Holding

Sub‑clause (d) of Articles 323A(2) and 323B(3) and Section 28 of the Administrative Tribunals Act are unconstitutional to the extent they exclude High Court and Supreme Court jurisdiction, while Section 5(6) is valid if read with Section 5(2) and tribunals’ decisions are subject to High Court review.

Summary

The seven‑Judge Constitution Bench examined the constitutional validity of sub‑clause (d) of Article 323A and Article 323B, which sought to exclude the jurisdiction of all courts except the Supreme Court under Article 136, and Section 28 of the Administrative Tribunals Act, 1985, which attempted a similar exclusion of High Court jurisdiction under Articles 226/227. The Court held that these provisions are unconstitutional to the extent they oust the High Courts' writ jurisdiction and the Supreme Court's power under Article 32, which form part of the basic structure of the Constitution. It clarified that tribunals created under Articles 323A and 323B may test the constitutional validity of statutory provisions, but their decisions are subject to review by a Division Bench of the appropriate High Court. Section 5(6) of the Administrative Tribunals Act is upheld as valid when read harmoniously with Section 5(2), requiring a two‑member bench with a judicial member for questions of law or constitutional interpretation. The Court also directed that appeals from tribunal decisions will not lie directly before the Supreme Court under Article 136; instead, aggrieved parties must approach the High Court first, and the directions apply prospectively.

Issues considered

Whether sub‑clause (d) of Article 323A and Article 323B, which exclude the jurisdiction of all courts except the Supreme Court under Article 136, is constitutionally valid.
Whether Section 28 of the Administrative Tribunals Act, 1985, and similar exclusion clauses in other statutes, are constitutionally valid.
Whether tribunals created under Articles 323A and 323B can adjudicate on the constitutional validity of statutory provisions.
Whether Section 5(6) of the Administrative Tribunals Act, allowing a single‑member bench to decide constitutional questions, is unconstitutional.
What is the proper appellate route for decisions of administrative tribunals and whether they are subject to High Court writ jurisdiction.

Legislation cited

Administrative Tribunals Act, 1985s. 28, s. 3(t), s. 5(2), s. 5(6)

Subjects

judicial reviewbasic structure doctrineadministrative tribunalsArticle 323AArticle 323BArticle 32Article 226Section 28Section 5(6)High Court jurisdictionSupreme Court jurisdictionalternative institutional mechanismprospective overruling

Judgment

A L. CHANDRA KUMAR ETC. ETC.
v.
THE UNION OF INDIA AND ORS. ETC. ETC.

MARCH 18, 1997
B [AM. AHMADI, CTI., M.M. PUNCHHI, K. RAi\1ASWAMY, S.P.
BHARUCHA, S. SAGHIR AHMAD, K. VENKATASWAMI AND
K.T. THOMAS, JJ.]

Constitution of llldia, 1950.
c Articles 323A (2) (d) and 323B (3) (d)-Tribunals set up pursuallt to
Articles 323A and 323B-furisdiction of-Exclusion of jurisdiction of all
courts except that of Supreme Court under Article 136-Held, sub-Clause (d)
of clause (2) ofArticle 323A and sub-Clause (d) of clause (3) ofArticle 323B
are unconstitutional to the extent they exclude the jwisdiction of High Courts
D under Anicle 2261227 and that of Supreme Court under A1ticle 32.
Articles 32, 136 and 226/227-Judicial review-Held, power of judicial
review vested in Supreme Court and High Court is an integral and essential
f ea tu re of the Constitution constituting part of its inviolable basic struc-
ture-Tribunals created pursuant to Articles 323A and 323B cannot exercise
E power of judicial review of legislative action to the exclusion of High Courts
and Supreme Court-They cannot act as substitutes for High Cowts and ~
Supreme Court-However, they are competent to test the vires of statutory
provisions except the legislation which creates the particular Tribunal and they
may pe.•fonn a supplemental role in this respect: but their decisio11S will be
F subject to High Courts' writ jurisdiction under Article 226/227 before a
Division Bench-No appeal will directly lie before Supreme Court under
A1ticle 136-171ese directions will apply prospectivel)--Theory of altemative
institutional mechanism, reviewed.

Doctrine o.fprospective ovenuling-Applicabi/ity of.
G
Administrative Tribunals Act, 1985:

ss.3(t), 5(2), 5(6)-Tribunals-<:omposition of-Held, s.5(6) is valid
and constitutiona~Sub-Sections (2) and (6) of s.5 to be hannoniously
constmed-Matters involving intepretation of statutOI)' provisions or rules
H fiwned under Altic/es 309 of the Constitution shall be referred to a Bench
1186
L.CHANDRAKR.v. u.o.r. 1187
! i
consisting of at least two Members one of whom must be a judicial Member. 'A
S. 28-Exclusion of jurisdictio11 of courts-Held, s. 28 a11d the "a-
clusio11 of jwisdiction" clauses in all other legislations enacted under aegis of
A1ticles 323A a11d 323B of the Consiitution, to the v.tent they exclude
jurisdiction of High Courts and Supreme Cowt under Articles 226/227 a11d
32 of the Constitution, are zmconstitutional-Rajasthan Taxation T1ibz111al B
Act, 1995-s. 14: Tamil Nadu Taxation Special Tribu11al Act. 1992-S. 14:
Tamil Nadu Land Reforms (Fixatio11 of Ceiling on Land) Amendment Act,
1983 as amended by Tamil Nadu Land Refonns (Fixation of Ceiling on
Land) Amendment Act, 1986-S. 77 G: and West Bengal Taxation Tlibwzal
Act. 1987-s. 14. c
Administrative Law:

Judicial Review-Tlibunals set up under Articles 323A and 323B oflhe
Co11stitutio11-Er:ercise of power by them under A1ticles 226/227. in respective
areas of law, to the exclusion of High Court~Held, unconstitution- D
al-Tribunals cannot act as substitutes of High Court~17ieir function in this
respect is only supplemental-171eir decisions will be subject to sc111tiny before
a Division Bench of High Court-Direction given to improve functioning of
1 Tribunals.
E
Articles 323A and 323 B were inserted in the Constitution by the 42nd
Amendment with effect from 1.3.1977. Under Article 323A Parliament was
empowered to make law for setting up Administrative Tribunals to deal
exclusively with service matters. Under Article 3238 the Parliament/the
state Legislatures were empowered to enact laws providing for adjudication
or trial by Tribunals of disputes, complaints of offences with respect to F
matter enumerated in clause (2) of Article 3238. Sub-clause (d) of clause
(2) of Article 323A and sub-clause (d) of clause (3) of Article 3238 provided
for exclusion of jurisdiction of all courts except the jurisdiction of Supreme
Court under Article 136 of the Constitution.

The Parliament, in pursuance of the power conferred upon· it by
G
Article 323A (1) of the Constitution, enacted the Administrative Tribunals
Act, 1985, for setting up Administrative Tribunals with a view to reduce the
burden of various courts and to provide to the persons covered by the
Administrative Tribunals speedy relief in respect of their grievances. S.28
of the Act excluded the jurisdiction of all courts except that of the Supreme H
1188 SUPREME COURT REPORTS [1997) 2 S.C.R.

A Court under Article 136 of the Constitution.
A large number of writ petitions were filed before various High Court'
and this Court challenging the validity of Article 323A of the Constitution
and the provisions of the Administrative Tribunals Act as the same ex-
cluded jurisdiction of High Courts and the Supreme Court under Article
B 226/227 and 32 of the Constitution. The matter ultimately came to be heard
by a 5 Judge Constitution Bench of this Court. (S.P. Sampath Kumar v.
Union of India) [1987] 1 SCC 124. During the pendency of the case, s.28 of
the Act was amended interalia to save the jurisdiction of this Court under
Article 32 of the Constitution. The Court took the view that most of the
c grounds of challenge including challenge to the constitutional. validity of
Article 323A did not survive, and confined the decision only to the constitu-
tional validity of the provisions of the Act. It held that though judicial
review was a. basic feature of the Constitution, the vesting of the power of
judicial review in the alternative institutional mechanism, after taking it
away from the High Courts would not do violence to the basic structure so
D long as it was ensured that the alternative mechanism was an effective and
real substitute for the High Courts. The Court found that the Act did not
measure up to the requirements of an effective substitute and suggested
further amendments to the Act.

The provisions of the Administrative Tribunals Act, 1985, as it stood
E
amended after the decision of this Court in Sampath Kumar and of other
similar statutes enacted in exercise of powers under Articles 323A and 323B
of the Constitution for setting up the Tribunals relating to the subjects
enumerated therein were analysed in subsequent decisions of this Court
and the High Courts. These decisions involved issues regarding jurisdic-
F tion, composition and functioning of the Tribunals and gave rise to the
present appeals and writ petitions filed before this Court.

In the case giving rise to Civil Appeal No. 481of1989 validity of s.5(6)
of the Administrative Tribunals Act, 1985 was involved whereas Civil Ap-
peal No.169 of 1994 was filed against the judgment of a Full Bench of the
G Andhra Pradesh High Court declaring Article 323A (2)(d) of the Constitu-
tion to iJe unconstitutional to the extent it empowered the Parliament to
exclude the jurisdiction of the High Courts under Article 226 of the Con-
stitution. Section 28 of the Administrative Tribunals Act, 1985 was also held
to be unconstitutional to the extent it divested the High Courts of jurisdic-
H tion under Article 226 of the Constitution in relation to service matters.
L. CHANDRA KR. v. U.0.1. 1189

Civil Appeals No. 1532·33 of 1993 were filed against the Judgment of the A
Calcutta High Court declaring s. 14 of the West Bengal Taxation Tribunal
Act, 1987 to be unconstitutional. Special Leave petition No. 17768 of 1991
was filed against the judgment of the Madras High Court holding that the
Tamil Nadu Land Reforms Special Appellate Tribunal set up under the
Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Amendment Act,
1985 would not affect the powers of the Madras High Court to issue writs. B
It was held that the Legislature of the State had no power "to infringe upon
the High Courts" power to issue writs under Articles 226 of the Constitution
and to exercise its power of su1ierintendence under Article 227 of the Con-
stitution. The other cases also involved similar issues. Ultimately a
Division Bench of this Court felt that the decision in Sampath Jrumar v. c
·Union of India [1987] 1 SCC 124 required to be comprehensively recon-
sidered and the matter be referred to a larger Bench. The matter was thus
referred to a Bench of seven Judges.

It was contended for the private parties in the civil appeals and the D
writ petitions that the power of judicial review vested in the Supreme Court
under Article 32 and. in the High Courts under Article 226/227 of the
Constitution being part of the basic structure of the Constitution, the
provisions of Articles 323A (2)(d) and 323B (3)(d) permitting the Parlia·
ment/State Legislature to enact a law to exclude the jurisdiction of this
Court and the High Courts under Article 32 and 226/227 respectively were E
unconstitutional; that sub-section (6) of s'.5 of the Administrative
Tribunals Act in so far as it allowed a Single Member Bench of a Tribunal
to test the constitutional validity of a statutory provision was unconstitu-
tional; that s.28 of the. Administrative Tribunals Act and similar other
provisions in other enactments passed in exercise of power under Articles
323A and 323B of the Constitution divesting the High Courts of their
F
power under Article 226 of the Constitution were unconstitutional, and
that the Tribunals being deprived of constitutional safeguards for ensur-
ing their independence, were incapable of being effective substitutes for the '
High Courts.
G
.For the Union of India and the respective State Governments it was
contended that jurisdiction of High Courts was sought to be removed by
creating alternative institutional mechanism, but, in view of the decisions
of this Court, jurisdiction of this Court was indisputedly a part of the basic
structure of the Constitution and Parliament may be deemed to have been H
1190 SUPREME COURT REPORTS [l997] 2S.C.R. -'1'.

A aware of such a position and it may be held that jurisdiction under Article
32 was not intended to be affected. It was alternatively contended that
Articles 323A and 3238 do not seek tu exclude the supervisory jurisdiction
of the High Courts over all Tribunals situated within their territorial
jurisdiction. It was further submitted that though the Administrative
Tribunals have not lived upto expectations, keeping in view the massive
B arrears and enormous increase in the volume of work. in the High Courts,
the striking down of the impugned constitutional provisions would instead
of remedying the problem, contribute to its worsening and, therefore, the
Union of India and the States concerned be allowed to further amend the
relevant provisions so as to ensure that the Tribunals become effective
C alternative fora.
Disposing of the matters, this Court

HELD: 1.1 Sub-clause (d) of Clause (2) Article 323A and sub-clause
(d) of Clause (3) Article 3238 of the Constitution, to the extent they exclude
D the jurisdiction of the High Courts and the Supreme Court under Articles
226/227 and 32 of the Constitution, are unconstitutional. [1250-A]

Sakinala Had11ath & ors. v. State of Andhra Pradesh & Ors., (1993) 2
An. W. R. 484-approved.

E 1.2 ·The power of judicial review over legislative action vested in the
High Courts under Article 226 and in this Court under Article 32 of the
Constitution is an integral and essential feature of the Constitution,
constituting part of its inviolable basic structure. Ordinarily, therefore, the
power of High Courts and the Supreme Court to test the constitutional
F validity of legislations can never be ousted or excluded. [1237-D-E]

S.P. Sampath kumar v. Union of India, [1987] 1 SCC 124, overruled.

Kesavananda Bharati v. State of Kerala, [1973] 4 SCC 225; Fertiliser .__
Corporation Kamgar Unio11 v. U11io11 of India, [1981] 1 SCC 568 and
G Pratibha Bonnerjea v. Union of India, [1995] 6 SCC 765, relied on.
Special Reference No. I of 1964, [1965] 1 SCR 413; Indira Nehrn
Gandhi v. Raj Narain, [1975] Supp. SCC 1; Minerva Mills Ltd. v. U11ion of
I11dia, [1980] 3 SCC 625; Kilwto Hallahan v. Zachillu and Others, [1992]
Supp. 2 SCC 651; Delhi Judicial Service Association v. State of Gujarat,
H [1991] 4 SCC 406; Bidi supply Co. v. The Union of India & Ors., [1956] SCR
·-
L. CHANDRA KR. v. u.o.r. 1191

267; State of Madras v. V.G. Row, [1952) SCR 597 and Kihoto Holloha11 v. A
Zachillu & Ors., [1992) 1 SCR 686, referred to.

Marbury v. Madison, 1 Cranch 137 (1803), referred to.

National Mugal Insurance Company of the District of Columbia v.
Tidewater Transfer Company, 93 L. Ed. 1156-337 US 582, 1710mas S. William B
v. United States, 77 L.Ed. 1372-289 US 553, Cooper v.Aaron 3 L.Ed. 2d 5-358
US 1, Northern Pipeline Constmction Company v. Marathon Pipeline Com-
pany and United States, 73 L.Ed 2d 59-458 US 50, cited.

Constituent Assembly Debates-Vol. Vll, p. 953, referred to.
c
Henry J. Abraham, The Judicial Process, 4th Edn., Oxford University
Press (1980) p.296; 171e Indian Constitution: Comer-stone of a Nation-by
Granville Austen, Oxford University Press 1972, referred to.

1.3 The power vested in the High Court to exercise judicial superin- D
tendence over the decisions of all Courts and Tribunals within their respec-
tive 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 equal-
ly to be avoided. [1237-FJ
E
1.4 Our Constitution ensures that the judidary would be capable of
effectively discharging its wide powers of judicial review. While the Con-

- stitution confers the power to strike down laws upon the High Courts and
the Supreme Court, it also contains elaborate provisions dealing with the
tenure, salaries, allowances, retirement age of Judges as well ;is the
mechanism for selecting Judges to the Superior Courts. The inclusion of F
such elaborate provisions appears to have been occasioned by the belief

- that, armed by such provisions, the superior courts would be insulated
from any executive or legislative attempts to interfere with the making of
their decisions. [1236-F-G; 1237-A]

1.5 The constitutional safeguards which ensure the independence of
G
the Judges of the superior judiciary, are not available to the Judges of the
subordinate judiciary or to those who man Tribunals created by ordinary
legislations. Consequently, Judges of the latter category can never be con-
sidered full and effective substitutes for the superior judiciary in discharg-
ing the function of constitutional interpretation. [1237-D] H
-1
1192 SUPREME COURT REPORTS (1997) 2 S.C.R.
'
A S.P Sampath kumar v. Union of India, [1987] 1 SCC U4 and J.B.
Chopra v. Union of India, [1987] 1 SCC 422, overruled.

R.K Jain v. Union of India, [1993] 4 SCC 119, upheld.

M.B. Majundar v. Union of India, [1990] 4 SCC 501, referred to.
B
2.1 Section 28 of the Administrative Tribunals Act,1985 and the "ex-
clusion of jurisdiction" clauses in all other legislations enacted under the aegis
of Articles 323A aml 323B of the Constitution, to the extent they exclude the
jurisdiction of the High Courts and the Supreme Court under Articles 226/227
and 32 of the Constitution, are unconstitutional. [1250-A-B]
c
Sakinala Harinath & Ors. v. State of Andhra Pradesh & Ors., (1993)2
An.W. R. 484, approved.

S.P. Sampath kumar v. Union of India, [1987] 1 SCC 124, overruled.
D 2.2 Section 5(6) of the Administrative Tribunals Act is valid and
constitutional. Sub-section (2) and (6) of s.5 are to be harmoniously con-
strued, 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
E 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

F
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 Member. So construed, Section 5(6) will no longer be
susceptible to charges of unconstitutionality. [1250E; 1249-E-G]
-
Dr. Mahabal Ram v. Indian Council ofAgricultural Research, [1994] 2
SCC 401 and Anwlya Chandra Kalita v. Union of India, [1991] 1 SCC 181,
upheld.
-
G 3.1 The Tribunals created under Articles 323A and 323 B of the
Constitution are competent to hear matters wherein the vires of statutory
provisions are questioned, and may perform a supplemental role in dis-
charging the powers conferred by Articles 226/227 and 32 of the Constitu-
tion. However, in discharging this duty, they cannot act as substitutes for
H the High Courts and the Supreme Court which have, under our constitu-
L. CHANDRA KR. v. U.O.l. 1193

tional set-up, been specifically entrusted with such--an obligation. Their A
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 respec·
tive High Courts. The Tribunals will consequently also have the power to
test vires of subordinate legislations and rules.
[1246-G; 1250-C; 1246-G-H;; 1247-A]
B
3.2 It is important to emphasise that though the subordinate
judiciary or Tribunals created under ordinary legislations cannot exercise
the power of judicial review oflegislative 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 con· c
stitutional scheme becomes evident from clause (3) of Articles 32 of the
Constitution. [1237-G-H; 1238-A]

3.3 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 wi~~ be
subject to the jurisdiction of the High Courts under Articles 226/227 of the
constitution before a Division Bench of the High Court within whose ter-
ritorial jurisdiction the Tribunal concerned. falls will serve two purposes.
D

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 E
frivolous claims are filtered out through the process of adjudication in the
Tribunal. The lligh Court will also have the benefit of a reasoned decision
on merits which will be of use to it in finally deciding the matter. [1245-E-G]

4.1 The Tribunals will, however, continue to act as the only courts of
first instance in respect of the areas oflaw for which they have been constituted. F
It will not be open for litigants to directly approach the High Courts even in
cases where they question the vires of statutory legislations (except, where
the legislation which creates the particular Tribunal is challenged) by
overlooking the jurisdiction of the concerned Tribunal. [1247-C-D]

4.2 The Tribunals shall. not entertain any question regarding the vires
G
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 H
~
1194 SUPREME COURT REPORTS [1997] 2 S.C.R.

A statutes, will also be subject to scrutiny before a Di~ision Bench of their
respective High Courts. [1247-A-C]

5.1 All decisions of Tribunals, whether created pursuant to Article
323A or Article 323B of the Constitution, will be subject to the High Court's
writ jurisdiction under Articles 226/227 of the ConstitUtion, before a
B Division Bench of the High Court within whose territorial jurisdiction the
particular Tribunal falls. [1246-C-D]

5.2 No appeal from the decision of a Tribunal will directly lie before
the Supreme Court under Article 136 of the Constitution; but instead, the
aggrieved. party will be entitled to move the High Court under Articles
c 226/227 of the Constitution and from the decision of the Division Bench of
the High Court the aggrieved party could move this Court under Article
136 of the Constitution. [1246-E-F]

5.3 The Directions issued in respect af making the decisions of
D Tribunals amenable to scrutiny before a Division Bench of the.respective
lfigh Courts will, however, come into effect prospectively i.e. will apply to
decisions rendered hereafter. To maintain the sanctity of judicial proceed-
ings, the doctrine of prospective ever-ruling is invoked so as not to disturb
-
the procedure in relation to decisions already rendered. [1247-D-E]

E 6.1 Though the various Tribunals have not performed upto expecta-
tions, to draw an inference that their unsatisfactory performance points to
their being founded on a fundamentally unsound principle would not be
correct. The reasons for which the Tribunals were constituted have become
even more pronounced. Our constitutional scheme permits the setting up
of such Tribunals. However, drastic measures may have to be resorted to
in order to elevate their standards to ensure that they stand upto constitu-
tional scrutiny in the discharge of the power of judicial review conferred
upon them. [1244-G-H; 1245-A-B]

KK. Dutta v. Union of India, [1980] 4 SCC 38, referred to.
G 6.2 Setting-up of the Tribunals is founded on the premise that
specialist bodies comprising both trained administrators and those with
judicial experience would, by virtue of their specialised knowledge1 be better
equipped to dispense speedy and efficient. justice. It was expected that a
judicious mix of judicial members and those with grass-root experience
H would best serve this purpose. To hold that the Tribunal should consist
L CHANDRA KR. v. U.0.1. 1195

only of Jndicial members would attack the primary basis of the theory A
pursuant to which they have been constituted. Since the Selection Commit-
tee is now headed by a Judge of the Supreme Court, nominated by the Chief
Justice of India, the Committee would take care to ensure that administra-
tive members are chosen from amongst those who have some backgronnd
to deal with such cases. [1248-A-C]
B
7. Our constitutional scheme does not require that all adjudicatory
bodies which fall within t.he 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, then adding to their supervisory
functions cannot, in any manner, be of assistance to them. The situation C
at present is that different Tribunals constituted under different enact-
ments are administered by different Administrative departments of the
Central and the State Governments. The Union of India should initiate
action to bring all these Tribunals under one single nodal department
preferably the legal department. Appointments to Tribunals and the su-
pervision of their administrative function need to be considered in detail. D
The comments of expert bodies like the law Commission of India and the
Malimath Committee should be taken into consideration and it should be
ensured that the independence of members of all such Tribunals is main-
tained. [1248-E-H, 1249-C-E]
E
Report of the High Court Arrears Committee 1949; Law Commission
of India 14th Report on Reform of Judicial Administration (1958);'LCI,
27th Report on Code of Civil Procedure, 1908 (1964); LCI 41st Report on
Code of Criminal Procedure, 1898 (1969); LCI, 54th Report of Code of
Civil Procedure, 1908 (1973); LCI, 57th Report on Structure and Jurisdic-
tion of the Higher Judiciary (1974); Report of High Court Arrears Com- F
mittee, 1972; LCI, 79th Report on Delay and Arrears in High Courts and

-- other Appellate Courts (1979); LCI, 99th Report on Oral Arguments and
Written Arguments in the Higher Courts (1984); Satish Chandra's Com-
mittee Report 1986; LCI, 124th Report on the High Court Arrears-A Fresh
Look (1988) and Report of the Arrears Committee (1989-90), cited.
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 481 of
1980 Etc.

From the Judgment and Order dated 2.11.88 of the Madras High
Court in W.P. No. 8673 of 1988. H
1196 SUPREME COURT REPORTS (1997] 2 S.C.R.

A V.R. Reddy, K.N. Bhat and Altaf Ahmad, Additional Solicitor
Generals, 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, AK. Ganguli, S. Ramachandra Rao, U.N. Bachawat,
Kapil Sibal, Sr. Advs., S.R. Bhat, N.R. Nath, L.M. Bhat, Hetu Arora,
V.Balachandran, G.S. Chatterjee, S. Pal, Raja Chatterjee, R.K. Gupta, H.P.
B
Sharma, Rajesh, AT. Patra, S.Srivastava, M.A. Krishnamoorthy, J.B. Rani,
P. Murugan, G.S.Chatterjee, Raja Chatterjee, Ms.Aruna Mukherjee,
S.Rizvi, D. Krishna, K.K. Saha, J.R. Das, Suman Khaitan, Darshan Singh,
Rana Mukherjee, Goodwill Indeevar, B.K. Ghosh, S. Mukherjee, Bijon
Ghosh, T. Anil Kumar, D.Mahesh Babu, A. Balaji, Kumar J.Bey, Jayant
c Bhushan, Darshan Singh, Suman J. Khatian, (Kiran K. Shah)- In Person
No. 2); N.N Goswamy, Mrs. Anil Katiyar, Ms. A. Subhashini, A.D.N. Rao, .
Wasim A. Qadri, Dileep Tandon, S. Manda!, Manish Mishra, P. Mahale,
K.K. Saha, Dayan Krishnan, J.R. Das, D. Ramakrishna Reddy, Mrs, D.
Bharathi Reddy, S.K. Mehta, Dhruv Mehta, Fazlin Anam, Ms. Monika
---
D Jairath, M.P. Raju, Manmohan, T.U. Rajan, L.J.Vadak~ra, Rathin Das, S.
Murlidhar, Rana, Ms. Sucharita Mukherjee, (Pravir Choudhary, K.K.
. Mani, Ms. Rani Chhabra, T.V.S.N. Chari, R.K. Mehta,) Sinha Das & Co.,
Ms. Lily Thomas, Anip Sachthey, Ms. Mridula Ray Bhardwaj, A. Bhat-

-
tacharjee, for the appearing parties.

E The Judgment of the Court was delivered by

AH!'vlADI, CJI. 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
F 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 considera-
tion of the following broad issues:

(1) Whether the power conferred upon Parliament or the State
G 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 jurisdic-
tion of 'all courts', except that of the Supreme Court under
Article 136, in respect of disputes and complaints referred to
H in clause (1) of Article 323A or with regard to all or any of
, L. CHANDRA KR. v. U.0.1. [AHMADI, C.J.] 1197

the matters specified in clause (2) of Article 323B, runs
counter to the power of judicial review conferred on the High
A

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 com- B
petence 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 c
discharging the power of judicial review? If not, what are the
changes required to make them conform to their founding
objectives?

We shall confine ourselves to the larger issues raised in this batch of
matters without adverting to the specific facts of each of the matters; we D
shall, however, sekctively 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 E
involved in each of the individual cases.

The present controversy has been referred to us by an order of a
Division Bench of this Court, reported in [1995] 1 SCC 400, which con-
cluded that the decision rendered by a five-Judge Constitution Bench of
this Court in S.P. Sampath Kumar V. Union of llldia, (1987] 1 sec 124,
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 G
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 Ad- H
1198 SUPREME COURT REPORTS (1997) 2 S.C.R.

A ministrative Member on its Bench, if it were to have the power of even
deciding constitutional validity of a statute or (Article) 309 rule, as con-
ceded 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, (1987)1 SCC 422; M.B. Majumdar v. Union of
India, (1990) 4 SCC 501; Amuya Chandra Kalila v. Union of India~ (1991]
B 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 the learned counsel who ap-
peared before us, we must set out the legal and historical background
relevant to the present case.
c
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 :
D PART XIVA
TRIBUNALS

323-A. Administrative tribunals. -- 323-B. Tribunals for other
(1) Parliament may, by law, maters. -- (1) The appropriate
provide for the adjudication or Legislature may, by law, provide
E
trial by administrative Tribunals for the adjucation or trial by
of disputes and complaints with tribunals of any disputes,
respect to recruitment and complaints, or offences with
conditions of service of persons respect to all or any of the
appointed to public services and matters specified in clause (2}
F posts in connection with the with respect to which 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 control of the
Government. of India or of any
G
corporation owned or controlled
by the Government.
(2) A law made under clause (1) (2) (2) The mattters referred
may -- to in clause (1) are the
following, namely :
H
L CHANDRA KR. v. U.0.1. [AI-I~lADI, C.J.) 1199

(a) provide for the (a) levy, assessment, A
establishment, of an collection and
administrative tribunal for enforcement of any tax;
" , the union and a separate
administrative tribunal for
each State or for two or
B
more States;
(b) specifiy the jurisdiction, (b) foreign exchange, import
powers (including the and export across customs
powers to punish for frontiers;
contempt) and authority
which may be exercised by c
each of the said tribunals;
(c) provide for the procedure (c) industrial and labour
(including provisions as to disputes;
limitation and rules of
evidence) to be followed by D
the said tribunals;
(d) exclude the jurisdiction of all (d) land reforms by way of
courts, except the jurisdiction acquisition by the State of
of the Supreme Coillt under any estate as defined in
Article 136, with respect to Article 31A or of any E
the disputes or complaints rights therein or the
referred to in clause (I); extinguishment or
modification of any such
rights or by way of ceiling
on agricultural land or in
any other way;
F
(e) provide for the transfer to (e) ceiling on urban property;
each such administrative
tribunal of any cases
pending before any court or
other authority immediately G
before the establishment of
such tribunal as would. have
been within the jur~sdiction
of such tribunal if the causes
H
1200 SUPREME COURT REPORTS [1997] 2 S.C.R.

A of action on which such
suits or proceedings are
based had arisen after such
establishment;
(t) repeal or amend any order (t) elections to either House
B made by the president of Parliament or the
under clause (3) of Article House or either House of
3710; the Legislature of a State,
but excluding the matters
referred to in Article 329
and Article 329 A;
c (g) contain such supplemental, (g) production, procurement,
incidental and supply and distribution of
consequential provisions foodstuffs (including
(including provisions as to edible oilseeds and oils)
fee) as Parliament may and such other goods as
D deem necessary for the the President may, by
effective functioning of, and public notification, declare
for the speedy disposal of to be essential goods for
cases by, and the the purpose of this article
enforcement of the orders and control of prices of
E of, such tribunals. such goods;
(3) The provisions ofthis article (h) offences against laws with
shall have effect respect to any of the
notwithstanding 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
F matters;
law for the time being in
force.
(i) any matter incidental to
any of the matters
specified in sub-clauses
G (a) to (h).
(3) A law made under clause
(1) may --

H
L. CHANDRA KR. v. U.O.I. [AHMADI, C.J.] 1201

(a) provide for the A
establishment of a
hierarchy of tribunals;
(b) specify the jurisdiction,
powers (including the
power to punish for B
contempt) and authority
which may be exercised by
each of the said tribunals ;
(c) provide for the procedure
(including provisions as to
limitation and rules of
c
evidence ) to be followed
by the said tribunals ;
(d) exclude the jurisdiction of ·
all courts except the
jurisdiction of the Supreme
D
Court under Article 136
with respect to all or any of
the matters failing .within
the jurisdiction of the said
tribunals; . E
(e) provide for. the transfer to
each such tribunal of any
cases pending before any
court or any other
authority immediately F
before the establishment
of such tribunal as would
have been within the
jurisdiction of such
tribunal if the causes of
action on which such suits G
or proceedings are based
had arisen after such
establishment;

H
1202 SUPREME COURTREPORTS (1997) 2 S.C.R.

A (t) contain such
supplemental, incidental
and consequential provis-
ions (including provisions
as to fees) as the approp-
riate Legislature may
B .,
deem necessary for the
effective functioning of,
and for the speedy
disposal of cases by, 'and
the enforcement of the
c orders of, such tribunals.
(4) The provisions of this article
shall have effect
notwithstanding anything in any
--
other provision of this
D Constitution or in any other law
for the time being in force.

Explanation. -- In this article,
"appropriate legislature'', in
relation to any matter, means
E Parliament or, as the case may
be, a State Legislature
competent to make laws with

F
respect to such matter in
accorpance with the provisions
of Part XI.
-
(Emphasis added)
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
G
resolve them. Such an analysis will have to consider the working of the two
provisions separately.

A1ticle 323 A
''
H In pursuance of the pow~r conferred upon it by clause (1) of Article
L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1203

323A of the Constitution, Parliament enacted the Administrative Tribunals A
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 Constitutiqn 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 Ad-
B
ministrative 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 e>..lJeditiously but would
also provide to the persons covered by the Administrative Tribunals speedy
relief in respect of their grievances."
c
Pursuant to the provisions of the Act, the Central Administrative
Tribunal, with five Benches, was established on November 1,1985. How-
ever, 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 D
provisions of the Act; the principal violation complai.ned of being the
exclusion of the jurisdiction of this Court under Article 32 of the Constitu-
tion 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. Sam-
path Kumar v. Union of b1dia, (1985] 4 SCC 458, this Court directed the
carrying out of certain measures with a view to ensuring the functioning of E
the Tribunal along constitutionally-sound principles. Pursuant to an under-
taking 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.
F
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 G
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 H
1204 SUPREME COURT REPORTS [1997) 2 S.C.R.

A institutional mechanisms as its foundation, the Court proceeded to analyse
the provisions of the Act in order to ascertain whether they passed con-
stitutional muster. The Court came to the conclusion that the Act, as it
stood al 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 amend-
B ments 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.

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
c 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.

Chapter II ("Establishment of Tribunals and Benches thereof') con-
tains Sections 4 to 13. Section 4 empowers the Central Government to
D establish: (1) a Central Administrative Tribunal with Benches at separate
places; (2) aµ 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
E
necessary by the appropriate Government. Sub-section (2) of Section 5
requires every Bench to ordinarily consist of one Judicial Member and one
Administrative :fy1 ember. Sub-section (6) of Section 5, which enables the
Tribunal to function through Single Member Benches is the focus of some
controversy, as \vill subsequently emerge, and is fully extracted as under :
F
"S: 5(6) - Nothwithstauding 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
G 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
H or matter is of such a nature that it ought to be heard by a Bench
L. CHANDRA KR. v. V.O.I. [AHMADI, CJ.] 1205

consisting of two M_embers the case or matter may be transferred A
by the chairman or, as the case may be, referred to him for transfer
to such Bench as the Chairman may deem fit."

Section 6 deals with the qualifications of the personnel of the
Tribunal. Since the first few sub-sections of Section 6 are n::quired to be
considered subsequently, they may be reproduced hereunder: B
"6. Qualifications for appointment of Chainnan, Vice- Chainnan or
other Members. -

(1) A person shall not be qualified for appointment as the Chair-
man unless he-- c
(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;

(tj D
(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 E

(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
F
(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 G
(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-- H
~

'
1206 SUPREME COURT REPORTS {1997]2S.c.µ.
A (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.

B (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 sca!e of pay
c 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
D
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 Mem-
E
bers 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 con-
cerned Governor(s). Sub-section (7) stipulates that the Chief Justice of
F 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
G 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 tp be determined by the central Government; such
terms are, however, not to be varied to the disadvantage of any Member
H after his appointment.

,r
L CHANDRA KR v. U.O.l. [AHMADI, CJ.) 1207

Chapter III ("Jurisdiction, powers and authority of Tribunals") con- A
sists 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 respec-
tively. These provisions make it clear that except for the jurisdiction of this
Court, the Tribunals under the Act will possess the jurisdiction and powers
B
of every other Court in the country in respect of all service-related matters.
Section 17 provides that the Tribunals under the Act will have the same
powers in respect of contempt as are enjoyed by the High Courts.

Chapter IV ("Procedure") comprises Section 19 to 27. Section 21
specifies strict limitation periods and does not vest the Tribunals under the c
Act with the power to condone delay.

Chapter V ("Miscellaneous"), the final Chapter of the Act, compris-
ing Sections 28 to 37, vests the Tribunals under the Act wjth ancillary
powers to aid them in the effective adjudication of disputes. Section 28, the
"exclusions of Jurisdiction" clause reads as follows: D
"28. Exclusion of Jwisdiction of courts.--On and from the date from
which any jurisdiction, powers and authority bec0mes 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 E
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 F
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."
G
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, H
1208 SUPREME COURT REPORTS [1997) 2S.C.R.

A 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 lhe 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
B 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,
C of all service matters pending in every existing fora before their estab-
lishment. 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
D 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).

The Act and its provisions will be analysed in the course of this
E 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 substitutional role as opposed to - and this
F distinction is of crucial significance-a supplemental role with regard to the
High Courts.

According to the information provided to us by Mr. K.N. Bhat, the
learned Additional Solicitor General, apart from the Central Administra-
tive Tribunal which was established on 1.11.1985, eight States have set up
G State Administrative Tribunals, all of which are presently functioning. The
States, along with the date of establishment of the particular State Ad-
ministrative Tribunals, are as follows: Andhra Pradesh (1.11.1989),
Himachal Pradesh (l.9.1986), Karnataka (6.10.1986), Madhya Pradesh
(2.8.1988), Maharashtra (8.7.1989), Orissa (14.7.1986), Tamil Nadu
H (12.12.1988) and west Bengal (16.1.1995).
I
~ L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.) 1209

We may now analyse the "post-Sampath Kumar cases" which find A
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
B
of India under the proviso to Article 309 of the Constitution as bei)1g
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 c
Bench's decision to arrive at the conclusion that "the Administrative
Tribunal being a substitute of the High Court had the necessary jurisdic-
tion, 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 D
16(1) of the Constitution."

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 E
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.

In M.B. Majumdar's case, a Division Bench of this Court had to F
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 Constitu-
tion, the provisions of the Act, and the decision in Sampath Kumar's case, G
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 \vere to act as substitutes
for the latter in adjudicating service matters; the Tribunals could not, H
1210 SUPREME COURT REPORTS

A therefore, seek parity for all other purposes.
[1997] 2 S.C.R.

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,
B 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
c (6) of Section 5 which, as we have noticed, enables a single Member of a
Tribunal under the Act to hear and decide cases.

The same issue arose for consideration before another Bench of this
Court in Dr. Mahabal Ram's case. The Court took note of the decision in
D 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 iin Sampath Kumar's
E 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
F often no constitutional issues or even legal points would be in-
volved ...... 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 tem1s
of sub-section (6), the Chainna11 should keep in view tlze nature of
the /i.tigation and where questions of law a11d for i11terpretation of '
G 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 obliga-
tion on the Chairman and Members who hear the cases to refer
to a regular bench of two members such cases which in their
H opinion require to be heard by a bench of two Members. We would
L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.) 1211

like to add that it would be open to either party appearing before A
a Single Member to suggest to the Member hearing the matter that
it should go lo 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
B
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 c
(6) are rationalised."

In R.K Jain v. Union of India, [1993) 4 SCC 119, a Division Bench
~f this Court consisting of three of us (Ahmadi, CJI, Punchhi and Ramas-
wamy, JJ.) had occasion to deal with complaints concerning the functioning D
of the Customs, Excise and Gold Control Appellate Tribunal, which was
set up by exercising the power conferred by Article 3238. 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 .iurisdiction E
under Articles 226 and 227 of the Constitution. Having had the benefit of
more than five years' experience of the working of these alternative institu-
tional mechanisms, anguish was expressed over their ineffectiveness in
exercising the high power of judicial review. It was recorded that their
perfprmance 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 F
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 G
the Tribunals since their establishment, the possibility of inducting mem-
bers of the Bar to man such Tribunals etc. It was hoped that recommen-
dations 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, mak,ing them capable of dispensing.
effective, inexpensive and satisfactory jµstlce. H
1212 SUPREME COURT REPORTS [1997] 2 S.C.R.

A 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:

11
... (T)he time is ripe for taking stock of the working of the various

B 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,
c Acts have been enacted whereunder tribunals have been con-
stituted 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
D 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
E · ·independence. An intensive and extensive study needs to be un-
dertaken 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 oftheir performance may improve. We
' strongly recommend to the Law Commission of India to undertake
F such an exercise on priority basis. A copy· of this judgment may be
forwarded by the Registrar of this Court to the Member Secretary
of the Commission for immediate action."

During the hearing, we requested the learned Additional Solicitor
G 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
H be reviewed by a larger Bench, further progre"s on the study was halted.
L CHA.l'iDRAKR. v. U.O.J. [AHMADI, CJ.] 1213

We may _now apply ourselves to analysing the decision which has A
been impugned in one of the matters before us, C.A. No. 169 of 1994. The
judgment, Sakinala Harinath and Others 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 B
to be unconstitutional to the extent it divests the High Courts of jurisdiction
under Article 226 in relation lo service matters.

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
c
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 D
371D of the Constitution, 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 analys-
ing various provisions of our Constitution, held that under our constitution-
al scheme the Supreme Court and the High Courts are the sole repositories E
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 constitu-
tional courts, i.e., the High Courts and this Court. For this proposition,
support has been drawn from the rulings of this Court in Kesavananda F
Bharati v. State of Kerala, [1973] 4 SCC 225, Special Reference No. 1 of 1964,
[1965] 1 SCR 413; Indira Nehrn Gandhi v. Raj Narain, [1975] (Supp) SCC
1; Mine1va Mills Ltd. v. Union of India, [1980) 3 SCC 625, Kihoto Hollohan
v. Zachillu and Othm, [1992) Supp. 2 SCC 651 and certain other decisions,
all of which have been extensively analysed and profusely quoted from.
G
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 Kesva11a11da Bharati's case, Special reference case and Indira
Gandhi's case, that the Constitutional Courts alone are competent to H
1214 SUPREME COURT REPORTS (1997] 2 S.C.R.

A 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 incwiam, 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
B
on that aspect.

Thereafter, emphasising the importance of service matters which
affect the functioning of civil servants, who are an integral part of a sound
governmental system, the High Court held that service matters which
c involve testing the constitutionality of provisions or rules, being matters of
grave import, could not be left to be decided by statutorily created ad-
judicatory 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
D 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
E
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.

A1ticle 323B.
F
This provision of the Constitution empowers Parliament or the State
Legislatures, as the case may be, to enact laws providing for the adjudica-
tion 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-'
G clause of clause (2) of Article 3238. The matters specified cover a wide
canvas including i11ter 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
H provide for the establishment of a hierarchy of Tribunals and to lay down
L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1215

their jurisdiction, the procedure to be followed by them in their function- A
ing, 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 Legisla- B
tures, 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 legislations C
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 D
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
onLand) Act, 1961. Later, the Tamil Nadu Taxation Special Tribunal was E
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.

Certain problems have arisen in the functioning of these Tribunals
especially in respect of the manner in which they exclude the jurisdiction F
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 G
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 H
1216 SUPREME COURT REPORTS [1997] 2 S.C.R.

A 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
B 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 uncon-
stitutional by two different fora, each of which considered itself to be
empowered to exercise jurisdiction.
c S.L.P. No. 17768of1991 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
D Courts' powers to issue writs under Article 226 of the Constitution and to
exercise its powers of superintendence under Article 227 of the Constitu-
tion."

It is against these circumstances that we must now test the proposi-
tions put forth for our consideration.
E
Submissions of Counsel.

We have heard the submission of several learned senior counsel who
appeared for the various pmties before us. Mr. Rama Jois and Mr. Shanti
Bhushan, through .their respective arguments, urged us to review the
F 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
G General, Mr. P.P. Rao, and Mr. K.K. Venugopal urged us to uphold the
validity cf 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 Regis•.rar of the
Principal Bench of the Central Admmistrative Tribunal, who was repre-
sented before us by Mr. Kapil Sibal. Mr. V.R. Reddy, the learned Addi-
H tional Solicitor General, urged us to set aside the judgment of the Madras
. LCHANDRAKR.v. u.oi[AHMADI,CJ.] 1217

High Court which affects the jurisdiction of the Tamil Na du Land Reforms A
Special Appellate Tribunal. Certain other counsel have also addressed us
in support of the main arguments advanced.

Mr. Rama .Jois, learned counsel for the petitioner in W.P. No. 918
of 1992, contended as follows: (i) Section 5(6) of the Act, insofar as it
allows a single Member Bench of a Tribunal to test the constitutional B
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 Kuriiar'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 ac-
cordingly amended; however, since Section 5(6) was not amended simul-
c
taneously, 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 D
power of a High Court urider Article 226 of the Constitution; (ii) The
impugned provisions of the Constitution, insofar as they exclude the juris-
diction of the Supreme Court and the High Courts under Articles 32 and
226 of the Con,stitution, 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 E
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 !n the Supreme Court under
Article 32 of the Constitution and the High Courts under Articles 226 and F
227 of 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 fr.om Kesavananda
Bharati's case where 1t was held that under our constitutional scheme, only
the constitutional courts have been vested with the power of judicial review G
of legislative action; (iii). While the provisions of the Act do not pui:port 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 H
1218 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Tribunals would be effective substitutes for the High Courts. This position
is neither factually nor legally correct on account of the following differen-
ces 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
B 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 ef-
ficiency of the Judges who man the High Courts. The conditions prescribed
for Members of Tribunals are not comparable; (c) While the jurisdiction
c 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
D safeguards for ensuring their independence, are incapable of being effec-
tive 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 jurisdic-
tion. In such a situation, no authority or Tribunal located within the
E 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 struc-
ture of the constitution, and (vi) In view of the afore-stated propositions,
the decision in Sampath Kumar's case requires a comprehensive recon-
F
sideration.

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
G provisions, must be viewed in its historical context. The 42nd Amendment,
being motivated by a feeling of distrust towards the est~blished 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
H executive. Such an intent is manifest in the plain words of Articles 323A
L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1219

and 323B which oust the jurisdiction vested in this Court and the High A
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
B
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 c
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 D
is part of the basic structure of the Constitution. The relevant portions of
the decisions in Kesava11a11da Blzarati's casC, Fe1tiliser Corporation Kamgar
Union v. Union of India, [1981] 1 SCC 568 and Delhi Judicial Service
Association v. State of Gujarat, [1991] 4 SCC 406 highlight the importance
accorded to Article 32 of the Constitution; (iv) The theory of alternative E
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 pos-
sessed of a hoary past enabling them to win the confidence of the people.
F
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 environ-
ment overnight. Consequently, the alternative mechanisms would not, in
the absence of an atmosphere conducive to the building of traditions, be G
able to act as effective alternatives to High Courts for the exercise of
constitutional Jurisdiction. In Pratibha Bo1111erjea v. Union of India, [1995]

-
6 SCC 765, 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. H
1220 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Mr. A.K. Ganguli, appearing for the second and third respondents
in C.A. 1532-33/93, adopted the arguments of Mr. Rama Jois and Mr.
Bhushan. In addition, he cited certain authorities in support of his conten-
tion 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
B 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-o ~f 1994
and C.A. No. 481 of 1989. His contentions are as follows: (i) Clause 2(d)
c of Article 323A 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 <;:onstitution is sacrosanct and is indisputably
D . 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 intended to be affected. However, the jurisdiction of the
High Courts under Article 226 was sought to be removed by creating
E alternative institutional mech~nisms. The theory enunciated in Sampath
Kumar's case is based on sound considerations and does not require any
reconsideration; (ii) Alternatively, Articles 323A and 323B do not seek to ·
exclude the supervisory jurisdiction of the High Courts over all Tribunals
situated within their territorial jurisdiction. Viewed from this perspective,
F the High Courts would still be vested with Constitutional powers to exer-
cise corrective or supervisory jurisdiction; (iii) Since the decisions of this
Court in Amuzva Chandra's case and Dr. Mahabal Ram's case had clearly
held that matters relating to the vires of a provision are to. be dealt with
by a Bench consisting of a judicial member and these guidelines will be
followed in future, there is no vice of unconstitutionality in section 5 (6).
G
Mr. P.P. Rao, learned counsel for the State of Andhra Pradesh in
C.A. No. 196 of 1994 and the connected special leave petitions, put forth
the following submissions: (i) The matter before us involves a very serious,
live problem which needs to be decided by adopting a pragmatic, coopera-
H tive approach instead of by a dogmatic, adversarial process. It is a fact that
L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1221

the Administrative Tribunals which were conceived· as substitutes for the A ·
High Courts have not lived upto expectations and have instead, proved to
be inadequate and ineffective in several ways. However, the striking down
of the impugned constitutional provisions would, instead of remedying the
problem, contribute to its worsening. The problem of pendency in High
Courts which has been a cause for concern for several decades, has been
B
focused upon by several expert committees and commissions. The problem
of enormous increase in the volume of fresh institution coupled with
massive areas has necessitated the seeking of realistic solutions in order to
prevent High Courts from becomingjncapable of discharging their func-
tions. The consistent view of these expert committees has been that the
only manner in which the situation can be saved is by transferring some of c
the jurisdiction of the High Courts, in relatively less important areas, to
specially constituted Tribunals which would act as substitutes for the High
Courts. In Sampath Kumar's case, this Court was required to test the
constitutional validity of providing for such a substitute to the High Court
in the shape of Administrative Tribunals. While deciding the case, this D
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 E
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 F
Tribunals become effective alternative fora; (ii) Article 323A (2)(d) does
not violate the basic structure of the Constitution. The relevant observa-
tions in Keshvananda Bharati's case, show that there is an inherent distinc-
tion between the individual provisions of the Constitution and the basic
features of the Constitution. While the basic features of the Constitution G
cannot be changed even by amending the Constitution each and every
provision of the Constitution can be amended under Article 368. The
majority judgments in Keshavananda· Bharti's case emphatically state that
.-.. the concept of separation of powers is a basic feature of the Constitution.
It, therefore, follows that the powers of judicial review, which is a necessary H
1222 SUPREME COURT REPORTS [1997) 2 S.C.R.

A concomitant of the independence of the judii:iary, is also a basic feature of
our Constitution. However, it does not follow that specific provisions such
as Article 32 or Article 226 are by themselves part of the basic structure
of the Constitution. In this regard, the history of Article 31, which con-
tained a Fundamental Right to Property and was shifted from Part III to
Chapter IV of Part XII can be cited by way of an example; (iii) the essence
B
of the power of judicial review is that it must always remain with the
judiciary and must not be surrendered to the executive or the legislature.
Since the impugned provisions save the .iurisdiction of this Court under
Article 136, thereby allowing the judiciary to have the final say in every
form of adjudication, it cannot be said that the basic feature of judicial
c review had been violated. The constitutional bar is against the conferment
of judicial power on agencies outside the judiciary. However, if within the
judicial set-up, arrangements are made in the interests of better administra- ·
lion of justice to limit the jurisdiction under Article 32 and 226 of the
Constitution, there can be no grievance. In fact, it is in (he interest of better
D administration of justice that this Court has developed a practice, even in
the case of violation of Fundamental Rights, of requiring parties to ap-
proach the concerned High Court under Article 226 instead of directly
approaching this Court under Article 32 of the Constitution. This, undoub-
tedly, has the effect of limiting the jurisdiction of this Court under Article
E 32 but, being necessary for proper administration of justice, cannot be
challenged as unconstitutional. Service matters, which are essentially in the
nature of in-house disputes, being of lesser significance than those involving
Fundamental Rights, can also be transferred to Tribunals on the same
reasoning; (iv) By virtue of Order XXVII-A, Rule lA, ordinary civil courts
are empowered to adjudicate upon questions of vires of statutory rules and
F 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 view that the power of judicial review of legislative
enactments cannot in any event be conferred on any other Court or
Tribun'al,. we may use the doctrine of reading down to save the impugned
G 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.

H Mr. K.K. Venugopal, representing the State of West Bengal in S.L.P.
No. 1063 of 1996 and C.A. No. 1532-33 of 1993, began by reiterating the
L. CHANDRA KR. v. U.O.l. [AHMADI, CJ.) 1223

contention that the impubrned provisions do not seek to oust the jurisdiction A
of this Court under Article 32 which is a basic feature of the Constitution.
His alternative contention was that since the provisions do not exclude the

- jurisdiction under Article 136 an<l since Article 32 (3) itself conceives of
the delegation of that jurisdiction, the ouster of the jurisdiction under
Article 32 was not unconstitutional. This submission was based on the
B
reasoning that, in the absence of any specific constitutional prohibition,
both Parliament and the State legislatures were vested with sufficient
legislation powers to effect changes in the original jurisdiction of this
Court as well as the High Courts. He then stated that in the event that we
are not inclined to hold in accordance with either of the earlier contentions,
the doctrine of severability should be applied to excise the words "under c
Article 136" from the provisions and thus save them from the vice of
uncon.~titutionality. Thereafter, he endeavoured to impress upon us the
jurisprudential soundness of the theory of alternative institutional
mechanism propounded in Sampath Kumar's case. He theri contended that
the shortfalls in the. constitution of the Tribunals, the selection of their D
personnel, the methods of their appointment etc. are a consequence of
legislative and executive errors of judgment; these shortfalls cannot affect
the constitutionality of the parent constitutional provisions. He concluded
by declaring that these constitutional amendments were lawfully incor-
porated by the representatives of the people in exercise of the constituent
power of Parliament to remedy the existing problem of inefficacious E
delivery of justice in the High Courts. He counselled us not to substitute
our decision for that of the policy evolved by Parliament in exercise of il~
constituent power and urged us to suggest suitable amendments, as was
done in Sampath Kumar's case, to make up for the shortfalls in the existing
system.
F
Mr. Kiran K. Shah, the petitioner in W.P. No. 789 of 1990, who is a
lawyer practicing before the Ahmedabad Bench of the Central Administra-
tive Tribunal, sought to apprise us of the practical problems· faced by
advocates in presenting their cases before the Central Administrative
Tribunal and of several complaints regarding the discharge of their official G
duties. ·

The Registrar of the Principle Bench of the Central Administrative
Tribunal, who is theSecond respondent in C.A. No. 481 of 1989, was
represented before us by Mr. Kapil Sibal. The case of the Registrar is that H
1224 SUPREME COURT REPORTS (1997] 2 S.C.R. ~

A the Tribunals, as they are functioning at present, are not effective sub-
stitutes for the High Courts. However, the creation of alternative institu-
tional 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
B
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 tlie Madras High Court which
is the subject of challenge in S.L.P. No. 17768 of 1991. Mr. Reddy en- --
C deavoured to convince us that the amendments incorporated in the legis-
lation which created the Tamil Nadu Land Reforms Special Appellate
Tribunal after the decision in Sampath Kumar's case 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
D for the effective resolution of disputes in that branch of law.

We may now address the main issues which have been identified at
the begining of this judgment as being central to the adjudication of this
batch of matters. This would involve an appreciation of the power of
judicial review and an understanding of the manner and the instrurnen-
E talities through which it is to be exercised.

The underlying theme of the impugned judgment of the AP. High
Court rendered by M.N. Rao, J. is that the power of judicial review is one
of the basic features of our constitution and that aspect of the power which
enables courts to test the constitutional validity of statutory provisions is
F vested exclusively in the constitutional courts, i.e., the High Courts and the
Supreme Courts. In this Regard, the position in American Constitutional Law
in respect of Courts created under Article ill of the Constitution of the United
States has been analysed to state that the functions of Article ill Courts
(constitutional courts) cannot be performed by other legislative courts estab-
G mhed by the Congress in exercise of its legislative power. The following
decisions of the U.S. Supreme Court have been cited for support : National
Mugal Insurance Company of the District of Columbia v. Tidewater Transfer
Company, 93 L. Ed. 1156 - 337 US 582, Thomas S. William v. United States,
77 L. Ed. 1372 - 289 US 553, Cooper v. Aaron 3 L. Ed. 2d 5 - 358 US 1,
Northem Pipeline Constmction Company v. Marathon Pipeline Company
lJ and United States, 73 L. Ed. 2d 59 - 458 US 50.
L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.) 1225

We may briefly advert to the position in American Constitutional A
· Law to the extent that it is relevant for our purpose. As pointed out by
Henery J. Abraham, an acclaimed American Constitutional Law scholar,
judicial review in the United States comprises the power of any cowt to hold
unconstitutional and hence unenforceable any law, any official action based
upon a law or any other action by a public official that it deems to be in
conflict with the Basic Law, in the United States, its Constitution.(*) It B
further stated that in the United States, the highly significant power of
judicial review is possessed, theoretically, by every court of record, no
matter how high or low on the judicial ladder. Though it occurs only
infrequently, it is quite possible for a Judge in a low-level court of one of
the 50 States to declare a Federal Law unconstitutional.
c
The position can be better appreciated by analysing the text of
Section 1 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 infelior Cowts D
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." E
(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 p
only be exercised by courts created under Section 1 of Article III. However,
what must be emphasised is the fact that Article III itself contemplates 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 to Article Ill. The proposition which emerges from this analysis
is that in tJie United States, though the concept of judicial power has been G
accorded'great constitutional protection, there is no blanket prohibition on
the conferment of judicial power upon courts other than the U.S. Supreme
Court.
Hemy J. Abraham, The Judicial Process, 4th Edn .. Oxford University Press (1980) p.
296.
H
1226 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Henry J. Abraham's definition of judicial review in the American
context is, subject to a few modifications, equally applicable to concept as
it is understood in Indian Constitutional Law. Broadly speaking, judicial
review in India comprises three aspects : judicial review of legislative
action, judicial .review of judicial decisions and judicial review of ad-
B ministrative action. We·are, for the present, concerned only with under-
standing the first two aspects.

In the modern era, the origin of the power of judicial review of
legislative action may well be traced to the classic enunciation of the
principle by Chief Justice Jolin Marshall of the U.S. Supreme Court in
c Marbury v. Madison, 1 Cranch 137 (1803) :

"It is emphatically the province and duty of the judicial department
to say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule ... A law repug-·
D nant to the constitution is void ... Courts as well as other depart-
ments are bound by that instrument."

(Emphasis added)

The assumption of such a power unto itself by the U.S. Supreme Court was
E never seriously challenged and, over the years, it has exercised this power
in numerous cases despite the persisting criticism that such an exercise was
undemocratic. Indeed, when the Framers of our Constitution set about

F
their monumental task, they were well aware that the principle that courts
possess the power to invalidate duly enacted legislations had already
acquired a history of nearly a century and a half.
-
At a very early stage of the history of this C_ourt, when it was doubted
whether it was justified in exercising such a power, Patanjali Sastri, CJ,
While emphatically laying down the foundation of the principle held as
G follows (State of Madras v. V.G. Row, [1952) SCR 597 at G06) :

".. .[O Jur Constitution contains express provisions for judicial review
of legislation as to its conjom1ity with the Constitution, unlike as in
America where the Supreme Court has assumed extensive powers
of reviewing legislative acts under cover of the widely interpreted
H "due process" clause in the Fifth and Fourteenth Amendments. If,
It L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.]

then, the courts, in this country face up to such important and none
1227

A
too easy task, it is not out of any desire to tilt at legislative authority
in a crusader's sprit, but in discharge of a duty plainly laid upo11
them by the constitution. This is especially true as regards .the
"fundamental rights", as to which this Courts has been assigned the
role of a sentinel on the qui vive. While the Court naturally attaches
B
great weight to the legislative judgment, it cannot desert its own
duty to detennine finally the constitutionality of an impugned statute."

(Emphasis added)

Over the years, this Court has had many an opportunity to express C
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 concur.ring judgment in the five-
Judge Constitution Bench Decision in Bidi Supply Co. v. The Union of India
and Orl:., [1956] SCR 267 at 284, Il_ose, J. made the following observations D
which are apposite to the Present c\mtext:

"The heart and core of democracy lies in the judicial process, and
that means independent and fearless judges free frum executive
control brought up in judicial traditions and training to judicial
ways of working and thinking. The main bulwarks of liberty of E
freedom lie there and it is clear to me that uncontrolled powers of
discrimination in matters that seriously affect the lives and properties
of people cannot be left to executive or quasi executive bodies even
if they exercise quasi judicial functions because they are then invested
with an authority that even Parliament does not possess. Under the F
Constitution, Acts, of Parliament are subjected to judicial review
particularly when they are said to infringe fundamental rights,
therefore, if under the Constitution Parliament itself has not un-
controlled freedom, of action, it is evident that it cannot invest
lesser authorities with that power.''
G
Special Reference No, 1 of 1964, was a case where a seven-Judge
Constitution Bench of this f:ourt had to express itself on the thorny issue
of Parliamentary privileges. While doing so, the Court was required to
consider the manner in which our Constitution has envisaged a balance of
power between the three wings of Government and it was in this context H
I
1228 SUPREME COURT REPORTS [1997) 2 S.C.R.

A that Gajendragadkar, CJ made the following observations:

"... [W]hether or not there is distinct and rigid separation of powers
under the Indian Constitution, there is no doubt that the constitution
has entmsted to the Judicature in this country the task of construing
the provisions of the Constitution and of safeguarding the fundamen-
B
tal rights of the citizens. When a statute is challenged Oil the ground
that it has been passed by a Legislature without authority, or has
otherwise unconstitutionally trespassed Oil fundamental rights, it is
for the courts to detemiine the dispute and decide whether the law
passed by the legislature is valid or not. Just as the legislatures are
c conferred legislative functions, and the functions and authority of
the executive lie within the domain of executive authority, so the
jurisdiction and authority of the Judicature in this country lie within
the domain of adjudication. If the validity of any law is challenged
before the courts, it is never suggested that the material question
D as to whether legislative authority has been exceeded or fundamen-
tal rights have been contravened, can be decided by the legislatures
themselves. Adjudication of such a dispute is entrusted solely and
exclusively to the Judicature of this country."

E (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 Con-
stitution, Gajendragadkar, CJ. preferred to trace it to the manner in which
F
the constitution has separated powers between the three wings of Govern-
ment.

In Kesvananda Bharati's case, a 13-Judge Constitution Bench, by a
majority of 7:6, held that though, by virtue of Article 368, Parliament is
G empowered to amend to 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
H even the judgments for the majority are not unanimously agreed on this
L. CHANDRA KR. v. u.o.r. [AHMADI, C.J.] 1229

aspect. [There were five judgments for the majority, delivered by Sikri, C.J ., A
Shelat & Grover, JJ. Hegde & Mukherjee, JJ. Jaganmohan Reddy, J. and
Khanna, J. While Khanna, J. did not attempt to catalogue the basic
features, the identification of the basic features by the other Judges are
specified in the following paragraphs of the Court's judgments : Sikri, C.J.
(para 292), Shelat and Grover, JJ. (para 582), Hegde and Mukherjee, JJ. B
(paras 632, 661) and Jaganmohan Reddy, J. (paras 1159, 1161)]. The aspect
of judicial review does not find elaborate mention in all the majority
judgments. Khanna, J. did, however, squarely address the issue (at para
1529) :

"... The power of judicial review is, however, confined not merely c
to deciding whether in making the impugned laws the Central or
State Legislatures have acted within the four corners of the legis-
lative lists earmarked for them; the cowts also deal with the question
as to whether the laws are made in conjonnity with and not in
violation of the other provisions of the Constitution ... As long as D
some fundamental rights exist and are a part of the Constitution,
the power of judicial review has also to be exercised with a view
to see that the guarantees afforded by those rights are not con-
travened ... Judicial review has thus become an integral part of our
constitutional system and a power has been vested in the High Courts E
and the Supreme Cowt to decide about the constitutional validity of
provisions of statutes. If the provisions of the statute are found to
be violative of any article of the Constitution, which is touchstone
for the validity of all laws, the Supreme Court and the High Courts
are empowered to strike down the said provisions." F

(Emphasis added)

Shelat & Grover, JJ., while reaching the same conclusion in respect
of Articles 32& 226, however, adopted a different approach to the issue
(at para ~77) : G

"There is ample evidence in the Constitution itself to indicate that
it creates a system of checks and balances by reason of which
powers are so distributed that none of the three organs it sets up
can become so pre-dominant as to disable the others from exer- H
1230 SUPREME COURT REPORTS [1997] 2 S.C.R.

A cising and discharging powers and functions entrusted to them.
Though the constitution does not lay down the principle of separa-
tion of powers in all its rigidity as is the case in the United States
Constitution but it envisages such a separation to a degree as was
found in Ranasinghe's case (supra). The judicial review provided
B e.xpressly in our constitution by means of Articles 226 and 32 is one
uf the features upon which hinges the system of checks and balances."

(Emphasis added)

ln Indira Nehru Gandhi v. Raj Narain, five-Judge Constitution Bench
c had to, i1:ter 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 n;view. Though all five Judges
delivered concurring judgmeuts to strike down the offending provision,
D 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 American Constitutional Law, is not founded on
any specific Article in our Constitution. He observed that judicial review
can and has ·J;ieen excluded in several matters; in election matters,
E judicial review is not a compulsion. He, however, held that our Constitu-
tion 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 Exec~tive or the Legislature. (Paras 32, 43,
46, 52). Khanna, J. took the view that it is not necessary, within a
democr:itic set up, that disputes relating to the validity of elections be
F settled by Courts of Law; he, however, felt that even so the legislature
could not be. permitted to declare that the validity of a particular
election would not be challenged before any forum and would be valid
despite the existence of disputes. (Para 207). Mathew, J. held that
whereas in the United States of America and in Australia, the judicial
G power is vested exclusively in Courts, there is no such exclusive vesting
of judicial power in the Supreme Court of India and the Courts subor-
dinate to it. Therefore, the Parliament could, by passing a law within its
competence, vest judicial power in any authority for deciding a dispute.
(Paras 322 and 323). Beg, J. held that the power of Courts to test the
H legality of ordinary laws and constitutional amendments against the
L. CHANDRA KR. v. U.0.1. [AHMADI, C.J.] 1231

norms laid down in the Constitution flows from the 'supremacy of the A
Constitution' which is a basic feature of the Constitution. (Para 622).
Chandrachud, J. felt that the contention that judicial review is a part of the
basic structure and that any attempt to exclude the jurisdiction of courts
in respect of election matters was unconstitutional, was too broadly stated.
He pointed out that the Constitution, as originally enacted, expressly B
excluded judicial review in a large number of important. matters. The
examples of Articles 136(2) and 226(4) [exclusion of review in laws relating
to armed forces), Article 262(2) [exclusion of review in river disputes]
Article 103(1) [exclusion of review in disqualification of Members of
Parliament), Article 329(a) [exclusion of review in laws relating to delimita-
tion of constituencies and related matters], were cited for support. Based
c
on this analysis, Chandrachud, J. came to the conclusion that since the
Constitution, as originally enacted, did not consider that judicial power
must intervene in the interests of purity of elections, judicial review cannot
be considered to be a part of the basic structure in so far as legislative
elections are concerned. D

The foregoing analysis reveals that the Ji.idges in Indira Gandhi's
case, all of whom had been party to Kesavananda Bharati's case, did not
adopt similar approaches to the concept of judicial review. While Beg, J.
clearly expressed his view that judicial review was a part of the basic E
structure of the Constitution, Ray, CJ 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, his views on the subject can be understood to F
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, a five-Judge Constitution Bench G
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, CJ for four Judges, contained the following observations
(at p. 644, para 21): H
1232 SUPREME COURT REPORTS [1997] 2 S.C.R.

A " ... Our Constitution is founded on a nice balance of power among
the three wings of the State, namely, the Executive, the Legislature
and the Judiciary. lt is the function of the Judges, nay their duty, to
pronounce upon the validity of laws. If courts are totally deprived
of that power, the fundamental rights conferred upon the people
will become a mere adornment because rights without remedies
B
are as writ in water. A controlled Constitution will then become
uncontrolled."

(Emphasis supplied)

The majority judgment held the impugned provisions to be uncon-
stitutional. While giving reasons in support, Chandrachud, CJ stated as
follows :

" .... It is for the courts to decide whether restrictions are
reasonable and whether they are in the interest of the
D particular subject. Apart from other basic dissimilarities,
Article 31-C takes away the power of judicial review to an
extent which destroys even the semblance of a comparison
between its provisions and those of clauses (2) to (6)
of Article 19. Human ingenuity, limitless though it may be, has
E yet not devised a system by which the liberty of the
people can be protected except through the intervention of
courts of law."

It may, however, be noted that the majority in Minerva Mills did not --
F hold that the concept of judicial review was, by itself, part of the basic
structure of the Constitution. The judgment of Chandrachud, CJ in the
Mine1va Mill's case must be viewed in the. context of his judgment in Indira
Gandhi's case where he had stated that the Constitution, as originally
enacted, excluded judicial review in several important matters.
-
G In his minority judgment in Minerva Mill's case, Bhagwati, J. held as
follows:

" ...The Constitution has, therefore, created an independent
machinery for resolving these disputes and this independent
H machinery is the judiciary which is vested with the power of
r
I
L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.]

judicial review to determine the legality of executive action and
1233

A
the validity of legislation passed by the legislature. It is the solemn
duty of the judiciary under the Constitution to keep the different
organs of the State such as the executive and the legislature.within
the limits of the power conferred upon them by the Constitution.
77iis power of judicial review is conferred on the judiciary by Articles B
32 and 226 of the Constitution ..... 17ie judiciary is the interpreter of
the Constitution and to the judiciary is assigned the delicate task
to determine 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. C
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 D
the law''. The power of judicial review is an integral pa1t of
our constitutional system the power of judicial review..... is unques-
tionably....part of the basic structure of the Constitution. Of course,
when I say this I should not be taken to suggest that effective
altemative institutional mechanisms or al7angements for judicial
review cannot be made by Parliament." E

(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 enun- F
dated by Bhagwati, J. in his minority judgment in Minerva Mill's case was
. not supported by or even mentioned in the majority judgment. In fact, such
a theory finds no prior mention in the earlier decisions of this Court and,
in the opinion of the AP. High Court, did not represent the correct legal
position. It is to be noted that in Sampath Kumar's case, both Bhagwati,
CJ and Misra, J. in their separate judgment have relied on the observations G
in the minority judgment of Bhagwati, J. in Minerva Mill's case to lay the
foundation of the theory of alternative institutional mechanisms.

We may, at this stage, take note of the decision in Fertiliser Corpora-
tion Kamgar Union V. Union of India, (1981) 1 sec 568, where H
1234 SUPREME COURT REPORTS [1997) 2 S.C.R.

A Chandrachud, CJ appears to have somewhat revised the view adopted by
him in Indira Gandhi's case. In that case, speaking for the majority,
Chandrachud, CJ held that "the jurisdiction conferred on the Supreme
Court by Article 32 is an important and integral part of the basic structure
of the Constitution." (at para 11).
B In Kihoto Hollohan v. Zachillu & Ors., a five-Judge Constitution
Bench had to, inter alia, consider the validity of Paragraph 7 of the Tenth
Schedule to. the Constitution which excluded judicial review. The judgment
for the minority, delivered by Verma, J. struck down the provision on the
ground that it violated the rule of law which is a basic feature of the
c Constitution requiring that decisions be subject to judicial review by an
independent outside authority. (Paras 181-182). Though the majority judg-
ment delivered by Venkatachaliah, J. also struck down the offending
provision, the reasoning employed was different. The judgment for ·the
majority contains an observation to the effect that, in the opinion of the
-
D judges in the majority, it was not necessary for them to express themselves
on the question whether judicial review is part of the basic structure of the
Constitution. (Para 120).

We may now analyse certain other authorities for the proposition
that the jurisdiction conferred upon the High Courts and the Supreme-
E Court under Article 226 and 32 of the Constitution respectively, is part
of the basic structure of the Constitution. While expressing his views on
the significance of draft Article 25, which corresponds to the present
Article 32 of the Constitution, Dr. B.R. Ambcdkar, the Chairman of the
Drafting Committee of the Constituent Assembly stated as follows
F (CAD, Vol. VII, p. 953) :

"If I was asked to name any particular Article in this Constitution
as the most imporlant - 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 hearl of
G
it and I am glad that the House has realised its importance."

(Emphasis added)

This statement of Dr. Ambedkar has been specifically reiterated in
H several judgments of this Court to emphasise the unique significance
L. CHANDRA KR.. v. U.0.1. [AHMADI, CJ.] 1235

attributed to Article 32 in our constitutional scheme. [See for instance, A
·Khanna, J. in Kesava11a11da Bharati's case (p. 818), Bhagwati, J. in Minerva
- Mills (p. 678), Chandrachud, CJ Fertiliser Kamgar (para 11), R. Misra, J.
in Sampatlt Kumar (p. 137)].

In the Special Reference Case, While addressing this issue,
B
Gajendragadhkar, CJ stated as follows (supra at pp. 493- 494):

"If the power of the High Courts under An. 226 and the authority of
this Court under An. 32 are not subject to any exceptions, then it
would be futile to contend that a citizen cannot move the High
Courts or this Court to invoke their jurisdiction even in cases where C
his fundamental rights have been violated. The existence of judicial
power in that behalf must necesswily and inevitably postulate the
existence of a right in the citizen to move the Court in that behalf;
otherwise the power conferred on the High Courts and this Court
would be rendered virtually meaningless. Let it not be forgotten D
that the judicial power conferred on the High Courts and this
Court is meant for the protection of the citizens' fundamental
rights, and so, in the existence of the said judicial power itself is
necessarily involved the right of the citizen to appeal to the said
power in a proper case." E
(Emphasis added)

To express our opinion on the issue whether the power of judicial
review vested in the High Courts and into the Supreme Court under
Articles 226/227 and 32 is part of the basic structure of the Constitution,
F
we must first attempt to understand what constitutes the basic structure of
the Constitution. The Doctrine of basic structure was evolved in Kesva11a11-
da Bharati's case. However, as already mentioned, that case did not lay
down that the specific and particular features mentioned in that judgment
alone would constitute the basic structure of our Constitution. Indeed, in G
the judgments of Shelat & Grover, JJ., Hegde & Mukherjee, JJ. and
Jaganmohan Reddy, J,., there are specific observations to the effect that
their list of essential features comprising the basic structure of the Con-
stitution are illustrative and are not intended to be exhaustive. In Indira
Gandhi's case, Chandrachud, J. held that the proper approach for a Judge H
1236 SUPREME COURT REPORTS [1997) 2S.C.R.

A who is confronted with the question whether a particular facet of the
Constitution is part of the basic structure, is to examine, in each individual
case, the place of the particular feature in the scheme of our Constitution,
its object and purpose, and the consequences of its denial on the integrity
of our Constitution as a fundamental instrument for the governance of the
B country. (supra at pp. 751-752). This approach was specifically adopted by
Bhagwati, J. in Minerva Mill's case (supra at pp. 671-672) and is not
regarded as the definitive test in this field of Constitutional Law.

We find that the. various factors mentioned in the test evolved by
Chandiachud, J. have already been considered by decisions of various
c Benches of this 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
D scrutiny of superior courts, to be integral to our constitutional scheme.
While several judgments have made specific references to this aspect
[Gajendragadhkar, CJ in Special Reference case, Beg, J. and Khanna, J. in
Kesavananda Bharti's case, Chandrachu<l, CJ and Bhagwati, J. in Minerva
Mills, Chandrachud, CJ in Fertiliser Kamgar, K.N. Singh, J. in Delhi Judicial
,.
Service Association, etc.] the rest have made general observations highlight-
E ing 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
F criticism, has, while conferring such power upon the· higher judiciary,
incorporated important safeguards. An analysis of the manner in which the
Framers of · our Constitution incorporated provisions relating to the
judiciary would indicate that they were very greatly concerned with secur-

G
ing the independence of the judiciary.(#) These attempts were directed at
ensuring that the judiciary would be capable of effectively discharging
its wide powers of judicial review. While the Constitution confers the
-
power to strike down laws upon the High Courts and the Supreme
# See Chapter VII, HThe Judicial)' and the Social Revolution" in Granville Austen, The
Indian Constitution: Cornerstone of a Nation Oxford University Pft'ss, 1972; the chapter
includes exhaustive reforences to the relevant preparatory works and dehates in the
Constituent Assembly.
H
L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1237

Court, it also contains elaborate provisions dealing with the tenure, salaries, A
allowances, retirement age of Judges as well as the mechanism for selecting
Judges to the superior courts. The inclusion of such elaborate provisions
appears to have been occasioned by the belief that, armed by such
provisions, the superior courts would be insulated from any executive or
legislative attempts to interfere with the making of their decisions. The
Judges of the superior courts have been entrusted with the task of uphold- B
ing the Constitution and to this end, have been conferred the power to
interpret it. It is they who have to ensure that the balance of power
-- envisaged by the Constitution is maintained and that the legislature and the
executive do not, in the discharge of their functions, transgress constitu-
tional limitations. It is equally their duty to oversee that the judicial
decisions rendered by those who man the subordinate courts and tribunals
c
do not fall foul of strict standards of legal correctness and judicial inde-
pendence. The constitutional safeguards which ensure the independence
of the Judges of the superior judiciary, are not available to the Judges of
the subordinate judiciary or to those who man Tribunals created by ordi-
nary legislations. Consequently, Judges of the latter category can nevei" be D
considered full and effective substitutes for the superior judiciary in dis-
charging the function of constitutional interpretation. We, therefore, hold
that the power of judicial review over legislative action vested in the High
Courts under Articles 226 and in .this Court under Article 32 of the
Constitution is an integral and essential feature of the Constitution, con-
stituting part of its basic structure. Ordinarily, therefore, the power of E
High Courts and the Supreme Court to test the constitutional validity
of legislations 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
F
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 G
judiciary or Tribunals created under ordinary legislations cannot exer-
• cise 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 H
·~
1238 SUPREME COURT REPORTS (1997) 2 S.C.R.

A \\~thin 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 1ights conferred by this Part.--(l) ---
B (2) ...

(3) Without prejudice to the powers conferred on the Supreme
Court by clauses (1) and (2), Parliament may by law empower any
other cowt to exercise within the local limits of its jurisdiction all or
C any of the powers exercisable by the Supreme Court under clause
(2)."

(Emphasis supplied)

• If the power under Article 32 of the Constitution, which has been
D described as the "heart" and "soul" of the Constitution, can be
additionally conferred upon "any other court", there is no reason why
the same situation cannot subsist in respect of the jurisdiction con-
ferred upon the High Courts under Article 226 of the Constitution.
So long as the jurisdiction of the High Courts under Articles 226/227
E and that of this Court under Article 32 is retained, there is no reason
why the power to test the validity of legislations against the provisions
of the Constitution cannot be conferred upon Administrative
Tribunals. created under the Act or upon Tribunals created under
Article 323B of the Constitution. It is to be remembered that, apart
from the authorisation that flows from Articles 232A and 323B, both
F
Parliament and the State Legislatures possess legislative competence
to effect changes in the original jurisdiction of the Supreme Court and
the High Courts. This power is available to Parliament under Entries
77, 78, 79 and 95 of List I and to the State Legislatures under Entry
65 of List II; Entry 46 of List III can also be availed of both by
G Parliament and the State Legislatures for this purpose.

There are pressing reasons why we are anxious to preserve the
conferment of such a power on these Tribunals. When the Framers of
our Constitution bestowed the powers of judicial review of legislative
H action upon the High Courts and the Supreme Court, they ensured that
L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1239

other· constitutional safeguards were created to assist them in effectively A
discharging this onerous burden.· The expectation was that this power
would be required to be used only occasionally. However, in the five
decades that have ensued since Independence, the quantity of litigation
before the High Courts has exploded in an unprecedented manner. The
decision in Sampath Kumar's case was rendered against such a backdrop. B
We are conscious of the fact that when a Constitution Bench of this Court
in Sampath Kumar's case adopted the theory of alternative institutional

-- mechanisms, it was attempting to remedy an alarming practical situation
and the approach selected by it appeared to be most appropriate 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
c
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. In his leading judgment, R. Misra, D
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 reliev-
ing the High Courts of their increased foad. In this regard, the recommen-
dations of the Shah Committee for setting up independent Tribunals as E
also the suggestio!l' of the Administrative Reforms Commission that Civil
Service Tribunals be set up, were noted. Reference was: also made to the
decision in KK 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. F

The problem of clearing the backlogs of High Courts, which has
reached colossal proportions in our times is, nevertheless, one that has
been the focus of study for close to a half century. Over time, several
Expert Committees and Commissions have analysed the intricacies in- G
volved and have made suggestions, not all of which have been consistent.
Of the several studies that have been conducted in this regard, as many as
twelve have been undertaken by the Law Commission of India (hereinafter
referred to as "the LCI"") or similar high level Committees appointed by
the Central Government, and are particularly noteworthy.(***) H
1240 SUPREME COURT REPORTS [1997] 2 S.C.R. ~ ,_
A An appraisal of the daunting task which confronts the High Courts
can be made by referring to the assessment undertaken by the LCI in its
124th Report which was released sometime after the judgment in Sampatii
Kumar's case. The Report was delivered in 1988, nine years ago, and some
-
changes have occurred since, but the broad p"'rspective which emerges is
still, by and large, true: ·
B

c
" ... The High Courts enjoy civil as well as criminal, ordinary as well
as extraordinary, and general as well as special jurisdiction. The
source of the jurisdiction is the Constitution and the various
statutes as well as letters patent and other instruments constituting
--
the High Courts. The High Courts in the country enjoy an original
jurisdiction in respect of testamentary, matrimonial and guardian-
ship matters. Original jurisdiction is conferred oil the High Courts
under the Representation of the People Act, 1951, Companies Act,
1956, and several other special statutes. The High Courts, being
D courts of record, have the power to punish for its contempt as well
as contempt of its subordinate courts. The High Courts enjoy
extraordinary jurisdiction under articles 226 and 227 of the Con-
stitution enabling it to issue prerogative writs, such as, the one in
the nature of habeas corpus, mandamus, prohibition, quo warranto
E and certiorari. Over and above this, the High Courts of Bombay,
Calcutta, Delhi, Himachal Pradesh, Jammu and Kashmir and
Madras also exercise ordinary original civil jurisdiction. The High
Courts also enjoy advisory jurisdiction, as evidenced by section 256
of the Indian Companies Act, 1956, section 27 of the Wealth Tax
Act, 1957, section 26 of Gift Tax Act, 1958, and section 18 of
F
Companies (Profits) Surtax Act, 1964. Similarly, there are parallel
provisions conferring advisory jurisdiction on the High Courts,
such as section 130 of Customs Act, 1962, and section 354 of
(''')Report of the High Court Arrears Committee 1949; LC!, 14th Report on Reform
of Judicial Administration (1958); LC!, 27th Report on Code of Civil Procedure, 1908
G (1964); LC!, 41st Report on Code of Criminal Procedure, 1898 (1969); LCI, 54th
Report of Code of Civil Procedure, 1908 (1973); LCI, 57th Report on Structure and
Jurisdiction of the Higher Judiciary (1974); Report of High Court Arrears Committee,
1972; LCI, 79th Report on Delay and Arrears in High Courts and other Appellate
Courts (1979); LCI, 99th Report on Oral Arguments and Written Arguments in the
Higher Courts (1984); Satish Chandra's Committee Report 1986; LC!. 124lh Report
on the High Court Arrears--A Fresh Look (1988); Report of the Arrears Committee
H (1989-90).
L. CHANDRA KR. v. U.0.1. [AHMADI, CJ.] 1241

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 ap-
preciated by reference to those names, viz., (a) first appeals; (b)
B
appeals under the letters patent; (c) second appeals; (d} revision
petitions; (e) criminal appeals; (f) criminal revisions; (g) civil and
crimina: references; (h) writ petitions; (i) writ appeals; G) refer-
ences under direct and indirect tax laws; (k) matters arising under
the Sales Tax Act; (!) election petitions under the Representation
of the People Act,; (m) petitions under the Companies Act, Bank- c
ing 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."
D
After analysing the situation existing in the High Courts at length,
the LCI made specific recommendations towards the establishment of
specialist Tribunals thereby lending force to the approach adopted in
Sampath Kumar's case. The LCI noted the erstwhile international judicial
trend which pointed towards generalist courts yielding their place to E
specialist Tribunals. Describing the pendency in the High Courts as
"catastrophic, crisis ridden, almost unmanageable, imposing ... an im.-
measurable burden on the system", the LCI stated that the prevailng view
in Indian Jurisprudence that the jurisdiction enjoyed by the High Court is
a holy cow required a review. It, therefore, recommended the trimming of
F
the jurisdiction of the High Courts by setting up specialist courtsn'ribunals
while simultaneously eliminating the jurisdiction of the High Courts.

It is important to realise that though the theory of alternative institu-
tional mechanisms was propounded in Sampath Kumar's case in respect of
the Administrative Tribunals, the concept itself--that of creating alternative G
modes of dispute resolution which would relieve High Courts of their
burden while simultaneously providing specfalised justice--is not new. In
fact, the issue of having a specialised Tax Court has been discussed for
several decades; though the Report of the High Court Arrears Committee
(1972) dismissed it as "ill-conceived", the LCI, in its Jl5th Report (1986) H
1242 SUPREME COURT REPORTS (1997] 2 S.C.R.

A revived the recommendation of setting up separate Central Tax Courts.
Similarly, other Reports of the LCI have suggested the setting up of 'G!am
Nyayalayas' (LCI, 114th Report (1986)], Industrial/Labour Tribunals [LCI,
122nd Report (1987)] and Education Tribunals [LCI, 123rd Report
(1987)].
B
In R.K Jain's case, this Court had, in order to understand how the
theory of alternative institutional mechanisms had functioned in practice,
recommended that the LCI or a similar expert body should conduct a
survey of the functioning of these Tribunals. It was hoped that such a study,
conducted after guaging the working of the Tribunals over a sizeable
c period of more than five years would provide an answer to the questions
posed by the critics of the theory. Unfortunately, we do not have the benefit
of such a study. We may, however, advert to the Report of the Arrears
Committee (1989-90), popularly known as the Malimath Committee
Report, which has elaborately dealt with the aspect. The observations
D contained in the Report, to this 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
E recommendations on the feasibility of setting up 'Gram Nyayalayas', In-
dustrial 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 consider-
able significance to our analysis, are extracted in full as under:
F
"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,
G objectivity a11d judicial approach. The next is their co11stitutio11, the
power and method of appoi11tment of personnel thereto, the i11ferior
status and the casual method of working. TI1e last is their actual
composition; men of calibre are not willing to be appointed as
presiding officers in view of the uncertainty of tenure, unsatisfactory
H conditions of service, exerntive subordination in matters of ad-
L. CHANDRA KR. v. U.0.l. [AHMADI, C.J.] 1243

ministrulion and political interference in judicial functioning. For A
these and other reasons, the quality of justice is stated to have
suffered and the cause of expedition is not found to have been
served by the establishment of such tribunals.

8.64 Even the experiment of setting up of the Administrative
I Tribunals under the Administrative Tribunals Act, 1985, has not
B
been widely welcomed. Its members have been selected from all
kinds of services including the Indian Police Service. The decision
of the State Administrative Tribunals are not appealable except
under Article 136 of the Constitution. On account of the heavy
cost and remoteness of the forum, there is virtual negation of the c
right of appeal. This has led to denial of justice in many cases and
consequential dissatisfaction. There appears to be a move in some
of the State where they have been established for their abolition.

Tribunals-Test for Including High Court's Jurisdiction D
8.65 A Tribunal which substitutes the High Court as an alternative
in:;titutional mechanism for judicial review must be no Jess effica-
cious than the High Court. Such a tribunal must inspire confidence
and public esteem that it is a highly competellf and expert mechanism
with judicial approach and objectivity. What is needed in a t1ibunal, E
which is intended to supplant the High Cowt, is legal training and
expe1ience, and judicial acumen, equipmelll and approach. When
such a tribunal is composed of personnel drawn from the judiciary
as well as from services or from amongst experts in the field, any
weightage in favour of the service members or expert members F
and value- discounting the judicial members would render the
tribunal less effective and efficacious than the High Court. The
Act setting up such a tribunal would itself have to be declared as
void under such circumstances. The same would not at all be
conducive to judicial independence and may even tend, directly or
indirectly, to influence their decision making process, especiaHy G
when the Government is a litigant in most of the cases coming
before such tribunal. (See S.P. Sampath Kumar v. Union of India,
reported in [1987) 1 SCR 435. The protagonists of specialist
tribunals, who simultaneously with their establishment want ex-
clusion of the Writ jurisdiction of the High Courts in regard to H
1244 SUPREME COURT REPORTS (1997] 2 S.C.R.

A matters entrusted for adjudication to such tribunals, ought not to
·overlook these vital and important aspects. It must not be forgotten
that what is pennissible to be supplant by another equally effective
and efficacious institutional medianism is the High Cowts 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,
B uniformity of approach, predictability of decisions and specialist
justice are to be achieved, the frame work.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 alter-
c native Institutional mechanism in substitution of the High Courts
must pass the aforesaid test in order to be constitutionally valid.

8.66 Tjle 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
D experiment is extended to new areas of fields, especially if the
constitutional jwisdiction of the High Courts is to be simultaneously
ousted. Not many tribunals satisfying the aforesaid tests can pos-
sibly he established.

E (Emphasis added)

Having expressed itself in this manner, the Malimath Committee
specifically recommended that the theory of alternative institutional
mechanisms be abandoned. Instead, it recommended that institutional
changes be carried out within the High Courts, dividing them into separate
F divisions for different branches of law, as is being done in England. It
stated that appointing more Judges, to man the separate divisions while
using the existing infrastructure would be a better way of remedying the
problem of pendency in the High Courts.

In the y~ars that have passed since the Report of the Malimath
G Committee was delivered, the pendency in the High Courts has substan-
tially increased and we are of the view that its recommendation is not suited
to our present context. That the various Tribunals have not performed upto
expectations is a self- evident and widely acknowledged truth. However, to
,
draw an infere~ce that their unsatisfactory performance points to their
H being founded on a fundamentally unsound principle would not be correct.
I
L. CHANDRA KR. v. U.O.I. [AHMADI, CJ.] 1245

The reasons for which the Tribunals were constituted still persist; indeed, A
those reasons have become even more pronounced in our times. We have
already indicated that our constitutional scheme permits the setting up of
such Tribunals. However, drastic measures may have to be resorted to in
order to elevate their standards to ensure that they stand up to constitu-
tional scrutiny in the discharge of the power of judicial review conferred
B
upon them.

We may first address the issue of exclusion of the power of judicial
review of the High Courts. We have already held that in respect of the
power of judicial review, the jurisdiction of the High Courts under Article
226/227 cannot wholly be excluded. It has been contended before us that C
the Tribunals should not be allowed to adjudicate upon matters where the
vires of legislations is questioned, and that they should restrict themselves
to handling matters where constitutional issues are not raised. We cannot
bring ourselves to agree to this proposition as that may result in splitting
up proceedings and may cause avoidable delay. lf such a view were to be D
adopted, it 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 con-
stitutional questions on a regular basis; for instance, in service law matters,
a large majority of case.~ involve an interpretation of Articles 14, 15 and 16 E
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
Articles 226/227 of the Constitution before a Division Bench of the High F
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 arc filtered out through the process of
adjudication in the Tribunal. The High Court will also have the benefit of
a reasoned decision on merits which will be of use to it in finally deciding G
the matter.

It has also been contended before us that even in dealing with cases
which are properly before the Tribunals, the manner in which justice is
dispensed by them leaves much to be desired. Moreover, the remedy H
1246 SUPREME COURT REPORTS [1997] 2 S.C.R.

A provided in the parent statutes, by way of an appeal by special leave under
Article 136 of the Constitution, is too costly and inaccessible for it to be
real and effective. Furthermore, the result of providing such a remedy is
that the docket of the Supreme Court is crowded with decisions of
Tribunals that are challenged on relatively trivial grounds and it is forced
B to perform the role of a First Appellate Court. We have already em-
phasised the necessity for ensuring that the High Courts are able to .
exercise judicial superintendence over the decisions of .Tribunals· under
Article 227 of the Constitution. In R.K. Jai11's case, after taking note of
these facts, it was suggested that the possibility of an appeal from the
Tribunals on questions of law to a Division Bench of a High Court within
c whose territorial jurisdiction the Tribunal falls, be pursued. It appears that
no follow-up action has been taken pursuant to the suggestion. Such a
measure would have improved matters considerably. Having regard to both
the afore-stated contentions, we hold that all decisions of Tribunals,
whether created pursuant to Article 323A or Article 323B of the Constitu-
D tion, will be subject to the High Court's writ jurisdiction under Articles
226/227 of the Constitution, before a Division Bench of the High Court
within whose territorial jurisdiction the particular Tribunal falls.

We may add here that under the existing system, direct appeals have
E been provided from the decisions of all Tribunals to the Supreme Court
under Article 136 of the Constitution. In view of our above-mentioned
observations, this situation will also stand modified. In the view that we
have taken, no appeal from the decision of a Tribunal will directly lie
before the Supreme Court under Article 136 of the Constitution; hut
instead, the aggrieved party will be entitled to move the High Court under
F
Articles 226/227 of the Constitution and from the decision of the Division
Bench of the High Court the aggrieved party could move this Court under
Article 136 of the Constitution.

Before moving on to other aspects, we may summarise our con-
G clusions 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 sub-
stitutes for the High Courts and the Supreme Court which have, under our
constitutional setup, been specifically entrusted with such an obligation.
H Their function in this respect is only supplementary and all such decisions
L. CHANDRA KR. v. U.0.I. [AHMADI, CJ.) 1247

of the Tribunals will be subject to scrutiny before a Division Bench of the A
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 B
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 subject to scrutiny before a Division Bench of their respective High
Courts. We may add that the Tribunals will, however, continue to act as
c
the only courts of first instance in respect of the areas of law for which
they have been constituted. By this, we mean that it will not be open for
litigants to directly approach the High Courts even in cases where they
question the vires of statutory legislations (except, as mentioned, where the
legislation which creates the particular Tribunal is challenged) by overlook- D
ing the jurisdiction of the concerned Tribunal.

The directions issued by us in respect of making the decisions of
Tribunals amenable to scrutiny before a Division Bench of the respective
High Courts will, however, come into effect prospectively i.e. will apply to E
decisions rendered hereafter. To maintain the sanctity of judicial proceed-
ings, we have invoked the doctrine of prospective over-ruling so as not to
disturb the procedure in relation to decisions already rendered.

We are also required to address the issue of the competence of those F
who man the Tribunals and the question of who is to exercise administra-
tive supervision over them. It has been urged that only those who have had
judicial experience should be appointed to such Tribunals. In the case of
Administrative Tribunals, it has been pointed out that the administrative
members who have been appointed have little or no experience in ad-
judicating such disputes; the Malimath Committee has noted th:i.t at times, G
IPS Officers have been appointed to these Tribunals. It is stated that in the
short tenures that these Administrative Members are on the Tribunal, they
are unable to attain enough experience in adjudication and in cases where
they do acquire the ability, it is invariably on the eve of the expiry of their
tenures. For these reasons, it has been urged that the appointment of H
~
1248 SUPREME COURT REPORTS [1997] 2 S.C.R. \

A Administrative Members to Administrative Tribunals be stopped. We find
it difficult to accept such a contention. lt must be remembered that the
setting-up of these Tribunals is founded on the premise that specialist
bodies comprising both trained administrators and those with judicial
experience would, by virtue of their specialised knowledge, be better
equipped to dispense speedy and efficient justice. It was expected that a
B judicious mix of judicial members and those with grass-roots experience
would best serve this 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 Commit-
tee is now headed by a Judge of the Supreme Court, nominated by the
c Chief Justice of India, we have reason to believe that the Committee would
take care to ensure that administrative members arc 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
D 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 arc, however, of the view that this may not be the best way of
solving the problem. Wc do not think that our constitutional scheme
E requires that all adjudicatory bodies which fall within the territorial juris-
diction of the High Courts should be subject to their supervisory jurisdic-
tion. If the idea is to divest the High Courts of their onerous burdens, then
adding to their supervisory functions cannot, in an;' manner, be of assis- ·
lance to them. The situation at present is that different Tribunals con-
F stituted under different enactments are administered by different
administrative departments of the Central and the State Governments. The
problem is compounded by the fact that some Tribunals have been created
pursuant to Central Legislations and some others have been created by
State Legislations. However, even in the case of Tribunals created by
G Parliamentary legislations, there is no uniformity in administration. We are
of the view that, until a wholly independent agency for the administration
of all such Tribunals can be set-up, it is desirable that all such Tribunals
should be, as far as possible, under a single nodal Ministry which will be

H
in a position to oversee the working .of these Tribunals. For a number of
reasons that Ministry should appropriately be the Ministry of Law. It would
be open for the Ministry, in its turn, to appoint an independent supervisory
-
'
L. CHANDRA KR. v. U.O.l. [AHMADI, C.J.] 1249

body to oversee the working of the Tribunals. This will ensure that if the. A·
President or Chairperson of the Tribunal is for some reason unable to take
sufficient interest in the working of the Tribunal, the entire system will not
langui<;h and the ultimate consumer of justice will not suffer. The creation
of a single umbrella organisation will, in our view, remove many of the ills
of the present system. If the need arises, there can be separate umbrella
B
organisations at the Central and the State levels. Such a supervisory
authority must try to ensure that the independence of the members of all
such Tribunals is maintained. To that extent, the procedure for the selec-
tion of the members of the Tribunals, the manner in which funds arc
allocated for the functioning of the Tribunals and all other consequential
details will have to be de~rly spelt out. c
The suggestions that we have made in respect of appointments to
Tribunals and the supervision of their administrative function need to be
considered .in detail by those entrusted with the duty of formulating the
policy in. this respect. That body will also have to take into consideration D
the comments of experts bodies like the LCI and the Malimath Committee
in this regard. We, therefore, recommend that the Union of India initiate
action in this behaif and after consulting all concerned, place all these
Tribunals under one single nodal department, preferably the Legal Depart-
ment.
E
Since we have analysed the issue of the constitutional validity of
Section 5(6) of the Act at length, we may no pronounce our opinion on
this aspect. Though the vires of the provision was not in question in Dr.
Mahabal Rani's case, we a believe that the approach adopted in that case, ·
the relevant portion of which has been extracted in the first part of. this . · p ·
judgment, is correct since it harmoniously resolves. the manner iii wlJ.ich .
Sections 5(2) and 5(6) can operate together. We wish to make it clear.tpat..:
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 G
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 Member. So construed, Section 5(6) will no longer be susceptible H
i

1250 SUPREME COURT REPORTS [1997] 2 S.C.R. ~I
A to charges of unconstitutionality.

In view of the reasoning adopted by us, we hold that clause 2( d) of
Article 323A and clause 3(d) of Article 323B, to the extent they exclude
the jurisdiction of the High Courts and the Supreme Court under Articles
226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the
B Act and the "exclusion of jurisdiction" clauses in all other legislations
enacted under the aegis of Articles 323A and 323B would, to the same
extent, be unconstitutional. The jurisdiction conferred upon the High
Courts under Articles 226/227 and upon the Supreme Court under Article
32 of the Constitution is part of the inviolable basic structure of our
C Constitution. While this jurisdiction cannot be ousted, other courts and
Tribunals may perform a supplemental role in discharging the powers
conferred by Articles 226/227 and 32 of the Constitution. The Tribunals
created under Article 323A and Article 323B of the Constitution arc
possessed of the competence to test the constitutional validity of statutory
provisions and rules. All decisions of these Tribunals will, however, be
D subject to scrutiny before a Division Bench of the High Court within whose
jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless,
continue to act like Courts of first instance in respect of the areas of law
for which they have been constituted. It will not, therefore, be open for
litigants to directly approach the High Courts even in cases where they
E question the vires of statutory legislations (except where the legislation
which creates the particular Tribunal is challenged) by overlooking the
jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and
constitutional and is to be interpreted in the manner we have indicated.

All these matters may now be listed before a Division Bench to
F enable them to be decided upon their individual facts in the light of the
observations contained in this judgment.

R.P. Matters disposed of.