Ouster Clauses in India: Article 323A(2)(d), Kihoto and L. Chandra Kumar
Chapter -Five
Syllabus topic 7, "Limits of judicial review"
Pages 344 to 346 of 430
In one line
India has tested ouster clauses in every form, including one written into the Constitution itself, and none of them has kept the courts out.
In the wording a student can write in an exam: an ordinary Indian ouster clause cannot exclude the jurisdiction of the High Courts under Articles 226 and 227 or of the Supreme Court under Article 32; a clause inserted by constitutional amendment fares no better, because paragraph 7 of the Tenth Schedule was struck down in Kihoto Hollohan for want of ratification and for taking away judicial review, and Article 323A(2)(d), Article 323B(3)(d) and section 28 of the Administrative Tribunals Act 1985 were struck down in L. Chandra Kumar because review by the constitutional courts is part of the basic structure.
The three attempts
One, the ordinary statutory clause. Dealt with in [The Finality Clause] and [The Exclusionary or Ouster Clause], and answered by Union of India v. Tarachand Gupta and Bros., AIR 1971 SC 1558.
Two, the constitutional amendment inserting an ouster. Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686.
Facts. The Tenth Schedule, inserted by the Constitution (Fifty-second Amendment) Act 1985, disqualifies a member of Parliament or of a State legislature for defection. Paragraph 6 makes the decision of the Speaker or Chairman on such a question final. Paragraph 7 provided that notwithstanding anything in the Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member.
Held. Paragraph 7 was struck down. It sought to take away the jurisdiction of the High Courts under Article 226 and of the Supreme Court under Article 32 in a matter, and so made a change in Articles 136, 226 and 227, which required ratification by not less than one-half of the States under the proviso to Article 368(2); that had not been obtained. Paragraph 7, in so far as it takes away the power of judicial review, which is itself one of the basic features of the Constitution, is liable to be struck down. The rest of the Tenth Schedule survived on the doctrine of severability. The Speaker acting under paragraph 6 acts as a tribunal, so the decision is subject to judicial review, though the review is confined to jurisdictional errors, that is violations of a constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity, and it can be exercised only after the decision is made.
Why it matters here. It shows that even the constituent power cannot oust the courts by a side wind, and it shows what is left when a decision is made final by the Constitution: a narrow but real review.
Three, the constitutional authorisation of a statutory ouster. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, worked in [Tribunals, Article 323A and L. Chandra Kumar], struck down clause (2)(d) of Article 323A, clause (3)(d) of Article 323B and section 28 of the Administrative Tribunals Act 1985 to the extent that they exclude the jurisdiction of the High Courts and the Supreme Court, because that jurisdiction is part of the basic structure.
Ouster Clauses in India: Article 323A(2)(d), Kihoto and L. Chandra Kumar
What the three cases together establish
An ordinary clause cannot reach the constitutional jurisdiction, as a matter of construction and now as a matter of constitutional law.
A constitutional amendment cannot either, if it alters Articles 136, 226 or 227 without ratification, and in any event if it destroys a basic feature.
A decision made final by the Constitution is still reviewable, though narrowly, which is Kihoto's holding about the Speaker.
And what remains is a narrow review: jurisdictional error, breach of a constitutional mandate, mala fides, breach of natural justice and perversity.
Article 262 and Article 329, two ousters that do work
An honest answer notes that the Constitution itself excludes the courts in two places, and those exclusions are effective because they are part of the original scheme rather than an amendment defeating it.
Article 262(2) permits Parliament to provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of an inter-State river water dispute.
Article 329(b) provides that no election to either House of Parliament or to a State legislature shall be called in question except by an election petition presented to such authority and in such manner as may be provided by law. Even there, Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233, held that the power of the High Court under Article 226 to issue certiorari against the decision of an election tribunal remains unaffected by Article 329(b).
A worked example
Parliament amends the Constitution to provide that no court shall have jurisdiction in respect of any question arising under a new central law on data governance, and simultaneously creates a Data Tribunal whose decision is declared final.
Kihoto answers it: an amendment which takes away the jurisdiction of the High Courts under Article 226 in a matter alters Articles 226 and 227 and needs ratification by half the States. L. Chandra Kumar answers it again: even with ratification, review by the constitutional courts is a basic feature and cannot be destroyed. The Tribunal survives as a court of first instance; the ouster does not.
What this does NOT mean
It does not mean the Constitution never ousts. Articles 262(2) and 329(b) do.
It does not mean review of a Speaker's decision is at large. Kihoto confines it and postpones it until the decision is made.
Ouster Clauses in India: Article 323A(2)(d), Kihoto and L. Chandra Kumar
It does not mean Parliament cannot create tribunals. It can; it cannot make them final against the High Courts.
Quick revision
Three attempts and three answers. An ordinary clause: Tarachand Gupta, an order outside the Act is not an order under it. A constitutional ouster: Kihoto, paragraph 7 of the Tenth Schedule struck down for want of ratification under the proviso to Article 368(2) and for taking away judicial review, with the Speaker's decision reviewable for jurisdictional error, mala fides, breach of natural justice and perversity, after the decision. A constitutionally authorised statutory ouster: L. Chandra Kumar, Article 323A(2)(d), Article 323B(3)(d) and section 28 unconstitutional. Articles 262(2) and 329(b) are effective exclusions in the original scheme.
Test yourself
1. On what two grounds did paragraph 7 fail? It altered Articles 136, 226 and 227 without the ratification the proviso to Article 368(2) requires, and it took away judicial review, which is a basic feature.
2. What review survives of a Speaker's decision under the Tenth Schedule? A narrow review, after the decision, for violations of a constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity.
3. Name two ousters in the Constitution that are effective. Article 262(2), on inter-State river water disputes, and Article 329(b), on elections, though Hari Vishnu Kamath holds that Article 329(b) does not affect certiorari against an election tribunal under Article 226.
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.