L CHANDRA KUMAR V. UNION OF INDIA AND OTHERS, AIR 1997 SC 1125

1. L CHANDRA KUMAR V. UNION OF INDIA AND OTHERS, AIR 1997 SC 1125

 

FACTS

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.

 

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 the matters specified in Clause (2) of Article 323B, runs 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? 

 

CONSTITUTIONAL BACKGROUND

The Constitution (42nd Amendment) Act, 1976 was the most debatable and controversial amendment in the constitutional history of India. It affected drastic and draconian changes in several provisions of the Constitution not only affecting rights of citizens but also restricting, limiting, curtailing and even totally excluding power of judicial review of High Courts and of the Supreme Court which was held to be a part of “basic structure” of the Constitution. 

So far as administrative tribunals are concerned, mainly, the Amendment made two changes: 

1. It took away power of superintendence of High Courts over ad- ministrative tribunals which they possessed under Article 227 of the Constitution. 
2. After Part XIV, it inserted Part XIV-A (Arts. 323-A and 323-B) by enabling Parliament to constitute administrative tribunals for the purposes specified therein. 

Part XIV-A, as inserted by the 42nd Amendment Act, opened a new chapter in the Indian constitutional and administrative law. Article 323-A enacts that Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints concerning recruitment and conditions of service of persons appointed to the public service. Parliament may by law specify the jurisdiction, power and authority of such tribunals and prescribe the procedure to be followed by them. Article 323-B(z) empowers the appropriate legislature to provide for the adjudication or trial by tribunals of any disputes, complaints or offences with respect to all or any of the matters specified in clause (2). Such a law may also provide for the exclusion of jurisdiction of all courts except that of the Supreme Court under Article 136. 

The 42nd Amendment substantially excluded and curtailed power of High Courts and of the Supreme Court of judicial review of administrative action. It was a “retrograde innovation” and its object was to take away the supervisory jurisdiction of the High Court over tribunals under Article 227, However, Articles 323-A and 323-B were not self-executory inasmuch as they themselves did not take away the jurisdiction of High Courts under Article 226 or Article 227 of the Constitution, but they only enabled Parliament or the appropriate legislature to make laws to set up such tribunals and to exclude the jurisdiction of the High Courts under Article 226 or Article 227. 

The above legal position has now been substantially changed in view through the decision of the Supreme Court in L Chandra Kumar case.

 

CONTENTIONS

1. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislation is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. 
2. It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired. Moreover, the remedy provided in the parent statutes, by way of an appeal by special 325 leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective. Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a First Appellate Court.

 

RATIONALE

1. A facet which is of vital relevance to the controversy before us, and consequently needs to be emphasised, is that Section 28, when originally enacted, was in the express terms of Clause (2) (d) of Article 323A of the Constitution and the only exception made in it was in respect of the jurisdiction of this Court under Article 136 of the Constitution. However, before the final hearing in Sampath Kumar's case the provision was further amended to also save the jurisdiction of this Court under Article 32 of the Constitution; this aspect has been noted in the judgment of Mishra, J. in Sampath Kumar's case (at para 14). Since the Court in Sampath Kumar's case had restricted its focus to the provisions of the Act, it expressed itself to be satisfied with the position that the power of judicial review of the Apex Court had not been tampered with by the provisions of the Act and did not venture to address the larger issue of whether Clause (2)(d) of Article 323A of the Constitution also required a similar amendment.

2. In defining the jurisdiction of the Tribunals the Court held:

"The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. Their 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 respective High Courts. 

The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged by overlooking the jurisdiction of the concerne Tribunal.”

3. In order to ensure that the Tribunals function efficiently, the Court made the following suggestions:

"We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds are allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out.

4. The suggestions that we have made in respect of appointments to Tribunals and the supervision of their administrative function need to be co