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

- **Citation:** [1997] 2 S.C.R. 1186
- **Court:** Supreme Court of India
- **Decided:** 1997-03-18
- **Case number:** Civil Appeal No. 481 of 1980
- **Bench:** Am. Ahmadi, Cti, M.M. Punchhi, K. RAi\1ASWAMY, S.P. Bharucha, S. Saghir Ahmad, K. Venkataswami, K.T. Thomas
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-chandra-kumar-etc-etc-v-the-union-of-india-and-ors-etc-etc-15324
- **Pages:** 65

## Headnote

Constitution of llldia, 1950.
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) of Article 323A and sub-Clause (d) of clause (3) of Article 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 structure-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.•f onn 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
1
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 "aclusio11 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
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.
Administrative Law:
B
c
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, unconstitutionD
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
Tribunals.
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
E
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
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 court

## Text

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L. CHANDRA KUMAR ETC. ETC.
v.
THE UNION OF INDIA AND ORS. ETC. ETC.
MARCH 18, 1997
[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.
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) of Article 323A and sub-Clause (d) of clause (3) of Article 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 structure-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.•f onn 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
1
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 "aclusio11 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
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.
Administrative Law:
B
c
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, unconstitutionD
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
Tribunals.
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
E
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
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
G
of the Act excluded the jurisdiction of all courts except that of the Supreme H
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c
D
E
F
1188
SUPREME COURT REPORTS
[1997) 2 S.C.R.
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 excluded jurisdiction of High Courts and the Supreme Court under Article
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
grounds of challenge including challenge to the constitutional. validity of
Article 323A did not survive, and confined the decision only to the constitutional 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
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
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 jurisdiction, 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 Appeal 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 Constitution to iJe unconstitutional to the extent it empowered the Parliament to
exclude the jurisdiction of the High Courts under Article 226 of the Constitution. Section 28 of the Administrative Tribunals Act, 1985 was also held
to be unconstitutional to the extent it divested the High Courts of jurisdicH
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.
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 Constitution. The other cases also involved similar issues. Ultimately a
Division Bench of this Court felt that the decision in Sampath Jrumar v.
·Union of India [1987] 1 SCC 124 required to be comprehensively reconsidered and the matter be referred to a larger Bench. The matter was thus
referred to a Bench of seven Judges.
B
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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 unconstitutional; 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
power under Article 226 of the Constitution were unconstitutional, and
that the Tribunals being deprived of constitutional safeguards for ensuring their independence, were incapable of being effective substitutes for the '
High Courts.
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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
-'1'
[l997] 2S.C.R.
.
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
B
Tribunals have not lived upto expectations, keeping in view the massive
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
·-
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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 Company and United States, 73 L.Ed 2d 59-458 US 50, cited.
Constituent Assembly Debates-Vol. Vll, p. 953, referred to.
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.
c
1.3 The power vested in the High Court to exercise judicial superinD
tendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the constitution. This
is because a situation where the High Courts are divested of all other
judicial functions apart from that of constitutional interpretation, is equally to be avoided. [1237-FJ
1.4 Our Constitution ensures that the judidary 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
E
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
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 considered full and effective substitutes for the superior judiciary in dischargG
ing the function of constitutional interpretation. [1237-D]
H
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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.
B
c
D
E
F
G
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.
2.1 Section 28 of the Administrative Tribunals Act,1985 and the "exclusion 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]
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.
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 construed, Where a question involving the interpretation of a statutory
provision or rule in relation to the Constitution arises for the consideration
of a single Member Bench of the Administrative Tribunal, the proviso to
Section 5(6) will automatically apply and the Chairman or the Member
concerned shall refer the matter to a Bench consisting of at least two
Members, one of whom must be a Judicial Member. This will ensure that
questions involving the vires of a statutory provision or rule will never arise
for adjudication before a single Member Bench or a Bench which does not
Consist of a .Judicial 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 of Agricultural Research, [1994] 2
SCC 401 and Anwlya Chandra Kalita v. Union of India, [1991] 1 SCC 181,
upheld.
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 discharging the powers conferred by Articles 226/227 and 32 of the Constitution. However, in discharging this duty, they cannot act as substitutes for
H
the High Courts and the Supreme Court which have, under our constitu-
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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]
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 substitutionalrole in this respect. That such a situation is contemplated within the con·
stitutional scheme becomes evident from clause (3) of Articles 32 of the
Constitution. [1237-G-H; 1238-A]
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3.3 To hold that the Tribunals have no power to handle matters
involving constitutional issues would not serve the purpose for which they D
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 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 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
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.
G
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]
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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
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
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 proceedings, 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 expectaG
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 constitutional 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.
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
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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 Committee 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 administrative members are chosen from amongst those who have some backgronnd
to deal with such cases. [1248-A-C]
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
B
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 enactments 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 suD
pervision of their administrative function need to be considered in detail.
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 maintained. [1248-E-H, 1249-C-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 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; LCI, 124th Report on the High Court Arrears-A Fresh
Look (1988) and Report of the Arrears Committee (1989-90), cited.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 481 of
1980 Etc.
From the Judgment and Order dated 2.11.88 of the Madras High
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Court in W.P. No. 8673 of 1988.
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1196
SUPREME COURT REPORTS
(1997] 2 S.C.R.
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.
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
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. Bhattacharjee, for the appearing parties.
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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
provisions in different enactments which have been made the subject of
challenge. Between them, they raise several distinct questions of law; they
have, however been grouped together as all of them involve the consideration of the following broad issues:
(1) Whether the power conferred upon Parliament or the State
Legislatures, as the case may be, by sub clause ( d) of clause
(2) of Article 323A or by sub-clause ( d) of clause (3) of
Article 323B of the Constitution, totally exclude the jurisdiction of 'all courts', except that of the Supreme Court under
Article 136, in respect of disputes and complaints referred to
in clause (1) of Article 323A or with regard to all or any of
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L. CHANDRA KR. v. U.0.1. [AHMADI, C.J.]
1197
the matters specified in clause (2) of Article 323B, runs A
counter to the power of judicial review conferred on the High
Courts under Articles 226/227 and on the Supreme Court
under Article 32 of the Constitution?
(2) Whether the Tribunals, constituted either under Article 323A
or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory
provision/rule?
(3) Whether these Tribunals, as they are functioning at present,
can be said to be effective substitutes for the High Courts in
discharging the power of judicial review? If not, what are the
changes required to make them conform to their founding
objectives?
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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 concluded 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 AdH
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(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 conceded in Chopra's case". The "post- Sampath Kumar cases" which caused
the Division Bench to refer the present matter to us are as follows : J.B.
Chopra v. Union of India, (1987)1 SCC 422; M.B. Majumdar v. Union of
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India, (1990) 4 SCC 501; Amuya Chandra Kalila v. Union of India~ (1991]
1 SCC 181; R.K. Jain v. Union of India, (1993] 4 SCC 119 and Dr. Mahabal
Ram v. Indian Council of Agricultural Research, [1994) 2 SCC 401.
Before we record the contentions of the learned counsel who appeared before us, we must set out the legal and historical background
relevant to the present case.
Part XIV A of the Constitution was inserted through Section 46 of
the Constitution ( 42nd Amendment) Act, 1976 with effect from March
1,1977. It comprises two provisions, Articles 323A and 323B, which have,
for the sake of convenience, been fully extracted hereunder :
PART XIVA
TRIBUNALS
323-A. Administrative tribunals. --
(1) Parliament may, by law,
provide for the adjudication or
trial by administrative Tribunals
of disputes and complaints with
respect to recruitment and
conditions of service of persons
appointed to public services and
posts in connection with the
affairs of the Union or of any
State or of any local or other
authority within the territory of
India or under the control of the
Government. of India or of any
corporation owned or controlled
by the Government.
(2) A law made under clause (1)
may --
323-B. Tribunals for other
maters. -- (1) The appropriate
Legislature may, by law, provide
for the adjucation or trial by
tribunals of any disputes,
complaints, or offences with
respect to all or any of the
matters specified in clause (2}
with respect to which such
Legislature has power to make
laws.
(2)
(2) The mattters referred
to in clause (1) are the
following, namely :
L CHANDRA KR. v. U.0.1. [AI-I~lADI, C.J.)
1199
(a) provide
for
the
(a)
levy,
assessment,
A
establishment,
of an
administrative tribunal for
" , the union and a separate
administrative tribunal for
each State or for two or
more States;
(b) specifiy the jurisdiction,
powers (including the
powers to punish for
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
evidence) to be followed by
the said tribunals;
( d) exclude the jurisdiction of all
courts, except the jurisdiction
of the Supreme Coillt under
Article 136, with respect to
the disputes or complaints
referred to in clause (I);
( e) provide for the transfer to
each such administrative
tribunal of any cases
pending before any court or
other authority immediately
before the establishment of
such tribunal as would. have
been within the jur~sdiction
of such tribunal if the causes
collection
and
enforcement of any tax;
(b)
foreign exchange, import
and export across customs
frontiers;
(c)
industrial and labour
disputes;
( d)
land reforms by way of
acquisition by the State of
any estate as defined in
Article 31A or of any
rights therein or the
extinguishment
or
modification of any such
rights or by way of ceiling
on agricultural land or in
any other way;
( e)
ceiling on urban property;
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SUPREME COURT REPORTS
[1997] 2 S.C.R.
A
of action on which such
suits or proceedings are
based had arisen after such
establishment;
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(t)
repeal or amend any order
made by the
president
under clause (3) of Article
3710;
(g)
contain such supplemental,
incidental
and
consequential provisions
(including provisions as to
fee) as Parliament may
deem necessary for the
effective functioning of, and
for the speedy disposal of
cases
by,
and
the
enforcement of the orders
of, such tribunals.
(3) The provisions ofthis article
shall
have
effect
notwithstanding anything in
any other provision of this
Constitution or in any other
law for the time being in
force.
(t)
elections to either House
of Parliament or the
House or either House of
the Legislature of a State,
but excluding the matters
referred to in Article 329
and Article 329 A;
(g)
production, procurement,
supply and distribution of
foodstuffs (including
edible oilseeds and oils)
and such other goods as
the President may, by
public notification, declare
to be essential goods for
the purpose of this article
and control of prices of
such goods;
(h)
offences against laws with
respect to any of the
matters specified in subclauses (a) to (g) and fees
in respect of any of those
matters;
(i)
any matter incidental to
any of the matters
specified in sub-clauses
(a) to (h).
(3)
A law made under clause
(1) may --
L. CHANDRA KR. v. U.O.I. [AHMADI, C.J.]
(a)
provide
for
establishment
1201
the
of
a
hierarchy of tribunals;
(b)
specify the jurisdiction,
powers (including the
A
power to punish for
B
(c)
(d)
contempt) and authority
which may be exercised by
each of the said tribunals ;
provide for the procedure
(including provisions as to
limitation and rules of
evidence ) to be followed
by the said tribunals ;
exclude the jurisdiction of ·
all courts except the
jurisdiction of the Supreme
Court under Article 136
with respect to all or any of
the matters failing . within
the jurisdiction of the said
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tribunals;
.
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( 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
or proceedings are based
had arisen after such
establishment;
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(1997) 2 S.C.R.
(t)
contain
such
supplemental, incidental
and consequential provisions (including provisions
as to fees) as the appropriate Legislature may
deem necessary for the
effective functioning of,
and for the speedy
disposal of cases by, 'and
the enforcement of the
orders of, such tribunals.
( 4) The provisions of this article
shall
have
effect
notwithstanding anything in any
other provision
of this
Constitution or in any other law
for the time being in force.
Explanation. -- In this article,
"appropriate legislature'', in
relation to any matter, means
Parliament or, as the case may
be,
a State Legislature
competent to make laws with
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
resolve them. Such an analysis will have to consider the working of the two
provisions separately.
A1ticle 323 A
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In pursuance of the pow~r conferred upon it by clause (1) of Article
.,
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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 Administrative Tribunals to deal exclusively with service matters would go a
long way in not only reducing the burden of the various courts and thereby
giving them more time to deal with other cases e>..lJeditiously but would
B
also provide to the persons covered by the Administrative Tribunals speedy
relief in respect of their grievances."
Pursuant to the provisions of the Act, the Central Administrative
Tribunal, with five Benches, was established on November 1,1985. However, even before the Tribunal had been established, several writ petitions
had been filed in various High Courts as well as this Court challenging the
c
· 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 Constitution and of that of the High Courts under Article 226 of the Constitution.
Through an interim order dated October 31, 1985, reported as S.P. Sampath Kumar v. Union of 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 undertaking given to this Court at the interim stage by the erstwhile Attorney
General, An amending Act (Act 19 of 1986) was enacted.to bring about
the changes prescribed in the aforesaid interim order.
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
F
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
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SUPREME COURT REPORTS
[1997) 2 S.C.R.
institutional mechanisms as its foundation, the Court proceeded to analyse
the provisions of the Act in order to ascertain whether they passed constitutional muster. The Court came to the conclusion that the Act, as it
stood 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 amendments were given the force of law by an amending Act (Act 51 of 1987)
after the conclusion of the case and the Act has since remained unaltered.
We may now analyse the scheme and the salient features of the Act
as it stands at the present time, inclusive as it is of the changes suggested
in Sampath Kumar's case. The Act contains 37 Sections which are housed
in five Chapters. Chapter I ("Preliminary") contains three Sections; Section
3 is the definition clause.
Chapter II ("Establishment of Tribunals and Benches thereof') contains Sections 4 to 13.