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1997 (3) TMI 90
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..... D. Bharathi Reddy, S.K. Mehta, Dhruv Mehta, Fazlin Anam, Ms. Monika Jairath, M.P. Raju, Manmohan, T.U. Rajan, L.J. Vadakara, Rathin Das, S. Murlidhar, Rana, Ms. Sucharita Mukherjee, N. Praveer Choudhary, K.K. Mani, Ms. Rani Chhabra, T.V.S.N. Chari, R.K. Mehta, Ms. Lily Thomas, Anip Sachthey, Ms. Mridula Ray Bhardwaj and A. Bhattacharjee, for the parties. Party in person: Kiran K. Shah, for the parties. Senior Advocates: Rama Jois, Dr. Shankar Gosh, Dr. D.P. Pal, Sundarananda Pal, K.K. Venugopal, B. Sen, N.S. Hegde, Tapas Ray, M.L. Verma, P.P. Rao, Shanti Bhushan, A.K. Ganguli, S. Ramachandra Rao, U.N. Bachawat and Kapil Sibal, for the parties. JUDGMENT The judgment of the court was delivered by A. M. AHMADI C. J. I.--The special leave petitions, civil appeals and writ petitions which together constitute the present batch of matters before us owe their origin to separate decisions of different High Courts and several provisions in different enactments which have been made the subject of challenge. Between them, they raise several distinct questions of law; they have, however, been grouped together as all of them involve the consideration of the following ....
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....Sampath Kumar's case [1987] 1 SCC 124, the referring Bench reached the conclusion that on account of the divergent views expressed by this court in a series of cases decided after Sampath Kumar's case [1987] 1 SCC 124, the resulting situation warranted a fresh look by a larger Bench over all the issues adjudicated by this court in Sampath Kumar's case [1987] 1 SCC 124, including the question whether the Tribunal can at all have an Administrative Member on its Bench, if it were to have the power of even deciding the constitutional validity of a statute or (article 309) rule, as conceded in Chopra's case [1987] 1 SCC 422. The post Sampath Kumar cases which caused the Division Bench to refer the present matter to us are as follows : J. B. Chopra v. Union of India [1987] 1 SCC 422, M. B. Majumdar v. Union of India [1990] 4 SCC 501, Amulya Chandra Kalita v. Union of India [1991] 1 SCC 181, R. K. Jain v. Union of India [1993] 4 SCC 119 and Dr. Mahabal Ram v. Indian Council of Agricultural Research [1994] 2 SCC 401. Before we record the contentions of learned counsel who appeared before us, we must set out the legal and historical background relevant to the present case. Part XIVA of th....
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....e been within the (e) ceiling on urban property; (f) Elections to either House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to in article 329 and article 329A; (g) Production, procurement, supply and Distribution of foodstuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods; (h) offences against laws with respect to any of the matters specified in sub- clauses (a) to (g) and fees in respect of any of those matters; (i) any matter incidental to any of the matters specified in sub-clauses (a) to (h). Jurisdiction of such Tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment; (3) A law made under clause (1) may- (a) provide for the establishment of a hierarchy of Tribunals; (f) Repeat or amend any order made by the President under clause (3) of article 371D; (b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may ....
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....eferred to as "the Act"). The Statement of Objects and Reasons of the Act indicates that it was in the express terms of article 323A of the Constitution and was being enacted because a large number of cases relating to service matters were pending before various courts; it was expected that "the setting up of such Administrative Tribunals to deal exclusively with service matters would go a long way in not only reducing the burden of the various courts and thereby giving them more time to deal with other cases expeditiously but would also provide to the persons covered by the Administrative Tribunals speedy relief in respect of their grievances". Pursuant to the provisions of the Act, the Central Administrative Tribunal, with five Benches, was established on November 1, 1985. However, even before the Tribunal had been established, several writ petitions had been filed in various High Courts as well as this court challenging the constitutional validity of article 323A of the Constitution as also the provisions of the Act; the principal violation complained of being the exclusion of the jurisdiction of this court under article 32 of the Constitution and of that of the High Courts und....
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....ntral Government to establish : (1) a Central Administrative Tribunal with Benches at separate places; (2) an Administrative Tribunal for a State which makes a request in this behalf; and (3) a joint Administrative Tribunal for two or more States which enter into an agreement for the purpose. Section 5 states that each Tribunal shall consist of a Chairman and such number of Vice Chairmen and judicial and Administrative Members as may be deemed necessary by the appropriate Government. Sub-section (2) of section 5 requires every Bench to ordinarily consist of one judicial Member and one Administrative Member. Sub-section (6) of section 5, which enables the Tribunal to function through single Member Benches is the focus of some controversy; as will subsequently emerge, and is fully extracted as under : " 5. (6) Notwithstanding anything contained in the foregoing provisions of this section, it shall be competent for the Chairman or any other Member authorised by the Chairman in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classe....
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....ars, held the post of a joint Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a joint Secretary to the Government of India, and shall in either case, have adequate administrative experience." Sub-sections (4), (5) and (6) of section 6 provide that all the Members of the Central Administrative Tribunal, the State Administrative Tribunals and the joint Administrative Tribunals shall be appointed by the President; in the case of the State Administrative Tribunals and the joint Administrative Tribunals, the President is required to consult the concerned Governor(s). Sub-section (7) stipulates that the Chief justice of India is also to be consulted in the appointment of the Chairman, Vice-Chairman and Members of all Tribunals under the Act. Section 8 prescribes the terms of office of the personnel of the Tribunal as being for a duration of five years from the date of entering into office; there is also provision for reappointment for another term of five years. The maximum age limit permissible for the Chairman and the Vice-Chairman is 65 years and for that of any other Member is 62 y....
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.... only exception made in it was in respect of the jurisdiction of this court under article 136 of the Constitution. However, before the final hearing in Sampath Kumar's case [1987] 1 SCC 124, the provision was further amended to also save the jurisdiction of this court under article 32 of the Constitution; this aspect has been noted in the judgment of Misra J., in Sampath Kumar's case [1987] 1 SCC 124, (at para 14). Since the court in Sampath Kumar's case [1987] 1 SCC 124, had restricted its focus to the provisions of the Act, it expressed itself to be satisfied with the position that the power of judicial review of the apex court had not been tampered with by the provisions of the Act and did not venture to address the larger issue of whether clause (2)(d) of article 323A of the Constitution also required a similar amendment. Section 29 provides for the transfer to the Tribunals under the Act, of all service matters pending in every existing forum before their establishment. The only exception carved out is in respect of appeals pending before High Courts. Section 35 vests the Central Government with rule-making powers and section 36 empowers the appropriate Government to make rul....
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....rrive at the conclusion that (SCC page 423, para 2 and page 357 of AIR 1987 SC) : "the Administrative Tribunal being a substitute of the High Court had the necessary jurisdiction, power and authority to adjudicate upon all disputes relating to service matters including the power to deal with all questions pertaining to the constitutional validity or otherwise of such laws as offending articles 14 and 16(1) of the Constitution." An aspect which needs to be emphasised is that the Constitution Bench in Sampath Kumar's case [1987] 1 SCC 124, had not specifically addressed the issue whether the Tribunals under the Act would have the power to strike down statutory provisions or rules as being constitutionally invalid. However, the Division Bench in J. B. Chopra's case [1987] 1 SCC 422, felt that this proposition would follow as a direct and logical consequence of the reasoning employed in Sampath kumar's case [1987] 1 SCC 124. In M. P. Majumdar's case [1990] 4 SCC 501, a Division Bench of this court had to confront the contention, based on the premise that in Sampath Kumar's case [1987] 1 SCC 124, this court had equated the Tribunals established under the Act with the High Courts, tha....
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....e involved. . . . We are prepared to safeguard the interests of claimants who go before the Tribunal by holding that while allocating work to the single Member--whether judicial or administrative-in terms of sub-section (6), the Chairman should keep in view the nature of the litigation and where questions of law and interpretation of constitutional provisions are involved they should not be assigned to a single Member (emphasis supplied). In fact, the proviso itself indicates Parliament's concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular Bench of two Members such cases which in their opinion require to be heard by a Bench of two Members. We would like to add that it would be open to either party appearing before a single Member to suggest to the Member hearing the matter that it should go to a Bench of two Members. The Member should ordinarily allow the matter to go to a Bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigation may be before the single Member for disposal--the vires of sub-sect....
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.... following words (page 134 of [1993] 4 SCC and page 1776 of AIR 1993 SC): "...the time is ripe for taking stock of the working of the various tribunals set up in the country after the insertion of articles 323A and 323B in the Constitution. A sound justice delivery system is a sine qua non for the efficient governance of a country wedded to the rule of law. An independent and impartial justice delivery system in which the litigating public has faith and confidence alone can deliver the goods. After the incorporation of these two articles, Acts have been enacted whereunder tribunals have been constituted for dispensation of justice. Sufficient time has passed and experience gained in these last few years for taking stock of the situation with a view to finding out if they have served the purpose and objectives for which they were constituted. Complaints have been heard in regard to the functioning of other tribunals as well and it is time that a body like the Law Commission of India has a comprehensive looking with a view to suggesting measures for their improved functioning. That body can also suggest changes in the different statutes and evolve a model on the basis whereof tribun....
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....onstitution, but, since that aspect is not relevant to the main controversy before us, we shall avoid its discussion. The judgment of the Andhra Pradesh High Court has, after analysing various provisions of our Constitution, held that under our constitutional scheme the Supreme Court and the High Courts are the sole repositories of the power of judicial review. Such a power, being inclusive of the power to pronounce upon the validity of statutes, actions taken and orders passed by individuals and bodies falling within the ambit of the expression "State" in article 12 of the Constitution, has only been entrusted to the constitutional courts, i.e., the High Courts and this court. For this proposition, support has been drawn from the rulings of this court in Kesavananda Bharati v. State of Kerala [1973] 4 SCC 225, Special Reference No. 1 of 1964, In re [1965] 1 SCR 413, Indira Nehru Gandhi v. Raj Narain [1975] Supp SCC 1, Minerva Mills Ltd. v. Union of India [1980] 3 SCC 625, Kihoto Hollohan v. Zachillu [1992] Suppl 2 SCC 651, and certain other decisions, all of which have been extensively analysed and profusely quoted from. Analysing the decision in Sampath Kumar's case [1987] 1 SC....
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....ticle 323B. The matters specified cover a wide canvas including, inter alia, disputes relating to tax cases, foreign exchange matters, industrial and labour cases, ceiling on urban property, election to the State Legislatures and Parliament, essential goods and their distribution, criminal offences, etc. Clause (3) enables the concerned Legislature to provide for the establishment of a hierarchy of Tribunals and to lay down their jurisdiction, the procedure to be followed by them in their functioning, etc. Sub-clause (d) of clause (3) empowers the concerned Legislature to exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136 of the Constitution, with respect to all or any of the matters falling within the jurisdiction of the Tribunals. The constitutional provision, therefore, invests Parliament or the State Legislatures, as the case may be, with powers to divest the traditional courts of a considerable portion of their judicial work. According to the information provided to us by Mr. K. N. Bhat, the learned Additional Solicitor-General, until the present date, only four Tribunals have been created under article 323B pursuant to legi....
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.... declared the impugned provisions to be unconstitutional. These developments have resulted in an interesting situation, where the same provisions have alternately been held to be constitutional and unconstitutional by two different fora each of which considered itself to be empowered to exercise jurisdiction. S. L. P. No. 17768 of 1991 seeks to challenge a judgment of the Madras High Court which has held that the establishment of the Tamil Nadu Land Reforms Special Appellate Tribunal will not affect the powers of the Madras High Court to issue writs. This decision is based on the reasoning that the Legislature of the State had no power "to infringe upon the High Courts' power to issue writs under article 226 of the Constitution and to exercise its power of superintendence under article 227 of the Constitution". It is against these circumstances that we must now test the propositions put forth for our consideration. Submissions of counsel : We have heard the submissions of several learned senior counsel who appeared for the various parties before us. Mr. Rama Jois and Mr. Shanti Bhushan, through their respective arguments, urged us to review the decision in Sampath Kumar's case ....
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....e unconstitutional. This is for the reason that : (a) Parliament cannot, in exercise of its constituent power confer power on Parliament and the State Legislatures to exclude the constitutional jurisdiction conferred on the High Courts as the power to amend the Constitution cannot be conferred on the Legislatures; and (b) these provisions violate the basic structure of the Constitution in so far as they take away the power of judicial review vested in the Supreme Court under article 32 of the Constitution and the High Courts under articles 226 and 227 of the Constitution. While the Tribunals constituted under articles 323A and 323B can be vested with the power of judicial review over administrative action, the power of judicial review of legislative action cannot be conferred upon them. This proposition flows from Kesavananda Bharati's case [1973] 4 SCC 225, where it was held that under our constitutional scheme, only the constitutional courts have been vested with the power of judicial review of legislative action; (iii) While the provisions of the Act do not purport to affect the sacrosanct jurisdiction of the Supreme Court under article 32 of the Constitution, articles 323A a....
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....e respondent in C. A. Nos. 153233 of 1993, advanced the following submissions : (i) The 42nd Amendment to the Constitution, which introduced the impugned constitutional provisions, must be viewed in its historical context. The 42nd Amendment, being motivated by a feeling of distrust towards the established judicial institutions, sought, in letter and spirit, to divest constitutional courts of their jurisdiction. The aim was to vest such constitutional jurisdiction in creatures whose establishment and functioning could be controlled by the executive. Such an intent is manifest in the plain words of articles 323A and 323B which oust the jurisdiction, vested in this court and the High Courts under articles 32, 226 and 227 of the Constitution; (ii) The validity of the impugned provisions has to be determined irrespective of the manner in which the power conferred by them has been exercised. In Sampath Kumar's case [1987] 1 SCC 124, this court restricted its enquiry to the Act, which did not oust the jurisdiction under article 32, and did not explore the larger issue of the constitutionality of article 323A(2)(d), which in express terms permits Parliament to oust the jurisdiction of t....
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....e cited certain authorities in support of his contention that the power to interpret the provisions of the Constitution is one which has been solely vested in the constitutional courts and cannot be bestowed on newly created quasi-judicial bodies which are susceptible to executive influences. Mr. K. N. Bhat, the learned Additional Solicitor-General of India represented the Union of India which is a party in C. A. No. 169 of 1994 and C. A. No. 481 of 1989. His contentions are as follows : (i) Clause (2)(d) of article 323-A and clause (3)(d) of article 323B ought not to be struck down on the ground that they exclude the jurisdiction of this court under article 32 of the Constitution. On account of several decisions of this court, it is a well-established proposition in law that the jurisdiction of this court under article 32 of the Constitution is sacrosanct and is indisputably a part of the basic structure of the Constitution. This position had been clearly enunciated well before the 42nd Amendment to the Constitution was conceived. Therefore, Parliament must be deemed to have been aware of such a position and it must be concluded that the jurisdiction under article 32 was not in....
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....High Courts. In Sampath Kumar's case [1987] 1 SCC 124, this court was required to test the constitutional validity of providing for such a substitute to the High Courts in the shape of the Administrative Tribunals. While deciding the case, this court had actually monitored the amendments to the Act by a series of orders and directions given from time to time as the learned Attorney-General had offered to effect the necessary amendments to the Act to remove its defects. After the necessary amendments were made to the Act, this court was satisfied that there was no need to strike it down as it was of the view that the Act would provide an effective alternative forum to the High Courts for the resolution of service disputes. However, the actual functioning of the Tribunals during the last decade has brought forth several deficiencies which need to be removed. The remedy, however, lies not in striking down the constitutional provisions involved but in allowing the Union of India to further amend the Act so as to ensure that the Tribunals become effective alternative fora. (ii) Article 323A(2)(d) does not violate the basic structure of the Constitution. The relevant observations in Kes....
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....involving fundamental rights, can also be transferred to Tribunals on the same reasoning. (iv) By virtue of Order XXVII-A, rule 1-A, ordinary civil courts are empowered to adjudicate upon questions of vires of statutory rules and instruments. In view of this situation, there is no constitutional difficulty in empowering Tribunals to have similar powers. (v) Alternatively, in case we are inclined to take the view that the power of judicial review of legislative enactments cannot in any event be conferred in any other court or Tribunal, we may use the doctrine of reading down to save the impugned constitutional provisions. So construed, the High Courts would continue to have jurisdiction to decide the vires of an Act even in the area of service disputes and would, therefore, perform a supervisory role over Tribunals in respect of matters involving constitutional questions. Mr. K. K. Venugopal, representing the State of West Bengal in S. L. P. No. 1063 of 1996 and C. A. Nos. 1532-33 of 1993, began by reiterating the contention that the impugned provisions do not seek to oust the jurisdiction of this court under article 32 which is a basic feature of the Constitution. His alternativ....
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....ibal. The case of the Registrar is that the Tribunals, as they are functioning at present, are not effective substitutes for the High Courts. However, the creation of alternative institutional mechanisms is not violative of the basic structure so long as it is as efficacious as the constitutional courts. He urged us to discontinue the appointment of Administrative Members to the Tribunals and to ensure that the Members of the Tribunals have security of tenure, which is a necessary pre-requisite for securing their independence. Mr. V. R. Reddy, the learned Additional Solicitor-General of India, drew our attention towards the judgment of the Madras High Court which is the subject of challenge in S.L.P. No. 17768 of 1991. Mr. Reddy endeavoured to convince us that the amendments incorporated in the legislation which created the Tamil Nadu Land Reforms Special Appellate Tribunal after the decision in Sampath Kumar's case [1987] 1 SCC 124, have the effect of making it a proper and effective substitute for the High Courts. He also submitted that the functioning of the Land Reforms Tribunal was essential for the effective resolution of disputes in that branch of law. We may now address t....
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....of article III of the U. S. Constitution : "Article III, Section 1 : The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." (emphasis added) The judgment of the A. P. High Court is, therefore, correct in assert ing that the judicial power vested in article III of the U. S. Constitution can only be exercised by courts created under section 1 of article 111. However, what must be emphasised is the fact that article III itself con templates the conferment of such judicial power by the U. S. Congress upon inferior courts so long as the independence of the judges is ensured in terms of section 1 of article III. The proposition which emerges from this analysis is that in the United States, though the concept of judicial power has been accorded great constitutional protection, there is no blanket prohibition on the conferment of judicial pow....
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....pirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the 'fundamental rights', as to which this court has been assigned the role of a sentinel on the qui vive. While the court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute." (emphasis added) Over the years, this court has had many an opportunity to express its views on the power of judicial review of legislative action. What follows is an analysis of the leading pronouncements on the issue. While delivering a separate but concurring judgment in the five-judge Constitution Bench decision in Bidi Supply Co. v. Union of India [1956] 29 ITR 717; [1956] SCR 267, 284; AIR 1956 SC 479, 487, Bose J. made the following observations which are apposite to the present context (page 730 of 29 ITR) : "The heart and core of a democracy lies in the judicial process, and that means independent and fearless judges free from executive control brought up in judicial traditions and trained to judicial ways of working and thinking. The main bulwarks of liberty and freedom lie there a....
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.... of this country." (emphasis added) It is interesting to note that the origins of the power of judicial review of legislative action have not been attributed to one source alone. While Sastri C. J., found the power mentioned expressly in the text of the Constitution, Gajendragadkar C. J., preferred to trace it to the manner in which the Constitution has separated powers between the three wings of Government. In Kesavananda Bharati's case [1973] 4 SCC 225; AIR 1973 SC 1461, a 13-judge Constitution Bench, by a majority of 7 : 6, held that though, by virtue of article 368, Parliament is empowered to amend the Constitution, that power cannot be exercised so as to damage the basic features of the Constitution or to destroy its basic structure. The identification of the features which constitute the basic structure of our Constitution has been the subject-matter of great debate in Indian Constitutional law. The difficulty is compounded by the fact that even the judgments for the majority are not unanimously agreed on this aspect. [There were five judgments for the majority, delivered by Sikri C. J., Shelat and Grover JJ., Hegde and Mukherjea JJ. Jaganmohan Reddy J. and Khanna J. While ....
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....means a articles 226 and 32 is one of the features upon which hinges the system of checks and balances." (emphasis added) In Indira Nehru Gandhiv. Raj Narain [1975] Supp SCC 1, a fivejudge Constitution Bench had to, Inter alia, test the constitutional validity of provisions which ousted the jurisdiction of all courts including the Supreme Court, in election matters. Consequently, the court was required to express its opinion on the concept of judicial review. Though all five judges delivered concurring judgments to strike down the offending provision, their views on the issue of judicial review are replete with variations. Ray C. J., was of the view that the concept of judicial review, while a distinctive feature of the American constitutional law, is not founded on any specific article in our Constitution. He observed that judicial review can and has been excluded in several matters; in election matters, judicial review is not a compulsion. He, however, held that our Constitution recognises a division of the three main functions of Government and that judicial power, which is vested in the judiciary cannot be passed to or shared by the executive or the Legislature (paras 32, 43, ....
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.... view that judicial review was a part of the basic structure of the Constitution, Ray C. J., and Mathew J., pointed out that unlike in the American context, judicial power had not been expressly vested in the judiciary by the Constitution of India. Khanna J., did not express himself on this aspect, but in view of his emphatic observations in Kesavananda Bharati's case [1973] 4 SCC 225, his views on the subject can be understood to have been made clear. Chandrachud J., pointed out that the Constitution itself excludes judicial review in a number of matters and felt that in election matters, judicial review is not a necessary requirement. In Minerva Mills v. Union of India [1980] 3 SCC 625; AIR 1980 SC 1789, 1799, a five-judge Constitution Bench of this court had to consider the validity of certain provisions of the Constitution (42nd Amendment) Act, 1976, which, inter alia, excluded judicial review. The judgment for the majority, delivered by Chandrachud C, J., for four judges, contained the following observations (at p. 644, para 21): "...Our Constitution is founded on a nice balance of power among the three wings of the State, namely, the executive, the Legislature and the judic....
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.... what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which, inter alia, requires that 'the exercise of powers by the Government whether it be the Legislature or the executive or any other authority, be conditioned by the Constitution and the law'. The power of judicial review is an integral part of our constitutional system,. . . . the power a judicial review... is unquestionably ... part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that effective alternative insti tutional mechanisms or arrangements for judicial review cannot be made by Parliament." (emphasis added) The A.P. High Court has, through the judgment of M.N. Rao J., pointed out that the theory of alternative institutional mechanisms enunciated by Bhagwati J., in his minority judgment in Minerva Mills' case [1980] 3 SCC 625, was not supported by or even mentioned in the majority judgment. In fact....
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....was asked to name any particular article in this Constitution as the most important--an article without which this Constitution would be a nullity--I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realised its importance," (emphasis added) This statement of Dr. Ambedkar has been specifically reiterated in several judgments of this court to emphasise the unique significance attributed to article 32 in our constitutional scheme. [see for instance, Khanna J., in Kesavananda Bharati's case [1973] 4 SCC 225 (p. 818), Bhagwati J., in Minerva Mills' case [1980] 3 SCC 625 (p. 678), Chandrachud C. J., in Fertilizer Kamgar [1981] 59 FJR 237; [1981] 1 SCC 568 (para 11), R. Misra J., in Sampath Kumar [1987] 1 SCC 124 (p. 137)]. In the Special Reference's case [1965] 1 SCR 413; AIR 1965 SC 745, 787, while addressing this issue, Gajendragadkar C. J., stated as follows : " If the power of the High Courts under article 226 and the authority of this court under article 32 are not subject to any exceptions, then it would be futile to contend that a citizen cannot move the High Courts or this c....
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....s court that have been referred to in the course of our analysis, From their conclusions,, many of which have been extracted by us in toto, it appears that this court has always considered the power of judicial review vested in the High Courts and in this court under articles 226 and 32 respectively, enabling legislative action to be subjected to the scrutiny of superior courts, to be integral to our constitutional scheme.While several judgments have made specific references to this aspect [Gajendragadkar C. J., in the Special Reference case [1965] 1 SCR 413, Beg J. and Khanna J. in Kesavananda Bharati's case [1973] 4 SCC 225, Chandrachud C. J. and Bhagwati J., in Minerva Mills' case [1980] 3 SCC 625, Chandrachud C. J. in Fertilizer Corporation Kamgar's case [1981] 59 FJR 237; [1981] 1 SCC 568, K. N. Singh J., in Delhi Judicial Service Association's case [1991] 4 SCC 406, etc.] the rest have made general observations highlighting the significance of this feature. The legitimacy of the power of courts within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism, has....
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....ations can never be ousted or excluded. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided. However, it is important to emphasise that though the subordinate judiciary or tribunals created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of the High Courts and the Supreme Court, there is no constitutional prohibition against their performing a supplemental--as opposed to a substitutional--role in this respect. That such a situation is contemplated within the constitutional scheme becomes evident when one analyses clause (3) of article 32 of the Constitution which reads as under : 32. Remedies for enforcement of rights conferred by this part.--(1) . . . (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower....
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....iate to meet the exigencies of the time. Nearly a decade later, we are now in a position to review the theoretical and practical results that have arisen as a consequence of the adoption of such an approach. We must, at this stage, focus upon the factual position which occasioned the adoption of the theory of alternative institutional mechanisms in Sampath Kumar's case [1987] 1 SCC 124. In his leading judgment, R. Misra J., refers to the fact that since independence, the population explosion and the increase in litigation had greatly increased the burden of pendency in the High Courts. Reference was made to studies conducted towards relieving the High Courts of their increased load. In this regard, the recommendations of the Shah Committee for setting up independent tribunals as also the suggestion of the Administrative Reforms Commission that civil service tribunals be set up, were noted. Reference was also made to the decision in K. K. Dutta v. Union of India [1980] 4 SCC 38, where this court had, while emphasising the need for speedy resolution of service disputes, proposed the establishment of service Tribunals. The problem of clearing the backlogs of High Courts, which has r....
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....igh Courts, such as, section 130 of the Customs Act, 1962, and section 35G of the Central Excises and Salt Act, 1944. The High Courts have also enjoyed jurisdiction under the Indian Divorce Act, 1869, and the Parsi Marriage and Divorce Act, 1936. Different types of litigation coming before the High Court in exercise of its wide jurisdiction bear different names. The vast area of jurisdiction can be appreciated by reference to those names, viz., (a) first appeals; (b) appeals under the letters patent; (c) second appeals; (d) revision petitions; (e) criminal appeals (f) criminal revisions; (g) civil and criminal references; (h) writ petitions (i) writ appeals; (j) references under direct and indirect tax laws; (k) matters arising under the Sales Tax Act; (1) election petitions under the Representation of the People Act; (m) petitions under the Companies Act, Banking Companies Act and other special Acts; and (n) wherever the High Court has original jurisdiction, suits and other proceedings in exercise of that jurisdiction. This varied jurisdiction has to some extent been responsible for a very heavy institution of matters in the High Courts." After analysing the situation existing in....
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....has elaborately dealt with the aspect. The observations contained in the Report, to the extent they contain a review of the functioning of the Tribunals over a period of three years or so after their institution, will be useful for our purpose. Chapter VIII of the second volume of the Report, "Alternative Modes and Forums for Dispute Resolution", deals with the issue at length. After forwarding its specific recommendations on the feasibility of setting up "Gram Nyaya layas", Industrial Tribunals and Educational Tribunals, the Committee has dealt with the issue of Tribunals set up under articles 323A and 323B of the Constitution. The relevant observations in this regard, being of considerable significance to our analysis, are extracted in full as under Functioning of Tribunals : 8.63 Several Tribunals are functioning in the country. Not all of them, however, have inspired confidence in the public mind. The reasons are not far to seek. The foremost is the lack of competence, objectivity and judicial approach. The next is their constitution, the power and method of appointment of personnel thereto, the inferior status and the casual method of working. The last is their actual composi....
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....unals, who simultaneously with their establishment want exclusion of the writ jurisdiction of the High Courts in regard to matters entrusted for adjudication to such Tribunals, ought not to overlook these vital and important aspects. It must not be forgotten that what is permissible to be supplanted by another equally effective and efficacious institutional mechanism is the High Courts and not the judicial review itself. Tribunals are not an end in themselves but a means to an end; even if the laudable objectives of speedy justice, uniformity of approach, predictability of decisions and specialist justice are to be achieved, the framework of the Tribunal intended to be set up to attain them must still retain its basic judicial character and inspire public confidence. Any scheme of decentralisation of administration of justice providing for an alternative institutional mechanism in substitution of the High Courts must pass the aforesaid test in order to be constitutionally valid. 8.66 The overall picture regarding the tribunalisation of justice in our country is not satisfactory and encouraging. There is a need for a fresh look and review and a serious consideration before the expe....
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....t would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an" interpretation of articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under article 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under article 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decisi....
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....ise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be....
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....purpose. To hold that the Tribunal should consist only of judicial members would attack the primary basis of the theory pursuant to which they have been constituted. Since the Selection Committee is now headed by a judge of the Supreme Court, nominated by the Chief justice of India, we have reason to believe that the Committee would take care to ensure that administrative members are chosen from amongst those who have some background to deal with such cases. It has been brought to our notice that one reason why these Tribunals have been functioning inefficiently is because there is no authority charged with supervising and fulfilling their administrative requirements. To this end, it is suggested that the Tribunals be made subject, to the supervisory jurisdiction of the High Courts within whose territorial jurisdiction they fall. We are, however, of the view that this may not be the best way of solving the problem. We do not think that our constitutional scheme requires that all adjudicatory bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens,....
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....bunals under one single nodal department, preferably the Legal Department. Since we have analysed the issue of the constitutional validity of section 5(6) of the Act at length, we may now pronounce our opinion on this aspect. Though the vires of the 'Provision was not in question in Dr. Mahabal Ram's case [1994] 2 SCC 401, we believe that the approach adopted in that case, the relevant portion of which has been extracted in the first part of this judgment, is correct since it harmoniously resolves the manner in which sections 5(2) and 5(6) can operate together. We wish to make it clear that where a question involving the interpretation of a statutory provision or rule in relation to the Constitution arises for the consideration of a single Member Bench of the Administrative Tribunal, the proviso to section 5(6) will automatically apply and the Chairman or the Member concerned shall refer the matter to a Bench consisting of at least two Members, one of whom must be a Judicial Member. This will ensure that questions involving the vires of a statutory provision or rule will never arise for adjudication before a single Member Bench or a Bench which does not consist of a judicial Membe....