L. Chandra Kumar v. Union of India

A seven-Judge Bench heard a batch of appeals and writ (a court's formal order) petitions on the judicial review (a court's power to test the validity of a law) powers of Tribunals set up under Articles 323A and 323B. It reconsidered the Constitution Bench's decision in S.P. Sampath Kumar v. Union of India, which had let these Tribunals wholly replace the High Courts' writ jurisdiction. The Court held that judicial review of legislation by the High Courts and the Supreme Court cannot be excluded. Tribunals can still test the vires (validity, within the powers granted) of laws, subject to appeal to a Division Bench of the High Court.

Quick Revision

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Parties

L. Chandra Kumar — appellant in Civil Appeal No. 481 of 1989, the lead matter challenging Section 5(6) of the Administrative Tribunals Act, 1985 (paras 3, 44, 48).

Union of India and others — respondent in the lead matter and a party defending the Act and the impugned constitutional provisions, represented by the Additional Solicitor General, Mr. K.N. Bhat (paras 40, 44).

State of West Bengal — appellant/respondent in the connected Civil Appeal Nos. 1532-33 of 1993 and S.L.P. No. 1063 of 1996, arising from conflicting orders of the West Bengal Taxation Tribunal and the Calcutta High Court (paras 37, 46).

State of Andhra Pradesh — party in Civil Appeal No. 196 of 1994 and connected special leave (permission to appeal, granted at the Supreme Court's discretion) petitions, defending the constitutionality of the impugned provisions while urging administrative reform of the Tribunals (paras 45, 49).

Registrar, Principal Bench of the Central Administrative Tribunal — second respondent in Civil Appeal No. 481 of 1989, represented before the Court to give its own account of how the Tribunals function (para 48).

Mr. Kiran K. Shah — petitioner in Writ Petition No. 789 of 1990, a lawyer practising before the Ahmedabad Bench of the Central Administrative Tribunal (para 47).

Petitioner in Writ Petition No. 918 of 1992 — represented by Mr. Rama Jois, one of the counsel who argued for striking down the impugned provisions (para 41).

Procedural History

1. The batch of matters originated in separate decisions of different High Courts and separate enactments. They were joined together because they raised common questions on the powers of Tribunals under Articles 323A and 323B (para 1).
2. The controversy was referred to this seven-Judge Bench by an order of a Division Bench of the Supreme Court dated 2 December 1994. That order concluded that the Constitution Bench decision in S.P. Sampath Kumar v. Union of India needed comprehensive reconsideration (para 3).
3. The Court confined itself to the larger issues common to the whole batch. The individual facts of each matter were left to be applied later by a Division Bench (para 2).
4. The referring Division Bench had reached its conclusion after considering arguments in the first matter, Civil Appeal No. 481 of 1989. That appeal challenged the validity of Section 5(6) of the Administrative Tribunals Act, 1985, in light of the post-Sampath Kumar cases: J.B. Chopra, M.B. Majumdar, Amulya Chandra Kalita, R.K. Jain and Dr. Mahabal Ram (paras 3-4).
5. One of the matters in the batch, Civil Appeal No. 169 of 1994, challenged a judgment of a Full Bench of the Andhra Pradesh High Court, delivered by M.N. Rao, J. in Sakinala Harinath and Ors. v. State of A.P. That judgment had declared Article 323A(2)(d) unconstitutional to the extent it excludes High Courts' jurisdiction under Article 226, and Section 28 of the Act unconstitutional to the same extent (paras 30-34).
6. The Andhra Pradesh High Court held that Sampath Kumar's case was per incuriam (decided without noticing a binding earlier decision) on this point, and so not binding on it (paras 30-34).
7. Civil Appeal Nos. 1532-33 of 1993 arose from conflicting orders. The West Bengal Taxation Tribunal upheld certain West Bengal tax provisions on 9 October 1991. The Calcutta High Court, in a writ petition raising the same challenge, then declared the same provisions unconstitutional on 25 November 1992, despite an ouster clause in Section 14 of the West Bengal Taxation Tribunal Act, 1987 (para 37).
8. Special Leave Petition No. 17768 of 1991 challenged a Madras High Court judgment holding that the Tamil Nadu Land Reforms Special Appellate Tribunal did not affect the Madras High Court's power to issue writs under Article 226 (para 38).
9. The Court heard senior counsel for the various parties, the Additional Solicitors General, counsel for the Registrar of the Central Administrative Tribunal, and other counsel and litigants-in-person (paras 40-49).
10. The Court delivered its judgment on 18 March 1997, laying down the broad principles to govern the whole batch (para 2).
11. The Court directed that all the individual matters be listed before a Division Bench to be decided on their own facts, in the light of this judgment (para 101).

Facts

1. Part XIVA of the Constitution, comprising Articles 323A (Administrative Tribunals) and 323B (Tribunals for other matters), was inserted by Section 46 of the Constitution (42nd Amendment) Act, 1976, with effect from 1 March 1977 (para 5).
2. Clause (2)(d) of Article 323A and Clause (3)(d) of Article 323B let Parliament or a State Legislature exclude every court's jurisdiction, except the Supreme Court's under Article 136, over matters given to these Tribunals. Article 323A(2)(d) itself named land reforms under Article 31A as one such matter for State Tribunals (para 5).
3. Parliament used Article 323A to enact the Administrative Tribunals Act, 1985, to relieve High Courts of the burden of service-matter litigation and give speedy relief through Administrative Tribunals (paras 6-7). Section 3 of the Act, in Chapter I, is the definition clause (para 10).
4. The Central Administrative Tribunal, with five Benches, was established on 1 November 1985 under the Central Government's power in Section 4 to set up Central, State and Joint Administrative Tribunals. Even before that, writ petitions had challenged the validity of Article 323A and the Act, mainly on the ground that they excluded the Supreme Court's jurisdiction under Article 32 and the High Courts' jurisdiction under Article 226 (para 8).
5. An interim order of 31 October 1985 in S.P. Sampath Kumar v. Union of India directed changes to the Tribunal's functioning. An amending Act (Act 19 of 1986) carried these out (para 9).
6. When Sampath Kumar's case was finally heard, the Court held that judicial review is a basic feature. But an alternative institutional mechanism can validly replace the High Courts if it is an effective and real substitute. It found the Act then fell short and suggested amendments, given effect by Act 51 of 1987 (para 9).
7. As it now stands, the Act has 37 Sections in five Chapters (Sections 4 to 13 form Chapter II, on establishing Tribunals and Benches). Section 5(2) says a Bench ordinarily has one Judicial and one Administrative Member. Section 5(6) lets the Chairman authorise a single-Member Bench for specified classes of cases, with a proviso to transfer a case to a two-Member Bench if it needs that (paras 10-11).
8. Section 6 sets qualifications for Chairman, Vice-Chairman and Members: a High Court Judge or a person qualified to be one, or someone with prescribed years of government service at Secretary/Additional Secretary/Joint Secretary level, plus administrative experience for Administrative Members (para 12).
9. All Members are appointed by the President. For State and Joint Tribunals, the President also consults the Governor(s) concerned. For the Chairman, Vice-Chairman and Members of all Tribunals under the Act, the President also consults the Chief Justice of India (paras 13-14). Under Section 8, a Member's term is five years, renewable, up to age 65 for the Chairman/Vice-Chairman and 62 for other Members. Section 10 lets the Central Government fix Members' salaries, which cannot be changed to their disadvantage after appointment (para 14).
10. Chapter III (Sections 14 to 18) gives the Tribunals the same jurisdiction and powers over service matters as every other court in the country, except the Supreme Court's: Section 14 for the Central Tribunal, Section 15 for State Tribunals and Section 16 for Joint Tribunals. Section 17 gives them the same contempt powers as a High Court (para 15).
11. Chapter IV (Sections 19 to 27) fixes strict limitation periods under Section 21, with no power to condone delay (para 16). Chapter V, headed Miscellaneous, runs from Section 28 to Section 37. It includes Section 28, headed Exclusion of jurisdiction of courts, and Sections 35 and 36, which let the Central Government and the appropriate Government respectively make rules to implement the Act (paras 17-19).
12. Section 28, as originally enacted, excluded every court's jurisdiction except the Supreme Court's under Article 136. It was later amended, before Sampath Kumar's case was finally heard, to also save the Supreme Court's jurisdiction under Article 32 (para 18).
13. Besides the Central Administrative Tribunal, eight States had set up their own State Administrative Tribunals by the time of this judgment (para 21):
    • Andhra Pradesh (1 November 1989)
    • Himachal Pradesh (1 September 1986)
    • Karnataka (6 October 1986)
    • Madhya Pradesh (2 August 1988)
    • Maharashtra (8 July 1989)
    • Orissa (14 July 1986)
    • Tamil Nadu (12 December 1988)
    • West Bengal (16 January 1995)
14. After Sampath Kumar's case, several Division Benches of the Supreme Court had to apply its theory (paras 22-29):
    • J.B. Chopra v. Union of India held the Tribunal could adjudicate the constitutional validity of service rules made under Article 309.
    • M.B. Majumdar v. Union of India held Tribunal Members are not entitled to High Court Judges' salaries.
    • Amulya Chandra Kalita v. Union of India held a Tribunal Bench should ordinarily have two Members.
    • Dr. Mahabal Ram v. Indian Council of Agricultural Research harmonised Sections 5(2) and 5(6), so that constitutional or legal questions go to a two-Member Bench with a Judicial Member.
    • R.K. Jain v. Union of India recorded dissatisfaction with the Tribunals' functioning and recommended a Law Commission study.
15. Article 323B lets Parliament or State Legislatures set up Tribunals for matters such as taxation, foreign exchange, industrial and labour disputes, land reforms, ceilings on urban property, elections and essential goods. It carries the same power to exclude every other court's jurisdiction except the Supreme Court's under Article 136 (para 35).
16. Only four Tribunals had been set up under Article 323B: the West Bengal Taxation Tribunal (1989), the Rajasthan Taxation Tribunal (1995), the Tamil Nadu Land Reforms Special Appellate Tribunal (1990) and the Tamil Nadu Taxation Special Tribunal (1995) (para 36).
17. A preliminary appraisal of the Act's framework showed it was meant to be an almost wholly exclusive forum for service disputes. The Tribunals were intended to play a substitution role, not a supplemental role, towards the High Courts (para 20). It was against this background, and the conflicting Tribunal and High Court orders described above, that the Court had to test the propositions put to it (para 39).

Issues Raised

1. Article 323A(2)(d) and Article 323B(3)(d) let Parliament or a State Legislature exclude every court's jurisdiction except the Supreme Court's under Article 136. Does this run counter to the High Courts' power of judicial review under Articles 226/227 and the Supreme Court's power under Article 32? (para 1)
2. Do the Tribunals set up under Article 323A or Article 323B have the competence to test the constitutional validity of a statutory provision or rule? (para 1)
3. Can these Tribunals, as they function at present, be said to be effective substitutes for the High Courts in exercising judicial review? If not, what changes are needed to make them conform to their founding objectives? (para 1)

Arguments Contended

• For the appellants/petitioners (challenging the Tribunals' exclusive jurisdiction):
  • Mr. Rama Jois (para 41):
    • Section 5(6), letting a single-Member Bench test constitutional validity, is unconstitutional.
    • Articles 323A/323B cannot let Parliament exclude Articles 32/226/227, since Parliament's constituent power cannot be delegated to ordinary legislatures. This violates the basic structure.
    • Tribunals lack the constitutional safeguards that make High Courts effective bodies for judicial review: status as courts of record under Article 215; the power under Articles 132 and 133 to certify appeals to the Supreme Court; and the qualifications and safeguards that secure Judges' independence.
    • Unlike a High Court, whose jurisdiction is constitutionally protected, a Tribunal can be abolished simply by repealing its parent statute. A High Court's expenditure is charged to the Consolidated Fund of the States, while Tribunals depend on the government for funds.
    • The High Courts' power of superintendence over all Tribunals in their territory cannot be excluded either.
  • Mr. Shanti Bhushan (para 42):
    • The 42nd Amendment was motivated by distrust of the judiciary, meant to shift constitutional jurisdiction to executive-controlled bodies.
    • The validity of Article 323A(2)(d) must be judged on its potential to exclude Article 32 jurisdiction in future, not just on how the Act currently uses that power.
    • Judicial review under Articles 32/226 is part of the basic structure, citing Kesavananda Bharati's case, Fertiliser Corporation Kamgar Union v. Union of India and Delhi Judicial Service Association v. State of Gujarat.
    • The theory of alternative institutional mechanisms ignores that High Courts' authority also rests on their institutional traditions, which new Tribunals cannot replicate, citing Pratibha Bonnerjea v. Union of India.
  • Mr. A.K. Ganguli, adopting these arguments, added that the power to interpret the Constitution is solely for the constitutional courts and cannot go to bodies open to executive influence (para 43).
• For the respondents (defending the Tribunals and the impugned provisions):
  • Mr. K.N. Bhat, Additional Solicitor General (para 44):
    • Article 32 was never intended to be excluded and remains sacrosanct; only Article 226 was meant to be replaced by an alternative mechanism.
    • The High Courts retain supervisory or corrective jurisdiction over the Tribunals regardless.
    • The theory in Sampath Kumar's case needs no reconsideration.
  • Mr. P.P. Rao, for the State of Andhra Pradesh (para 45):
    • The real problem is High Court backlog, which expert committees have consistently urged be solved by transferring some jurisdiction to specialist Tribunals.
    • Separation of powers (dividing government functions among the legislature, executive and judiciary), not Articles 32/226 individually, is the true basic feature.
    • Since Article 136 preserves the judiciary's final say, the basic feature of judicial review is not violated.
    • Ordinary civil courts already test the vires of subordinate rules under Order XXVII-A, Rule 1A.
    • In the alternative, the doctrine of reading down (interpreting a provision narrowly enough to keep it valid) could save the provisions by letting High Courts retain a supervisory role.
  • Mr. K.K. Venugopal, for the State of West Bengal (para 46):
    • The provisions do not oust Article 32, since Article 32(3) itself lets Parliament delegate that jurisdiction to other courts.
    • Alternatively, the words under Article 136 could be severed using the doctrine of severability (striking down only the invalid part of a provision).
    • The 42nd Amendment was validly made in exercise of Parliament's constituent power, to remedy inefficacious justice delivery.
  • Mr. Kiran K. Shah described practical problems faced by advocates before the Central Administrative Tribunal (para 47).
  • The Registrar of the Central Administrative Tribunal, through Mr. Kapil Sibal, said the Tribunals are not yet effective substitutes for the High Courts. He said creating alternative mechanisms is not itself unconstitutional so long as they are as efficacious. He urged discontinuing Administrative Members and securing Members' tenure (para 48).
  • Mr. V.R. Reddy, Additional Solicitor General, defended the Madras High Court's judgment on the Tamil Nadu Land Reforms Special Appellate Tribunal, saying post-Sampath Kumar amendments made it an effective substitute (para 49).

Court's Reasoning

The judgment is a single opinion delivered by A.M. Ahmadi, C.J.I. for the Bench of seven Judges (M.M. Punchhi, K. Ramaswamy, S.P. Bharucha, S. Saghir Ahmad, K. Venkataswami and K.T. Thomas, JJ. concurring).

A.M. Ahmadi, C.J.I. (for the Bench)

Comparative and historical background on judicial review

1. Noted: the Court turns to the main issues identified at the outset, requiring an appreciation of judicial review and of the manner and instrumentalities through which it is exercised (para 50).
2. Noted: the Andhra Pradesh High Court's judgment had relied on American constitutional law, under which judicial power in Article III Courts cannot be performed by legislative courts. It cited National Mutual Insurance Co. of D.C. v. Tidewater Transfer Co., Thomas S. Williams v. United States, Cooper v. Aaron and Northern Pipeline Construction Co. v. Marathon Pipeline Co. (para 51).
3. Noted: under Henry J. Abraham's definition, judicial review in the United States is the power of any court, however low, to hold a law or official action unconstitutional (para 52).
4. Noted: Section 1 of Article III of the U.S. Constitution vests judicial power in the Supreme Court and in inferior courts Congress may establish, with tenure and salary protections for their judges (para 53).
5. Held: Article III itself lets the U.S. Congress confer judicial power on inferior courts. There is no blanket bar on conferring judicial power on courts other than the U.S. Supreme Court (para 54).
6. Noted: judicial review in India covers judicial review of legislative action, of judicial decisions and of administrative action; only the first two concern this case (para 55).
7. Noted: Marbury v. Madison first enunciated that "It is emphatically the province and duty of the judicial department to say what the law is", and that a law inconsistent with the Constitution is void (para 56).
8. Noted: in State of Madras v. V.G. Row, Patanjali Sastri, C.J. held that, unlike the American due-process clause, India's Constitution expressly provides for judicial review. Courts exercise this acting as a vigilant sentinel, while giving weight to the legislative judgment (para 57).
9. Noted: over the years this Court had many occasions to express its views on judicial review of legislative action, which the judgment goes on to analyse (para 58).
10. Noted: in Bidi Supply Co. v. Union of India, Bose, J. held that "the heart and core of democracy lies in the judicial process". Uncontrolled discretionary powers cannot be left to executive bodies, even where Parliament itself lacks unfettered power (para 59).
11. Noted: in Special Reference No. 1 of 1964, Gajendragadkar, C.J. held that the Constitution entrusts the judiciary with construing the Constitution and safeguarding fundamental rights. Adjudicating whether a law exceeds legislative authority is for the judiciary alone (para 60).
12. Noted: Sastri, C.J. traced judicial review to the Constitution's express text. Gajendragadkar, C.J. traced it instead to the separation of powers among the three organs of government (para 61).

Judicial review after Kesavananda Bharati's case

1. Noted: in Kesavananda Bharati's case, a thirteen-Judge Bench held, by 7:6, that Parliament's power to amend the Constitution under Article 368 cannot be used to damage its basic structure. Khanna, J. held that judicial review of laws, for consistency with fundamental rights, had become integral to the constitutional system (para 62).
2. Noted: Shelat and Grover, JJ. in the same case held that Articles 226 and 32 create a system of checks and balances among the three organs of government (para 63).
3. Noted: in Indira Nehru Gandhi v. Raj Narain, a five-Judge Bench struck down a provision ousting all courts' jurisdiction in election matters. The Judges gave differing reasons (paras 64-65):
   • Ray, C.J. held judicial review is not founded on any specific Article, unlike in America, and is not a compulsion in election matters, though judicial power itself cannot be shared with the executive or legislature.
   • Mathew, J. held that, unlike in the United States and Australia, judicial power is not exclusively vested in the Supreme Court and the courts subordinate to it.
   • Khanna, J. did not directly address the point.
   • Beg, J. tied judicial review to the supremacy of the Constitution.
   • Chandrachud, J. held the Constitution itself excludes judicial review in some matters, such as Articles 136(2), 226(4), 262(2), 103(1) and 329(a).
4. Noted: in Minerva Mills Ltd. v. Union of India, the majority (Chandrachud, C.J. for four Judges) struck down Article 31-C's exclusion of judicial review. It held that "rights without remedies are as writ in water", and that courts must decide whether restrictions under Article 19 are reasonable (paras 66-67).
5. Noted: the Minerva Mills majority did not hold that judicial review, by itself, is part of the basic structure. This is consistent with Chandrachud, J.'s own view in Indira Gandhi's case (para 68).
6. Noted: in his minority opinion in Minerva Mills, Bhagwati, J. held that judicial review under Articles 32 and 226 is unquestionably part of the basic structure of the Constitution. He added that effective alternative institutional mechanisms could still be created by Parliament (para 69).
7. Noted: the Andhra Pradesh High Court had pointed out that Bhagwati, J.'s theory of alternative institutional mechanisms, later adopted in Sampath Kumar's case by Bhagwati, C.J. and R. Misra, J., appeared only in this minority opinion, not in the Minerva Mills majority (para 70).
8. Noted: in Fertiliser Corporation Kamgar Union v. Union of India, Chandrachud, C.J. revised his earlier view. He held that the Supreme Court's jurisdiction under Article 32 is an important and integral part of the basic structure of the Constitution (para 71).
9. Noted: in Kihoto Hollohan v. Zachillhu, a provision of the Tenth Schedule excluding judicial review of Speakers' decisions on disqualification was struck down. The minority (Verma, J.) held this violated the rule of law (the principle that everyone, including the government, is bound by law). The majority (Venkatachaliah, J.) left open whether judicial review is part of the basic structure (para 72).
10. Noted: Dr. B.R. Ambedkar called the draft Article 25, which became the present Article 32, "the very soul of the Constitution and the very heart of it". Several later judgments, including Khanna, J. in Kesavananda Bharati's case and Bhagwati, J. in Minerva Mills, have reiterated this (paras 73-74).
11. Noted: in Special Reference No. 1 of 1964, Gajendragadkar, C.J. held that if Articles 226 and 32 were not subject to exceptions, the existence of that judicial power would necessarily imply a citizen's right to invoke it (para 75).
12. Held: to decide whether judicial review is part of the basic structure, the Court applies a test from Indira Gandhi's case and Minerva Mills. It examines each feature's place, object and purpose in the constitutional scheme, and the consequence of its denial (para 76).
13. Held: this Court's precedents have consistently treated judicial review of legislative action, under Articles 226 and 32, as integral to the constitutional scheme, even where they differ on its precise source (para 77).

The basic-structure holding and the supplemental role of Tribunals

1. Held: the power of judicial review over legislative action, vested in the High Courts under Article 226 and in this Court under Article 32, is an integral and essential feature of the Constitution, constituting part of its basic structure. Subordinate judiciary or Tribunals lack the constitutional safeguards for tenure and independence that superior-court Judges have, so they can never be full and effective substitutes for the superior judiciary in constitutional interpretation. This jurisdiction can never be ousted or excluded (para 78).
2. Held: the High Courts' power of judicial superintendence over all Courts and Tribunals in their jurisdiction, under Article 227, is also part of the basic structure. The High Courts cannot be divested of every judicial function except constitutional interpretation (para 79).
3. Held: subordinate courts and Tribunals cannot exercise judicial review of legislative action to the exclusion of the High Courts and Supreme Court. But there is no bar on their performing a supplemental, as opposed to substitution, role. Article 32(3) itself lets Parliament confer any of the Supreme Court's Clause (2) powers on any other court (para 80).
4. Held: the same logic extends to Article 226. There is no reason a Tribunal under Article 323A or 323B cannot be given power to test the validity of legislation. Parliament and the State Legislatures have independent legislative competence for this, under Entries 77-79 and 95 of List I, Entry 65 of List II and Entry 46 of List III (para 81).
5. Noted: Sampath Kumar's case adopted the alternative-institutional-mechanism theory to meet an alarming rise in High Court litigation after Independence. The Shah Committee and the Administrative Reforms Commission had recommended independent Service Tribunals, following K.K. Dutta v. Union of India (paras 82-83).
6. Noted: as many as twelve Law Commission of India (LCI) studies had examined High Court backlog (para 84). The 124th Report (1988) described the wide original, extraordinary and advisory jurisdiction of High Courts. Its examples of advisory jurisdiction included Section 256 of the Companies Act, 1956, Section 26 of the Gift Tax Act, 1958, Section 130 of the Customs Act, 1962, and Section 354 of the Central Excises and Salt Act, 1944 (para 85).
7. Noted: the LCI described High Court pendency as catastrophic and almost unmanageable. It recommended trimming High Court jurisdiction by creating specialist Tribunals (para 86).
8. Noted: proposals for specialised Tax Courts, Gram Nyayalayas, Industrial/Labour Tribunals and Education Tribunals reflect the same long-standing trend (para 87).
9. Noted: after R.K. Jain's case asked for a Law Commission study of the Tribunals' working, no such comprehensive study was done. But the Arrears Committee (1989-90), the Malimath Committee, reviewed the Tribunals' performance over about three years (para 88).
10. Noted: the Malimath Committee found the Tribunals had not inspired public confidence. It cited lack of competence and judicial approach, uncertain tenure, and executive subordination; for Administrative Tribunals, it noted the appointment of officers, such as IPS officers, with no adjudicatory background. It held that a Tribunal substituting for a High Court "must be no less efficacious than the High Court" and must retain its basic judicial character (para 88).
11. Noted: the Malimath Committee specifically recommended abandoning the alternative-institutional-mechanism theory. It recommended instead creating separate divisions within the High Courts for different branches of law, as in England, with more Judges using the existing infrastructure (para 89).
12. Held: this recommendation is not suited to the present context. Pendency has only grown since that Report, and the reasons for creating Tribunals still persist (para 90).
13. Held: Tribunals cannot be barred from deciding matters where a statute's vires is questioned. That would let litigants bypass the Tribunals through frivolous constitutional pleas and would defeat the purpose of specialised adjudication, particularly as service-law disputes routinely raise Articles 14, 15 and 16 issues. Instead, all Tribunal decisions on such questions will be subject to the writ jurisdiction of a Division Bench of the High Court within whose territorial jurisdiction the Tribunal falls (para 91).
14. Held: an appeal by special leave under Article 136 is too costly and inaccessible, and it burdens the Supreme Court's docket. So all decisions of Tribunals under Article 323A or Article 323B, not only constitutional-validity questions, will be subject to the High Court's writ jurisdiction under Articles 226/227. This is before a Division Bench of the High Court in whose territorial jurisdiction the Tribunal falls (para 92).
15. Held: consequently, no appeal from a Tribunal's decision will lie directly to the Supreme Court under Article 136. The aggrieved party must first move the High Court under Articles 226/227. Only from the Division Bench's decision may the party then approach the Supreme Court under Article 136 (para 93).
16. Held: summarising, the Tribunals are competent to test statutory vires, but only in a supplementary role, subject to Division Bench scrutiny. They can also test subordinate legislation and rules. But a Tribunal cannot decide the vires of its own parent statute, since a Tribunal created by an Act cannot declare that very Act unconstitutional; such a challenge must go directly to the High Court. The Tribunals otherwise remain the courts of first instance for their subject matter (para 94).
17. Held: this direction, making Tribunal decisions subject to Division Bench scrutiny, applies only prospectively. This invokes the doctrine of prospective overruling (treating a ruling as changing the law only from that date onward), so as not to disturb already-decided cases (para 95).
18. Held: the Court declines to bar Administrative Members from Tribunal Benches. The very premise of these Tribunals is a mix of trained administrators and judicially experienced Members. The Selection Committee, now headed by a Supreme Court Judge nominated by the Chief Justice of India, should ensure suitable appointments (para 96).
19. Held: subjecting the Tribunals to High Courts' supervisory jurisdiction would only add to the High Courts' burden. Instead, until an independent agency is created, all such Tribunals should be placed under a single nodal Ministry, appropriately the Ministry of Law, which may in turn appoint an independent supervisory body (para 97).
20. Held: the Union of India should place all Tribunals under one nodal department, preferably the Legal Department. It should first consult concerned bodies, including the Law Commission of India and the Malimath Committee (para 98).
21. Held: Section 5(6) of the Act is valid. The Court approves the approach in Dr. Mahabal Ram's case. Wherever a question on interpreting a statutory provision or rule, in relation to the Constitution, arises before a single-Member Bench, the proviso to Section 5(6) automatically applies. The matter must then be referred to a Bench of at least two Members, one of them a Judicial Member. So read, Section 5(6) is no longer open to a charge of unconstitutionality (para 99).

Authorities

• S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124: Constitution Bench decision reconsidered; its theory of alternative institutional mechanisms is approved in principle, but its conclusion that Tribunals can wholly substitute for the High Courts is modified (paras 3, 9, 82-83, 99-100).
• J.B. Chopra v. Union of India, (1987) 1 SCC 422: held the Tribunal could decide constitutional validity of service rules, as a logical consequence of Sampath Kumar's case (paras 3, 22-23).
• M.B. Majumdar v. Union of India, (1990) 4 SCC 501: held Tribunal Members are not entitled to High Court Judges' salaries (paras 3, 24).
• Amulya Chandra Kalita v. Union of India: held a Tribunal Bench should ordinarily consist of two Members (paras 3, 25, 41, 44).
• Dr. Mahabal Ram v. Indian Council of Agricultural Research: harmonised Sections 5(2) and 5(6) of the Act; its approach is approved (paras 3, 26, 99).
• R.K. Jain v. Union of India, (1993) 4 SCC 119: recorded the Tribunals' unsatisfactory functioning and recommended a Law Commission study and a possible appeal route to a High Court Division Bench, followed here (paras 3, 27-29, 92).
• Sakinala Harinath and Ors. v. State of A.P. (Andhra Pradesh High Court, Full Bench, M.N. Rao, J.): the judgment under appeal in Civil Appeal No. 169 of 1994, which declared Article 323A(2)(d) and Section 28 unconstitutional to the extent they exclude Article 226; its reasoning is discussed at length and its ultimate conclusion is followed on the basic-structure point (paras 30-34, 70).
• Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461: originated the basic structure doctrine, followed here (paras 32-33, 62, 74).
• Special Reference No. 1 of 1964, [1965] 1 SCR 413: quoted on judicial review flowing from separation of powers, followed (paras 32, 60-61, 75).
• Indira Nehru Gandhi v. Raj Narain, [1975] 3 SCR 854: discussed for its Judges' differing views on whether judicial review is part of the basic structure (paras 32-33, 64-65).
• Minerva Mills Ltd. v. Union of India, [1981] 1 SCR 206: majority and minority opinions both discussed and quoted; followed on striking down exclusion of judicial review (paras 32-33, 66-70, 76).
• Kihoto Hollohan v. Zachillhu, [1992] 1 SCR 686: discussed; majority left open whether judicial review is part of the basic structure (paras 32, 72).
• Fertiliser Corporation Kamgar Union v. Union of India, (1981) 1 LLJ 193: showing Chandrachud, C.J.'s revised view that Article 32 is part of the basic structure, followed (paras 42, 71).
• Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176: cited for the importance of Article 32 (para 42).
• Pratibha Bonnerjea v. Union of India, AIR 1996 SC 693: cited for the special constitutional status of High Court Judges (para 42).
• K.K. Dutta v. Union of India, (1980) 2 LLJ 182: cited as the source of the earlier proposal for Service Tribunals (para 83).
• Marbury v. Madison, 1 Cr 137 (1803) (US): quoted as the origin of judicial review of legislation (para 56).
• State of Madras v. V.G. Row, 1952 Cri LJ 966: quoted on the textual basis for judicial review in India, followed (para 57).
• Bidi Supply Co. v. Union of India, [1956] 29 ITR 717: quoted on the judicial process as the heart and core of democracy (para 59).
• Also cited for the American position, without further discussion (para 51): National Mutual Insurance Co. of the District of Columbia v. Tidewater Transfer Co., 337 US 582; Thomas S. Williams v. United States, 289 US 553; Cooper v. Aaron, 358 US 1; Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 US 50.

Provisions mentioned

• Article 32: the Supreme Court's power to enforce fundamental rights; part of the basic structure. Clause (3) lets Parliament confer some of this power on any other court.
• Article 136: special leave to appeal, the only remedy Articles 323A/323B originally left open against Tribunal decisions.
• Articles 226 and 227: the High Courts' writ jurisdiction and power of superintendence over courts and Tribunals within their territory; both part of the basic structure.
• Article 323A: lets Parliament create Administrative Tribunals for service matters; Clause (2)(d) is held unconstitutional to the extent it excludes Articles 226/227 and 32.
• Article 323B: lets Parliament or State Legislatures create Tribunals for matters like taxation, labour disputes and land reforms; Clause (3)(d) held unconstitutional to the same extent.
• Article 323 (as printed in the source, sometimes spaced as "323 A"/"323 B"): the bare Article number used for Articles 323A and 323B together (paras 40, 51).
• Article 368: Parliament's power to amend the Constitution, which cannot damage the basic structure.
• Sections 5, 6, 28 and 29, Administrative Tribunals Act, 1985: Bench composition and single-Member Benches; qualifications of Members; exclusion of jurisdiction of courts (held unconstitutional to the extent it excludes Articles 226/227 and 32); transfer of pending cases to the Tribunal.
• Section 46, Constitution (42nd Amendment) Act, 1976: the section that inserted Part XIVA, Articles 323A and 323B, into the Constitution (para 5).
• Article 31A: named in Article 323A(2)(d)'s own text as an example of a land-reforms matter a Tribunal's exclusive jurisdiction could cover (para 5).
• Section 3, Administrative Tribunals Act, 1985: the definition clause in Chapter I, headed Preliminary (para 10).
• Section 4: empowers the Central Government to set up the Central Administrative Tribunal, a State Administrative Tribunal, or a Joint Administrative Tribunal for two or more States (para 11).
• Section 13: closes Chapter II, on establishing Tribunals and Benches (Sections 4 to 13) (para 11).
• Section 8: fixes a Member's term of office at five years, renewable, with a maximum age of 65 for the Chairman/Vice-Chairman and 62 for other Members (para 14).
• Section 10: lets the Central Government fix Members' salaries and conditions, which cannot be changed to their disadvantage after appointment (para 14).
• Section 15: gives the State Administrative Tribunals the same jurisdiction, powers and authority as Section 14 gives the Central Administrative Tribunal (para 15).
• Section 16: gives the same jurisdiction, powers and authority to Joint Administrative Tribunals (para 15).
• Section 17: gives the Tribunals the same contempt powers as a High Court (para 15).
• Section 21: fixes strict limitation periods for approaching a Tribunal, without any power to condone delay (para 16).
• Sections 35 and 36: let the Central Government, and the appropriate Government respectively, make rules to implement the Act (para 19).
• Article 309: the proviso under which the President or a Governor makes rules on civil service conditions; the post-Sampath Kumar cases tested whether Tribunals could strike down such rules (para 3).
• Article 371D: a special provision for Andhra Pradesh that the Andhra Pradesh High Court's judgment also analysed, but which this Court found not relevant to the main controversy (para 31).
• Article 12: defines "State"; the AP High Court held that judicial review covers actions of bodies falling within this definition (para 32).
• Article 215: makes every High Court a Court of record with power to punish for its own contempt, a feature Tribunals lack (para 41).
• Articles 132 and 133: let a High Court certify an appeal to the Supreme Court on a constitutional or civil question, another feature Tribunals lack (para 41).
• Article 19: in the Minerva Mills quotation, Chandrachud, C.J. compared Article 31-C's exclusion of judicial review with Clauses (2) to (6) of Article 19, the reasonable-restriction clauses on fundamental freedoms (para 67).
• Article 25 (draft numbering): the number of the draft Article, in the Constituent Assembly, that became the present Article 32; Dr. Ambedkar's remark on it is quoted above (para 73).
• Article 232A (as printed in the source, apparently a misprint for Article 323A): named alongside Article 323B as the source of Parliament's power to confer validity-testing power on Tribunals (para 81).
• Section 256, Companies Act, 1956; Section 26, Gift Tax Act, 1958; Section 130, Customs Act, 1962; Section 354, Central Excises and Salt Act, 1944: examples the Law Commission's 124th Report gave of High Courts' advisory jurisdiction under special statutes (para 85).

Judgement

1. Clause (2)(d) of Article 323A and Clause (3)(d) of Article 323B are unconstitutional to the extent they exclude the jurisdiction of the High Courts under Articles 226/227 and of the Supreme Court under Article 32 (para 100).
2. Section 28 of the Administrative Tribunals Act, 1985 and the exclusion-of-jurisdiction clauses in every other enactment made under Articles 323A/323B are unconstitutional to the same extent (para 100).
3. The jurisdiction of the High Courts under Articles 226/227 and of the Supreme Court under Article 32 is part of the basic structure of the Constitution and cannot be excluded, though other courts and Tribunals may perform a supplemental role (para 100).
4. Tribunals created under Article 323A or Article 323B remain competent to test the constitutional validity of statutory provisions and rules, except the validity of their own parent statute (paras 94, 100).
5. Every decision of every such Tribunal will be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal falls; there is no direct appeal to the Supreme Court under Article 136 from a Tribunal's decision (paras 92-93, 100).
6. This change applies prospectively only, so as not to disturb Tribunal decisions already rendered before this judgment (para 95).
7. Section 5(6) of the Act is valid and constitutional, read so that any question on the vires of a statute or rule before a single-Member Bench must automatically be referred to a two-Member Bench including a Judicial Member (para 99-100).
8. The Union of India should place all Tribunals under one nodal Ministry, preferably the Ministry of Law, after consulting concerned bodies, including the Law Commission of India and the Malimath Committee (paras 97-98).
9. All the individual matters in this batch are to be listed before a Division Bench for decision on their own facts, applying the principles of this judgment (para 101).
10. The judgment records no order on costs.

Legal Principle / Ratio

The power of judicial review of legislative action, vested in the High Courts under Articles 226/227 and in the Supreme Court under Article 32, is part of the Constitution's basic structure and cannot be excluded by a constitutional amendment. Tribunals created under Articles 323A/323B may still test the vires of laws, but only in a supplemental role, subject to a Division Bench of the High Court. In the Court's words, this jurisdiction is "an integral and essential feature of the Constitution, constituting part of its basic structure" and can never be ousted or excluded.

Subsequent Treatment

Two later Supreme Court judgments refer to this case. Each is described only as its own text states.

I.R. Coelho v. State of Tamil Nadu, Civil Appeal Nos. 1344-45 of 1976 with connected matters, Supreme Court of India (nine-Judge Bench), decided 11 January 2007. Bench: Y.K. Sabharwal, C.J.I., Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan, Altamas Kabir and D.K. Jain, JJ. The source has no numbered paragraphs.

• Use of the case. The judgment holds that Ninth Schedule laws made after 24 April 1973 can be tested against the basic structure. It restates that Article 32's jurisdiction is an important and integral part of the basic structure of the Constitution, citing this judgment along with Fertiliser Corporation Kamgar Union and other authorities for that proposition.
• Shared authorities. It repeats Dr. Ambedkar's description of Article 32, and Patanjali Sastri, C.J.'s remarks in State of Madras v. V.G. Row, both of which this judgment also quotes.

Janhit Abhiyan v. Union of India, Writ Petition (Civil) No. 55 of 2019 with connected matters, Supreme Court of India (Constitution Bench), decided 7 November 2022. Bench: U.U. Lalit, C.J.I., Dinesh Maheshwari, S. Ravindra Bhat, Bela M. Trivedi and J.B. Pardiwala, JJ. Paragraph numbers below are from the opinion of Bhat, J., which uses its own decimal numbering.

• Description. It describes this judgment as a seven-Judge Bench that examined the High Courts' jurisdiction under Articles 226/227, and holds that judicial review under Articles 226/227 and Article 32 is an integral and essential feature of the Constitution, part of its basic structure (para 37.8).
• Extract. It reproduces this judgment's holding that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B are unconstitutional to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 (para 37.8).
• Later list. It lists this judgment, along with Indira Gandhi's case and Minerva Mills, among the authorities cited for the basic structure of the Constitution (para 37.8, and elsewhere in that judgment's own numbering).

Comparative Analysis

Both later cases treat this judgment as settled authority on judicial review as a basic feature; neither distinguishes or narrows it. I.R. Coelho uses it as one link in a chain of authorities on Article 32, without adding to its holding on Tribunals. Janhit Abhiyan cites it for the same basic-structure proposition while deciding an unrelated question, the validity of the 103rd Amendment's economic-reservation provisions, and does not revisit the Tribunal-specific directions on Division Bench scrutiny.

Critical Analysis

Analysis based on the judgment text.

The remedy adds a layer instead of removing the Tribunal stage. The Court's central concern was Tribunal ineffectiveness, yet its solution routes every Tribunal decision through a Division Bench of the High Court before any further appeal. This adds to, rather than reduces, the total litigation path (paras 91-93).

Administrative reform is recommended, not ordered. The judgment records serious findings about incompetent appointments and lack of judicial temperament in Tribunal Members (para 88). It only recommends that the Union place Tribunals under a single nodal Ministry, without a timeline or a mechanism to enforce this (paras 97-98).

The core structural criticism from the Malimath Committee is not adopted. The Committee had urged abandoning the alternative-institutional-mechanism theory altogether. The Court preserves that theory while limiting its effect. It does not address how routing all matters through Division Benches will affect the High Courts' own backlog, the very problem Tribunals were created to solve (para 90).

Significance

• Establishes that judicial review of legislation under Articles 226/227 and 32 is part of the basic structure, extending Kesavananda Bharati's doctrine to Tribunal-exclusion clauses.
• Overrules the part of Sampath Kumar's case that let Tribunals wholly substitute for the High Courts, while preserving their power to test vires as a supplemental forum.
• Restructures the appellate route from all Tribunals: through a Division Bench of the High Court, not directly to the Supreme Court under Article 136.
• Confirms Section 5(6) of the Administrative Tribunals Act, 1985 is valid if read to keep constitutional questions away from single-Member Benches.
• A frequently cited authority on tribunalisation of justice in India and on the limits of ousting judicial review.

Exam-Important Points

• Facts in one line: a seven-Judge Bench reconsidered Sampath Kumar's case on whether Tribunals under Articles 323A/323B can wholly replace the High Courts' judicial review.
• Rule: judicial review under Articles 226/227 and 32 is part of the basic structure and can never be excluded, though Tribunals may perform a supplemental role.
• Trap: Sampath Kumar's case is not fully overruled — the alternative-institutional-mechanism theory survives, but Tribunals can no longer wholly substitute for the High Courts.
• Trap: no direct appeal lies from a Tribunal to the Supreme Court under Article 136 any more; the route is first to a Division Bench of the High Court under Articles 226/227.
• Trap: a Tribunal still cannot decide the vires of its own parent statute — that challenge must go directly to the High Court.
• Doctrine: this ruling applies only prospectively (prospective overruling), so past Tribunal decisions are not disturbed.
• Section 5(6) of the Administrative Tribunals Act, 1985 is valid, provided constitutional questions before a single Member are referred to a two-Member Bench with a Judicial Member.
• Costs: no order recorded.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.