Administrative Tribunals: Articles 323A and 323B
Chapter Eight
Syllabus topic 1, "Concepts and Agencies"
Pages 24 to 26 of 430
In one line
Articles 323A and 323B are the Constitution's permission to take whole classes of disputes away from the courts and give them to tribunals.
In the wording a student can write in an exam: Articles 323A and 323B, inserted by the Constitution (Forty-second Amendment) Act 1976, empower Parliament and, in the case of Article 323B, the State legislatures as well, to provide by law for the adjudication by administrative tribunals of disputes in specified fields, and originally permitted the exclusion of the jurisdiction of all courts except the Supreme Court under Article 136.
Why the law has this at all
Two pressures produced them. The first was the sheer volume of service litigation: by the 1970s a very large part of the writ jurisdiction of the High Courts was taken up with disputes about seniority, promotion, transfer and pension. The second was the belief, common at the time, that a specialised body could decide such matters faster and more cheaply than a generalist court.
The Swaran Singh Committee recommended tribunals, and the Forty-second Amendment inserted a new Part XIVA with the two articles.
The provisions
Article 323A authorises Parliament alone to provide by law for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State, or of any local or other authority or government-controlled corporation. Clause (2) permits such a law to specify the jurisdiction of the tribunals, to provide their procedure, and, by clause (2)(d) as originally enacted, to exclude the jurisdiction of all courts except the jurisdiction of the Supreme Court under Article 136.
Article 323B authorises the appropriate legislature, which may be Parliament or a State legislature, to provide for tribunals for the adjudication of disputes in the matters listed in clause (2): levy and collection of tax; foreign exchange, import and export; industrial and labour disputes; land reforms; ceiling on urban property; elections to Parliament or a State legislature; production, procurement, supply and distribution of foodstuffs and essential goods; and offences and ancillary matters in relation to those subjects. Clause (3)(d) contained a similar exclusion of the jurisdiction of courts.
The asymmetry a student must notice
The two articles are not the same and MU's syllabus label "Concepts and Agencies" gives no hint of it.
| Article 323A | Article 323B | |
|---|---|---|
| Who may legislate | Parliament only | Parliament or a State legislature |
| Subject | Service matters only | Eight listed subjects |
| Number of tribunals | One for the Union and one for each State, or a joint tribunal | Hierarchy permitted |
| Exclusion clause as enacted | Clause (2)(d) | Clause (3)(d) |
Administrative Tribunals: Articles 323A and 323B
What the courts did with them
The Act was upheld, with conditions. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386.
Facts. Section 28 of the Administrative Tribunals Act 1985 excluded the jurisdiction of the High Courts, and as originally enacted that of the Supreme Court under Article 32 as well. The Act was challenged as destroying judicial review.
Held. Judicial review is a basic feature, but it is not destroyed by transferring the High Court's jurisdiction to another body if that body is an effective and efficacious institutional substitute. The Act was upheld subject to changes: the Chairman of the Tribunal is for practical purposes the equivalent of the Chief Justice of a High Court and must be or have been a High Court judge or have served two years as Vice-Chairman; and appointments must be made in consultation with the Chief Justice of India rather than at the pleasure of the executive.
Why it matters here. It is the moment the Court accepted tribunalisation and set the price of accepting it.
The exclusion was then struck down. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, worked in [Tribunals, Article 323A and L. Chandra Kumar], held that the power of judicial review of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 is part of the basic structure and cannot be excluded, so clause (2)(d) of Article 323A, clause (3)(d) of Article 323B and section 28 are unconstitutional to that extent.
A worked example
A State legislature, relying on Article 323B(2)(a), creates a Sales Tax Appellate Tribunal and provides that no civil court or High Court shall have jurisdiction over any matter within the Tribunal's competence.
The creation of the Tribunal is valid: taxation is a listed subject in clause (2). The ouster of the civil court is valid, because a legislature may direct a class of disputes to a special forum. The ouster of the High Court is void after L. Chandra Kumar, so a person aggrieved by the Tribunal must go to the Tribunal first, but may then move a Division Bench of the High Court under Article 226 or 227. He cannot go straight to the Supreme Court under Article 136 from the Tribunal.
What this does NOT mean
It does not mean tribunals are unconstitutional. They are expressly permitted; what is not permitted is using them to exclude the constitutional courts.
It does not mean every tribunal is created under these articles. Most are not. Income tax appellate tribunals, consumer forums, the National Green Tribunal and the company law tribunals are created under ordinary statutes referable to the legislative lists.
It does not mean Article 323B exhausts the State's power. A State may create a tribunal under an ordinary law on a subject within its lists; Article 323B matters because of what it permits by way of exclusion, and that permission has been read down.
Administrative Tribunals: Articles 323A and 323B
Quick revision
Inserted by the Forty-second Amendment in 1976. Article 323A is for service matters and Parliament alone; Article 323B is for eight listed subjects and either legislature. Both originally permitted the exclusion of all courts except the Supreme Court under Article 136. Sampath Kumar upheld the scheme on condition that the tribunal is an effective substitute and that appointments involve the Chief Justice of India. L. Chandra Kumar struck the exclusion clauses down, because judicial review by the High Courts and the Supreme Court is part of the basic structure.
Test yourself
1. What is the single biggest difference between Articles 323A and 323B? Article 323A is confined to service matters and only Parliament may legislate under it; Article 323B covers eight listed subjects and a State legislature may legislate under it as well.
2. Is clause (2)(d) of Article 323A still good law? No. It was declared unconstitutional in L. Chandra Kumar to the extent that it excludes the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32.
3. Can an appeal lie from a tribunal directly to the Supreme Court under Article 136 today? No. L. Chandra Kumar directed that a litigant must first move a Division Bench of the High Court within whose jurisdiction the tribunal falls.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.