Topic: L. Chandra Kumar vs Union Of India And Others
L. Chandra Kumar vs Union Of India And Others
Equivalent citations: AIR 1997 SC 1125, 1997 (1) BLJR 735, (1997) 1 CALLT 55 SC - Bench: A A I., M Punchhi, K Ramaswamy, S Bharucha, S S Ahmad, K Venkataswami, K Thomas – Date of Judgment: 18 March, 1997
Article 323-A and 323-B, both dealing with tribunals, were inserted by the 42nd Amendment. Clause 2(d) of Art.323-A and Clause 3(d) of 323-B provided for exclusion of the jurisdiction of the High Court under Art.226 and 227 and the Supreme Court under Art.32.The Supreme Court in this case held these provisions as unconstitutional because they deny judicial review which is basic feature of the Constitution. It held that the power of judicial review vested in the High court under Art.226 and right to move the Supreme Court under Art.32 is an integral and essential feature of the Constitution.
A.M. Ahmadi, C.J.
1. 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 broad issues:
(1) Whether the power conferred upon Parliament or the Stale Legislatures, as the case may be, by Sub-clause (d) of Clause (2) of Article 323A or by Sub-clause (d) of Clause (3) of Article 323B of the Constitution, totally exclude the jurisdiction of 'all courts', except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in Clause (1) of Article 323A or with regard to all or any of the matters specified in Clause (2) of Article 323B, runs counter to the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution?
(2) Whether the Tribunals, constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/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?
2. 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.
3. The present controversy has been referred to us by an order of a Division Bench of this Court, , which
concluded that the decision rendered by a five-Judge Constitution Bench of this Court in S.P. Sampath Kumar v. Union of India , needs to be comprehensively reconsidered. The order of the Division Bench, dated December 2, 1994, was rendered after it had considered the arguments in the first matter before us, C.A. No. 481 of 1989, where the challenge is to the validity of Section 5(6) of the Administrative Tribunals Act, 1985. After analysing the relevant constitutional provisions and the circumstances which led to the decision in Sampath Kumar's case, 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, the resulting situation warranted a "fresh look by a larger Bench over all the issues adjudicated by this Court in Sampath Kumar's case including the question whether the Tribunal can at all have an Administrative Member on its Bench, if it were to have the power of even deciding constitutional validity of a statute or (Article) 309 rule, as conceded in Chopra's case". 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 ; M.B. Majumdar v. Union of India ; Amuya Chandra Kalita v. Union of India.
; R.K. Jain v. Union of India  4 SCC 119 and Dr. Mahabal Ram v. Indian Council of Agricultural Research .
4. Before we record the contentions of the learned Counsel who appeared before us, we must set out the legal and historical background relevant to the present case.
5. Part XIVA of the Constitution was inserted through Section 46 of the Constitution (42nd Amendment) Act, 1976 with effect from March 1,1977. It comprises two provisions, Articles 323A and 323B, which have, for the sake of convenience, been fully extracted hereunder:
PART XIVA TRIBUNALS
323-A. Administrative tribunals.-- 323-B. Tribunals for other (1) Parliament may, by law, maters. -- (1) The appropriate provide for the adju dication or Legislature may, by law, provide trial by administrative Tribunals f or the adjuration or trial by of disputes and complaints with tribunals of any d isputes, respect to recruitment and complaints, or offences with conditions of s ervice of persons respect to all or any of the appointed to public services and matters specified in Clause (2) posts in connection with the with respect to whi ch such affairs of the Union or of any Legislature has power to make State or of any local or other laws. authority within the territory of India or under the c ontrol of the Government, of India or of any corporation owned or controlled by the Government. (2) A law made under Clause (1) (2) (2) The matters referred may -- to in Clause (1) are the following, namely:
(a) provide for the (a) levy, assessment, establishment, of an collection and ad ministrative tribunal for enforcement of any tax; the union and a separate admin istrative tribunal for each State or for two or more States; (b) specify the jurisdiction, (b) foreign exchange, import powers (including the and export across customs powers to punish for frontiers; contempt) and authori ty which may be exercised by each of the said tribunals; (c) provide for the pro cedure (c) industrial and labour (including provisions as to disputes; limitatio n and rules of evidence) to be followed by the said tribunals; (d)exclude the ju risdiction of all (d) land reforms by way of courts, except the jurisdiction acq uisition by the State of of the Supreme Court under any estate as defined in Art icle 136, with respect to Article 31A or of any the disputes or complaints right s therein or the referred to in Clause (1); extinguishment or modification of a ny such rights or by way of ceiling on agricultural land or in any other way; (e ) provide for the transfer to (e) ceiling on urban property; each such administr ative tribunal of any cases pending before any court or other authority immediat ely before the establishment of such tribunal as would have been within the juri sdiction of such tribunal if the causes of action on which such suits or proceed ings are based had arisen after such establishment; (f) repeal or amend any orde r (f) elections to either House made by the president of Parliament or the under Clause (3) of Article House or either House of 37ID; the Legislature of a State , but excluding the matters referred to in Article 329 and Article 329 A; (g) co ntain such supplemental, (g) production, procurement, incidental and supply and distribution of consequential provisions foodstuffs (including (including provis ions as to edible oilseeds and oils) fee) as Parliament may and such other goods as deem necessary for the President may, by effective functioning of, and publi c notification, declare for the speedy disposal of to be essential goods for cas es by, and the purpose of this article enforcement of the orders and control of prices of of, such tribunals. such goods; (3) The provisions of this Article (h) offences against laws with shall have effect respect to any of the notwithstand ing anything in matters specified in Sub- any other provision of this clauses (a ) to (g) and fees Constitution or in any other in respect of any of those law fo r the time being in matters; force. (i) any matter incidental to any of the matt ers specified in Sub-clauses (a) to (h). (3) A law made under Clause (1) may-- ( a) provide for the establishment of a hierarchy of tribunals; (b) specify the ju risdiction, powers (including the power to punish for contempt) and authority wh ich may be exercised by each of the said tribunals ; (c) provide for the procedu re (including provisions as to limitation and rules of evidence ) to be followed by the said tribunals ; (d) exclude the jurisdiction of all courts except the j urisdiction of the Supreme Court under Article 136 with respect to all or any of the matters falling within the jurisdiction of the said tribunals; (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 tr ibunal 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 es tablishment; (f) contain such supplemental, incidental and consequential provisi ons (including provisions as to fees) as the appropriate Legislature may deem ne cessary for the effective functioning of, and for the speedy disposal of cases b y, and the enforcement of the orders of, such tribunals. (4) The provisions of t his article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force. Explanation. - In this article, "appropriate legislature", in relation to any matter, means Parliament or, as the case may be, a State Legislature competent to make laws wi th respect to such matter in accordance with the provisions of Part XI.
6. We may now examine the manner in which these constitutional provisions have been sought to be implemented, the problems that have consequently arisen, and the manner in which Courts have sought to resolve them. Such an analysis will have to consider the working of the two provisions separately.
Article 323 A
7. In pursuance of the powder conferred upon it by Clause (1) of Article 323A of the Constitution, Parliament enacted the Administrative Tribunals Act, 1985 (Act 13 of 1985) [hereinafter referred 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."
8. 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 under Article 226 of the Constitution. Through an interim order dated October 31, 1985, reported as S.P. Sampath Kumar v. Union of India , this Court directed the carrying out of certain
measures with a view to ensuring the functioning of the Tribunal along constitutionally-sound principles. Pursuant to an undertaking given to this Court at the interim stage by the erstwhile Attorney General, An amending Act (Act 19 of 1986) was enacted to bring about the changes prescribed in the aforesaid interim order.
9. When Sampath Kumar's case 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 provision 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 not measure up to the requirements of an effective substitute and, to that end, suggested several amendments to the provisions governing the form and content of the Tribunal. The suggested amendments were given the force of law by an amending Act (Act 51 of 1987) after the conclusion of the case and the Act has since remained unaltered.
10. We may now analyse the scheme and the salient features of the Act as it stands at the present time, inclusive as it is of the changes suggested in Sampath Kumar's case. The Act contains 37 Sections which are housed in five Chapters. Chapter I ("Preliminary") contains three Sections; Section 3 is the definition clause.
11. Chapter II ("Establishment of Tribunals and Benches thereof) contains Sections 4 to 13. Section 4 empowers the Central 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:
Section 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 classes of cases as the Chairman may by general or special order specify:
Provided that if at any stage of the hearing of any such case or matter it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members the case or matter may be transferred by the chairman or, as the case may be, referred to him for transfer to such Bench as the Chairman may deem fit.
12. 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;
(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 India; or
(c) has, for a period of not less than three years, held office as a Judicial Member or an Administrative Member.
(3) A person shall not be qualified for appointment as a Judicial Member unless he--
(a) is, or has been, or is qualified to be, a Judge of a High Court; or
(b) has been a member of the Indian Legal Service and has held a post in Grade I of that Service for at least three years.
(3-A) A person shall not be qualified for appointment as an Administrative Member unless he--
(a) has, for at least two 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 India; or
(b) has, for at least three years, 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.
13. 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.
14. 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 years. Section 10 stipulates that the salaries, terms and conditions of all Members of the Tribunal are to be determined by the central Government; such terms are, however, not to be varied to the disadvantage of any Member after his appointment.
15. Chapter III ("Jurisdiction, powers and authority of Tribunals") consists of Sections 14 to 18. Sections 14, 15 and 16 deal with the jurisdiction, 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.
16. Chapter IV ("Procedure") comprises Section 19 to 27. Section 21 specifies strict limitation periods and does not vest the Tribunals under the Act with the power to condone delay.
17. 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 "exclusions of Jurisdiction" clause reads as follows:
28. Exclusion of Jurisdiction of courts.-- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, no court except--
(a) the Supreme Court; or
(b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force,
Shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters.
18. A facet which is of vital relevance to the controversy before us, and consequently needs to be emphasised, is that Section 28, when originally enacted, was in the express terms of Clause (2) (d) of Article 323A of the Constitution and the 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 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 Mishra, J. in Sampath Kumar's case (at para 14). Since the Court in Sampath Kumar's case 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.
19. Section 29 provides for the transfer to the Tribunals under the Act, of all service matters pending in every existing form 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 rules to implement the provisions of the Act and the matters specified in it. By virtue of Section 37, the rules made by the Central Government are required to be laid before Parliament and, in the case of rules made by State Governments, before the concerned State Legislature (s).
20. The Act and its provisions will be analysed in the course of this judgment. However, a preliminary 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 substitution role as opposed to - and this distinction is of crucial significance-a supplemental role with regard to the High Courts.
21. 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 1.11.1985, 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 (1.11.1989), Himachal Pradesh (1.9.1986), Karnataka (6.10.1986), Madhya Pradesh (2.8.1988), Maharashtra (8.7.1989), Orissa (14.7.1986), Tamil Nadu (12.12.1988) and west Bengal (16.1.1995).
22. We may now analyse the "post-Sam path Kumar cases" which find mention in the order of the referring Bench. In J.B. Chopra's case, a division Bench of this Court has occasion to consider one of the specific questions that has now arisen for our consideration, viz., whether the Central Administrative Tribunal constituted under the Act has the authority and the jurisdiction to strike down a rule framed by the President of India under the proviso to Article 309 of the Constitution as being violative of Articles 14 and 16(1) of the Constitution. When the matter came up before the Division Bench, the issue was still being considered by the Constitution Bench in Sampath Kumar's case. The Division Bench, therefore, deferred its judgment till the final pronouncement of the decision in Sampath Kumar's case. Thereafter, it analysed the Constitution Bench's decision to arrive at the conclusion that "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 question pertaining to the constitutional validity or otherwise of such laws as offending Article 14 and 16(1) of the Constitution."
23. An aspect which needs to be emphasised is that the Constitution Bench in Sampath Kumar's case 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. Chopras' case felt that this proposition would follow as a direct and logical consequence of the reasoning employed in Sampath Kumar's case.
24. In M.B. Majumdar's case, a Division Bench of this Court had to confront the contention, based on the premise that in Sampath Kumar's case this Court had equated the Tribunals established under the Act with High Courts, that the Members of the Central Administrative Tribunals must be paid the same salaries as were payable to Judges of the High Court. The Court, after analysing the text of Article 323A of the Constitution, the provisions of the Act, and the decision in Sampath Kumar's case, rejected the contention that the Tribunals were the equals of the High Courts in respect of their service conditions. The Court clarified that in Sampath Kumar's case, 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.
25. In Amulya Chandra's case, 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, to conclude that under the scheme of 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.
26. The same issue arose for consideration before another Bench of this Court in Dr. Mahabal Ram's case. The Court took note of the decision in Amulya Chandra's case and, since the vires of Sub-section (6) of Section 5 of the Act was not under challenge, held that Sub-sections (2) and (6) of Section 5 are to be harmoniously construed in the following manner (supra at p. 404):
..There is no doubt that what has been said in Sampath Kumar's case would require safeguarding the interest of litigants in the matter of disposal of their disputes in a judicious way. Where complex questions of law would be involved the dispute would require serious consideration and thorough examination. There would, however, be many cases before the Tribunal where very often no constitutional issues or even legal points would be 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 for interpretation of constitutional provisions are involved they should not be assigned to a Single Member. 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 (he 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-section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in Sub-section (2) and the exemption in Sub-section (6) are rationalised.
27. In R.K. Jain v. Union of India  4 SCC 119, a Division Bench of this Court consisting of three of us (Ahmadi, CJI, 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, J.B. Chopra and M.B. Majumdar to hold that the Tribunals created under Articles 323A and 323B could not be held to be substitutes of 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 inconvenient on account of the distances involved. It was suggested that an expert body like the Law Commission of India should study the feasibility of providing an appeal to a Bench of two Judges of the concerned High Court from the orders of such Tribunals and also analyse the working of the Tribunals since their establishment, the possibility of inducting members of the Bar to man such Tribunals etc. It was hoped that recommendations of such an expert body would be immediately adopted by the Government of India and remedial steps would be initiated to overcome the difficulties faced by the Tribunals, making them capable of dispensing effective, inexpensive and satisfactory justice.
28. In a separate but concurring judgment, Ahmadi, J.(as he then was) speaking for himself and Punchhi, J., endorsed the recommendations in the following words:
..(T)he 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 look-in 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 tribunals may be constituted or reconstituted with a view to ensuring greater independence. An intensive and extensive study needs to be undertaken by the Law Commission in regard to the Constitution of tribunals under various statutes with a view to ensuring their independence so that the public confidence in such tribunals may increase and the quality of their performance 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.
29. 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. 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 might have to be reviewed by a larger Bench, further progress on the study was halted.
30. 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 and Ors. v. State of A.P., 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 jurisdiction of the High Courts under Article 226 of the Constitution; additionally, Section 28 of the Act has also been held to be unconstitutional to the extent it divests the High Courts of jurisdiction under Article 226 in relation to service matters.
31. The Judgment of the Court, delivered by M.N. Rao, J. has in a elaborate manner, viewed the central issues before us against the backdrop of several landmark decisions delivered by Constitution Benches of this Court as also the leading authorities in the comparative constitutional law. The judgment has embarked on a wide-ranging quest, extending to the American, Australian and British jurisdictions, to ascertain the true import of the concepts of 'judicial power', 'judicial review' and other related aspects. The judgment has also analysed a contention based on Article 371D of the Constitution, but, since that aspect is not relevant to the main controversy before us, we shall avoid its discussion.
32. The Judgment of the Andhra Pradesh High Court has, after analyzing 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 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 impression "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 , Special Reference No. 1 of 1964,
 1 SCR 413; Indira Nehru Gandhi v. Raj Narain  (Supp) SCC 1; Minerva Mills Ltd. v. Union of India , Kihoto
Hollohan v. Zachillu and Ors.  Supp. 2 SCC 651 and certain other decisions, all of which have been extensively analysed and profusely quoted from.
33. Analysing the decision in Sampath Kumar's case against this back-drop, it is noted that the theory of alternative institutional mechanisms established in Sampath Kumar's case is in defiance of the proposition laid down in Kesvananda Bharati's case, Special reference case and Indira Gandhi's case, that the Constitutional Courts 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, 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 and it could not be said to be an authority on that aspect.
34. 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 holding that the sole remedy provided, that of an appeal under Article 136 to this Court, was not capable of being a real safeguard. It was also pointed out that even the saving of the jurisdiction of this Court under Article 32 of the Constitution would not help improve matters. It was, therefore, concluded that although judicial power can be vested in a Court or Tribunal, the power of judicial review of the High Court under Article 226 could not be excluded even by a constitutional Amendment.
35. This provision of the Constitution empowers Parliament or the State Legislatures, as the case may be, to enact laws providing for the adjudication or trial by Tribunals of disputes, complaints or offences with respect to a wide variety of matters which have been specified in the nine Sub-clause of Clause (2) of Article 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 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 matters falling within the jurisdiction of the Tribunals. The constitutional provision, therefore, invests Parliament of the State Legislatures, as the case may be, with powers to divest the traditional courts of a considerable portion of their judicial work.
36. 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 legislations enacted by the Legislatures of three States. The first of these was the West Bengal Taxation Tribunal which was set up in 1989 under the West Bengal Taxation Tribunal Act, 1987. Similarly, the Rajasthan Taxation Tribunal was set up in 1995 under the Rajasthan Taxation Tribunal Act, 1995. The State of Tamil Nadu has set up two Tribunals by utilising 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 1.11.1990 under the Tamil Nadu Land Reforms (Fixation of Ceiling of 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 22.12.1995 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.
37. 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. No. 1532-33 of 1993 arises 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 the west Bengal Taxation Tribunal. After examining the matter and hearing the arguments advanced in response by the State of West Bengal, the West Bengal Taxation Tribunal, by this order dated 9.10.1991, upheld the constitutional validity of the impugned provisions. Thereafter, the constitutional validity of the same provisions was challenged in a Writ Petition before the Calcutta High Court. During the proceedings, the State of West Bengal raised the preliminary objection that by virtue of Section 14 of the West Bengal Taxation Tribunal Act, 1987, which excluded the jurisdiction of the High Court in all matters within the jurisdiction of the Taxation Tribunal, the Calcutta High Court had no jurisdiction to entertain the writ petition. However, the High Court proceeded with the case and, by its judgment dated 25.11.1992, 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 form, each of which considered itself to be empowered to exercise jurisdiction.
38. 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' powers to issue writs under Article 226 of the Constitution and to exercise its powers of superintendence under Article 227 of the Constitution."
39. It is against these circumstances that we must now test the propositions put forth for our consideration.
Submissions of Counsel.
40. We have heard the submission 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 and to hold Article 323 A (2)(d) and Article 323 B (3)(d) of the Constitution to be unconstitutional to the extent they allow Tribunals created under the Act to exclusively exercise the jurisdiction vested in the High Courts under Articles 226 and 227 of the Constitution. On the other hand, Mr. Bhat, the learned Additional Solicitor General, 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.
41. 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, insofar 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, Amulya Chandra's case and Dr. Mahabal Ram's case. In Sampath Kumar's case, this Court had required a Bench of a Tribunal to ordinarily consist of a Judicial Member and an Administrative Member. Consequently, Section 5 (2) of the Act was accordingly amended; however, since Section 5(6) was not amended simultaneously, the import of the observations in Sampath Kumar's case can still be frustrated. Even if the theory of alternative institutional mechanisms adopted in Sampath Kumar's case, is presumed to be correct, Section 5(6) of the Act will have to be struck down as a single Member Bench of a Tribunal cannot be considered to be a substitute for the exercise of the power of a High Court under Article 226 of the Constitution; (ii) The impugned provisions of the Constitution, insofar as they exclude the jurisdiction of the Supreme Court and the High Courts under Articles 32 and of the Constitution, are 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 insofar 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 the Constitution. While the Tribunals constituted under Articles 323A and 323 B can be vested with the power of judicial review over administrative action, the power of judicial review of legislative action cannot be conferred upon them. This proposition flows from Kesavananda Bharati's case where it was held that under our constitutional scheme, only the constitutional courts have been vested with the power of judicial review of legislative action; (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 and 323B allow Parliament to pursue such a course in future and are therefore liable to be struck down; (iv) The decision in Sampath Kumar's case was founded on the hope that the Tribunals would be effective substitutes for the High Courts. This position is neither factually nor legally correct on account of the following differences 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 process 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 High Courts; (v) Under our constitutional scheme, every High Court has, by virtue of Articles 226 and 227 of the Constitution, the power to issue prerogative writs or orders to all authorities and instrumentalities of the State which function within its territorial jurisdiction. In such a situation, no authority or Tribunal located within the territorial jurisdiction of a High Court can disregard the law declared by it. The impugned constitutional provisions, insofar as they seek to divest the High Courts of their power of superintendence over all Tribunals and Courts situated within their territorial jurisdiction, violate the basic structure of the constitution, and (vi) In view of the afore-stated propositions, the decision in Sampath Kumar's case requires a comprehensive reconsideration.
42. Mr. Shanti Bhushan, appearing for the respondent in C.A. No. 1532-33/96, 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, 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 the Supreme Court. This was not correct approach as the constitutionality of a provision ought not to be judged only against the manner in which power is sought to be exercised under it. The correct test is to square the provision against the constitutional scheme and then pronounce upon its compatibility. The vice in Article 323A (2)(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, Fertiliser Corporation Kamgar Union v. Union of India and Delhi Judicial Service Association v. State of Gujarat highlight the importance accorded to Article 32 of the Constitution; (iv) The theory of alternative institutional mechanisms advocated in Sampath Kumar's case 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 confidence of the people. It is this which prompted the Framers of our Constitution to vest such constitutional jurisdiction in them. A Tribunal, being a new creation of the executive, would not be able to recreate a similar tradition and environment overnight. Consequently, the alternative mechanisms would not, in the absence of an atmosphere conducive to the building of traditions, be able to act as effective alternatives to High Courts for the exercise of constitutional Jurisdiction. In Pratibha Bonnerjea v. Union of India , this Court has analysed the special constitutional status of Judges of High Courts and explained how they are distinct from other tiers of the judiciary.