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Report No. 272

Chapter - VIII

Bypassing The Jurisdiction of High Courts

8.1 Access to justice is a fundamental right of the citizens as discussed and explained herein after. The questions arise as to whether bypassing the jurisdiction of the High Courts violates the right of access to justice or the principle of Federalism, which is a basic feature of the Constitution. The framers of the Constitution deemed it proper to adopt the Federal structure in the judicial hierarchy also. While the Supreme Court is the Apex Court of the Country, the High Courts are the Highest Courts in the States. In the Constitutional scheme, the High Court is not stricto-senso subordinate to the Supreme Court. They are assigned a broad Constitutional role with extensive Constitutional responsibilities. Their power to issue writs is wider than the Supreme Court. Besides, the power of judicial review is also vested in them.

8.2 The rudimentary authority of the High Courts to examine the constitutional validity of any Legislative Act is well acknowledged by various judicial pronouncements. An ordinary man can approach the High Court challenging any legislation be it central or State on the ground that it is arbitrary, irrational, unreasonable or violative of the fundamental rights or otherwise and therefore liable to be struck down.

8.3 With the filing of large number of cases, there is huge pendency in the subordinate Courts and in the High Courts giving rise to a general public perception that the Court proceedings are time-consuming and expensive, more so at the High Court level. Whereas, the Tribunal adjudicate disputes quickly and in a cost-effective manner, creating a favourable atmosphere for the establishment of Tribunals. This lead to the amendment of the Constitution and insertion of Articles 323-A and 323-B providing for the establishment of Tribunals by Parliament and/or State.

8.4 The Central Administrative Tribunals are established under Article 323- A(2)(d) of the Constitution. Jurisdiction of all Courts including the power of superintendence of High Court except that of the Supreme Court under Article 136 is excluded. In Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896 the Court held that the jurisdiction of the High Court under Article 226 of the Constitution is limited to holding the judicial or quasi-judicial tribunals or administrative bodies exercising the quasi-judicial powers within the leading strings or legality and to see that they do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act. So long as the hierarchy of officers and appellate authorities created by the Statute function within their ambit the manner in which they do so can be no ground for interference.

8.5 In S. M. Pattanaik v. Secretary to Government of India, ILR 1986 KAR 3954 it was held that all the disputes and complaints relating to service matters either with respect to recruitment or condition of service fall within the ambit of the Administrative Tribunals and the jurisdiction of High Court in respect of these matters stands excluded by virtue of Section 28 of the Act, 1985

8.6 In J.B. Chopra v. Union of India, AIR 1987 SC 357 it was held that the Administrative Tribunal being a substitute of the High Court had the necessary jurisdiction, power and authority to adjudicate upon all disputes relating to service matters including the power to deal with all question pertaining to the constitutional validity or otherwise of such laws as offending Article 14 and 16(1) of the Constitution. In H.N. Patro v. Ministry of Information and Broadcasting, 1993 1 SCC (Supp) 550 it was reiterated that the provisions contained in the Administrative Tribunals Act, 1985 bars the jurisdiction of the High Court and the High Court should be careful to satisfy itself that it had jurisdiction to deal with the matter and make an order nullifying the direction of the Tribunal.

8.7 The Administrative Tribunals Act, 1985 excluded the jurisdiction of the High Courts. It abolished the appellate and supervisory jurisdiction of High Courts and provided for direct appeal to the Supreme Court. In S.P. Sampath Kumar Case (Supra) the Court held that 'the Tribunal should be a real substitute of the High Court not only in form and de jure, but in content and de facto. As was pointed out in Minerva Mills, the alternative arrangement has to be effective and efficient as also capable of upholding the constitutional limitations and it must be a worthy successor of the High Court in all respects.' The Court, while deciding Sampath Kumar Case (Supra), relied upon the decision in Minerva Mills Case (Supra) wherein it was observed that:

'it would be within the competence of Parliament to amend the Constitution so as to substitute in place of the High Court, another alternative institutional mechanism or arrangement for judicial review, provided it is no less efficacious than the High Court. Then, instead of the High Court, it would be another institutional mechanism or authority which would be exercising the power of judicial review with a view to enforcing the constitutional limitations and maintaining the rule of law.'

8.8 The Supreme Court applied the theory of 'effective alternative mechanism' and 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.

8.9 The High Courts' power of superintendence over all Courts and Tribunals within their jurisdictions flows from Article 227 of the Constitution. The power conferred on the High Courts to issue prerogative writs for enforcement of the rights conferred by Part III and for any other purpose is wide enough not only to enforce the fundamental rights, but also the legal rights. This power of the High Courts, coupled with the power of superintendence has been defined in Article 226(4), which is not in derogation of the power conferred under Article 32(2) of the Constitution to issue similar writs and runs parallel to the said provision.

8.10 The power to issue prerogative writs is exclusive and cannot be conferred on any Tribunal unless the Constitution is amended. The Tribunal created under a Statute cannot be conferred the power of judicial review which is in the nature of sovereign function conferred on judiciary. Therefore, in order to strengthen democracy and allow it to grow so as to instill confidence and faith in the people, there has to be a judicial mechanism as has been envisioned by the constitutional framers, to act as a check against legislative and executive excesses. This lies in the root of assigning the role of superintendence by the High Court over a Tribunal.

8.11 The Supreme Court in the case of M.B. Majumdar v. Union of India, AIR (1990) SC 2263 rejected the contention that the Tribunals were the equals of the High Courts in respect of their service conditions. The Court clarified that in Sampath Kumar's case (supra), the Tribunals under the Act had been equated with High Courts only to the extent that the former were to act as substitutes for the latter in adjudicating service matters; the Tribunals could not, therefore, seek parity for all purposes.

8.12 The question whether the Tribunals can be said to be effective substitutes for the High Courts in discharging the power of judicial review again came up for consideration in L Chandra Kumar v. Union of India (supra). The Court held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. It was observed:

'The constitutional safeguards which ensure the independence of the Judges of the superior judiciary are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation.

We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Articles 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.

If the power under Article 32 of the Constitution, which has been described as the "heart" and "soul" of the Constitution, can be additionally conferred upon "any other court", there is no reason why the same situation cannot subsist in respect of the jurisdiction conferred upon the High Courts under Article 226 of the Constitution. So long as the jurisdiction of the High Courts under Articles 226/227 and that of this Court under Article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under the Act or upon Tribunals created under Article 323B of the Constitution. It is to be remembered that, apart from the authorisation that flows from Articles 323A and 323B, both Parliament and the State Legislatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and the High Courts.'



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