Tribunals, and the Reach of Judicial Review

Both were inserted by the Constitution (Forty-second Amendment) Act 1976, and the Administrative Tribunals Act 1985 was made under article 323A.

What L. Chandra Kumar decided, and why

The question referred to seven judges was whether those exclusion clauses were valid.

The Court held:

That clause 2(d) of article 323A and clause 3(d) of article 323B, to the extent that they exclude the jurisdiction of the High Courts and the Supreme Court under articles 226 and 227 and article 32, are unconstitutional, and that the exclusion of jurisdiction clauses in all legislation enacted under those articles are unconstitutional to the same extent.

That the power of judicial review vested in the High Courts and the Supreme Court under articles 226 and 32, enabling legislative action to be subjected to the scrutiny of superior courts, is integral to the constitutional scheme and part of its basic structure.

That all decisions of tribunals created under either article are subject to the High Court's writ jurisdiction under articles 226 and 227, before a Division Bench of the High Court within whose territorial jurisdiction the tribunal falls.

And that tribunals remain competent to hear matters where the vires of statutory provisions are questioned, but in doing so they cannot act as substitutes for the High Courts and the Supreme Court: their function in that respect is supplementary, and their decisions are subject to scrutiny.

The reasoning connects two things a student should hold together. The basic structure doctrine comes from Kesavananda Bharati, where the Court held that Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution. L. Chandra Kumar identifies judicial review under articles 226 and 32 as one of those elements. So an exclusion of the High Court's writ jurisdiction fails not because it conflicts with some other article but because it damages the structure itself.

The practical result

After L. Chandra Kumar the position is this, and it is worth setting out as a ladder because that is how a question will come.

1. The tribunal decides, and may decide the vires of a statutory provision, though not of its own parent Act.
2. Its decision is subject to the writ jurisdiction of the High Court under articles 226 and 227, and the challenge must be heard by a Division Bench.
3. From the High Court, the ordinary routes to the Supreme Court apply: articles 132 to 134A on a certificate, or article 136 by special leave.
4. And a direct appeal from a tribunal to the Supreme Court, bypassing the High Court, is not the scheme, whatever the parent Act may say.

A worked example

A central government servant is dismissed in 2005 and the Administrative Tribunals Act says the Central Administrative Tribunal's decision is final and that no court except the Supreme Court under article 136 shall have jurisdiction.

• He goes to the Tribunal, which dismisses his application.
• The Act appears to leave him only article 136. L. Chandra Kumar says otherwise: the exclusion is unconstitutional so far as it ousts articles 226 and 227.
• He therefore moves the High Court within whose jurisdiction the Tribunal sits, under article 226, and the petition must be heard by a Division Bench.
• If he loses there, he may seek special leave under article 136.

Now ask the Module I question about the same facts. In 1780 a man aggrieved by the act of a Provincial Council could go to the Supreme Court at Calcutta, and the Government could tell the whole province to ignore its process. In 2005 a man aggrieved by a tribunal has a constitutional right of access to a court that the legislature cannot close, because the Supreme Court has held that closing it would damage the Constitution itself. The two situations are the same problem with opposite answers.

What beginners get wrong

"Articles 323A and 323B were struck down." They were not. What was struck down is the exclusion clauses, clause 2(d) of article 323A and clause 3(d) of article 323B, so far as they exclude articles 226, 227 and 32. Tribunals set up under those articles are perfectly valid.

"Tribunals cannot decide constitutional questions." They may decide the vires of statutory provisions, but not as a substitute for the High Court, and their decisions on such questions are subject to scrutiny before a Division Bench.

"Article 136 was enough." The Court held it was not, because a discretionary jurisdiction exercised by one court in Delhi is not a substitute for the writ jurisdiction of every High Court, and because judicial review under articles 226 and 32 is part of the basic structure.

"The basic structure doctrine comes from L. Chandra Kumar." It comes from Kesavananda Bharati. L. Chandra Kumar applies it and identifies judicial review as one of the basic features.

Limits and criticism

The decision settled the constitutional question and left the practical one open, and an answer that says so is a good one.

What it settled: no legislature, and no constitutional amendment framed like these clauses, can put a tribunal beyond the High Courts.

What it left: the High Courts now supervise a very large number of tribunals in addition to their own work, so the object of relieving the courts is achieved only in part; and the composition of tribunals, how many members must be judicial, who appoints them and on what tenure, was not settled by this case and has been litigated repeatedly since.

For this paper, the significance is the one at the end of the last chapter. The superintendence over subordinate courts that section 15 of the Indian High Courts Act 1861 conferred, and that article 227 continues, has become something no Parliament can remove. A rule about the internal management of courts, written for the merger of the Supreme Courts and the Sadar Adalats, has ended as a constitutional guarantee.

Quick revision

• 323A: Parliament may provide for administrative tribunals for service disputes; 323B: the appropriate Legislature may provide for tribunals in the listed matters. Both inserted by the Forty-second Amendment 1976.
• The exclusion clauses, 323A(2)(d) and 323B(3)(d), allowed the ouster of all courts except the Supreme Court under article 136.
• L. Chandra Kumar (1997), seven judges: those clauses, and the exclusion clauses in legislation under them, are unconstitutional so far as they exclude articles 226, 227 and 32; judicial review under 226 and 32 is part of the basic structure; tribunal decisions go to a Division Bench of the High Court; tribunals may decide vires but only as a supplementary jurisdiction.
• Basic structure itself is from Kesavananda Bharati: Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution.

Test yourself

1. What do articles 323A and 323B empower, and who inserted them? They empower Parliament and, under 323B, the appropriate Legislature, to provide for the adjudication of specified disputes by administrative and other tribunals; and they were inserted by the Constitution (Forty-second Amendment) Act 1976.

2. What precisely did L. Chandra Kumar strike down? Clause 2(d) of article 323A and clause 3(d) of article 323B, and the exclusion of jurisdiction clauses in legislation under them, to the extent that they exclude the jurisdiction of the High Courts under articles 226 and 227 and of the Supreme Court under article 32.

3. On what constitutional principle did it do so? That the power of judicial review vested in the High Courts and the Supreme Court under articles 226 and 32 is integral to the constitutional scheme and part of its basic structure, and that under Kesavananda Bharati Parliament cannot abrogate or emasculate a basic feature.

4. What can a tribunal still do after the decision? Decide the matters within its jurisdiction, including questions of the vires of statutory provisions, but only as a supplementary jurisdiction and not as a substitute for the High Court or the Supreme Court, and subject to the writ jurisdiction of a Division Bench of the High Court.

5. Why was article 136 held not to be a sufficient substitute for articles 226 and 227? Because it is a discretionary power exercised by a single court sitting in Delhi, and the framers' scheme places the ordinary supervision of tribunals and subordinate courts in every High Court, a supervision that the Court held to be part of the basic structure.