CASE DETAILS
| Bench A.M. AHMADI C.J. M.M. PUNCHHI J. K. RAMASWAMY J. S.P. BHARUCHA J. S. SAGHIR AHMAD J. K. VENKATASWAMI J. K.T. THOMAS J. | Case no. (1997)3 SCC 261 | Acts/law Article 323 A & B of Constitution of India |
INTRODUCTION:
L. CHANDRA KUMAR vs. UNION OF INDIA is a significant and milestone judgment passed by a bench of 7 judges wherein the court ascertained the issue concerning the judicial review power High Court as a part of the basic structure.
The present case was referred to the apex court to comprehensively reconsider the correctness of the decision rendered by 5 judges’ bench in S.P. Sampath Kumar vs Union of India (1987) 1 SCC 124.
ISSUE-PART XIV-A OF CONSTITUTION:
The present case concerns part XIV-A of the constitution the said part was appended with 42nd amendment of the Constitution in 1976. It includes two provisions 323A and 323B which confers power on the legislature to ordain any law concerning the establishment administrative tribunals and other tribunals, moreover to specify the power and procedure to be adopted by such tribunal for adjudication of any dispute referred to such tribunals.
ARTICLE 323 A:
In pursuance of the power conferred under 323A Parliament enacted Administrative Tribunals Act, 1985 (AT Act) to deal exclusively with service matters the objective behind the said Act is to reduce the burden on the courts and for speedy remedy.
Several writs were filed in High courts as well in supreme court thereby assailing the constitutional validity of the aforesaid act and Article 323A on the ground that the same abridges the judicial review power of High court and Supreme Court under Article 32 and 266 of Constitution.
SAMPATH KUMAR VS. UNION OF INDIA: (1998) 1 SCC 124:
In the said case court restricted its finding to the question on the constitutional validity of AT Act and upheld the validity of said Act. Court opined that there is no gainsay power of judicial review is a part of basic structure, however vesting the said power in an alternative institution will affect basic structure in a situation where such alternative mechanism is real and effective substitute. The said impugned Act declared valid with direction to amend certain provisions which were given force subsequently.
Article 323A (2) (d) saves the jurisdiction of Supreme Court under Article 136 and does not delegate the said power on tribunals same as rest of the powers. In furtherance of the Sampath Kumar (Supra) case section 28 of AT Act was amended which also saved the jurisdiction of supreme court under Article 32. However, court did not address the larger issue concerning amendment and constitutional validity of Article 323A (2) (d).
J. B. CHOPRA VS. UNION OF INDIA: (1987) 1 SCC 422:
Supreme court analyzed the issue which was raised before division bench in J.B. Chopra Case, that is whether the Central Administrative Tribunal constituted under AT Act has jurisdiction to strike down the rules framed by the President under Article 309 of the Constitution. However, the division bench in this case deferred to decide the issue till the final pronouncement of Sampath Kumar judgment. Thereafter division bench analyzed that based on the reasoning employed in Sampath Kumar case administrative tribunal have power to deal with the constitutional validity of rules and laws, however 5 judges in Sampath Kumar did not gave finding to this extent.
M.B. MAJUMDAR VS. UNION OF INDIA (1990) 4 SCC 501:
In the said case division bench of supreme court adjudged the issue concerning the equal salary of members of tribunal as payable to the judges of High court. Bench relied on Sampath Kumar and held that administrative tribunal is a substitute for the adjudication of service matters and tribunal could not seek parity for all the purposes.
AMULYA CHANDRA KALITA VS. UNION OF INDIA: (1991) 1 SCC 181:
The issue before division bench was whether dispute before the tribunal could be decided by single administrative member? Court relied on Sampath Kumar case and noted that a bench of tribunal shall consist of one judicial and one administrative member. Attention was drawn to section 5 (6) which permit single member to here and decide the case. Same issue was raised before another division bench which held that though section 5 (6) is not under challenge but court did not find it appropriate to allow single judge/member to deal with an issue.
R.K. JAIN vs. UNION OF INDIA (1994) 2 SCC 401:
In this case 3 judges’ bench had considered the decision of Sampath Kumar (supra), J.B. Chopra (supra), & M.B. Majumdar (supra) hold that power under 323 A & B can not be substitute of power of High court under Article 32 and 226. Moreover, the only remedy left is Article 136 of the Constitution which is inconvenient on the account of distance. Court suggested that law commission should take step to bring in the remedy of appeal to bench of High Court.
SAKINALA HARI NATH vs. STATE OF A.P. (1994) APLJ 1 (FB):
In the said case support has been drawn from the ruling of Supreme court in Kesavananda Bharti vs. State of Kerala (1973) 4 SCC 225, Indira Nehru Gandhi vs. Raj Narain 1975 supp SCC 1, Special Reference no. 1 (Keshav Singh Case) (1965) 1 SCR 413, Minerva Mills Ltd. vs. Union of India (1980) 3 SCC 625 and Kihoto Hollohan vs. Zachillhu (1992) supp (2) SCC 651.
High court held that the theory of alternative institutional mechanisms inferred in Sampath Kumar case is contrary to the finding of Kesavananda Bharti (Supra), Keshav Singh (supra) and Indira Nehru Gandhi (supra) where in it was concluded that constitutional court only that is Supreme Court and High Court is only competent to exercise power of Judicial review to ascertain the constitutional validity of any statute or rules. Court further held that Sampath Kumar cannot be cited as authority as bench did not uphold the validity of Article 323-A (2) (d). At the end court inferred that the power of judicial review of High Court under Article 226 can not be taken away even with constitutional amendment.
FINDING:
Court observed that there are three aspects of judicial review:
- Judicial review of legislative action;
- Judicial review of judicial decisions;
- Judicial review of administrative action.
Origin of judicial review of legislative action:
This can be traced from the classic enunciation by US Supreme Court in Marbury vs. Madison: “it is empathetically the provision and duty of judicial department to say what the law is.” …. the law repugnant to constitution is void.
Supreme Court had many opportunities to express its views on power of judicial review. In State of Madras vs. V. G. Row (1952) SCR 597: wherein justice Patanjali Sastri expounded that “our constitution contains express provision for the judicial review of legislation …. unlike constitution of U.S. which Supreme Court has assumed the power of review under wide interpretation of “due process”
Keshav Singh Re (supra):
Wherein 7 judges’ bench has dealt with issue concerning parliamentary privilege, Court considered the manner in with the power is balanced among the three organs of the government. Court observed as under:
When a statute is challenged on the ground that it has been passed by the legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is the court to determine such issues and decide whether the law passes by the legislature is valid or not.
Kesavananda Bharti Case (supra):
Wherein a thirteen judges’ bench by majority of 7:6 observed as under:
The court has to confirm whether the laws has been made in conformity with and not in violation of other provision of constitution.…. judicial review is integral part of constitution system and a power has been vested in the High Courts and Supreme Court to decide about constitutional validity of the provisions of statutes. If provision of any statute found violative of article of constitution the Supreme Court and High Courts are empowered to strike down the said provisions.
Indira Nehru Gandhi (Supra):
Wherein 5 judges bench test the constitutional validity of provision which ousted the jurisdiction of all the courts including Supreme Court in election matters. 5 judges strike down the offending provisions however enunciated different views on the power of judicial review.
Minerva Mills (Supra):
In the said case 5 judges considered the validity of the provision of Constitution (42nd amendment) Act 1976 which inter alia excluded the judicial review. Court observed as under:
Our constitution is founded on a nice balance of power among the three wings of the state, namely, the executive, the legislature, and the judiciary. It is the function of the judges, to pronounce upon the validity of laws. If the court are totally deprived of that power, the fundamental rights conferred upon the people will become a mere adornment because rights without remedies are writ in water. A controlled constitution will become uncontrolled.
The aforesaid judgment did not hold the power of judicial as a part of basic structure. The theory of alternative institutional mechanism was enunciated by justice Bhagwati in Minerva Mills, it is to be noted that in Sampath Kumar case to lay down the theory of alternative institutional mechanism the court relied on the minority view of Minerva mills case.
Fertilizer Corp. Kamgar union vs. Union of India: (1981) 1 SCC 568:
In this case court relied on Indira Nehru Gandhi (supra) case and it was ascertained that “jurisdiction conferred on the Supreme Court under Article 32 is part of basic structure.
Kihoto Hollohan (supra):
In this case court looked into the validity of para 7 of 10th schedule of constitution which excluded the power of judicial review. Majority viewed that it is not necessary to ascertain whether judicial review is the part of basic structure or not.
POWER UNDER ARTICLE 32 AND 226 PART OF BASIC STRUCTURE:
What constitutes basic structure?
This doctrine evolved from the judgment of Kesavananda Bharti case and ingredients of basic structure in the said judgment in illustrative and not exhaustive. Further in Indira Nehru Gandhi Case court stated that to ascertain whether a particular facet is part of basic structure or not is to be examined based on individual case.
In paragraph no. 78 Court concluded as under:
Power of judicial review over the legislative action vested in the High Courts and Supreme Court under Article 226 and 32 respectively and the said power is integral part of constitution. It is essential feature of constitution and part of basic structure. Therefore, power of High Courts and Supreme Court to test the constitutional validity of any law can never be ousted or excluded.
In paragraph 79 court evaluated that power vested in High Courts to exercise the judicial superintendence over the decision of all the courts and tribunals within their respective jurisdiction is part of basic structure.
In paragraph no. 80 court emphasized that courts or tribunals under ordinary legislation can not exercise power of judicial review of legislative action to the exclusion of High Courts and Supreme Court however there is no prohibition in creating the supplemental role in this respect.
In para 81 court held as under:
81. If the power under Article 32 of the Constitution, which has been described as the “heart” and “soul” of the Constitution, can be additionally conferred upon “any other court”, there is no reason why the same situation cannot subsist in respect of the jurisdiction conferred upon the High Courts under Article 226 of the Constitution. So long as the jurisdiction of the High Courts under Articles 226/227 and that of this Court under Article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under the Act or upon Tribunals created under Article 323-B of the Constitution. It is to be remembered that, apart from the authorization that flows from Articles 323-A and 323-B, both Parliament and the State Legislatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and the High Courts. This power is available to Parliament under Entries 77, 78, 79 and 95 of List I and to the State Legislatures under Entry 65 of List II; Entry 46 of List III can also be availed of both by Parliament and the State Legislatures for this purpose.
APPEAL UNDER ARTICLE 136:
In para no. 92 court came to the conclusion that the aggrieved person will approach the division bench of High court under Article 226/227 of the Constitution against the decision of tribunal, then to the Supreme Court under Article 136.
VALIDITY OF ARTICLE 323 A (2) (d) and ARTICLE 323B(3)(d):
In para 99 court declared Article 323A (2) (d) and Article 323B (3) (d), to the extent they exclude the jurisdiction of Supreme Court and High Court under Article 32 and 226/227 respectively, are unconstitutional.
Jurisdiction under Article 226/227 and 32 are part of basic structure and are inviolable. On the other hand, the said jurisdiction does not prohibit exercising of power conferred under article 226/227 or article 32 by any court or tribunal in whom such power is supplemented.
99 …. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls.
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https://lawsearchindia.com/article-32-and-226-of-constitution/