Facts in Brief

This seven-Judge Bench was constituted to decide a controversial issue relating to the power of judicial review of the High Courts and the Supreme Court under Article 226 (along with Article 227) and Article 32 of the Constitution respectively, vis-à-vis clause (1) of Article 323A and clause (2) of Article 323B, wherein power was conferred on Parliament and the State Legislatures to exclude this power of judicial review.

Though the principal facts and issues in consideration in the matters pending before the various High Courts as regards the two clauses were diverse, the Bench was concerned with only three important issues, namely:

• The power conferred (by Articles 323A and 323B) upon Parliament and the State Legislatures to exclude the jurisdiction of all courts, including the power of judicial review of the High Courts and the Supreme Court under the Constitution.
• The competence of the Tribunals created under those Articles to test the constitutional validity of a statutory provision or rule.
• Whether those Tribunals could be said to be effective substitutes for the High Courts in discharging the power of judicial review.

Inter alia, the Court also had to reconsider its earlier decision in S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124, wherein it was held that though judicial review is a basic feature of the Constitution, the vesting of the power of judicial review in an alternative institutional mechanism — after taking it away from the High Courts — would not do violence to the basic structure, so long as it was ensured that the alternative mechanism was an effective and real substitute for the High Court.

Arguments

The Petitioners argued as follows:

• Clause (1) of Article 323A and clause (2) of Article 323B were unconstitutional, as Parliament could not exclude the constitutional jurisdiction conferred on the High Courts. These provisions violated the basic structure of the Constitution, as they took away the power of judicial review vested in the Supreme Court under Article 32 and in the High Courts under Articles 226 and 227.
• Though the decision in Sampath Kumar was founded on the hope that the Tribunals would be effective substitutes for the High Courts, that position was neither factually nor legally correct, and thus the position needed to be changed.
• The impugned constitutional provisions violated the basic structure, as they sought to divest the High Courts of their power of superintendence over all Tribunals and Courts within their territorial jurisdiction.

In its defence, the Union submitted:

• Tribunals were not substitutes, but supplemental to the High Courts, in the wake of the problem of an enormous increase in the volume of fresh institution of suits, coupled with massive arrears.
• The decision in Sampath Kumar should be upheld, as the Court there had actually monitored and directed the amendments to the Administrative Tribunals Act, and was satisfied that there was no need to strike it down.
• The essence of the power of judicial review was only that judicial power must always remain with the judiciary, and must not be surrendered to the executive or the legislature; since the impugned provisions saved the jurisdiction of the Supreme Court under Article 136, thereby allowing the judiciary to have the final say in every form of adjudication, judicial review could not be said to have been violated.

Judgment

The Apex Court decided as follows:

• The impugned clause 2(d) of Article 323A and clause 3(d) of Article 323B were unconstitutional to the extent that they excluded the jurisdiction of the High Courts and the Supreme Court under Articles 226, 227 and 32 of the Constitution.
• The power of judicial review over legislative action, vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32, was a part of the basic structure, and therefore could never be excluded.
• The Tribunals created under Articles 323A and 323B possessed the competence to test the constitutional validity of statutory provisions and rules.
• The adjudicatory decisions of the Tribunals were subject to the jurisdiction of the High Courts, wherein a new procedure was to be followed. The Apex Court prescribed that no appeal from the decision of a Tribunal was to lie directly before the Supreme Court under Article 136; instead, the aggrieved party was entitled to move the High Court under Articles 226 or 227, and only from the decision of the Division Bench of the High Court could the aggrieved party move the Supreme Court under Article 136.

For the Common Man

The decision is consequential on account of the following important implications:

• The Court warned that the constitutional safeguards which ensure the independence of the Judges of the superior judiciary were not available to the Judges of the subordinate judiciary, or to the members of Tribunals created by ordinary legislation. Consequently, Judges of the latter category could never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation.
• The Court observed that so long as the jurisdiction of the High Courts under Articles 226 and 227, and that of the Supreme Court under Article 32, was retained, there was no reason why the power to test the validity of legislations against the provisions of the Constitution could not be conferred upon the Tribunals. Thus, a case for the existence of the Tribunals, and for endowing them with judicial powers, was made out by the Court.
• The Court opined that Tribunals were established with the objectives of speedy justice, uniformity of approach, predictability of decisions, and specialist justice; thus, the framework of the Tribunal was to retain its basic judicial character and inspire public confidence, but it could not, in this process, supplant the High Courts or judicial review itself. The limits of the Tribunals as regards their judicial powers were thus drawn.
• It was held that though the Tribunals were competent to hear matters where the vires of statutory provisions were in question, in discharging this duty they could not act as substitutes for the High Courts and the Supreme Court, which were specifically entrusted with such an obligation. Their function in this regard was only supplementary, and all such decisions of the Tribunals were subject to the scrutiny of the High Courts.
• The Court entrusted the Tribunals with the power to test the vires of subordinate legislations and rules, but drew an exception: Tribunals could not entertain any question regarding the vires of their parent statutes, for the reason that a Tribunal, which was itself a creature of an Act, could not declare that very Act to be unconstitutional.
• Direct approach to the High Courts and the Supreme Court, in matters dealt with by the Tribunals, was barred; they could be approached only in appellate jurisdiction, except where the parent statute itself was in question, or for a related matter.