Report No. 215
5. From S. P. Sampath Kumar to L. Chandra Kumar and The Implications
5.1. In S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124, the constitutional validity of the validity of the Administrative Tribunals Act 1985 was challenged on the ground of exclusion of power of judicial review both of the Supreme Court under article 32 and of the High Courts under articles 226 and 227 of the Constitution. During the hearing of the case, the Act was amended and the jurisdiction of the apex Court under article 32 was restored.
The Supreme Court in final decision held that section 28 of the Administrative Tribunals Act 1985 which excludes jurisdiction of the High Courts under articles 226/227 is not unconstitutional. The Court ruled that this section does not totally bar judicial review. It also said that Administrative Tribunals under the 1985 Act are substitute of High Courts and will deal with all service matters even involving articles 14, 15 and 16. It also advised for changing the qualifications of Chairman of the Tribunal. As a result, the Act was further amended in 1987.1
5.2 In Union of India v. Parma Nanda, AIR 1989 SC 1185, a three-Judge Bench of the Supreme Court upheld the authority of the Administrative Tribunals to decide the constitutionality of service rules.
5.3 In Sampath Kumar's case, the issue of constitutionality of article 323A (2) (d) was neither challenged nor upheld and it could not be said to be an authority on that aspect. Subsequently, a Full Bench of the Andhra Pradesh High Court in Sakinala Harinath v. State of AP, (1994) 1 APLJ (HC) 1, declared sub-clause (d) of clause (2) of Article 323A unconstitutional. It held that this provision is repugnant to the ruling of the Supreme Court in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
Meanwhile, the two three-Judge Benches of the apex Court in R.K. Jain v. UOI, (1993) 4 SCC 119, and L. Chandra Kumar v. UOI, (1995) 1 SCC 400, also recommended that the Sampath Kumar ruling be reconsidered. Therefore, a Bench of seven Judges of the Supreme Court examined the issues in a wider perspective including the constitutionality of article 323A (2) (d). It also considered the power of the Administrative Tribunals to exercise the powers and jurisdiction of the High Courts under articles 226 and 227 of the Constitution.1
5.4 In L. Chandra Kumar's case, the Supreme Court, contrary to Sampath Kumar, held that these tribunals are not equal to the High Courts. It further declared that the decisions of such tribunals shall be appealable before a Bench of two Judges in the High Court under whose jurisdiction the tribunal falls.
However, most importantly, these tribunals have been given the quasi-equal status of High Courts in restricted areas. Thus, the tribunals established under article 323A can still examine the constitutionality of an enactment or rule concerning matters on the anvil of articles 14, 15 and 16 of the Constitution. A similar power will vest in the tribunals created under the authority of article 323B.1
5.5 The justification for inserting articles 323A and 323B in the Constitution remains valid today. The pendency of cases in the High Courts and the Supreme Court has posed an imminent danger to the administration of justice. Therefore, there is ample scope for the administrative tribunals. The short experience of working of these tribunals has not been bad although there is need for further improvement.
In view of the common law prejudice, the constitutionality of these tribunals created under articles 323A and 323B has been frequently impugned. Fortunately, the Supreme Court has upheld the objective for which these tribunals have come into existence. Their journey from Sampath Kumar to L. Chandra Kumar has not been sterile. L. Chandra Kumar has not overruled Sampath Kumar. It has firmly accepted the role of the administrative tribunals in the administration of justice system.1
1. K.C. Joshi, Constitutional Status of Tribunals, 41 JILI 116 (1999).
5.6 The Supreme Court in Sampath Kumar further elaborated this point:
"The basic and essential feature of judicial review cannot be dispensed with but 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 not less efficacious than the High Court."1
1. K.C. Joshi, Constitutional Status of Tribunals, 41 JILI 116 (1999), page 130.
5.7 Hon'ble Mr. justice Ranganath Misra, who wrote the majority judgment in Sampath Kumar, after mentioning that judicial review by the Supreme Court is left wholly unaffected held:
'Thus exclusion of the jurisdiction of the High Court does not totally bar judicial review. This court in Minerva Mills' (case) (AIR 1980 SC 1789) did point out that "effective alternative institutional mechanisms or arrangements for judicial review" can be made by Parliament. Thus it is possible to set up an alternative institution in place of the High Court for providing judicial review. ... The Tribunal has been contemplated as a substitute and not as supplemental to the High Court in the scheme of administration of justice. Thus barring of the jurisdiction of the High Court can indeed not be a valid ground of attack.'1
1. K.C. Joshi, Constitutional Status of Tribunals, 41 JILI 116 (1999), pages 138-139.
5.8 In L. Chandra Kumar, the seven-Judge Constitution Bench of the Supreme Court considered the following broad issues:
(1) Whether the power conferred upon Parliament or the State Legislatures, as the case may be, by sub-clause (d) of clause (2) of Article 323A or by sub-clause (d) of clause (3) of Article 323B of the Constitution, to totally exclude the jurisdiction of 'all courts', except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in clause (1) of Article 323A or with regard to all or any of the matters specified in clause (2) of Article 323B, runs counter to the power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution?
(2) Whether the Tribunals, constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/rule?
(3) Whether these Tribunals, as they are functioning at present, can be said to be effective substitutes for the High Courts in discharging the power of judicial review? If not, what are the changes required to make them conform to their founding objectives?
5.9 The Supreme Court, on 18.03.1997, held as under:
'clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional.
The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution.'1
1. JT 1997 (3) SC 589, paragraph 101.
5.10 It was further held:
"The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules.
However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts.
We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal."1
1. JT 1997 (3) SC 589. paragraph 95.
5.11 It was also held:
"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 Court. This power is available to Parliament under Entries 77, 78, 79 and 95 of List I and to the State Legislatures under Entry 65 of List II; Entry 46 of List III can also be availed of both by Parliament and the State Legislatures for this purpose."1
1. JT 1997 (3) SC 589, paragraph 82.
The Supreme Court has also held that no individual may directly approach the Supreme Court in any matter decided by the Administrative Tribunal. He must first approach the High Court (Division Bench) and only thereafter he may approach the Supreme Court under Article 136 of the Constitution.
5.12 The Supreme Court recommended that the Union Government may initiate action in respect of appointments/issue of the competence of those who man the tribunals, funds and the question as to who is to exercise administrative supervision over them and place all the tribunals under one single nodal department, preferably, the Legal Department (Ministry of Law).
5.13 As a result of this judgment, orders of the Central Administrative Tribunal have now routinely been appealed against in High Courts whereas this was not the position earlier.