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Report No. 215

Implications of L. Chandra Kumar:

5.14 Professor K. C. Joshi, formerly Head of Law Department and Dean, Faculty of Law, Kumaon University, has in his article 'Constitutional Status of Tribunals'31 stated:

"Administrative Tribunals provide simple, cheap and speedy justice. Dicey apprehended danger from such tribunals to the liberty of subjects, but they have become a regular part of the system of judicial administration. The British Parliament enacted the Tribunals and the Inquiries Act in 1958 which has not been consolidated in the 1971 Act. Prior to the Constitution of India 1950, administrative adjudication was in vogue. The Constitution prior to 1973 used the word tribunal in articles 136 and 227. In 1973, provision for the administrative tribunals was specifically made by the Constitution (Thirtysecond Amendment) Act.

With the acceptance of welfare ideology, there was mushroom growth of public services and pubic servants. The courts, particularly, the High Courts were inundated with cases concerning service matters. The Swaran Singh Committee, therefore, inter alia, recommended the establishment of administrative tribunals as a part of constitutional adjudicative system. Resultantly, the Constitution (Forty-second Amendment) Act, 1976 inserted Part XIVA in the Constitution consisting of articles 323A and 323B.

Article 323A provides for the establishment of administrative tribunals for adjudication or trial of disputes and complaints with respect to recruitment and condition of service of persons appointed to public services. Article 323B makes provision for the creation of tribunals for adjudication or trial of disputes, complaints or offences connected with tax, foreign exchange, industrial and labour disputes, land reforms, ceiling on urban property, elections to Parliament and State Legislatures, etc.

None of these two articles is self-executory. Parliament has exclusive power to enact a law under article 323A, while both 51Parliament and State Legislatures can make laws on matters of article 323B subject to their legislative competence."

5.15 The opinion expressed by the Supreme Court about the retired Judges presiding the tribunals is not quite correct. These retired Judges are experienced people, having spent a major part of their life in adjudication work. They have decided causes and controversies coming before them. They have collected a rich experience and decision-making process. They are well versed in the art of adjudication. They are fully conversant with court processes. They have acquired a certain expertise in dealing with matters, civil, criminal, tax, labour and constitutional coming before them. In short, they represent a rich pool of talent.

5.16 As stated earlier, in order to annihilate the monster of backlog, a multi-pronged attack is indispensable. Constitution-makers had the vision to foresee that a situation may develop where the talent of retired Judges will have to be enlisted and, therefore, they had made ample provision in this behalf.

Article 224A of the Constitution provides that notwithstanding anything in Chapter IV in Part V of the Constitution, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of any High Court, to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court. There is a proviso which says that this power could only be exercised with the consent of the person concerned. Rarely, if ever, this power is invoked.

5.17 Now, in every High Court, there are numerous cases more than five years old. Some of them may have become obsolete; some of them may have become irrelevant; some may have as well abated and there may be some in which the parties have lost litigating interest sheerly on account of delay in disposal of cases. Undoubtedly, there may be many in which the matter had to be adjudicated upon and judgment delivered.

5.18 It is also pertinent to notice that some State Governments have abolished the State Administrative Tribunals. For example, the Government of Tamil Nadu has abolished the State Administrative Tribunal functioning at Chennai as, according to them, disposals were minimal and not satisfactory and expensive. Therefore, the state government servants of Tamil Nadu have to approach the High Court under Article 226 of the Constitution for redressal of their grievances, since the Tribunal has already been abolished.

So, the High Court is the court of first instance so far as the state government servants are concerned, whereas the central government servants who live within the jurisdiction of the Central Administrative Tribunal at Chennai have two forums to agitate their grievances in regard to their service matters. The central government servants, if aggrieved by the decision of the Tribunal, can make an air dash to the High Court and invoke its jurisdiction under Article 226 of the Constitution for redressal. There is an anomaly.

The result is that central government staff at Chennai can avail the jurisdiction of the Tribunal and also of the High Court and then come to the Supreme Court, whereas the state government servants after the abolition of the State Administrative Tribunal, should only approach the High Court under Article 226 of the Constitution, which case may be heard by a single Judge or sometimes by a Division Bench. If it is heard by a single Judge, then the aggrieved party will have a right of appeal in the High Court itself before a Division Bench.

Thus, the service matters will be pending before the single Judge and thereafter before Division Bench for years before coming to the Supreme Court. Thus, the state government servants of Tamil Nadu are deprived of the rule of speedy justice. It is a matter of record that lots of cases are pending before the High Court on service matters and that the same cannot be disposed of within a short period because of the various other factors such as non-filling of the vacancies in the High Court and also non-availability of infrastructure, etc. etc.

5.19 The judgment of the Supreme Court in L. Chandra Kumar is also likely to lead to consequences, which are undesirable. The Supreme Court is not correct in its assumption that the reach and range of the power of judicial review of the Supreme Court and that of the High Courts are identical. It has already been pointed out above that the power of judicial review in India, after Kesavananda's case, covers the following three cases. The courts have the power to strike down the following:

(i) subordinate legislation which is ultra vires the parent Act;

(ii) legislations of Parliament and the State Legislatures if they contravene the provisions of the Constitution; and

(iii) the constitutional amendments which violate the basic structure of the Constitution.1

5.20 The Supreme Court in Kesavananda for the first time in the history of democratic Constitutions of the world, assumed to itself the third power mentioned above, i.e., the power to declare constitutional amendments as unconstitutional if they violate the basic structure of the Constitution. Some might feel that the assumption of this power by the Supreme Court is bad enough in the context of representative democracy.

But what is worse would be to extend the exercise of this enormous power to the High Courts also and after Chandra Kumar to all manner of tribunals. One bizarre consequence would be that different High Courts are likely to strike down different provisions of constitutional amendments in different States and the Constitution of India which is the fundamental law of the country would be in operation in a fractured and fragmented manner.

In fact, a Division Bench of the Andhra Pradesh High Court in Sakinala Harinath v. Andhra Pradesh has struck down Article 323A (2) (d) which ousted the jurisdiction of the High Courts in service matters. Given the vagaries of unstable coalition governments which depend on survival politics at any cost, the possibility cannot be ruled out of collusive writ petitions in the High Courts seeking the striking down of inconvenient provisions of constitutional amendments, past, present or future, without any party seeking a further appeal to the Supreme Court conveniently.

Now, thanks to the Chandra Kumar judgment, these disastrous results can be extended to different tribunals within the same State striking down different provisions of the constitutional amendments on the ground of violation of the so-called basic structure of the Constitution.1

5.21 Thus, as stated above, the Supreme Court ought not to assimilate the judicial review of the High Courts to that of the Supreme Court of India with regard to the basic structure doctrine as propounded in Kesavananda. The Supreme Court should exclusively reserve to itself the power to strike down constitutional amendments for violating the basic structure of the Constitution. Bestowing this power on the High Courts would create terrible constitutional confusion and this confusion would be worse confounded if it is further extended to all manner of tribunals.

While the Supreme Court on one hand expressed its serious reservations about the quality of justice dispensed by these service tribunals, the court on the other hand was willing to distribute the power of judicial review under the Kesavananda doctrine to all sorts of tribunals throughout the country.1

5.22 It should be remembered that though Parliament has the power under Article 32(3) to confer the power of judicial review on "other courts" without prejudice to the power of the Supreme Court under Article 32(1), it has not done that so far even when it has established different tribunals under different enactments. But in an extraordinary gratuitous gesture the Supreme Court has done that in Chandra Kumar's case while professing to uphold the supremacy of judicial review in the name of upholding the supremacy of the Constitution.1

5.23 The power of judicial review of the High Courts under article 226 is not as inviolable as that of the Supreme Court under article 32. While article 32(4) preserves the supremacy of judicial review of the Supreme Court there is no saving provision under Article 226. Establishment of tribunals as substitutes and not supplements to the High Courts as held by the Supreme Court in Sampath Kumar's case is perfectly in tune with the letter and spirit of the Constitution.1

5.24 As the Supreme Court itself observed in Chandra Kumar's case, the establishment of tribunals system was necessitated by certain compelling circumstances like the need for expert bodies to deal with specialized categories of dispute settlement, the need for cutting down delays in the justice delivery modalities, and docket explosion in the ordinary courts of the land. The very purpose and rationale of those tribunals would be defeated if all those cases have to go before the concerned High Courts again.1

5.25 It is too late in the day to go back to Dicey's puritanical view of Rule of Law vis-à-vis Droit Administratif. Establishment of Alternative Dispute Resolution mechanism is now universally accepted in common law as well as continental legal systems and also in other jurisdictions. In L. Chandra Kumar, the Supreme Court was justifiably perturbed over the functioning and quality of justice dispensed by the tribunals.

The composition of the tribunals also needs particular attention. There is no doubt, that many remedial measures have to be taken regarding the composition, qualifications and mode of appointment of members of the tribunals as well as the judges of different High Courts and of the Supreme Court.1

1. V. Nageswara Rao and G.B. Reddy, Doctrine of Judicial Review and Tribunals: Speed Breakers Ahead, 39 JILI 411 (1997).



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