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This case comment is given by Harshit Bhimrajka currently pursuing B.A.LLB (Hons) from NLU, Patiala. This is a case comment on a very celebrated case on the constitutional validity of certain articles of the Indian Constitution added by the 42nd Amendment.

Introduction

There is a problem in the Indian Judiciary that the judicial mechanism is very slow which led to a pile-up of cases in the courts. It becomes a huge burden on the Courts to solve a large number of cases that’s why for a long time a mechanism was being searched to relieve all the courts from the burden especially from that of service litigation as it formed a substantial portion of pending litigation. So in 1958, the Law Commission submitted a report recommending to set up tribunals consisting of administrative and judicial members to decide service matters. Similarly in 1969, Administrative Reform Commission, under the chairmanship of Justice J.C Shah of the Supreme Court, also recommended to set up civil service tribunals both for the State and Central civil servants. Again, in 1975 it was recommended for setting up of service tribunals by Swaran Singh Committee. The idea of establishing service tribunals to save the courts from an avalanche of writ petitions and appeals also found in the decision given by the Supreme Court of India in KK Dutta v. Union of India (1980). 

Background facts

In 1976 Parliament passed the Constitution (Forty-Second Amendment) Act, 1976 by which it added a new part in the Constitution i.e. Part- XIV-A entitled as “Tribunals”. This part contains only two articles- 

Article 323-A giver powers to the Parliament to provide the establishment of tribunals only for public service matters of the Centre, states, public cooperation, local bodies, and other public authorities. Under this article, the tribunals can only be established by the Parliament. In simple words, the Parliament has provided with the powers to adjudicate the disputes related to public service matters from all types of courts and place it before the administrative tribunals. After the amendment, the Parliament passed the Administrative Tribunal Act, 1985 in pursuance with Article 323-A. It allowed the Centre to establish one Central Administrative Tribunal, State Administrative Tribunals, and Joint Administrative Tribunal (a joint tribunal for two or more states) for rapid, effective, and just justice to the aggrieved public authorities. Under this article, there is no question of the hierarchy of tribunals.   

Article 323-B allowed both the Parliament and the State Legislature to provide for the establishment of tribunals for the disputes relating to the following: industrial and labour disputes, taxation, land reforms, foreign exchange, election to Parliament and State Legislature, import and export, rent and tenancy rights, the ceiling on urban property, and foodstuffs. Under this article, a hierarchy of tribunals may be created by the State Legislature and the Parliament. 

Many writ petitions, special leave petitions, and civil appeals, the separate decisions by the high court and several provision in different acts and legislations all pertaining to the constitutional validity of Article 323-A(2)(d), Article 323-B(3)(d), the Administrative Tribunal Act, 1985, and the Tribunals constituted under Part XIV-A of the Indian Constitution can be effective and efficient substituted for the courts in discharging the power of judicial review were grouped together in this case.

Main Issues

  1. Whether the Tribunals constituted and functioning under the Act can be said to be effective substitutes for the High Courts in discharging the power of Judicial review? If not, then what are the amendments required to make the tribunals conform to their founding objectives?
  2. Whether the power conferred by 3(d) of Article 323-B or by 2(d) of Article 323-A upon State Legislatures or Parliament exclude the jurisdiction of all courts (except Supreme Court under Article 136) in respect of complaints and disputes referred in clause 1 of Article 323-A, and runs counter to the power of judicial review conferred under Article 226/227 and Article 32 on High Courts and Supreme Court respectively?
  3. Whether the Tribunals possess the competence to test the constitutional validity of a statutory rule which are constituted under Article 323-A or under Article 323-B of the Indian Constitution?

Arguments

The argument from the side of the petitioner are as follows-

  • They argued about the constitutionality of the Tribunals created under the Act and the provisions such as Article 323-A(2)(d) and Article 324-B(3)(d) under the Constitution of India. The exclusive power provided to the tribunals to exercise the jurisdiction vested in Articles 226 and 227 for the High Courts and the power to interpret the provisions of the constitution on which only constitutional courts have sole right are susceptible as these rights cannot be bestowed to the quasi-judicial bodies on which executive have its influences.  
  • Articles 323A and 324B under Part XIV-A of the Indian Constitution allow the Parliament to affect the sacrosanct jurisdiction of the Supreme Court as per given in Article 32 of the Constitution and therefore liable to be struck down.
  • It was argued that the impugned provisions are unconstitutional as they exclude the jurisdiction of the High Courts ( under Article 226 of the Constitution) and the Supreme Court (under Articles 32 of the Constitution). This is for the reason that: 
  1. Parliament cannot, in the exercise of its constituent power, confer power on the State Legislatures and itself to exclude the constitutional jurisdiction conferred on the High Courts (Article 226 of the Constitution) and the Supreme Court (Article 32 of the Constitution) as the power to amend the Constitution can be conferred on the Legislatures neither state nor central and 
  2. The provisions under the Act also violate the basic structure of the Constitution insofar as they take away the power of judicial review vested in the Supreme Court (Article 32 of the Indian Constitution) and in the High Courts (Articles 226 and 227 of the Constitution). While the Tribunals constituted under Articles 323A and 323B of the Indian Constitution can be vested with the power of judicial review over administrative action but the power of same on legislative action cannot be conferred upon them. This proposition that only constitutional courts i.e. High Courts and Supreme Court have been vested with the power of judicial review of legislative action flows from the judgment given in the Kesavananda Bharati v. State of Kerala case (1973).
  • The decision in the case of Sampath Kumar v. Union of India (2016) was given on the hope that the Tribunals established would be effective and efficient substitutes but it was neither legally nor factually correct. It was held in this case that Section 28 of the Administrative Tribunal Act, 1985 which excludes the jurisdiction of the High Courts (Articles 226 and 227) is not unconstitutional. It was also held that this section does not totally bar the provision of judicial review. The tribunals established under the Act are the substitute of the constitutional court- High Courts and will deal with all service matters even involving Articles 14, 15, and 16. The petitioner argued that there is a huge difference between the High Court and these Tribunals. 
  • They argued that the High Courts have been in existence since the 19th century and people have gained confidence in it. The tribunal is a new creation of the executive that would not be able to create similar confidence in the people and a positive environment overnight.
  • They argued that Section 5(6) of the said Act, allows only a single member bench of a Tribunal to test the constitutional validity of a statutory provision which is also unconstitutional.

The argument from the side of the respondent are as follows-

  • The jurisdiction of the Supreme Court (Article 32 of the Constitution) is sacrosanct and is indisputably a part of the basic structure of the Indian Constitution. This position had been clearly enunciated by the Parliament well before the 42nd Amendment and Administrative Tribunal Act was conceived. Therefore the position of the Supreme Court jurisdiction is not affected in any way. However, the jurisdiction of the High Court under Articles 226 and 227 was sought to be removed by creating an alternative institution.
  • Articles 323A and 323B of the Indian Constitution do not exclude the supervisory jurisdiction of the High Courts on all the Tribunals established within its territorial jurisdiction. Therefore the High Court still has the power as a supervisory jurisdiction and corrective mechanism body.
  • It was argued that the Tribunal should allow exercising the jurisdiction under Article 226 and 227 of the Indian Constitution.
  • It was said that the theory enunciated by the petitioner from the case of Sampath Kumar v. UOI (2016) is not valid, it is based on sound considerations and doesn’t require any reconsideration.   

                   

Judgment

The judgment was delivered by the Constitution Bench of seven judges. The bench observed that the judicial review is the most essential and basic structure of the Indian Constitution similarly the jurisdiction conferred under the Article 32 on the Supreme Court and under the Article 226 and 227 on the High Court is also a part of basic structure which cannot be amended and altered as the decision given by the bench in the Kesavananda Bharati case. It is also said that for securing the independence of the judiciary, the superior courts have been given the power of judicial review. Though the Indian Parliament has the power and right to amend the Constitution it cannot amend the basic structure of the Constitution. It was held that Section  28 of the Administrative Tribunal Act, 1985 excludes the power of judicial review of all the High Courts and the “exclusion of jurisdiction” clauses in all other Acts and legislations enacted under the aegis of Article 323A and 323B would be ultra vires of the Constitution. The jurisdiction conferred on the Supreme Court as well as on the High Courts is part of the inviolable basic structure of the Constitution, thus, Clause 2(d)  and Clause 3(d) of Articles 323A and 323B of the Indian Constitution to the extent that they exclude the jurisdiction of the high courts are unconstitutional. It was also held that there will be no Constitution prohibition against the Tribunals in performing a supplemental role, they will not be considered as the substitutes of the High Courts or the Supreme Courts.

The decisions given by the tribunals will be subject to scrutiny by the Division bench of the High Court within whose jurisdiction the concerned tribunal falls. Lastly, the Court upheld that Section 5(6) and Sections 5(2) of the Administrative Tribunals Act, 1985 must operate together and be harmoniously construed and held that Section 5(6) is valid and constitutional. Harmoniously construed means that the proviso under section 5(6) will apply and the concerned Member or Chairman will refer to the matter to a Bench consisting of minimum two members (One of whom must be a judicial member) when the questions related to the interpretation of a statutory provision or rule in relation to the Constitution for consideration arises of a Single Member Bench of the Administrative Tribunal.

Conclusion

It is a well-known fact after the judgment was given in Kesavananda Bharati v. State of Kerala (1973) case that the basic structure of the Indian Constitution cannot be violated and all the legislation, acts, and regulations violating it will be considered null and void. It is settled provision that the High courts are the constitutional courts and ousting its jurisdiction and excluding its power of judicial review is against the doctrine of the basic structure. If a new quasi-judicial body is established by the executive for speedy justice of some matters to reduce the burden on the High Courts and the Supreme Court then the decision should be subject to judicial review as even the judicial body’s decision is subjected to judicial review. However, it is established by the zeal of providing time-effective and cost-effective justice but nothing can be said about the quality of justice dispensed by it, so the decision by the Supreme Court, in this case, is highly remarkable considering the sacrosanct Constitutional provisions. 

“The Constitution was written very precisely to restrain the power of the government and to protect the liberties of each and every one of us.”- Dr Ron Paul

References


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