a, the landmark case which decided on the constitutionality of Articles 32A and 323B as

they dealt with the exclusion of jurisdiction of High Court in service matters. The
judgment contains oft quoted distinction between Courts of Law and Tribunals.
INTRODUCTION
There were enormous controversies regarding the constitutionality of Article 323A and
323B as it was felt that the exclusion of the jurisdiction of the High Court in relation to
service matters was against the spirit of the Constitution. In numerous cases right from
Keshavnanda Bharatis (Keshavanand Bharti v. State of Kerela[1]) case to Sampat
Kumars case[2] and beyond the Courts have tried to set this controversy to rest but in
the process further creating more controversies. However the matter finally rested in the
landmark judgment of L. Chandra Kumars case. A thorough discussion of this case
goes a long way in clarifying the positions of the Administrative Tribunals vis-a-vis the
power of judicial review and the basic structure of the Constitution. Hence a case study
of
Facts of the Case
Pursuant to Article 323-A and 323-B of the Constitution of India 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 the Supreme Court, challenging the constitutional
validity of Article 323-A, on the ground that it is contrary to the spirit of the Constitution
as it excludes the jurisdiction of the Supreme Court under Article 32 of the Constitution
and the High Court under Article 226 of the Constitution. Through an interim order[3] in
S. P. Sampat Kumar v. Union of India[4] the Supreme Court, in order to ensure the
functioning of the Tribunal along with sound Constitutional principles, directed carrying
out of certain measures.
When Sampat Kumars case was finally heard, these changes had already been
incorporated in the body and text of the Act. The Supreme Court took the view that most
of the original grounds of challenge which included the challenge to the constitutional

validity of Article 323-A did not survive and restricted its focus to testing only the
validity of the provisions of the act. In the final decision it was held that though judicial
review is the 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 Court, would
not be violative of the basic structure of the Constitution, so long it was ensured that the
alternative mechanism was an effective and real substitute for the High Court.
Similar questions were raised subsequently in many cases and one of them was L.
Chandra Kumar v. Union of India[5]. In this case after analyzing the relevant
Constitutional provisions and the circumstances which led to the decision in Sampat
Kumars case, the bench reached the conclusion that:- on account of the divergent view
expressed by the Supreme Court in a series of cases after Sampat Kumars case, the
resulting situation warranted a fresh look by a larger Bench over all the
issues adjudicated by the Court in Sampat Kumars case including the question whether
the Tribunal can at all have an Administrative Member on its bench, if it were to have the
power of even deciding the constitutional validity of a statute or Article 309 rule as
decided in J. B. Chopra v. Union of India[6].The present case under discussion is the
very case where the larger bench looked over all the issues adjudicated by the Court in
Sampat Kumars case.
Issues raised:
1. Whether the power conferred upon the Parliament by Article 323-A (2) (d) or
upon the State Legislature by Article 323-B (3) (d) of the Constitution of India, to
totally exclude the jurisdiction of all courts, except that of the Supreme Court
under Article 136 ?
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 or rule?
3. Whether the Tribunals, as they are functioning at present, can be said to be the
effective substitutes for the High Court in discharging the power of judicial

review? If not, what are the changes required to make them conform to their
founding objectives?
Judgment
Issue 1 :- Whether the power conferred upon the Parliament by Article 323-A (2) (d) or
upon the State Legislature by Article 323-B (3) (d) of the Constitution of India, to 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 Article 323-A (1) or with regard
to all or any of the matters specified in Article 323-B (2), runs contrary to the power of
judicial review conferred on the High Court u/as 226/227 and on the Supreme Court u/a
32 of the Constitution of India?
In adjudging this issue the Bench made a study of the provisions of the Administrative
Tribunals Act particularly Section 28. It pointed out that although Section 28 was
originally enacted in express terms with Article 323A of the Constitution and the only
exception was made in respect to the jurisdiction of the Supreme Court under Article
136 but when the final hearing of Sampat Kumars case was concluded the provision
was already amended to save the jurisdiction of the Supreme Court under Article 32 of
the Constitution. It also pointed out that as Sampat Kumar case was specifically related
with power of judicial review of the Supreme Court, and as it already had been returned
to the court, the court expressed itself satisfied with the position as it had emerged
during the pendency of Sampat Kumar case and the court did not ventured to address
the larger issue of whether Article 323A (2) also required a similar amendment.
The court also found that the main intention behind the Act was to provide for a selfcontained, self-sufficient and exclusive forum of adjudicating all service related matters.
But it made it clear that it was intended to perform a substitution role and not a
supplemental role.
Next it ventured in examining post-Sampat Kumar cases and found that those cases did
not specifically addressed the question regarding the power of the Administrative
Tribunals in striking down a statute or provision as unconstitutional. In J. B. Chopras
case[7] the Division Bench felt that it would follow as a logical and direct consequence

of the judgment in Sampat Kumars case. In M. B. Majumdar v. Union of India[8] the

bench held that Administrative Tribunals can be equated with High courts as regards to
its jurisdiction in service matters but not in case of service conditions of the members of
the tribunal. In R. K. Jain v. Union of India[9], which coincidently had the same bench as
in the discussed case, analyzed the relevant provisions, and cases such as Sampat
Kumar, Chopra, Majumdar etc. and found that the Tribunals under Article 323A cannot
be substitutes to the High Court as their performance was not satisfactory and also
because they leave the litigants with only one remedy under 136 by the way of appeal to
the Supreme Court which is costly affair. It suggested that an expert body like the Law
Commission of India should study the feasibility of providing an appeal to a two judge
Bench of the High Court from a decision of the Tribunals.
The court also took in view the suggestions made by the learned counsels. Mr. Rama
Jois and Mr. Shanti Bhushan urged the court to review the judgment in Sampat Kumars
case and contended that Articles 323A (2) (d) and 323B (3) (d) should be declared
unconstitutional to the extent they exclude the jurisdiction of the High Court. Mr. Bhatt,
the learned Additional Solicitor General, Mr. P. P. Rao and Mr. K. K. Venugopal on the
other hand urged the court to uphold the validity of the said Articles. Mr. A. K. Ganguly
cited that the power of judicial review vested on the constitutional Courts cannot be
bestowed on newly created quasi-judicial bodies which are susceptible to executive
influences. Next it went to discuss the other facet of this issue viz. judicial review and the
basic feature of the constitution. After citing various cases like Kesavananda Bharatis
case[10], dissenting view of Chandrachud J. in Indira Nehru Gandhi v. Raj Narain[11],
Minority judgment of Bhagwati J. in Minerava Mills v. Union of India[12] and the view, or
rather a revised view, of Chandrachud CJ. In Fertilizer Corporation Kamgar Union v.
Union of India[13], the Court came to the conclusion that judicial review is indeed a
basic feature of the Constitution.
Also the court relied on the view of Dr. B. R. Ambedkar, the Chairman of the Drafting
Committee of the Constitution of India regarding Article 25 (corresponding to the present
Article 32 of the Constitution) where he said that this Article is the very soul of the
Constitution.

Issue 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 or rule?
In this regard the court cited took help from the American practice regarding judicial
review. The court also found that the definition of judicial review in America and in India
are similar and therefore went on to review the position of judicial review in America and
for this relied on the view of Henry J. Abraham(Henry J. Abraham, The Judicial
Process[14], an acclaimed American Constitutional Law scholar. It found that
theoretically every Court in America, no matter how high or low, had the power of
judicial review although it is seldom used. That is there is no blanket prohibition on the
conferment of judicial power upon Courts other than the U. S. Supreme Court.
The court also agreed that if the power of judicial review under Article 32 of the
Constitution, which has been described as the heart and soul of the Constitution, can be
additionally conferred on any other court, there is no reason why the same cannot be
done in case of the power conferred upon the High Court under Article 226 of the
Constitution. However it is must that the jurisdiction of the High Court under Articles
226/227 and of the Supreme Court under Article 32 is retained and the Tribunals
function as a supplementary body.
In giving the reason of this view the learned Court pointed out the following points:
In view of the unprecedented increase of litigation it is necessary to provide Tribunals
with supplementary power of judicial review. In this regard the decision in Sampat
Kumars case was correct as it adopted the theory of alternative institutional mechanism
in such a backdrop of serious backlog of cases in the High Court.

It is very necessary for clearing the backlog of pending cases which has
assumed a colossal proportion.

Although the Tribunals have not performed upto the expectations it would not be
satisfactory to attribute these problems to the very basic principles of its

establishment and hold them as unsound. The reasons for the establishment of
the Tribunals still persist and have become more pronounced in the recent times.
However it held that the jurisdiction of the Tribunals would be subject to the review of the
High Court under Articles 226/227. This would serve two purposes; one it will ensure
that frivolous claims would be filtered out through the process of adjudication in the
Tribunal and two, the High Court will not lose its power of judicial review. Thus the
Supreme Court held that 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 or rule subject to the review by the High Court.
Issue 3 :- Whether the Tribunals, as they are functioning at present, can be said to be
the effective substitutes for the High Court in discharging the power of judicial review? If
not, what are the changes required to make them conform to their founding objectives?
The Court throughout the judgment pointed out that the Tribunals are not substitutes of
the High Court but are supplementary. Moreover it suggested the following changes:

They will function as a supplementary body and all such decisions of the
Tribunals will be subject to the scrutiny before a Division Bench of the respective
High Courts.

The contention that appointment of Administrative members to Administrative

tribunals should be stopped cannot be accepted as a judicious mix of judicial
members and those with grass-root experience would be better suited for the
purpose of speedy and efficient discharge of justice.

To remove the inefficiency of the Tribunals the tribunals should be made subject
to the supervisory jurisdiction of the High Court.

The Ministry may appoint an independent supervisory body to oversee the

working of the tribunals.

Ratio Decendi

Power of judicial review over legislative action vested in the High Courts and the
Supreme Court under Articles 226 and 32 respectively is the basic structure of
the Constitution.

Power of judicial superintendence over decisions of all courts and Tribunals

within their jurisdiction is the basic structure of the Constitution

Judicial review of legislative action in exercise of power by subordinate judiciary

or Tribunals created under ordinary legislation cannot be to the exclusion of the
High Courts and the Supreme Court. However they can perform supplemental
as opposed to substitutional role in this respect.

Tribunals constituted under Articles 323A and 323B have the power to test vires
of subordinate legislation except vires of their parent statutes. All its decisions
would be subject to scrutiny before Division Bench of their respective High Courts
under Articles 226/227. No appeal would lie directly to the Supreme Court under
Article 136. The said direction would operative prospectively.

Appointment of Administrative members need not be stopped.

Till a wholly independent body is set for the purpose of overseeing the working of
the Tribunals, all such Tribunals will be under single nodal ministry whose
members would be appropriately be a Ministry of Law.

Decision
All the matters are to be listed before a Division Bench to enable them to be decided
upon their individual facts in the light of the observations contained in the judgment
Edited By Amoolya Khurana
Bottom of Form
[1] (1973) 4 SCC 225 : AIR I973 SC 1461
[2] (1987) 1 SCC 124 : AIR (1987) SC 386)

[3] [Dt/- Oct 31, 1985]

[4] [(1987) 1 SCC 124 : AIR (1987) SC 386
[5] ( (1995) 1 SCC 400 : (1995) AIR SCW 1200)
[6] (1987) 1 SCC 422 : AIR (1987) SC 357
[7] ((1987) 1 SCC 422 : AIR (1987) SC 357)
[8] [(1990) 4 SCC 501 : AIR (1990) SC 2263]
[9] [(1993) 4 SCC 119 : AIR (1993) SCW 1899]
[10] ((1973) 4 SCC 225 : AIR I973 SC 1461)
[11] ((1975) Supp SCC 1 : AIR 1975 SC 229)
[12] ((1980) 3 SCC 625 : AIR 1980 SC 1789)
[13] ((1981) 1 SCC 568 : AIR 1981 SC 344)
[14] 4th edn. Oxford University Press (1980)