Tribunals

In one line

The Forty-second Amendment let legislatures set up tribunals and shut the High Courts out of whole fields of law; ten years later the Supreme Court allowed that if the tribunal was as good as the court, and eleven years after that it held they can never be shut out at all.

In the wording a student can write in an exam: Part XIVA, articles 323A and 323B, was inserted by the Constitution (Forty-second Amendment) Act, 1976, with effect from 3 January 1977. Article 323A(2)(d) and article 323B(3)(d) each permitted a law to "exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136". In S.P. Sampath Kumar v. Union of India a Constitution Bench upheld that exclusion on the theory of alternative institutional mechanisms, provided the tribunal was "no less efficacious than the High Court". In L. Chandra Kumar v. Union of India seven judges held those sub-clauses unconstitutional so far as they exclude articles 226, 227 and 32, that jurisdiction being "part of the inviolable basic structure". Tribunals survive as courts of first instance whose decisions go to a Division Bench of the High Court, never as substitutes for it.

Why the law has this at all

By the 1970s the High Courts were choked, and service disputes were a large part of what choked them. A dispute about a promotion or a pension is repetitive, technical, and does not need a constitutional court. The argument for tribunals was that a specialist body could decide such matters faster and better.

That argument is respectable, and the Supreme Court has never rejected it. What made Part XIVA explosive was not the tribunals but the sub-clause that let the legislature take the High Court out of the picture.

The provisions

Article 323A(1) lets Parliament provide by law for the adjudication by administrative tribunals of "disputes and complaints with respect to recruitment and conditions of service" of persons appointed to public services and posts under the Union, a State, a local or other authority, or a Government corporation.

Article 323A(2) lists what such a law may do: set up a tribunal for the Union and one for each State or group of States; specify jurisdiction and powers "including the power to punish for contempt"; lay down procedure, limitation and evidence; transfer pending cases; and, by sub-clause (d), "exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136". Clause (3) gives the article overriding effect.

Article 323B(1) lets "the appropriate Legislature", so Parliament or a State legislature, provide for tribunals for the matters in clause (2): taxes; foreign exchange and customs; industrial and labour disputes; land reform and ceilings; urban property ceilings; elections to the legislatures; essential goods and their prices; rent and tenancy; and offences and incidental matters relating to those. Clause (3)(d) carries the same exclusion power as 323A(2)(d). The two articles differ in who may legislate and in what about.