, the High Court held that service matters which involve testing the constitutionality of provisions or rules being matters of grave import, could not be left to be decided by statutorily created adjudicatory bodies which would be susceptible to executive influences and pressures. It was emphasised that in respect of constitutional courts, the framers of our Constitution had incorporated special prescriptions to ensure that they would be immune from precisely such pressures. The High Court also cited reasons for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power conferred upon it by article 323B. The first of these was the Tamil Nadu Land Reforms Special Appellate Tribunal which was established on November 1, 1990, under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment Act, 1985, to deal with all matters relating to land reforms arising under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961. Later, the Tamil Nadu Taxation Special Tribunal was established on December 22, 1995, under the Tamil Nadu Taxation Special Tribunal Act, 1992, to deal with cases arising under the Tamil Nadu General Sales Tax Act and Additional Sales Tax Act. Certain problems have arisen in the functioning of these Tribunals especially in respect of the manner in which they exclude the jurisdiction of their respective High Courts. This aspect can be illustrated by briefly adverting to the broad facts of two of the matters before us. C.A. Nos. 153233 of 1993 arise as a result of conflicting orders issued by the West Bengal Taxation Tribunal and the Calcutta High Court. Certain petitioners had challenged the constitutional validity of some provisions in three legislations enacted by the West Bengal Legislature before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, Mr. P. P. Rao, and Mr. K. K. Venugopal urged us to uphold the validity of the impugned constitutional provisions and to allow such Tribunals to exercise the jurisdiction under article 226 of the Constitution. We have also heard arguments advanced on behalf of the Registrar of the Principal Bench of the Central Administrative Tribunal, who was represented before us by Mr. Kapil Sibal. Mr. V. R. Reddy, the learned Additional Solicitor-General, urged us to set aside the judgment of the Madras High Court which affects the jurisdiction of the Tamil Nadu Land Reforms Special Appellate Tribunal. Certain other counsel have also addressed us in support of the main arguments advanced. Mr. Rama Jois, learned counsel for the petitioner in W. P. No. 918 of 1992, contended as follows : (i) Section 5(6) of the Act, in so far as it allows a single Member Bench of a Tribunal to test the constitutional validity of a statutory provision, is unconstitutional. This proposition flows from the decisions in Sampath Kumar's case [1987] 1 SCC 124, Amulya Chandra's case [1991] 1 SCC 181 and Dr. Mahabal Ram's case [1994] 2 SCC 401. In Sampath Kumar's case [1987] 1 SCC 124, this court had required a Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferences between High Courts and these Tribunals : (a) High Courts enjoy vast powers as a consequence of their being courts of record under article 215 of the Constitution and also possess the power to issue certificates of appeal under articles 132 and 133 of the Constitution in cases where they feel that a decision of this court is required. This is not so for Tribunals; (b) the qualifications for appointment of a High Court judge and the constitutional safeguards provided ensure the independence of and efficiency of the judges who man the High Courts. The conditions prescribed for Members of Tribunals are not comparable; (c) while the jurisdiction of the High Courts is constitutionally protected, a Tribunal can be abolished by simply repealing its parent statute; (d) while the expenditure of the High Courts is charged to the Consolidated Fund of the States, the Tribunals are dependent upon the appropriate Government for the grant of funds for meeting their expenses. These and other differences give rise to a situation whereby the Tribunals, being deprived of constitutional safeguards for ensuring their independence, are incapable of being effective substitutes for the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) is that it permits Parliament to enact, at a future date, a law to exclude the jurisdiction of this court under article 32. Being possessed of such potential for unleashing constitutional mischief in the future, its vires cannot be sustained; (iii) The power of judicial review vested in this court under article 32 and the High Court under article 226 is part of the basic structure of the Constitution. The relevant portions of the decisions in Kesavananda Bharati's case [1973] 4 SCC 225, Fertiliser Corporation Kamgar Union v. Union of India [1981] 59 FJR 237 (SC); [1981] 1 SCC 568, and Delhi Judicial Service Association v. State of Gujarat [1991] 4 SCC 406, highlight the importance accorded to article 32 of the Constitution; (iv) The theory of alternative institutional mechanisms advocated in Sampath Kumar's case [1987] 1 SCC 124, ignores the fact that judicial review vested in the High Courts consists not only of the power conferred upon the High Courts but also of the High Courts themselves as institutions endowed with glorious judicial traditions. The High Courts had been in existence since the 19th century and were possessed of a hoary past enabling them to win the confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23A and 323B do not seek to exclude the supervisory jurisdiction of the High Courts over all Tribunals situated within their territorial jurisdiction. Viewed from this perspective, the High Courts would still be vested with constitutional powers to exercise corrective or supervisory jurisdiction; (iii) Since the decisions of this court in Amulya Chandra's case [1991] 1 SCC 181 and Dr. Mahabal Ram's case [1994] 2 SCC 401, had clearly held that matters relating to the vires of a provision are to be dealt with by a Bench consisting of a judicial member and these guidelines will be followed in future, there is no vice of unconstitutionality in section 5(6). Mr. P. P. Rao, learned counsel for the State of Andhra Pradesh in C. A. No. 196 of 1994 and the connected special leave petitions, put forth the following submissions : (i) The matter before us involves a very serious, live problem which needs to be decided by adopting a pragmatic, co-operative approach instead of by a dogmatic, adversarial process. It is a fact that the Administrative Tribunals which were conceived as substitutes for the High Courts have not lived up to the expectations and have instead, proved to be inadequa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be amended under article 368. The majority judgments in Kesavananda Bharati's case [1973] 4 SCC 225, emphatically state that the concept of separation of powers is a basic feature of the Constitution. It, therefore, follows that the power of judicial review, which is a necessary concomitant of the independence of the judiciary, is also a basic feature of our Constitution. However, it does not follow that specific provisions such as article 32 or article 226 are by themselves part of the basic structure of the Constitution. In this regard, the history of article 31, which contained a fundamental right to property and was shifted from Part III to Chapter IV of Part XII can be cited by way of an example. (iii) The essence of the power of judicial review is that it must always remain with the judiciary and must not be surrendered to the executive or the Legislature. Since the impugned provisions save the jurisdiction of this court under article 136, thereby allowing the judiciary to have the final say in every form of adjudication, it cannot be said that the basic feature of judicial review had been violated. The constitutional bar is against the conferment of judicial power on ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific constitutional prohibition, both Parliament and the State Legislature were vested with sufficient legislative powers to effect changes in the original jurisdiction of this court as well as the High Courts. He then stated that in the event that we are not inclined to hold in accordance with either of the earlier contentions, the doctrine of severability should be applied to excise the words "under article 136" from the provisions and thus save them from the vice of unconstitutionality. Thereafter, he endeavoured to impress upon us the jurisprudential soundness of the theory of alternative institutional mechanisms propounded in Sampath Kumar's case [1987] 1 SCC 124. He then contended that the shortfalls in the constitution of the Tribunals, the selection of their personnel, the methods of their appointment, etc., are a consequence of legislative and executive errors of judgment; these shortfalls cannot affect the constitutionality of the parent constitutional provisions. He concluded by declaring that these constitutional amendments were lawfully incorporated by the representatives of the people in exercise of the constituent power of Parliament to remedy the existing problem of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g theme of the impugned judgment of the A. P. High Court rendered by M. N. Rao J., is that the power of judicial review is one of the basic features of our Constitution and that aspect of the power which enables courts to test the constitutional validity of statutory provisions is vested exclusively in the constitutional courts, i. e., the High Courts and the Supreme Court. In this regard, the position in American constitutional law in respect of courts created under article III of the Constitution of the United States has been analysed to state that the functions of article III courts (constitutional courts) cannot be performed by other legislative courts established by the Congress in exercise of its legislative power. The following decisions of the U.S. Supreme Court have been cited for support : National Mugal Insurance Company of the District of Columbia v. Tidewater Transfer Company, 93 L Ed 1156; 337 US 582, Thomas S. William v. United States, 77 L Ed 1372; 289 US 553, Cooper v. Aaron, 3 L Ed 2d 5; 358 US 1, Northern Pipeline Construction Company v. Marathon Pipeline Company and United States, 73 L Ed 2d 59; 458 US 50. We may briefly advert to the position in American cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial review of legislative action, judicial review of judicial decisions and judicial review of administrative action. We are, for the present, concerned only with under standing the first two aspects. In the modern era, the origin of the power of judicial review of legislative action may well be traced to the classic enunciation of the principle by Chief justice John Marshall of the U.S. Supreme Court in Marbury v. Madison [1803] 1 Cranch 137 : " It is emphatically the province and duty of the judicial depart ment to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.... A law repugnant to the Constitution is void; ... courts as well as other departments are bound by that instrument." (emphasis added) The assumption of such a power unto itself by the U.S. Supreme Court was never seriously challenged and, over the years, it has exercised this power in numerous cases despite the persisting criticism that such an exercise was undemocratic. Indeed, when the framers of our Constitution set about their monumental task, they were well aware that the principle that courts possess the power to invalidate duly enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not possess. Under the Constitution, Acts of Parliament are subject to judicial review particularly when they are said to infringe fundamental rights, therefore, if under the Constitution Parliament itself has not uncontrolled freedom of action, it is evident that it cannot invest lesser authorities with that power." (emphasis supplied) Special Reference No. 1 of 1964, In re [1965] 1 SCR 413; AIR 1965 SC 745, was a case where a seven-judge Constitution Bench of this court had to express itself on the thorny issue of parliamentary privileges. While doing so, the court was required to consider the manner in which our Constitution has envisaged a balance of power between the three wings of Government and it was in this context that Gajendragadkar C. J., made the following observations (page 763 of AIR 1965 SC) : ". . . whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the judicature in this country the task of consulting the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohan Reddy J. (paras 1159, 1161)]. The aspect of judicial review does not find elaborate mention in all the majority judgments. Khanna J., did, however, squarely address the issue (at para 1529) (SCC page 818) : "...The power of judicial review is, however, confined not merely to deciding whether in making the impugned laws the Central or State Legislatures have acted within the four corners of the legislative lists earmarked for them; the courts also deal with the question as to whether the laws are made in conformity with and not in violation a the other provisions of the Constitution.... As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by those rights are not contravened.... Judicial review has thus become all integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of provisions of statutes. If the provisions of the statute are found to be violative of any article of the Constitution, which is the touchstone for the validity of all laws, the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be challenged before any forum and would be valid despite the existence of disputes (para 207). Mathew J., held that whereas in the United States of America and in Australia, the judicial power is vested exclusively in courts, there is no such exclusive vesting of judicial power in the Supreme Court of India and the courts subordinate to it. Therefore, Parliament could, by passing a law within its competence, vest judicial power in any authority for deciding a dispute (paras 322 and 323). Beg J., held that the power of courts to test the legality of ordinary laws and constitutional amendments against the norms laid down in the Constitution flows from the "supremacy of the Constitution" which is a basic feature of the Constitution (para 622). Chandrachud J., felt that the contention that judicial review is a part of the basic structure and that any attempt to exclude the jurisdiction of courts in respect of election matters was unconstitutional, was too broadly stated. He pointed out that the constitution, as originally enacted, expressly excluded judicial review in a large number of important matters. The examples of articles 136(2) and 226(4) [exclusion of review in laws rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion will then become uncontrolled." (emphasis supplied) The majority judgment held the impugned provisions to be unconstitutional. While giving reasons in support, Chandrachud C.J., stated as follows : ". . . It is for the courts to decide whether restrictions are reasonable and whether they are in the interest of the particular subject. Apart from other basic dissimilarities, article 31-C takes away the power of judicial review to an extent which destroys even the semblance of a comparison between its provisions and those of clauses (2) to (6) of article 19. Human ingenuity, limitless though it may be, has yet not devised a system by which the liberty of the people can be protected except through the intervention of courts of law." It may, however, be noted that the majority in Minerva Mills [1980] 3 SCC 625, did not hold that the concept of judicial review was, by itself, part of the basic structure of the Constitution. The judgment of Chandrachud C. J., in Minerva Mills' case [1980] 3 SCC 625 must be viewed in the context of his judgment in Indira Nehru Gandhi's case [1975] Supp SCC 1, where he had stated that the Constitution, as originally enacted, excluded judicial rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment have relied on the observations in the minority judgment of Bhagwati J., in Minerva Mills' case [1980] 3 SCC 625, to lay the foundation of the theory of alternative institutional mechanisms. We may, at this stage, take note of the decision in Fertilizer Corporation Kamgar Union v. Union of India [1981] 59 FJR 237; [1981] 1 SCC 568, where Chandrachud C. J., appears to have somewhat revised the view adopted by him in Indira Nehru Gandhi's case [1975] Supp SCC 1. In that case, speaking for the majority, Chandrachud C. J., held that "the jurisdiction conferred on the Supreme Court by article 32 is an important and integral part of the basic structure of the Constitution". In Kihoto Hollohan v. Zachillu [1992] Supp 2 SCC 651, a five-judge Constitution Bench had to, inter alia, consider the validity of paragraph 7 of the Tenth Schedule to the Constitution which excluded judicial review. The judgment for the minority, delivered by Verma J., struck down the provision on the ground that it violated the rule of law which is a basic feature of the Constitution requiring that decisions be subject to judicial review by an independent outside authority (paras 181-182). Though the majo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferred on the High Courts and this court would be rendered virtually meaning less. Let it not be forgotten that the judicial power conferred on the High Courts and this court is meant for the protection of the citizens' fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case." (emphasis added) To express our opinion on the issue whether the power of judicial review vested in the High Courts and in the Supreme Court under articles 226/227 and 32 is part of the basic structure of the Constitution, we must first attempt to understand what constitutes the basic structure of the Constitution. The doctrine of basic structure was evolved in Kesavananda Bharati's case [1973] 4 SCC 225. However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution. Indeed, in the judgments of Shelat and Grover JJ., Hegde and Mukherjea JJ., and Jaganmohan Reddy J., there are specific observations to the effect that their list of essential features comprising the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e independence of the judiciary. These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of judges as well as the mechanism for selecting judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions. The judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the Legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution, can be additionally conferred upon "any other court", there is no reason why the same situation cannot subsist in respect of the jurisdiction conferred upon the High Courts under article 226 of the Constitution. So long as the jurisdiction of the High Courts under article 226/227 and that of this court under article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon the Administrative Tribunals created under the Act or upon the Tribunals created under article 323B of the Constitution. It is to be remembered that, apart from the authorisation that flows from articles 323A and 323B, both Parliament and the State Legislatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and the High Courts. This power is available to Parliament under entries 77, 78, 79 and 95 of list I and to the State Legislatures under entry 65 of list II; entry 46 of list III can also be availed of both by Parliament and the State Legislatures for this purpose. There are pressing reasons why we are anxious to preserve the conferment of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consistent. Of the several studies that have been conducted in this regard, as many as twelve have been undertaken by the Law Commission of India (hereinafter referred to as "the LCI") or similar high level committees appointed by the Central Government, and are particularly noteworthy. An appraisal of the daunting task which confronts the High Courts can be made by referring to the assessment undertaken by the LCI in its 124th Report which was released some time after the judgment in Sampath Kumar's case [1987] 1 SCC 124. The report was delivered in 1988, nine years ago, and some changes have occurred since, but the broad perspective which emerges is still, by and large, true : ". . . The High Courts enjoy civil as well as criminal, ordinary as well as extraordinary, and general as well as special jurisdiction. The source of the jurisdiction is the Constitution and the various statutes as well as letters patent and other instruments constituting the High Courts. The High Courts in the country enjoy an original jurisdiction in respect of testamentary, matrimonial and guardianship matters. Original jurisdiction is conferred on the High Courts under the Representation of the Peo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed towards generalist courts yielding their place to specialist Tribunals. Describing the pendency in the High Courts as "catastrophic, crisis ridden, almost unmanageable, imposing... an immeasurable burden on the system", the LCI stated that the prevailing view in Indian jurisprudence that the jurisdiction enjoyed by the High Court is a holy cow required a review. It, therefore, recommended the trimming of the jurisdiction of the High Courts by setting up specialist courts/tribunals while simultaneously eliminating the jurisdiction of the High Courts. It is important to realise that though the theory of alternative institutional mechanisms was propounded in Sampath Kumar's case, [1987] 1 SCC 124, in respect of the Administrative Tribunals, the concept itself--that of creating alternative modes of dispute resolution which would relieve High Courts of their burden while simultaneously providing specialised justice--is not new. In fact, the issue of having a specialised tax court has been discussed for several decades; though the report of the High Court Arrears Committee (1972) dismissed it as "ill-conceived", the LCI, in its 115th Report (1986) revived the recommendation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese and other reasons, the quality of justice is stated to have suffered and the cause of expedition is not found to have been served by the establishment of such Tribunals. 8.64 Even the experiment of setting up of the Administrative Tribunals under the Administrative Tribunals Act, 1985, has not been widely welcomed. Its members have been selected from all kinds of services including the Indian Police Service. The decision of the State Administrative Tribunals are not appealable except under article 136 of the Constitution. On account of the heavy cost and remoteness of the forum, there is virtual negation of the right of appeal. This has led to denial of justice in many cases and consequential dissatisfaction. There appears to be a move in some of the States where they have been established, for their abolition. Tribunals--Tests for including High Court's jurisdiction : 8.65 A Tribunal which substitutes the High Court as an alternative institutional mechanism for judicial review must be no less efficacious than the High Court. Such a Tribunal must inspire confidence and public esteem that it is a highly competent and expert mechanism with judicial approach and objectivity. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf in this manner, the Malimath Committee specifically recommended that the theory of alternative institutional mechanisms be abandoned. Instead, it recommended that institutional changes be carried out within the High Courts, dividing them into separate divisions for different branches of law, as is being done in England. It stated that appointing more judges to man the separate divisions while using the existing infrastructure would be a better way of remedying the problem of pendency in the High Courts. In the years that have passed since the Report of the Malimath Committee was delivered, the pendency in the High Courts has substantially increased and we are of the view that its recommendation is not suited to our present context. That the various Tribunals have not performed up to expectations is a self-evident and widely acknowledged truth. However, to draw an inference that their unsatisfactory performance points to their being founded on a fundamentally unsound principle would not be correct. The reasons for which the Tribunals were constituted still persist; indeed, those reasons have become even more pronounced in our times. We have already indicated that our constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a first appellate court. We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of Tribunals under article 227 of the Constitution. In R. K. Jain's case [1993] 4 SCC 119, after taking note of these facts, it was suggested that the possibility of an appeal from the tribunals on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to article 323A or article 323B of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. The directions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will, however, come into effect prospectively, i.e., will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective overruling so as not to disturb the procedure in relation to decisions already rendered. We are also required to address the issue of the competence of those who man the Tribunals and the question of who is to exercise administrative supervision over them. It has been urged that only those who have had judicial experience should be appointed to such Tribunals. In the case of Administrative Tribunals, it has been pointed out that the Administrative Members who have been appointed have little or no experience in adjudicating such disputes; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to the Central legislations and some others have been created by State legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set up, it is desirable that all such Tribunals should be, as far as possible under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction 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 articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under article 226/227 and upon the Supreme Court under article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by articles 226/227 and 32 of the Constitution. The Tribunals created under article 323A and article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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